JCPOA and the IAEA: Challenges Ahead

Iran and its interlocutors, the P5+1, comprising five permanent members of the UN Security Council (UNSC) plus Germany, agreed upon the Joint Comprehensive Plan of Action (JCPOA) on July 14, 2015.1 The JCPOA is a ‘Plan of Action’ which upon successful implementation is designed to ensure the ‘exclusively peaceful’ nature of the Iranian nuclear programme. It would simultaneously lift all the UNSC and multi-lateral and national sanctions that were imposed to pressurise Iran to conform to the UNSC resolutions as well as those of the International Atomic Energy Agency (IAEA).

The Iranian nuclear issue was referred to the UNSC by the IAEA Board of Governors (BOG) in February 2006 due to “the absence of confidence that Iran’s nuclear programme is exclusively for peaceful purposes resulting from the history of concealment of Iran’s nuclear activities”.2 The P5+1 began negotiations with Iran in June 2006 in order to hammer out a solution to the crisis.

Success eluded the process till November 2013 when the Joint Plan of Action (JPOA) was agreed upon. Iran agreed to undertake a set of voluntary measures relating to its nuclear infrastructure and activities (reducing its stock of UF6 enriched to 20 per cent, cap on enrichment levels to below five per cent, no further addition to Arak reactor, as well as enhanced monitoring of its facilities among others) in return for specified sanctions relief (by the US and the EU as well as the limited flow of Iranian funds locked up in countries importing Iranian oil due to the fear of attracting extant US sanctions).3

The initial goal of the P5+1 and Iran was to hammer out a “mutually agreed long-term comprehensive solution” in “no more than one year” after the adoption of the JPOA. The JPOA began to be implemented from January 20, 2014. It was renewed by mutual consent twice on July 19, 2014 and November 24, 2014 till June 2015 due to continued differences. In April 2015, Iran and its interlocutors, however, “reached solutions on key parameters” of the JCPOA.4 This Issue Brief examines the role of the IAEA in policing the terms of the JCPOA.

Verifying Nuclear-related Measures

The preamble of the JCPOA states that the IAEA will be “requested to monitor and verify the voluntary nuclear-related measures” and provide regular updates to the BOG and the UNSC on the status of Iran’s implementation.5 The JCPOA will only begin to be implemented (Implementation Day) after the IAEA gives a report that it has verified Iran’s implementation of these measures (see Table below for implementation schedule and Iran’s commitments).Iran and the IAEA will have to agree to a template for describing centrifuge types and agreed procedures for measuring centrifuge performance data. Iran would have to down blend uranium stocks in excess of 300 kgs. The May 2015 report of the IAEA Director General to the Board of Governors pointed out that Iran had in its possession 8715 kgs of UF6 enriched up to five per cent.6 Therefore, nearly 97 per cent reduction in Iranian stockpile would be required before the agreement is implemented.

Transparency Measures

AP and Code 3.1

On the JCPOA Finalisation Day (July 14, 2015), Iran and the IAEA are required to begin making necessary arrangements to implement all transparency measures so that they are ready to be implemented on Implementation Day. Adoption Day is 90 days after the endorsement of the JCPOA by the UNSC or earlier by mutual consent. Given that the UNSC Resolution 2231 was passed on July 20, the Adoption Day would be October 20, 2015 or earlier. Iran will inform the IAEA that it will provisionally apply the IAEA Additional Protocol (AP), and will fully implement the modified Code 3.1 of the Subsidiary Arrangements (SA), with effect from the Implementation Day.

The AP provides the IAEA with access to all aspects of a state’s nuclear fuel cycle. It also ensures among other measures short-notice inspector access to all buildings on a nuclear site, collection of environmental samples beyond declared locations, information on nuclear-related R&D not involving nuclear material and administrative advantages like multi-entry visas. Iran was provisionally following the AP from December 2003 to February 2006. It quit following the AP in the immediate aftermath of its referral to the UNSC.

