Is the IAEA Actually Starting to Listen and Apply Legal Standards More Correctly?!?

I was just reading over the new IAEA DG report on Iran, released today. It struck me that the first paragraph of the summary section, which has remained pretty much unchanged for a long time now, suddenly has been changed – only slightly but I think significantly.

First, here is the language of that paragraph from the past two DG reports, in May and August:

May 22, 2013

67. While 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 Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.

August 28, 2013

67. While 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 Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.

Now look at the report released today:

November 14, 2013

65. While 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, the Agency is not in a position to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.

See the difference? The new DG report dropped the phrase “as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol”.  I’m really not sure how to account for this difference.

As readers will know, I’ve written at length about the IAEA DG reports on Iran, and specifically how, in this first summary paragraph of those reports, the IAEA has utilized incorrect legal standards in making an assessment of Iran’s compliance with its safeguards obligations.  While this new formulation of the DG’s finding still refers to the agency’s inability to assess the absence of undeclared nuclear material (which it really shouldn’t, because according to Iran’s current safeguards obligations it’s not the IAEA’s job to assess this fact), nevertheless the removal of the indicated phrase does significantly change the tone of the sentence, from one which places the fault for this inability of the agency on Iran, to instead stating as a more neutral fact that the agency simply “is not in a position” to make this assessment.

Honestly, I think this is a big improvement, and I think it goes a long way towards rectifying the erroneous expression of legal standards that has been present in IAEA DG reports on Iran for some time now.  Because honestly, the DG report on MOST NNWS could say the exact same thing – even if they have both a CSA and an AP in place. Now, I know that the IAEA has in the case of some states reached a point of confidence about the absence of undeclared material, at which they are willing to reach a “broader conclusion” that all nuclear materials within the state are in peaceful use. However, according to the 2012 safeguards statement published by the IAEA, out of the 179 states that have safeguards agreements with the IAEA, the IAEA could only make this broader conclusion, including undeclared nuclear material, for 60 of those states. Meaning that there are currently 119 states, including Iran, about which the IAEA could make the exact same statement, verbatim, that it has made in this first summary paragraph of the November 14 safeguards report on Iran.  

I think this really helps to put Iran’s safeguards obligation compliance into its proper context. Iran is currently in compliance with its safeguards obligations with the IAEA. As with 118 other safeguarded states, the IAEA is simply not in a position to determine that there are unsafeguarded nuclear materials in Iran.

I think that this finding, when properly understood and contextualized, helps significantly to bring perspective to Iran’s standing with the IAEA, and with its international nuclear obligations.  

Robert Kelley Pretty Much Explains it All

Friend of ACL Bob Kelley, who is one of the most qualified people on the planet to discuss the technical aspects of nuclear energy and nuclear weapons programs, has given a couple of interviews to The Real News about the recent joint statement between Iran and the IAEA, the P5+1 talks, and a number of the most important issues and questions surrounding Iran’s nuclear program. The result is just a tremendous amount of clarity and information on these questions. I profited immensely from listening to him explain things. I HIGHLY encourage all readers to view these short but insightful interviews, which are accompanied by written transcripts, and to forward them on to a wider audience, because Bob really does address important current questions here and provides a lot of clarity. I also think Bob’s recommendation to Iran to voluntarily produce a full report on any past research on nuclear weapons makes a lot of sense, and would help take any remaining wind out of the sails of Iran’s detractors in the West and at the IAEA.

Here are the links to the two parts of the same interview:

http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=10995

http://therealnews.com/t2/index.php?option=com_content&task=view&id=31&Itemid=74&jumival=11000

Some Additional Observations on the IAEA/Iran Joint Statement

I was so glad to see that Pierre had posted some observations about the newly issued joint statement from Iran and the IAEA. I had been meaning to write something about this significant event, but hadn’t yet found time. Now I can just piggyback on Pierre’s piece and add a few of my own observations.

First, I think that this statement was clearly meant to be non-legally-binding, and is most correctly categorized as a memorandum of understanding between the parties, precisely as Pierre mentioned.  I actually see it as supplementary to the subsidiary arrangement agreement which Iran already has in place with the IAEA, and which covers precisely these sorts of details regarding access to sites inside Iran, in implementation of Iran’s comprehensive safeguards agreement with the IAEA.  I have argued elsewhere, and still maintain, that subsidiary arrangement agreements between the IAEA and NNWS are best understood as non-legally-binding agreements between the parties, stipulating agreed procedures for joint implementation of the rules and procedures contained in the CSA.

The only things in the new joint statement that I see as adding to what has already been agreed between Iran and the IAEA in their subsidiary arrangements agreement, are the specific points in the Annex about access to the Gchine mine and the Arak Heavy Water Production Plant (which I think is a separate facility from the Arak Heavy Water Reactor, still under construction). So these would appear to be steps forward.

