While we’re all waiting with baited breath for the (hopeful) announcement of an Iran nuclear deal in the next couple of days, I have a treat for those interested in IAEA safeguards. I’m pleased to say that a Vienna delegation has very kindly provided the IAEA Safeguards Implementation Report for 2014 to Arms Control Law in the interest of openness and transparency, as well as to disseminate the results and findings of Agency safeguards to the wider pubic and civil society. This is especially important as the IAEA is funded by the taxpayers of Member States. The delegation is of the view that all IAEA reports should be publicly available and not on a selective basis as determined by some Member States.
I would offer a few initial observations on the 2014 SIR. Two of these are the same critiques I made when I published the 2013 SIR here. First, that the agency’s use of standards for assessing Iran’s compliance with its safeguards obligations are still incorrect, as they have been pretty much since DG Amano took over. I’ve explained this previously in detail, including in the post I linked to at the beginning of this paragraph. I’ve also just recently been writing up this analysis in even greater detail in my new book manuscript, which I hope to have ready for the publisher in September. In a nutshell, the IAEA has for years been improperly withholding its determination that Iran is currently in compliance with its existing safeguards agreement obligations.
Second, again in the 2014 SIR there is no meaningful discussion of the IAEA’s use of third party intelligence information as a source for its safeguards assessments, even though we know that the IAEA has relied on such sources significantly since at least 2011 when it published its infamous PMD report on Iran. There are still very serious concerns that many member states have about the IAEA using such externally-sourced intelligence, without being able to independently verify its credibility. See here a post I did last October pointing to a statement by the Russian representative to the IAEA on this issue. The continuing failure of the Director General to seriously engage with these very reasonable concerns leads one to wonder whether the DG thinks that by downplaying them or simply refusing to acknowledge their existence, they will just go away. The old head in the sand routine. I think these issues are very important to the IAEA’s continuing credibility as an independent, objective monitoring and verification body, and that the DG should engage with them, and either set up satisfactory mechanisms for the IAEA to rely on third party intelligence, or alternatively stop using such information as a basis for assessments.
As an additional critique this year, note that the SIR finds in Article 24 that:
[N]o new information had come to the knowledge of the Agency that would have an impact on the Agency’s assessment that it was very likely that a building destroyed at the Dair Alzour site was a nuclear reactor that should have been declared to the Agency by Syria.
In this context, I just wanted to draw attention to some very recent, excellent pieces by Ambassador Peter Jenkins, and Robert Kelley over at LobeLog. In their pieces, Jenkins and Kelley call for a review of the IAEA’s assessments of the Al Kibar site, and I think they make a very persuasive case that such an objective, expert review is needed. I think it should be noted that their analysis bears not only on Syria, but also on the IAEA’s assumedly continuing role under the new Iran deal in addressing its concerns regarding PMD in Iran.
I invite others to make additional observations about the 2014 SIR in the comments.
Finally, reading the latest dispatch today on the Iran negotiations from one of the best journalists covering them, Jonathan Tirone, I’m gratified that things at least appear to be proceeding roughly as I predicted in my last post here. Time will tell.
Since the April framework agreement between Iran and the P5+1, I’ve been mostly quiet about the ongoing negotiations. Mostly because I’ve learned not to read too much into the daily back and forth of posturing statements made by the different interested parties. But also because I’ve really been trying to make progress on my new book on Iran’s nuclear program and international law. Fortunately, the book is proceeding well now that I can focus on it this summer. I’m hoping to have it done by September, and that would mean it should hopefully be in print early in the new year – academic presses move slowly.
Anyway, one issue that I have been thinking about is the issue of how the final deal, if it happens, will address ongoing safeguards by the IAEA in Iran. There’s been alot of writing about this, as well of course as posturing by the various sides, with alot of the questions coming down to whether and to what extent the IAEA is going to be able to inspect military facilities inside Iran under the new safeguards arrangement. Mark Fitzpatrick wrote a thoughtful piece on this topic just yesterday.
I want to stress that we’re still all speculating here, and the parties to the deal could agree on anything, or nothing for that matter. But I just can’t help feeling skeptical when people talk about the new deal containing an “Additional Protocol plus” ongoing arrangement, under which Iran would agree to safeguards of a scope expanded beyond what is in the terms of the INFCIRC/540 Additional Protocol agreement that they have already signed. I have little doubt that Iran would ratify and bring into force its AP under the new agreement. But the idea that they would agree to significantly more than that on an ongoing basis, I just find both unlikely and practically problematic.
