MEMRI Inquiry and Analysis | 1178 | July 30, 2015
Critical Points To Consider In Understanding The Iranian Nuclear Deal: Part
II
By: Y. Carmon, and A. Braunstein*
http://www.memri.org/report/en/0/0/0/0/0/0/8683.htm

Introduction

The following analysis is the second in a series which discusses the Iranian
nuclear deal and examines the JCPOA as a legal document from an American
perspective. This analysis will identify and explain various loopholes and
their consequences in the JCPOA. Loopholes are common in the JCPOA and occur
most often in the form of a prohibition or provision set forth in clear
terms, followed by a statement or paragraph either negating or providing a
possible alternative to the stated prohibition or provision. The decision to
negate or to provide a possible alternative is dependent on the Joint
Commission. In making so much dependent on the Joint Commission, the JCPOA
has been turned into a provisional document which stands to be altered by
the Joint Commission at its discretion. This analysis will also draw on
United Nations Security Council Resolution (UNSCR) 2231 which endorsed the
JCPOA for reference. It does not intend to be an overall assessment of the
deal.

Nuclear Activity "Suitable For The Development Of A Nuclear Explosive
Device" Could Be Allowed

If there is any area in the JCPOA where prohibitions should be absolute, it
should be the section regarding the development of nuclear weapons since the
reason for the whole agreement is — as per statements by President Obama and
Secretary Kerry — to prevent nuclear weapons development.[1] However, the
JCPOA provides alternatives even to this provision.

Under the JCPOA, Iran is prohibited from: "Designing, developing,
fabricating, acquiring, or using multi-point explosive detonation systems
suitable for a nuclear explosive device…" as well as from "Designing,
developing, fabricating, acquiring, or using explosive diagnostic systems
(streak cameras, framing cameras and flash x-ray cameras) suitable for the
development of a nuclear explosive device…"[2]

However, the abovementioned provisions prohibiting any activity with systems
suitable for nuclear weapons disappear if the Joint Commission approves the
activities for "non-nuclear purposes" and provided that they are "subject to
monitoring."[3] There are many ways to take advantage of this loophole: for
example, even if the Joint Commission declares that a certain activity is
subject to monitoring, that does not necessarily mean that Iran will allow
the IAEA to monitor said site if it "interferes with Iranian military or
other national security activities."[4]

Re-Imposition Of Sanctions Will Not Apply To Contracts Signed After JCPOA
Implementation, Iran Views Re-Imposition Of Sanctions As Grounds To
Withdraw — Unresolved Contradiction In The JCPOA

The re-imposition of sanctions should Iran violate the JCPOA may be
circumvented. The JCPOA states that if the Security Council decides to
re-impose sanctions, "…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."[5] This
means that Iran can sign as many new contracts as possible between the time
when sanctions are lifted and when they are (potentially) re-imposed,
because those contracts will be grandfathered as long as they are within the
limitations of the JCPOA. This clause effectively weakens the prospect of
re-imposing sanctions: if Iran signs enough new contracts before sanctions
are re-imposed, then those sanctions will be meaningless because they will
not apply to the new contracts.

Iran, for its part, has explicitly stated in the JCPOA that, "…it will treat
such a re-introduction or re-imposition of the sanctions specified in Annex
II, or such an imposition of new nuclear-related sanctions, as grounds to
cease performing its commitments under this JCPOA in whole or in part."[6]
This is a loophole in and of itself: if Iran will withdraw upon
re-imposition of sanctions, then the sanctions are meaningless.

The JCPOA is inherently flawed because of this contradiction regarding
Iran's declared position on sanctions. One of the most important safeguards
that has been stressed by the negotiating team while defending the agreement
is that if Iran violates the JCPOA, sanctions will be quickly re-imposed.
President Obama himself has framed this provision in the context that Iran
will be incentivized to remain within the boundaries of the JCPOA in order
to maintain sanctions relief.[7] However, because of the inclusion in the
JCPOA that Iran openly regards any re-imposition of sanctions as grounds to
withdraw from the agreement, this safeguard is invalidated.

Keeping Arms Embargo For 5 Years Does Not Exist In JCPOA, Only Referenced In
UNSCR 2231

Contrary to what many analyses of the JCPOA have reported, there is no
mention of keeping the arms embargo for 5 years in the JCPOA. The only time
it is mentioned is in UNSCR 2231.[8] UNSCR 2231 also notes, "The provisions
of this Resolution do not constitute provisions of this JCPOA."[9]
Therefore, violating the Resolution is not the equivalent of violating the
JCPOA, and Iran does not necessarily have to wait 5 years before trading
arms to stay within the limits of the JCPOA. Deputy Foreign Minister of Iran
Abbas Araghchi affirmed this in an interview on July 20, 2015 by stating
that even if Iran did not abide by UNSCR 2231 and traded arms before the
5-year limit, such a violation would not be tantamount to violating the
JCPOA.[10]

Accumulation Of Enriched Uranium Could Be Greater Than 300 kg, Not All
Enriched Uranium Monitored By IAEA

Although the JCPOA stipulates that Iran will only be allowed to have 300 kg
of enriched uranium for 15 years, there are loopholes which actually allow
for a much greater amount of enriched uranium to accumulate: "Russian
designed, fabricated and licensed fuel assemblies for use in
Russian-supplied reactors in Iran do not count against the 300 kg UF6
stockpile limit."[11] This provision may seem trivial because it is very
clear that the fuel is to be used only in Russian-supplied reactors.
However, the following provisions are not as clear.

