Jeffrey LewisHeinonen in Haaretz

Olli Heinonen has given Yossi Melman a long interview in Ha’aretz regarding the IAEA’s work in Iran.  It is a must read, including the section on Iran’s technical challenges.

Heinonen argues that Iran is slowed not by sabotage, but by the limitations of the P1 design and the difficulty of acquiring components:

Heinonen believes that Iran is still having trouble moving ahead with its nuclear program. Two factors might account for these apparent difficulties. The first is problems in the design of centrifuges: The ones they produce are of the P-1 design, originally a Dutch model that was stolen by the Pakistanis and secretly sold to Iran. The second factor is difficulty in attaining raw materials (including sensitive metals needed for the centrifuges ), both because of international sanctions and the close intelligence surveillance of Iranian procurement networks. Finally, says Heinonen, “perhaps they have a secret plant for uranium enrichment that we do not know about, but there is no solid information pointing to such an operation on a large scale.”

Do you believe that the defects in centrifuge production could be caused by the sabotage efforts of intelligence agencies, such as the CIA or the Mossad?

“Possibly the centrifuges were damaged by sabotage or the acquisition of faulty equipment, but the main thing is that the Iranians wanted to do everything on their own. In contrast to Libya, which purchased all the materials from a smuggling ring headed by the Pakistani Dr. Abdul Qadeer Khan, and intended to establish an enrichment plant, Iran decided to purchase only the technology from Pakistan, but to produce everything by itself. In my opinion, the flaws in the centrifuges derive from two interconnected reasons: lack of sufficient knowledge, and difficulty obtaining high-quality material.”

Comments

  1. FSB (History)

    Jeffrey,
    first it’s Olli with two l’s — next, I’m glad to see a more cautious tone from Olli. As our DNI has said there is no evidence of an Iranian nuclear weapons program.

    The writer of the article says: “For years, the Iranians have alleged that some IAEA inspectors operate at the behest of “foreign elements” – meaning Israel and the United States. Iran has made a systematic attempt to undermine the IAEA’s status: It bars the entry of inspectors it doesn’t like, and claims that some sites are beyond the inspectors’ purview. It also disregards decisions reached by the agency and by the UN Security Council. ”

    Well, the allegations of US spies are true.

    David Kay, who served as the IAEA/UNSCOM (United Nations Special Commission) Chief Nuclear Weapons Inspector in Iraq was accused by Iraqi officials of being a spy and was quite instrumental in building the case for the 2003 invasion of Iraq.

    He once admitted that some inspections in Iraq went hand in hand with spying. When in 1999 he was asked by PBS’s Frontline what he thought about infiltration of the UNSCOM by intelligence agents, he answered:

    “Well, I think it was a Faustian bargain. The intelligence communities of the world had the only expertise that you could use if you were unmasking a clandestine program. . . . So, from the very beginning, you needed that expertise, but I can say for myself personally—and I’m really only comfortable talking about myself—although a number of us discussed this in the early days—I realize it was always a bargain with the Devil—spies spying. The longer it continued, the more the intelligence agencies would, often for very legitimate reasons, decide that they had to use the access they got through cooperation with UNSCOM to carry out their missions.”

    Iran does disregard some decisions of the IAEA — the wrong ones.

    Because most of the requests to visit various Iranian sites that are stated by the IAEA in its reports are covered by the Additional Protocol, Iran has no legal obligations to grant them.

    Iran has stated that, if its nuclear dossier is returned to the IAEA – its rightful place – it will begin implementing again the provisions of the Additional Protocol on volunteer basis until Iran’s parliament ratifies the Agreement.

    At the same time, the Agency has carried out many unannounced visits to Iran’s nuclear sites. Such intrusive and unannounced visits are an important part of the Additional Protocol. Therefore, Iran is still selectively and voluntarily carrying out some provisions of the Additional Protocol. That is a positive aspect of Iran’s behavior which is overlooked.

    The IAEA also stated that Iran did not allow it to visit and inspect Iran’s under-construction research reactor in Arak. But, such visits are covered by the modified text of the Subsidiary Arrangements General Part, Code 3.1, of the Safeguards Agreement. Iran had agreed to the modified text, part of which states that Iran must allow inspection of the under-construction sites. However, because the EU3 reneged on its promises, Iran suspended the implementation of the modified text in February 2006, and went back to its original Safeguards Agreement, signed in 1974. The original Subsidiary Arrangements state that only 180 days prior to the introduction of any nuclear material into a nuclear facility does Iran have the obligation to allow visits to and inspection of the facility. Thus, once again, Iran has no legal obligations towards the Agency regarding the Arak reactor.

    Thus, overall, despite the propaganda and bogus alarms the IAEA report actually indicates positive developments in the thorny issue of Iran’s nuclear program. Iran’s legally-speaking relative openness of its uranium enrichment program should be taken for what is intended for: declaring that Iran is willing to compromise.

    Re. Code 3.1(mod) also see:
    http://jurist.org/forumy/2010/03/qom-enrichment-facility-was-iran.php

    Regarding the mention of warheads — I’m glad Olli now admits it was blue-sky research (if indeed the laptop story is genuine) and not a weapons development program.

    Kindly 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 any case, there is nothing that authorizes the IAEA or Olli to investigate Iran’s missile program unless there is evidence of nuclear material involved — which the IAEA has said there isn’t.

    From the DNI –

    Annual Threat Assessment:

    http://www.dni.gov/testimonies/20100202_testimony.pdf

    “We continue to assess Iran is keeping open the option to develop nuclear weapons in part by developing various nuclear capabilities that bring it closer to being able to produce such weapons, should it choose to do so. We do not know, however, if Iran will eventually decide to build nuclear weapons.”

    And the “721” report:

    http://www.dni.gov/reports/2009_721_Report.pdf

    “…we do not know whether Iran will eventually decide to produce nuclear weapons.”

    Let us re-cap: to the best of the US IC’s knowledge the Iranian government has NOT decided to make nuclear weapons.

    • MWG (History)

      A few comments/corrections of what FSB has written.

      He takes IAEA reports that the IAEA has conducted unannounced inspections as evidence that Iran is implementing the Additional Protocol. In fact, unannounced inspections at declared facilities are part of comprehensive safeguards agreements (see Article 84 of Iran’s safeguards agreement):

      “Notwithstanding the provisions of Article 83, the Agency may, as a supplementary measure, carry out without advance notification a portion of the routine inspections pursuant to Article 80 in accordance with the principle of random sampling. In performing any unannounced inspections, the Agency shall fully take into account any operational programme provided by the Government of Iran pursuant to Article 64(b). Moreover, whenever practicable, and on the basis of the operational programme, it shall advise the Government of Iran periodically of its general programme of announced and unannounced inspections, specifying the general periods when inspections are foreseen. In carrying out any unannounced inspections, the Agency shall make every effort to minimize any practical difficulties for the Government of Iran and for facility operators, bearing in mind the relevant provisions of Articles 44 and 89. Similarly the Government of Iran shall make every effort to facilitate the task of the inspectors.”

      Unannounced inspections are a standard part of the safeguards approach for centrifuge enrichment facilities.

      FSB also misstates Iran’s legal obligation to give the IAEA design information and physical access to the heavy water research reactor under construction at Arak. Whether or not you accept Iran’s claim that it has the right to suspend implementation of the modified Code 3.1 on provision of design information (I do not accept it), once Iran provided that information Iran still has the obligation to provide information on design modifications (See Article 45)

      “The Agency shall be provided with design information in respect of a modification relevant for safeguards purposes, for examination, and shall be informed of any change in the information provided to it under Article 44, sufficiently in advance for the safeguards procedures to be adjusted when necessary.”

      It is unlikely that the design for this reactor has remained unchanged since the last time Iran provided design information.

      Furthermore, the IAEA retains the right to verify any design information that has been provided (see Article 48):

      “The Agency, in co-operation with the Government of Iran, may send inspectors to facilities to verify the design information provided to the Agency pursuant to Articles 42-45, for the purposes stated in Article 46.”

