Mark Hibbs on the Leaked IAEA Safeguards Report

So the nuclear nonproliferation blogosphere is lit up with the news of the leak of the 2012 IAEA Safeguards Implementation Report to Bloomberg and to Reuters last week. This also set the Twitterverse on fire, as Mark Hibbs reports in his piece over at Arms Control Wonk, which tries to dampen the hysteria and provide a pro-IAEA spin to the report’s revelations about how much of the IAEA’s budget and time have been spent on the Iran case.

I think in Mark’s apparent haste to explain some of the comments he made that were quoted in the report, he provides some rather superficial and ultimately erroneous analysis of the new report, blaming others in their analysis for “conflat[ing] the difference between compliance and performance evaluation.”

What I think Mark doesn’t see is the much more fundamental and underlying problem, which is that the concept of “compliance” with IAEA safeguards has been mangled and misused by the IAEA in its evaluations and reports for years.

The INFCIRC/153 CSA is very clear about how the system is supposed to work, and what standards the IAEA is supposed to use in their investigations and assessments. As readers of this blog will know, I have discussed the issue of the IAEA’s mandate extensively both here and in a Roundtable over at the Bulletin of the Atomic Scientists.

In brief, it is the IAEA’s now unfortunately institutionalized practice of exceeding its investigation and assessment mandate, that produces all of the problems of inconsistency, politicization, and error in the application of safeguards by the IAEA, including what Hibbs describes as “conflat[ing] the difference between compliance and performance evaluation.”

In the case of Iran in particular, the IAEA has gone beyond its mandate in deciding that it will not determine Iran is in “compliance” with its safeguards obligations, unless the IAEA can assess not only that no declared fissile materials have been diverted from peaceful to civilian use (which is the sole, correct CSA standard), but also that there are no undeclared fissile materials or related facilities in Iran and never have been, and that Iran has never performed any experiments of any kind the knowledge from which could conceivably be employed someday in the development of a nuclear weapon.

This standard is, of course, wildly incorrect, as I have taken pains to demonstrate.

Included in the mix of condemnable acts by Iran that has clearly factored into the IAEA’s unwillingness to declare Iran in compliance with its safeguards agreement according to this erroneous standard, are Iran’s failure to provide design information on the Qom facility, and the Arak facility, in what the IAEA considers a timely manner.

But wait, isn’t this a perfect example of what Hibbs means by conflating the difference between compliance and performance evaluation? As he explains:

In general it can be said with authority (and fully backed up by my historical files) that quite a number of states – and,  importantly, mostly states with significant nuclear programs – have at critical times resisted efforts of the IAEA to require that they provide more information and access . . . . Does this record show that states as a matter of course have resisted taking on additional obligations to the IAEA? Yes. But does this resistance imply that these same states were cheating on their current safeguards obligations? No.

But isn’t that exactly what the IAEA itself is doing, when it takes Iran’s alleged failure to meet a subsidiary arrangement standard on design disclosure into account in making its determination of Iran’s “compliance” with its safeguards obligations?

Instead of looking to the IAEA’s critics as the conflators, Hibbs should look to his good friends at the IAEA itself (the ones who leaked the new report to him), which has been the primary author of the mess that has been made of the concept of “compliance” with IAEA safeguards.

This is why when the people who sent the Tweets Mark refers to, read the excerpts from the new safeguards report and see, for example, its observation that a number of other states failed to make reports of design information of nuclear facilities in accordance with the modified Code 3.1 standard, they think: “Wait a minute, that’s exactly what the IAEA has been criticizing Iran for, and why they say Iran is still noncompliant.  Why aren’t there noncompliance reports on these other states, then?”

Again, it’s the IAEA that has conflated all sorts of erroneous things into their erroneous definition of “compliance,” and that’s what is producing this inconsistency.

And here is the problem of principle involved.  To the extent that the IAEA has gone beyond its clearly delineated and limited textual mandate for investigations and assessment, found in the CSA, and into broader and more subjective standards for investigation and assessment (e.g. like the standard of “no undeclared fissile materials,” and the concept of “cooperation with the Agency”) the Agency has become increasingly susceptible to being co-opted and used for political purposes by powerful states.

This is why, when those same people read in the new safeguards report about how much of the IAEA’s safeguards budget is being spent on Iran, and what proportion of man-hours are being spent on Iran, they naturally think: “Ya know, the IAEA has found no evidence that Iran is doing anything illegal, and yet it keeps chasing ghosts and endless speculations, provided by Western national intelligence agencies, and is never satisfied, even after all this time and all this money being spent.  And now it seems that there are a lot of other countries who are doing the same things the IAEA say are so condemnable about Iran. Something doesn’t add up here.”

