Question on UNSCR 1929

I received a very good question a couple of days ago from Michal Onderco (see his website here).  With his permission, I will reprint here his question and my answer for interested readers:

——————————————————————————-

Dear prof. Joyner,

I am writing to you with a question about the blog post you wrote last year
about the IAEA standards when it comes to Iran. In your blog in Sep 13,
2012 you wrote that the IAEA could not claim the right to access any
Iranian facilities under UNSCR 1737, because it only calls on Iran to
cooperate with the Agency.

However, as you are certainly aware, in later work, the UNSCR adopted a
much tougher language. In the R 1929 of June 9, 2010, there are the
following words in paragraph 3:

“Reaffirms that Iran shall cooperate fully with the IAEA on all outstanding
issues, particularly those which give rise to concerns about the possible
military dimensions of the Iranian nuclear programme, including by
providing access without delay to all sites, equipment, persons and
documents requested by the IAEA, and stresses the importance of ensuring
that the IAEA have all necessary resources and authority for the fulfilment
of its work in Iran;”

This paragraph, to me, seems fairly clear on whether IAEA can request
access to Parchin – and it can argue it does so on the basis of UNSCR 1929.
And while we could hold a debate whether it is lawful for the UNSC to
impose these obligations on Iran, in absence of evidence to the contrary,
the IAEA can very well base their position on this paragraph.

You seem, however, to ignore 1929 in your blogpost (and also in your
subsequent writings) on the subject. I very much like your analyses but I
remained perplexed about why the above-mentioned clause of the UNSCR 1929
couldn’t be the legal basis for IAEA’s demand to access Parchin.

Thank you for your answer and reply in advance.

Best regards,
Michal

—————————————————————————————

Dear Michal,
Thank you for your message. You ask a very good question.

I maintain that the UNSC cannot add to the authority or mandate of the IAEA through its UN Charter powers. Nor does the UNSC appear to be attempting to do so in either 1737 or 1929. Rather, they are in both resolutions imposing obligations directly on Iran. Whatever obligations Iran these UNSC resolutions impose on Iran (and you’re right that I think there is a legal limit to the UNSC’s power to do this), these obligations on Iran have no impact upon the scope or content of the IAEA’s mandate to investigate and assess. That authority is exclusively to be found in the IAEA’s own legal source documents – its statute and its safeguards agreements with NNWS.

Furthermore, I think the best way in which to read this particular command by the UNSC in 1929, is to read it as a command to Iran to cooperate with the IAEA to the extent that the IAEA itself is acting within its existing lawful authority. Otherwise, this would have to be read as an attempt by the UNSC to aggrandize the authority of the IAEA beyond its current sources of authority. Again, the UNSC does not say that this is what it’s trying to do, and I don’t think we should read in such an attempt.

I genuinely think that in this provision of 1929, as well as in 1737, the UNSC was simply attempting to use its Charter authority to command Iran to cooperate with the IAEA in the IAEA’s regularly authorized work. I do not think the intent of the resolution was to tell Iran that it had to do whatever the IAEA said, no matter what the IAEA wanted it to do, and with no limits on the IAEA’s discretion. The text of the resolution does not appear to support this reading, and I think that would be a manifestly absurd and unreasonable reading of the resolution.

Thus, inasmuch as inspection of Parchin is not within the regular mandate of the IAEA pursuant to its own governing documents (and it’s not), it is also not included in the obligations placed on Iran pursuant by Resolution 1929.

I’m happy to discuss this further.

All the best,
Dan Joyner

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22 Comments on “Question on UNSCR 1929”

  1. Interesting question.

    “Reaffirms that Iran shall cooperate fully with the IAEA on all outstanding
    issues, particularly those which give rise to concerns about the possible
    military dimensions of the Iranian nuclear programme, including by
    providing access without delay to all sites, equipment, persons and
    documents requested by the IAEA,”

    This part certainly does not necessarily impose further authority on the IAEA. It specifically says Iran must comply with IAEA requests but does not extend the nature of those requests.

    One ambiguity here is whether the IAEA HAS authority to visit Parchin, absent the Additional Protocol. The consensus appears to be that the IAEA does not have that authority. If that is the case, then the requests by the IAEA vis-a-vis Parchin remain outside the scope of this Resolution.

