Critical Points To Consider In Understanding The Iranian Nuclear Deal: Part II

Introduction

The following analysis is the second in a series which discusses the Iranian nuclear deal and examines the JCPOA as a legal document from an American perspective. This analysis will identify and explain various loopholes and their consequences in the JCPOA. Loopholes are common in the JCPOA and occur most often in the form of a prohibition or provision set forth in clear terms, followed by a statement or paragraph either negating or providing a possible alternative to the stated prohibition or provision. The decision to negate or to provide a possible alternative is dependent on the Joint Commission. In making so much dependent on the Joint Commission, the JCPOA has been turned into a provisional document which stands to be altered by the Joint Commission at its discretion. This analysis will also draw on United Nations Security Council Resolution (UNSCR) 2231 which endorsed the JCPOA for reference. It does not intend to be an overall assessment of the deal.

Nuclear Activity "Suitable For The Development Of A Nuclear Explosive Device" Could Be Allowed

If there is any area in the JCPOA where prohibitions should be absolute, it should be the section regarding the development of nuclear weapons since the reason for the whole agreement is - as per statements by President Obama and Secretary Kerry - to prevent nuclear weapons development.[1] However, the JCPOA provides alternatives even to this provision.

Under the JCPOA, Iran is prohibited from: "Designing, developing, fabricating, acquiring, or using multi-point explosive detonation systems suitable for a nuclear explosive deviceÔǪ" as well as from "Designing, developing, fabricating, acquiring, or using explosive diagnostic systems (streak cameras, framing cameras and flash x-ray cameras) suitable for the development of a nuclear explosive deviceÔǪ"[2]

However, the abovementioned provisions prohibiting any activity with systems suitable for nuclear weapons disappear if the Joint Commission approves the activities for "non-nuclear purposes" and provided that they are "subject to monitoring."[3] There are many ways to take advantage of this loophole: for example, even if the Joint Commission declares that a certain activity is subject to monitoring, that does not necessarily mean that Iran will allow the IAEA to monitor said site if it "interferes with Iranian military or other national security activities."[4]

Re-Imposition Of Sanctions Will Not Apply To Contracts Signed After JCPOA Implementation, Iran Views Re-Imposition Of Sanctions As Grounds To Withdraw - Unresolved Contradiction In The JCPOA

The re-imposition of sanctions should Iran violate the JCPOA may be circumvented. The JCPOA states that if the Security Council decides to re-impose sanctions, "ÔǪthese provisions would not apply with retroactive effect to contracts signed between any party and Iran or Iranian individuals and entities prior to the date of application, provided that the activities contemplated under and execution of such contracts are consistent with this JCPOA and the previous and current UN Security Council resolutions."[5] This means that Iran can sign as many new contracts as possible between the time when sanctions are lifted and when they are (potentially) re-imposed, because those contracts will be grandfathered as long as they are within the limitations of the JCPOA. This clause effectively weakens the prospect of re-imposing sanctions: if Iran signs enough new contracts before sanctions are re-imposed, then those sanctions will be meaningless because they will not apply to the new contracts.

Iran, for its part, has explicitly stated in the JCPOA that, "it will treat such a re-introduction or re-imposition of the sanctions specified in Annex II, or such an imposition of new nuclear-related sanctions, as grounds to cease performing its commitments under this JCPOA in whole or in part."[6] This is a loophole in and of itself: if Iran will withdraw upon re-imposition of sanctions, then the sanctions are meaningless.

The JCPOA is inherently flawed because of this contradiction regarding Iran's declared position on sanctions. One of the most important safeguards that has been stressed by the negotiating team while defending the agreement is that if Iran violates the JCPOA, sanctions will be quickly re-imposed. President Obama himself has framed this provision in the context that Iran will be incentivized to remain within the boundaries of the JCPOA in order to maintain sanctions relief.[7] However, because of the inclusion in the JCPOA that Iran openly regards any re-imposition of sanctions as grounds to withdraw from the agreement, this safeguard is invalidated.

