Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear Program

Note: Cross posted from EJIL:Talk!

Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.

The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.

I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.

The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations.  And so I compliment all of the diplomats and lawyers involved.

The purpose of Security Council Resolution 2231 is primarily to endorse the JCPOA, which is itself a legally non-binding agreement, and to implement the actions of the Security Council which were agreed to in the JCPOA. Specifically, the Security Council decides in Resolution 2231 that on Implementation Day, as defined in the JCPOA, the previous resolutions of the Security Council regarding Iran’s nuclear program will be terminated. Implementation Day is scheduled to occur when a number of essential actions are taken by Iran, and by the U.S. and the E.U., as spelled out in Annex V of the JCPOA. Practically speaking, Implementation Day is likely to occur within the next 6-8 months.

So again, within the next 8 months, according to Resolution 2231, all of the Security Council’s previous resolutions on Iran regarding its nuclear program, inclusive of sanctions applied pursuant to those resolutions, will be terminated. This is subject, however, to a “snapback” procedure, described in operative paragraphs 11-13 of Resolution 2231. According to this “snapback procedure,” any party to the JCPOA, including Iran, can lodge a complaint with the Security Council at any time alleging substantial noncompliance with the JCPOA’s terms by any other party. If no resolution can be achieved on the matter, the Security Council will vote on whether to continue in effect the termination of its previous resolutions. If this vote by the Security Council fails – e.g. if one of the permanent members votes against it – all of the Security Council’s previous resolutions, including the sanctions implemented thereby, will come back into effect. This process was particularly sought for inclusion by the United States, so that U.S. officials could truthfully say to a skeptical Congress that the U.S., acting alone (i.e. as complainer, and as a permanent member of the Security Council), could if it wished cause the re-application of Security Council sanctions in the event that Iran substantially failed to comply with the terms of the JCPOA.

Assuming the “snapback” procedure is not implemented, however, after the termination of previous Security Council resolutions occurs on Implementation Day, Resolution 2231 puts in their place a more limited, continuing set of restrictions on trade with Iran, which are to continue until UNSCR Termination Day. UNSCR Termination Day is scheduled in the JCPOA to occur in 10 years from Adoption Day. This interim set of restrictions is outlined in Annex B to Resolution 2231, and includes restrictions on trade with Iran, primarily in items and technologies related to Iran’s nuclear program. It does, however, allow for some exceptions for permissible trade in technologies necessary to support the 6,000 uranium enrichment centrifuges which Iran is allowed to maintain in operation throughout the term of the JCPOA.

The restrictions also, notably, include the continuation for five-years of the conventional arms embargo which was a part of previous Security Council resolutions on Iran. The continuation of this arms embargo was one of the more contentious points of the JCPOA negotiations between the parties, and this five-year extension is the resultant agreed compromise.

Importantly, from the perspective of Iran, if all sides abide by their commitments under the JCPOA, Resolution 2231 provides that:

 [O]n the date ten years after the JCPOA Adoption Day, as defined in the JCPOA, all the provisions of this resolution shall be terminated, and none of the previous resolutions described in paragraph 7 (a) shall be applied, the Security Council will have concluded its consideration of the Iranian nuclear issue, and the item “Non-proliferation” will be removed from the list of matters of which the Council is seized;

For Iran, this promise represents its ultimate aspiration on this issue – the full removal of international sanctions related to its nuclear program, and its treatment as a lawful possessor of peaceful nuclear energy capabilities.

There would appear to be no “poison pills,” or impossible, or even unreasonable commitments for any party in the text of the JCPOA or in Resolution 2231. Optimism is therefore warranted that this aspiration will be achieved.

Typos in the New Security Council Resolution?

I’ve just been reading over the official text of Resolution 2231 on the U.N. website, which is the Security Council resolution endorsing the JCPOA.  It appears to me that there are at least two typos in the text. I’m kind of amazed they got through the review process. I picked up on them in the first read.

Here’s the first:

7. Decides, acting under Article 41 of the Charter of the United Nations, that, upon receipt by the Security Council of the report from the IAEA described in paragraph :5

I’m pretty sure the colon was supposed to come after the number 5.  Not a big deal in and of itself, but it’s really just a proofreading matter.

