Is the IAEA Actually Starting to Listen and Apply Legal Standards More Correctly?!?

I was just reading over the new IAEA DG report on Iran, released today. It struck me that the first paragraph of the summary section, which has remained pretty much unchanged for a long time now, suddenly has been changed – only slightly but I think significantly.

First, here is the language of that paragraph from the past two DG reports, in May and August:

May 22, 2013

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

August 28, 2013

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

Now look at the report released today:

November 14, 2013

65. While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, the Agency is not in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.

See the difference? The new DG report dropped the phrase “as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol”.  I’m really not sure how to account for this difference.

As readers will know, I’ve written at length about the IAEA DG reports on Iran, and specifically how, in this first summary paragraph of those reports, the IAEA has utilized incorrect legal standards in making an assessment of Iran’s compliance with its safeguards obligations.  While this new formulation of the DG’s finding still refers to the agency’s inability to assess the absence of undeclared nuclear material (which it really shouldn’t, because according to Iran’s current safeguards obligations it’s not the IAEA’s job to assess this fact), nevertheless the removal of the indicated phrase does significantly change the tone of the sentence, from one which places the fault for this inability of the agency on Iran, to instead stating as a more neutral fact that the agency simply “is not in a position” to make this assessment.

Honestly, I think this is a big improvement, and I think it goes a long way towards rectifying the erroneous expression of legal standards that has been present in IAEA DG reports on Iran for some time now.  Because honestly, the DG report on MOST NNWS could say the exact same thing – even if they have both a CSA and an AP in place. Now, I know that the IAEA has in the case of some states reached a point of confidence about the absence of undeclared material, at which they are willing to reach a “broader conclusion” that all nuclear materials within the state are in peaceful use. However, according to the 2012 safeguards statement published by the IAEA, out of the 179 states that have safeguards agreements with the IAEA, the IAEA could only make this broader conclusion, including undeclared nuclear material, for 60 of those states. Meaning that there are currently 119 states, including Iran, about which the IAEA could make the exact same statement, verbatim, that it has made in this first summary paragraph of the November 14 safeguards report on Iran.  

I think this really helps to put Iran’s safeguards obligation compliance into its proper context. Iran is currently in compliance with its safeguards obligations with the IAEA. As with 118 other safeguarded states, the IAEA is simply not in a position to determine that there are unsafeguarded nuclear materials in Iran.

I think that this finding, when properly understood and contextualized, helps significantly to bring perspective to Iran’s standing with the IAEA, and with its international nuclear obligations.  

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20 Comments on “Is the IAEA Actually Starting to Listen and Apply Legal Standards More Correctly?!?”

  1. yousaf says:

    Amano is possibly getting marching orders from Kerry to try to resolve issues such that the P5+1 and IAEA can both come to some kind of agreement with Iran at about the same time, i.e. without looking inconsistent — for more on that pls check my new Reuters column:

    http://blogs.reuters.com/great-debate/2013/11/14/too-many-cooks-in-the-iran-nuclear-kitchen/

  2. Johnboy says:

    Dan, would one possible solution be for the DG to add that sentence to each and every report for each one of those 118 states?

    That way it becomes a boilerplate statement of the bloody obvious, and not a pointed dig at One Particular Country That We Want To Pick On.

    • yousaf says:

      I’ve been trying to dig this out but evidently other nations don’t always have such report done or published at all. Pls correct me if I am wrong. e.g. is there a report for Brazil?

      12% of the IAEA budget is spent on invstigating Iran.

      25% of the IAEA budget comes from the US.

      About 70% of the IAEA budget comes from US+Allies.

      If one does the math, one obtains the current situation.

      • Cyrus says:

        The country reports are supposed to be confidential (a sore point with the Iranians who have complained that the media get IAEA reports faster than Iran does.) Brazil and Argentina, two other nations that enrich uranium, have far less transparency in inspections, and in fact the Brazilians have refused to allow the inspectors to even see the centrifuges — all they get to meausre is what goes in and what comes out of a black box. This, despite the fact that these nations have a history of seeking nukes, and even current politicians there call for making nukes. Everything said about Iran’s enrichment program applies with greater relevance to these nations: they “can” break out and make nukes, they don’t “need” to enrich uranium as they can continue to be reliant on external suppliers (Germany, mostly) and etc etc.

      • Johnboy says:

        Hmm, looking around…. yeah, I think you are right, Yousaf. The IAEA does not produce a specific country report for Brazil, nor for Argentina.

        Every country that isn’t called “Iran” is lumped together in an all-encompassing safeguards report that gets sent to the BoG, and it’s only The Very Naughty Boy who gets his very own country report.

        Which would then rather beg the question of the mechanism by which the IAEA directorship choses who is A Naughty Boy deserving of special attention, and who is to be regarded as Teacher’s Pet.

        Maybe I’m wrong on this, and every country does get their own report, and the only difference between them and Iran is that their reports aren’t published, but Iran’s is.

        Which again would beg the question: why, exactly?

