Here are the IAEA Director-General’s, entitled Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the Islamic Republic of Iran (GOV/2011/54) and Application of Safeguards in the Democratic People’s Republic of Korea (GOV_2011_53).
The DG apparently thinks that it is a requirement for Iran to ratify the Additional Protocol. It would be nice if Iran did so, but the DG is mistaken that this is a requirement.
Mousavian has some sensible suggestions as to how to diffuse this issue:
http://www.pbs.org/wgbh/pages/frontline/tehranbureau/2011/08/is-iran-ready-to-negotiate.html
In fact, that is the least of the problems with how Iran’s case is being handled. The whole process is wrong — see Jeffrey’s previous post on John Carlson’s attempt to politicize the IAEA.
Article 22 of the specific Iranian safeguards agreement from 1974 (see below for URL) explicitly establishes the proper procedure for handling any disagreements between the IAEA BoG and Iranian govt.
http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf
viz.:
Article 22
“Any dispute arising out of the interpretation or application of this Agreement, except a dispute with regard to a finding by the Board under Article 19 or an action taken by the Board pursuant to such a finding, which is not settled by negotiation or another procedure agreed to by the Government of Iran and the Agency shall, at the request of either, be submitted to an arbitral tribunal composed as follows:
the Government of Iran and the Agency shall each designate one arbitrator, and the two arbitrators so designated shall elect a third, who shall be the Chairman. If, within thirty days of the request for arbitration, either the Government of Iran or the Agency has not designated an arbitrator, either the Government of Iran or the Agency may request the President of the International Court of Justice to appoint an arbitrator. The same procedure shall apply if, within thirty days of the designation or appointment of the second arbitrator, the third arbitrator has not been elected. A majority of the members of the arbitral tribunal shall constitute a quorum, and all decisions shall require the concurrence of two arbitrators. The arbitral procedure shall be fixed by the tribunal. The decisions of the tribunal shall be binding on the Government of Iran and the Agency.”
According to Article 19 of Iran’s safeguards agreement, the IAEA may refer Iran to the UN Security Council ONLY if the IAEA is “not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices” AND Art. 2 which states that the purpose of the safeguards agreement is for the “EXCLUISIVE purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.” This is standard language in the all basic safeguards. Note further that even then, the IAEA’s model safeguards agreement (INFCIRC-153) imposes various limits on inspections, and requires that IAEA inspections avoid hampering or causing “undue inteference” with civilian nuclear programs, whilst also requiring that the IAEA collects the “minimum amount of information and data consistent with carrying out its responsibilities” and “reduce to a minimum the possible inconvenience and disturbance to the State.”
Finally, note paragraph 52 of the Feb 2006 IAEA report on Iran:
“[A]bsent some nexus to nuclear material the Agency’s legal authority to pursue the verification of possible nuclear weapons related activity is limited.”
In short, there is nothing that authorizes the IAEA to investigate Iran’s missiles program unless there is evidence of nuclear material involved — which the IAEA has said there isn’t.
Amy is wrong on one key point: Article XII.C of the IAEA Statute provides the basis for reporting Iran’s safeguards non-compliance to the UN Security Council:
“The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which it finds to have occurred. The Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations.”
Anon,
That same Article makes it mandatory for the IAEA find and to report the US, Canada, Russia, and Japan the Security council for non-compliance with regards to their breeches in safety practices.
anon, masoud,
Be careful with interpreting Article XII of the Statute, as it seems drafted to deal with Agency Projects safeguards and similar, not NPT Safeguards (which are Treaties in themselves).
For example, how else can you explain why XII.A.6 only allows inspectors to be sent to “recipient States” to monitor “supplied” source and special fissionable materials, XII.A.2 to require observance of Agency health and safety measures, XII.A.4 to require progress reports? Or indeed why XII.A.1 allows equipment design inspections, when in the NPT Safeguards context the AP is required for that?
XII.A.C only applies to the extent that Article 19 of the NPT Safeguards Agreements mentions its reporting measures. XII does not make sense beyond that for NPT Safeguards.
rwendland,
I largely agree with you. However, there is a difference between what the IAEA is required to do by it’s own statute, and the what Member states have agreed to let the the IAEA do through bilateral treaties. Anon above was arguing that the IAEA had a responsibility to report Iran non-compliance at the first sign of trouble(I think this is arguably a different question than whether or not such a finding is justified by a member state’s SA).
My point was that if we are to conclude that the IAEA had an obligation to find Iran in non-compliance(under the meaning of the statute), regardless of the terms it’s SA which does state
“In taking such action the Board shall take account of the degree of assurance providedby the safeguards measures that have been applied and shall afford the Government of Iran every reasonable opportunity to furnish the Board with any necessary reassurance.”
Then we should also be arguing that Chernobyl, Three Mile Island, Chalk River, and Fukushima should have resulted in nearly automatic findings of non-compliance as well. And if we’re not, it’s because we are being dishonest about our motivations.
Amy
I am beginning to grasp it. So, by your definition, there can be no undeclared nuclear material in Iran and, therefore, the IAEA has no right or obligation to look for something that doesn’t exist?
wrf —
yes, by the IAEA’s definition the legal procedures outlined in the document called the CSA, is for the — I quote — “exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”
That is the only business of the IAEA in Iran, according to the IAEA — it’s EXCLUSIVE purpose is for making sure that declared nuclear material is not diverted.
See also the comment by Youseff at the end of this blog comments’ section.
Thank you.
I am happy that you are getting it finally.
Please let me know if I may assist further.
Thank you.
Amy
So when, according to the IAEA’s submssion to the 2010 NPT Review Conference:
“… the IAEA Board of Governors affirmed in 1992 that the scope of CSAs was not limited to nuclear material actually declared by a State but included any material that is required to be declared — in other words, that IAEA has the right and obligation to verify that
State declarations of nuclear material subject to safeguards are both correct and complete.”
… it is wrong?
wfr —
you ought to refer your questions about possible internal inconsistencies of IAEA statements to the IAEA.
Given the intense politicization at the IAEA it would not be surprising that the IAEA DG is confusing what is desirable versus what is legally enforceable.
Indeed, there is a great deal of confusion, both in th media and this blog’s comments, about what the IAEA is tasked to do when a country has ratified the AP versus when it has not.
For clarification, please see:
http://www.iaea.org/Publications/Factsheets/English/sg_overview.html
QUOTE:
“What verification measures are used?
Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. ******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.”
==========
As Iran has not ratified the A.P. it falls under the first category.
==========
Further note that the Iran-IAEA CSA spells out the proper accountancy to use:
“NATIONAL SYSTEM OF ACCOUNTING FOR AND CONTROL OF NUCLEAR MATERIAL
Article 31
Pursuant to Article 7 the Agency, in carrying out its verification activities, shall make full use of Iran’s system of accounting for and control of all nuclear material subject to safeguards under this Agreement and shall avoid unnecessary duplication of Iran’s accounting and control activities.
