January 17-2014
By Mark Hibbs
On 24 November 2013 Iran and the six powers—the US, UK, France, Russia, China and Germany—concluded what they described as an ‘initial agreement’ that within one year should be followed by a final one on how to resolve the Iran nuclear crisis.
The plan’s ‘initial step’ commits Iran to several actions that are intended to build confidence hand in hand with a limited amount of sanctions relief by the powers. If Iran implements these actions, during the next six months, and perhaps beyond, Iran will break off heretofore uninterrupted deployment of gas centrifuges for uranium enrichment, will halt uranium enrichment to 20 per cent U-235 (a level close to that which can be used in nuclear weapons), and will cap its accumulation of enriched uranium hexafluoride (UF6) gas produced in its centrifuges. While these measures are being implemented, during the ensuing six months to one year Iran and the powers are to negotiate the ‘final step’.
The agreement on the initial step followed from many months of discussions between Iran and the six powers over what originally had been intended to be a four-step process to resolve the crisis. On the basis of secret bilateral talks, the United States and Iran this year in effect accelerated progress in negotiations by collapsing the four-step process into an initial and a final step. That made possible the dramatic—and to some observers unexpected—breakthroughs made in two consecutive negotiating sessions held in Geneva in mid-October and late-November.
But the success in concluding the initial step was bought at the price of lack of clarity about how all seven countries should proceed in negotiating the final step during the next 12 months. Much of what had been foreseen under steps two and three in the original negotiation architecture remains undefined in the Joint Plan of Action (JPA), as the agreement is called, concluded between Iran and the six powers on November 24.
JOINT PLAN OF ACTION: VERIFICATION ARRANGEMENTS
Concerning verification of the parties’ obligations under the JPA, the text offers the following general guidance:
• The International Atomic Energy Agency (IAEA) is ‘responsible for verification of nuclear-related measures’.
• A Joint Commission representing Iran and the six powers ‘will be established to monitor the implementation’ of ‘mutual near-term measures’.
• ‘The Joint Commission will work with the IAEA to facilitate resolution of past and present issues of concern.’
• The JPA identifies specific tasks, which, in order to be successfully implemented, will require a greater level of IAEA access to information and locations than before:
• Within three months after the initial step enters into force, Iran must provide ‘specified information’ to the IAEA concerning its plans for new nuclear installations, descriptions of buildings on each of its nuclear sites, a ‘description of the scale of operation for each location engaged in specified nuclear activities,’ as well as information on uranium mines and mills and on source material.
• Iran must provide the IAEA an updated design information questionnaire (DIQ) for the IR-40 reactor under construction at Arak, and confer with the IAEA over the design of a safeguards approach for the reactor.
• Iran must afford the IAEA daily inspection access to centrifuge enrichment installations in Iran.
• Iran must provide managed access to the IAEA to account for and monitor centrifuge equipment production and storage.
Assuming that Iran is prepared to implement the terms of the initial step, the IAEA in principle has the authority and could obtain the resources necessary to carry out additional verification as proposed by the JPA. The IAEA would have the authority to do the verification under Article III A. 5 of the agency’s statute, which states that:
The Agency is authorized… to apply safeguards, at the request of the parties, to any bilateral or multilateral arrangement, or at the request of a State, to any of that State’s activities in the field of atomic energy.
Pursuant to entry into force of the JPA, the IAEA’s member states will likely provide the additional resources necessary by way of funding and cost-free experts. The resources needed would be a small fraction of the 12 million US dollars that the IAEA Department of Safeguards spent on verification work in Iran in 2012.
Upon entry-into-force, the IAEA could—with comparatively little additional resources—verify that enrichment above five per cent U-235 at Iran’s Pilot Fuel Enrichment Plant (PFEP) at Natanz and at the Fordow Fuel Enrichment Plant (FFEP) has been stopped; that Iran’s inventory of 20%-enriched uranium is being down-blended; that UF6 associated with the Fuel Enrichment Plant (FEP) is being converted to less-threatening uranium oxide form; that no additional centrifuges are being installed at Iran’s enrichment sites and that designated installed capacity at these plants is idle. The IAEA can carry out inspections at the Arak reactor construction site, at the Tehran Research Reactor, and at a critical facility to provide assurance that Iran is not making or testing fuel for the IR-40 reactor. Iran could provide the IAEA data it needs for updated DIQ and for designing a safeguards approach for the IR-40 reactor, consistent with the IAEA subsidiary arrangements modified Code 3.1 —which requires states to provide early design information for nuclear facilities.