The second is a bit worse:

9. Decides, acting under Article 41 of the Charter of the United Nations, that the terminations described in Annex B and paragraph this of 8 resolution shall not occur if the provisions of previous resolutions have been applied pursuant to paragraph 12;

Paragraph this of 8 resolution? Again, obviously just a switch of words. But this is the text that is up on the U.N. website, and it’s kind of an important legal document. Check it for yourself.

UPDATE: The typos have apparently now been fixed. I know that appropriate staff at the U.N. Security Council Secretariat Branch were notified and asked to do so.

Much, Much More on the JCPOA

This is a long one, folks. So settle in if you really want to get into some legal wonkery.

I published the below introductory piece on the JCPOA over at Opinio Juris. Here I’d like to go into a lot more detail about some of the the legal issues that I see associated with the JCPOA.

To start out with, overall I think this is a very good deal for Iran. They apparently got basically everything they wanted, and certainly the most important things. They get to keep a full front-end nuclear fuel cycle complete with 6,000 operating centrifuges. They get to carry on with centrifuge R&D. Over time they get to upgrade and increase their capabilities all around. The deal stipulates that the end game is for Iran to be considered a nuclear normal state, on par with other NNWS, implicitly recognizing Iran’s right to have enrichment capability and all the other elements of a front-end nuclear fuel cycle. There’s a pathway in the deal for all multilateral and unilateral sanctions to be lifted. These things are all Iran really ever wanted out of the deal.

I think it’s also a good deal for the West and the IAEA. It ratchets down unnecessary tensions between the West and Iran, which is – like it or not – a major regional player now and going forward. It keeps Iran in the NPT and in the IAEA, and lets the IAEA get out of the PMD hole they’ve dug themselves into.

Basically it gives everyone the most important things they’ve said they wanted, creates compromises everyone can live with, and allows everyone to declare victory and save face, which are the hallmarks of a good diplomatic deal.

The JCPOA text creates a serious normative framework that the negotiators have come up with, with a Joint Commission for implementation, a dispute resolution mechanisms, and an agreed implementation program that is very specific on timing and on when everyone has to do things. As I said in my previous post, I think it’s an impressively well crafted and well organized set of documents, so kudos to the lawyers from all sides.

I’d like to comment on a few of the legal issues that the JCPOA raises. Some of this will be overlap from my previous post, but a lot of it will be new.

Read the rest of this entry »

The Joint Comprehensive Plan of Action Regarding Iran’s Nuclear Program

NOTE: I’m cross posting this piece here. It originally appeared by invitation this morning over at Opinio Juris.

The Joint Comprehensive Plan of Action (JCPOA) agreed to by the P5+1 (Germany, France, the U.K., the U.S., China, Russia) and Iran on July 14 is a major success of international diplomacy, possibly to be credited with the avoidance of war.  It is the culmination of twenty months of negotiations between the P5+1 and Iran since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013.  See my analysis here of the JPOA when it was concluded.

The JCPOA is comprised of 159 total pages of text, consisting of 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes.  All of the documents can be found at this link.  It is a carefully drafted, well organized document, and compliments are due its drafters.

That being said, it is an extremely complex document, which attempts to address all of the issues in dispute between the parties concerning Iran’s nuclear program, from how many and what type of uranium enrichment centrifuges Iran can maintain in operation, to the technical specifications of transforming the Arak heavy water reactor into an alternate less-proliferation-sensitive design, to excruciatingly detailed provisions on the precise sequencing of sanctions lifting by the U.N. Security Council, the U.S. and the E.U.

The general gist of the JCPOA is easy enough to summarize.  It is a quid pro quo agreement under which Iran agrees to significant limits on its civilian nuclear program, and to an enhanced inspection regime by the International Atomic Energy Agency (IAEA) to verify the continued peaceful nature of its program.  In return, the P5+l agree to a coordinated lifting of the economic and financial sanctions that have been applied against Iran over the past six years by both the Security Council acting multilaterally, and the U.S. and E.U. in particular acting unilaterally.  The end goal of the JCPOA is stated to be that Iran will ultimately be treated as a normal nuclear energy producing state, on par with Japan, Germany and many other Non-Nuclear Weapon States party to the 1968 Nuclear Non-Proliferation Treaty.

