The nuclear deal forged with Iran traded Tehran’s nuclear restraint and transparency for nuclear sanctions relief provided by the other six parties to the agreement. If everything goes according to plan, Iran in 2025 will be free from most obligations that exceed routine International Atomic Energy Agency (IAEA) safeguards. Because the Joint Comprehensive Plan of Action (JCPOA) gives Iran a prospect to reestablish its nuclear program on an equal basis with the rest of the world, the chances are reasonable that Tehran will comply with it. At the end of the process, an Iran no longer sanctioned for nuclear transgressions may elect to resume or accelerate sensitive and provocative nuclear activities—or not.

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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Of course it is also possible that Iran may not wait, and instead may test the resolve of the other JCPOA parties and the IAEA to rigorously implement the agreement. Iran might do this if it seeks to confront Western powers, weaken the IAEA and nonproliferation, carve out de facto exceptions to limits on its nuclear activities established by the agreement, or hide nuclear activities. Iran might do things that would exert pressure on the IAEA and the other JCPOA parties to relax rules and tolerate ambiguities or apparently insignificant violations. If successful and persistent, over time Tehran might gain considerable freedom of action and even immunity from making disclosures. As time goes by, Iran might wager that the other parties and the IAEA have become invested in the success of the agreement to the extent that they will tolerate Iranian nonperformance because they fear that challenging Iran may cause the agreement to fail.

To deter Iran from conducting destabilizing nuclear activities, it is important, especially during the IAEA’s initial implementation of the deal, that the parties perform to the letter and do not provide Iran opportunities to avoid accountability. Five months into implementation, the IAEA has reported that Iran is in compliance with its obligations. But there are some potential problems on the horizon.

Limited IAEA Resources

Iran is now the most expensive country in the world to inspect save Japan, and the IAEA needs personnel and money to do its work there. The IAEA estimates that this will cost about $10.4 million (9.2 million euros) annually during the JCPOA’s ten-year timetable. Member states donated this amount for 2016, all of it beyond their regular contributions to the IAEA’s budget. For each year between 2017 and 2019, the agency plans to allocate nearly $5.9 million (5.2 million euros) from its regular budget to cover the cost of implementing Iran’s Additional Protocol, an enhanced verification package that is part of the nuclear agreement, and to pay for inspections in Iran. The remaining approximately $4.5 million (4 million euros), needed to pay for “transparency measures” spelled out in the JCPOA, will be paid for by states’ extra-budgetary contributions.

The IAEA’s aim to slash by half the sought-for extra-budgetary contributions beginning in 2017 has two rationales—to ensure that the agency’s verification in Iran will not be subject to the whim of individual states that fund it, and to address the unwillingness of many or even most IAEA member states to contribute. It is widely assumed that, as a last resort, the United States will pay the bill. Conspicuous U.S funding will underscore that many IAEA member states view nonproliferation as not their concern but instead the interest of a small number of rich powers endowed with nuclear weapons and technology.

The IAEA is confident that it is accurately predicting what a decade of work in Iran will cost. Some member states caution that more resources will be needed, for example, to finance sampling and fieldwork related to Iran’s Additional Protocol, for which Tehran has not yet filed an initial declaration ahead of a July 14 deadline.

About 90 percent of the staffing is complete for an Iran task force the IAEA has set up to be outfitted with 70 professionals, including 45 inspectors. This has put the IAEA’s ongoing safeguards activities elsewhere in the world under pressure, and right now the agency is about twenty inspectors short globally. Inspectors log eighty days per year in the field. In Iran, the average is one hundred ten days per year. The IAEA plans to train more people to fill the gaps, including to replace retirees. For now, qualified inspectors employed elsewhere have been called onto the Iran account.

If personnel shortages become chronic, the quality of safeguards judgments will be degraded. Some member-state officials suggest that this may be happening already. If so, they warn, deficits in judgment, including about whether a state is complying with its obligations, won’t be discovered or identified by the IAEA’s routine reporting to member states concerning the effectiveness of safeguards.

Reporting in the Interest of Accountability

In its first report to its board since implementation of the JCPOA began, the IAEA in February 2016 presented its findings in a way that some member states considered nontransparent.

Compared to prior IAEA reports, this document contained few data points about Iran’s ongoing uranium enrichment, leaving ambiguous whether Tehran had in fact consistently adhered to limits in the agreement. The report also indicated that Iran had exceeded a ceiling on holdings of heavy water and was out of compliance for a time until it moved the excess quantity to a location outside the country; it was then separately confirmed that the United States had agreed to purchase Iran’s excess heavy water.

