The Korean Joint Declaration an Impediment to South Korean ENR?

I just read this GSN article from yesterday by Elaine Grossman entitled “Two-Decade-Old Pledge Complicates South Korean Nuclear Aspiration.”  Here are a few excerpts from it, containing several different views regarding the legal character and current status of the “pledge” in question, which is the Joint Declaration of South and North Korea on the Denuclearization of the Korean Peninsula, signed on January 20, 1992:

South Korea’s designs on producing atomic fuel recently scotched a 2014 trade deal with the United States, but could yet have new ramifications: Potentially shattering a twenty-one-year-old pledge Seoul made to never process sensitive nuclear materials, according to issue experts.

“By dint of the Joint Declaration of 1992, South Korea has said it will not possess enrichment or reprocessing facilities on its peninsula,” Thomas Moore, deputy director of the Proliferation Prevention Program at the Center for Strategic and International Studies, said at a recent panel discussion.

South Korea issued the declaration along with North Korea, which has since set up plutonium reprocessing and uranium enrichment facilities in breach of the bilateral statement. Since 2006, Pyongyang also has gone on to test-detonate nuclear devices on three separate occasions, most recently in February.

[. . . . . .]

Moore turned heads earlier this month, though, in saying that South Korea is already a gold-standard nation much like the United Arab Emirates.

In addition to issuing the 1992 declaration, stating that “South and North Korea shall not possess nuclear reprocessing and uranium enrichment facilities,” Seoul “has an Additional Protocol with the IAEA and a full-scope safeguards agreement,” the former Republican Senate staff aide said at the May 17 CSIS event. “By any measure, South Korea is already a gold-standard state.”

And

 One regional expert said South Korea has the capacity to back off of the 1992 declaration if it so chooses. The statement with North Korea “doesn’t have the force of international law,” said Victor Cha, who directs Asian studies at GeorgetownUniversity’s School of Foreign Service. “It’s a political agreement between the two Koreas. It was supported but never formally sanctioned by the United States” and Russia, he said.

 Cha noted in a Wednesday interview that South Korea arguably violated the declaration already by allowing its scientists to experiment with plutonium reprocessing and uranium enrichment in past decades. Moreover, he said, South Korean officials might contend that the joint statement “is now defunct because the North has already violated it.”

 And

Nonproliferation expert Miles Pomper said last fall that even though North Korea flouted the 1992 ban, “South Korea and the other members of the six-party talks with Pyongyang still consider [it] in legal force.”

“We shouldn’t answer North Korean noncompliance by allowing South Korea to become noncompliant,” Moore told Global Security Newswire

This is a subject that Mark Hibbs also wrote about last year in a Carnegie piece here, in which he noted:

South Korea may become one of the exceptions made to a no-ENR outcome, as Seoul is hardly inclined to abandon its interest to enrich and reprocess. To the contrary, South Korea argues that Washington should afford it the same freedom to reprocess its growing inventory of spent fuel to minimize nuclear waste as the United States provided Japan when its 123 agreement was renegotiated in the 1980s.

The United States has long argued that a 1991 bilateral agreement between South Korea and North Korea, which commits both to renounce ENR, stands in the way. But South Korean officials argue that the bilateral agreement is null and void in the wake of North Korea’s revelation that it is now enriching uranium outside of IAEA safeguards, not to mention that it also produced plutonium outside of safeguards and used it in two nuclear explosions in 2006 and 2009. Officials argue that the size of South Korea’s ever-expanding nuclear program—the country now has 23 power reactors—will soon justify the establishment of a domestic uranium enrichment capacity.

So there appears to be some considerable disagreement in the nonpro community over the legal character of the 1992 Joint Declaration, and its current legal status.

I looked up the best copy of the Joint Declaration I could find, which is here (there’s also one here with only slight differences – if anyone has a better copy, I’d be happy to see it), and some of the relevant subsequent state practice concerning the declaration, which is chronicled here.