The JCPOA notes that Iran will ratify the AP eight years after Adoption Day or when the IAEA reaches a ‘Broader Conclusion’, whichever is earlier.7 Iran, therefore, will potentially get the certification that “all nuclear material remained in peaceful activities” prior to its ratification of the AP. It is pertinent to note that the Safeguards Statement Report for 2014 notes that the IAEA draws such a conclusion only when the state has the CSA and AP ‘in force’.8

Code 3.1 deals with the early provision of design information to the IAEA. It is part of the SA that every Non-Proliferation Treaty (NPT) member state is required to enter into, as mandated by Article 39 of its Comprehensive Safeguards Agreement (CSA).9 Iran had signed the SA with the IAEA on February 12, 1976. The SA specified when a state must report to the IAEA on decisions to construct a new facility or undertake a nuclear-related activity, among other requirements. The code was revised in 1992 requiring every NPT member state to inform the IAEA as soon as a decision to construct a nuclear facility is undertaken. The earlier provision only required a state to inform the IAEA six months prior to the introduction of nuclear material.

While Iran was following the revised Code 3.1 since 2003, it informed the IAEA in March 2007 that it will only be bound by the previous requirement. This was in the immediate aftermath of the UNSC Resolution 1747 which expanded sanctions measures against Iran. The IAEA has since been maintaining that Iran cannot unilaterally quit implementing the modified code and was bound to the revised requirements. Iran’s compliance with these two crucial transparency requirements, beginning from the Implementation Day, was essential to ensuring a forward movement on the JCPOA.

Access

The JCPOA in the relevant sections of the Annexure dealing with the IAEA access notes that the IAEA will request access to locations “that have not been declared” under the CSA or AP, “to verify the absence of undeclared nuclear material and activities inconsistent with the JCPOA at such locations”. It further notes that the IAEA “will provide Iran the reasons for access in writing and will make available relevant information”.10 While this does address Iran’s concerns about the IAEA not making available information vis-à-vis possible military dimensions (PMD) issues in the past, it remains to be seen what constitutes “relevant information” for Iran.

The JCPOA reiterates that requests for access will only “be made in good faith” and that such requests “will not be aimed at interfering with Iranian military or other national security activities …”. If the IAEA and Iran cannot agree to a mechanism of access within two weeks of the IAEA’s original request, the JCPOA prescribes consultations with the members of the Joint Commission (JC, made up of P5+1 political directors and headed by the EU Foreign Policy Chief or his/her representative) to resolve the issue “through necessary means”.11

In the absence of a mutually agreed upon solution, the JC would take a majority decision (by a vote of five or more of its eight members) in a process of consultation not exceeding seven days and Iran will have to implement the decision within three additional days. In effect, Iran, along with Russia and China together, cannot possibly block an IAEA request for access. It is pertinent to note that no quorum is required to consider matters relating to the IAEA access by the JC. Critics of the JCPOA, however, note that the time frame of three weeks is large enough for Iran to hide its activities, if it so desired.

Long-term Presence of the IAEA

The JCPOA affirms that Iran will make the necessary arrangements to allow for a “long-term IAEA presence, including issuing long-term visas”, provision of “proper working space at nuclear sites”, as well as “locations near nuclear sites”.12Natanz will be subject to daily inspector access for 15 years.13 This is because Natanz will be the sole location for all of Iran’s enrichment-related activities for 15 years. It is pertinent to note that Natanz and Fordowhave been subject to daily inspector access in the aftermath of the JPOA. Prior to the JPOA, the IAEA inspectors had access to these facilities only “once a week”.14

The mechanism described above pertaining to the resolution of the IAEA concerns relating to access will be operable for 15 years. The IAEA will also maintain surveillance of centrifuge rotors for 20 years, while it will monitor uranium ore concentrate production for 25 years. The JCPOA affirms that the IAEA will use modern technologies including electronic seals and online enrichment measurement among others to increase efficiency of monitoring the JCPOA.15

