Foreign Relations & International Law

The Parchin Precedent

Yishai Schwartz
Monday, August 24, 2015, 1:58 PM

This past week, George Jahn of the AP published an exclusive, and damning, look at the Iran-IAEA agreement about inspections at Parchin.

Published by The Lawfare Institute
in Cooperation With

This past week, George Jahn of the AP published an exclusive, and damning, look at the Iran-IAEA agreement about inspections at Parchin. In the last few days, supporters and opponents of the Iran deal have clashed vehemently about the meaning and significance of the revelations. Nevertheless, one of the most concerning implications of the Parchin agreement--namely, its precedential value for future access to Iranian military sites--has gone overlooked.

The confidential agreement, quickly labeled a “secret side deal” by opponents, outlines procedures by which the IAEA will investigate past “possible military dimensions” of the Iranian nuclear program at the military base at Parchin. Critics of the Iran accord quickly seized on Jahn’s revelations that the agreement “diverges from normal procedures by allowing Tehran to employ its own experts and equipment in the search for evidence” of past illicit activity. They worry that Iran will somehow pull a fast-one on inspectors, and the international community will never satisfy its questions about what precisely Iran did, and how close they came to nuclear weapons.

Meanwhile, the White House and its backers insist the IAEA has gotten what it technically needs in the Parchin agreement. The procedures in place are robust enough to ensure that inspectors have accurate and complete information. Furthermore, the entire affair has been overblown. After all, the nuclear weapons program at Parchin has (presumably) been dormant for years, and so this accessing the site was simply about resolving questions about long-past behavior. The key parts of the Iran deal are about future activity.

This debate is important, but it also misses the larger point. What happened in the IAEA negotiations with Iran was precedent setting. The IAEA demanded access to an Iranian site in order to resolve questions about weaponization of Iran’s nuclear program. Iran refused, and in large part, the IAEA acquiesced. A set of arrangements was developed--which may or may not be technically sound for each and every one of the IAEA’s purposes (for this, we must follow the debate among experts closely)--which precluded actual IAEA access to the site.

It is important to note that there is no “military site” exception to IAEA access. Under the NPT and comprehensive safeguards agreement that Iran itself acknowledges it is bound by, Iran is obligated to provide access anywhere through IAEA special inspections. Under the Additional Protocol that Iran has, under the greater Iran deal, already begun implementing, these special inspections are fortified by the addition of “complementary access,” which also ensures access anywhere the IAEA wishes to resolve concerns. And yet, the IAEA blinked. Now, it may be that in the short term, it blinked reasonably: Perhaps resolving long-past activities to perfect satisfaction really isn’t important enough to risk torpedoing a major deal.

But what of the long-term, precedential effects? Based on the Parchin agreement, we can already predict what will happen 5, 10, 20 years from now, when Iran once again chooses to explore or pursue weaponization. The IAEA will demand access to a sensitive Iranian site, and Iran will stonewall. And when the time comes to negotiate, Iran will insist that IAEA and international community has already acknowledged it doesn’t really have a right to demand full access to military sites. After all, look at Parchin! And this agreement, rather than Iran’s actual legal obligations under its safeguards agreement and additional protocol, will become the new baseline.

Iranian negotiators have a track record of pocketing what seem at the time like limited and isolated Western concessions, only to argue (successfully) that they are of much larger significance. (This is, for example, what happened when the IAEA accepted that Iran wasn't really bound by the Additional Protocol or Modified Code 3.1) With Parchin, I worry that we have just handed them another.

Yishai Schwartz is a third-year student at Yale Law School. Previously, he was an associate editor at Lawfare and a reporter-researcher for The New Republic. He holds a BA from Yale in philosophy and religious studies.

Subscribe to Lawfare