by Mark Fitzpatrick
It was entirely proper for United States ambassador to the United Nations Nikki Haley to visit the Vienna headquarters of the International Atomic Energy Agency (IAEA) on 23 August to encourage robust verification of the 2015 Iran nuclear deal. IAEA officials will have told her they are not restricted from visiting whatever they need to see in Iran. Never mind that this is nothing the US did not already know from its diplomats in Vienna, who meet daily with IAEA officials. Those diplomats do not currently include an ambassador to the IAEA, and high-level meetings are useful to drive home important messages.
Haley did not accuse the agency of any laxness. On the contrary, she expressed confidence in its professionalism and seriousness. But she pressed Director General Yukiya Amano to seek physical access to military sites like Parchin, where nuclear activity of a possible military dimension took place in the past, to ensure that no such work is being conducted today.
Among the many non-proliferation benefits of the nuclear deal was its unprecedented prohibition, in Section T, of various types of activities that would be useful for nuclear weapons development, and its control of associated equipment. These controls include use of explosive diagnostic systems including streak cameras, which were allegedly used at Parchin a decade or more ago in military-related nuclear activity.
The deal, known as the Joint Comprehensive Plan of Action (JCPOA), left unstated how Section T was to be verified, because the parties could not agree. Iran resisted measures that would exceed the norm for other states, and it found support from Russia. Moscow objects even to the IAEA’s statements in its quarterly reports that it continues to monitor and verify Section T commitments.
The agency’s leadership likely explained to Haley the ways they use non-intrusive verification tools for Section T monitoring. These include, inter-alia, open-source publications and online content, overhead commercial imagery and export/import data. The agency also uses intelligence from member states for tips on any suspicious activity. The US is rarely shy about providing such tip-offs about Iran.
Deal Allows “Where Needed, When Needed” Inspections
When suspicions or reporting anomalies arise, the IAEA’s procedure is to ask Iran for clarification. If the answers are not persuasive, the agency has the right to ask for access to undeclared sites that are not subject to regular safeguards inspections, including military sites. If Iran balks at such a request, the issue goes for adjudication to the eight member Joint Commission, where the US and its European allies comprise a majority. The procedures for dispute resolution are spelled out in the JCPOA, which improves upon the normal process under the IAEA Additional Protocol by setting deadlines. To date, Iran has not denied any access requests so there have been no disputes to be resolved.
In other words, the JCPOA process for granting the IAEA access ‘where needed, when needed’ (my phrase) is working. Some critics of the deal wanted inspectors instead to have the kind of ‘anywhere, anytime,’ access that Iraq was forced to allow after its military defeat in the 1991 war. Good luck with renegotiating that, or the ‘zero enrichment’ demand that proved unsuccessful during the George W. Bush administration. In continuing to pose these demands, some critics are honest enough to admit that they similarly envision policing Iran at gunpoint.
Adversarial Atmosphere Puts Deal at Risk
Responsible policy makers and shapers prefer a peaceful solution and accept the mutual compromises this entails. The best diplomatic outcome would see the IAEA eventually being able to conclude under the Additional Protocol that all nuclear activity in Iran is entirely for peaceful purposes. To reach this so-called ‘broader conclusion’, the IAEA will need to put firmly to rest all lingering concerns about Parchin and any other military sites where nuclear activity is suspected of having occurred. Military site visits will undoubtedly be required.
IAEA visits to military facilities in Iran once transpired largely without fuss, including two visits to Parchin in 2005. A former senior official who was involved told me there were over 20 such visits to military sites. There needs to be a return to this precedent, but it will not happen if visit requests are seen as a ‘gotcha’ exercise or fishing expedition.
Such visits will be far more possible in a spirit of cooperation removed from the current adversarial atmosphere surrounding the JCPOA. Advocates of confrontational demands on Tehran know little about the Iranian psyche, or about human nature in general. So it was that shortly after the Trump Administration in late July was reported to be pushing for military site inspections in conjunction with an intent to decertify Iranian JCPOA compliance, two senior Iranian officials insisted that no such access would be allowed. Such statements are certainly unhelpful, but there is a context to them.
If Trump goes ahead with his apparent intention not to certify Iranian compliance when the next 90-day certification deadline comes up in mid October, he may point to such statements as evidence of violating the spirit of the deal. There is no legal meaning to ‘the spirit of the deal’, however, and such statements do not contradict any JCPOA clause. As I have previously pointed out (here and here), Iran is not in violation of any provision. Those who claim otherwise are cherry-picking data, drawing wild inferences, confusing the JCPOA with Security Council Resolution 2231 or inventing their own terminology and standards.
Non-Compliance Finding May Isolate US
Assuming that Iran would not be so foolish as to depart from this adherence, Trump will have no grounds for a finding of non-compliance. The only legitimate reason he would have for not certifying would be on the subjective grounds of sanctions suspension not being ‘vital to the national security interests of the United States’, as allowed for in clause (6)(A)(iv)(II) of the certification law (Public Law 114-17). In this case, it should be clear that he would not be finding Iran to be in non-compliance; just that national interests give him an all-purpose excuse not to affirm compliance. The ‘national security interests’ might relate to Iran’s missile testing, its incarceration of US citizens, its military aid to Houthi rebels in Yemen or anything else that falls outside the provisions of the JCPOA.
Unfortunately, whatever the reason, not certifying compliance would trigger fast-tracked consideration of whatever pre-JCPOA sanctions the Congress wished to re-impose. If the ‘national security interest’ clause is the only one invoked, however, the Congress would have no legitimate reason for re-imposing restrictions. Such sanctions snapback would itself be a clear violation of the JCPOA, with the US exposed as the unilateral guilty party, making it unlikely other countries would join in. If Trump prompts Congressional action in this way, let us hope it acts wisely.
Mark Fitzpatrick is the executive director of the International Institute for Strategic Studies-Americas. This is reprinted, with permission, from the IISS blog. Photo: Nikki Haley (Wikimedia Commons).