I’ve been away from this blog for a couple months working on, among other things, the subject of this post. I also knocked about a while in Rome, where I was inspired to read Helen Langdon’s magnificent biography of the painter Caravaggio. This opus was the fruit of many years of research and observation in several disciplines and Langdon stitched together a complex fabric of patronage, contemporary learned discourse, and artists’ unruly lives in a way that breathed oxygen into events that took place four centuries ago. It was a joy to read. I also assume a joy to write.
As unkind fate would have it, after having likewise built up years of experience outside of academia in another multidisciplinary field, during the last few weeks I have not been writing about the Italian seicento but about IAEA safeguards–a vocation which is usually more a curse than a pleasure.
The departure point for this post is this article about questions and objections that the IAEA has encountered in planning to extend its State-Level Concept for safeguards.
I published it two weeks ago after three months of research off and on in a half-dozen places involving maybe three dozen conversations, meetings and interviews. Before publication, I thoroughly vetted successive drafts of it, including by luminaries a few of whose names are well-known to readers of this blog.
Experience taught me I would be a damn fool not to vet this, because safeguards is, among other things, also about theology. (You don’t think so? Just give this a read and then this and you’ll see—to keep us in the Italian seicento for a moment—that the papal decree condemning Giordano Bruno to burn at the stake in the Campo dei Fiori on charges of heresy was perhaps just a tad more ultimate). Some irreverant wags might even suggest that there is a safeguards catechism, there are encyclical letters, and portentious councils.
Write about safeguards, and the theologically-minded will announce themselves. If, say, an article is about five things, A through E, I will hear from one reader that I was right about B through E but dead wrong about A; from another that praise is due for A, C , D, and E but that I was misinformed about B; and from a third that I got A through D right but that I must have invented E. I think you get the picture.
Russia and Safeguards
One of the things this latest article was about is why the Russian government is taking umbrage at plans by the IAEA to expand the scope of the SLC. Russia’s opposition emerged this year and was expressed during closed conclaves in the nuclear world’s equivalent of the Citta del Vaticano (that might have something to do with the theological character of some of these discussions). Some of the people who were in the rooms where this all took place said that some interventions got pretty…um… hefty. There were some warnings about the IAEA’s plans posing an existential threat to the future of safeguards. There were some things said implying that the IAEA secretariat should crawl into its shell. My curiosity was ignited when I was told that, during a BOG meeting in June, Russia suddenly went off on a tear about this subject, sendng some people in Board Room A into what they described thereafter as a state of profound shock.
At end of my research last month however I couldn’t identify what Russia’s specific objections to the SLC really were, exactly. Maybe in part because the Russian government told me beginning in September that it didn’t want to talk about it.
On November 29, a week after I published the piece, I was back in Vienna for the most recent meeting of the IAEA Board of Governors. There I heard from a number of people that they still didn’t quite understand the details of what all the thunder in the board room was about.
It would be fair to say that most people I quizzed including last week seem to believe that Russia’s objections are not technical but are political. In addition to concern I had raised in the article about Russia becoming encircled by the US and its allies in the fields of intelligence collection and analysis, and concern that intelligence findings could be used by the IAEA to make judgments which thereafter might serve as justification for US military action (here the IAEA’s November 2011 findings on Iran is a flashpoint), last week people added to this list some other items that have been piling up for quite a while: Washington’s unilateral scuttling of the ABM treaty; Russia’s decision to terminate the CTR program; Syria; Libya; a recent contentious Wassenaar round; and friction at the OSCE.
That most people will tell you they believe that Russia’s problem with the SLC isn’t fundamentally about safeguards–that it’s really about Russia’s relationship with the US and the West–also seems consistent with what happened at the tail end of the September board. Then and there, the whole gamut of Western states who do the drafting of those IAEA board resolutions on Iran, the DPRK, and Syria–Australia, Canada, the US, the EU–lined up like iron filings in statements defending the continued elaboration and implementation of the SLC
Real Safeguards Issues
So are there no safeguards-specific issues at stake here for Moscow? Apparently the answer is yes, there are some items.
Thanks in large part to Russia’s objections, in September the General Conference asked DG Yukiya Amano to report to the BOG on how he plans to go forward with the SLC. When will that happen? We don’t know. Conventional wisdom says it will be during the first half of the year, as I wrote two weeks ago. A bird told me it might be later than that–and considerably after Amano is re-elected for another four years (this could happen as early as March if no alternative candidate emerges between now and the end of this month).
In anticipation of Amano’s report to the board, I hear that Russia, the IAEA, and other member states will get into the future of the SLC over the next several months. The scholastics and canon lawyers will be called to account. (Maybe if in the midst of all this Amano is re-elected, the IAEA will vent white smoke from the M Building).
These look like the issues:
Discrimination:
At the nonproliferation conference which Anton Khlopkov and CENESS put on in Moscow in September, I heard from Russian official people that their problem with IAEA safeguards was about discrimination but they didn’t care to elaborate. Very recently I hear that Russia is raising the issue of double standards in how safeguards are applied. Specifically, while Iran has been hammered for failure to have reported nuclear activities to the IAEA, Moscow is miffed that the IAEA in 2005 let off South Korea without a finding of non-compliance after it failed to report that it enriched uranium with a laser. If that’s a Russian objection, there are some Western experts who share it–as a matter of principle. But many will say in the same breath that South Korea’s misdeeds pale by comparison to Iran’s record of systematic deception. And the South Korean issue is not related to the SLC per se.