The IAEA would have to devote relatively more effort and resources to fulfil some other tasks called for under the JPA, and for two of these—outlined below—the IAEA must also negotiate new data access arrangements before the work can commence.
Monitoring of centrifuge equipment production: Information about centrifuge production is required under the Additional Protocol, but monitoring is not a routine IAEA activity in other countries with centrifuge enrichment programmes under IAEA safeguards. It has previously been carried out by the IAEA in both Iran and Libya. The IAEA monitored non-production of centrifuge rotors following an agreement between Iran and European Union countries notified to the IAEA by Iran in November 2003. According to Olli Heinonen, former IAEA Deputy Director General for Safeguards, the IAEA used data on Iran’s import and consumption of key raw materials including maraging steel and high-strength aluminum to set a baseline for the monitoring of the 2003 suspension agreement, which Heinonen said, ‘went beyond the monitoring requirements of this Joint Plan.’ In 2004 and 2005 the IAEA also carried out similar monitoring activities for centrifuge equipment for Libya’s formerly clandestine nuclear programme. For work under the JPA, the IAEA would negotiate similar arrangements to establish Iran’s inventory of centrifuge rotors, and to monitor production of replacements.
Daily access to enrichment plant surveillance records: Until now, under legally binding safeguards arrangements between Iran and the IAEA the agency has not requested this access. Immediately after announcement of the JPA, some safeguards experts questioned whether daily access to Iran’s centrifuge plant records would significantly benefit the IAEA since the material flows in these installations are relatively limited. For his part, Heinonen has suggested that in addressing tasks called for in the JPA, the IAEA would want to negotiate more frequent inspector access to centrifuge cascades and other relevant areas at the Natanz and Fordow plants, and in addition, want to put under IAEA seal the stocks of UF6 and uranium oxides at Natanz, Fordow, and the uranium conversion-related installations and equipment at Esfahan, as well as obtain more frequent access to these materials at these locations.
RESOLUTION OF OUTSTANDING ISSUES
On 11 November, two weeks before the JPA was concluded by Iran and the powers, Iran and the IAEA agreed to a so-called Framework for Cooperation. This development superseded a long-unsuccessful negotiation by Iran and the IAEA of a planned ‘structured approach’ to resolve outstanding issues and, in particular, allegations set forth in IAEA reports to the agency’s Board of Governors since November 2011 that Iran has engaged in activities related to the development of nuclear explosive devices—issues collectively referred to by the IAEA as ‘possible military dimensions’ (PMDs) of Iran’s nuclear programme.
The Framework of Cooperation statement is a brief and general document that commits both parties to ‘strengthen their cooperation and dialogue aimed at ensuring the exclusively peaceful nature of Iran’s nuclear programme through the resolution of all outstanding issues that have not already been resolved by the IAEA.’ In similar general terms, the JPA says that the parties will set up a ‘Joint Commission [that] will work with the IAEA to facilitate resolution of past and present issues of concern.’
Neither the Framework of Cooperation nor the JPA establishes a timeline for the resolution of these concerns. An annex to the Framework of Cooperation sets forth a list of ‘initial practical measures’, including for Iran to provide the IAEA with information it needs during the next three months. Some of these points were cross-referenced in the JPA as elements of IAEA ‘enhanced monitoring’ in that agreement.
The framework annex
It would appear that this annex was designed to include topics for which provision of information to the IAEA by Iran would be comparatively straightforward, and thereby contribute to confidence-building as intended by the initial step negotiated between Iran and the six powers. The IAEA and Iran have begun to implement the terms of the Framework of Cooperation already by conducting a visit to the heavy water production plant at Arak in December. They may visit Iran’s uranium mine at Gchine in February.
The JPA, however, sets the optimistic target to ‘conclude and commence implementing’ the ‘final step of a comprehensive solution…no more than one year after the adoption of’ the JPA. At the same time, it also provides for the initial six-month step to be renewable, and that—as foreseen during the early negotiation of the agreement—there would be ‘additional steps’ in between the initial and final steps.
