It’s a Farce

It will be portrayed as a high stakes political drama but it’s a farce. There will be massive efforts to sway congressmen and senators voting on the Iran Deal formally known as the Joint Comprehensive Plan of Action (JCPOA). But the already agreed upon procedure suggests that the outcome is in the bag. Congress has 60 days to vote on the agreement. If it is voted down, President Obama can then veto their resolution. In which case it goes back to Congress and it takes a 2/3 vote in both houses to override the veto. President Obama needs only 1/3 of the votes +1 in only one of the two Houses to sustain his veto. Success for sustaining the veto was almost guaranteed by the behavior of PM Netanyahu. By arranging to speak to Congress behind the back of President Obama, Netanyahu antagonized many Democrats, made Israel a partisan issue and seriously weakened the bipartisan support for Israel that has obtained since 1948. That was a serious mistake.

However, because passage of the JCPOA is structured as an executive agreement rather than a treaty, it can be annulled by the next President without going to Congress. Obviously it will be a major campaign issue.

Before getting to the provisions of the text, there are two non-textual arguments that should be addressed (1) unfreezing of Iranian assets will provide the means for Iran to pursue its expansionist (trouble making) ways – supporting the Assad regime in Syria, Hezbollah in Lebanon and Syria and the Houthis in Yemen. (2) Ten years is the blink of an eye in a Middle East where states have thousand year histories and pursue their interests over centuries.

Making 100 billion dollars available to Iran is a major issue. It is the strongest argument against removing sanctions. Now is the time to decide on how to deal it. Now is the time to press the US to enforce its red lines in Syria and attack the Assad regime when it uses chemical weapons. Now is the time to press the US to explicitly commit to helping Israel destroy all arms provided by Iran to Hezbollah. Such actions (not words) by the US would help to dispel the legitimate concerns of Sunni Muslim countries and Israel.

Is an agreement that keeps the Iran time line for enriching enough uranium for a bomb at one year a significant achievement? Yes – if it is implemented. Remember that, in spite of sanctions, Iran had already enriched enough uranium to be able to produce a bomb in 10 weeks before the negotiations started. In that context a 10 year freeze is very significant.

The idea that 10 years is just the blink of an eye in today’s Middle East is nonsense. Consider the history of the Middle East in the last century. It was just 97 years ago that the Ottoman empire was defeated and the British and the French carved it up to create new countries (spheres of influence) in the Middle East. We are still suffering the consequences of their cartography. It was just 67 years ago that the State of Israel came into being. It was just 60 years ago that the British and US governments overthrew the democratically elected Mossadegh regime in Iran. It is just 40 years since the Middle Eastern countries took control of their oil resources. It is less than 5 years since the Tunisian Mohamed Bouazizi set himself on fire and ignited the ‘Arab Spring’ for better or (mostly) for worse. Ten years is an eternity in today’s Middle East. President Obama is betting that Iran will change for the better if sanctions are removed.

As for analyzing the actual agreement, I am at a disadvantage compared to the pundits who passionately condemn or praise it, as I actually have read the JCPOA. By and large, with some serious exceptions, the JCPOA is consistent with the US interpretation of the Lausanne Framework Agreement. Please read the JCPOA before expressing your opinion on it!

In our previous analysis of what the agreement was likely to be (see the June 25 posting titled ‘Understanding the Iran Deal’), we noted the importance of stopping plutonium production at the Arak reactor. Remember that plutonium can be used for bombs and can be separated chemically, without any need for centrifuges. This agreement does a very good job in that respect. Section 8 of the JCPOA states that All spent fuel from Arak will be shipped out of Iran for the lifetime of the ‘reactor.’ and Section 10 states that ‘There will be no additional heavy water reactors or accumulation of heavy water in Iran for 15 years. All excess heavy water will be made available for export to the international market.’

Concerning enriched uranium, the agreement follows the US interpretation of the Lausanne Framework. Section 7 of the JCPOA reads, ‘During the 15 year period, and as Iran gradually moves to meet international qualification standards for nuclear fuel produced in Iran, it will keep its uranium stockpile under 300 kg of up to 3.67% enriched uranium hexafluoride (UF6) or the equivalent in other chemical forms.’

That is a major reduction from the 10,000 kilos that Iran had before the negotiations started. In fact Iran has already begun to dilute it’s 235U holdings enriched above 3.67%.

We also wrote, ‘What is needed to make it a better deal? Effective enforcement! The issues are (1) a verification mechanism that provides easy access by the IAEA to all nuclear facilities in Iran, declared or undeclared and (2) an automatic mechanism for the re-imposition of sanctions.’ The JCPOA falls short in providing easy access to all sites declared or undeclared. On the other hand, the mechanism for the re-imposition of sanctions is better than I had anticipated.’

In the US administration’s sales campaign for the deal, the mantra for access was ‘anywhere, anytime’. However, in Annex I of the JCPOA, access is not so straightforward. ‘Anywhere, anytime’ becomes a 24 day delay. Sections 75 and 78 of Annex 1 read as follows:

75. In furtherance of implementation of the JCPOA, if the IAEA has concerns regarding undeclared nuclear materials or activities, or activities inconsistent with the JCPOA, at locations that have not been declared under the comprehensive safeguards agreement or Additional Protocol, the IAEA will provide Iran the basis for such concerns and request clarification.

