Missed Opportunity in Vienna

I’m pretty bummed today that the latest round of talks between the P5+1 and Iran in Vienna has ended in a decision to extend the JPOA for another six months. I fail to see what will be different in six months that will make a deal more doable then than now. As others have observed, at this point there are no real technical issues. It’s all about political will. I was one among those who were hoping that the two sides would exert leadership and make the tough choices necessary to obtain a deal.

I know that both sides’ positions are complicated, perhaps made practically irreconcilable, by domestic politics in their respective capitals. If that’s the case, then I don’t know why we should be optimistic that those dynamics will change significantly over the next six months. Far more likely, I would think, is that more stumbling blocks will arise over that time, either in the form of domestic politics or unpredictable world events.

If there is no deal, I really don’t know what will happen long term. I don’t expect war, to be honest. I think more likely is the continuation of sanctions on Iran by the West, which will help nothing and no one, with more and more instances of economic dealmaking between Iran and Russia, China, and others who will increasingly see the sanctions programs by the West as unsupportable.

The Revolving Door Between the USG and Wonkdom Turns Yet Again

A few weeks ago I did a post noting William Burns’ move from the State Dept to the Carnegie Endowment, and I quoted an even earlier post arguing that there is systemic pro-government bias in the US nonproliferation think tank world.

Well, now the revolving door is swinging around the other way to carry Jon Wolfsthall of CNS from think-tankdom back into government; in his case to be Senior Director for Arms Control and Nonproliferation at the National Security Council.  See the announcement here.

What’s the point of my bringing attention to this revolving door between the USG and arms control think tanks? The point is to show how close the connections are between the two, so readers can see that they should not view the work of these think tanks as objective, or independent. They are all, to one degree or another, dependent on the USG for patronage, favor, and access and it is incredulous to think that this dynamic does not influence their work – from the subjects that they choose to work on, to their actual analysis.

So the next time you see a piece written by someone at Carnegie, or CNS, or IISS, or ISIS, bear this in mind.

Sandy Spector on a “Return or Destroy” Requirement for the Iran/P5+1 Deal

I was just reading a new piece by Sandy Spector over at Eurasia Review. He’s arguing in this piece that, as part of the Iran/P5+1 nuclear deal, there should be an agreed requirement for Iran to either return or destroy items that were procured by Iran and used in its nuclear program, the procurement of which violated either national export control laws of other countries, or relevant UN Security Council Resolutions.

I think the article overall fits nicely in the “let’s try to obstruct a nuclear deal by throwing in all the historical baggage” file. That file also contains all the PMD allegations.

Sandy is certainly right that the sale to Iran of some items currently in use in Iran’s nuclear program was in violation of various countries’ export control laws, and arguably in violation of UNSC Resolutions, including Resolution 1737. It’s less clear to me that in any of these instances it was Iran that violated the applicable law, as opposed to whoever the seller was whose activity was actually subject to the law.

In the case of the domestic export control laws of states, including the US, it’s typically the exporter/seller, who is a national of the state imposing the law, who is subject to its application, and who violates the law by engaging in the prohibited transaction. Generally speaking, national export control laws do not and cannot make illegal the actions of another sovereign state.  And even if they were to, there is no principle of international law that would require the target sovereign state to comply with such an extra-territorial law of the imposing state. So I don’t see how Iran’s procurement of items, the sale of which to Iran was unlawful for exporters under foreign national laws, was a meaningfully unlawful act by Iran.

As for UNSC resolutions including 1737, in a similar vein, the operative obligations were imposed on states prohibiting their export to Iran of covered items. So to the extent that violations occurred, it would be the exporting states that were in violation of their obligations. It’s not clear to me that there was in these resolutions any obligation applicable to Iran itself, and obligating it to not procure these items.

I know you could say that, particularly on this last point, I’m splitting hairs a bit. But I also think that the spirit of the matter argues against taking the view that Sandy does in this piece.

Iran’s file should never have been transferred to the UNSC from the IAEA in the first place. And as I’ve argued elsewhere, the UNSC overstepped its own authority in subsequently imposing requirements on Iran relating to its civilian nuclear energy program.

Even if there had been some justification in 2006 for the requirements imposed by Resolution 1737 et al., those requirements should have been withdrawn after IAEA DG ElBaradei’s February 22, 2008 report to the IAEA Board of Governors (GOV/2008/4), in which he determined that all declared fissile material in Iran was in peaceful use, and that all prior concerns the IAEA had registered involving fissile materials and related facilities in Iran had been resolved through dialogue with Iranian authorities.

