Additional Protocol Negotiating History

A friend recently brought to my attention a three volume treatment of the negotiating history of the IAEA Additional Protocol:
Volume I: http://www.bnl.gov/isd/documents/71012.pdf

Volume II: http://www.bnl.gov/isd/documents/71014.pdf

Volume III: http://www.bnl.gov/isd/documents/71015.pdf

The report was published in 2010 and authored by a group from Brookhaven Science Associates, which has close ties to the U.S. national laboratories. I haven’t read the whole thing, but what I have read looks very good. What I like most about it is that it seems to actually be descriptive of what the various parties to the negotiations of the AP said and did during the negotiations. Some works that purport to be negotiating histories are really just the opinions of one party to the negotiations.

For example, on the issue of the IAEA’s authority to investigate and assess the question of whether undeclared fissile materials exist in a safeguarded state that is a party only to the INFCIRC/153 CSA – an issue that I have debated with former IAEA head safeguards lawyer Laura Rockwood – compare the treatment of this question in a source that she cites to in her piece, which you can find here at pgs. 33-43, with Volume II of the Brookhaven Additional Protocol study here at pgs. 6-11.

Do you see the difference? In the treatment that Laura cites to, there is very little if any discussion of what states other than the US thought about the question when negotiating INFCIRC/153. While in the Brookhaven AP study, they take pains to consider statements from a wide array of negotiating parties on essentially the same question which had been brought up again in the context of the negotiation of INFCIRC/540. This makes the Brookhaven AP study, at least on this point, a much more credible representation of negotiating history on this subject, in my opinion.

I would encourage readers (and Laura if she’s reading) to look at pgs. 6-11 of Volume II of the Brookhaven AP study on this question, because I think it’s very insightful into the debates that took place when the AP was being negotiated. And I think that the review of this negotiating history clearly supports my interpretation of the IAEA’s authority under INFCIRC/153, which I presented in my response to Laura’s article.

As the authors of the study conclude from their review:

Although the issue of whether additional legal authority was needed for many of the proposed measures for strengthening safeguards was fundamental to many of the decisions of the Board and Committee 24, it received relatively little debate in either forum. Both the Secretariat and the member states either wanted new explicit authority or seemed prepared to proceed on the basis of an assumption of the need for additional legal authority. This would, thereby, avoid a lengthy and possibly contentious and inconclusive debate as to which measures did and which did not require additional legal authority. Although suggestions arose that would have permitted States to use different mechanisms for providing the IAEA with the necessary authorities, a consensus emerged, and is reflected in the Model Additional Protocol, that a single instrument was best. This would achieve uniformity and avoid any risk of different interpretations arising.

Although some Board actions during the period from 1991-1997 suggest that the Agency might have the legal authority to apply protocol measures in states with comprehensive safeguards agreements that have not concluded a protocol, the fact of the Additional Protocol, itself, suggests otherwise politically, if not also legally. As a result, obtaining universal adherence to Additional Protocols is the best, perhaps, the only way, to provide the Agency everywhere with the authorities contained in the Model Additional Protocol.

I Love Bob Kelley

If you’re interested in the Iran PMD issue, which of course I have written about here many times over the past couple of years (see, e.g. here), and in particular Western/IAEA allegations concerning the Parchin military facility (see here), Bob Kelley’s new piece over at LobeLog is an absolute must read. It explains the allegations and their overall incredibility so clearly and comprehensively.

It’s so important to have people like Bob who are highly qualified, independent technical experts, and who can explain such complex technical issues to us non-technical people. And this is important stuff – even though it shouldn’t be, the PMD issue is still very much a part of the ongoing negotiations between the IAEA and Iran, which are of course intimately politically connected to the Iran/P5+1 negotiations.

Arms Control Law Included in the ABA Journal’s Blawg 100 List Again!!!

I just recently got word that ACL has been chosen for the second year in a row for the ABA Journal’s Blawg 100 list, as one of the top 100 best blogs for a legal audience!!!

