JCPOA First Thoughts

Like everyone who reads this blog, I’ve been glued to the news, Twitter, and email today, watching developments unfold in the announcement of a Joint Comprehensive Plan of Action between the P5+1 and Iran. This is a historic development and one that I very much welcome.  Much will be said here and elsewhere in the coming days about this framework agreement, and the process moving forward, but I wanted to share a few first thoughts today.

1. It is vitally important to understand that only the statement that was read in full by EU High Representative Federica Mogherini and Iranian Foreign Minister Javad Zarif, the text of which you can see here, represents an agreed statement by the P5+1 and Iran. The “Fact Sheet” that is being widely circulated and commented on by the media, is only a U.S. White House statement of facts, and was NOT AGREED TO BY IRAN OR ANY OF THE OTHER NEGOTIATING PARTIES.  It is a unilateral U.S. interpretation of the facts and nothing more. So it should not be treated as a correct representation of the points of agreement between the parties.

2. Within the U.S. White House statement of facts, I think that the following paragraphs are least likely to represent what will actually be agreed to over the coming months by Iran:

Iran will be required to grant access to the IAEA to investigate suspicious sites or
allegations of a covert enrichment facility, conversion facility, centrifuge production
facility, or yellowcake production facility anywhere in the country . . .

Iran will implement an agreed set of measures to address the IAEA’s concerns regarding
the Possible Military Dimensions (PMD) of its program.

I cannot see the final June comprehensive agreement including either of these provisions, at least not in any proximity to the way they are written here. For one thing, the word “suspicious” will not, I guarantee you, be a part of any language to which Iran agrees. I also think, more importantly, that the PMD issue will have to be agreed in much more detail and nuance in the months to come. I personally cannot see the Iranians agreeing to a provision that makes the entire deal hinge on the IAEA’s satisfaction in resolving its concerns over the PMD claims. As one friend put it today, that would be a poison pill for the whole agreement. So I would look for this issue to either be left out of a final agreement in June, or handled in a much different way than stated here.

3. Overall I think the framework of agreement is a very good one. Iran definitely made some very significant concessions. In fact, one might be forgiven for thinking that, with all of the specificity placed on Iranian concessions, and really only fairly vague wording on the lifting of unilateral and multilateral sanctions (i.e. regarding timing) in the joint statement, Iran showed the most diplomatic courage in agreeing to this framework. I’m sure there is much that was agreed to that we don’t know about, and I have no doubt that Zarif and his team reached a satisfactory understanding with their negotiating partners on the sanctions question from their perspective. But I suppose I just wanted to highlight that Iran is the party that made the most obvious significant concessions in this framework agreement, and I think that they should be congratulated and respected for this. Though I have zero confidence that the right wing of American politics will see it that way.

UPDATE: This appears to be the Iranian Foreign Ministry’s “fact sheet,” analogous to the one released by the White House.

UPDATE to the UPDATE: Actually, it now appears that that was not an official Iranian fact sheet. Ariane Tabatabai explains here.

Conference Report from IAI Conference on Coercive Diplomacy, Sanctions and International Law

I just received today a link to a very fine conference report of the excellent conference on coercive diplomacy, sanctions and international law in which both I and Marco Roscini participated last month at the Instituto Affari Internationali in Rome. This conference report is remarkably thorough, providing an excellent summary of the presentations, including mine beginning on pg. 24.  I’m currently revising my paper, which will be published along with the other conference papers in a volume under contract with Brill.

I again wish to thank my friends at the IAI for including me in this very successful conference. In particular, Professor Natalino Ronzitti, Nicoletta Pirozzi, and Elisabetta Farroni.

LA Times Reports the IAEA is Unlawfully Sharing Safeguards Information with the U.S. Government

I saw this story in the LA Times from yesterday, entitled “Top-Secret U.S. Replica of Iran Nuclear Sites Key to Weapons Deal.” After talking with friends, the paragraph that strikes me most in this story is this one, with my added emphasis:

U.S. officials won’t comment on the classified research, which is being conducted at an undisclosed location in the United States. But former officials and private analysts say American agencies have constructed models of the Iranian facilities, relying on informants in Iran, information from foreign governments and voluminous data about Iran’s program collected by the International Atomic Energy Agency, or IAEA, the United Nations’ nuclear watchdog.