In looking at the text of the Joint Declaration, it’s not clear to me from the text itself whether the parties, South Korea and the DPRK, intended this agreement to constitute a treaty, i.e. to be legally binding, or alternatively to constitute a non-legally-binding joint political commitment. There is no one simple test of form for qualifying an agreement between states as a treaty. The essential test is whether the parties intended the agreement to be legally binding, and gave their proper consent to it with that understanding.  

The text is entitled a “declaration,” as indeed are all the joint statements made in the document. In fact, the words “agree” or “agreement” do not appear once in the document. This choice of words does strike me as a form one would use if one did not want the text to be seen as a legally binding agreement, but rather as a legally non-binding  political commitment to act jointly.  If I recall correctly, the NSG guidelines are similarly customarily adopted by NSG participant states through joint declarations – though I think these are unsigned joint declarations, whereas the Joint Declaration under consideration here was signed by high level officials of both states.  But if the text was to be contractual in nature – i.e. a mutual undertaking of obligations through agreement – then why style it a declaration as opposed to an agreement, as in most treaty texts? 

Again, I’m not saying that this terminology is dispositive of the question of whether the text is a treaty. Form is not dispositive on this question, but rather the intent of the parties and their manifest consent. I’m just saying that the text itself isn’t clearly indicative that the parties meant it to be legally binding.

Looking at the subsequent state practice with regard to the Joint Declaration as well, nothing clearly demonstrates to me that the parties considered this to be a legally binding document. As far as I can tell, the mutual inspection regime called for in the text was never successfully implemented. The South-North Joint Nuclear Control Commission that was created to implement the Declaration appears never to have produced any real agreement between the parties on implementation. 

It was then in March of 1993, only a year later, that North Korea withdrew from the NPT itself.  And then in 2002 that the DPRK admitted it had a secret uranium enrichment program. And then of course in 2006 that the DPRK conducted the first of its, to date, three nuclear weapon tests.

I wouldn’t say that I’ve been able to conduct an exhaustive analysis of all of the relevant factors, but it appears to me from a review of the text and the subsequent state practice related to the Joint Declaration, that the parties did not clearly intend for it to be a legally binding treaty, but rather likely intended it to be a legally non-binding political commitment to act jointly in the specified ways.

But let’s just say arguendo for a moment that it was indeed a legally binding treaty.  Article 60 of the Vienna Convention on the Law of Treaties provides:

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

 [. . . . . . ]

 3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

It is incontrovertible that the DPRK, through its three nuclear weapon tests, and revelations of extensive nuclear weapons development programs, has violated provisions essential to the accomplishment of the object and purpose of the Joint Declaration. Therefore, South Korea is fully entitled, if it wishes, to invoke this breach as a ground for terminating the treaty, relieving it of any legal obligation it has pursuant to it.

So let’s go back to the original GSN article, and the disagreement among observers as to the legal character and current legal status of the Joint Declaration.  My assessment is as follows. It is most likely that the Joint Declaration was not a legally binding treaty, but rather a legally nonbinding declaration of joint political commitment.  However, even if it was a treaty, South Korea can now formally terminate it at any moment, due to the DPRK’s incontrovertible material breach of the treaty.

Thus, I have to disagree with Thomas Moore.  The 1992 Joint Declaration is no impediment to South Korea possessing enrichment or reprocessing facilities on its territory.


Paving, Penetrators and the Parchin Probe: Issues in Environmental Sampling by the IAEA

I am extremely pleased to introduce another guest post from good friend of ACL, Professor Yousaf Butt, of the Monterey Institute of International Studies.  Yousaf has produced what I think is an extremely important technical appraisal of a number of issues connected both with the Parchin military site in Iran, and the Al Kibar site in Syria, both of which have been targeted for scrutiny by the IAEA.  Yousaf brings to this analysis his very impressive qualifications and scientific expertise (seriously, look it up here, Yousaf is a seriously well qualified nuclear physicist – not just another self-styled wonk with a degree in policy studies who likes to talk about missiles and nukes).  For us lawyers, this kind of expert technical appraisal is vital for understanding the underlying technical issues that are the subject of legal regulation. I plan to follow up Yousaf’s post in the next day or so with a post of my own on the legal implications of his analysis. But for now, enjoy!

