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.

Read the rest of this entry »

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.

David Koplow’s New Article on US CWC Noncompliance

David Koplow of Georgetown University Law Center has just recently published an article entitled Train Wreck: The U.S. Violation of the Chemical Weapons Convention in the Journal of National Security Law & Policy. See the full pdf of the article here.  David is a leading arms control law scholar who, in addition to his academic work, has had applied experience through several stints in high level government positions. These positions have included Special Counsel for Arms Control to the General Counsel of the Department of Defense (2009-2011); Deputy General Counsel for International Affairs at the Department of Defense (1997-1999); and Attorney-Advisor and Special Assistant to the Director of the U.S. Arms Control and Disarmament Agency (1978-1981).  He’s also a very generous colleague and a nice guy to boot. I haven’t convinced him to come onto ACL as a blogger . . . yet.  But he knows he has a standing invitation!

This new piece of David’s begins like this:

The United States is violating a multilateral arms control treaty. Russia is, too. It’s not just some minor accord at stake; it’s the 1993 Chemical Weapons Convention (CWC), the critical, near-universal undertaking to banish the centuries-old scourge of chemical warfare. And it’s not just some trivial misstep; it’s a blatant transgression of one of the treaty’s most fundamental provisions, requiring the timely destruction of the massive inventories of chemical weapons (CW) that the planet’s erstwhile superpowers had laboriously constructed and assiduously maintained throughout the Cold War. And it won’t be a near-miss; each country will stumble years beyond complying with the treaty’s April 29, 2012, final deadline for accomplishing the total dismantling of this noxious ordnance – the United States now figures to eclipse that mandatory mark by at least eleven years.

Now that is how you start a law review article! A great hook for readers. It continues:

How did we get into this mess? How did the United States, the leading exponent of the rule of law and a prime mover in negotiating and implementing the CWC, fall into such conspicuous violation? What can be done at this point to extricate ourselves and the Russians from this grisly political and legal predicament? And what can we do in the future to avoid other similar international law train wrecks? This article parses the problem of noncompliance with the CWC’s dismantling obligations as a case study in the operation (or non-operation) of international law.

As is typical of David’s work, this article is thorough and excellent. I recommend it highly.

Syria Update, and the Evolution of a Right of Counterproliferation-Oriented Preemptive Self-Defense?

Well I’ve been listening to the news about Syria just like everyone else has. Things appear to be getting more complex by the day now, with the allegations by Carla del Ponte that it’s the opposition that has used Sarin gas; and the recent Israeli missile strikes inside Syria, condemned by Syria, Turkey and Iran.  For the USG, knowing exactly what if anything to do about this huge political and security mess, and more importantly about the unfolding humanitarian tragedy for ordinary Syrians, has been difficult from the beginning.  It now resembles a Gordian Knot, and I don’t envy President Obama his choices.

I thought I’d write down some thoughts about the recent Israeli missile strikes against what Israel claims were sites containing long-range missiles in transit from Iran, through Syria, to Hezbollah in Lebanon, who would then likely have used them against Israel at some point in the future. I really can’t penetrate the question of whether this narrative of the facts is correct. Like the Syrian chemical weapons situation, it’s very difficult to know what the facts are and whose version of them to believe.

But for the moment, let’s assume arguendo that the Israeli narrative is correct, and these military strikes by Israel inside Syria have been targeting, successfully, missiles in transit from Iran to Hezbollah, and that these missiles likely would have been used against Israel at some point.  Turkey and others have said that these strikes by Israel are a violation of international law.  Are they right?

Readers of this blog will recall that I wrote about the previous Israeli strikes into Syria, conducted for this same avowed purpose, back in January. See that post here. In the comments to that post, and in some other posts and comments to them lately, I’ve written quite a bit about my views concerning both what the lex lata (current law) is on preemptive international uses of force for counterproliferation and other reasons, as well as my views about when and how governments might legitimately consider acting in disharmony with that law.  I wrote about the subject of counterproliferation-oriented preemptive self-defense from both a lex lata and lex ferenda (what the law should be) perspective in depth in an article in the George Washington International Law Review a few years ago.  Even since then I’d say my views have evolved, and are still evolving.

In terms of the lex lata, I think Turkey is almost certainly right to say that these strikes by Israel inside Syria are in violation of international law. I can’t think of a persuasive justification under current law for striking at missiles in a warehouse in another country, that might at some point make their way to someone who might then shoot them at you sometime in the future. I don’t think this is covered by the customary law on anticipatory self-defense – and that’s even if you’re among those states and scholars (a majority in my opinion) who recognize this right in customary international law. See my recent brief discussion with Jordan Paust on this subject in the comments to this post by Dapo Akande over at EJIL: Talk.

That being said, as I noted in my piece about a similar strike by Israel into Syria back in January, if I put myself into the shoes of an Israel defense official at this moment, knowing what they know about how very likely it is that these missiles would indeed end up in the hands of Hezbollah, and in fact eventually be shot at Israeli cities including Tel Aviv, I have a lot of sympathy and understanding for why they are doing exactly what they are doing. And I would probably do exactly the same thing – a targeted strike on where the missiles are being housed in Syria, which is in the midst of a civil war and largely lawless, before they can be transferred to Hezbollah, and the moment to destroy them is lost.

