An IAEA Special Inspection of Parchin?

Cyrus Safdari recently brought to my attention an AP article from March 6, in which Joseph MacManus, the US representative to the IAEA, is reported to have made statements indicating “that America might lobby the IAEA board to ask for a special inspection of Parc[h]in, a facility that the agency suspects was used to test explosive triggers for a nuclear weapon, or that the United States would seek an IAEA resolution critical of Tehran.”

There seems to be a lot of misunderstanding, both in official circles as demonstrated by this article, but also within the nonproliferation specialist community, about what exactly IAEA special inspections are, and about their legal character.

In an article from November 2010, Olli Heinonen argued that the IAEA should call for a special inspection in Syria. As he wrote:

Together with official Syrian reluctance to give the agency access to relevant information, persons, equipment, and sites, the resulting situation calls for the use of full inspection rights to ensure that all nuclear material in Syria is for peaceful purposes. 

So according to Heinonen’s understanding, a special inspection is a constitutive part of the IAEA’s “full inspection rights” under the comprehensive safeguards agreement.

James Acton, Mark Fitzpatrick, and Pierre Goldschmidt, writing in a 2009 Carnegie Endowment piece, argued that:

It is now time for the IAEA to move beyond such voluntary requests and invoke its most powerful inspection provision, the “special inspection,” to make its requests for access legally binding. If Syria refuses then the Board should make a formal finding of “non-compliance.”

These are all incorrect legal characterizations of the process of special inspections as laid out in the provisions of the IAEA INFCIRC/153 comprehensive safeguards agreement.   

Both government officials in the US, and the nonproliferation specialist community (at least, those that aren’t lawyers – which includes Heinonen, Acton, Fitzpatrick, and Goldschmidt), seem to think that IAEA special inspections are a powerful weapon the IAEA has reserved in its quiver, but that it only uses in the most serious of situations, in which desperate measures are needed to bring rogue states to heel. Sort of like a step up in the categorization of a crisis from “code yellow” to “code red.” And that once the IAEA does pull this special inspection weapon out of its quiver, it is exercising its full legal rights to legally compel an inspection of the subject site(s).

But this is a fundamental misunderstanding of the special inspection process as provided for in the CSA. Most commentators, including those quoted above, appear to be confusing IAEA special inspections under the CSA, with a process more akin to a challenge inspection under the Chemical Weapons Convention.  

This is what I wrote about the CWC challenge inspection process on pgs. 114-115 of my 2009 book (see Article IX of the CWC):

 If, however, a state party feels that it has not been satisfied through this process of interrogatory, it may request that the OPCW conduct a challenge inspection on “any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the provisions of this Convention.”  The state against whom the challenge inspection has been requested is under a basic obligation to cooperate with the challenge inspection by members of the OPCW Technical Secretariat, unless the OPCW Executive Council (composed of 41 state-party members based upon the principle of rotation) determines by a three-fourths vote that the inspection request is “frivolous, abusive, or clearly beyond the scope of [the] convention.”

On the basis of the report generated by the Technical Secretariat, the Executive Council may determine whether non-compliance with the CWC’s terms has occurred and may instruct the offending state party on measures which it must take to remedy such non-compliance.  If the measures directed by the Executive Council are not implemented by the offending state, the issue may be referred by the Council to the Conference of the States Parties (the Conference), the principal organ of the OPCW, comprised of a representative of all states parties.  In its discretion, the Conference may restrict or suspend the rights of an offending state party under the convention, and may at the extreme in “cases of particular gravity,” refer the matter to the U.N. Security Council.

 In the case of a CWC challenge inspection, any state party to the CWC may designate any site within any other state party (subject to limitations on scope and abuse), whether declared or undeclared, for a challenge inspection. And the challenged state is under a legal obligation to allow the OPCW to conduct the inspection. Refusal on the part of the challenged state to allow the inspection constitutes a breach of the CWC.

