Even if there are enough votes to override President Obama's veto of the Congressional resolution disapproving the Iran deal, Congress's disapproval may mean little in terms of the future of the deal. While contrary to the conventional wisdom, including that of many US supporters of the deal, this may explain the President's confident tone in his speech last Wednesday, a tone not so much calculated to win over those on the fence, as to explain why history is on his side, and against that of the neocon opponents of diplomacy with Iran.
Under the relevant legislative framework, and under the US constitution, Congress's almost sole ability to affect the future of the Iran deal is its power to lift, impose or reimpose economic sanctions. The non-lifting of US sanctions is the practical impact of the resolution of disapproval, assuming that the President's veto can be defeated.
If we turn to the text of the JCPOA itself, what is clear is that, while full implementation of the deal does require lifting of US sanctions that are under Congressional authority, the JCPOA and the related UN Security Council resolution remain fully valid, even if Congress disapproves the deal and refuses to lift those sanctions within its control. There is no provision in the JCPOA that would allow other parties, including Iran, to withdraw from the deal or not to perform their commitments, should the US Congress fail to lift sanctions. On the contrary, explicit language in the JCPOA foresees the possibility that, despite best efforts, the US might fail to achieve full implementation of its commitments. Annex V of the JCPOA makes it clear that the sanctions-relief measures expected of the United States on Implementation Day, when the IAEA has verified that Iran has taken a defined set of actions to alter its nuclear program, are those that are "pursuant to Presidential authorities."(Annex V, B 11) As far as further actions by the United States, in terms of other sanctions to be lifted later, once Iran has fully implemented the deal, what the US has specifically committed to is seeking legislative action to lift the sanctions in question (JCPOA, 23). "The United States will make best efforts in good faith to sustain this JCPOA" (JCPOA, 26). In sum, even if Congress prevents the US from fully implementing its specific sanction-lifting commitments, the JCPOA can still go forward.
But as a political matter, wouldn't Iran simply walk away from the deal in the face of Congress's refusal to play its part in the lifting of sanctions required by the JCPOA? It is no accident that the other parties' sanction- lifting obligations under the JCPOA have been spelled out independently from those of the US. They clearly operate regardless of what Congress does or doesn't do. The economic value of having those sanctions lifted is arguably more than sufficient to keep Iran interested in maintaining the deal for now. And, later on, a new Congress might think differently, anyhow.
Here, Security Council resolution 2231 is of key importance. Once the IAEA determines that Iran has done the required actions in modifying its nuclear program that are specified in the JCPOA, we have "Implementation Day" and the previous Security Council sanctions resolutions are terminated. The trigger for that is the IAEA determination: it is essentially out of the hands of the parties, including the United States. So after implementation day, UN Members are basically under no further UN-based obligation to impose nuclear-related sanctions on Iran. This is a huge gain for Iran and it is difficult to see that it would decide, even in the face of Congressional rejection, not to go forward with the deal to "Implementation Day", where Security Council sanctions are lifted. The only situation in which the UN sanctions framework could be re-established (except by a new Security Council resolution that would surely be vetoed by Russia, China, etc.) is "snap back" if there were "significant non-performance" of Iran's commitments. But Congress cannot force the President to invoke "snap back" if it rejects the deal; if Congress were to lift sanctions and approve the deal, on the other hand, it could conceivably condition any such lifting on the President being required to invoke "snap back" if Iran is in a situation of "significant non-performance". It may seem somewhat ironic, but Congress's resolution of disapproval thus wastes what might be the one form of leverage it has to bring back Security Council-based sanctions binding on all UN Members in a situation where Iran appears to be forging ahead with its nuclear ambitions.
In sum, opponents of the Iran deal are unlikely to stop the path of diplomacy even if they succeed in making the Congressional resolution of disapproval veto-proof. Some, such as Senator Charles Schumer, have suggested "secondary sanctions", where Congress punishes foreign nations and foreign companies for their dealings with Iran. But how effective will such sanctions be with no Security Council framework in place, and, for example, the possibility of structuring transactions with Iran through financial intermediaries and corporate vehicles beyond US jurisdiction? The main negative impact of such measures will be on US businesses and especially financial institutions. Iran will still gain much of the value of having removed itself from the straightjacket of the UN sanctions framework. But secondary sanctions merit a post of their own. Coming soon.
