New Contributions to BAS Roundtable [UPDATED]

I just thought I’d note that there have been two additional contributions so far to the Bulletin of the Atomic Scientists Roundtable involving Chris Ford, Andreas Persbo, and myself.

Both Chris and I have published contributions subsequent to the initial ones by each author, and this next Monday Andreas’s next piece should be up. [UPDATE 11/26: Its now up. Andreas seems to have given up on legal analysis entirely at this point, and now tries to support his arguments with the assertion that “Law is decided by policy, and policy is often determined by experience.”  Wow.  I don’t even know what that’s supposed to mean, but Andreas seems to have left the building of proper legal interpretation and argumentation. Further, somehow Andreas doesn’t understand that my statement that the IAEA DG has “consistently confirmed that all safeguarded material in Iran is currently in peaceful use” is correct. I said “all safeguarded material,” meaning all material that Iran has declared and that is therefore under IAEA safeguard.]

Have a look at Chris Ford’s piece published just yesterday.  Don’t worry – I’m preparing a crushing reply. It will be published not this coming Monday but the next (December 3).

Did you notice in Ford’s quotation from the CSA in Article II that he conveniently left out the phrase “in accordance with the terms of this agreement”? That omission is very telling (and not a little ironic, as he is at that point castigating me for rendering an interpretation inconsistent with the text of Article II), and therein lies his interpretive error.
He and Andreas in their pieces interpret selected terms from Article II, but omit others. And they completely disregard the entirety of the rest of the treaty, which provides in detail the agreed processes whereby the IAEA is to carry out its Article II mandate. In doing so, they ignore the treaty context of the terms they do discuss, which is a mortal sin against proper treaty interpretation per VCLT Article 31. Through the clause Ford omits, Article II explicitly makes the IAEA’s mandate subject to these agreed procedures, and these procedures alone.
If Ford’s interpretation were correct, and the IAEA’s mandate was unbound by these agreed procedures in the rest of the CSA, it would mean the IAEA would have the authority to do anything it wants to inside Iran, and require Iran to jump through any evidentiary hoops it feels necessary, in order to satisfactorily verify the absence of undeclared materials in Iran (i.e. prove the negative). That’s a completely untenable reading of the CSA – no state would ever agree to that – and that’s why Article II specifies that the IAEA’s mandate is subject to the terms of the agreement. Those terms specify the process for applying safeguards, which essentially involves a declaration by Iran, and the IAEA’s verification of the correctness of that declaration. The Additional Protocol, of course, goes further in providing for an expanded scope of agreed processes for investigation by the IAEA. But we are not dealing with the AP in Iran’s case. UNSC decisions do not change this fact. I made all of these points in my original ACL post, so it’s not new thinking.
Basically, both Ford and Persbo clearly wish that the AP was in force in Iran’s case, and they are straining to try and interpret the CSA to do what the AP would do. But the AP isn’t in force in Iran’s case, and nothing changes that fact. And torturing the interpretation of the CSA only de-legitimizes the CSA in the eyes of developing states.
Advertisements

14 Comments on “New Contributions to BAS Roundtable [UPDATED]”

  1. yousaf says:

    “UNSC decisions do not change this fact.”

    That is the important part — and something many people seem to not get. I know you have addressed it before but it may be useful to re-state why the UNSC cannot expand the mandate of the IAEA.

    Not being a lawyer myself, my naive view on it is that the UNSC can prod Iran to comply by its CSA (which Iran is now doing), but cannot add additional hoops that Iran has to jump through and force the IAEA to make certain that Iran jumps through those hoops. One UN body cannot unilaterally expand the mandate of another UN body. Please do correct me if I am getting something wrong.

    I also found your link to Pierre’s Goldschmidt’s write-up on the inconsistent UNSC referral of various states when they are found to be in “non-compliance” to be very interesting and eye-opening:

    http://www.carnegieendowment.org/files/goldschmidt_survival20090201.pdf

    He says “The actions taken by the board in each case were inconsistent
    and, if they go uncorrected, will create unfortunate precedents.”

    Well, yes, they have.

    I put non-compliance in quotes above since Mr. Goldschmidt admits that there is no firm legal/technical criteria for finding a state to be non-compliant in the first place. Again, I am not a lawyer, but it seems a better metric for finding official non-compliance would be the diversion of nuclear material, as outlined in the CSA. For everything else, the CSA opens the possibility of arbitration if either the state or the IAEA should so desire.

