Andreas PersboInspector Designations

The long-running dispute over IAEA inspector designations stands out in the latest report on Iran. Iran rejects inspectors. The IAEA is not happy with it. But who is right and who is wrong? As so often, there are no easy answers.

Paragraphs 9 and 85 of the Comprehensive Safeguards Agreement (INFCIRC/153) details how inspectors are selected. In practice, the Agency suggests a roster of inspectors to the state. The inspected state does have the right to object to any of the suggested names. If it does so, the IAEA has to propose an alternative name. This procedure aims to minimize the risk that intelligence officers, or perhaps corporate spies, infiltrate the inspectorate with a view to gathering classified or sensitive data.

However, the state’s right to refuse inspectors is not unrestricted. If a state refuses designations repeatedly, and that refusal should “impede the inspections” carried out by the Agency, the Director-General has the choice to refer the matter to the Board for consideration and action. The text doesn’t spell out who should decide that a repeated refusal impedes inspections. An ordinary reading strongly suggests that it is the Secretariat itself that makes that determination. It cannot be the state, because that would make the entire paragraph meaningless (it would never admit that its behavior impedes inspections). It also cannot be the Board of Governors, since that would make the language on referral irrelevant.

The paragraph is likely to target behavior when the state is trying to obstruct the inspection process. It does not have a problem with the names on the list. Rather, it has a problem with the inspections themselves. In the present case, Iran is trying to use the mechanism to put pressure on the Secretariat to curb leaks of the Director-General’s reports to the media. While Iran’s irritation is understandable, its objections, as reported, have little to do with the inspectors themselves. After all, we’ve not seen a repeat of the Chris Charlier story.

The Director-General’s impatience is also clear. The latest report reveals that the IAEA met with Iran’s Ambassador to the Agency on 20 July 2010 to discuss this particular matter. According to the report, the IAEA held that Iran’s “repeated objection … hampers the inspection process and thereby detracts from the Agency’s capability to implement effective and efficient safeguards in Iran.” This language, forcefully put, closely resembles the wording of the Comprehensive Safeguards Agreement. The Director-General does not clearly ask the Board to consider the matter at its meeting next week. So the report’s language is probably meant to be a shot across the bow.

However, even if the Board were to discuss the matter, there’s not much it can do. It could call on Iran, under paragraph 18 of the Agreement, to accept the Secretariat’s inspector designations “without delay.” Whether Iran, in such a case, complies with the Board’s request is another matter entirely.

I wouldn’t make a spot bet on it.

Comments

  1. FSB (History)

    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 BoG and Iranian govt.

    http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf

    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.

    ================

    Easy-peasy answer — no wonkery needed.

    • andreas (History)

      “No wonkery needed”, wonderful. You’re correct, of course. Arbitration would be one (in my mind the best) way to try to settle this conflict. Why not throw Code 3.1. into that process as well?

    • MWG (History)

      As far as I know, the arbitration provision of a safeguards agreement has never been used. Rather, the Board of Governors has been considered the authoritative decision making body for IAEA safeguards. I’m not sure any party would be keen on binding arbitration, given the risks and uncertainties. And who would select the arbitrator on behalf of the IAEA? The Director General? The Board?

    • andreas (History)

      MWG. Well, it could be anyone really. You’re volunteering? The problem with arbitration, as I see it, is that it’s essentially a legal negotiation. The conclusions of the arbitration won’t have the same impact as a finding by an international court. That aside, I’m confident that the IAEA would win both an arbitration and a court case. So having arbitration would be very useful. Not sure, though, that all parties would adhere to the outcome.

    • FSB (History)

      Well, it may be considered better than bombing.

      And it is enshrined in the document that the IAEA and Iran signed, so what anyone thinks of it is largely irrelevant. It is the law, and the proper way to resolves disputes outside Art. 19 disputes.

  2. hass (History)

    When the IAEA is demanding inspections that fall outside of its authority — such as demanding to take samples of heavy water — then the problem isn’t Iran’s refusal to “cooperate” but the politicized nature of the IAEA demands on Iran. Lets read the explicit text of Iran’s safeguard agreement with the IAEA that explicitly states that the sole purpose of the inspections is to ensure that there has been no diversion of nuclear material to non-peaceful uses — something which the IAEA has consistently certified is the case and always has been — and does not also allow the IAEA to demand access to missile designs etc. The IAEA is acting ultra vires.

    • mwg (History)

      To be precise, the IAEA has concluded that there has been no diversion of DECLARED nuclear material. This is not the same as saying there has been no diversion at all. Because the state is required to declare ALL nuclear material, the IAEA has interpreted “diversion” as applying to material that the state was required to declare but did not. That is, failure to declare nuclear material is a form of diversion.

      This understanding of diversion is necessary to match various provisions of a safeguards agreement to the basic undertaking (paragraphs 1 and 2 or INFCIRC/153), which is for the state to accept (and the IAEA to apply) safeguards to ALL nuclear material in the state.

      The IAEA has pointedly refrained from concluding that Iran has declared all nuclear material as required under its safeguards agreement.

    • hass (History)

      Sorry MWG but the IAEA has also said that not only has there been no diversion of DECLARED nuclear material, they really have no evidence of UNDECLARED stuff either — and in fact, in accordance with the basic safeguards that applies to Iran, the IAEA simply CANNOT EVER state anything about the absence of UNdeclared material. Indeed, the US accuses Iran of seeking the “intention to obtain the capacity” to make nukes, not of currently having an undeclared nuclear weapons program. We have been over this many times.

      Though Iran has not formally ratified the Additional Protocol, it did implement the Additional Protocol for 2 years and allowd more instrusive inspections — and no weapons program was found – and has offered to formally ratify the Additional protocol once its nuclear rights are recognized — but the US flatly refuses.

      And, as Michael Spies of the Lawyer’s Comittee for Nuclear Policy has explained:

      bq. For some it is tempting to declare, based on the inability of the IAEA to presently draw a conclusion on the absence of nuclear activities, that Iran continues to operate concealed facilities and that any such facilities must be for a military program. But the IAEA has cautioned that the lack of a conclusion does not imply suspicion of undeclared nuclear materials and activities, as the matter is frequently spun in the media and by some governments.

      According to the IAEA’s own Annual Safeguards Implementation Report of 2004, of the 61 states where both the NPT safeguards and the Additional protocol are implemented, the IAEA has certified the absence of undeclared nuclear activity for only 21 countries, leaving Iran in the same category as 40 other countries including Canada, the Czech Republic, and South Africa. Note especially the last sentence in which it says that the IAEA has to conclude that the nuclear programs of even those countries remain peaceful:

      bq. “With regard to 21 States with both CSAs [Comprehensive Safeguard Agreements] and AP [Additional Protocol] in force or otherwise applied, the Agency concluded that all nuclear material in those States remained in peaceful nuclear activities. For 40 other such States, the Agency had not yet completed the necessary evaluations, and could therefore only draw the conclusion that the nuclear material placed under safeguards remained in peaceful nuclear activities.”

      Finally, I would only add that the IAEA has explicitly said that it has no evidence of any “undeclared” nuclear material or activities in Iran either. For example this is what ElBaradei stated regarding the 2007 NIE:

      bq. IAEA Director General Mohamed ElBaradei … notes in particular that the Estimate tallies with the Agency´s consistent statements over the last few years that, although Iran still needs to clarify some important aspects of its past and present nuclear activities, the Agency has no concrete evidence of an ongoing nuclear weapons program OR UNDECLARED NUCLEAR FACILITIES IN IRAN.

    • FSB (History)

      The “undeclared” red herring is silly — no one, not even GOD can attest to the non-diversion of undeclared material.

      Can anyone attest that there is non-diversion of undeclared material in the US? How?

      This was addressed by Masoud and hass in a previous thread. I quote from them both below to save my breath:

      The Agency has never found that it “is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement”, so the Agency has no authority to report the matter to either the security council or the General Assembly.

      The fact that it did so contrary to the agreements in force render it’s findings moot. It may just as well have found that you need a haircut and reported you Extreme Makeover. Neither does the UNSC “calling upon” Iran to take measures to “comply with provisional measures” that have been explicitly identified as being “without prejudice to the rights, claims, or position of the parties concerned” under article 40 of the UN charter create any obligation for Iran under the either the NPT the it’s safeguards agreement, the IAEA statute(which it has not even ratified) or any other relevant instrument. Iran remains in full compliance with it’s international obligations, US propaganda notwithstanding.

      http://157.150.195.10/en/documents/charter/chapter7.shtml

      http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf

      http://www.iaea.org/About/statute_text.html

      according 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.

      Further, the Feb 2010 IAEA report, point 46: “While the Agency continues to verify the non-diversion of declared nuclear material in Iran…” That is enough to satisfy the letter of the safeguards agreement.

      Please read the safe guards agreement:

      Article 19
      If the Board, upon examination of relevant information reported to it by the Director General,
      finds that the Agency is not able to verify that there has been no diversion of nuclear material **required to be safeguarded under this Agreement…” **

      To be “Diverted” means that you could be accounted for last month, but now you can’t be accounted for. Every scrap of fissile material that the IAEA has ever come across in in Iran the past fourty years, it can account for today, meaning, once again, that the IAEA not only CAN but HAS verified non-diversion.

      Saying it has “verified non-diversion of declared material in Iran” is akin to saying “eaten all the edible food on the plate”. If one is naive, one may ask is there some non-edible food on the plate that should be eaten? But after some reflection, one should come to the realization that if it is not edible, it’s not food, and we shouldn’t worry about eating it.

      non-diversion of non-existent or suspected material is not under question — only the non-diversion of safeguarded material needs to be verified — which it has been as long as Iran has had a nuclear program.

      There is no possible way to verify the non-diversion of hypothetical/non-existent nuclear material — for any country.

  3. hass (History)

    “In the present case, Iran is trying to use the mechanism to put pressure on the Secretariat to curb leaks of the Director-General’s reports to the media”

    And you base this conclusion on what?

    Lets not forget that we know for a fact that the inspectors sent to Iraq were intelligence operatives who gathered targetting intelligence, and that Iran has repeatedly been threatened with (even nuclear) attack. So on what basis do you assume that Iran does not have any valid concerns about some inspectors?