So to cut to the chase, this new replica enrichment facility – which I can’t help thinking of as a Madurodam for US nuclear engineers (“Bill, look at the little Iranian nuclear scientist, he’s going into the centrifuge hall. And look, there’s a little Mossad figure on a motorcycle outside, waiting to kill him when he goes home from work.”). Ok, that got too tangential and too weird to continue. Let’s start that sentence again.

So to cut to the chase, this new replica enrichment facility that the US has built, was based inter alia on “voluminous data” that the US obtained from the IAEA. What?!? But Article 5(b) of the Iran’s comprehensive safeguards agreement with the IAEA provides that:

The Agency shall not publish or communicate to any State, organization or person any information obtained by it in connection with the implementation of this Agreement . . .

So how did the US government get this “voluminous data” from the IAEA? And isn’t it not OK that this happened?

This isn’t the first time that concerns have been raised about the IAEA’s inability to keep confidential information obtained through safeguards implementation in Iran. Iranian officials have complained of exactly this sort of thing happening before. And, coincidentally, the IAEA just today released a statement by Iran communicated to the agency, which on page 3 contains an entire section devoted to expressing Iran’s concerns about the IAEA’s  inability to keep information gained through safeguards implementation confidential.

But while it isn’t the first time these concerns have been raised by Iran, it is the first time I know of that a major news outlet has reported this inappropriate information sharing by the IAEA as a fact.

If what the LA Times has reported is accurate, then it’s hard to see how this isn’t a serious violation by the IAEA of its safeguards agreement with Iran. Maybe there are other explanations for how the US government got this information from the IAEA, that don’t involve bad faith by the IAEA. I don’t know. But I can’t think of any off the top of my head.

Suspicions of arms control inspection agencies being used as tools of Western espionage are not new. Allegations of this type are basically what killed UNSCOM, the first incarnation of the UN’s arms control inspection agency in Iraq after the first gulf war.

It is an absolute imperative for the IAEA to be seen as above reproach when it comes to its ability to keep confidential information obtained through safeguards implementation. If it is not so perceived, its credibility as an independent monitoring and verification body, and its effectiveness in performing this role, will be seriously undermined.

Yousaf Butt on NYT Reporting on Iran

Just wanted to pass along that friend of ACL Dr. Yousaf Butt has published a very good new piece over at The Hill, in which he takes NYT reporters David Sanger and William Broad to task for their reporting on Iran’s nuclear program. The piece is titled “The Obsession with Discredited Allegations about Iran’s Past Nuclear Work.”

I do think that this is an important subject, and I’ve noticed too that media reports about the issue of allegations made by the IAEA and the West about possible past military dimensions to Iran’s nuclear program, often express these allegations as being presumptively well supported factually, when as Yousaf and others have long argued, there are a lot of problems with these allegations.

I also think Yousaf and others have made an important point on the subject of Iran’s interactions with the IAEA, which is that the IAEA has often complained about unsatisfactory answers on Iran’s part in response to questions about these allegations, when in most instances Iran’s answer has been that the documents procured by the IAEA on which these allegations are based are fraudulent. Now, that’s only an unsatisfactory answer if an independent review has been made in some kind of credible way about the documents, and they have been found to be credible. That has not happened in this case.

To a lawyer’s mind, it’s instinctively similar to a criminal trial wherein prosecutors want to introduce evidence into the record, but won’t let the defense either see or challenge the evidence, and rather demand that the evidence be accepted categorically as credible on the prosecutor’s say-so alone, and that the defense be compelled to explain the meaning of the evidence, with a presumption that the defendant bears the burden of explaining it to the prosecutor’s satisfaction.

