On 1 September, David Albright and Andrea Stricker of the Institute for Science and International Security – the ‘good’ ISIS, according to its Twitter handle – triggered renewed criticism of last year’s Iran nuclear accord by claiming that Iran was secretly granted exemptions to the limits imposed by the deal. The authors suggest this was done in order to allow Iran to be in compliance with the Joint Comprehensive Plan of Action (JCPOA) by ‘Implementation Day’ on 16 January 2016. An ensuing Twitter firestorm was remarkable for the level of thin-skinned derision on show. At the risk of being denigrated as a ‘JCPOA surrogate’, I judge ISIS’s claims to be misleading.

For starters, let’s keep things in perspective. Under the JCPOA, Iran eliminated all of its usable 20%-enriched uranium and 98% of its 3.5% low-enriched uranium (LEU). All Iran is allowed to keep on hand, for 15 years, is 300kg of LEU. This limit and the restrictions on centrifuge numbers and types ensure that Iran cannot ‘break out’ of its non-proliferation obligations and produce fissile material for a nuclear weapon in less than a year.

A key claim by ISIS is that some LEU in waste form was subsequently exempted from these limits. How much is not stated, but judging from the description, it cannot have been more than a small fraction of the allowed amount. My educated guess is that it is probably less than half of 1% of the original stockpile. It has no bearing on the breakout time, because of both the minuteness and the form.

An open question is whether this waste LEU was considered part of the 300kg limit to begin with. Probably not. Most of it is in a large pond of sludge at Natanz and is unrecoverable for all practical purposes. In theory, the LEU could be extracted but doing so would take far too much time and effort. The JCPOA did exclude Russian nuclear fuel from the limit, on grounds that Iran could not use it to break out, so presumably the sludge would have been similarly excluded if attention had been given to the matter.

Because there is no technical definition of ‘stockpile’, at least not in the lexicon of the International Atomic Energy Agency (IAEA), the parties to the JCPOA had to decide it themselves. It is not surprising that they did not do so amidst all the more important matters that were negotiated in the hectic sessions leading up to the 14 July 2015 agreement. The LEU sludge and other small and unanticipated details were left to be determined later by a Joint Commission comprised of the negotiating parties. 

As an aside, some JCPOA critics think it outrageous that Iran is even accorded membership in the Joint Commission that decides such matters. Their prescription – that Iran’s only proper role is to be dictated to – was not remotely possible in any negotiated agreement.

The three other claims by Albright and Stricker appear to misunderstand decisions of the Joint Commission that give no particular benefit to Iran. The excess heavy water that Iran exported to Oman, for holding until it can be sold, was not counted against the 130-tonne limit on heavy-water holdings because once in Oman’s hands it is no longer available to Iran. A purchase of 32 tonnes by the US Department of Energy for use in non-nuclear applications was at fair market value, did not undercut any Canadian supplier and does not presage any ongoing purchase agreement that would legitimise Iranian heavy-water production. Iran would continue to produce heavy water anyway for its own requirements for a reconfigured Araq research reactor. Technical reasons would preclude slowing down production or stopping and restarting the plant.

The ISIS authors also find fault with a Joint Commission decision regarding hot cells that Iran has been using for medical purposes – but what is the problem here? The JCPOA anticipated that Iran would be allowed to operate some hot cells larger than those stated in the agreement. Iran reportedly asked for permission to operate 19 that were already in use. If they were joined together they could be used to separate plutonium, which the JCPOA prohibits, but they are located in several different medical facilities and are hence not a proliferation threat. The IAEA now has access to them, and probably is grateful to know where they all are, since Iran was not previously required to declare hot cells that were not used for nuclear material.

One other claim by ISIS about 20%-enriched uranium in ‘lab contaminant’ is hard to understand, but as New Mexico-based chemist Cheryl Rofer suggests, may be related to trace amounts of this material that inspectors would likely find in laboratories while conducting environmental swipe sampling. If this is what is meant, it would be entirely reasonable to exclude such material from the limits.

It is useful for non-governmental experts such as those at ISIS to ask probing questions about JCPOA implementation. And it is frustrating when full answers are not forthcoming due to the confidentiality built into the agreement. State Department spokesperson John Kirby surely was himself frustrated that confidentiality rules precluded straight answers to some of the questions he was peppered with on 1 September. But to deride him for upholding the rules shows a strange lack of understanding by seasoned experts. Under the JCPOA, decisions by the Joint Commission are kept confidential unless all members agree otherwise. So far, even anodyne matters have not been released.

Iran apparently insists on confidentiality now in order to demonstrate its changed status. It no longer stands accused of violations under Security Council Resolution 2231 (2015), which replaced previous sanctions resolutions. Iran similarly insists on the information it provides to the IAEA being treated with ‘safeguards confidentiality’, the same as for other nations. One may call this a lack of transparency, but such confidentiality is important for the functioning of the safeguards system. Without it, states would be much less willing to cooperate with IAEA inspectors. Confidentiality does not mean complete secrecy, however. The US administration has briefed key members of the US Congress who, to their credit, have honoured the confidentiality requirement.

If decisions that clarified JCPOA limits were to materially affect the breakout times, then they certainly should be made public, or not be made at all. On the other hand, insisting that Joint Commission deliberations be transparent, come what may, would throw a monkey wrench into the gears. Total openness can impede effective diplomacy.

Mark Fitzpatrick is Executive Director, IISS-Americas.

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