Biden’s New JCPOA: Not So Fast

While the 2020 US presidential election results remain legally contested, all signs are that former Vice President Joe Biden will be sworn in as president on Jan. 20, 2021. His administration will be confronted by several vexing foreign policy issues, among them the Joint Comprehensive Program of Action (JCPOA), popularly known as the Iran nuclear agreement. While Biden is inclined to rejoin the agreement, which President Donald Trump withdrew from in May 2018, there are numerous obstacles that make this a long shot. Two of the most problematic are seemingly minor technical issues: the size of Iran’s stockpile of low-enriched material, which currently stands at more than 12 times the amount permitted under the JCPOA, and the access of inspectors to sites designated for inspection by the International Atomic Energy Agency (IAEA). As a result of such obstacles, Biden will find it very difficult to rejoin the JCPOA on terms that are acceptable, leaving the new administration in the position of maintaining sanctions on Iran, including on oil exports, in an effort to pressure Tehran to relent.

In an opinion piece published by CNN on Sep. 13, Joe Biden condemned the approach taken by the Trump administration to Iran’s nuclear program, lambasting Trump’s withdrawal from the JCPOA and the subsequent sanctions-intensive policy of “maximum pressure” as an abject failure. While acknowledging that the Trump administration’s Iran policy has boxed the US into a corner, Biden expressed his goal of returning the US to the JCPOA and bringing Iran’s nuclear program back under international control.

Biden stated that he would “make an unshakable commitment to prevent Iran from acquiring a nuclear weapon,” declaring that he will “offer Tehran a credible path back to diplomacy,” one where “Iran returns to strict compliance with the nuclear deal.” In exchange, Biden noted that “the United States would rejoin the agreement as a starting point for follow-on negotiations.” This stance is, in and of itself, extremely problematic. The US withdrew from the agreement unilaterally, and in order for the JCPOA to be made whole again, the US must rejoin, without preconditions. This is the position taken by Iran and the other parties to the JCPOA.

Biden, however, appears to believe that Iran would be willing to negotiate the terms of a US return to the JCPOA. According to Amos Hochstein, a former Deputy Assistant Secretary of State and Special Envoy and Coordinator for International Energy Affairs in the Obama administration who closely advised then-Vice President Joe Biden on matters pertaining to the JCPOA negotiations, “we’ll either see him [Biden] rejoin the deal fully, or what I would call ‘JCPOA-minus,’ meaning lifting sanctions in exchange for suspending some of the Iranian nuclear programs.” In any event, Hochstein noted, Biden would want to see “some changes” in the deal before re-entering. Hochstein’s statement echoes the assessment of Israeli Foreign Minister Gabi Ashkenazi, who recently briefed the Knesset Foreign Affairs and Defense Committee that Biden would rejoin the JCPOA “with minor amendments.”

Biden and his advisors have been silent about the specific form such amendments might take. However, by taking guidance from Biden’s strong stance against Iran acquiring a nuclear weapon, and looking at two issues of major concern in the IAEA regarding Iranian compliance with the JCPOA, it seems obvious that the matter of Iran’s enrichment of uranium and inspector access to key sites would top the list of concerns that could be addressed by amending the JCPOA text.

Points of Contention

In the latest IAEA quarterly report, the organization reported that Iran, as of Aug. 25, had stockpiled 2,105.4 kilograms of low-enriched uranium, well above the 202.8 kg allowed under the nuclear deal. It was also enriching uranium to a purity of 4.5%, beyond the JCPOA limit of 3.76%. While the IAEA has assessed that Iran’s current stockpile of low-enriched uranium does not constitute what the agency calls a “significant quantity” or uranium (defined as the minimum amount of enriched uranium needed to make an atomic bomb), Iran’s stockpile does impact the political calculations in the US about Iran’s potential to make a nuclear weapon going forward.