Article 32
Iran’s system of accounting for and control of all nuclear material subject to safeguards under this Agreement shall be based on a structure of material balance areas, and shall make provision, as appropriate and specified in the Subsidiary Arrangements, for the establishment of such measures as:
(a) A measurement system for the determination of the quantities of nuclear material received, produced, shipped, lost or otherwise removed from inventory, and the quantities on inventory;
(b) The evaluation of precision and accuracy of measurements and the estimation of measurement uncertainty;
(c) Procedures for identifying, reviewing and evaluating differences in shipper/receiver
measurements;
(d) Procedures for taking a physical inventory;
(e) Procedures for the evaluation of accumulations of unmeasured inventory and unmeasured
losses;
(f) A system of records and reports showing, for each material balance area, the inventory of nuclear material and the changes in that inventory including receipts into and transfers out of the material balance area;
INFCIRC/214
– 9 –
(g) Provisions to ensure that the accounting procedures and arrangements are being operated correctly; and
(h) Procedures for the provision of reports to the Agency in accordance with Articles 59-69.
STARTING POINT OF SAFEGUARDS
Article 33
Safeguards under this Agreement shall not apply to material in mining or ore processing activities…”
=======
If there is any other information I could help you with, please do not hesitate to post.
I welcome the discussion.
Thank you.
Amy
Thanks – I think I’ve made the point.
You’re welcome!
It’s indeed a subtle but important point to grasp that there are two different legal standards that various member countries are held to: those that have signed and ratified the Additional Protocol, and those that haven’t.
(As the IAEA URL given above outlines)
Amy and wfr are wrong in their belief that IAEA safeguards agreements (the comprehensive agreements required by the NPT) apply only to declared material. By the terms of such agreements, they apply to “all” nuclear material in the country.
The IAEA is therefore correct in stating that its responsibility is not only to verify that declared nuclear material is not diverted, but also that all nuclear material is declared.
Anon,
that is a fine opinion — here is what the IAEA thinks:
http://www.iaea.org/Publications/Factsheets/English/sg_overview.html
QUOTE:
“What verification measures are used?
Safeguards are based on assessments of the correctness and completeness of a State’s ___declared____ nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. ******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.”
Anon
I don’t agree with Amy. I pointed out that the IAEA said in May this year:
“… the IAEA Board of Governors affirmed in 1992 that the scope of CSAs was not limited to nuclear material actually declared by a State but included any material that is required to be declared — in other words, that IAEA has the right and obligation to verify that
State declarations of nuclear material subject to safeguards are both correct and complete.”
But Amy dismissed this completely!
I find this report on Iran very disturbing — as I do the unfortunate amplification in the media.
The report states:
“In particular, the Agency is increasingly concerned about the possible existence in Iran of past or current undisclosed nuclear related activities involving military related organizations, including activities related to the development of a nuclear payload for a missile, about which the Agency continues to receive new information.”
This is a monumentally irresponsible statement: the *possible* existence of *past* activities? i.e. there is no evidence that the Agency has in hand that Iran is doing anything nefarious in the nuclear realm, but it has a lot of unfounded past suspicions and “new information” on ballistic missile development.
Great.
The IAEA is tasked with looking into nuclear materials diversion.
There is no such diversion in Iran.
There is no known nuclear weapons program or any evidence of it. Even DNI Clapper has said that.
Yes, thank you IAEA, we already know Iran is making missiles.
End of story.
There is nothing new in here having to do with any nefarious nuclear weapons activity in Iran.
Madison Schramm had a good piece on what to do with Iran:
http://www.huffingtonpost.com/madison-schramm/irans-nuclear-program-deal_b_941718.html
Now compare that to what the media is saying about these reports.
This is the relevant part of the report: “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.”
Amano may well be responsible for a war!
A footnote at the last page of GOV/2011/54 seems to address the objection by Iran that IAEA is not tasked to verify non-existence of undeclared nuclear activities in non-AP-ratified countries. It says
“The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness) (see, for example, GOV/OR.864, para. 49).”
Thank you for pointing that out.
While it is a lovely and heartwarming position for the IAEA board to take, it is also patently illogical, if not outright nonsense.
If the IAEA Board thinks the Agency has the authority and requirement to “verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness),” in the absence of the A.P., then of course there is no pressing need that Iran ratify the A.P.
The IAEA Board cannot have it both ways: insist that Iran ratify the A.P. and insist it has the right to intrusive A.P.-type inspections even if the A.P. is not ratified.
In fact, if you examine the INFCIRC documents and rationales you will see that they assume A.P. intrusiveness. In Iran’s case this assumption is false.
All this would be more believable of the IAEA also pursued Brazil with the same vigor as Iran. But like Iran in the time of the Shah, it is OK if our friends achieve a nuclear weapons capability and LEU stockpile, but not our enemies.
The IAEA is being used politically as Jeffrey’s previous post outlines in great detail and as the wikileaks on Amano also shows:
http://www.csmonitor.com/World/Middle-East/2010/1202/WikiLeaks-cable-portrays-IAEA-chief-as-in-US-court-on-Iran-nuclear-program
In any case, there is no possible way — ever — even if there are 2 inspectors per km^2 to verify “the absence of undeclared nuclear activities in the State.”
It is fundamentally not possible to do so for any nation, no matter if the AP is ratified or not.
Amy dismisses the IAEA’s position that the IAEA has a mandate under Iran’s safeguards agreement to seek to verify both non-diversion of declared material and the absence of undeclared material as “heartwarming” but “illogical” and “nonsense.” One need only read Article 2 of Iran’s safeguards agreement to conclude that the IAEA’s position is correct:
“The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on ALL source or special fissionable material in all peaceful nuclear activities within the territory of Iran, 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.”
“All nuclear material” includes material that may not have been declared.
Amy then makes the serious point that it is very hard to verify the absence of undeclared materials, even with an Additional Protocol. But that does not change the fact that the IAEA has the OBLIGATION to use the tools at its disposal to SEEK to do so.
As for what Iran is obligated to do, UN Security Council Resolution 1929 says that the Council:
“DECIDES that Iran shall provide such access and cooperation as the IAEA requests to be able to verify the suspension outlined in paragraph 2 and to resolve all outstanding issues, as identified in IAEA reports, and CALLS UPON Iran to ratify promptly the Additional Protocol;”
The first verb “decides” makes Iran’s cooperation mandatory under Chapter VII of the UN Charter. Iran must cooperate, in ways the IAEA reports it has not done. The second verb “calls upon” is not mandatory, so Iran is not required to ratify the Additional Protocol.
IMHO, the problem seems to be the unusual application of the harshest legal procedures to Iran, while other countries with similar or even worse situation (which happen to have good relations with the US) are not treated that way (see the South Korea & Egypt examples at Jeffrey’s last post). By the way, selective application of law (not the application per se) is a common complaint of many people living under tyrannical national governments and outside people often sympathize with them.
There’s nothing (or there are few things) outright “illegal” about the pressure on Iran, but it does not look fair to Iranians and IMHO, truly neutral observers. Especially being placed under sanctions by the UNSC according to Chapter VII of the UN charter, just for enriching Uranium to 3.5% while there’s no conclusive evidence on the existence of any nuclear weapons program, looks to be a misuse of UNSC power.
MhammadD,
The language about absence of undeclared nuclear activities is a complete fabrication. This is Article II of Iran’s Safeguards Agreement:
Article 2
The Agency shall have the right and the obligation to ensure that safeguards will be applied, in
accordance with the terms of this Agreement, on all source or special fissionable material in all
peaceful nuclear activities within the territory of Iran, 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.
There is nothing about the verification of an ‘absence of undeclared nuclear activities’ in there. In fact there is no concept at all of following ‘nuclear activities’ at all. The Agency is merely to track fissionable material.