And so they start to pay closer attention to reports about how much of the IAEA’s budget is provided by the US and its allies; how closely aligned with the US DG Amano was revealed to be in the WikiLeaks cables; and how much technical assistance the IAEA gets from the US in running its safeguards program. And they think: “Maybe this doesn’t add up because it’s not really about holding Iran to the same legal standards as other countries at all. Maybe this is really just one more way for the US to pursue its political agenda against Iran – whom it considers to be a grave threat to its chief Middle East ally Israel, and to itself – by using its influence over the IAEA to get the Agency to act as its proxy in criticizing Iran’s nuclear program. And maybe the IAEA is never going to be satisfied that Iran is in fact in compliance with its safeguards obligations, because the US doesn’t want it to ever be satisfied, and thereby recognize Iran’s legal justification for its peaceful nuclear program.”

And then they think: “Yeah. Now it does all add up. That really sucks. People should know about this.”

Soltanieh’s Speech to the IAEA Board of Governors

Here is a reported account of the text of Iran’s IAEA delegate Ali-Asghar Soltanieh’s speech to the IAEA Board of Governors on June 5.  I think it makes a great read. He doesn’t pull many punches in laying out what Iran thinks is wrong with the IAEA.  I’ll insert the full text here. Whether you agree with his comments or not, I think you should read them because they are serious allegations, and contain substantive legal critiques of the Agency’s activities:

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At the beginning I express my country’s sincere, sustainable, and definite support of the family of the Non-aligned Movement (NAM) specifically for the statement delivered by H.E. Ambassador Shamaa of Egypt on behalf of the Non-Aligned Movement. at this session. Beyond doubt, resistance in achieving our absolute right for taking advantage of the nuclear energy for peaceful purposes and resistance in confrontation with the pressures, the sanctions, the assassination of our dear nuclear scientists, and threats of military invasion, would serve as obstacles against employing such scenarios in other developing countries, particularly the NAM member countries. We do not permit the unjust policies and approaches of a number of western countries to be dictated to the agency. The Islamic Republic of Iran has paid a high price for not compromising and remaining committed to the articles of its Constitution. We have not given concession in order to be benefitted from our natural right of taking advantage of the nuclear energy for peaceful purposes, including uranium enrichment, which is a clear example of it.’

Mr. Chairman!

Being informed about the decision of your Government about promotion and assumption of an important post in Italy thus leaving Vienna, I have to put on record the satisfaction of my delegation at the professionalism and impartiality chairing the General Conference as well the Board of Governors. I wish you all the best.

Mr. Chairman!

Permit me to commemorate the anniversary of the founder of the Islamic Revolution of Iran, Imam Khomeini (P). I wish to present his viewpoints and ideas about the nuclear weapons here. This short and to the point quotation, uttered about three decades ago shows his clear condemnation against a dangerous weapon which can annihilate the human race:

‘…If they would continue production of huge atomic weapons, etcetera, the world would move towards annihilation and the nations would suffer very gravely.

‘Anyone, and wherever they are, the writers, the intellectuals, the religious thinkers, and the scientists around the globe must make aware the people of this threat so that the masses of people would stand against these two world powers and prevent the proliferation of these weapons…’

Mr. Chairman distinguished Colleagues!

In this meeting I intend to review the status quo of the IAEA and compare with the expectations as envisaged in the Statute. It is essential to remind ourselves, once in a while, the provisions of the Statute in order to prevent diversion from the principles on the basis of which the IAEA was established. In this process of critical review we got to make distinction between the Agency as a whole and the Secretariat. I decided to focus on the major problems of the Agency rather than dealing with the report of Director General on Iran since it is a side effect of fundamental problems in the Agency and its decision making process. However an explanatory note containing comments on the report will be distributed as INFCIRC document.

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Hagel Says U.S. Won’t Remain Idle as North Korea Seeks Nuclear ICBM

I was glad to see this GSN article today. Here’s an excerpt:

“The United States will not stand by while North Korea seeks to develop a nuclear-armed missile that can target the United States,” Hagel said in remarks at the annual Shangri-la regional security forum in Singapore.

Officially, the U.S. government does not believe Pyongyang has yet acquired the ability to make nuclear warheads small enough to be fixed to a ballistic missile. However, at least one U.S. intelligence branch suspects the North has that capacity.

“The United States has been clear that we will take all necessary steps to protect our homeland and our allies from dangerous provocations, including significantly bolstering our missile defense throughout the Pacific,” Hagel said.

In response to the North’s growing nuclear and missile capabilities, the Pentagon announced it would strengthen the Ground-based Midcourse Defense system by fielding an additional 14 long-range ballistic missile interceptors in Alaska. Following Pyongyang’s threats earlier this spring that it could carry out nuclear missile strikes on South Korea and the United States, the U.S. military repositioned its Sea-Based X-band radar in order to better detected any possible missile launches, fielded to Guam a Terminal High-Altitude Area Defense system, and moved U.S. warships armed with Aegis antimissile systems closer to the Korean Peninsula.

Its good to see this kind of language being used about the growing North Korean nuclear threat, that I’ve written about a number of times here. And I’m glad to see these missile defense measures being strengthened. I think this is a prudent response to the threat, and a first step in the right direction.

