My Final BAS Roundtable Contribution is Posted
Posted: December 3, 2012 Filed under: Nuclear 6 CommentsIts here. I’ll go ahead and pasted the text here, since its short. Ford and Persbo will now have a final chance each to respond.
Christopher Ford and I agree on one thing: The IAEA’s Comprehensive Safeguards Agreement (CSA) needs to be read clearly. We differ, however, in that I am reading the CSA both clearly and fully as the text is actually written, and not as Ford and Andreas Persbo — or perhaps the IAEA itself — might wish that the agreement had been written.
Ford and Persbo have cherry-picked phrases from Articles I and II of the agreement to support their arguments that the CSA provides the agency with the authority to investigate and assess whether there are undeclared fissile materials in Iran. However, they essentially disregard the entire rest of the treaty, which details the agreed processes for the agency’s application of safeguards.
It’s as if Ford and Persbo want to convince readers that the CSA and the Additional Protocol are one and the same. Under the protocol, the IAEA’s mandate and the agreed processes for carrying out investigations and assessments, do allow the IAEA, within limits, to investigate and assess the completeness, in addition to the correctness, of a state’s declaration. However, the CSA and the protocol are not one and the same, and the protocol is not in force in Iran’s case. Thus, the IAEA’s mandate for investigation and assessment in Iran’s case must be taken solely from the text of the CSA.
Article I of the CSA is Iran’s basic undertaking, while Article II is the agency’s mandate. Article II states that the agency has the “right and obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”
Chiding me for rendering an interpretation inconsistent with the text of Article II, Ford, when quoting the article, rather conveniently omitted the above-italicized clause entirely. But these words are not just superfluous, as his ellipsis implies — they are essential for a holistic understanding of what Article II means within the context of the CSA. This clause explicitly makes the IAEA’s mandate in Article II subject to, and circumscribed by, the procedures agreed to in the CSA.
If Ford’s interpretation were correct — and the IAEA’s mandate were not limited by the agreed procedures in the rest of the CSA — it would mean that the agency would have unlimited authority to ensure that safeguards are applied on all fissionable material anywhere within the territory of Iran, by any means the agency considers necessary, no matter how intrusive or compromising of Iran’s national security or sovereignty. The IAEA could require Iran to meet any evidentiary standard it unilaterally determined, in order to subjectively satisfy itself of the absence of undeclared materials in Iran (i.e., require Iran to prove the negative).
That is a completely untenable reading of the CSA. No state would ever agree to such a broad and unrestricted mandate for the IAEA. That’s why Article II specifies that the agency’s mandate is subject to, and limited by, the terms of the agreement. Those terms stipulate in detail the process to be followed for applying safeguards. That process essentially involves a declaration by Iran, and the IAEA’s verification of the correctness of that declaration.
The agency, therefore, is simply incorrect when it claims that its mandate under the CSA extends to investigations and assessments beyond the agreement’s terms — i.e., beyond verifying the correctness of Iran’s declaration.
Arms Control Law 
Seems to me that the IAEA’s statement about verifying completeness is merely aspirational and a statement about ultimate goals; the means available to the IAEA however are limited by the CSA to verifying correctness, and the IAEA has to rely on other means to ensure completeness. However to proclaim that that the AP is already part of the CSA is just laughable. The IAEA hasn’t verified the completeness of any country’s declaration unless the AP is in force.
If I’m right, in fact, the Agency has limited authority to verify the completeness of declarations on taking of “physical inventory” of nuclear material for each “material balance area” (article 58.c. of the Safeguards Agreements). But, for this purpose, also, Safeguards should be applied “in accordance with the terms of this Agreement”, not through application of Additional Protocol!
Moreover, regarding to final conclusion, the implementation of Safeguards Agreement should be concluded in respect of each “material balance area”, as provided for in article 30, meaning that the final conclusion in respect of each “State” should be achieved from conclusions of all these MBAs:
“OBJECTIVE OF SAFEGUARDS
28. The Agreement should provide that the objective of safeguards is the timely detection of diversion of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of nuclear weapons or of other nuclear explosive devices or for purposes unknown, and deterrence of such diversion by the risk of early detection.
29. To this end the Agreement should provide for the use of material accountancy as a safeguards measure of fundamental importance, with containment and surveillance as important complementary measures.
30. The Agreement should provide that the technical conclusion of the Agency’s verification activities shall be a statement, in respect of each “material balance area”, of the amount of material unaccounted for over a specific period, giving the limits of accuracy of the amounts stated.”