 The special inspection process laid out in the IAEA INFRIC/153 CSA, by contrast, can only be invoked for one of two reasons, as stipulated in CSA Article 73.  The first is if a state voluntarily submits a special report to the IAEA. The second is

If the Agency considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.

Before proceeding, let’s be sure we remember what the IAEA’s responsibilities are under the CSA. These are laid out very concisely in Article 2:

The Agreement should provide for the Agency’s right and obligation to ensure that safeguards will be applied, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

As I’ve explained in detail elsewhere, this means that the IAEA’s mandate is to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.

So, pursuant to the second reason listed in Article 73, if the IAEA thinks that an inspection of an undeclared site, i.e. one that is not subject to routine or ad hoc inspections under the CSA, is necessary for the Agency to verify that no declared fissile material within the safeguarded state has been diverted from peaceful use to military use, the Agency may submit a request to the state that it be allowed to inspect the subject site.

Article 77 of the CSA provides that:

The Agreement should provide that in circumstances which may lead to special inspections for the purposes specified in paragraph 73 above the State and the Agency shall consult forthwith. As a result of such consultations the Agency may make inspections in addition to the routine inspection effort provided for in paragraphs 78—82 below, and may obtain access in agreement with the State to information or locations in addition to the access specified in paragraph 76 above for ad hoc and routine inspections.

So the first step is for the IAEA and the state to consult about the IAEA’s request. If the state agrees to the request, the special inspection proceeds according to terms agreed between the IAEA and the state.  However, if the state does not agree to the IAEA’s request, Article 77 provides that:

Any disagreement concerning the need for additional access shall be resolved in accordance with paragraphs 21 and 22; in case action by the State is essential and urgent, paragraph 18 above shall apply.

Articles 21 & 22 of the CSA provide for two processes of dispute settlement in case of a disagreement between the IAEA and the state over the need for the special inspection.  These are, respectively: 1) arbitration; and 2) referral of the case to the International Court of Justice.

The only way in which the IAEA can circumvent this dispute resolution process, is in a circumstance in which “action by the State is essential and urgent.”  In such a circumstance, Article 18 of the CSA applies, which states that:

The Agreement should provide that if the Board, upon report of the Director General, decides that an action by the State is essential and urgent in order to ensure verification that nuclear material subject to safeguards under the Agreement is not diverted to nuclear weapons or other nuclear explosive devices the Board shall be able to call upon the State to take the required action without delay, irrespective of whether procedures for the settlement of a dispute have been invoked.

So, even in a case in which the IAEA considers is essential and urgent that the safeguarded state permit the special inspection, the IAEA is only empowered to “call upon” the state to do so. It is well understood by international legal scholars that when an international legal instrument provides for an international organization to “call upon” a state or states to do or refrain from doing something, this is not a legally binding command. Rather, it is a non-binding exhortation.

Therefore, in the case of a state being called upon by the IAEA BOG to allow a special inspection to take place, the state’s refusal to allow the requested special inspection would not be an action in noncompliance with the terms of the CSA, or in breach of any other principle of international law. It would simply be the state’s sovereign determination not to provide the IAEA with access additional to that which it is obligated to provide under the terms of the CSA.

Thus, such a refusal would not be grounds per se for the BOG to determine that the state is in noncompliance with the CSA. Therefore Article XII paragraph C of the IAEA Statute, which allows the BOG to report noncompliance with the CSA to the UN Security Council, would not be triggered.

So in the final analysis, unlike challenge inspections under the CWC, special inspections under the IAEA CSA are not legally compulsory. They are a request by the IAEA to the safeguarded state, to allow IAEA inspectors to examine sites not included in the state’s declaration, and therefore not subject to routine and ad hoc inspections. This request may be agreed to, or not agreed to, by the safeguarded state.

Further unlike in the CWC challenge inspection context, refusal by the safeguarded state to allow the special inspection to occur is not, in the IAEA CSA context, a violation of international law, or an act in noncompliance with the CSA.

