Paul Pillar: Iran’s Nuclear Legal Obligations

A very good piece by Paul Pillar out yesterday in The National Interest.  I’m pleased to see that he shares a number of the same views I’ve expressed, on some of the same topics I’ve covered recently, in my posts. I’ll go ahead and copy the whole thing here.

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Myanmar Has a Clandestine Nuclear Weapons Program. And Nobody Cares.

This just came to my attention today. Read this story at Pro Publica, about some very important and alarming work that friend of ACL, and real life former weapons inspector Robert Kelley, has done on what he has concluded is a clandestine nuclear weapons program in Myanmar. Now, I am not in any way a technical guy. But I’ve gotten to know Bob, and he’s both the most qualified person to evaluate a nuclear weapons program, and the most independent, objective, and reserved technical person, that I know. So hearing Bob say this about Myanmar:

“I state this very clearly and strongly, this is a clandestine nuclear program”

makes me say, it’s time to listen up, people.  

I’m also confident that people like David Albright and Olli Heinonen, who have been so very concerned about possible nuclear weapons related activity in Iran, will be all over this situation too. After all, there is clearly enough evidence to convince Bob Kelley, and there are strong links to North Korea and therefore to regional proliferation implications. So on this case, the technical people can actually agree, and the international community can focus on effectively dealing with the problem, right?

Wrong.

Read what Heinonen and Albright have to say about Kelley’s conclusions in the Pro Publica piece.  When I read them, I was genuinely incredulous. Reading their critique of Bob’s analysis was just like reading someone else’s critique, word for word, about their analysis of Iran!  Listen to this: 

Other experts, including Olli Heinonen, the former deputy director of the IAEA, viewed the evidence as inconclusive. They said the equipment in the photos had other possible uses and that such serious charges should not rest on the testimony of a single defector . . .

“There is no smoking gun,” Heinonen said in an interview. “There is no one single piece which puts your mind at rest telling that this is solely for nuclear purposes and for nothing else.” . . .

Heinonen questioned this conclusion, saying both the glove box and bomb reactor could have other uses. He noted that the box appeared too small to easily accommodate the mixer typically used to combine magnesium and UF4. There were ways to overcome this deficiency, but they would be “cumbersome,” he said, suggesting that perhaps the box was made for another purpose.

“These pieces of equipment,” he said in an e-mail, “cannot be said with a high certainty to be for uranium metal production.” . . .

Albright said in an interview that he did not agree with Kelley’s findings. A close reading of the report, he said, suggests that Kelley assumed that Burma is attempting to make nuclear weapons and then looked at Win’s pictures “in a biased way ascribing nuclear purposes to them.” Albright said he believed each piece of equipment in the photos had alternate uses, some of which were non-nuclear. He noted that Win had no background in nuclear science or engineering.

“We learn the hard way,” said Albright. “This is what the whole thing was about with Iraqi WMD.”

“If you’re going to make accusations that a country has nuclear weapons program, you have to have credible evidence that that is true,” he said.

I swear these quotes literally make me laugh out loud. I’m not going to get into the technical aspects of the Myanmar case, or a comparison with the technical issues involved with the Iran case. I’ll let others do that. What I’m talking about is the overall attitude and approach of Heinonen and Albright in the Myanmar case, compared to the Iran case.  These are guys who think that every time there’s a wing added on to a building in Iran, it means there absolutely must be some nefarious new attempt to build a nuclear weapon going on in there. But in Myanmar’s case, their approach is: “Well, you know, all of this stuff could have other uses. We really can’t be sure. There’s no smoking gun here. It would be wrong of us to speculate. You need real, clear evidence to make such a very serious accusation. I’m sure everything’s fine.”

Albright even went so far as to write a letter to Senator Jim Webb, assuring him that there was “nothing to see here” in Myanmar, and saying Bob’s analysis is faulty. Read the letter here.   

There’s a Janus-like, two-facedness here that is just astounding to me, i.e. taking one approach to the Iran situation (incredibly hawkish), and then taking a completely different approach to the Myanmar situation (incredibly dovish), for no apparent reason. And an incredible complete lack of self-awareness of this fact as well.