Vagaries in IAEA reporting under the JCPOA may be a consequence of language in the agreement; the agency’s usual term of reference for materials subject to safeguards is “inventory,” but the JCPOA makes use of the term “stockpile.” The IAEA says it is certain about what it is including in any Iranian “stockpile.” But it has told member states that, following the lifting of sanctions called for in the UN Security Council and IAEA board resolutions on January 16, the IAEA must not disclose most data it obtains from verification work in Iran. According to JCPOA negotiators, without that confidentiality provision Iran would not have agreed to the deal.

Governments negotiating agreements often seek to gain valuable flexibility to shelter their activities from outsiders. While some officials in JCPOA governments have expressed regret that the IAEA under the nuclear deal is reporting less information, ambiguity may afford parties more leeway to handle delicate or contentious compliance issues. This possibility arises insofar as the agreement’s compliance provisions do not differentiate between dire violations and less serious ones. In any case, JCPOA parties will get the information they need about Iran’s ongoing nuclear activities through technical briefings, back channels, and other sources.

While less reporting may provide the parties flexibility to smooth over implementation difficulties, or in the worst case brush off noncompliance, the most important issue concerning incidents like Iran’s heavy-water overproduction is that, if frequent or routine, such challenges may create pressure to shift the burden of compliance from Iran to the other parties. It cannot be the responsibility of these states to absorb or manage Iran’s excess production of sanctioned items. The most straightforward solution is for Iran not to produce them.

Lack of Clarity About the Verification Process

The JCPOA obligates Iran in Section T of Annex I “not [to] engage” in specific “activities which could contribute to the design and development of a nuclear explosive device.” But the agreement does not assign the IAEA (or any other entity) any responsibility for verifying or providing confidence that Iran is not pursuing “weaponization.”

Follow-up on Iran’s commitment not to weaponize its nuclear program is appropriate. Required actions—by the powers, by Iran, by the IAEA—should be spelled out by the JCPOA’s parties. This is especially so since the IAEA’s previous investigation of persistent allegations that Iran in the past had worked on the development of a nuclear explosive device and nuclear weapons were “closed” by the board—implying that they would not be ultimately resolved—without important questions having been answered to the satisfaction of verification personnel. Some of these allegedly weapons-related activities are specifically prohibited in perpetuity in Section T of the JCPOA.

The IAEA has requested clarification about its responsibilities under Section T from the Joint Commission, a body established by the JCPOA to handle questions and disputes concerning implementation of the agreement. The Joint Commission has met a few times since implementation began, and it is currently (as was foreseen) preoccupied with sanctions-lifting matters. The commission has not told the IAEA how and when it will address its weaponization questions.

Whether the IAEA should pursue weaponization allegations in the course of implementing safeguards agreements and states’ Additional Protocols has been contentious in some quarters. In clarifying the IAEA’s role on this issue, the Joint Commission should keep in mind that there are provisions of the JCPOA—including concerning weaponization—that are unique and exceed the terms of IAEA safeguards agreements and Additional Protocols.

Back Channels Versus Transparency

Since 2003, when the IAEA and member states began looking for a solution to the Iran nuclear crisis, they have insisted that a two-track approach—diplomacy on one independent track, IAEA verification on a second independent track—is essential to ensure the IAEA’s independence and credibility and to give negotiators freedom to create a political solution. Behind the scenes, back channels operated to allow the IAEA, Iran, and the powers to communicate information across the tracks to forge consensus when desired.

In a similar fashion, behind-the-scenes interactions have facilitated initial implementation. So far, including prior to the IAEA’s first report, a few high-level U.S. and Iranian officials have at times stepped in to resolve a number of technical compliance issues such as Iran’s exceeding of limits set by the agreement.

Because the JCPOA was concluded to demonstrate to the world that Iran’s nuclear program is transparent and fully peaceful, back channels should be used sparingly. If they become a means to mask problems in implementation from the IAEA board and civil society, discretion and confidentiality may instead encourage Iran not to fully comply with its commitments. As time progresses, the need for transparency will become even greater.

The IAEA in the future must verify Iran’s forthcoming Additional Protocol declaration, and to do that, the agency will likely have to make greater use of the JCPOA’s provisions to access sensitive locations and persons in Iran. If the division of labor between Iran, the other parties to the agreement, and the IAEA is not clear, and if the IAEA and other parties withhold information to smooth over verification difficulties or nonperformance, Iran may exploit ambiguities and loopholes to avoid having to make disclosures. Should the other parties to the agreement and the IAEA permit this to happen, the credibility of the JCPOA would be damaged. In that case, the world would have less confidence that the nuclear program of an empowered Iran would not harbor nonpeaceful ambitions, and renewed conflict between Iran and its adversaries might be only a matter of time.