    “and stresses the importance of ensuring that the IAEA have all necessary resources and authority for the fulfilment of its work in Iran;”

    This is a bit more ambiguous. Are they saying here that IRAN must insure that the IAEA has “all necessary resources and authority for the fulfillment of its work in Iran” or that the IAEA must insure that – meaning this UN Resolution is providing such authority?

    I would lean to the first interpretation, but an argument might be made for the second. And any ambiguity of this sort is certain to be leaped upon by people with that agenda.

  2. Johnboy says:

    …”but an argument might be made for the second.”…

    Well, yeah, anyone can make that argument. Argue away.

    But that argument flounders on a very simple question i.e. can the UN Security Council expand the legal authority of the IAEA?

    Since the legal authority of the IAEA derives from int’l treaties and bilateral agreements that (as far as I know) owe no legitimacy whatsoever to the United Nations then I would suggest that the answer is an emphatic “No”.

    If the IAEA secretariat wants greater authority then it needs to seek that from the source of its existing authority.

    And that source simply isn’t the UN, it is the state parties who signed onto the IAEA Statute and/or the state parties who signed onto the NPT, and/or whatever bilateral agreements may exist between the IAEA and individual member states.

    After all, the Red Cross can’t get the Geneva Conventions rewritten merely by running off to the UNSC with a fancy pen in their hand and the votes of the five permanent members in their pocket.

    It doesn’t work that way i.e. the only way that the Geneva Conventions can be rewritten is if the High Contracting Parties gather together and agree to those proposed changes.

    • Don Bacon says:

      Excellent, exactly correct. We’re talking contract law, regarding a treaty, an agreement, and not statutory law.

    • I’ m not entirely sure that the IAEA is as separated from the UN as proposed. After all, the IAEA has a mandate to refer actual breaches of the NPT to the UNSC as potential “threats to peace”. This mandate would not exist if it were STRICTLY a contract between nations completely outside the UN Charter.

      The UNSC, for itself, has no recourse once a breach is found except to sanction the NPT party found to be in breach. Now it may be that it can only do so under a finding that the breach constitutes a “threat to peace”. And I agree that as far as I know there has been no such finding in any Iranian resolution (I’m open to correction on that point.)

      But clearly the UNSC is ACTING “as if” it has the power to sanction an NPT member for a technical violation of the Safeguards Agreement, let alone an actual NPT breach, with or without a Chapter 7 finding of a “threat to peace”.

      Presumably the UN has legal advisors? What have they said on this issue?

      Because otherwise, if the UN has no legal authority to do what it is doing, then once again the issue raises: what good is international law?

      Back in 1947, when the UN was considering partitioning Palestine, it set up a Sub-Committee to study the issue of whether it was legal for the UN to do that. The Sub-Committee concluded that it was NOT. The UN did it anyway.

      I suspect we have the same situation here. Basically as long as none of the UNSC Permanent members object, the UNSC does as it pleases. Russia and China made a mistake – as they did with regard to the Libya Resolution – going along with imposing sanctions on Iran over this technical Safeguards violation.

  3. masoud says:

    Hi Dan,

    It’s being reported that Amano has been given a renewed four year mandate by the BOG. Apparently, thid was done by concensus.

    Two questions:
    What’s your assesment of how this will impact on the NPT regime?

    How do you perceice the possibility that this decision will be challenged at the General Conference in September?

    • yousaf says:

      Here is a Bloomberg story that is clients-only (no URL yet):

      Iran Spy Data Need Checks as Amano Prepares New Term, Blix Says
      2013-03-07 11:09:53.179 GMT

      By Jonathan Tirone
      March 7 (Bloomberg) — Intelligence information given to
      United Nations monitors showing possible military dimensions to
      Iran’s nuclear work should be double-checked, said Hans Blix,
      the former director-general of the UN atomic group.
      The International Atomic Energy Agency’s board of governors
      yesterday endorsed its current leader, Japan’s Yukiya Amano, for
      a second four-year term. The appointment, which needs
      ratification by the agency’s full membership in September, may
      shape the way Iran’s decade-long investigation is carried out.
      “The IAEA must not be the prolonged arm of intelligence
      agencies,” Blix said in a March 4 interview in Dubai. “I don’t
      think you can possibly have a decent relationship with the
      country you inspect if they see that the inspectors contain
      people that come from intelligence or maybe even collect
      information about suitable targets.”
      The Vienna-based IAEA is pressing Iran to give greater
      access to people, places and documents to clear up allegations
      of atomic-bomb work made by anonymous intelligence agencies.
      While the IAEA calls the information “credible,” the Islamic
      Republic says inspectors are using forged documents to raise
      international pressure against a peaceful nuclear program.
      “We have to work on the Iran nuclear issues,” Amano said
      at a briefing in the Austrian capital late yesterday. “I need
      cooperation from Iran, and through this cooperation I have to
      produce concrete results. That is the way to ensure a peaceful
      solution.”