      Finally, I take issue with FSB’s assertion that “EU3 reneged on its promises” to Iran. That gets the sequence wrong. Throughout the EU3 engagement process, Iran sought to push the limits of what it had agreed to. In August 2005, Iran reneged on its suspension of uranium conversion activities, which had been an explicit part of its commitment to suspend enrichment-related activities. In September 2005, the IAEA Board of Governors finally met its Statutory responsibilities and found that Iran had violated its safeguards obligations. And in February 2006, the Board decided to report this non-compliance to the UN Security Council. It was this decision that Iran cited in its decision to suspend implementation of the Additional Protocol and modified Code 3.1

      Iran said it was was dissatisfied with with EU3 actions, and that’s why it ended its suspension. But clearly Iran took the first overt step to end the Paris agreement, so if anyone “reneged” it was Iran.

      However, I agree with FSB’s general caution that we do not know whether Iran has decided to develop nuclear weapons. Still, it is difficult to understand Iran’s nuclear fuel cycle activities as anything other than an attempt to develop the capability to produce nuclear weapons, should it so decide.

    • FSB (History)

      MWG correctly quotes the CSA:

      “In performing any unannounced inspections, the Agency shall fully take into account any operational programme provided by the Government of Iran pursuant to Article 64(b). Moreover, whenever practicable, and on the basis of the operational programme, it shall advise the Government of Iran periodically of its general programme of announced and unannounced inspections, specifying the general periods when inspections are foreseen. In carrying out any unannounced inspections, the Agency shall make every effort to minimize any practical difficulties for the Government of Iran and for facility operators, bearing in mind the relevant provisions of Articles 44 and 89. ”

      Furthermore it is irrelevant that MWG or anyone else believes “it is difficult to understand Iran’s nuclear fuel cycle activities as anything other than an attempt to develop the capability to produce nuclear weapons” whilst no nuclear material diversion has been evident.

      The IAEA and the UNSC have as much right to force Iran to ratify the AP as they do to insist Israel join the NPT — ie. they do not.

    • FSB (History)

      On carrying out IAEA inspections —

      Art. 2 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.”

      Iran has been abiding by the letter of the law and has even granted inspections that it is not required to do. the IAEA has exceeded its mandate.

      118 countries agree with Iran — the real “international community”:

      http://www.atimes.com/atimes/Middle_East/LI17Ak02.html

      “In a strongly-worded statement, representatives of the Non-Aligned Movement (NAM) at the International Atomic Energy Agency (IAEA) have supported Iran’s position on the contentious issue of IAEA inspectors and have also expressed concern that the most recent IAEA report on Iran has “departed from standard verification language”.

      “NAM notes with concern, the possible implications of the continued departure from standard verification language in the summary of the report of the director general [Yukio Amano],” the statement said. The statement was read during the IAEA board of governors meeting on behalf of over 100 NAM member states.”

  2. Alan (History)

    The full interview puts a bit more meat on the Alleged Studies bone. The bit about being able to identify the workshops where the incriminating videos were taken is certainly intriguing.

    • FSB (History)

      Too bad there was no nuclear material involved in the alleged studies.

      The IAEA reports state 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.

      More info at:

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

    • Alan (History)

      FSB – have you read the article? It has more up to date, first hand info than what you quote above.

    • FSB (History)

      I read it and did not see anything convincing — could you quote the part you refer to?

    • Alan (History)

      The bit about the workshops, the nature of the evidence and Iran’s response to them.

    • FSB (History)

      I guess you mean this:

      “Accompanied by several inspectors, Heinonen visited Iran with greater frequency after preliminary reports surfaced, in 2002, regarding the Natanz facility for uranium enrichment. When he asked to visit the workshop in Tehran where the first centrifuges were manufactured, the Iranians claimed it was a factory for electronic clocks.”

      A non-event. But cute.

      NPT states have every right to the nuclear fuel cycle — indeed should get assistance from the IAEA for this. There is no reason that Iran, Brazil, Argentina, Japan etc. cannot have centrifuges.

      Olli tossing the salad again. And I don’t mean that in the porn sense.

      Is there any other great revelation you read in the long interview?

    • Alan (History)

      FSB – sorry, I thought it was obvious the bit I was talking about. This is what I mean:

      OH: “In our view, this was, indeed a missile warhead, but we wondered about its goal. What was the purpose of such a warhead? All of the material made clear to us that this was an attempt to simulate an explosion at a height of 600 meters aboveground. This is not a height at play when a conventional weapons device is detonated, nor is it the right height for a chemical weapons warhead. The device also had a microsecond timer for triggering the explosion. It did not have the characteristics of electromagnetic pulse equipment that is designed to destroy electricity grids and communication lines as well as power stations – all these things point in the nuclear direction. We tried to speak with the Iranians. In the end, they admitted that, logically, the information pointed to a nuclear warhead, but they insisted that the materials were fabricated, and did not come from Iran.”

      REPORTER: What happened in the end?

      OH: “We tried to persuade them to reply to our questions. In turns, they agreed and refused, and claimed that the IAEA has no mandate to investigate something that was essentially a conventional military matter. It was also clear that the editor of the video clips had erased background images of workshops. We were able to identity these facilities, and we asked to visit them. I traveled to Iran, and they assented to a tour, but at the last minute, in my opinion due to the intervention of a very high official, they withdrew this authorization to visit the workshops. Had we visited them, we would have had a clearer sense of what was seen in these materials.”

      REPORTER: So what conclusions did you reach from the “Chariots of Fire.”

      OH: “That this was likely part of a feasibility study into examining aspects of the assembling of a nuclear warhead, but not, at this stage, the actual manufacturing of a nuclear device.”

      ——-

      I think that is more information than we are used to seeing in the public domain, and as such puts more meat on the bone of the Alleged Studies issue.

    • FSB (History)

      Alan,

      As the article says — Iran “claimed that the IAEA has no mandate to investigate something that was essentially a conventional military matter.”

      They are right.

      The IAEA agrees, btw: 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.”

      This is an important point for all to understand re the CSA — Iran can research what it likes as long as there is no nuclear material diversion.

      So there may be red flags, but given what has been signed between the IAEA and Iran, the IAEA’s mandate to investigate is limited

  3. Alan (History)

    Intriguing (and very detailed) legal analysis here from Eric Brill, strongly questioning the validity of the UNSC Resolutions against Iran, and arguing Iran should take the arbitration route.

    http://irannucleardispute.blogspot.com/

    Wasn’t this something Mr Persbo was going to help us out with at some point?

    • FSB (History)

      Great — something some of us have been saying for ages.

    • FSB (History)

      e.g. see the first comment under Presbo’s post:

      http://guests.armscontrolwonk.com/archive/3024/inspector-designations#comments

    • Spruce (History)

      Actually, Brill’s comment is pretty much opposite to what the FSB’s linked comment says. First, he points out that Agreement Governing the Relationship between the United Nations and the International Atomic Energy Agency (http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc11.pdf) allows IAEA to report to Security Council pretty much whatever it wants whenever it wants. More specifically, Article III(1.b) states that IAEA may: “Submit reports, when appropriate, to the Security Council and notify the Council whenever, in
      connexion with the activities of the Agency, questions within the competence of the Council
      arise;”

      Important part is that, according to that article, IAEA may report to SC on anything it feels “appropriate” to report. Article III(2), which deals with the non-compliance and is identical to what appears in the Safeguards Argeements, adds that IAEA _must_ report to SC any non-compliance. It, however, does _not_ limit IAEA’s reporting (even of single countries) to cases of non-compliance. Thus, the Article III(1.b) allows – and I would argue demands – IAEA’s reporting to SC about Iran as it is (at least now) a case that is very much a “question within the competence of the Council”.

      What Brill argues is that IAEA was fully in its right to report Iran to SC, but SC’s subsequent decisions are illegal as they have not specifically quoted Article 39 of the UN Charter (Threat to Peace), which give SC its most far-reaching powers. However, at least I find his agruments against the reasoning, which he dubs “implied Article 39 resolution” unconvincing. He does quote several discussions (including, for example Cot, Jean-Pierre and Pellet, Alain: La Chartre des Nations Unies: Commentaire article par article from 1991) that argue very convincingly for that “implied Article 39”. Nevertheless, he dismisses them by simply stating that there has been always explicit mention of the Article 39 in the resolutions. I do not view that as adequate basis do dismiss that argument. The implied use is possible from the articles themselves, as argued in Cot&Pellet, simply not using it does not make it go away. If you drive ten years 40 kph in 50 kph speed limit area and then start driving 50 kph, you are not speeding despite going against precedent set by you.