I was pleased to see that nowhere in the joint statement was mentioned PMD-related issues generally, or the Parchin facility specifically. It would appear that both in these talks in Tehran, and also in the Geneva talks between Iran and the P5+1, Western powers and the IAEA made the prudent decision not to focus on these issues during negotiations, thereby avoiding the dynamic which seems to have been present so much in recent years of the tail of PMD issues, wagging the dog of a broader agreement on Iran’s nuclear program going forward.  I’ve written about the PMD issues and Parchin previously including here.  I sincerely hope that further negotiations similarly marginalize these red herring issues.

The Iran-IAEA Joint Statement on a Framework for Cooperation: A Way Out of the Impasse?

On 11 November 2013, while the (overall successful) negotiations in Geneva between the P-5+1 and Iran had been postponed for a few days, direct talks in Tehran between the International Atomic Energy Agency and Iran proved fruitful. In Geneva, according to open source information, many differences have been solved and only minor gaps remain, and it appears that the main reason why an agreement has not been finalized during this round of negotiation lies in the fact that the position of the P-5+1 was not united, since the French delegation has adopted a ‘hard’ stance. At the same time, in Tehran IAEA DG Yukiya Amano and Mr. Ali Akbar Salehi, Vice-President of the Islamic Republic of Iran and President of the Atomic Energy Organization of Iran, signed a ‘Joint Statement on a Framework for Cooperation’. The document states that both parties have agreed ‘to strengthen their cooperation and dialogue aimed at ensuring the exclusively peaceful nature of Iran’s nuclear programme through the resolution of all outstanding issues that have not already been resolved by the IAEA’.

At first reading, the following observations may be made regarding this Joint Statement:

1. The ‘Framework for Cooperation’ reminds to some extent the ‘Work Plan’ that was agreed between the IAEA and Iran in August 2007, under which Iran pledged to provide over the course of the next few months, answers to questions from the Agency, as well as clarifications and access to information, regarding remaining ‘outstanding issues’ on its nuclear programme. The Framework appears less detailed at this stage than the Work Plan, but this may be explained by the fact that it is understood as a ‘first step’, during which Iran and the IAEA agree to implement a handful of ‘practical measures’ listed in an Annex (entitled ‘Initial Practical Measures to be Taken by Iran Within Three Months’) to the Joint Statement.

2. What is the legal nature of the Joint Statement and of the Framework it embodies? It may be observed at first sight that the Joint Statement matches prima facie the definition of a treaty contained in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Article 2(1)(a) of  the 1986 Vienna Convention defines a treaty as ‘an international agreement governed by international law and concluded in written form […] between one or more States and one or more international organizations. The Joint Statement is indeed an international agreement, and it has been concluded in ‘written form’. It is less certain that the Joint Statement be ‘governed by international law’, since this criterion refers to the presence of an intention of the parties to create obligations under international law (as opposed to mere mutual understandings regarding their behaviour). Indeed, it may be reasonably argued that given the terms chosen by the negotiating parties (‘[…] Iran and the IAEA will cooperate further with respect to verification activities to be undertaken by the IAEA to resolve all present and past issues. It is foreseen that Iran’s cooperation will include providing the IAEA with timely information about its nuclear facilities and in regard to the implementation of transparency measures […] – emphasis added), the Joint Statement is more of a nature of a preliminary agreement, a kind of Memorandum of Understanding (MoU), and as such that its binding force is debatable. It may also be viewed as a mere Confidence-Building Measure (CBM), and as such voluntary and non-binding in nature. Given the unclear legal nature of the Joint Statement, it is unclear what would be the legal consequences of the non-fulfillment of an undertaking assumed under the Joint Statement. It is significant that in terms of implementation and ‘compliance’, the document merely provides that the IAEA ‘will report to the Board of Governors on progress in the implementation of these measures’, without further elaborating on the follow-up process.

3. Be it as it may, it appears that the Joint Statement is an important step forward, as well as a significant sign of goodwill by Iran, since the undertakings by Iran under the Joint Statement and its Annex go well beyond the obligations of Iran under its 1974 Safeguards Agreement with the IAEA, and that in some respects (i.e. in terms of the provision of ‘advance’ information on contemplated new nuclear installations) they are (as far as it appears from the wording of the Annex) even broader in scope than those that a country is supposed to assume under an Additional Protocol (AP). However, Iran’s Safeguards Agreement cannot be deemed per se superseded by the Joint Statement. On the contrary, it is to be assumed that the Safeguards Agreement is applicable to the Joint Statement mutatis mutandis, or in other words that the Joint Statement is to be read in conjunction with the Safeguards Agreement, in particular as regards procedures and conditions of cooperation.