———————————————————————————————————————————-

Paving, Penetrators and the Parchin Probe: Issues in Environmental Sampling by the IAEA

 By: Yousaf Butt

 Yousaf Butt, a nuclear physicist, is research professor and scientist-in-residence at the James Martin Center for Nonproliferation Studies at the Monterey Institute of International Studies.

Last week, the IAEA released a new report on Iran, where it again found Iran in compliance with its safeguards agreement by explicitly stating “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 former UK ambassador to the IAEA, Peter Jenkins, and I mentioned in a recent Reuters piece: “Iran is now in compliance.” Tehran has explained or corrected every substantiated and lawful issue, as confirmed by the Agency in 2008.

The IAEA has, however, raised a number of other subjective “concerns” that go beyond the letter of the Safeguards Agreement. It would be nice of Iran to cooperate with these extra-judicial requests but it is certainly under no legal obligation to do so.

For instance, the IAEA says it has secret information (which it will not share, even with Iran) from a member state’s intelligence agency indicating that Iran may have constructed a large steel chamber in a building for conducting conventional high explosives experiments—some of which may have involved natural (not enriched) uranium—which could be associated with a secret program to do research on nuclear bombs.  As former IAEA inspector and veteran nuclear weapons engineer Robert Kelley explains in an expert report the whole scenario is a bit of a stretch from a technical standpoint:

A chamber such as the one claimed to be in the building is neither necessary nor particularly useful for developing a first-generation nuclear weapon. Such development tests have normally been done outdoors for decades.

The latest concern voiced by the IAEA (and its fundee ISIS)  has to do with the leveling/paving work at the military base at Parchin. The new allegations by the ISIS group are that:

Iran continues to conduct activities at the suspect Parchin site that will further complicate the verification work of the IAEA. According to the IAEA’s report, “Iran has conducted further spreading, leveling and compacting of material over most of the site, a significant proportion of which it has also asphalted.” ISIS’s satellite imagery brief released today illuminates Iran’s work at the site and appears to confirm these paving and asphalting activities. The Parchin site is the location of a test chamber that is suspected of being used for containing high explosives tests related to nuclear weapons development. Iran began altering the buildings at this site and the site itself during the spring of 2012, shortly after the IAEA requested access to this site. The IAEA in this latest safeguards report states that “satellite imagery available to the Agency [IAEA] for the period from February 2005 to January 2012 shows virtually no activity at or near the building housing the containment vessel (chamber building). Since the Agency’s first request for access to this location, however, satellite imagery shows that extensive activities and resultant changes have taken place at this location.

Is this paving work at Parchin – which is clearly not over “most of the site” as alleged by ISIS — really a problem for the IAEA?

As I explain below, there is no issue here mainly because any samples of interest to pick up trace amounts of uranium would normally be taken from inside buildings. (Naturally occurring uranium complicates outdoors environmental sampling: Even though it is possible to tell apart man-modified uranium from naturally occurring oxides, it is hard to segregate interesting particles using sensitive IAEA techniques.)  And, in any case, there is plenty of undisturbed ground adjacent to the building that the IAEA could still take environmental samples from if — for some reason — they wanted to do this. As an expert SIPRI report concluded earlier this year:

The fact that the building’s immediate vicinity has been largely untouched on the west side strongly suggests that the purpose of the earth-moving operations was for construction and renovation work and not for ‘sanitizing’ the site by covering up contamination. In any event, the IAEA should not be collecting samples of dirt or dead vegetation to detect tiny uranium traces.

