Roundtable on my Recent Post in the Bulletin of the Atomic Scientists
Posted: November 5, 2012 Filed under: Nuclear 10 CommentsA while ago I was contacted by an editor at the BAS who asked if I would be interested in participating in a roundtable discussion of my recent post here on ACL about the IAEA’s standards for investigation and assessment as applied to Iran. You can see the original post here.
I of course said yes, and fortunately Chris Ford and Andreas Persbo also agreed to contribute to this roundtable discussion. The way it’s arranged is that we will each publish three short essays on a pre-determined schedule, with each tranche of essays coming out around the same time. The first tranche of three essays was just published today here at the BAS site. I encourage readers to go have a look at them. There will be two further sets of essays, in which we will respond to each other’s arguments (thus the roundtable dynamic).
For those interested in following the discussion, the schedule will be the following:
Round Two (no more than 600 words):
Joyner publish November 12; Ford publish November 19; Persbo publish November 26
Round Three (no more than 600 words):
Joyner publish December 3; Ford publish December 10; Persbo publish December 17
Arms Control Law 
I think many in the arms control field would like to see a stronger more powerful IAEA with greater powers, which could be a noble aim, except that the IAEA has not been thus empowered yet.
Endowing it with such illusionary powers by fiat or advocacy does not make such powers come true. The IAEA-Iran CSA was negotiated in 1974 and outlines how to handle disputes that do not concern a diversion of fissile material.
Pierre Goldschmidt, former deputy director of the IAEA Safeguards Department, summed it up well:
http://carnegieendowment.org/2011/11/03/looking-beyond-iran-and-north-korea-for-safeguarding-foundations-of-nuclear-nonproliferation/6nz6
“the Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate and to provide the assurances the international community is expecting ”
i.e. the expectations are misplaced.
Mr. Ford in the BAS essays mentions the Iran-IAEA CSA from 1974: this same CSA outlines the proper procedure for handling any disputes that do not involve a diversion of fissile material to military purposes — arbitration. Either Iran or the IAEA can kick off arbitration, but referral to the UNSC appears to be in conflict with the CSA. So, according to the CSA, the choice the IAEA appears to have had is to kick off arbitration or do nothing.
Interesting to see how the other participants are muddying the waters and avoiding the issue by instead concentrating on Iran’s past safeguards breaches, which were resolved and corrected to the IAEA’s satisfaction. They don’t seem to understand that the past safeguards breaches have no relation to the Alleged Studies.
Iran’s past safeguards breaches which consisted of “failures to report” otherwise legal activities, were resolved in accordance to the Iran-IAEA Modalities Agreement. The only outstanding issue was the Alleged Studies, which according to Elbaradei and the IAEA reports, did not involve any nuclear material.
The February 2006 IAEA report on Iran explicitly states: “Absent a nexus to nuclear material, the Agency lacks the authority to conduct inspections or other verification activities.”
And there is no claim of a diversion of nuclear material involved in any of the “Alleged Studies”, even assuming they’re true.
“Have we seen Iran having the nuclear material that can readily be used into a weapon? No. Have we seen an active weapons program? No.”
http://abclocal.go.com/wpvi/story?section=news/politics&id=5730868
Even if Iran had investigated making nukes, unless and until there was a diversion of nuclear material for non-peaceful uses then there is no violation of the NPT.
viz.
Click to access infcirc214.pdf
“Article 22
Any dispute arising out of the interpretation or application of this Agreement, except a dispute
with regard to a finding by the Board under Article 19 or an action taken by the Board pursuant to such
a finding, which is not settled by negotiation or another procedure agreed to by the Government of Iran
and the Agency shall, at the request of either, be submitted to an arbitral tribunal…”
Other Hans Blix quotes:
Blix’ response to a question about the IAEA’s focus. Starting at 6:08 in his link.
http://www.aljazeera.com/news/middleeast/2012/03/2012323161458267958.html
Interviewer: What should the IAEA be focusing on now then?
Blix: I think they should focus on the fissile material. That’s always been the IAEA’s job. That without enriched uranium, enriched up to, say, 90%, or plutonium you cannot make a bomb. That’s why the whole system of control of the IAEA is focused on this nuclear material. That’s what they are inspecting in Natanz in Iran where they enrich uranium and that’s what they focus upon in Fordow which is the other site. I don’t know if they have any other sites. They have the places where there is nuclear fuel, research reactors and so forth. The IAEA should keep track of all this material to ensure that nothing is diverted away for bomb-making.
Christopher maintains “Standards properly applied” and accuses that “Iran and its defenders have periodically contested the legal standards applied to Tehran, but these criticisms have so far been tendentious and insupportable”.
