BAS Roundtable Back Online
Posted: October 1, 2013 Filed under: Nuclear 31 CommentsAfter being unavailable for some time due to a website makeover, my debate with Andreas Persbo and Chris Ford in a roundtable over at the Bulletin of the Atomic Scientists is now back up at this link.
And while I’m writing, I talked to someone today who is a senior CIA analyst and who is currently furloughed because of the government shutdown. He said many other senior analysts are also being furloughed as of today. See here.
Still think the shutdown doesn’t threaten US national security? What are we not watching right now that we should be watching, and would be watching if a small number of radical ideologue republicans in the House weren’t holding the US government hostage? Unbelievable.
Arms Control Law 
Dan,
You had a ACL blog that was removed as well here from a few weeks ago on the same discussion. What caused that to happen?
Hi Nick,
I think you may be thinking of this one, that I took down for some edits but then put back up later:
https://armscontrollaw.com/2013/08/22/new-vertic-brief/
Hi Dan,
Yes that is the one. Thanks
Excellent analysis. Now we even have the Latin ultra vires to give the necessary cache to Amano’s running loose. Amano, you’re ultra vires! Take that, you scumbag. See you in court.
Ultra vires is actually a pretty common legal phrase. In the US it is often used in the context of administrative law, when an administrative agency oversteps its authority from Congress in creating rules and regulations. In those cases, the aggrieved party can challege the administrative agency in court.
Please listen to what Wendy Sherman said today in the senate hearing. She said USG doesn’t recognize the right of Iran to enrich during conversation with Rubio 1:14:00 (roughly)
Eager to hear Dan Joyner & others comment on the Sherman-Rubio exchange.
specifically, Sherman mentioned Article 4, which she said she has pointed out to Iranians does not say ANYTHING about right to enrich. Germany, Japan assume they have right to enrich; US does not. But, continued Sherman, UN resolutions restrict Iran from :”enrichment,” not “right to enrichment,” until it meets its international obligations.
ACL has probably reviewed this a number of times: can a UN resolution trump NPT?
Rubio said, If that’s the case, that the US recognizes no right to enrich, why doesn’t Obama put down a marker: no negotiations until Iran surrenders enrichment.
Which is the position Flynt Leverett has argued relentlessly is delusional. Rubio appears not to have noticed that setting preconditions to a negotiation has not worked out so well in Palestine for >20 years; it blocked problem solving in Syria.
The question is not whether the UN resolutions trump the NPT — the NPT is not the source of the right to enrichment. It merely recognizes that right.
The purpose of the NPT is to curtail nuclear proliferation, and it is not to confer rights. The treaty makes that clear:
Wendy Sherman is a political hack who like Netanyahu is on the “military nuclear program” kick, so of course Iran doesn’t have a “right” to any element of that (bogus) program in U.S. eyes.
Sherman is the U.S. “lead negotiator” on Iran — so you see that there can’t be any real negotiations with the attitude she has. This is deja vu 2009 so Obama can again say: ‘Well, I tried, but Iran just won’t negotiate (i.e. surrender).’ And then it’s on to more crippling sanctions. It’s all a charade.
Indeed, the NPT is not the source of the right to enrich uranium. That right pre-existed the NPT; otherwise by what right did China, Russia, the US, and non-NPT signatories develop their nuclear programs? The NPT is simply a bargain in which the NNWS agreed to voluntarily suspend their right to make nukes, specifically, in exchange for certain promises from the NWS. Note I said “suspend” not “give up” — Article X of the NPT itself recognizes that signatories can withdraw from the treaty and return to the status quo ante.
Wendy Sherman is being disingenious. Nothing in the NPT or any of Iran’s safeguards gives anyone the right to tell Iran to suspend enrichment OR the right to enrichment. Iran’s file shouldn’t even have gone to the UNSC in the first place as Iran did not “divert nuclear material for nonpeaceful uses”. A right that is exercisable only on the whims of external powers is not even a right.
I think the way she and the rest of his team at Foggy Bottom convinced themselves–God knows how many meetings it took to come up with this–is that two things stand out in Article IV; looking at it from the UN speech and what Sherman said yesterday.
First, it defines the inalienable rights namely research, production, and use of…; So it is restating those three which arguably enrichment is not one of them, unless somewhere in NPT or other treaties the enrichment is spelled out. It is a weak argument, but she wants to do whatever she can to derail discussions. Interesting she said, USG doesn’t recognize anybody’s right to enrich.
