CommentaryUnder the JPOA, Iran had committed to halting uranium enrichment to 20 percent (the key source of worry for the E3+3, in as much as 20 percent enriched uranium can be easily converted into the levels of enrichment required for weapons-grade uranium) and restricting enrichment to 5 percent (for use as fuel). Iran also reaffirmed (not for the first time) that it would not seek or develop nuclear weapons. Iran also consented to the IAEA enhanced monitoring pursuant to the JPOA. In return the E3+3 was supposed to ease back on certain financial and economic sanctions imposed against Iran during the implementation of each step of the enrichment program. The E3+3 and Iran, all parties to the JPOA, were responsible for implementation and completion of the JPOA terms. The IAEA was responsible for verification of nuclear-related measures, in addition to its monitoring activities under its Comprehensive Safeguards Agreement (“CSA”) and its Joint Statement on a Framework for Cooperation Agreement with Iran.
In November 2014 the JPOA was extended until June 30, 2015 in order to allow the E3+3 and Iran to agree on the comprehensive long-term plan provided by the JPOA and end the decade-long impasse between Iran and the West. In the meantime, the E3+3 issued statements assuring the international community that both JPOA parties had implemented their respective commitments without any violations or impediments.
It is therefore surprising that Iran is alleged to fail to comply with the JPOA. ISIS referred to the IAEA report of November 2014 and claimed that Iran was feeding uranium hexafluoride gas (“UF6”) into the IR-5 centrifuge at the Pilot Fuel Enrichment Plant at Natanz, in violation of its commitment to freeze its centrifuge activities at the plant during the period of the JPOA. The IAEA report points out that Iran did not suspend all of its enrichment-related activities, violating IAEA Board of Governors resolutions and UN Security Council resolutions. In relation to activities on the plant, it points out that Iran has been “intermittently feeding natural UF6 into the IR-5 and IR-6 centrifuges.” The institute relies on this information to claim Iran violated its obligations under the JPOA.
In addition, the latest IAEA report [PDF] of February 19, 2015 points out that two measures (relating to initiation of high explosives and neutron transport calculations) of the Cooperation Agreement third step remain outstanding despite several reminders made to Iran. Importantly, these obligations arise out of the cooperation agreement and not the JPOA. Therefore, Iran is not violating the JPOA.
The IAEA also urges Iran to cooperate to assure the peaceful nature of its nuclear program, especially with respect to undeclared nuclear material and activities, as it is still unable to “conclude that all nuclear material in Iran is being used for peaceful activities.”
This article considers two issues: whether Iran violated the JPOA terms and whether the IAEA has a mandate to monitor and verify if Iran uses its nuclear material solely for peaceful purposes.
I believe Iran does not violate JPOA terms. To analyze if an act violates the JPOA, it is necessary to look at the JPOA terms. Iran is claimed to feed natural UF6 into the advanced IR-5 centrifuge. Under the JPOA terms, Iran has agreed that “it will continue its safeguarded R&D practices including its current enrichment R&D practices, which are not designed for accumulation of the enriched uranium.” The IAEA report of November 11, 2014 mentions in paragraphs 25 and 26 that Iran has been feeding natural UF6 into the IR-5 centrifuge and IR-6 centrifuge as single machines, in the R&D area of the Natanz plant. However, no low-enriched uranium has been withdrawn as the product and the tails have been recombined at the end of the process. Since Iran has not been enriching uranium in the advanced centrifuge (and therefore no question of accumulation arises), the act of feeding the centrifuge with natural UF6 cannot be construed as a violation of the JPOA terms.
In addition, the alleged activity is being carried out in the R&D area of the Natanz plant. According to the JPOA, Iran is entitled to continue “its safeguarded R&D practices including its current enrichment R&D practices,” which implies that Iran could enrich uranium (up to 5 percent) for R&D purposes as long as it does not use such practices to accumulate enriched uranium. Furthermore, Iran has agreed in the JPOA not to make further advances of its activities at the Natanz Fuel Enrichment Plant, and it must be appreciated that no such undertaking has been provided for the Natanz plant R&D facility.
Moreover, the Natanz plant is a declared facility under Safeguards verification with IAEA. Since the Natanz plant facility is subject to IAEA monitoring, the IAEA provided no evidence to substantiate that the above activity could be linked to a military diversion or to divert nuclear material for creating weapons grade uranium. It is relevant that the IAEA itself has concluded that the plant facility has operated as Iran declared in the relevant design information questionnaire. Interestingly, the IAEA report of February 19, 2015 does not mention feeding the IR-5. Thus, Iran is complying with the conditions of the JPOA extension. Having said that, the right to R&D activities is available to Iran under the JPOA.