    • andreas (History)

      Hass, it’s in paragraph 35 of the latest report, in black on white.

    • hass (History)

      Yes I know what the report says. My point is that that’s probably not their only concern, and that they have other valid concerns about inspectors which they won’t necessarily state openly. In fact, why assume that what the report says to be necessarily true or the full truth on the issue? In general I can’t help but notice how sometimes writers on this site are willing to engage in very far-ranging speculation, and other times not. The evidentiary bar seems to rise and fall somewhat arbitrarily.

    • andreas (History)

      Right. But I base the post on what the report says. Not what Iranian officials may or may not be thinking: if I did, I would be speculating. And Hass, I think I’ve made it clear in the past that I trust the reports of an Intergovernmental, impartial, organisation more than the statements of a party under inspection. You don’t.

    • hass (History)

      Note further that you reach two opposing conclusions in your post, Andreas. You say that Iran is trying to pressure the IAEA to end the leaks, and yet you also say that Iran trying to evade inspections. So which is it?

    • andreas (History)

      Did I conclude that Iran is trying to evade inspections? I don’t think so. Even if I did, how are your two statements in contradiction? It’s been a while since I did logic, but cant you try to evade inspections AND pressure the IAEA to end the leaks? It has to be OR?

    • hass (History)

      I would also note that while you address the issue of the options for countries barring inspectors for non-legitimate reasons, you don’t address the options for countries whose rights are being violated by the IAEA inspectors that regularly leak what are supposed to be confidential reports to a blood-thirsty media circus. Doesn’t Iran have a legitimate right if it does seek to pressure the IAEA to stop the leaks by engaging in some hardball of its own?

    • rmd (History)

      Andreas:

      I base the post on what the report says.

      Perhaps you tried to, but if so you did not succeed.

      (1) The report does not say that “Iran is trying to use the mechanism to put pressure on the Secretariat to curb leaks of the Director-General’s reports to the media”. It says (a) that Iran has threatened, in the letter of 2010-06-03, to use the mechanism to that end; and (b) that it actually did use the mechanism, in the letter of 2010-06-10. But it does not say that that use of that mechanism was to that end.

      (2) The report does not explicitly state to what end Iran did use the mechanism; nor even, to what end Iran claimed to use it. But it does strongly imply that Iran represented its use as being in reaction to statements in para. 28 of the previous report, claimed by Iran to be “false and wrong”:

      (2.1) The second sentence of para. 35 in the present report implies that Iran implied that such was the case:

      In a letter to the Director General dated 10 June 2010, referring to the “false and wrong statements in paragraph 28” of the Director General’s previous report (GOV/2010/28), Iran informed the Agency that it objected to the designation of two inspectors who had recently conducted inspections in Iran.

      (2.2) Para. 36 likewise implies that the “basis upon which Iran . . . sought to justify its objection” was not breach of confidentiality, but “false and wrong statements” in the previous report:

      . . . the Agency rejects the basis upon which Iran has sought to justify its objection in this case.
      The Agency has full confidence in the professionalism and impartiality of the inspectors concerned, as it has in all of its inspectors, and confirms that the Director General’s previous report on the implementation of safeguards in Iran (GOV/2010/28) is fully accurate.

      (3) The question remains, why para. 35 refers at all to Iran’s confidentiality concerns and the letter of 06-03. One possibility is that the Director General considers Iran’s stance in that letter objectionable in itself, without regard to the action of 06-10. Another possibility is that the reference is intended to prepare for para. 37, by suggesting that Iran’s “repeated objection . . . to the designation of inspectors” is likely to continue in future, on grounds including breaches of confidentiality and false reports, and that such repeated objections are liable to continue to “detract from the Agency’s capability to implement effective and efficient safeguards”.

      (4) However that may be, you have no warrant from the Report to conclude that “Iran is trying to use the mechanism to put pressure on the Secretariat to curb leaks of the Director-General’s reports”, nor that Iran claims to be using it to that end, nor that the Director General claims that Iran is using it to that end.

      (5) Even if that conclusion were warranted, it would not justify your further claim that “Iran has a problem with the inspections themselves”, nor for your insinuation that Iran is “trying to obstruct the inspection process”. Maybe it is, and maybe it has; maybe it has a well grounded mistrust of the conduct of your “Intergovernmental, impartial, organisation”.

    • andreas (History)

      RMD.

      On points (1-4): If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck. They said they were going to do it and they did it. Sure, they could have done it because the President’s wife burned the roast in the oven, or because it was a very beautiful day in Tehran. Causality can be a very complex thing. Yet, it most instances, it’s very straightforward.

      On point (5): Please re-read the post. Carefully this time: “The paragraph is likely to target behavior when the state is trying to obstruct the inspection process. It does not have a problem with the names on the list. Rather, it has a problem with the inspections themselves”. Do you see the word Iran anywhere there? If you are going to quote someone, do it correctly, or don’t do it at all.

    • rmd (History)

      Andreas:

      On points (1-4): If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.

      This merely evades the point, adequately established in the previous comment, that you’ve failed to establish that that it does indeed looks like, swim like, quack like a duck.

      They said they were going to do it and they did it.

      They said then they’d do it in the event of further breaches of confidentiality. They now say they’ve done it because of “false and wrong” statements in the DG’s earlier report. If you believe the first statement, why not believe the second?

      As far as I know, Iran hasn’t complained of further leaks (if you’re aware of such complaints, citing them might move the conversation forward). But if Iran believes that further leaks have occurred, and if, as we agree, they would wish to deter such leaking, wouldn’t that purpose be best served by their grounding their action of 06-10 on those leaks, rather than on the separate grievance of “false and wrong” statements?

      If you’re willing to believe (as we both are) that Iran is liable to object to inspectors in order to deter leaks, why should you be unwilling to believe that it would likewise do so in order to deter false and wrong statements?

      Sure, they could have done it because the President’s wife burned the roast in the oven, or because it was a very beautiful day in Tehran.

      Or they could have done it for the reason described in para 35. of the DG’s latest report, the “false and wrong statements in paragraph 28” of the previous.

      Rather, it has a problem with the inspections themselves

      Do you see the word Iran anywhere there?

      Obviously, it isn’t there, and obviously, that is why I spoke not of a claim but an insinuation that Iran is “trying to obstruct the inspection process”; an insinuation being, as the OED states, a “suggestion or hinting of anything indirectly, covertly, or by allusion or implication”.

      The suggestion is in the present instance pretty strong; you wrote:

      The paragraph is likely to target behavior when the state is trying to obstruct the inspection process. It does not have a problem with the names on the list. Rather, it has a problem with the inspections themselves. In the present case, Iran is trying to use the mechanism to put pressure on the Secretariat to curb leaks of the Director-General’s reports to the media.

      That would suggest pretty strongly that Iran’s use of the mechanism is a case, “the present case”, of a state “trying to obstruct the inspection process”, “not [having] a problem with the names on the list”, but “[having] a problem with the inspections themselves”. If you didn’t intend to convey that, what did you mean by talking about states “trying to obstruct the inspection process”, and then calling Iran’s action “the present case”?

    • andreas (History)

      We clearly interpret the paragraph differently. Fine. This is not what irritated me so much with your comment.

      It’s your disingenuous way of referencing people.

      You wrote that I wrote that “Iran has a problem with the inspections themselves”. I hate to repeat myself, but what I wrote was “The paragraph is likely to target behavior when the state is trying to obstruct the inspection process. It does not have a problem with the names on the list. Rather, it has a problem with the inspections themselves”. It has nothing to do with Iran. To emphasise that, I even added the words “as reported” in the next sentence.

      Did you, or did you not, twist what I wrote by a blatant, and clumsy, misquote? That you now try to wiggle your way out of by referencing to the dictionary meaning of insinuation, avoiding the question while you in the same paragraph accuses me of avoiding questions, makes me consider talking to Jeff about banning you from the ACW altogether.

      This discussion is now over.

  4. Nick (History)

    Sure throw in code 3.1 in the docket, you may as well throw in repeated threats of military strikes on Iran’s Agency safeguarded sites by NPT members and also non-members, which are in clear violation of Article 2 Paragraph 4 of UN, not to mention the spirit of NPT.

    As for the inspectors’ issue, instead of looking at every word of the Safeguard Agreement of 1974 between the Agency and Iran, perhaps the best advice is for the Agency to start selecting agents (sorry I meant select inspectors, a Freudian slip) that have not been trained at the National Labs of those countries that are out to get Iran. There are certain logical aspects of the SA that goes beyond the black and white of what has been written.

  5. Peter Crail (History)

    Interesting note on the arbitration process, it’ll be interesting to see if things head in that direction. I would imagine though, that it would be too late to handle Code 3.1 in that way since the Security Council has already staked out its position that Iran cannot unilaterally suspend or alter it in any way and made implementation of the modified code legally binding. From res. 1929:

    “Decides that Iran shall without delay comply fully and without qualification with its IAEA Safeguards Agreement, including through the application of modified Code 3.1 of the Subsidiary Arrangement to its Safeguards Agreement, calls upon Iran to act strictly in accordance with the provisions of the Additional Protocol to its IAEA Safeguards Agreement that it signed on 18 December 2003, calls upon Iran to ratify promptly the Additional Protocol, and reaffirms that, in accordance with Articles 24 and 39 of Iran’s Safeguards Agreement, Iran’s Safeguards Agreement and its Subsidiary Arrangement, including modified Code 3.1, cannot be amended or changed unilaterally by Iran, and notes that there is no mechanism in the Agreement for the suspension of any of the provisions in the Subsidiary Arrangement”

    Opening it up to arbitration would either make the process seem as though the result was foreordained, or present the odd scenario of having two opposing legally binding requirements—and I believe as a UN Charter action, the UNSC decision would supersede an arbitration result anyway.

    • andreas (History)

      Correct in both cases Peter. Let’s not throw in Code 3.1…

  6. Andrew (History)

    Other than the fact that intelligence operative have previously worked in the IAEA and the IAEA gathering inspectors from Western national labs, Iran may also have a perception that Western governments are illegaly wiretapping the IAEA (http://www.washingtonpost.com/wp-dyn/articles/A57928-2004Dec11.html).

