Andreas PersboParallel fuel cycles

Today’s The letter from Iran to the IAEA is indeed a worrying development. As Jeffrey points out, our worst fears have been realized. Iran has – using the fact that IAEA inspectors cannot venture beyond declared strategic points – constructed a new enrichment facility. National technical means combined with human intelligence, however, seems to have averted the worst outcome, the establishment of a parallel fuel cycle.

However, two serious questions remain:

First, the unclassified US talking points state that the facility would be capable of producing about a weapons worth of material per year. A 3,000 centrifuge facility using Iran’s antiquated IR-1 centrifuges would be able to produce about one and a half weapons worth of high enriched uranium per year (39 kilograms with tails set to 0.4 per cent and 34 kilograms with tails set to 0.3 per cent). If equipped with more advanced centrifuges, the facility becomes quite lethal. The last generation of SNOR designs, for instance, if installed in Qom, could easily produce up to 80 kilograms worth of weapons grade uranium per year. The centrifuges would require little room, about 30 meters square, and draw very little power.

In practice, the facility would probably have three product areas: one for low enrichment, one for intermediate enrichment, and one for enrichment up to weapons grade. In a later briefing, US White House officials said the size of a facility would be about right “for a bomb or two a year”. They also said that the facility was “very heavily protected, very heavily disguised”.

Second, the facility would need to be supplied between 18 and 40 metric tons of natural uranium hexafluoride gas per year. An attempt to divert this from Esfahan, Iran’s only declared conversion facility, would entail a diversion of about seven to 16 per cent of its total capacity. I don’t have to do MUF calculations on that. A diversion that big would, with an extremely high probability, be detected by the IAEA. Indeed, I almost dare to say that detection is assured. This means that Iran would need to set up a clandestine conversion facility somewhere in order to bypass safeguards. There is nothing in the US speaking notes on that. But it seems like that the US intelligence community is keeping an eye on this.

Finally, we are definitely looking at a safeguards violation. It’s worth recalling that Iran did upgrade its subsidiary arrangements to oblige them to report facilities to the IAEA when they were at the design stage. They did this in 2003. They unilaterally pulled out of this arrangement in 2007. As James Acton correctly points out, the arrangement entered into force through simple exchange of letters. As in any contract, the principle pacta sunt servanda prevails (just put that term in Google).

A state can no more pull out of a contract than you can get out of, say, a mobile phone contract before it expires. It takes two parties to terminate an agreement. And the IAEA never accepted Iran’s withdrawal.

Not that it matters. It would seem like construction started at some time before March 2007. That is, at a time when even Iran itself considered itself bound by Code 3.1.

This is going to be very difficult to explain away, even by Iran’s highly talented spin-doctors.

Comments

  1. Arnold Evans (History)

    This is going to be very difficult to explain away, even by Iran’s highly talented spin-doctors.

    Let me give it a shot.

    Do you want to fight over it? If so, we’ll fight in Iraq and Afghanistan. I don’t know how sure you are that you’ll win.

    If not, we’re going to have to reach an agreement that leaves Iran with a Japan option. I know Israel doesn’t like that and you’re going to tell Israel that life is hard.

    But also, Iran’s expanded cooperation with the IAEA, including early design information, was always in the context of temporary and non-binding confidence-building measures that Iran clearly stated, even passed a law, that it would rescind if reported to the Security Council.

    Really though, the lawyers can go home. The US does not have leverage to force Iran to capitulate on giving up any Japan option.

    Just as international law couldn’t stop the US from invading Iraq or force Obama to prosecute George Bush – crystal clear violations of the plain text of treaties the US ratified – international law cannot prevent Iran from gaining a Japan option.

    And Iran getting a Japan option is actually overall completely legal.

  2. Azr@el (History)

    As recapped by Mr. Sublette earlier, this fac could be part of a distributed production architecture in which case it may or may not be configured as a 3 stage setup or it could be a topping fac in which case it would be at most a two stage operation. But the Iranian fetish for compartmentalization argues heavily against the existence of a smoking gun integrated HEU fac.

    Iran’s next move is to request 20% Fuel for it’s medical reactor, considering Ahmadinejad’s calculated Jew baiting of the last week, this is unlikely to materialize into a a transfer, if it does anticipate more Ahmadinejad on primetime pawning the likes Katie Couric and provoking congress to scuttle the transfer, and thus Iran will probably produce it’s own 20% HEU. My question is where?

    As to the notion: ‘A state can no more pull out of a contract than you can get out of, say, a mobile phone contract before it expires.’
    Seriously? Does the authour believe this? Would you like me to quote the few hundred agreements we’ve violated or unilaterally withdrawn from over the last few decades? We exchange paper all the time, it’s worth varies as a function of our needs and our strength to enforce our will, every other interpretation is a fairy tale.

  3. blowback (History)

    “every treaty in force is binding upon the parties to it and must be performed by them in good faith.”

    Perhaps Iran can argue that the reference of what was a perfectly legal activity, uranium enrichment by Iran, to the UNSC was not in “good faith” so it was the IAEA, under political pressure from the U.S. Government which breached its treaty obligations first.

