New Contributions to BAS Roundtable [UPDATED]
Posted: November 20, 2012 Filed under: Nuclear
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.