1. He starts with “The first challenge for IAEA investigators was to verify compliance with Iran’s Comprehensive Safeguards Agreement” and that “In fact, it is worth mentioning that if the IAEA were guilty of any legal fault at this point, it was in its refusal to follow its own statute for nearly two years in order to protect Iran from UN Security Council sanctions. Pursuant to the IAEA statute, if noncompliance is found, the Board of Governors shall report it to the Security Council; this was not done, however, until 2006.”
– However, Iran made all necessary remedial actions pertinent to its “reporting failures” (without any diversion), so the IAEA concluded in November 2004 (GOV/2004/83) that all declared nuclear materials had been accounted for; and later on, all outstanding issues relevant to nuclear material, subject to safeguards agreements, resolved (GOV/2007/58 and GOV/2008/4);
– Christopher may better explain, to avoid being accused of “tendentious”, why non-compliance with safeguards agreement by Egypt and South Korea never reported to the UN! (the latter one actually “diverted” nuclear material to nuclear explosive device, to the effect of non-compliance with the very Treaty)
Click to access pierregoldschmidt4ea00911a3fe7.pdf
2. Regarding to modified Code 3.1 of the Subsidiary Arrangements:
– Although “Subsidiary Arrangements are intended to be legally binding”, Christopher may consider statements by the IAEA Secretariat Legal Adviser that “It should also be noted that currently more than 60 States with the operative SQPs based on the old standard text for SQPs, and 27 States party to the NPT but without a CSA in force, are not yet bound by provisions similar to that in the modified Code 3.1.”
Click to access Legal_Adviser_Iran.pdf
– Christopher says “Iran refuses to provide timely information, it is another safeguards violation”. However, IAEA Secretariat Legal Adviser’s opinion was that “While Iran’s actions are inconsistent with its obligations under the Subsidiary Arrangements to its Safeguards Agreement, this should be seen in proper context. Given the fact that Article 42 [of Iran’s Safeguards Agreement] is broadly phrased and that the old version of Code 3.1 had been accepted as complying with the requirements of this Article for some 22 years prior to the Board’s decision in 1992 to modify it as indicated above, it is difficult to conclude that providing information in accordance with the earlier formulation in itself constitutes non-compliance with, or a breach of, the Safeguards Agreement as such.”
– Iran, to repel such accusations while guarding its nuclear installations should accept, in my opinion, modified Code 3.1; at the same time, use full capacity of provisions in model Code 3.1 which provides “If the information cannot be provided in full at the time specified, the Agency and […] may agree on a later date for completion of the information.” (Note 2 of Code 3.1 in old or modified Code 3.1)
3. Christopher maintains “The Security Council has also acted under Chapter VII of the UN Charter to require that Iran comply with the arrangements; Iran’s refusals constitute violations of this charter.”
– “The UNSC resolutions against Iran’s peaceful nuclear program has been in contradiction with the Charter of the United Nations”;
Iran: http://www.iaea.org/Publications/Documents/Infcircs/2012/infcirc837.pdf
– “Acting under chapter VII of the Charter, the Security Council has adopted two resolutions on the Iran nuclear situation thus far [8 March 2007]. In both resolutions, the Council declined to make any finding that the situation it faced constituted a “threat to the peace, breach of the peace, or act of aggression” as provided by Article 39; yet such a finding is necessary under an orthodox reading of the Charter for the adoption of enforcement measures under Articles 41 (sanctions) and 42 (military action).”
Michael Spies: http://lcnp.org/disarmament/iran/Iran-UNSC.pdf
– “The Iran resolutions were not validly adopted because no peace threat was determined”;
Eric A. Brill: http://irannucleardispute.blogspot.com
4. Christopher states “the Security Council has imposed further obligations upon Iran: to take steps demanded by the IAEA Board of Governors to clarify outstanding issues, to suspend enrichment-related and reprocessing activities, to stop construction of a heavy water reactor, to ratify — and, pending ratification, comply with — the Additional Protocol, and to give the IAEA more access to information than even specified by the protocol”.
– However, as Iran maintains “there are no provisions in the Safeguards Agreements and IAEA Statute which may authorize the United Nations Security Council (UNSC) to take over the role of the IAEA in implementing the Safeguards Agreements, impose new requirements, or modify the obligations of the parties to the Safeguards Agreements; nor does the Agency have the right or authority to impose ultra vires demands on Iran by relying upon the UNSC resolutions.”
5. Christopher describes the Additional Protocol as “a safeguards standard established in the 1990s in order to give the IAEA more investigative tools to fulfill its responsibility for verifying the absence of undeclared nuclear activities and the correctness and completeness of declarations.