The second part is what was mentioned in Obama’s speech, and that is “nuclear energy,” and not “technology.” When UAE buys South Korean reactors, they are accessing nuclear energy. And that is why Susan Rice said those words were carefully selected.
It seems to me that even if a very small cascade is permitted for reducing sanctions, USG will NEVER recognize Iran’s right to enrich, will do so only for accessing nuclear energy.
The USG doesn’t recognize anybody’s rights to do anything that isn’t approved by the USA. That’s the burden of being the master of the world, and controlling energy supplies is Job One. Sherman is a lying tool of team USA in going through this “negotiate” charade. It’ll be over soon, just as it was in 2009. It’s one of Obama’s life-phases.
The USG doesn’t allow its puppet the Republic of Korea to enrich at all, even though ROK builds reactors in several countries. But Iran doesn’t buy that argument, nor should they.
And since when is enrichment not a part of production? The general sense of the paragraph is to allow everything, except diversion and proliferation. It’s all under IAEA surveillance, after all.
So the US offensive on Iran ambitions continues. Where are those pesky nuclear weapon ambitions? Why they’re east of Kerman, and north of Baktaran, and south of Esfahan, somewhere. We need to get the IAEA/CIA inspectors to blanket the country and find them — but not on Khamanei’s watch, bless ‘im.
There is the thorny legal principle that suggests that where there are no laws then there can be no illegality.
Or, put another way, if the NPT is not the source of the “right to enrich” (and I agree with all the commentators here that it is not) then you can’t use any (alleged) violation of Iran’s safeguards agreements to claim that Iran has forfeited its right to enrich.
Basically, absent a treaty that “grants” to a sovereign state the “right” to do _____ (fill in the gaps) then any state can do _____
After all,
(a) there is no treaty prohibiting it and
(b) states are sovereign, dude, so absent a treaty then they can do as they please.
After all, as someone else has already pointed out: the USA, Russia, Britain, France, and China all enriched BEFORE that treaty was ever negotiated, ergo, their “right to enrich” had to have come from their sovereign status, not from their signature on the NPT.
To argue otherwise is to be chronologically-challenged, unless Wendy Sherman is related to that little Sherman kid who travelled through time with Mister Peabody in the WABAC Machine.
“Sherman, set the WABAC machine to 1968”.
This “rights” discussion reminds me (sorry to go off topic) of Chief Justice Roberts’ remark that “there is no right to abortion in the Constitution” as if the government exists to grant rights to citizens, rather than to protect citizens’ inherent rights.
The same principal exists internationally. The UN should be defending Iran’s rights, not undermining them (for political reasons).
Governments at any level are not and should not be constituted to confer rights to human beings.
Just to recap my understanding is that:
NPT article 4 restates, ever so poorly, some of the inalienable rights of a member country, without restating the enrichment specifically. US officials read it as research, production, and utilization of nuclear energy. In my opinion, this reading is strictly for nuclear reactors. If you reread it that way it means you can do research, develop, utilize nuclear power plants. Doesn’t say anything about making the fuel. A good example is that Ford makes cars which includes design issues regarding motor, type of fuel, fuel grade, and other details, but doesn’t produce fuel, Exxon does.
The other point is that enrichment and other rights, are part of a sovereign nation’s rights, but USG doesn’t recognize some of those, as is the case for enrichment, outside NPT. They just ignore the issue for friends and enforce that position for enemies.
If Sherman is meeting with Zarif with this attitude, then there is a major disagreement with Rohani’s position that enrichment right must be recognized.
If hypothetically US and Iran agree on some watered down enrichment set up, then what does that say about not recognizing anyone’s enrichment position? Will South Korea be upset?
Dan Joyner said in a speech in Feb. 2013 that there is an arbitration clause in the IAEA statute and that he would “luuuv, dearly love to represent a state in an arbitration with the IAEA on these issues.”
Today a CFR member appeared on C Span and said that US would “test” Rouhani’s positions; that talks would take place among P5+ “but that major talks between US and Iran will have to take place.” In these talks, they’ll try to at least “outline a final agreement which would be a trade-off between constraints on Iran’s nuclear program on the one hand … and relaxation of sanctions. …”
The next debate, Patrick said, would be “How much control over this allegedly peaceful program is going to be enough for the Israelis.”
That puts waaay too much influence in Israel’s corner.
If those who think differently don’t put a man in the opposite corner, we’re out of the debate. Mossadeqh said, “If I remain silent I have sinned.”
What would it take to set up a mock trial of the IAEA/NPT? Who would participate? Could it be funded thru Kickstart? Where would it be? How could we ensure that C Span would video it?
