By Mathew Goldstein
The P5+1 countries, in negotiating the recent agreement with Iran, made multiple concessions that are inconsistent with the goals that they publicly declared they would pursue in the negotiations. During the final debate with Republican presidential candidate Romney in 2012, Bob Scieffer asked Obama what sort of Iran deal he would accept. Obama replied: "The deal we'll accept is that they end their nuclear program." The negotiations were meant to deal with Iranian violations of the Nuclear Non-Proliferation Treaty (NPT). The NPT provisions last forever. But the NPT is notoriously weak and signatories that want to cheat have many opportunities to do so. The Joint Comprehensive Plan of Action (JCPOA) agreement was supposed to add strict verification measures that would last forever to protect the integrity of the NPT.
The underground Fordow uranium enrichment site was discovered by United States, French, and British government spy agencies. International Atomic Energy Agency (IAEA) Director General Mohamed El-Baradei asserted that "Iran should have informed the IAEA the day they had decided to construct the facility," based on the provisions of the Subsidiary Arrangements to Iran’s Safeguards Agreement. In 2003, Iran had agreed to modify its Subsidiary Arrangements with the IAEA, with the modified arrangement requiring Iran to report planned nuclear facilities when a decision on construction is made, rather than 180 days before the facility is scheduled to receive nuclear material. Iran countered that it had ceased implementation of the arrangement in protest of UN sanctions in March 2007, and justified its unilateral abrogation of the arrangement by claiming that its parliament, the Majlis, never ratified It. However, modification of subsidiary arrangements is done by states without parliamentary ratification, which effectively negates Iran’s argument. The IAEA also disputes Iran's right to unilaterally withdraw from its Subsidiary Arrangements, and has never accepted Iran's 2007 decision to do so. Regardless of the validity of Iran's claim, satellite imagery and intelligence sources indicate that construction began no later than 2005, at least two years before Iran's attempted withdrawal.
In 1991, Iran secretly imported from China one metric ton of uranium hexafluoride (UF6), which it was obligated under its IAEA safeguards agreement to report to the Agency, but did not. In 1999 and 2002, Iran conducted tests on test centrifuges installed at Kalaye Electric Company, its secret centrifuge R&D facility, using the Chinese-supplied UF6. These tests constituted violations of Iran’s safeguards agreements.
Iran failed to declare the following activities to the IAEA: The importation of natural uranium, and its subsequent transfer for further processing. The processing and use of the imported natural uranium, including the production and loss of nuclear material, and the production and transfer of resulting waste. The use of imported natural uranium hexafluoride for the testing of centrifuges, as well as the subsequent production of enriched and depleted uranium. The importation of natural uranium metal and its subsequent transfer for use in laser enrichment experiments, including the production of enriched uranium, the loss of nuclear material during these operations, and the production and transfer of resulting waste. The production of a variety of nuclear compounds from several different imported nuclear materials, and the production and transfer of resulting wastes. The production of uranium targets and their irradiation in the Tehran Research Reactor, the subsequent processing of those targets (including the separation of plutonium), the production and transfer of resulting waste, and the storage of unprocessed irradiated targets.
Additionally, Iran failed to declare the facilities where nuclear material (including the waste) was received, stored and processed; provide in a timely manner updated design information for a research reactor located in Tehran; as well provide in a timely manner information on two waste storage sites.
Iran failed to report uranium conversion experiments to the IAEA. Iran also failed to provide the agency with design information for a variety of nuclear-related facilities. These included the following: A centrifuge testing facility. Two laser laboratories and locations where resulting wastes were processed. Facilities involved in the production of a variety of nuclear compounds. The Tehran Research Reactor (with respect to the irradiation of uranium targets), the hot cell facility where the plutonium separation took place, as well as the relevant waste handling facility. Iran failed on many occasions to co-operate to facilitate the implementation of safeguards, through concealment of its nuclear activities.
Iran is a determined proliferator that is trying to hold onto its option of becoming a nuclear weapons state, in violation of the NPT, and the international negotiators are tasked with stopping it, and returning it to the fold of the NPT. An Iranian interest in negotiating emerged only in 2013 after harsh and biting sanctions were put in place. Iran’s interest in coming back to the table was only to lift sanctions – nothing changed as far as its nuclear interest. So these negotiations are a classical zero-sum game where one side comes out the winner and the other side the loser. The results have recently been made public and the outcome is unfortunate: The P5+1 have failed.
Iran lies about lying. It's narrative is that it has done no wrong. So the P5+1 countries are trying to stop Iran from doing something that it does not admit to trying to do. Given this context, there is no logic in agreeing to sunset clauses. Yet under the JCPOA, after the ten-to-fifteen-year restrictions have ended, Iran may expand its enrichment activities without restrictions on technology, enrichment level, and locations. This will allow Iran to shrink its break out time to almost zero which would render any remaining efforts to prevent Iran from building nuclear weapons essentially meaningless. Because this agreement blocks Iran from nuclear weapons for no more than a measly fifteen years (even if Iran strictly abides by the agreement) it is little more than a capitulation to Iran.
Libya, South Africa, and Sweden agreed to anytime, anywhere inspections. Ukraine destroyed all of its nuclear infrastructure. Instead of "any time any place” inspections, the JCPOA substitutes a concept called “managed access to military facilities." This is exactly the kind of ambiguous concept that the Iranians wanted. Furthermore, instead of inspections carried out within 24 hours of a request, it is set to 24 days. More than three weeks is sufficient time to hide from the inspectors high explosive testing related to nuclear weapons, a small centrifuge manufacturing plant, or the use of advanced centrifuges.
