Response to Mark Hibbs on Iran Negotiations and the IAEA

Mark Hibbs has written a new piece over at Arms Control Wonk entitled “The IAEA After the Iran Deal.”  Since I am persona non grata at Arms Control Wonk these days, I’ll have to respond to Mark’s post here.

As an aside, I still think it’s a shame that the mainstream nonproliferation epistemic community essentially refuses to engage with me and with my critiques. Their strategy seems to be to welcome inside their tent of engagement and regard any and all who essentially agree with them, reciprocally congratulating each other on being “the expert community” on nonproliferation, and shutting out from meaningful engagement and debate any that offer a serious critique of their commonly agreed narrative and assessment of correctness and incorrectness.   In international legal academia, if someone makes a serious, well founded argument that challenges the orthodox understanding on an issue, even if we don’t agree with that critique, we respect the new contribution to literature, and seek to engage collegially with that person.  We promote true, rigorous exchanges with colleagues, like the one I recently enjoyed with Marko Milanovic and others in the comments to my cross-posted piece over at EJIL:Talk.  In my view, the nonproliferation epistemic community, particularly in the US, continues by contrast to be cliquish, incestuous, willfully insulated, and self-referential, to its detriment.

I don’t mean this to be a particular jab at Mark.  As I’ve said before, I think that Mark’s work overall is extremely valuable. He’s one of the most knowledgeable and plugged-in people in nonproliferation studies. I have disagreed with him on some discrete points in the past, but I find myself in almost complete agreement with him in his assessment in this new piece.  In it, he considers what the role of the IAEA will be in the implementation of the new Iran/P5+1 deal, and whether the IAEA has the legal authority and resources to perform this role.

I agree with Mark that I don’t see any serious legal problems posed by the role that the deal text assumes/implies will be played by the IAEA in implementing its terms. Mark goes through the issues in detail, and I concur in his analysis.  Mark insightfully quotes Article III(A)(5) of the IAEA Statute, which provides that:

The Agency is authorized… to establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the Agency or at its request or under its supervision or control are not used in such a way as to further any military purpose; and to apply safeguards, at the request of the parties, to any bilateral or multilateral arrangement, or at the request of a State, to any of that State’s activities in the field of atomic energy. (emphasis added)

I would only add to Mark’s analysis that I see both the November 11 Joint Statement between the IAEA and Iran, and the November 24 Joint Plan of Action – both of which are informal and legally nonbinding – as essentially amending Iran’s subsidiary arrangements with the IAEA; or in the case of the November 24 JPA, at least signalling Iran’s willingness to amend them (as Mark correctly points out, the IAEA was not a party to the November 24 JPA). As I’ve stated previously, subsidiary arrangements between the IAEA and safeguarded NNWS are best understood to be legally nonbinding, and simply to stipulate agreed procedures for implementation of the safeguards agreement between the two parties. So, on points on which the new agreements diverge from or add to Iran’s existing subsidiary arrangements with the IAEA, I think it’s best to understand that these are in effect amendments to those subsidiary arrangements – legally nonbinding but still important agreements on modes of implementation of Iran’s safeguards agreement with the IAEA.

After correctly observing that neither of the new agreements specifically reference the IAEA’s allegations of possible military dimensions (PMD) of Iran’s nuclear program, Mark concludes with this statement:

Iran has not provided the IAEA answers to any key PMD-related questions since 2009. It is unlikely that all of these questions will be answered during the next six months. How much information the Iran gives to the IAEA will no doubt be subject to negotiation during this period along the lines of what the IAEA and Iran agreed upon on November 11 in Tehran. At the end of a year, assuming that six months will not suffice to reach a comprehensive settlement of the Iran conundrum, perhaps the biggest challenge will then appear: If we assume that Iran implements all other conditions of the Joint Plan of Action, save divulging what may be compromising details about its previous nuclear activities, how much about Iran’s most sensitive nuclear past must the IAEA know for the six powers to make a deal with Iran looking into the future?

