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.