    • FSB (History)

      Spruce,
      the IAEA can send reports to the UNSC whenever it pleases them to do so — the point is that the REFERRAL process, not the reporting is extra-legal. What Brill says is:

      “One naturally assumes that something is written, somewhere, authorizing the Security Council to enforce Iran’s Safeguards Agreement. Perhaps in the UN Charter, or the Nuclear Non-Proliferation Treaty (NPT), or the Safeguards Agreement between Iran and the IAEA, or the statute that established the IAEA (the IAEA Statute), or the several IAEA/UN cooperation agreements (the IAEA/UN Cooperation Agreements). If not in one of these documents, certainly somewhere else.

      In fact, no document grants the Security Council any authority to enforce Iran’s Safeguards Agreement. Nothing but baseless assumptions, wishes and imagination support this belief. ****There is no such thing as a “referral” process under which the Security Council has authority to enforce Iran’s Safeguards Agreement, under any circumstances****. Iran is just as mistaken as its adversaries to believe there is.[1] The two sides are not alone.[2] Nearly all commentators focus on whether the IAEA’s “referral” of Iran to the Security Council was warranted, or the conditions on which Iran’s “file” or “dossier” ought to be “returned” to the IAEA.[3] Very few recognize that it never left, that the IAEA will always remain the only body with authority to enforce Iran’s Safeguards Agreement.”

      So, irrelevant hair-splitting aside, there is much agreement between what I advocate and what Brill does: arbitration as clearly set out in the CSA. (see my link above to my comment on Presbo’s post)

    • MWG (History)

      There is no “referral process.” The IAEA “reports” non-compliance and “notifies” the Security Council when it learns of something within the Council’s competency – i.e. preserving international peace and security. In the case of Iran, the IAEA Board of Governors did both.

      The issue is then before the Council to address as it sees fit. But neither reporting nor notification removes the issue from the Board’s agenda.

    • Spruce (History)

      Like MWG pointed out, there is no “referral” process. And Boards findings of Iran were not “referred” to Security Council, it was reported to it.

      In case of non-compliance, IAEA _reports_ its findings of non-compliance to Security Council. In addition, IAEA may report any other findings it deems appropiate. The only difference between reporting due to non-compliance and reporting other appropiate findings is that IAEA has more leeway in deciding what falls in the second category. FSB is mistaken in thinking that there is something basically different in reporting to SC due to finding of non-compliance and reporting due to other factors. In fact, that equality becomes very clear if you look at the wording of relevant articles in Infcirc 11. Article III(1.b), which controls reporting in general states:

      “[IAEA shall s]ubmit reports, when appropriate, to the Security Council and notify the Council whenever, in
      connexion with the activities of the Agency, questions within the competence of the Council
      arise;”

      While Article III(2), which controls the non-compliance reporting says:

      “The Agency shall report to the Security Council and the General Assembly any case of noncompliance
      within the meaning of Article XII, paragraph C, of its Statute.”

      After the Security Council gets information about a case, whether according to III(1.b) or III(2), it has the tools allowed by the UN Charter in its disposal. Brill’s point is that regadless of whether Iran’s situation is reported due to non-compliance or due to other factors, the Security Council does not have the authority to enforce the Safeguard Agreement (as it has done by, for example, requiring Iran to adhere to the “modified Code 3.1”). It only has the authority given by UN Charter Articles 39-42 (although those are very widespread). And it has that authority regardless of whether it considers the issue due to IAEA’s non-compliance report, IAEA’s other report, or by its own initiative.

      To sum it up: it does not matter why and how the Iran issue comes up to Security Council: it doesn’t even matter whether it comes due to IAEA reporting non-compliance or by Security Council taking it up on its own initiative with no input from IAEA. The options available to both IAEA and Security Council are exactly the same regardless.

    • FSB (History)

      The point that both MWG and Spruce miss is that all commentators (NYT, WashPost etc.) think that Iran’s nuclear issues are now before the security council and not with the IAEA. They are not — they are with the IAEA.

      What MWG and Spruce say is correct — in theory, but not in practice. That is the point both I and Brill make.

      Of course there is no referral process and no dossier and no file of Iran to the UNSC. It is an issue that the IAEA has to deal with alone — via arbitration.

    • Spruce (History)

      That’s true, but not the whole truth. In addition to IAEA dealing with the issue, Security Council may take the steps allowed in UN Charter Articles 40-42 if it feels the criteria of Article 39 is fulfilled. Security Council may take those actions regardless of IAEA’s actions.

      The common mistake is thinking that the Security Council somehow “takes over” the process after the finding of non-compliance. That’s not true, instead IAEA continues to act according to the Safeguards Agreement. Security Council’s actions are just independent and additional to that.

      Thus, even if IAEA would rule that Iran is in compliance with its Safeguards Agreement (the “taking the dossier back” that FSB refers to), Security Council would be fully in its power to continue its actions as long it finds that the criteria in Article 39 is fulfilled. If it finds that the Iranian enrichment program is Threat to Peace, it does not even matter if Iran is fully in compliance with its Safeguards Agreement; Security Council would be empowered to take action in that case.

    • FSB (History)

      Spruce,
      yes the UNSC can take whatever steps it feels like, but it has no right to abrogate international treaties like the NPT by insisting that Iran give up its right to enrichment.

      That is the the problem with the pseudo-referral process: it opens up two tracks.

      Now, even if Iran complies with every single one of IAEA’s demands and complies in the eyes of the IAEA to its CSA, it still has the further hurdle of independent UNSC pseudo-demands that are issued from the rectum of Hillary Clinton — such as Iran must stop enriching.

      In fact, Iran need only comply with the IAEA (which in the eyes of 118 nations it is doing). No one, not even the UNSC has the right to force zero enrichment upon Iran. That is an abrogation of the NPT.

      That is the problem with the two track (IAEA and UNSC) process and that is why people need to realize that the case of Iran rests with the IAEA and the only correct way to deal with it is via arbitration.

    • MWG (History)

      Three comments on the preceding thread.

      First, the notion of “referral” is an unfortunate creation of the media, which Iran likes to complain about. As all in this thread seem to recognize, it is a fiction, so let’s dispense with it.

      Second, it is entirely legitimate to judge that Iran’s pervasive violations of its safeguards obligations over the preceding two decades present a high risk of actual nuclear proliferation, which would constitute a threat to international peace and security. It is entirely reasonable to believe that it is not sufficient for Iran merely to correct its safeguards violations. The opposite view would be to hold that Iran should face no consequences for its cheating, which many (including me) find unreasonable.

      Third, an often misunderstood point, the NPT does not grant a right to enrichment in particular or to a peaceful nuclear energy program in general. Rather, it _recognizes_ a pre-existing sovereign right of states to have a nuclear program, so long as that program is peaceful and in conformity with Articles I and II, the core nonproliferation requirements of the NPT. An enrichment program may be peaceful and undertaken in full compliance with the treaty’s requirements. Iran’s enrichment program was not undertaken in that fashion. It violated Article III.1 of the NPT. Some argue that it also violated Article II (seeking and receiving assistance in the manufacture of nuclear weapons) but the argument is circumstantial.

      This is the dilemma of enforcing compliance with the NPT. To provide early warning, the verification regime establishes the threshold for cheating at diversion or other non-compliance with safeguards obligations. But it leaves enforcement implicitly to the UN Security Council, which operates by a different standard – threats to international peace and security. There’s a logical connection between the two, but the facts that indisputably establish a safeguards violation do not incontrovertibly establish a violation of ARticle II or a threat to peace and security.

      It seems to me that gap is what we’re really arguing about.

    • FSB (History)

      MWG says: “It is entirely reasonable to believe that it is not sufficient for Iran merely to correct its safeguards violations.”

      Well, fine maybe for Israel and the US — in any case, the UNSC should simply say THAT. That they are pulling the case out of their rectum and that it is based on no law and simply on irrational fear.

      Similarly, it is also entirely reasonable to believe that Israel, a regular human rights violator and war criminal government, should get rid of its nukes to make the middle east safer. Where is the UNSC on that?

      As you suggest, the UNSC should say “we don’t like Iran and do not trust it, and therefore want them to stop enriching U” instead of invoking alleged CSA violations as a pretext for sanctions.

