Peter Jenkins on Gareth Porter’s New Book

Peter Jenkins, former UK Ambassador to the IAEA and friend of ACL, has written a fascinating review of Gareth Porter’s newly released book Manufactured Crisis: The Untold Story of the Iran Nuclear Scare over at LobeLog.  Basically, this book is Porter’s narrative of the history of Iran’s nuclear program and the dispute over it between Iran and the West.  Porter, who by all accounts is a well respected, independent journalist of long and productive career, has been working on the subject of this book since 2006.  I have not yet read the book myself, but will be ordering my copy straightaway.  Peter’s review and description make me eager to read what promises to be a very useful independent analysis of the causes of the crisis.

Along with a truly excellent research assistant, I am currently working myself on a narrative history of Iran’s nuclear program and the dispute surrounding it, that will eventually comprise the first chapter of my forthcoming book Iran’s Nuclear Program and International Law.

Is India a non-nuclear weapon state under the Rarotonga Treaty?

Australia is presently in discussions with India to begin exporting uranium for India’s civil nuclear programme. Australia, however, is a party to the 1986 Treaty of Rarotonga establishing a nuclear weapon-free zone (NWFZ) in the South Pacific Ocean, Article 4 of which provides that ‘[e]ach Party undertakes: not to provide source or special fissionable material, or equipment or material especially designed or prepared for the processing, use or production of special fissionable material for peaceful purposes to any non-nuclear-weapon State unless subject to the safeguards required by Article III.l of the NPT, or any nuclear-weapon State unless subject to applicable safeguards agreements with the International Atomic Energy Agency (IAEA)’. Is India, which has not ratified the Treaty on the Non-proliferation of Nuclear Weapons (NPT) and possesses nuclear weapons, a non-nuclear weapon state (NNWS) or a nuclear weapon state (NWS) under Article 4 of the Rarotonga Treaty? If the former is the correct qualification, then Australia may be in breach of the treaty if it exports uranium to India, as India has only accepted limited IAEA safeguards (INFCIRC/66/Rev.2) on certain civilian plants, but not full-scope safeguards (i.e. applicable to all materials and facilities) under the INFCIRC/153(Corrected) model (I will leave the discussion of whether less comprehensive safeguards also meet the requirements of Article III of the NPT for another time).

Article IX(3) of the NPT defines a NWS as a state ‘which has manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967’. Under the NPT, therefore, India is not, and cannot be unless the treaty is amended, a NWS, as it has not manufactured or exploded a nuclear device before 1 January 1967. Unlike the NPT, however, the Rarotonga Treaty does not contain a definition of either NNWS or NWS. To solve the problem, one needs to apply the criteria for the interpretation of treaties provided in Article 31 of the 1969 Vienna Convention on the Law of Treaties (VCLT). If the expression ‘NNWS’ in Article 4 of the Rarotonga Treaty is interpreted according to its ordinary meaning, it should be concluded that India is not a NNWS, as the ordinary meaning of this expression arguably is ‘state that does not possess or control nuclear weapons’, and not ‘state that has not manufactured or exploded a nuclear device before 1 January 1967’. Article 31(3)(c) of the VCLT, however, also provides that treaties should be interpreted taking into account ‘any relevant rules of international law applicable in the relations between the parties’. I would argue that the NPT can be seen as part of the rules ‘applicable in the relations between the parties’ and that, therefore, the definition of NWS (and, consequently, NNWS) contained therein may be extended, in the absence of alternative definitions, to the Rarotonga Treaty. This conclusion is reinforced by the following considerations: 1) Article 4 of the Rarotonga Treaty and Article III(2) of the NPT employ essentially the same language; 2) the Rarotonga Treaty refers in many instances to the NPT: the Preamble, for instance, reaffirms its importance and Article 4 itself requires the states parties ‘to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system’; and 3) NWFZs are usually seen as regional means to support the global nuclear non-proliferation regimes, not as alternatives to it (see Article VII of the NPT). An additional argument in favour of interpreting ‘NNWS’ in the Rarotonga Treaty consistently with the NPT could be that the definition of NWS contained in the NPT has become customary, and as such – again, lacking alternative definitions in the treaty in question – it also applies to the Rarotonga Treaty.

