By Orde F. Kittrie – While US Secretary of State John Kerry pushes back hard against Senate threats to pass a new Iran sanctions bill, his negotiators are hopefully using that same Senate threat to extract a better deal from Tehran.
Press reports make it clear that the interim deal will bring Iran into compliance with none of its key international legal obligations as spelled out in applicable Security Council resolutions. These resolutions explicitly require Iran to verifiably: “suspend” all enrichment-related activities; “suspend” work on “all heavy water-related projects” including the construction of the Arak heavy water reactor; “provide such access and cooperation as the IAEA requests” to resolve IAEA concerns about Iran’s research into nuclear weapons design; and “not undertake any activity related to ballistic missiles capable of delivering nuclear weapons.”
It was unrealistic to think that an interim deal would bring Iran into compliance with all of its key preexisting legal obligations. But it seems surprising that Iran is to receive billions of dollars in sanctions relief in exchange for compliance with none of them.
As President Obama said at a press conference, the goal of “this short-term, phase-one deal” is to be “absolutely certain that while we’re talking with the Iranians, they’re not busy advancing their program.” Unfortunately, the draft interim deal, as described in press reports, also falls far short of what the President set as the goal of this phase-one deal.
If the interim deal is to meet President Obama’s declared objective for it, it must include stronger provisions relating to enrichment, Iran’s heavy water reactor at Arak, and Iran’s research into nuclear weapons design.
With regard to enrichment, if the interim agreement is to make “absolutely certain that while we’re talking with the Iranians, they’re not busy advancing their program,” it should include the following provisions additional to those reportedly included in the draft interim agreement: halt all Iranian enrichment; verifiably prohibit Iran from manufacturing additional centrifuges; require Iran to adhere to the Additional Protocol; and require Iran to accept and immediately and verifiably implement its existing legal obligation to notify the IAEA of any enrichment or other nuclear facility it possesses or begins constructing.
The draft interim agreement reportedly fails to require Iran to suspend enrichment of uranium to 3.5 percent. It also reportedly places no constraints on Iran’s continued manufacturing of centrifuges.
The draft interim agreement would thus enable Iran to, at the end of the six month interim agreement period, possess both a larger stockpile of uranium enriched to 3.5 percent and a larger number of manufactured centrifuges than it does today. These advances would put Iran in position to much more quickly produce far more weapons grade uranium than it can today. Tehran would be significantly closer to the point at which it is able to dash to produce enough weapons-grade uranium for one bomb so quickly that the IAEA or a Western intelligence service would be unable to detect the dash until it is over.
Nor, according to press reports, does the draft interim agreement ensure, or even enhance, Western or IAEA ability to detect any covert Iranian enrichment facilities. Estimates of Iran’s proximity to undetectable breakout assume that Iran only has the capacity to enrich uranium in its known sites at Natanz and Fordow, both of which were built by Iran in secret.
The IAEA says Iran has a legal obligation, under modified Code 3.1 of the IAEA-Iran safeguards agreement, to notify the IAEA if Iran begins construction of a nuclear facility, including an enrichment facility. Iran is refusing to comply. An interim agreement should commit Iran to notifying the IAEA of any nuclear facility it begins or possesses.
Iranian adherence to the Additional Protocol would further decrease the risk of a covert Iranian enrichment facility by enhancing the IAEA’s ability to detect and inspect any such covert facilities. The November 2013 IAEA report emphasizes that the IAEA “will not be in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran unless and until Iran provides the necessary cooperation with the Agency, including by implementing its Additional Protocol.”
Similarly dangerous gaps are present in the draft interim deal’s handling of Iran’s heavy water reactor at Arak and Iran’s research into nuclear weapons design.
The draft interim deal reportedly includes Iran continuing construction of its heavy water reactor at Arak, while committing to not bring it online for the duration of the six month interim deal period. By continuing construction of the Arak heavy water reactor, even with a commitment not to produce additional fuel assemblies for six months, Iran will continue to advance towards creating plutonium. A senior French official was recently quoted as saying, “As soon as Arak is in operation, Iran can make one nuclear bomb per year, according to our calculations . . . It is absolutely essential that it should not become active and it is essential that it must be frozen as part of any interim accord.”
The only way to make “absolutely certain that while we’re talking with the Iranians, they’re not busy advancing their program” at Arak is for Iran to verifiably halt all construction, as Iran is already required to do by several UN Security Council resolutions.
Meanwhile, the draft interim agreement reportedly does nothing at all to make “absolutely certain that while we’re talking with the Iranians, they’re not busy advancing” their prohibited research into how to design and deliver a nuclear weapon.
IAEA reports have provided extensive information about such Iranian research. 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 the IAEA 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.”
Unfortunately, neither the draft interim agreement nor the November 11, 2013 Iran/IAEA “Joint Statement on a Framework for Cooperation” provide the IAEA with any additional access or cooperation to make “absolutely certain that while we’re talking with the Iranians, they’re not busy advancing” their prohibited research into how to design and deliver a nuclear weapon.
Unless these gaps are closed, the interim agreement will make absolutely certain that while we’re talking with the Iranians, they will be busy advancing their illicit nuclear program. Less quickly than in the absence of such an agreement, but advancing it nonetheless.
Orde F. Kittrie is a professor of law at Arizona State University and a senior fellow at the Foundation for Defense of Democracies. He previously served for ten years at the U.S. State Department, including as lead attorney for nuclear affairs, in which capacity he participating in negotiating several U.S.-Russian nonproliferation agreements. A more detailed version of this analysis is available for download at http://ssrn.com/abstract=2356923.