Anon,
I think you are deeply confused as to the extent of UNSC authority. It has no capacity to ‘decide’ what Iran has an obligation to do, indeed ‘calling upon’ states to take a certain action strongest language justified by the UN Charter. Even the use of this language in Iran’s case is largely inappropriate for a variety of reasons, not the least among them being the lack of a finding by the UNSC that the situation posses a threat or breach of peace and security.
Anon — thank you for posting your reply, however your position continues to be highly disingenuous, misleading and dangerous, in my view.
Just as it is absolutely impossible — fundamentally — to verify “the absence of undeclared nuclear activities in the State”, it is highly irresponsible of you to suggest that the “all” word in Article 2 of Iran’s CSA permits the IAEA unlimited reach into Iran.
Please answer this: When will you, or the politicized IAEA DG, be happy that they have seen “all” nuclear material in Iran and verified it’s usage?
Maybe Ahmedinejad’s uncle’s son’s grocer’s aunt has a radioactive source in her flat? Are you suggesting that the IAEA can go anywhere at all in Iran because of the word “all” in Art 2 of Iran’s CSA?
And, if so, there ought to be no need for you or the politicized IAEA DG to insist on Iran ratifying the A.P., since the IAEA — according to your own arguments — already has all the authority it could ever need to go anywhere at all in Iran.
You cannot have it both ways: insist that Iran ratify the A.P. to be able to inspect properly and fully, and insist the IAEA has the right to intrusive A.P.-type inspections even if the A.P. is not ratified, because of the word “all” in the CSA.
Clearly, the word “all” in Art 2 of the CSA refers to all declared nuclear material. This is blindingly obvious and to suggest otherwise is disingenuous.
Simple logic is of paramount importance.
Thank you very much for the discussion, however.
To re-cap: it is absolutely impossible — fundamentally — to verify “the absence of undeclared nuclear activities in the State”, especially since Iran has not ratified the A.P.
But even if it had, it is still impossible. There may be undeclared nuclear material buried in some schoolyard in Tabriz.
The importance of suggesting that the IAEA has the obligation to verify “the absence of undeclared nuclear activities in the State” is that it allows the political players to continually move the goal posts: no amount of Iranian cooperation will suffice, because at the end of the day y’know we still can’t verify “the absence of undeclared nuclear activities in the State”.
A fundamentally logically impossible task.
Amy
If your interpretation of what constitutes “all nuclear material” is correct i.e. that it only refers to all DECLARED nuclear material, this must constitute some of the worst drafting of all time!
wrf–
thank you for your post.
What the CSA reflects — as does the NPT itself — is a political compromise. This is reflected in the wording of the document.
Indeed, the NPT allows all members states to stockpile enriched Uranium — so long as it is not diverted to weapons use. i.e. the NPT allows a latent nuclear weapons capability.
You are correct that the drafting of the CSA did not satisfy every wish of the NWSs/IAEA and may be considered the “worst” wording ever — but this is because it is document negotiated between Iran and the IAEA and reflects a compromise in the intrusiveness of what the IAEA is allowed to do in Iran.
You forget that the IAEA is not a police force and the NPT is a VOLUNTARY treaty.
There are strict limits as to the intrusiveness of what the IAEA can do in Iran, especially when Iran has not ratified the A.P.,
Lastly, kindly read the CSA for yourself to satisfy yourself that it’s wording specifically applies to declared nuclear materials ONLY:
http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf
I am pleased to discuss this with you further.
The relevant passage is:
““The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran,”
Thus it applies to ALL sources of nuclear material…in all peaceful nuclear activities within the territory of Iran.
i.e. the declared nuclear material —
Again, there is no possible way to verify the non-diversion of possibly non-existent or supposed or suspected nuclear material. It is an impossible task — logically, and legally.
Amy
So, by your defnition, “all nuclear material in Iran” equates to “all nuclear material that Iran chooses to declare”- correct?
wrf — yes — I explained to you in detail why the relevant passage applies to all declared nuclear material, or equivalently, the nuclear material in peaceful uses in Iran.
You can satisfy yourself that this is the case by reading the English passage in the document which I re-quote for your benefit:
“The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran…”
Please let me know if you’d like to discuss this further.
Thank you.
wfr–
sorry I transposed your initials before!
Perhaps this will be helpful to you in understanding the CSA — this is the IAEA’s view, not mine (note Iran has not ratified the AP):
http://www.iaea.org/Publications/Factsheets/English/sg_overview.html
QUOTE:
“What verification measures are used?
Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. ******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.”
Let’s see how many main stream media sources will pick up on Albright’s divide-LEU(Kgm)-by-1000 Iranian nukes scare tactic. It is getting really routine.
I hope Broad and Sanger will fight the temptation and focus on something different for their article tomorrow For instance, the number of advanced centrigues in PFEP or why was Bushehr reactor halted after it went critical in May. Did they find another major problem in the core?
Agreed.
And Hopefully they will note that Centrifuges, Reactors and suspicious *past* activity do not a nuclear weapons program make.
Hopefully they will note that Iran has never ever diverted any nuclear materials to any nuclear weapons program. Ever.
DNI Clapper has confirmed that the intelligence community has a “high level of confidence” that Iran “has not made a decision as of this point to restart its nuclear weapons program” — i.e. that is the bottom line of the 2011 NIE on Iran.
google it.
ElBaradei, the Nobel Peace Prize recipient who spent more than a decade as the director of the IAEA, told Seymour Hersh that he had not “seen a shred of evidence that Iran has been weaponizing, in terms of building nuclear-weapons facilities and using enriched materials … I don’t believe Iran is a clear and present danger. All I see is the hype about the threat posed by Iran.”
google it.
Jefferey,
Off-topic, but Iran has apparently filed suit against Rosoboronexport at the International Court of Trade in Paris. I think it’s time for another Dan Joyner guest post.
Masoud,
thank you — your insight is valuable.
I should also note that even if we pretend that the IAEA was not politicized in referring Iran to the UNSC, and even if we pretend that there was some legal basis for that in the CSA, there remains the issue that sanctions are not a legal resource for the UNSC to use under Chapter 7 of the UN Charter, absent a threat to the peace.
The very legality of the UNSC sanctions themselves is highly questionable.
Such sanctions are applicable under Chapter 7 of the UN Charter – but only after a determination of “the existence of any threat to the peace, breach of the peace, or act of aggression” is found, something which has never been done in Iran’s case.
Is Eric Brill around? He has done a lot of detailed legal checks on this.
So the legal house of cards against Iran is rotten and unsustainable at every level.
However, as wikileaks shows, this is unsurprising given the powerful politicization involved against El Baradei and for Amano.
The case against Iran is political, not legal.
Just, please, be honest about it — honesty and integrity are (were?) the strong points of Western civilization.
Amy is in fact correct in the discussion above that Iran’s Comprehensive Safeguards Agreement (CSA) has to do with declared nuclear materials and not “possible” or “believed to exist” or any other suspected but possibly non-existent nuclear materials.
She is also right for the reasons proffered: it is impossible to prove a negative. i.e. no one can prove for sure that possibly non-existent nuclear materials have been diverted to weapons’ use.
And it would not make any sense to ask Iran to ratify the A.P., if the IAEA could gain the benefits of the A.P. with just the CSA.
WRF and ANON are understandably skeptical that the IAEA would have signed on to such a wording in the CSA with Iran.
