When the six powers and Iran announced in Geneva on November 24, 2013 that they had agreed to an “initial step” toward comprehensive resolution of the nuclear crisis, some critics glumly predicted that a final deal would never materialize. It was more likely, they asserted, that Western states keen to curb Iran’s nuclear program would face ever-greater pressure to lift sanctions, fortifying Iran’s resolve to resist long-term limits on sensitive nuclear activities. Ultimately, according to this dusky scenario, Iran would outlast its adversaries, sanctions would wither, and Iran would emerge with a rejuvenated economy and with its nuclear program back on track.

In the absence of clarity about how the Iran deal will be implemented, those of us thinking hard about the verification component have also been a little concerned. But beginning on November 24, our concerns were different–not about negotiations for the “final step” grinding to a halt, but instead about the prospect that Iran and the powers might achieve results too quickly.

Mark Hibbs
Hibbs is a Germany-based nonresident senior fellow in Carnegie’s Nuclear Policy Program. His areas of expertise are nuclear verification and safeguards, multilateral nuclear trade policy, international nuclear cooperation, and nonproliferation arrangements.
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The Joint Plan of Action (JPOA), concluded in Geneva set the ambitious goal that the “final step” will be in place “no more than one year” after the “initial step” enters into force. Pessimists to the contrary, a final agreement could emerge on schedule if negotiators–especially in Iran and in the United States–respond to their domestic critics by cracking whips to get fast results.

If the JPOA’s parties want to close the deal on time, they have a lot of work to do, including figuring out how they will interact with the International Atomic Energy Agency (IAEA) in “resolving outstanding issues.”

How that is supposed to happen isn’t explained by the JPOA because it was concluded quickly, after the U.S. accelerated the pace of negotiations. Led by the U.S., negotiators abandoned a four-step plan for a two-step plan. That permitted a dramatic breakthrough in Geneva, but it also meant that the route to the “final step” would have to be improvised.

The JPOA says that the IAEA is “responsible for the verification of nuclear-related measures.” Its role in more intensive monitoring in Iran may be straightforward, but what is less clear is how the IAEA will work with the parties to resolve “past and present issues of concern.” These include the allegations–not directly mentioned by the JPOA–that the IAEA has brought forth concerning so-called “possible military dimensions” (PMDs), including the involvement of military organizations and officials in activities related to the development of nuclear weapons. The JPOA calls for the creation of a Joint Commission, representing the powers and Iran, to “monitor the implementation of the near-term measures and address issues that may arise [and] work with the IAEA to facilitate resolution of past and present issues of concern.”

The Role of the IAEA Secretariat

The powers and Iran should strike a “final step” agreement in parallel with a judgment by the IAEA expressing, at the very least, confidence that Iran is not carrying out activities allowing it to turn its nuclear materials, especially its inventory of enriched uranium, into nuclear weapons. If that doesn’t happen, the comprehensive Iran deal would not be politically sustainable, Iran might retain undeclared and undetected nuclear capabilities, and the IAEA’s credibility would be damaged. Beyond that requirement remains the need to comprehend Iran’s past activities in this area.

But will it be up to the IAEA Secretariat to decide whether “outstanding issues” are laid to rest so the “final step” can be concluded? How the powers have responded to the PMD challenge so far does not tell us how the JPOA will proceed in this matter.

The IAEA has accumulated PMD-related evidence since about 2005. In November 2011, the IAEA Secretariat provided a detailed accounting of PMD allegations in a report to its Board of Governors. The report got a mixed reception in the boardroom. Western states applauded Director General Yukiya Amano for having aired the allegations. Russia strongly objected that doing so would make resolving them more difficult. Amano’s report added to the political pressure on Iran. But Russia’s assessment may also prove to be correct.

Prior to November 2011, Western states on the board had urged Amano to reveal its PMD evidence to the governors. The U.S., in a statement to the Board in March 2011, charged Iran with “serious non-compliance with its obligations” on six grounds, one being that “Iran is not cooperating with the Agency regarding the outstanding issues which give rise to concern about possible military dimensions to Iran’s nuclear program.”

The U.S. said that the IAEA has the “legal safeguards authority to request cooperation from Iran to determine the correctness and completeness of Iran’s safeguards declarations” and also that it was “Iran’s obligation to comply with those requests.” Further, the U.S. said, “We recognize the Director General cannot draw final verification conclusions in specific cases if the state in question will not allow the necessary access.”

But while repeatedly urging Iran to answer the IAEA’s questions about PMD, the U.S. did not categorically state that actions by the IAEA Secretariat were essential for resolution of the PMD issue. And since the conclusion of the JPOA, some of the parties to the deal have suggested that the IAEA’s role in implementing it should not be framed in terms of independent “authority” to resolve the PMD allegations previously leveled at Iran.

