December 19, 2013
By Olli Heinonen and Orde Kittrie – Nearly a month since the six-month Joint Plan of Action with Iran was announced in Geneva on November 24, the deal has yet to go into effect. The two sides have not even agreed on a start date for implementing the deal. Meanwhile, Iran says it is continuing to advance its nuclear program.
Iran’s ambassador to the International Atomic Energy Agency (IAEA), Reza Najafi, says that Iran will not begin implementing its Joint Plan of Action commitments, including its pledge to stop enriching uranium to 20 percent, until the still-unspecified start date.
In the past, Iranian President Hassan Rouhani has boasted repeatedly of how he used a 2003 set of nuclear negotiations with the West, for which he was Iran’s lead negotiator, to buy time to advance Iran’s program. History appears to be repeating itself. Rather than implementing the deal in good faith, Iran is playing games with it, manipulating the Joint Plan of Action to alter to Tehran’s advantage both the circumstances on the ground and the terms of the deal itself.
I. Increasing Iran’s Uranium Stockpile
The start date delay is particularly worrisome because the Joint Plan of Action text appears to commit Iran to freezing its program at its magnitude not on November 24, but rather on that still-unspecified date of implementation. This includes Iran’s commitments not to produce additional uranium enriched above 5 percent; not to “make any further advances of its activities at the Natanz Fuel Enrichment Plant, Fordow, or the Arak reactor;” and to convert to oxide any additional uranium enriched up to 5 percent.
As of November 24, the day the Joint Plan of Action was announced, Iran was estimated to be less than 6 months away from breakout capability, the point at which it could dash to produce enough weapons-grade uranium for one bomb so quickly that the International Atomic Energy Agency or a Western intelligence service would be unable to detect the dash until it is over.
European Union officials say that they hope negotiations over implementation of the Joint Plan of Action will be concluded in time for the deal to go into effect in late January. A start date of late January will apparently leave Iran’s uranium and plutonium production programs significantly closer to breakout capacity than if the Joint Plan of Action had been implemented on November 24.
At the rates at which Iran was enriching in September and October 2013 (the most recent months covered by the IAEA’s quarterly public reports), Tehran will, by December 24, have created at least an additional 230 kilograms of uranium enriched up to 5 percent and an additional 15 kilograms of uranium enriched to 20 percent. By January 24, Iran will have created at least an aggregate additional 460 kilograms of uranium enriched up to 5 percent and an aggregate additional 30 kilograms of uranium enriched to 20 percent. In addition, Iran is very likely continuing producing more centrifuges, and its uranium mines and milling facilities are almost certainly continuing to produce and process uranium ore. Iran may also be continuing to create fuel for the Arak reactor.
And what if the Joint Plan is never implemented? Then Iran will apparently have succeeded in significantly advancing its uranium and plutonium production programs while negotiating with the P-5 plus 1, and won’t have to roll any of it back.
Continued Iranian advancement of its uranium and plutonium programs is particularly striking because Iran has, since 2006, been legally obligated by various UN Security Council resolutions to “without further delay suspend . . . all enrichment-related” activities and “all heavy-water related projects,” including construction of the Arak reactor.
II. Advancing Iran’s Nuclear Warhead and Delivery System Research and Development
Any “comprehensive deal” curbs on Iran’s nuclear program are highly unlikely to go into effect before the Joint Plan of Action concludes its six month duration. A delayed start date for the Joint Plan of Action thus gives Iran more time to advance key parts of its nuclear weapons program that are not significantly addressed by the Joint Plan of Action, but rather would only be curbed as part of a later, “comprehensive deal.” This includes Iran’s nuclear warhead and ballistic missile research and development activities.
For example, the Joint Plan of Action does almost nothing to provide the IAEA with access and cooperation regarding Iran’s warhead-related activities. The same is true of the November 11 Joint Statement on a Framework for Cooperation Between the IAEA and Iran. Neither the Joint Plan of Action nor the Framework for Cooperation contains either an explicit requirement that Iran come clean about its past nuclear warhead work or a provision for short-notice “snap” inspections to ensure that such research is not ongoing.
Such transparency is crucial because nuclear warhead research, or even the manufacturing of nuclear warhead components, can be conducted in small, secret facilities. That’s why several UN Security Council resolutions since 2006 have legally obligated Iran to provide “access without delay to all sites, equipment, persons and documents requested by the IAEA” in order to resolve IAEA concerns about Iran’s research into nuclear warhead research and development.
A significant delay in “comprehensive deal” curbs on Iran’s warhead-related activities is worrisome because IAEA reports have included extensive information about warhead-related research and development by Iran. In its May 2011 report, the IAEA described documentary evidence of Iranian “studies involving the removal of the conventional high explosive payload from the warhead of the Shahab-3 missile and replacing it with a spherical nuclear payload.” The November 2011 IAEA report annex provided a more detailed description of information it determined “indicates that Iran has carried out . . . activities that are relevant to the development of a nuclear explosive device” and noted “indications that some activities relevant to the development of a nuclear explosive device . . . may still be ongoing.”