The JCPOA sets a fifteen year 300 kilogram cap on Iranian stockpiles of low enriched uranium but then allows for exceptions, thus providing Iran with an opportunity to decrease it's break out time. There is no provision to ensure the IAEA can verify how many centrifuges Iran has manufactured. A 30 day window to veto imports of sensitive dual use goods to Iran is too short to make reliable judgements.
Providing clarity regarding the different penalties for different degrees of lawbreaking is a basic element of any legal system. Yet there are no collective penalties of differing severity specified in response to infractions of different scale in the JCPOA. The only specified penalty is a reimposition of sanctions which results in an immediate and complete cancelation of the agreement. This is a drastic step that the P5+1 is likely to seriously consider only for large scale infractions, thus leaving Iran with opportunity to get away with repeated small and moderate sized infractions. Furthermore, the "snapback" of sanctions mechanism, which expires after ten years, excludes contracts that were signed before the violations were declared, reducing its impact on Iran.
The committee to rule on potential violations will include Iran as a member. So the player that is a known violator, cheater, deceiver, and liar, for years, is on the violation judging committee. Why? For the purpose of upholding Iran's narrative that it is not a bad player. At the Munich Security Conference last February, Iranian Foreign Minister Mohammad Javad Zarif was interviewed and gave his fairy tale – that Iran never did anything wrong, that there is no evidence against it, that it is wrongly accused, that all the sanctions were baseless. No one challenged him.
The IAEA has 12 outstanding questions on past Iranian military nuclear production work. This is a file based on the intelligence input submitted by 10 different countries, all documenting Iranian activities linked to suspicions of nuclear weaponization. It includes research into building a nuclear warhead, evidence of plans for an implosion device, detonators – all the stuff that has no civilian explanation but obviously is purely military in nature. The Vienna nuclear deal stipulates that Iran must provide answers to these questions by October. The IAEA issues a report in mid-December. If this procedure fails to get satisfactory answers from Iran, and the P5+1 accepts the Iranian intransigence by nevertheless proceeding with the lifting of sanctions, then this will set a precedent for rewarding such intransigence that will undermine the future prospects of not only this agreement, but other such agreements.
Since 2012 the IAEA has tried to get into Parchin, a site that is a prime suspect for Iran's military related nuclear work, and Iran stonewalled these efforts. Iran has not been sitting on its hands in Parchin. There is satellite imagery of its cleanup operations there. So much time has gone by. When it finally allows one inspection, there is very little chance inspectors will find anything. Iran can then present the inspection results as a vindication.
A reason that the P5+1 surrendered so much to Iran in the negotiations is that they failed to dispute Iran's ongoing narrative that it did no wrong. Because Iran lost the trust of the international community by cheating on its commitments, and deceiving the international community for decades, its nuclear infrastructure, which lacks a non-military justification, should in the main be dismantled. However, that did not happen since Iran's narrative that it did no wrong was not challenged and the negotiations were instead conducted on a give and take basis between two equals seeking to reach a middle ground compromise. The notion that Iran must work to regain the trust of the international community, and therefore there is no equivalence between Iran and the P5+1 with regard to this negotiation, was absent. The U.S. government claims that it did everything it could to get the best possible deal, yet this is belied by the P5+1 negotiating with Iran from the mistaken premise that confronting Iran with its history of cheating would be counter-productive. The result is that under the JCPOA Iran will retain an enrichment program on a scale that heretofore has not been justified by the country’s practical needs.
We don’t want to be in the situation where the Iranian government, whose leadership is prone to fanatical and hateful rhetoric (it's leadership refers to Israel as a cancerous tumor that must be, and will be, annihilated) and funds and arms those who endorse similar fanaticism, can break out to nuclear weapons whenever it wants, and the international community cannot stop it. Yet under the JCPOA it is now foreseeable that in as little as 10 years Iran will posses a vast nuclear project, working on a breakout capability in whatever aspect they can. The P5+1, by producing the JCPOA, are guilty of undermining the integrity of the NPT. The negative implication for the world is too likely to be harsh.
It is not too late for the P5+1, with a nudge from the U.S. Congress, to insist on a no nonsense agreement. The U.S. Senate placed conditions on its approval of the Treaty for the Prohibition of Nuclear Weapons in Latin America which were eventually incorporated into the final multilateral agreement. The Senate also amended the treaty with the World Health Organization and WHO accepted the revision. There are over 200 instances where the Senate insisted on treaty modifications and in many cases the treaty was successfully renegotiated and then passed by the Senate. Congress has a role in influencing international agreements, including executive agreements such as the JCPOA.
The existing JCPOA needs to be strengthened and the P5+1 therefore may need to resort to arm twisting. If Congress rejects the current deal then the countries of the world will have a choice to either do business with the 17.4 trillion dollar United States economy or with 400 billion dollar Iranian economy. It will be in the self-interest of most countries not to do business with Iran, compelling Iran again to the negotiating table. Meanwhile, the IAEA will continue inspections of declared sites and a reconfiguration of centrifuges to produce highly enriched uranium would be detected. Iran knows that banishing the inspectors would risk a military strike on its nuclear infrastructure. A good deal would be permanent with no sunset clauses, with anytime, anywhere, inspections within 24 hours, with an upfront and satisfactory account of Iran's past nuclear weapons development related activity, with multiple penalties of differing severity proportional to infractions of differing degrees, with a physical dismantling of Iran's superfluous nuclear infrastructure, and without the various other ambiguities and weaknesses. With more effort the JCPOA could become a genuinely good agreement.