    _Andreas comments_: It’s very likely to be their line, yes.

  4. Ben D (History)

    Don’t be so pessimistic ahead of the facts! You’ve already created the impression in your previous post that it was western powers that revealed the construction of this new site when you now know it was Iran who informed the IAEA on the 21st September so please try to find out the truth before rushing to judgement.

    http://www.presstv.ir/detail.aspx?id=107097&sectionid=351020104

    According to Iran, that as with Iran’s other nuclear facilities, the activities of the facility will be also within the framework of the IAEA regulations.

    Now of course there is a propaganda battle going on between the anti-Iran lobby and Iran itself, but if you are to have any credibility as an honest arms
    control broker, then you should not be so prejudiced.

    Respectfully, Ben D.

    _Andreas comments_: Iran’s legal position is very weak in this matter. I would not want to represent them, for sure. The problem is, of course, that the “framework” you refer to (i.e. Iran’s safeguards agreement) is to weak for comfort. This is repeatedly highlighted by the IAEA in report after report. As for chronology, read the post again. Also, please refrain from remarks on any posters character – stick to the topic.

  5. Cernig (History)

    “Iran would need to set up a clandestine conversion facility somewhere in order to bypass safeguards.”

    Unless, of course, it always intended to reveal the plant to the IAEA before it went into production. Unlikely, perhaps, but it can’t be ruled out logically. And science should be about logic.

    Regards, Steve

  6. Ataune (History)

    Excerpt from the statement of the US ambassador to the IAEA board, Glenn Davis on Sept 11 2009. He is omitting to mention Iran’s non acceptance of code 3.1 as breach. He is only talking of impediment.

    “The same can be said of Iran’s provision of access to Arak. The Director General’s report indicated that Iran permitted the IAEA to conduct a Design Information Verification (DIV) inspection at the Arak reactor. This development is, of course, welcome. However, access granted after a year of defiance is not something to be congratulated. Moreover, Iran’s continued refusal to implement Code 3.1 modified of its Safeguards Agreement, to provide early notification of new nuclear facilities, disconcertingly suggests that this access will not be routine or regularized, as required by Iran’s safeguards agreement and subsidiary arrangements, but rather will be ad hoc and last-minute when politically expedient. As the Director General noted in his report, Iran is the only state with significant nuclear activities that has a comprehensive safeguards agreement in force but is not implementing the provisions of the revised Code 3.1. Similarly, over a year ago, the Director General requested Design Information Verification information for the new power reactor Iran plans to construct at Darkhovin. And once again, Iran has refused to provide such information to the IAEA. The failure to apply Code 3.1 modified is a serious impediment to the IAEA’s ability to properly safeguard and verify nuclear activities in Iran.”

    _Andreas comments:_ What the US thinks is irrelevant. The agreement is between the IAEA and Iran. It is what the IAEA and Iran thinks that is relevant.

  7. hass (History)

    Andreas, you know perfectly well that Iran’s “upgrade” to the subsidiary arrangments is not binding on them because the upgrade was never ratified by iran. There is no “pacta” until it becomes ratified. And you’re buying into the notion that this was mean by iran to be a ‘secret’ facility rather than a declared one. YYou’re the one spinning it. Leaving aside quibbles over whether iran should have declared it now or earlier, the bottom line remains that iran did disclose a yet-to-be constructed enrichment site, that there is no evidence that any nuclear material was introduced into the site, and all of Iran’s uranium stocks are under IAEA monitoring and can’t be diverted. Stop with the hype already.

    _Andreas comments_: Do your homework Hass. Read up on exchange of letters and domestic ratification. Then we can have this discussion.

  8. spaceman africa

    For anyone not already declared, by that I mean people who arent FSB and Co. (sorry, had to, it’s nothing personal), does this change the ball game? Can we finally say, unequivocally, that Iran is pursuing a nuclear weapons capability and not a peaceful program? Or at least, both?

  9. Mehdi

    That’s what you get, when you keep saying All options are on the table.
    Now bust that bunker, Israel.

    _Andreas comments:_ Your point being?

  10. expert

    In the next few months i await iran statement something like this”
    If there will be a new sanctions we will leave NPT..
    Simply & clearly

    _Andreas comments_: This won’t, of course, solve Iran’s problems with having a number of Security Council resolutions pointed at them. But, yes, the NPT allows for states to withdraw under the “supreme interests” clause. It’s there for a reason.

  11. blowback (History)

    Andreas comments – It’s very likely to be their line, yes.
    Furthermore, members of the IAEA are entitled to technical support from the IAEA in developing peaceful nuclear programs; I have yet to see any indication the the IAEA has actually done so with respect to Iran and given the strength of US opposition, I would be surprised if had done so for Iran. Finally, the reference by the IAEA council to the UNSC was ultra vires which I seem to be recall has always been regarded as a fundamental breach of contract. By persuading the IAEA to make that reference to the UNSC, it would be funny if the Bush administration had let Iran off the hook, but then we all know that “international law” is really only what the US wants it to be.