      • Tomás Rosa Bueno (Brazilian journalist) had a good article about this in 2010. A couple of quotes:

        “Iran grants UN inspectors more access than for example Brazil, who, citing industrial secrecy, will not allow them to see what happens within our centrifuges: they can see what goes in at one end and what comes out from the other, but not what happens between them. Brazil, South Korea and Taiwan also do not disclose the sites where their centrifuges are designed and manufactured, and at least Brazil, in full compliance with the safeguards negotiated with the IAEA by the Brazilian government at the time we joined the NPT in 1997, allows no access to the development program for nuclear-submarine reactors, claiming military secrecy – Brazil does have a military nuclear program, Iran does not.”

        “If it was possible to blatantly lie about Saddam Hussein’s “weapons of mass destruction” and then devastate Iraq, if they can lie shamelessly about the Iranian nuclear program and threaten Iran with a military strike, what is to ensure that the same thing will not happen to Brazil tomorrow? Today, we are friends and allies of the United States, and even signed a military cooperation agreement with them, but who can tell what our relations would be like in two, ten, twenty years? If the U.S., France and the UK have reasons to want to attack Iran for who knows exactly what reason, how can we be sure that they will not find a bunch of similar reasons to attack Brazil, or prevent it from developing this or that technology if it is convenient to them?

        If we allow Iran to be illegally prevented from developing a peaceful nuclear program they are entitled to, the NPT would become a dead letter, and we may be subject to the same treatment in the future. The illegal attack against Iran’s rights and the preparation of another illegal military intervention against a sovereign country under false pretenses obviously needs to be stopped now, while it is still possible. Brazil has a duty to defend the rights of Iranians today, lest we endanger our own rights in the future. Our status as an emergent global power and the very continuity of our development depend on our unconditional support for the right of the Iranian people to develop a peaceful nuclear program without interference, threats and attacks.”

        http://www.globalresearch.ca/nuclear-diplomacy-brazil-and-iran-our-motives-and-the-bullying-trio/?print=1

    • Dan Joyner says:

      Johnboy, I think that would make things much more systematic and evenhanded. If they’re going to put it in Iran’s report, they should put it in every other report for the 118 similarly situated states. Although ideally, I would say that it really doesn’t need to be in any of the reports, including Iran’s. It really only serves to confuse those who don’t understand the legal framework.

      • yousaf says:

        Has anyone seen a recent report for Argentina or Brazil? (Serious question) If so, please post.

        Can we demand IAEA publish or leak a report for Brazil, like they leak the Iran one to ISIS on a regular basis?

        Can we ask what the Brazil report contains in the equivalent para?

  3. Nick says:

    Sorry to change the discussion a bit, since Yousaf started it.

    Looks like my dilemma is solved. Zarif is saying we don’t need to have our rights recognized, because it is recognized under inalienable rights 🙂 Nice way of clearing the last point for next week’s agreement. I think they will pause Arak as well. If Bibi doesn’t throw another monkey wrench, this easy first phase should be done, but he is spoiler numero uno and will not give up.

    • yousaf says:

      Do you have the link to where Zarif said that? Thanks.

      I think France will find something wrong — while they proliferate nuclear technology to Qatar and Saudis.

      • Nick says:

        Here is the link:
        http://www.jpost.com/Iranian-Threat/News/Iran-points-to-possible-way-round-nuclear-sticking-point-331999

        I think France has added to the list now and wants some of the material moved out of Iran, which was another red line, mentioned by Iran’s negotiator Iraghchi last week. Finally, they want inspection of ALL the nuclear sites, which I interpret as AP, since they are already inspecting CSA sites. If this is for the first phase agreement next week, then what would be left for the comprehensive agreement later on is to limit total annual SWU to something very low and effectively close the program.

      • yousaf says:

        France is doing its job as stand-in for Saudi Arabia pretty well. Hopefully France will be rewarded with some lucrative contracts. (No wonder Saudi Arabia declined a seat on the security council recently — they don’t need it: they have France’s seat).

        What this sorry episode shows is that UNSC constituent nations need to be revised: second-rate nations like France and UK, which are already represented by the US, should be removed. Probably Brazil and India should take their place. Turkey also.

    • Johnboy says:

      Just as an aside: the question of whether (or not, as the case may be) the NPT acknowledges an “inalienable right” to enrich Uranium strikes me as a legal question, however much it might be a political hot-potato.

      So if the USA and Iran do want to cut a deal (and, apparently, they both do) and *that* particular issue is a sticking point then one possible way around it is for both of them to agree to send it to the ICJ as a “contentious issue”.

      Doing so serves the political purpose of pushing *that* sticking point to one side, since both sides can “agree to disagree” until such time as they both have their day in court.

      The only problem is, of course, that the USA knows that eventually the court will make a ruling, and the USA already knows what it doesn’t have a hope in Hades of saying Nah Nah We Win, You Lose…….

      • yousaf says:

        The arbitration clause of the CSA is another venue

      • Johnboy says:

        Yousaf, isn’t the arbitration clause only of use in case of a dispute between Iran and the IAEA regarding interpretation of the terms of the CSA?

        The issue I’m talking about is an argument between Iran and a 3rd party regarding their interpretation of the NPT, and a wider argument regarding the sovereign rights of states.

      • yousaf says:

        True — but if P5+1 agreed (and Iran did too…) then arbitration may be a way out…


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