The JPOA contains words like “voluntary” and “would undertake,” which seem to refer to the legally non-binding character of the JPOA. Notwithstanding the arguments referring to the JPOA, the right to use nuclear energy is available to Iran under a legally binding international treaty. Iran is a Non-Nuclear-Weapon State under the Nuclear Non-Proliferation Treaty and thus has the inalienable right under Article IV(1) to “develop research, produce and use nuclear energy for peaceful purposes without discrimination,” subject to Iran not manufacturing nuclear weapons, and entering into a safeguards agreement with the IAEA. Iran has signed a CSA with the IAEA and so far, the IAEA has not provided any credible evidence to prove that Iran has manufactured a nuclear weapon. Therefore, Iran has the right to use nuclear energy for peaceful purposes.
Since the language of Article IV(1) uses the terms “develop research,” “produce” and “use,” it can be argued that the process of “producing” nuclear energy could include the process of enrichment of uranium, as it is one of the processes involved in producing nuclear energy. Most of the 500 commercial nuclear reactors in the world use uranium enriched in isotope U-235 for producing fuel. Natural uranium consists of two isotopes, U-235 (0.7 percent) and U-238 (99.3 percent). The process of isolating the 0.7 percent U-235 to about 5 percent U-235 (relative to U-238) is referred to as enrichment. Most commercial nuclear reactors are light water reactors and require 5-percent enriched U-235 for its fuel. Therefore, in view of Article IV(1), the word “produce” can be arguably interpreted, in its ordinary meaning, according to the general principles of treaty interpretation, to include uranium enrichment.
Therefore, Iran has not violated the terms of the JPOA by feeding the IR-5 centrifuge in the Natanz PFEP R&D facility with natural UF6.
The other issue seems to be the IAEA observations that they are not sure whether Iran uses nuclear material solely for peaceful activities. The question is whether the IAEA has the mandate to make this determination regarding “all” nuclear material in Iran. I believe there is no legal mandate for the IAEA to determine whether all the nuclear material in Iran is being used for peaceful purposes. Under the CSA, the IAEA has the authority to verify declared materials and facilities for the exclusive purpose of verifying the non-diversion of fissile materials for military purposes. Under the JPOA, the IAEA has the authority to conduct enhanced monitoring activities at declared facilities. Finally, under the cooperation agreement, the IAEA has the authority to investigate declared sites in the Annex to the cooperation agreement.
It is submitted that the JPOA and the cooperation agreement increase the scope of the IAEA’s verification mandate but still does not provide the authority to the IAEA to make a determination about all nuclear material in Iran. Besides, considering Iran did not ratify Additional Protocol, the IAEA does not seem to have a legal mandate to go beyond verifying the accuracy of the declared material and facilities, and therefore, their observations about not being able to conclude that all nuclear material in Iran is being used for peaceful purposes have no legal basis.
It is worth noting the IAEA submitted no evidence to justify its suspicions of Iran’s diversion of enriched uranium towards creating weapons of mass destruction. Furthermore, it must be appreciated that the IAEA and the parties to the JPOA have not alleged any violation by Iran under the JPOA. This being the case, it is puzzling that the allegation of non-compliance with the JPOA is floating around, courtesy of the institute [PDF], and not the IAEA as indicated in various articles.
In conclusion, the JPOA actually recognizes the right of Iran to enrich uranium for use in peaceful purposes, and therefore, Iran has not violated the JPOA terms by feeding UF6 to an IR-5 centrifuge in the R&D facility at Natanz. There is absolutely no evidence to the contrary (as to purpose), and as a consequence, the allegation by the Institute, riding on the IAEA report, seems to be unwarranted. In fact, in view of the CIA whistleblower revelations in a recent case in US court, the veracity of evidence provided by intelligence agencies, including those of the US, regarding alleged clandestine nuclear activities in Iran during the period leading to the imposition of sanctions by the UN Security Council has been tainted beyond doubt.
Saroj Nair is a student of the LLM program in Human Rights at the University of Hong Kong Faculty of Law. She received her law degree from the Government Law College of the University of Mumbai, and an LLM in Criminology from the University of Mumbai. She also has a Bachelors degree in Chemistry and a Masters degree in Business.
Suggested citation: Saroj Nair, IAEA, Iran and the Joint Plan of Action: A Toast to Genuine Diplomacy or Survival of the (Politically) Fittest, JURIST – Student Commentary, Mar. 14, 2015, http://jurist.org/student/2014/12/saroj-nair-iran-nuclear-program.php.
This article was prepared for publication by Christina Alam, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to her at commentary@jurist.org
