The Additional Protocol and Beyond: A Legal and Political Point of View

Nobody knows the exact content of the Additional Protocol signed by Iran and the International Atomic Energy Agency (IAEA) in December 2003. That protocol was designed to complement and reinforce the somewhat outdated Safeguards Agreement signed by the same two parties in 1973, which entered into force the following year. Iran did not present the protocol to its parliament for ratification but applied it as a goodwill gesture from 2004 to February 2006, when Tehran was dragged before the Security Council. The text of this protocol has never been published, and we must thus believe Mr. Yukio Amano, the director general of the IAEA, when he tells us that this document allows his agency to investigate all types of Iranian locations, be they civilian or military. We also know that the Iranian Supreme Leader has vehemently forbidden his negotiators to accept a future agreement that permits just any kind of intrusion of the IAEA into military facilities or access by IAEA inspectors to Tehran’s nuclear scientists.

On the other hand, we can assume that the content of the Additional Protocol signed between the IAEA and Iran is not significantly different from the model Additional Protocol, text available on the Agency website. If this is the case, what exactly are the rights and duties of Iran under the provisions of such an agreement? This is a point of major importance, as Iran has accepted, in the Lausanne framework for the future Joint Comprehensive Plan of Action (JCPOA) to be finalized by the end of June—with the “P5+1” group of China, France, Germany, Russia, United Kingdom, and the United States—to voluntarily implement, again, the Additional Protocol signed in 2003, pending ratification by its parliament.

The model Additional Protocol makes it clear that the IAEA has a right of access to any place, site, location, or facility, thus implicitly including military sites. But the grounds on which the Agency can seek such access are precisely defined. They must relate to the presence of nuclear material or nuclear fuel cycle-related research and development activities. In other words, the IAEA inspectors are entitled to look for fissionable material or sources of fissionable material—mainly uranium and plutonium—and activities related to the management of such material in processes such as conversion, enrichment, fuel fabrication, operation of nuclear reactors, and fuel reprocessing. But any activities related to theoretical or basic scientific research are outside the IAEA’s domain. Even under the Additional Protocol, its inspectors are not authorized to enter any building or any office, or open any drawer in search of just any kind of document.

“Possible Military Dimensions”

Strangely enough, activities properly dedicated to the engineering of a nuclear explosive device are not covered by the model Additional Protocol, as long as those activities do not include some use or manipulation of uranium or plutonium. This means, for example, that the IAEA’s repeated requests to inspect a specific building located in the sprawling military complex of Parchin—where it suspects that Iran conducted experiments in the late 1990s with classical explosives capable of triggering a nuclear explosion—do not fall under the scope of the Additional Protocol. And this should also be the case for all the other requests submitted by the Agency on the ground of “possible military dimensions” (PMD) of the Iranian nuclear program.

In the Agency’s jargon, these “possible military dimensions” cover activities conducted for the most part before 2003, the date on which the American intelligence community, followed later by the IAEA itself, considers that Iran halted a clandestine weaponization program by a decision taken at the highest political level. We know that the P5+1, or at least its Western members, are eager to clarify the PMD question. But the above analysis of the scope and limits of the Additional Protocol leads to the conclusion that the protocol does not cover that question. It should be addressed in a separate chapter of the future JCPOA, still to be completed, that is sometimes referred to as “Additional Protocol Plus.”

This should also be the case regarding the IAEA’s request to interview Iranian scientists. The Model Additional Protocol does not specifically consider this type of activity in the definition of “verification activities” that the Agency is entitled to conduct. But it could rightly be considered as part of information-gathering procedures pertaining to the implementation of the basic Safeguards Agreement as well as the Additional Protocol. Even so, such interviews should not blur the borders of these two documents. They should be limited to collecting data related to uranium and plutonium present on Iran territory and to nuclear fuel cycle-related research and development activities. But again, the questions that the IAEA would like to ask in order to clarify the “possible military dimensions” of the Iranian nuclear program go much beyond these definitions and belong rather to an “Additional Protocol Plus.”

