Joshua PollackFinding Iran’s Next Centrifuge Site

Last Thursday, Alireza Jafarzadeh of NCRI fame held one of his trademark press conferences to announce the discovery of a hidden Iranian enrichment facility, near Qazvin, to the assembled news media. The AEOI — the Iranian nuclear authority — has denied the claim. The reaction from Washington, too, has been cool.

An unnamed U.S. official told Reuters:

“This facility has been under construction for years, and we’ve known about it for years. While there’s still some ambiguity about its ultimate purpose — not unusual for something that’s still taking shape — there’s no reason at this point to think it’s nuclear,” the official said.

“The Iranians put military stuff in tunnels, too. People should be cautious about reaching conclusions here.”

For those who have been following the subject closely enough, this judgment won’t come as news. A report last month in the New York Times stated that “after detailed surveys, and interviews with defectors, officials say they have no evidence a second such facility [after the Qom enrichment plant] is under construction.”

Define “Construction”

But here’s the striking part: the AEOI also declared last month that it has, in fact, selected sites for several new enrichment plants, and will soon start construction at one of them. This announcement echoed a similar statement from November 2009.

If the pattern is anything like Qom, construction at the site actually will have been underway for years already, but the AEOI will have considered it “general-purpose” until “allocating” it for use as a centrifuge facility, in keeping with Iran’s unilateral reinterpretation of when it is obliged to declare new facilities to the IAEA. According to a report in September 2009, the U.S. intelligence community had been watching “more than a dozen suspect locations” for years, as of the 2007 NIE. The Qazvin site, which Jafarzadeh dates back to 2005, is presumably on that list.

Thus, as the U.S. official puts it, “there’s no reason at this point to think it’s nuclear.”

Catch Me If You Can

AEOI Chairman Salehi’s announcements of future centrifuge facilities at unspecified locations serve several purposes. Most obviously, they signal defiance to the Iranian public and put pressure on the West to accept the permanence of the enrichment program. But they also set up a game of 16-Cascade Monte. By creating multiple empty tunnel sites, the Iranians have set out to complicate the intelligence picture as much as possible. And if, as in the case of Qom, the Iranians are caught quietly outfitting one of these sites as a centrifuge plant, then they’ll just point back to Salehi’s press statements and claim again that they don’t need to declare the site to the IAEA until about 180 days before introducing nuclear material. (Abraham Lincoln once said something about this.) Thus exposed, the facility will lose its value to the Iranian nuclear program, but perhaps without causing as much harm to the program’s fortunes as it otherwise would have.

(An aside: This is by no means the first time that Jafarzadeh has unveiled an alleged enrichment site. As far back as 2005, the NCRI claimed to have spotted an underground laser enrichment facility. They publicized what they considered another laser facility in 2006; there may have been other occasions as well.  Since President Mahmoud Ahmadinejad announced a new laser enrichment program earlier this year, perhaps Jafarzadeh & Co. were onto something on one or both of these occasions. Contrary to a popular misconception, though, the NCRI did not identify Natanz as an enrichment site.)

Recent and related: Some Straight Talk About Iran. Also see ISIS’s proposal about how to respond to the centrifuge shell game.

Update. Two things. I overlooked Paul Kerr’s earlier take on the NCRI and Natanz. And I completely forgot about NCRI’s role in publicizing the “Kalaye Electric” centrifuge site in February 2003. I’m not certain if it was the first public reference anywhere, but the IAEA cited “information in open sources” in a meeting with the Iranians just a day or two after this release.

Comments

  1. FSB (History)

    You say: “And if, as in the case of Qom, the Iranians are caught quietly outfitting one of these sites as a centrifuge plant, then they’ll just point back to Salehi’s press statements and claim again that they don’t need to declare the site to the IAEA until about 180 days before introducing nuclear material.”

    Indeed, and they would be right.

    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.

    Anyway, as the U.S. official you quote puts it, “there’s no reason at this point to think it’s nuclear.”

    Good enough.

    • joshua (History)

      I believe you are conflating Iran’s signature and provisional observance of the Additional Protocol with its acceptance of Modified Code 3.1, which as part of the Subsidiary Arrangements does not require legislative ratification. We’ve been over all this before.

      If you think I’m mistaken about that, kindly document your claim that “Iran agreed to voluntarily implement the modified Code 3.1 until the Majles [the Iranian parliament] ratifies the modification to the Agreement.” If you can’t document it, of course, you probably shouldn’t be repeating it.

    • FSB (History)

      Documentation:

      http://www.iaea.org/Publications/Documents/Board/2007/gov2007-22.pdf

      quote: ”
      12. On 29 March 2007, Iran informed the Agency that it had “suspended” the implementation of the
      modified Code 3.1, which had been “accepted in 2003, but not yet ratified by the parliament”, and that
      it would “revert” to the implementation of the 1976 version of Code 3.1, which only requires the
      submission of design information for new facilities “normally not later than 180 days before the
      facility is scheduled to receive nuclear material for the first time.” In a letter dated 30 March 2007, the
      Agency requested Iran to reconsider its decision.”

      of course, “parliament” == majles in Farsi.

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

      In any case, for any violations/issues outside of Art 19 (of the CSA), the proper procedure is to kick of Art 22 arbitration, as you must well know. There is, and has never been, any legal basis for referring Iran to the UNSC. (See Andreas’ post from a few days ago for the debate and the outcome).

      The background:
      In October 2003, the government of President Mohammad Khatami signed the Sa’dabad Agreement (named so after Iran’s presidential palace) with Britain, France, and Germany (the EU3), that committed Iran to signing the Additional Protocol and carrying out its provision on a volunteer basis, until the Iranian parliament ratified the Agreement. In the Paris Agreement of November 2004, Iran reaffirmed its intentions.

