Jun 17, 2020
This week, the International Atomic Energy Agency (IAEA) will convene its Board of Governors virtually for the first time in its history. In the weeks leading up to the meeting, much attention has been given to the Agency’s outstanding request to visit two sites in Iran where there may have been undeclared nuclear activity, suspected to have occurred in 2003. These requests are based on the Israeli-obtained “atomic archive” which Mossad allegedly stole from a warehouse outside of Tehran in early 2018. At the same time, to the dismay of European allies, Russia, and China, the past several months have seen the United States charting routes to reimpose UN sanctions on Iran. The US gambit hinges on the legal argument that it is still entitled to the benefits granted to members of the 2015 Joint Comprehensive Plan of Action (JCPOA) – or Iran nuclear deal – under UN Security Council Resolution (UNSCR) 2231 despite having “ceased participation” and violating the agreement by reimposing sanctions on Iran two years ago. These events have mobilised two factions: doves, who are concerned about further provoking Iran and hold a deep attachment to the JCPOA, hoping it could be fully restored one day; and hawks whose aim is to destroy the JCPOA, even if this means inadvertently burning themselves and their allies. Polarised discourse has now reached a point where the E3 – the United Kingdom, France, and Germany – have no choice but being as bold in their public diplomacy as they were in the early 2000s. This was true both when offering an olive branch to Tehran and holding it accountable for its actions. At stake is both the unravelling of UN Security Council legitimacy and IAEA Secretariat authority, which will have repercussions far beyond Iran. The latest developments Last week, the Iranian government stated that it has not denied access to the two sites of interest to the Agency from the “atomic archive”. Iran would first like to come to an understanding on the requests and on the basis of the Agency’s rights of access. There are three issues that have caused Iran to engage cautiously with the Agency. First, Iran is concerned by the attempts to reopen the file on its previous nuclear activities, which it feels was “closed” by the Agency and its Board of Governors in 2015. Second, Iran feels that using information that is not publicly available and verified only by Israel – a third party country that is not a member of the Nuclear Non-Proliferation Treaty (NPT) – undermines the credibility and impartiality of the Agency. Third, Iran worries that this will set a precedent of a never-ending list of requests resulting from these documents, especially as there are likely more sites of interest to the Agency. Iran has told the IAEA that the current status of this issue should be considered a “big leap forward” since it was first raised at the beginning of the year, and warned that if there is an “unconstructive decision” in the Board, a “proportionate reaction” will follow. Iranian officials are being defensive because they feel Iran has cooperated extensively with the Agency, even whilst implementing an unbalanced JCPOA after US sanctions were reimposed two years ago. Iran believes the “serious concern” expressed by the Agency is misplaced as they have allowed widespread Agency inspections (more in 2019 than any other year) and have continued to engage in discussions over the access issues even during the COVID-19 pandemic. It is no secret that the disease has disproportionately affected Iran partially due to US sanctions gravely impacting the Iranian healthcare sector, and a second surge is seemingly underway. While Iran has indicated willingness to negotiate the details of IAEA access, it is hard to say what the strategic calculations are in Tehran. Iran may be stalling if they feel that it is not in their interest to give access to these two particular sites at a time when there is a US administration focused on mobilising any information – both historical and current – to paint a nefarious picture of Iran. Moreover, the wider concerns about the precedence it will set, especially regarding the role of third party information, will particularly animate Russia and others. In turn, it is likely that deliberations will continue into autumn. The doves and the hawks Doves are terrified that the alleged Israeli intelligence on Iran’s early-2000s nuclear activities and Iran’s current reduction in implementation of the JCPOA will converge into Iran being unnecessarily cast as a perennial cheater. They feel that discussing any resolution in the IAEA Board of Governors will provoke Iran for no good reason, especially if it gives the US any paper to put in front of the UN Security Council. They stress the fact that these requests are to answer questions on historical activities and are thus non-urgent, especially during a pandemic. Doves are right to be fearful; the stakes are high. Iran has indicated that if the US succeeds in reimposing UN sanctions, then they will consider the JCPOA dead and will also exit the Nuclear Non-proliferation Treaty (NPT). However, while a successful US attempt to snapback sanctions under UNSCR 2231 depends on many things, an IAEA Board of Governors resolution on these access issues is not one of them. A strong resolution is not likely to be passed with consensus even if Russia and others have indeed been pressing Iran behind-the-scenes to work the issues out with the Agency. Moreover, it would have to clearly state that this issue pertains to Iran’s 1974 Comprehensive Safeguards Agreement and continued application of