A Response to Laura Rockwood

Laura Rockwood, the former longtime head of safeguards at the IAEA Office of Legal Affairs, has a new article out in Arms Control Today entitled “The IAEA’s State –Level Concept and the Law of Unintended Consequences.”  When I read the piece last week I was surprised at how thoughtful and rigorous the analysis was. I don’t mean this as a slight to Laura personally.  I mean that I’ve gotten used to so much of the writing in arms control literature on international law and safeguards subjects being quite superficial and conclusory, without much supporting legal analysis (see, e.g., this recent piece by Persbo and Carlson).

But apparently, now that Laura is retired from the IAEA and has taken up a position at the Belfer Center, she has found the time to provide a much more thoughtful and thorough analysis in this paper of her view of the IAEA’s legal authority under the INFCIRC/153 comprehensive safeguards agreement (CSA).

While the title of the piece focuses on the IAEA’s state level safeguards approach, something I’ve written about here, Laura actually spends about half of the piece arguing a related and more fundamental point; i.e. that under the CSA alone, the IAEA has the legal authority to investigate and assess both the correctness and the completeness of a safeguarded state’s declaration. Readers will know that this is a subject I have written a lot about in the past.

While, again, I welcome Laura’s thoughtful piece on this question, I have to disagree with her in her analysis and conclusions.  Essentially, Laura is making a revisionist argument about the legal authority of the IAEA under the CSA; a view that has its origin in the aftermath of the 1990-1991 Gulf War, and has been championed by the United States in the IAEA Board of Governors since that time. Laura Rockwood has become the chief public apologist for this argument, which goes against the common understanding of the legal authority of the IAEA, held by IAEA officials and states for the first two decades of the CSA’s existence.  And, as she laments in her new piece, but which I find encouraging, many states are still unpersuaded by it.

As well they should not be.

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IAEA Director General to Punt the Iran PMD Issue to the Board of Governors

Have you seen this new Bloomberg article by Jonathan Tirone? I’m almost dumbstruck by it.  In it he reports:

Investigators probing Iran will let national officials from places including the U.S., China and Russia decide if the Persian Gulf country hid a nuclear weapons program, according to two officials familiar with their work.

The International Atomic Energy Agency’s inspection team will likely have to make an assessment based on incomplete information and let its board of nationally-appointed governors draw definitive conclusion about the country’s past nuclear work, said the two senior international officials, who asked not to be named because the information isn’t public. . .

It isn’t realistic to expect the IAEA to provide a black-and-white assessment showing that Iran either did or did not have a nuclear-weapons program, the officials said. The IAEA will set a time to end the investigation and submit its findings to the 35-member board of governors to make a ruling, they said.

I almost don’t know where to begin on this. As readers will know, I’ve long been critical of the IAEA’s decision to investigate allegations, mostly originating from third party states, of past possible military dimensions (PMD) to Iran’s nuclear program, and the November 2011 IAEA DG report that most comprehensively laid out these allegations.  I published this commentary on the report the day after it was sent to the BOG.  Since then I’ve written on the issue several times, including here, and have tried to explain that the IAEA has absolutely no mandate or authority to investigate and assess whether safeguarded states have done research and development work on nuclear weaponization not involving fissile materials.

Notwithstanding this lack of legal authority and, as Bob Kelley and Tariq Rauf point out in their new article in Arms Control Today, a lack of technical expertise to assess nuclear weaponization R&D as well, the IAEA has proceeded over the past three years to gather what information they could about the PMD claims, and has tried to engage Iran on this issue, with little success.

It’s never been clear to me what DG Amano’s game plan was on the PMD issue – i.e. how he thought the investigation would realistically play out, and what he thought would be achieved through it.  Again, there is no legal source that lays out the IAEA’s authority and tools for investigating nuclear weaponization, so there are no standards for the agency to follow.