Keeping Arms Embargo For 5 Years Does Not Exist In JCPOA, Only Referenced In UNSCR 2231

Contrary to what many analyses of the JCPOA have reported, there is no mention of keeping the arms embargo for 5 years in the JCPOA. The only time it is mentioned is in UNSCR 2231.[8] UNSCR 2231 also notes, "The provisions of this Resolution do not constitute provisions of this JCPOA."[9] Therefore, violating the Resolution is not the equivalent of violating the JCPOA, and Iran does not necessarily have to wait 5 years before trading arms to stay within the limits of the JCPOA. Deputy Foreign Minister of Iran Abbas Araghchi affirmed this in an interview on July 20, 2015 by stating that even if Iran did not abide by UNSCR 2231 and traded arms before the 5-year limit, such a violation would not be tantamount to violating the JCPOA.[10]

Accumulation Of Enriched Uranium Could Be Greater Than 300 kg, Not All Enriched Uranium Monitored By IAEA

Although the JCPOA stipulates that Iran will only be allowed to have 300 kg of enriched uranium for 15 years, there are loopholes which actually allow for a much greater amount of enriched uranium to accumulate: "Russian designed, fabricated and licensed fuel assemblies for use in Russian-supplied reactors in Iran do not count against the 300 kg UF6 stockpile limit."[11] This provision may seem trivial because it is very clear that the fuel is to be used only in Russian-supplied reactors. However, the following provisions are not as clear.

The JCPOA further states that enriched uranium coming from sources outside Iran "which are certified by the fuel supplier and the appropriate Iranian authority to meet international standards"[12] will not count toward the 300 kg limit and furthermore will be left unchecked by the Joint Commission and/or the IAEA.  The JCPOA does not account for Iran receiving fuel from a country that may not comply with international standards, nor does it account for the fact that Iran itself may not comply with international standards if left unmonitored.

Contrastingly, the JCPOA makes it a point to declare that enriched uranium and products produced within Iran will be closely monitored and inspected, and will not count against the 300 kg limit only in the case that they are declared safe from being converted to UF6.[13] While it is important to monitor the substances coming from within Iran, there is a gaping loophole through which Iran could potentially acquire much more than its designated 300 kg of enriched uranium from outside sources.

TRR Fuel For R&D At Necessary High Level Enrichment Could Be Permitted Before 15-Year Limit, Additional Fuel To Be Made Available To Iran As Needed

The Tehran Research Reactor (TRR) is monitored by the IAEA and has been operating using low-enriched uranium (LEU) since 1993. However, even while under supervision, Iran conducted "undeclared plutonium experiments and polonium production" in the early 1990s, both of which materials are used to develop nuclear weapons. Iran denied allegations of using the materials with the intent to create nuclear weapons and instead claimed to be using them for peaceful purposes.[14] 

Under the JCPOA, Iran is prohibited from producing or conducting R&D on plutonium or uranium metals or their alloys for 15 years.[15] This R&D involves enriching uranium higher than the permitted 3.67%. However, the JCPOA simultaneously presents a loophole to circumvent this provision by saying, "If Iran seeks to initiate R&D on uranium metal based TRR fuel in small agreed quantities after 10 years and before 15 years, Iran will present its plan to, and seek approval by, the Joint Commission."[16]  Iran will also be able to acquire additional fuel for the TRR from the international market as needed.[17] These two loopholes open the way for Iran to continue experiments similar to those conducted in the 1990s, even while under the supervision of the IAEA as before. At the very least, Iran will be able to acquire such necessary material to be able to develop its nuclear capabilities after the termination of the JCPOA.

New Centrifuges Could Proceed To Prototype Stage Prior To 10-Year Limit

Iran will continue to conduct R&D on its centrifuges through computer modeling and simulations, but is not allowed to test any models for 10 years.[18] However, the JCPOA states, "For any such project to proceed to a prototype stage for mechanical testing within 10 years, a full presentation to, and approval by, the Joint Commission is needed."[19] It is thus fully possible for Iran to continue developing its centrifuge capabilities if approved by the Joint Commission. This, in turn, will speed up their nuclear development and serve as preparation for the years after the termination of the JCPOA.

Timeframe For Resolving Issues Of Contention Could Be More Than 30 Days

The JCPOA states that if Iran or any of the E3/EU+3 are not meeting their commitments, the issue can be presented to the Joint Commission and a resolution should be expected within 15 days "unless the time period was extended by consensus." Similarly, if the Joint Commission cannot present a solution, the issue can be referred to the Ministers of Foreign Affairs for a resolution within 15 days unless, again, "the time period was extended by consensus."[20] These time extensions provide ample time for delay, especially if Iran is attempting to prevent inspection of suspicious sites, military or otherwise.

*Y. Carmon is President and Founder of MEMRI.