  7. hass (History)

    In short (sorry for multiple posting but having computer problems) You’re imposing a rather limited frame on this issue: either Iran simply accedes to having what are supposed to be confidential reports touted to a warmongering media (who promptly put a misleading and inaccurate spin on it, is “The UN has delared Iran has enough uranium for 3 bombs” rubbish) or if Iran pressures back, it must be just doing so to evade inspections. There’s no third alternative here. ReallY?

  8. archjr (History)

    Shocking, but I agree with Hass in a limited way. Iran is doubtless paranoid about intelligence agents posing as inspectors, and Charlier’s indiscretion only fed that widespread syndrome that paralyzes the Iranian government. But inspectors are not necessarily intelligence agents of NPT countries threatening nuclear attack, either, although he states this as a fact with absolutely no support.

    My belief is that the Agency has acted with a remarkable amount of circumspection, and the lawyers there have carefully articulated the IAEA’s obligations under the safeguards agreement. There can be no question that Iran has impeded the Agency’s ability to carry out its obligations.

    The Agency is far from reckless, and does not play fast and loose with the facts. For Hass to place the blame on the Agency for this conundrum is laughable.

    • hass (History)

      According to the explicit text of Iran’s safeguards agreement the EXCLUSIVE purpose of the safeguards is to ensure that there has been no diversion of nuclear material to non-peaceful uses. This has been repeatedly certified to be the case. Iran is under no legal obligation whatsoever under its safeguards to allow inspectors access to missile or centrifuge design facilities, or to allow sampling of heavy water. When making such demands — that the previous IAEA reports characterized as “transparency measures” meaning they were voluntary and outside of the safeguards — the IAEA is simply acting ultravires.

  9. George William Herbert (History)

    There are two competing explanations for Iran’s lack of cooperation –

    1. They have something to hide (a weapons program or components of one, that’s not declared).

    2. They don’t have something to hide (no weapons program) but are resisting out of pride or to establish strategic ambiguity.

    We got this wrong in the case of Iraq in the 90s. It was nominally case 1 for a few years (91-94ish) with an effort to hide infrastructure and information to be able to reestablish something, and then case 2 from then until shortly before the invasion, where they finally came clean.

    Having been an early and emphatic advocate of doing something about Iraq who was well and truly fooled by what they were doing into thinking it was a covert ongoing program there, I am in no position to lecture on this issue.

    However, I would note for the record that a large part of the NPT and IAEA’s role is to ensure that this sort of confusion doesn’t happen. The reason for that war and the Baathist regime’s general and Saddam Hussein’s specific demise was that the world community in general and the US specifically have a finite patience for perceived enemies going nuclear, at least sometimes (North Korea notwithstanding).

    If you fail to cooperate with the regime intended to avoid wars…

    • FSB (History)

      Or (3) It’s none of anyone’s business, as long as the IAEA can confirm non-diversion.

      Would the US allow Iranian inspectors at Y-12? Oh pooh-pooh come on, why not? — the US has nothing to hide does it? So let them in. Or is it pride?

      The question of national sovereignty cannot be over stressed. It is none of anyone’s business as long as the U is not being diverted. The IAEA is not a gestapo with open warrant to do whatever it likes — there are limits.

      And if there’s a problem, then Article 22 kicks in.

      Simple.

      And, let the IAEA at least be impartial in how it pursues countries — how about frickin’ looking at Brazil’s military nuclear program?

      http://www.nti.org/e_research/e3_brazil_new_nuclear_defense.html

      [Edited away the long quote. Click on the article instead. /AP]

      When the IAEA harasses Brazil as much as it does Iran, I may begin to entertain the concept of possibly taking their concerns seriously.

    • hass (History)

      George William Herbert – You have a rather simplistic reading of the cause of the Iraq war. It was not due to the lack of cooperation by Iraq with inspectors, nor was it due to any genuine fears of Iraqi WMDs (nuclear or otherwise.) It is now a well-established historical fact that the US had already decided to go to war, regardless.

    • hass (History)

      George William Herbert — you leave out one other reason why Iran would cease to provide additional transparency that falls outside of the authority of the safeguards: because it has learned from bitter experience that such additional transparency measures will not lead to a resolution but will instead simply lay the basis for heightened demands for concessions by Iran, because ultimately this standoff isn’t really about any legitimate fear of nuclear proliferation but is instead political (aka playing “rope a dope.”) Nuclear proliferation concern is merely pretextual, and therefore no amount of Iranian concessions on inspections will ever suffice to resolve the issue because some new issue can always be cooked up. Note that the IAEA essentially gave Iran a clean bill of health over its past nuclear program in its Feb 2008 report. Just 1 week prior to the issuance of the report, the US finally made selected bits of the so-called “laptop of death” containing the “alleged studies” claims to the IAEA, thus ensuring that the media had something to vilianize Iran about regardless of the fact that the Feb 2008 report otherwise vindicated Iran’s position that it had no secret weapons program. Indeed, even today, the US accuses Iran of “seeking the capability” to make nukes, which applies to any country that has an even civilian nuclear program. No amount of inspections by the IAEA can disprove that US assertion, since it is nebulous and speculates about a potential course of action by Iran in the indefinite future. No inspections can “prove” that Iran … or any other country..won’t possibly one day decide to “breakout” and make nukes (today about 100 countries can already do so) and yet that is exactly the standard of evidence that is being imposed and what the US demands.

  10. mwg (History)

    The standard procedure for designating inspectors has changed. Now all inspectors are automatically designated to every state unless the state objects to specific names. This is codified in Article 11 of the Additional Protocol:

    The Director General shall notify [the state] of the Board’s approval of any Agency official as a safeguards inspector. Unless [the state] advises the Director General of its rejection of such an official as an inspector for [the state] within three months of receipt of notification of the Board’s approval, the inspector so notified to [the state] shall be considered designated to [the state];

    (ii) The Director General, acting in response to a request by [the state] or on his own initiative, shall immediately inform [the state] of the withdrawal of the designation of any official as an inspector for [the state].

    b. A notification referred to in paragraph a. above shall be deemed to be
    received by [the state] seven days after the date of the transmission by
    registered mail of the notification by the Agency to [the state].

    Before this became the standard under the Additional Protocol, it was proposed as a voluntary measure and many states agreed to this procedure. I don’t know whether Iran was one of those.

    • andreas (History)

      Good addition. Thanks MWG.

    • FSB (History)

      Well Iran has not signed the Additional Protocol, so it is not a relevant point at all.

      Any nation is free to not sign the AP.

    • andreas (History)

      FSB. Perhaps not relevant for Iran, since they have not ratified the Additional Protocol (they have signed it – and is therefore still bound to respect the protocol’s object and purpose).

      But MWG’s point is most definitely relevant for anyone even remotely interested in more than a highly selective understanding of the safeguards system.

    • hass (History)

      Andreas – regardless of the legal interpretation of whether signing a protocol requires a country to respect its “object and purpose” lets not forget that Iran has not only abided by the AP for over 2 years but has even gone beyond it on several occasions. The inspections at Parchin, for example, and the list of items to be resolved contained in the 2007 “Modalities” agreement with the IAEA, all required Iran to provide information to the IAEA that went beyond the AP. And, exactly ZERO evidence of any nuclear weapons was found. What happened? Yet more demands were imposed on Iran, and yet more speculation promoted. This conflict is not about the technicalities or legalities, it is political, and the “nuclear weapons” issue is merely pretextual.

      Now, wouldn’t it be nice that certain other countries started to actually respect their OWN obligations under the NPT not to mention the UN Charter? Note that even planning to launch an attack on Iran’s nuclear or other facilities is itself a war crime.

    • andreas (History)

      Be that as it may, Iran remains a signatory to the Protocol. I have not heard that they’re going to lift their signature. (And by the way: inspections at Parchin fell under 5c of the Protocol).

  11. Alan (History)

    On the never-ending argument over whether the IAEA is limited to verifying non-diversion of declared material only, see note 44 in the current report:

    “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 nondiversion 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). Paragraph 41 reflects the past and current implementation by Iran of its Safeguards Agreement and other obligations.”

    • FSB (History)

      Lovely — and if there is any dispute on anything outside Art. 19 of the SA, then Art. 22 arbitration kicks in.

  12. Alan (History)

    Article 19 then:

    “The Agreement should provide that if the Board upon examination of relevant information reported to it by the Director General finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under the Agreement to nuclear weapons or other nuclear explosive devices, it may make the reports provided for in paragraph C of Article XII of the Statute and may also take, where applicable, the other measures provided for in that paragraph. In taking such action the Board shall take account of the degree of assurance provided by the safeguards measures that have been applied and shall afford the State every reasonable opportunity to furnish the Board with any necessary reassurance.”

    Is the dispute outside these provisions? Isn’t nuclear material “required to be safeguarded” all nuclear material, declared or otherwise?

    • hass (History)

      this is what ElBaradei stated regarding the 2007 NIE:

      “IAEA Director General Mohamed ElBaradei … notes in particular that the Estimate tallies with the Agency´s consistent statements over the last few years that, although Iran still needs to clarify some important aspects of its past and present nuclear activities, the Agency has no concrete evidence of an ongoing nuclear weapons program OR UNDECLARED NUCLEAR FACILITIES IN IRAN.”

  13. Ataune (History)

    What about looking at this from a political perspective.

    From Iranian point of view, the issue of Completeness or the Code 3.1 controversy does not necessarily have an adverse effect on its sovereign right, particularly compared to other possible outcomes. Even though these issues have opened the door to more politically motivated and irritating thorns like the un-relenting isolation and sanction policy pursued mainly by the US, but overall, Iran, having defined the advancement of its civil nuclear industry and the mastery of the fuel cycle as a strategic national goal, would garner more benefit from the actual state of affairs than leaving the NPT and making its nuclear facilities open to military attacks by other states: today, the international law, thoroughly built by the victors of WW II, consider any attack on safeguarded civil nuclear facilities a war crime.

    This political perspective become even more puzzling if we take a look at the divergence, not to talk of contradiction, that the current situation engender between the various interests at stake in the Western world, in particular the ones between Israel and the US. Israel has declared Iran an existential threat, therefore its national interests dictate the neutralization of this immediate threat. But it is clear that Israel alone cannot confront Iran politically or militarily. It needs a coalition of states in place, naturally lead by the US, its most powerful ally. It also needs to put this coalition in march toward a state of confrontation. For this the issues raised against Iran should go to the brink and eventually generate a confrontation between the US and Iran.