See the official announcement here.

Let me first say that I really appreciate all of those who took the time and effort to answer my request back in July to nominate the blog for this distinction.  In particular, Professor Nader Entessar of the University of South Alabama wrote in some very kind comments about ACL, which the ABA Journal quoted in its announcement:

This is by far the best blog for impartial, yet critical, discussion of important legal issues about arms control law and its application. The posts debunk the simplistic analysis one reads in the news media.

This is certainly what I have hoped this blog would accomplish, and the recognition from readers and from the ABA Journal once again is extremely gratifying. I of course share this honor with all of the other contributors to ACL who have written posts this year.

This seems like an appropriate moment to mention some thoughts that have recently crystallized in my mind about the purpose of this blog, and all the writing that I, in particular, do on it (I do not presume to speak for the other bloggers on ACL).

It’s no secret that I have often been frustrated by the dynamics of the arms control epistemic community.  Here I should of course clarify. I see several distinct communities, or audiences, existing under this broader umbrella, that I try to address and engage with in my work.

The first is the international law scholarly community, of which I consider myself firstly and foremost a part. This is my home community, and with very few exceptions, I respect and value the collegial engagement that I have always had with the members of this community, a number of whom are bloggers with me here at ACL. This community includes university students of international law at all levels (undergraduate and graduate).

The second is the policy community. This is of course comprised of officials of governments and international organizations working in the arms control area. Here I experience all the complexities that any academic does in trying to engage and influence relevant policymakers. It is my hope that my writing on this blog, and also in my books and articles, has had and will continue to have an influence in this community.

The third is the primarily NGO-based arms control wonk community, about which I have written critically on numerous occasions (recently here). Unfortunately, in at least some circles of the policy community (e.g. the US government, the IAEA), the arms control wonk community has a disproportionate influence. I have tried to engage with the wonk community on many occasions, but overall these attempts have been rebuffed.

So this is my newly crystallized resolution. I write what I write on this blog, and in my scholarly books and articles, primarily for the international law scholarly community, and for the policy community. The arms control wonk community is, for reasons I’ve discussed previously, essentially impervious to ideas from sources outside of its own cliquish, incestuous, and self-referential circles. It has become clear that they are not open to genuine engagement, and are therefore essentially beyond influencing.

I do have some hope, however, that university students who will in the future become members of the arms control wonk community, may yet be susceptible to influence, and so I will include them in my understanding of the audience of this blog and my other work. In fact, I think of them as a key audience, because they will in the future have influence in policy circles, and I’m hopeful that my work can influence them before they become indoctrinated by their mentors in the existing wonk community. It is for the sake of these future arms control wonks that I will point out the shortcomings of their predecessors.

This reappraisal of the audience of this blog and of my other work is basically a part of my ongoing mid-career crisis, in which I’m trying to identify my professional identity and plan for the future.

Missed Opportunity in Vienna

I’m pretty bummed today that the latest round of talks between the P5+1 and Iran in Vienna has ended in a decision to extend the JPOA for another six months. I fail to see what will be different in six months that will make a deal more doable then than now. As others have observed, at this point there are no real technical issues. It’s all about political will. I was one among those who were hoping that the two sides would exert leadership and make the tough choices necessary to obtain a deal.

I know that both sides’ positions are complicated, perhaps made practically irreconcilable, by domestic politics in their respective capitals. If that’s the case, then I don’t know why we should be optimistic that those dynamics will change significantly over the next six months. Far more likely, I would think, is that more stumbling blocks will arise over that time, either in the form of domestic politics or unpredictable world events.

If there is no deal, I really don’t know what will happen long term. I don’t expect war, to be honest. I think more likely is the continuation of sanctions on Iran by the West, which will help nothing and no one, with more and more instances of economic dealmaking between Iran and Russia, China, and others who will increasingly see the sanctions programs by the West as unsupportable.