4. It may be reminded that the 2007 Work Plan had been satisfactorily implemented by Iran, which led the IAEA to issue a report in February 2008 stating it had been able to conclude that answers provided by Iran, in accordance with the work plan, were either ‘consistent with its findings’ or ‘not inconsistent’ with its own findings. As a consequence, the only remaining issue, according to the 2008 report, was ‘the alleged studies on the green salt project, high explosives testing and the missile re-entry vehicle’. This latter issue had not been considered as one of the ‘outstanding issues’ that the Work Plan was supposed to clarify, but it subsequently unfolded in such a way as to become the focus of the IAEA’s ‘concerns’, with important negative consequences such as the imposition of additional unilateral economic measures against Iran by some countries (whose doubtful legality I examined here, here and here). By the way it shall be reminded that one reason (maybe the main reason) why the issue of ‘alleged studies’ (now termed ‘Possible Military Dimension’) was not resolved since 2008 lies in the fact that the countries which provided the information to the IAEA did not accept that it be transferred to Iran, contrary to the relevant provision of the Work Plan (see para. III).

It is now to be hoped that, if supplemented in due course by technical and administrative understandings satisfactory to both parties and correctly applied, the Framework for Cooperation that the Joint Statement contemplates shall in turn address substantively all remaining ‘concerns’ expressed by the IAEA in its latest reports, and pave the way for the Iranian nuclear file to come back from the Security Council to a ‘routine’ IAEA scrutiny.

Scope, Meaning and Juridical Implication of the NPT Article IV(1) Inalienable Right

Interpreting the Nuclear Nonproliferation Treaty Pages 79-84

Friends of ACL Flynt and Hillary Leverett Recently posted a piece on their excellent blog entitled “America’s Lead Iran Negotiator Misrepresents U.S. Policy (and International Law) to Congress.”  Their post is both troubling in its observation of official statements by US officials, and insightful regarding international law. The piece is here, and I recommend it highly.

Flynt and Hillary were kind enough to mention my work approvingly in this post, for which I’m grateful. They mention it particularly in the context of the interpretation of the NPT Article IV(1) right to peaceful nuclear energy. This is indeed something I’ve written about at length already. I’ll insert into this post the text from pages 79-84 of my 2011 book Interpreting the Nuclear Nonproliferation Treaty on this subject. As you’ll see, when I’ve written about this topic, I’ve interpreted it as a full, free-standing right of all NNWS party to the treaty, and not as a contingent right, contrary to the interpretation of some NWS states.

The question of the scope of this right is one that continues to be debated. I have looked to the Lotus principle in international law (see the excerpt from my book) to show that the lawfulness of NNWS’, and in fact all states’, indigenous nuclear fuel cycle activities can be shown to derive from the absence of any prohibition of these activities in international law. This observation will, I have argued, serve to legally justify the full nuclear fuel cycle of activities within a NNWS, subject only to the positive requirements of Articles II and III of the NPT – i.e. no manufacture of nuclear explosive devices, and the conclusion of a safeguards agreement with the IAEA.

The question of just what exactly is the nature and scope of the right recognized in Article IV(1) of the NPT, and what are its juridical implications (e.g. in tension with the UN Security Council’s order in Resolution 1696 for Iran to cease uranium enrichment), is a subject that I have been thinking/researching about recently, and which was to be the subject of the “think piece” that I was invited to submit to the Melbourne Journal of International Law. Readers will know how that turned out.  I also broached it toward the end of my article last year in the Georgetown Journal of International Law (see the article here).  In any event, I am now working with Marco Roscini and others to publish a set of papers on the subject of the rights of states in international law, that will include an in-depth analysis of these questions. I’m also planning, in the next few days, to publish a piece on this subject elsewhere online, which I will copy here.

These questions actually raise some very deep issues of international law, and analyzing them properly requires serious work, some of which I did in my aborted Melbourne Journal piece. I will plan to publish this work in the papers Marco and I are working on, and in a more applied way in my new book on Iran’s Nuclear Program and International Law.

But let me say this here. Article IV(1) of the NPT states that “Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.”  In my view, the recognition by over 190 states parties to the NPT that all states have such an inalienable right, which I interpret to include all elements of the full nuclear fuel cycle including uranium enrichment, strongly suggests that the right to peaceful nuclear energy research, production and use is one of the fundamental rights of states in international law. In my view, both fundamental and acquired rights of states should be understood to create in third parties, both states and international organizations, a legal obligation to respect those rights. This means that other states and international organizations are under an international legal obligation not to act in serious prejudice of states’ rights. In the case of fundamental rights, this reciprocal obligation is of a jus cogens order, meaning that all states and international organizations are under a jus cogens order legal obligation not to act to seriously prejudice the fundamental rights of other states. When states or international organization do act in serious prejudice of a state’s fundamental rights, that action is an internationally wrongful act, and implicates the international responsibility of the acting state or international organization.

