James ActonNAF Talk on Iran

I just got back from the States on Friday, and now I’m off to Brussels for a trip to NATO HQ with some students.

Elaine Grossman at Global Security Newswire reported on my talk at the New America Foundation — You can view it here let me warn Hass and FSB that they aren’t going to like it very much.

A[n excruciatingly] British expert is calling on the international community to more effectively discourage the proliferation of nuclear weapons by punishing any and all breaches of agreed safeguards, without first trying to determine intent.

Instead of focusing on those infractions by non-nuclear weapons states that are indisputable — such as engaging in a covert uranium enrichment program and denying access to inspectors — global leaders tend to get mired in futile debates over a violator’s motives, says James Acton of King’s College in London.

An interesting issue that came up along these lines: if you don’t take intent into account, how do you assess the severity of violations? I believe, for example, that running a clandestine centrifuge facility is more serious than diverting a couple of spent fuel pellets for bench-scale reprocessing experiments. It is hard, however, to build up a framework to take these issues into account consistently.

Food for thought…

Comments

  1. Andy (History)

    Geez you guys travel a lot. Any tips for a slug like me on getting such a sweet gig?

  2. SQ

    “It is hard, however, to build up a framework to take these issues into account consistently.”

    How about the principle of proportionality? Or just common sense?

    The point is academic. The time isn’t nigh that such decisions will be made by reference to some sort of rulebook — especially as there is no referee to consult it. They will continue to be hashed out among the foreign ministries of the world.

  3. hass

    Note that due to US pressure, Iran was illegally preventend from acquiring the technology that it was entitled to have, back in 1983 when it was restarting its enrichment program with the technical assistance of the IAEA. Does the same British expert suggest that NPT signatories that violate their own part of the NPT bargain be similarly held to account then?

  4. hass

    As for the “intent” issue, this is nonsensical strawman. The IAEA does not determine intent, doesn’t need to, and never has. The “international community” that some presume to speak on behalf of also does not determine intent and never has (in fact if you only “intend” to make nukes, you don’t really even need to breach safeguards. Right now Japan could secretly “intend” to make nukes at some time in the indefinite future, and there’s no way for anyone to prove otherwise. Argentina or Lichtenstein could “intend” to do the same too. Note that Iran is usually accused of seeking the “capacity” to make nukes, not “intent” to make them.)

    The only reason “intent” is now an issue and specifically with respect to Iran, is simply to make up for the absence of evidence of the much-touted Iranian nuclear weapons program in the PR campaign to demonize the country. And speaking of “violating international law”, the IAEA Statute has quite specifically set a threshhold of “diversion of nuclear material for non-peaceful uses” along with an accounting system to determine that — so there’s no real need for magically determining “intent”.

  5. hass

    And finally — I don’t know why you assume I won’t like the article. The report link is broken but I mostly agree with Grossman’s version of it. Intent should not be an issue, as I have said. South Korea, Egypt and other breachers of safeguards should indeed be treated alike. Iran should have been allowed to engage in technical cooperation with the IAEA (and thus would not have had to engage in clandestine activity due to US pressure.) The Security Council (to the extent that it is not acting ultra vires) should indeed address its responsibilities fairly.

    Why should anyone disagree with this pablum?

    The only quibble I have is that international law already determines the consequences of safeguards breaches. The IAEA has remedying measures too. In the case of Iran in particular, they’ve been applied and no NPT violation has been found (no diversion of nuclear material for non-peaceful uses, not blocking of inspectors engaged in inspections and accounting procedures specified by IAEA Statutes.)

  6. Andreas Persbo

    Hass. You may want to elaborate on the differing compliance rules found in INFCIRC/153 and in the IAEA statute.

    A debate on that came up in the BoG in 2005, if memory serves me right, and was never resolved satisfactorily.

    Any thoughts?

  7. AWR (History)

    Hass,

    You write, “Iran should have been allowed to engage in technical cooperation with the IAEA (and thus would not have had to engage in clandestine activity due to US pressure.)” To my knowledge, IAEA technical assistance programs have never extended to centrifuge enrichment, laser isotope separation, uranium metal fabrication, etc.

    Besides, in the highly unlikely event the Agency were to provide assistance to Iran in these areas, safeguards would follow and design information would have to be provided before the fact. To suggest that US pressure was the reason Iran kept all these secrets for 19 years is a gargantuan stretch of the imagination.

  8. Hass (History)

    Andreas – Not sure what you’re referring to but Article XII.c of the Statute was invoked to refer Iran to the UNSC. In summary, it sets “diversion” of nuclear material for nonpeaceful uses as the threshold and standard for noncompliance. In the case of Iran, no such diversion has happened.

    Michael Spies of the Lawyer’s Committee on Nuclear Policy has written:

    “The conclusion that no diversion has occurred certifies that the state in question is in compliance with its undertaking, under its safeguards agreement and Article III of the NPT, to not divert material to non-peaceful purposes. In the case of Iran, the IAEA was able to conclude in its November 2004 report that that all declared nuclear materials had been accounted for and therefore none had been diverted to military purposes. The IAEA reached this same conclusion in September 2005.”

    Elahe Mohtasham testified to the Foreign Select Committee of the British Parliament:

    “The enforcement of Article III of the NPT obligations is carried out through the IAEA’s monitoring and verification that is designed to ensure that declared nuclear facilities are operated according to safeguard agreement with Iran, which Iran signed with the IAEA in 1974. In the past four years that Iran’s nuclear programme has been under close investigation by the IAEA, the Director General of the IAEA, as early as November 2003 reported to the IAEA Board of Governors that “to date, there is no evidence that the previously undeclared nuclear material and activities … were related to a nuclear weapons programme.” … Although Iran has been found in non-compliance with some aspects of its IAEA safeguards obligations, Iran has not been in breach of its obligations under the terms of the NPT.”

    Article 19 of INFCIRC153 also specifies “diversion” as the threshold — and again, there simply has been no such diversion in Iran.

    Iran breached safeguards by essentially “failing to report” otherwise legal activity which Iran attributes to repeated US efforts to thwart overt contracts and cooperation with the IAEA technical assistance program. However, breaches of safeguards are not the same as violations of the NPT, and since the breaches have been remedied, with no evidence of a diversion of nuclear material for non-peaceful uses, there was no basis for referring Iran’s file to the UNSC, and Iran continues to be in compliance with the NPT.

    Iran’s referral to the UNSC was ultra vires. The UNSC resolutions demanding that Iran drop enrichment are also ultra vires and therefore nonbinding — and no, Article 103 of the UN Charter does not even apply.

  9. xxx

    Let me say from the start, my comment is NOT meant to support hass. I share Acton’s desire to strengthen the safeguards system. However, Acton’s formulation (at least as represented by Grossman) fundamentally misunderstands how the IAEA does its job. There is no single measure of a “breach”. When the IAEA reports that they have been unable to reach a conclusion, they are saying that based on one or more statistically significant deviations from the declaration, IN ADDITION TO, other factors, the Agency can no longer confirm that diversion has NOT taken place. Acton’s formula, while attractive, is impractical and misunderstands the nature of nuclear measurement.

  10. mlt (History)

    The link of the presentation can be found here:
    http://www.youtube.com/watch?v=zN5aA-i4nXU

    And Mr. Acton, could you please stay close to the mike next time :-)))

  11. Andy (History)

    Hass,

    This has been explained to you many times before (to no avail) but we’ll try the exercise one more time:

    Here’s what the Nov. 2004 board report (gov204/83) actually said in para 112:

    All the declared nuclear material in Iran has been accounted for, and therefore such material is not diverted to prohibited activities. The Agency is, however, not yet in a position to conclude that there are no undeclared nuclear materials or activities in Iran.