The Revolving Door Between the USG and Wonkdom Turns Yet Again

A few weeks ago I did a post noting William Burns’ move from the State Dept to the Carnegie Endowment, and I quoted an even earlier post arguing that there is systemic pro-government bias in the US nonproliferation think tank world.

Well, now the revolving door is swinging around the other way to carry Jon Wolfsthall of CNS from think-tankdom back into government; in his case to be Senior Director for Arms Control and Nonproliferation at the National Security Council.  See the announcement here.

What’s the point of my bringing attention to this revolving door between the USG and arms control think tanks? The point is to show how close the connections are between the two, so readers can see that they should not view the work of these think tanks as objective, or independent. They are all, to one degree or another, dependent on the USG for patronage, favor, and access and it is incredulous to think that this dynamic does not influence their work – from the subjects that they choose to work on, to their actual analysis.

So the next time you see a piece written by someone at Carnegie, or CNS, or IISS, or ISIS, bear this in mind.

Sandy Spector on a “Return or Destroy” Requirement for the Iran/P5+1 Deal

I was just reading a new piece by Sandy Spector over at Eurasia Review. He’s arguing in this piece that, as part of the Iran/P5+1 nuclear deal, there should be an agreed requirement for Iran to either return or destroy items that were procured by Iran and used in its nuclear program, the procurement of which violated either national export control laws of other countries, or relevant UN Security Council Resolutions.

I think the article overall fits nicely in the “let’s try to obstruct a nuclear deal by throwing in all the historical baggage” file. That file also contains all the PMD allegations.

Sandy is certainly right that the sale to Iran of some items currently in use in Iran’s nuclear program was in violation of various countries’ export control laws, and arguably in violation of UNSC Resolutions, including Resolution 1737. It’s less clear to me that in any of these instances it was Iran that violated the applicable law, as opposed to whoever the seller was whose activity was actually subject to the law.

In the case of the domestic export control laws of states, including the US, it’s typically the exporter/seller, who is a national of the state imposing the law, who is subject to its application, and who violates the law by engaging in the prohibited transaction. Generally speaking, national export control laws do not and cannot make illegal the actions of another sovereign state.  And even if they were to, there is no principle of international law that would require the target sovereign state to comply with such an extra-territorial law of the imposing state. So I don’t see how Iran’s procurement of items, the sale of which to Iran was unlawful for exporters under foreign national laws, was a meaningfully unlawful act by Iran.

As for UNSC resolutions including 1737, in a similar vein, the operative obligations were imposed on states prohibiting their export to Iran of covered items. So to the extent that violations occurred, it would be the exporting states that were in violation of their obligations. It’s not clear to me that there was in these resolutions any obligation applicable to Iran itself, and obligating it to not procure these items.

I know you could say that, particularly on this last point, I’m splitting hairs a bit. But I also think that the spirit of the matter argues against taking the view that Sandy does in this piece.

Iran’s file should never have been transferred to the UNSC from the IAEA in the first place. And as I’ve argued elsewhere, the UNSC overstepped its own authority in subsequently imposing requirements on Iran relating to its civilian nuclear energy program.

Even if there had been some justification in 2006 for the requirements imposed by Resolution 1737 et al., those requirements should have been withdrawn after IAEA DG ElBaradei’s February 22, 2008 report to the IAEA Board of Governors (GOV/2008/4), in which he determined that all declared fissile material in Iran was in peaceful use, and that all prior concerns the IAEA had registered involving fissile materials and related facilities in Iran had been resolved through dialogue with Iranian authorities.

The UNSC resolutions on Iran have from the beginning been politically motivated and without merit. They should not now be accorded the dignity that Sandy wants to bestow on them, by making sure that every jot and tittle of the resolutions are honored by Iran, even after a comprehensive political solution is reached between Iran and the P5+1.