But WRF and ANON would do well to remember that the CSA with Iran was penned and signed when Iran was our good friend, under the Shah. Perhaps a different document would have been judged sufficient now, but we are getting into hypotheticals.
The long history of our on-again, off-again love affair with Iran’s nuclear program has been provided by the folks at the New America Foundation:
http://www.raceforiran.com/americas-on-again-off-again-love-affair-with-irans-nuclear-program
Thanks, Jeffrey, for a lively debate! Much needed to clarify misunderstandings.
Thanks for pointing that out: the CSA was written back in the day when Iran was like Saudi Arabia is to us now.
[NOTE: perhaps we should be more careful with what we sign onto with the Saudis now]
Here is the IAEA’s view (note Iran has not ratified the AP):
http://www.iaea.org/Publications/Factsheets/English/sg_overview.html
QUOTE:
“What verification measures are used?
Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. ******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.”
Further note that the CSA spells out the accountancy to use:
“NATIONAL SYSTEM OF ACCOUNTING FOR AND CONTROL OF NUCLEAR MATERIAL
Article 31
Pursuant to Article 7 the Agency, in carrying out its verification activities, shall make full use of Iran’s system of accounting for and control of all nuclear material subject to safeguards under this Agreement and shall avoid unnecessary duplication of Iran’s accounting and control activities.
Article 32
Iran’s system of accounting for and control of all nuclear material subject to safeguards under this Agreement shall be based on a structure of material balance areas, and shall make provision, as appropriate and specified in the Subsidiary Arrangements, for the establishment of such measures as:
(a) A measurement system for the determination of the quantities of nuclear material received, produced, shipped, lost or otherwise removed from inventory, and the quantities on inventory;
(b) The evaluation of precision and accuracy of measurements and the estimation of measurement uncertainty;
(c) Procedures for identifying, reviewing and evaluating differences in shipper/receiver
measurements;
(d) Procedures for taking a physical inventory;
(e) Procedures for the evaluation of accumulations of unmeasured inventory and unmeasured
losses;
(f) A system of records and reports showing, for each material balance area, the inventory of nuclear material and the changes in that inventory including receipts into and transfers out of the material balance area;
INFCIRC/214
– 9 –
(g) Provisions to ensure that the accounting procedures and arrangements are being operated correctly; and
(h) Procedures for the provision of reports to the Agency in accordance with Articles 59-69.
STARTING POINT OF SAFEGUARDS
Article 33
Safeguards under this Agreement shall not apply to material in mining or ore processing activities…”
Amy misses a key point from the IAEA’s description of safeguards. The text she quotes refers to “assessments of the correctness and completeness of a state’s declared nuclear material and activities.” Correctness is about diversion. Completeness is about whether everything is declared. In assessing completeness, the IAEA seeks to verify that there are no undeclared activities.
Amy,
On what basis do you declare that “all material” actually means the much more limited “all DECLARED material?” That is a radical reinterpretation that no country (including Iran) subscribes to. The function of an INFCIRC 153 agreement is to implement the provisions of art. 3 of the NPT itself and art. 3 very clearly makes no such distinction. In fact, it quite clearly states that safeguards must be applied to all relevant material and activities anywhere within a state. Failure to declare all material is not only a violation of a state’s CSA, but it is arguably a violation of the NPT as well.
Therefore the argument that the IAEA’ mandate is limited to only material that a state declares is completely without merit – which is what your argument appears to be (please clarify if I’ve misinterpreted your statements here).
It is important to make a distinction, however, between the IAEA’s mandate over all nuclear material and activities which flows from article 3 (and which is not and cannot be limited by either a CSA or a state’s declaration) and its legal mandate to verify that a declaration is both complete and accurate. On the latter the IAEA is limited by the CSA, on the former it is not.
Here is an analogy to explain this point: let’s say that we give the police more authority to search houses in order to find some criminal activity. That change in authority does not change the legal status of any activity that takes place in a house – it simply gives the police more power to determine if someone is breaking the law. In essence, this is all the additional protocol does – it provides the IAEA with greater authority to fulfill its verification mission – it doesn’t change a state’s obligations wrt article 3 nor does it change the Agency’s core mission to verify compliance, nor does it alter the Agency’s legal purview over all relevant activities and materials whether declared or not.
Andy,
You know better than this. Safeguards do not apply to arguably non-fictional ‘undeclared material’, because it is physically impossible to do so.That is why Article two of the model CSA is worded the way it is.
“for the exclusive purpose of verifying that such material is not diverted”
If the IAEA DG has a firm basis for belief that such material exists, it can go to the board and ask for special inspections, something it has never done. It the DG has merely concluded that he can’t be sure that such material doesn’t exist, well then that really doesn’t matter one way or the other.
Andy,
my information source is the IAEA — read article 2 of the CSA, and then read the IAEA website — please note very carefully where I have highlighted “declared” in the IAEA text (as you appear to have missed it above):
http://www.iaea.org/Publications/Factsheets/English/sg_overview.html
QUOTE:
“What verification measures are used?
Safeguards are based on assessments of the correctness and completeness of a State’s ___declared____ nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. ******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.”
====
As you know Iran has not ratified the A.P., so the first bullet applies.
====
Further note that the CSA spells out the accountancy to use:
“NATIONAL SYSTEM OF ACCOUNTING FOR AND CONTROL OF NUCLEAR MATERIAL
Article 31
Pursuant to Article 7 the Agency, in carrying out its verification activities, shall make full use of Iran’s system of accounting for and control of all nuclear material subject to safeguards under this Agreement and shall avoid unnecessary duplication of Iran’s accounting and control activities.
Article 32
Iran’s system of accounting for and control of all nuclear material subject to safeguards under this Agreement shall be based on a structure of material balance areas, and shall make provision, as appropriate and specified in the Subsidiary Arrangements, for the establishment of such measures as:
(a) A measurement system for the determination of the quantities of nuclear material received, produced, shipped, lost or otherwise removed from inventory, and the quantities on inventory;
(b) The evaluation of precision and accuracy of measurements and the estimation of measurement uncertainty;
(c) Procedures for identifying, reviewing and evaluating differences in shipper/receiver
measurements;
(d) Procedures for taking a physical inventory;
(e) Procedures for the evaluation of accumulations of unmeasured inventory and unmeasured
losses;
(f) A system of records and reports showing, for each material balance area, the inventory of nuclear material and the changes in that inventory including receipts into and transfers out of the material balance area;
INFCIRC/214
– 9 –
(g) Provisions to ensure that the accounting procedures and arrangements are being operated correctly; and
(h) Procedures for the provision of reports to the Agency in accordance with Articles 59-69.
STARTING POINT OF SAFEGUARDS
Article 33
Safeguards under this Agreement shall not apply to material in mining or ore processing activities…”
=======
Please let me know if you have further questions/comments.
Read also what Masoud wrote above.
Thank you.
Masoud,
Just because the investigative limits imposed by a 153 CSA makes it impossible to confirm the absence of undeclared material does not mean the IAEA is not obligated to try to make a determination within those limits. IOW, a CSA limits the ways and means of Agency verification but not the authority to investigate within those limits when it believes that a state is not living up to its obligations.