Bad Memories and Fears

The provisions contemplated for such an “Additional Protocol Plus” naturally revive unpleasant memories for the Iranians. They were not, of course, directly concerned about the investigations conducted by the United Nations and the IAEA on Iraqi territory after the first Gulf War in search of production sites and stockpiles of weapons of mass destruction. But various reports regarding rough behavior and poor secrecy discipline of some of the UN inspection teams reverberated throughout the region and beyond. The whole episode was perceived as humiliating to any sovereign State.

And there is also the Stuxnet affair, which although not linked to IAEA inspections, certainly resonated negatively as an act of aggression by one or more foreign powers. The introduction by a foreign hand of this highly destructive computer virus in a centrifuge-monitoring program produced by Siemens was made possible by Iran’s interaction with the outside world. Iranians also cannot forget the serial assassinations of their nuclear scientists between 2010 and 2012. There is also no link here with IAEA verification activities, but these murders likely were related to some kind of international cooperation. Three of the victims participated in the Sesame project, a regional scientific venture around a synchrotron based in Jordan and run by nine participants: Bahrain, Cyprus, Egypt, Iran, Israel, Jordan, Pakistan, the Palestinian Authority, and Turkey. Those scientists therefore had to travel to Amman, thus making them easy targets for clandestine collection of information on their residences, personal relationships and other data of interest for an intelligence service. Some observers also consider that, contrary to its previous record, the IAEA has developed somewhat unwholesome relationships in recent years with various intelligence services, relationships that, while allowing the Agency to expand its information base, has also enhanced the risk of its manipulation.

All these elements certainly loom large in the minds of the Iranian negotiators, making them particularly suspicious of any proposal regarding verification requirements that go beyond the limits of their Safeguards Agreement and Additional Protocol. On one hand, the suspicions raised by Iran’s previous infractions of its non-proliferation obligations make it difficult for the IAEA to provide credible assurance about the absence of undeclared nuclear activities on Iranian territory without having at its disposal, at least for a given period of time, some kind of toolbox allowing it to probe into possible weaponization activities. And the issuance of such a clean bill of health is an essential step for creating long-standing confidence between Iran and the international community.

On the other hand, the Iranians fear that such a toolbox could very well turn into a kind of Pandora’s box, paving the way for never-ending and ever more intrusive inquiries. Making things even more difficult, Iranian scientists, engineers, and officers who may have played a role in the covert nuclear program halted in late 2003 have most likely obtained from the Supreme Leader himself some kind of pledge of immunity and personal protection in exchange for their compliance with such a painful decision. As a result, negotiators on both sides must deploy all their imagination and ingenuity in finding a mutually acceptable solution to the highly divisive issue of an “Additional Protocol Plus.”

(as published by the website Lobelog on June 2, 2015)

Security Council Resolutions : Barrier to Iran Nuclear Deal?

published on the LobeLog website

This is not the first time that we may have trapped ourselves when drafting UN Security Council (UNSC) resolutions that were intended to trap another country—in this case, Iran. The present situation recalls in some respects the period around 1997 when most Security Council members would have liked to rescind, or at least amend, the sanctions adopted against the regime of Saddam Hussein after the 1991 Gulf War, as their effects were obviously getting out of hand: widespread corruption, and the dramatic deterioration of the Iraqi population’s state of health, to name a couple. But any change in the sanctions would have required unanimity from the five permanent members of the Council, and that was definitely out of reach. The situation led French President Jacques Chirac to express his frustration. “We want to convince, not coerce,” he said. “I have never observed that the policy of sanctions can produce positive effects.”

We have not yet reached such a dramatic juncture with Iran. But should it become useful to rapidly lift the sanctions imposed by the four UNSC resolutions between 2006 and 2010 in order to secure a comprehensive agreement on Iran’s nuclear program, the Western negotiators may find themselves incapable of delivering and may instead try to kick the can down the road to some point in the distant future.

Aimed at halting Iran’s military, nuclear and ballistic activities, these UNSC resolutions are not the ones that hurt the most. More destructive are those unilateral measures imposed by the United States and the European Union, since they were designed essentially to destabilize the Iranian economy. But the UNSC sanctions carry with them a “pillory effect” that the Iranians perceive, quite correctly, as deeply humiliating. They also provide the legal bedrock upon which the European sanctions, in particular, have been constructed. The Iranians are therefore anxious to see them lifted as soon as possible through a decision by the Security Council to close the file it opened in 2006 and return it to the forum from which it should never have been taken: the International Atomic Energy Agency (IAEA).