    And whatever metric is used, if a state is not compliant then there ought to be uniform procedures: Egypt, South Korea and Libya were found in non-compliance but not referred to the UNSC. Bad precedent.

    • yousaf says:

      One more thing that Mr. Ford and Mr. Presbo get wrong is the declared vs. undeclared material.

      According to the IAEA itself Prof. Joyner is correct that just declared nuclear materials are to be accounted for by the IAEA in a nation with no Additional Protocol.

      The IAEA is pretty crystal clear on this point:

      http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

      QUOTE:
      ================
      “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.”

      ===============

      If the benefits of the Additional Protocol were available to the IAEA without a state having ratified the AP, then there would be no need for the AP.

      • If the IAEA has reason to believe that there are undeclared nuclear sites/activities, then they can request that the Board approve “special inspections” — it did so in the case of Romania. It has not done this for Iran and instead it has arbitrarily expanded its authority beyond accounting for declared nuclear material, into investigating “possible military related activities” — whatever the heck that means — at non-nuclear sites, such as demanding access to Iran’s missile programs. This is entirely inconsistent with the powers of the IAEA or Iran’s CSA, which specifies twice that the “exclusive purpose” is to account for nuclear material.

  2. observer says:

    I hope that the two following pieces, regarding to verification of all nuclear material and therefore absence of undeclared nuclear material and activities, would be helpful:

    1- Excerpts from an article published by the Agency in 1983 (by Mr. H. Gruemm the former Deputy Director General of the IAEA Department of Safeguards):

    NPT safeguards agreements according to INFCIRC/153/(Corr.) give the IAEA the “. . . right and obligation to ensure that safeguards will be applied, in accordance with the terms of the agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State . . .”. The “terms of the agreement” include verification procedures by the IAEA to ensure compliance with the basic commitment by the State, namely not to divert nuclear material. However, no specific procedures are foreseen for verification by the IAEA of the second commitment, namely the reporting of all nuclear material subject to safeguards in particular for verification of the completeness of the initial inventory report. The reasons for this are understandable: a kind of international police organization with inspectors roaming around in sovereign States in the search of possible clandestine nuclear facilities or material is universally unacceptable and has not been suggested by anyone.

    As a consequence of its inability to verify the completeness of reports by States, the IAEA cannot exclude from realistic scenarios the hypothesis that unsafeguarded facilities which are connected by a flow of nuclear material with safeguarded facilities might exist also in an NPT situation. For instance, at least an assembly workshop is required for the manufacture of a nuclear explosive and it can obviously not be expected that this would be submitted to safeguards. If the possibility of the existence of such a facility can be excluded a priori, the manufacture of a nuclear explosive would be physically impossible. As a consequence the reason for verifying declared material would become meaningless.

    Also, the existence of a hot cell complex not containing nuclear material – and therefore not under safeguards – that might be used for the reprocessing of diverted spent fuel cannot be excluded in a credible diversion hypothesis. Nor can the diversion and stockpiling of spent fuel for later prohibited uses be excluded a priori. Unless assumptions of this kind were made, it could be argued that no or little purpose would be served by implementing safeguards in a country which had only power reactors, because separation of plutonium from spent fuel or enrichment of uranium – and thus manufacture of nuclear explosives would then be physically impossible.

    It follows that in analysing possible diversion scenarios the IAEA has to assume as a working hypothesis that diversion paths might lead from facilities containing safeguarded material to unsafeguarded facilities and vice versa. Only then can assurance be provided that all anomalies at a safeguarded facility which might indicate diversion have been properly identified, and that the non-detection of any significant anomaly means that, in fact, no diversion occurred. Verification measures to resolve all anomalies disclosed at a facility whatever their cause may be are foreseen in the relevant facility attachment and are covered by the terms of the safeguards agreement. The application of such measures which have been worked out with that purpose in mind is part of the obligation of the IAEA to apply safeguards to all peaceful nuclear activities in a country.

    http://www.iaea.org/Publications/Magazines/Bulletin/Bull254/25403452729.pdf

    2- Document of the 1995 NPT Review and Extension Conference – 17 April to 12 May 1995 – New York (NPT/CONF.1995/ 7/Part I):

    “3. Agency verification of the initial reports provided by States under comprehensive safeguards agreements is an important aspect of providing assurance of the absence of undeclared nuclear activities.”