The JCPOA further states that enriched uranium coming from sources outside
Iran "which are certified by the fuel supplier and the appropriate Iranian
authority to meet international standards"[12] will not count toward the 300
kg limit and furthermore will be left unchecked by the Joint Commission
and/or the IAEA. The JCPOA does not account for Iran receiving fuel from a
country that may not comply with international standards, nor does it
account for the fact that Iran itself may not comply with international
standards if left unmonitored.

Contrastingly, the JCPOA makes it a point to declare that enriched uranium
and products produced within Iran will be closely monitored and inspected,
and will not count against the 300 kg limit only in the case that they are
declared safe from being converted to UF6.[13] While it is important to
monitor the substances coming from within Iran, there is a gaping loophole
through which Iran could potentially acquire much more than its designated
300 kg of enriched uranium from outside sources.

TRR Fuel For R&D At Necessary High Level Enrichment Could Be Permitted
Before 15-Year Limit, Additional Fuel To Be Made Available To Iran As Needed

The Tehran Research Reactor (TRR) is monitored by the IAEA and has been
operating using low-enriched uranium (LEU) since 1993. However, even while
under supervision, Iran conducted "undeclared plutonium experiments and
polonium production" in the early 1990s, both of which materials are used to
develop nuclear weapons. Iran denied allegations of using the materials with
the intent to create nuclear weapons and instead claimed to be using them
for peaceful purposes.[14]

Under the JCPOA, Iran is prohibited from producing or conducting R&D on
plutonium or uranium metals or their alloys for 15 years.[15] This R&D
involves enriching uranium higher than the permitted 3.67%. However, the
JCPOA simultaneously presents a loophole to circumvent this provision by
saying, "If Iran seeks to initiate R&D on uranium metal based TRR fuel in
small agreed quantities after 10 years and before 15 years, Iran will
present its plan to, and seek approval by, the Joint Commission."[16] Iran
will also be able to acquire additional fuel for the TRR from the
international market as needed.[17] These two loopholes open the way for
Iran to continue experiments similar to those conducted in the 1990s, even
while under the supervision of the IAEA as before. At the very least, Iran
will be able to acquire such necessary material to be able to develop its
nuclear capabilities after the termination of the JCPOA.

New Centrifuges Could Proceed To Prototype Stage Prior To 10-Year Limit

Iran will continue to conduct R&D on its centrifuges through computer
modeling and simulations, but is not allowed to test any models for 10
years.[18] However, the JCPOA states, "For any such project to proceed to a
prototype stage for mechanical testing within 10 years, a full presentation
to, and approval by, the Joint Commission is needed."[19] It is thus fully
possible for Iran to continue developing its centrifuge capabilities if
approved by the Joint Commission. This, in turn, will speed up their nuclear
development and serve as preparation for the years after the termination of
the JCPOA.

Timeframe For Resolving Issues Of Contention Could Be More Than 30 Days

The JCPOA states that if Iran or any of the E3/EU+3 are not meeting their
commitments, the issue can be presented to the Joint Commission and a
resolution should be expected within 15 days "unless the time period was
extended by consensus." Similarly, if the Joint Commission cannot present a
solution, the issue can be referred to the Ministers of Foreign Affairs for
a resolution within 15 days unless, again, "the time period was extended by
consensus."[20] These time extensions provide ample time for delay,
especially if Iran is attempting to prevent inspection of suspicious sites,
military or otherwise.

*Y. Carmon is President and Founder of MEMRI; A. Braunstein is a Research
Fellow at MEMRI.

[1] President Obama said in an interview with Tom Friedman of The New York
Times on July 14, 2015, "We are measuring this deal — and that was the
original premise of this conversation, including by Prime Minister
Netanyahu — Iran could not get a nuclear weapon. That was always the
discussion. And what I'm going to be able to say, and I think we will be
able to prove, is that this by a wide margin is the most definitive path by
which Iran will not get a nuclear weapon, and we will be able to achieve
that with the full cooperation of the world community and without having to
engage in another war in the Middle East." See link for full text:
http://www.nytimes.com/2015/07/15/opinion/thomas-friedman-obama-makes-his-case-on-iran-nuclear-deal.html

[2] "Iran will not engage in the following activities which could contribute
to the development of a nuclear explosive device: Designing, developing,
fabricating, acquiring, or using multi-point explosive detonation systems
suitable for a nuclear explosive device, unless approved by the Joint
Commission for non-nuclear purposes and subject to monitoring. Designing,
developing, fabricating, acquiring, or using explosive diagnostic systems
(streak cameras, framing cameras and flash x-ray cameras) suitable for the
development of a nuclear explosive device, unless approved by the Joint
Commission for non-nuclear purposes and subject to monitoring." JCPOA, Annex
I, Article T, Paragraph 82. See link for full text:
http://apps.washingtonpost.com/g/documents/world/full-text-of-the-iran-nuclear-deal/1651/

[3] See Footnote 2.