    -Andreas replies:- The -ultra vires- debate is by no means settled. This is something that needs to be resolved by international courts. I’ve told the Iranians this on several occasions, but they do not want the issue to be settled. Until it is, the Council’s dicta stands, quite irrespective of what Iran feels.

    Look, no state that’s been on the sharp edge of a resolution have liked it. Not India, not Pakistan, not Israel, not South Africa, not the DPRK. I don’t expect Iran to recognise the legitimacy of these resolutions any time soon.

    Finally, if you don’t think there is such a thing as international law, why do you make legal arguments? Law, morality, political expediency, these are all different things. Keep it that way.

  12. Josh Narins (History)

    Iran declared that the IAEA will be able to inspect the new facility. If the inspections are ongoing, you know, as well as I do, that there is no chance on Earth that Iran could produce HEU surreptitiously. I don’t feel justified in linking here anymore if you are going to leave critically important facts off the table.

    Here are some facts we know: Obama didn’t discover Qom, likely the CIA, or possibly DIA, did. Obama doesn’t know what a facility for weapons or reactor grade uranium looks like, but he clearly said that it doesn’t look like a reactor grade plant. This means that this President, like (seemingly) every President since Ike’s second term (after the Iran and Guatemala CIA debacles of his first term), can’t say “No” to the CIA.

  13. Josh Narins (History)

    The Miami Herald is able to provide some more information on this particular ACW issue: http://www.miamiherald.com/news/nation/AP/story/1252270.html

    The letter was Monday, Andreas. If you know that now, maybe you can replace “Today’s” with “Monday’s”

    -Andreas comments:- The word “today” has a strike through for that reason. The sentence started differently in the first draft. Sloppy final edits on my behalf.

  14. blowback (History)

    The ultra vires debate is by no means settled.

    Please show me where in the IAEA constitution it is authorized to do what it did to Iran and surely it is open to any country to refer Iran to the ICJ.

    _Andreas:_ It’s the IAEA Statute, and yes, it’s in there. Why would any other state refer Iran to the ICJ? It’s Iran who makes the ultra vires case, no one else, so surely it’s up to Iran to challenge the UNSC decision in court? I’ve had hours of discussions with Iranian diplomats on this issue, and I have no intention of spending nearly as much time on this blog. But, you may want to do a couple of searches on UNSC and the ultra vires question. Also have a look at the ICJ’s Certain Expenses case.

    Finally, if you don’t think there is such a thing as international law, why do you make legal arguments?

    Andreas – I do think there is such a thing as international law and I believe firmly in the rule of law. The only problems I have are that the USA, the UK and various other countries regularly ignore it when it suits them and fail to apply it equally to all countries. For any of those countries to complain about Iran’s alleged breaches of international law is sanctimonious hypocrisy. It is the USA, the UK et al who don’t really believe in international law!

    For example, the UK Daily Mail has revealed that the US is conducting regular U2 overflights of Iran which if true (and that is a big if with the Daily Mail) is a serious breach of international law and if you don’t believe me just imagine what would happen if the roles were reversed and Iran was making spy flights over the USA. By the way, it seems to me that by making overflights the USA is also breaching the pacta sunt servanda principle with respect to the Algiers Accords.

    _Andreas:_ You need to remember Henkin’s statement that most states follow most of the law most of the time. Breaching contracts are as common on the international level as on the national level. Most of the time, we all do what’s required of us. I believe that, as a lawyer, you do not have the luxury to disregard the law simply because the outcome feels unjust. But this is a very deep philosophical debate, which shouldn’t be carried out on the pages of the wonk! (And yes, unauthorised overflights are a big no no).

  15. hass (History)

    Andreas, when the Iranians agreed to implement the updated subsidiary arrangement and to implement the Additional Protocol, they made it CRYSTAL CLEAR that it was meant as a temporary good faith gesture in the course of the Paris Agreement negotiations. They passed a law to that effect. There was to be no talk about Iran abandoning enrichment either. But that’s exactly what the EU-3 then demanded of Iran, so Iran withdrew the good faith gestures. To say that Iran is nevertheless committed to the expanded subsidiary arrangements is simply folly. But even then, the bottom line remains that Iran did declare this site a full year before it is required to do so under at least its own reading of its safeguards agreement. It is not a “covert” entity, it was not making bombs, it will be subject to IAEA inspections, etc. As much as the US wants to pretend that the Iranians “came clean” just because Iranians understood that the alleged secrecy of the facility had been compromised, it is equally likely that the US is simply trying to spin Iran’s declaration as an “admission” to something nefarious. Lets not forget that if the US believed this site was a violation of Iran’s NPT obligations, all they had to do was inform the IAEA and request a special inspection. That didn’t happen, did it? In fact the IAEA has repeatedly criticized the US for hyping Iran’s nuclear program and providing bad intelligence . Where’s the critical thinking here?

  16. Mehdi

    @Andreas:
    My point was very clear: For many years USA official have kept repeating the provoking statement: All options are on the table to suggest give up your rights to enrichment or our military will give you a visit soon.
    Their proxy state Israel, emboldened by delivery of American bunker buster bombs, has kept repeating military threats towards Iran.
    Now, any nation under constant threat of attacks will move to protect its strategic/technological assets. one way to do so is to diversify and protect locations of such assets.
    So a new site in Qom is the natural and direct result of American and Israeli warmongering tactics.