The UNSC resolutions on Iran have from the beginning been politically motivated and without merit. They should not now be accorded the dignity that Sandy wants to bestow on them, by making sure that every jot and tittle of the resolutions are honored by Iran, even after a comprehensive political solution is reached between Iran and the P5+1.

The Case of the “Missing” 19.8 kg of Iranian Uranium

I’m very pleased to host another guest post by friend of ACL, Dr. Yousaf Butt.  This blog is devoted to discussions about international law related to arms control. However, as any lawyer knows, an understanding of key facts is essential to proper legal analysis. This is where Yousaf comes in. He is a highly qualified nuclear physicist, and frequently helps us by bringing his technical and scientific expertise to bear in order to clarify important technical issues that are relevant to legal analysis. In this post, Yousaf explains recent allegations of unaccounted-for fissile material in Iran, which is of course a question that has direct bearing on safeguards law analysis.

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The Case of the “Missing” 19.8 kg of Iranian Uranium

Dr. Yousaf Butt is senior scientific advisor to the British American Security Information Council (BASIC) in London, on leave from the Cultural Intelligence Institute. The views expressed are his own.

Recently, I wrote for the National Interest on why the IAEA might be making so many mistakes on Iran’s nuclear file,especially regarding the Possible Military Dimensions (PMD) dossier. I argued that the IAEA does not have much expertise in nuclear weaponry but that they seem to be good at their mandated job of nuclear materials accountancy. I may have been too generous.

The day before my piece came out the IAEA admitted making an accounting mistake of 100kg in Iran’s Low Enriched Uranium gas stock, and also a mis-counting error of 19 instead of 9 IR-6 centrifuges. But let’s not dwell on those errors – who hasn’t miscounted a few centrifuges from time-to-time?

Here I’d like to offer another case study from the PMD file. You will recall most of the PMD issues were already addressed here: from EBWs, to Parchin, to the AP graphs/calculations to ring magnets etc. – even the fleeting concerns with Po-210 was dealt with before also. None have stuck.

But there is yet another PMD issue I overlooked to address. Maybe this is the one that proves Iran is guilty, after all?

In the November 2011 IAEA report on Iran, one reads:

In August 2011, the Agency carried out a PIV [Physical Inventory Verification] at the Jabr Ibn Hayan Multipurpose Research Laboratory (JHL) to verify, inter alia, nuclear material, in the form of natural uranium metal and process waste, related to the conversion experiments carried out by Iran between 1995 and 2002. The Agency’s measurement of this material was 19.8 kg less than the operator’s declaration of 270.7 kg.

Footnote 40 on that page says: “This material had been under Agency seal since 2003.”

That in itself ought to have given the IAEA, government officials and the press some pause: if the material is under seal and the IAEA does not mention tampering then what is the problem? Would it not have been prudent to make clear that the drums had been sealed for about 7 years and what was in them obviously had not gone anywhere?

Never mind – pausing to think seems to have been too much to ask. Fredrik Dahl at Reuters repeatedly reported on this issue. For example in 2011, following the report:

“ [U.S. Ambassador Glyn] Davies also singled out a finding in last week’s IAEA report of a “discrepancy” of nearly 20 kg (44 lb) of nuclear material at a site in Tehran, the Jabr Ibn Hayan Multipurpose Research Laboratory. The report said U.N. inspectors carrying out an inventory check of natural uranium metal and process waste at the facility measured 19.8 kg less than the operator’s declaration.The IAEA said it was working with Iran to resolve the issue and Iran’s envoy to the IAEA, Ali Asghar Soltanieh, last week dismissed it as “absolutely not an issue.”

Davies said the issue required “immediate” resolution, citing information indicating that “kilogram quantities” of natural uranium metal had been available to Iran’s military program. “It remains to be seen whether this discrepancy could ultimately represent another piece in the puzzle the IAEA is assembling to show Iran’s nuclear weapons-related activities,” Davies said.

That certainly sounds like a concern.

According to Dahl, the issue was still unresolved by early 2012.

In mid-2012, U.S. Envoy Robert Wood made a statement on the Implementation of NPT on Iran:

In addition to our concerns with the Fordow facility, the Director General reports on other areas that require Iran’s immediate attention and clarification. For example, we note that the Agency has previously requested additional information in relation to a discrepancy of 19.8 kilograms of natural uranium metal in Iran; we are disappointed that Iran has not provided this information, particularly in light of our concerns regarding the possible military dimensions of Iran’s nuclear program. We call on Iran to fully cooperate with the Agency in resolving this discrepancy.