    US on the other hand doesn’t play in the same court as Iran, but with others like Russia or China. The national interests of the US will therefore assuredly perceive Iran not as an existential threat but as a panoply of threats and opportunities to be deterred or engaged. US intelligence and military apparatus, in its majority, seems to be aware of this contradiction and this somehow is being reflected in the US policy toward Iran’s nuclear policy. The careful dance around completeness and Code 3.1 are Part of this reflection. The net effect of raising these issues in the Security Council is to keep the soup in the pot warm without letting it boil. And, surprisingly, this is convenient for both Iran and the US.

    • FSB (History)

      You say: “US on the other hand doesn’t play in the same court as Iran, but with others like Russia or China. The national interests of the US will therefore assuredly perceive Iran not as an existential threat but as a panoply of threats and opportunities to be deterred or engaged.”

      One would think, huh?

      Alas, there are powerful lobbies in the US (and by that I don’t mean just the Likudnik AIPAC-like lobbies, but also the armament industries) who would like us to think that Iran is an existential threat to the US — just read what the EMP commission write for example. They seriously think Iran may (and is capable of) launching a devastating high-altitude EMP strike against the US using scuds and non-existent 1 kiloton warheads.

  14. Alan (History)

    Hass:

    “the Agency has no concrete evidence of an ongoing nuclear weapons program OR UNDECLARED NUCLEAR FACILITIES IN IRAN”

    Yes, El Baradei did say this, but he has also said in numerous reports since that the Agency is unable to verify the non-existence of undeclared facilities because of Iranian intransigence over what evidence the IAEA does have, some of which was obtained following the 2007 NIE.

    So I don’t think his quoted statement from 2007, which also appeared in a Board Report, can be taken as either his definitive position, or that of the IAEA.

  15. Dan Joyner (History)

    I would like to recommend to colleagues studying the assertions of authority by organizational organs like the U.N. Security Council, and the IAEA BOG, that they not automatically accept the organ’s own assessment of the scope of its own authority. Neither the Security Council nor the IAEA BOG are above the law. They have delimited authority given to them by their creator states. Thus, when the Security Council in Resolution 1929 assumes that it has a judicial authority to determine Iran’s international legal obligations, or when in its report on Iran the IAEA BOG declares the breadth of its authority to include questions of the presence or absence of undeclared materials in a state, these are not per se unassailably correct legal statements. I’m saying that neither organization is the final and absolute determinor of the scope of its own legal authority. So please dont automatically assume that if an organization says it has a particular scope of authority, that it indeed does. Every administrative organ, in domestic or international law, has an interest in avowing the most expansive possible understanding of its own authority. But sometimes in their zeal to aggrandize their authority, they run roughshod over fundamental or constitutional principles which limit their authority. The Security Council, in my opinion, does this frequently.
    Dan Joyner

  16. FSB (History)

    Apologies for copying a post but this “undeclared” red herring has popped up in a couple of places —

    The “undeclared” red herring is silly — no one, not even GOD can attest to the non-diversion of undeclared material.

    Can anyone attest that there is non-diversion of undeclared material in the US? How?

    This was addressed by Masoud and hass in a previous thread. I quote from them both below to save my breath:

    The Agency has never found that it “is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement”, so the Agency has no authority to report the matter to either the security council or the General Assembly.

    The fact that it did so contrary to the agreements in force render it’s findings moot. It may just as well have found that you need a haircut and reported you Extreme Makeover. Neither does the UNSC “calling upon” Iran to take measures to “comply with provisional measures” that have been explicitly identified as being “without prejudice to the rights, claims, or position of the parties concerned” under article 40 of the UN charter create any obligation for Iran under the either the NPT the it’s safeguards agreement, the IAEA statute(which it has not even ratified) or any other relevant instrument. Iran remains in full compliance with it’s international obligations, US propaganda notwithstanding.

    http://157.150.195.10/en/documents/charter/chapter7.shtml

    http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf

    http://www.iaea.org/About/statute_text.html

    according 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.

    Further, the Feb 2010 IAEA report, point 46: “While the Agency continues to verify the non-diversion of declared nuclear material in Iran…” That is enough to satisfy the letter of the safeguards agreement.

    Please read the safe guards agreement:

    Article 19
    If the Board, upon examination of relevant information reported to it by the Director General,
    finds that the Agency is not able to verify that there has been no diversion of nuclear material **required to be safeguarded under this Agreement…” **

    To be “Diverted” means that you could be accounted for last month, but now you can’t be accounted for. Every scrap of fissile material that the IAEA has ever come across in in Iran the past fourty years, it can account for today, meaning, once again, that the IAEA not only CAN but HAS verified non-diversion.

    Saying it has “verified non-diversion of declared material in Iran” is akin to saying “eaten all the edible food on the plate”. If one is naive, one may ask is there some non-edible food on the plate that should be eaten? But after some reflection, one should come to the realization that if it is not edible, it’s not food, and we shouldn’t worry about eating it.

    non-diversion of non-existent or suspected material is not under question — only the non-diversion of safeguarded material needs to be verified — which it has been as long as Iran has had a nuclear program.

    There is no possible way to verify the non-diversion of hypothetical/non-existent nuclear material — for any country.

  17. Alan (History)

    Article 19 doesn’t limit nuclear material to “declared” nuclear material, while the NPT requires all nuclear material to be safeguarded.

    Thus we are only debating this because the IAEA have used the word “declared”. Why have they used this word?

    • FSB (History)

      No, in fact, you are plain wrong. Go read Article 19. It says:

      “not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement….”

      i.e. There is a set of material which is required to be safeguarded and IAEA has to make sure it can account for THAT material. If it suspects there is additional possible material and there is a big kerfuffle, then Article 22 arbitration is needed.

      However, IAES has accounted for all the material it has been tasked with accounting.

      Kindly read the Feb 2010 IAEA report, point 46: “While the Agency continues to verify the non-diversion of declared nuclear material in Iran…” OK?

      That, in itself, is enough to satisfy the letter of the safeguards agreement.

    • FSB (History)
  18. Alan (History)

    Why do you think the IAEA say “declared” then?

    • FSB (History)

      What precisely are you talking about? — Art 19 of the SA says “nuclear material required to be safeguarded” not “declared”

      Where do you see “declared”? (This is an honest question — I don’t know what sentence of the IAEA docs you are referring to)

      Please outline your logic from start to finish, with the docs you refer to — as I said Article 19 says:

      “not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement….”

      i.e. There is a set of material which is required to be safeguarded and IAEA has to make sure it can account for THAT material. If it suspects there is additional possible hypothetical material and there is a big kerfuffle, then Article 22 arbitration is needed.

      Incidentally, it is physically IMPOSSIBLE to verify the non-diversion of hypothetical nuclear material — for ANY country.

    • FSB (History)

      I believe what you call “declared” material is identical to “nuclear material required to be safeguarded” in Art 19.

      There is a set of material that Iran declares (“nuclear material required to be safeguarded”) and it is this material that is the provenance of the IAEA accounting.

      These 2 are the same thing.

      If there are vague fears of hypothetical additional material that problem is not the subject of the SA, but could raise the prospect of Art 22 being activated by the IAEA — but not referral to the UNSC. This is all clearly spelled out in the SA.

    • FSB (History)

      Art. 2 of the SA states that the purpose of the safeguards agreement is for the “EXCLUSIVE 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.”

    • Andy (History)

      FSB,

      Article 22 arbitration is for resolving disputes concerning the interpretation and application of safeguards agreements only. IOW, if the board finds a state is in breach of it’s obligations under article 19 (as it did with Iran), the state cannot invoke the arbitration clause. You may disagree with the board’s decision, or you may argue it’s all OBE at this point in time, but as far as the Agency is concerned, Iran remains in breach under article 19.

      As for the declared/undeclared issue, the IAEA has legal purview over all material, whether declared or not. If the Agency suspects that a state’s declaration is not complete, it is required to take action to resolve those doubts. Here’s how the Agency’s chief lawyer puts it:

      Begin quote

      “The information that safeguards inspector is likely to uncover, however, is such that, rather than demonstrating a clear violation of the agreement it would raise doubts as to whether the State is fulfilling its obligations under the agreement. Regardless of the type of agreement, the IAEA has the right and the duty to try to resolve these doubts through the examination of the information assembled and the obtaining from the State of additional information and/or access to additional locations.

      “If such doubts cannot be resolved to the satisfaction of the Director General, the Director General would report, under an INFCIRC/153 agreement, to the Board of Governors that action by the State concerned is essential and urgent to ensure the verification of non-diversion or report to the Board the Agency’s inability to verify that nuclear material required to be safeguarded has not been diverted, or, under an INFCIRC/66/Rev.2 agreement, that the State is in non-compliance with the agreement.

      “Any actions considered by the Board to be “essential and urgent” are required to be implemented by the State without delay. If the State does not take the required action, the Board may conclude, on the basis of the information reported to it by the Director General, that the IAEA cannot fulfill its obligation under the agreement to verify non-diversion; the Board may also find that the State is in further non-compliance with its safeguards agreement.

      “The nature of non-compliance by a State with its safeguards obligations may vary. Noncompliance could derive, for example, from the unaccounted for presence or absence of nuclear material, from misleading and/or falsified records or reports, from the denial of access to Agency inspectors, or from the tampering with Agency instruments or seals, or, as indicated above, from failure to carry out actions determined by the Board to be essential and urgent. Upon report by the Director General to the Board, the Board is to call upon the Sate concerned to remedy forthwith any non-compliance which the Board finds to have occurred. The Board is also required to report such non-compliance to all Members of the IAEA and to the Security Council and General Assembly of the United Nations. Since the inception of safeguards, the IAEA has reported to the Security Council cases of non-compliance under three agreements.

      “Under the Statute of the Agency, failure by a State to take fully corrective action within a reasonable time with respect to non-compliance could subject the State to curtailment or suspension of assistance provided by the Agency or by a Member State, to the recall of material and equipment, and to the suspension of the privileges and rights of Agency membership. Non-compliance may also trigger measures by the Security Council within the framework of the United Nations Charter.”