So what’s the takeaway here? First, Bob’s assessment of Myanmar’s clandestine nuclear weapons program is serious business that deserves attention. I don’t know what should be done about it, but so far I’ve heard ear-splitting silence about it from the U.S. and E.U. and the U.N. Security Council.  That’s hard to reconcile in light of all the attention being paid to Iran.

Second, what explains Heinonen’s and Albright’s schizophrenia here? I am genuinely puzzled. Is it because Myanmar is not on the USG’s list of “places we want to demonize,” and Albright and Heinonen are dutifully following the prime directive (i.e. always follow Uncle Sam’s lead)? Or is it something else? Thoughts welcome.  

Israel’s Response to Proposed IAEA Agenda Item on “Israeli Nuclear Capabilities”

Israel 2013 response to IAEA agenda item on Israel

A colleague sent me this document today. It makes for a blood-pressure-raising read. I think I’ll just refer to what said in this post a while ago:

If I put myself in the shoes of Israeli officials, I totally understand why Israel wants to have nuclear weapons, doesnt want to sign the NPT, and wants to keep the whole thing “in the basement.” If I were an Israeli official, with the history of the Holocaust as my personal and national context, I would do the exact same thing. But here’s where I think Israel’s policies in the nuclear area start to get indefensible – when they criticize other countries for wanting their own nuclear weapons, or for even doing research to build up their capability to one day acquire nuclear weapons if they decide they need them. This is just basic hypocrisy, and the absence of any principled leg to stand on. It doesn’t have anything to do with history, or with Israel’s unique perspective on the world. And I really don’t like it when people say, well, Israel isnt under a legal obligation not to have nuclear weapons, whereas these other countries are. Israel’s failure to sign the NPT, and the West’s willful blindness toward this fact, are not a diplomatic asset that Israel and the West can play as a card to justify the double standard. In this regard, Israel is part of a rather ignominious club of regime outlier states – rogue states if you will – that also includes India, Pakistan and North Korea. Its not a moral high ground fact.

New ISIS/Albright Report on Lashkar Ab’ad

David Albright has just released yet another report, this time focusing on a facility at Lashkar Ab’ad in Iran.  The basic gist of the report is, this is a facility where Iran conducted undeclared laser enrichment activities before 2003, when it was halted under IAEA verification. Now, 10 years later, there has been construction at the site. Therefore, Iran must be reconstituting its undeclared laser enrichment activities there, and the IAEA needs to go in and investigate.

Do you get Albright’s M.O. yet?  Its exactly the same one present in his reports on the Parchin facility. See Yousaf’s great piece on that here.  It seems that every time Iran undertakes construction on any facility that has ever even been alleged to have a connection to nuclear activity, Albright is convinced that this is evidence of clandestine, nefarious ongoing nuclear work there, or an equally nefarious cover up operation. As if laser enrichment, a common uranium enrichment technology, could possibly be described that way in any event.

So once David’s satellite photos show landscaping, he’s off to the races with another breathless report on how important this turn of events is, and how its now a “priority”
for the IAEA to be allowed to visit the site to make sure there’s no nuclear work going on there.

Just how much this approach is a travesty of the IAEA’s safeguards system, I hope readers of this blog have come to understand from previous posts.  I mean just think about it. What country would ever agree to a safeguards system, whereunder whenever they do construction on either civilian or military facilities, they have to let the IAEA come in and monitor the construction and make sure there isn’t anything that could possibly be used in a nuclear energy program? That’s not reflective of the spirit of the IAEA safeguards system, or it’s letter. I stand by what I’ve said before about Albright, and the apparent hand-in-glove nature of ISIS’ relationship to the U.S. Government and its foreign policy agenda on Iran.