    http://www.un.org/Depts/ddar/nptconf/21aa.htm

  3. I think in the BAS debate, one has to decide first what is the question being debated. On whether Iran has a legal duty to verify the “absence of undeclared activities,” then the proponents have to specify what specific legal authority allows them to make this demand. It either comes from Iran’s existing safeguards, or from the Additional Protocol itself, or from the measures that the UNSC has taken on Iran. I think we can all agree that the existing safeguards do not impose such a standard (which the whole reason why the Additional Protocol was drafted in the first place.) Iran is not a signatory to the AP. And the UNSC doesn’t have the power to make the AP applicable to Iran by fiat and indeed the relevant resolutions merely “call upon” Iran to sign the AP. So what is the source of authority for this demand on Iran to prove the “exclusively peaceful” nature of its program? I’d like to see that addressed directly.

    Note that the Nov 2012 IAEA report states that the IAEA is unable to verify the absence of undeclared activities and the exclusively peaceful nature of Iran’s nuclear program because Iran has not implemented the Additional Protocol. No duh.

    • yousaf says:

      “So what is the source of authority for this demand on Iran to prove the “exclusively peaceful” nature of its program? ”

      Very good question (and pls see my comment below, related to this also).

      As far as I can tell the IAEA is simply making a tautological statement that the “Agency is unable to provide credible assurance….to conclude that all nuclear material in Iran is in peaceful activities.”

      That is of course true, as it is also for 51 other states. The response should be “Yes, and that is OK — thank you.” The Agency cannot also verify the purely peaceful nature of Brazil’s and Argentina’s nuclear program.

      The problem, I think, is that the media and many pundits think that the IAEA is castigating Iran by stating this. The IAEA is simply making a statement of the limits of their ability.

      • Dan Joyner says:

        Yes, I agree with this, Yousaf.

      • Yes and it would be nice — and accurate — of the IAEA to state that while it has not verified the “exclusively peaceful nature” of Iran’s nuclear program, it hasn’t done so and isn’t tasked with doing so, for any other country that has not signed the AP such as Brazil and Argentina and Egypt. But that additional bit of disclosure would throw a wrench in the scaremongering. So now apart from a simple truism (that the IAEA’s job is NOT to verify the exclusively peaceful nature of Iran’s nuclear program) then the next question is why some people think Iran has a positive duty to prove its “exclusively peaceful” nature nonetheless.

  4. yousaf says:

    Interesting.

    In Presbo’s essay there’s a link to IAEA statement that also for 51 other states a finding of “no indication of the diversion of declared nuclear material from peaceful nuclear activities. Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.”

    see:
    http://www.iaea.org/OurWork/SV/Safeguards/es/es2011.html

    Another way to state the last sentence is to say what the DG report says about Iran — ie. for all 51 states: that ” the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in [51 states], and therefore to conclude that all nuclear material in [51 states] is in peaceful activities.”

    It is ok that the IAEA cannot provide such assurance — it is not its task to do so (in nations without an AP).

  5. Andrea Stricker says:

    ISIS and several co-authors and endorsers have today released a report assessing the IAEA’s mandate to investigate Iran, as promised several weeks ago. It should be of interest to your discussion. The link is here: http://www.isis-online.org/uploads/isis-reports/documents/Misinterpreting_the_IAEA_27Nov2012.pdf

    • yousaf says:

      My response to just one of the wrong points in the ISIS write-up — some of this I have already posted, but now all in one place:

      A text released today by the ISIS organization says (just one example of its many mistakes):

      http://isis-online.org/uploads/isis-reports/documents/Misinterpreting_the_IAEA_27Nov2012.pdf

      “Moreover, comprehensive safeguards agreements involve more than the verification of a state’s declared nuclear materials. They also involve that which should be declared.”

      This is, of course, only true if the state has (voluntarily) ratified the Additional Protocol. Iran has not.

      To settle this issue one can see what the IAEA itself says:

      The IAEA is pretty crystal clear on this point:
      http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

      QUOTE:
      ================
      “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.”
      ===============
      If the benefits of the Additional Protocol were available to the IAEA without a state having ratified the AP, then there would be no need for the AP.

      Furthermore, the UNSC has not “imposed” the AP on Iran (as it cannot do so), and only “calls upon” Iran to consider doing so. The AP is a voluntary measure.

