On the scope of IAEA safeguards in Iran

The latest IAEA DG Report on Iran (‘Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the Islamic Republic of Iran’, 21 February 2013, GOV/2013/6) contains in its conclusion the usual statement, found in previous reports, according to which: 

While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities (para. 62). 

What is interesting is that there has been a light change, more precisely an addition, in the footnote (fn. 61) supposed to support such statement, by comparison with the same text in previous IAEA reports. The addition is shown in italics below:

The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness) (see, for example, GOV/OR.864, para. 49 and GOV/OR.865, paras. 53-54). 

As Dan Joyner has already shown here, GOV/OR.864 does not in fact support the ‘completeness’ argument but on the contrary evidences divergences on the issue within the Board at the time.

So it seems (and it is quite plausible) that this additional reference has been added by the IAEA in an attempt to counter Joyner’s arguments referred to above. The same reference may be found in the ‘legal’ paper issued by ISIS/Heinonen/Goldschmidt/Persbo et alii recently, which was intended to establish the inacurracy of Joyner’s ‘dangerous claim’.

I’m afraid that this additional reference to GOV/OR.865, paras. 53-54 is no more conclusive than the reference to GOV/OR.864, para. 49. The relevant summary of the BoG discussion may be found as an annex to a 1995 IAEA GC document.

The context of the relevant IAEA BoG discussion is to be reminded. In 1995 the IAEA DG exposed the measures envisioned under the ‘93+2’ programme for updating the safeguards system (which led to the adoption of the Model Additional Protocol), and invited the BoG to confirm, inter alia, that:

The purpose of comprehensive safeguards agreements is the continuing verification of the correctness and completeness of States’ declarations of nuclear material in order to provide maximum assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities ‘ (in ‘Strengthening the Effectiveness and Improving the Efficiency of the Safeguards System’, Report by the Director General to the Board of Governors (GOV/2784), 21 February 1995, para. 110).

At the March 1995 session of the BoG, such ‘invitation’ was largely debated. The United States, Australia and Japan, inter alia, endorsed the specific proposal contained in para. 110 of GOV/2784 (quoted above). But the proposal also met with significant opposition from several members of the Board. For instance, the governor from Cuba, stated that

[t]he aim of comprehensive safeguards agreements was to detect swiftly any diversion to non-peaceful uses of significant quantities of nuclear material, and the means of doing so was by verifying the nuclear material declarations of States. Therefore, the Board could not confirm what was recommended in paragraph 110. A of the document within the current legal framework.

Similar reservations were formulated among others by Mexico, India, Pakistan, China, Algeria, Turkey, the Russian Federation.

The most elaborated criticism of the DG’s invitation came from the governor from Brazil, Ms. Machado Quintella, whose statement is worth being quoted extensively:

regretfully her delegation had some difficulty in accepting the present wording of paragraph 110, although it believed that there would be scope for consensus after some adjustments, as no one was likely to deny the desirability of increasing the level of assurance provided by the safeguards system. All were committed to strengthening the system; the question on which views differed was how to achieve that common goal.

100. What the Board was being asked to approve in subparagraph 110.A was not a confirmatory interpretation of document INFCIRC/153, but rather a new concept regarding the purpose of comprehensive safeguards agreements – one that would require the modification of existing agreements or their amplification by additional legal instruments.

101. As things stood at present, the purpose of existing comprehensive safeguards agreements was to verify that there was no diversion of nuclear material to the manufacture of nuclear weapons or of any other explosive device. Confirming what was stated in subparagraph 110. A, that the purpose of such agreements was the continuing verification of the correctness and completeness of States’ declarations of nuclear material, would thus represent a substantial departure, with no legal basis, from the original purpose as defined in paragraph 2 of document INFCIRC/153 and in Article III(l) of the NPT.

102. The assertion made in paragraph 5 of document GOV/2784 regarding the intentions of the drafters of document INFCIRC/153 was entirely uncorroborated by the records of the Board’s Safeguards Committee (1970), which she had studied at length. In approving the concept put forward in document GOV/2784 regarding the purpose of comprehensive safeguards agreements, the Board would therefore not be confirming previous understandings, but introducing new ideas which would require amendments or protocols to existing agreements in order that the envisaged new safeguards measures might be applied. Such measures could, of course, be introduced on the basis of bilateral arrangements between the Agency and each Member State concerned, but there was as yet no proper legal basis for changing the Agency’s safeguards system from one aimed at the verification of non-diversion to one aimed at verification of the non-existence of undeclared activities.

103. Verification of the absence of undeclared nuclear materials or activities required actions that had not been considered by the drafters of document INFCIRC/153 […].