The precise sequencing of the implementation of the JCPOA’s commitments was one of the most difficult issues in the negotiations, and the JCPOA has one full annex, Annex V, devoted to the issue.  The implementation plan provides for approximately a 10 year timeline over which the main commitments are to be implemented by the parties.  Technically “UNSCR Termination Day,” on which all Security Council resolutions on Iran will terminate, and on which the Council will no longer be seized of the Iran nuclear issue, is set to occur 10 years from “Adoption Day,” which is scheduled for 90 days after the endorsement of the JCPOA by the Security Council.

Sanctions relief will be staggered, but will begin in earnest on “Implementation Day,” on which date the IAEA will certify that Iran has implemented its primary commitments limiting its nuclear program.  This could occur within approximately six months from “Adoption Day.”  The final, full lifting of all multilateral and unilateral sanctions is set to occur on “Transition Day,” which is defined as 8 years from “Adoption Day,” or when the IAEA reports that all nuclear material in Iran is in peaceful use, whichever is earlier.  So the JCPOA envisions a full lifting of all nuclear-related sanctions on Iran within the next eight years at a maximum, with significant sanctions lifting to occur hopefully within the coming year.

There are a number of important legal observations to make about the JCPOA text.  I’ll mention only a few of them here briefly, but I’ll be writing more about them over at my blog, Arms Control Law, where you can also find background information on the issues.

1. It is important to note that the JCPOA is not a treaty. This is made explicitly clear on Pg. 6 of the JCPOA, when the text refers to all of the subsequently detailed commitments as “voluntary measures.” This fact of course has important implications for both international law, and the domestic law of the parties.  Significantly from an international law perspective, it means that neither Iran’s legal obligations, nor the legal authority of the IAEA, are affected by the terms of the JCPOA itself. The JCPOA is simply a diplomatic agreement, consisting of political and not legal commitments.  This is an important distinction to bear in mind inter alia when considering the expanded access for IAEA inspectors in Iran which is provided for in Annex 1, Section Q.  The fact that these enhanced access procedures, under which IAEA inspectors can request access to sites in Iran that have not been declared by Iran to have any connection to its nuclear program, are simply political in nature, should provide incentive for all sides to be reasonable and measured in their approach to disputes about this access.  Excessively aggressive and unreasonable demands made by either side could result in a collapse of the entire JCPOA framework.

2. Also on the subject of IAEA safeguards, the JCPOA provides that Iran will only provisionally apply its Additional Protocol agreement with the IAEA for the next 8 years, and only after that time will it formally ratify the Additional Protocol and bring it into force. Having the Additional Protocol only provisionally applied during this period could make for some complicated and perhaps controversial questions concerning its application. The most recent reports of the International Law Commission’s Special Rapporteur on Provisional Application of Treaties will be useful in clarifying these questions.  Regarding the purpose for this lengthy period of provisional application, while it may have some basis in the normal delay associated with domestic ratification procedures, I suspect that this was in fact a feature of the agreement specially negotiated by Iran in order to allow it continued leverage with the IAEA, with which it has a longstanding tense relationship.

3. One reason for that tense relationship is the IAEA’s allegations since 2011 that Iran has not been forthcoming about past nuclear weaponization work conducted in Iran prior to 2003. This is the so-called Possible Military Dimensions (PMD) issue, which was also a significant point of contention during the negotiations.  The JCPOA handles the PMD issue in a manner that has surprised many observers.  In brief, in paragraph 14 of the JCPOA the parties agree that the entire PMD issue is to be resolved between Iran and the IAEA within the next six months, pursuant to a “Road Map” document agreed separately between the IAEA and Iran on the same day as the JCPOA.  This short time frame for resolving this complex issue, which has been hotly contested between the IAEA and Iran for the past four years, appears to demonstrate the JCPOA parties’ overall intent to focus on the present and future, and not on the past.   This is a particularly prudent and pragmatic view, in my opinion, and avoids what could have been a poison pill for the JCPOA, in the form of attempts to force Iran to admit to past nuclear weaponization work.