      Moreover, there is no one who has tasked the IAEA with proving that a nation’s nuclear program is purely peaceful.

      In their reports on Iran, the IAEA is simply making a tautological statement that the “Agency is unable to provide credible assurance….to conclude that all nuclear material in Iran is in peaceful activities.” That is of course true, as it is also for 51 other states. The Agency cannot also verify the purely peaceful nature of Brazil’s and Argentina’s nuclear program. Not a problem.

      The problem, I think, is that the media and many pundits think that the IAEA is castigating Iran by stating this. The IAEA is simply making a statement of the limits of their ability.

      For 51 other states, the IAEA also finds “no indication of the diversion of declared nuclear material from peaceful nuclear activities. Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.”
      see:

      http://www.iaea.org/OurWork/SV/Safeguards/es/es2011.html

      Another way to state the last sentence is to say what the DG report says about Iran — ie. for all 51 states: that ” the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in [51 states], and therefore to conclude that all nuclear material in [51 states] is in peaceful activities.”

      Pierre’s Goldschmidt’s write-up on the inconsistent UNSC referral of various states when they are found to be in “non-compliance” to be very interesting and eye-opening:

      http://www.carnegieendowment.org/files/goldschmidt_survival20090201.pdf

      He says “The actions taken by the board in each case were inconsistent
      and, if they go uncorrected, will create unfortunate precedents.”

      Well, yes, they have.

      There are no firm legal/technical measures to determine when a country is in “non-compliance” to begin with. According to the IAEA-Iran Safeguards agreements, the proper course of action is arbitration. viz.

      http://www.iaea.org/Publications/Documents/Infcircs/Others/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…”

      In any case, although Iran may have been found in non compliance a decade or so ago, it is in compliance now, according to the CSA.

      Also, there are indications that 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.” ”
      ===========

      For further information on the true legal mandate of the IAEA (and why it cannot be expanded by another UN body), please see:

      http://jurist.org/forum/2011/11/dan-joyner-iaea-report.php

      Finally, as the US and Israeli Intelligence Community has concurred: there is no extant nuclear weapons work in Iran. See:

      http://www.reuters.com/article/2012/03/23/us-iran-usa-nuclear-idUSBRE82M0G020120323

      The DNI has “high confidence” that no such nuclear weapons work is going on in Iran.

      Mohamed ElBaradei, the Nobel Peace Prize laureate who spent more than a decade as the director of the IAEA, said that he had not “seen a shred of evidence” that Iran was pursuing the bomb.

      His full quote from the New Yorker article:

      http://www.richardsilverstein.com/wp-content/uploads/2011/06/Hersh-6-6-11.pdf

      ‘During my time at the agency we haven’t seen a shred of evidence that Iran has been weaponizing, in terms of building nuclear-weapons facilities and using enriched materials….I don’t know the future intentions of Iran, but I don’t believe Iran is a clear and present danger. All I see is the hype about the threat posed by Iran.’

      The dangerous route that ISIS is taking (by thinking — or wishing — that the IAEA has greater powers than it does) will harm the nonproliferation regime and will be a great disincentive for nations to sign on to future nonproliferation initiatives.

    • ISIS is basically trying to shoe-horn the 93+2/Additional Protocol standard into the CSAs — and it doesn’t fit, sorry. The IAEA itself has stated in its own documents that these are two separate functions:

      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…Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” …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 ”

      That was what the IAEA itself says. Now in the case of Iran, the second set of standards are being applied, even though Iran is not a signatory to the AP

    • Question: If their existing CSA empowers the IAEA to verify the “absence of undeclared” nuclear material/activities, and the AP merely helps that process along but is not required, then why has the IAEA not verified the absence of undeclared nuclear materials/activities in other countries that are not AP signatories? Has the IAEA verified the “exclusively peaceful nature” and the “absence of undeclared activities” for Brazil, or Argentina, or Egypt? Nope.

      In fact the IAEA pointedly and specifically makes NO assertion about “absence of undeclared” nuclear material/activities for the 68 states that have a CSA but no AP in force,and instead limits itself to statements about the “diversion of declared nuclear material”
      http://www.iaea.org/OurWork/SV/Safeguards/es/es2010.html

      And yet for some reason, Iran is treated as an exception to those 68 countries, which is subjected to a standard that it is not a party to.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s