    The important word here is “declared.” All the DG is saying here is that nothing in Iran’s most recent declaration has been diverted to military use since it came under agency safeguard – that is all. It does not say or imply anything beyond that to include diversion that might have “happened” or “occurred” when the material wasn’t under safeguard, much less the absence of further undeclared material and/or activities – which is what your statement above and Mr. Spies falsely suggest. And let’s be honest here. Prior to 2003, “all the declared nuclear material in Iran has been accounted for” was equally true and despite the truthfulness of that assessment, Iran was still in breach of its obligations because its declarations were, to put it charitably, incomplete. It is a legitimate question, IMO, to wonder if this latest declaration is truly full and complete given two decades of deception and false declarations. This is why the DG and IAEA board believes full implementation of the AP is necessary. And yes, Hass, we know Iran did that for two years, but as has been demonstrated before here, the agency firmly believes that two years was not enough and that it was made clear to Iran from the beginning what would be required from it to satisfy the agency – requirements Iran said it would wholly comply with.

    The issue, therefore, is not current status of Iran’s “declared” material. In fact, declared material is rarely the issue.

    Furthermore, article 19 in both INFCIRC 214, consistent with INFCIRC 153, says:

    If the Board, upon examination of relevant information reported to it by the Director General, finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices, it may make the reports provided for in paragraph C of Article XII of the Statute of the Agency (hereinafter referred to as “the Statute”) and may also take, where applicable, the other measures provided for in that paragraph.

    Notice the absence of the word “declared.” The agency’s mandate extends to all material whether declared or not and furthermore it specifically says the agency may report when it is not able to verify non-diversion – which is exactly the case today with Iran. Hass would have us believe that the agency is limited to verifying a declaration which is simply not the case as article 19 makes clear.

    The legal problem is that the agency doesn’t have the legal authority to “verify that there has been no diversion” without the AP, but the AP is a voluntary protocol.

    The question of whether the agency’s inability to verify non-diversion can be elevated past the board to the UNSC seems a bit more ambiguous and arguments can probably be made either way – even though the IAEA board and UNSC obviously believe that it can.

    As for Mr. Acton’s proposal I don’t think it’s practicable because a big problem remains the ability discover breaches in the first place and, as we see with Iran, legal limitations on ascertaining the scope of breaches when they are discovered. In light of that, I’d much rather make the AP a mandatory protocol for all nations. It would not only provide a greater ability to discover illicit activities (and, as a result, deter engaging in such activities) but it would also be fair because it would apply to every nation and would therefore undercut arguments that the “nuclear haves” are discriminating against the “have nots.” Finally, it would provide greater assurance that dual-use technologies are used for wholly peaceful purposes.

  12. hass (History)

    AWR- Prepare yourself for a “gargantuan stretch of the imagination”:

    The IAEA was planning on assisting Iran’s program in developing an indigeneous nuclear fuel-making capacity but the US put the kaybosh on that technical assistance program in 1983, and then also proceeded to pressure other countries to drop their nuclear contracts with Iran too.

    “US in 1983 stopped IAEA from helping Iran make UF6” Mark Hibbs, Nuclear Fuel August 4, 2003. Four years after the Islamic revolution, and two years after Iran’s new leaders dusted off the nuclear program of the deposed Reza Shah Pahlevi, IAEA officials were keen to assist Iran in reactivating a research program to learn how to process U3O8 into UO2 pellets and then set up a pilot plant to produce UF6, according to IAEA documents obtained by NuclearFuel.
    Sources said that when in 1983 the recommendations of an IAEA mission to Iran were passed on to the IAEA’s technical cooperation program, the U.S. government then ‘‘directly intervened’‘ to discourage the IAEA from assisting Iran in production of UO2 and UF6. ‘‘We stopped that in its tracks,’‘ said a former U.S. official.
    Entec was founded by the Atomic Energy Organization of Iran (AEOI) in 1974. Its work was halted by the 1979 Islamic revolution, but in 1981 the new government concluded that the country’s nuclear development should continue. In 1983, the AEOI then invited the IAEA to survey Entec and another installation, the Tehran Nuclear Research Center.
    Herman Vera Ruiz, an IAEA official tasked by Deputy Director General Maurizio Zifferero to conduct a mission to Iran, visited Entec in October 1983. In November, he recommended to Zifferero and to Director General Hans Blix that the IAEA provide assistance to move Iran’s nuclear research program forward.
    Ruiz’s report to Blix and Zifferero 10 years before make clear that Entec had spelled out to the IAEA that it was established ‘‘with the main objective of acting as the center for the transfer and development of nuclear technology, as well as contribute to the formation of local expertise and manpower needed to sustain a very ambitious program in the field of nuclear power reactor technology and fuel cycle technology.’‘ The IAEA also was informed about Entec’s largest department, for materials testing, which was responsible for fuel fabrication. ‘‘Currently experimental work is being carried out on UO2 pellet
    fabrication (sintering and grinding), cladding welding, and quality control,’‘ the memo stated. Entec also set up a chemistry department. ‘‘Its main duty is to perform experiments for the conversion of (U3O8) to nuclear grade UO2. As a future step, it is intended to increase the capacity to a pilot plant scale to process about 30 kilograms of uranium equivalent per day,’‘ Entec officials told the IAEA.

    The department had two subdivisions for uranium chemistry and analytical chemistry with a total of 20 scientists.

    The memo included a list of proposed ‘‘expert services’‘ which the IAEA would perform in eight fields relevant to work going on at all of Entec’s departments. For fuel cycle programs, these were to be carried out in the French language, since most of Entec’s relevant personnel were previously trained by French experts. The proposed items included assistance and training in UO2 pellet and fuel element production and quality control procedures, ‘‘advice on the chemical engineering and design aspects of a pilot plant for fuel conversion,’‘ and ‘‘advice on flow-sheet diagrams for uranium purification and conversion.’‘ Separately, after the IAEA mission, the agency proposed setting up 10 fellowships of between three and six months each, covering areas including chemical aspects of reactor fuel fabrication, chemical engineering and design aspects of pilot plants for uranium conversion, corrosion of nuclear materials, LWR fuel fabrication, and pilot plant development for production of nuclear grade UO2.

    Indeed, while Iran may have attempted (poorly) to keep some aspects of its nuclear fuel program a secret in order to avoid US pressures, as a whole Iran’s plans to develop the nuclear fuel cycle were never a secret, as they predated the 1979 Islamic revolution, and advances were openly announced on public radio as early as 1979 and throughout the early 80’s when, for example, the discovery of uranium in Iran was announced during an interview with the head of Iran’s Atomic energy agency. The IAEA was well also aware that Iran was seeking the fuel cycle, and they even visited Iran’s uranium mines in 1992. Later, when the Chinese pulled out of constructing a uranium conversion plant for Iran under US pressure, the Iranians told the IAEA that they would build it themselves and would continue the program.

    Despite the hype, Iran’s nuclear program actually wasn’t much of a ‘secret’.

    (PS: how do you do multiple paragraph blockquotes using textile?)

  13. hass (History)

    Umm – Andy, as it has been explained to YOU many times before, the absence of “undeclared activities” are only verified in states that are members of the Additional Procotol, and in fact that last IAEA report states that it has no reason to believe there are undeclared activities in Iran either. And Iran not only implemented the AP for 2 years (which turned up nothing) but has also offered to ratify the AP once its nuclear rights are recognized — however there is no legal obligation on Iran to do so.

    In fact, this whole discussion of the AP that you keep raising is irrelevant. There is no reason to believe that the AP would resolve the situation, since the US accusation that IRan “intends” to obtain the “capacity” to build nukes cannot be proven or disproven by the AP either since it is a prediction about a prospective course of action and no IAEA inspector can see into the indefinite future. The US says Iran isn’t even supposed to have the “knowledge” of nuclear technology or have any enrichment at all — whether the AP is in place or not.

    Iran’s safeguard breaches, such as they were, did not meet the legal threshold of a reportable violation of the NPT as defined under the relevant provision of Article XII.c of the IAEA Statute.