The Case of the “Missing” 19.8 kg of Iranian Uranium

I’m very pleased to host another guest post by friend of ACL, Dr. Yousaf Butt.  This blog is devoted to discussions about international law related to arms control. However, as any lawyer knows, an understanding of key facts is essential to proper legal analysis. This is where Yousaf comes in. He is a highly qualified nuclear physicist, and frequently helps us by bringing his technical and scientific expertise to bear in order to clarify important technical issues that are relevant to legal analysis. In this post, Yousaf explains recent allegations of unaccounted-for fissile material in Iran, which is of course a question that has direct bearing on safeguards law analysis.

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The Case of the “Missing” 19.8 kg of Iranian Uranium

Dr. Yousaf Butt is senior scientific advisor to the British American Security Information Council (BASIC) in London, on leave from the Cultural Intelligence Institute. The views expressed are his own.

Recently, I wrote for the National Interest on why the IAEA might be making so many mistakes on Iran’s nuclear file,especially regarding the Possible Military Dimensions (PMD) dossier. I argued that the IAEA does not have much expertise in nuclear weaponry but that they seem to be good at their mandated job of nuclear materials accountancy. I may have been too generous.

The day before my piece came out the IAEA admitted making an accounting mistake of 100kg in Iran’s Low Enriched Uranium gas stock, and also a mis-counting error of 19 instead of 9 IR-6 centrifuges. But let’s not dwell on those errors – who hasn’t miscounted a few centrifuges from time-to-time?

Here I’d like to offer another case study from the PMD file. You will recall most of the PMD issues were already addressed here: from EBWs, to Parchin, to the AP graphs/calculations to ring magnets etc. – even the fleeting concerns with Po-210 was dealt with before also. None have stuck.

But there is yet another PMD issue I overlooked to address. Maybe this is the one that proves Iran is guilty, after all?

In the November 2011 IAEA report on Iran, one reads:

In August 2011, the Agency carried out a PIV [Physical Inventory Verification] at the Jabr Ibn Hayan Multipurpose Research Laboratory (JHL) to verify, inter alia, nuclear material, in the form of natural uranium metal and process waste, related to the conversion experiments carried out by Iran between 1995 and 2002. The Agency’s measurement of this material was 19.8 kg less than the operator’s declaration of 270.7 kg.

Footnote 40 on that page says: “This material had been under Agency seal since 2003.”

That in itself ought to have given the IAEA, government officials and the press some pause: if the material is under seal and the IAEA does not mention tampering then what is the problem? Would it not have been prudent to make clear that the drums had been sealed for about 7 years and what was in them obviously had not gone anywhere?

Never mind – pausing to think seems to have been too much to ask. Fredrik Dahl at Reuters repeatedly reported on this issue. For example in 2011, following the report:

“ [U.S. Ambassador Glyn] Davies also singled out a finding in last week’s IAEA report of a “discrepancy” of nearly 20 kg (44 lb) of nuclear material at a site in Tehran, the Jabr Ibn Hayan Multipurpose Research Laboratory. The report said U.N. inspectors carrying out an inventory check of natural uranium metal and process waste at the facility measured 19.8 kg less than the operator’s declaration.The IAEA said it was working with Iran to resolve the issue and Iran’s envoy to the IAEA, Ali Asghar Soltanieh, last week dismissed it as “absolutely not an issue.”

Davies said the issue required “immediate” resolution, citing information indicating that “kilogram quantities” of natural uranium metal had been available to Iran’s military program. “It remains to be seen whether this discrepancy could ultimately represent another piece in the puzzle the IAEA is assembling to show Iran’s nuclear weapons-related activities,” Davies said.

That certainly sounds like a concern.

According to Dahl, the issue was still unresolved by early 2012.

In mid-2012, U.S. Envoy Robert Wood made a statement on the Implementation of NPT on Iran:

In addition to our concerns with the Fordow facility, the Director General reports on other areas that require Iran’s immediate attention and clarification. For example, we note that the Agency has previously requested additional information in relation to a discrepancy of 19.8 kilograms of natural uranium metal in Iran; we are disappointed that Iran has not provided this information, particularly in light of our concerns regarding the possible military dimensions of Iran’s nuclear program. We call on Iran to fully cooperate with the Agency in resolving this discrepancy.