Three Issues of Contention

PMD

About 12 concerns relating to the PMD were flagged in the November 2011 report of the IAEA Director General (DG) to the BOG.16In his latest report to the BOG in May 2015, DG Yukiya Amano reiterated that while the information in the November 2011 report was “overall credible”, “additional information” since then has corroborated the concerns flagged in that report.17

Iran and the IAEA had agreed upon a set of 18 “practical measures” from November 11, 2013 to May 20, 2014 as part of the “Framework of Cooperation” to build mutual confidence. While three of these measures were related to the PMD issues, only one of them was resolved. Iran and the IAEA on July 14, 2015 reached an understanding on “Roadmap for Clarification of Past and Present Outstanding Issues”.18 According to this framework, while Iran will provide explanations along with any clarifications the IAEA might require on the remaining 11 PMD issues of concern by October 15, 2015, the IAEA DG will submit a final assessment on Iran’s explanations by December 15, 2015. Iran will, therefore, have to provide explanations within three months on significant issues of contention that have dominated Iran-IAEA interactions for nearly five years.

The May 2015 report of the IAEA DG to the BOG urged Iran to provide access without delay to sites, equipment, persons and documents to resolve PMD concerns. The report noted that “there continues to be the presence of equipment, vehicles, and construction equipment” at the Parchin site as seen through satellite imagery and that “activities since February 2012 are likely to have undermined the Agency’s ability to conduct effective verification”.19

The July 14, 2015 Roadmap agreed to between Iran and the IAEA states that both sides “agreed on another separate arrangement regarding the issue of Parchin”. The contours of this arrangement are, however, not in the public domain. The head of the Atomic Energy Organisation of Iran (AEOI) Ali Akbar Salehi insisted that inspections at the Parchin site will be carried out within the framework of the Iran-IAEA agreement of July 14.20 Reports citing a draft of the possible agreement over such access prior to the JCPOA Finalisation Day (July 14, 2015) suggested that both sides had agreed on a mechanism involving a single visit to Parchin as well as interviews with Iranian nuclear scientists.21

Critics in the US Congress as well as in Israel have expressed surprise at the ignorance among the US officials about an agreement that deals with resolving a critical issue pertaining to the PMD.22 However, the US State Department spokesperson on July 22, 2015 reiterated that such “technical agreements are never shared outside the state in question in the IAEA, but we have been briefed on them …”23

The December 2015 assessment of the IAEA DG on the PMD issues will therefore be a crucial test of Iranian cooperation ahead of the JCPOA Implementation Day. If reports that the Barack Obama administration believes that “an Iranian admission of its past nuclear weapons program is unlikely and is not necessary for purposes of verifying commitments going forward” are true, it remains to be seen how this would affect the IAEA’s ability to draw a “Broader Conclusion” on going forward.24 This is because the IAEA cannot possibly attest to the “completeness” (absence of undeclared nuclear activities in a state) in the absence of “understanding the whole picture” (Amano’s words in the aftermath of the JCPOA) about Iran’s past activities.25 It is pertinent to note that the IAEA insists that “completeness” is an essential pre-requisite along with “correctness” (non-diversion from declared nuclear activities) for the IAEA to draw a “Broader Conclusion”.

Anytime, Anywhere Access

In the aftermath of the JCPOA, critics have expressed concern over the absence of specific detailsin the JCPOA relating to “anytime, anywhere access” for the IAEA. The US officials like the Energy Secretary Ernest Moniz who played a key role in the negotiations, however, insisted that the relevant paragraphs dealing with IAEA access and dispute resolution mechanism were robust enough to detect any Iranian non-compliance. Further, the IAEA will have the mechanism of “complementary access” (CA) as a result of the provisional application of the AP beginning from the Implementation Day.

The CA is in addition to the ad hoc inspections (used to verify a state’s initial declaration), routine inspections (verifying the location, identity, quantity and composition of all nuclear material subject to safeguards) and special inspections (requested if explanations provided by a state or information obtained from routine inspections are not adequate for the IAEA to fulfil its responsibilities under a CSA) that the IAEA has recourse to as part of the CSA.