Additionally, ISIS has propagated the technically ill-informed suggestion that tungsten could have been used as a surrogate for unenriched uranium in such tests. There are at least two problems with that scenario:

(1) Tungsten is a very hard brittle material that melts at over 3400 C.  In fact it is virtually impossible to melt tungsten and cast it into precise shapes and it is almost impossible to machine.  So tungsten precision parts are made by pressing very pure tungsten powder in very precise molds so that the resulting shapes don’t need to be machined.  If someone is using tungsten as a surrogate for testing uranium bomb parts they must be very precise in dimensions so this procedure must be used.  It is a major industrial development project in its own right. Furthermore, tungsten has very different mechanical properties from uranium in every regard except for density.  So it is a lousy surrogate for uranium in a test relevant to possible nuclear weaponization studies.  The results of such a test will be largely meaningless.

(2) Tungsten is not a nuclear material and, unlike uranium, there is no need for Iran to declare what it is doing with tungsten, so there would be no legal safeguards issue even if Iran were to have done implosion tests with tungsten or other non-fissile material.

Before delving into further technical issues regarding the Parchin site in Iran, let’s examine the related mishandling and misreporting of the IAEA’s environmental sampling in Syria, since it is relevant to judging the IAEA’s competency, impartiality and professionalism in such environmental sampling.

Read the rest of this entry »


Twitter

Yes, I’m not the most tech savvy person. I’ve just recently gotten myself a Twitter account. I wanted to pass it along to those of you who use Twitter.  I will endeavor to tweet about each new blog post on ACL, so if you think it would be useful to you to “follow” me on Twitter and receive these announcements, please look me up at DanJoyner1


The supply of arms to opposition groups in Syria and international law

The Guardian newspaper has made available the text of a discussion paper by the Foreign Ministry of Austria circulated on 13 May 2013 to EU member states, forcefully rebutting British and French arguments for amending the European embargo on Syria to allow weapons shipments to the rebels.

The document, entitled ‘SYRIA: Austrian Position on Arms Embargo’, first puts forward several political and security arguments, among them the following (summary only):

 –          Lifting the EU arms embargo undermines the EU-Russia understanding that opens a window of opportunity towards a renewed political process.

 –          The ‘Syrian National Coalition for Revolutionary and Opposition Forces (SOC)’ does not have full authority and control over all armed opposition groups and cooperates with groups which include various extremist and terrorist fighters.

 –          There are more than enough weapons in Syria.

–          The supply of arms to the opposition by EU member states constitutes an additional threat to the security of UNDOF [United Nations Disengagement Observer Force, which supervises the implementation of the 1974 disengagement agreement and the ceasefire between the Israeli and Syrian forces] peacekeepers, including from Austria.

But the most interesting part of the paper argues that the supply of arms to the Syrian opposition would be in breach of international law and EU law.

The main arguments developed in that respect deserve being quoted in full (I have only made minor typographical changes to the text and omitted certain developments):

1. The supply of arms to the Syrian opposition would amount to a breach of the customary principle of non-intervention and the principle of non-use of force under Art. 2 para. 4 of the UN Charter.

The principle of non-intervention is firmly established in international law. In 2007, former UK Legal Adviser Sir Michael Wood put it in a nutshell: “Intervention on the side of those opposing the Government […] is clearly prohibited” (The Principle of Non-Intervention in Contemporary International Law, Speech by Sir Michael Wood at a Chatham House International Law discussion group meeting held on 28 February 2007). In the 1984 Nicaragua Case the International Court of Justice (ICJ) rejected any alleged right for States to intervene in support of an internal opposition in another State, whose cause appeared particularly worthy for political or moral reasons: “The Court therefore finds that no such general right of intervention, in support of an opposition within another State, exists in contemporary international law” (para. 209). The ICJ also stated that acts constituting a breach of the customary principle of non-intervention would also, if they directly or indirectly involve the use of force, constitute a breach of the prohibition not to use of force in international relations, as embodied in Art. 2 para. 4 of the UN Charter. The continuing relevance of the Nicaragua Case was confirmed by the ICJ in its 2005 judgement in the Case concerning Armed Activities on the Territory of the Congo: “In the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), the Court made it clear that the principle of non-intervention prohibits a State “to intervene, directly or indirectly, with or without armed force, in support of an internal opposition in another State” (para. 164).

