By: Dr. Yousaf Butt
Yousaf Butt, a nuclear physicist, is senior scientific advisor to the British American Security Information Council (BASIC) in London. The views expressed here are his own.
Given some of the exchanges taking place last week, the UN might be concerned about the possibility of the Parchin military complex in Iran triggering an all-out rhetorical war in the non-proliferation community.
Parchin is, of course, the military site in Iran where conventional explosives testing possibly relevant to nuclear weapons research is alleged to have taken place, more than a decade ago.
According to information reportedly leaked by some elements within the US intelligence community, Iran may be attempting to “clean up the site ahead of planned inspections by the IAEA.”
But can Iran really do that by carrying out paving or construction at the site as some commentators have alleged for years? If future IAEA inspections reveal nothing of concern at the site – as past IAEA inspections there did – does this mean Iran succeeded in its alleged sanitization? Or could it be that the IAEA is targeting the wrong building again – like it appears to have done two times in 2005? Or would it simply mean there is no evidence to support the allegations?
Recently, a lot has been made about the location of parked vehicles at Parchin. Should one care where on the site Iran parks cars and bulldozers?
To help answer such questions, here are some simple technical guidelines and some background information:
1. In a case like Parchin – where the IAEA says there is a known building of interest – sampling is best done indoors within that building using swipe samples. External (outdoors) sampling can complement this but is of less intrinsic interest.
2. Tehran cannot sanitize the inside of buildings using paving or bulldozers outside the building. Public satellite imagery released to-date does not tell us whether Tehran has attempted sanitization within the building(s) of interest.
Any nuclear process … will also produce particulate materials with particle dimensions in the 0.1 [to] 10 micrometer range. Such small particles are believed to be quite mobile and will travel several meters from their point of origin due to air currents or human activity. This mobility also makes it extremely difficult to clean up an area to such an extent that no particles remain available for swipe sampling. [emphasis added]
4. The location where vehicles are parked, absent other information, is not indicative of very much.
5. The IAEA has visited Parchin twice before and found nothing of concern, possibly because they were targeting the wrong building(s) before, or because there is no actual evidence of nuclear-materials related research at Parchin. The IAEA then stated:
The Agency was given free access to those buildings and their surroundings and was allowed to take environmental samples, the results of which did not indicate the presence of nuclear material, nor did the Agency see any relevant dual use equipment or materials in the locations visited.
If the IAEA happened to be targeting the wrong buildings before, it could also be targeting the wrong building(s) now. The intel the Agency was/is relying on for its allegations appears to be not very solid. Hopefully, the protocol worked out between Iran and the IAEA at the conclusion of the JCPOA provides a framework to reach a quick final conclusion.
6. The IAEA had the possibility to access the current building of interest in 2005 but did not go there then, by choice. Olli Heinonen was head of IAEA safeguards at the time and led the inspections – he described the methodology of choosing which buildings to inspect:
At the time, it[Parchin] was divided into four geographical sectors by the Iranians. Using satellite and other data, inspectors were allowed by the Iranians to choose any sector, and then to visit any building inside that sector. Those 2005 inspections included more than five buildings each, and soil and environmental sampling. They yielded nothing suspicious, but did not include the building now of interest to the IAEA. The selection [of target buildings] did not take place in advance, it took place just when we arrived, so all of Parchin was available….When we drove there and arrived, we told them which building. [emphasis added]
7. Dr. El Baradei who was head of the IAEA when the Parchin and the “Alleged Studies” (now known as PMD) file first surfaced had reservations about the quality of the intel involved, stating: “The IAEA is not making any judgment at all whether Iran even had weaponisation studies before  because there is a major question of authenticity of the documents.” [emphasis added]
To sum up: the most important place to take swipe samples would be on the inside of the building(s) of interest. Construction and paving work outside or the locations of parked vehicles is not of great intrinsic importance, absent other information.
