A Significant development has received scant attention in mainstream media. One Democratic senator opposes the Joint Comprehensive Plan of Action (JCPOA) while another supports it and while both are unhappy about the deal’s obvious flaws, both intend to introduce constructive legislation they claim will strengthen the deal.
Democratic Senator Benjamin L. Cardin (Maryland), a ranking member on the Foreign Relations Committee, announced in an oped in the Washington Post that he will oppose the agreement and former Democratic Campaign Chief, Senator Michael Bennet (Colorado) declared in a statement to the Denver Post that he will support it, but that he nevertheless backs Cardin’s effort.
In his oped, Senator Cardin said that the new legislation he will introduce addresses significant concerns raised by nearly all members of Congress. It will include expedited consideration of sanctions if Iran is found committing acts of terrorism against the U.S., or if its terrorist-supporting activity increases.
It is encouraging to see that, unlike so many others, these senators have addressed the issues, avoiding the political pressures, demagoguery and hateful rhetoric that has become evident on both sides.
I don’t yet have details of the legislation the senators are preparing but there should be common interest in supporting the JCPOA subject to essential amendments I propose below, which would serve to strengthen the JCPOA and which should be unobjectionable to any person genuinely supportive of its objectives whether supporting or opposing the deal itself. I believe that President Obama would welcome the proposed amendments as they remove ambiguities and create more certainty about the practical implementation of the agreement.
Accepting these amendments need not be an embarrassment to the negotiators. Understandably they were so deeply involved in dealing with specialized complex nuclear details, that dotting some i’s and crossing some t’s (important though they are) escaped their attention as did some ambiguities which are likely to cause disputes in the future
I believe that no person, including governments of the P5 who support the JCPOA can feel confident that it is capable of implementation in its present form unless modified in the manner suggested below.
.Amendment 1 – Quorum, notice of meetings and videoconferencing
Annex IV of the agreement establishes a joint Commission comprised of representatives of Iran and the E3/EU+3(China, France, Germany, the Russian Federation, the United Kingdom, and the United States, with the High Representative of the Union for Foreign Affairs and Security Policy as Coordinator.
Although it is essential that meetings of any serious body be subject to a quorum the JCPOA does not specify a quorum for meetings of the Joint commission. In fact clause 4.4. Specifically states there is no quorum requirement in dealing with matters pursuant to Section Q of Annex I (access to undeclared sites) which are to be decided by consensus or by affirmative vote of five JCPOA participants. This appears to indicate that important decisions can be made if only Iran and four of the eight members attend.
Clause 4.1. states that except as stated otherwise, decisions by the Joint Commission are to be made by consensus. The ambiguity arises as to whether this means consensus of all members of the Commission or consensus of those present at a meeting.
Bearing in mind that the Coordinator will convene meetings to be held within one week following receipt of a request or in urgent matters within only three days, it is unlikely that all members will be able to attend every meeting, making it even more important to establish a quorum. Furthermore, taking into account the great distances separating the various members of the Commission and their busy schedules as well as to relieve strain on the budget, videoconferencing should be acceptable in appropriate circumstances.
It is therefore proposed
- that meetings of the Joint commission and Working Groups may be validly held by means of videoconferencing and in such cases a quorum shall be attendance by all members.
- that except in the case of videoconferencing, no meeting of the joint commission or of a working group shall be validly held unless there be present at least the coordinator, the USA, one member of E3 and either China or Russia.
Amendment 2 – No discrimination and confidentiality
Although many believe that American experts are best qualified for this purpose, US inspectors will be banned from all Iranian nuclear inspections.
Reza Najafi, Iran’s ambassador and permanent envoy to the IAEA, stated that no country is permitted to know the details of future inspections conducted by the IAEA. In addition, no U.S. inspectors will be permitted to enter Iran’s nuclear sites. Moreover he said the nuclear inspection organization is barred from revealing to the US any details of deals it has inked with Tehran.