The Korean Joint Declaration an Impediment to South Korean ENR?

I just read this GSN article from yesterday by Elaine Grossman entitled “Two-Decade-Old Pledge Complicates South Korean Nuclear Aspiration.”  Here are a few excerpts from it, containing several different views regarding the legal character and current status of the “pledge” in question, which is the Joint Declaration of South and North Korea on the Denuclearization of the Korean Peninsula, signed on January 20, 1992:

South Korea’s designs on producing atomic fuel recently scotched a 2014 trade deal with the United States, but could yet have new ramifications: Potentially shattering a twenty-one-year-old pledge Seoul made to never process sensitive nuclear materials, according to issue experts.

“By dint of the Joint Declaration of 1992, South Korea has said it will not possess enrichment or reprocessing facilities on its peninsula,” Thomas Moore, deputy director of the Proliferation Prevention Program at the Center for Strategic and International Studies, said at a recent panel discussion.

South Korea issued the declaration along with North Korea, which has since set up plutonium reprocessing and uranium enrichment facilities in breach of the bilateral statement. Since 2006, Pyongyang also has gone on to test-detonate nuclear devices on three separate occasions, most recently in February.

[. . . . . .]

Moore turned heads earlier this month, though, in saying that South Korea is already a gold-standard nation much like the United Arab Emirates.

In addition to issuing the 1992 declaration, stating that “South and North Korea shall not possess nuclear reprocessing and uranium enrichment facilities,” Seoul “has an Additional Protocol with the IAEA and a full-scope safeguards agreement,” the former Republican Senate staff aide said at the May 17 CSIS event. “By any measure, South Korea is already a gold-standard state.”

And

 One regional expert said South Korea has the capacity to back off of the 1992 declaration if it so chooses. The statement with North Korea “doesn’t have the force of international law,” said Victor Cha, who directs Asian studies at GeorgetownUniversity’s School of Foreign Service. “It’s a political agreement between the two Koreas. It was supported but never formally sanctioned by the United States” and Russia, he said.

 Cha noted in a Wednesday interview that South Korea arguably violated the declaration already by allowing its scientists to experiment with plutonium reprocessing and uranium enrichment in past decades. Moreover, he said, South Korean officials might contend that the joint statement “is now defunct because the North has already violated it.”

 And

Nonproliferation expert Miles Pomper said last fall that even though North Korea flouted the 1992 ban, “South Korea and the other members of the six-party talks with Pyongyang still consider [it] in legal force.”

“We shouldn’t answer North Korean noncompliance by allowing South Korea to become noncompliant,” Moore told Global Security Newswire. 

This is a subject that Mark Hibbs also wrote about last year in a Carnegie piece here, in which he noted:

South Korea may become one of the exceptions made to a no-ENR outcome, as Seoul is hardly inclined to abandon its interest to enrich and reprocess. To the contrary, South Korea argues that Washington should afford it the same freedom to reprocess its growing inventory of spent fuel to minimize nuclear waste as the United States provided Japan when its 123 agreement was renegotiated in the 1980s.

The United States has long argued that a 1991 bilateral agreement between South Korea and North Korea, which commits both to renounce ENR, stands in the way. But South Korean officials argue that the bilateral agreement is null and void in the wake of North Korea’s revelation that it is now enriching uranium outside of IAEA safeguards, not to mention that it also produced plutonium outside of safeguards and used it in two nuclear explosions in 2006 and 2009. Officials argue that the size of South Korea’s ever-expanding nuclear program—the country now has 23 power reactors—will soon justify the establishment of a domestic uranium enrichment capacity.

So there appears to be some considerable disagreement in the nonpro community over the legal character of the 1992 Joint Declaration, and its current legal status.

I looked up the best copy of the Joint Declaration I could find, which is here (there’s also one here with only slight differences – if anyone has a better copy, I’d be happy to see it), and some of the relevant subsequent state practice concerning the declaration, which is chronicled here.

In looking at the text of the Joint Declaration, it’s not clear to me from the text itself whether the parties, South Korea and the DPRK, intended this agreement to constitute a treaty, i.e. to be legally binding, or alternatively to constitute a non-legally-binding joint political commitment. There is no one simple test of form for qualifying an agreement between states as a treaty. The essential test is whether the parties intended the agreement to be legally binding, and gave their proper consent to it with that understanding.  

The text is entitled a “declaration,” as indeed are all the joint statements made in the document. In fact, the words “agree” or “agreement” do not appear once in the document. This choice of words does strike me as a form one would use if one did not want the text to be seen as a legally binding agreement, but rather as a legally non-binding  political commitment to act jointly.  If I recall correctly, the NSG guidelines are similarly customarily adopted by NSG participant states through joint declarations – though I think these are unsigned joint declarations, whereas the Joint Declaration under consideration here was signed by high level officials of both states.  But if the text was to be contractual in nature – i.e. a mutual undertaking of obligations through agreement – then why style it a declaration as opposed to an agreement, as in most treaty texts? 