      In return, the EU3 promised Iran that it would present a comprehensive proposal that would address Iran’s aspirations for having access to advanced nuclear technology, as well as the EU3 concerns regarding the nature of Iran’s nuclear program.

      However, the proposal that the EU3 presented Iran in August 2005 was long in its demands, but essentially nil on addressing Iran’s aspirations. Among other things, the EU3 demanded that Iran abandon completely its uranium enrichment program, thus demanding elimination of major “facts on the ground,” namely, Iran’s uranium enrichment and related facilities and all the R&D work, in return for some vague promises in the distant future. The proposal did not even guarantee that Iran would not be attacked militarily. It only stated that Iran will not be attacked by nuclear weapons. Well, Iraq was also not attacked by nuclear weapons! No sane nation would agree to such a proposal. Thus, after some negotiations, Iran suspended its voluntary implementation of the Additional Protocol in February 2006. Although the four UNSC resolutions order Iran to suspend its nuclear program, the fact is, aside from the highly dubious nature of the resolution, the UNSC does not have any legal rights to order Iran to implement the provisions of the Additional Protocol, because the Iranian parliament has not ratified the Agreement, and it is Iran’s sovereign right to refuse implementing an international agreement that it has not yet accepted.

      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.

      The United States is trapped deeply in Afghanistan and Iraq. Any decent resolution of those conflict entails political accommodation with Iran (and Russia). The Obama administration should learn to take yes as an answer.

    • Alan (History)

      FSB – the Iran “file” was referred to the UNSC in February 2006, over 13 months before the dispute over modified 3.1 arose.

    • FSB (History)

      Alan, be that as it may, since there is an argument that lies outside of Art 19 violation of the CSA, then the proper course of action is to kick off Art 22 arbitration, not referral to the UNSC.

  2. FSB (History)

    Further, many legal experts agree with my view, and not yours and Acton’s:

    e.g.:

    http://jurist.org/forumy/2010/03/qom-enrichment-facility-was-iran.php

    It’s a long-ish article, but here is meat:

    “However, all of this analysis by the IAEA Legal Advisor’s office, and by commentators like James Acton, assumes that the Subsidiary Arrangements agreement is in fact a treaty, or a legally binding agreement in and of itself, and is thus on par with the Safeguards Agreement. But this is not clearly the case.

    Article 39 of Iran’s Safeguards Agreement with the IAEA provides that “The Government of Iran and the Agency shall make Subsidiary Arrangements which shall specify in detail, to the extent necessary to permit the Agency to fulfill its responsibilities under this Agreement in an effective and efficient manner, how the procedures laid down in this Agreement are to be applied.” From this mention alone, it is not at all clear that the subsidiary arrangements to be subsequently concluded between Iran and the IAEA in order to implement the Safeguards Agreement are conceived of by the parties as constituting a treaty.

    While terminology is not per se dispositive of legal character, the term “arrangements” is not one of the terms commonly employed by international lawyers to denote a legally binding treaty. It is more commonly used to refer to non-binding international accords, such as the Basel I & II standards issued by the Basel Committee on Banking Supervision, or the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe.

    The dispositive test for determining whether an international agreement is a legally binding treaty is found in Articles 11-17 of the 1969 Vienna Convention on the Law of Treaties. Essentially this test boils down to the intent of the parties. If the parties to an agreement intend that agreement to constitute a legally binding treaty, and if that intention is manifest through the forms and procedures for concluding the agreement, then the agreement is legally binding. However, if that intent cannot be found manifest in the forms of concluding the agreement, the agreement is not legally binding, and is simply an accord or understanding between two parties.

    Looking at the provisions of Iran’s Safeguards Agreement, it is manifestly clear that the Safeguards Agreement itself was intended to be a treaty. Its entry into force as a legally binding instrument is expressly contemplated by the parties in Article 25 of the agreement. As Article 25 states:

    This Agreement shall enter into force on the date upon which the Agency receives from the Government of Iran written notification that Iran’s statutory and constitutional requirements for entry into force have been met.

    Furthermore, amendments to the Safeguards Agreement are provided in Article 24 only to enter into force upon conclusion of the same procedure, i.e. upon notification that the amendment has been accepted by the domestic lawmaking authorities in Iran. This formal process involving the acceptance of the agreement by domestic authorities is consistent with a manifestation of intent by Iran and the IAEA that the Safeguards Agreement itself is to be considered a legally binding instrument. Indeed, according to Article 77 of Iran’s Constitution, “International treaties, protocols, contracts, and agreements must be approved by the by the Islamic Consultative Assembly.” Mindful of this limitation on their domestic authority, Iranian negotiators would have been sure to require this domestic approval as a prerequisite for the entry into force of any legally binding treaty or amendment thereto.

    However, with regard to Subsidiary Arrangements, the Safeguards Agreement states in Article 39 that “The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of the Agreement.” While Article 40 of the Safeguards Agreement mentions the entry into force of the Subsidiary Arrangements, it gives no specifications on the process by which such entry into force is to be accomplished. This absence of specification regarding the process for entry into force of the Subsidiary Arrangements, in light of the detailed specification of the process for entry into force of the Safeguards Agreement and amendments to it, including the constitutionally required consent of the Iranian domestic lawmaking institutions, is probative textual evidence that Iran did not intend for the Subsidiary Arrangements to be legally binding per se. Rather, the Subsidiary Arrangements would appear to be more accurately characterized as agreed guidelines or understandings for implementation of the Safeguards Agreement by the parties, of a non-binding legal character.