Obviously, that’s not how it works. The defense gets a chance to both see and challenge the evidence, and only then can the independent finder of fact have any reasonable chance of determining what to believe about the guilt or innocence of the accused.

Pincus: Israel Blazed the Trail for Iran in Developing a Nuclear Program

This article by Walter Pincus in the Washington Post is a must-read.  It’s a very timely takedown of Netanyahu’s criticism of Iran in his speech to Congress last week. Basically, Pincus calls Netanyahu out as a hypocrite, on the basis that Israel has in the past been guilty of much of what Netanyahu now argues Iran is doing.

This isn’t new information or anything, but I respect Pincus for having the guts to say it so directly.

Frankly, this narrative is exactly what I’m thinking of when I go to conferences and hear Israeli officials criticizing Iran for its deceitful, clandestine, and evil development of nuclear weapons. I’ve written about this before here.

Operation Merlin: A Violation of NPT Article I by the U.S.

Iran Statement in BoG March 2015

The other day I was reading over Iran’s most recent statement to the IAEA Board of Governors (see it at the above link), which is itself a response to the IAEA’s most recent report on Iran’s nuclear program.  In Ambassador Najafi’s statement, I was struck by the following section:

A small portion of the report, as usual and unfortunately, is the reappearance of the baseless past allegations on which our position is well known. The repetition of such unfounded accusations would not add to their value.
Indeed a recent revelation on manipulation of the evidences on the so-called “possible military dimension” testifies to the correctness of Iran’s statement and proves that all information and documents provided to the Agency on this issue are fabricated. This evidence manufacturing machine case and declassified documents submitted to the court of a member State is now a very new decisive element on the resolution of the so-called PMD issues without which the final
assessment is impossible. All of documents including the “NUCLEAR WEAPONS BLUEPRINTS” presumably intended to emplace in Iran, though never reached its destination, must be provided to the Agency for further examination. In addition, access to all personnel involved in manufacturing artificial evidences against Iran, particularly
interview with recruited foreign nuclear engineer on “Operation Merlin”, must be provided to the Agency.
Since sending the blueprints of nuclear weapons, though flawed, by one IAEA member to any other member is a serious matter, we expect the Agency request the sending country to provide explanations as well as original blueprints to the inspectors for further examination.
In our view, from now on, PMD should stand for Predominantly Manufactured Dimension.

Readers will recall that I wrote a post last week on the most recent developments in the legal case against Jeffrey Sterling, a former CIA officer who has now been convicted of having leaked details about Operation Merlin, to which Ambassador Najafi referred by name in his statement, to journalist James Risen.

Again, you can look up the details about Operation Merlin in lots of places. One good brief excerpt from Risen’s book on the operation can be found in this Guardian article. The basic gist is that back in 2000, the CIA hired a former Russian nuclear scientist to pass along to Iranian officials – specifically the Iranian representative to the IAEA in Vienna – blueprints for a critical element of a nuclear weapons design, that were complete and accurate except for at least one intentionally included technical flaw.  The idea was that the Iranians would accept these blueprints gladly, and follow them to the letter in their attempts to construct a nuclear weapon. The CIA’s assessment was that the Russian-origin design information they were providing Iran was significantly advanced in comparison to anything Iran had or could otherwise procure through open sources at the time. So, went the theory, the Iranians would take the bait and create a nuclear weapon along the lines of the design being provided to them in the flawed blueprints, but would ultimately be disappointed and embarrassed when the device they created thereby was tested and proved to be a dud. Furthermore, according to the plan, Iran would have by that point invested time and resources in the decoy project, that could otherwise have been invested in more potentially successful avenues toward creating a bomb, and so the operation would have succeeded in imposing an opportunity cost on Iran, and in delaying their success in acquiring a functioning nuclear weapon.

As Risen reports, the plan went pear-shaped when the Russian scientist courier discovered the technical flaw, and warned the Iranians about it through a letter enclosed with the blueprints.