Again, I’m not saying that this terminology is dispositive of the question of whether the text is a treaty. Form is not dispositive on this question, but rather the intent of the parties and their manifest consent. I’m just saying that the text itself isn’t clearly indicative that the parties meant it to be legally binding.

Looking at the subsequent state practice with regard to the Joint Declaration as well, nothing clearly demonstrates to me that the parties considered this to be a legally binding document. As far as I can tell, the mutual inspection regime called for in the text was never successfully implemented. The South-North Joint Nuclear Control Commission that was created to implement the Declaration appears never to have produced any real agreement between the parties on implementation. 

It was then in March of 1993, only a year later, that North Korea withdrew from the NPT itself.  And then in 2002 that the DPRK admitted it had a secret uranium enrichment program. And then of course in 2006 that the DPRK conducted the first of its, to date, three nuclear weapon tests.

I wouldn’t say that I’ve been able to conduct an exhaustive analysis of all of the relevant factors, but it appears to me from a review of the text and the subsequent state practice related to the Joint Declaration, that the parties did not clearly intend for it to be a legally binding treaty, but rather likely intended it to be a legally non-binding political commitment to act jointly in the specified ways.

But let’s just say arguendo for a moment that it was indeed a legally binding treaty.  Article 60 of the Vienna Convention on the Law of Treaties provides:

1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part.

 [. . . . . . ]

 3. A material breach of a treaty, for the purposes of this article, consists in:

(a) a repudiation of the treaty not sanctioned by the present Convention; or

(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.

It is incontrovertible that the DPRK, through its three nuclear weapon tests, and revelations of extensive nuclear weapons development programs, has violated provisions essential to the accomplishment of the object and purpose of the Joint Declaration. Therefore, South Korea is fully entitled, if it wishes, to invoke this breach as a ground for terminating the treaty, relieving it of any legal obligation it has pursuant to it.

So let’s go back to the original GSN article, and the disagreement among observers as to the legal character and current legal status of the Joint Declaration.  My assessment is as follows. It is most likely that the Joint Declaration was not a legally binding treaty, but rather a legally nonbinding declaration of joint political commitment.  However, even if it was a treaty, South Korea can now formally terminate it at any moment, due to the DPRK’s incontrovertible material breach of the treaty.

Thus, I have to disagree with Thomas Moore.  The 1992 Joint Declaration is no impediment to South Korea possessing enrichment or reprocessing facilities on its territory.

Paving, Penetrators and the Parchin Probe: Issues in Environmental Sampling by the IAEA

I am extremely pleased to introduce another guest post from good friend of ACL, Professor Yousaf Butt, of the Monterey Institute of International Studies.  Yousaf has produced what I think is an extremely important technical appraisal of a number of issues connected both with the Parchin military site in Iran, and the Al Kibar site in Syria, both of which have been targeted for scrutiny by the IAEA.  Yousaf brings to this analysis his very impressive qualifications and scientific expertise (seriously, look it up here, Yousaf is a seriously well qualified nuclear physicist – not just another self-styled wonk with a degree in policy studies who likes to talk about missiles and nukes).  For us lawyers, this kind of expert technical appraisal is vital for understanding the underlying technical issues that are the subject of legal regulation. I plan to follow up Yousaf’s post in the next day or so with a post of my own on the legal implications of his analysis. But for now, enjoy!

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Paving, Penetrators and the Parchin Probe: Issues in Environmental Sampling by the IAEA

 By: Yousaf Butt

 Yousaf Butt, a nuclear physicist, is research professor and scientist-in-residence at the James Martin Center for Nonproliferation Studies at the Monterey Institute of International Studies.

Last week, the IAEA released a new report on Iran, where it again found Iran in compliance with its safeguards agreement by explicitly stating “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.” As former UK ambassador to the IAEA, Peter Jenkins, and I mentioned in a recent Reuters piece: “Iran is now in compliance.” Tehran has explained or corrected every substantiated and lawful issue, as confirmed by the Agency in 2008.

The IAEA has, however, raised a number of other subjective “concerns” that go beyond the letter of the Safeguards Agreement. It would be nice of Iran to cooperate with these extra-judicial requests but it is certainly under no legal obligation to do so.

For instance, the IAEA says it has secret information (which it will not share, even with Iran) from a member state’s intelligence agency indicating that Iran may have constructed a large steel chamber in a building for conducting conventional high explosives experiments—some of which may have involved natural (not enriched) uranium—which could be associated with a secret program to do research on nuclear bombs.  As former IAEA inspector and veteran nuclear weapons engineer Robert Kelley explains in an expert report the whole scenario is a bit of a stretch from a technical standpoint:

A chamber such as the one claimed to be in the building is neither necessary nor particularly useful for developing a first-generation nuclear weapon. Such development tests have normally been done outdoors for decades.