2. The supply of arms to the Syrian opposition would violate EU Council Common Position 2008/944/CFSP on the control of arms exports by EU Member States.

All EU Member States have agreed to abide by Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment when assessing applications to export items listed in the agreed EU Common Military List. An objective assessment of the Criteria in Art. 2 of Common Position 2008/944/CFSP according to the agreed guidance of their interpretation and implementation in the EU’s User’s Guide (User’s Guide to Council Common Position 2008/944/CFSP defining common rules governing the control of exports of military technology and equipment, Doc. 9241/09, 29 April 2009) must lead to a denial of any export licence applications for the envisaged supply of arms to the Syrian opposition:

  • Criterion 2(c) (human rights and humanitarian law): Member States shall deny an export licence if there is a clear risk that the equipment might be used in the commission of serious violations of international humanitarian law. The UN Commission of Inquiry reported that “war crimes, including murder, extrajudicial killings and torture, were perpetrated by anti-Government armed groups” (Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/21/50, 16 August 2012).
  • Criterion 3 (internal situation): Member States shall deny an export licence for military technology or equipment which would provoke or prolong armed conflicts or aggravate existing tensions or conflicts in the country of final destination. The User’s Guide does not foresee that arms would be supplied to opposition groups involved in an armed conflict and places particular attention on the role of the end-user in a conflict.
  • Criterion 4 (regional peace, security and stability): Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim. Despite the 1974 cease-fire agreement, Syria and Israel remain in a state of war, which was recently reignited by Israeli air and missile strikes. The Syrian opposition has not declared to respect the cease-fire, the disengagement agreement or the area of separation.
  • Criterion 5(b) (national security of Member States): Member States shall take into account the risk of use of the military technology or equipment concerned against their forces or those of Member States and those of friendly and allied countries. […]
  • Criterion 6 (behaviour of the buyer as regards its attitude to terrorism, the nature of its alliances and respect for international law): […]
  • Criterion 7 (risk of diversion): […]

3. The supply of arms to the Syrian opposition would amount to a violation of Security Council resolution 2083 (2012) establishing an arms embargo against individuals and entities associated with Al-Qaida. […]

4. Member States supplying arms to the Syrian opposition would incur State responsibility for aiding and assisting in the commission of internationally wrongful acts.

According to Art. 16 of the ILC Articles on State Responsibility a State which aids or assists another State in the commission of an internationally wrongful act is internationally responsible if (a) that State does so with knowledge of the circumstances of the internationally wrongful act ; and (b) the act would be internationally wrongful if committed by that State. The Commentary inter alia states “a State may incur responsibility if it […] provides material aid to a State that uses the aid to commit human rights violations. In this respect, the UN GA has called on member States in a number of cases to refrain from supplying arms an other military assistance to countries found to be committing serious human rights violations” (para. 9). When applying these principles to the envisaged supply of  arms to the Syrian opposition, it is to be considered that war crimes, including murder, extrajudicial killings and torture, are perpetrated by anti-Government armed groups in Syria, as reported by the UN Commission of Inquiry, as well as suicide bombings and attacks against and hostage-taking of UNDOF peacekeepers, as is known from the daily news. Should supplied arms be used by armed opposition groups in Syria in the commission of internationally wrongful acts, the States who had supplied these arms and had knowledge of these acts would incur State responsibility for their aid an assistance in the commission of such acts.

[end of document]

A comment on the Austrian position

The arguments set out in the Austrian paper are in my view well-founded and persuasive, particularly those based on the principle on non-intervention and the relevance of the Nicaragua Case (see on the topic the articles on the Nicaragua Case 25 years after published in 2012 in the Leiden Journal of International Law), and deserve being taken into account very seriously by the decision-makers of countries which advocate allowing weapons shipments to the Syrian rebels.