    Anyway you’re free to claim that Michael Spies of the Lawyer’s Committee of Nuclear Policy is asserting “falsehoods”, but he’s not the only one, and if you had bothered to read his explanation of the legalities, you’d see that he was addressing your precise claim. Specifically:

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

  14. Ataune (History)

    Andy –

    Iran parliment never ratified the AP. This is the crucial point in the whole story. The Iranian State was abiding by the AP based on a political agreement reached with the European Troika sometimes in 2003. Thus, the Nov. 2004 board report (gov204/83) para 112 you are refering to. The board was relying on the AP and not only the Safeguard to state what it stated. In 2005, when the European Package was re-packaged by Iran and refused by the European, the talks ended and the 2003 political agreement was void.

    In essence the board could not have been allowed to base its finding on treaty obligation never ratified by Iranian parliment. This act was eminently political and non-legal not to say illegal.

  15. Arnold Evans (History)

    The legal problem is that the agency doesn’t have the legal authority to “verify that there has been no diversion” without the AP, but the AP is a voluntary protocol.

    That is a problem isn’t it. So either every single country that has not ratified an additional protocol can and should be referred to the UNSC or none should. The list of countries for which the DG is unable to verify and the list of countries that have not implemented the additional protocols is the same list.

    Before the invention of the additional protocols, by your argument, every NPT country was subject to be referred at any time. Just silly.

    In light of that, I’d much rather make the AP a mandatory protocol for all nations.

    What about the NPT that was negotiated to specifically exclude non-voluntary extension?

    Instead of the nuclear haves discriminating against the have-nots (note: no scare-quotes), the nuclear haves should negotiate with the have-nots for an improved NPT that, along with imposing stronger requirements on the non-nuclear powers, also imposes stronger requirements on the nuclear powers. For example, whatever happened to the good faith negotiations for full disarmament? When applying the AP to every country, let’s get some deadlines for the negotiation and the disarmament.

    This is an example of the US proliferation community being more interested in tactical advantages for the US and its friends than for the goal of disarmament.

  16. SQ

    Andy:

    The main problem with making the AP mandatory for one and all is the principle of consent that underpins both NPT and IAEA membership. What authority could mandate it?

    Which is not to say that expanded AP adherence would not be highly desirable! In some cases it would be symbolic, because of a lack of nuclear activities (Andorra? Vatican City? Brunei?) and it seems gratuitous for NWS. But the principle isn’t bad.

  17. Mark

    Andy said Hass would have us believe that the agency is limited to verifying a declaration

    Actually Andy, “we” think Hass would be correct in saying that. Under INFCIRC153, countries are required to declared their nuclear programs, and the role of the IAEA is limited to verifying that their declarations are “consistent with” (or “not inconsistent with”) the findings of the IAEA. Article 19 of INFCIRC does not require countries to also prove that their declarations are complete — that is the job of the Additional Protocol, and Iran is simply not bound by the AP (along with Egypt, Canada, etc.) even though it has voluntarily implemented it.
    Your dismissal of the piece by the LCNP as “false” is groundless as is your rather unique legal theory.

    Andy said All the DG is saying here is that nothing in Iran’s most recent declaration has been diverted to military use since it came under agency safeguard – that is all

    No, this is incorrect. In its Nov 2003 report, the IAEA has specifically stated that not only was there no diversion of declared nuclear material in Iran, but also that it found “no evidence” that Iran’s previously undeclared activities had any relation to a weapons program. It the Feb 2008 report, the IAEA also said that it has no “concrete evidence” of any current undeclared activities in Iran either.

    In short, you should really read the LCNP link provided by Hass. It is not “false” – it is accurate. The bottom line is that there’s proof of a (declared or undeclared) nuclear weapons program in Iran. That’s why, as Hass writes, the allegations of Iran’s future “intentions” and “capacities” has now been raised by the Bush administration instead. This is a deliberate ploy by the Bush administration to evade the fact that the IAEA has found WMD-related didley squat in Iran – it is intended to make people disregard the IAEA’s findings on Iran’s past and current conduct and instead concentrate minds fear of Iran’s future potential to make nukes (which conveniently for Bush, the IAEA can never disprove.)

  18. Andy (History)

    Well, I see I’ve opened a beaten the beehive with this one and that some of what I tried to say is misunderstood.

    Many have pointed out to me here the place the AP has in all this which I’m aware of and, in fact, have pointed out, including my comment above. As an example Hass said:

    Andy, as it has been explained to YOU many times before, the absence of “undeclared activities” are only verified in states that are members of the Additional Procotol

    Yes, I understand that as I have pointed out many times. However, there is a distinction between the legal authority over all material declared or not and the legal authority to actually verify a declaration or the presence/absence of undeclared activities. The latter is only possible with the AP. However, Article 19 makes clear the IAEA has legal purview over all material whether it is declared or not and that it “may” report if it is not able to verify non-diversion. This right to report is not dependent on the AP since it is part of the CSA itself.

    So what is the threshold for when a report is made absent the AP? Fortunately, the DG provides a clue:

    As a result, cases are surfacing, and will likely continue to surface, in which the Agency finds that States have not in the past fulfilled all of their reporting obligations. Most of these cases are failures that can normally be dealt with in the Agency´s annual Safeguards Implementation Report. Should there be cases, however, where our experts assess that proliferation concerns exist or concealment is involved, such cases will be brought to the attention of the Board.

    This power to report is an incredibly important and completely intentional one, one that Arnold Evans suggest is “just silly.” But how silly is it really? The language of article 19 is pretty clear, no? It’s clear referrals to the board can be made based on article 19 and it should be obvious why this small reporting authority is needed. What’s less clear (IMO), as I stated in my original comment, is whether further referral UNSC is explicitly authorized. As I said above, I think arguments can be made either way, but it seems rather obvious the board and the UNSC believe it is since referral is what they’ve actually done.

    As I’ve said previously, the disconnect between the IAEA’s legal responsibility over all material declared or undeclared provided by article 19 and the IAEA’s legal capability to actually verify is, imo, a serious problem that’s been exposed (most recently) with the situation with Iran. It is a kind of catch-22. The IAEA says Iran needs to do certain things for it to assure Iran is in compliance with its CSA, but those additional measures are “voluntary” and so Iran cannot be forced into implementing them. So we are at an impasse.

    And that’s why I would like to see the AP as a mandatory requirement because it would eliminate that disconnect. Some here have apparently (and wrongly) assumed I would like such a measure shoved down the world’s throat. Quite the contrary – there should (and indeed must) be negotiation as this would be a big change, but I think it would be a worthy goal.

    I’ve come to this conclusion based more on Iraq and its EMIS program, actually, than Iran. Iraq’s quite advanced and completely hidden EMIS program demonstrates the problems on relying on member state’s intelligence services to detect undeclared activities and report them to the IAEA. The AP would be much better IMO, and it would benefit countries like Iran as well since they wouldn’t be in the unenviable and unfair position of having to defend themselves from “laptops of death.”

    And that is one reason, among many, that I don’t understand why Iran would not wish to fully ratify and implement the AP. Doing so, along with the other measures the DG has requested, would cut the legs out of every argument this US administration has against Iran and would clearly and definitively settle the issue once and for all. Even AP ratification while still refusing to suspend would be beneficial to Iran IMO. I’d be interested in opinions as to why such a course of action would be against Iran’s interest.

  19. hass (History)

    Andy – What’s silly is how you’re reading the AP into INFCIRC153. Your supposition about “undeclared activities” in Iran is not shared by the IAEA. Iran has met its obligations under the applicable safeguards, and ElBaradei himself said that the full scope of Iran’s nuclear program has been determined (save for the “alleged studies.)

    The issue of how/whether safeguards can be/should be strengthened is a separate discussion not relevant to the point at issue here on whether countries should be “punished” based on assumptions about their “intentions” etc.

    FYI considering that Rice has held up Egypt as a nuclear model when Egypt flatly refuses to even sign the AP even though it has been caught violating safeguards too, then I for one can understand if the Iranians see this talk about the AP as well as the whole proliferation debate surrounding Iran as simply pretextual. The US has a perfectly good option of resolving any genuine proliferation concerns peaceably, but instead has at each step simply upped its demands — in the latest version, the US demands that Iran confess to making nukes regardless of what the IAEA says. Clearly, they’re not interested in actually resolving this issue.