It is completely unacceptable that the USA, as the leader of the arduous negotiations towards achieving the JCPOA, should be so blatantly discriminated against. It is also absurd that the countries that negotiated the agreement not be permitted to know the details of inspections conducted by the IAEA and the question must be clarified as to whom and to what extent the IAEA will report on its activities and findings..
Clause 3.4. states “Except as provided in Section 6 of this Annex which will be subject to the confidentiality procedure of the UN, the work of the Joint Commission is confidential and may be shared only among JCPOA participants and observers as appropriate, unless the Joint Commission decides otherwise.
As long ago as May 2014 the IAEA and Iran agreed on new nuclear transparency measures. As the JCPOA has been achieved in the interests of the security of the public at large it is essential that the proceedings be transparent in line with the recommendations of the White house Administration as published on its web site
It is therefore proposed that the JCPOA be amended
- so as to provide that no discrimination be permitted against the USA or any other member of the Joint Commission in carrying out inspections and other duties in terms of the JCPOA and that details of inspections and results shall be made available to the governments of all the participating countries
- clause 3.4. of Annex IV be deleted
Amendment 3 – Clarification of an apparent anomaly
Clause 4.5. of Annex IV states that the Coordinator will NOT take part in decision-making on nuclear-related transfers and activities as set out in Section 6 of this Annex. As clause 6.3. states that each of the E3+3 States and Iran (i.e. all members of the Joint commission except the high Representative) will participate in the Procurement Working Group and the High Representative is designated to serve as the Coordinator of the Group, the question must be resolved as to how the High representative can coordinate the working group without participating in it.
If the High representative is not allowed to vote , the effect will be to increase the voting strength of Iran which will then be able to achieve a decision in cooperation with only 3 of the other members.
It is therefore proposed that
- Clause 4.5. of Annex IV be deleted
- Clause 6.3 be amended to provide that all members of the Joint Commission will participate in the working group
- Iran will not participate in any working group designated to investigate suspected violations by Iran
Amendment 4- Compliance to date
The IAEA Director General’s Roadmap for the Clarification of Past & Present Outstanding Issues regarding Iran’s Nuclear Program of 14 July 2015 sets out a process to enable the Agency to make an assessment relating to possible military dimensions to Iran’s nuclear program by the end of 2015. According to an AP report of August 27 Iran has not yet fully complied with its obligation to supply long outstanding information by August 15, 2015 and is only broadly complying with agreements on curtailing its nuclear program. The IAEA is still concerned about a military site where nuclear weapons work may have occurred more than a decade ago and that it still has reservations about Parchin.
The IAEA warned,
“The activities that have taken place at this location since February 2012 are likely to have undermined the agency’s ability to conduct effective verification.”
Iran is also obligated in terms of clause 9 of Annex V to implement paragraph 66 of Section M on “Past and Present Issues of Concern” of Annex I
Last April Secretary John Kerry assured us that the required outstanding information that the IAEA has demanded from Iran would definitely be obtained or there would be no deal. But strangely the negotiators relented on this demand.
The 2011 IAEA director’s report showed that the IAEA investigation has been foiled for more than a decade by Iranian refusals to allow monitors to visit suspicious sites or interview individuals allegedly involved in secret weapons development.
It is therefore proposed that
no sanctions be lifted and no other action be taken to implement any part of the JCPOA unless and until Iran has complied with its undertaking to provide information to the IAEA by August 15, 2015 and its obligation in terms of clause 9 of Annex V
Amendment 5 – Secret agreements
AP recently published details of a previously undisclosed side deal that allows Tehran to take its own environmental samples from the Parchin site, rendering the entire surveillance process meaningless.
The suggested provision below is common in commercial contracts in order to avoid complications which may arise from unknown factors. It would be considered the height of recklessness if an intelligent person signed an agreement without knowing its entire contents and considering the implications.
Even more so, it is inconceivable that respected institutions endorse an agreement blindly.