This is a far cry from the way in which special inspections have been characterized by the non-lawyer nonproliferation specialists quoted above.

So let’s take all this newly corrected understanding about the legal character of special inspections, and apply it to the question of whether the IAEA could perform a special inspection at the Parchin military facility in Iran.  It turns out that we don’t have to proceed far into the analysis in order to find the answer.

Remember that special inspections can only be requested for one of two reasons, according to CSA Article 73. First, if there has been a voluntary special report by the safeguarded state. There has not been one in this case.  Second, if the IAEA “considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.”

Again, this links challenge inspections directly to the responsibilities of the IAEA under the CSA. And what are those responsibilities? As noted above, they are stipulated in Article 2 of the CSA. They are to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.

Parchin is not a site that is at all connected, even in IAEA and third party allegations, with fissile material that should be declared pursuant to Iran’s CSA.  The allegations about the site – allegations that are unsubstantiated, and the evidence for which the IAEA will not share with Iran – concern conventional explosives testing and other non-fissile-material-related activities that could be used in developing a nuclear warhead.  As I explained in a piece on the JURIST site some time ago, and as is made clear in Article II of the CSA quoted above, the mandate of the IAEA does not extend to investigations and assessments of non-fissile-material-related aspects of a nuclear weapons program (i.e. nuclear warhead development).  Thus, since an inspection of the Parchin site definitionally cannot be said to be necessary in order for the IAEA to fulfill its responsibilities under the CSA, a special inspection cannot be requested for the site. This is the effective end of the legal analysis.  

However, even if arguendo Parchin was a site at which there was a reasonable basis for concluding that fissile material, subject to declaration to the IAEA, is or has been present, it should be noted that as explained above, the IAEA would only be authorized to ask Iran if it could conduct a special inspection. If Iran denied this request, as it almost certainly would, the IAEA could submit the dispute to arbitration or to the ICJ, but that’s about it in terms of the ability of the IAEA to enforce its wish to conduct a special inspection of the site.

Perhaps, then, it’s no wonder that the IAEA has not opted for this route with Parchin, and at present shows no inclination to do so. Hopefully the US will think better of trying to force the IAEA into a special inspection attempt that will only poison relations with Iran further, and that ultimately won’t yield any useful results in resolving the dispute between Iran and the West over Iran’s nuclear program.

For some MUCH better ideas about how the US SHOULD proceed with regard to Iran’s nuclear program, see Yousaf Butt’s new piece here.

Advertisements

13 Comments on “An IAEA Special Inspection of Parchin?”

  1. Cy says:

    In the original article I sent Dan, published on the Washington Post website, Jack McManus was quoted as saying that some “changes” were necessary prior to requesting special inspections so perhaps they had plans to push for some sort of expanded version of special inspections that would be both mandatory and would cover non-nuclear material?

    • Nick says:

      McManus concludes by saying:

      …In return, the six are offering to help supply and run Iran’s research reactor which is fueled by plates made from higher enriched uranium, coupled with what Iran wants most — relief from sanctions meant to penalize Iran for refusing to heed U.N. Security Council demands to stop all enrichment.

      In my opinion, his conclusion is inaccurate and gives the impression the six were discussing removal of all sanctions. On the contrary, for the 20% halt it was all about allowing gold trade only. Judging from what has been mentioned by Bagheri, the last phase of the P5+1 proposal was to follow UNSC demand for complete halt of enrichment before the tougher ones could be relaxed.

      • fafnir says:

        Thats almost as insulting an offer as the one that offered aeroplane parts,in response iran should offer the west something of similar value,perhaps something along the lines of: if the west allows the gold trade iran agrees to limit itself to building only another 5 fordow type facilities instead of 10,or perhaps it will limit production of the new ir2 centrifuge to only 20,000 units,that sounds like a bargain.The other option of course is for iran to begin seriously considering enrichment to higher than 20% levels,I`m sure there are plenty of justifications iran can use but the message to west would be clear: we can ante up as well.At this rate iran could have its japan option sooner than anyone believed possible,what would the west do then or rather what could it do?,the aswer:SFA

  2. JP Zanders says:

    In a presentation earlier this year, I made a detailed breakdown of the CWC clarification and challenge inspection processes.

