Hibbs on Closing the Iran FilePosted: July 11, 2013
A couple of days ago I wrote a post in which I said this about Mark Hibbs’ most recent post over at Arms Control Wonk:
While I’m writing, I might as well also quickly address Mark’s other recent piece over at Arms Control Wonk. This one is entitled Closing the Iran File, and contains Mark’s prescription for how Iran can normalize its relationship with the IAEA. I honestly don’t see much that is novel in this piece. It seems to just be saying that Iran should do everything the IAEA and UNSC says it should do, and that if they do, in time the IAEA may back off on its scrutiny of Iran’s nuclear program and normalize its safeguards relationship with Iran. The piece doesn’t seriously engage with any of Iran’s objections to the substance or process of IAEA/UNSC actions regarding it, or with Iran’s proposals for normalizing relations with the IAEA. It appears to offer no new insights into how the dispute between Iran and the West can practically be resolved.
It is of course all wrong in its fundamental assumption, upon which the entire piece is based, that the IAEA should be investigating ”potential military dimensions” in Iran, or anywhere else for that matter. But I’ve made this point so many times before that I didn’t really see it as worth the time or effort to do so again in comments to this new piece.
After writing this, I decided to make a short comment to his post, agreeing with Yousaf and Johnboy and some of the others that had commented. Mark didn’t allow my comment to be posted. So I suppose I’m now officially persona non grata with both Mark Hibbs and Jeffrey Lewis, the latter of which has made his disdain for me very clear for a long time. Lewis is of course a poster child for the US nonproliferation epistemic community, which I critiqued here.
But I have actually respected Mark Hibbs for years, and continue to think that his work is extremely valuable overall – in particular his more journalistic and explanatory pieces. And if you were to look at his pieces over the past several years on ACW, you’ll see that I’ve been very openly complimentary of him in the comments to many of them. Its really only on the issue of Iran that I have taken issue with his analysis. Its a bit strange to me – on other issues Mark seems to be quite open minded and willing to challenge the US and the IAEA on things. But on the Iran issue, somehow it seems that Mark has drunk the Kool Aid flowing from the DC echo chamber which, along with its unfortunate implications, was recently insightfully discussed by Robert E. Hunter in a post over at LobeLog.
Oh well. I guess its a good thing that I have my own blog now where I can say anything I want and neither Lewis nor HIbbs can stop me.
With regard to Hibbs’ most recent post, I stand by what I said previously. PMD issues are not within the IAEA’s mandate to investigate and assess. Period. Nothing has changed, or can change that. At one point in the comments, Mark says:
There can be no question that the IAEA has that authority to pursue these issues in the case–as I outline in the blog post–should Iran volunteer to ratify, bring into force, and implement its Additional Protocol.
And then he cites to the hatchet job report that Albright and friends did on my work a while back. Fortunately, Yousaf was allowed by Hibbs to reply to that comment and to site to my responses to that report, and to my earlier Jurist piece on the PMD issue specifically. Mark’s allusion to the AP here is confusing and inapposite. The AP gives the IAEA no additional remit of authority to investigate PMD issues than it has under the CSA, which is zero. The AP is about increasing the IAEA’s authority to verify both the correctness and completeness of a safeguarded state’s declaration about the location and amounts of fissile material within its territory. Its not about giving the IAEA the authority to investigate or assess nuclear warhead development related research within the state, which is what the PMD issue is all about. As I’ve explained before, the entire PMD issue is a red herring that should be completely and immediately dropped by the IAEA.
Many of the regular commenters here at ACL have, however, been allowed to comment on HIbbs’ post, and I’ve been very glad to see the excellent legal points that you’ve been making there. In a comment to one of my earlier posts, Johnboy asked me a question about something Hibbs wrote over there:
Dan, I’m reading the comments in Mark’s post at armscontrolwonk, and one of his statements left me puzzled.
This comment in reply to Cyrus:
“The Board of Governors made a big mistake in not responding to the IAEA’s 2003 findings of 18 years of systematic deception by Iran, by passing a resolution stating clearly and without further ado, in 2003, that Iran was in non-compliance with its safeguards obligations and then ordering Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding”
That the Board can pass a resolution declaring that based on the “IAEA’s 2003 findings” that Iran is guilty of non-compliance with its safeguards is not something that I dispute.
It’s the “and then ordering Iran” bit that leaves me puzzled, because I can’t see where the Board of Governors has the authority to order anyone to pull the pin on their uranium enrichment plant.
It does rather suggest that Mark thinks that the Board has the authority to be judge, jury and executioner which – to say the least – is a level of unaccountable power that is Somewhat Open To Abuse.
Maybe I’ve missed something.
Maybe the Board of Governors does have the power to “order” a country to “suspend sensitive nuclear activities pending clarification of outstanding issues”.
What’s your take?
My take is that you’re not the one who is puzzled, Johnboy. You are right on the law, as have the other ACL commenters been, and Hibbs is wrong. Of course the IAEA BOG has no authority to “order Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding.” All the BOG can do is determine that a safeguarded state is in noncompliance with its safeguards agreement, and, if it chooses, refer the matter to the Security Council. Its this kind of comment, from someone as knowledgeable about the IAEA as Hibbs, that shows me how much misunderstanding there is in the nonproliferation community about what the actual legal authority of the IAEA is, and how limited it is.
At another point, George William Herbert makes this statement: “. . . I believe that the AP has caused the international standard / legal expectation to be that the IAEA becomes the NPT enforcer.” Again, this isn’t even in the ballpark of a correct understanding of the IAEA’s legal authority.
I know that all of these guys – Lewis, Albright, Hibbs, Herbert, Fitzpatrick, Pollack, Ford, Wulf, Kittrie, and the rest of the US nonproliferation crowd, along with their few foreign friends like Persbo and Heinonen, think I’m just a pain in the butt, and an Iran apologist. They’ve made that very clear. And I’m sure I am a pain in their collective butts in bringing up these legal issues that they would rather not have brought up. But I am right, and people who really understand international law agree that I’m right. And the rest of the world, that actually cares about international law and the lawfulness of acts of international organizations, thinks these things are important and shouldn’t be marginalized.