Iran Deal Limits Inspectors’ Access to Suspicious Sites

Iran has consistently sought to hide its nuclear activities from the international community and repeatedly cheated on past nuclear agreements. Both the Natanz and Fordow enrichment plants were built covertly; Iran has razed and paved over a suspected nuclear testing site at Parchin rather than let inspectors visit it; and Iran continued its nuclear activities after telling the European Union it would suspend them in 2003 and failed to fully comply with the interim Joint Plan of Action that just expired. From the beginning of negotiations with Iran, it has been clear that a good deal would require not just constraining its nuclear program but also putting in place sufficient mechanisms to ensure that its compliance could be monitored and verified.

The final agreement announced on July 14, known as the Joint Comprehensive Plan of Action (JCPOA), does contain significant enhancements to the International Atomic Energy Agency’s (IAEA) current ability to monitor Iran’s nuclear facilities. The deal, President Obama told the nation, “is not built on trust, it is built on verification.” Yet, one critical provision of the JCPOA puts unexpected limitations on inspectors’ access to certain facilities by requiring them to notify Iran first if they suspect a site might be being used for illicit nuclear activity and then undergoing a long process in order to gain entry to that site. This obstacle to inspections is worrying for several reasons:

• Iran could delay inspectors for as long as 54, not the commonly reported 24, days
• The burden of proof is on IAEA
• It chills intelligence sharing
• It discourages long shots
• It does not address a parallel enrichment program
• And it could allow for weaponization activities

Inspections at Declared vs. Suspicious Facilities

Under the JCPOA, Iran and the IAEA are required to draw up a list of “declared facilities,” sites that Iran agrees are part of its nuclear program. Pretty much every facility that we know about today?from the mines where Iran digs up uranium ore, to the factories that build its centrifuges, to the actual enrichment plants?will likely be put on this list. International inspectors would have wide-ranging access to these declared facilities and will be allowed to use modern technologies, including real-time monitoring, to verify that Iran is not violating any of its obligations at these sites.

But a very real concern is that if Iran decides to advance its nuclear program in defiance of its international obligations, as it has many times before, it would do so not at any of the declared and monitored facilities, but sneakily, at a site it would seek to keep hidden from inspectors’ prying eyes. Thus, the merits of JCPOA’s verification measures have to be judged on the basis of the authority it gives inspectors to find and access such potential undeclared, covert nuclear facilities.

In the run up to this deal, bipartisan experts urged that inspectors needed to be able to visit any Iranian facility they wanted to visit without Iran being able to delay or deny their access, a level of inspections commonly labeled “anytime/anywhere.” The basic outline of the deal, announced on April 2, 2015, suggested that the final accord would contain precisely such intrusive measures. “Iran will be required,” it was agreed in the JCPOA’s framework, “to grant access to the IAEA to investigate suspicious sites.”

Process for Inspecting Suspicious Facilities

The final text of the JCPOA, however, contains a very different provision for inspectors’ access to suspected Iranian covert nuclear facilities. Section Q of Annex I to the deal states:

“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.” (Par. 75)

In other words, rather than being able to immediately visit and figure out what is going on at a suspicious site, the IAEA must first tell Iran that it has suspicions, provide it the basis for those suspicions, and ask Iran for clarification. This would then launch a type of arbitration process that could last anywhere between 24 and 54 days before a resolution is reached:

• At first, Iran has two chances over two weeks to try to allay any IAEA concerns with written clarifications of what is happening at the site in question and why it should not worry the IAEA
• If, after two weeks, the IAEA is still unsatisfied with Iran’s answer and still demanding access to the site, it can ask the Joint Commission?the oversight body made up of representatives from the seven countries that negotiated the JCPOA agreement (the United States, the United Kingdom, France, Germany, Russia, China, and Iran) as well as the European Union’s High Representative for Foreign Policy?to take up the issue
• The Commission would then have another week to come up with a proposed solution to the IAEA’s request for access that at least five of the Commission’s eight members agree to
• Whatever is decided by the Commission, which need not be to give the IAEA access, would have to be implemented by Iran within another three days
• Should Iran still resist carrying out the Commission’s recommendation, then the issue would be moved into the Commission’s separate dispute resolution process, which can last another 30 days
• If at the end of that 30-day dispute period, Iran still has not satisfactorily resolved the IAEA’s concerns, the issue would be sent to the U.N. Security Council, which could decide to re-impose sanctions on Iran

Does the Delay in Inspections Matter?

Speaking at a press conference on July 15, President Obama made two basic arguments about why this process for gaining IAEA access to suspicious sites is fully adequate to the goal of preventing a breakout attempt by Iran.

First, the president argued, there will be little chance that Iran could actually have a hidden enrichment facility because the extent of the inspections in place at its declared facilities would make it very hard for Iran to divert materials and equipment, such as uranium. “One of the advantages of having inspections across the entire production chain is that it makes it very difficult to set up a covert program?. And if in fact we’re counting the amount of uranium that’s being mined, and suddenly some is missing on the back end, they got some ‘splainin’ to do.”