According to this analysis, UN Security Council Resolution 1696, which commands Iran to cease uranium enrichment, constitutes a violation of international law, at least as to this particular command, and is void of legal effect (See Article 25 of the UN Charter).

Note that the often heard rebuttal to this argument, which references Article 103 of the UN Charter, is in fact erroneous and inapplicable. Article 103 of the UN Charter provides that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.”  My analysis, which is based on the recognition of a fundamental right of states in international law, and the juridical implication of an obligation in other states and international organizations to respect that right,  is unaffected and unanswered by this provision, which merely recognizes that in the case of a conflict between UN member states’ international legal obligations under the Charter, and their obligations deriving from other sources, the Charter obligations trump.  It does not speak to the legal obligations of the Security Council as an organ of an international organization. Nor does it speak at all to conflicts between the obligations of the UN Charter, and the rights of states in international law. So again, Article 103 of the UN Charter is inapposite and inapplicable to this question.

Research Assistants for my New Book Project

As I am now working on my new book on Iran in earnest, I will be looking for some able research assistance. I already have one research assistant here at Alabama, hard at work. But there are a couple of chapters in the book that would be significantly aided in their progress through the efforts of a small team of researchers assisting me, for example, in compiling case studies of noncompliance with IAEA safeguards, and information on the sanctions program on Iran.

I have in mind for this role graduate level students or young researchers, who are interested in international nuclear law.

If anyone out in reader land would be interested in joining this small team of research assistants, please email me directly at djoyner@law.ua.edu   I would ask colleagues to please send this request for interest to students and student listserves you know of, where interested students may view it.  

In return for the effort of research assistants, I can offer complimentary mention in the acknowledgments section of the book, letters of recommendation if desired, and my appreciation.

Thanks to all in advance.

Nuclear Chickens Come Home to Roost in South Asia

I was just reading this new report about an agreement between Pakistan and China, under which China will provide two new nuclear reactors to Pakistan over the next few years. China argues that such cooperation with Pakistan is “grandfathered in” to China’s accession to the NSG in 2004. But the other very clear undercurrent of this deal is China’s sense of freedom to act in a way that is arguably in disharmony with NSG standards, because of the 2005 U.S.-India Civil Nuclear Agreement, for which the US received a waiver from the NSG.

Critics, including myself, have decried the US-India deal as representing a hugely significant undermining of the spirit of the NPT. India, like Pakistan, possesses nuclear weapons and is not a member of the NPT.  The US-India nuclear cooperation deal effectively gives to India, which developed nuclear weapons outside the NPT, the same benefits of civilian nuclear cooperation that every Non-nuclear Weapon State member understood they had to sign the NPT, and forego a nuclear weapons program, to secure from the US and other supplier states. Giving this cooperation to India without India’s similar commitment to forego a nuclear weapons program, goes right to the heart of the grand bargain of the NPT, and makes NPT NNWS question what they are really getting in return for their NPT commitments.

Having signed this agreement with India, the US now has very little moral high ground on which to stand to criticize China’s civilian nuclear cooperation with Pakistan. China knows this, and knows that this fact will insulate it from any meaningful criticism or compliance pressure with regard to NSG rules.

New Paper by Mark Hibbs on the Vietnam/US 123 Agreement

This is an excellent new paper by Mark Hibbs on the recent signing of a 123 agreement between the US and Vietnam.  As Mark explains, this new 123 agreement includes a political understanding that Vietnam will not pursue enrichment or reprocessing activities (ENR), but does not make this understanding a legally binding obligation. Mark argues that the US policy of flexibility in approaching the negotiation of new 123 agreements, and not requiring what has come to be known as the “gold standard” of a legally binding obligation not to pursue ENR activities, is prudent and should continue. I am in complete agreement with Mark on this point, for the reasons he well explains.  Mark has long been one of the most sensible commentators on this issue.

VERTIC Paper on the IAEA GC Safeguards Resolution

This paper by Sonia Drobysz and Hassan Elbahtimy of VERTIC is the best review and analysis of the IAEA General Conference deliberations, and ultimate action, on the annual safeguards resolution last month that I’ve seen. I recommend it highly. It explains the concerns that many states have about the IAEA DG’s new state level concept for safeguards.  I have given my own analysis of the most recent IAEA DG state level concept report previously here, which includes these same concerns. I’m glad to see that these concerns persuaded so many states to object to inclusion of language regarding the state level concept in the safeguards resolution.

Nuclear Weapons Bibliography

Nuclear Weapons bibliography

I wanted to bring readers’ attention to the attached nuclear weapons bibliography, compiled by friend of ACL Patrick O’Donnell, who is an adjunct faculty member of the Philosophy Department at Santa Barbara City College, and who blogs over at Ratio Juris.  The bibliography is a really useful compilation of publications on “Development, Detonation, Deterrence & Disarmament” as it says. Thanks to Patrick for forwarding it.