Which state-specific factors?
In September Russia asked the IAEA to provide a list of state-specific factors it plans to use (if you don’t know what I’m talking about please go back and read my article) to input into IAEA safeguards judgments. Russia (and a few others) worry that the results from using these factors will be subjective. The verdict on this from canonists at the IAEA is no, that won’t happen. Others express views which aren’t so cut and dried.
Additional Protocol
Moscow but also other states have issues concerning the future of the Additional Protocol under the continued elaboration of the SLC. One argument: After having gotten board approval for the AP in 1997, the IAEA is getting ready to move beyond the AP including by extending the scope of the SLC into countries which do not have an AP in force, implying that the goal of universalizing the AP will be sacrificed in favor of another approach to extend the IAEA’s access in states, which will not (unlike the AP) be based on a voluntary commitment by the states. Here too, the IAEA has a different view but there is lots of fat to chew on.
Future of established criteria
In the past and until now, the IAEA has used a system of established criteria (which have been revised over time) to set safeguards goals, and for years these were universally applied in all NNWS with safeguards agreements. What will happen to these criteria in the future, some states are asking.
Infcirc/66 agreements and NWS
There has been some talk at the IAEA that the SLC may be implemented in NWS as well as in NNWS and that it may be applied in countries with Infcirc/66 agreements. (One of the latter countries denies that will happen. I’m also told that it is certain that Russia has no issues with applying the SLC in Russia or other weapons states. Don’t bet on seeing this happen anytime soon.)
Use of Intelligence Information
You will hear all over the safeguards universe that Moscow is really worried about this–not only before Amano’s November 2011 Annex on PMD was sent to the board, but relentlessly thereafter. Some people (not only in Moscow) will also tell you they believe that the IAEA is getting so wrapped up in the PMD issue that it (notwithstanding other potential show-stoppers) could seriously inhibit a deal with Iran happening after the beginning of the year.
Who makes safeguards policy?
The IAEA secretariat asserts (in part backed by the record of the decision of the board to take note of the Secretariat’s initial implementation of Integrated Safeguards in 2002) that it alone makes policy on safeguards implementation. This September, Russia asserted that the Board of Governors should approve the SLC. The board did approve the AP in 1997–but that was a measure which clearly exceeded the IAEA’s then-existing legal mandate. So far, the IAEA is holding the line that the SLC is consistent with its existing authority.
Fiat Lux
In 1850, Charles Dickens, who was publishing a magazine called Household Words, took aim at deficiencies in the British court system and, specifically, at the Court of Chancery. The legal profession then filled his mailbox with protests, Dickens said later, expressing the view that his warnings pointed to “a trivial blemish in the rate of progress.”
Same here. Some people will tell you that Russia’s problem with safeguards will vanish overnight by mid-2013. Will it? If there is no obstacle to Amano’s re-election early next year, that outcome will in fact be more likely. But a Russian climb-down behind the scenes also assumes there is no bigger strategic or political dimension to Moscow’s problems. That’s not what I have been hearing. While the conventional wisdom is that Amano will report to the board over the next six months, it’s more likely that before all this is settled the game will go into extra innings–maybe even into 2014 including for personnel reasons.
Russia’s view that the future of IAEA safeguards concerning the SLC should be decided by the BOG appears to be a unique point of view. There are other states waiting in the wings. How Amano and, especially, the P-5, handle this over the next six months will tell whether this matter will be softly put to rest.
Would those political and strategic concerns be unique to Russia? To me it seems that outside of the West, the IAEA is increasingly becoming seen as a politicized institution and the politicization comes from the US and ‘the West’.
The general view in Vienna and some other capitals is that, while not “unique to Russia,” as you say, political developments likely explain why Moscow at this time is raising cain over this in the Board of Governors and the General Conference. As I argued in the Carnegie piece linked to this post, those things have to do with Putin’s policy directives and with the state of the relationship between Russia and the West/US.
Albright, Heinonen and Kittrie along with Carlson, Goldshcmidt and Presbo believe that AP hasn’t essentially changed the original mandate of IAEA. Therefore CSA is not limiting the Board and the Secretariat from investigating the completeness. This argument goes against the one claiming that AP is a change of mandate therefore needing sovereign state approval. What is your take on that ?
Mark was kind enough to cite to one of my blog posts regarding Albright and ISIS, but not to my specific response to the new ISIS report. That response is here:
http://armscontrollaw.com/2012/11/27/a-whole-isis-report-devoted-to-little-ol-me/
I thought Mark’s “Plan for IAEA Safeguards” piece was excellent, and a great resource.
There is no inherent contradiction between 1.) the argument that the CSA (without an AP) permits or mandates the IAEA to verify the completeness and correctness of a country’s inventory, and 2.) the argument that the AP provides the IAEA greater legal authority than the CSA without the AP.