      End quote.

      Also, does anyone know what formatting command can be used, if any, with the new site? Also, I officially request a preview button please.

    • FSB (History)

      Andy,
      I am profoundly uninterested in what a partial lawyer says on behalf of the politically motivated IAEA.

      Read the 1974 SA. It is all there in black and white. The IAEA is definitely not responsible for chasing down material not placed under safeguards that it only suspects exists — not until the nation has ratified the AP. Iran has not. Otherwise, there would be no bloody point in coming up with the AP would there?

      You, and the lawyer, are simply wrong. See the outcome of the debate with Alan if you want to know why you are (both) wrong. The AP exists for a reason.

    • FSB (History)

      Hey Andy, do you know why the IAEA is not referring Brazil to the UNSC since Brazil almost certainly has a military nuclear program, and has also told IAEA inspectors to get lost?

    • Andy (History)

      FSB,

      The “partial lawyer,” as you call her is the principal author of the Additional Protocol and the head of the IAEA’s legal department. Her name is Laura Rockwood – you can google her CV if you wish. That you declare her and me and the IAEA to be wrong does not make it so. It’s not like this is a new interpretation either, or revisionism – the portion I quoted is from 1998.

      You also fundamentally misunderstand the purpose of the AP. Your claim that the Agency has no legal authority to “chase” down suspected undeclared nuclear material is false in light of history as well as the “black and white” of the SA itself. Why do you think there is a special inspection provision (article 73)? Why does article 19 say “material subject to safeguards” and not “material declared by the state?” Heck, why does article 19 even exist? Why does the agency have the authority to demand “essential and urgent” actions (article 18)? These are all tools built into the SA to give the Agency authority to verify non diversion in precisely those cases where sufficient doubt exists.

      These were the tools used by the Agency in 2002-2003 to pursue suspicions of undeclared material in Iran, yet here you are today claiming the Agency has no such legal authority.

    • FSB (History)

      Andy,
      not to be rude, but frankly this must be the sixth time you’ve posted Ms. Rockwood’s piece and it has been repeatedly been shot down as far as what *you think* it means for the case of Iran.

      If you stop posting it (and what you think it implies for Iran), people will gladly stop shooting down your thesis.

      Readers of the blog can search on the string “Laura Rockwood”.

      I give only one of the recent response to your quote (by Masoud):

      ====

      ” I found nothing objectionable in Ms. Rockwood’s piece. Here’s an important passage “The nature of non-compliance by a State with its safeguards obligations may vary.” For Iran, the criteria is clear and unambiguously narrow, for other states, their SA may provide the IAEA more latitude.

      If the IAEA has problems with Iran, but can still account for every scrap of Uranium that it has put under safeguards(which at present it can), it is free to establish an arbitration panel under Article 22 of Iran’s SA to settle the matter.”

      =====

      Quoting a lengthy piece from a big-time lawyer and your feeble attempt at appeal-to-authority in lieu of an actual argument does not mean what you think is correct (even if what Ms. Rockwood says is correct, which is up for some debate).

      What has been signed to, by Iran, is the 1974 SA.

      I encourage you to go read it.

      You ask: “Why does article 19 say “material subject to safeguards”

      It says that because there is material which is required to be safeguarded and IAEA has to make sure it can account for THAT material. Yes, and this is important: this is the material that has also been declared by Iran and the IAEA has agreed that that material, X, is its provenance.

      If it suspects there is additional possible material and there is a big kerfuffle, then Article 22 arbitration is needed.

      However, IAEA has accounted for all the material it has been tasked with accounting.

      Kindly read the Feb 2010 IAEA report, point 46: “While the Agency continues to verify the non-diversion of declared nuclear material in Iran…” OK?

      That, in itself, is enough to satisfy the letter of the safeguards agreement.

      For your information, Iran has not ratified the AP, so the AP is not relevant.

      The AP was created precisely because without it the IAEA is not allowed to get too intrusive. It is an unfortunate fact but countries went along with the NPT (minus AP) precisely because they knew the IAEA’s intrusiveness was severely limited. They are willing signatories — the IAEA is not a Gestapo force.

      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.”

      This goes against the opinion of Rockwood and any other people. Perhaps Rockwood is thinking of life under AP, but that does not matter for Iran. She may be a big lawyer, but her opinion is just that. The letter of the signed documents is plainly written for all to read.

      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.”

      i.e. they are saying they have found no nuclear material unaccounted for, and only such a finding would allow them to get tougher under the 1974 SA.

      Iran is complaint, in a bad-boy way certainly, and is being pursued for political reasons. This is clear to any objective observer.

      Lastly, you did not answer my question on whether you advocate Brazil be investigated and referred to the UNSC?

    • andreas (History)

      FSB, you bordered on rude here. I have a problem when people posting under cover of anonymity starts criticising a named person, especially someone like Laura Rockwood. I know you’re eager to score a few points and “win” the debate, but you may want to tone it down a little.

    • FSBc (History)

      Andy,
      what I believe you may misunderstand is there is certain nuclear material that both Iran and the IAEA agree is the “material under safeguards” — this is known quantity.

      The IAEA’s job is to make sure that does not wind up somewhere it is not supposed to go. (Non-diversion verification).

      So far, for 40 years, the IAEA has accounted for every scrap of nuclear material under safeguards in Iran. Yes, really.

      It may have other suspicions but too bad: Iran has not ratified the AP — and who can blame Iran. After being harassed endlessly why would it bend over any further?

    • Andy (History)

      FSB,

      Since quote formatting doesn’t seem to work, I’m trying the following “you say, I say” format:

      You say: “Quoting a lengthy piece from a big-time lawyer and your feeble attempt at appeal-to-authority in lieu of an actual argument does not mean what you think is correct (even if what Ms. Rockwood says is correct, which is up for some debate). “

      I say: I post Ms. Rockwood’s comments because it represents the Agency’s longstanding view of its obligations and authorities as well as mainstream opinion on the subject. It condenses a lot of legalese from many different documents. It saves me a lot of typing. Readers can decide for themselves who is correct.

      You say: “What has been signed to, by Iran, is the 1974 SA. I encourage you to go read it.”

      I say: Your patronizing and insulting attitude is getting a bit old. Could you please give it a rest?

      You say:
      “I believe what you call “declared” material is identical to “nuclear material required to be safeguarded” in Art 19.
      There is a set of material that Iran declares (“nuclear material required to be safeguarded”) and it is this material that is the provenance of the IAEA accounting.
      These 2 are the same thing.”

      I say: No, that is not correct. The 153 CSA itself uses the term “nuclear material subject to safeguards under the Agreement” which includes both declared material as well as any material that should have been declared but wasn’t. Don’t believe me? First, there’s article II of the NPT which makes no distinction between declared and undeclared. Second, there’s the Safeguards system of the IAEA (http://www.iaea.org/OurWork/SV/Safeguards/safeg_system.pdf ) which says in para 6:

      “In February 1992, the Board of Governors affirmed that the scope of comprehensive safeguards agreements was not limited to nuclear material actually declared by a State, but included any material that is required to be declared. Expressed differently, the Board confirmed that the Agency has the right and obligation, under such agreements, not only to verify that State declarations of nuclear material subject to safeguards are ‘correct’ (i.e. they accurately describe the type(s) and quantity (ies) of the State’s declared nuclear material holdings), but that they are also ‘complete’ (i.e. that they include everything that should have been declared). Soundly based safeguards conclusions regarding ‘completeness,’ in States with comprehensive safeguards agreements in force, depend on the extent to which the Agency is equipped to detect undeclared nuclear material and activities in such States.”

      Para 4 speaks to CSA’s specifically:

      “Most of the agreements under which the Agency applies safeguards are of the comprehensive type, that is, they cover all nuclear material in the State. Each such agreement follows the structure and content set out in Agency document INFCIRC/153 (Corr.). Under such an agreement, the State undertakes to accept Agency safeguards on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction, or carried out under its control anywhere.”

      Then there is article XII para A5 of the IAEA statute. It says the Agency has the “right” and “responsibility”…

      “To send into the territory of the recipient State or States inspectors, designated by the Agency after consultation with the State or States concerned, who shall have access at all times to all places and data and to any person who by reason of his occupation deals with materials, equipment, or facilities which are required by this Statute to be safeguarded….”

      No restriction to declared materials there either. The Agency’s legal RESPONSIBILITY extends to all material whether declared or not (sorry for the CAPS, no bold function that I can find). What the Agency lacks under a CSA is the comprehensive ABILITY to carry out that RESPONSIBILITY. In other words, there are two sides to the coin – there is what the IAEA is responsible for – which is ALL material, activities, facilities, locations, etc., but the other side of the coin is the IAEA’s ability to carry out that responsibility. That the IAEA’s ability to carry out its mission is limited under a 153 CSA does not mean its mission or what it’s responsible for is diminished in any way. More on that in a minute.

      You say: “If it suspects there is additional possible material and there is a big kerfuffle, then Article 22 arbitration is needed.”

      I say: No. Please read article 22 again and note the exception for findings under article 19. The major issues that resulted in forwarding Iran to the UNSC were article 19 issues, therefore arbitration does not apply.

      You say: “For your information, Iran has not ratified the AP, so the AP is not relevant”

      I Say: I’m not the one who brought up the AP – you did when you said:

      “The IAEA is definitely not responsible for chasing down material not placed under safeguards that it only suspects exists — not until the nation has ratified the AP. Iran has not. Otherwise, there would be no bloody point in coming up with the AP would there?”

      To which I responded that you don’t understand the purpose of the AP. Well, here’s the explanation, so to speak, from the horse’s mouth: (para 7 of the SS IAEA):

      “Although the Agency has the authority, under comprehensive safeguards agreements, to verify the absence of undeclared nuclear material and activities, the tools available to it to do so, under such agreements, are limited. This realisation set the stage for safeguards strengthening efforts culminating in the approval, by the Board of Governors, of a model protocol additional to safeguards agreements which provides the Agency with such tools: the Protocol Additional to Agreement(s) between State(s) and the IAEA for the Application of Safeguards (INFCIRC/540 (Corr.)), referred to as the Model Additional Protocol. It is only for States with both a comprehensive safeguards agreement and an additional protocol in force that the Agency has the verification tools it needs to provide credible assurance of the absence of undeclared nuclear material and activities.”