It now appears that the final chapter of the IAEA’s PMD inquiry in Iran will consist of the IAEA DG’s office handing over whatever technical information they have, however incomplete, to the national political representatives who constitute the 35 member Board of Governors of the IAEA, and asking them to determine whether Iran worked on nuclear weaponization in the past.

If that sounds kind of crazy to you, then you’re not alone.

Again, I don’t think the IAEA should have ever started down the path of investigation and assessment on this issue, but given that they have, surely it must be recognized that this is essentially a technical matter – i.e. whether there is sufficient evidence of a nuclear weaponization program in Iran in the past. It is not a political matter. How, then, are the political representative of 35 countries on the IAEA BOG qualified in any way to make this determination?

This seems to me to be a complete cop-out – a surrender by the IAEA DG’s office. Whether it’s a surrender to facts (i.e. the DG’s office doesn’t have, and knows it never will have, enough information to really make the call technically, and is afraid to admit it) or a surrender to politics (i.e. the US and others are pressuring Amano to get the PMD issue resolved, and this is the only way to face-savingly do it) or more likely a combination of both, this can’t be the way Amano hoped this PMD inquiry would be resolved. Although, again, I don’t know what his plan was to begin with.

This is a punt – a buck passing, plain and simple. And even though the IAEA should never have gotten involved in this issue in the first place, this sets a very bad precedent for the agency going forward. The IAEA DG’s office is basically admitting that they cannot do their job of making a technical determination here, and they are instead punting the issue over to the BOG for a politicized vote. What does that say to IAEA member states about the IAEA’s ability to objectively apply technical safeguards to their nuclear programs, and about the independence and apolitical nature of the agency?

If this vote does indeed go ahead in the IAEA BOG, no matter what the outcome I think it will be one of the darkest days in the agency’s history. And I think that DG Amano is solely responsible for the black eye the agency’s reputation will take from this ill conceived, and badly executed foray into weaponization investigation.

Paul Pillar on Israel’s Kumquats

I just have to plug Paul Pillar’s new piece over at the National Interest entitled “Israel’s Nuclear Weapons: Widely Suspected Unmentionables.”  It’s a great piece, and I love his use of code language. Lots of great quotes, including this one:

Arms control also is at least as important to U.S. interests as to Israel’s, at both regional and global levels. Regionally, proposals for a Middle East nuclear-weapons-free zone (or in some variants, a weapons-of-mass-destruction-free zone) are worth discussing, however much realization of such a goal will depend on resolution of political conflicts that will determine the willingness of regional states to give up whatever weapons they currently have. Any such discussion will be a feckless charade, however, as long as neither Israel nor the United States will say anything about kumquats.

That the United States is so out of step on this subject with the rest of the world is taken by the rest of the world as one more example of double standards that the United States applies to shield Israel. Even further, it is taken as not just a double standard but living a lie. Whatever the United States says about nuclear weapons will always be taken with a grain of salt or with some measure of disdain as long as the United States says nothing about kumquats.

The issue of Iran’s nuclear program, negotiations on which will be coming to a climax this fall, is highly germane to this problem. We have the spectacle of the government of Israel being by far the most energetic rabble-rouser on the subject of a possible Iranian nuclear weapon, to the extent of repeatedly threatening to attack Iran militarily. Some might call this irony; others would call it chutzpah. Anyone would be entitled to say that any state that not only refuses to become a party to the Nuclear Nonproliferation Treaty (NPT) or to subject any of its nuclear activities to any kind of international inspection or control but also already possesses kumquats or their equivalents has no standing to conduct such agitation about Iran, which is a party to the NPT, has already subjected its nuclear activities to an unprecedented degree of intrusive inspection, and is in the process of negotiating an agreement to place even further limits on its nuclear program to ensure it stays peaceful.

I like this last sentence particularly, as it mirrors what I wrote about Israel’s position regarding other states’ nuclear programs in a piece here last year:

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.