In most cases there is no evidence to suggest a state’s declaration is not accurate or complete. In that case there is no cause for the IAEA to use what authority it has under a 153 CSA (like special inspections), nor is there any reason for the Agency to request authority beyond what the CSA provides. In other cases (like Iran) the question is about when a state that was previously in breach of its CSA is back in full compliance. The question wrt Iran is not whether it violated its agreement – by its own admission it did – but whether Iran remains noncompliant. There is a wide range if opinion on that topic but it seems to me that Iran (or any state) does not get to unilaterally decide that it is in compliance when the Agency disagrees.
Amy,
The overview you quote does not say what you think it does. Take this passage:
“Safeguards are based on assessments of the correctness and completeness of a State’s ___declared____ nuclear material and nuclear-related activities.”
What happens when the IAEA judges that a declaration is either incorrect or incomplete? Because that’s exactly what the IAEA did in 2003-2004 wrt Iran, what it is currently trying to do with Syria and what it has done with other states where questions arise regarding the accuracy and completeness of declarations. If you assert the Agency does not have such authority then you are asserting the Agency had no legal authority to pursue information in 2003 that indicated Iran’s declaration was both inaccurate and incomplete and that the Agency had no similar authority to investigate South Korea, Egypt and others for similar reasons – is that what you are arguing? Are you suggesting the Agency has no authority to do what the passage you quoted actually says: assess the correctness and completeness of a state’s declaration and act accordingly?
Andy,
the IAEA has the authority to look into any irregularities having to do with declared nuclear materials. The important point is that in 2006 when Iran was “referred” to the UNSC it was in compliance.
Even if you go back to 2003 and look at GOV2003/75, you will see the important sentence:
“To date, there is no evidence that the previously undeclared nuclear material and activities referred to above were related to a nuclear weapons programme.”
Furthermore, the litany of charges from 2003 were resolved in Iran’s favor in 2008. See:
IAEA report GOV/2008/4 Dated: 22 February 2008. I quote:
http://www.iaea.org/Publications/Documents/Board/2008/gov2008-4.pdf
“The Agency has been able to continue to verify the non-diversion of declared nuclear material in Iran. Iran has provided the Agency with access to declared nuclear material and has provided the required nuclear material accountancy reports in connection with declared nuclear material and activities. Iran has also responded to questions and provided clarifications and amplifications on the issues raised in the context of the work plan, with the exception of the alleged studies. Iran has provided access to individuals in response to the Agency’s requests. Although direct access has not been provided to individuals said to be associated with the alleged studies, responses have been provided in writing to some of the Agency’s questions.
53. The Agency has been able to conclude that answers provided by Iran, in accordance with the work plan, are consistent with its findings — in the case of the polonium-210 experiments and the Gchine mine — or are not inconsistent with its findings — in the case of the contamination at the technical university and the procurement activities of the former Head of PHRC. Therefore, the Agency considers those questions no longer outstanding at this stage. However, the Agency continues, in accordance with its procedures and practices, to seek corroboration of its findings and to verify these issues as part of its verification of the completeness of Iran’s declarations.”
In para 54 the IAEA says that there were still some outstanding issues but that these had nothing to do with nuclear materials diversion:
“54. The one major remaining issue relevant to the nature of Iran’s nuclear programme is the alleged studies on the green salt project, high explosives testing and the missile re-entry vehicle….However, it should be noted that the Agency has not detected the use of nuclear material in connection with the alleged studies, nor does it have credible information in this regard. The Director General has urged Iran to engage actively with the Agency in a more detailed examination of the documents available about the alleged studies which the Agency has been authorized to show to Iran.”
Since missile delivery systems have nothing to with IAEA safeguards it is a stretch to think El Baradei should have been tasked with looking into Iran’s missile program.
Iran is providing about the level of cooperation it is supposed to provide given that it has not ratified the Additional Protocol. Saying that Iran is in breach because it is not going beyond what it has ratified is asking too much of Iran. (The UNSC is not forcing the US to ratify the CTBT either.)
If the IAEA had/has any disagreement with Iran (outside of nuclear materials accountancy) then it had/has the option of kicking off arbitration.
As it now stands, UN SC sanctions’ conditions go beyond asking Iran to cooperate with the IAEA, but rather try to force it to abandon Iran’s enrichment program and try to force it to ratify the A.P. These are political (and politically-motivated) demands.
Please do not get me wrong: it would be just lovely if Iran decided to ratify the A.P., but like Brazil and Argentina — you cannot force them to do so.
You should also note that beginning on December 18, 2003, Iran began to carry out the provisions of the AP on a voluntary basis, until the Majles ratifies it.
Even the European Union that had negotiated the implementation of the AP by Iran recognized its volunteer nature. Iran continued doing so until October 2005, when it declared to the IAEA that it would no longer abide by the AP. The reason was that the proposal that the European Union had presented to Iran in August 2005, according to which Iran was to receive significant economic concessions and security guarantees, was deemed by Iran to be totally inadequate.
At the same time, angered by the European Union attitude toward Iran, the Majles never ratified the AP. Thus, unlike what the IAEA claims, Iran cannot be required to implement the AP.
No sovereign nation has any obligation to sign and implement/ratify any international agreement that it does not deem it to be in its national interests.
Similarly, the IAEA cannot force the US to ratify the CTBT.
The IAEA can insist upon what it wants to insist upon.
Iran has never committed to disclosure beyond those spelled out in its CSA. Iran or any other country has no obligation to make disclosure beyond that spelled out in its CSA.
If the conditions necessary for special inspections are met, then the IAEA should feel free to call for one or more special inspections, as described (and limited) by the CSA.
After any number of special inspections, the IAEA will still be able to make the statement that Iran has not implemented the AP (as is fully and we’ve seen unarguably its right). It will also, because Iran has not implemented the AP, continue to be able to make the statement: –-Iran has not provided the necessary cooperation to permit the Agency to confirm that all nuclear material in Iran is in peaceful activities–.
And that’s OK. Iran does not have an obligation to “provide the necessary cooperation to permit the Agency to confirm that all nuclear material is in peaceful activities”, as Amano defines the terms.
Remember, until the AP was created twenty years after the NPT, any IAEA director could (and did) make that statement about every single NPT signatory. Amano is using that, to arbitrarily harass Iran. This is because Amano, as wikileaks pointed out, is effectively in the US camp at the IAEA, and not impartial.
The bottom line is that, as Jeffrey’s post on John Carlson shows, the IAEA is being totally politicized by the U.S. and its allies to advance their agenda against Iran. This is being done while Iran is by and large abiding by its obligations under the Nuclear Non-proliferation Treaty and its Safeguards Agreement.
Ex-DG and Nobel Prize winner El Baradei has this year that he had not “seen a shred of evidence that Iran has been weaponizing, in terms of building nuclear-weapons facilities and using enriched materials … I don’t believe Iran is a clear and present danger. All I see is the hype about the threat posed by Iran.”
google it.
Andy,
“a CSA limits the ways and means of Agency verification but not the authority to investigate”.
That’s nothing but wishful thinking. Again, Article 2 of the CSA states
“The Agency shall have the right and the obligation……..for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”
For the EXCLUSIVE Purpose.
That’s as clear a limitation of the “Agency’s authority” as I can imagine. And that’s not just some opinion I pulled out of my backside, it’s a treaty the IAEA is bound by. You can’t just make stuff up like that and expect that people will go along with it. For example, you are getting all worked up about the limits of the IAEA’s ‘investigative’ powers or what it does or doesn’t have the ‘right’ or obligation to ‘investigate’. The reality is that the word ‘investigate’ or any variation thereof never appears in the CSA. Not once. As a matter of fact, the IAEA doesn’t employ ‘investigators’. Not a single one. It employs ‘inspectors’, whose job is to ‘verify’. So the question is where are you getting all this nonsense from? The choice of wording here is extremely deliberate, and you don’t have a license to go about re writing international treaties as you deem fit.