There is another point that was not mentioned by the paper. Regarding the responsibility issue raised in para. 4 of the document, I would add that if the proposed amendment to the arms embargo is adopted in the framework of the EU CFSP, the 2011 Draft articles on the Responsibility of International Organizations (DARIO) would also be relevant. Indeed, in that situation, international responsibility might also be incurred by the EU itself, in addition to the responsibility of EU member States. Article 17(1) DARIO provides that

[a]n international organization incurs international responsibility if it circumvents one of its  international obligations by adopting a decision binding memberStates or international organizations to commit an act that would be internationally wrongful if committed by the former organization.

 The ILC’s commentary on that provision refers to a statement of the legal counsel of WIPO according to whom

 [. . .] in the event a certain conduct, which a member State takes in compliance with a request on the part of an international organization, appears to be in breach of an international obligation both of that State and of that organization, then the organization should also be regarded as responsible under international law.

 It appears thus that in the event that arms supplied to armed opposition groups in Syria be used by the latter in the commission of internationally wrongful acts, the international responsibility of both the EU as an international organization and of the EU Member States might be simultaneously incurred.

 In any case, it will be interesting to follow the matter, and in particular to see whether proponents of arms supply to opposition armed groups in Syria will put forward international legal arguments supporting their position.

 


Let’s Get Syri-ous About Chemical Weapons

A few days ago Robert Serry, the UN Middle East peace envoy, informed the Security Council of increasing reports on chemical weapon (CW) use in the Syrian civil war. He was right of course: in the first four months of 2013 the total number of alleged incidents had already risen by 500% compared to the whole of 2012. Last year there was one claim of CW use with a specific place and time: an attack with an incapacitating agent—sometimes referred to as BZ, other times as (the non-existent) Agent 15 (part of the Iraq invasion lore) near Homs.

Up to 30 April 2013 five such site- and time-specific reports emerged:

  • 19 March: The Syrian government accused the insurgents of a chemical attack in Khan al-Assal, Aleppo province. The chlorine (which incredibly turned into sarin over time, and ultimately became bleach) in the rocket killed 16 people according to early reports, a figure that eventually rose to 31. Rebel forces quickly put the blame on the Syrian armed forces. As written in an earlier Arms Control Law contribution, pictures and film footage did not support the allegation.
  • 19 March: Rebel allegation of CW attack at Al-Otaybeh, east of Damascus, involving organophosphates. This incident yielded the image of man with foam around the mouth. Foaming is typical of drowning, so the accusation might have had some foundation if the rebels had alleged phosgene use. (Phosgene causes the lungs to be filled with fluid, producing a condition known as ‘dry land drowning’.) However, it is not characteristic of exposure to a nerve agent. A morgue allegedly held six CW fatalities, but not all victims came from Al-Otaybeh.
  • 24 March: Rebels allege the use of ‘chemical phosphorus’ bombs at Adra, near Douma. As they did not report burns, the term could have been a misuse for organophosphates. The reports also referred to poisonous gas of some variety producing convulsions, excess saliva, narrow pupils and vomiting.
  • 13 April: Two women and two children reportedly died from a chemical agent in a bomb dropped by the Syrian air force in Sheikh Maqsoud, Aleppo District. The death toll, however, varied. Twelve people were also reported to have been injured after contact with the initial victims and responded well to atropine treatment.
  • 29 April: Eight people reportedly suffered from vomiting and breathing problems after helicopters had dropped canisters over Saraqeb. One woman later died. One observer presented pictures of canisters similar to one found in Sheikh Maqsoud. While apparently correct, nothing indicates what their contents might have been (some pictures appear to show a bullet exit hole in a canister).