Operation Merlin is now generally considered to have been an ill-advised (read boneheaded) idea, and isn’t something the CIA is proud of. In fact, in the worst case scenario of its consequences, the weapons design provided to Iran by the CIA might actually have helped Iran in its development of a nuclear weapons manufacturing capability. As Risen observes in the Guardian excerpt:

Iran has spent nearly 20 years trying to develop nuclear weapons, and in the process has created a strong base of sophisticated scientists knowledgeable enough to spot flaws in nuclear blueprints. Tehran also obtained nuclear blueprints from the network of Pakistani scientist Abdul Qadeer Khan, and so already had workable blueprints against which to compare the designs obtained from the CIA. Nuclear experts say that they would thus be able to extract valuable information from the blueprints while ignoring the flaws.

In a Bloomberg piece last week, Jonathan Tirone also reported that, due to the revelations about Operation Merlin that have been made in the context of the Sterling case, the information the IAEA has received over the last decade from third party states, including the U.S., regarding Iran’s nuclear program, and specifically regarding allegations of military dimensions to Iran’s nuclear program, will now likely have to be reviewed by the IAEA.

So, not the CIA’s finest hour.

But going back to Ambassador Najafi’s recent statement to the BOG, he says that the providing of nuclear weapons blueprints by one IAEA member state to another, even if flawed, is a serious matter, and he requests that the IAEA investigate the case further. This phrasing got me to thinking. He is right, after all, that this is exactly what happened. A NPT NWS party (the US) did intentionally provide nuclear weapons design information to a NPT NNWS party (Iran). There were intentional flaws in the designs, yes. But again, the whole idea was that these designs overall were more advanced than anything Iran had or could otherwise get. That was the intended bait. And indeed, Risen quotes unnamed experts who assessed that Iran likely would have been able to derive useful information from these blueprints, even with the flaws. I’ve heard this same assessment anecdotally from other people with nuclear weapons knowledge.

So notwithstanding an alternate specific intent, we have here a case of a NPT NWS voluntarily providing information to a NPT NNWS that, one can infer, assisted or is likely to in fact have assisted that NNWS in its understanding of how to manufacture a nuclear weapon.

Now let’s go back and read NPT Article I, paying particular attention to the italicized (by me) text:

Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.

Don’t we have here a pretty solid case for a violation of NPT Article I by the US?  Doubtless the rebuttal would be that there was no intent to assist Iran in its weaponization understanding, and that any assistance provided was accidental.  But the law of state responsibility for internationally wrongful acts does not include a mens rea, or mental requirement, as would be required in either domestic or international criminal law.  Nor does it require a particular failure to uphold a burden of care (i.e. negligent or reckless behavior), as common lawyers are used to finding in tort law (even though I would say that there was a reasonable foreseeability here that giving nuclear weapons blueprints to Iran might indeed assist them). Rather, the International Law Commission’s draft articles on state responsibility are based on the principle of objective liability, without a particular requirement of fault.  As stated in Article 12:

There is a breach of an international obligation by a State when an act of that State is not in conformity with what is required of it by that obligation, regardless of its origin or character.

New Interview of Bob Kelley on Recent Events Including Operation Merlin Developments

Once again, Bob explains recent developments, and puts things in context, better than anyone. See the interview here.

Peter Jenkins wrote a great piece on Lobelog making several of these points this past week. See it here.

And Jonathan Tirone wrote a piece on Bloomberg about the implications of the Operation Merlin revelations for IAEA intelligence assessment, with a quote from me here.

You can Google information about Operation Merlin. It’s been known about for a long time, since James Risen’s 2006 book State of War. It has all come to the fore again recently with the espionage conviction last week of Jeffrey Sterling, for having been the source of leaks on the program from the CIA.

As I said in the Reuters piece, this incident does significantly undermine the idea that the IAEA should be relying for its assessments on intelligence information provided to it by third-party states, some of whom have proven that they have no compunction about falsifying documents, ambush-killing civilian nuclear scientists, using cyber attacks against civilian facilities, and generally doing anything within their power, including all manner of subterfuge, to frustrate Iran’s nuclear program.  And as Bob says in his interview, the IAEA is not itself an intelligence agency. It does not have the capability to independently assess the credibility of intelligence provided to it by third party states.  I’ll be writing more about this in my forthcoming book.