  17. Ataune (History)

    Andreas, you are absolutely correct, this is a contract between IAEA and IRAN. But, the IAEA position, on June 2009 (that I mentioned in Geoff’s post 2 day’s earlier) is even milder than the US one.

    Given that El-baradei is a lawyer himself and assuredly dispose of a team of experts in the international law, and most of all, given that it is highly probable that he was aware of the existence of the new site under construction at the time of the report, it is a good assumption to make that he doesn’t consider Iran as being in breach of its safeguard agreement by not applying code 3.1.

    Therefore, as the french might put it: Pourquoi etre plus royaliste que le Roi.

  18. Cernig (History)

    Iran says the new plant was part of a dispersal of the civilian program against attack threats.

    http://news.smh.com.au/breaking-news-world/iran-to-put-new-uranium-plant-under-iaea-supervision-20090926-g72e.html

    “Dismissing allegations that the plant has a military purpose, Salehi said the facility is being constructed as a “precautionary measure in case of an unwanted incident against our nuclear programme.” Analysis

    He said Iran’s nuclear installations are facing “threats every day” and so Tehran “had to take measures to disperse” the locations of its installations.”

    Given many years of US and Israeli saber-rattling and the massive investment a nuclear program represents, Occam’s Razor cuts both ways on this one.

    Regards, Steve

  19. M Mir (History)

    Sure you can terminate a mobile phone contract unilaterally. I’ve done it twice. I paid the penalty fee for early termination and we both went our separate ways in full understanding of each other. Iran has certainly paid its penalty fees over the last 30 years for being on the wrong side of the US while trying to develop a nuclear program. Not to even bother taking into account the wholesale breaching by the west of NPT requirements on tech transfer to member states. To go back to your cell phone contract analogy, it is as if I terminated a contract with cell phone company that never allowed me to make a single successful call.

  20. P

    Be it originally or still intended for making HEU for bombs or LEU for energy production, the revelation by both Iran and the USA/UK/France that a 2nd enrichment facility exits or is being completed underlines once again the limitations of using military force to try to prevent Iran from making nuclear weapons. It might be possible to disable or destroy the known fissile material facilities, but any potential real bomb material production facility or facilities might still be hidden elsewhere.

  21. Andreas Persbo

    Hass: When making arguments, please try to keep them separate from each other.

    Again, read up on what exchange of letters mean and focus on the contract between the IAEA and Iran. And read what the IAEA reports on this very carefully. The US view is irrelevant. And Code 3.1. has nothing to do with the Additional Protocol. What made you think that?

    I’m going to consider this discussion closed until you come up with something new and convincing here.

  22. Andreas Persbo

    Atuane: The IAEA position is to agree that Iran and the IAEA disagree. And do recall that there is a conflict settlement provision in the Comprehensive Safeguards Agreement which has not been used.

    It could be that the Secretariat, for whatever reason, is willing to let this slide. Such things happen all the time, but has no legal relevance. Unless the IAEA actually agrees to drop Code 3.1. it’s going to remain in force.

  23. Andreas Persbo

    M Mir. Excellent argument. My analogy wasn’t that precise, was it?

    Of course, the reason you can cancel a contract is because you have a cancellation clause in it. And as you said, you paid the penalty for terminating it prematurely. Note that you paid the penalty after you terminated the contract.

    However, good luck convincing your provider that you’ve already paid your penalty in advance simply because their services are causing you anguish or mental harm!

    Iran doesn’t have a cancellation clause. Read para 39 of its safeguards agreement, para 12 of GOV/2007/22 (for the IAEA’s view on this) and, of course, section 3 of the Vienna Convention on the Law of Treaties.

  24. Arnold Evans (History)

    According to Acton, Iran agreed to modify its reporting requirement in an exchange of letters.

    If Iran in its letter agreeing to implement the modified 3.1 indicated that it would do so permanently, then it clearly is permanently bound.

    If Iran indicated that this was a voluntary confidence building measure, then Iran retains the right to withdraw any voluntary confidence building measure.

    If Iran indicated that it intended for its agreement to be temporary, the IAEA cannot force permanence of the agreement on Iran.

    It really depends on what Iran said in its 2003 letter agreeing to the change.

    I find it plausible that Iran wrote a standard letter that implicitly envisioned a permanent change. In that case, it doesn’t make much difference. Iran has already been reported to the UNSC, and there is no serious claim that there is already nuclear material in the facility – so there is no impact on any question of diversion.

    I also find it plausible that Iran may have been clear that it would voluntarily extend the agreement beyond its legal requirement. If that is the case, it never agreed to a new legal requirement.

    It still doesn’t matter much. The issue at hand is that the US would like to apply as harsh sanctions on Iran as possible, regardless of legality and Iran can respond to any level of sanctions the US succeeds in applying.