  3. Cyrus says:

    It should be pointed out that Iran has said that it is willing oto once again allow IAEA visits to Parchin as long as this will be the final demand and there is a modalities agreement which spells out the basis of the suspicions and allows Iran to see the evidence it is supposed to refute, and if this visit will put an end to the cycle of speculation followed by demands for extra-legal access. Thus far, the IAEA has refused this. The Westen press does not report this, instead they simply say Iran has refused access, without even mentioning that Iran isn’t obligated to allow access to Parchin in the first place.
    http://news.xinhuanet.com/english/world/2013-05/18/c_132391856.htm

  4. yousaf says:

    This is a good point: “Articles 21 & 22 of the CSA provide for two processes of dispute settlement in case of a disagreement between the IAEA and the state over the need for the special inspection. These are, respectively: 1) arbitration; and 2) referral of the case to the International Court of Justice.”

    If the IAEA is confident about its secret “possible military dimensions” evidence it should submit it to arbitration or the ICJ.

    Oh, wait, they may, like Iran, want to see the secret evidence.

    If most of the evidence is as crap as this, then their the IAEA’s case would fall apart:

    http://wmdjunction.com/130205_graphic_distraction_iran_iaea.htm

    This might explain why the IAEA is not interested in taking the legal route.

    • Denis says:

      yousaf,

      Sorry to be so slow in coming to the party on this issue. Six days is an eternity in blogging, so this thread may be dead by now.

      Your WMD Jxn piece focuses on two dumb errors in the “Jahn graph” fiasco. Those errors have to do with the Y-axis and X-axis of the graph.

      The Y-axis error is that some anonymous nitwit goofed the units, which error was causing chuckles all around the world even before “Drum-beat” Jahn could collect his paycheck for that AP article.

      Albright’s Dec2102 response to your criticisms of the Jahn graph was, essentially: “Well then, silly-boy, just scratch out the wrong units and put in units that make sense and we’re good to go.” Where “to go” means, essentially, attack Iran. In Albright’s presentation (pg. 9), Albright actually and literally scratched out the typed units on the Jahn graph and wrote in (in red) the ones he would have liked to see. Good to go, silly-boy.

      The X-axis error came in Albright’s flopped attempt to compare the Jahn graph to a graph produced by the Manhattan project, the HENRE graph. Albright juxtaposes the two graphs and concludes that, yep, the two are “similar in shape,” which is supposed to be some sort of evidence that the Jahn graph is authentic.

      But as your erudite WMD Jxn dissection of Albright’s presentation explains, the X-axis – time axis – of the HENRE graph is in the 10 nanosecond (or “shakes”) range whereas the Jahn graph is in the microsecond range – 100-fold difference. You plot both graphs on the same scale and it is evident not only is there a huge time shift in the Jahn graph, they don’t look anything like each other.

      I think the interesting thing here is the similar levels of ignorance in the Y-axis error and X-axis error. I would estimate both of these to be about an 8 on the international scale of dumb graphical mistakes, and since that’s a log base 10 scale, both errors are of the same order of magnitude. Now this may be coincidence, but it may also indicate that both errors came from the same person, and we know for sure that the X-axis error is Albright’s.

      If one reads these joint Albright/Jahn/IAEA attacks on Iran carefully, one often sees the anonymous source of all this nonsense identified as an “ex-diplomat” or “senior diplomat.” For instance, just 4 days ago Jahn reported on an IAEA “confidential report obtained by The Associated Press” bolstered by comments from a “senior diplomat” who “demanded anonymity.”

