Mon, Apr 6, 2020

Why a new nuclear deal with Iran is needed now

IranSource by Pierre Goldschmidt

Coronavirus Iran Nuclear Nonproliferation

Iranian President Hassan Rouhani, surrounded by Iranian cabinet members wearing protective masks as a means of protection against the cornonavirus COVID-19, during a cabinet meeting in Tehran, Iran on March 11, 2020. Photo by SalamPix/ABACAPRESS.COM

Throughout his election campaign, US President Donald J. Trump declared that the nuclear pact with Iran was “a disaster,” “the worst deal ever negotiated,” and that if elected president his “Number-One priority” would be to dismantle it. After becoming president, Trump kept his word and on May 8, 2018 the United States unilaterally withdrew from the Joint Comprehensive Plan of Action (JCPOA). 

Were Trump’s criticisms justified? When he stated that the JCPOA—because of its “sunset” clause—does not prevent Iran from eventually acquiring the material to make nuclear weapons, he was correct. His accusation that the JCPOA gave Iran access to a mountain of cash, some of which has been used to produce nuclear-capable missiles, finance militant proxies, and spread violence and chaos throughout the region was likely also accurate.

Was it therefore right to withdraw from the JCPOA and to impose unprecedented economic sanctions from November 2018 onwards, notably by limiting Iranian oil exports to the maximum? As a strong supporter of keeping one’s word and complying with international agreements, I must admit that I surprise myself by posing the question in a serious way.

Clearly the answer depends on the outcome. If it leads Iran to withdraw from the nuclear Non-Proliferation Treaty (NPT)—as Iranian officials have been threatening for some time—or to a major military confrontation, it would be a disaster. On the other hand, if it leads to a better and lasting win-win agreement between the United States and Iran, Trump will be praised for his decision. Developments over the past year are not grounds for much optimism and the coronavirus pandemic has understandably overshadowed other priorities. Yet there is still a chance that this manufactured crisis can be a catalyst for progress on the nuclear front and provide Iran with urgently needed sanctions relief.

The basic outlines of any new agreement are clear: stronger assurances that Iran will not produce nuclear weapons in the long term and a credible guarantee that US sanctions will effectively be lifted as long as Iran complies with its obligations. This new agreement should also provide for a number of measures that are not included in the JCPOA, in particular:

  • That Iran ratify the Comprehensive Nuclear Test-Ban Treaty (CTBT), which should not be a problem since in the JCPOA “Iran reaffirms that under no circumstances will Iran ever seek, develop, or acquire any nuclear weapons.”
  • That Iran place all its nuclear materials and facilities under “irreversible [International Atomic Energy Association] IAEA safeguards.” 
  • That Iran’s parliament ratifies the Additional Protocol to its Comprehensive Safeguards Agreement with the International Atomic Energy Agency without further delay.

Furthermore, as US Assistant Secretary of State for International Security and Nonproliferation Christopher Ford stated in September 2019, any comprehensive deal must include “the requirement for robust IAEA verification and monitoring, including authorities that go beyond Iran’s Comprehensive Safeguards Agreement and the Additional Protocol to include additional access rights.”

This is a position I have long advocated for any state found in non-compliance with its Safeguards Agreement. These extended IAEA access rights would be terminated as soon as the Agency has drawn the “broader conclusion” that there are no undeclared nuclear materials and activities in the state and that its declarations to the Agency are correct and complete. As Ford also said, “after full disclosure of its past weapons program and ceasing its enrichment work, Iran would be entitled and encouraged to enjoy more comprehensively the benefits of peaceful applications of nuclear technology.”

Snapback and the arms embargo

While the Trump administration has pursued a policy of “maximum pressure,” adding more and more sanctions on Iran, the European Union has been trying by a variety of means to save the JCPOA. In January 2018, it created a barter mechanism called INSTEX (Instrument in Support of Trade Exchanges) to allow EU companies to trade with Iran—a mechanism that has just concluded its first transaction. In addition, in early September 2019, France proposed that Europe grant Iran a $15 billion credit line repayable through future oil sales. Nevertheless, the US threat to sanction companies doing business with Iran prompted many major European companies (including Airbus, Total, German and French car companies, Siemens, and Danish ship operator Maersk) to stop trading and investing in Iran.

At the end of September 2019, at the UN General Assembly in New York, French President Emmanuel Macron made a concerted effort to arrange a meeting between Trump and Iranian President Hassan Rouhani. The “Macron plan,” to the best of my understanding, can be summed up in four points:

  1. We must ensure that Iran will never have the nuclear weapon; 
  2. Iran must take concrete steps to help bring an end to the civil war in Yemen;
  3. Iran must guarantee freedom of movement in the Strait of Hormuz;
  4. The sanctions imposed on Iran must be lifted.

