[Update. I’ve come to the conclusion that the first third of this post is in error, alas. I continue to differ with the view of the New York Times that the resolution is “largely symbolic” — so far, it looks pretty consequential for a symbol — and I don’t know what the Times means by “evidence” in this context, but the resolution is not part of a noncompliance process. It appears that the legal basis for future sanctions emanating from the Security Council will be the previous finding of noncompliance.]
If you follow nonproliferation closely enough, you might have been puzzled by Saturday morning’s news reports about GOV/2009/82, the new resolution of the IAEA Board of Governors referring the matter of Iran to the Security Council for the second time in almost four years.
On one hand, writing in the Washington Post, Glenn Kessler and Joby Warrick reported that the resolution found Iran to be in “breach of its obligation” and “will be referred to the U.N. Security Council, which has the authority to enact sanctions.”
On the other hand, writing in the New York Times, Helene Cooper and William J. Broad wrote that the resolution was “largely symbolic” and “falls short of the diplomatic step of finding Iran in formal ‘noncompliance’ or violation of its nonproliferation commitments, which would provide strong evidence to bolster the drive for a new round of sanctions.”
It will come as no surprise to nonpro wonks that the Times is in error. GOV/2006/14, which referred Iran’s case to the Security Council in 2006, invoked essentially the same language and procedures as yesterday’s resolution. Neither used the word “noncompliance,” preferring “breach of obligation.” More to the point, though, both instructed the IAEA Director-General to report the resolution to the SC.
[Update. It’s not quite so clear-cut; see the comment from Mark Fitzpatrick below.]
Regular ACW readers know that GOV/2006/14 has already led to five SC resolutions, including three rounds of sanctions. As the Bard instructed us:
What’s in a name? that which we call a rose
By any other name would smell as sweet.
(No need to dwell on what he wrote about lawyers.)
Safeguards Enforcement for Dummies
Enforcement of IAEA safeguards is a two-step process. First, the IAEA Board of Governors by a two-thirds vote must refer a case of noncompliance to the UN Security Council. Second, the SC acts as it sees fit. (It’s actually four steps, if one counts the reports of safeguards inspectors and the IAEA Director-General.) This process is defined in Article XII, Paragraph C of the Statute of the IAEA, which reads, in part:
The Board [of Governors] 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.
Purely on its own authority, the BoG can also suspend assistance, recall equipment and materials, or suspend the membership of a stubborn non-complier. But the SC, per Article 24 of the UN Charter, has “primary responsibility for the maintenance of international peace and security” conferred upon it by the Member States.
As John Carlson, the director-general of Australia’s Safeguards and Non-Proliferation Office, pointed out in the May 2009 Arms Control Today, the BoG had referred five cases of noncompliance to the Security Council at the time of writing: Iraq in 1991, Romania in 1992, North Korea in 1993, Libya in 2004, and Iran in 2006. Now there have been six referrals.
SC action is not automatic; no sanctions were imposed against Romania or Libya, whose governments were seen as actively cooperating with the IAEA. But in the other cases, it was more or less a foregone conclusion, and that’s certainly the case this time around. What it takes to get a two-thirds vote in the Board of Governors is not altogether different from what it takes to get a successful vote in the Security Council. That goes double if the sponsors of the BoG resolution include all five permanent members of the SC. The real question is what exactly the SC resolution will involve.
Preview of Coming Attractions
In practice, then, Friday’s resolution does two things. First, it fulfills a procedural requirement, as described above. Second, it makes a statement of intention. The permanent members of the Security Council are signaling that they’re going to act in that format. It’s a good question just how strong or credible that signal is, but that’s what it is — a signal. That’s how officials described it to the Post: as a “clear message” to Iran.
Glancing over the current composition of the SC, I’d guess that once a text is agreed to, Libya will vote against, Turkey will abstain (as it did in the BoG, according to Mark Heinrich of Reuters), and the rest will vote for. (The P5 and Japan voted for in the BoG.) How tough a resolution it will be is another matter; as in 2006, hints are coming from the Iranian side that NPT withdrawal could be on the table.