      No Blank Check

      Iran, whose nuclear scientists have been targets of
      assassinations and whose infrastructure has been subject to
      sabotage, says that while it’s willing to work with monitors, it
      won’t do so at the expense of national security.
      “We are committed to continue our dialogue with the
      IAEA,” Iran’s agency envoy Ali Asghar Soltanieh told reporters
      yesterday in Vienna. “At the same time, we cannot write a blank
      check because of our national security. No country would give a
      blank check. There should be a criteria, a framework.”
      Soltanieh criticized Amano for elevating concern over his
      country’s atomic work by publicizing intelligence information
      that hasn’t been authenticated. Amano’s decision to publish
      unsourced intelligence, a break in policy from his predecessor,
      Nobel Peace Laureate Mohamed ElBaradei, drew U.S. praise.
      A February 2010 U.S. State Department cable called Amano’s
      first Iran report “sharper in tone” than those produced by
      ElBaradei, adding that the document “creates a positive
      precedent for how he intends to run safeguards investigations.”

      Data Exaggerated?

      “Also, unlike in the previous director-general’s reports,
      the IAEA does not mention the need for member states to provide
      original documentation to Iran,” according to the cable. Citing
      U.S. government policy, a State Department spokeswoman declined
      to comment.
      The IAEA subsequently released an overview of the
      intelligence it called credible in a November 2011 report.
      ElBaradei wrote in his 2011 biography, “The Age of Deception”
      (Metropolitan Books), that the IAEA didn’t make the information
      public during his tenure because it couldn’t be authenticated.
      “It may be that they are exaggerating it,” Blix said,
      referring to the intelligence shared with the IAEA. “There’s
      also a danger in telling us without revealing the actual
      sources. One has to be very careful about that.”
      Blix, who led the IAEA for 16 years until 1997 and was in
      charge of the UN’s Iraq nuclear-monitoring and verification
      group from 2000 to 2003, called the IAEA’s focus on the Parchin
      military complex a “sideshow.” Even if the alleged blast
      chamber was found at the site, “it doesn’t take us much
      further” in terms of measuring Iranian intentions.
      The Persian Gulf country is “ready to cooperate with the
      agency and the director-general, but we hope the course of
      action will be changed,” Soltanieh said. “These reports
      provoke member states. They should be purely technical.”

      For Related News and Information:
      Top Stories: TOP
      Iran nuclear tensions: STNI IRANTENS
      Top oil news: OTOP

      –With assistance from Andrew J. Barden in Dubai. Editors:
      Jennifer M. Freedman, Francis Harris

      To contact the reporter on this story:
      Jonathan Tirone in Vienna at +43-1-513-266-025 or
      jtirone@bloomberg.net

      To contact the editor responsible for this story:
      James Hertling at +33-1-5365-5075 or
      jhertling@bloomberg.net

    • Dan Joyner says:

      Hi Masoud,
      I think it will affect the NPT regime badly. The IAEA under Amano has sunk in its perceived credibility, independence and objectivity, and thus in its ability to effectively carry out its mandate. I think it has become a much more politicized body under his leadership, and that its reliance on unsubstantiated intel obtained from national intelligence agencies has seriously undermined its credibility. These are all the responsibility of the DG.

      I dont claim any special insider knowledge of political machinations at the IAEA. Apparently there was no challenger put up against Amano for this election, so I dont know on what basis he can be challenged at the GC. I think its a shame that Abdul Minty, who ran against Amano four years ago, or some other qualified candidate with the backing of the NAM, did not run against Amano this time. I sincerely hope the NAM can find an appropriate candidate to back in four years’ time, in order to unseat Amano if he runs again.