According to negotiators, the ambitious timetable foreseen by negotiators for both Iran and the powers reflected political pressure in Iran and the United States to reach a final agreement quickly, as US congressional critics threatened to impose more sanctions on Iran if progress in reducing Iran’s nuclear threat was not forthcoming, while regime hardliners in Iran have opposed Iranian President Hassan Rouhani pursuit of negotiations.
At the IAEA Secretariat, during the negotiation of the JPA, concerns were raised at a senior level about the relationship between the IAEA’s independent obligation—following from Iran’s comprehensive safeguards agreement (CSA) and from resolutions of the IAEA board and the UN Security Council—to resolve outstanding questions about Iran’s nuclear activities, on the one hand, and the powers’ interest in negotiating a political resolution to the crisis with Iran on the other.
Ongoing IAEA concerns
Should Iran implement the suspension terms in the JPA to the letter, but fail to satisfy the IAEA concerning its outstanding questions, including about PMDs, the possibility exists that the powers, in the interest of quickly concluding a ‘final step of a comprehensive solution,’ might strongly urge the IAEA to accept what it would consider less than satisfactory demonstration by Iran that allegations and concerns about undeclared activities and nuclear weapons-related research and development are unfounded.
That eventuality would be more likely if—as some participants in JPA negotiations have recently asserted—there is no watertight consensus among all negotiators in the powers’ camp that it is essential that the IAEA conclusively resolves all the concerns raised by allegations in the agency’s dossier. Some experts also recalled the IAEA’s experience during the political negotiations led by the US with North Korea in 1993 and 1994 (toward the conclusion of the Agreed Framework), which were conducted under time pressure out of concern that Pyongyang would quit the NPT and quickly develop nuclear weapons. This incident, the experts warned, should prompt the IAEA Secretariat to recall to the powers negotiating with Iran that the IAEA is legally obligated by Iran’s CSA to implement safeguards.
The concluded JPA does not spell out how this issue will be handled except by stating that the Joint Commission would ‘work with the IAEA to facilitate resolution of past and present issues of concern.’ According to some verification experts, the IAEA and the powers may arrive at a confidential understanding about how to proceed. But what Iran does with the IAEA to meet its obligations under its safeguards agreement and under resolutions of the IAEA board and the Security Council should be kept distinct from political commitments that Iran makes under the JPA.
One expert told the author that following entry-into-force of the JPA, ‘the timing of specific actions under the political track may be influenced by the timing of actions under the IAEA track. But they should be kept separate.’ The IAEA should be prepared to verify that voluntary confidence-building measures are taking place under the JPA, and in such cases the parties to the JPA should inform the IAEA in a timely manner of what kind of verification activities are called for and when they should happen. ‘But the powers must not interfere with the IAEA’s activities in implementing verification under Iran’s safeguards agreement.’
Ensuring a separation of tracks between the powers’ political process and the IAEA Secretariat’s safeguards obligations may prove to be difficult. Until now, a number of verification authorities have expressed and endorsed the view that, under Iran’s CSA, the IAEA has the authority, indeed is obligated, to pursue and resolve PMD-related allegations about Iran’s nuclear programme. How the Joint Commission could “facilitate resolution” of these issues, without challenging in some cases the IAEA Secretariat’s independent safeguards judgment is not clear.
A NEW UNSC RESOLUTION
The JPA says that ‘additional steps’ between the initial and final steps also include actions that aim to ‘bring to a satisfactory conclusion” the UN Security Council’s consideration of this matter. It is widely anticipated that a new Security Council resolution would be passed to override resolutions that since 2006 have ordered Iran to suspend its uranium enrichment and heavy water reactor-related activities (since the initial step permits Iran to continue to enrich uranium and the JPA sets forth that the final step would permit Iran to continue uranium enrichment indefinitely .) Such a new Security Council resolution might be passed, for example, in exchange for firm commitments by Iran to ratify and implement its Additional Protocol, to limit the scope of its enrichment program, and to abandon construction of its IR-40 reactor at Arak or modify its design. But must all of the IAEA’s outstanding issues be resolved before the Security Council passes a new resolution which nullifies previous suspension orders and lifts all its nuclear sanctions against Iran?
Mark Hibbs is a senior associate in Carnegie’s Nuclear Policy Program, based in Berlin.