      The CSA “violations” are up for arbitration.

      The extra-legal UNSC process has started, but the legal IAEA process — arbitration — has faltered.

      What I and Brill are saying is that legal arbitration needs to start since that is written into the CSA. The UNSC is free to punish any nations it does not like, but that is based on no law.

    • MWG (History)

      Once again, FSB misses the point.

      The issue is not limited to how to deal with Iran’s safeguards violations. The main point is how to deal with the consequent NPT violations. For that purpose, the IAEA has done its job in reporting the safeguards violations to the Security Council. It is not mere whim that brings this to the attention of the Council. If arbitration at the IAEA has ever been relevant (I have argued elsewhere that it was not), it is no longer relevant.

      The fact that none of the relevant legal instruments (the NPT, Iran’s safeguards agreement, the IAEA Statute, and the UN Charter) spells out how to respond in such a case means we are in uncharted legal territory, but it does not make their responses “extralegal.”

      I have not been impressed by the legal arguments I have read on Iran’s behalf. Daniel Joyner admits complete ignorance of what is in Iran’s subsidiary arrangements and glosses over the fact that Iran’s safeguards agreement states that the subsidiary arrangements “shall enter into force.” This is a succinct, explicit and definitive indication of the intent that subsidiary arrangements be legally binding. Eric Brill seems to rest his entire argument on the assertion the Security Council may not “implicitly” find a threat to international peace and security, even though such a finding is the only legal basis for invoking Chapter VII of the UN Charter. And neither seems to have any particular knowledge of nonproliferation.

    • FSB (History)

      MWG’s arguemnts are getting more convulted and increasingly unimpressive.

      First he said that there was no “referral” process but now backs that in essence — he says that “The main point is how to deal with the consequent NPT violations.”

      [Dealing with alleged violations in any case does not obviate Iran’s right as a NPT signatory to the nuclear fuel cycle, like Argentina and Brazil. i.e. insistence on zero enrichment is extra-legal and possibly illegal.]

      MWG says “If arbitration at the IAEA has ever been relevant (I have argued elsewhere that it was not), it is no longer relevant.” oh why oh why? If Iran’s dossier is still with the IAEA — as MWG before said it was — then IAEA CSA rules apply and arbitration is the right way to proceed.

      On the real threat to international peace and harmony:

      http://www.boston.com/bostonglobe/editorial_opinion/letters/articles/2009/10/04/us_israeli_threats_do_more_harm_to_world_peace/

      IRAN’S NUCLEAR WISHES
      US, Israeli threats do more harm to world peace

      October 4, 2009

      IT IS the accusers, not the accused, who have breached the nuclear nonproliferation treaty (“Talk to Iran, but keep a Plan B,’’ Editorial, Sept. 27).

      The long-established nuclear powers have manifestly failed to meet their treaty obligation to pursue negotiations toward nuclear disarmament, while Iran is entitled under the treaty to enrich uranium for nonmilitary purposes.

      The UN Security Council, in demanding that Iran permanently cease uranium enrichment, assumes that it has the right to abrogate international treaties. It should, instead, declare that Israeli and American threats to bomb Iran’s nuclear facilities are a threat to international peace.

      Better still, tell Iran that if it forgoes its rights as a signatory of the existing international nonproliferation treaty in a fully verifiable form, the Security Council will ensure that Israel becomes a signatory and surrenders its nuclear weapons. The collective national interests of the West demand no less.

      Yugo Kovach
      Dorset, United Kingdom

    • anon (History)

      MWG: “I have not been impressed by the legal arguments I have read on Iran’s behalf. ”

      They are not on behalf of Iran — they are on behalf of the law.

      As FSB and Spruce and Brill point out, the IAEA process remains in effect — reporting of Iran to the UNSC does not remove the Iran case out of the IAEA’s domain.

      While it remains in IAEA’s domain the best course of action, as FSB, Masoud, Presbo, Hibbs etc. have all said is arbitration since that is exactly what Iran and the IAEA agreed to. It may not be the best for the west, but that is an unfortunate consequence of the law and of what has been signed. It is not a pro- or anti-Iran stance. It is pro-law.

      e.g. we all “know” OJ Simpson was guilty of murdering his wife but the law dictated he be set free. The law is often imperfect, but it is the law. In the case of Iran it is less clear if it is developing nuclear weapons (eg. see the DNI’s multiple statements), and the law must be followed.

      Article 22 of the SA is explicit:

      ” 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…”

      No wiggle room there.

  4. EAB (History)

    MWG,

    I should mention that a comment you made earlier on an ACW forum is quoted in my piece below, at footnote 36. I’d appreciate hearing your thoughts on that, and would be flattered if you and others here would take the time to read my article. You may also want to offer comments at the Race for Iran site, where it’s presently being featured. I’d be honored by your attention.

    http://irannucleardispute.blogspot.com/

  5. Nick (History)

    MWG is wrong on the assertion that Article 45 forces Iran to provide design modifications when there have not been a change. Heavy water reactors, such as the one in Arak, have a very classical design approach, with little changes from the original design sketches to the Agency that may require additional information for tightening up inspections. On the some note, the Agency demanding to find out more about the heavy water activities in that site is completely outside the SA with Iran.

    • MWG (History)

      I didn’t say that Iran has to provide design modifications where none have occurred. But I think it is likely that Iran has modified the design on Arak and other facilities as construction has proceeded, if only to add further detail on features relevant to the application of safeguards. This is normal in the construction of any nuclear facility.

    • FSB (History)

      Perhaps Iran has and perhaps it hasn’t. It has no obligation to reveal non-modifications obviously.

      The sole purpose of the CSA is to ensure the lack of nuclear material diversion — nothing else at all.

    • MWG (History)

      FSB writes that “the sole purpose of the CSA is to ensure the lack of nuclear material diversion.” It is not quite as simple as that.

      First, diversion has to be understood broadly to include the failure to declare nuclear material. After all, the obligation of the State is to accept safeguards on _all_ nuclear material.

      Second, many of the provisions of safeguards agreements, and most provisions of Additional Protocols, are designed to make it hard for a country to avoid declaring all its nuclear material without being found out. So in effect safeguards actually function by detecting non-compliance and, short of that, pursuing questions about compliance and failures to cooperate to resolve those questions. The third article in a safeguards agreement, immediately following the basic undertaking, is the obligation on the the State (and the IAEA) to cooperate. Iran’s – and Syria’s – refusals to cooperate with the IAEA are therefore serious challenges to the safeguards system.

      Finally, the underlying purpose of safeguards in the NPT is “preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices.” In principle, diversion of nuclear energy involves a broader category of activities than diversion of nuclear material. In this case the obligation in the NPT doesn’t quite match that in the safeguards agreement, another cause of confusion.

  6. Nick (History)

    MWG, in my opinion, again you are taking a very biased view of what is in the CSA with Iran. Iran’s recent cooperations is in par with the original agreement, in terms of unannounced site visits, installation of more cameras, taking samples, and etc.

    Amano and the DC pundits are nit picking on minor technical issues that have been spelled out in the CSA and probably requires a fair arbiter to decipher, such as Iran’s rejection of some of the inspectors and so on.

    If regarding cooperation you mean the sticky point of “Alleged Studies,” that is in Amano’s wish list, but clealry outside what has been agreed upon more than 35 years ago between Iran and the Agency. It was truly a clever move by the West to deflate months of negotiations between Larijani and IAEA/EU/US to reolve the six outstanding issues by inserting the “Alleged Studies.”

    One thing that I give credit to the new DG is that, Amano’s first report clearly spelled out what the Agency is after, namely “completeness” and “correctness.” However, proving completeness is not possible unless AP is adopted, which is outside of current CSA obligations; and really requires proving a negative.

    • MSG (History)

      Nick, I have tried to focus more on Iran’s long history of non-compliance before it was exposed in 2002. This is what triggered the current issue and to my mind the core issue remains how to cure that systematic and deliberate cheating by Iran on its nonproliferation obligations.

