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06/03/15

The Additional Protocol and Beyond: A Legal and Political Point of View

By Francois Nicoulaud (source: LobeLog)


Photo: Parchin military complex

Nobody knows the exact content of the Additional Protocol signed by Iran and the International Atomic Energy Agency (IAEA) in December 2003. That protocol was designed to complement and reinforce the somewhat outdated Safeguards Agreement signed by the same two parties in 1973, which entered into force the following year. Iran did not present the protocol to its parliament for ratification but applied it as a goodwill gesture from 2004 to February 2006, when Tehran was dragged before the Security Council. The text of this protocol has never been published, and we must thus believe Mr. Yukio Amano, the director general of the IAEA, when he tells us that this document allows his agency to investigate all types of Iranian locations, be they civilian or military. We also know that the Iranian Supreme Leader has vehemently forbidden his negotiators to accept a future agreement that permits just any kind of intrusion of the IAEA into military facilities or access by IAEA inspectors to Tehran’s nuclear scientists.

On the other hand, we can assume that the content of the Additional Protocol signed between the IAEA and Iran is not significantly different from the model Additional Protocol, text available on the Agency website. If this is the case, what exactly are the rights and duties of Iran under the provisions of such an agreement? This is a point of major importance, as Iran has accepted, in the Lausanne framework for the future Joint Comprehensive Plan of Action (JCPOA) to be finalized by the end of June-with the “P5+1” group of China, France, Germany, Russia, United Kingdom, and the United States-to voluntarily implement, again, the Additional Protocol signed in 2003, pending ratification by its parliament.

The model Additional Protocol makes it clear that the IAEA has a right of access to any place, site, location, or facility, thus implicitly including military sites. But the grounds on which the Agency can seek such access are precisely defined. They must relate to the presence of nuclear material or nuclear fuel cycle-related research and development activities. In other words, the IAEA inspectors are entitled to look for fissionable material or sources of fissionable material-mainly uranium and plutonium-and activities related to the management of such material in processes such as conversion, enrichment, fuel fabrication, operation of nuclear reactors, and fuel reprocessing. But any activities related to theoretical or basic scientific research are outside the IAEA’s domain. Even under the Additional Protocol, its inspectors are not authorized to enter any building or any office, or open any drawer in search of just any kind of document.

“Possible Military Dimensions”

Strangely enough, activities properly dedicated to the engineering of a nuclear explosive device are not covered by the model Additional Protocol, as long as those activities do not include some use or manipulation of uranium or plutonium. This means, for example, that the IAEA’s repeated requests to inspect a specific building located in the sprawling military complex of Parchin-where it suspects that Iran conducted experiments in the late 1990s with classical explosives capable of triggering a nuclear explosion-do not fall under the scope of the Additional Protocol. And this should also be the case for all the other requests submitted by the Agency on the ground of “possible military dimensions” (PMD) of the Iranian nuclear program.

In the Agency’s jargon, these “possible military dimensions” cover activities conducted for the most part before 2003, the date on which the American intelligence community, followed later by the IAEA itself, considers that Iran halted a clandestine weaponization program by a decision taken at the highest political level. We know that the P5+1, or at least its Western members, are eager to clarify the PMD question. But the above analysis of the scope and limits of the Additional Protocol leads to the conclusion that the protocol does not cover that question. It should be addressed in a separate chapter of the future JCPOA, still to be completed, that is sometimes referred to as “Additional Protocol Plus.”

This should also be the case regarding the IAEA’s request to interview Iranian scientists. The Model Additional Protocol does not specifically consider this type of activity in the definition of “verification activities” that the Agency is entitled to conduct. But it could rightly be considered as part of information-gathering procedures pertaining to the implementation of the basic Safeguards Agreement as well as the Additional Protocol. Even so, such interviews should not blur the borders of these two documents. They should be limited to collecting data related to uranium and plutonium present on Iran territory and to nuclear fuel cycle-related research and development activities. But again, the questions that the IAEA would like to ask in order to clarify the “possible military dimensions” of the Iranian nuclear program go much beyond these definitions and belong rather to an “Additional Protocol Plus.”

Bad Memories and Fears

The provisions contemplated for such an “Additional Protocol Plus” naturally revive unpleasant memories for the Iranians. They were not, of course, directly concerned about the investigations conducted by the United Nations and the IAEA on Iraqi territory after the first Gulf War in search of production sites and stockpiles of weapons of mass destruction. But various reports regarding rough behavior and poor secrecy discipline of some of the UN inspection teams reverberated throughout the region and beyond. The whole episode was perceived as humiliating to any sovereign State.

And there is also the Stuxnet affair, which although not linked to IAEA inspections, certainly resonated negatively as an act of aggression by one or more foreign powers. The introduction by a foreign hand of this highly destructive computer virus in a centrifuge-monitoring program produced by Siemens was made possible by Iran’s interaction with the outside world. Iranians also cannot forget the serial assassinations of their nuclear scientists between 2010 and 2012. There is also no link here with IAEA verification activities, but these murders likely were related to some kind of international cooperation. Three of the victims participated in the Sesame project, a regional scientific venture around a synchrotron based in Jordan and run by nine participants: Bahrain, Cyprus, Egypt, Iran, Israel, Jordan, Pakistan, the Palestinian Authority, and Turkey. Those scientists therefore had to travel to Amman, thus making them easy targets for clandestine collection of information on their residences, personal relationships and other data of interest for an intelligence service. Some observers also consider that, contrary to its previous record, the IAEA has developed somewhat unwholesome relationships in recent years with various intelligence services, relationships that, while allowing the Agency to expand its information base, has also enhanced the risk of its manipulation.

All these elements certainly loom large in the minds of the Iranian negotiators, making them particularly suspicious of any proposal regarding verification requirements that go beyond the limits of their Safeguards Agreement and Additional Protocol. On one hand, the suspicions raised by Iran’s previous infractions of its non-proliferation obligations make it difficult for the IAEA to provide credible assurance about the absence of undeclared nuclear activities on Iranian territory without having at its disposal, at least for a given period of time, some kind of toolbox allowing it to probe into possible weaponization activities. And the issuance of such a clean bill of health is an essential step for creating long-standing confidence between Iran and the international community.

On the other hand, the Iranians fear that such a toolbox could very well turn into a kind of Pandora’s box, paving the way for never-ending and ever more intrusive inquiries. Making things even more difficult, Iranian scientists, engineers, and officers who may have played a role in the covert nuclear program halted in late 2003 have most likely obtained from the Supreme Leader himself some kind of pledge of immunity and personal protection in exchange for their compliance with such a painful decision. As a result, negotiators on both sides must deploy all their imagination and ingenuity in finding a mutually acceptable solution to the highly divisive issue of an “Additional Protocol Plus.”

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About the author:

Francois Nicoullaud's diplomatic career (1964 to 2005) brought him to New York, Chile, Berlin, Bombay, and finally to Budapest and Tehran as French ambassador. In the French Foreign Ministry he was in charge of cultural development as well as non-proliferation issues. He has also served in the Ministry of Interior as a diplomatic advisor and in the Ministry of Defense as First Assistant to the Minister. Since 2005, he has been active as a political analyst in international affairs, concentrating on Iran and the Middle East. He has also authored a book based on his experience entitled, “The Turban and the Rose” (Ramsey, Paris, 2006).

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