You’ve also got a very interesting theory about how some mysterious unnamed mechanism keeps Iran in “non-compliance”, until either the board or the DG decides otherwise, at his own sole discretion(or maybe a the approval of the board, your not exactly clear on the matter). The thing is, you’re making it all up, and such a view is in no way supported by the NPT, CSA, IAEA statue, or any other relevant instrument, which is why you haven’t ever cited any of those documents to this end. When you do, maybe your claims will merit some fuller treatment.
Masoud,
I think you are reading too much into what I intended to be a narrow point. Up-thread “wfr” asked:
“So, by your defnition, “all nuclear material in Iran” equates to “all nuclear material that Iran chooses to declare”- correct?”
And “Amy” answered in the affirmative. Amy is not correct because, as article 3 of the NPT itself makes clear:
“Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere. “
All is all, and it is not limited to what a state chooses to declare. This language is intentionally reflected in the 153 CSA’s and was made even more explicit in 1992 when the “Board affirmed that the scope of a comprehensive safeguards agreement is not limited to the nuclear material declared by a State but includes all of the State’s nuclear material that should have been declared.”(1)
Amy’s opinion on this topic is therefore simply wrong. The IAEA has legal responsibility over ALL material, not just declared material. What a 153 CSA does is provide the Agency with a limited ability to carry out that responsibility. IOW, the 153 CSA does NOT limit the Agency’s responsibilities, only the means to carry them out. This is the critically important distinction that many seem to miss.
Here’s another way to put it: The IAEA has the legal authority to verify possible undeclared activities (in addition to declared activities) but its ability to discover such activities is limited.
So the AP does not provide the IAEA with additional authority over nuclear material – what it does is provide the Agency with a better ability to carry out its responsibilities. The AP does NOT change the Agency’s responsibilities.
That is all I was trying to point out.
1. See The IAEA Safeguards System, page 19
Your patience is admirable.
Thanks Jeffrey, though I have to admit that my earlier comments in this thread were written while camping, on my iphone, literally next to a campfire, lubricated with an indeterminate amount of alcohol. As a result, I take full responsibility if people found them confusing or incoherent.
Not being a lawyer myself, I would say Andy is correct here that, indeed, the CSA does NOT limit the Agency’s responsibilities, only the means to carry them out.
But the Agency’s inability to attest to the non-diversion of undeclared nuclear materials is not a failure or shortcoming on Iran’s part. It is merely a consequence of Iran not having ratified the A.P. And, in fact, I don’t think this possible diversion of undeclared material has ever been the main non-compliance finding nor a bone of contention with Iran. This seems to me to be a bit of tempest in a teapot over legalese in the comments section here.
The latest report even states that the Agency is unable to verify this non-diversion of any possible undeclared material because Iran has not ratified the A.P.:
#########
51. While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear
facilities and LOFs declared by Iran under its Safeguards Agreement, as Iran is not providing the necessary
cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible
assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude
that all nuclear material in Iran is in peaceful activities.
##########
As long as Iran has not ratified the A.P. it is fully expected that the Agency cannot verify the possible non-diversion of undeclared material nor conclude that all nuclear material in Iran is in peaceful activities. The same is true of several other countries. This is not a non-compliance finding.
Now, do I wish Iran does ratify the A.P.? Yes. Do I hope that the UNSC will take seriously the apparent offer from Iran to do that? Yes.
Yousaf,
Thanks for posting the link on the latest Iranian offer. I can only hope it results in some kind of deal which resolves the current impasse.
Andy,
I challenged you to point out, using the relevant international instruments,to where your views that the IAEA has either the “Legal Authority” or “Legal Responsibility” to “Investigate” arguably non-fictional “undeclared programs” to it’s satisfaction, were supported. You’ve been unable to do so. For one, you point to an article in a journal by one Pierre Goldschmidt who in turn paraphrases a proclamation made by the BOG a good quarter century after the NPT and CSA’s were ratified and put into force. Needless to say, I think if you actually had a case here, you’d be able to cite stronger stuff.
Now, what I found remarkable is that even this source doesn’t attribute “authority” or “responsibility”, legal or otherwise, for anything, to the IAEA. Neither does the Article III of the NPT, which you also cite attribute either “authority” or “responsibility”, legal or otherwise, of anything, to the IAEA.
Actually, neither the NPT the CSA or even the AP, ever ascribe to the IAEA the “authority” or “responsibility”, legal or otherwise, for anything. In your argument, the magic all seems to happen in that lovely little acronym:”IOW”. Well as cute and convenient as they are, TLA’s don’t have the power to trans-mutate the actual Laws that we have, into the Laws we wish we had.
Yes, according the Article 3 of the NPT, member state’s are required to declare all fissionable material in their possession. No that’s not a blank cheque for the IAEA to go about inflicting atomic Spanish Inquisitions on whatever states the DG’s allies take a disliking to.
The EXCLUSIVE PURPOSE of the safeguards, as explicitly stated in the CSA’s Article I, and then reiterated verbatim in Article II make it abundantly clear: The IAEA safeguards system has been painstakingly designed to be immune to wild-goose-chase-itis. And no, nothing you’ve pointed to demonstrates the NPT, CSA, AP, or Agency Statute simultaneously charges the IAEA with the “Legal Authority/Responsibility” to engage in wild-goose-chase-itis while simultaneously truncating it’s “Legal Ability” to do so.
And no, that’s not a bug. It’s a feature built in to the foundational arms control documents by third-world diplomats who knew certain types of people would be trying to advance these kinds of argument decades before they actually started to emerge.
Masoud:
Text is a funny thing. It is under-determined enough in meaning so that one can always read it narrowly to support a particular case, particularly if one discards how that meaning is expressed in practice. Perhaps I have to much late Wittgenstein in my background, or maybe its the Gödel, but the kind of semantic games in which you engage aren’t very helpful.
When Andy writes “IOW” I understand him to be expressing not merely how one might read the text, if the goal were to excuse Iran’s efforts to acquire nuclear weapons, but how the text is actually read without concern for the special pleading of a particular state that finds itself in violation of its safeguards agreement.
The problem with special pleading is that the short-term gain usually comes at a long-term cost to all involved. The narrow interpretation of the various texts that you advance may help Iran tactically in this discussion, but in the real world it is no solution at all.
Consider that the arguments you make about the very limited IAEA mandate are not dissimilar from those of who argued strongly that continued IAEA engagement with Iran and Syria was harmful, that the IAEA should simply report the safeguards violations and that the Board should refer Tehran and Damascus to the Security Council. They, too, want the IAEA out of diplomacy over Iran — though for a very different reason than you do. Their goal is to maximize pressure on Iran.
I have continued to excuse ElBaradei’s tendency to insert himself into the diplomacy, even when unwelcome by Washington, in large part because I think that a more minimalist IAEA would mean that most disputes about NPT compliance get settled by the “Security Council” — something you can read as “JDAMs crashing through the roof of Natanz.” I don’t like that outcome for lots of reasons, chief among them being my general preference to see the rule of law supplant the rule of force in international relations. But law is a not a suicide pact, especially when one party isn’t at all committed to that outcome. My general preference for diplomacy over force has its limitations.