      Nonetheless, I have to give Iran at best a D grade for its current degree of compliance or cooperation with the IAEA. The one area that seems most clear-cut is Iran’s unilateral decision to stop implementing the modified Code 3.1 and to stop allowing the IAEA to verify design information provided under Modified Code 3.1. Iran’s safeguards agreement does not allow it to do this. In general, Iran has made unilateral decisions on whether and how to cooperate with the IAEA that contradict precedents and decisions of the Board of Governors. Such limited and grudging cooperation invites suspicion.

      I also have to correct you on “completeness,” which entered the IAEA’s lexicon in the early 1990s in the context of verifying South Africa’s initial declaration. It is useful to recall the steps the IAEA took to strengthen the safeguards system in the 1990s, particularly under Programme 93 + 2. Responding to revelations in Iraq, the IAEA took a series of ad hoc decisions on early provision of facility design information (modified Code 3.1), special inspections, and voluntary reporting on nuclear exports. In 1993, the IAEA decided to take two years to develop a comprehensive set measures to strengthen implementation of safeguards, building on lessons from South Africa and North Korea as well as Iraq.

      After those two years, the Board of Governors decided in 1995 that implementation of CSAs should be designed to verify correctness and completeness. This was Part 1 of Programme 93+2, formally adopted in June 1995. The Board also recognized the need for additional authority to strengthen the IAEA’s ability to verify completeness, and decided to develop the measures that eventually became the Additional Protocol. This was Part 2 of Programme 93 + 2.

      With all the attention to the Additional Protocol, Part 1 is often overlooked. Among its measures were the routine updating and reverification of design information, one of the areas where Iran’s cooperation has been most lacking.

      The main difference between now and the mid-1990s is that the IAEA is facing a much more sophisticated adversary. It was easy to see that Iraq and North Korea were in the wrong (and that South Africa was genuinely trying to come clean), but Iran has been much more skillful in skirting the margins of compliance and gaining support by politicizing its dispute with the IAEA. The Bush administration made this much easier by first destroying its own credibility with wildly exaggerated claims about Iraq’s WMD programs.

    • MWG (History)

      Message to moderator: Please correct name of previous commenter from MSG to MWG before posting.

    • FSB (History)

      Nick is right.

      Regarding MWG’s earlier comment on the purpose of the CSA — Art. 2 of the CSA 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.”

      MWG should know that Iran has not ratified the AP.

    • FSB (History)

      Re. completeness, inspectors and the dispute with the current IAEA DG’s reports pls note that 118 countries of planet Earth agree with Iran — these countries, together, constitute the real “international community”:

      http://www.atimes.com/atimes/Middle_East/LI17Ak02.html

      “In a strongly-worded statement, representatives of the Non-Aligned Movement (NAM) at the International Atomic Energy Agency (IAEA) have supported Iran’s position on the contentious issue of IAEA inspectors and have also expressed concern that the most recent IAEA report on Iran has “departed from standard verification language”.

      “NAM notes with concern, the possible implications of the continued departure from standard verification language in the summary of the report of the director general [Yukio Amano],” the statement said. The statement was read during the IAEA board of governors meeting on behalf of over 100 NAM member states.”

    • MWG (History)

      No. Nick is wrong. Verifying completeness is a standard part of implementation of a comprehensive safeguards agreement. It has been since at least March 1995, when the IAEA Board of decided it should be. This was the point of a long post I submitted Sunday.

      I accidentally signed that post MSG instead of MWG and asked the moderator to fix it. Unfortunately, the moderator posted the wrong message. I hope the moderator can recover that post, since I no longer have it.

      And FSB persists in being wrong about the purpose of a CSA. The “such material” he refers to is all nuclear material in peaceful use in the country. It is not limited to declared material.

    • anon (History)

      Logic is a useful instrument in such debates.

      There would be no reason for the Additional Protocol to have been invented if all the benefits of the AP could have been gotten without it, as MWG appears to think is the case.

      In fact, there was a reason to implement the AP, and that reason is correctly spelled out by Nick above.

      Absent ratification of the AP, the IAEA’s mandate certainly does not extend to intrusive random inspections of anything they please at any time. Thus, absent AP ratification, completeness (or as Nick says “proving a negative”) is something IAEA is not charged with doing.

      Thus, on balance, Nick, Masoud and FSB — and the NAM countries — are generally in the right on this issue. Simple logic dictates this.

    • A;an (History)

      Yet the AP doesn’t create the questions. If the questions are there and the AP isn’t, it doesn’t make the questions disappear. What it does is limit what the IAEA can legally insist upon access to.

      In the “legal” absence of access rights, the IAEA can ask for the access, Iran can refuse, and the IAEA inspectorate merely reports to the Board that it cannot get answers to important questions. Which is what is happening.

      The Board then has the option to report it to the UNSC, who in turn can take their own view on it.

      Additional to this is the UNSC requirement that the IAEA report to them regularly on the implementation of the UNSCRs.

  7. Freddy (History)

    Iranian development of ballistic surface-to-surface missiles, the Shahab and Sajjil series, point directly toward a nuclear program. Such missiles have no military use without WMDs. And Iran is spending millions to develop and test these weapons.

    So we have to conclude either Iran’s leaders are planning nuclear-tipped ballistic missiles or they are mentally confused.

    Iran has no enemies except those caused by its nuclear weapons program. There is no country that has wanted to attack that is waiting around for Iran to get nukes. The Ayatollahs have been in power for over 30 years; plenty of time for anybody to plan an attack. Saddam, of course, did. But Saddam is dead.

    And we should stop treating them as if they were normally interested in self-preservation. Leaders interested in survival don’t go around shouting “Death to America”, or even “Death to Israel”. And they don’t wage proxy war through Hamas and Hezbollah. All this points to fanaticism, or possibly lunacy. Iran has spent far more energy threatening Israel than it has helping the Arab (Sunni) Palestinians.

    If one tries to interpret Iran’s behavior in the most “Rational” light possible, one arrives at the conclusion that Iran is working toward a Caliphate based on an oil monopoly, or at least an oil cartel that really works. This new Iranian Empire would be a direct threat to the interests of the US and Western Europe. If that’s their goal, then the stuff about Israel could just be a stalking horse, or even a diversion.

    Otherwise, if they just want to export oil, a more pro-western policy more like that of the Saudis or even the Shah makes a lot more sense.

  8. FSB (History)

    Anon, thanks — understandably MWG is very very confused about the additional protocol probably because there is much false and misleading rhetoric in the West. But Iran has not ratified the AP.

    Thus IAEA nuclear material accountancy is limited to declared material.

    Why should you believe what I say?

    Because it is what the IAEA says:

    “* Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.”

    SOURCE:

    http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

    • MWG (History)

      As several commenters on this page demonstrate, it is a common misconception that comprehensive safeguards agreements provide only for verification of declared material. If it provided for verification of undeclared activities, why did the IAEA need the Additional Protocol for that purpose? The answer, in a nutshell, is that CSAs focus on declared activities but also provide a basic authority to address undeclared activities, while APs provide important additional authority to correct weaknesses in CSAs. A CSA unambiguously applies to ALL nuclear material in a state and includes certain measures (particularly special inspections) to address undeclared activities.

      This is made clear in a quote from the IAEA Board of Governors decision on strengthened safeguards in March 1995:

      “The Board reiterates that the purpose of comprehensive safeguards agreements, where safeguards are applied to all nuclear material in all nuclear activities within the territory of a State party to such an agreement, under its jurisdiction or carried out under its control anywhere, is to verify that such material is not diverted to nuclear weapons or other nuclear explosive devices. To this end, the safeguards system for implementing comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of States’ declarations, so that there is credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities.”

      At that time the Additional Protocol did not yet exist. Its conceptual foundation had been laid in Program 93+2, a two-year effort, begun in 1993, to strengthen the IAEA safeguards system based on lessons learned particularly in Iraq but also in North Korea and in South Africa. In fact, the term “completeness” first entered the IAEA lexicon in the context of verifying South Africa’s initial declaration.

    • FSB (History)

      The IAEA disagrees with you:

      http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

      QUOTE:

      What verification measures are used?

      Safeguards are based on assessments of the correctness and completeness of a State’s declared nuclear material and nuclear-related activities. Verification measures include on-site inspections, visits, and ongoing monitoring and evaluation. Basically, two sets of measures are carried out in accordance with the type of safeguards agreements in force with a State.

      * One set relates to verifying State reports of declared nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.

      * Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.