    Again, not all international agreements are treaties….”

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

    Lastly, again, if there are issues outside of Art 19, then Art 22 arbitration sets in — not referral to the UNSC.

    • joshua (History)

      Perhaps I should have been clearer. I’m already familiar with the Iranian stance. However, I believe the Iranian representation to the IAEA about its suspension of Modified Code 3.1 is a justification made up on the fly. What would be helpful, if you want to change my mind, is some evidence that the Iranian side — however wrongly — actually believed at the time that it could agree to modify its Subsidiary Arrangements and then later unilaterally “suspend” that agreement, and furthermore communicated that belief in some visible way at the time. After all, anyone can come up with an excuse on the spot, but it takes forethought to plant it in advance.

      All of this was entirely clear about the Additional Protocol at the time, mind you. But there, the requirement for ratification is not especially controversial.

      If I understand him correctly, Dan Joyner — who represents Dan Joyner, and not “many” people, although I haven’t taken a poll — is saying something subtly but significantly different than the Iranians. He’s saying that the Subsidiary Arrangements aren’t actually part of the Comprehensive Safeguards Agreement, however much they may seem to be a feature of it, and aren’t legally binding in general. That’s a far broader argument than whether an agreement to change some part of them can be undone at will by a single party if it refrains from ratification of the change. By his reasoning, the excuse about ratification makes no particular sense. There is no need to ratify a non-binding guideline.

      Needless to say, I don’t accept either Iran’s or Joyner’s interpretation. And neither should anyone else.

    • Spruce (History)

      At least my reading of Joyner’s text is that he is saying much less than portrayed by FSB or Joshua above. His text comes down to the fact that whether the Subsidiary Arrangement is legally binding comes to the form and content of the letters between IAEA and Iran about the SA and the full context of the SA – documents that are not publicly available. Namely, then important paragraph is:

      “It is, unfortunately, not possible for international observers generally to analyze either the Subsidiary Arrangements agreement between Iran and the IAEA, or the 1976, 2003, and 2007 letters exchanged between Iran and the IAEA relative to the Subsidiary Arrangements, as these documents have not been made public by the parties. This is unfortunate because these documents would provide important additional evidence regarding the intent of the parties.”

      This, in turn, would mean that without access to these documents, the statements that say that the SA is legally binding or that is it not binding are pure speculation. Either of those are possible, and the interpretation is determined, in effect, on what is in those non-publicly-available documents. And the only two parties who we do know to have access to them have conflicting view on status on the SA. Thus, it is impossible for outside observer to have real factual basis to conclude about whether it is binding.

      After the above quoted part, Joyner pretty much just speculates about the intent on the basis of other documents. And while there’s some basis on the Joyner’s following arguments, the ratification statement by Iran suggest the opposite (as pointed out by Joyner, that ratification is important difference between binding and non-binding documents). Furthermore, the situation is even more muddled by the fact that Iran never ratified the document. Even if a ratified SA would’ve been a binding document, it is not clear whether non-ratified SA would be. Once again, this comes down to the specific texts and forms referred in the quote above.

      As for Joshua’s comment that “What would be helpful, if you want to change my mind, is some evidence that the Iranian side — however wrongly — actually believed at the time that it could agree to modify its Subsidiary Arrangements and then later unilaterally “suspend” that agreement, and furthermore communicated that belief in some visible way at the time”, that evidence either is or isn’t in those letters between Iran and IAEA – that’s also codified in the Vienna Convention.

      All in all, I don’t belive that there is factual basis to say that the Iran was binded by the Subsidiary Arrangement or that it wasn’t binded by it. Unless you somehow have access to those letters between IAEA and Iran.

    • FSB (History)

      No, in fact, his view represents many peoples’ — although some of those people may not live in the West. Anyway, that is a minor issue.

      Here is the basic problem: it appears there is not crystalline legal precision, and it is hard to disprove that the Majles did not vote on the ratification of code 3.1 modification.

      Since there is an argument that lies outside of Art 19 violation of the CSA, then the proper course of action is to kick off Art 22 arbitration.

      That is a proper reading of the situation and the legal text of the CSA of 1974.

    • anon (History)

      There is a deeper flaw in the logic of the IAEA lawyers:

      either Code 3.1 modified is part of a treaty — and needs to be ratified (which it hasn’t), or it is less formal agreement that doesn’t.

      The IAEA cannot have it both ways: legal water-tightness of a treaty and no ratification needed by Iran.

      A state is only bound by what it agrees to. Iran said nothing and then in 2007 said it would not be bound by the section. So Iran did not break its *agreement*.

      In doubt Art 22 applies.

    • rwendland (History)

      Dan Joyner argument seems to be backed up by the fact that the IAEA registers Safeguards Agreements and Additional Protocol Agreementa as Treaties in the United Nations Treaty Series ( http://treaties.un.org/ ), but not Subsidiary Arrangements either as amendments or full treaties (AFAICS).

    • MWG (History)

      Josh is right.

      Though it dutifully cited Iran’s justification for not implementing modified Code 3.1, the IAEA never accepted Iran’s claim that the subsidiary arrangements to its safeguards agreement required ratification. It is quite common to have legally binding implementing arrangements recorded in instruments that are not ratified.

      Many details of safeguards implementation, including all the details of routine reports and inspections, are recorded in facility attachments that are part of the subsidiary arrangements. These are core elements of in safeguards implementation, and the safeguards agreement would have little legal weight if they were not binding. Similar measures under the CWC are recorded in “facility agreements.” Does anyone think CWC facility agreements are not legally binding?