One hopes that the IAEA is indeed targeting the correct building(s) now so that a positive or negative swipe result from inside the building(s) will settle the case quickly and definitively. Incidentally, a negative result would not mean that Iran managed to sanitize the site because the most important sampling would be done indoors where it is almost impossible to get rid of evidence of nuclear materials use.
I’m getting around to this a little bit late this year. My apologies for that. The ABA Journal’s request for nominations can be found here.
If a few of you readers wouldn’t mind to nominate ACL, I’d be grateful. I know it’s not a big deal in the broad scheme of things, but it’s been a really nice validation of our work on the blog the past two years to be included on the list.
NOMINATIONS ARE DUE BY AUGUST 16! SO PLEASE NOMINATE TODAY.
Thanks in advance to everyone who takes the time.
[Cross-posted from The Trench]
Since that fateful year of 2001, when the Ad Hoc Group (AHG) negotiations on a legally binding protocol to strengthen the Biological and Toxin Weapons Convention (BTWC) collapsed and the 5th Review Conference failed following an attempt by the Bush Administration to terminate the AHG mandate, states parties have been trying to develop useful activities to keep the ailing treaty alive.
A lot of what has been going on since then I would qualify as Beschäftigungstherapie—you know, engaging in games, energising dexterity and developing practical skills to strengthen and motivate an ailing patient. It worked to a large extent. But like any treatment continuing for too long, its efficacy dwindles and the patient begins to question why he has to go to yet another session.
And then there are moments when inspired creativity flickers. Moments when one senses that some tangible, meaningful progress could be made. Such a moment occurred on 7 August, when the BTWC Implementation Support Unit (ISU) and the UN Institute for Disarmament Research (UNIDIR) organised a one-day workshop on ‘Implications and lessons learned from the Ebola virus disease outbreak for the Biological Weapons Convention’ at the Palais des Nations in Geneva. The theme was closely linked to the item of Article VII of the BTWC on the agenda of next week’s Meeting of Experts. A packed room, overwhelmingly from missions to the UN, joined in the discussions. The event was structured around a research project run by the US Departments of State and Health and Human Services. Investigators are looking into how the recent experiences with the Ebola epidemic in West Africa have challenged existing understanding of international assistance and how such assistance might be affected if the outbreak had been determined to be a biological weapon (BW) attack. The researchers will present their report at the December Meeting of States Parties (MSP).
Based on close analysis of events in West Africa and the evolving mobilisation of international assistance, the researchers designed a scenario around an Ebola epidemic caused by non-state actors. Outbreak characteristics included the impossibility to link the virus strain epidemiologically to earlier cases and the location of some of the affected people in areas not under government control. Furthermore, in the opening stages the deliberate nature of the outbreak was not entirely clear. The researchers sent the scenario to government officials, intergovernmental and other international or non-governmental organisations (NGOs) involved with health or assistance and relief, financial donors and other concerned parties. The survey yielded preliminary results regarding the opportunities and issues for NGOs, safety and security of medical staff, command and control, and confusion about the involvement of militaries or peacekeepers.
These issues informed the two breakout sessions, each of which covered three themes. I participated in the one on military engagements and facilitated the one on the role of international cooperation and capacity-building efforts. The notes below are personal impressions rather than a comprehensive report on the discussions. They highlight certain issues as they pertain to the BTWC.
Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear ProgramPosted: July 27, 2015
Note: Cross posted from EJIL:Talk!
Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.
The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.
I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.
The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations. And so I compliment all of the diplomats and lawyers involved.
The purpose of Security Council Resolution 2231 is primarily to endorse the JCPOA, which is itself a legally non-binding agreement, and to implement the actions of the Security Council which were agreed to in the JCPOA. Specifically, the Security Council decides in Resolution 2231 that on Implementation Day, as defined in the JCPOA, the previous resolutions of the Security Council regarding Iran’s nuclear program will be terminated. Implementation Day is scheduled to occur when a number of essential actions are taken by Iran, and by the U.S. and the E.U., as spelled out in Annex V of the JCPOA. Practically speaking, Implementation Day is likely to occur within the next 6-8 months.