  20. Arnold Evans (History)

    First, the idea that safeguards breaches have always required an AP declaration to be resolved is silly. As is the idea that the IAEA has a legal obligation or responsibility to make an AP declaration for nations that have not ratified the AP. The NPT existed for a long time before the AP was conceived.

    Going from the NPT’s “material” requirements to the AP “material and activities” requirements is and must be a voluntary step that states have every right not to take. The idea that states have reporting requirements beyond those negotiated in the NPT and the safeguards agreements themselves violently contradicts the words and spirit of the NPT.

    When you read the NPT to say it has required AP declarations all along, you’re being silly.

    The AP would be much better IMO, and it would benefit countries like Iran as well since they wouldn’t be in the unenviable and unfair position of having to defend themselves from “laptops of death.”

    Really? Iran probably disagrees with you about the impact of its signing an AP on the US’ arguments.

    Rather than cut the legs from the arguments, Iran likely believes US arguments have never had legs and have always been motivated by the US position, openly expressed, that Israel must be the only country in the region that is “nuclear capable”.

    With that being the case, giving expanded access would make it more easy for the US and other hostile countries to fabricate “laptops of death” and the like.

    Until the US climbs down from its position that no rival of Israel can enrich uranium among other technologies that must be denied, expanding Iranian cooperation with the IAEA in any form will only serve to provide more pretexts for doing what the US says it will do anyway, which is work to prevent legal technologies from reaching Iran.

    If there was an objective arbiter, Iran might benefit from increased openness, but Iran likely believes if there had been an objective arbiter, it would have been treated as South Korea was and this situation would never have even gotten as far as it has.

    Since there is no objective arbiter giving information beyond what is legally required is of no value.

    The limits of required information are not arbitrary, they were negotiated to balance between a state’s need to protect its own secrets and prevent endless rummaging through their militaries and the need to assure other states that there is currently no weapon in their possession. Iran has no motive to go beyond the negotiated limits while US policy remains that it, as a rival of Israel, must not have technologies already guaranteed by the treaty.

  21. Hass (History)

    Incidentally Andy, the language you cite from ElBaradei which you claim provides a “clue” about when safeguards breaches are reportable to the UNSC is taken out of context and irrelevant since he’s quite explicitly talking about the AP, and anyway he hasn’t said anything about reporting safeguard breaches to the UNSC either, nor is this a matter of opinion or speculation.

    There is no need to resort to searching for “clues” about when safeguard breaches are reportable to the UNSC since the law quite specifically sets diversion of nuclear material for nonpeaceful uses as the standard. The relevant accounting and inspections required of Iran have been done, no diversion has been found. Iran is in compliance, and there is no basis for referral. Period.

  22. Andy (History)

    Oh, and Hass, I don’t think this statement is as definitive as you suggest:

    Indeed, while Iran may have attempted (poorly) to keep some aspects of its nuclear fuel program a secret in order to avoid US pressures, as a whole Iran’s plans to develop the nuclear fuel cycle were never a secret, as they predated the 1979 Islamic revolution, and advances were openly announced on public radio as early as 1979 and throughout the early 80’s when, for example, the discovery of uranium in Iran was announced during an interview with the head of Iran’s Atomic energy agency. The IAEA was well also aware that Iran was seeking the fuel cycle, and they even visited Iran’s uranium mines in 1992. Later, when the Chinese pulled out of constructing a uranium conversion plant for Iran under US pressure, the Iranians told the IAEA that they would build it themselves and would continue the program.”

    From Nuclear Fuel, Nov. 23, 1992:

    A key Iranian official last week denied reports that his country is pursuing activities aimed to develop the capability to enrich uranium. Western intelligence agencies have obtained some information pointing to such a program, and similar allegations have been published recently by some non-official organizations….Mohammed-Sadegh Ayatollahi, Iran’s resident representative to the IAEA, told NuclearFuel November 18 that “there are no facilities and no laboratory-scale research and development activities in Iran for the purpose of uranium enrichment.”….Further, Teheran has “no plans to invest in an enrichment infrastructure,” he insisted. According to Ayatollahi, such an endeavor “has no economic or political justification in a country such as Iran.”….All fuel for subcritical facilities, research reactors, and future power reactors in Iran, the official said, “has been, and will continue to be, supplied by outside sources under contract.

    And then in 1994:

    In an attempt to clear the airof persistent rumors and reports that Iran is engaged in clandestine nuclear activities, Bruno Pellaud, the IAEA’s deputy director general for safeguards, visited Iran in late 1993. The visit was the second time in as many years that senior IAEA officials held non-routine talks with Iran about the aims of that country’s nuclear program.
    Officials from the Atomic Energy Organization of Iran (AEOI), and Iran’s resident representative to the IAEA in Vienna, Mohammad Ayatollahi, strongly deny that Iran has any non-peaceful nuclear activities. They also deny reports, from U.S. official sources, that Iran is secretly developing reprocessing and uranium enrichment capabilities.

    Explain to me exactly how the IAEA was “well aware” of Iran’s desire for a fuel cycle in light of these denials? Furthermore, if the IAEA was “well aware” of Iranian intentions regarding the fuel cycle, why did the IAEA have to go asking questions on these “transparency visits?”

    Before the IAEA visit, and since mid-1996, the Vienna agency had sought without success to arrange a trip to Iran which was officially described as a routine safeguards inspection but which was also intended, following background discussions between the Department of Safeguards, the Office of the Director General, and individual member states, to clear the air about renewed concerns raised by some parties, particularly the U.S., about the intentions of Iran’s nuclear energy program. In particular, the IAEA sought to discuss with Iran its quest for a uranium hexafluoride conversion plant scheduled to be supplied by China at the Isfahan Nuclear Technology Center. That site, inspectors have reported to Vienna, appeared to be building up at a rate not justified by Iran’s declared nuclear activities. (Hibbs, Nuclear Fuel, January 13, 1997)

    Here’s another one:

    Last month the IAEA Department of Safeguards held what sources called a ‘‘transparency visit’‘ at the Nuclear Technology Center in Isfahan, which is the designated location for the UF6 facility. These sources described the trip, which included a lengthy discussion with the director of the Isfahan center about the future of the complex, as ‘‘success-ful.’‘
    For several months prior to IAEA General Conference in September, diplomatic sources said, Iran had resisted scheduling the visit to Isfahan. Sources said then that the IAEA wanted to hold the visit in part because the Isfahan complex appeared to be expanding at a rate which Iran’s modest nuclear program did not justify. (Hibbs, Nuclear Fuel, December 16, 1996)

    Just sayin 😉

    BTW, I’m equally annoyed as Hass at my inability to quote multiple paragraphs at once in textile. WTB HTML editing please.

    On an unrelated note, the following from the first (1992) article caught my eye:

    Since the end of the 1991 Gulf War, Western governments have registered concern about alleged uranium enrichment research activities in Iran. Sources said that according to a late-1991 report by German intelligence agency Bundesnachrichtendienst (BND), some enrichment knowhow, stolen from the Urenco centrifuge effort for use in Pakistan, may have been re-exported to Iran. They said that even before enrichment cascade-related technology was diverted from the firm Leybold-Heraeus to Pakistan via Switzerland in the mid-1980s, Pakistan apparently had already received some Urenco centrifuge design information from other sources. Parties in Pakistan may have retransferred the information to Iran, the German report said.

    From my reading of this and many other sources, it appears the BND was mostly correct in its assessments of what Iran was doing through most of the 1990’s.

    Also, what would we all do with Mark Hibb’s fine reporting?

  23. Hass (History)

    Andy – Note the dates. The US interfered with Iran’s nuclear program in 1983. Naturally but 1992 and 1994 (the dates of your cites) the Iranians had concluded that they would have to maintain a pretence (badly) on some aspect of their program — but the program as a whole and Iran’s development of the full nuclear cycle was known to the IAEA – and in fact Iran was openly working with the Chinese to build a UCF conversion plant in 1996.