      It is difficult for outsiders to comment knowledgeably because subsidiary arrangements are not made public. They are “safeguards confidential.” So arguments such as those above are largely uninformed by actual knowledge of their content. I’m a bit surprised that people are willing to make legal analyses with such flimsy foundations.

      The most telling point is that the safeguards agreement itself says that subsidiary arrangements “enter into force.” This is the language of a legally binding agreement. Non-binding agreements typically “come into effect,” or some other formulation that does not indicate the force of law.

      There is a more subtle question that gets lost in the pointless debate over whether subsidiary arrangements are legally binding: whether violations of Subsidiary Arrangements constitute “non-compliance” with the underlying safeguards agreement. Could Iran be cited for violating Article 39 of its safeguards agreement (unilaterally modifying its subsidiary arrangements) or Article 42 on provision of design information? I think the answer is yes, but the topic may merit discussion.

  3. ataune (History)

    Josh,

    You fail to mention one essential reason for Iran’s announcement of building more centrifuge plants: As surprising as this may appear, they want to keep open the engagement and negotiation options. The basic Iranian assumption is that at the end of the road Iran and the US need each other; they are ultimately bound to engage each other. But for that to happen, and in a win-win situation, they must sit around the negotiating table in an equal footing. Therefore, Iran has to re-enforce its hand every time US raises the ante. Failing to do that actually diminishes the chances for a much needed negotiated solution.

    I am tempted to say that If one is inclined to look at the whole Iran-US “nuclear issue” from a confrontational perspective his/her reasoning will assuredly be affected by looking at the half empty glass.

  4. Andy (History)

    Joshua,

    Regardless of who is technically correct on these interpretations, the problem, for the US and West, at least, is a lack of policy options. More sanctions? Another round of UNSC resolutions?

    Iran surely understands the response to this kind of lawyering out of its obligations is going to be minimal while the benefits to Iran are plain to see. Not sure how the US can change that dynamic.

  5. ataune (History)

    Josh,

    Didn’t want to interfere in your legalistic discussion on different interpretations of modified code 3.1 implementation, but, as one of your farsi speaking readers, I wanted to inform you that there are ample news litterature evidence from 2003 to 2007, most of them out of the National Security Council Secretariat of Iran headed by Hassan Rowhani at the time, showing that bothg parties (Iran and the Troika) consider all the arrangements made at the time as confidence building measures, voluntary and temporary, obviousely until ratified by Iranian Majlis. These arrangments were all stamped by the IAEA seal of approval.

    • joshua (History)

      That would be very interesting to see. Please share!

  6. Allen Thomson (History)

    An unnamed U.S. official told Reuters:

    “This facility has been under construction for years, and we’ve known about it for years. While there’s still some ambiguity about its ultimate purpose — not unusual for something that’s still taking shape — there’s no reason at this point to think it’s nuclear,” the official said.

    “The Iranians put military stuff in tunnels, too. People should be cautious about reaching conclusions here.”

    While the point about being cautious is very well taken, the overall tone of this official strikes me as being somewhat complacent. Getting definitive evidence of the purpose of facilities like this is a very uncertain undertaking that probably fails more often than it succeeds. In fact, now that I think of it, the above statement pretty much applied to the Box on the Euphrates up to April 2007. And the information that allowed the purpose of the BOE to be identified came via a more-than-miraculous intelligence success on the part of the Israelis.

    So while I agree that we shouldn’t immediately conclude that the Qazvin facility is really nuclear-related, neither should we adopt the position that, if we don’t know what it’s for, we shouldn’t be concerned about it. What to do other than hope for another intelligence miracle? Inspections seem to offer the best hope, and those are unlikely to be permitted. What else might be tried?

  7. Harry Lime (History)

    As interesting as this might be, it appears that the arguments over Code 3.1 have not moved on significantly since last year (see e.g. http://pollack.armscontrolwonk.com/archive/2477/qom-in-the-basement or http://guests.armscontrolwonk.com/archive/2476/parallel-fuel-cycles).

    Key to this discussion would still seem to be the wording of the 26 February 2003 letter from Iran to the IAEA referred to in http://www.pmiran.at/sts2007/GOV%20INF%20Subsidiary%20arrangement.pdf although if this is as significant as it might appear then one wonders why it has not been released by either ‘side’.

    • Alan (History)

      Surely the ball would be in Iran’s court here? I would imagine the IAEA are not permitted to release correspondence from Iran without Iran’s permission, while Iran could release the letter whenever they wanted.

      It is striking how all references to the Additional Protocol and transparency measures were all carefully couched in language that emphasises their voluntary nature/subjection to ratification, while the modified 3.1, agreed to 9 months before the voluntary AP was agreed to, was never qualified in that way.

  8. A Reader (History)

    FSB, can you create your own blog for the endless discussion of this issue, instead of co-opting this one?

    • FSB (History)

      Will consider it.

  9. Sir Mixxalot (History)

    “I don’t accept either Iran’s or Joyner’s interpretation. And neither should anyone else.”

    hmmm, somewhat tyrannical, no? Is there a legal rebuttal to Joyner’s argument that you (or Acton) would like to propose?

    Joyner’s argument seems utterly convincing to me.

  10. Anonymous (History)

    Joshua,

    The shell game certainly fits the model. And because there is no visibility to the centrifuge manufacturing, it is not possible to prove that the devices have not been introduced into the hidden shells.

    Iran’s behavior fits the model of a sophisticated player that is attempting to disguise its true intentions for a period of time. The legal arguments of Iran in this model are only delaying tactics in achieving its end goal, whatever that is.