So again, within the next 8 months, according to Resolution 2231, all of the Security Council’s previous resolutions on Iran regarding its nuclear program, inclusive of sanctions applied pursuant to those resolutions, will be terminated. This is subject, however, to a “snapback” procedure, described in operative paragraphs 11-13 of Resolution 2231. According to this “snapback procedure,” any party to the JCPOA, including Iran, can lodge a complaint with the Security Council at any time alleging substantial noncompliance with the JCPOA’s terms by any other party. If no resolution can be achieved on the matter, the Security Council will vote on whether to continue in effect the termination of its previous resolutions. If this vote by the Security Council fails – e.g. if one of the permanent members votes against it – all of the Security Council’s previous resolutions, including the sanctions implemented thereby, will come back into effect. This process was particularly sought for inclusion by the United States, so that U.S. officials could truthfully say to a skeptical Congress that the U.S., acting alone (i.e. as complainer, and as a permanent member of the Security Council), could if it wished cause the re-application of Security Council sanctions in the event that Iran substantially failed to comply with the terms of the JCPOA.
Assuming the “snapback” procedure is not implemented, however, after the termination of previous Security Council resolutions occurs on Implementation Day, Resolution 2231 puts in their place a more limited, continuing set of restrictions on trade with Iran, which are to continue until UNSCR Termination Day. UNSCR Termination Day is scheduled in the JCPOA to occur in 10 years from Adoption Day. This interim set of restrictions is outlined in Annex B to Resolution 2231, and includes restrictions on trade with Iran, primarily in items and technologies related to Iran’s nuclear program. It does, however, allow for some exceptions for permissible trade in technologies necessary to support the 6,000 uranium enrichment centrifuges which Iran is allowed to maintain in operation throughout the term of the JCPOA.
The restrictions also, notably, include the continuation for five-years of the conventional arms embargo which was a part of previous Security Council resolutions on Iran. The continuation of this arms embargo was one of the more contentious points of the JCPOA negotiations between the parties, and this five-year extension is the resultant agreed compromise.
Importantly, from the perspective of Iran, if all sides abide by their commitments under the JCPOA, Resolution 2231 provides that:
[O]n the date ten years after the JCPOA Adoption Day, as defined in the JCPOA, all the provisions of this resolution shall be terminated, and none of the previous resolutions described in paragraph 7 (a) shall be applied, the Security Council will have concluded its consideration of the Iranian nuclear issue, and the item “Non-proliferation” will be removed from the list of matters of which the Council is seized;
For Iran, this promise represents its ultimate aspiration on this issue – the full removal of international sanctions related to its nuclear program, and its treatment as a lawful possessor of peaceful nuclear energy capabilities.
There would appear to be no “poison pills,” or impossible, or even unreasonable commitments for any party in the text of the JCPOA or in Resolution 2231. Optimism is therefore warranted that this aspiration will be achieved.
I’ve just been reading over the official text of Resolution 2231 on the U.N. website, which is the Security Council resolution endorsing the JCPOA. It appears to me that there are at least two typos in the text. I’m kind of amazed they got through the review process. I picked up on them in the first read.
Here’s the first:
- Decides, acting under Article 41 of the Charter of the United Nations, that, upon receipt by the Security Council of the report from the IAEA described in paragraph :5
I’m pretty sure the colon was supposed to come after the number 5. Not a big deal in and of itself, but it’s really just a proofreading matter.
The second is a bit worse:
- Decides, acting under Article 41 of the Charter of the United Nations, that the terminations described in Annex B and paragraph this of 8 resolution shall not occur if the provisions of previous resolutions have been applied pursuant to paragraph 12;
Paragraph this of 8 resolution? Again, obviously just a switch of words. But this is the text that is up on the U.N. website, and it’s kind of an important legal document. Check it for yourself.