The JCPOA limits were negotiated by the US with what it called Iran’s “breakout capability” in mind, that being the amount of time required by Iran to enrich enough uranium to produce a single nuclear weapon. The 202.8 kg figure set by the JCPOA was based on how much low-enriched uranium could be in Iran’s possession at the moment it decided to begin enrichment in support of a nuclear weapon so that it would take Iran one year to acquire what the IAEA calls a “significant quantity.”

While Iran may not possess a significant quantity of low-enriched uranium yet, it is well inside of the one-year breakout capability, with current estimate for Iran accumulating a significant quantity of low-enriched uranium down to a matter of weeks. Iran has reached this level not only by stockpiling low-enriched uranium, but also by using advanced centrifuges prohibited under the JCPOA, and enriching uranium to levels more than JCPOA limits. Biden’s position would seem to not only require a reduction of Iran’s stockpile to JCPOA-permissible limits, but also a reworking of Iran’s centrifuge program, removing prohibited centrifuges from service and recalibrating existing cascades so that they enriched at the permitted level of 3.5%. Moreover, Biden would most likely seek to make these limits permanent, and not subject to expiration under the existing sunset clauses contained in the JCPOA. Only in this way could Biden’s unshakeable commitment to prevent Iran from acquiring nuclear weapons have force.

Another area of contention that would need to be addressed by Biden is inspector access to sites designated for inspection by the IAEA. Under the JCPOA, Iran had agreed to facilitate the full implementation of Iran’s Comprehensive Safeguards Agreement and the Additional Protocol thereto, which has been provisionally applied by Iran since January 2016. Iran said on Wednesday it was ending a months-long standoff with the UN nuclear watchdog by granting it access to two sites suspected of once hosting secret activities, easing diplomatic pressure on Tehran as Washington seeks to reimpose sanctions. Iran and the IAEA recently negotiated the ability of the IAEA to inspect two locations in Iran that had been designated for inspection, but for which access had been denied for more than a year.

The issue of timely access to sites designated for inspection has always been a sensitive issue, with the US demanding “anytime, anywhere” access, and Iran insisting that the IAEA follow a notification protocol, which could result in up to a two-week delay in inspectors gaining access. Another issue is how verification measures are implemented at a site subject to inspection, with the US demanding that IAEA inspectors conduct the actual sampling activities, while Iran insisted that all sampling at sensitive sites would be done by Iranian personnel under the supervision of the IAEA. Iran prevailed on both counts in the final version of the JCPOA.

When it comes to the issue of inspector access to sites designated by the IAEA, Biden will be guided by the current inspection controversy surrounding the detection of two man-made, refined uranium particles at a warehouse located in the Turquzabad district of Tehran. Israel had publicly declared the existence of this site in September 2018, alleging that it contained nuclear-related equipment from what it called Iran’s past undeclared nuclear weapons program. A subsequent IAEA inspection detected the presence of the uranium particles. The IAEA inspected the Turquzabad warehouse in February 2019, but satellite imagery suggests that Iran may have sanitized the site before the inspection.

The existence of the two uranium particles gives credence to those who believe that Iran was conducting undeclared research into building a nuclear weapon outside monitoring under the JCPOA. Given these circumstances, Biden will most likely insist on more stringent inspection procedures, including no-notice inspections where all sampling is done by IAEA personnel.

While these kind of amendments to the JCPOA would make a US return to that agreement politically possible for Biden, the chances of Iran agreeing to them as preconditions for a US return are virtually zero. Iran has repeatedly stated that the JCPOA is not subject to any revisions, and that the US must rejoin the JCPOA without preconditions before any future negotiations about Iran’s nuclear program could take place.

The Biden administration will face the harsh reality that the amendments to the JCPOA that it needs to make its return to the agreement politically viable are unacceptable to Iran. The new US administration will more than likely find itself in a situation in which sanctions, including those on oil exports, must be maintained in an effort to pressure Iran to yield to US demands to modify the JCPOA. This policy is likely to be the only choice available to Biden.

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