I think it’s also important to bear in mind that, in terms of the letter of Iran’s safeguards agreement, it isn’t necessary to declare design information or activity at facilities at which no fissile material is present. The IAEA under the CSA is a fissile material accounting agency. They do not have a mandate to find out about activity that could in the future be connected to fissile material, but is not at the moment connected to it through the presence of fissile material at the same facility. So as long as there isn’t any fissile material at the Lashkar Ab’ad site, Iran is under no obligation to declare to the IAEA what it’s doing there.  IT’S NONE OF THE IAEA’s OR ALBRIGHT’s BUSINESS. And until Albright can conjure up some evidence with his satellites that there has actually been diversion of fissile material from peaceful applications to military applications in Iran, he should spare us all his fear-mongering, pseudo-scientific rhetoric.  

New Journal Announcement

Hart publishing is announcing the creation of a new, peer-reviewed law journal, the Journal on the Use of Force and International Law.  The journal’s EIC’s are James Green, Christian Hendersen, and Tom Ruys.  I’ve known James for a long time, and consider him to be one of the leading scholars on the jus ad bellum.  He and Christian and Tom have gotten alot of the best scholars writing in this area together to support this new peer-reviewed journal, which I think is a great addition to the quality publication outlets in international security law. Here’s the link to the journal’s homepage, where you can see the advisory board and editorial board (including myself), as well as the call for submissions. I encourage those of us who write in the jus ad bellum area to consider submitting papers to this new journal.

Iran’s Response to the IAEA’s Most Recent Report

A colleague sent me this today. It’s Iran’s formal response to the IAEA DG’s May 22 report on Iran’s safeguards implementation.  I highly recommend that you read it.  Its a very thorough response, covering all of the issues raised in the IAEA report, and making detailed and substantive factual and legal arguments. The point of most of my writing about Iran’s nuclear program is just to say that their legal arguments about the IAEA and the NPT should be taken seriously, because many of them are correct. This is a good source to see those legal arguments as made by Iranian officials themselves.  I’ll excerpt only the “General Observations” section here, but you really have to read the whole thing – including particularly page 16, where the document says the IAEA is being “more Catholic than the Pope.” LOVE that. Note also the specific calling out of David Albright and ISIS, and the “unprofessional” disclosure of confidential materials to him by IAEA officials.

A.  General Observations

 

1-         The report is not balanced and factual since it has not duly reflected the cooperation,  letters and explanations  of the Islamic Republic of Iran to the questions of/or communication  made with the Agency. For more elaboration of this assessment, three letters addressed to the DG are attached.

 

2-          Paragraph    27   of   the    Safeguards    Resolution    adopted    by   the    General    Conference GC(53)/RES/14 as well as GC(54)/RES/11,  mandate the Agency to prepare technically  objective and factually   correct   reports  with  appropriate   references   to  relevant   provisions   of   the  Safeguards Agreement.  Regrettably,  this statutory  requirement  has continuously  been ignored and has not been observed  in  this  and  in the  previous  reports.  The  Agency  should  not  arbitrarily  step  beyond  its statutory  and legal mandate  in preparing  its reports, assessments  and comments  without considering the relevant concrete obligations of a State.

 

3-          More importantly, the IAEA is an independent  inter-governmental  organization,  not a United Nations   programme  or  fund.  Therefore,  the  Agency’s   mandate  is  to  carry  out  its  activities  in accordance  with  its rights and  obligations  under the Statute and  the Safeguards  Agreements.    The Agency  should  therefore  refrain from  taking  instructions  from anonymous  States  and sources  with vested interests or allow unauthorized parties to interfere with its mandates. There are no provisions in the  Safeguards  Agreements  and  IAEA  Statute  which  may  authorize  the  United  Nations  Security Council  (UNSC)  to take  over  the  role of  the  IAEA  in implementing  the  Safeguards  Agreements, impose new requirements, or modify the obligations of the parties to the Safeguards Agreements; nor does the Agency have the right or authority to impose ultra vires demands on Iran by relying upon the UNSC resolutions.