There is a difference between a mandate and the legal authority, however.
The police have a mandate to stop crime.
But — to mix metaphors — they do not have the legal authority to poke around your bedroom at 3am, absent an A.P., to carry out their mandate to stop crime.
So it’s nice of the IAEA to have a mandate, they should enjoy it to the hilt, but they are still restricted in their legal authority, absent an AP.
You can perhaps talk to your colleague Pierre Goldschmidt at Carnegie about the subtle distinction:
Pierre Goldschmidt, former deputy director of the IAEA Safeguards Department, has summed it up well:
http://carnegieendowment.org/2011/11/03/looking-beyond-iran-and-north-korea-for-safeguarding-foundations-of-nuclear-nonproliferation/6nz6
“the Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate and to provide the assurances the international community is expecting ”
i.e. the expectations are misplaced.
If the IAEA had the legal authority do the same things with an AP in a country as it could do without an AP, then there would be no need for an AP.
Also, one often sees confusion between declared vs. undeclared materials and what the legal authority of the IAEA is w/ and w/o an AP.
To settle this issue of declared versus all material, one can see what the IAEA itself says — The IAEA is pretty crystal clear on this point:
http://www.iaea.org/Publications/Factsheets/English/sg_overview.html
QUOTE:
================
“Basically, two sets of measures are carried out in accordance with the type of safeguards agreements in force with a State.
One set relates to verifying State reports of ****declared**** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.
Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.”
===============
Again, if the benefits of the Additional Protocol were available to the IAEA without a state having ratified the AP, then there would be no need for the AP.
Furthermore, the UNSC has not imposed the AP on Iran (as it cannot do so), and only “calls upon” Iran to consider doing so. The AP is a voluntary measure.
Moreover, there is no one who has tasked the IAEA with proving that a nation’s nuclear program is purely peaceful. This would be an impossible task in any nation.
In their reports on Iran, the IAEA is simply making a tautological statement that the “Agency is unable to provide credible assurance….to conclude that all nuclear material in Iran is in peaceful activities.”
That is of course true, as it is also for 51 other states. The Agency cannot also verify the purely peaceful nature of Brazil’s and Argentina’s nuclear program. Not a problem.
The problem, I think, is that the media and many pundits think that the IAEA is castigating Iran by stating this. The IAEA is simply making a statement of the limits of their ability.
For 51 other states, the IAEA also finds “no indication of the diversion of declared nuclear material from peaceful nuclear activities. Evaluations regarding the absence of undeclared nuclear material and activities for each of these States remained ongoing.” [See “Safeguards and Verification Safeguards Statement for 2011 and Background to the Safeguards Statement Safeguards Statement for 2011”]
Another way to state the last sentence is to say what the DG report says about Iran — ie. for all 51 states: that ” the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in [51 states], and therefore to conclude that all nuclear material in [51 states] is in peaceful activities.”
Ataune,
This “mandate versus tools” distinction that Albright and the gang try to make in their ISIS report, and that Ford and Persbo have tried to make in our BAS Roundtable discussion, is simply incorrect by reference to the text of the CSA. (See the BAS Roundtable at: http://thebulletin.org/web-edition/roundtables/iran-and-the-bomb-the-legal-standards-of-the-iaea#rt9462)
Just as Ford did in his last BAS installment, advocates of this view tend to disregard one pivotal clause when they quote from Article II of the CSA. Article II says that the IAEA has the right and obligation to ensure that safeguards will be applied “in accordance with the terms of this Agreement . . .” This clause explicitly makes the procedures the parties agreed to in the rest of the CSA an integral part of the definition of the IAEA’s mandate under the CSA. The purpose of the IAEA’s involvement as expressed in Article II, and the tools for carrying out that purpose agreed to in the rest of the CSA, TOGETHER make up the IAEA’s mandate in CSA Article II.
Mark,
Thank you for your response.
You are logically correct in your statement but maybe not complete. To be more precise, here is what the authors are saying:
“The Additional Protocol is important for efficiency and effectiveness. But the essential point is that the IAEA already has under the CSA the essential mandate–-indeed, as articulated in paragraph 2 of INFCIRC/153, the obligation–-to verify the absence of undeclared nuclear material and activities.”
While you say:
“The board did approve the AP in 1997–but that was a measure which clearly exceeded the IAEA’s then-existing legal mandate. So far, the IAEA is holding the line that the SLC is consistent with its existing authority.”
The Secretariat’s argument, reported and it seems endorsed by you, clearly contains the assumptions that SLC is a policy matter unlike AP which was a clear change of legal mandate. The authors on the other hand sound like evaluating the AP as more of a tool to increase efficiency. So the question arises, what is your take on this? And what you think the prevailing school of thought might be in Vienna’s legal department? Is AP considered just a tool to improve efficiency and effectiveness or was it built to provide, in addition to the CSA, assurances as to the absence of undeclared nuclear material and activities in a State?
Do people worry that there is no firm definition of “non-compliance”? How objective/subjective, in practice, have findings of non-compliance been?
http://www.armscontrol.org/print/3642