    • FSB (History)

      Anonymous,
      you are right to be suspicious. As you should be w/r/t Brazil

      However, there is no legal right under the 1974 CSA to refer Iran to the UNSC.

      At best, there is a legally confusing argument between the IAEA and Iran, one that needs Art 22 CSA arbitration. (See discussion under Andreas’ post from a couple of days ago).

      Your suspicions do not authorize any action against Iran.

      Lastly, there is no problem with Iran having centrifuges — these are needed for a domestic fuel-cycle for nuclear energy and are not forbidden under NPT rules.

    • joshua (History)

      The basis for referring Iran to the Security Council is provided by the Statute of the IAEA, which lays out the terms and conditions of IAEA membership. Art. XII sets out the principles of Agency safeguards. Paragraph C concerns noncompliance. It states (in part):

      “The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which it finds to have occurred. The Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations.”

      http://www.iaea.org/About/statute_text.html#A1.12

      As they say, you could look it up.

    • mwg (History)

      Iran’s safeguards agreement provides a separate basis for the IAEA to “report” (not “refer”) Iran to the Security Council: if the IAEA is unable to verify that nuclear material has not been diverted.

      In the case of Iran, the IAEA report to the Security Council was based both on Article XII.C and Article III.B.4 of the IAEA Statute. Here’s the text of the latter:

      B. In carrying out its functions, the Agency shall: . . .

      4. Submit reports on its activities annually to the General Assembly of the United Nations and, when appropriate, to the Security Council: if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security, and may also take the measures open to it under this Statute, including those provided in paragraph C of Article XII;

  11. joshua (History)

    Readers and commenters:

    First of all, please pardon the long delay in moderation. I’ve been busy elsewhere.

    Second, please pardon my grumpy tone in the comments above. We’ve been over all this stuff before, and I still don’t find that it passes the giggle test. Both the Iranian position of 2007 and Dan Joyner’s view are, in their different ways, novel and not supported by a plain reading of Articles 39 and 40 the CSA, which you can find at:

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

    The precise point of the Subsidiary Arrangements is the need for technical details of implementation that can be altered by agreement without resort to the machinery of ratification. As Art. 39 says, “The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of this Agreement.”

    That is in fact why the SAs exist.

    This is not unusual. In fact, it’s a pretty common approach to complex agreements in the arms control and nonproliferation world. (I can’t speak to other areas.) The Bilateral Consultative Commission plays a similar role in the New START Treaty, for example: it can modify the understandings on various fine points of implementation without resort to the process of treaty amendment, with its burdens of ratification. Anything else would be grossly impractical.

    As for whether the SAs are not binding, or whether we can’t know if they’re binding without reading them, I would merely point out that they are created and governed by Arts. 39 and 40 of a legally binding agreement, the CSA. If the CSA itself is binding, then so is the part of the CSA that defines the SAs and states very clearly how the SAs are to be changed: “by agreement.”

    Based on both past practice and the plain meaning of the words, this strikes me as the clear intent of these provisions, and I don’t gather what’s so mysterious here. As MWG points out above, the SAs enter into force, per Art. 40 — so by definition, they have force. To that we could add the the practical point that the CSA cannot fulfill its purpose if one side can modify them at will, rather than by agreement.

    In each case, I’m struck by the novelty of the argument and the absurdity of its implications when carried to a logical conclusion.

    We have broken no new ground here, I’m afraid. So let’s move on.

    • Spruce (History)

      Have to return for a bit, because I think there’s a fundamental misunderstanding here on binding and non-binding documents. The Bilateral Consultative Commission and the documents it creates is actually a great example of this. The START Treaty itself is a binding documents. However, the BCC and its understandings are not binding (unless specifically ratified by both parties). BCC, in fact, cannot make legally binding decisions since (according to US Constitution), only Congress has that authority and it cannot delegate it. However, to get around that and similar problems in other countries, parties on treaties often voluntarily follow these kind of non-binding documents or commissions that state the common understanding on the implementation of the treaty itself to show that they intend to follow the treaty in good faith.

      Should a disagreement on these lower-level “understanding” documents arise, they do not have the same kind of binding nature as the treaties itself, even if they are specified in the treaty (which is made clear in the limitation part of Vienna Convention). A country could refuse to follow, say, the decisions of BCC and still not be in violation of its binding obligations. These understanding documents, in effect, only apply as long as all parties want to follow them (primarily to follow good faith).

      Now, the question becomes if the SA should be considered a treaty or a common understanding between parties. Joyner’s point is that most likely the SA is a noon-binding understanding between two parties. Note that Joyner also dissects the Articles 39 and 40 of the CSA, and plainly states that, as per the Vienna Convention, the language in those two articles does not, in of itself, make the SA a binding documents. In fact, the differences between entry into force article for the CSA (Article 25) and entry into force article for the SA (Article 40) point to specific non-intent of being binding by Iranian party. More specifically, Article 40 is missing the specific process of entry into force – something very important. This, however, isn’t definitive, as the missing criteria might be found in the letters exchanged between Iran and IAEA. But the key is that there is insufficient display of intent, as defined in the Vienna Convention, in CSA itself to consider SA a legally binding document – the “come into effect” sentence is not enough of itself.

      There is one additional interesting point, though. As quoted in the IAEA’s report in Iran, the Security Council Resolution 1929 calls for Iran to follow the modified Code 3.1 that it signed. As per the Charter of UN, these resolutions are binding to member states. Thus, while Iran might have not been in violation of its safeguards obligations prior to to that resolution, it certainly is after that.

    • joshua (History)

      Hmm. We are getting past my area of expertise — I can only provide a common-sense reading.