      And I volunteer to be that new DG’s legal advisor (OLA Director).

  4. Lets not forget a significant distinction: what the authority of the IAEA is, versus what the signatories to the NPT agreed to when they signed the treaty. In discussing the authority of the IAEA we tend to forget that the NPT and the IAEA are not the same thing. The IAEA isn’t even “in charge” of the NPT or its enforcement. So regardless of what authority the UNSC thinks it has granted the IAEA, what Iran is legally bound by is the NPT and the Safeguards Agreement in force as well as the subsidary agreements to that — nothing more, unless and until Iran signs some new agreement. The UNSC can delegate whatever power it wants to the IAEA in the meantime.

    • yousaf says:

      Problem is there is no definition of non-compliance and even when found in non-compliance procedure (whether or not it goes to UNSC?) is subjective/political — then once it gets to UNSC whether a nation is a “threat to the peace” for a possible subjective non-compliance finding (e.g. importing UF6 that was otherwise blocked, even though it is legal to do that) is again political judgement in determining whether or not sanctions should be applied. Of 5 non-compliance findings I think only one made it to UNSC(?) — why?

      • The idea that there is no definition for non-compliance with the NPT irks me greatly. There most certainly is, the article pursuant to which Iran was supposedly “referred” to the UNSC but if you read the article — Article XII.C of the IAEA Statute — it is obvious that Iran did not violate it & so should not have been gone to the UNSC. Iran allowed the inspections that Article XII.C requires, no evidence of diversion was found, therefore there was no non-compliance with the NPT. Whatever safeguards breaches Iran committed in the past also involved no diversion of nuclear material and had “no relation” to a weapons program according to the IAEA, and were eventually corrected and resolved to the IAEA’s satisfaction (Feb 2008 IAEA report) leaving only the “Alleged Studies” claims that have thus far not materialized in any actual evidence.

      • yousaf says:

        Thanks — and see Bloomberg article above quoting Blix on the alleged studies.

      • yousaf says:

        Cyrus, what I meant is that in practice there is not a real definition of non-compliance: indeed it _should_ be a firm standard but there is not.

        Pierre Goldscmidt who was deputy director for Safeguards at the IAEA:

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

        He states:
        ==============================
        “Since 2003, the IAEA Secretariat has reported specific cases of non-compliance
        with safeguards agreements by Iran, Libya, South Korea and Egypt to the
        board (Step 2). The actions taken by the board in each case were inconsistent
        and, if they go uncorrected, will create unfortunate precedents.”

        [……….]

        “Two unfortunate precedents

        On 26 November 2004, the board decided not to adopt a resolution on
        South Korea and, therefore, not to report the case to the Security Council,
        setting an unfortunate precedent motivated at least in part by political
        considerations. …. Since the board is obliged to report any case of
        non-compliance to the Security Council, not doing so in the case of South
        Korea could be interpreted as meaning that the board did not consider the
        breaches to constitute non-compliance with Comprehensive Safeguards
        Agreements.”

        […………]

        But there is a danger of setting bad precedents based on arbitrary criteria
        or judgements informed by political considerations…..

        It is therefore necessary for the agency to formally acknowledge that in the
        past some of its decisions have created potentially
        damaging precedents that need to be corrected to avoid any impression
        that the implementation of the IAEA Statute is selective.

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

        If that was not bad enough, even the finding of non-compliance itself is subjective:

        http://www.armscontrol.org/act/2009_5/Carlson

        QUOTE:

        “Surprisingly, although the IAEA Board of Governors has determined on five occasions that a state was in noncompliance with its NPT safeguards agreement-Iraq (1991), Romania (1992), North Korea (1993), Libya (2004), and Iran (2006)-there remains no established definition of noncompliance. Lack of a definition may seem advantageous, allowing the board flexibility to deal with complex cases, but it comes at a cost. In this vitally important area, lack of clarity and consistency could have adverse consequences for the integrity and credibility of the IAEA safeguards system.”

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

        Lastly, there are often feelings and “concerns” voiced that Iran has been sneaky in the past so cannot be trusted. Indeed, Iran has been sneaky in the past. However, one has to dig a little deeper into the history to find out why.