I cannot judge from afar whether these allegations are correct or not. However, I do remain surprised by the lack of visual evidence. In these days of the Internet and when every participant in the Arab uprisings seems to own a camera-equipped smart phone, I cannot find any images or film of victims displaying outward symptoms that correspond with the claimed agent. No images of fatalities; and no images of the areas where the actual attacks took place. Yes, one [1] picture showed a purported site, but did the scattered animals really die from a CW attack?

More strikingly, the allegations lack density. One would/should expect a multitude of reports with a variety of witnesses recounting a more or less similar incident. One would/should expect them evoke different imageries to express their respective emotions and experiences. These help to reconstruct a testable reality, even from afar. For instance, based on the many television reports in the immediate aftermath of the chemical attacks against Halabja in March 1988—internet and mobile phone prehistory!—I was able to sketch a map of the affected area. The layout later proved to be remarkably similar to the drawing in the report by experts from the Belgian-Dutch Médecins sans frontières who were the first foreigners to reach the town. (As I had no sense of distance, dimensions did differ.) If I read that the US State Department is working behind the scenes to identify medical professionals with proof of CW use and planning to move them out of Syria to meet with UN investigators in Turkey, then I really begin to wonder how scant all other evidence now available to governments must be.

Let’s get serious about chemical weapons in Syria

Based on materials available so far, I continue to find it difficult to give any credence to the CW allegations. The claims do not match reported symptoms. There is no evidence-based back-up of specific allegations from different (including government) sources. Nobody has offered serious refutation of plausible alternative explanations for the described phenomena.

With the passage of time even the narrative has changed: a Midas touch has turned chlorine to sarin, the golden accusation of evil (think Saddam; think Aum Shinrikyo). Indeed, the allegations have mouldered into amorphous compost fertilising calls for humanitarian or military intervention, arming the insurgents and regime change. Particularly, US President Barack Obama’s drawing of a red line with regard to chemical warfare in August 2012 and the questioning of his willingness to follow up on his threat in the light of more recent allegations have distorted discussion of what is actually happening on the ground. More to the point: all these issues have little bearing on whether CW were used or not. If humanitarian law judges 80,000 dead in the civil war as insufficient to justify foreign military intervention, then why would a few scores of fatalities from (supposed) chemical attacks sway the international community, represented by the UN and other regional security and humanitarian institutions? Is it perhaps that ‘eighty thousand’ already represents a ‘statistic’, while politicians today are desperately looking for a ‘tragedy’?

There are serious indications—no proof—that something is amiss in Syria. That something is poisoning the air, literally and metaphorically. For this reason alone, credible and independent investigation of incidents is overdue by long. We surely do not want another Curveball knocking democracy unconscious. Or do we?


Wherefore Parchin?

Just a quick reaction to media reports that there may have been paving and laying of asphalt at the Parchin military site, also (unsurprisingly) breathlessly reported with illustrations by ISIS here.

Reading these reports, it struck me how the whole Parchin issue appears to be being used by the IAEA so similarly to how the Benghazi consulate attack issue is being used by the US House of Representatives.  In both cases, I think we are seeing perfect examples of the use of investigation powers by a legal institution as a political weapon.  In both cases, the investigating authorities ask a neverending stream of questions, trying to get at “the truth,” which is really of course merely an attempt to confirm their own unsupported allegations against the target of the investigation. But the fact that no evidence is ever produced through these endless interrogatories that there is in fact anything “there” there, does not deter the investigators. Thats because the purpose of the investigation isn’t really, in the final analysis, a quest for truth. Its a procedural weapon that is being employed to harm the public perception of the adversary target, by maintaining an investigation ad infinitum, in the hopes that the absence of any actual incriminating evidence will be lost on a largely ignorant public audience, and that the fact alone of an ongoing investigation will be enough for media outlets like the Washington Post to parrot the unfounded accusations, keeping the perception of something “there” in the public consciousness.