Again, Fitzpatrick’s piece on the subject is thoughtful, and it certainly echoes alot of the talking points I’ve heard from the P5+l side about the kind of access that they want the IAEA to have under the final deal. But it still I think blends together some issues that really should be kept separate, and I just suspect will likely be kept separate in any final deal. I’m talking about the issues of undeclared nuclear materials on the one hand, and the PMD concerns oft the IAEA on the other. The AP is indeed purposed in providing the IAEA with additional legal authority to investigate suspicions of the existence of undeclared nuclear material in the safeguarded state. It provides for access of IAEA inspectors to a much wider scope of sites than is provided for under the INFCIRC/153. However, it does not, as is commonly misrepresented by talking heads, give the IAEA access to anywhere it wants inside the safeguarded state. Regular IAEA inspections are still only done at locations that are declared by the safeguarded state, with some additional yet limited discretion in the IAEA to request and be allowed access to other sites. And the declared locations all by definition have something to do with nuclear materials or related technologies. They will not include military facilities where no fissile material or related equipment is located.
So yes, without doubt Iran would agree to ratify and implement the AP, and this would help the IAEA to have more confidence that there are no undeclared nuclear materials in Iran. But since most military facilities in Iran, and most sites within them, are likely not to be declared by Iran to have anything to do with nuclear material and related technologies, the AP will not provide the IAEA with regular authority to inspect these undeclared military facilities. Again, the IAEA can request access to undeclared locations under Article 2(b) of the AP, but Article 5 of the AP makes it clear that the state may limit or deny this access if it is unable to provide it.
The Additional Protocol also has absolutely nothing to do with helping the IAEA address its concerns about the possibility that nuclear weaponization work may have taken place inside Iran up until 2003. It would not provide the IAEA with authority to inspect declared or undeclared sites for evidence of weaponization research and development activities not involving nuclear material.
This, then, is where the hypothesized “plus” comes in – in the form of some as yet unspecified agreement under which the IAEA would supposedly have authority beyond what the AP provides, to inspect sites that are not declared under the Additional Protocol, but which the IAEA wants to visit to follow up on suspicions about either undeclared nuclear material or possible past weaponization work.
Again, I’m not saying this is legally impossible. Pretty much anything is legally possible if the parties agree to it. I’m just saying that this idea of an “Additional Protocol plus” safeguards regime doesn’t have any precedent that I’m aware of – outside of Security Council 687 in Iraq after the first Gulf War, but I’m pretty sure nothing like that is in the cards – and without a template of specific rights and obligations like that provided for in one of the standard safeguards agreements, it seems like it would be very difficult to make it work on an ongoing basis.
Fitzpatrick in his piece mentions – and I’ve heard this elsewhere – the establishment of a “joint commission” which would arbitrate any differences of opinion between Iran and the IAEA over places the IAEA can go. But what would be the rules on access that the “commission” would be applying? Would they just make them up as they go? Do we really think that the final deal between Iran and the P5+1 will include what amounts to an entirely new bespoke safeguards agreement that adopts these rules between the parties on an ongoing basis? Maybe. It just seems really unlikely to me.
The other possibility would be to put the “plus” access provisions in a new Security Council resolution, that Iran will have agreed to as part of the final deal. That could possibly work too, but again I don’t see the Security Council adopting the kind of detailed rules about access, and limits of access, that would make for a workable ongoing system, and that would be agreeable to both the IAEA and Iran.
I said I don’t like predictions, and I’ve tried to stay away from them. And I have tried to hedge my bets here in saying that the parties can in theory agree to anything. But I’ll tempt fate and make a prediction here. If there is a final Iran nuclear deal, I would predict that the safeguards provisions in the deal will require Iran to ratify and adopt the Additional Protocol, and that this will be the essential legal basis of the ongoing safeguards regime in Iran. I would not be surprised if, as part of the final deal, there was a specific agreement by the parties that the IAEA will have a limited number of managed access visits to a specified list of sites outside of the declared Additional Protocol list that it most wants to visit, probably including the Parchin military facility again. But I suspect that this will be a closed list – meaning that once the specified visits are completed, the ongoing regime will be basically back to the provisions of the AP. Iran may agree to further steps to clear up the IAEA’s concerns about PMD, in the form of more information provision, etc., and this will play out over the succeeding months. But I think that the prevailing sentiment among the P5+1 will be to focus on the future and not on the past, and so to not be too demanding about ongoing access to military facilities or other places to try to assess what may have happened there more than a decade ago.