  25. hass (History)

    Andreas Code 3.1 and the Additional protocol are very much related because they were both things iran agreed to temporarily and voluntarily implement during the Paris Agreement negotiations as a good faith gesture, without being bound by them. They explicitly stated that their concessions (all of them) were temporary and conditional, not binding. I find this whole discussion of international law rather ridiculous considering the blatant disregard for international law by Iran’s accusers over several decades, much of which amounted to even war crimes (ie: threatening to bomb a civilian, NPT-compliant Iranian nuclear site constitites a violation of the UN Charter and a crime of aggression. Yes, even the THREAT is itself a crime. Not to mention arming Saddam with chemical weapons etc.) So you know what? If Iran is violating some safeguards — GOOD FOR THEM.

  26. Tom F (History)

    The part I find extremely “amusing” about the frequent Irsaeli references in these threads is that it’s entirely irrelevant. Israel is not a treaty signatory where Iran is.

    Apples and oranges. What Israel may or may not do is meaningless in the context of the requirements Iran has voluntarily placed themselves in the position of committing themselves to. Period.

    Secondly the rather vocal defenses of Iran all seem to postulate the current political status quo as continuing forever. Which is particularly disturbing when you look at the creeping “Pasdaranition” of the Iranian political system.

    The appointment of Sadeq Larijani to head Iran’s judiciary system being a good, recent example of that trend. Some of Khameni’s actions post-election seem to reflect an “oh shit” realization that the Mullahs may not have quite as strong a hold on Ahmadinezhad as they thought.

    So fine… the Mullah’s are nothing more than a bunch of warm, misunderstood teddy bears. Can the com mentors here supporting Iran’s position guarantee that will remain the case in 5 years?

  27. Lab Lemming (History)

    Ignoring all the legal crap, hydrofluoric acid and uranium are both byproducts of phosphoric acid production, and Iran has been leveraging its natural gas reserves by increasing H3PO4 capacity. What are the chances that a clandestine UF4 or UF6 stream is being generated there?

  28. Andrew Tubbiolo (History)

    3 Weeks to inspection. This sounds like Clinton’s parting shot at Iraq. I believe it was called “Operation Desert Fox”. Thew news media should begin a hype campaign soon with whoosing sounds, explosions, and spinning graphics with multiple axies of rotation.

    Perhaps a more effective means of arms control would be to restore war powers to the U.S. Congress. For the past 50 years the U.S. has reminded itself that the President is Commander in Chief of the armed forces of the United States, but forget the next few words “when called into the service of the United States.”. Gosh, who does the calling? Well El-Presidente does it today, but by the Constitution that power lies with the Congress. …. The Constitution how quaint….

    Andrew

  29. Dan Joyner (History)

    Dear Andreas,
    I hope you are doing well. I read your post with interest. I think the question of whether this was a breach of Iran’s safeguards agreement is arguable, and I’m still looking at the various documents and trying to reach a conclusion myself. But I just wanted to say at this point the following.
    If this was a violation of Iran’s safeguards agreement it was a very fine one. Very much a technicality with little perceivable injury to anyone – as the facility is still under construction and no nuclear materials are at the site.
    This being the case, I have to ask, am I the only one whose skin starts to crawl when they hear the US or the UK lecturing anyone about a violation of international law? Have we all taken amnesia pills regarding the invasion of Iraq in 2003 in flagrant violation of the UN Charter which has led to devastaion of the country and the unlawful killing of thousands; the violations of international human rights law committed by the US in its torturous prosecution of the war on terror; and, even more specifically relevant in the nuclear context, the continuing violation of the US, the UK and all of the NWS of their obligations under Article VI of the NPT? And it is these countries who now want to lecture Iran about an arguable, technical breach of their safeguards agreement which has caused no injury?
    I do believe in international law. I have watched it being marginalized and breached by the US and UK over the past six years with horror. I also believe in credibility and moral authority. And right now, neither the US nor the UK nor any of the NPT NWS have any credibility or moral authority in criticizing Iran for this safeguards breach if indeed it was a breach.
    Maybe I’ll comment again on the discrete legal question of breach, but I just wanted to give these statements to contextualize the discrete legal question a bit.
    Dan Joyner

  30. JM (History)

    To: Andreas Persbo
    Where is the exchange of letters available? James Acton’s piece links to GOV/2007/22, which in turn references GOV/INF/2007/8 (the exchange of letters). But plugging the INF code into the IAEA search box does not turn up the exchange, only more references to GOV/INF/2007/8. Google doesn’t seem to help either.

  31. Andreas Persbo

    JM:

    It is restricted. However, you can find a copy here: http://www.pmiran.at/sts2007/GOV%20INF%20Subsidiary%20arrangement.pdf

  32. Arnold Evans (History)

    The letters from 2003 are more important.

    Is the statement in which Iran supposedly accepted a permanent change in its reporting requirements available?

  33. Arnold Evans (History)

    It would seem like construction started at some time before March 2007. That is, at a time when even Iran itself considered itself bound by Code 3.1.

    No. In December 2005, Iran’s Parliament required that it immediately end all voluntary gestures of cooperation immediately if its file was moved to the Security Council.

