Last month Iran raised the specter that it may expand the scope of its nuclear activities, especially if its interpretations concerning what constitutes non-compliance with the JCPOA do not prevail.

This was not the first time Iran has dropped this hint. In 2013 the head of Iran’s nuclear program, Fereydoon Abbasi-Davani, announced that Iran might need uranium enriched to about 50% U-235 to fuel future submarines and ships. He said that at a moment when IAEA board member countries were trying to persuade Iran to agree to halt production of uranium enriched to nearly 20% at the bunkered Fordow site. The conventional wisdom at the time interpreted Iran’s talk about future production of submarine reactor fuel as a tactical move in that negotiation.

In December Iran’s reiteration of its interest in marine propulsion was in some quarters also brushed off as an empty gesture. After all, four years after Iran last raised this issue, Iran and the powers had settled their differences by concluding the “Iran deal.” Right?

Not quite. At the beginning of 2017, the future of the JCPOA is on the line. Questions loom about whether this year and beyond the six governments that negotiated it will remain united about what they believe Iran needs to do to comply. During his election campaign U.S. President-elect Trump vowed to terminate the JCPOA. If America’s strategic relations with China and Russia deteriorate further, that may influence these states’ resolve to hold Iran to the letter of its commitments. In this uncertain situation, Iran’s counterparts need to make clear to the IAEA and to Iran right now that the JCPOA gives Iran no wiggle room to negotiate with the IAEA an arrangement that permits Iran to initiate nuclear activities for the development of a future nuclear navy.

What Paragraph 14 Says

Like other non-nuclear-weapon states that are parties to the NPT, Iran has a safeguards agreement with the IAEA that follows from the IAEA document INFCIRC/153 (Corr.). Paragraph 14 concerns safeguards arrangements should a state wish to exercise the option to use nuclear material subject to safeguards as fuel for nuclear naval (i.e. military) submarines. This option accommodates the provisions of the NPT, which proscribes the use of nuclear material for nuclear explosive activities, but not its use for military activities in general.

Sub-paragraph a.(i) of paragraph 14 was included in INFCIRC/153 (Corr.) to address the possibility that a state exercising this option may have conflicting obligations such as those arising out of facility-specific, so-called INFCIRC/66-type, safeguards agreements that states concluded beforehand with the IAEA. These agreements obligate the state not to use material subject to those agreements for any military purpose. Sub-paragraph a.(i) implies that, should any such conflict arise, the state that seeks to use nuclear material for naval submarine fuel would have to provide assurances to the IAEA that any material that is covered by a blanket ”no military use” obligation would not be used for submarine fuel. Iran, under one such INFCIRC/66 agreement, may have obligations not to use some previously-supplied U.S.-obligated uranium for any military purpose. Following from sub-paragraph a.(i), in this case Iran would have to assure the IAEA that this material would not be used for submarine fuel.

More generally, sub-paragraph a.(i) establishes that any nuclear material subject to conflicting obligations cannot be used for naval propulsion. For Iran, this provision may be a show-stopper, because the JCPOA was expressly concluded to “ensure that Iran’s nuclear programme will be exclusively peaceful.

If Iran’s counterparts hold that to be true, they need to make clear to Iran and to the IAEA that any nuclear activities by Iran to develop a naval nuclear infrastructure would constitute non-performance under the JCPOA. Only last month, Iran’s President Hassan Rouhani “issued an order” to Ali Akbar Salehi, head of the Atomic Energy Organization of Iran, “to begin planning for the development of marine nuclear propulsion engines and necessary fuel.” Rouhani told Salehi to “submit to me a plan and a timetable for realizing [the nuclear propulsion project] within a maximum of three months.”

Rouhani’s orders did not explicitly say that nuclear propulsion in Iran would be intended for naval vessels and Iran might argue instead that it aims to develop nuclear material exclusively for use in civilian marine craft. Provided that Iran does not use nuclear material in any preparations that remain on the drawing board, Iran wouldn’t be contravening the terms of the JCPOA.

But If Salehi tells the IAEA and the powers he plans to follow Rouhani’s orders and get ready to build nuclear-powered ships, Iran’s JCPOA counterparts should point out that, with the exception of a dedicated fleet of nuclear-fueled Russian icebreakers that ply Russia’s Arctic coast, IAEA member states have long abandoned the use of nuclear power for any civilian vessels, in part for economic reasons and in part out of consideration of the difficulties in obtaining agreements from foreign governments and ports to allow nuclear-powered vessels to enter their domains. Beginning in the 1970s, Germany and Japan each built and operated a nuclear-powered merchant vessel. The German Otto Hahn became too expensive to operate and was converted to diesel fuel in 1982. The Mutsu shortly after its launch experienced many problems and was decommissioned. The record of what Iranian officials in the past have said about Iran’s aspirations to launch nuclear-powered submarines should prompt the IAEA and the JCPOA parties to tell Iran that, should Iran move forward with plans to develop nuclear-powered civilian craft, they will be watching for any signs that such plans may be a cover for military nuclear activities.

Independent of the question of what the JCPOA proscribes, the record of the IAEA’s involvement with nuclear propulsion issues strongly suggests that paragraph 14 of INFCIRC/153 (Corr.) does not provide any state a route to simply withdraw nuclear material from safeguards. After nearly half a century, no IAEA member state has ever successfully invoked paragraph 14. Canada abandoned preparations for such step during the late 1980s. Brazil, which plans to build and operate a land-based demonstration submarine reactor before embarking on the use of nuclear fuel at sea, has not told the IAEA it intends to withdraw any nuclear material from safeguards for this program. All the nuclear fuel used in the German and Japanese merchant vessels was under IAEA safeguards 24/7.

Board of Governors Must Approve

Were Iran or any other state to invoke paragraph 14 to withdraw nuclear material from safeguards, that move would require approval of the IAEA Board of Governors.

On July 3, 1978, in the document GOV/INF/347, the government of Australia told IAEA Director General Sigvard Eklund it wanted to “seek clarification” concerning the procedures that would be necessary in the case that a member state invoked INFCIRC/153 (Corr.) paragraph 14. Australia told Eklund that it believed that, in such a case, the matter must be approved by the Board of Governors.

Eklund assured Australia that its understanding was “correct.”

It is the Secretariat’s view that any exercise by a State of the discretion refered to in paragraph 14 which comes to the knowledge of the Secretariat, and any notification received by the Secretariat under that paragraph as well as any arrangement made pursuant to that paragraph, must be reported to the Board of Governors, and it would be for the Board of Governors in each case to take the appropriate action.

For the IAEA Director General to ring up the Board of Governors would be in the spirit of how the IAEA and its member states originally interpreted INFCIRC/153 (Corr.). The Safeguards Committee at the IAEA including member states that formulated INFCIRC/153 (Corr.) concluded at the time concerning paragraph 14 that “in no sense was it intended or could be construed as an opportunity to allow states to escape verification… [Member states and the IAEA Secretariat] desire to avoid a situation where withdrawals of nuclear material from safeguards for non-proscribed military use could become a loophole allowing use for nuclear explosive purposes, beyond the reach of [IAEA] verification activities.”

This article was originally published in Arms Control Wonk.