There are a lot of us who labor mightily to sustain the momentum in the US for a diplomatic solution that doesn’t involve an Iranian bomb or bombing Iran. When I read defenses of Iranian policy like this, I truly wonder “Why bother?” I guess I am reaching my limit.
Masoud,
It’s hard for me to take your latest comment seriously. If you are at the point where you believe the IAEA isn’t charged with the legal responsibility for verification under the NPT, then I don’t know what to tell you. You suggest there’s nothing which gives the IAEA this responsibility. One wonders, then, why all these nations made treaties (also called “Comprehensive Safeguards Agreements) with IAEA. Maybe they know something you don’t? If you can’t be bothered to do even the most basic research on the origins and legal basis for the IAEA (which isn’t exactly difficult), then I see little point in further debate with you.
With respect to the points I’ve made on the difference between the responsibility to verify and the ability to verify I don’t expect you to take my word for it, or even Mr. Goldschmidt’s. So here it is, straight from the IAEA itself. See section B.1
Andy,
thanks for the link — that sums up the history very well.
It shows that the AP came about because the Agency realized that it does not have the tools to verify the non-diversion of undeclared material without the AP.
However, as I argued above, the Agency’s inability to attest to the non-diversion of undeclared nuclear materials cannot be seen as a failure or implication of Iran. It is merely a consequence of Iran not having ratified the A.P. The Agency is merely saying that they do not have the tools needed to do their job absent the AP in Iran, and that is OK.
Now if there is reason for suspicion of undeclared material in Iran being diverted to a putative nuclear weapons program then the Agency has the option of kicking off special investigations. As it stands, the DNI and ex-DG have already made statements to the effect that there is “high confidence” that no such weapons program currently exists in Iran.
Again, I would like it if Iran ratified the A.P. but it is, in my view, inappropriate for the IAEA’s DG report to recommend such political steps. In the meantime, if the UNSC would like Iran to ratify the A.P. they should consider increasing the carrots and reducing the sticks, because ultimately this is voluntary step not a requirement for Iran.
As long as Iran has not ratified the A.P. it is fully expected that the Agency cannot verify the possible non-diversion of undeclared material nor conclude that all nuclear material in Iran is in peaceful activities. The same is true of several other countries. I do not see this particular issue as being something “wrong” that Iran is doing or not doing.
If this is a basis of finding Iran in non-compliance I would be interested to hear more about that.
What I see currently see in Iran is a nation stockpiling more LEU than it needs for its current needs. There may be several reasons for this including planning for a potential future situation where their enrichment facilities have been subjected to military action, or indeed for a future Iranian bomb. But there is nothing intrinsically illicit about a NPT member state stockpiling LEU as long as it is not weaponizing. The NPT allows a latent nuclear weapons capability. This is an unfortunate weakness of the NPT.
Looks like FSB has a successor!
Amy, you are drowning ACW readers with your long comments. Since you are mostly reiterating the same points over and over, they could be summarized in a few sentences, don’t you think?
Anyway, I’ve stopped reading them some time ago, but I still read the short ones, and this latest one is misguided. (I am giving you the benefit of good faith of course.) The quoted cable does not say that “Amano us backing the US agenda”. It says that, from the point of view of the US drafter, there is a “very high degree of convergence” between his priorities and the US agenda. That’s it.
Footnote: what’s wrong as a matter of principle with “having an agenda”?
Misinterpretation of texts and statements abund on this thread.
Shaheen,
sorry if you feel that way. In each case, you will see that I was replying — possibly to the same misconception by several people. Thus the repetition.
The problem is that there is great deal of false information and misunderstandings about the alleged Iranian nuclear weapons work.
A good cure to reduce the posts and their length would be for folks to see that many issues have been resolved above (e.g. the “declared” materials issues) and to stop posting on it.
To your point: It is abundantly clear that Amano was politically championed by the US lobby at the IAEA and covertly presses for positions favored by the US. He is far from impartial.
See eg.:
http://www.guardian.co.uk/world/julian-borger-global-security-blog/2010/nov/30/iaea-wikileaks
There is nothing illegal about this of course, but it is better if the IAEA DG is impartial.
This is not my view, but that of the entire 118 nations of the NAM.
I trust this post was short and sweet enough for you to handle and digest.
Please let me know if you’d like to discuss further.
I tend to agree with Shaheen more than Yousaf. Shorter comments, please.
I would like to express my appreciation for Amy, Masoud and rwendland’s insight and useful posts.
Indeed, posts on this blog are often long and detailed — that is the reason many of us convene here. We can delve into the wonky details of arms control issues that are missed or misrepresented by the mainstream media and other blogs.
Regarding the declared nuclear materials issue and intrusiveness of inspections when a state has ratified the AP versus when it has not needs some historical context: Indeed the AP came into being because the IAEA realised that it did (and does) not have the tools to verify the detection of undeclared material and activities in states absent an AP.
Thus, the IAEA’s statements to the effect that it cannot verify the non-diversion of undeclared material should be taken as a statement of fact. Yes, the IAEA cannot do that, and that is OK — because no one should have the expectation that the IAEA could even do that in states that haven’t ratified the AP.
The bottom line — agreed to by both our DNI and ex-DG and Nobel prize winner El Baradei — is that currently there is no weapons program in Iran. And the IAEA admits that they have found no diversion of nuclear materials to any putative nuclear weapons program.
Iran is planning to stockpile LEU — but there is nothing illegal about that. (20% enriched U is considered LEU by the IAEA’s own admission).
Again, thank you Amy, Masoud and rwendland — your posts have been highly informative. I suggest everyone click on the IAEA website URL provided by Amy above to learn about the types of inspections carried our by the IAEA.
New Iranian offer:
http://www.latimes.com/news/nationworld/world/la-fg-iran-nuclear-20110906,0,615223.story
This is not new. Iran has long maintained that it would ratify the AP, should the UNSC drop the sanctions and Iran’s nuclear file gets back to normal state.
What US wants is zero enrichment, period. Agreeing to AP is a nice way of saying show us the targets we don’t know of at this moment or not sure about for a while as we drag our feet a little more.
I think Sanger’s article today kind of reveals that:.. “But as one American intelligence official put it recently, “We have a list of tunnels to look at that is so long, it would take years.”
Hair splitting discussions on whether it is declared or undeclared nuclear material,which is badly presented in Article 2 of CSA, is moot.
Immediatelly after the “Agreed Plan” was resolved between IRI and IAEA, the military dimension topics of concern were surfaced and became another source of contention to keep Iran’s file open.
It is quite naive to think it will be any different, given Amano’s heavy handed approach to handling Iran’s case, even if AP or AP+ has been adopted by IRI.
Has anyone found the September 5 ISNA (Iranian Students’ News Agency) interview with AEOI head Abbasi on which this news story is based? I looked and could not find it. I did find this article (http://isna.ir/isna/NewsView.aspx?ID=News-1841312&Lang=E), in which Abbasi says:
“Our cooperation is limited to the regulations and standards of the IAEA, providing that it respects Iran’s rights and it does not include the implementation of additional protocol cooperation.”
Since this comes on September 6, the day after the ISNA interview, I read this as a clarification of his offer in that interview to allow full IAEA supervision of Iran’s nuclear program for five years. That is, Abbasi seems to be saying that “full supervision” does not include the Additional Protocol. That would be a major step backwards.