 

4-          The Islamic Republic of Iran has already made it clear, based on the legal provisions such as those of the Agency’s Statute and the Safeguards Agreement as to why the UNSC resolutions against Iran are illegal and unjustified, which have been already explained  in INFCIRCs/: 786, 804, 805, 810,

817, 823, 827, 833, 837, 847, 849 and 850. Iran’s  peaceful nuclear activities have unlawfully been put

on the agenda of the UNSC and the Council  has taken a wrong approach  by adopting  its politically­ motivated, illegal and unacceptable resolutions against Iran. Therefore, any request by the Agency stemming from those resolutions is not legitimate and not acceptable.

 

5-          Although  the  report  once again  reconfirmed  that “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”,  it  keeps  using  “unusual”  and  “irrelevant”   language  with  regard  to  the Safeguards  conclusions,  by stating: “the  Agency is unable to provide credible assurance about the absence of  undeclared nuclear material and activities in Iran”, since  the  Agency  has  to  simply confirm that all declared nuclear material is accounted for and therefore “declared nuclear material in Iran remained in peaceful activities”.

 

6-          The Non-Aligned  Movement  in its several  statements  to the Board of Governors  has stated that “NAM emphasizes the fundamental distinction between the legal obligations of states in accordance with their respective Safeguards Agreements, as opposed to any confidence building measures undertaken voluntarily that do not constitute a legal safeguards obligation.” and also “NAM takes note that the latest report of the Director General includes many references to events that transpired prior to the previous report contained in document GOV/2009/74 dated 16 November 2009, and contrary to the expectation of NAM, does not mention the responses provided by Iran to the Agency on several issues.”, NAM  has also stated that “taking into account the recent developments mentioned above as well as previous Director General’s reports on the implementation of the Work Plan on “Understanding of the Islamic Republic of Iran and the Agency on the Modalities for resolution of the Outstanding Issues” (INFCIRC/711), NAM still looks forward to the safeguards implementation in Iran being conducted in a routine manner”. However, the Director General  in preparing   his  report  has  unfortunately   not  heeded  these  important  statements  which  reflect  the concerns of a large number of the United Nations and the Agency Member States.

 

7-          The Agency should strictly observe its obligations under Article VII.F of the Agency’s  Statute and Article 5 of the Safeguards Agreement between the I.R. oflran and the Agency, both emphasizing on the confidentiality  requirements. As was emphasized in previous Iran’s Explanatory Notes, the information collected during inspections of nuclear facilities should be considered as confidential information.  However, once again, the report in contradiction to the Agency’s  statutory  mandate and the Safeguards  Agreement (INFCIRC/214)  contains a lot of confidential technical details that should have not been published. The DG by including detailed information in his reports such as the number of installed and/or operating centrifuges, amount of nuclear material fed and/or produced, etc., has demonstrated  his  inability  to  fulfill  his commitments  on  confidentiality  measures.  It comes  as  no surprise that almost at the same time the DG report is released, some websites such as ISIS, publish the report contained  with sort of fictitious calculations as its evaluation on the detailed  information of the report. This fact leaves no doubt that ISIS has real time access to the safeguards confidential information,  thanks  to the  DG’s  generosity  in disclosing  confidential  information  to  unauthorized circles  before even  the less privileged  Member  States  have a chance  to examine  such  reports.  We strongly  object to this unprofessional and wrong pattern of non-compliance with the legal framework of the IAEA. This continuous violation must be stopped.

 

8-          Regrettably, the main portion of the DG’s  report  is based on certain  information  related to missile issue, not involving nuclear material activities. The Agency is not entitled to step beyond its mandate to the bilateral Safeguards  Agreement, or interfere with Iran’s  national security concerns on the  pretext of Iran’s  nuclear  program. Moreover, the DG has relied on some forged,  fabricated  and false  information   provided  by  western  intelligence  services  and  known  sources  hostile  to  Iran, assessed  as “overall  credible” information,  without any authenticity  verification,  while  independent observers  have revealed part of the false information  used by the Agency and criticized  ironically its immature assessment on allegations against Iran.

 

9-          The report  in its introductory  part enters into a legal qualification  and judgment  that is not absolutely  at  the  discretion  and the  responsibility  of  the  Director  General  of  the  IAEA.  Defining unilaterally obligations on a sovereign State is beyond the mandate of the Director General. As clearly described  above, the DG has deviated from his mandate. Iran reserves its right to file claims against his acts on the damages arising.