The conditions for terminating these resolutions, however, are also overwhelming. In fact, the people who drafted them seem to have been pursuing two not necessarily compatible goals at the same time.

The first goal was to pile up all the preconditions that the authors believed were necessary to prevent Iran from acquiring a deliverable nuclear device, including:

-       suspending all activities related to enrichment and reprocessing, including research, development, and construction of new facilities;

-       suspending all activities related to the construction of a heavy-water research reactor;

-       providing immediate access to all sites, equipment, persons and documents requested by the IAEA in order to verify Iran’s compliance with the Security Council decisions and to resolve all outstanding issues related to the possible military dimensions (PMD) of the Iranian nuclear program;

-       promptly ratifying the Additional Protocol to Iran’s safeguards agreement with the IAEA; and

-       suspending all efforts to develop ballistic missiles capable of delivering nuclear weapons.

Considering the context in which these resolutions were adopted, there was little chance that the Iranians would comply with such an elaborate and comprehensive set of so-called “confidence-building measures,” which would have forced Tehran to abandon virtually all of its nuclear and ballistic-missile ambitions.

The second goal was substantively quite different from the first and indeed somehow contradictory. It aimed to push Iran into negotiations, as illustrated by the formula that was included in all the UNSC sanctions resolutions, which ritually expressed the “conviction” that Iran’s compliance “would contribute to a diplomatic, negotiated solution.” Moreover, if Iran suspended its enrichment and reprocessing activities, the Council declared its willingness in return to suspend at least some of its sanctions in order “to allow for negotiations in good faith” and “reach an early and mutually acceptable outcome.”

As we now know, a negotiation process ultimately was initiated, albeit through a radically different path, as the West dropped its demand that Iran fully suspend all its sensitive nuclear activities before entering into substantive talks. One can therefore assume that the second goal will be accomplished as soon as a comprehensive agreement, which will hopefully emerge from the current round of talks in Vienna, enters into force, thus rendering this dimension of the UNSC’s resolutions totally obsolete.

But of course, the resolutions’ first dimension—the exhaustive inventory of “confidence-building measures”—remains in place. Because confidence is essentially an elusive and subjective feeling, taking this path involves embarking on a long-term, winding and always reversible road, the end of which is only faintly discernible now. Such a process is also hardly compatible with the “on-off” mechanism of the Security Council: there is no chance that its resolutions, once cancelled, could be reintroduced. Hence the strong reluctance of the Western powers to commit themselves to such an outcome.

We also all know that the sanctions are much easier to adopt than to rescind, as they tend to create, in the meantime, their own logic and dynamics. They develop new balances of power and vested interests, if only among those in authority who have dedicated themselves so thoroughly to the sanctions’ implementation and enforcement. One has only to recall the notorious example of the general embargo imposed by the Allies against Germany during the First World War whose continuation for several months after the 1918 Armistice unnecessarily prolonged the suffering of the German people and deepened the bitterness of their defeat.

Are Iran’s negotiating partners ready to learn the lessons of history? The Gordian knot that the UNSC sanctions represent should be slashed asunder, if not immediately upon the signing of a comprehensive agreement with Iran, then at least after a moderately short period in which Iran’s determination to comply with its terms could be confirmed. Such a gesture could also be linked appropriately to the formal ratification by Iran’s parliament of the Additional Protocol that Tehran had signed during an unsuccessful round of talks back in 2003—the two moves being equally irreversible.

This would not mean that pending requests made to Iran, such as the ancient issue of the “possible military dimensions” (PMD) of its nuclear program, would have to be abandoned. But it would mean that these requests would thenceforward be dealt with exclusively by the IAEA. It would also mean that the Council, in light of the progress achieved after the signing of a final deal, would no longer consider the Iranian situation a “threat to the peace” under the terms of the UN Charter’s Chapter VII, the only chapter that authorizes the use of coercive measures against a Member State in order “to maintain or restore international peace and security.”