The JCPOA and the Broader Conclusion
Posted: December 8, 2015 Filed under: Nuclear 4 CommentsI wanted to note a new piece up at Arms Control Wonk by Andreas Persbo. Andreas is an old colleague and we have collegially crossed swords many times over the years.
I wanted in that same spirit to make a few observations about his most recent piece, in which he also cites a piece by Mark Hibbs on the same subject.
What I wanted to make sure is clear to everyone is that the JCPOA at no point commits Iran to strive towards or to achieve the IAEA’s determination of a “broader conclusion that all nuclear material in Iran remain in peaceful activities.” Nor does the JCPOA at any point make the granting of such a broader conclusion by the IAEA a condition for the fulfillment of any commitment either by Iran or by any other party to the JCPOA. This includes the lifting of sanctions by the Security Council and by the U.S. and E.U.
The broader conclusion is sometimes mentioned in the JCPOA schedule as an alternative criterion, for example here:
The EU will terminate all provisions of the EU Regulation implementing all EU proliferation-related sanctions, including related designations, 8 years after Adoption Day or when the IAEA has reached the Broader Conclusion that all nuclear material in Iran remains in peaceful activities, whichever is earlier.
But achieving this standard of a broader conclusion being granted by the IAEA, is not incumbent upon Iran under the JCPOA, either now or at any time in the future. Nor indeed is it legally incumbent upon any state, including Iran, and including those states who are party to both an INFCIRC/153 CSA and an INFCIRC/540 Additional Protocol.
According to the 2014 IAEA Safeguards Implementation Report, there are currently 53 states that are party to both a CSA and an AP, and which have not received a broader conclusion from the IAEA (see pg. 23 of the report). Not having received a broader conclusion is not itself an indication of noncompliance with a safeguarded state’s safeguards obligations.
The only legal obligations which safeguarded states have are expressed in the safeguards treaties to which they are parties. And the central legal obligation of any safeguarded state, along with the exclusive purpose for the application of IAEA safeguards, is expressed in Articles I & II of the CSA as follows:
Article I
The Government of ___ undertakes, pursuant to paragraph 1 of Article III of the Treaty, to accept safeguards, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.
Article II
The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of ___, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.
IAEA safeguards are applied “for the exclusive purpose of verifying that [safeguardable nuclear material in peaceful uses] is not diverted to nuclear weapons or other nuclear explosive devices.” That is the only legal mandate that the IAEA has pursuant to safeguards treaties. And do not be confused – this central legal obligation on the safeguarded state, and this exclusive purpose for the application of IAEA safeguards, does not change when a state supplements its CSA with an Additional Protocol. The AP does add discrete legal obligations for the safeguarded state with regard to declaration and access, and adds to the IAEA’s legal authority to investigate and assess the question of whether there are undeclared nuclear materials or related facilities on the territory of the safeguarded state. But the AP does not change the central legal obligation of the state, nor the exclusive purpose for the application of IAEA safeguards, which are expressed in Articles I & II of the CSA. The Additional Protocol is, after all, simply an attachment to the CSA, and preserves its core principles.
The idea of the IAEA making a broader conclusion that all nuclear material in a safeguarded state remain in peaceful activities, as a safeguards implementation standard, is a completely sui generis creation of IAEA institutional policy, and does not reflect an actual legal obligation of safeguarded states, whether they are party to the AP or not. You will not find this standard expressed in the text of either the CSA or the AP.
To have a broader conclusion made about a safeguarded state’s nuclear program is certainly a laudable goal for the state, but it is not a legal obligation for the state. And for Iran, it plays no necessary role in the implementation of the JCPOA.
I just wanted to be clear on this point, because both Persbo and Hibbs don’t mention this fact, and seem to write about the broader conclusion, as many other observers do, as if it is something that Iran has to achieve under the JCPOA. It’s a nice goal, but it’s not a requirement either under the JCPOA, or for that matter under safeguards law.
Arms Control Law 
Persbo states: “While the IAEA now closes the PMD file, the inconclusive nature of some of its findings may complicate the work to reach a so-called broader conclusion for Iran.”