“A good example is that Ford makes cars which includes design issues regarding motor, type of fuel, fuel grade, and other details, but doesn’t produce fuel, Exxon does.”
Ford Motor produces cars for others to operate. As a part of of the production process it may produce its own energy. The Ford Motor Company plant at Rouge River, Dearborn when it was completed in 1928 had become the largest integrated factory in the world.
“The Rouge” measures 1.5 miles wide by 1 mile long, including 93 buildings with nearly 16 million square feet of factory floor space. With its own docks in the dredged Rouge River, 100 miles of interior railroad track, its own electricity plant, and ore processing, the titanic Rouge was able to turn raw materials into running vehicles within this single complex, a prime example of vertical-integration production. Over 100,000 workers were employed there in the 1930s.
The Geneva talks are scheduled for Oct 15-16.
The E3/EU+3 in Almaty have presented a “confidence building proposal” which if Iran complies would result in limited relief from United States and European Union sanctions on trade in gold and precious metals and petrochemical sales, the licensing of US repairs to Iran civilian aircraft; as well as to impose no new UN or EU sanctions.
Iran FM Zarif has said that the terms offered before Hassan Rouhani was elected president were now “history” and that a “new approach” was needed. Catherine Ashton has indicated that the “5+1” will not present any new package beyond what was offered.
Almaty Confidence Building Proposal
Iran would undertake the following voluntary measures: . . .
http://backchannel.al-monitor.com/index.php/2013/06/5444/p51-almaty-confidence-building-proposal-to-iran/#more-5444
There is a significant problem with the Almarty proposal w.r.t. reactor plates for the Tehran Research Reactor.
The proposed sequence of events (over six months) is this:
a) Iran suspends all enrichment of 20% uranium for the TRR
b) Iran retains a “working stock” for the TRR (definition To Be Determined)
c) Iran then surrenders the rest of its stock to a 3rd party.
AND IN RETURN
d) P5+1 will “Offer to provide fuel for the Tehran Research Reactor” as a “voluntary measure”.
The obvious trap is that the definition of a “working stock” is almost certain to be “six months worth of supply”, after which time Iran will – by definition – run out of its own fuel for that reactor.
Iran will then be dependent upon the overseas supply of reactor fuel, but I will suggest here and now that the odds of the P5+1 having “volunteered” to make good on that “offer” will be zero.
They will find some reason not to “volunteer” to do this, leaving Iran with no choice but to open those seals and recommence enrichment to 20%.
At which point “the West” will shout that Iran has reneged on the deal, it is evil incarnate, the Mullah’s can’t be trusted, Bomb ’em! Bomb ’em! etc., etc., etc., even though it will be the lack of good faith on their part that will be the root cause.
It’s a trap, Luke.
If anyone thinks that ANY government would leave the safety and security of its people hostage to “voluntary measures” by foreign powers, they’ve got another think coming.
DB: “This is now, when conditions would be different.”
If you say so.
But I’ll point out that the Almarty proposal says this: “After IAEA confirmation that Iran has implemented all these measures, the E3+3 would undertake the following voluntary measures: Offer to provide fuel for the Tehran Research Reactor.”
The proposal itself therefore defines the source of Iran’s future supply i.e. the cartel known either as the E3+3 or P5+1.
And that cartel is under no obligation other than to “volunteer” to “offer” to supply the fuel.
But this is true: nowhere in that proposal is it stated that Iran is entitled to look elsewhere should that “offer” either be unforthcoming or be deemed by Iran to be unacceptable.
Any attempt by Iran to do so would certainly be viewed as an abrogation of the agreement, and any prospective supplier would certainly be put under the same pressure that currently anyone from entering into any commercial agreement with Iran.
Regarding sources of uranium enriched to 19% (and speaking as a complete layman on this subject) there are enriching countries outside the US political orbit which are Iran allies, or at least friendly: Argentina, Brazil, China, North Korea, Pakistan, Russia and India.
NOTE: I resist saying 20% because technically that moves Iran from LEU into HEU, where it doesn’t belong.
Don, if Argentina, or Brazil, or China, etc., were willing to sell enriched uranium suitable for feedstock for the TRR then Iran would already be purchasing it from those countries.
It was Tehran’s inability to purchase just such uranium that forced them to move from 5% to 19% enrichment in the first place (much to the chagrin of the USA who had assumed that Iran lacked the technological prowess to do so).
Whether – or not – you consider those countries to be inside/outside “the US political orbit” is rather immaterial; it is demonstrably true that Iran has been unable to purchase enriched uranium from those countries, and it is undeniable that this failure can be put down to pressure exerted on those countries by “the West” a.k.a. the USA.