109. With regard to paragraphs 2, 3 and 4, where there were references to the continuous development of safeguards, she believed that technological developments in the safeguards field should not be confused with the evolution of the safeguards system itself. The system had evolved from one based on safeguards agreements deriving from the Statute to one based on comprehensive safeguards agreements deriving from document INFCIRC/153, but a safeguards agreement was a legal instrument not subject to evolution; if additional undertakings were to be entered into, that called for a protocol or some other form of additional legal instrument acceptable to the parties.

110. The statement in paragraph 6 that in February 1992 the Board had reaffirmed the requirement that the Agency provide assurance regarding the correctness and completeness of nuclear material declarations by States was misleading: that requirement had been affirmed not as a general principle, but in respect of the initial inventories of two specific countries – and on both occasions Brazil had expressed reservations.

(for the full statement see IAEA Board of Governors, Record of the 860th meeting, supra note 185, paras. 99-110)

This review of the Board discussions shows that it can hardly be contended that there has been a subsequent agreement regarding the interpretation or application of INFCIRC/153-type CSAs between States parties to the IAEA Statute and/or parties to the NPT, in the meaning of Article 31.3(b) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which would have resulted in an extension of the IAEA’s mandate, allowing it to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness).

Reading the summary of discussions within the BoG during the subsequent GOV/OR.865 meeting, I do not see that the States opposed to the wording of para. 110 of GOV/2784 (as mentioned above) changed their minds in the meantime, nor that the final endorsement by the BoG of the Chairman’s ‘summing-up’ (which contains indeed a reference to the ‘completeness’ argument, but appears to be above all an endorsement of the ‘general direction of Programme 93+2’) is to be interpreted as a subsequent agreement (or, to quote the IAEA, a ‘confirmation’) on the correct interpretation of paragraph 2 of INFCIRC/153 (supposed to require the IAEA to seek to verify both the correctness and the completeness of declarations made by States under their CSAs).

I would welcome any comments on this issue. Thanks in advance!

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19 Comments on “On the scope of IAEA safeguards in Iran”

  1. Don Bacon says:

    As indicated above, something’s up regarding “completeness” in Iran (and only Iran). Could US-puppet Amano be laying the foundation for another pending intelligence contribution from Member States on undeclared nuclear material?

    At the UN Secretary-General’s “Spokesperson’s Noon Briefing” on Mar 4, 2013 —

    The Director General’s [i.e. Amano’s] remarks also touched on Iran, which he said is not providing the necessary cooperation to enable the Agency to provide credible assurance about the absence of undeclared nuclear material and its activities. The Agency therefore cannot conclude that all nuclear material in Iran is in peaceful activities, he said.

    http://www.un.org/News/briefings/docs/2013/db130304.doc.htm

    Of all the concocted Iran issues, including new enrichment sites, laser enrichment, stockpiling enriched uranium, aluminum, magnetic rings, and faster centrifuges, Amano only mentioned completeness on March 4.

    also on Mar 4:

    (CNN) — Iran is not cooperating, making it difficult for the UN’s nuclear watchdog agency to provide “credible assurance” that the country doesn’t possess undeclared nuclear material, the International Atomic Energy Agency Director General Yukiya Amano said Monday.

    Speaking to the IAEA’s board of governors, Amano said Iran should grant access “without further delay” to the Parchin military complex, where the Islamic Republic is believed to have tested rockets.

    Since Iran has not provided such access to date, “The Agency therefore cannot conclude that all nuclear material in Iran is in peaceful activities,” Amano said.

    Rocket testing = undeclared nuclear material?
    What’s Amano (on US orders) up to?

  2. yousaf says:

    Dear Pierre,

    Thank you — an important topic.

    One need not be a lawyer to know there is no merit to the arguments of the ‘legal’ paper issued by ISIS/Heinonen/Goldschmidt/Persbo et alii.

    How many of those are lawyers anyway?

    If the IAEA already had the legal authority it needed, there would be no need for an AP. The IAEA’s legal authority is limited as set out in the CSA.

    Besides, that I think we should take what the IAEA says at face value:

    “…the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.”

    OK, that’s fine statement of obvious truth — and what is the problem?

    No one has tasked the Agency with attempting to “conclude that all nuclear material in Iran is in peaceful activities.”

    THAT IS NOT THE AGENCY’S JOB.

    The Agency is there to verify the non-diversion of declared nuclear material.

    To throw in a tautological statement that the Agency has not over-turned every rock in Iran to look for undeclared material is OK, but should be filed under “That’s Nice — It’s Not Your Job — Who Cares?”