Let’s be clear the “inconclusive nature” of the findings are due in large part because of the unauthenticated nature of the “evidence” supplied by third parties — as El Baradei clearly states:
https://books.google.com/books?id=AfngHRNcCYYC&pg=PA280&lpg=PA280&dq=%E2%80%9CNo+one+knew+if+any+of+this+was+real.%E2%80%9D&source=bl&ots=xVCpYTWy_4&sig=UrJKKgFIL1xVn1t1CFp0eF75kJ8&hl=en&sa=X&ved=0ahUKEwiWo7zlksrJAhUJOT4KHfvBADQQ6AEIHTAA#v=onepage&q=%E2%80%9CNo%20one%20knew%20if%20any%20of%20this%20was%20real.%E2%80%9D&f=false
And as you correctly state 53 other states also have no broader conclusion — so this is not an impediment to anything.
The main lesson learned is that the IAEA should stick to its mandate role of being a nuclear materials accountant — and not venture into nuclear weapons investigations where it has little technical expertise in house and is apt to be misled like it was with the questionable and unauthenticated PMD dossier.
Dan: “It’s a nice goal, but it’s not a requirement either under the JCPOA, or for that matter under safeguards law.”
True enough. Iran is under no legal obligation if there is an absence of any such “broader conclusion”.
But if I read the terms of the JCPOA correctly then the announcement of such a conclusion will place a legal obligation upon the P5+1, because if such a conclusion is reached inside of 8 years then they are obliged to immediately remove those EU-imposed sanctions.
(And rightly so, of course)
But don’t underestimate the importance of the politics, if only because the “importance” of such a BC diminishes the closer we get to that 8 year limit (after all, think of how monumentally unimportant such a “broader conclusion” will be seven and a half years from now, versus the bombshell that would land if the IAEA reached that “conclusion” tomorrow).
I suspect very much that Persbo and Hibbs are both pointing to the “need” for that “broader conclusion” precisely because they understand that this is where the politicians can brew up trouble.
After all, it would be difficult to strong-arm the IAEA to falsely accuse Iran of a violation, but much easier to brow-beat the IAEA into withhold Iran’s merit-badge.
An unscrupulous political operator could hope to prevent the IAEA from making that “broader conclusion” and then insist that this means that Iran doesn’t deserve any sanctions-relief, and who cares what the text of the JCPOA actually says….
Not Persbo, of course. Nor Hibbs.
Perish the thought, because I’m sure both are far too honerable to ever get elevated up to that rarified level.
*sigh*
Let’s add Jeffrey Lewis to the list with Persbo and Hibbs.
JL: “If the IAEA can’t reach the broader conclusion that all of Iran’s nuclear material remains in peaceful uses after eight years, the United States and its allies will have a tough decision to make.”
Quite. Astonishing.
If the eight year clock runs down without that “broader conclusion” being announced then there is no “tough decision” to be made by anyone: the JCPOA says that the sanctions come off, and if the USA and its lackeys – oops, sorry, “its allies” – want to claim otherwise then they will be in violation of the JCPOA.
Not Iran, nor the IAEA.
Lewis really can do a wonderful impersonation of Humpty Dumpty when he’s in the mood: “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less”.
Ol’ Humpty Dumpty would feel right at home on the pages of http://www.foreignpolicy.com, and he would be a sensation working the room at the next arms control shindig.
The “Broader Conclusion” might become important sooner rather than later with Iran and Russia discussing an Iranian purchase of Russian Su-30 combat aircraft and Washington saying that that they won’t approve any such purchases. The need for such approval disappears on BC day or after five years, whichever is sooner.
“5. All States may participate in and permit, provided that the Security Council decides in advance on a case-by-case basis to approve: the supply, sale or transfer…… of any battle tanks, armoured combat vehicles, large caliber artillery systems, combat aircraft, attack helicopters, warships, missiles or missile systems,…… shall apply until the date five years after the JCPOA Adoption Day or until the date on which the IAEA submits a report confirming the Broader Conclusion, whichever is earlier.”