– He does not mention that Additional Protocol has been affirmed as a “voluntary instrument” in the 2010 NPT Review Conference (NPT/CONF.2010/50 (Vol. I) as well as the Agency General Conference (GC (54)/RES/11); and how one accept that a “voluntary instrument” be turned into a legal obligation, as a “safeguards standard”;
6. Christopher maintains, and Andreas agrees that “This IAEA responsibility stems from the CSA, which gives the agency the “right and the obligation” to ensure that safeguards are applied to “all” relevant nuclear material in peaceful activities”. Regarding to “all” nuclear material, that Dan made excellent work on, but one may add:
– Christopher, as well as Andreas, fails to transcript Article 2 of Iran’s Safeguards Agreement completely as it clearly reiterates on Agency’s right and the obligation to ensure that safeguards will be applied “in accordance with the terms of this Agreement” on all source or special fissionable material! Therefore, requiring Iran to implement verification measures outside the purview of Iran’s Safeguards Agreement, such as implementing Additional Protocol, is beyond the Agency’s “rights and the obligations”, illegal and non-binding. Here, one should remind Andreas that “Agreement should be kept”!
– The idea that the final conclusion of implementing safeguards agreements, which includes “all” nuclear material, according to Christopher and Andreas, as had being reported annualy by the Agency in Safeguards Implementation Reports (SIRs), is pending to implementation of Additional Protocol, is not only a new invention, but also damages the safeguards agreements integrity and is a real “renege”! and creates the question how different standards may being used in conclusion of implementing safeguards agreements?
– One may hope that this would be the last invention, but in fact is a one way path to be continued, beyond Additional Protocol, on exploring new ideas and imposing new undertakings, based on the Agency Board’s unilateral interpretation of safeguards agreements, which is not justifiable.
http://belfercenter.hks.harvard.edu/experts/1492/pierre_goldschmidt.html
Useful points.
I am not a legal expert but my understanding is that there is no crisp legal definition of non-compliance: basically the IAEA can determine non-compliance as they wish.
This would normally be OK, if the Agency was impartial and acting professionally.
However findings of “non-compliance” are not terribly meaningful when the Agency is being pressured politically and/or acting unprofessionally.
e.g.
http://www.csmonitor.com/World/Middle-East/2011/1109/Iran-nuclear-report-Why-it-may-not-be-a-game-changer-after-all
QUOTE:
=============
“For Kelley, formerly with the IAEA, the current Iran report is a “real mish-mash” that includes some “amateurish analysis.”
……..
“The Agency is wrong. There are lots of applications for EBWs,” says Kelley. “To be wrong on this point, and then to try to misdirect opinion shows a bias towards their desired outcome…. That is unprofessional.” ”
===========
Andreas in his BAS essay states “Consider that the agreement applies to all source or special fissionable material, irrespective of where it is located, if it is declared or undeclared…In practice, this means that the IAEA always needs to check that Iran’s material declarations are correct as well as complete.”
This would be true if Iran had ratified the AP which it has not.
The IAEA is pretty clear on this point:
http://www.iaea.org/Publications/Factsheets/English/sg_overview.html
“Basically, two sets of measures are carried out in accordance with the type of safeguards agreements in force with a State.
One set relates to verifying State reports of declared nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.
Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.”
====================
This is actually an ironic point the Dan touched on previously: on one hand they argue that Iran has the burden to prove the absence of undeclared material, and on the other hand they insist that Iran has to sign the Additional Protocol — whose purpose is to establish the absence of undeclared material. In reality, all Iran has to do under its basic safeguards is to allow inspections to establish that there has been no diversion of declared nuclear material, and that’s all. If the basic safeguards is used to establish the absence of undeclared material, then why was the Additional Protocol created?
Exactly.
And that brings me again to the point Pierre Goldschmidt made and which I mentioned above:
http://carnegieendowment.org/2011/11/03/looking-beyond-iran-and-north-korea-for-safeguarding-foundations-of-nuclear-nonproliferation/6nz6
“the Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate and to provide the assurances the international community is expecting ”
i.e. the expectations of the “international community” [P5+1?] are misplaced.
As my link to the IAEA above states it is only with an AP that “enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.”
Absent an AP, it is OK if the IAEA cannot do so. They ought not be expected to do so.
Had there been any concrete evidence of weapons development despite compliance with CSA, then the issue would be rightly addressed in an emergency NPT review conference, and potentially an NPT 2.0 would be drafted to plug up any loopholes.
That, folk are parsing CSA language to come up with unlimited powers to accuse/indict, and/or rubbishing ‘procedure’ in favor of ‘luck’, as per Andreas Persbo’s reference to “unlucky,” is a sure sign of absence of evidence of wrong-doing by Iran.
To me, a non-expert, it all looks like an attempt at codifying baseless suspicion. If this attempt is successful, and CSA is thus reinterpreted and tortured inferences from the ‘particular’ (case of Iran, for decades in US cross hairs,) and applied generally based on ‘luck,’ I think a great many sovereign states may well rethink their membership to NPT, before they get “unlucky” with even more reinterpretations down the pike.
Lets face it, lady luck can turn her back on anyone at anytime. And insist you cannot wait for neither concrete evidence, nor UNSC authorization to go to war, as Ms Rice did.