Catching Up and Michal Onderco’s Work

I know the blog has been a bit quiet of late. I don’t have much of an excuse – I’m not teaching this semester. But I am trying to devote all the time I can to writing my new book on Iran’s nuclear program and international law. I hope to have it done in August.

I’m also working, with Marco Roscini and others, on a special issue of the Cambridge Journal of International & Comparative Law on the topic of the rights of states in international law. This is a topic that Marco and I have been thinking about for a long time and that, for me, derives from my thinking over the years about what to make of the “inalienable right” language in NPT Article IV.

I just got back on Saturday from an excellent conference in Rome, organized by Professor Natalino Ronizitti and the Instituto Affari Internazionale, on coercive economic sanctions and international law. A great group of speakers.

On Monday, then, I met with Michal Onderco here in Tuscaloosa.  Michal is currently a Max Weber Fellow at the EUI in Florence (bio here).  He works at the intersection of international relations theory and international law. We talked about his current work on nonproliferation topics, and I wanted to pass along to readers one of his previous articles published in International Studies Quarterly, entitled “Accommodation or Confrontation? Explaining Differences in Policies Toward Iran.”  I found the paper’s focus on different states’ “cultures of dealing with deviance” to be particularly parsimonious and powerful. Here’s a link to the paper:  Onderco Accomodation or Confrontation

In general, I’m trying to keep up like everyone else is with the ongoing negotiations between Iran and the P5+1.  Seems a bit like a soap opera sometimes. Some days Joanie seems to love Chachi, and everything seems set for them to get married. Other days Joanie’s relatives start screaming that the pair shouldn’t get married, and Joanie has to keep them from spoiling things.  The next day its Chachi’s family screaming.  I suppose we won’t really know anything until the wedding date comes.

With Russia/US relations in the tank over Ukraine, a number of important developments concerning arms control law have recently occurred in that bilateral relationship. Russian termination of the longstanding and successful cooperative threat reduction program is perhaps the most noteworthy of these.

And of course the 2015 NPT Review Conference kicks off at UN Headquarters in New York on April 27th. Hard to predict what’s going to happen there. Alot of bad feelings in the Arab world about the failure to hold a Middle East WMD Free Zone conference, as was promised in the 2010 NPT RevCon Final Document. Difficult to predict what impact that will have on whether a final document will be agreed, and if so what will be in it. More on that issue to come.

Events on International Sanctions in London

I wanted to draw the attention of readers of this blog to two events on international sanctions which will be held by the London Centre of International Law Practice (LCILP) in London in March 2015.

The first is a two-day training workshop on International Sanctions in Practice: Legal and Business Implications (17-18 March 2015), which will address the whole range of legal and business issues raised by the implementation of international sanctions regimes, from coercive measures enacted by the UN Security Council and regional organisations, to ‘unilateral sanctions’ implemented by individual States, as well as comprehensive and sector-specific embargoes and ‘targeted’ measures against listed entities and individuals.

Drawing on case studies of various sanctions regimes currently in force, it will also focus on the multiple dimensions of growing legal challenges to sanctions brought before domestic and international courts and tribunals, or under other mechanisms.

The second event is a one-day conference on International Sanctions: Legal, Policy and Business Challenges (19 March 2015), co-sponsored by the International Law Association Study Group on UN Sanctions and International Law and the Grotius Centre for International Legal Studies at Leiden University. It will bring together some of the most prominent experts on International Sanctions to argue on issues raised by sanctions in terms of international responsibility, human rights, available remedies, and impact on cross-border trade and investment, amongst others.

The discussion and findings of this conference will also be used to further shape the agenda of the International Law Association Study Group on UN Sanctions and International Law and to inform its work.

We look forward to meeting you in London in March!