And I understand that arbitration and special inspections are available recourses in case of no diversion. Not referral to the UNSC.
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 ”
Dan,
Thank you for the link provided in armscontrolwonk blog which guided me here. Your site, along with the valuable comments, is truly a must read for whoever is interested by the legal aspect of the Iranian nuclear issue.
I spent part of my lunch time today reading the BAS electronic roundtable which was quite instructive, and I believe the following comment regarding Ford’s latest contribution is worth mentioning. (Sorry in advance for the long post)
He says, referring to a September 2012 IAEA General Conference resolution:
“These steps do not, in any way, mean that the IAEA cannot investigate the completeness of state declarations absent in an Additional Protocol. Such an interpretation is even rejected by the IAEA membership, which, in the latest safeguards resolution, noted “that the implementation of comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of a State’s declarations.”
But, one brief statement from the IAEA director in 2000 and simply reading through the rest of the quoted document, reveal that although the quotation is correct but the completeness of Ford’s assertion, therefore his intentions, cannot be validated.
1) El-Baradei statement in 2000, linking directly the completeness to the AP: http://www.iaea.org/newscenter/statements/2000/ebsp2000n007.shtml
“In this regard, I should mention that the Final Document of the NPT Review Conference reaffirmed that the implementation of comprehensive safeguards agreements should be designed to provide credible assurance about the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear material and activities. However, the Document also noted that comprehensive safeguards agreements provide only a limited level of assurance regarding the absence of undeclared nuclear material and activities, and hence recognized that the measures to strengthen the effectiveness and improve the efficiency of the safeguards system must be implemented by all States party to the NPT. I am pleased therefore to be able to present to the Board another five draft Additional Protocols: for Azerbaijan, Nigeria, Switzerland, Turkey and Ukraine.”
And here the next 4 paragraphs of the document where the quotation is from along with Ford’s quoted paragraph:
Click to access gc56res-13_en.pdf
“(g) Noting that the implementation of comprehensive safeguards agreements should be
designed to provide for verification by the Agency of the correctness and completeness of a
State’s declarations,
(h) Stressing the importance of the Model Additional Protocol approved on 15 May 1997 by
the Board of Governors aimed at strengthening the effectiveness and improving the efficiency
of the safeguards system,
(i) Noting that safeguards agreements are necessary for the Agency to provide assurances
about a State’s nuclear activities, and that additional protocols are very important instruments
for enhancing the Agency’s ability to derive safeguards conclusions regarding the absence of
undeclared nuclear materials and activities,
(j) Stressing the importance of the Agency exercising fully its mandate and its authority in
accordance with its Statute to provide assurances about the non-diversion of declared nuclear
material and the absence of undeclared nuclear material and activities in accordance with
respective safeguards agreements and, where relevant, with additional protocols,
(k) Noting that decisions adopted by the Board of Governors aimed at further strengthening
the effectiveness and improving the efficiency of Agency safeguards should be supported and
implemented and that the Agency’s capability to detect undeclared nuclear material and
activities should be increased within the context of its statutory responsibilities and safeguards agreements,….”
2) Furthermore regarding the roll call of the 2012 resolution: paragrpah 69 in the following “Record of the ninth Meeting” document, shows, unlike what Ford is trying to imply, that “It not only goes against the apparent majority view on safeguards implementation, it also goes against the views of member states, including Iran”, Iran has abstained from voting in favor of the resolution (note as well Iran’s representative statement regrading paragraph k and m.)
(this is a one line URL address)
http://www.google.com/url?sa=t&rct=j&q=&esrc=s&frm=1&source=web&cd=6&cad=rja&ved=0CFYQFjAF&url=http%3A%2F%2F161.5.1.75%2FAbout%2FPolicy%2FGC%2FGC56%2FGC56Records%2FEnglish%2Fgc56or-9_en.pdf&ei=gXi-UL_WG-i20AGwkoGQDQ&usg=AFQjCNFE_MMj393VVA0Rd5dqyp09A4Y_GQ&sig2=4X5UzlDr0Ykt62_awwNcXQ
Thanks very much for your comment, Ataune. Its good to see another ACW regular here!
“Christopher Ford and I agree on one thing: The IAEA’s Comprehensive Safeguards Agreement (CSA) needs to be read clearly. We differ, however, in that I am reading the CSA both clearly and fully as the text is actually written…”
Yes, in IAEA terms you are reading it correctly and completely! 😉