There are many other interesting legal issues that bear observation, but I will end this guest post at this point, and invite interested readers to comment, and to follow my further writing on this and all other matters armscontrollawish at my blog.

Tariq Rauf on How Managed Access under the Additional Protocol Would Work in Iran

I just wanted to quickly draw readers’ attention to a new piece published today by Tariq Rauf over at Atomic Reporters.  Tariq is well known in the nonproliferation expert community.  He’s currently Director of SIPRI’s Disarmament, Arms Control and Non-proliferation Programme, and was previously Head of the Verification and Security Policy Coordination Office at the IAEA.

In this new piece Tariq very usefully explains in practical detail what managed access to sites in Iran by IAEA inspectors would likely look like under the terms of the Additional Protocol, which Iran will almost certainly ratify and bring into force under a final deal with the P5+1.

Tariq provides an explication of some of the limits that can be imposed by Iran on inspectors’ access to sites . These are some of the limits that I was referring to in my piece a couple of weeks ago looking forward to safeguards under such a final deal.  Tariq, however, gives far more useful detail than I did.

The 2014 IAEA Safeguards Implementation Report

SIR 2014

While we’re all waiting with baited breath for the (hopeful) announcement of an Iran nuclear deal in the next couple of days, I have a treat for those interested in IAEA safeguards. I’m pleased to say that a Vienna delegation has very kindly provided the IAEA Safeguards Implementation Report for 2014 to Arms Control Law in the interest of openness and transparency, as well as to disseminate the results and findings of Agency safeguards to the wider public and civil society. This is especially important as the IAEA is funded by the taxpayers of Member States. The delegation is of the view that all IAEA reports should be publicly available and not on a selective basis as determined by some Member States.

I would offer a few initial observations on the 2014 SIR.  Two of these are the same critiques I made when I published the 2013 SIR here.  First, that the agency’s use of standards for assessing Iran’s compliance with its safeguards obligations are still incorrect, as they have been pretty much since DG Amano took over. I’ve explained this previously in detail, including in the post I linked to at the beginning of this paragraph. I’ve also just recently been writing up this analysis in even greater detail in my new book manuscript, which I hope to have ready for the publisher in September. In a nutshell, the IAEA has for years been improperly withholding its determination that Iran is currently in compliance with its existing safeguards agreement obligations.

Second, again in the 2014 SIR there is no meaningful discussion of the IAEA’s use of third party intelligence information as a source for its safeguards assessments, even though we know that the IAEA has relied on such sources significantly since at least 2011 when it published its infamous PMD report on Iran.  There are still very serious concerns that many member states have about the IAEA using such externally-sourced intelligence, without being able to independently verify its credibility.  See here a post I did last October pointing to a statement by the Russian representative to the IAEA on this issue.  The continuing failure of the Director General to seriously engage with these very reasonable concerns leads one to wonder whether the DG thinks that by downplaying them or simply refusing to acknowledge their existence, they will just go away. The old head in the sand routine. I think these issues are very important to the IAEA’s continuing credibility as an independent, objective monitoring and verification body, and that the DG should engage with them, and either set up satisfactory mechanisms for the IAEA to rely on third party intelligence, or alternatively stop using such information as a basis for assessments.

As an additional critique this year, note that the SIR finds in Article 24 that:

[N]o new information had come to the knowledge of the Agency that would have an impact on the Agency’s assessment that it was very likely that a building destroyed at the Dair Alzour site was a nuclear reactor that should have been declared to the Agency by Syria.

In this context, I just wanted to draw attention to some very recent, excellent pieces by Ambassador Peter Jenkins, and Robert Kelley over at LobeLog. In their pieces, Jenkins and Kelley call for a review of the IAEA’s assessments of the Al Kibar site, and I think they make a very persuasive case that such an objective, expert review is needed.  I think it should be noted that their analysis bears not only on Syria, but also on the IAEA’s assumedly continuing role under the new Iran deal in addressing its concerns regarding PMD in Iran. I invite others to make additional observations about the 2014 SIR in the comments.

Finally, reading the latest dispatch today on the Iran negotiations from one of the best journalists covering them, Jonathan Tirone, I’m gratified that things at least appear to be proceeding roughly as I predicted in my last post here. Time will tell.

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.