That pressure will continue regardless of whether (or not) Iran accepts the Almarty proposal i.e. accepting that proposal will leave the TRR hostage to external supplies of uranium, and that supply-side will be under the iron-fisted control of a cartel (a.k.a. The P5+1).
Basically, the proposal as it stands amounts to an open invitation to screw the Iranians.
Whether that is the original intent will become irrelevant: the temptation to screw Iran will be irresistible, and so a’ screwin’ they will go.
The 2010 Brazil-Turkey deal which Obama first endorsed and then killed with sanctions was then. This is now, when conditions would be different.
Indeed Iran acquired its first batch of fuel plates after the revolution for the TRR from Argentina. However it was not able to obtain a secondary batch due to US pressure on Argentina. The TRR, when it was first given to Iran by the US in the 1960s, was powere by weapons-grade plutonium (several kilos of which the US also provided to Iran; what’s left of it is still there and monitored by the IAEA.) After the revolution the Iranians contracted Argentinian help to convert the reactor to use low-enriched uranium fuel instead. This was in 1990 I think. Anyway, by preventing Iran from acquiring the fuel, the US simply encourged Iran to increase its enrichment levels, thus the policy backfired, if you think about it, since the US move actually encouraged Iran to get closer to nuke-making “capability.”
This was completely unnecessary, since neither the TRR nor the fuel for it poses any sort of realistic weapons proliferation threat (the TRR is far too small, and constantly monitored by the IAEA.) Considering that 800,000 Iranian cancer victims rely on the isotopes produced by the TRR, one has to ask what point was served in denying the fuel for the TRR to Iran. If the goal was really non-proliferation, it didn’t help but hurt.
Since then we hear a lot about how Iran needs to stop 19% enrichment. However the same reports completely disregard the fact that the Iranians have repeatedly and consistently stated that they want to stop 19% enrichment, as long as they can just go back to buying the fuel, as is their right. The problem is that the US refuses.
The US position appears to be that Iran can’t buy the fuel to make those medical isotopes, and can’t manufacture its own fuel plates either, and those 800,000 cancer patients can just go die.
My understanding is that TRR now has enough fuel for 10 years or so, based on domestic enrichment of 20%. But there are two main concerns. First, right now at least there is a radiation testing being performed by AEOI in TRR to see if the domestic fuel for that plant can meet the expected safety and operations standards. So the jury is still out if these rods will work, hopefully will without any safety problems.
The second issue from what has been reported is the age of TRR and whether it can survive another decade of usage without any problems, regardless of how much fuel it needs, domestic or otherwise.
The TRR itself has reached the end of its useful life and will be mothballed, to be replaced by a larger and more modern reactor eventually.
veteran CIA analyst Paul Pillar on where the problem lies in striking a deal with Iran:
http://nationalinterest.org/print/blog/paul-pillar/which-whose-concrete-actions-9151
“….we unfortunately have yet to see from the administration the sort of specific, concrete actions that would make things happen.
……Amid all the talk about “testing” Iranian intentions, Leslie Gelb correctly observes [6] that “Obama has to test himself as well and put some smart compromises on the table to jump-start serious negotiations. According to administration officials, however, he hasn’t gotten close to this approach yet.” There is too much of an attitude in Washington that the ball is still in the Iranians’ court.
In thinking about whose half of the court the ball is in right now, we should note that this whole issue is not an issue because the Iranians made it one or wanted it to be one. They are doing with their nuclear activities what several other nations have been doing and that they believe with good reason they have a right to do as well. They had no reason or desire to make a stink about it. The issue is a big stinking issue because people outside of Iran have made it so, and it is outside Iran that much of the action needs to be taken now to resolve the issue.”
The USG is more than Obama, in this case if not in others. The Congress doesn’t want compromise, it wants Iran’s head on a stake. The House has passed H.R. 850 which would attempt to cut Iran’s oil exports to zero, and take other steps “to prevent Iran from acquiring a nuclear weapons capability. ”
Click to access BILLS-113hr850-SUS.pdf
The Senate, currently under temporary restraint, has similar intentions.
And what drives Congress? Dollars. Here’s Steve Clemons in a recent puff-piece on SecDef Hagel
Actually Clemons is way low on his $10 billion — its many times that, with the Saudi military alone having a potential of $60 billion. That’s more than the GDP of about 120 countries in the world.
So having Iran as an enemy pays off, big time. They won’t give it up easily. “Potential Iranian aggression” pays the bills.