      I tend to look at it this way. Art. 39 of the CSA says the SAs can be changed by agreement. Declaring and implementing a unilateral change therefore contravenes Art. 39 of the CSA.

      The rest seems more or less academic.

  12. rwendland (History)

    Joshua, re passing the “giggle-test”, please consider Article 102 of the United Nations Charter which states utterly clearly that non UN-registered international agreements can not be “invoked” before the UN Security Council (or any “organ of the United Nations”).

    In an over-simplistic direct reading this says that the unregistered and unpublished Subsidiary Arrangements have little standing for the UNSC. So I think the legal interpretation of non-treaty subsidiary documents like the Subsidiary Arrangements, which are really guidelines/rules for implementation of the main treaty agreement, is considerably more complex than the approach you suggest. I think Dan Joyner usefully took this discussion forward toward a better understanding.

    As UN Charter Article 102 is so succinct, here it is for consideration with respect to the non UN-registered Subsidiary Arrangements:

    http://www.un.org/en/documents/charter/chapter16.shtml

    Article 102

    1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.

    2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations.

    • joshua (History)

      I am reluctant to carry on this debate. Let me finish, for my part, by observing that the CSA is the “treaty or international agreement” in question. The SAs are featured in it, in the two Articles mentioned above. They don’t have a separate and independent existence; that’s what “subsidiary” conveys. Certainly, they are provided for in the CSA and enable its implementation. I think this much, at least, is beyond serious dispute.

  13. Allen Thomson (History)

    Legal exegesis and hermeneutics aside, aren’t the important decisions concerning whatever Iran is or isn’t doing going to be made by a fairly small group of political and military people in Tel Aviv? I tend to believe them when they say לעולם לא שוב

    • FSB (History)

      I agree — the question is if what they do is legal or sensible or even in their own interest, or not.

      e.g. In the case of Osirak, what they did was unnecessary, illegal, and counter-productive: the Osirak reactor was not optimal for bomb making, as attested to by Harvard’s Physics professor Richard Wilson:

      http://www.theatlantic.com/magazine/archive/2005/03/letters-to-the-editor/3727/

      I quote:

      “James Fallows neglects two points that considerably affect his thesis.

      First, the Osirak reactor that was bombed by Israel in June of 1981 was explicitly designed by the French engineer Yves Girard to be unsuitable for making bombs. That was obvious to me on my 1982 visit. Many physicists and nuclear engineers have agreed. Much evidence suggests that the bombing did not delay the Iraqi nuclear-weapons program but started it. For example, the principal Iraqi scientist, Jafar Dhia Jafar, was asked by Saddam Hussein to work on the bomb only in July of 1981.

      Second, Fallows fails to recognize that Iran is now in compliance with the Nuclear Non-Proliferation Treaty, after having failed to provide details of the uranium-enrichment program when it should have. The protocol Iran has declined to sign is an additional protocol that is not a part of the treaty itself. More important, the principal proponent of the treaty, the United States, has been in violation of the treaty almost continuously since its inception. The United States is continuing to develop new types of nuclear weapons and failing to disarm to the extent most scientists believe is desirable. The United States has refused to sign the test-ban treaty. The United States is also violating Title VI by failing to help non-weapons states use nuclear energy for peaceful purposes, such as electricity production.

      James Fallows and the U.S. State Department may not understand these matters, but any non-nuclear state that feels threatened by a neighbor or by the United States certainly does. Rhetoric about failing to follow the NPT is rightly perceived as insulting. If we wish to dissuade Iran from making nuclear weapons, then we must somehow find a peaceful way to persuade the Iranians that not making such weapons is in their interest and not merely in ours. We must recognize their sovereign rights and their legitimate pride. The threat of bombing is not enough, and is probably counterproductive.

      Richard Wilson
      Mallinckrodt Research Professor of Physics
      Harvard University
      Cambridge, Mass.”

      It appears the Iraqi effort at making nukes may have gotten serious only after the bombing.

  14. FSB (History)

    The non-aligned movement supports Iran — so muc for the “international community”

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

    • mwg (History)

      The Non-Aligned Movement (NAM) supports Iran in the same sense that the U.S. Congress supported the bridge to nowhere (For the uninitiated, this was a very expensive project to build a bridge to a nearly uninhabited island in Alaska, which became an issue in the 2008 Presidential election). The NAM functions in large part to provide a megaphone by supporting the pet notions of its individual members, just as appropriations bills in the U.S. Congress function in large part to fund the pet projects of members of Congress. It’s not all they do, but it’s a large part of it. As with such appropriation earmarks, NAM members do not readily challenge one another’s priorities. And the NAM takes an unusual view of consensus, often rejecting objections voiced by only a few members.

      Iran has skillfully manipulated the NAM with arguments that Iran’s rights are being violated and the rights of all developing countries are at risk. The NAM chapter in Vienna was established in 2003, just as the Iran nuclear issue was heating up, for the principal purpose of defending Iran.

  15. Lysander (History)

    Forgive me for butting in, since I’m neither lawyer nor physicist. I’m unfamiliar with the arcane details of Iran’s agreement with the EU-3 and IAEA back in 2003. Be that as it may, it seems obtuse to insist that Iran comply with that agreement to the letter (assuming that it hasn’t) while at the same time, powerful countries already armed with nuclear weapons threaten to attack Iran. Under those circumstances, does anyone really believe that Iran is being wicked and devious for not informing the IAEA every time somebody puts a shovel in the dirt?