    In February 2006, Iran informed the IAEA that it was reverting to its bare legal reporting requirements. For the Iranians, even if you disagree, this meant the old Code 3.1, it would no longer implement the additional protocols and there were additional measures beyond even the additional protocols that Iran was implementing that it would stop.

    It is very unlikely that the additional enrichment facility was begun before February 2006. At that time Iran’s enrichment industry was truly newborn.

  34. raghar (History)

    Are you doing rule lawyer yet again?

    Unilateral withdrawal from an agreement is of course possible, and sometimes used. Sometimes it takes only one letter.
    “Dear company I decided to withdraw from my cell phone treaty because your behavior interferes with my morals… …in case, your company would believe the lawsuit is the best course of action, I’d feel obliged to issue order to put your employees (and directors) into jail to prevent them from interference with investigations, and I’d issue order to confiscate all computers and data storages of your company until… …I also expect letter of apology.”

    (Thought there are often only 3-4 companies in the area.)

    IAEA is a mere organization, Iran is a large country. An organization should accept it’s not on an equal footing with a government.

  35. Cernig (History)

    Andreas,

    It is always legal to breach a contract unilaterally when the other side hasn’t lived up to it’s word, Andreas. You may have to prove that offense to a judge, but that’s a basic provision of the law of contracts. Bad analogies notwithstanding. I’m not arguing either way on the Iran/IAEA matter here, others can do that, just pointing out the basic legal framework.

    Regards, Steve

  36. Pavel (History)

    I’m not a lawyer, but if I were defending Iran, I would point out at this sentence in the IAEA GOV/2007/22 Report:

    In a letter dated 30 March 2007, the Agency requested Iran to reconsider its decision [to “suspend” the implementation of the modified Code 3.1]

    This implies that IAEA agrees that Iran can unilaterally make the decision to suspend – otherwise it the March 2007 letter should have said that it’s not Iran’s decision to make. It sort of says it, but not quite directly. Instead it says

    I would urge your authorities to reconsider their decision, and to continue to implement the Subsidiary Arrangements General Part that is in effect since 26 February 2003

    This can be presented as an implicit admission that unless Iran reconsiders its decision it will not continue to implement the 2003 version of the Arrangements.

    It is very thin argument, of course, and it doesn’t matter anyway it the facility started before 2007. But I thought it’s an interesting detail.

  37. Andreas Persbo

    Steve, sure, it’s called material breach. So, putting poor analogies aside, someone please enlighten me how the IAEA is in material breach of its obligations under the subsidiary arrangement. Prove material breach to me and I’m more than willing to reconsider my own position on this. I think you’ll find that the Agency has upheld their end of the bargain quite fairly.

    Arnold, you need to have a second look at this. The subsidiary arrangement has nothing to do with the Additional Protocol. It was entered into earlier rescinded later than the Additional Protocol. But, by all means, please provide me with some sort of evidence proving connection and conditionality. It would help if you can find the 2003 letters.

    Iran’s enrichment effort was hardly “newborn” in 2006. It had been ongoing for more than ten years by that time. And if ISIS has the coordinates right, it would seem like this site has been around for quite some time. I can, for instance, make it out on images from January 2006.

    And Raghar, under international law, international organizations are often on equal footing with states. Sometimes, they have powers greater than that of a state, see for instance article 103 of the UN Charter, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”. They should have that power in my own humble opinion, but I’m sure that you and many others disagree with that.

    Pavel, it is a thin argument and it doesn’t square with the advice from the IAEA legal advisor. The letter reads more like, “oh, we’re sorry that you don’t like the deal anymore – please reconsider your position”. There is nothing in there that expresses a Secretariat view on the matter. But the BoG report (highlighted above) is pretty pretty clear. The IAEA does not consider Iran’s withdrawal from 3.1. valid.

  38. Dan Joyner (History)

    With regard to Tom F.‘s post above, it is true that Israel is not a member of the NPT. This fact is very frequently ironically used, as in your post, in order to exculpate Israel and exclude it from examination, when in reality it ought to be the basis for condemnation of Israel’s foreign policy. To put it bluntly, why is it OK that Israel is NOT a member of the NPT? How does Israel have any credibility or moral authority to criticize Iran’s alleged violations of technical safeguards agreements, when the worst kept secret in international relations is that Israel has nuclear weapons? To respond to this question, as you do, by saying, “Well, Israel hasnt signed the NPT,” should not be taken as an exculpatory statement for Israel, but as a condemnatory one, that in the nuclear nonproliferation issue area Israel is to be criticized far more stridently than Iran because it hasnt even taken the fundamental steps that Iran has on nuclear nonproliferation. Perhaps Israel should focus more on its own nonproliferation track record and less on Iran’s.
    Dan Joyner

  39. Cernig (History)

    Andreas, I’m not impuning the IAEA’s actions on the subisduary agreement. Now that you agree you missed a stage in your logic, and have covered that gap, I’m happy.