 

10-        In the light of the above, the claims and baseless allegations against the Islamic Republic of Iran’s  peaceful nuclear activities as contained in the DG’s  report (GOV/2013/27, dated 22 May 2013) are unprofessional,  unfair, illegal and politicized.

Does Noncompliance with a CSA Per Se Constitute Breach of the NPT?

A colleague asked if I would write something on the relationship if any between a finding by the IAEA of a state’s noncompliance with its comprehensive safeguards agreement (CSA) on one hand, and a breach of Article III of the NPT by that state on the other. In brief, does noncompliance with a CSA per se constitute a breach of NPT Article III?  Well, as it happens I did cover this topic at some length in my 2011 book. So I will just excerpt here from that book, Interpreting the Nuclear Nonproliferation Treaty, pgs. 87-94 (footnotes removed):

I would like to pay particular analytical attention at this point to the treaty interpretations given by NWS during the target period in order to justify the conditioning of nuclear supply, and recognition of the Article IV(1) right to peaceful use, upon NNWS compliance with an IAEA Comprehensive Safeguards Agreement.  As discussed in Chapter 3, there are several points of treaty interpretation included within the logical progression of interpretation maintained by NWS officials.  I identified these steps of interpretive progression as occurring within the following transitive sequence:

 

1. Noncompliance with an IAEA safeguards agreement constitutes a breach of NPT Article III,
2. A breach of NPT Article III results in the invalidity of the rights and obligations in Article IV,
3. Thus, noncompliance with an IAEA safeguards agreement results in the invalidity of the rights and obligations in Article IV.

 

As I explained in Chapter 3, this conditional normative linkage between NPT Articles III and IV, and the transitive conclusion that noncompliance with a safeguards agreement constitutes breach of the NPT, was used by NWS officials during the target era in order to justify the non-recognition of Iran’s right to peaceful nuclear technologies under NPT Article IV(1), as well as to justify a cessation of nuclear assistance to Iran by supplier states, pursuant to the obligation in Article IV(2). 

            The interpretation of a conditional linkage between Article III and Article IV, which forms an integral part of this transitive sequence, is an argument that I have already addressed above.  I concluded above that NNWS compliance or non-compliance with Articles I, II & III has no per se conditional effect upon the residual right of NNWS to engage in the peaceful use of nuclear energy materials and technologies recognized in Article IV(1).  This conclusion, taking away one of the two interpretive pillars of this transitive sequence, on its own renders the interpretive sequence incorrect.  

However, I will assume arguendo for the moment that the NWS interpretation on conditionality between Article III and Article IV is correct.  I will do so to show that, even if it was correct, the other interpretive pillar of this transitive sequence – that noncompliance with an IAEA safeguards agreement constitutes a breach of NPT Article III – is also incorrect. 

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Rouhani Stopped Iran’s Weaponization Research

This is a really interesting op-ed in the NYT by Francois Nicoullaud, who was France’s ambassador to Iran from 2001-2005.  Nicoullaud claims that Rouhani was the prime mover in Iran’s termination of its nuclear weapons research program in 2003.  You can read about the data points on which he bases this claim.  I’m not sure what else to say about this – there are a number of possible implications. One being the implication that Iran had a nuclear weapons research program prior to 2003. This is of course something that Western intelligence agencies have asserted, but that has never been confirmed.  Another implication being that if this claim is true, and Rouhani really was behind the cessation of this research program, it would be a feather in his cap in terms of his credibility to negotiate on the nuclear issue now, and hopefully to be able to bring Khamenei along to an agreement if necessary.

Luers, Pickering and Walsh NYRB Op-ed

I know this piece came out a couple of weeks ago, and I saw it flying around listserves and Twitter at the time, but I just now got around to reading it myself.  I think it deserves all the buzz it got. Its a really great piece and reads very insightfully and fairly about the current state of affairs between the West and Iran, and the opportunities presented by this moment. I think its analysis is very useful, and I agree 100% with the authors’ prescriptions.