But, by August 16 2012, the IAEA said that less was “missing” than they thought:

The United Nations’ atomic watchdog may decide that less uranium is missing at an Iranian research site than it had previously thought…..a European diplomat told Reuters it now seemed to have become less of an issue….The uranium discrepancy was likely to be “buried more than it is at the moment”, another diplomat said.

Interestingly, when a discrepancy is found it is leaked and announced publicly and repeatedly that it could be part of a nefarious military program – with Western diplomats chiming in – but when it is resolved the issue is “buried”.

This alleged “discrepancy” of 19.8 kg of natural uranium was first reported in November 2011 report. In each successive quarterly report the urgency subsides. However, the issue is never resolved for the public. It simply disappears. a.k.a. “Buried.”

Why not offer a public explanation instead of a burial? Since the IAEA has not, I will.

The discrepancy concerned an old estimated value of natural uranium contained in process waste which is a notoriously hard quantity to measure. When the waste was sealed both Iran and the IAEA agreed upon this estimate of natural U. Upon reopening the material in 2011 there was a new estimate that was different from the old estimate. It is very hard to count natural U in waste where you have very little idea what is in a sealed drum. There can be all sorts of unknown materials (like metals and plastics and other junk) that have unknown shielding properties hiding unknown quantities and qualities of fissile isotopes. But since the waste was under seal no material was ever missing.

However, the IAEA made a big deal out of their own discrepancy stopping short of accusing theft. As shown above, the US mission also made a major production of it along with the press. One could be forgiven for thinking that there are no technical advisors at the US mission.

In any case, when the discussions between the IAEA and Iran were finally undertaken the issue was clarified and both evidently agreed that the little bit of natural uranium in the process waste was accounted for. But by that time the presumed propaganda effect had run its course for many months.

This issue ought never have surfaced. As a point of order, a significant quantity (SQ) of natural uranium is 10 tons (10,000kg) of natural U.

So the IAEA made an issue of 20kg of (extremely difficult to estimate) natural U in process waste when a SQ of natural U is 10,000kg! The discrepancy was 0.2% of a SQ of natural U. 

The IAEA has never bothered to publicly acknowledge their error and mischaracterization of the non-missing “missing” 0.2% of SQ of natural U. And US diplomats proceeded to throw gasoline on this small ember provided by the IAEA. Reporters swallowed the apparent officially-sanctioned propaganda and went so far as to suggest that the non-missing natural U could have made it to Parchin! Other reporters suggested that the material could be used in warheads as-is.

Bottom lines:

1. No nuclear material was ever missing: the material was under seal.

2. The IAEA was irresponsible and unprofessionalin making an issue out of their own differing estimatesof extremelyhard to measure natural U in process waste which amounted to about 0.2% SQ. It should have been resolved with Iranian technicians without mention in a report which the IAEA knows would have been leaked to the press.

3. Reopening this issue in 2011 at the same time and place as the weaponization (PMD) annex in the November 2011 report appears to have been intentional and political.

4. The IAEA and US diplomats should have the professional integrity to publicly explain the resolution of the issue.

5. There was gross incompetence in interpretation by the press. This could perhaps have been avoided by reaching out toexperts (outside the one or two who have been historically biased, and are associated with highly political organizations such as United Against a Nuclear Iranor the Foundation for the Defense of Democracies).

So we can add this hyped-up PMD non-issue on the heap of others addressed already.

This sad episode – still officially unresolved by the IAEA – speaks to IAEA’s unprofessionalism, unfairness, over-reach and politicized drift. Lesson-learned: be very wary of what you hear from the IAEA, Western diplomats and any press sources that simply regurgitate their views without sound critical technical analysis. Another lesson-learned: Iranian officials may sometimes be correct when they say certain PMD issues are trumped-up or forged.