The Joint Plan of Action also includes no Iranian commitment to refrain from ballistic missile activity. Iran is openly continuing such activity, despite a 2010 UN Security Council resolution legally obligating Iran to “not undertake any activity related to ballistic missiles capable of delivering nuclear weapons.”
Because any “comprehensive deal” curbs on Iran’s nuclear warhead and ballistic missile activities are highly unlikely to go into effect before the Joint Plan of Action concludes its six month duration, a late January start date almost certainly means that Iran will have until at least July 2014 to continue advancing its nuclear warhead and delivery system research and development.
In addition, in light of Iranian activities such as its efforts to demolish and pave over the weaponization research site at Parchin, the passage of additional time is likely to make it more difficult for the IAEA to verify past Iranian nuclear warhead and delivery system research and development.
III. Mischaracterizing U.S. Commitments
At the same time Iran is declaring itself free of its actual Joint Plan of Action commitments until the start date is set and occurs, Iran is insisting that the U.S. must not take sanctions-related steps that clearly fall outside the U.S. commitments under the Joint Plan of Action, even if it were in effect.
For example, the Joint Plan of Action states that the U.S. “will refrain from imposing new nuclear-related sanctions.” The Iranian Foreign Minister threatened that “the deal is dead” if there was movement on the Senate bill, discussed last week, that would not have imposed new sanctions but merely specified what sanctions would be imposed on Iran if the deal collapses. Then, Iran’s diplomats stormed out of the negotiations in protest of the December 12 action, by the U.S. Treasury and State Departments, to designate additional companies and individuals for evading existing international sanctions against Iran. Neither the Senate bill nor the designations would have violated the Joint Plan of Action, even if it were in effect, which it is not.
Ironically, the U.S. designations are in implementation of various Security Council resolutions which require UN member states to “take the necessary measures to prevent the provision to Iran” of assistance, services, or financial resources related to its illicit nuclear program. Thus, Iran was protesting Washington’s compliance with the U.S.’s international legal obligations while Iran continues to flagrantly violate its own international legal obligations, imposed by the Security Council, to suspend all enrichment-related and heavy water related activities.
This kind of gall is less surprising in light of one particularly remarkable flaw in the Joint Plan of Action. Article 25 of the UN Charter specifies that “The Members of the United
Nations agree to accept and carry out the decisions of the Security Council.” Since Iran is a member of the United Nations, it is explicitly required to abide by Security Council resolutions, including those which required it to suspend its enrichment-related and Arak construction activities, not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, and “provide such access and cooperation as the IAEA requests” to resolve IAEA concerns about Iran’s nuclear warhead research and development.
Yet the Joint Plan of Action nowhere recognizes the Security Council’s authority to legally bind Iran. Iran’s steps to comply partially with its Security Council obligations to suspend enrichment and work at Arak are labeled “voluntary measures” in the Joint Plan of Action. Iran will use this to bolster its patently false argument that the Security Council has no legitimate legal authority to restrict Iran’s nuclear program. Since Iran is quite clearly wrong on this point, it is unclear why the P-5 plus 1 were willing to agree to undercut the Council’s authority with such a formulation.
IV. Iran’s Economic Benefits Have Already Commenced
At the same time Iran is violating its legal obligations imposed by the Security Council, and postponing implementation of its nuclear-related commitments under the Joint Plan of Action, its economy has already begun to reap the benefits of the Joint Plan of Action.
For example, the mere prospect of sanctions relief has already increased Iran’s oil exports by ten percent, lifted the market value of Iran’s petrochemical sector by some 40 percent, raised the value of the Tehran stock exchange by some 9 percent, and boosted Iran’s currency.
It remains unclear when the security of the U.S. and its allies will begin to gain from the Joint Plan of Action, and how much less their security will benefit than if the deal had gone into effect the day it was announced.
If the negotiations with Iran are to succeed in achieving U.S. national security objectives, both the first stage implementation agreement and any comprehensive final agreement must be legally binding, enter into force on a clearly specified date, reaffirm the authority of the UN Security Council, and contain far fewer gaps and ambiguities. In addition, both the Administration and Congress must quickly make clear to Iran that it cannot continue to buy time and space for its nuclear program by delaying and misinterpreting the Joint Plan of Action.
Olli Heinonen is a Senior Fellow at the Harvard Kennedy School of Government’s Belfer Center for Science and International Affairs. Before joining the Belfer Center, he was the Deputy Director General of the IAEA, and head of its Department of Safeguards.
Orde Kittrie is a professor of law at Arizona State University and senior fellow at the Foundation for Defense of Democracies. He previously served as the State Department’s lead attorney for nuclear affairs, in which capacity he participated in negotiating five U.S.-Russia nonproliferation agreements.