    This is the IAEA’s reaction to news of Iran’s uranium extraction and conversion:

    “This comes as no surprise to us, as we have been aware of this uranium exploration project for several years now,” Melissa Fleming, spokeswoman for the Vienna-based IAEA said. She added that an IAEA team visited the mine in question in 1992.
    (“Iran begins uranium extraction, plans processing ore to fuel” Associated Press, February 10th 2003)

    And for example, in 1997 after China buckled under US demands to drop nuclear commerce with Iran, including the construction of the UF6 plant…

    At that time, sources reported that regardless of the agreement by China not to build the UF6 plant at Entec, the Atomic Energy Organization of Iran reiterated to the IAEA that Iran would go ahead with construction of the facility (Nuclear Fuel, 30 Dec.‘96, 1)

    In fact the IAEA knew about Iran’s importation of uranium from China in 1991 too:

    NUCLEAR COMMERCE AT ISSUEAS TEHRAN LEANS WESTWARD —- Mark Hibbs, Bonn, 9 December 1991 Nuclear Fuel Pg. 11 Vol. 16, No. 25
    At the 1991 IAEA General Conference in late September, official concern was raised about three batches of imported U3O8 in Iran that allegedly had not been reported to the IAEA.
    Sources said the matter was clarified to the satisfaction of the U.S. government only when IAEA officials, whom Iran had informed about the U3O8 transactions, agreed to share the information and confirm the presence of the material in Iran.

    Note that the Iranians had announced the discovery of uranium and their plans to use it openly, on national radio:

    After three years of unsparing efforts made by the experts and workers of the Iranian Atomic Energy Organisation, deposits of more than 5,000 t of uranium have been discovered in the Saghand region of Yazd, central Iran. According to a report filed by our correspondent, the Minister of Labour and Social affairs, Mr Sarhadizadeh; the Head of the Budget and Plan Organisation, Mr Banki; the Deputy Prime Minister and Head of the Atomic Energy Organization, Mr Amrellahi; together with some experts of the two organisations, paid a visit to the Saghand area in order to inspect the uranium mines. At the end of this visit Mr Banki said in an interview that deposits of uranium, iron, lead and zinc had been discovered in the area, enabling the Islamic Republic of Iran to make use of these huge mines and hence lay the foundations for the independence of the country. Mr Amrellahi also expressed assurances that within the next two years the Saghand mine would be one of the biggest uranium mines in the Middle East region and would enable Iran to have part of the Nuclear industry at its disposal.
    (IRAN;URANIUM FIND – BBC Summary of World Broadcasts January 22, 1985)

    And even earlier than that . . .

    Tehran, 16th March: The head of the Esfahan nuclear technology centre, Dr Sa’idi, said in Esfahan today that Iran was taking concrete measures for importing nuclear technology, while at the same time utilizing Iranian expertise in the field. He said the decision was made in the wake of discovery of uranium resources in the country and after Iran’s capability for developing the industry had been established. Iran’s plans for developing nuclear capability are conceived in three distinct phases: During a short-range plan Iran will design and manufacture a subcritical reactor, followed by a nuclear reactor and a nuclear plant during the subsequent mid-term and long-term planning. (IRAN;NUCLEAR PROGRAMME – BBC Summary of World Broadcasts March 30, 1982)

    As for the BND and claims about nuclear smuggling, I don’t think you should take them at face value. Many of these claims were later debunked, but with less fanfare:

    German criminal investigators have denied a persistent report that Iran used a private airport near Hamburg to smuggle nuclear contraband to Turkey and destinations in the Middle East.
    At issue is a story published in a German newsmagazine last year which has since been recirculated in major U.S. media. …The report on alleged Iranian nuclear smuggling first appeared in the magazine Focus in mid-1995, was repeated in the New York Times, and was used in the January edition of Scientific American…
    But investigators who reported on the matter to the Bundeskriminalamt (BKA), Germany’s federal criminal investigation agency in Wiesbaden, denied that they had uncovered any evidence that the Hartenholm airfield had been the departure point for nuclear contraband, or that Iranian agents were involved. Likewise, the author of the original German news report has also rescinded the allegation that Iran had smuggled nuclear goods from Hartenholm. He told Nucleonics Week that the source of the original report had been a Turkish journalist who later “proved to be unreliable. (Feb 1 1996NucleonicsWk.14)”

    And that’s just one example of “unreliable” reporting.

  24. Andy (History)

    Hass,

    None of the sources you cite claim a full fuel cycle – specifically enrichment. Are you claiming the IAEA knew all along that Iran intended to have an enrichment capability? Is there any evidence to suggest it did? And if this was so clear to the IAEA, why were they concerned about the scope of Iran’s activities at Esfahan in the mid 1990’s? If you have something definitive on enrichment, I’d be interested in seeing it. You would think the IAEA would have actually said something to that effect somewhere along the way!

    In fact, AWR is actually correct for specifically mentioning enrichment – the Hibbs article only mentions technical assistance for other stages of the fuel cycle. So the question remains – did Iran actually request technical assistance for enrichment back in the early 1980’s? And I think that AWR is correct when he/she suggests that enrichment is an area the IAEA does not typically provide technical assistance.

    As for the BND, I was talking about their assessments of Iran’s covert enrichment efforts, not smuggling.

    Hass and Arnold,

    I am beginning to conclude that you both are intentionally misreading my comments! I am not “reading the AP into INFCIRC 214.” As you know, all the AP does is increase the agency’s ability to carry out its mandate which includes ALL material whether declared or not. The AP does not add undeclared material to that mandate – it only gives the agency better tools to find such material. Absent the AP, the agency can still obtain information (via other means) that indicate diversion may have taken place and article 19 simply lets the agency act on such information.

    Let’s look at article 19 again:

    If the Board, upon examination of relevant information reported to it by the Director General, finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices, it may make the reports provided for in paragraph C of Article XII of the Statute of the Agency (hereinafter referred to as “the Statute”) and may also take, where applicable, the other measures provided for in that paragraph.

    The first part which talks about “relevant information” is important and it is not limited to a nation’s declaration. Indeed, the agency takes an “all-source” approach and looks at information provided by all member states, open sources (like the press), as well as the state in question. In fact this approach was how the agency unraveled Iran’s clandestine program – it wasn’t an inconsistency in Iran’s declaration – it was information separate from the declaration (information that had been building for some time) that raised suspicions sufficiently for the DG to take action. In other words, just because a state’s declaration is “verified” and internally consistent does not mean the DG is somehow prevented from bringing issues before the board, nor does it prevent the board from addressing those issues when, based on the totality of relevant information, the board feels it’s warranted. “Relevant information” can also include a state’s level of cooperation (past or present) with the agency, the level and extent of any deception and anything else that has “relevance” to a state’s nuclear program. It’s for this reason the board is still able address issues and concerns even when a declaration has been determined consistent to the agency’s satisfaction. IOW, there is a lot more that’s relevant besides a declaration. It seems that Hass would have us believe that only declarations and their consistency matter and once a declaration is determined “consistent” or “not inconsistent”, then everything else is to be tossed aside and everyone gets a pretty pink pony! Were that the case, then the agency could never take action based on less than completely conclusive evidence.

    To conclude, the language of article 19 seems pretty clear. If I’m wrong in my assessment (and I readily admit that may be the case), then what exactly does “finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded” mean?

  25. Andy (History)
  26. AWR (History)

    To make things a little more interesting, if possible, I will in a little while quote to you the language from INFCIRC 153, which is included in the Iran CSA, that allows the Agency to conduct “surprise” inspections. There is to my knowledge no precedent for the SG department doing this, but the language was included during the drafting of 153 specifically to provide a kind of safety valve or fallback position the Agency could use in adversarial circumstances.