Having the limited number of managed access visits to undeclared sites, including military sites, will allow the West and the IAEA to declare a victory, and will let them save face. But as an ongoing safeguards system, I suspect that the Additional Protocol, supplementing Iran’s existing CSA, will be the essential legal framework, and not an “Additional Protocol plus” arrangement.
NOTE: I’ve updated/edited this post in light of some collegial discussions I’ve had with people via email.
[Cross-posted from The Trench.]
Today, 17 June, the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare celebrates its 90th anniversary. Short as the document is, it laid the foundations for the 1972 Biological and Toxin Weapons Convention (BTWC) and the 1993 Chemical Weapons Convention (CWC). How critical that document was to disarmament—the total elimination of a given weapon category—the global community can only appreciate through the growing frustration with the lack of progress in the elimination of nuclear weapons. As the negotiators of the Geneva Protocol came to understand in 1925, without a global ban on use, no other weapon-related activities could legally be curtailed.
This three-part analysis retraces the origins of the Geneva Protocol and identifies its implications for disarmament.
Part 1 focusses on the discovery of the dual-use dilemma posed by toxic chemicals and the conclusions the negotiators drew from their new insights.
Part 2 analyses how the negotiators resolved the dual-use dilemma in meetings preparing the disarmament conference of the 1930s, and in the process came up with solutions that make up the pillars of disarmament today.
Part 3 reflects on how the Geneva Protocol experience may point to a tangible nuclear disarmament strategy in view of the failure of the 2015 review conference of the Nuclear Non-Proliferation Treaty (NPT) and the difficulties in reaching a satisfactory agreement with Iran to shed more transparency on its nuclear activities.
An ASIL Insight I wrote on the case brought by Marshall Islands against the nuclear weapons states before the International Court of Justice has just been published online (to read it, click here). Comments are welcome.
It’s time once again to note, as I periodically do, that while massive amounts of time and effort are being spent on a deal between the P5+1 and Iran – a country that has never possessed nuclear weapons – there is a country that not only possesses a well-known and reportedly expanding nuclear weapons arsenal, but that is in fact governed by paranoid lunatics who overtly threaten not only their neighbors but also the United States directly. Yes, I’m talking about North Korea.
This new NYT article by David Sanger does a good job of giving the most recent information about developments with North Korea’s nuclear capabilities, and also of distinguishing between the Iran case and the North Korea case.
I guess I’m just struck once again by how little uproar I hear about North Korea and the nuclear weapons threat it poses both to the region and to the U.S., coming from the U.S. government. The NYT article describes America’s current strategy toward North Korea’s nuclear arsenal as:
“strategic patience,” which essentially meant continuing pressure through sanctions and other levers until North Korea decided to negotiate.
This seems like a stupid idea to me. As I’ve written before, I’m well aware of all of the complexities of “doing something” about the North Korean nuclear arsenal, but it seems to me that something more needs to be done than just watch it grow bigger and more advanced and more capable of being used against states both in the region and across the Pacific.
So where is the uproar in Congress and in the U.S. administration about this very real and existent threat? Where are all the talking heads and D.C. nonproliferation think tanks proposing ten-step plans for actually addressing the North Korean nuclear arsenal? Where are the bombastic statements from Congressional Republicans threatening to annihilate North Korea if they even think about using nuclear weapons against us or our allies? I’m not saying that none of these are ever produced, but it’s the lack of density and volume that is quizzical to me, particularly in comparison to what has been produced regarding Iran. It’s true that there is no Israel in this situation to play the role of chief voice of warning and rallying cause for U.S. politicians. But again, North Korea is an actual threat to the U.S., and I would hope that that would be enough to get the serious juices flowing in DC to come up with a better plan than “strategic patience.”