the Additional Protocol (AP), not the JCPOA. While the reaction of some may be to procedurally and substantively complicate the process to avoid any Board resolution on Iran, pursuing one that provides facts on what is happening – with substantial context – could actually help bring clarity to the situation and undercut the hawks. A helpful resolution from the Board could help explain Iran’s obligations under these two aforesaid measures, de-linking it from discussions on the JCPOA. However, since the provisional, voluntary application of the AP is part of the JCPOA and Iran currently feels that reduction of its implementation of the JCPOA is its legal right, one must be concerned about provoking Iran into suspending implementation of the AP. This would cut down the IAEA’s access in Iran at a time when inspections are key to giving concrete facts and figures on-the-ground. While not completely analogous, this would be a sequel to a movie we have already seen before. In February 2006, Iran suspended implementation of the Additional Protocol two days after the IAEA Board issued a resolution on Iranian non-compliance that finally referred the issue to the UN Security Council after many months of deliberation. What ought to change While all remaining parties to the JCPOA have expressed concern to Tehran, advising that they do not go too far whilst playing with the margins of the JCPOA, not all have publicly rejected the United States’ assertion that it has the right to invoke the snapback of UN sanctions despite having left the JCPOA. Although E3 officials largely agree that current US thinking is a legal and political absurdity that damages the credibility of the UN Security Council and the potential for snapback to be included in any future non-proliferation agreements, they have been rather muted in public whilst EU, Russian, and Chinese leaders have taken a clear stand. Quiet European efforts to save the JCPOA, Intermediate-Range Nuclear Forces (INF) Treaty, Open Skies Treaty, and a number of other military and nuclear transparency agreements have not worked. There is no political alignment that seems to make sense to a US administration that has created a hostile environment that is not receptive to European diplomacy. While the E3 need to walk a fine line with the US, they should join the chorus of voices stating disagreement with the US interpretation of UNSCR 2231 directly to the UN Secretary-General. This would showcase a meaningful commitment to holding all – even friends – accountable in their implementation of agreements, Treaties, and UN Security Council resolutions in good faith. While many hoped that the E3, as well as the Iranians, Russians, and Chinese, could land on a potential intermediate formula (or middle ground) on the JCPOA, there has not been any substantive public output from the Dispute Resolution Mechanism (DRM) process launched by the E3 at the beginning of the year. Although one would hope that Iran’s lack of major operational changes to its nuclear program represents at least a freeze, the present lull seems to be more indicative of Iran’s strategic patience than emblematic of an actual agreement amongst remaining JCPOA parties. If Iran is to return to a phased reduction of its JCPOA commitments, this would severely damage the ability of the E3, Russia, and China to defend the agreement. Thus, the E3 need to come up with a formalised agreement through the DRM process that acknowledges Iran’s right to reduce implementation to a certain extent, calling on them to reverse and stop certain actions. It would be wise for the E3 to concede that Iran had acted in good faith by implementing the JCPOA for an entire additional year before invoking Paragraphs 26/36 and reducing their commitments. This would be the least they could do given the fact that they still have not succeeded in mobilising even a meaningful volume of humanitarian trade with Iran. At the same time, E3 should not be afraid to get its hands dirty and urge the issuance of a resolution that takes note of the facts, provides context to current events, and calls upon all relevant parties to come to a negotiated solution by a particular date in the autumn. This would also help manage one of the issues that surround potential differences between Russia and other, mostly Western states concerning the authority of the Agency in implementing safeguards, especially as a lack of consensus on these issues among board members might inhibit IAEA fact-finding in Iran. Iran must also realise that if they continue to deny access to the two sites, the risks of fanning a perception that “anything could be true and nothing can be proven” could also backfire on them and overshadow their extensive cooperation with the Agency. All in all, while the Iranian nuclear program is seen as significant to regional and global security on its own accord, it is also acting as a sacrificial lamb for strong tides in the international system. If the E3 does not lead with this in mind as it aims to act as a peacemaker between ever-diverging camps, these tides will threaten European credibility in – and the relevance and resilience of – key international organisations and fora. The opinions articulated above represent the views of the author(s) and do not necessarily reflect the position of the European Leadership Network or any of its members. The ELN’s aim is to encourage debates that will help develop Europe’s capacity to address the pressing foreign, defence, and security policy challenges of our time.This article has been republished with permission from the European Leadership Network.