    I would also direct Hass’s attention to Iran’s difficulties with a Mr. Christian Charlier of the safeguards department, who was removed from the list of acceptable safeguards inspectors ostensibly because of some stupid remarks he made in public, but really because he was studious in asserting the Agency’s role under both the CSA and the voluntary AP position Iran formerly adopted. The simple fact is that the guy went too far and pissed off the Iranians. And ElBaradei is not interested in creating another nuclear pariah in Iran, from his all-too-legalistic standpoint. He wants Iran inside the tent, not outside and perhaps shooting in.

    Finally, because I do not want to prolong this but am more interested in reading what others have to say: I find it most interesting that the supposed IAEA assistance to Iran dates back to 1983 – TWENTY-FIVE YEARS AGO!!! – when the practices of the IAEA were much more attuned to industry rather than arms control. A citation of this age is irrelevant considering the position the Agency is in today. And Melissa Fleming was talking, I believe, about uranium MINING, rather than enrichment. Everybody knew Iran had uranium ore. What nobody knew until recently was that it was pursuing every reasonable approach to getting its hands on HEU and perhaps plutonium, and had been doing so clandestinely for 20 years.

  27. Arnold Evans (History)

    As you know, all the AP does is increase the agency’s ability to carry out its mandate which includes ALL material whether declared or not.

    Not only do I not know that, as far as I can tell, your claim that that’s all the AP does is a deliberate lie.

    In order to make an AP declaration about the exclusively peaceful nature of a country’s entire nuclear program, the IAEA has the right and obligation to require information about, among many examples, ballistic missile designs and high explosives testing that are in no way related to any diversion of fissionable material.

    This is simply not an original NPT requirement. This is an AP requirement that comes from extending safeguarding of “materials” to verification of “materials and activities”.

    By my understanding, Iran was reported to the UNSC on the basis of a failure to verify the exclusively peaceful nature of Iran’s nuclear program. While verifying and building confidence in the exclusively peaceful nature of any country’s nuclear program (you too Israel) would be desireable, it extends substantially beyond Iran’s legal requirements under the NPT or the IAEA’s mandate with respect to countries that have not ratified the AP.

    This new interpretation that “verify that there has been no diversion of material required to be safeguarded” introduces a requirement that the IAEA be given access beyond the negotiated reporting requirements into areas not related to the fissionable materials (the materials required to be safeguarded) themselves, is, as I keep saying, silly. It also goes against the express wording as well as the spirit of the NPT.

    The idea that “verify that there has been no diversion” (NPT language) is no different from “verify the exclusively peaceful nature” (an AP concept) and that this has been the legal requirement that was originally ratified with the NPT is both wrong and probably deliberately misleading and deceitful.

    It is just not the case that the NPT gives the IAEA a mandate to make an AP declaration about non-AP states, or that the AP does not introduce a new and expanded mandate. Attempts to stretch NPT language into the AP are silly.

  28. Andy (History)

    Arnold, I see little utility in putting forth any effort to respond to your comments given that you have come straight out and called me a liar. Such shallow and baseless accusations say a lot more about you than they do about me. I tend to think people can reasonably disagree and debate these issues, but it seems that you cannot so there’s little point in further discussion with you. For all the fundamental disagreements I have with Hass he is at least civil and does not attempt to win arguments by impugning motives.

    The only thing I will do is point again to the link to an earlier thread above and quote one relevant passage from “anon” that more clearly explains a lot of what I’ve been trying to say here:

    The IAEA’s legal responsibility over undeclared nuclear materials, and over any undeclared activities, facilities or LOFs that involve such undeclared materials, does not emanate from the AP, but rather from the model CSA itself. (See above.) Moreover, as Table A-1 of the SS-IAEA outlines, the CSA does actually provide the Agency with an incomplete ability to carry out that responsibility. The AP goes further by allowing a State to legally provide the IAEA with what the Secretariat views as a fuller ABILITY—e.g., through greater access to information and physical sites—to carry out that responsibility, and verify the absence of undeclared nuclear material, activities, facilities, LOFs, etc.

    Indeed, the SS-IAEA notes that, ”[F]or States with a comprehensive safeguards agreement alone, although the Agency HAS THE LEGAL AUTHORITY to verify possible undeclared activities, ITS ABILITY to discover such activities IS LIMITED. The additional information and complementary access provided for under additional protocols ARE INTENDED TO INCREASE THAT ABILITY and thus enable safeguards implemented under a comprehensive safeguards agreement with an additional protocol in force to provide credible assurance of the absence of such activities.” (SS-IAEA, para. 13, emphasis added).

  29. Arnold Evans (History)

    Let’s spell out what “ALL materials” means by classes

    Class A – Material that has been declared by an NPT country

    Class B – Material that was not originally declared by the NPT country but that the IAEA has discovered by any means other than a timely declaration by the NPT country.

    Class C – Material that has not been specifically identified, but that the IAEA has reason to believe exists

    Class D – Material that the IAEA has no reason to believe exists, but could in theory exist in any country for which the IAEA has so far been unable to certify the exclusively peaceful nature of that country’s entire nuclear program.

    Class E – Unknown material that could exist, in theory, even in a country that has received an IAEA AP certification of confidence that a country’s nuclear program is entirely peaceful.

    We’ve seen it falsely attributed to me, and probably falsely attributed to Hass that I believe only class A material makes up “ALL” material, so that if all material in class A is verified not to be diverted, then a country should not be reported. Speaking for myself this has never been what I’ve meant. I’m sure Hass is the same but he can speak for himself.

    Class B and C, together with A, comprise all material the IAEA knows or has reason to believe exists in real life. My position is that failure to verify only these classes is enough to trigger a report.

    As of today the IAEA has certified that class A and B has not been diverted and has stated that it has no specific reason to believe there are materials associated with the most recent outstanding questions.

    Reasoning that if there were class C materials, materials the IAEA has reason to beleive exists, that would have been reported, I can assert that all materials in classes A, B and C either do not exist or have been verified not to be diverted to a military program.

    54. The one major remaining issue relevant to the nature of Iran’s nuclear programme is the alleged studies on the green salt project, high explosives testing and the missile re-entry vehicle. This is a matter of serious concern and critical to an assessment of a possible military dimension to Iran’s nuclear programme. The Agency was able to show some relevant documentation to Iran on 3–5 February 2008 and is still examining the allegations made and the statements provided by Iran in response. Iran has maintained that these allegations are baseless and that the data have been fabricated. The Agency’s overall assessment requires, inter alia, an understanding of the role of the uranium metal document, and clarifications concerning the procurement activities of some military related institutions still not provided by Iran. The Agency only received authorization to show some further material to Iran on 15 February 2008. Iran has not yet responded to the Agency’s request of that same date for Iran to view this additional documentation on the alleged studies. In light of the above, the Agency is not yet in a position to determine the full nature of Iran’s nuclear programme. However, it should be noted that the Agency has not detected the use of nuclear material in connection with the alleged studies, nor does it have credible information in this regard. The Director General has urged Iran to engage actively with the Agency in a more detailed examination of the documents available about the alleged studies which the Agency has been authorized to show to Iran.

    Class D – materials that are not known to exist, not believed to exist, but could in theory exist in a country that has not established confidence in the exclusively peaceful nature of its nuclear program (which can only be done through the AP process) is the object of dispute.

    Correct me if I’m wrong Andy, anon or others, but it seems you are claiming “ALL materials” includes class D. I’m calling that silly but it is beyond that.

    To say “ALL materials” includes class D, then to say failure to verify “ALL materials” is a trigger very simply means that failure to ratify the AP and receive an AP certification is a trigger, grounds for a report. And of course, before the AP was formulated, Class D and Class E were the same thing. Your argument becomes that before then, the fact that it could not be ruled out that there may exist in theory non-diverted material, despite the lack of any evidence or other reason to believe it existed, was a trigger for a report.

    I can’t think of any way to describe materials in class D without explicit reference to the AP. Unless you can, you are arguing that until the AP was formulated, every country was constantly triggering reports to the Board and the UNSC. Today every country that has not done so is permanently triggering a referral. Crazy right?