UPDATE: The typos have apparently now been fixed. I know that appropriate staff at the U.N. Security Council Secretariat Branch were notified and asked to do so.
This is a long one, folks. So settle in if you really want to get into some legal wonkery.
I published the below introductory piece on the JCPOA over at Opinio Juris. Here I’d like to go into a lot more detail about some of the the legal issues that I see associated with the JCPOA.
To start out with, overall I think this is a very good deal for Iran. They apparently got basically everything they wanted, and certainly the most important things. They get to keep a full front-end nuclear fuel cycle complete with 6,000 operating centrifuges. They get to carry on with centrifuge R&D. Over time they get to upgrade and increase their capabilities all around. The deal stipulates that the end game is for Iran to be considered a nuclear normal state, on par with other NNWS, implicitly recognizing Iran’s right to have enrichment capability and all the other elements of a front-end nuclear fuel cycle. There’s a pathway in the deal for all multilateral and unilateral sanctions to be lifted. These things are all Iran really ever wanted out of the deal.
I think it’s also a good deal for the West and the IAEA. It ratchets down unnecessary tensions between the West and Iran, which is – like it or not – a major regional player now and going forward. It keeps Iran in the NPT and in the IAEA, and lets the IAEA get out of the PMD hole they’ve dug themselves into.
Basically it gives everyone the most important things they’ve said they wanted, creates compromises everyone can live with, and allows everyone to declare victory and save face, which are the hallmarks of a good diplomatic deal.
The JCPOA text creates a serious normative framework that the negotiators have come up with, with a Joint Commission for implementation, a dispute resolution mechanisms, and an agreed implementation program that is very specific on timing and on when everyone has to do things. As I said in my previous post, I think it’s an impressively well crafted and well organized set of documents, so kudos to the lawyers from all sides.
I’d like to comment on a few of the legal issues that the JCPOA raises. Some of this will be overlap from my previous post, but a lot of it will be new.
NOTE: I’m cross posting this piece here. It originally appeared by invitation this morning over at Opinio Juris.
The Joint Comprehensive Plan of Action (JCPOA) agreed to by the P5+1 (Germany, France, the U.K., the U.S., China, Russia) and Iran on July 14 is a major success of international diplomacy, possibly to be credited with the avoidance of war. It is the culmination of twenty months of negotiations between the P5+1 and Iran since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. See my analysis here of the JPOA when it was concluded.
The JCPOA is comprised of 159 total pages of text, consisting of 18 pages of the JCPOA itself, with a further 141 pages divided among five annexes. All of the documents can be found at this link. It is a carefully drafted, well organized document, and compliments are due its drafters.
That being said, it is an extremely complex document, which attempts to address all of the issues in dispute between the parties concerning Iran’s nuclear program, from how many and what type of uranium enrichment centrifuges Iran can maintain in operation, to the technical specifications of transforming the Arak heavy water reactor into an alternate less-proliferation-sensitive design, to excruciatingly detailed provisions on the precise sequencing of sanctions lifting by the U.N. Security Council, the U.S. and the E.U.
The general gist of the JCPOA is easy enough to summarize. It is a quid pro quo agreement under which Iran agrees to significant limits on its civilian nuclear program, and to an enhanced inspection regime by the International Atomic Energy Agency (IAEA) to verify the continued peaceful nature of its program. In return, the P5+l agree to a coordinated lifting of the economic and financial sanctions that have been applied against Iran over the past six years by both the Security Council acting multilaterally, and the U.S. and E.U. in particular acting unilaterally. The end goal of the JCPOA is stated to be that Iran will ultimately be treated as a normal nuclear energy producing state, on par with Japan, Germany and many other Non-Nuclear Weapon States party to the 1968 Nuclear Non-Proliferation Treaty.