      The AP is simply a tool that gives the Agency a greater ability to carry out its existing responsibilities – it does not change the Agency’s responsibilities.

      So, the Agency is well within its rights to make inquiries and investigate to ensure a state’s declaration is complete. You may not agree with their conclusions with regard to Iran, but the Agency still has significant doubts in this regard and, because of those previously mentioned responsibilities, it simply can’t let the matter drop and declare it “good enough” nor can it allow Iran to unilaterally decide whether or not it is in compliance with its obligations. On the other hand, Iran, since it is not acceding to the AP, can refuse to cooperate (within certain limits, of course), which is exactly what it’s doing. However, that refusal is not consequence-free (nor should it be), as laid out in article 19 of the CSA and other relevant documents. The language of article 19, as was explained above, is not limited to declared material so the Agency can, if sufficient doubt exists about the exclusively peaceful nature of Iran’s program, refer Iran to the UNSC, which is exactly what it did.

      Lastly, you say: “Lastly, you did not answer my question on whether you advocate Brazil be investigated and referred to the UNSC?”

      I say: Because the question is disingenuous and contradictory. On one hand you claim the IAEA has no authority to do these investigations, that its authority only relates to verifying declared material and that any dispute must be resolved via article 22 arbitration. On the other hand you complain that the IAEA isn’t using these, in your view, nonexistent authorities to investigate/harass Brazil. In other words, you’re trying to have it both ways.

      For the record, though, if Brazil were found to not only be noncompliant with its CSA, but refused to take all essential and necessary corrective measures as determined by Agency in a timely manner in order to fully correct that noncompliance, then I would fully support a BoG decision to refer Brazil to the UNSC. As it stands though, none of that has yet happened in the case of Brazil.

    • FSB (History)

      Andreas — apologies if anything I said was construed as rude. If so, it may be attributed to the heat of the debate.

      re. Ms. Rockwood — I have no problem with her opinions on the documents signed by the IAEA and Iran.

      I do have a problem with people presenting that opinion as if it were reflecting an impartial truth. There are two sides to this just as in a court: the prosecution (IAEA) and the defendant (Iran).

      Telling people to listen only to the prosecutor’s lawyer’s arguments and opinions as if that is supposed to be gospel truth is uncalled for. There is obviously a tension between the legitimate views and opinions of the IAEA and those of Iran. I am sure the Iranian govt lawyers have different view from Ms. Rockwood of the documents Iran has signed.

      In fact, the view of the lawyers of both the IAEA and Iran should be taken with a grain of salt: they are likely both exaggerated in their preferred directions.

      And my view is quite clear: it is rather obvious that there was no basis for referring Iran to the UNSC, under the 1974 CSA. Simple reading of text suffices. No law degree is required at all.

      At most Art 22 arbitration should have been used, not UNSC referral. The UNSC referral has poisoned the well.

      I would be pleased to hear Ms. Rockwood’s opinion on that, even though I would likely disagree with her.

    • Andy (History)

      FSB,

      “So far, for 40 years, the IAEA has accounted for every scrap of nuclear material under safeguards in Iran. Yes, really.”

      Really? So what about the the undeclared nuclear material, facilities, activities and locations that were discovered in 2003-2004? What are we to think of that?

    • FSB (History)

      Andy,
      no, according 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 “EXCLUSIVE 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.”

      There is an an obvious tension between what the IAEA says in its own documents: minimum inconvenience (to be judged by the state in question) and maximal responsibility for investigation.

      The fundamental point is this: (and this is why I brought up Brazil) — this natural “sweet spot” of investigating countries with minimal interference yet maximal investigative responsibility is not being handled in an even-handed way. Iran is subjected to way more scrutiny than other nations who also enrich U legally.

      Also, the US’s (and UNSC) insistence that Iran halt enrichment is plainly illegal.

      That Iran has abided by the NPT is clear:

      http://www.csmonitor.com/World/Middle-East/2010/0504/NPT-101-Is-Iran-violating-the-nuclear-treaty

      That people are exaggerating the IAEA reports is also clear:

      http://www.antiwar.com/orig/caseyp.php?articleid=13133

      And Iran is, in fact, right in the Code 3.1 kerfuffle:

      http://original.antiwar.com/sahimi/2010/03/12/politicizing-the-iaea-against-iran/

      No one is denying that the IAEA has responsibility to check on facilities and people in various CSA states — but this, according to the IAEA, must be done with minimal intrusion. And since no nuclear material has been found to be diverted INTO NUCLEAR WEAPONS, as is needed to qualify for Art 19, the UNSC referral was extra-legal at best.

      Lastly, no I don’t advocate for Brazil to be referred to the UNSC, just as I don’t advocate for Iran to be — they are in the same boat: U enrichers, with a possibly military dimension to their programs but no known diversion of nuclear stocks.

    • FSB (History)

      Andy, you ask: “So what about the the undeclared nuclear material, facilities, activities and locations that were discovered in 2003-2004? What are we to think of that?”

      It is propaganda.

      I could go into it, but thankfully someone already has:

      http://original.antiwar.com/sahimi/2010/03/12/politicizing-the-iaea-against-iran/

      That Iran is in good standing with the NPT is obvious:

      http://www.csmonitor.com/World/Middle-East/2010/0504/NPT-101-Is-Iran-violating-the-nuclear-treaty

      The deconstruction of the pundits’ propaganda is available for all to read:

      http://www.antiwar.com/orig/caseyp.php?articleid=13133

  19. Alan (History)

    FSB – I can see how you reach that conclusion, but it would not appear to be the way the IAEA view it, at least not since 1992 anyway (as per their note 44 in the current report).

    Thus it seems to me they use the word “declared” in all their reports in order to limit the extent of their findings from the Article 19 “nuclear material requiring to be safeguarded” to the less comprehensive “declared nuclear material requiring to be safeguarded”.

    That said, arbitration would be interesting. For Iran to win it, it would require an interpretation of the NPT that says it only covers what a state is prepared to tell you about, and that if there is reason to suspect there are other activities it’s just bad luck.

    If that is the case, a certain reality check would appear to be required. As there is no conceivable way the NPT was meant to provide an environment in which a state could proliferate, if one is suspected of using the shortcomings of the Treaty’s wording to achieve exactly that then that state can’t expect the international community to simply roll over and let the Treaty collapse in a heap.

    • FSB (History)

      Perhaps, but you presume that there is diverted nuclear material in Iran (i.e. you imply that it has proliferated material to nuclear weapons), and there is no evidence for it. There is no evidence that Iran has diverted any declared nuclear material at all in the last 40 years.

      I agree Iran does not make it easy to get such evidence, but the agreement it signed refers just to the material it placed under safeguards, and nothing else (see above).

      People do not seem to understand that nations entered willingly to these agreements, precisely because they were limited in scope. They did not sign these agreements to be harassed by the UNSC Gestapo endlessly.

      If you want more than that, try to get the nations to sign more intrusive treaties.

      Good luck with that.

      (While you are at it, try to get the IAEA to harass Brazil as much as it does Iran.)

    • FSB (History)

      Alan,
      lastly, you say: “If that is the case, a certain reality check would appear to be required. As there is no conceivable way the NPT was meant to provide an environment in which a state could proliferate, if one is suspected of using the shortcomings of the Treaty’s wording to achieve exactly that then that state can’t expect the international community to simply roll over and let the Treaty collapse in a heap.”

      Well, that is *precisely* why the additional protocol was invented. Unfortunately Iran has not ratified it.

      IAEA is trying to wring the benefits of the intrusiveness of the AP without Iran having actually signed that with the IAEA. Too bad for the IAEA.

  20. Alan (History)

    FSB: “Too bad for the IAEA”

    This is my point. As far as the international community are concerned, they will not simply accept that. It is no good to revert to minimalist readings of the treaty; if it transpires that it isn’t doing the job required of it, then as an agreement it is to all intents and purposes worthless.

    It is a fair point that nations signed up to it because of the limited scope. It would be a stretch though to say this limitation extended to development and use of undeclared nuclear material. At the end of the day, it is a non-proliferation treaty.

    I agree about the AP, however that aside, Iran is the only state in the NPT with any significant nuclear capacity that doesn’t observe the modified 3.1.

    Finally, I don’t allege that Iran is proliferating, however I think it is a fair assumption that their approach is one of deliberate ambiguity. By its nature, this approach will always require ongoing IAEA intrusion. Take for example the most recent report, where Ahmadinejad claims Iran has the capacity for laser enrichment. If so, it is likely to involve undeclared nuclear material. This was an issue from 2003, which the IAEA thought they had closed with Iran. Now it appears to be open again.

    • FSB (History)

      Alan,
      alas, the treaty (sans the additional protocol being ratified) *is* rather minimalist.

      This, sir, is the reason people came up with the AP. They found the regular ol’ treaty to be rather feeble.

      You say: “As far as the international community are concerned, they will not simply accept that…”

      It is rather irrelevant whether they will accept it or not — there are legal limits to how intrusive the IAEA is allowed to be, without the AP. Will the US — I mean the “international community” be happy? — no. But their legal authority to demand intrusiveness *is* most certainly limited in scope. Is this ideal? Not sure — but it is the compromise that has been agreed to in the signed treaties. The IAEA is not a police force. Countries would never have signed on if it implied they had to open up their entire country to inspectors.

      You say: “It would be a stretch though to say this limitation extended to development and use of undeclared nuclear material. At the end of the day, it is a non-proliferation treaty.”

      Do you realize that the IAEA has no evidence of any development or use of undeclared nuclear? What do you refer to by stating that as a fact? The U being enriched, even that which is being enriched to 19.75%, is all under safeguards? Do you realize that U enrichment is allowed under the NPT, US propaganda aside? I fear you are beginning to believe Western propaganda due to its repetition. (Even Brazil enriches U, legally).

      The following countries all enrich U, LEGALLY: Argentina, Brazil, China, France, Germany, India, Japan, the Netherlands, Pakistan, Russia, the UK and the US all enrich uranium legally, just like Iran. Iranian nuclear enrichment is legal and done under IAEA safeguards.

      (Further, Israel and North Korea are suspected of having similar enrichment programmes).