    • joshua (History)

      Well, everyone thinks they’re threatened, and everyone thinks they’re a victim. And in truth, everyone probably can make a case for those beliefs without having to go back more than a few decades or so. So we can let near-universal fear and mistrust run their course, resulting in arms races, crises, and even wars. Or we can try to regulate the course of international relations somehow. Thus treaties and verification — or, in NPT terms, safeguards.

      Safeguards play an important role by allowing non-nuclear-weapons countries to reassure each other that they are not acquiring threatening capabilities. Running roughshod over safeguards obligations basically resets a country’s relations with its neighbors and with other powers to the “ground state.” It’s supposed to generate a crisis. So it does no good to disregard safeguards and then to complain that the U.S. fails to extend negative security assurances to countries that don’t comply with their nonproliferation undertakings.

      In Iran’s case, the situation is complicated by its longtime estrangement from the West, which precedes its secret nuclear program (dealings with AQ Khan, etc.), by at least a few years, and precedes the formal finding of safeguards noncompliance by the IAEA Board of Governors (in 2005) by decades. Still, finding a way out of the current mess won’t be found by digging in more deeply, proclaiming the entire system of international security (UN Security Council resolutions, etc.) to be illegitimate, picking fights with both safeguards inspectors and the IAEA Secretariat, and generally doing everything possible to convince concerned countries that Iran is committed to a path of cheating that eventually leads to nuclear weapons possession.

  16. Lysander (History)

    With all due respect, Joshua, but the purpose of the NPT and the wishes of the US/EU/Israel are not the same. If the US/EU/Israel position were that Iran should implement the additional protocol and afterward we can all be friends, you would have a point. But their position is that Iran must cease all enrichment of uranium forever (or until such time as the US deems that Iran may do so, which is the same as forever) They are prepared to sanction and possibly attack Iran if it doesn’t. And quite possibly even if it does. They have said so openly and repeatedly. Under those circumstance your statement “Well, everyone thinks they’re threatened, and everyone thinks they’re a victim” doesn’t really do justice to this instance. Do these nations threaten to attack Brazil? Do you think Brazil would adhere to the letter of the NPT if they did?

    Let me ask you plainly. Do you feel Iran’s alleged violation of their allegedly binding agreement with the EU-3 justifies military action or the threat of it? Which is the greater threat to world peace? Iran’s nuclear program, which is under inspection? Or the claim that the US/Israel are naturally entitled to attack Iran at a time of their choosing?

    Thank you for posting my earlier message. Since I’m not a scientist, I can’t contribute make solid contributions to this blog and will try not to consume any more of your time with this debate. The last word is yours.

    • joshua (History)

      Iran’s legally binding agreement is with the IAEA, not with the EU-3. It’s the Comprehensive Safeguards Agreement signed on June 19, 1973, which entered into force on May 15, 1974. You can read it here:

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

      The IAEA Board of Governors found Iran in breach of this agreement on September 25, 2005:

      http://www.iaea.org/Publications/Documents/Board/2005/gov2005-77.pdf

      Whether I think Iran’s violations of this agreement justify military action is somewhat abstract and immaterial. (In theory, that’s up to the Security Council.) I suppose it would depend on the circumstances, which is admittedly not a very satisfying answer. Certainly, I think it’s avoidable. More to the point, Iran’s actions may lead to an armed conflict, regardless of whether I or anyone else would consider it justified. It would be cold comfort to the Iranian people if their leaders were to drag them into a bitter and adverse experience that was, by some blogger’s lights, unwarranted.

      That possibility is not — as of this writing — imminent. The UNSC resolutions on Iran have been carefully written to exclude the threat of force, and I do not believe that any state, on or off the Security Council, is poised to act on its own. My concerns have more to do with the longer term.

      Brazil provides a fine counterexample. Both Brazil and Argentina were outside of the NPT until the early 1990s; both had far-reaching nuclear research programs; both feared that the other side’s program was military in nature. Very probably this would have led sooner or later to both states acquiring nuclear weapons out of fear of each other, and then to a further downward spiral in relations; cf. India and Pakistan. But a window of opportunity opened in the mid-1980s when both countries found themselves with a civilian government after years of military rule. They both joined the NPT and created a bilateral nuclear safeguards organization, ABACC, in 1991. See http://www.abacc.org/engl/index.asp.

      Observation of safeguards provides each side with confidence about the peaceful nature of the other side’s activities. At some level, bilateral safeguards are comparable to the U.S.-Russian strategic arms reduction process. Multilateral safeguards, for a variety of reasons, are more common, but play the same sort of role.

  17. sir_mixxalot (History)

    Enjoying your censored conversation, Josh?

    It only reveals you are running scared from the truth.

    • joshua (History)

      I believe the perspective that Iran can do no wrong has been amply aired in this comment thread. It strikes me as tendentious, and regardless of whether that’s so, it’s unedifying to read the same assertions over and over again. So I do not feel the need to approve every comment. Remember, the presumption is that comments are not posted. Think of it as being a little bit like a letters column.

      Some comment boards are open to everything, and tend to become unreadable. This one is meant, rather, to advance the conversation. That does take some effort. Not all choices are perfect or correct in hindsight, but my goal is to try to keep the comment threads relevant and interesting to the ACW community, as best as I’m able to judge how. If you feel you’re being censored as a result, well, it’s a big internet.

    • FSB (History)

      You say that “the perspective that Iran can do no wrong has been amply aired in this comment thread”

      As I think this applies to me I would like to clarify: I do think the Iranians are acting suspiciously, and I don’t think that they cannot do any wrong.

      The issue is what is the right course of action given what they have signed with the IAEA.