Now, one thing I don’t want to be trite about is the fact that in this instance it appears that more than forty Syrian soldiers were killed in this attack. If that’s true, then it’s very lamentable. This would form a part of the law of armed conflict analysis of this strike, which is of course legally separate from the use of force law analysis I’ve been discussing so far. We’d have to know more facts about the incident to know if it complied with the law of armed conflict’s rules concerning discrimination and proportionality. And let me be clear about one thing – even in cases where I think it would be legitimate, even if not lawful under the jus ad bellum, to engage in international military force, there are no facts that would in my opinion excuse a violation of the law of armed conflict.  So if these strikes violated the law of armed conflict rules on targeting, then they are unlawful and condemnable.

One more point I wanted to address, though, is the possibility that these strikes by Israel against sites in Syria, avowedly purposed in counterproliferation-oriented preemptive self-defense, might be contributing to the evolution in customary international law of a legal right to engage in such strikes. I know that these are contentious waters factually, but the legal principles here are well established. Customary international law can be created in areas like international use of force law, in which there are (thankfully) few data points, as long as there is state practice and opinio juris by acting states supporting the principle, along with general acquiescence by other states.  In this way, use of force law is not unlike, say, the law governing shooting satellites into orbit. In both contexts there are relatively few states who have the capability to engage in the relevant state practice. If, therefore, among those states that do engage in the relevant state practice, there emerges consistent practice establishing a certain rule, and if it is accompanied by opinio juris of the acting states and, crucially, by the general acquiescence of the rest of the international community, a new rule of customary law will come into being.

This is the point at which the facts become highly contested in the context of a right of counterproliferation-oriented preemptive self-defense.  Have there been sufficient examples of state practice establishing such a right? Has there been sufficient opinio juris expressed by those acting states? Has there been general acquiescence by the international community in the development of this rule? I expect that there are scholars who have written articles on this question – though I don’t know of any myself – engaging in a rigorous analysis of each question, using available empirical facts.  And if there aren’t, then someone definitely should write one!

My own impression, based only on me sitting here thinking about it, is that we are likely not quite there yet on a number of vectors, but that such a right is likely emerging as a principle of customary international law. When Israel attacked Osirak in 1981 there was general condemnation of this act in the international community, including in the Security Council. When Israel launched a similar targeted attack on the suspected nuclear reactor at Al Kibar in Syria in 2007, there was nowhere near that level of condemnation. And in fact I think the facts probably support general acquiescence in that instance. Now with these recent strikes in Syria, there are a few regional states that are condemning them, but I doubt we’ll see much more generalized condemnation. In fact, I suspect a lot of silence and general acquiescence on the matter, because I think, like me, most people can understand where Israel is coming from here.

Iraq 2003 is a special case, and I wrote about it extensively in my 2009 book.  It was, of course, not just a targeted counterproliferation strike.  It was a monstrous, boots on the ground, regime change debacle, that started off with a – completely false as it turned out – counterproliferation objective. I think that this huge difference in context explains a lot of the condemnation associated with Iraq – which, believe me, I share in 100%.

I’m not going to take the time here to go through the empirical record systematically, and do the whole analysis. I’ll just say again that, while I don’t think there is currently a right of counterproliferation-oriented preemptive self-defense in the international lex lata, I do think that such a right is likely evolving through limited, targeted, instances of state practice like those we’re currently seeing Israel engage in in Syria, and the overall acquiescence of the international community in those cases.

Egyptian Delegation Walks Out of NPT PrepCom Meeting Over Failure to Convene Middle East WMD Summit

I just read about this here.  Quite a surprising move, but I’m personally glad they did it.  I think it is time for action on this issue.  Although it is a bit quizzical as to why they didn’t coordinate with other Arab League states beforehand. Does this indeed show fracturing on strategy within the Arab League on this issue? I’m pretty sure there’s still consensus on principle.

Readers will recall I’ve written on the ME WMD FZ issue several times, most recently here.  I think that Egypt and the rest of the Arab league are perfectly justified in feeling that an important deal they made in 1995 has been broken by the West, and as Ambassador Badr was quoted as saying in the GSN piece: “We cannot continue to attend meetings and agree on outcomes that do not get implemented, yet be expected to abide by the concessions we gave for this outcome.”

I’ll just put in a couple of cents worth of thoughts on the underlying issues. As we all know, the whole ME WMD FZ issue is about Israel. The fact that Israel has nuclear weapons, and hasnt signed the NPT, nor will they even admit to having nuclear weapons. The Arab League is tired of the double standard of treatment that they receive from the West in the nuclear area, as compared to how Israel’s nuclear program is treated by the West. The ME WMD FZ project is a way to put the spotlight of the international community squarely on Israel’s nuclear weapons stockpile, and put Israel and its backer, the US, in the uncomfortable position of having to explain why Israel won’t come to the meeting and won’t meaningfully engage with the program.

As I’ve noted, I’ve recently been to Israel. I think that we can enhance our understanding of other nations’ policies and attitudes so much by putting ourselves, as much as possible, into their shoes and looking at the world from their perspective. It’s the failure of so many observers to be able to do this that narrows their ability to objectively analyze problems in international relations.

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.

I think that it would gall the Arab League states a whole lot less if Israel and the West would pull the reins in on the double standard they apply so publicly, and in international institutions such as the IAEA and the U.N. Security Council, as between Israel’s nuclear program and the nuclear programs of every other state in the region.  If the rhetoric and the policies of the US and the West generally weren’t so very prejudicial toward Middle Eastern states, with the glaring exception of Israel, when it comes to both peaceful nuclear technology trade and nonproliferation policy (going back to the Leveretts’ article I posted about earlier) it might well take much of the wind out of the sails of the ME WMD FZ movement, and contribute a lot to the general level of support for the NPT in the Middle East.