      Brazil has consistently blocked IAEA inspectors from viewing their centrifuges. In any case, Egypt and S.Korea were both found to have violated their safeguards agreement by engaging in very potentially weapons related nuclear experiments. The fact that a bigger deal was not made out of these countries only proves the political nature of the process nothing else.

      IAEA has repeatedly said is that Iran has not diverted any of the safeguarded material.

      Please let me know what you mean by stating as a fact that Iran has developed or used undeclared nuclear material? (Honest question)

      About the various curious experiments people allege Iran is doing — read the IAEA reports: the IAEA report states that “it should be emphasized … that the Agency has not detected the actual use of nuclear material in connection with the alleged studies” (IAEA Gov/2008/15 at paragraph 28 [.pdf]). The immediately preceding board report was even more explicit: “[I]t should be noted that the Agency has not detected the actual use of nuclear material in connection with the alleged studies, nor does it have credible information in this regard” (IAEA Gov/2008/4 at paragraph 54 [.pdf])

      It further states: “It should be noted that the Agency currently has no information … on the actual design or manufacture by Iran of nuclear material components of a nuclear weapon or of certain other key components, such as initiators, or on related nuclear physics studies” (IAEA Gov/2008/15 at paragraph 24).

      The IAEA has seen “no indication of any [uranium metal conversion] and casting activity in Iran” (IAEA Gov/2007/58 at paragraph 25).

      That people say that “Iran refuses to answer” IAEA questions is grossly misleading. As documented in every single IAEA board report since the laptop allegations first surfaced, Iran has consistently and adamantly answered many of the allegations by describing them as baseless and fabricated. In addition, it was only in February 2008 that the U.S. even gave the IAEA permission to show any of the documents to Iran to enable it to respond (IAEA Gov/2008/4 at paragraph 37). The U.S. further manipulated the IAEA’s efforts by providing “much of this information [to the IAEA] only in electronic form” and “not authorizing the [IAEA] to provide copies to Iran” (IAEA Gov/2008/15 at paragraph 16). The U.S. even refused to give the IAEA itself copies of some material. The agency was “therefore unfortunately unable to make them available to Iran.”

      Iran’s declination to respond to allegations based on documents it has never been shown, or has only been allowed to peek at, may qualify as a “refusal” to answer, but that would not stand up in any court of law, except perhaps at Gitmo.

      For more details see:

      http://www.antiwar.com/orig/caseyp.php?articleid=13133

      Bottom line: it doesn’t matter what Iran does, or how many inspections it permits and the goalposts will be kept moving because none of this has anything to do with nuclear weapons, rather the goal of the US is to deprive Iran (and other developing nations) of their right to enrichment, in blatant violation of the NPT and international law. That’s the dirty secret that we’re not supposed to acknowledge with all the scare-talk about nukes.

      That Iran is abiding by the letter of the NPT is well-known: perhaps the 101-level overview helps:

      http://www.csmonitor.com/World/Middle-East/2010/0504/NPT-101-Is-Iran-violating-the-nuclear-treaty

      Whether the “international community” (really some subset of nations on the UNSC — several having been bought off politically — not really the majority of nations in the world) is happy or not is not terribly pertinent, legally speaking. There are limitations to what they can do, absent AP ratification.

      (Even if the AP is ratified, they do not have free rein to do as they please.)

      Like I said in the very first post, Article 22 of the SA explicitly denies the Agency the authority to “report” Iran to the UNSC for any other disagreements outside Art 19, and establishes the proper procedure for handling circumstances where there are strong disagreements.

      It is the IAEA (prodded by a politically motivated UNSC) who is more in the wrong here.

    • andreas (History)

      Point of clarification. The Additional Protocol is additional to the Comprehensive Safeguards Agreement. It has little to do with the NPT. And a friendly suggestion: You may want to further your understanding of the IAEA’s authority under the CSA. I suggest you start by reading David Fischer’s excellent book “History of the International Atomic Energy Agency: The First Forty Years”.

    • FSB (History)

      Yes, apologies for the careless shorthand of conflating the NPT and SA (minus AP) — I was attempting to address Alan’s point about the NPT’s minimalism and underline the fact that Iran has not ratified the AP in the same sentence. My intention was to state that the Iranian SA is precise and narrow, and “minimal” in a sense — to be less minimal Iran would need to agree to ratify the AP.

      The salient point remains: Iran has been referred to the UNSC in contravention of its SA, and has been more than accommodating in giving inspectors information and leeway, given the fact that there is no evidence of unaccounted nuclear material, and given the fact that other nations are doing much more risque things (eg. Brazil). The dogged pursuit of Iran is largely political in nature.

      I will put the book you mention on the to-read list.

      Re. the Code 3.1 brouhaha, Prof. Muhammad Sahimi has written about it quite publicly, but it was not apparently picked up in the West — btw, he is a professor of chemical engineering and materials science, and the NIOC Chair in petroleum engineering at UCLA: as he says, the dispute between Iran and the IAEA is about modified Code 3.1 of the Subsidiary Arrangements General Part of Iran’s Safeguards Agreement with the IAEA, signed in 1974 and ratified in 1976.

      Code 3.1 of the Arrangements stipulated that Iran must declare to the IAEA the existence of any nuclear facility no later than 180 days before introducing any nuclear materials into the facility. That is why, despite all the rhetoric, the construction of the Natanz uranium enrichment facility without it being declared to the IAEA was perfectly legal.

      In 1992, the Board of Governors of the IAEA replaced the original Code 3.1 with the modified Code 3.1, which requires a member state to notify the IAEA, “As soon as the decision to construct or to authorize construction has been taken, whichever is earlier”. It also developed the Additional Protocol to the Safeguards Agreement that empowers the IAEA with the authority for intrusive inspection of any site in any signatory state.

      After the Natanz facility was officially declared to the IAEA in February 2003, Iran agreed on February 26, 2003 to the modified Code 3.1. More precisely, Iran agreed to voluntarily implement the modified Code 3.1 until the Majles [the Iranian parliament] ratifies the modification to the Agreement. But while the Majles refused to ratify the modification to the Safeguards Agreement covering the modified Code 3.1, Iran continued to observe it from February 2003 to March 2007.

      But, in February 2007 the Board of Governors of the IAEA sent Iran’s nuclear dossier to the United Nations Security Council. Iran contends that the IAEA had acted illegally, and, therefore, in retaliation, it notified the IAEA on 29 March 2007 that it would no longer voluntarily abide by the modified Code 3.1, and would revert to the original Code 3.1 (that required 180 days notification).

      Despite this clear history, the IAEA latest report insists in article 29 that,

      In accordance with Article 39 of Iran’s Safeguards Agreement, agreed Subsidiary Arrangements cannot be changed unilaterally; nor is there a mechanism in the Safeguards Agreement for the suspension of a provision agreed to in Subsidiary Arrangements. Therefore, the modified Code 3.1, as agreed to by Iran in 2003, remains in force for Iran.

      This statement is correct only if the Majles had ratified the change covering the modified Code 3.1. But, given that it did not, Iran has no obligation toward the modified Code 3.1.

      No country is obligated to carry out the provisions of any international agreement that it has signed, if the country’s parliament has not ratified the treaty. The United States has signed some international agreements, such as the nuclear test ban treaty, that have not been ratified by the Senate.

      In article 31 of the report, the IAEA complains again about the modified Code 3.1: “Both in the case of the Darkhovin facility [a mid-size nuclear reactor that Iran intends to construct] and FFEP [Fordow Fuel Enrichment Plant], Iran did not notify the Agency in a timely manner of the decision to construct or to authorize construction of the facilities, as required in the modified Code 3.1….” But, once again, Iran has withdrawn from modified Code 3.1, and has no obligation other than Code 3.1 [that requires only 180 days advanced notification].

      In article 40, the report once again makes a political statement against all the relevant international laws:

      Previous reports by the Director General have detailed the outstanding issues and the actions required of Iran, including, inter alia, that Iran implement the Additional Protocol…

      And again in article 50

      The Director General requests Iran to take steps towards the full implementation of its Safeguards Agreement and its other obligations, including the implementation of its Additional Protocol.

      These statements are even contrary to what the report says in article 6, where the Agency states that, “Since the last report, the Agency has successfully conducted 4 unannounced inspections at FEP, making a total of 35 such inspections since March 2007.” Such unannounced visits are covered only by the Additional Protocol (AP). So, while Iran is still carrying out this aspect of the AP, the IAEA still complains about it and, at the same time, it considers implementation of the AP an obligation for Iran! What is the truth?

      Beginning on December 18, 2003, Iran did begin 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 claim, Iran cannot be required to implement the AP. No sovereign nation has any obligation to sign and implement any international agreement that it does not deem it to be in its national interests.

      ’nuff said about the Code 3.1 (modified) business — hope that clears it up.

      Articles 42 and 43 of the report have to do with the alleged documents that were supposedly in a laptop that had been purportedly stolen in Iran, taken out of the country, and made available to Western intelligence agencies in Turkey. Most experts have cast doubt on the authenticity of the laptop’s documents. A senior European diplomat was quoted by the New York Times in a Nov. 13, 2005, article as saying, “I can fabricate that data. It looks beautiful, but is open to doubt.” Another European official said, “Yeah, so what? How do you know what you’re shown on a slide is true, given past experience?”

      But, the IAEA, led by Olli Heinonen, the IAEA’s deputy Director General of safeguards – a man who has a reputation inconsistent with impartiality and objectivity, continues insisting that Iran explain the document, while also refusing to present Iran with the original document, or check the laptop for its digital chain of custody that would show when the alleged document were up loaded in the laptop.

      Then, in article 46 of the report, the IAEA makes the most outrageous statement:

      While the Agency continues to verify the non-diversion of declared nuclear material in Iran, Iran has not provided the necessary cooperation to permit the Agency to confirm that all nuclear material in Iran is in peaceful activities.

      Thus, what the report seems to be implying is that, there are undeclared nuclear materials in Iran, whereas there has never been a shred of evidence that such materials exist.

      Unfortunately, the tone of the latest reports, as well as their speculations and unfounded allegations, are in sharp contrast with those in the past issued under the former IAEA Director General Mohamed ElBaradei. The new Director General, Yukiya Amano, has set aside ElBaradei’s cautious approach and measured tone and uses blunt language.