The latest concern voiced by the IAEA (and its fundee ISIS)  has to do with the leveling/paving work at the military base at Parchin. The new allegations by the ISIS group are that:

Iran continues to conduct activities at the suspect Parchin site that will further complicate the verification work of the IAEA. According to the IAEA’s report, “Iran has conducted further spreading, leveling and compacting of material over most of the site, a significant proportion of which it has also asphalted.” ISIS’s satellite imagery brief released today illuminates Iran’s work at the site and appears to confirm these paving and asphalting activities. The Parchin site is the location of a test chamber that is suspected of being used for containing high explosives tests related to nuclear weapons development. Iran began altering the buildings at this site and the site itself during the spring of 2012, shortly after the IAEA requested access to this site. The IAEA in this latest safeguards report states that “satellite imagery available to the Agency [IAEA] for the period from February 2005 to January 2012 shows virtually no activity at or near the building housing the containment vessel (chamber building). Since the Agency’s first request for access to this location, however, satellite imagery shows that extensive activities and resultant changes have taken place at this location.

Is this paving work at Parchin – which is clearly not over “most of the site” as alleged by ISIS — really a problem for the IAEA?

As I explain below, there is no issue here mainly because any samples of interest to pick up trace amounts of uranium would normally be taken from inside buildings. (Naturally occurring uranium complicates outdoors environmental sampling: Even though it is possible to tell apart man-modified uranium from naturally occurring oxides, it is hard to segregate interesting particles using sensitive IAEA techniques.)  And, in any case, there is plenty of undisturbed ground adjacent to the building that the IAEA could still take environmental samples from if — for some reason — they wanted to do this. As an expert SIPRI report concluded earlier this year:

The fact that the building’s immediate vicinity has been largely untouched on the west side strongly suggests that the purpose of the earth-moving operations was for construction and renovation work and not for ‘sanitizing’ the site by covering up contamination. In any event, the IAEA should not be collecting samples of dirt or dead vegetation to detect tiny uranium traces.

Additionally, ISIS has propagated the technically ill-informed suggestion that tungsten could have been used as a surrogate for unenriched uranium in such tests. There are at least two problems with that scenario:

(1) Tungsten is a very hard brittle material that melts at over 3400 C.  In fact it is virtually impossible to melt tungsten and cast it into precise shapes and it is almost impossible to machine.  So tungsten precision parts are made by pressing very pure tungsten powder in very precise molds so that the resulting shapes don’t need to be machined.  If someone is using tungsten as a surrogate for testing uranium bomb parts they must be very precise in dimensions so this procedure must be used.  It is a major industrial development project in its own right. Furthermore, tungsten has very different mechanical properties from uranium in every regard except for density.  So it is a lousy surrogate for uranium in a test relevant to possible nuclear weaponization studies.  The results of such a test will be largely meaningless.

(2) Tungsten is not a nuclear material and, unlike uranium, there is no need for Iran to declare what it is doing with tungsten, so there would be no legal safeguards issue even if Iran were to have done implosion tests with tungsten or other non-fissile material.

Before delving into further technical issues regarding the Parchin site in Iran, let’s examine the related mishandling and misreporting of the IAEA’s environmental sampling in Syria, since it is relevant to judging the IAEA’s competency, impartiality and professionalism in such environmental sampling.

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Twitter

Yes, I’m not the most tech savvy person. I’ve just recently gotten myself a Twitter account. I wanted to pass it along to those of you who use Twitter.  I will endeavor to tweet about each new blog post on ACL, so if you think it would be useful to you to “follow” me on Twitter and receive these announcements, please look me up at DanJoyner1

Wherefore Parchin?

Just a quick reaction to media reports that there may have been paving and laying of asphalt at the Parchin military site, also (unsurprisingly) breathlessly reported with illustrations by ISIS here.

Reading these reports, it struck me how the whole Parchin issue appears to be being used by the IAEA so similarly to how the Benghazi consulate attack issue is being used by the US House of Representatives.  In both cases, I think we are seeing perfect examples of the use of investigation powers by a legal institution as a political weapon.  In both cases, the investigating authorities ask a neverending stream of questions, trying to get at “the truth,” which is really of course merely an attempt to confirm their own unsupported allegations against the target of the investigation. But the fact that no evidence is ever produced through these endless interrogatories that there is in fact anything “there” there, does not deter the investigators. Thats because the purpose of the investigation isn’t really, in the final analysis, a quest for truth. Its a procedural weapon that is being employed to harm the public perception of the adversary target, by maintaining an investigation ad infinitum, in the hopes that the absence of any actual incriminating evidence will be lost on a largely ignorant public audience, and that the fact alone of an ongoing investigation will be enough for media outlets like the Washington Post to parrot the unfounded accusations, keeping the perception of something “there” in the public consciousness.