The JPOA’s lack of clarity about how PMD allegations will be resolved may ultimately reflect a lack of consensus about the IAEA’s mandate to pursue allegations of weaponization activities in non-nuclear-weapons states. This matter was first raised after the 1991 Gulf War exposed Iraq’s secret nuclear weapons program.

Until the Gulf War, the IAEA’s safeguards system was mostly based on material accountancy at declared locations. Failure of the IAEA to detect most aspects of Iraq’s weapons effort forced a re-evaluation of the IAEA’s safeguards philosophy, culminating in the adoption of the Additional Protocol (AP). The AP gives the IAEA more access, but there is no expert consensus that it expands the IAEA’s reach into weaponization activities in a state. Some experts have also objected to IAEA involvement in nuclear weapons-related investigations on nonproliferation grounds, arguing that in the case of NPT parties, this should be left to the five nuclear-weapons states–all of which are parties to the JPOA.

In 2005, former IAEA Director-General Mohamed ElBaradei appeared to doubt whether the IAEA was mandated to investigate weaponization. He told Arms Control Today that “we don’t have an all-encompassing mandate to look for every computer study on weaponization. Our mandate is to make sure that all nuclear materials in a country are declared to us.” The “logic behind” the IAEA’s focus on nuclear materials, he said, was that “if a country is denied the nuclear material, they cannot have a weapon.”

Some experts have adopted a very literal view on safeguards implementation, essentially arguing that the IAEA has only the right to verify the correctness of material declarations. They challenge the notion that the IAEA has an inherent right to judge the completeness of a country’s declaration as well. Under such a narrow interpretation, investigation into weaponization work falls outside the IAEA’s mandate. The IAEA has not, however, limited its judgments to nuclear materials accountancy in its reports on Iran to the Board of Governors. In an aside that has appeared in its Iran reports since May 2011, the Secretariat observes:

The Board of Governors has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness) (see, for example, GOV/OR.864, para. 49 and GOV/OR.865, paras 53–54).

In support, others argue that because the development of nuclear weapons must at some stage involve nuclear material, the IAEA has a clear mandate to investigate where weaponization activities involve such material. After all, in such cases the material used would be undeclared and the state’s material declaration accordingly “incorrect.” Moreover, they would say that weaponization activities are a clear indication of intent to use material for explosives purposes, hence raising questions as to whether all nuclear material has, in fact, been declared by the state.

The Role of the Board of Governors

The most straightforward way to resolve PMD issues would be, prima facie, for Iran to answer all the allegations raised by the IAEA, and to admit any specific cases of past or current activities related to the development of nuclear explosives. However, because Iran has steadfastly denied that it has even considered developing nuclear weapons, and has routinely denounced the IAEA’s allegations as “baseless” and “fabricated,” it is highly unlikely that Iran would concede to the IAEA that it had lied to the agency that it has crossed the line into nuclear weapons activities.

Instead, Iran might agree to inform the powers of any PMD-related activities it has carried out. One former IAEA official said that Iran might tell the powers something like this:

Look, we know that your intelligence agencies are all over our program, you know what we did, when, and where. To move forward, the most important thing is that we agree not to do these things in the future. Iran won’t cooperate if we have to admit past activities. Iran’s pride and status in the region and the world are supremely important to us. If we give the information to the IAEA, it will be made public, like most of the other information the IAEA has learned about us since 2003. Instead, we can tell you what you need to know in the Joint Commission, and we can brief the IAEA in very general terms about what we disclose to you.

In practice, the IAEA’s role in pursuing PMD allegations under the JPOA may be limited by understandings between Iran, the powers negotiating with Iran, and the IAEA Board of Governors. One resolution scenario might be this:

  • After Iran provides information on PMD to the powers, they would consult with the IAEA Secretariat and urge it to concur that the data and explanations provided by Iran are adequate;
  • The powers then obtain support from their allies in the Board of Governors, and Non-Aligned states on the Board join Iran in understanding that PMD issues are resolved; and finally
  • The Board of Governors passes a resolution recommending the U.N. Security Council to support it in urging the IAEA Secretariat to resume routine safeguards in Iran.

Resolving safeguards issues in Iran will require the judgments of all the organs of the IAEA. Ultimately, however, the authority to carry out the functions of the Agency rests completely with member states serving on the Board of Governors (this is explicit in Article VI.F of the Statute of the IAEA). The Director General, according to Article VII.B of the Statute, is the Chief Administrative Officer of the organization, and is required to perform his duties in accordance with regulations adopted by the Board.

In theory, therefore, the Board could simply instruct the Director General to resume “routine” safeguards practice in Iran. This step, however, would not be politically wise, as it could damage the credibility and reflect badly on the impartiality of the IAEA Secretariat. To the greatest extent possible, Board members and the Secretariat should proceed instead on the basis of frequent consultations.

After consultations, the Director General might report to the Board on behalf of the Secretariat that PMD allegations have been laid to rest. There is a risk that the Secretariat and the Board will not agree, but the more consultations take place, the less that risk will be. At the very least, the Director General may be able to report that the IAEA Secretariat does not have significant concerns about ongoing PMD activities in Iran.

