Iran Inspections in 24 Days? Not Even Close

Hillel Fradkin & Lewis Libby

The Obama administration assures Americans that the Iran deal grants access within 24 days to undeclared but suspected Iranian nuclear sites. But that’s hardly how a recalcitrant Iran is likely to interpret the deal. A close examination of the Joint Comprehensive Plan of Action released by the Obama administration reveals that its terms permit Iran to hold inspectors at bay for months, likely three or more.

Paragraphs 74 to 78 govern the International Atomic Energy Agency’s access to suspect sites. First, the IAEA tells Iran “the basis” of its concerns about a particular location, requesting clarification. At this point Iran will know where the IAEA is headed. Iran then provides the IAEA with “explanations” to resolve IAEA concerns. This stage has no time limit.

Opportunities for delay abound. Iran will presumably want to know what prompted the IAEA’s concern. The suspect site identified by the IAEA is likely to be remote, and Iran will no doubt say that it must gather skilled people and equipment to responsibly allay IAEA concerns. Iran may offer explanations in stages, seeking IAEA clarifications before “completing” its response. That could take a while.

Only if Iran’s “explanations do not resolve the IAEA’s concerns” may the IAEA then “request access” to the suspect site. Oddly, the agreement doesn’t specify who judges whether the explanations resolve concerns. If Iran claims that it has a say in the matter, the process may stall here. Assuming Iran grants that the IAEA can be the judge, might Iran claim that the “great Satan” improperly influenced IAEA conclusions? Let’s assume that Tehran won’t do that.

Now the IAEA must provide written reasons for the request and “make available relevant information.” Let’s assume that even though the IAEA may resist revealing the secret sources or technical means that prompted its suspicions, Iran acknowledges that a proper request has been supplied.

Only then do the supposed 24 days begin to run. First, Iran may propose, and the IAEA must consider, alternative means of resolving concerns. This may take 14 days. Absent satisfactory “arrangements,” a new period begins.

During this period Iran, “in consultation with” the Joint Commission, will “resolve” the IAEA concerns “through necessary means agreed between Iran and the IAEA.” The Joint Commission includes China, France, Germany, Russia, the U.K, the U.S., the European Union and, of course, Iran. Not exactly a wieldy bunch.

The Iranians will likely claim that “consultation” with the Joint Commission doesn’t bind Tehran, just as the U.S. president isn’t bound by consultations with Congress. The agreement says the consultation process will not exceed seven days, but Iran can point out that the nuclear deal doesn’t specify when Iran and the IAEA must reach agreement and “resolve” IAEA concerns.

In the absence of Iran-IAEA agreement, a majority of the Joint Commission has seven days to “advise” on the “necessary means” to resolve the matter. Iran may fairly argue that the commission’s right to “advise” is not the same as a right to “determine” the “necessary means.” Lastly, the agreement provides that “Iran would implement the necessary means within 3 additional days.” But what “necessary means” are these? As noted, the agreement refers to “necessary means agreed between Iran and the IAEA.” So these additional three days don’t even begin until an agreement is reached.

Now what? Well, the U.S. may take a “Dispute” to the Joint Commission, on which Iran sits, which has 15 days to resolve the issue. Parties may or may not invoke a similar 15 days for foreign ministers to act. Parties may also request a nonbinding opinion within 15 days from an advisory board consisting of three members, one appointed by Iran, one by the complaining country and “a third independent member.”

But Iran may argue that nothing in the nuclear deal specifies how quickly a country must appoint its advisory-board member or even how the “independent member” is selected. In short, this stage may take at least 30 days and possibly 45 of consideration at the different levels, but Iran may argue that the last 15 days don’t start until an advisory board has been duly formed. Then we get another five days of Joint Commission deliberation, before a disappointed U.S. or other commission member seeking IAEA inspections can hobble off to the United Nations seeking resolutions reimposing sanctions.

In short, as Iran is free to interpret the agreement, 63 or even 78 days may pass, plus three potentially lengthy periods that Iran can stretch out: One of “explanations” before the clock starts, one to agree on necessary means and “resolve concerns,” and one for advisory-board selection near the end.

So from the moment the IAEA first tips its hand about what it wants to inspect, likely three or more months may pass. All along, the Joint Commission is required to act in “good faith,” and to make only “minimum necessary” requests limited to verification, not “interference.” Tehran could also cite these terms to challenge particular requests.

The description of this process is based on the English-language text of the nuclear agreement. The text lacks a provision that it is the entire agreement, so Iran may claim support in supposed side agreements or statements during negotiations.

Announcing this “comprehensive, long-term” deal, President Obama quoted President Kennedy’s 1961 call for negotiations with the Soviets. Kennedy reached two notable nuclear agreements. Mr. Obama didn’t mention that within a decade of Kennedy’s 1963 Limited Test Ban Treaty, Soviet nuclear forces—once a fraction of America’s—were at parity or had surpassed ours.

During the 1962 Cuban Missile Crisis, Kennedy reached secret agreements—undisclosed to Americans for decades—not to invade Cuba and to withdraw U.S. weapons from Turkey. By invoking Kennedy was President Obama signaling there is more to this “long-term” deal than we know?

He is a subtle man.