Guest post: Halloween comes early for the Iran Deal

President Trump has justified his threat to “decertify” the 2015 Joint Comprehensive Plan of Action, or “Iran deal,” less by any material failures of compliance than by asserting that Iran has “violated the spirit of that deal,” which boils down to the observation that Iran and the USA are on the opposite sides of unrelated issues. According to a recent New Yorker article by Dexter Filkins, Secretary of State Tillerson berated Iranian Foreign Minister Zarif on these grounds in a closed-door meeting at the United Nations:

“[Tillerson] went on to say that Iran had funded groups like Hezbollah, the Lebanese Islamist militia; it had backed Bashar al-Assad, the murderous Syrian dictator; and it had sent its Navy into the Persian Gulf to harass American ships. The fault for all this, Tillerson said, lay in the nuclear deal, known as the Joint Comprehensive Plan of Action, which curtailed Iran’s nuclear-weapons program but not its aggressive actions in the region….

“‘The relationship has been defined by violence—against us… We have more pounds, and our hair is gray… Maybe we don’t have it in our capacity to change the nature of this relationship, because we are bound by it—maybe we leave it to the next generation to try.’”

Sahil Shah argues that invoking “the spirit of the deal” is meant to appeal to these well-worn, even comfortable feelings of enmity and mistrust. This pursuit of emotional (or “ontological”) security jeopardizes the gains in physical security provided by Iran’s compliance with “the letter” of the deal.

Exorcising “the spirit” of the Iran Deal

Sahil V. Shah

Discussions surrounding “the spirit” of the JCPOA (Iran Deal) should have no part in the Trump Administration’s decision, or subsequent Congressional decisions, on Iranian compliance with the agreement. As a result of partisan posturing around “the spirit,” the clarity and strength of “the letter” of the deal is being put at risk, and with it, the physical security that the Iran Deal provides to the world. Conservative government and media circles have become increasingly reliant on a highly contestable understanding of “the spirit” of the deal as a means of detracting from its tangible merits. In turn, certification-related conversations have become flooded with issues that have no relevance to the agreement, which seems to be a case of “old wine in new bottles,” reminiscent of shaky American claims of Soviet non-compliance during the Cold War.

The invocation of “the spirit” of the Iran Deal enlists certain emotions, particularly distrust, to act as a corrective to deal-making with a perceived adversary. As law philosopher Hans Kelsen argues, the ambiguities in international law should always be assumed to exist as a quasi-permission for signatories to have their own interpretations. If the preamble of the deal, where “the spirit and intent” are mentioned in the context of the commitment to implementation “in good faith and in a constructive atmosphere,” were unambiguous, it would have been a sanctionable part of the agreement. In short, the preamble should be read as an agreement to pretend to agree. The point of the good-faith pledge in the preamble, and elsewhere within the agreement, is that there never was (and will never be) a universally accepted “spirit” of the deal. The resulting rhetoric around it simply serves as a chance to posture. Unfortunately, it also showcases how unwilling some are to accept the benefits of the deal.

Invocation of “the spirit” could be geared towards highlighting post-deal confidence and trust-building measures between the signatories. Instead, it is geared towards the contention we are currently witnessing. “The spirit” of the deal, especially as a rhetorical tool, has become an unfortunate vehicle for criticisms of behavior by the “other” side that is both (1) permissible under the deal and (2) does not undermine its intent. When leaders like US President Donald Trump expound upon “the spirit” of the deal, the expression purposefully shifts the discussion away from the actual content of the deal and the facts of its successful implementation to date.

“The spirit” is a rhetorical smokescreen. Assertions about whether Iran is or is not complying with “the spirit” of the deal obscure why that would even be a valid judgment for anyone to make. While mediation and arbitration measures are in place for “the letter” of the Iran Deal, they are not in place for “the spirit.” If “the letter” does not have authority over “the spirit” of the agreement, what or who is the perceived authority? The decision on what “the spirit” is – and therefore, what moral baggage any “transgressions” of “the spirit” will carry – is dependent on the current state of the US administration’s discomfort with the fact that the deal is working. This is less a question of American physical security than ontological security.

Since the Cold War, it has become de rigueur for the technical “letter” of arms control agreements to be accompanied by rhetoric referring to the “spirit” of agreements. Controversies around American perceptions of Soviet cheating seem to inform how opponents have navigated more modern arms-control agreements in a way that leaves them open to irrelevant criticism. Per historian Keith Shimko, as “the concept of ‘technical obedience’ (i.e. compliance with the letter but not the spirit of agreements)” became less prominently articulated during the Cold War, the lines between “the letter” and “the spirit” blurred. It was not always clear if the Soviets were “technically” violating agreements, and, as a result, a less nuanced criticism of Soviet compliance developed as a means to speak out against them. Compounded with today’s fleeting digital media environment, the same political tactics are now presented instantaneously, without sufficient time or space for rebuttals.

The deal did not make a meaningful break in the long-standing distrust between key signatories, and its future now lies partly in the hands of its opponents. Their decision to dwell on “the spirit” of the deal allows debates over compliance to become overrun by the emotions associated with the troubled history of US-Iranian relations. It ought to be possible to understand that the US and Iran are part of an agreement, which is far different from being in agreement. “The spirit” is a peripheral battleground, whose vagueness allows deal opponents to mobilize feelings of distrust, circumventing the unfavorable terrain of the facts.

As long as there is still political capital to be made in brandishing anti-Iranian credentials in the US, as well as anti-American credentials in Iran, little will change. Appeals to entrenched mistrust offer a path of little resistance. The deal itself has obviously not been sufficient to realign American and Iranian worldviews or interests in the context of a toxic relationship. If any sense of agreement – even a simple handshake – disturbs the mutual perception of threats, then the act of deal-making itself courts a backlash. It makes the states in question, and their people, less willing to undergo serious change.

Opponents can enlist and reinforce this sentiment. But you do not make deals like this with people you trust – you make them precisely because you do not trust them. The robust monitoring, verification, and inspection tools of the JCPOA are the agreed medium through which (1) the international community can relax its distrust and (2) Iran is able to prove that it can “win back” trust. Making the deal did not mean that the international community at large trusted Iran; rather, it trusted its own ability to leverage its scientific and technical capacity to verify to Iran’s behavior, and if necessary, to respond to it.

Mistrust manifests in a reversion to what one knows best (i.e., ontological continuity), even if it is not for the best. Accusing another signatory of violating “the spirit” of the deal elicits a sense of failure, fundamental incompatibility, and discord. These bad-faith invocations of “the spirit” suggest that “the letter,” i.e., the actual deal itself, guaranteed a change in attitudes on other issues. Any such changes would take both sides into unfamiliar and uncomfortable territory, involving empathy, self-criticism, and a reconsideration of the past. For opponents, the prospect of such a change is threatening.

Thus, the goal is not ensuring “the spirit has been violated” is succeeded by “the spirit has not been violated.” The ultimate realization in this case would be that if there is no universal understanding of “the spirit” of the deal, the “spirit” should not be used as the basis for discussing how we judge the deal. The key question, then, becomes this: with an understanding of “the spirit” as ambiguous and unreliable, how does this change the way we articulate issues pertaining to the deal? If domestic perceptions continue to be misguided, we must answer this question so it leads to a more fact-based public understanding of the deal’s merits and pitfalls.

About the author: Sahil V. Shah is a recent MPhil graduate in International Relations and Politics from the University of Cambridge. He is a former researcher for Dr. William J. Perry and is currently writing from Moscow where he is attending nonproliferation meetings at the behest of the Comprehensive Test Ban Treaty Organization.