    Regards, Steve

  40. Hairs (History)

    1/2
    While my heart would like to believe that the Iranian nuclear programme is entirely innocent – and that accusations to the contrary fall in the spectrum from misunderstanding to malicious disinformation – my head just won’t go along with the heart. After all, Iran perceives itself to be set about with enemies, so Iranian politicians and generals would be negligent in their duty to the public if they didn’t pursue all possible means of defence or retaliation. Certainly if the roles were reversed then I’d expect the UK, or the US, to seek nuclear weapon parity with a potential enemy regardless of any treaty that might have been signed, because it’s a sad reality of our world that might so often makes right.

    So, let’s pretend that Iran is pursuing weapons (Hass, FSB, and respected ilk please bear with me). Short of invading the country – and the campaigns in Iraq and Afghanistan don’t make me confident about that option – the only option is to persuade Iran not to develop nuclear weapons. With me so far? Good!

    Now, no country with nuclear weapons has been successfully invaded; very few have even been meaningfully attacked. In contrast stacks of non-nuclear countries have been invaded or successfully attacked since WW2. In particular, on grounds of “WMD” there seemed to be far stronger reasons to invade North Korea than Iraq, yet North Korea was left alone; which suggests that fear of enormous casualties does deter an attack, if not nuclear weapons per se. So, we’re gonna ask Iran to give up this potential in return for what? Increased nut exports to the EU? The opportunity to buy over-priced investment in oil and gas development? OK, the Iranian economy is declining because of sanctions, but scores of countries have survived for decades with poorer economies and the ruling elite still manages to hang on to office.

  41. DZ (History)

    “I think you’ll find that the Agency has upheld their end of the bargain quite fairly.”

    the agencies main task is to help member countries gain access to peaceful nuclear technology after all this is the only reason why member states actually were willing to sign it.

    There lack of assistance to Iran is in essence a breach of the original contract. Everything that happens after that is irrelevant.

  42. blowback (History)

    On the matter of the Iran’s reference to UNSC being ultra vires.
    The IAEA Statute contains one mention of this:

    ARTICLE XII: Agency safeguards…

    (main quote edited away)

    Sub-paragraph A-2:
    To require the observance of any health and safety measures prescribed by the Agency;

    No, not why Iran was referred.

    Sub-paragraph A-6
    To send into the territory of the recipient State or States inspectors (…) (rest of the quote edited away)

    No, not why Iran was referred.

    ARTICLE Xl: Agency projects, sub-paragraph F-4
    Include undertakings by the member or group of members submitting the project: (a) that the assistance provided shall not be used in such a way as to further any military purpose; and (b) that the project shall be subject to the safeguards provided for in article XII, the relevant safeguards being specified in the agreement;

    No, not why Iran was referred.

    No, Iran was referred because […] Bolton and his political masters in Washington decided that it would be and so it was ultra vires!

  43. Andreas Persbo

    DZ: You’re confusing the safeguards agreement with the IAEA Statue. Please tell me where the Safeguards Agreement or the Subsidiary Arrangement stipulates that the Agency shall give unconditional technical assistance in return. I think you’ll find that the document is silent on this point.

    Blowback: Apologies for editing away the quotes. Interested readers have to consult the IAEA Statute themselves. The ultra vires debate has nothing to do with the reasons why the UNSC took a certain decision. The main question is, did the council exceed its authority under the UN Charter when doing so?

    Note that accusations of ultra vires are the oldest play in the book by states subject to a resolution. It’s a play that have never worked. Do a couple of Google searches on this, and diversify your reading list, and you’ll see what I mean.

    By the way, we do not tolerate personal attacks on anyone, however much you dislike someone. So I removed parts of your last sentence. I hope you understand.

  44. blowback (History)

    The UNSC can take whatever decisions it likes, it is an independent body, but the fact remains that the reference by the IAEA was ultra vires which means that Iran was not dealt with in good faith so the principle, pacta sunt servanda, has been breached. If it hadn’t been for the reference by the IAEA, would Russia and China have vetoed the resolution, I can’t say but it is a distinct possibility.

    However, all that is irrelevant. At the same time as I wrote that comment last night, I came across a statement by the legal adviser to the IAEA that covers this point.

    While Iran’s actions are inconsistent with its obligations under the Subsidiary Arrangements to its Safeguards Agreement, this should be seen in proper context. Given the fact that Article 42 [of Iran’s Safeguards Agreement] is broadly phrased and that the old version of Code 3.1 had been accepted as complying with the requirements of this Article for some 22 years prior to the Board’s decision in 1992 to modify it as indicated above, it is difficult to conclude that providing information in accordance with the earlier formulation in itself constitutes non-compliance with, or a breach of, the [NPT-related] Safeguards Agreement as such.

    So it looks like the legal adviser to the IAEA would accept, maybe unwillingly, that Iran’s notification of this new enrichment plant is not non-compliant with Iran’s obligations. So by reporting its actions when it did and assuming that no nuclear material is introduced to the site within the next 180 days, Iran is in compliance with its obligations and this manufactured “crisis” is pointless grandstanding by the USA, UK and France.

    As to the editing, its your blog so I really have no problem with that. But let’s face it, he is a bit…

  45. Arnold Evans (History)

    </i> There is an unclosed italics tag somewhere.