Supplementary Document to the IAEA DG’s 2013 Report on the State Level Safeguards Approach

IAEA State Level Safeguards Document August 2014

A friend has sent me this new report by the IAEA DG, which supplements and fleshes out the initial DG report on the State Level Safeguards Approach (SLSA) that was released last summer, and which I posted on ACL here.  This new report gives more information on the nuts and bolts of how the SLSA is to be implemented. I think it should be interesting reading, and I invite comments.

Last summer I wrote a fairly lengthy piece here in response to the original report, which this now supplements.  You can read that piece here.  I basically still think the same thing about the overall program. As I said then:

The state level approach overall seems geared to reduce the attention the IAEA pays to “good states,” i.e. those for whom a broader conclusion has been reached, and instead focus the IAEA’s scrutiny on a list of “suspect states.” The means by which states get added to the “suspect” list would appear to be susceptible to a considerable degree of subjectivity and politicization. But once you’re on the naughty list, the IAEA will essentially assume your wrong intent and then follow up methodically on every possible way in which you might even potentially go about developing a nuclear weapon – even if there is no evidence that you are trying to do so or have ever tried to do so – and monitor those pathways constantly, requiring your complete cooperation with whatever invasive and subjectively determined processes and standards of investigation and assessment the BOG determines to be necessary in your specific case.

Can you imagine any of the NWS/P5 EVER consenting to such discriminatory, intrusive and subjective investigation and assessment standards being applied to them? Neither can I.

Marshall Islands Lawsuit in US Federal Court Update

Hat tip to Maya Brehm for sending me this link, which gives some updates on the RMI’s lawsuit against the US, in US federal court, which is a counterpart to its suit against the nine nuclear weapons possessing states in the ICJ. At the link, you can find the RMI’s lawyers’ submission in opposition to the government’s motion to dismiss. For the non-lawyers out there, it is typical for a defendant to make a motion to dismiss a case early on, in the hopes that the court will decide that the plaintiff’s suit is so lacking in merit, even on its face, that it should be dismissed so as not to waste the court’s, and the defendant’s, time. So that’s where the proceedings are at the moment, and if the government wins the motion to dismiss, the case is over.

I haven’t seen the government’s submission supporting its motion to dismiss, but you can make out from the RMI’s submission in opposition some of the issues that were raised by the government. And indeed, these and others were anticipated beforehand by observers.  US constitutional and federal courts law is by no means my specialty, but I think the biggest hurdles that have always existed for this case are:

1. Sovereign immunity – basically you can’t sue the federal government without either its explicit or implied consent. That’s federal courts 101.  Usually you find this consent in a statutory cause of action. But none exists here. I haven’t seen any arguments by the RMI’s legal team that persuasively overcome this hurdle. 

2. It looks like the RMI’s legal team are putting a lot of stock in their assertion that the NPT is a self-executing treaty. They obviously haven’t read the US Supreme Court’s 2008 Medellin case, which effectively created a presumption against treaty self-execution in US federal law. As I read Medellin, the NPT doesn’t even come close to the standard that the court will look for in order to find the treaty self-executing. And since there was never any implementing legislation for the NPT in the US, that avenue is foreclosed as well.

The US federal court aspect of the RMI’s cases has always struck me as strange, and the more I learn about it, the more ridiculous it seems. I strongly suspect that the court will grant the government’s motion to dismiss.

And from what I can see of the lawyering of the RMI’s US federal court legal team in this case, I stand by the concern I expressed here previously about the parallel effort in the ICJ. 

Some Reflections on the Point of it All

Sorry for the radio silence lately. I taught a short course at the University of New South Wales in Sydney a few weeks ago, and now classes have started back in here at Alabama.  Fortunately, Jean-Pascal has done some excellent posts in the interim.

I suppose I’ve also been doing a lot of thinking lately about my professional life – maybe I’m having a mid-career crisis. I probably am. The “what’s the point of it all?” type of questions.