But, by August 16 2012, the IAEA said that less was “missing” than they thought:

The United Nations’ atomic watchdog may decide that less uranium is missing at an Iranian research site than it had previously thought…..a European diplomat told Reuters it now seemed to have become less of an issue….The uranium discrepancy was likely to be “buried more than it is at the moment”, another diplomat said.

Interestingly, when a discrepancy is found it is leaked and announced publicly and repeatedly that it could be part of a nefarious military program – with Western diplomats chiming in – but when it is resolved the issue is “buried”.

This alleged “discrepancy” of 19.8 kg of natural uranium was first reported in November 2011 report. In each successive quarterly report the urgency subsides. However, the issue is never resolved for the public. It simply disappears. a.k.a. “Buried.”

Why not offer a public explanation instead of a burial? Since the IAEA has not, I will.

The discrepancy concerned an old estimated value of natural uranium contained in process waste which is a notoriously hard quantity to measure. When the waste was sealed both Iran and the IAEA agreed upon this estimate of natural U. Upon reopening the material in 2011 there was a new estimate that was different from the old estimate. It is very hard to count natural U in waste where you have very little idea what is in a sealed drum. There can be all sorts of unknown materials (like metals and plastics and other junk) that have unknown shielding properties hiding unknown quantities and qualities of fissile isotopes. But since the waste was under seal no material was ever missing.

However, the IAEA made a big deal out of their own discrepancy stopping short of accusing theft. As shown above, the US mission also made a major production of it along with the press. One could be forgiven for thinking that there are no technical advisors at the US mission.

In any case, when the discussions between the IAEA and Iran were finally undertaken the issue was clarified and both evidently agreed that the little bit of natural uranium in the process waste was accounted for. But by that time the presumed propaganda effect had run its course for many months.

This issue ought never have surfaced. As a point of order, a significant quantity (SQ) of natural uranium is 10 tons (10,000kg) of natural U.

So the IAEA made an issue of 20kg of (extremely difficult to estimate) natural U in process waste when a SQ of natural U is 10,000kg! The discrepancy was 0.2% of a SQ of natural U. 

The IAEA has never bothered to publicly acknowledge their error and mischaracterization of the non-missing “missing” 0.2% of SQ of natural U. And US diplomats proceeded to throw gasoline on this small ember provided by the IAEA. Reporters swallowed the apparent officially-sanctioned propaganda and went so far as to suggest that the non-missing natural U could have made it to Parchin! Other reporters suggested that the material could be used in warheads as-is.

Bottom lines:

1. No nuclear material was ever missing: the material was under seal.

2. The IAEA was irresponsible and unprofessionalin making an issue out of their own differing estimatesof extremelyhard to measure natural U in process waste which amounted to about 0.2% SQ. It should have been resolved with Iranian technicians without mention in a report which the IAEA knows would have been leaked to the press.

3. Reopening this issue in 2011 at the same time and place as the weaponization (PMD) annex in the November 2011 report appears to have been intentional and political.

4. The IAEA and US diplomats should have the professional integrity to publicly explain the resolution of the issue.

5. There was gross incompetence in interpretation by the press. This could perhaps have been avoided by reaching out toexperts (outside the one or two who have been historically biased, and are associated with highly political organizations such as United Against a Nuclear Iranor the Foundation for the Defense of Democracies).

So we can add this hyped-up PMD non-issue on the heap of others addressed already.

This sad episode – still officially unresolved by the IAEA – speaks to IAEA’s unprofessionalism, unfairness, over-reach and politicized drift. Lesson-learned: be very wary of what you hear from the IAEA, Western diplomats and any press sources that simply regurgitate their views without sound critical technical analysis. Another lesson-learned: Iranian officials may sometimes be correct when they say certain PMD issues are trumped-up or forged.

Curveballs and Sliders

Sorry for the light blogging lately. I’m teaching a lot this semester. The upside is that I won’t be teaching at all next semester, which will (hopefully) allow me to get my new Iran book done by the end of the Summer.

But I just can’t resist drawing attention to this great new piece over at Atomic Reporters, featuring the exploits of a couple of my most favorite people. The post is entitled “Curveballs, Sliders & the Little Pitches that Start Big Wars.” It’s both entertaining and insightful.

On a more serious note, there’s also a very good new post over at Opinio Juris by Roger Alford, on the approach to treaty interpretation taken by the US Supreme Court in the Recent Bond case, concerning the Chemical Weapons Convention.

Also, Yousaf Butt has a very good new piece over at the National Interest on why the IAEA is getting Iran wrong.

BTW for those of you on Twitter, if you want you can follow me at @DanJoyner1 for similar recommendations and pithy observations.