  9. Nick (History)

    The problem with agreeing to AP or even AP+ (anytime, anywhere, and unannounced) is the fact that it could be misused to keep Iran’s dossier open for years.

    Again at the core of this problem is that proving a negative requires for Iran to allow inspection of anything that the Agency deems appropriate based on member states’ sources of information.

    We have seen in the past that some of these sources cannot be trusted, therefore, it is a judgment call for IRI to consider regarding acceptance of AP.

    • Alan (History)

      Nick – that could happen with or without the AP. You could even argue it is easier to keep issues alive without the AP, because a lack of inspection rights leaves the IAEA with little choice other than to report their lack of progress to the UNSC.

      There are good and bad third parties, but it should not be forgotten that the entire Iranian program was initially revealed by third parties. Ditto Fordow.

      Interesting for me is the fact that there are to my knowledge no non-compliances pertaining to the Alleged Studies. There are however questions still outstanding that pertain to the original violations of 2003. If Iran were to answer those it could change the ground the issue stands on.

    • FSB (History)

      “Interesting for me is the fact that there are to my knowledge no non-compliances pertaining to the Alleged Studies.”

      That is because the _alleged_ studies — ie. studies that may never have been — even if they had been, did not involve nuclear material.

      The IAEA reports state 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).

      And 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.”

      So no surprise that studies whose very existence is questionable and that did not ever have to do with nuclear material should be no business of the IAEA.

    • Alan (History)

      My point is there are no non-compliances over the Alleged Studies, yet Iran remains in non-compliance.

      So if Iran were to sort out the issues that surround the original non-compliance finding, wouldn’t the IAEA be required to find a specific non-compliance pertaining to the Alleged Studies in order to maintain Iran in a non-compliant status?

      At the very least, it could clarify the legal picture somewhat.

    • FSB (History)

      Yes, I suspect that political pressure on the IAEA, as in the past, could force them to concoct other fictitious “non-compliance” findings.

      But it is not needed since the UNSC has unilaterally abrogated the NPT by forcing zero-enrichment on Iran, whether or not Iran is complaint.

    • Alan (History)

      What were the fictitious non-compliance findings?

    • FSB (History)

      e.g. that IAEA have access to the under-construction heavy water reactor at Arak.

      The Subsidiary Arrangements state that only 180 days prior to the introduction of any nuclear material into a nuclear facility does Iran have the obligation to allow visits to and inspection of the facility.

      In fact, heavy water is not even considered as nuclear material covered by any IAEA Safeguards Agreement.

      Thus, once again, Iran has no legal obligations towards the Agency regarding the under-construction Arak reactor, and the finding of non-compliance stemming from this is totally bogus (aka fictitious).

      But it is an issue that could be solved by arbitration.

    • Alan (History)

      FSB – I don’t believe there has been a non-compliance finding over Arak.

      The 180 day rule is to do with when a facility is declared, and Arak has already been declared.

  10. archjr (History)

    What is missed in this whole conversation is what a difficult position the IAEA is in. How can the Agency fail to ask questions about allegations raised by others? FSB would have them determine whether the allegations were politically motivated, but this is not the IAEA’s job! If, as so many argue, myself included, the Agency is to be a technical verification agency, the inspectors have no choice but to pursue every lead, AP or no. This leads to the confidence that inspections are designed to create. Anything less would be a dereliction of duty. I wonder if those who decry the refreshing bluntness of the DG’s reports would feel the same way if their next-door-neighbor was under suspicion.

    • FSB (History)

      You fail (for perhaps the fifth or sixth time) to understand that there are LEGAL bounds to what the IAEA is allowed to do in a given sovereign state.

      Read, e.g.:

      http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

      As anon said before it would nice to have OJ Simpson put in jail for killing his wife, but the law set him free.

      There are legal processes involved that you ignore.

      That said, even the DNI has said there is no Iranian nuclear weapons program.

    • Alan (History)

      archjr is right.

      The AP doesn’t create the questions. If the questions are there and the AP isn’t, it doesn’t make the questions disappear. What it does is limit what the IAEA can legally insist upon access to.

      In the “legal” absence of access rights, the IAEA can ask for the access, Iran can refuse, and the IAEA inspectorate merely reports to the Board that it cannot get answers to important questions. Which is what is happening.

      The Board then has the option to report it to the UNSC, who in turn can take their own view on it.

      Additional to this is the UNSC requirement that the IAEA report to them regularly on the implementation of the UNSCRs.

    • FSB (History)

      As Brill points out the “report” of Iran to the UNSC does not close the case at the IAEA — the “dossier” or “file” lives at the IAEA and it is up to Iran and IAEA to resolve their differences. Even Spruce and MWG agree with this.

      How do Iran and the IAEA resolve their differences? Well the very clever people at the IAEA thought about this when they wrote the CSA in 1974.

      Article 22 of the CSA is explicit:

      ”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…”

      =====

      That the UNSC — led by the USA, and team-USA itself prodded on by domestic lobbies — is now insisting that Iran give up it’s right to the nuclear fuel cycle is a bald-faced attempt to abrogate the NPT. It is an illegal requirement. All that one can insist upon is that Iran abide by its NPT and CSA requirements.

      The proper course of action is for the IAEA and Iran to resolve the issues before them via arbitration as written into law — this is completely independent of whether the IAEA has sent the UNSC a report on Iran or not.

    • Alan (History)

      But that remains an issue between the UNSC and Iran, not the IAEA and Iran. How UNSC powers are defined is a separate question. It would still be possible for Iran to be considered a threat to peace and stability *without* a non-compliance finding by the IAEA.

      Regarding the differences between the IAEA and Iran, arbitration only happens if one of the sides wants it. If neither do, the UNSC fills the vacuum. That may reduce the motivation for the IAEA to seek alternatives, while increasing the motivation for Iran.

      As things stand, Iran would seem to have the greater need, but they don’t request it. No doubt they are concerned about the neutrality of the panel, but I just don’t see the nature of the dispute as an arbitration issue.

      The IAEA is not Iran’s target.

    • FSB (History)

      What reduces Iran’s motivation to seek arbitration with the IAEA over CSA details is the illegal meta-demand that they give up enrichment anyway.

      i.e. It is a lose-lose situation for Iran. They may request arbitration, and even win arbitration and the illegal US-domestic-lobby-led UNSC sanctions will still be in place until they are forced to give up their right to a fuel cycle, in contravention of the NPT. The UNSC certainly does not have the right to abrogate international treaties.

      This is the problem with the two tracks that open up, as Brill has written about — I suggest you read Brill’s article.

  11. Alan (History)

    I can assure you I’m very familiar with it!

    I must confess I’m losing track of your arguments. You regularly call for arbitration. What exactly do YOU want arbitrated?

    • FSB (History)

      There are several sources of disagreement between the IAEA and Iran over what is allowed for in the CSA.

      All of these disagreements need to arbitrated out, as called for in the CSA:

      e.g. 1. which inspectors to allow into Iran — Iran (correctly) says that some of these are possibly intelligence operatives, IAEA says no — needs arbitration.

      There is legitimate concern in Iran about this: David Kay, who served as the IAEA/UNSCOM (United Nations Special Commission) Chief Nuclear Weapons Inspector in Iraq was accused by Iraqi officials of being a spy and was quite instrumental in building the case for the 2003 invasion of Iraq. He once admitted that some inspections in Iraq went hand in hand with spying. When in 1999 he was asked by PBS’s Frontline what he thought about infiltration of the UNSCOM by intelligence agents, he answered:

      “Well, I think it was a Faustian bargain. The intelligence communities of the world had the only expertise that you could use if you were unmasking a clandestine program. . . . So, from the very beginning, you needed that expertise, but I can say for myself personally—and I’m really only comfortable talking about myself—although a number of us discussed this in the early days—I realize it was always a bargain with the Devil—spies spying. The longer it continued, the more the intelligence agencies would, often for very legitimate reasons, decide that they had to use the access they got through cooperation with UNSCOM to carry out their missions.”

      2. What facilities are open to inspections: should IAEA have access to the heavy water research reactor under construction at Arak? Iran says no, IAEA says yes — needs to be arbitrated.

      3. Are intrusive and unannounced visits to select sites allowed? They are an important part of the Additional Protocol, but it is uncertain what is covered in Iran’s CSA absent AP ratification — needs arbitration.