I think this is it, but he clarified his remarks the next day.
Don’t worry — the offer has already been summarily rejected by the EU.
Just for the record, as argued by a few people above, and enshrined in International law — the A.P. is an option Iran is free to take or leave.
If you’d like Iran to sign up maybe some sweeteners will help more than sticks.
Full transcript in Persian is here:
http://isna.ir/ISNA/NewsView.aspx?ID=News-1840349&Lang=P
His wording on the proposal is this: “I proposed to the Director General that to ensure Iran doesn’t have any undeclared nuclear material, that they supervise Iran’s nuclear program in a 5-year period. By removing the sanctions and executing mutual responsibilities, without them discussing the alleged studies and the military dimension, the [International Atomic Energy] Agency can supervise Iran’s nuclear activities in a complete manner. We maintain that the ‘evidence’ related to these alleged studies is forged and fabricated. If you say that Iran is suspect, is not a [valid] reason for alleging certain issues.”
Full transcript in Persian is here:
http://isna.ir/ISNA/NewsView.aspx?ID=News-1840349&Lang=P
His wording on the proposal is this: “I proposed to the Director General that to ensure Iran doesn’t have any undeclared nuclear material, that they supervise Iran’s nuclear program in a 5-year period. By removing the sanctions and executing mutual responsibilities, without them discussing the alleged studies and the military dimension, the [International Atomic Energy] Agency can supervise Iran’s nuclear activities in a complete manner. We maintain that the ‘evidence’ related to these alleged studies is forged and fabricated. If you say that Iran is suspect, it is not a [valid] reason for alleging certain issues.”
Later on in the interview, when asked about Iran’s expectation from IAEA when answering questions about the alleged studies, he ’emphasizes’ that the alleged studies are baseless and forged, but also says that “We proposed that the Agency conducts complete supervision of Iran’s nuclear activities and programs during five years, with the condition that the sanctions are removed.”
There’s no other mention of the proposal in this interview. The link you provided does not seem to refer to the proposal, and IMHO it’s just reiterating Iran’s current position that is not obliged to follow AP ‘right now’.
The interview has other interesting sections as well.
I just saw the above comments (I’ve no idea why I didn’t see them sooner). Also sorry for the duplication.
The newer ‘clarification’ (which actually seems to be more of an ambiguation) in Persian is here which is more complete than the English version anon linked to above. I translate:
BEGIN
The head of Atomic Energy Organization [of Iran] said: “Iran has had a full cooperation with the [International Atomic Energy] Agency since past so far and does not accept more obligations.”
Iranian Students News Agency’s (ISNA) nuclear energy correspondent reports that, when asked by ISNA’s reporter that “you’ve announced that if the sanctions are removed and the Agency does not enter the alleged studies case, Iran is willing to provide full cooperation to the Agency. What do you mean by full cooperation?”, Fereydoon Abbasi told the reporters that “We have always had full cooperation since past and we’re currently continuing the cooperation, which is in some cases more than what is required in the Agency’s standards; and we have provided our information to the Agency.”
When asked about whether the full cooperation includes implementing the Additional Protocol, Abbasi said: “No, our cooperation is within the limits of the Agency’s standards and regulation, provided that they observe our rights, and we don’t accept further obligations.”
END
I’ve no idea why Abbasi is being so vague. He does not clarify whether he’s talking about ‘current’ cooperation – which he describes as ‘full cooperation’ – or the proposed cooperation level if the sanctions are removed.
Thank you Nick! — that’s a good point and something I had not thought of before at all: Iran may be reluctant to ratify the A.P. and thus reveal the locations of all its facilities, since these could then be entered into future targeting plans by the US or Israel. As with Osirak, when Israel bombed what was a peaceful nuclear power facility, this could happen again to the Iranian enrichment facilities. (Incidentally the Israeli raid led directly to the Iraqi nuclear weapons program being kicked off in earnest).
So, I think a reasonable compromise may be for the UNSC, US and Israel to unequivocally take the threat of violence off the table, and thus motivate the Iranians to sign on to the A.P.
Eric Brill months ago presented what I still find the most persuasive argument regarding declared material.
http://brillwebsite.com/writings/Irannuclear.html
The IAEA has no such authority under Iran’s Safeguards Agreement – nor does the Security Council or anyone else. Although the IAEA now insists it is unacceptable, indefinite uncertainty about undeclared nuclear material is not only an acceptable outcome under Iran’s Safeguards Agreement, but one that plainly was contemplated when the Agreement was drafted by the IAEA decades ago. Article 98(O), for example, explicitly excludes uranium “ore” from the definition of “nuclear material” that must be declared, and Article 33 states: “Safeguards under this Agreement shall not apply to material in mining or ore processing activities.” Such exclusions would never appear in an agreement whose purpose was to detect undeclared nuclear material. Undoubtedly that is why the IAEA sought to remove them when detection of undeclared nuclear material became important to the IAEA many years later. Article 2(v) of the Additional Protocol, for example, requires extensive disclosures about uranium mines.
Iran’s obligations under its Safeguards Agreement may not be increased without its consent merely because the IAEA decided, many years later, to place greater emphasis on detecting undeclared nuclear material and devised a more burdensome inspection scheme to accomplish its new goal – including, for example, the Additional Protocol and revised Code 3.1. Much less does the IAEA’s belated emphasis on detection entitle it to venture even beyond the Additional Protocol to ask unending questions about the so-called “alleged studies” files delivered to the IAEA by third parties several years ago. As the IAEA itself acknowledges, even if those files were not entirely fabricated, none of them suggests that Iran has diverted or failed to declare nuclear material, the subject matter of Iran’s Safeguards Agreement. Although Iran nevertheless has answered many questions about those files, it is not willing – much less obligated – to reveal sensitive information about its conventional military capabilities merely because the IAEA considers this necessary to satisfy itself about the “alleged studies.”
Basically what we’re seeing here is a willful misunderstanding of how the original NPT and CSA were to work. First I want to write about the misunderstanding and then its motivation.
The intuitions of the NPT and CSA are a) that it is physically impossible to build a nuclear weapon without fissile material and b) that it is possible with reasonable measures to make it essentially impossible for a nation to hide a useful weapon’s worth of fissile material.
a) and b) together mean that countries that are currently observing their safeguards agreements, such as Japan, Brazil and Iran today, do not have nuclear weapons, and will not have nuclear weapons for at least a matter of months and will not be able to secretly build weapons.
The NPT does not say anything about six months from now. Japan could leave the treaty and have weapons six months from now, as could Brazil. All the NPT requires is that other countries have some degree of warning before an actual weapon could be produced.
That’s all the NPT requires. No weapons today, some degree of warning for month from now. Iran fulfills that just as much as Brazil, Japan or any non-weapons state. It is a reasonable commitment on the part of the non-weapons states. The world would be a better and much safer place if every country, including Israel and the United States made that commitment.
Israel wants more than that. Israel wants for Iran not to be able to build weapons later.
What Amy calls political is Amano’s and others’ attempts, endorsed by Westerners primarily concerned with Israel’s strategic needs, to contort Iran’s obligations beyond the CSA, beyond the AP, to a position that Iran must not have the capability, in theory, to make weapons ever.
Of course Iran never agreed to that, as no NPT signatory has. Of course Iran’s critics are being dishonest in trying to use agreements that said nothing of the sort to produce that outcome.