    Reading class D into the NPT’s “all materials” requirement is reading the AP into the NPT.

    Besides dishonesty, the only explanation I can think of is groupthink, being around people who agree with you too much allows everyone to reinforce the same biases.

  30. Andreas Persbo

    Hass,

    I am of course completely ignorant, but where do you find the words “non diversion” in article II of the NPT…?

  31. AWR (History)

    Article 73(b) of INFCIRC/214 states that the Agency may perform special inspections: “If the Agency considers that information made available by the Government of Iran
    including explanations from the Government of Iran and information obtained from routine inspections, is not adequate for the Agency to fulfil its responsibilities under this Agreement.”

  32. hass

    Oh come on now AWR – Why do you suppose the Iranians were MINING uranium? Was the IAEA under the mistaken impression that Iran wanted to make paper weights or door stops out of the uranium ore? Especially after they had made it explicitly clear to the IAEA that they had set on developing the fuel cycle as early as 1980s?

    I’m not going to address insinuations and the aspersions cast on the character of people for being “too legalistic”.

    I don’t really have much else to say on this matter.

  33. Arnold Evans (History)

    Well Andy, you earlier accused both me and Hass of intentionally misreading your comments. Reading this thread, you’ll find you were the first to make this class of accusation. Now you assert that my and Hass’ motives are subject to being impugned but yours are not. It speaks for itself both that you make this absurd assertion and that when you impugned my motives first you did so seemingly without even realizing it.

    While there are some activities that involve fissionable material, which fall directly under the CSA, the AP extends the IAEA’s mandate to activities that could be related to a nuclear weapons program but that do not involve fissionable materials.

    Activities that do not involve fissionable materials are not subject to the safeguard agreements but they are subject to the AP. I can’t believe I’m actually typing this but the AP clearly represents a broader mandate than the CSA.

    The certification possible with an AP in place is broader than that required by the CSA or the original NPT. To stretch the wording of the original NPT so that it requires referral unless an AP certification is possible is to read the AP into the original NPT.

    Honestly, are you really so offended the I mirrored your accusations about my motives, or did you just get tired of trying to argue that the AP does not add a legal mandate? That must be a tiresome argument for you to try to make.

    But the major dispute between Iran and the US, as pointed out by me in the earlier thread is not the scope of the AP, but the US position that Iran must not be nuclear capable. Olmert repeated this position this week. With nuclear capable defined as having access to technologies that are both legal and whose denial is a violation of the NPT.

    This discussion of the legal scope of the AP is just a pretext. One that you and anon are willing to go into great detail about, but all as a diversion away from the more central issue. You, Anon and the majority of the US nonproliferation community seem unable to either defend or disclaim the US/Israeli position that AP or not, diversion or not, Iran should be denied enrichment and other technologies.

    If you, like anon in the earlier thread, are not going to address at all the US position that Iran must not be nuclear capable, meaning that Iran must not have enrichment and/or other technologies – which was the US position immediately after the Iranian revolution and therefore clearly not the result of any non-political issue with the Iranian government then that also speaks for itself.

  34. hass

    Anderas – I don’t find the word diversion in Art II of the NPT. I find it in Paragraph C of Article XII of the IAEA Statute, which was invoked to send Iran’s file to the UNSC.

    Under Article II of the NPT, non-nuclear weapon states agreed to suspend their right to manufacture or acquire nuclear weapons. There is no specific enforcement mechanism for this Article of the NPT.

    Under Article III of the NPT, non-nuclear weapon states agreed accept safeguards, implemented by the IAEA, to ensure that nuclear activities/material are not diverted from from peaceful uses to weapons. This is enforced by the IAEA (which operates by virtue of the IAEA Statute.)

    A very faulty and incorrect analysis of Paragraph C of Article XII of the IAEA Statute is here. It is faulty and incorrect because (among other things*) they’re concentrating on the word “shall” in the paragraph to insist that Iran’s file should be sent to the UNSC automatically (John Bolton’s position – except for S. Korea and Egypt, of course) when they should first concentrate on the earlier word “compliance” in the same Article. This mistaken conclusion is due to the fact that people read the word “non-compliance” and simply ASSUME that it means “any breach of safeguards” without bothering to actually read.

    Here, let me spell it out in detail once and for all so we can move on:

    Paragraph C of Article XII sets three standards for what constitutes “compliance”:

    1- The first requirement for compliance is “accounting referred to in sub paragraph A-6 of this article.”

    Paragraph A-6 of Article XII, in turn, states that inspectors are to be sent to account for fissionable materials and ensure none has been diverted for a “military purpose”.

    The IAEA did send these inspectors to Iran – many many times. El-Baradei confirmed in Paragraph 52 of his November 2003 report that “to date, there is no evidence that the previously undeclared nuclear material and activities referred to above were related to a nuclear weapons programme.” And again, after extensive inspections, El-Baradei wrote in Paragraph 112 of his November 2004 report that “all the declared nuclear material in Iran has been accounted for, and therefore such material is not diverted to prohibited activities.” It was again confirmed in subsequent report of 23 May 2007 and in the Feb 2008 report. He didn’t repeat this so often just because he didn’t have something better to do. “Accounting for non-diversion” is THE legal standard, the ultimate finding for compliance under Paragraph C of Article XII of the IAEA Statute with regard to INFRCIRC153 (and repeated again in Article 19 of INFCIRC153.)

    (This is where Andy pipes up about “undeclared” material”, and where we once again remind him that under INFCIRC153, the IAEA only makes a finding about declared material — this is rule that applies to Iran and others as well — but that the latest IAEA report explicitly states that they have “no concrete evidence” of undeclared stuff in Iran either. Then he notes that the language is couched in the negative — and I point out that ElBaradei has specifically stated in the positive that there was no diversion, period. AWR may then chime in by claiming that Iran blocked or removed inspectors, which is contrary to the repeated assertions by the IAEA that no such thing happened.)

    As Michael Spies of the Lawyer’s Committee on Nuclear Policy writes: the finding that no diversion has occurred is the central conclusion regarding Iran’s safeguards compliance.

    2- The second element of compliance as defined in Article XII para C is “determining whether there is compliance with the undertaking referred to in sub paragraph F-4 of article XI”

    A a check of Article XI shows that it applies to “Agency Projects” meaning the projects in which the the IAEA has provided technical assistance to a requesting country “in securing special fissionable and other materials” etc. And, subparagraph F-4 specifically requires that the assistance provided by the IAEA is similarly not use for military purposes. Note that the US killed off the IAEA’s technical assistance to Iran’s nuclear fuel program in 1983.

    3- The third element of compliance is “measures referred to in sub- paragraph A-2 of this article” which deals with health and safety issues — and there’s no allegation that Iran has violated any of that either.

    That’s XII.c in a nutshell. You’ve read it, now decide for yourselves if Iran has been “non-compliant” with it.

    Hat-tip to Siddharth Varadarajan – one of the commentators who occasionally visits this site:

    Despite this finding, the Board of Governors — acting under the pressure of the U.S. and the E-3 — voted on September 24 last year to find Iran in non-compliance with its safeguards agreement in the context of article XIIC of the IAEA Statute. Conveniently overlooked was the fact that article XIIC, as well as articles 18 and 19 of Infcirc 214 [Iran’s Safeguard Agreement], define non-compliance essentially as diversion of safeguarded material for prohibited purposes, something Dr. el-Baradei had explicitly ruled out.

    (Note that US media commentators couldn’t be bothered to report any of that)

    PS: have you considered migrating to MT4 and using a larger commenting box with better formating controls?)

  35. hass

    Typo correction:

    Under Article II (not III) of the NPT, non-nuclear weapon states agreed to suspend their right to manufacture or acquire nuclear weapons…

  36. Andreas Persbo

    Hass – I am sure we all can use better formatting controls. Where, how, can I find this MT4?