One of the best sections of the piece is the authors’ discussion of the coercive policies of the United States against Iran, including sanctions:

Washington could continue with the same approach it has followed since the fall of the Shah, namely, a “two-track” policy based primarily on sanctions and isolation that does not exclude diplomacy. While American-led international sanctions have damaged the Iranian economy and demonstrated the world’s opposition to Iran’s nuclear program, they have done little to change Iran’s actions or policies.

One alternative would be to increase pressure. And indeed, many in Washington believe that more sanctions and threats of military action are the right response. Under a policy of “coercive diplomacy,” the US would give Iran a clear ultimatum: agree to US demands on nuclear issues by a certain date, or the US will take military action.⁹ The former diplomat Dennis Ross wrote recently that the Obama administration should make Iran’s leaders an offer they must take or leave within a set period of time, and he implies that the option of military force should be available if they reject the offer. He contends that “coercive diplomacy succeeds when threats are believed and the game playing and manipulation stop.”¹⁰

Some advocates of coercive diplomacy argue that such an approach helped President Kennedy pressure Khrushchev to withdraw Soviet nuclear missiles from Cuba. But a final agreement was reached when Kennedy gave Khrushchev a face-saving exit and offered to withdraw America’s Jupiter missiles from Turkey. A few years earlier, when China shelled the islands of Matsu and Quemoy in an attempt to intimidate and threaten Taiwan, President Eisenhower demonstrated his own desire to avoid ultimatums. Rather than define the point at which the US would take military action, he said that he would “just confuse” the press when asked what he intended to do.

Ike took to heart Clausewitz’s insight that a nation fighting for survival will persevere regardless of pressure. More coercion will only reinforce the belief among Iran’s leaders that America’s goal remains destruction of the regime, hardening their resistance and making diplomatic progress less attainable. On military action, it is worth remembering what President Johnson’s national security adviser, McGeorge Bundy, said in the 1990s about the Vietnam War. What surprised him most, he acknowledged, was “the endurance of the enemy.”¹¹ Bundy admitted that he had placed too much faith in “the power of coercion.”

“Coercive diplomacy” is an oxymoron. Invariably the coercive side dominates the diplomatic side. Intransigent enemies who threaten US interests and security cannot be ignored; yet the United States’ experience in solving such problems by the use of coercive action such as war or sanctions that end in war has been highly costly in human lives, resources, and its global position during the past sixty years. As in Vietnam, coercion has often failed to achieve US objectives or a negotiated settlement that gave us most of what we needed. Yet the US has been impressively successful in achieving its objectives when it has placed diplomacy above punitive measures.

Pressure has helped get Iran to negotiate; but diplomatic negotiation cannot succeed unless each side gets some of what it needs and unless each side comes to believe that the other wants an agreement and is willing to comply with it. At present the US has imposed not only an arms ban but a nearly complete economic embargo on Iran, although Iran can still gain access to the US financial system through foreign banks and other institutions. We are not proposing a preemptive suspension of sanctions without firm agreements from Iran on nuclear-related issues. But we do believe that the piling on of more coercive sanctions and ultimatums, particularly when there are new hopes for the diplomatic process to get underway, will undermine or even preclude the possibility of negotiating a nuclear deal.

That’s some gold right there. And I hope the “sanction first, ask questions later” crowd in DC is listening.

ABA Seeks Nominations for the 100 Best Legal Blogs of 2013

The ABA Journal is seeking nominations for its annual list of the 100 best legal blogs. None of the ACL bloggers can nominate ACL because the rules say you can’t nominate your own blog. In fact, they say that anyone who has posted on a blog is discouraged from nominating that blog – which I interpret to mean doing actual posts on the blog, not commenting on posts. Commenters are still fully eligible.

So, if you don’t fall into these discouraged categories, and you would like to nominate ACL for inclusion in the list of 100 best legal blogs, we would really appreciate it if you would use the form at this site to nominate us.

Nominations have to be submitted no later than 7:00 pm (ET) on Friday, August 9, 2013.

Thanks in advance.