Under the CA, the IAEA can request access to a site to verify “correctness and completeness” with an advance notice “of at least 24 hours”. Moniz, in testimony before the Senate Armed Services Committee on July 29, 2015, highlighted this fact to drive home the point about the advantages accrued to the IAEA as a result Iran implementing the AP.26 For access to “declared” sites in connection with design information verification (DIV) visits or ad hoc or routine inspections on that site, “the period of advance notice shall, if the Agency so requests, be at least two hours but, in exceptional circumstances, it may be less than two hours”.27

Since these access visits have to be coordinated with Iran, they are termed as “Managed Access”. It is pertinent to note that the IAEA inspected uranium mines and mills as part of the JPOA, even though such visits are only possible under the terms of the AP. The INFCIRC/540 document in Article 7.a notes that such “managed access” visits are undertaken “in order to prevent the dissemination of proliferation sensitive information, to meet safety or physical protection requirements, or to protect proprietary or commercially sensitive information”.28

IAEA Capabilities and Resources

Analysts have also flagged the issue of the IAEA’s financial strength in policing the terms of the JCPOA.29Amano informed the BOG in December 2014 that it had cost the Agency approximately Euros 6.9 million to carry out the JPOA-related verification activities from January-November 2014.30 In the same report, he further noted that the Agency could incur additional costs of about Euros 5.5 million till July 2015. The May 2015 report notes that while the IAEA member-states had pledged Euros 6.13 million as of May 21, 2015 in support of JPOA verification activities, the Agency had received Euros 6.06 million, almost half of the amount that Amano stated was required.31 The US provided close to Euros 1.5 million for the JPOA verification, while other big contributors included Norway with a pledge of Euro 1 million.32

The JCPOA will add volumes to the IAEA’s work load vis-à-vis Iran. Amano post JCPOA stated that he “will ask the BOG to make the necessary resources available”.33 The IAEA budget for nuclear verification activities in 2015 was Euros 132.5 million, out of total budget of Euros 350 million, accounting for about 38 per cent of the total regular budget.34 A decade ago in 2006, nuclear verification budget was about 35 per cent of the regular IAEA budget. Over the past five years, the nuclear verification regular budget has only witnessed an increase of 6.5 per cent (from Euros 124.3 million in 2011).35 The IAEA as far back as in 2002 had noted that the “chronic underfunding of this programme [safeguards implementation budget] has led to strain on existing human resources in the face of an of increasing workload, and to excessive reliance on extra-budgetary funds”.36

It is also pertinent to note that the number of full-time safeguards inspectors has remained relatively stagnant and has not seen any substantial increase. In 2007, for instance, the total number of inspectors was 255 as against 209 in 1996.37 The IAEA website notes a staff of about 250 inspectors in 2013.38 These inspectors had carried out 2114 on-site inspections world-wide in 2014, as against 1971 in 2013. Analysts had pointed out that prior to the JPOA, the total number of the IAEA inspectors working in Iran was about 20-24.39 Under the JCPOA, the number of “designated inspectors” would increase to about 130-150, within nine months of the Implementation Day. To be sure, all of these designated inspectors may not be expected to work full-time on the Iran file. What is pertinent, however, is that there will be a nearly five-fold increase in the number of IAEA inspectors who would potentially handle work relating to Iran as part of their increasingly onerous job profile. Amano on his part continues to reiterate that the IAEA is more than capable of carrying out the nuclear-related verification activities as contained in the JCPOA.