Rouhani and Iranian Foreign Minister Javad Zarif responded to Macron that the United States must first publicly promise to lift sanctions. Rouhani said that he was not interested in the type of flashy summit that Trump had with the North Korean leader, Kim Jong-Un.

As is well known, the JCPOA contains a unique dispute resolution mechanism called “snap-back sanctions.” If any of the five permanent members of the UN Security Council (UNSC) plus Germany (the P5+1) considers that Iran is not meeting its commitments under the JCPOA, and that the issue constitutes a significant non-performance, it could, after several attempts at conciliation at different levels of power, refer the matter to the Security Council. The UNSC would then have to decide if it confirms the renewal of the lifting of sanctions adopted under former legally binding UNSC resolutions. If in such a case the United States uses its veto right, all such resolutions would instantly become applicable again. 

Until recently the EU, in order to save the JCPOA, has resisted engaging the “snap-back” procedure considering that Iran’s breaches were not “significant” and could still be reversed. However, that became impossible after Iran operated a cascade of sixty IR-6 centrifuges at Natanz, started the development of more efficient IR-9 centrifuges, and began enriching uranium in the underground Fordow facility.

Therefore, on January 14, 2020 the EU triggered the JCPOA dispute resolution mechanism while making clear that they would not rush to bring the matter to the Security Council. However, adding to the difficulties facing the EU are some time-sensitive provisions in the agreement itself, including the scheduled lifting of sanctions in October 2020 on Iran’s acquisition or sale of heavy conventional weapons and missiles. If the EU wants to avoid this, it will have in the coming months to refer the matter to the Security Council for a vote against the further suspension of sanctions under previous UNSC resolutions.

Such a course of action would not be without risks. Russia and China may well consider that Iran’s violations of the JCPOA were the consequence of the US unilateral withdrawal from the agreement and decide not to implement previous legally binding UNSC sanctions against Iran. This would create a damaging precedent, which could irreversibly undermine the credibility and effectiveness of the UNSC in preventing an aggravation of “any threat to the peace, breach of the peace, or act of aggression” as provided under Chapter VII of the UN Charter.

In my view, there is thus no alternative to behind the scenes good faith negotiations with all the parties to hammer out a new agreement.

The best guarantee that Iran’s nuclear program is and will remain exclusively peaceful would be for Iran to adopt the so-called “nuclear gold standard”—a legally binding obligation to forswear enrichment and reprocessing technology. Iran, however, has repeatedly stated that it will never give up what it considers its right under the NPT to enrich uranium.

It might be possible to find an acceptable formula to achieve a similar goal without Iran having to formally renounce this right. Iran could, for example, commit to suspend all nuclear fuel-cycle activities and mothball its conversion and enrichment facilities as long as it is able to supply its nuclear power plants with fresh fuel elements without undue delay and at a fair market price. In exchange, the United States would commit to not restrain Iran’s export of gas and oil under any pretext while retaining the right to impose other sanctions for reasons unrelated to Iran’s nuclear program. In order to avoid a repetition of the unilateral withdrawal from the JCPOA by the United States, the new agreement might have to take the form of a treaty approved by the US Senate.

During negotiations, Iran could implement confidence-building measures such as reducing its stockpile of enriched uranium to the level and grade required by the JCPOA and closing the Fordow enrichment facility. In return, the United States could partially suspend sanctions limiting Iranian oil exports. These measures are all the more achievable because they are easily reversible.

The “New JCPOA” would have to be strictly limited to Iran’s nuclear program. Other points related to Iran’s foreign policy and military involvement in the region and ballistic missiles could be the subject of a separate political agreement possibly involving other partners such as Saudi Arabia.

If the Trump administration refuses to negotiate a new nuclear agreement as long as Iran doesn’t commit to stop supporting Hezbollah, get out of Syria, retract from Iraq, and end human rights abuses, there will be no “New JCPOA” and the situation will only get worse. On the contrary, if a “New JCPOA” can be concluded, Trump would be able to say that he did better than former President Barack Obama and that he was therefore right to withdraw from the original agreement.

Such an outcome could be seen as a major political victory for Trump—which may be an inducement for him to show some flexibility in the negotiations. A “New JCPOA” would certainly require support by other permanent members of the UN Security Council at a time when there is a great deal of tension among some of these nations. There is, however, one thing on which they can all agree: they do not want to see another country follow North Korea’s example of withdrawing from the NPT and getting the bomb.

For any negotiation to succeed, the outcome must be perceived as a win-win for both parties, and both sides must be willing to negotiate simultaneously and in good faith. Unfortunately, these conditions are not being met today. To reach that stage will require a concerted effort from the EU, Russia, and China to convince the United States and Iran that it is in everyone’s best interest not to miss any opportunity to make progress in resolving the Iranian nuclear crisis now.

Pierre Goldschmidt is a former Deputy Director General of the International Atomic Energy Agency (IAEA) and Head of the Department of Safeguards.