One final thought. For comparison to the Iran resolutions, see the very gentle GOV/2004/18, which referred Libya’s noncompliance to the SC “for information purposes only.” It used the word “noncompliance” and even mentioned Article XII, Paragraph C by name. The irony is, GOV/2004/18 was largely symbolic. GOV/2009/82, for better and for worse, is not.
Update. In another echo of 2006, Iranian officials are announcing the suspension of voluntary cooperation with the IAEA.
Update. Mark Fitzpatrick writes:
[T]he NYT article wasn’t wrong in reporting the absence of a Board finding of noncompliance, as was the case in the 24 Sept. 2005 resolution (GOV/2005/77). The first operative clause of that resolution said: “Finds that Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement, as detailed in GOV/2003/75, constitute non compliance in the context of Article XII.C of the Agency’s Statute.” The Feb 2006 resolution didn’t include this language because the only purpose was to forward to the UNSC a noncompliance finding that had already been made. This time I believe the Board should have made a similar explicit finding of noncompliance, using that term. I expect that the drafters omitted it in order to get a larger number of yes votes, and to try to preserve some (very) small prospect of a deal on the TRR fuel.
— Mark Fitzpatrick · Nov 29, 04:45 AM ·
Thanks to Mark for this important clarification. Whether it makes a great material difference is another question, since Iran is already in the dock of the Security Council. Perhaps, though, we should add this distinction to our qualms about how strong a signal this resolution really is.
Update. Another gesture of defiance.
In case anyone missed it earlier, here is my manifesto on moderation of comments:
Instead of presuming that a comment should be accepted unless the commenter crosses the elusive line into irrelevance or incivility, from now on, the presumption will be non-publication. To get over the hurdle, comments will have to advance the conversation in some way. It can’t just be the same old arguments in a circle.
To make it as simple as possible: the new rule is, if I judge that typical ACW readers stand to learn something from a comment that they didn’t already know, then the comment is more likely to be approved. I make no claims to objectivity; I’ll just do the best I can, based on my sense of who is reading and what they know. This could mean a lot fewer comments, of course, but that is not a tragedy.
Civility and relevance remain necessary, of course, but they are no longer sufficient.
Thanks, Josh. Obviously “noncompliance,” vs. “breach of obligation” is a distinction without any significant difference. One can only suppose the DG, with lots of consultations, was trying to use this semantic difference to buy some time.
Article IV.B.of the IAEA Statute tells us that, “members of the Agency shall be those States, whether or not Members of the United Nations or of any of the specialized agencies, which deposit an instrument of acceptance of this Statute after their membership has been approved by the General Conference upon the recommendation of the Board of Governors. In recommending and approving a State for membership, the Board of Governors and the General Conference shall determine that the State is able and willing to carry out the obligations of membership in the Agency, giving due consideration to its ability and willingness to act in accordance with the purposes and principles of the Charter of the United Nations.”
One may assume, although only total wonks could prove this by finding the cite I spent too much time chasing, that Iran at some point sought and achieved normal membership in the Agency, with all the rights, privileges, and responsibilities thus conferred.
One may further assume that the current diviners of the NPT and IAEA regime have spent some considerable time mulling over this piece of the puzzle, and could, at this point, determine that Iran is not a member in good standing of the IAEA. Notable in its absence, the resolution passed Friday does not directly address these inviolable requirements of membership.
To me it seems Iran is not at this point “willing to carry out the obligations of membership in the Agency.” One could conclude that maybe Iran is not “able” to fulfill these obligations, if you believe all the stuff you read in the newspapers about internal divisions and the like. But I doubt Iran feels itself unable, as a sovereign nation, to do much of anything as far as international law is concerned.
Sorry to be geeky and legaleezish, but I see no reason not to kick them out of the Agency.
This is purely academic, as the resolution got more than 2/3 YESes, but what makes you think the BoG needs a 2/3 majority to pass it?