Could Article 4 of the Rarotonga Treaty be interpreted as referring only to NNWS ‘parties to the NPT’? The United States has made this argument in relation to Article III(2) of the NPT in order to justify its export of nuclear technologies and materials to India under the Global Partnership between the two countries. There is nothing in the letter of either provision, however, that supports this interpretation. What is more, this interpretation is in contrast with the object and purpose of the NPT: assuming that the NPT is based on the renunciation by the NNWS to certain uses of nuclear energy (the military ones) in return for assistance by the NWS in the peaceful uses of this type of energy, an interpretation of Article III that allows a state (India) to benefit from that assistance without also accepting to renounce to the military uses of nuclear energy seems in contradiction with the ‘grand bargain’ on which the NPT is founded. The same considerations can be extended to Article 4 of the Rarotonga Treaty, which, as already noted, expressly requires the states parties ‘to support the continued effectiveness of the international non-proliferation system based on the NPT and the IAEA safeguards system’.

As always, I would welcome your thoughts.

New DOD Panel Report Thinks it’s Calling for Negotiation of a New NPT

I debated whether or not to even mention this, but it has gotten some attention so I thought I’d address it, at least briefly.

Recently the Defense Science Board, an advisory committee to the US Department of Defense, released a report entitled “Assessment of Nuclear Monitoring and Verification Technologies.”  What has people talking is one of the recommendations by the DSB in this report, as a part of its “4-phase approach for expanded cooperation.” The recommendation is for the:

Negotiation of a future Non‐Proliferation Treaty (NPT “X”) to bring in all nuclear weapon and material programs into a cooperative, multi‐lateral regime.

Some people see this recommendation as momentous, in that it is a rare, if not unprecedented, occasion of a highly regarded advisory committee to the US government, recognizing a need for re-negotiation of the NPT.

Having heard some of those thoughts from people, I was eager to read what the report had to say about this new NPT – oh, sorry, “NPT X” (they’re right, that is much cooler). I’ve now read it. And as we say in the South, I can’t make head nor tails of it.

It turns out the only text in the report that specifically relates to this recommendation is the following few paragraphs:

Phase 4. The Evolution from Bi‐lateral to Multilateral Implementation and a Prospective Non-Proliferation Treaty (NPT‐x)

Several studies have concluded that it is premature to pursue negotiation of a follow‐on Non-Proliferation Treaty that would impose transparency on States possessing nuclear weapons and NNWS equally and add nuclear weapons disarmament transparency to the treaty. Completion of the three phases presented above, however, could set the stage for overcoming the current difficulties and be the basis for the trust and understanding needed to carry out both the periodic/continual monitoring of nuclear weapons worldwide, and the periodic/continual monitoring of SNM quantities of potential nuclear weapons materials worldwide.

The signatories of nuclear arms control or arms reductions agreements, joined by all of the nuclear weapons ‐ possessing nations, would collectively and mutually negotiate the procedures, frequencies, prohibitions, etc. for carrying out materials and weapons transparency measures/inspections protecting against the spread of nuclear weapons expertise to NNWS. The ideal outcome would be agreement that the results of these inspections would be delivered to the IAEA as part of its routine monitoring and shared with all nations worldwide.

The Task Force believes that progress through Phase 4 will have a positive effect on worldwide arms stability as well as strengthen non‐proliferation efforts. With everyone having a stake in the transparency processes coming into existence and successfully working, it might then be possible to require mandatory compliance for any holdout nations. The culmination of all of these efforts would be the achievement of a Cooperative Universal Transparency regime that would operate to ensure monitoring and verification of all nuclear weapons as well as inventories of SNM—over the whole world.

