Mark HibbsImplement the JCPOA

Very shortly, the United States government will make decisions about the Joint Comprehensive Plan of Action (JCPOA) that may have immediate and profound implications for Iran and the U.S; for the future of the Middle East; and for global efforts to prevent the spread of nuclear arms.

The JCPOA ultimately rests upon the authority of the International Atomic Energy Agency (IAEA) to verify that all of Iran’s nuclear activities are declared and peaceful. Without the agreement, IAEA verification would be far more difficult. This should dissuade President Trump and the Congress from taking reckless actions that could curtail the IAEA’s fact-finding, preempt American credibility in dealing with Iran in the future, and terminate enhanced oversight in a country that could respond by ramping up its nuclear program to a crisis level.

The unending polarized debate in the U.S. about the JCPOA has allowed both defenders and detractors to misrepresent the facts concerning the implementation of the accord. In their zeal to burnish the JCPOA, advocates assert that the IAEA has concluded that Iran is complying with the agreement. That’s overstated, as are woefully gratuitous claims by declared opponents of the JCPOA that Iran is hiding current non-compliance because the Obama Administration “gave away any right to conduct meaningful inspections in Iran.”

The IAEA is the JCPOA’s verification agency. Its authority for drawing conclusions about nuclear activities in Iran, as in other states, derives from a bilateral comprehensive safeguards agreement (CSA) to which the IAEA is a legal party.  The IAEA does two main things in Iran—monitoring and verifying. It monitors Iran’s commitments to restrain its nuclear activities, such as on enriching uranium, stockpiling of heavy water, and manufacturing of gas-centrifuge parts. Some IAEA monitoring uses IAEA-verified declarations as a starting point. But the hardest part of the verification work remains to be done, to ensure that Iran’s declarations about the scope and extent of its nuclear program are complete as well as correct.

Contrary to specious claims that the JCPOA prevents meaningful inspections, the agreement is a vehicle that should facilitate the IAEA’s finding out whether all of Iran’s nuclear activities are exclusively dedicated to peaceful uses. That’s possible because under the agreement Iran will implement its Additional Protocol (AP), an instrument that gives the IAEA more access to information about a country’s nuclear activities beyond what is required by its CSA. Implementation of the AP can permit the IAEA to draw the so-called “broader conclusion” that all nuclear material in a state is in peaceful uses. To draw this conclusion in other states with a CSA and an AP in force, it can take the IAEA a number of years. In Iran, where the JCPOA has a broader scope, this process has been underway only for about 18 months.

The IAEA has never said that Iran is “in compliance” with the JCPOA. That’s for two reasons. The first is that such a statement would have no legal basis because the IAEA is not a party. Reason two is that, whereas the IAEA has said that it is routinely monitoring and verifying Iran’s adherence to limits it agreed to concerning specific nuclear activities, and that currently there are no indications that Iran is conducting undeclared activities contrary to JCPOA nuclear-related commitments, the IAEA has not yet concluded that Iran’s declaration of its nuclear activities is complete and correct.

The process for getting to that conclusion would begin by the IAEA’s initially focusing on, and, as appropriate, requesting access to, nuclear sites that have been declared by Iran. Over time, the IAEA would zero in on locations that host Iran’s nuclear fuel-cycle industry, and thereafter, on myriad universities, laboratories, and other R&D installations—including military sites—that may be involved in doing work that is pertinent to Iran’s nuclear program. Doing verification this way may disappoint critics looking for instant results, but it may build confidence while at the same time posing incrementally greater risk that Iran may not cooperate.

The IAEA is at an early stage in this process. In the hypothetical best case, a “broader conclusion” for Iran will result. How long this takes will depend upon the IAEA’s information-collection and analysis capacity, but also on Iran’s political will and the capacity of its nuclear accounting system to provide information to the IAEA. It is not certain that the IAEA will draw a “broader conclusion” in Iran. The IAEA has not done this for about 50 countries that have a CSA and an AP. None of these countries, however, have declared nuclear programs with sensitive nuclear activities.

The JCPOA is a complementary instrument that should permit the IAEA to provide greater assurance that Iran is in compliance with its safeguards agreement and to confirm the completeness of Iran’s nuclear declaration. Besides the AP, the JCPOA includes a raft of other extra verification provisions. The sum total affords the IAEA a level of information about Iran’s nuclear program that exceeds all other nuclear programs subject to safeguards.

Put the JCPOA to the Test

Setting aside premature or misleading claims that the JCPOA “is working” or Iran is “not complying,“ the agreement’s nuclear provisions thus far have not been severely challenged in the field. That may change over time, as the IAEA continues to do its work and becomes increasingly beset with sensitive issues—including any information that suggests that Iran may not have declared all its nuclear activities.

The United States government should therefore consider the verification opportunity costs of taking actions that might terminate the JCPOA. Instead of putting the JCPOA in jeopardy, the U.S. would be well advised to permit the implementation of the agreement to go forward and, together with other parties, encourage the IAEA to vigorously pursue its obligations under the agreement.