        The IRI stopped Iran’s nuclear program in ~1980. In 1983 they went to the IAEA to help set-up a research level facility for U enrichment fuel cycle. The IAEA agreed and was very receptive to the idea. Then the USG intervened politically to stop the IAEA from helping Iran.

        This was documented by Mark Hibbs in the journal “Nuclear Fuel” on August 4, Vol. 28, No. 16; Pg. 12 (2003) — excerpted here:

        http://www.iranaffairs.com/iran_affairs/2007/12/irans-not-so-hi.html

        One can debate whether that was a smart thing or not on the part of the US, but what is beyond question is that it was politically tainting the IAEA. Of course, now under Amano, such politicization is far worse, as documented by wikileaks and expressed by NAM.

        A bigger problem than anything nuclear-related that is going on Iran right now is the politicization and subjectivity — not to mention the technical incompetence noted by Bob Kelley — at the IAEA.

        That is not to excuse questionable things Iran did (and allegedly did) in the past, but, in my view, procedures and documents need to be less political and more technical at the IAEA. A possible consequence of business as usual at the IAEA is loss of faith in, and subsequent collapse of the non-proliferation regime.

      • One of the problems is that people (including the Arms Control article you linked to) are confusing safeguards noncompliance with NPT breaches. The two are not automatically the same. “Failures to report” otherwise legal actions (which is what Iran’s safeguards violations amounted to) may be a safeguards breach, but until and unless the IAEA is “unable to verify the non-diversion of material to non-peaceful uses,” there is no NPT violation.

      • yousaf says:

        Thanks Cyrus.

        So, in effect, Iran was found in non-compliance based actually on a breach? [Sorry, we are approaching my limits of knowledge in legalisms!]

        And not only that but then referred to the UNSC.

        And not only that UNSC found that breach to be a threat to the peace, requiring UNSC sanctions.

      • Johnboy says:

        yousaf, I don’t think you can automatically assume that the UNSC “found that breach to be a threat to the peace” merely because the Security Council voted to slap sanctions on Iran.

        That is a case of putting the cart before the horse.

        On my reading of the UN Charter the Security Council must first make a finding that there *is* a threat to the peace, and only *then* can it invoke its Chapter VII authority.

        An AFAIK the UNSC hasn’t made any declaration that anything to do with Iran’s nuclear program constitutes “a threat to the peace”, which brings into question the very legitimacy of those sanctions.

      • yousaf says:

        Johnboy — I agree w/ you — I was setting out how tenuous the relationship of the breach is to the resultant sanctions. If anything arbitration should have been invoked.

  5. Denis says:

    Dan, thanks for putting this topic up and thanks to Michal for raising this UNSCR 1929 issue. It seems that what you are saying is that the issue of the IAEA’s “rights” to snoop around Iran can only be resolved with reference to the strict principles of contract law and not unilateral SC resolutions telling Iran what it must do.

    The real-politic difficulty is that those parties [US and Israel] whose might will ultimately make “right” will babble anything they want to justify – prospectively and retrospectively – their demands and their military misadventures. That’s why it’s so important to keep the legalities crystal clear so that legal historians can go back later and sort out who the criminals were. Bush and Iraq come to mind.

    But I would like to address one side-issue that comes up in Jonathan Tirone’s Bloomberg article, provided by Yousaf . This is going to sound like hair-splitting, but I think it is important. That is, I think it is important to carefully distinguish the “Pink Site” from the Parchin Military Complex. I call it the “Pink Site” in honor of Albright’s now famous ludicrous allegations that buildings there are suspect because they were once covered with pink tarps.

    Here’s what Tirone says:

    “Blix, who led the IAEA for 16 years until 1997 and was in charge of the UN’s Iraq nuclear-monitoring and verification group from 2000 to 2003, called the IAEA’s focus on the Parchin military complex a ‘sideshow.’ Even if the alleged blast chamber was found at the site, ‘it doesn’t take us much further’ in terms of measuring Iranian intentions.”

    We know that this site is not physically on the PMC, but I’m not sure what teh IAEA considers the boundaries of the PMC to be. Or what Iran considers the boundaries to be. Perhaps Blix or Kelley or someone could weigh in here and straighten me out, but looking down from that GeoEye satellite, this Pink Site is not contiguous with nor connected to the PMC – it is miles away. In fact, it looks just as likely that it is a part of a dam construction project just to the north.