You know that old song about seeing the world through rose-colored glasses? Well, this DSB report would appear to see the world through transparency colored glasses – which I know is a bit oxymoronic – but then so is the idea of negotiating a replacement NPT just to achieve nuclear weapons stockpile transparency benefits. It’s like the authors don’t really know what’s in the current NPT, and have no appreciation of the incredible complexity of the notion of negotiating a replacement treaty balancing the peaceful and military uses of nuclear energy. To them it’s all about increasing nuclear weapons stockpile transparency – which isn’t even in the current NPT!

To paraphrase Inigo Montoya from The Princess Bride, “They keep using that word. I do not think it means what they think it means.”

That’s why I said in the title of this post that the DSB thinks that they are proposing in this report the negotiation of a new NPT. But in reality, what they are proposing has nothing to do with the NPT, either current or future.

This recommendation in the report, and the accompanying text, are truly bizarre. I honestly can’t understand why they linked what they are talking about – nuclear weapons stockpile transparency – to the NPT. If anyone can explain better than the committee did what they are trying to say, and how it is relevant to the NPT, by all means please chime in in the comments.

Reforming UN Security Council Nuclear Sanctions Practice

I’m pleased to be able to host another excellent guest post by friend of ACL Dr. Yousaf Butt. Yousaf makes excellent points in this piece, as usual, and I recommend it highly.

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Reforming UN Security Council Nuclear Sanctions Practice

By: Dr. Yousaf Butt*

Technically, Iran was not sanctioned by the UN Security Council because of past violations of its IAEA nuclear safeguards agreement, but because the UNSC chose to  interpret these violations as a “threat to the peace”. However, Pakistan, India and Israel have far exceeded Iran’s nuclear threshold capability, and built actual nuclear weapons. They are — by any objective standard — far greater nuclear threats than Iran.

The UNSC would never have bothered with Iran if  the “trigger” of the nuclear safeguards violations hadn’t raised the issue to the level of the UNSC. However, the only reason such triggers have not gone off for India, Pakistan and Israel is that, since they are outside the framework of the NPT, their IAEA safeguards agreements are watered-down and similarly strict triggers simply don’t exist. (The UNSC sanctions are applied under Chapter VII of the UN Charter, Article 39, in which the Security Council can determine a “threat to the peace, breach of the peace, or act of aggression and may recommend, or decide what measures to take…to maintain or restore international peace and security.”)

But just because there is no similarly stringent safeguards’ trigger to refer the cases of India, Pakistan and Israel to the UNSC does not mean the UNSC should be willfully blind about the threats they pose. The UNSC can sanction these nations on its own initiative. This minor bureaucratic detail — that an IAEA referral currently seems to be needed before a nuclear threat is even considered by the UNSC — results in a major flaw: NPT member states are punished more severely than non-NPT states, even if the latter nations make nuclear weapons and proliferate willy-nilly.

Moreover, the actions of some of the P5+1 nations negotiating with Iran, namely China and the US, go against the spirit and intentions of the NPT and could also be construed as a threat to peace. (Of course, there is no prospect of any P5 country ever being sanctioned for a threat to peace due to their veto powers.) But both the US and China are helping nuclear-armed NPT non-signatory states India and Pakistan, respectively, with their civilian nuclear programs. (And before it signed the NPT in 1992, France helped Israel with its nuclear program.) But the ‘firewall’ between civilian and military nuclear sectors in Pakistan, India and Israel is somewhere between porous to non-existent. So, essentially, the US and China are also helping the military nuclear sectors in these non-NPT states.

And, at the least, civilian nuclear assistance frees up nuclear resources – scientists and materiel, much of which are dual-use – which can be applied to the military nuclear programs in these non-NPT nations. Nuclear technology and assistance is largely dual-use and fungible. Thus the nuclear assistance given by China and the US to Pakistan and India can legitimately be seen as a violation of the NPT.

