The Iran Deal Limits America’s Options

The objective of the Nonproliferation Treaty (NPT) was to prevent Non-Nuclear Weapons States (NNWS), including Iran, from ever developing nuclear weapons. Iran signed the NPT in 1968 and ratified it in 1970. It is legally bound by the treaty unless it formally withdraws. But under the Joint Comprehensive Plan of Action (JCPOA), agreed to on July 14, 2015, by Iran and its negotiating partners (the United States, the United Kingdom, France, Germany, the Russian Federation, China, and the High Representative of the European Union for Foreign Affairs and Security Policy), the inspection rights and procedures of the International Atomic Energy Agency (IAEA), and U.S. freedom of action to respond to Iranian violations, are likely to be reduced.

In January 1993, a U.S. administration first reported to Congress its concern about Iran’s compliance with the treaty restrictions on its nuclear program. In 2003, in the State Department compliance report to Congress, and in every subsequent report, Iran has been found to be in violation of its NPT obligations. Since 2006, the IAEA’s Board of Governors has reported Iran’s noncompliance to the U.N. Security Council (UNSC). On this basis, the UNSC has passed numerous resolutions requiring that Iran cease its activities. U.N., European Union, and U.S. sanctions have sought to ratchet up disincentives for Iran to continue its violations.

The IAEA was established in 1957, in part to monitor NPT signatories’ nuclear programs to verify that the NPT was being complied with, and that nuclear material and other items were not diverted in pursuit of nuclear weapons. Initially, the IAEA negotiated “safeguard” agreements with participating countries to spell out the rights and procedures for inspection of facilities “declared” by the country. Iran agreed to its safeguard agreements with the IAEA in 1974.

The IAEA became aware of the weakness of the existing safeguards regime with regard to “undeclared” facilities and activities after its failures in Iraq and North Korea. In order to strengthen the safeguards regime, the IAEA developed a program of “strengthened safeguards” in the early 1990s. The IAEA’s rights to conduct “special inspections” at “undeclared” sites were affirmed. The IAEA has sought a special inspection only once, in North Korea in 1993, but North Korea refused to permit the inspection. In Iran, if the IAEA requests a special inspection and Iran does not agree to the request, but the IAEA’s director general and board of governors believe an inspection is necessary and urgent, Iran would be called upon to permit the inspection without delay.

An important component was added to the strengthened safeguards system in 1997, when the IAEA approved a Model Additional Protocol (AP) that included the application of more inspection technology and inspection rights to undeclared facilities. Iran signed the AP in 2003 and agreed to provisionally apply it pending ratification, but has never ratified it. Iran selectively implemented it until 2006, when it ceased its provisional application. Of the 147 NNWS for which the IAEA board of directors has approved APs, Iran is the only one with significant nuclear activities that does not have an AP in force.

While Iran has again, in the JCPOA, agreed to provisional application of the AP, the deal does not actually obligate Iran to ratify the AP: It merely commits Iran to “seek, consistent with the Constitutional roles of the President and Parliament, ratification of the Additional Protocol” within eight years.

There could be a 24-day lag between the request and IAEA access, providing ample time for Iran to sanitize the site.

Under the JCPOA, should Iran again cease its provisional application of the AP, the IAEA’s authority and ability to inspect undeclared sites will be severely reduced. The IAEA does not have an extensive intelligence capability and has relied on information from the U.S. and others regarding unpermitted activities. If the IAEA requests access to an undeclared site, the IAEA would have to divulge, in writing, the basis for its request – and if the IAEA and Iran are unable to agree to arrangements, there could be a 24-day lag between the request and IAEA access, providing ample time for Iran to sanitize the site, particularly because the IAEA would have informed Iran and a joint commission of the basis of its concerns. Any intelligence sources and methods forming the basis of a request for access to an undeclared site would likely be compromised through this process. Alternatively, Iran could invoke the Dispute Resolution Process of the JCPOA, alleging significant nonperformance by any of the other JCPOA parties – and thus giving itself at least a month to sanitize a facility.

In making assessments of Iranian compliance with the NPT, the U.S. has relied primarily on its own intelligence assets. The U.S. will continue to need to do so. It has no on-site inspection rights and must rely on the IAEA for inspections at both declared and undeclared facilities, and the JCPOA ensures that no U.S. nationals would be permitted on the teams of inspectors. If the U.S. obtains intelligence indicating a possible Iranian violation, it can ask the IAEA to obtain confirmatory evidence, but at the cost of compromising intelligence sources and methods. If a violation is in progress, moreover, one must expect that access will be denied or delayed until Iran has completed an effort to clean the site of evidence of a violation.

In the NPT regime, the U.S. could act unilaterally if it believed that Iran was in possible or likely violation of the NPT. The JCPOA, however, spells out a Dispute Resolution Mechanism that the U.S. must follow rather than pursuing its own response to Iranian noncompliance. Should the U.S. not follow those procedures, Iran may charge the U.S. with a violation of the JCPOA, which would void Iran’s obligations.

The conclusion is clear: This deal will significantly undermine verification and the ability of the U.S. to respond to Iranian violations.