The following proposed amendment is fully justified since, if the existence of secret side agreements had been known at the time of signing the JCPOA, the negotiators may well have addressed them and dealt with them in the JCPOA.
It is therefore proposed that
the secret agreements between the IAEA and Iran which have been referred to in the media and acknowledged by the negotiators, be attached to the JCPOA as annexes and that the JCPOA, together with the attached annexes constitute the entire agreement between the parties and constitutes and supersedes all prior agreements, representations and understandings of the parties, written or oral.
If for some unusual persuasive reason it is unanimously accepted that the so called secret deals not be revealed to the public, provision shall be made for their contents to be disclosed to an international panel of experts that can be entrusted to report to the respective governments and the public.
Amendment 6 – Information from whistle blowers and other sources
As the entire basis of the negotiations towards, and implementation of, the JCPOA is suspicion and surveillance of Iran, it is illogical that Iran has been granted full membership with equal voting rights on the Joint Commission. It is equivalent to appointing an accused to serve on a jury. To add insult to injury, Iran has been appointed co-chair with the High representative.
However, since Iran has already been appointed a member of the Commission, the amendment suggested below does not call for removal of Iran as a member, but merely permits the other members to meet without Iran when this is considered necessary or advisable. The precedent of excluding a member of the Joint commission from certain activates is established in the JCPOA as explained in amendment 3 above.
It will be recalled that the existence of the secret nuclear facility in Natanz, the heavy water facility in Arak and the illicit activities at Parchin were unknown to the IAEA until revealed by the dissident National Council of Resistance of Iran (NCRI-US). In addition, the 2011 IAEA director’s report refers to valuable information obtained from dissident scientists, member states and even from clandestine suppliers
These sources will be cut off by the presence of Iran on the Commission. None of them will be prepared to provide evidence against Iran in Iran’s presence. In a huge mountainous country like Iran it would be very easy to hide clandestine activities from the IAEA with its limited budget as happened in the past and the absence of “whistle blowers” will make it almost impossible to carry out complete surveillance. More seriously intelligence services of the P5 countries will be inhibited so as to avoid being compromised
Obviously, if Iran is present and participates in discussions, the Commission will not be able to freely discuss suspicions or methods and plans, sources of information and other aspects of their surveillance
It is therefore proposed that
the JCPOA be amended to permit the Joint Commission to meet without the presence of Iran whenever it considers this to be necessary or advisable in order to promote free discussion of suspicions and to hear evidence form sources that would be endangered if their identities became known to Iran.
Amendment 7 – 24 day notice for access to undeclared sites
Ambiguities in Clauses 74 to 78 of Annex 1 inclusive are likely to lead to misunderstandings. For example if the IAEA has concerns regarding undeclared nuclear activities it must first make a formal request to Iran for clarification. No time limit is set for Iran to provide this clarification
If and when an unsatisfactory clarification is received the IAEA may request (not demand) access to the suspect locations. Iran may then delay further by proposing alternative means of resolving the concerns. If the two sides are unable to reach satisfactory arrangements after implementing the alternative arrangements access will not yet be granted. Iran and the Joint Commission must resolve the IAEA’s concerns through means to be agreed between Iran and the IAEA. In the light of the lengthy negotiations, with several extensions of due dates, that led to the JCPOA, one can only conjecture about the time required for the above agreement to be reached.
The amendment suggested below is intended to remove this uncertainty and ensure that the 24 day extension to the original 24/7 surveillance is not abused.
It is therefore proposed that
to avoid ambiguity and likely disputes about interpretation of this provision, the JCPOA be amended by adding the following wording to the end of clause 78 of annex 1“To avoid doubt, notwithstanding anything contained in clauses 74 to 78 inclusive, if a satisfactory explanation for not allowing access to the site of concern is not received by the IAEA within 24 days after the ORIGINAL request is made, then the access shall be granted to the IAEA forthwith.