Views expressed are of the author and do not necessarily reflect the views of the IDSA or of the Government of India

• 1. “S/2015/544, Annex A”, S/RES/2231, UNSC Resolution 2231 (2015), July 20, 2015
• 2. “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran”, GOV/2006/2014, International Atomic Energy Agency (IAEA), February 4, 2006
• 3. See “Joint Plan of Action”, European Union External Action Service, November 24, 2013
• 4. For an examination, see S. Samuel C. Rajiv and G. Balachandran, “Iran-P5+1 Lausanne Framework: Issues and Challenges”, IDSA Issue Brief, April 24, 2015
• 5. S/RES/2231, no. 1, p. 9.
• 6. “Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran” GOV/2015/34, IAEA, May 29, 2015, p. 4
• 7. S/RES/2231, no. 1, p. 19.
• 8. “Safeguards Statement for 2014”, GOV/2015/30, IAEA, p. 6
• 9. For Iran’s CSA, see “The Text of the Agreement between Iran and the Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons”, IAEA Information Circular, December 13, 1974
• 10. S/RES/2231, no. 1, p. 33.
• 11. Ibid
• 12. Ibid., pp. 31-32.
• 13. Ibid., p. 32.
• 14. Barbara Slavin, “Tight IAEA Inspection Regime Hampers Iran’s Nuclear Breakout”, Al-Monitor, July 22, 2013
• 15. S/RES/2231, no. 1, p. 31.
• 16. “Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the Islamic Republic of Iran”, GOV/2011/65, IAEA, November 8, 2011, the sub-title ‘PMD’ was first mentioned in the March 26, 2008 report of the IAEA DG to the BOG.
• 17. GOV/2015/34, no. 6, p. 12.
• 18. “IAEA Director General’s Statement and Road-map for the Clarification of Past & Present Outstanding Issues regarding Iran’s Nuclear Program”, IAEA, July 14, 2015
• 19. GOV/2015/34, no. 6, p. 12.
• 20. “Parchin inspections only within Iran-IAEA roadmap: Salehi”, Tehran Times, July 25, 2015
• 21. Louis Charbonneau and Arshad Mohammed, “Exclusive: Draft deal calls for UN access to all Iran sites”, Reuters, July 13, 2015
• 22. Rebecca Shimoni Stoil, “McCain: ‘Astonishing’ that US hasn’t seen Iran-IAEA deals”, The Times of Israel, July 29, 2015
• 23. See “Daily Press Briefing,” U.S. Department of State, July 22, 2015
• 24. Jay Solomon, “Lawmakers Say Iran Unlikely to Address Suspicions of Secret Weapons Program”, The Wall Street Journal, July 26, 2015
• 25. See “IAEA Director General Amano’s Remarks to the Press on Agreements with Iran”, IAEA, July 14, 2015
• 26. “Secretary Ernest Moniz Testimony before the Senate Committee on Armed Services”, July 29, 2015
• 27. “Model Protocol Additional to the Agreement(s) between State(s) and the International Atomic Energy Agency for the Application of Safeguards”, INFCIRC/540 (Corrected), Article 4.b.ii, IAEA, December 1998, p. 7
• 28. Ibid
• 29. Mark Leon Goldberg, “The Cash-Strapped Agency at the Heart of the Iran Deal”, The Atlantic, July 18, 2015
• 30. “Monitoring and Verification in the Islamic Republic of Iran in Relation to the Extension of the Joint Plan of Action”, GOV/2014/62, IAEA, December 3, 2014, fn. 2, p. 3
• 31.
• 32. GOV/2015/34, no. 6, fn. 11, p. 3.
• 33. “IAEA Director General Amano’s Remarks to the Press on Agreements with Iran”, no. 25.
• 34. “Regular Budget Appropriations for 2015”, GC(58)/RES/6, IAEA, September 2014
• 35. See IAEA Annual Reports
• 36. See “Verification and Security”, IAEA Annual Report for 2002, p. 67
• 37. “IAEA Safeguards: Staying Ahead of the Game”, IAEA, July 2007, p. 30
• 38. “Safeguards Inspectors in Action: Behind the Scenes at Dukovany Nuclear Power Plant”, IAEA, March 15, 2013
• 39. Blaise Misztal and Jessica Michek, “The IAEA and the Interim Deal: Funding Challenges”, Bipartisan Policy Center, December 11, 2013