    Andreas – We’re arguing which makes this arguable.

    It certainly is not clear cut that Iran is responsible for the modified code 3.1, regardless of what some IAEA personnel say.

    The IAEA could make a stronger case by providing the language of Iran’s 2003 agreement to be permanently – as opposed to provisionally – bound by the modified code.

    Iran claims it never agreed to be permanently bound and based on the trends at the time, Iran may well be telling the truth.

  46. Andreas Persbo

    Arnold, sure. Anything can happen in law. But if this case every hits an international court, or arbitration, my money’s with the IAEA. You’re free to place your bet wherever you want, but if you review the law and the facts, you’ll see that it’s difficult to reach another conclusion. Like Iran and the IAEA, I suppose you and I agree to disagree. But I’m telling you: you are betting on the wrong horse.

    Blowback, thanks for finding that reference for me. I’d been looking for it for a while. The statement was probably written by Laura Rockwood, and she is the authority on this issue. After all, she’s been at the IAEA since the mid 1980s. She was involved in the strengthening measures in the early 1990s and she was the principal drafter of the Additional Protocol.

    And as for Mr. Bolton. Thanks for understanding that we do want to keep things civil. There are plenty of other blog sites where you can vent your frustration. But not here.

    Steve, you’re an easy person to please. I’m not sure I missed anything. But if you’re happy, I’m happy.

    Everyone, there are tons of unmoderated comments in other threads. Jeffrey and Josh have not had time to go through all of them – they have day jobs while I’m home with a fever. So please be patient with them.

    Also, can I encourage everyone who wishes to comment to stick to the subject matter. We are getting mails urging us to implement a stricter comments moderation policy.

    And I can’t find that italics tag…

  47. DZ (History)

    Andreas in my earlier comment i was not referring to the safeguards agreement or the IAEA Statue I was simply referring to the NPT and its stated purposes; disarmament, non-proliferation and access to nuclear technology. Iran repeatedly requested the latter in the early nineties but it was denied on every occasion for political reasons (even though the same reasons for the need of nuclear technology were accepted in the 70’s). Further more disarmament has not happened either for the obvious reasons. My point is that the whole NPT is invalid and has been breached for the reasons stated above.

  48. Tom F (History)

    @Dan Joyner: “Perhaps Israel should focus more on its own nonproliferation track record and less on Iran’s. “

    ———————-

    Once again that’s irrelevant to the discussion Dan.

    Israel and the NPT is an entirely separate discussion from Iran’s non-compliance with the treaty obligations it voluntarily agreed to.

    If you want to have another discussion about Israel signing the NPT… which I would actually happen to be in favour of BTW… I’ll take it off line with you.

    In the mean time though this is in fact about Iran and it’s obligations and any attempt to divert the topic to Israel and it’s conduct is in fact not germaine to the discussion and utterly irrelevant to the topic at hand.

    Iran has obligations under the treaties it has agreed to and that is quite frankly all that matters here. To use your quote attempting to switch the discussion elsewhere is nothing other than being an exculpatory statement for Iran.

  49. Hairs (History)

    3/2

    It seems my wonderfully erudite 2/2 offering has been swallowed by the aether, so since I didn’t keep a copy, you’ll just have to make do with the executive re-hash:

    If we’re going to persuade Iran to give up pursuit (or even the capability of developing) nuclear weapons, then the offer is going to have to be something pretty good. So how about this:

    1) Iran fully discloses its activities up to the present, and agrees in perpetuity to the most intrusive inspection we can devise.
    2) In return, the USA, UK et al give up their own nuclear weapons, as well as the means of producing them; to be verified by equally intrusive inspections.

    Laughable? Perhaps. But as you, my fellow bunch of wonk-ers, know better than I, it’s what was signed up to years ago in a little observed document called the non-proliferation treaty.

    Journalists have transcribed our politicians’ “ALL options are on the table” so often that their keyboards are becoming worn – and unless I’m much mistaken, offering to give up one’s own nuclear capability in return for Iran (and preferably the rest of the world) having none is AN option. Frankly, I’m disappointed that no journo in a press briefing room has had the courage or nous to challenge our leaders with this obvious solution. Come to that, it’s disappointing that no professional arms-controller is loudly propounding this either.

    There is no justification that any existing (or suspected) nuclear weapon state can give for owning these weapons that cannot be equally appropriated by Iran. If we need them, then why should Iran not need them? The hypocrisy is breathtaking, and also not in compliance with the NWS’ NPT obligations (and were our breath not already taken, I’d say don’t hold it waiting for a SC resolution demanding – under threat of sanctions – that the existing NWS take immediate steps to implement their NPT obligations and disarm).

    I say: If the 5 + 1 are serious when they say ALL options are on the table, then let them offer this option. If they don’t, then my side has lost all credibility, and I’m tempted to cross and join Iran at the barricades.

    Come on fellow wonk-ers, the winter palace is this way…!

  50. Andreas Persbo

    I think we come as far as we can in this thread, so I’m closing the discussion. Thanks to everyone who has commented.

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