As Prof. Daniel Joyner points out in his book, “Interpreting the NPT”: “Many NPT Non-Nuclear Weapon States see this granting of nuclear technology concessions to India by an NPT Nuclear Weapon State as a positive reward for India’s decision to remain outside the NPT framework, and develop and maintain a nuclear weapons arsenal, which is the precise opposite to the incentive structure which the NPT sought to codify into international law.”

Under no circumstances should nations who have signed the NPT – whether or not they are currently seen to be in good standing – be sanctioned and treated more severely than those that haven’t signed on to the NPT and actually have developed nuclear weapons. Such heavy-handedness with signatory nations will undercut the desire of many nations to sign on to new arms control initiatives, like the Comprehensive Test Ban Treaty.

If the NPT is invoked to try to limit nuclear capabilities in signatory states like Iran via sanctions then even more toughness with the nuclear-armed NPT non-signatories is first needed. Conversely, so long as nuclear-armed Pakistan, India and Israel remain unsanctioned so should NPT signatories like Iran which only have an advanced — but thus far non-military — nuclear infrastructure.

This major flaw can be fixed if the UNSC instead shows initiative, behaves apolitically, and does not wait around for a bureaucratic referral from the IAEA  in order to rouse itself and open its eyes to blatantly obvious nuclear threats.

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*Dr. Yousaf Butt, a nuclear physicist, is director of the Emerging Technologies Program at the Cultural Intelligence Institute, a non-profit organization dedicated to promoting fact-based cultural awareness among individuals, institutions, and governments. The views expressed here are his own.

Leaving the PMD Issue Behind

When I first wrote about the new Joint Plan of Action between Iran and the P5+1 here, I noted how remarkable it was that in the text of that agreement, as well as in the text of Iran’s recent agreement with the IAEA, the issue of past possible military dimenstions (PMD) to Iran’s nuclear program was not mentioned.  As I said in an earlier piece on the agreement with the IAEA, I was pleased to see that in both documents, neither the PMD issue generally, nor the Parchin facility specifically, were mentioned.  It would appear from these two recently negotiated statements that Western powers and the IAEA have made the prudent decision not to focus on these issues during negotiations aimed at resolving the dispute over Iran’s nuclear program, thereby avoiding the dynamic which seems to have been present so much in recent years of the tail of PMD issues, wagging the dog of a broader agreement on Iran’s nuclear program going forward.  I’ve written about the PMD issues and Parchin previously including here.  I continue to hope that in further negotiations these red herring issues will be similarly marginalized.

I was pleased, therefore, to see today a new Reuters piece by Fredrik Dahl, including quotes from a number of people that strengthen my optimism that this might actually be what is happening. Quoting from the piece:

However, some experts suggest that the powers may be more concerned with obtaining an agreement to limit future Iranian nuclear enrichment than with helping the IAEA get to the bottom of research and tests Iran may have carried out in the past.

Mark Hibbs, of the Carnegie Endowment think-tank, said it was possible that they, in the interest of quickly concluding a final deal, “might strongly urge the IAEA to accept what it would consider less than satisfactory demonstration by Iran” in response to suspicions about its past activity.

Jofi Joseph, until October a director for non-proliferation on the White House National Security Council staff, said the powers may be tempted to set past PMD issues aside and focus on limits to Iran’s future nuclear bomb breakout capability.

“There may be an implicit preference by the P5+1 to sweep the weaponisation issue under the rug,” he wrote in a commentary last week for Harvard University’s Belfer Center for Science and International Affairs.

“It is always difficult to prove a negative and, even if Iran significantly expanded access to IAEA inspectors … doubts likely would persist that Iran was still hiding something.”

In Iraq after the 1991 war, the IAEA acted under the authority of a U.N. Security Council resolution giving inspectors carte blanche “anytime, anywhere” authority, former IAEA Director General Mohamed ElBaradei said.