The precise sequencing of the implementation of the JCPOA’s commitments was one of the most difficult issues in the negotiations, and the JCPOA has one full annex, Annex V, devoted to the issue. The implementation plan provides for approximately a 10 year timeline over which the main commitments are to be implemented by the parties. Technically “UNSCR Termination Day,” on which all Security Council resolutions on Iran will terminate, and on which the Council will no longer be seized of the Iran nuclear issue, is set to occur 10 years from “Adoption Day,” which is scheduled for 90 days after the endorsement of the JCPOA by the Security Council.
Sanctions relief will be staggered, but will begin in earnest on “Implementation Day,” on which date the IAEA will certify that Iran has implemented its primary commitments limiting its nuclear program. This could occur within approximately six months from “Adoption Day.” The final, full lifting of all multilateral and unilateral sanctions is set to occur on “Transition Day,” which is defined as 8 years from “Adoption Day,” or when the IAEA reports that all nuclear material in Iran is in peaceful use, whichever is earlier. So the JCPOA envisions a full lifting of all nuclear-related sanctions on Iran within the next eight years at a maximum, with significant sanctions lifting to occur hopefully within the coming year.
There are a number of important legal observations to make about the JCPOA text. I’ll mention only a few of them here briefly, but I’ll be writing more about them over at my blog, Arms Control Law, where you can also find background information on the issues.
- It is important to note that the JCPOA is not a treaty. This is made explicitly clear on Pg. 6 of the JCPOA, when the text refers to all of the subsequently detailed commitments as “voluntary measures.” This fact of course has important implications for both international law, and the domestic law of the parties. Significantly from an international law perspective, it means that neither Iran’s legal obligations, nor the legal authority of the IAEA, are affected by the terms of the JCPOA itself. The JCPOA is simply a diplomatic agreement, consisting of political and not legal commitments. This is an important distinction to bear in mind inter alia when considering the expanded access for IAEA inspectors in Iran which is provided for in Annex 1, Section Q. The fact that these enhanced access procedures, under which IAEA inspectors can request access to sites in Iran that have not been declared by Iran to have any connection to its nuclear program, are simply political in nature, should provide incentive for all sides to be reasonable and measured in their approach to disputes about this access. Excessively aggressive and unreasonable demands made by either side could result in a collapse of the entire JCPOA framework.
- Also on the subject of IAEA safeguards, the JCPOA provides that Iran will only provisionally apply its Additional Protocol agreement with the IAEA for the next 8 years, and only after that time will it formally ratify the Additional Protocol and bring it into force. Having the Additional Protocol only provisionally applied during this period could make for some complicated and perhaps controversial questions concerning its application. The most recent reports of the International Law Commission’s Special Rapporteur on Provisional Application of Treaties will be useful in clarifying these questions. Regarding the purpose for this lengthy period of provisional application, while it may have some basis in the normal delay associated with domestic ratification procedures, I suspect that this was in fact a feature of the agreement specially negotiated by Iran in order to allow it continued leverage with the IAEA, with which it has a longstanding tense relationship.
- One reason for that tense relationship is the IAEA’s allegations since 2011 that Iran has not been forthcoming about past nuclear weaponization work conducted in Iran prior to 2003. This is the so-called Possible Military Dimensions (PMD) issue, which was also a significant point of contention during the negotiations. The JCPOA handles the PMD issue in a manner that has surprised many observers. In brief, in paragraph 14 of the JCPOA the parties agree that the entire PMD issue is to be resolved between Iran and the IAEA within the next six months, pursuant to a “Road Map” document agreed separately between the IAEA and Iran on the same day as the JCPOA. This short time frame for resolving this complex issue, which has been hotly contested between the IAEA and Iran for the past four years, appears to demonstrate the JCPOA parties’ overall intent to focus on the present and future, and not on the past. This is a particularly prudent and pragmatic view, in my opinion, and avoids what could have been a poison pill for the JCPOA, in the form of attempts to force Iran to admit to past nuclear weaponization work.
There are many other interesting legal issues that bear observation, but I will end this guest post at this point, and invite interested readers to comment, and to follow my further writing on this and all other matters armscontrollawish at my blog.