To facilitate implementation, JCPOA parties should make adjustments in the agreement where needed, and the parties and the IAEA should identify and counteract developments that could damage confidence about implementation. Effective verification may be hindered by internal bureaucratic approval procedures and by lack of pursuit by personnel; recalcitrant state parties; and deficiencies in the agreement itself. Potential obstacles in the text include the absence of definitions for key terms of reference and for specific IAEA verification activities. There will be difficult-to-overcome concern that the IAEA will be pressured by parties to the agreement to make political—not technical—verification judgments. More attention may have to be given to Russian misgivings about how the IAEA collects and uses third-party information, which first came to a head in 2012. Unless member states request and obtain from the IAEA additional reporting on the IAEA’s verification activities and findings, there will be less transparency compared to before the JCPOA, because implementation of the AP obligates the IAEA to respect its confidentiality provisions.

Some issues could be addressed in a straightforward manner among the parties and the IAEA as appropriate. Iran could agree to provide the IAEA a declaration about its current and past activities in areas that are pertinent to nuclear weapons-making. Technical criteria could be established for certain equipment and technologies related to nuclear weapons-making that would prompt an IAEA request for clarification or access from Iran. The IAEA could establish clear procedures for forming and withdrawing the “broader conclusion.” Doing these things would contribute to greater confidence that IAEA safeguards conclusions—including on Iran—are impartial and are based on technical findings.

Nuclear verification is at the heart of the JCPOA. To the IAEA, the JCPOA is a bird in the hand—a tool that for at least a decade can enhance verification of Iran’s safeguards agreement and contribute to keeping Iran from reaching for nuclear weapons. That said, all JCPOA parties and the IAEA must know that if the IAEA does not unflinchingly implement the agreement, its credibility, and the credibility of the JCPOA, will be damaged. In ten to fifteen years, some key provisions will sunset. The prospects that Iran will thereafter indefinitely restrict its nuclear behavior to the current and effective level called for in the JCPOA will depend on success in multilateral diplomacy. That will be less likely if the United States does not support the agreement that it concluded with Iran two years ago.

Comments

  1. Michael Krepon (History)
    • Lawrence (History)

      Stricking that two questions were not asked to the Senator: 1) one of the strongest benefit of the JCPOA is the implemention without time limit of the additionnal protocol with strong benefit to detect any breakout at any time, and 2) the threat (or rather the promise) to blow out any Iranian fuel cycle (even if only peaceful) is an inherent contradiction and violation of US commitment under NPT article IV and would be one more important step that would further undermine this treaty with possible long term negative consequences for the US.

  2. oliver (History)

    Interesting reading, really.
    Just that David Albright from ISIS (not the terrorists) might disagree with you?

    • Mark Hibbs (History)

      Not an eventuality I’m very worried about.

  3. Michael Krepon (History)

    Trump looks like he’s bought into the Netanyahu strategy of permanent enmity reinforced by air strikes rather than accepting a mutual deterrent relationship with a bad actor.

    https://www.washingtonpost.com/politics/trump-plans-to-declare-that-iran-nuclear-deal-is-not-in-the-national-interest/2017/10/05/825c916e-a9e3-11e7-b3aa-c0e2e1d41e38_story.html?hpid=hp_rhp-banner-main_trumpiran-3010pm%3Ahomepage%2Fstory&utm_term=.c66cff4e90b1

  4. Olli Heinonen (History)

    Mark, the verification of the correctness and completeness of declarations is arising from the comprehensive safeguards agreement. Thus the verification work has been done much longer than 18 months mentioned above. AP provides additional access to information and gives additional assurances on the comprehensiveness of such conclusions. Another thing worth of noting – and you will find it in the background document to the annual safeguards statements – is that the IAEA requires the ratification of the AP before issuing a statement on the completeness. The JCPOA parties decided not to follow that well established practice, and asked Iran only to seek the ratification after receiving a broader conclusion. Time will show how long that search will take. I trust that it will much less than the promise to sign and ratify the Nuclear Safety Convention, which was made by Iran in 2003.

    • Mark Hibbs (History)

      Olli,

      As I expressed above, I don’t like the imprecise use of the word “compliance” especially by inside-the-beltway zealots who seem to feel that 1.) the JCPOA is evil or 2.) the JCPOA was made in heaven or the State Department–maybe in the view of some people that’s one and the same.

      You have probably seen this:

      In particular I call your attention to this language: The IAEA has reportedly asked the Joint Commission (which was set up to oversee implementation of the JCPOA) for clarification about the precise scope of the IAEA verification activities anticipated by Section T, such as whether Iran is required to submit a declaration related to this section. IAEA Director General Amano told the press “our tools are limited.”

      […]

      Given the complex, innovative nature of the JCPOA, it is not surprising that implementation questions have arisen. Section T, in particular, always seemed likely to draw requests for clarification, since the IAEA has only limited experience monitoring the “weaponization” activities prohibited by this section.

      I’d be interested in your view of this. Particularly the remarks in the second half above.

  5. Olli Heinonen (History)

    I do not see that the IAEA Secretariat should go to P5+1 for clarifications. They may get an advice, if not two. But the the IAEA Board and the UN Security Council have asked the Secretariat to verify and monitor the implementation of the agreement. Verification is pretty much a technical task, which falls to the competence of the Secretariat. If the Secretariat asks what they should now do, it raises a question about the clarity of the reports and statements made. If some elements of Section T cannot or have not been verified, the Secretariat should just say so. Just to a reminder on the 2003 EU-3/Iran suspension agreement. The Secretariat did not go around for asking interpretations from various parties, but used its expertise and judgement in crafting approaches and reporting results. Those included also statements saying clearly where Iran had met the requirements ( no indication of….) or where normal quantitative verification goals were difficult to meet (non-production of centrifuges components). Just read as an example a report for the June 2004 Board to that end.

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