“From an inspector’s perspective, this sounded idyllic,” he wrote in his 2011 book the Age of Deception. “But it worked only because Iraq was a freshly defeated country … No other country would have accepted such conditions.”

The Iran Implementing Agreement a Secret Treaty?

I wanted to draw attention to Orde Kittrie’s suggestion over at Opinio Juris that the newly announced implementing agreement for the November Joint Plan of Action is a “secret treaty.”

I responded in the comments to the piece as follows:

I certainly dont have any inside information about the new implementation agreement, but my impression has been that the negotiations since the November agreement have been to hash out quite technical details concerning the original agreement. It doesnt make much sense to me that the original agreement would have been informal, but the technical implementing agreement would not be some secret formal agreement. If I were a betting man I’d put money on this new implementing agreement also being informal. And the reason it hasnt been released is likely due to the technical sensitivity of the details that have been worked out between the parties. People like Kittrie who are opposed to the deal, may be simply trying to sow seeds of suspicion, and thereby mobilize opposition to it.

Readers may remember Kittrie as one of the co-authors (along with David Albright and Sandy Spector) of a rather infamous report last year on how to address proliferation problems in the ME. I wrote about it at the time, and included links to critics’ comments, here.

Penn State Journal of Law & International Affairs

I’ve been meaning to draw readers’ attention to the current issue of the Penn State Journal of Law & International Affairs, which includes the papers written by those of us who presented at the excellent symposium on Iran’s nuclear program held at Penn State Law School last February. I blogged about it at the time here.

You can see the symposium issue of the journal, with links to full text copies of the papers here (just scroll down the page a bit and you’ll see it).

Authors include Flynt and Hillary Leverett, Richard Butler, James Houck, Mary Ellen O’Connell, and myself.

Don’t Get Suckered by Policy Wonks

Sorry for the radio silence lately. The holidays, including a nasty stomach virus and a car accident (no one hurt, fortunately) got in the way.  And now I’m freezing my neutrons off in Ottawa, Canada where I’m teaching a short course for a couple of weeks. Very nice people and a good international law faculty here, though.

I just saw this piece at Foreign Affairs by Mitchell Reiss and Ray Takeyh, entitled “Don’t Get Suckered by Iran: Fix the Problems with the Interim Accord.” I won’t bother to go through their analysis and recommendations point by point.  I basically disagree with them on everything.

I thought I would, though, draw attention to the misunderstanding of international law demonstrated by this piece – illustrative of the misunderstandings of law so often present in the writings of arms control policy wonks.

At one point the authors say:

Any verification agreement should include the so-called additional protocol, which gives international inspectors the right to examine any facility they deem suspect, and to do so on short notice, so that proscribed activities or equipment cannot be moved or hidden.

That’s not a simplified version of what the AP provides for, it’s just plain incorrect.

Under the AP, IAEA inspectors absolutely cannot just examine any facility they “deem suspect.”  They can visit any facility on a declared site, but for non-declared sites they can only visit for the purpose of limited environmental sampling.

The AP doesn’t automatically give the IAEA access to the entirety of an NNWS party’s territory and all facilities thereon. It really only expands IAEA inspectors’ ability to verify the non-diversion of fissile material from peaceful uses to military uses through an expanded declaration by the safeguarded state, and through shortened notice windows. Required notice under the AP is typically 24 hours, down from the one week notice window under the INFCIRC/153 CSR.

And it should also be noted that the AP does not in any way expand the IAEA’s inspection or assessment mandate with regard to possible military dimensions of a safeguarded state’s nuclear program.  PMD issues are just as far outside the mandate of the IAEA with regard to a state with an AP, as they are with regard to a state with just a CSA.

Now, I do think that Iran will need to (and I think is perfectly willing to) accept the AP as part of a final deal on its nuclear program. But no one should be under any misapprehension of the AP as some panacea to the limits of IAEA authority to verify Iran’s compliance with its safeguards obligations.