The IAEA Statute stipulates in 6.E that “Decisions on the amount of the Agency’s budget shall be made by a two- thirds majority of those present and voting, as provided in paragraph H of article XIV. Decisions on other questions, including the determination of additional questions or categories of questions to be decided by a two thirds majority, shall be made by a majority of those present and voting. Two- thirds of all members of the Board shall constitute a quorum.”
The Rules of Procedure of the BoG tell us in Artilce VII Rule 36 that: “Decisions of the Board on the following questions shall be made by a two-thirds majority of the Members present and voting: (a) The amount of the Agency’s budget; (b) The appointment of the Director General; © Decisions pursuant to Rule 33 of these Rules to reconsider a proposal or an amendment which has been adopted or rejected; (d) Decisions of the Board on amendments to proposals which require a two-thirds majority, and decisions on parts of such proposals put to the vote separately; (e) Decisions of the Board pursuant to Rules 59 and 60 of these Rules to amend or suspend any of these Rules; and (f) Decisions on other categories of questions as decided by the Board pursuant to Rule 37 of these Rules.”
Josh,
Thanks for this useful analysis. But the NYT article wasn’t wrong in reporting the absence of a Board finding of noncompliance, as was the case in the 24 Sept. 2005 resolution (GOV/2005/77). The first operative clause of that resolution said: “Finds that Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement, as detailed in GOV/2003/75, constitute non compliance in the context of Article XII.C ofthe Agency’s Statute.”
The Feb 2006 resolution didn’t include this language because the only purpose was to forward to the UNSC a noncompliance finding that had alrady been made.
This time I believe the Board should have made a similar explicit finding of noncompliance, using that term. I expect that the drafters omitted it in order to get a larger number of yes votes, and to try to preserve some (very) small prospect of a deal on the TRR fuel.
Josh, I was just listening an interview in which Iranian ambassador Soltanieh stated:
“There are consequences, the first consequence is a damage to the IAEA because this resolution polarized the member states, somewhere voting against some were voting for and this is dangerous, for the future of the agency …there were a hidden agenda to use Iran as a pretext to in order to take a steps towards changing this international technical organizations to political organizations”
Regardless of my misgivings about the Iranians delaying tactics, am just wondering what are the barriers preventing the IAEA acting as a technical and logistical medium that provides methods acceptable to both sides in swapping Iran’s LEU with the TRR fuel?
What are the agency’s technical limitations in this area? what are the appropriate steps that the agency could take or should take in order to avoid being labelled as a political tool for westren states?
Thank you for the new post, Josh.
I hope you will approve this comment as some readers may not be aware of new analysis of the Fordow site by the Federation of American Scientists. i.e. I think some folks may, indeed, learn something by the new analysis.
Ha’aretz (and NPR) is reporting something stronger: that Iran may leave the NPT.
Arch:
It might be justified, but would it be constructive to expel Iran from the IAEA? It seems to me that, regardless of what else happens, it’s to everyone’s advantage to keep the safeguards in place.
LH:
Thanks for the correction. My brain must have gotten stuck somewhere around the time of the election of the new Director-General.
Mark:
Thanks for the additional detail. Maybe there is something to the NYT version after all, although the part about “evidence” strikes me as pretty silly. Regardless, I’m going to hoist your comment up into the post, as it goes to the core of the issue.
Probing a little further, GOV/2009/82 doesn’t find Iran in breach of its obligations re: Qom and modified code 3.1, which it calls “inconsistent with its obligations under the Subsidiary Arrangements to its Safeguards Agreement.” Is there an important difference between “in breach of” and “inconsistent with”? Perhaps only the lawyers know.
The “breach” is mentioned in the context not of safeguards but of the obligation to “suspend all enrichment related activities” under SC resolutions going back to 1696 (2006). Both the “breach” and the “inconsistency” are mentioned in paragraph (g).
I come out of this exercise with a shrug. (You’ll have to visualize it.) The implications of these distinctions seem to be academic, since Iran is already in the dock of the Security Council.