I hope that readers will understand that the question of what may or may not have happened at the Parchin military base is UTTERLY IRRELEVANT to the current dispute between Iran and the IAEA/the West over Iran’s nuclear program. Even if all of the allegations made about what happened at the site are true – i.e. that experiments were carried on there 15-20 years ago that increased Iran’s understanding of how to construct a nuclear warhead – SO FREAKING WHAT?  As I’ve explained over and over, even if that’s all true, it wasn’t illegal in any way.**

And there is not even a scrap of evidence either that Iran actually constructed a nuclear warhead at any point in the past, or that they’ve done any work whatsoever on warhead R&D for the past 10 years – quite the contrary, as we all know.  All of the national intel agencies, including that of the US, have concluded that Iran stopped whatever warhead R&D work they were doing by 2003.

So again, THIS QUESTION HAS ABSOLUTELY NO RELEVANCE to the real issue of whether Iran is currently in compliance with its obligations under international law, including the rules of the NPT and its CSA with the IAEA.  The entire Parchin issue is a sideshow – a classic red herring.  And it’s really frustrating to see how much energy the IAEA keeps devoting to this irrelevant issue, including in its newest report on Iran, released today.

Again, the only sense I can make of it is that the IAEA is acting here per the direction of the US – not much of a stretch, knowing what we know about the amount of funding the IAEA receives from the US, the influence US labs have on the IAEA safeguards program, the amount of the intel  on Iran that’s coming from the US and its allies, and, from the WikiLeaks cables, about how closely aligned DG Amano is with the US .  And that the US wants this investigation to be used in exactly the same manner, and for the same purpose, that the US House of Representatives is using its investigation of the Benghazi incident – as a political weapon, pure and simple.

Is it any wonder that Iran doesnt trust the IAEA?

_________________________________________________________________

** After speaking to some colleagues today, I would make one minor caveat to this statement for the sake of thoroughness and precision. The only aspect of the alleged experiments allegedly conducted at Parchin – and this is only according to the most extreme allegations – that would, if it occurred, have violated international law, is if uranium of a type meeting the threshold criteria of Article 34(c) of the CSA was employed in the experiments.  If so, then the failure to declare that material, and the facility in which it was present, would have constituted a violation of Iran’s CSA.  That being said, if indeed this was the case, the amount of uranium present is likely to have been small, and it would almost certainly have been unenriched. As such, it would in my opinion have constituted a very minor violation of the CSA.  Similar but more serious CSA violations have been committed by a number of other states in the past, including Egypt and South Korea. The level of attention that has been paid by the IAEA to the Parchin issue is out of all proportion to the level of attention paid to these other, more serious instances of safeguards violation.  Thus I would maintain my overall argument in this post.


US Still Trying to Figure Out its Nuclear Export Control Policy

I certainly agree with the urging, and basic rationale, contained in the letter sent to President Obama by former US Defense officials, reported in this article. I’m not sure I would have made the arguments quite the same way – e.g. I dont think the US has to see itself as having to “continue to provide international leadership” on nonproliferation.  But I do think the letter is correct in its important realization that if the US adopts the “gold standard” as legally mandatory, the only thing it will acheive is to harm US nuclear technology vendors in the international marketplace for supply of peaceful nuclear energy projects, primarily proceeding in Eastern Europe, the Middle East, and South and East Asia.  I wrote about this previously here.  

I literally laughed out loud – ask Paul Horwitz who has the office next to mine – when I read this quote by Sharon Squassoni on ongoing US deliberations regarding adoption of the mandatory gold standard approach, versus the case-by-case approach:

The current hold-up on the U.S. side in moving forward with nuclear cooperation agreements is apparently due to a policy disagreement on whether or not to take a principled — [or] nondiscriminatory — approach or a case-by-case approach,” she told GSN in a written response to questions. “It is always cleaner to take a principled approach.

The gold standard approach is the “principled approach”? Please. As I explained in a recent post, it’s the adoption by the US and the other NSG member states of precisely the sort of policies underlying the urged mandatory gold standard, that have resulted in these states being collectively in violation of the principles they obligated themselves to in the NPT.