    • Alan (History)

      Hmmm.

      Unannounced inspections are unquestionably part of the CSA; the issue over the designation of those two inspectors arose over how details of what they reported back to the IAEA ended up in the press – there has been no suggestion the two in question are spies or were the leakers; and Arak is a declared facility and Iran now allows access to it (despite a few past squabbles).

      The other inspections requested of Iran beyond the basics of the CSA are generally referred to as transparency measures, so by definition are voluntary.

      I’m not sure arbitration will achieve much on these issues.

  12. archjr (History)

    @FSB: Although I fail to understand many things, one thing I do understand is the legal limitations on the IAEA’s authority, having worked on these issues for thirty years. My point, which you choose to ignore (for perhaps the fifth or sixth time), is the IAEA has had no choice other than to do what it has done. And the Agency is not the source of this conundrum. Why don’t you spend some time thinking about what IRAN’S legal responsibilities are, instead of writing off the whole kerfuffle as the result of some craven plot by the all-powerful U.S.? I’ve been around long enough to know that most conspiracy theories, like those you propound, are just theories and nothing more. You have no more evidence that Iran is not obfuscating to keep its nuclear weapons than does the Agency. But keep cutting and pasting your previous posts, because I love to argue, and find you a good, if misguided, debater.

    • archjr (History)

      Of course I meant “Iran to keep its nuclear weapons options open.” Proof positive that multitasking (listening to the radio and writing)doesn’t work.

    • FSB (History)

      I am certainly not taking sides when I call for arbitration. (See also Anon’s comments above, and Nick’s).

      I can only urge you to read what has been signed by Iran and IAEA as a solution to disputes instead of falsely saying that the IAEA has “no choice” — of course it does have a choice.

      Article 22 of the CSA is explicit:

      ”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…”

      That said, arbitration has been undercut by the illegal US-led UNSC resolution that insists on zero enrichment in an NPT signatory nation.

    • FSB (History)

      As Brill points out the “report” of Iran to the UNSC does not close the case at the IAEA — the “dossier” or “file” lives at the IAEA and it is up to Iran and IAEA to resolve their differences.

      Even Spruce and MWG agree with this.

    • Anon (History)

      On your correction: ““Iran to keep its nuclear weapons options open.” ”

      You may be aware that there is no law against any nation keeping its nuclear weapons *option* open.

      For the record, I, too, am keeping my nuclear weapons option open, and so is my 3 y.o. niece.

    • Anon (History)

      FYI, Some conspiracy theories are correct — eg. that Intelligence officials e.g. cross-bred at Sandia/LLNL and “OGA” have infiltrated (sometimes with IAEA knowledge) the inspection teams. So Iran is not being paranoid when it says it does not want certain folks to tag along on the inspection teams.

      Almost certainly, there were several spies on the teams in Iraq. And I speak not of just the US — eg. see Operation Rockingham by MI6:

      http://en.wikipedia.org/wiki/Operation_Rockingham

      also, could you kindly clarify on what you think Iran is obfuscating illegally? (It may be “obfuscating” on issues it is allowed to obfuscate on, but what it is not doing that you would like to see it do, or what it is supposed to do?)

  13. archjr (History)

    Wow. What a blowback from you guys! Love it.

    1) If arbitration is the preferred option, and I certainly believe this dispute needs to be resolved by whatever means, why have neither of the parties in the dispute exercised their right under Article 22 of the CSA? Arbitration has nothing to do with the UNSC conspiracy against Iran. Cessation of enrichment should not, and I believe cannot, have anything to do with arbitration, which would be limited by impartial jurists to the violations Iran has committed according to its CSA obligations. Surely there are risks on both sides, but why should said risks prevent an arbitration that seeks to resolve outstanding issues and seek the truth and an accommodation between the parties? Perhaps it is the paranoia in Tehran, and the fragmented views of the Iranian leadership, coupled with the IAEA’s reluctance to take its legal obligations to the extreme?

    2) Of course the Iranian dossier remains with the IAEA. What you few fail to understand is that referral to the UNSC does not obviate the responsibility of the Agency and Iran to resolve the issue within IAEA confines, and within the responsibilities of both parties to comply with legal agreements freely entered into.

    3) I am well aware that nothing in the NPT keeps people keeping their nuclear weapons options open. In fact, it even contemplates “peaceful nuclear devices,” that were still conceived of as a possible engineering solution at the time the treaty was negotiated.

    4) Any idea that the IAEA does not have exceptional intelligence assets devoted to it, particularly by the US, other Westerns, Russia and Iran is naive to the extreme.

    5) Iran’s obfuscation is the very heart of the problem. Nobody really knows what they are up to. So they have been found by legal means, and a majority vote, in non-compliance with the CSA. This fact cannot be explained away. There were rarely, if ever, decisions by the IAEA Board that were not taken by consensus until the Iran dispute. After several years, ranging from Bolton’s initial insistence to go ahead and lose on the first Iran resolution in 2003, the tradition was broken and has consistently since been used to encourage Iran to cooperate with the Agency. Iran has chosen not to do so, and the legal/political/public relations arguments have all gone against them. Separate these arguments out, as you do with questionable interpretations of the CSA, but the fact remains that Iran doesn’t have the votes in the Board, and they are not a bunch of U.S.-controlled idiots. When you have the votes, as we know from yesterday’s U.S. election and the last two centuries, you can pretty much do what you want do. What does Iran need to do? Respect its agreement with the IAEA or put it up to arbitration.

    • FSB (History)

      “Of course the Iranian dossier remains with the IAEA. What you few fail to understand is that referral to the UNSC does not obviate the responsibility of the Agency and Iran to resolve the issue within IAEA confines…”

      We are then, in fact, in agreement.

      The dispute over questionable non-compliance findings need to be addressed as prescribed in the CSA, Art 22.

      Great!

    • Anon (History)

      Not giving in to every single demand of the IAEA cannot be considered obfuscation.

      As FSB pointed out, for instance, there is no obligation for Iran to open up Arak. There is no obligation for Iran to accept inspectors it feels are spies.

      Your commentary is very imprecise. You do not say, specifically, what Iran should do that it is not doing. You are simply saying “We all know Iran is guilty and is obfuscating”. Let us be precise, otherwise let’s save our breath.

  14. Anon (History)

    “Any idea that the IAEA does not have exceptional intelligence assets devoted to it, particularly by the US, other Westerns, Russia and Iran is naive to the extreme.”

    Any expectation that sovereign states must accept spies coming into their nuclear facilities under the guise of IAEA inspectors is vastly more naive.

    You, in fact, legitimize Iran’s objections to certain inspectors.

    • archjr (History)

      Anon: Perhaps I should have been more clear, or blunt. Please read between the lines, and understand that spies from all sides, including Iran’s, have been present for as long as the IAEA has been in existence. This is a subtlety you may have missed. What is amazing is not that there are spies in Vienna (of all places!), but that the inspectorate has managed, in the majority view, to retain the sort of independence required to do its job, and very well, even under the significant legal restraints that keep getting cut-and-pasted here by FSB and others.

      The obfuscation Iran has engaged in is remarkably well-documented. This is why it was determined by the Board of Governors to be not compliant with its safeguards obligations. Iran has tied this knot, and it’s Iran’s responsibility, as the respected member of the international community that it demands to be, to untie the knot. The actions Iran needs to take to resolve the contention within the Agency are quite simple, and could not be more clear. ElBaradei, certainly no U.S. stooge, was immensely frustrated by all sides in the dispute, not least of which by Iran’s resolute objection to do anything to help him do his job,

      FSB: So answer my question: why would Iran not seek arbitration? And another: what should Iran do to resolve the dispute short of arbitration? And please don’t continue tossing out angels on the head of the CSA pin as excuses: every member of the IAEA would like this to be resolved, within the confines of the Agency and its CSA with Iran. The UNSC has nothing to do with this technical dispute, so I hope Iran will do the right thing and request arbitration. Remember that the IAEA has only a dotted-line relationship with the UNSC; in that it is unique among UN agencies, if I am not mistaken. The IAEA Board has only the responsibility to report non-compliance to the UNSC, under its own charter. There is no reference to the IAEA in the UN Charter, so far as I know. And there is no explicit requirement for the Agency to respond to the UN/UNSC. I totally agree with you that the substance of this disagreement remains between Iran and the IAEA. Iran says the same. So you, Iran, and I all agree!