    Just like a pizza parlor does not have sign on the door that says “No We Don’t Serve Duck a L’Orange” there is no need for the DG report to be making such statements — BUT it is OK if they do. Yes, a pizza parlor does not serve Duck a L’Orange and yes, the IAEA cannot verify the non-diversion of undeclared material conclude that all nuclear material in Iran is in peaceful activities. In neither case are those functions their jobs.

    But it is completely fine to state them. But who cares?

    As it turns out the Agency cannot conclude that all nuclear material in 50 other nations is in peaceful activities either:

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

    “(b) For 51 of these States, the Secretariat found 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.***** On this basis, the Secretariat concluded that, for these States, declared nuclear material remained in peaceful activities.”

    Note the political difference in phraseology?

    Why cannot the Agency’s DG report on Iran also state “Evaluations regarding the absence of undeclared nuclear material and activities for Iran remains ongoing” also, instead of the politicized and inflammatory and misleading statement that is there now?

    What is the reason for the unique treatment of Iran?

    To see the bigger picture, let me end by plugging my piece at REUTERS, where some of this was discussed:

    http://blogs.reuters.com/great-debate/2013/02/22/how-close-is-iran-to-nuclear-weapons/

    • Pierre-Emmanuel Dupont says:

      Dear Yousaf,

      Thank you very much for your comments. It is much appreciated.

      Best regards,

      Pierre-Emmanuel

  3. yousaf says:

    It would be good if our good friends at the IAEA and ISIS/Heinonen/Goldschmidt/Persbo et alii. would also focus their energies on reforming the IAEA so that it doesn’t help non-NPT states weaponize, instead of chasing the wild goose of a non-existent nuclear weapons program (according to our DNI, SecDef) in Iran:

    http://www.bloomberg.com/news/print/2010-12-15/pakistani-nuclear-weapons-program-s-aid-from-un-shows-weakness-of-watchdog.html

    • Don Bacon says:

      This illustrates the fact that the concocted “Iran nuclear crisis” is not about nukes but rather it’s totally about politics. The US will look the other way on India, Pakistan and Israel nukes but those dangerous Persian Cats need to be belled. This is what Iran points out.

      Ayatollah Khamenei:

      “They expect others to give in to their illogical demands and bullying. Some do so… But the Iranian nation and the Islamic Republic cannot be forced into surrender. The Islamic Republic has argument and logic; it’s capable and powerful. Hence, it will not accept illogical words and actions. In what way are the American officials irrational? A sign that shows they are irrational is the contradictions between what they preach and what they practice.”

      “The American officials claim they are committed to nuclear non-proliferation, which provided the pretext for their invasion of Iraq eleven years ago. They said the Saddam regime was developing nuclear bombs in Iraq. They unearthed no weapons in that country and it became manifest that their claim was a lie. They say they are committed to nonproliferation of nuclear weapons. In the meantime, they support an evil regime, which is armed with nuclear bombs and makes threats [against others] with the weapons, that is, the Zionist regime. That’s what they preach and this is how they practice.”

      http://www.uskowioniran.com/2013/02/khamenei-calls-us-policy-toward-iran.html

      Anyhow, I like your pizza parlor verbage. I’ll take veggie.

      • yousaf says:

        For 50 other states IAEA says: “On this basis, the Secretariat concluded that, for these States, ******declared****** nuclear material remained in peaceful activities.”

        And Iran is EXACTLY in the same boat, but what does the IAEA DG state?:

        “…Agency is unable to provide credible assurance about the absence of *****undeclared**** nuclear material and activities in Iran, and therefore to conclude that *********all********* nuclear material in Iran is in peaceful activities.”

        Is any other proof needed that there are strong biases and double-standards in reporting on states?

      • Don Bacon says:

        yousaf —

        The IAEA Iran reports consistently state: “The Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs” This is important because assurance of non-diversion is the only authority the IAEA has under the NPT, and proves that the many people (including politicians who should know better) who state that Iran is in violation of the NPT are dead wrong.

        The **undeclared** statement you quote is taken out of context. It’s always a part of paragraph J in every quarterly IAEA Iran report where it is used to push for the additional protocol.

        J. Additional Protocol
        Contrary to the relevant resolutions of the Board of Governors and the Security Council, Iran is not implementing its Additional Protocol. The Agency will not be in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran unless and until Iran provides the necessary cooperation with the Agency, including by implementing its Additional Protocol.

        The IAEA is saying that the Additional Protocol, in force in many other countries, is needed to provide assurance on undeclared material.