As I’ve said before, I see diplomatic negotiations and deal-making between Iran and its detractors as being well worth pursuing, because I see Iran as an essentially rational actor that is highly likely to follow through on any agreement it reaches with the West. But I have absolutely zero confidence that North Korea will act in good faith toward promises it makes in diplomatic settings. I think the uselessness of diplomatic approaches with North Korea has been well demonstrated. And I think that whatever rationality North Korea’s leaders may possess is so warped by ideology, paranoia and self-preservation that it cannot be relied upon by other states to keep North Korea from undertaking aggressive actions, possibly even including the use of nuclear weapons, against its neighbors and the U.S.
We’re well beyond arms control law with North Korea. North Korea’s leaders are demonstrably not amenable to civilized relations, either with their own civilian population or with other states, under the regulation of international law.
As I’ve written previously, I do not want to live in a world in which North Korea has nuclear weapons deliverable at its psychotic whim against its neighbors and against the U.S. Where, then, is the “red line”? Where is the point at which it will be necessary for the U.S. and South Korea to take the extreme step of preemptively attacking North Korea? I don’t know, but I think it’s coming soon. And if/when it does, I think it will be both legal under international law, and morally justifiable. While of course the principles of the jus in bello would have to additionally be met (most importantly proportionality and discrimination), I think North Korea presents the strongest case we have ever seen for the satisfaction of the criteria for anticipatory self-defense in the jus ad bellum. In this case I unfortunately see few other realistic options.
I have recently joined the team of experts at the London Centre of International Law Practice (lcilp.org), and have taken on the role of head of the LCILP’s international nuclear energy law and nuclear nonproliferation program. You can see my bio on the LCILP site, and more about the services that the LCILP provides in this area, here.
What attracted me to the LCILP is that its services are focused on training as well as on provision of consulting services. I think there is a significant need for high level training particularly of government officials, but also of private entities, on nuclear energy and nuclear nonproliferation law. So many states are in the early stages of planning, developing, and maintaining a civilian nuclear energy program, and as I have often observed there is so much turnover in government ministries, that I think there will be an enduring need for training of officials and agency staff with portfolios including nuclear energy issues.
In addition to open training workshops, I will also be offering customized private training and advisory services to clients through my association with the LCILP.
I am now planning my first open training workshop in this role. It will be held in London on June 2-3, 2015. Here is the website with all of the details about the workshop, and you can download a flyer for the workshop for further distribution here. The workshop will be a two-day intensive review of international nuclear energy and nuclear nonproliferation law, including the following topics:
1. Safety and security of nuclear facilities;
2. Radiological materials protection;
3. Liability for nuclear accidents;
4. Environmental implications of nuclear fuel cycle activities;
5. International trade controls on sensitive technologies;
6. International investment law;
7. International Atomic Energy Agency safeguards, and other nonproliferation obligations (e.g. NPT, CTBT);
8. Unilateral and multilateral sanctions.
The workshop is primarily intended for the following groups:
1. Officials and agencies of states in the early stages of interest, development and maintenance of civilian nuclear energy programs;
2. Private entities engaged in trade in goods and technologies with applications in the nuclear energy field.
3. Legal professionals interested in expanding knowledge of international nuclear energy law.
The workshop is not free, but I hope it will prove well worth the attendance fee for people particularly in these groups.
If you know of anyone that might be interested in attending, please do forward the information about the workshop to them.
I don’t attend the annual Carnegie nuclear policy conference. Lots of reasons. But I did take a look at the video of one of the panels tonight – the one on the prospects for the upcoming 2015 RevCon. You can find it here.
I had a number of reactions watching the panel. One was simply a reminder of how much I hate listening to politicians talk. They never say anything interesting. Just endless platitudinous twaddle.
Another reaction was to remember, and identify strongly, with a previous post I did here a couple of years ago entitled “Should the Entire NAM Collectively Withdraw from the NPT?” I guess I was put so much into mind of that post because, as I listened to the various diplomats talk about the upcoming NPT RevCon and its “challenges,” I was struck once again by how useless a thing the NPT itself is. I wrote about this already in the post I referred to.