78: If the absence of undeclared nuclear materials and activities or activities inconsistent with the JCPOA cannot be verified after the implementation of the alternative arrangements agreed by Iran and the IAEA, or if the two sides are unable to reach satisfactory arrangements to verify the absence of undeclared nuclear materials and activities or activities inconsistent with the JCPOA at the specified locations within 14 days of the IAEA’s original request for access, Iran, in consultation with the members of the Joint Commission, would resolve the IAEA’s concerns through necessary means agreed between Iran and the IAEA. In the absence of an agreement, the members of the Joint Commission, by consensus or by a vote of 5 or more of its 8 members, would advise on the necessary means to resolve the IAEA’s concerns. The process of consultation with, and any action by, the members of the Joint Commission would not exceed 7 days, and Iran would implement the necessary means within 3 additional days.’

As modern instrumentation can pick up small amounts of radioactivity, the 24 day hiatus is not fatal but it is a weakness. For example, the isotopes of the noble gas Xenon, 133Xe and 135Xe fall near the peak in yields of fission products for both 235U and 239Pu and their radiations are signatures of fission. The half life of 135Xe is 9.1 hours and the half life of 133Xe is 5.2 days. The passage of 24 days would make it harder to detect small amounts of these isotopes – especially the 135Xe. This delay hampers implementation of the Additional Protocol of the IAEA Safeguards agreement. Note that Section 75 does provide for access to undeclared sites The eight members of the Joint Commission are China, the EU, France, Germany, Iran, Russian Federation, the United Kingdom and the United States. The resolution mechanism in these cases looks quite reasonable. Even if China, Russia and Iran vote to oppose an inspection for undeclared material, it could be approved by the other five members of the Joint Commission.

The mechanism for the re-imposition of sanctions by the UN also looks quite reasonable as discussed in sections 36 and 37 of the main text.

36: If Iran believed that any or all of the E3/EU+3 were not meeting their commitments under this JCPOA, Iran could refer the issue to the Joint Commission for resolution; similarly, if any of the E3/EU+3 believed that Iran was not meeting its commitments under this JCPOA, any of the E3/EU+3 could do the same. The Joint Commission would have 15 days to resolve the issue, unless the time period was extended by consensus. After Joint Commission consideration, any participant could refer the issue to Ministers of Foreign Affairs, if it believed the compliance issue had not been resolved. Ministers would have 15 days to resolve the issue, unless the time period was extended by consensus. After Joint Commission consideration – in parallel with (or in lieu of) review at the Ministerial level – either the complaining participant or the participant whose performance is in question could request that the issue be considered by an Advisory Board, which would consist of three members (one each appointed by the participants in the dispute and a third independent member). The Advisory Board should provide a non-binding opinion on the compliance issue within 15 days. If, after this 30-day process the issue is not resolved, the Joint Commission would consider the opinion of the Advisory Board for no more than 5 days in order to resolve the issue. If the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant nonperformance, then that participant could treat the unresolved issue as grounds to cease performing its commitments under this JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes significant non-performance.

37. Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise. In such event, these 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. The UN Security Council, expressing its intention to prevent the reapplication of the provisions if the issue giving rise to the notification is resolved within this period, intends to take into account the views of the States involved in the issue and any opinion on the issue of the Advisory Board. Iran has stated that if sanctions are reinstated in whole or in part, Iran will treat that as grounds to cease performing its commitments under this JCPOA in whole or in part.

The phrase ‘UN Security Council, in accordance with its procedures’ means that a veto by any permanent member of the Security Council is sufficient to reimpose sanctions. Note that the UNSC is voting on a measure to continue the lifting of sanctions.

Annex V of the JCPOA, the implementation plan, discusses the sequence of events. First comes Finalization Day – the day when the JCPOA is finished. Sections 3, 4 and 5 read

3. Promptly after the conclusion of the negotiations of this JCPOA, the proposed UN Security Council resolution referred to in Section 18 of this Annex will be submitted to the UN Security Council for adoption without delay.

4. The EU will promptly endorse the UN Security Council resolution referred to above through Council

5. Iran and the IAEA will start developing necessary arrangements to implement all transparency measures provided for in this JCPOA so that such arrangements are completed, in place, and ready for implementation on Implementation Day.

So it is not a surprise to anyone who has read the JCPOA that the UNSC and the EU endorsed the agreement before the US Congress acted.

Next in the sequence is Adoption Day.

6. Adoption Day will occur 90 days after the endorsement of this JCPOA by the UN Security Council through the resolution referred to above, or at an earlier date by mutual consent of all JCPOA participants, at which point this JCPOA comes into effect.

7. Beginning on Adoption Day, JCPOA participants will make necessary arrangements and preparations, including legal and administrative preparations, for the implementation of their JCPOA commitments.

8. Iran will officially inform the IAEA that, effective on Implementation Day, Iran will provisionally apply the Additional Protocol, pending its ratification by the Majlis (Parliament), and will fully implement the modified code 3.1.

Implementation Day then follows. The date is not specified but it should be near the first of next year.

14. Implementation Day will occur upon the IAEA-verified implementation by Iran of the nuclear-related measures described in paragraph 15 below, and, simultaneously, the E3/EU+3 taking the actions described in paragraphs 16 and 17 below, and with the actions described in paragraph 18 below taking place at the UN level in accordance with the UN Security Council resolution.

Then we have Transition Day when most of the restrictions are removed including those on ballistic missiles. In principle, it could occur long before eight years have passed if the IAEA made an appropriate declaration. This could be a serious loophole.

19. Transition Day will occur 8 years from Adoption Day or upon a report from the Director General of the IAEA to the IAEA Board of Governors and in parallel to the UN Security Council stating that the IAEA has reached the Broader Conclusion that all nuclear material in Iran remains in peaceful activities, whichever is earlier.

Finally – Termination Day – 10 years after Adoption Day.

Again, please read the JCPOA before expressing your opinion on it!