  37. hass

    MT4= Movabletype blog application

  38. Andy (History)

    Ok, if you don’t believe me, maybe you’ll believe the IAEA’s principle legal officer:

    Under comprehensive safeguards agreements, the Agency has the right and the obligation to ensure that all source and special fissionable material in all peaceful nuclear activities of the state is subject to safeguards, and that safeguards are in fact applied to such material. The Agency’s obligation is not limited to nuclear material and facilities actually declared by a state; it also extends to that which is required to be declared.

    Then there is this also by Ms. Rockwood. (note, because I can’t figure out how to quote multiple paragraphs, each one is getting it’s own quote, but they are contiguous – also, emphasis is mine:

    Because a safeguards agreement is a treaty, the responsibility to fulfill the obligations of the agreement rests with the Government of the State that is party to the agreement. For example, if the operator of a privately-owned facility subject to safeguards refused to allow IAEA inspectors to conduct a properly scheduled inspection, the IAEA would request the Government of the State concerned to take whatever steps are necessary to ensure that Agency inspectors have adequate access to the facility. If the Government did not or could not obtain adequate access for the inspectors, then the Government, not the operator, would have violated the agreement unless the failure to do so was excused. It is the Government’s responsibility to ensure that persons under its jurisdiction act in accordance with the treaty obligations assumed by that Government.

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

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

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

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

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

    The IAEA’s position in this is rather clear and furthermore is consistent since both these sources predate the 2003 discovery of Iran’s program. I don’t think there is much I can add. The Agency’s position is that its legal authority to demand actions from a state that has violated its CSA is quite broad – broader, actually, than I had previously imagined. Of course, enforcement is another matter and even the UNSC doesn’t have a good record on compelling nations.

  39. AWR (History)

    Thanks, Andy, for your post, which I believe is dispositive of the issue. I would observe that, even though this interpretation differs somewhat from that espoused by the Agency during Hans Blix’ tenure, particularly with regard to Iraq, it is not just the Iraq experience that led to this broader interpretation. Rather, the construct described so clearly here derives from the way safeguards work when first applied in a state party to the NPT.

    An initial declaration is provided by the member state to the Agency, which is then analyzed to identify what are called “anomalies.” My recollection may be faulty (and I invite others to correct where necessary), as there was much knuckle-biting and thrashing out of options by the Agency after the Iraq debacle in the late-eighties/early nineties, but this initial analysis led eventually to what is called a “State Assessment.” The experts identify possible proliferation paths and attempt to resolve quietly with the state in question any anomalies that are identified. The assessment process is supposed to be dynamic, with additional information considered as and when it is received, and a dialogue between the Agency and the Member State continues in a quiet and orderly fashion so that all questions are answered. This is what happened in the case of South Korea, where some bright person happened upon a scientific paper that spelled out its laser enrichment bench-scale experiments. The ROKs (I love that acronym) came clean and avoided conflict.

    Contrast this with Iran’s behavior, admittedly in a charged political environment, where each question gets partially answered only to be succeeded by another. The Agency doesn’t really care if new information comes from an obscure scientific journal or a “laptop of death:” it believes, rightly, that it has a solemn obligation to follow up by questioning the state involved in an unbiased way, and to do so quietly. And believe, me the Agency writ large is hypersensitive about avoiding entanglement in a political wrangle, even though ElBaradei has a tendency to offend any number of member states with some of his public pronouncements.

    The bottom line is this: DDG Heinonen is in Iran this week because he believes there are additional questions Iran has failed to answer in the appropriate fashion. That’s the bottom line, despite those who insist on devaluing the work of the IAEA with accusations that it is being bullied by the US. From personal experience, I can tell you that nothing could be farther from the truth, and to suggest otherwise is not only wrong, but disrespectful of the highly professional staff that every day works carefully to find out what’s really going on.

  40. Mark

    Andy: Nothing in your quotes contradicts the analysis by Hass. Some of us on this site are quite well qualified in the topic. You’re beating a dead horse.

  41. Arnold Evans (History)

    Rockwood, an American, has indeed come up a theory that the IAEA has quite broad legal authority to demand actions from a state. Broader than you, Andy, previously imagined. Broader than anything that can be justified by the language of the treaty.

    While the CSA envisions compelling a state to accept specific types of special inspections to ascertain the presence or absence of fissionable material, Rockwood envisions compelling a state to ratify new treaty obligations that extend beyond fissionable material.

    That’s just a ridiculous position. There is nothing in the language of the NPT or CSA that justifies that. In fact, the NPT specifically says states cannot be compelled to extend their obligations.

    I think my points still stand.

    1- The AP clearly does more than give the IAEA tools to enforce a state’s existing obligations under its CSA. It creates new obligations even outside of the CSA area of fissionable materials. This is so basic that I’m shocked it has come under debate. Hopefully I will not see it any more here.

    2- A state that has ratified the NPT and its CSA has not, by doing so, accepted an obligation to implement the AP. Specifically, Iran has not accepted an obligation to implement the AP and legally has no such obligation.

    3- If you’re going to read Iran’s obligation to verify “materials that should be declared” to mean “materials that could in theory exist in any state that has not implemented the AP” then you are reading the AP into the CSA. That is silly, that is bizarre. At best this is groupthink where group biases have taken your community a long way from the words or intent of the agreements you discuss.

    4- Most centrally, the main issue of contention between the US and Iran is the US position that Iran must not be nuclear capable. This has been the US position from when Iran’s current leadership first came to power. Nuclear capable is defined as having legal technologies the denial of which is explicitly contrary to the NPT. That is simply an undefensible position as you are demonstrating when you don’t try to defend it.

    The vast overreading of the CSA by Longwood and yourself generally reflects the US’ unbounded expansion of obligations of non-weapons states while ignoring weapons states obligations, such as disarming.

  42. Anon

    Arnold writes:

    Most centrally, the main issue of contention between the US and Iran is the US position that Iran must not be nuclear capable. This has been the US position from when Iran’s current leadership first came to power. Nuclear capable is defined as having legal technologies the denial of which is explicitly contrary to the NPT.

    This is a red herring that distracts us from genuine issues. E.g.: (1) Under what conditions should Iran be pursuing enrichment, given that it (a) covertly pursued nuclear materials and technologies for nearly two decades, and thus failed to comply with its NPT-required IAEA safeguards obligations; and (b) still refuses to comply fully with IAEA BoG and UNSC resolutions. And (2) whether noncompliance enforcement mechanisms like the IAEA BoG and UNSC should even matter.

    Arnold and Hass like to talk about Iran’s nuclear rights, but fail to recognize that no right is absolute. Rather, a right must be understood in relation to other rights and obligations. To take an example from domestic law, the exercise of an American citizen’s unalienable/inalienable right to life, liberty and the pursuit of happiness is not at all absolute. And to take a salient example from international law, Iran’s inalienable right under Article IV is not absolute; its exercise is conditioned not only by other expressly stated obligations to Article II in Article IV, but also by other parts of the Treaty (e.g., adherence to and full compliance with Article III, and IAEA safeguards obligations that spring from this Article). For more on this, see this excellent 1993 essay by Eldon V. C. Greenberg.

  43. Andy (History)

    Arnold,

    Maybe you should read Laura Rockwoods CV before calling what she says a “theory.” And yes, you ominously note she is an American – just like Michael Spies, who I don’t think is even a lawyer.

  44. hass (History)

    Your interpretation of Laura Rockwoods work is plain wrong. While it certainly is true that the IAEA has the right to ask states to remedy safeguard breaches by implementing measures requested by the BOG, THIS DOES NOT EXTEND TO FORCING A STATE TO SIGN THE ADDITIONAL PROTOCOL. The IAEA BOG, like the UNSC and every other international body, is bound by international law.

    In the case of Iran, the IAEA has said that there HAS BEEN NO DIVERSION and it has NO EVIDENCE of undeclared material or activities. Iran HAS implemented the remedying mechanism, and according to the latest IAEA report, everything about its past safeguards breaches HAS been resolved. Period.

    So drop it already.

  45. AWR (History)

    Nobody in this entire thread EVER said the IAEA board had the ability to force a sovereign state to sign/adhere to the AP. So drop it already.

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