[4] See MEMRI Report 1177:
http://www.memri.org/report/en/0/0/0/0/108/0/8676.htm

[5] JCPOA, Section I, Article C, Paragraph 37. See Footnote 2 for link to
text.

[6] JCPOA, Section I, Article C, Paragraph 26. See Footnote 2 for link to
text.

[7] President Obama said in his initial remarks on the Iran deal on July 14,
2015, "All of this [the specific terms with which Iran will have to comply
to have the sanctions lifted] will be memorialized and endorsed in a new
United Nations Security Council resolution. And if Iran violates the deal,
all of these sanctions will snap back into place. So there is a very clear
incentive for Iran to follow through and there are very real consequences
for a violation." See link for full text:
http://www.nytimes.com/aponline/2015/07/14/us/ap-us-obama-iran-nuclear-talks-text.html?_r=1

[8] UNSCR 2231, Annex B, Paragraph 5.

The fact that the arms embargo is only mentioned here was referenced by
Iran's Deputy Foreign Minister Abbas Araghchi in an interview on Iranian TV
Channel 2 on July 20, 2015 when he said that maintaining the restriction on
arms is only mentioned in UNSCR 2231 because Iran insisted on excluding it
from the JCPOA. See link for text in Farsi:
http://www.isna.ir/fa/news/94042915462/%D9%85%D9%85%D9%86%D9%88%D8%B9%DB%8C%D8%AA-%D9%87%D8%A7%DB%8C-%D8%AA%D8%B3%D9%84%DB%8C%D8%AD%D8%A7%D8%AA%DB%8C-%D9%88-%D9%85%D9%88%D8%B4%DA%A9%DB%8C-%D8%A8%D9%87-%D9%85%D8%AD%D8%AF%D9%88%D8%AF%DB%8C%D8%AA-%D8%AA%D8%A8%D8%AF%DB%8C%D9%84

However, this 5 year limit could also arrive sooner: UNSCR 2231 says the
arms embargo will lift 5 years after Adoption Day or "the date on which the
IAEA submits a report confirming the Broader Conclusion, whichever is
earlier." See link for full text:
http://www.un.org/en/sc/inc/pages/pdf/pow/RES2231E.pdf

[9] UNSCR 2231, Footnote 1, Article C, Paragraph 18. See Footnote 8 for link
to text.

[10] This was stated in the same interview cited in Footnote 8 by Deputy
Foreign Minister Araghchi, who said, "In the Iranian Foreign Ministry
statement, it was said explicitly that Iran does not attach any legitimacy
to any restriction or to any threat, whether past or future, by the Security
Council. If UNSCR 2231 will be violated by Iran, it will be a violation of
the Resolution only, not of the JCPOA. As it happened 10 years ago, we
violated Security Council resolutions, and nothing happened. The JCPOA and
UNSCR 2231 are two separate documents."

[11] JCPOA, Annex I, Article J, Paragraph 59. See Footnote 2 for link to
text.

[12] "Enriched uranium in fabricated fuel assemblies from other sources
outside of Iran for use in Iran's nuclear research and power reactors,
including those which will be fabricated outside of Iran for the initial
fuel load of the modernised Arak research reactor, which are certified by
the fuel supplier and the appropriate Iranian authority to meet
international standards, will not count against the 300 kg UF6 stockpile
limit." JCPOA, Annex I, Article J, Paragraph 59. See Footnote 2 for link to
text.

[13] "Enriched uranium in fabricated fuel assemblies and its intermediate
products manufactured in Iran and certified to meet international standards,
including those for the modernised Arak research reactor, will not count
against the 300 kg UF6 stockpile limit provided the Technical Working Group
of the Joint Commission approves that such fuel assemblies and their
intermediate products cannot be readily converted into UF6." JCPOA, Annex I,
Article J, Paragraph 59. See Footnote 2 for link to text.

[14]
http://www.isisnucleariran.org/sites/facilities/tehran-research-reactor-trr/

[15] "For 15 years, Iran will not engage in producing or acquiring plutonium
or uranium metals or their alloys, or conducting R&D on plutonium or uranium
(or their alloys) metallurgy, or casting, forming, or machining plutonium or
uranium metal." JCPOA, Annex I, Article E, Paragraph 24. See Footnote 2 for
link to text.

[16] JCPOA, Annex I, Article E, Paragraph 26. See Footnote 2 for link to
text.

[17] "All remaining uranium oxide enriched to between 5% and 20% will be
fabricated into fuel for the Tehran Research Reactor (TRR). Any additional
fuel needed for the TRR will be made available to Iran at international
market prices." JCPOA, Section I, Article A, Paragraph 7. See Footnote 2 for
link to text.

[18] JCPOA, Annex I, Article G, Paragraph 43. See Footnote 2 for link to
text.

[19] See Footnote 18.

[20] JCPOA, Section I, Article C, Paragraph 36. See Footnote 2 for link to
text.

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