        Here is the status list on safeguards agreements and additional protocols.
        http://www.iaea.org/OurWork/SV/Safeguards/documents/sir_table.pdf

      • yousaf says:

        Yes, see my link above and commentary:

        As it turns out the Agency cannot conclude that **all** nuclear material in 50 other nations is in peaceful activities either:

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

        The Agency cannot prove the purely peaceful nature of 51 nations.

        In fact, they cannot do so ever.

        It is a logical impossibility to prove a negative.

  4. […] (though somewhat eye-watering) legalese, kindly also see my layperson comments following the post: https://armscontrollaw.com/2013/03/10/on-the-scope-of-iaea-safeguards-in-iran/ On the scope of IAEA safeguards in IranPosted: March 10, 2013 | Author: Pierre-Emmanuel […]

  5. yousaf says:

    On correctness and completeness — we can just look what the IAEA says:

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

    IAEA QUOTE==========================================

    What verification measures are used?

    Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation.

    ***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.

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

    Iran falls into the former category having not ratified the AP.

    I hope we can stop discussing this subject now! 😉

  6. Nick says:

    Let’s hope now that he has been approved for 4 more years, Amano is more impartial and less of a US lackey in the Agency; although I doubt it. He is going to continue to be the spoiler and push for Parchin, Code 3.1, and completeness (or as Yousef correctly describes the latter as AP). Thanks to this blog, there is at least one source that stands up against the nonsense we see regarding this matter almost everywhere else.

  7. Brazil’s rep said it best: “Verification of the absence of undeclared nuclear materials or activities required actions that had not been considered by the drafters of document INFCIRC/153”

    This pretty much nails shut the coffin of the legal argument that somehow the IAEA already has AP-level authority, and can demand that Iran abide by (and exceed) the requirements of the Additional Protocol.

    http://www.nytimes.com/2006/04/05/opinion/05iht-edzarif.html

    And the greater irony is in that Iran was willing to implement the AP all along. The Iranians even signed the AP, and voluntarily allowed inspections (that exceeded even the AP) for a couple years, and offered to ratify the AP and to impose additional restrictions on its nuclear program well beyond the AP as long as its right to enrich uranium is recognized. And the US said no and insisted that Iran should have “a single spinning centrifuge”, in violation of Iran’s NPT-recognized sovereign rights:

    “You do not have the right to full enrichment and reprocessing cycle under your control.”
    – Secretary of State Hillary Clinton quoted in NY Times July 26, 2009

    “The Bush administration has said that a condition of any deal must be that ‘not a single centrifuge can spin” in Iran’…”,
    – How to Keep the Bomb From Iran , Scott D. Sagan, Foreign Affairs, September/October 2006


    “In the words of Robert Joseph, the State Department’s top proliferation official, the administration is determined to ensure that ‘not one centrifuge spins’ in Iran…Mr. Bush has therefore taken the position that Iran must give up everything. He said Friday, ‘The Iranians should not have a nuclear weapon, the capacity to make a nuclear weapon, or the knowledge as to how to make a nuclear weapon.'”
    (NY Times, Apr 30
    2006)

    and Sy Hersch wrote in April 2006:

    “In Vienna, I was told of an exceedingly testy meeting earlier this year between Mohamed ElBaradei, the I.A.E.A.’s director-general, who won the Nobel Peace Prize last year, and Robert Joseph, the Under-Secretary of State for Arms Control. Joseph’s message was blunt, one diplomat recalled: ‘We cannot have a single centrifuge spinning in Iran. Iran is a direct threat to the national security of the United States and our allies, and we will not tolerate it. We want you to give us an understanding that you will not say anything publicly that will undermine us.’ “
    (http://www.newyorker.com/fact/content/articles/060417fa_fact)

    Like I keep saying, this dispute is NOT ABOUT nukes or inspections etc. The IAEA is allowing itself and the nuclear issue to be used as a political pretext and cover for the promotion of an agenda to impose regime-change in Iran.

    • Typo correction: “And the US said no and insisted that Iran should **NOT** have “a single spinning centrifuge”, in violation of Iran’s NPT-recognized sovereign rights:

      • Nick says:

        What I don’t understand is insistence of Iran for having the West recognized her rights under NPT. All those Western countries (P5+1 in particular), have signed NPT and must obey by it. Not recognizing the rights of a member country is not an option. They may choose to do so, in violation of the treaty.

  8. yousaf says:

    Can the IAEA verify the purely peaceful nature of Brazil’s nuclear program?

    BTW, does anyone have access to equivalent DG reports on Brazil or Argentina such as the ones we keep seeing for Iran?

  9. […] that respect, as already observed by Joyner and myself, a review of the Board discussions at the time of negotiation within the IAEA of the model […]


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