Think about it. The original idea of the NPT from the superpowers’ perspective, was to stop proliferation of nuclear weapons from spreading outside the five that had already tested at the time. This clearly didn’t work out well. At least five other states have manufactured nuclear weapons since 1968 (I’m counting South Africa), and four of these still have them. And I think one would be hard pressed to show that the NPT itself has actually proven to be a meaningful independent variable in stopping any country from developing nuclear weapons when they wanted to do so. This is going to be a difficult experiment without a control case, of course. But I think the “proliferation success stories” that are usually pointed to, including South Africa and Brazil, would probably have happened in much the same way they did without the NPT in place, but rather simply with an international norm having been expressed in General Assembly resolutions and elsewhere against nuclear weapons proliferation. These success stories, as well as the failure stories (e.g. North Korea), have occurred mostly due to factors outside of any direct influence of the NPT itself. They have occurred because of the particular political, historical, and economic circumstances of the state(s) involved, combined with a general international norm against nuclear proliferation, which as I said earlier could have been accomplished without the conclusion of the NPT.
As an international lawyer I know how complicated the whole idea of international law as an independent variable in influencing state behavior is. I suppose I just see the track record in this area as being pretty low on cases where respect for the law, or even incentives/disincentives specifically built into and made a part of the treaty structure, themselves played a meaningful role in influencing any state’s behavior with regard to the decision to acquire nuclear weapons.
From the developing states’ perspective, while they generally supported the nonproliferation objectives of the NPT, they also saw the treaty as their way to get quid pro quo concessions from the superpowers and other nuclear supplier states, in exchange for the obligation not to acquire nuclear weapons. These concessions are of course in Articles IV and VI of the treaty respectively.
So how are those going? I would say the current climate of international trade in nuclear materials and technologies doesn’t betray any sort of real meaningful effect of the Article IV right and obligation on supplier states. Nuclear supplier states trade with whomever they want to trade. And if they don’t want to trade with a state, or allow their private parties to trade with that state, they simply won’t, with very little regard for the Article IV(2) obligation that they are presumably under. Trade in nuclear materials and technologies is, again, all about politics and economics. And again, I think that in the absence of the NPT, the landscape of international trade in nuclear technologies would look very much the same as it does now.
And what about Article VI? Well I think it’s pretty clear that no nuclear weapons possessing state has ever been significantly influenced by the obligation in Article VI to move towards disarmament in good faith. After more than 45 years the nuclear weapons states do just exactly what they want to do with regard to nuclear disarmament and no more. All of the changes that have been made would, I think, have been made in the absence of the NPT. The Cold War ramp up, the efforts of arms control during and after it, cuts over the past 25 years – none of these would have been any different had the NPT not been in place I suspect.
So if the NPT has failed in the ways I have described, why does every diplomat, from Russia to Nigeria, still pay lip service to the NPT as the cornerstone of the nonproliferation regime, and speak of it in hallowed terms? For the nuclear weapons states I think its clear why. They still benefit from having a treaty that allows them and no one else to have nuclear weapons, and that doesn’t seriously constrain them in any way. A treaty they can use as a normative cudgel against their enemies, but which carries very few costs for them and their friends.
But what about for developing non-nuclear weapon states? What do they get out of NPT membership? Again, the concessions they wanted out of the NPT have not been granted to them in the systematic and meaningful way they were promised in the NPT. They get nuclear supplies if and when they are on good enough political terms with supplier states. If not, they don’t. And 45+ years of waiting for the nuclear weapon states to disarm has yielded not one disarmed state among the NWS – and in fact it has produced a net addition of four more nuclear armed states outside of the treaty.
And yet in return for these promised but undelivered benefits, NNWS continue to submit to IAEA safeguards on their nuclear facilities, and to hypocritical critiques by nuclear weapon states of their failure to live up to their NPT and IAEA commitments. So I ask again, what are they getting out of NPT membership?
The answer that many will give is that NPT membership is, kind of like human rights treaties, one way that you signify as a developing state that you are among the “responsible members of the international community,” and that its simply not worth making a fuss about the non-functional NPT and rocking the boat, resulting in having your country placed on the “bad actors” list with regard to economic cooperation, and possibly even becoming the next target of the UN Security Council (kind of like the eye of Sauron that is ever searching for suspicious developing countries).
That’s where my previous post comes in. In it, I propose a walkout from the NPT en masse by the members of the Non-Aligned Movement. I’ll let you read my reasoning there. But I suppose I’m writing this to say that, there are in fact other options than just limping along year after year, RevCon after RevCon, with a treaty that ceased long ago to give non-nuclear weapon states any real benefit to their bargain. Maybe this year’s review conference will be the one when the NNWS finally say “enough!”