I hope that readers will understand that the question of what may or may not have happened at the Parchin military base is UTTERLY IRRELEVANT to the current dispute between Iran and the IAEA/the West over Iran’s nuclear program. Even if all of the allegations made about what happened at the site are true – i.e. that experiments were carried on there 15-20 years ago that increased Iran’s understanding of how to construct a nuclear warhead – SO FREAKING WHAT?  As I’ve explained over and over, even if that’s all true, it wasn’t illegal in any way.**

And there is not even a scrap of evidence either that Iran actually constructed a nuclear warhead at any point in the past, or that they’ve done any work whatsoever on warhead R&D for the past 10 years – quite the contrary, as we all know.  All of the national intel agencies, including that of the US, have concluded that Iran stopped whatever warhead R&D work they were doing by 2003.

So again, THIS QUESTION HAS ABSOLUTELY NO RELEVANCE to the real issue of whether Iran is currently in compliance with its obligations under international law, including the rules of the NPT and its CSA with the IAEA.  The entire Parchin issue is a sideshow – a classic red herring.  And it’s really frustrating to see how much energy the IAEA keeps devoting to this irrelevant issue, including in its newest report on Iran, released today.

Again, the only sense I can make of it is that the IAEA is acting here per the direction of the US – not much of a stretch, knowing what we know about the amount of funding the IAEA receives from the US, the influence US labs have on the IAEA safeguards program, the amount of the intel  on Iran that’s coming from the US and its allies, and, from the WikiLeaks cables, about how closely aligned DG Amano is with the US .  And that the US wants this investigation to be used in exactly the same manner, and for the same purpose, that the US House of Representatives is using its investigation of the Benghazi incident – as a political weapon, pure and simple.

Is it any wonder that Iran doesnt trust the IAEA?

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** After speaking to some colleagues today, I would make one minor caveat to this statement for the sake of thoroughness and precision. The only aspect of the alleged experiments allegedly conducted at Parchin – and this is only according to the most extreme allegations – that would, if it occurred, have violated international law, is if uranium of a type meeting the threshold criteria of Article 34(c) of the CSA was employed in the experiments.  If so, then the failure to declare that material, and the facility in which it was present, would have constituted a violation of Iran’s CSA.  That being said, if indeed this was the case, the amount of uranium present is likely to have been small, and it would almost certainly have been unenriched. As such, it would in my opinion have constituted a very minor violation of the CSA.  Similar but more serious CSA violations have been committed by a number of other states in the past, including Egypt and South Korea. The level of attention that has been paid by the IAEA to the Parchin issue is out of all proportion to the level of attention paid to these other, more serious instances of safeguards violation.  Thus I would maintain my overall argument in this post.

US Still Trying to Figure Out its Nuclear Export Control Policy

I certainly agree with the urging, and basic rationale, contained in the letter sent to President Obama by former US Defense officials, reported in this article. I’m not sure I would have made the arguments quite the same way – e.g. I dont think the US has to see itself as having to “continue to provide international leadership” on nonproliferation.  But I do think the letter is correct in its important realization that if the US adopts the “gold standard” as legally mandatory, the only thing it will acheive is to harm US nuclear technology vendors in the international marketplace for supply of peaceful nuclear energy projects, primarily proceeding in Eastern Europe, the Middle East, and South and East Asia.  I wrote about this previously here.  

I literally laughed out loud – ask Paul Horwitz who has the office next to mine – when I read this quote by Sharon Squassoni on ongoing US deliberations regarding adoption of the mandatory gold standard approach, versus the case-by-case approach:

The current hold-up on the U.S. side in moving forward with nuclear cooperation agreements is apparently due to a policy disagreement on whether or not to take a principled — [or] nondiscriminatory — approach or a case-by-case approach,” she told GSN in a written response to questions. “It is always cleaner to take a principled approach.

The gold standard approach is the “principled approach”? Please. As I explained in a recent post, it’s the adoption by the US and the other NSG member states of precisely the sort of policies underlying the urged mandatory gold standard, that have resulted in these states being collectively in violation of the principles they obligated themselves to in the NPT.

Yousaf Butt on Re-setting US Diplomatic Approach Regarding Iran

I mentioned this briefly at the end of my piece yesterday on special inspections, but I wanted to also bring it to the front.  Friend of ACL Professor Yousaf Butt has just published an excellent piece on the need for re-setting the US diplomatic approach toward Iran, and the reasons for this need. I fully endorse the legal conclusions in this piece, and the prescription he gives for a path forward. This is sort of a macro-diagnosis of everything that’s been wrong with the West’s and the IAEA’s efforts, both diplomatic and legal, with regard to Iran’s nuclear program over the past decade and more, and how this mishandling of the situation has led us to where we are today. I highly recommend it to readers.

An IAEA Special Inspection of Parchin?

Cyrus Safdari recently brought to my attention an AP article from March 6, in which Joseph MacManus, the US representative to the IAEA, is reported to have made statements indicating “that America might lobby the IAEA board to ask for a special inspection of Parc[h]in, a facility that the agency suspects was used to test explosive triggers for a nuclear weapon, or that the United States would seek an IAEA resolution critical of Tehran.”