    But when Tirone or Blix or anyone else conflates the Pink Site with the PMC, inferences are raised, and those inferences could be dangerous. By referring to the Pink Site as the PMC, one is implicitly promoting the Bolton/Albright propaganda that the existence of these buildings is some sort of evidence of treaty violations or other dastardly undertakings. Bob Kelley has been particularly perceptive in articulating why these allegations are non-sense, but he, too, refers to the site as the Parchin Military Complex.

    Another reason for making this distinction between the PMC and the Pink Site clear is the story told by Blix or Kelley about IAEA being given their choice of 5 buildings at the PMC to inspect. I believe that was 2005. (?) If the Pink Site is – or, rather, was – considered by IAEA and IRI as a part of the PMC, then those Pink Site buildings would have been among the ones offered as targets for the inspectors. But if that remote site was not considered as being a part of what IAEA could inspect at PMC, then the argument that IAEA could have inspected any building it wanted to is irrelevant at best and misleading at worst, at least with respect to those buildings at the Pink Site.

    Judging from our experience going into Iraq, these sorts of things could be important and I am just pushing for more clarity in identifying that site – the Pink Site. If it is not the PMC, then people should stop referring to it as the PMC.

    • We can’t go by the satellite imagery to determine whether the “Pink Site” is under control of the PMC. Presumably the IAEA has asked Iran and knows whether the “Pink Site” is under the mandate of the PMC. I would assume until proven otherwise that it is part of the PMC.

      • Denis says:

        Richard, judging from what I have read, your presumption finds a lot of support among those writing on this Pink Site issue, which is precisely why I have a real problem with this presumption and its impact.

        Albright or Jahn or someone throws out an alleged fact from a secret source, Amano publishes the allegation without stating the source, and suddenly the truth of that allegation becomes presumed. Bingo – now the burden is shifted to those who demand proof. Twisted logic is the key to propaganda and propaganda is the key to jacking up preemptive wars.

        There were also pre-Iraq War presumptions that predisposed the public to back that war – presumptions about the meaning of Niger yellow-cake, aluminium tubes, manufacturing facilities with guard houses, trucks with trailers. It was the power of presumption that turned these common-place entities into “proof” of WMD – proof the public and, it appears, many arms control experts swallowed whole.

        If one tracks back the allegation that the Pink Site is part of the PMC, where does it first appear? As far as I can tell, this first comes up in either ISIS or Amano’s reports, which are based on unidentified “diplomats” or “former diplomats” or other unidentified sources. Albright, Bolton, Amano, and Jahn are the only actual human names I have seen associated with this presumption.

        The point being that the validity of the Pink Site = PMC presumption is tenuous, but injecting the presumption into the discourse so often that no one questions it has immense value to the neocons because the presumption itself validates the claims that something “bad” is going on there. Next thing you know, a camel pisses on the ground next to one of the buildings and the neocons are screaming that water on the ground is proof that a clean up is under way.

        You are exactly right: who defines what the term “Parchin Military Complex” comprises and what it doesn’t? I suggest a simple resolution: When the IRI gave IAEA inspectors their choice of buildings at the PMC to inspect, were those buildings at the Pink Site among the choices? Were they ever mentioned or discussed in any of the inspectors’ reports? If not, then neither the IRI or IAEA considered them part of PMC.

      • I would imagine Iran would have complained if the Pink Site were part of the PMC, or if in fact it were not? If it’s not, then it’s an “undeclared nuclear site” – which they would complain about being accused of that. If it is part of the PMC, then it falls under the rubric that the IAEA has to ask to visit that site and Iran can refuse unless it’s under the AP.

        As far as I can see, the SOLE evidence for it NOT being part of the site is that it’s a few miles away from the rest of the identified PMC site. Military sites can be VERY large. I see no reason to arbitrarily assess the Pink site’s distance from the PMC as evidence that it’s not part of the PMC unless someone in authority says so.

        “We know that this site is not physically on the PMC, but I’m not sure what teh IAEA considers the boundaries of the PMC to be.”

        This statement appears to be contradictory. If we do NOT know the dimensions of the PMC – or whether it has a “satellite location” not physically contiguous with the rest of the PMC, which is certainly possible – we cannot make statements about whether it is part of the PMC or not based on satellite imagery speculation.

        It’s that simple.


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