    • Anon (History)

      “Please read between the lines, and understand that spies from all sides, including Iran’s, have been present for as long as the IAEA has been in existence. ”

      But there are no Iranian spies going into e.g. Y-12 at ORNL via the IAEA. That is the point. It is the fact that there are western spies in the IAEA which is the problem. And Iran is right to have concern, OK?

      “The obfuscation Iran has engaged in is remarkably well-documented. This is why it was determined by the Board of Governors to be not compliant with its safeguards obligations.”

      The reasons that the IAEA has likely over-reached has been equally well-documented. eg. access to Arak, inspector choices which may consist of spies, and random inspections which are part of the AP, but which Iran has not ratified.

      “why would Iran not seek arbitration?”

      See FSB’s response below — if is fairly accurate. It would not seek arbitration as the UNSC would insist on zero-enrichment even if Iran won arbitration at the IAEA.

      That, sir, is the problem with opening up two tracks: IAEA and the UNSC — there are two juries Iran is answerable to which is a travesty of justice and common sense.

      In any case, insisting on zero-enrichment is incorrect.

  15. FSB (History)

    “why have neither of the parties in the dispute exercised their right under Article 22 of the CSA?”

    What reduces Iran’s motivation to seek arbitration with the IAEA over CSA details is the illegal meta-demand from the US/UNSC that they give up enrichment anyway.

    i.e. It is a lose-lose situation for Iran. They may request arbitration, and even win arbitration and the illegal US-domestic-lobby-led UNSC sanctions will still be in place until they are forced to give up their right to a fuel cycle, in contravention of the NPT. The UNSC certainly does not have the right to abrogate international treaties.

    Why IAEA does not want arbitration is that it likely knows that it is over-reaching. If 118 countries agree with Iran, and not with the IAEA, the IAEA will probably lose arbitration on some counts.

    118 countries agree with Iran — the real “international community”:

    http://www.atimes.com/atimes/Middle_East/LI17Ak02.html

    “In a strongly-worded statement, representatives of the Non-Aligned Movement (NAM) at the International Atomic Energy Agency (IAEA) have supported Iran’s position on the contentious issue of IAEA inspectors and have also expressed concern that the most recent IAEA report on Iran has “departed from standard verification language”.

    “NAM notes with concern, the possible implications of the continued departure from standard verification language in the summary of the report of the director general [Yukio Amano],” the statement said. The statement was read during the IAEA board of governors meeting on behalf of over 100 NAM member states.”

    This is the problem with the two tracks (IAEA and UNSC) that open up, as Brill has written about — I suggest you read Brill’s article.

    Because it is felt — but it not true — that Iran’s dossier is with the UNSC, it generates resistance to arbitration as far as Iran is concerned.

  16. Anon (History)

    The most astonishing aspect of the predictions about Iran’s “imminent” nuclear bomb is that, when Iran actually declared in the 1970s that it was indeed pursuing nuclear weapons, the West and Israel were absolutely silent, but Iran’s declarations since the mid-1980s that it is not seeking nuclear weapons have been greeted with disbelief and mockery.

    On June 25, 1974, the Christian Science Monitor published “More Fingers on Nuclear Trigger?” The piece quoted Shah Mohammad Reza Pahlavi as saying that Iran would have nuclear weapons “without a doubt and sooner than one would think.” In an article in the 1987 book A European Non-Proliferation Policy: Prospects and Problems, Dr. Akbar Etemad, who was the Head of the Atomic Energy Organization of Iran under the shah, wrote that scientists at Tehran Nuclear Research Center (TNRC) had carried out experiments in which plutonium was extracted from spent fuel generated by the Tehran 5 MW research reactor that the United States supplied to Iran in 1967. Note that the most important use for plutonium is in a nuclear bomb. It is also known that the shah assembled at the TNRC a nuclear-weapon design team.

    Asadollah Alam, a prime minister under the shah in the early 1960s and his longtime confidant and minister of the Imperial Court, wrote in his memoirs (volume 1, p. 107) that in the mid-1970s the shah ordered the establishment of a “University of Military Sciences and Technology.” The mission of the university, which was supposed to be in Esfahan (where some of Iran’s current nuclear facilities are located) and controlled solely by Iran’s armed forces, was to carry out research and development in the area of chemical and nuclear weapons. The shah even authorized stealing the necessary science and technology from other countries, if need be, in order for Iran to fully acquire the know-how to make chemical and nuclear weapons. (For the history of U.S. involvement in Iran’s nuclear program, see here.)

    None of these activities, of course, provoked any public reaction by the U.S., Israel, and their allies, and for a good reason: the shah was their ally (some say puppet), having been put back in power after the CIA overthrew the democratically elected government of Prime Minister Dr. Mohammad Mossadegh in 1953. The U.S. supported the shah’s dictatorship, and Israel’s Mossad played a key role in setting up his dreaded security agency, the SAVAK, and training its agents. The U.S., Israel, and their allies always claim that they do not trust Iran because it hid its nuclear program for 18 years. But did Iran really do that?

    For more see:
    http://original.antiwar.com/sahimi/2010/05/04/irans-ever-imminent-nukes/

  17. archjr (History)

    FSB, Anon: Gentlemen: You may be surprised that there are some areas where we agree. For example, I have never thought the insistence on zero enrichment in Iran to be realistic, much less supported by any NPT obligations on the part of Iran. I also agree that Iran has the right to reject certain inspectors, for example, Chris Charlier, for talking to the press, which is a no-no for an inspector.

    But Iran does itself no good by banning other inspectors because it didn’t like the tone of the last report to the Board. The “spies” at the IAEA are from all interested countries, but it’s not a nest of Westerners, as you suppose. You could imagine any Member under safeguards would want to know as much as they could about what methods the inspectorate was using and what they had found. You could also imagine, without the completely dismissive tone you both adopt, that Members would be concerned about aspects of Iran’s behavior that seem in conflict with their oft-stated peaceful aims. I use the word “seem” advisedly. The fact is that nobody knows what they are up to. Iran’s options, as I said before, are clear: resolve all issues regarding safeguards with the Agency, or request arbitration. But since FSB makes the interesting argument that the arbitration he urges is against the interests of Iran, this leaves only one option.

    Iran was blindsided by the NCRI revelations in 2003, and it took a while for their diplomats and policymakers to get up to speed on safeguards, which of course did not apply at the time to their clandestine activities and which as a consequence they did not fully understand. They’re certainly up to speed now.

    Anon, I thank you for your background information on Iran under the Shah. It’s interesting, but reveals nothing except that there is an arguable strategic reason for Iran to pursue nuclear weapons or the capability to produce them.

    FSB, I have read the Brill article many times and remain unconvinced.

    Maybe you would both better understand where I come from by reading this: http://yaleglobal.yale.edu/content/why-iran-seeks-nuclear-weapons

    Thanks, guys or girls. Not sure we collectively have solved anything regarding this complex issue, but I have enjoyed this latest episode of the debate. Surely more is to follow, and much will be revealed this month as Iran reengages after a year of bluster, when nothing was accomplished to resolve this important matter.

  18. FSB (History)

    Alan, Re. Arak. In the Feb 18th 2010 report — article 25:

    “As previously indicated to the Board [of Governors], in light of Iran’s refusal to permit the Agency access to the Heavy Water Production Plant [near Arak], the Agency has had to rely on satellite imagery to monitor the status of that plant. ”

    Arak is a bone of contention between the IAEA, but I agree with you it ought not be. Technically Iran is right and IAEA has over-reached.

    Could be arbitrated away.

    • MWG (History)

      Iran has provided design information for Arak. The IAEA has the right to verify that design information. If the design information has changed, Iran must provide updates. Not much room for interpretation.

      Perhaps this is why Iran has allowed access, according to more recent IAEA reporting (GOV/2010/46, September 6, 2010):

      “On 2 August 2010, the Agency carried out a DIV [Design Information Verification] at the IR-40 reactor at Arak.”

    • FSB (History)

      I am glad to see Iran is cooperating with the IAEA. Look forward to reading all about it in NY Times, Wash Post and WSJ. Not holding my breath though.

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