A lot of ink has been spilt over the last couple days speculating about the significance of the Russian and Chinese votes in the BOG. Optimists are framing this to imply that this resolution has more weight because all P5+1 are on board. We shouldn’t forget however that the deep divide which ElBaradei and Bush left us with on the board between “haves” and “have nots” persists. This problem had emerged by 2005 and 2006, but back then drafters crafted their resolution texts informed by the view that they could still get a consensus resolution condeming Iran. In 2009, that’s no longer the case. In the run-up to the board meeting last week none of the parties had any illusions that a resolution with tough language could pass without objections. That’s exactly what happened, and we should not conclude that that’s only because Venezuela was attending the meeting as a non-permanent member. I remember Gary Samore telling me back in 2006: “Iran has no friends on this issue.” Today, I wager that isn’t the case. Brazil, Turkey, Malaysia…these are states which see themselves as hedge powers with more to gain by temporizing in this conflict than in joining a consensus led by the P5+1. Don’t believe it? Wait till we get to the revcon..
In other news:
*“Iranian MPs have urged the administration to reduce the country’s level of cooperation with the International Atomic Energy Agency.”:http://www.mehrnews.com/en/NewsDetail.aspx?NewsID=992148
*“The Iranian government tasks the Atomic Energy Organization (AEO) with building ten more nuclear enrichment sites”:http://www.presstv.com/detail.aspx?id=112446§ionid=351020104
*“If other countries don’t want to help us, we’ll be forced to simply make highly enriched uranium ourselves. The material is vitally important for helping us treat cancer patients in our hospitals using radiation therapy”:http://www.spiegel.de/international/world/0,1518,663063,00.html
What is the point of not providing them with HEU for humanitarian purposes, and what is so scary about letting them keep the LEU temporarily on an island under IAEA supervision while a transfer would take place? When the entire Iranian political establishment and public is behind the program, what is one more round of sanctions really going to accomplish besides further reduced Iranian cooperation and further unification around the country’s nuclear program?
One wonders what our true goal is with respect to Iran, and then what the best way to accomplish it would be. What exactly is the point of doing 2006 over again, again?
The latest Board resolution on Iran is not a non-compliance finding in accordance with the IAEA Statute.
The word “breach” is used only in a non-operative paragraph. The operative paragraphs are the numbered ones. The lettered ones are “preambular” and are used to state facts rather than actions or decisions. Furthermore, this paragraph refers only to Iran’s obligations under UN Security Council Resolutions to suspend enrichment. The IAEA has jurisdiction over compliance with safeguards agreements, not over compliance with UNSCRs.
The Board resolution also falls short of an ultimatum to Iran. Article 18 of Iran’s safeguards agreement authorizes the Board to “call upon” Iran to take action that is “essential and urgent” for IAEA verification. Such an ultimatum is typically a precursor to a non-compliance finding. The Board resolution does not invoke this provision of Iran’s safeguards agreement, although it “urges” Iran to comply with the modified Code 3.1 and “calls on” Iran to confirm that it has not decided to construct any other as yet undeclared nuclear facilities.
In addition to NPT duties, the IAEA was tasked with observing Iran’s compliance with UNSC resolutions, in particular the cessation of enrichment. As Iran has not ceased enrichment, I imagine the IAEA are required to report that to the UNSC in a formalised way, although it is no more than stating the obvious. All that said though, a new IAEA resolution was bound to cause ructions.
The Iranian response, to declare the intent to build 10 more enrichment plants, could serve two purposes.
1) To let the E3+3 know that if a deal is to be done over the current LEU stockpile, it does not affect Iranian intentions for their wider nuclear programme, in particular the right to enrich. In other words, it is setting out the starting point for the negotiations that follow a TRR deal.
2) It prepares the domestic ground for the TRR deal, which has significant opposition across the political spectrum.
Right now, the Iranian counter-offer (as described by El Baradei last week), is pretty good. There isn’t a huge gap between the 2 sides. We’ve got the time.
Incidentally, for anyone interested in the question of what constitutes (or should constitute) noncompliance, the above-referenced John Carlson article is a good starting point. It reads as a response to Pierre Goldschmidt’s views, which are also worth reading.