I wonder at times if the costs and frustrations of doing this blog, and trying to engage with communities outside of the international law scholarly community, are producing enough utility and benefit to justify them.

It’s quite clear that the nonproliferation “expert” crowd in NGO’s and think tanks in the US is not interested in meaningfully engaging with me on issues of nuclear energy and nuclear nonproliferation law. They consistently circle their wagons and reference each other’s superficial and often erroneous legal analyses, in order to reassure themselves and others that my views are marginal and “in the minority,” so they don’t have to engage with them seriously.

That goes hand in hand with another problem – the lack of a robust field of international legal scholars working in arms control law. There are certainly some excellent people working in the field, and a number of them write for this blog. But compared to other specialized areas of international law, there are still very few of us. This means that there is not in this area the kind of healthy, collegial exchange of ideas and analysis, at a deep and rigorous scholarly level, through books and law journal articles, as there is in other areas of international law.  If there were, it would be easier to point to others in the scholarly community writing in this area, to provide support for serious international legal analysis of arms control law sources, which would hopefully help to convince the NGO types of the superficial and erroneous nature of so much of what they assume to be correct about nuclear nonproliferation law.

It’s tempting at times to just give up and go back to only writing books and articles that maybe a few other legal academics and students will read.  I do think that, in fact, writing quality scholarship that can be of use for the education of the next generation of not only international lawyers but also diplomats, is one of the most powerful ways that a legal academic can hope to contribute to the real world. And I think that is a fine meaning upon which to found one’s professional life.

Perhaps I’m just being overly pessimistic and morose. But it is hard to see the point of this endeavor sometimes.

On an only somewhat lighter note, Paul Pillar published a good op-ed in the National Interest yesterday, urging Americans to take a deep breath and view ISIS in perspective. I think he’s absolutely right, and I’ve been doing a lot of eye-rolling at the alarmist hype coming out of DC about how serious a threat ISIS is to the US, and how we definitely have to eradicate them now before they come for us. How many times have we heard that song?

US Allegations that Russia has Violated the INF Treaty

Many of you will have seen the reports that the US is alleging that Russia has violated the 1987 Intermediate Nuclear Forces treaty. This is certainly a subject ripe for analysis here at ACL, and I would invite members of the community to engage with it in the comments.

I found today a good piece on the technical and political aspects of the case. And Duncan Hollis has a nice preliminary piece on legal aspects over at Opinio Juris.

I guess to me this seems like a fairly minor treaty violation, if it is a violation at all. And I suspect that it wouldn’t be high on the US administration’s list were it not for the politics surrounding Russia and its Ukrainian adventurism of late. And of course Russia could always simply withdraw from the INF treaty, much as the US withdrew from the ABM treaty in 2003. So its hard for me to get too worked up about this issue.

Article on the ATT

I’m in Sydney, Australia for the next 10 days, teaching a short course at the University of New South Wales. The cool weather (it’s winter here, of course) is a nice break from the oppressive heat of the Alabama summer.

I did, however, come across an article on the Arms Trade Treaty recently in the Goettingen Journal of International Law, and wanted to share it. On first glance it looks like a very useful piece, outlining the features of the ATT and providing commentary. I haven’t read it closely yet. You can find it here. Maybe some of the conventional arms specialists in the ACL community can engage with it in the comments.

In other news, it’s certainly a messed up world out there. I’ve basically given up on trying to keep up with the various crises all over the place. It seems like most of the middle east and much of north africa is at war, or on the brink of it. The Iran nuclear negotiations broke off without a deal, though the parties have agreed to an extension of the interim agreement. I don’t know – as I read the tea leaves of the legislatures in both countries wanting more of a hand in shaping the negotiations, I’m starting to fear that, once again, an auspicious moment in the affairs of nations has been lost. The more time passes, the more likely it is that something, either of intention or circumstance, will derail the negotiations and prevent a deal. If that happens, it will be most unfortunate.