The challenge facing the IAEA in consulting with powerful Board members to make judgments about a member state’s nuclear program that are necessary for permitting a political agreement to enter into force, and which could greatly affect world peace, is without precedent. Ultimately the IAEA’s Board will have the upper hand. But in the past, the Secretariat and member states have consulted and concurred in specific cases not to be deterred from moving toward routine application of safeguards by safeguards-technical uncertainties.

In one historical case, the tails of a specific enrichment plant in one state could not be adequately explained. As a consequence, the quantities of enriched uranium produced by the plant could not be satisfactorily assessed. These discrepancies remain today. In another case, a state that had not previously declared past production of significant quantities of plutonium, also did not provide key data about past weaponization-related activities.

In both cases, the IAEA Secretariat and member states decided to accept the uncertainties and move on. These were clearly political decisions, but they were informed by a holistic verification judgment, which included, significantly, these states’ record of cooperation with the IAEA throughout its investigations.

While these examples illustrate how the Secretariat and member states in the past took decisions on the basis of consultation, the challenge posed by Iran’s nuclear capabilities has no precedent in the IAEA’s history, and will require a unique approach.

Until now, the IAEA has not been satisfied with Iran’s cooperation in addressing the Agency’s concerns about past activities. That situation can change, however, through Iran’s implementation of the JPOA and a November 11 Iran-IAEA Framework for Cooperation. In the coming months, Iran could become transparent enough to allow the Agency to express that, at a very minimum, it has no significant PMD concerns about ongoing activities.

What about the IAEA’s PMD concerns about past activities? Were the IAEA to differentiate between “present” activities it was confident were peaceful and accounted for, and allegations of “past” activities that remained unresolved, the IAEA and its governors would have to decide–as in the above historical cases referred to–whether remedial and corrective actions by Iran are necessary. That approach would leave open the possibility that ultimate resolution of “past issues” in Iran would be postponed until after the “final step” is concluded. That might imply further that some sanctions would remain in place until it was finally agreed by the Board of Governors that the matter could be laid to rest. In any case, the sooner the Joint Commission and the IAEA get to work on this challenge, the better.

The Role of the Joint Commission 

The JPOA says that a “Joint Commission” staffed by the powers and Iran will be set up and “will work with the IAEA to facilitate resolution of past and present issues of concern.” According to a summary of an implementation document for the JPOA, made available by the U.S. in a public statement on Jan. 16:

The Joint Commission will be composed of experts of the EU, P5+1 and Iran, and it will convene at least monthly to consider the implementation of the Joint Plan of Action and any issues that may arise.  Any decisions that are required on the basis of these discussions will be referred to the Political Directors of the EU, the P5+1, and Iran.

The clarification that the powers and Iran will confer on a monthly basis helps dispel concern that the IAEA Secretariat might come under eleventh-hour pressure to accede to the will of the parties to declare certain sensitive issues resolved. There must and will be frequent consultation between the IAEA Secretariat and the parties to the JPOA.

The transcript of a U.S. government press briefing held Jan. 12 said that “issues like the military aspects of the program… will have to be dealt with in the comprehensive resolution,” without providing any information on the division of labor between the IAEA, the powers, and Iran. All this has led to some unease that past issues will be “grandfathered” before being adequately resolved. While full disclosure by Iran to the powers, followed by an informal briefing by the powers and Iran to the IAEA, may work practically, some fear that such a solution may set a bad precedent.

The Joint Commission has its forerunners. The concept of a consultative committee or a joint commission to facilitate the effective implementation of arms control commitments has been used in the past. Examples include the committee set up under the 1972 ABM Treaty and the 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD). A similar mechanism is also in use in the 1985 South Pacific Nuclear Free Zone Treaty (in particular Articles 10 and 11 as well as Annexes 3 and 4). The South Pacific Nuclear Free Zone Treaty explicitly allows for a “complaints procedure” that does not involve the IAEA.

The Joint Commission might be involved in numerous tasks, including:

  • Considering questions regarding verification of compliance with obligations left ambiguous in the JPOA;
  • Providing, on a voluntary basis, information any party considers necessary to assure confidence in compliance with obligations assumed;
  • Considering changes in the strategic situation that may have bearing on the provisions of the JPOA;
  • Considering proposals for the strengthening of the JPOA;
  • Considering proposals for further measures aimed at restoring long-term confidence in Iran’s intentions; and
  • Considering whether long-term confidence in Iran’s intentions has been restored.

The Joint Commission would appear to be a critical tool for resolving PMD and other “outstanding issues” in the coming months. Its use should be informed by the need to make technically and politically sound judgments on the basis of close consultations that demonstrate Iran’s will to back away from nuclear weapons capabilities while strengthening the credibility of the IAEA.

This article was originally published on Arms Control Wonk.