I am glad to see commentators like Mark implicitly recognizing that the IAEA’s misapplied obsession with Iran’s past alleged research activities, is very likely to pose an unnecessary stumbling block to achieving a comprehensive accord between Iran and the West on Iran’s nuclear program.  I have criticized this element of the IAEA’s approach toward Iran’s case previously here and here.  I was glad to see that the PMD issue was not specifically referenced in either of the new agreements, and I hope that it will be essentially marginalized as an issue in further negotiations towards a comprehensive accord. I think that this will be critical for the success of such negotiations, and that a decision by the West and the IAEA to force the issue could potentially derail the course of what is the best opportunity for a realistic resolution to the dispute over Iran’s nuclear program in a decade.


9 Comments on “Response to Mark Hibbs on Iran Negotiations and the IAEA”

  1. yousaf says:

    I would be interested in the mechanism whereby the P5+1 assigned IAEA duties in Iran. e.g. Did the IAEA a priori grant the P5+1 carte blanche in designating the IAEA whatever duties they saw fit or was there some consultation between the IAEA and P5+1 during the negotiations?

    Or is the IAEA seen by the P5+1 as sufficiently supine to their commands that the P5+1 felt they can assign the IAEA whatever duties they wanted?

    • Don Bacon says:

      The limited role of the IAEA has been expanded by the mainstream media by mistakenly calling the IAEA “UN nuclear watchdog”, and also correspondingly by others, like Dan Joyner, above:

      I think that this will be critical for the success of such negotiations, and that a decision by the West [actually P5+1, or essentially the UNSC, not the West] and the IAEA to force the issue could potentially derail the course of what is the best opportunity for a realistic resolution to the dispute over Iran’s nuclear program in a decade.

      So the IAEA has gone from an NPT preventer of diversion to a participating decision-maker on an important world issue? Then it is essentially a UN nuclear watchdog, isn’t it.

      • Dan Joyner says:

        Don, what I’m saying in that quote is that the IAEA should stay within its limited mandate in the CSA and NOT go outside of it to push the PMD issue. If the IAEA chooses to push an issue it shouldn’t be pushing, it may contribute to a derailing of the resolution of the wider dispute between Iran and the West.

  2. Ajax Lessome says:

    This deal falls short of the verified suspension and dismantling of Iran’s nuclear weapons program. It allows Tehran to retain and continue developing its fissile material production capability and its delivery systems and effectively grant it a pass on its weaponization-related activities. It puts Iran’s leaders in a position to rapidly cross the nuclear threshold at a time of their choosing and it should be recognized for the bad deal that it is.

    • Don Bacon says:

      Rapidly cross the nuclear threshold? How does that work, exactly, going rapidly from LEU gas to a reliable, tested solid deliverable nuclear weapon.

      Converting enriched uranium gas to an unstable mass suitable for a weapon is a complicated, dangerous and difficult process. And then testing is required, taking more time. All of this would require expulsion of the IAEA inspectors and Iran’s abrogation of the NPT, which it has shown no indication of doing.

      So relax.

      • Nick says:

        Albright and the rest of these experts consider SQE uranium at 90% as the only thing that matters. They completely ignore all the additional steps you pointed out: implosion, metalization, miniaturization, and deployment as non-important. I think their problem is that they have very little gut feeling about how much work is involved in modeling and prototyping of any engineering project, in particular something as complicated as reliable and rocket-deliverable as a nuclear bomb. It has taken North Koreans three tries and they still don’t have a reliable weapon.

      • Dan Joyner says:

        Good points Nick and Don.

    • Cyrus says:

      What “Nuclear Weapons Program” are you referring to, exactly?

      • Don Bacon says:

        For propaganda purposes, or because of ignorance, an Iranian nuclear program that includes enrichment is a “nuclear weapons program” even though it fully surveiled.
        (I know you know, but I wanted to be sure you had at least one answer for the record.)

        Now notice I said IRANIAN nuclear program. That’s ONLY Iran. There are other countries that enrich which are NOT automatically assumed to have nuclear weapons programs.

        Argentina, Brazil, Germany, Japan and Netherlands

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