      But, while the blunt language is not a problem, the fact is that, as the latest report indicates, the IAEA is being transformed from an objective international organization to a politicized one to be used by the United States and its allies to advance their agenda regarding Iran’s uranium enrichment program.

    • andreas (History)

      FSB. You should read it. Your posts are going to be even longer… enjoy.

  21. archjr (History)

    I have said this before, so I apologize for repeating myself. But the intense nature of this debate requires me to repeat that Iran has been deemed noncompliant with its safeguards agreement by the Board. Iran has lots of friends on the Board, and its behavior is making them all uncomfortable. They have all done the same exhaustive research that FSB, hass, and others have somewhat carefully elucidated in their posts.

    Simply put, Iran doesn’t have the votes anymore. They had them at the beginning of this brouhaha, but by their behavior they have isolated themselves from those who would normally offer at least political support. By its actions, Iran has squandered this support.

    Many know the old Chinese proverb: “You tied the knot; now you must untie the knot.” It is hard to bellieve that Iran is somehow the victim in all of this since the bulk of the misunderstanding is due to their own misinformation and actions that run entirely contrary to the responsibilities of IAEA members with safeguards agreements.

    Finally, I ask all the naysayers and defenders of Iran’s position: what would you have the Agency do? Stand down? Close a dossier that gets even more complicated with each utterance from Iran? In my view, that would be a serious dereliction of duty, and would kill the Agency. So let’s hear some positive proposals from you folks. I really, genuinely look forward to them. And thanks to all of you who have contributed, even if I strenuously disagree. This is a great blog, and I look forward to it every day, even if with some trepidation over what I might discover.

    • FSB (History)

      I have sympathy with your view — to an extent.

      It would be nice to have powers to go into any country we like and pop open any site at any time, without warning.

      However, what is allowed under the CSA is well-defined and narrow. The various countries agreed and signed their CSAs to permit them some control over anyone traipsing in and inspecting whatever they like.

      The countries WILLINGLY signed the CSAs. They did not agree to unlimited interference with their internal workings. This is enshrined in the IAEA docs themselves. (see posts above). The IAEA is not a police force.

      This is a legal issue about sovereignty.

      That the IAEA board has found something does not make it gospel truth or beyond question — the board is politicized. Even the process of choosing a head of the IAEA is politicized.

      It is akin to a trial: we have prosecutors for DA and the defendant [i.e. to be clear in the analogy: the IAEA and Iran] — whatever pops out of the mouth of the DA’s lawyers is not automatically correct. Nor can that be even a good assumption. Often the defendant has a legitimate case and sometimes, even when we “know” the defendant is wrong, the case is thrown out due to LEGAL TECHNICALITIES.

      The fact that Iran was even referred to the UNSC is wrong, and in contravention of the 1974 SA. Iran was quite cooperative till then.

      That you choose to repeat Western propaganda does not make it true. You say: “It is hard to bellieve that Iran is somehow the victim in all of this since the bulk of the misunderstanding is due to their own misinformation and actions that run entirely contrary to the responsibilities of IAEA members with safeguards agreements.”

      You are flat out wrong.

      ccording 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 “EXCLUSIVE 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.”

      There is an an obvious tension between what the IAEA says in its own documents: minimum inconvenience (to be judged by the state in question) and maximal responsibility for investigation.

      The fundamental point is this: (and this is why I brought up Brazil) — this natural “sweet spot” of investigating countries with minimal interference yet maximal investigative responsibility is not being handled in an even-handed way. Iran is subjected to way more scrutiny than other nations who also enrich U legally.

      Also, the US’s (and UNSC) insistence that Iran halt enrichment is plainly illegal.

      That Iran has abided by the NPT is clear:

      http://www.csmonitor.com/World/Middle-East/2010/0504/NPT-101-Is-Iran-violating-the-nuclear-treaty

      That people are exaggerating the IAEA reports is also clear:

      http://www.antiwar.com/orig/caseyp.php?articleid=13133

      And Iran is, in fact, right in the Code 3.1 kerfuffle:

      http://original.antiwar.com/sahimi/2010/03/12/politicizing-the-iaea-against-iran/

      No one is denying that the IAEA has responsibility to check on facilities and people in various CSA states — but this, according to the IAEA, must be done with minimal intrusion. And since no nuclear material has been found to be diverted INTO NUCLEAR WEAPONS, as is needed to qualify for Art 19, the UNSC referral was extra-legal at best.

      =====

      You ask: “I ask all the naysayers and defenders of Iran’s position: what would you have the Agency do? Stand down? Close a dossier that gets even more complicated with each utterance from Iran? In my view, that would be a serious dereliction of duty, and would kill the Agency.”

      I guess you are painting me as a defender of Iran, when I am a defender of what has been signed — the 1974 CSA.

      What can the IAEA do? It can follow the law, and the letter of what it signed.

      It can admit it was wrong to report Iran to the UNSC when it should have chosen Art 22 arbitration instead.

      What do to after that? Enact Art 22 arbitration.

      What to do after that? Stop being so damn political:

      http://original.antiwar.com/sahimi/2010/03/12/politicizing-the-iaea-against-iran/

      Do I think the IAEA will do that? no — Because their paymasters at the UNSC have political control over them.

      What else can it do? Be even-handed. If Iran is to be investigated, so should Brazil. If not Brazil, then not Iran, too.

      The problem is that you think you know the answer that Iran must be building a bomb — that the fools at NYT and WPost are peddling when in fact there is no evidence of that (perhaps of _research_ into military applications, at most — which is not illegal) and certainly no evidence of diversion of nuclear material.

      You do not understand that it was a deal that Iran entered into by signing the NPT: “yes you can inspect us (within reason) to make sure we are not diverting material into nuclear bombs, and for that favor we want help with developing a nuclear energy program”. That is the NPT in a nutshell — it is not: “Watch me bend over, please send in the Gestapo.”

      You allow the Experian credit check people to have your Social Security Number to check on a legally LIMITED set of things — but if they turn up at your door at midnight you can tell them to Fuck Off. You would be right. Iran is right also.

      Bottom line: it doesn’t matter what Iran does, or how many inspections it permits and the goalposts will be kept moving because none of this has anything to do with nuclear weapons, rather the goal of the US is to deprive Iran (and other developing nations) of their right to enrichment, in blatant violation of the NPT and international law. That’s the dirty secret that we’re not supposed to acknowledge with all the scare-talk about nukes.

  22. Andrew (History)

    What everyone seems to be missing in this is that Iran, just in the case of its domestic enrichment program, has the legal right to question the placement of IAEA inspectors, whether it is due to media leaks or a perception of foreign intelligent agents. In the case of a perception of foreign intelligence agents:

    1. Intelligence operative have previously infiltrated UN inspection groups

    2. The IAEA sometimes gathers inspectors from Western national labs

    3. Iran may also have a perception that Western governments are illegaly wiretapping the IAEA (http://www.washingtonpost.com/wp-dyn/articles/A57928-2004Dec11.html)

    4. Mohamed ElBaradei has previously said the IAEA “is an organisation which – I hate to say – we are sure is infiltrated by many intelligence agencies.” (http://www.iaea.org/NewsCenter/Transcripts/2009/derstandard110609.html)

    If reconciliation is sought, confidence building measures, such as the fuel swap which was put forward by Brazil and Turkey, would be explored. Questioning Iran’s legal right to enrich and legal right to question inspectors based on its own perceptions seems a little silly.

  23. MarkoB (History)

    It is not possible to view Iranian stalling on safeguards in isolation. One predictable consequence of a fourth round of sanctions, especially the use of the fourth rounds unilateral measures provisions to target Iran’s financial and energy sectors, was, as I and others stated at the time, that Iran would make the job of the IAEA more difficult. There have been plenty of stories since the fourth round got up in the press about Iran’s bank and oil sectors “doing it tough.” The IAEA might well be losing knowledge on the full scope of Iran’s activities, but that is to be expected when US-Iran relations are in free fall. How would this report have read if instead the Turkey-Brazil “zombie” deal was adopted and a fourth round of sanctions was put off? We can debate safeguards and code 3.1’s and the legal arcana of the non-proliferation regime all we like, but the fact is this is a *political* process not a *legal* process. The apolitical politics of the non-proliferation community seemingly knows no bounds.

    • FSB (History)

      I agree, and I lay much of the blame at the feet of our august print media.

      see e.g.:

      From Prof. Walt and Mearsheimer’s paper:

      http://web.hks.harvard.edu/publications/getFile.aspx?Id=209

      ” Editorial bias is also found in papers like the New York Times…….it is not even‐handed….In his memoirs, for example, former Times executive editor Max Frankel acknowledged the impact his own pro‐Israel attitude had on his editorial choices. In his words: “I was much more deeply devoted to Israel than I dared to assert.” He goes on: “Fortified by my knowledge of Israel and my friendships there, I myself wrote most of our Middle East commentaries. As more Arab than Jewish readers recognized, I wrote them from a pro‐Israel perspective.” ”

      REF:
      Max Frankel, The Times of My Life And My Life with the Times (NY: Random House, 1999), pp. 401‐403.

      ======

      When that is the case, one can hardly expect Iran will be given a fair hearing in our print media. (If anything, the WPost editorial board is much worse, in this respect, than NYT’s, and let’s not even speak of WSJ).

      Thank the Lord for the electronic media.

  24. FSB (History)

    Read today’s laughable NYT Editorial which shows Prof. Walt and Mearsheimer’s concern of a Israel-biased print media (above) are right on target:

    http://www.nytimes.com/2010/09/10/opinion/10fri1.html?ref=opinion

    Maybe Sanger can explain why Iran needs to give up their inalienable right to enrichment and why they were referred to the UNSC?

  25. FSB (History)

    And, right on cue, more false agitprop from the pro-Likud Washington Post Editorial Board:

    http://www.washingtonpost.com/wp-dyn/content/article/2010/09/09/AR2010090905731.html

    LMAO!

  26. andreas (History)

    Right, everyone. I think the debate has spiralled away from the topic of the post. We’re not discussing compliance or non-compliance or diversion or non-diversion (over which there is considerable confusion). We were supposed to discuss inspector designations. So I’m closing the thread.

    Anyway. I hope you enjoyed it.

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