Safeguards in a Final Iran Deal

Since the April framework agreement between Iran and the P5+1, I’ve been mostly quiet about the ongoing negotiations.  Mostly because I’ve learned not to read too much into the daily back and forth of posturing statements made by the different interested parties.  But also because I’ve really been trying to make progress on my new book on Iran’s nuclear program and international law.  Fortunately, the book is proceeding well now that I can focus on it this summer. I’m hoping to have it done by September, and that would mean it should hopefully be in print early in the new year – academic presses move slowly.

Anyway, one issue that I have been thinking about is the issue of how the final deal, if it happens, will address ongoing safeguards by the IAEA in Iran.  There’s been alot of writing about this, as well of course as posturing by the various sides, with alot of the questions coming down to whether and to what extent the IAEA is going to be able to inspect military facilities inside Iran under the new safeguards arrangement.  Mark Fitzpatrick wrote a thoughtful piece on this topic just yesterday.

I want to stress that we’re still all speculating here, and the parties to the deal could agree on anything, or nothing for that matter. But I just can’t help feeling skeptical when people talk about the new deal containing an “Additional Protocol plus” ongoing arrangement, under which Iran would agree to safeguards of a scope expanded beyond what is in the terms of the INFCIRC/540 Additional Protocol agreement that they have already signed. I have little doubt that Iran would ratify and bring into force its AP under the new agreement. But the idea that they would agree to significantly more than that on an ongoing basis, I just find both unlikely and practically problematic.

Again, Fitzpatrick’s piece on the subject is thoughtful, and it certainly echoes alot of the talking points I’ve heard from the P5+l side about the kind of access that they want the IAEA to have under the final deal.  But it still I think blends together some issues that really should be kept separate, and I just suspect will likely be kept separate in any final deal.  I’m talking about the issues of undeclared nuclear materials on the one hand, and the PMD concerns oft the IAEA on the other.  The AP is indeed purposed in providing the IAEA with additional legal authority to investigate suspicions of the existence of undeclared nuclear material in the safeguarded state.  It provides for access of IAEA inspectors to a much wider scope of sites than is provided for under the INFCIRC/153.  However, it does not, as is commonly misrepresented by talking heads, give the IAEA access to anywhere it wants inside the safeguarded state.  Regular IAEA inspections are still only done at locations that are declared by the safeguarded state, with some additional yet limited discretion in the IAEA to request and be allowed access to other sites.  And the declared locations all by definition have something to do with nuclear materials or related technologies.  They will not include military facilities where no fissile material or related equipment is located.

So yes, without doubt Iran would agree to ratify and implement the AP, and this would help the IAEA to have more confidence that there are no undeclared nuclear materials in Iran. But since most military facilities in Iran, and most sites within them, are likely not to be declared by Iran to have anything to do with nuclear material and related technologies, the AP will not provide the IAEA with regular authority to inspect these undeclared military facilities.  Again, the IAEA can request access to undeclared locations under Article 2(b) of the AP, but Article 5 of the AP makes it clear that the state may limit or deny this access if it is unable to provide it.

The Additional Protocol also has absolutely nothing to do with helping the IAEA address its concerns about the possibility that nuclear weaponization work may have taken place inside Iran up until 2003.  It would not provide the IAEA with authority to inspect declared or undeclared sites for evidence of weaponization research and development activities not involving nuclear material.

This, then, is where the hypothesized “plus” comes in – in the form of some as yet unspecified agreement under which the IAEA would supposedly have authority beyond what the AP provides, to inspect sites that are not declared under the Additional Protocol, but which the IAEA wants to visit to follow up on suspicions about either undeclared nuclear material or possible past weaponization work.

Again, I’m not saying this is legally impossible.  Pretty much anything is legally possible if the parties agree to it. I’m just saying that this idea of an “Additional Protocol plus” safeguards regime doesn’t have any precedent that I’m aware of – outside of Security Council 687 in Iraq after the first Gulf War, but I’m pretty sure nothing like that is in the cards – and without a template of specific rights and obligations like that provided for in one of the standard safeguards agreements, it seems like it would be very difficult to make it work on an ongoing basis.

Fitzpatrick in his piece mentions – and I’ve heard this elsewhere – the establishment of a “joint commission” which would arbitrate any differences of opinion between Iran and the IAEA over places the IAEA can go.  But what would be the rules on access that the “commission” would be applying? Would they just make them up as they go? Do we really think that the final deal between Iran and the P5+1 will include what amounts to an entirely new bespoke safeguards agreement that adopts these rules between the parties on an ongoing basis? Maybe. It just seems really unlikely to me.

The other possibility would be to put the “plus” access provisions in a new Security Council resolution, that Iran will have agreed to as part of the final deal.  That could possibly work too, but again I don’t see the Security Council adopting the kind of detailed rules about access, and limits of access, that would make for a workable ongoing system, and that would be agreeable to both the IAEA and Iran.

I said I don’t like predictions, and I’ve tried to stay away from them.  And I have tried to hedge my bets here in saying that the parties can in theory agree to anything.  But I’ll tempt fate and make a prediction here.  If there is a final Iran nuclear deal, I would predict that the safeguards provisions in the deal will require Iran to ratify and adopt the Additional Protocol, and that this will be the essential legal basis of the ongoing safeguards regime in Iran.  I would not be surprised if, as part of the final deal, there was a specific agreement by the parties that the IAEA will have a limited number of managed access visits to a specified list of sites outside of the declared Additional Protocol list that it most wants to visit, probably including the Parchin military facility again.  But I suspect that this will be a closed list – meaning that once the specified visits are completed, the ongoing regime will be basically back to the provisions of the AP.  Iran may agree to further steps to clear up the IAEA’s concerns about PMD, in the form of more information provision, etc., and this will play out over the succeeding months.  But I think that the prevailing sentiment among the P5+1 will be to focus on the future and not on the past, and so to not be too demanding about ongoing access to military facilities or other places to try to assess what may have happened there more than a decade ago.

Having the limited number of managed access visits to undeclared sites, including military sites, will allow the West and the IAEA to declare a victory, and will let them save face.  But as an ongoing safeguards system, I suspect that the Additional Protocol, supplementing Iran’s existing CSA, will be the essential legal framework, and not an “Additional Protocol plus” arrangement.

NOTE: I’ve updated/edited this post in light of some collegial discussions I’ve had with people via email.