Second, he clarified that, even if Iran were trying to conduct covert nuclear activities and even if it were to take the IAEA 24 days to gain access to a suspicious site, that would still be a sufficient window to catch Iran in the act. “The nature of nuclear programs and facilities is such — this is not something you hide in a closet. This is not something you put on a dolly and kind of wheel off somewhere?. And by the way, if there is nuclear material on that site, you know, your high school physics will remind us that that leaves a trace. And so we’ll know that, in fact, there was a violation of the agreement.”

President Obama is right to claim that the entire inspections regime that will be put in place under the JCPOA would make it extremely difficult for Iran to set up a covert facility using materials and equipment from its declared facilities. But such a hybrid enrichment program?one that uses legally-produced materials at an illegal facility?is not the only possible use of a covert facility nor the only reason for concern about the IAEA’s ability to immediately access suspicious sites.

Here is why this provision is troubling:

The real timeline for access is 54, not 24 days. The process for the IAEA petitioning Iran for access to a suspicious site is 24 days long, but there is no immediate penalty for Iran continuing to deny access after that period. If it does so, Iran would then be subjected to a 30-day dispute resolution process before it would be threatened with any consequences for failing to let IAEA inspectors go where they want to.

Burden of proof is on IAEA. The purpose for giving the IAEA authority to investigate suspicious sites is to allow inspectors to quickly and effectively ensure that activities or facilities that might seem irregular are not illicit. If the IAEA already had absolute knowledge of what was going on at these facilities, the inspections would not be needed. This process, however, requires the IAEA to give Iran its evidence for wanting to inspect undeclared facilities in order to gain access to them. But it is precisely to gain such evidence in the first place that inspectors would be seeking access. This provision requires inspectors to have more than suspicions with which to convince Iran to grant them access, rather than placing the burden on Iran to prove that it is not conducting illicit nuclear activities.

Chills intelligence sharing. If the IAEA does have a good reason and any tangible proof for suspecting illicit nuclear activity at an undisclosed site, it will likely have been provided by a national intelligence service, much like all of the evidence the IAEA has for Iran’s past nuclear weapons research. But if intelligence services know that, in order to get access to those sites, the IAEA will first have to turn over everything it knows to Iran, they might worry that this would compromise their sources and methods, leading them to refrain from informing inspectors in the first place.

Discourages long shots. The process for gaining access and potentially punishing Iran for refusing to grant it is one size fits all. The only recourse for Iranian intransigence is going to the UNSC and re-imposing all U.N. sanctions, effectively ending the deal. Given these high stakes, inspectors are going to be deterred from risking a confrontation and escalation with Iran over a site that might be suspicious but they have no good information about. No one would want to cause a diplomatic fracas over a shed. But this is precisely the wrong attitude to be instilling in inspectors. To be effective in preventing Iranian cheating, they need to be as aggressive as possible, motivated to chase down every lead, even the vaguest.

Does not address a parallel enrichment program. President Obama was right to point out that if any uranium or centrifuges go missing from Iran’s inspected facilities for use at a covert site, the IAEA would notice that diversion. But Iran could seek to build an enrichment program that is entirely parallel to and separate from its monitored facilities. It has a long history of skirting export controls to buy components for its nuclear equipment on the international black market. Just last month, U.N. experts reported that Iran “continues to seek key items abroad, preferably from established, high-quality suppliers,” and had been successful in buying U.S.-made equipment from China for use in its uranium centrifuges. Iran could continue these illicit import activities to construct a nuclear facility using material and equipment derived from sources entirely outside of its internationally-monitored supply chain. Similarly, given that JCPOA allows Iran to trade its low-enriched uranium for natural uranium on the world market, it could also seek to smuggle in uranium from outside the country to feed into such a facility. In short, merely ensuring nothing gets diverted from declared facilities is not enough to determine that no illicit activity is happening at potential covert facilities.

Could allow for weaponization activities. Uranium enrichment is not the only illicit activity that Iran could undertake at a covert site. To develop a nuclear weapon, Iran would have to not only have the fissile material to use in the weapon (highly-enriched uranium, for example), but also the device capable of starting a nuclear chain reaction with that fissile material. The IAEA believes that Iran has attempted to master the technology to build a nuclear weapon, but has not yet been able to ascertain how far it got in that process. Getting answers to those questions and restricting Iran from doing any further research into weaponization is one of the JCPOA’s main goals.

A weapons program, however, is much easier to hide than an enrichment plant. Inspections at known enrichment facilities would do little to tip off inspectors about the existence of any possible hidden weapons research labs. And if inspectors did attempt to search such a site, a 54-day head start would give Iran plenty of time to sanitize the facility without leaving behind the radioactive residue that would be the tell-tale sign of an enrichment plant. Moreover, whereas Iran has already mastered uranium enrichment and knows that after 15 years the JCPOA will allow it to build an industrial scale enrichment program, it has seemingly has much further to go in developing a nuclear weapon. In the near term, the quickest and most meaningful progress Iran could make in its nuclear program would come from acquiring the know-how to construct a nuclear weapon by the time the deal’s restrictions on enrichment lapse. Weaponization, therefore, would be the most likely use of any Iranian covert nuclear facility: it would give Iran the biggest nuclear advance and run the smallest risk of detection. Without “anytime/anywhere” inspections such facilities will be difficult to detect, allowing Iran a much easier time of reconstituting its nuclear weapons work, should it decide to do so.