Quote of the week:
“Why, sometimes I’ve believed as many as six impossible things before breakfast.”
—Lewis Carroll, Alice in Wonderland (1865)
We are now in a sixty-day period in which the Congress can propose strengthening measures for the Iran nuclear deal, known as the JCPOA – the Joint Comprehensive Plan of Action – in wonk land. Some have proposed tougher inspections at suspect sites as one way to improve the Obama administration’s handiwork. They are particularly focused on suspect sites like Parchin, where research and development activities on warhead design might well have occurred in the past. As David Albright and his co-authors have argued,
“Resolving these discrepancies is critical to understanding Iran’s progress on nuclear weapons at this site and elsewhere, assuring the detection of any Iranian attempt to reconstitute its nuclear weapons program, and ensuring that the JCPOA is adequately verified.”
Before pursuing this remedy, critics of the Iran deal would do well to familiarize themselves with conditions the United States Senate attached to the Chemical Weapons Convention to curtail and even deny international inspectors at industrial and suspect sites. The motivation behind these conditions was presumably to protect against the loss of trade secrets – even though chemical industry leaders at that time appeared to be satisfied that the CWC’s provisions provided adequate protection. On top of this, the Congress’s implementing legislation carved out a blanket “national security exemption” to block any foreign inspection deemed to be harmful to U.S. interests.
The CWC has been a resounding success despite these congressional strictures. Like the Nonproliferation Treaty, the CWC has its outliers, but fewer of them. Four states are non-parties – Egypt, Israel (a signatory, but not a ratifier), North Korea and South Sudan – two or three of which might still have undeclared CW stocks. While the CWC has not prevented all chemical weapons’ use -most recently and egregiously in Syria – the world is far better off with the CWC than without it. The surest two signs of effective norm building are when violations are rare and when the violator is viewed as a pariah state.
The CWC contained several first-ever monitoring provisions, including routine inspections at industrial facilities where various “scheduled” chemicals that could be used in munitions are produced. Facilities for the demilitarization of CW munitions and bulk agent are also subject to inspections – a process that, not surprisingly, has taken far longer than expected. In addition, the CWC contains challenge inspection provisions for suspect sites, using “managed access” procedures. Under these procedures, the challenged state is obliged to address concerns over compliance but is not obligated to divulge classified and proprietary information. In other words, the CWC drafters recognized that challenge inspections would be a tightrope act. This tightrope has yet to be walked.
Credit for making the final push for the CWC goes to George H.W. Bush, the last Republican President who strongly believed in the utility of multilateral arms control and disarmament agreements. Bush the Elder committed his administration to negotiate a far more encompassing agreement than the 1925 Geneva Protocol which was, in effect, a “no first use” compact prompted by the widespread use of “poisonous and asphyxiating” gases in World War I. The CWC went farther, banning the development, possession, production as well as use of chemical weapons, which now included far more lethal types of nerve agents. Just a week before leaving office, the Bush administration submitted the CWC to the Senate for its advice and consent. The challenge of ratification then fell to the Clinton administration.
The Senate attached 28 conditions to the CWC. Six pertained to protecting the U.S. chemical industry’s trade secrets. One of these conditions prohibited samples assessed at U.S. labs from leaving the country. (When a U.S. lab investigated a sample taken from Syria, there was some awkwardness in declining a request from the CWC’s home organization – the Organization for the Prohibition of Chemical Weapons – for its transmittal.)
The Congress’s implementing legislation added another blanket level of protection against foreign inspectors. Section 307 reads as follows:
“Consistent with the objective of eliminating chemical weapons, the President may deny a request to inspect any facility in the United States in cases where the President determines that the inspection may pose a threat to the national security interests of the United States.”
These qualifications were early indicators of trouble ahead for the Arms Control and Disarmament Enterprise, then seemingly going from strength to strength. (The Comprehensive Test Ban Treaty was next in the negotiating queue.) Even though an internationalist-minded Republican administration negotiated this remarkable accord, the Senate Republican caucus split down the middle over consenting to ratification. The Chairs of the Armed Services and Foreign Relations committees voted against ratification. The latter – Senator Jesse Helms – made clear in private dealings with the Clinton administration that his price for allowing an up or down vote was the disestablishment of the quasi-autonomous U.S. Arms Control and Disarmament Agency and its folding into the State Department, where it’s advocacy would be more muted.
But I digress. Back to challenge inspections under the CWC: No state has issued a challenge inspection – at least not yet. After Syria joined the OPCW in 2013, inspectors conducted “fact-finding” missions rather than challenge inspections to affirm the Assad regime’s use of chemical weapons against its own population. Much, but clearly not all of Assad’s chemical weapons have been moved outside the country for safe destruction.
Syria remains an outlier, even within the OPCW. The paucity of outliers clarifies how successfully the CWC has been implemented – without challenge inspections. How is this possible? One reason is that challenge inspections are not critical to determine the obvious, nor to reaffirm norms that are reinforced even when they are broken. Who wants to join the club Syria leads? (The norm against testing nuclear weapons also benefits from this paradox: Who wishes to follow North Korea’s example?) Another reason for the absence of challenge inspections is that there will usually be some higher priority bilateral issue that could be jeopardized and that supersedes the issuance of a challenge. Fourth, by challenging another state, the challenger could well face retaliation in kind, prompting its own need to protect proprietary or national security secrets. It’s hard to be holier than thou when the tables are turned.
Of course, the tables won’t be turned on the Iran deal; they can only be upended. Under this deal, all the meaningful obligations to constrain relevant nuclear weapon-related activities fall on Iran. Those who believe these constraints are insufficient or not lengthy enough and therefore need to be toughened will be negotiating with themselves and with allies, not with Iran. The dictation of tougher inspections works only against defeated states, and even then, only temporarily.
Iran is not a defeated state. Demanding “tougher” challenge inspections would be particularly hypocritical since the Congress has rejected or heavily conditioned them for U.S. facilities. Challenge inspections are useful to have in one’s hip pocket, but are no panacea. If the CWC experience has relevance, the most reliable and useful indicators of compliance are routine inspections and continuous, in situ monitoring by technical devices at critical facilities.
Those who wish to be tougher on Iran’s troubling activities outside the scope of the nuclear deal have no shortage of means to do so. Holding the nuclear deal hostage when Tehran is abiding by its terms isn’t even penny wise; it’s just pound foolish.
Michael Krepon is Co-Founder of the Stimson Center. This piece originally ran in Arms Control Wonk on October 30, 2017.