      When Jahn or Albright spew about a “senior diplomat” they are almost certainly referring to John Bolton, probably working in association with Albright, who feeds the disinformation to Jahn, who willingly and blindly bites . . . and keeps his source anonymous.

      One piece of evidence supporting this theory is that in his Dec2012 presentation Albright repeatedly refers to undisclosed information the IAEA has, in particular the database that was used to build the Jahn graph. Nobody else seems to have seen this “information” because the IAEA refuses to release it. How is it that Albright so frequently knows in detail information the IAEA holds and refuses to release? We keep getting this same crap with respect to Albright’s allegations of what is known about the Pink Site, which many people mislabel as the Parchin Military Complex.

      Given the disturbing and disgusting history of misinformation by which Bolton and his fellow neocons were instrumental in precipitating the destruction of 100,000 lives in Iraq, the involvement of the IAEA and Amano in this game again is inexcusable. This is a very public issue and if the neocons pull it off again, a lot of Americans are going to be sent to die to secure Israel’s interests; i.e., their nuclear hegemony in the Middle East.

      The public should be outraged at Amano making these allegations against Iran – which allegations move the world closer to Israel’s position of demanding an attack on Iran – without putting every iota of relevant, scientifically verifiable data he has on the table and without identifying every one of his sources. Someone needs to step in and break up this Amano-Albright-Bolton-Jahn circle-jerk before it’s too late.

      • Denis says:

        Indeed, Yousaf. Drum-beat George Jahn’s second Iran article in 2 days. This one is George Jahn trying to convince folks that George Jahn is fair and balanced, never mind all of the Jahn Parchin crap, the George Jahn explosion chamber diagram, and the George Jahn sophomoric yield graph.

        But this line got me thinking. Referring to his two IAEA sources Jahn says:

        “Their evaluation appeared to be the first in percentage terms. The officials demanded anonymity because they are not authorized to release classified information.”

        The “classified information” that Jahn is referring to is the allegation that 80% of the IAEA intel on Iran comes from “the U.S. and its allies.”

        What percentage of its intel an internationally funded agency gets from what country hardly sounds like confidential information to me. Any agency that is not willing to make that information public is not worthy of the public’s trust.

        The other issue this quote raises is this, and it’s a legal one, so I hope Dan’s listening: I can see how information that IAEA inspectors collect while inspecting a facility would be legitimately considered classified, otherwise, nobody would let IAEA inspectors in.

        But unless the IAEA is moonlighting as a spy-agency, I do not see how Amano can possibly accept or hold classified information that one country passes to him regarding another country. It seems that surely there would be some provision in the treaty that would prevent the IAEA from participating in covert intelligence operations — even as a recipient of classified information.

        I would have thought that there would be a provision that any information provided to the IAEA by a third-party would be considered public, as would the third-party’s identity. Otherwise the IAEA becomes a political tool to be used by one country against another.

        Hold on . . . that’s exactly what’s happening here.

      • Dan Joyner says:

        I think Denis makes a good point here about the fundamental nature of the role of an international organization like the IAEA, and how it’s handling of information obtained by third states bears on that nature. I’ll have to look into this. I’m trying to think if any other international organizations operate this way – accepting classified/confidential information from state A that alleges something bad going on in state B, and relying on that information in its investigation/assessment of state B, yet refusing to disclose the information and its source to state B or to the public. I can’t think of any off the top of my head.

      • yousaf says:

        If you sum up contributions from US (~25%) and allies to IAEA budget, it comes to at least 65%:

        http://www.iaea.org/About/Policy/GC/GC56/GC56Documents/English/gc56-12-rev1_en.pdf

        So 65% budget and 80% of information is from pro-US (anti-Iran) parties.

        Thus it is unsurprising that IAEA is biased in the way that it is.

        Re. the secret evidence — at the very least the country being accused should be shown what the accusations are based upon!

      • Dan Joyner says:

        A very good synthesis of facts and production of implications by Yousaf.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s