There seems to be a lot of misunderstanding, both in official circles as demonstrated by this article, but also within the nonproliferation specialist community, about what exactly IAEA special inspections are, and about their legal character.

In an article from November 2010, Olli Heinonen argued that the IAEA should call for a special inspection in Syria. As he wrote:

Together with official Syrian reluctance to give the agency access to relevant information, persons, equipment, and sites, the resulting situation calls for the use of full inspection rights to ensure that all nuclear material in Syria is for peaceful purposes. 

So according to Heinonen’s understanding, a special inspection is a constitutive part of the IAEA’s “full inspection rights” under the comprehensive safeguards agreement.

James Acton, Mark Fitzpatrick, and Pierre Goldschmidt, writing in a 2009 Carnegie Endowment piece, argued that:

It is now time for the IAEA to move beyond such voluntary requests and invoke its most powerful inspection provision, the “special inspection,” to make its requests for access legally binding. If Syria refuses then the Board should make a formal finding of “non-compliance.”

These are all incorrect legal characterizations of the process of special inspections as laid out in the provisions of the IAEA INFCIRC/153 comprehensive safeguards agreement.   

Both government officials in the US, and the nonproliferation specialist community (at least, those that aren’t lawyers – which includes Heinonen, Acton, Fitzpatrick, and Goldschmidt), seem to think that IAEA special inspections are a powerful weapon the IAEA has reserved in its quiver, but that it only uses in the most serious of situations, in which desperate measures are needed to bring rogue states to heel. Sort of like a step up in the categorization of a crisis from “code yellow” to “code red.” And that once the IAEA does pull this special inspection weapon out of its quiver, it is exercising its full legal rights to legally compel an inspection of the subject site(s).

But this is a fundamental misunderstanding of the special inspection process as provided for in the CSA. Most commentators, including those quoted above, appear to be confusing IAEA special inspections under the CSA, with a process more akin to a challenge inspection under the Chemical Weapons Convention.  

This is what I wrote about the CWC challenge inspection process on pgs. 114-115 of my 2009 book (see Article IX of the CWC):

 If, however, a state party feels that it has not been satisfied through this process of interrogatory, it may request that the OPCW conduct a challenge inspection on “any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the provisions of this Convention.”  The state against whom the challenge inspection has been requested is under a basic obligation to cooperate with the challenge inspection by members of the OPCW Technical Secretariat, unless the OPCW Executive Council (composed of 41 state-party members based upon the principle of rotation) determines by a three-fourths vote that the inspection request is “frivolous, abusive, or clearly beyond the scope of [the] convention.”

On the basis of the report generated by the Technical Secretariat, the Executive Council may determine whether non-compliance with the CWC’s terms has occurred and may instruct the offending state party on measures which it must take to remedy such non-compliance.  If the measures directed by the Executive Council are not implemented by the offending state, the issue may be referred by the Council to the Conference of the States Parties (the Conference), the principal organ of the OPCW, comprised of a representative of all states parties.  In its discretion, the Conference may restrict or suspend the rights of an offending state party under the convention, and may at the extreme in “cases of particular gravity,” refer the matter to the U.N. Security Council.

 In the case of a CWC challenge inspection, any state party to the CWC may designate any site within any other state party (subject to limitations on scope and abuse), whether declared or undeclared, for a challenge inspection. And the challenged state is under a legal obligation to allow the OPCW to conduct the inspection. Refusal on the part of the challenged state to allow the inspection constitutes a breach of the CWC.

 The special inspection process laid out in the IAEA INFRIC/153 CSA, by contrast, can only be invoked for one of two reasons, as stipulated in CSA Article 73.  The first is if a state voluntarily submits a special report to the IAEA. The second is

If the Agency considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.

Before proceeding, let’s be sure we remember what the IAEA’s responsibilities are under the CSA. These are laid out very concisely in Article 2:

The Agreement should provide for the Agency’s right and obligation to ensure that safeguards will be applied, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

As I’ve explained in detail elsewhere, this means that the IAEA’s mandate is to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.

So, pursuant to the second reason listed in Article 73, if the IAEA thinks that an inspection of an undeclared site, i.e. one that is not subject to routine or ad hoc inspections under the CSA, is necessary for the Agency to verify that no declared fissile material within the safeguarded state has been diverted from peaceful use to military use, the Agency may submit a request to the state that it be allowed to inspect the subject site.

Article 77 of the CSA provides that:

The Agreement should provide that in circumstances which may lead to special inspections for the purposes specified in paragraph 73 above the State and the Agency shall consult forthwith. As a result of such consultations the Agency may make inspections in addition to the routine inspection effort provided for in paragraphs 78—82 below, and may obtain access in agreement with the State to information or locations in addition to the access specified in paragraph 76 above for ad hoc and routine inspections.