      That is where some of us differ from the rest.

      e.g. I do not think the legally correct course of action is to insist Iran give up its right to make nuclear fuel. I also do not think referral to the UNSC was consistent with the 1974 CSA.

      We differ in what we think is the right response to what we suspect Iran may or may not be doing.

      To paint me — and others — as defending Iran is simply wrong.

    • joshua (History)

      Very well. Then let me be equally clear about my objections to your perspective. I’m not familiar with any insistence by any of Iran’s interlocutors that it “give up its right to make nuclear fuel.” This is what I would consider a tendentious reading. It distorts the record.

      As for whether referral to the UNSC is consistent with the CSA — again, the provision for referral is contained in the Statute of the IAEA, not the text of the CSA itself. And it’s up to the Board of Governors to interpret and implement that provision, not you or me. The Iranians may not consider it legitimate, but so what? Presumably, no one who doesn’t ask to be referred or agree to be referred would say anything different.

      I think we have beaten this set of issues to death now.

    • FSB (History)

      Josh, there are any number of statements from SecState’s office saying Iran must stop enriching. There have been newspaper reports of this as well — here is one:

      http://www.nytimes.com/2009/07/27/us/politics/27clinton.html

      quotes:
      Secretary of State Hillary Rodham Clinton warned Iran’s leaders on Sunday that if they were seeking nuclear weapons, “your pursuit is futile,” and ruled out explicitly the possibility that the Obama administration would allow Iran to produce its own nuclear fuel, even under intense international inspection…….

      “You have a right to pursue the peaceful use of civil, nuclear power,” she said, as if addressing Iran directly. “You do not have a right to obtain a nuclear weapon. You do not have the right to have the full enrichment and reprocessing cycle under your control……..”

      As for the referral issue: I simply think there are multiple legally conflicting and confusing statutes — my reading of the overall picture is that there is grounds for arbitration, not referral to the UNSC (see Art 22 and Art 19 of the CSA) since there has been no diversion of nuclear materials to nuclear weapons or nuclear explosive devices. I can agree to disagree with you on that.

      In any case, my intention is not to defend Iran but to read the law as fairly as possible.

    • joshua (History)

      The 2003-05 talks with the EU-3 took place under a voluntary suspension of Iran’s enrichment activities. When that suspension ended, so did the talks. The EU-3 — later joined by the U.S. — insisted on a return to suspension as a condition for a return to talks. As the UNSC resolutions entered the picture, this was couched as a “freeze for freeze” offer: if Iran would suspend, then the Security Council would cease imposing additional sanctions. After Barack Obama was sworn into office, the U.S. convinced its partners in the P5+1 / E3+3 to drop the suspension condition for talks. However, a demand for suspension of work on enrichment, reprocessing, and heavy-water programs is inscribed in the various resolutions.

      The words are chosen carefully. Nowhere in the resolutions is a permanent cessation called for. It is very clear that the U.S. and like-minded countries do not wish to see enrichment or reprocessing on Iranian soil, but their immediate goal is to enter negotiations. In negotiations — which, again, are no longer tied to the condition of suspension — lots of things might happen. Notably, in the one serious negotiation so far, which led to the abortive agreement on exchanging LEU for reactor fuel, the issue of suspension does not seem to have arisen.

      The rhetoric of rights is, in my own judgment at least, a semantic blind alley. It is possible to conclude, based on a reading of Art. IV of NPT, that a given country does not have a specific right to control a particular technology. (The text of Art. IV para 1 is ambiguous and inartfully phrased.) But if that is so, one can hardly ask anybody to give up a nonexistent right.

      The substance of the matter is that the UNSC resolutions do not make reference to Art. IV rights, giving up rights, or to permanent cessation of fuel-cycle activities. That’s where the matter stands.

      Regarding your view of the grounds for a noncompliance finding, there is a debate on when noncompliance should or should not be found. This debate mainly has to do with whether South Korea or Egypt should have been found in noncompliance. I don’t see any grounds for requiring the added burden of proving that violations of safeguards actually led to the production of weapons.

  18. FSB (History)

    You say: ” Nowhere in the resolutions is a permanent cessation called for.”

    How do you explain, then:

    http://gsn.nti.org/gsn/nw_20100921_4879.php

    “The six states — China, Germany, France, Russia, the United Kingdom and the United States — have for years offered Iran political and economic incentives in exchange for halting uranium enrichment, an effort that can produce both nuclear bomb material and fuel for civilian applications.”

    You say:

    ” I don’t see any grounds for requiring the added burden of proving that violations of safeguards actually led to the production of weapons.”

    No, but there is a requirement that it be shown that they went into nuclear weapons or nuclear explosive devices — the CSA:

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

    “…for the exclusive purpose of verifying that such material is not diverted to nuclear
    weapons or other nuclear explosive devices.”

    “The Agency shall apply safeguards in such a manner as to enable it to verify, in
    ascertaining that there has been no diversion of nuclear material from peaceful uses to
    nuclear weapons or other nuclear explosive devices”

    • joshua (History)

      On the first point, I’m not responsible for how journalists write things, but I don’t think GSN’s description is especially off-base. It’s just not utterly precise and exacting. Reporting on this subject rarely is, and it’s too much to expect anything different. If you want to know what the authoritative language is, go read the official documents.

      On the second point, if the IAEA had ever interpreted its safeguards duties in the narrow manner you do, they’d have to be awfully, awfully intrusive, much moreso than they are. The safeguards approach has always dealt with Material Unaccounted For, not Material Accounted For But In A Bomb Now, Oops.

      Now, enough. You’ve filled up this thread with noise, distraction, and false claims. I’ve been patient up to this point, but am no longer in a mood to indulge.

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