So the first step is for the IAEA and the state to consult about the IAEA’s request. If the state agrees to the request, the special inspection proceeds according to terms agreed between the IAEA and the state.  However, if the state does not agree to the IAEA’s request, Article 77 provides that:

Any disagreement concerning the need for additional access shall be resolved in accordance with paragraphs 21 and 22; in case action by the State is essential and urgent, paragraph 18 above shall apply.

Articles 21 & 22 of the CSA provide for two processes of dispute settlement in case of a disagreement between the IAEA and the state over the need for the special inspection.  These are, respectively: 1) arbitration; and 2) referral of the case to the International Court of Justice.

The only way in which the IAEA can circumvent this dispute resolution process, is in a circumstance in which “action by the State is essential and urgent.”  In such a circumstance, Article 18 of the CSA applies, which states that:

The Agreement should provide that if the Board, upon report of the Director General, decides that an action by the State is essential and urgent in order to ensure verification that nuclear material subject to safeguards under the Agreement is not diverted to nuclear weapons or other nuclear explosive devices the Board shall be able to call upon the State to take the required action without delay, irrespective of whether procedures for the settlement of a dispute have been invoked.

So, even in a case in which the IAEA considers is essential and urgent that the safeguarded state permit the special inspection, the IAEA is only empowered to “call upon” the state to do so. It is well understood by international legal scholars that when an international legal instrument provides for an international organization to “call upon” a state or states to do or refrain from doing something, this is not a legally binding command. Rather, it is a non-binding exhortation.

Therefore, in the case of a state being called upon by the IAEA BOG to allow a special inspection to take place, the state’s refusal to allow the requested special inspection would not be an action in noncompliance with the terms of the CSA, or in breach of any other principle of international law. It would simply be the state’s sovereign determination not to provide the IAEA with access additional to that which it is obligated to provide under the terms of the CSA.

Thus, such a refusal would not be grounds per se for the BOG to determine that the state is in noncompliance with the CSA. Therefore Article XII paragraph C of the IAEA Statute, which allows the BOG to report noncompliance with the CSA to the UN Security Council, would not be triggered.

So in the final analysis, unlike challenge inspections under the CWC, special inspections under the IAEA CSA are not legally compulsory. They are a request by the IAEA to the safeguarded state, to allow IAEA inspectors to examine sites not included in the state’s declaration, and therefore not subject to routine and ad hoc inspections. This request may be agreed to, or not agreed to, by the safeguarded state.

Further unlike in the CWC challenge inspection context, refusal by the safeguarded state to allow the special inspection to occur is not, in the IAEA CSA context, a violation of international law, or an act in noncompliance with the CSA.

This is a far cry from the way in which special inspections have been characterized by the non-lawyer nonproliferation specialists quoted above.

So let’s take all this newly corrected understanding about the legal character of special inspections, and apply it to the question of whether the IAEA could perform a special inspection at the Parchin military facility in Iran.  It turns out that we don’t have to proceed far into the analysis in order to find the answer.

Remember that special inspections can only be requested for one of two reasons, according to CSA Article 73. First, if there has been a voluntary special report by the safeguarded state. There has not been one in this case.  Second, if the IAEA “considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.”

Again, this links challenge inspections directly to the responsibilities of the IAEA under the CSA. And what are those responsibilities? As noted above, they are stipulated in Article 2 of the CSA. They are to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.

Parchin is not a site that is at all connected, even in IAEA and third party allegations, with fissile material that should be declared pursuant to Iran’s CSA.  The allegations about the site – allegations that are unsubstantiated, and the evidence for which the IAEA will not share with Iran – concern conventional explosives testing and other non-fissile-material-related activities that could be used in developing a nuclear warhead.  As I explained in a piece on the JURIST site some time ago, and as is made clear in Article II of the CSA quoted above, the mandate of the IAEA does not extend to investigations and assessments of non-fissile-material-related aspects of a nuclear weapons program (i.e. nuclear warhead development).  Thus, since an inspection of the Parchin site definitionally cannot be said to be necessary in order for the IAEA to fulfill its responsibilities under the CSA, a special inspection cannot be requested for the site. This is the effective end of the legal analysis.  

However, even if arguendo Parchin was a site at which there was a reasonable basis for concluding that fissile material, subject to declaration to the IAEA, is or has been present, it should be noted that as explained above, the IAEA would only be authorized to ask Iran if it could conduct a special inspection. If Iran denied this request, as it almost certainly would, the IAEA could submit the dispute to arbitration or to the ICJ, but that’s about it in terms of the ability of the IAEA to enforce its wish to conduct a special inspection of the site.

Perhaps, then, it’s no wonder that the IAEA has not opted for this route with Parchin, and at present shows no inclination to do so. Hopefully the US will think better of trying to force the IAEA into a special inspection attempt that will only poison relations with Iran further, and that ultimately won’t yield any useful results in resolving the dispute between Iran and the West over Iran’s nuclear program.

For some MUCH better ideas about how the US SHOULD proceed with regard to Iran’s nuclear program, see Yousaf Butt’s new piece here.