President Obama’s re-election last month raised hopes that the US government would at last be in a position, politically, to work with Iran towards a negotiated settlement centred on confidence-building and the provisions of the Nuclear Non-Proliferation Treaty (NPT). This was the basis of the understanding reached this April in Istanbul. It was therefore [...]]]> via Lobe Log

President Obama’s re-election last month raised hopes that the US government would at last be in a position, politically, to work with Iran towards a negotiated settlement centred on confidence-building and the provisions of the Nuclear Non-Proliferation Treaty (NPT). This was the basis of the understanding reached this April in Istanbul. It was therefore a little puzzling that during the International Atomic Energy Association (IAEA) Board of Governors meeting on 29 November, the US representative was once more engaging in a diplomacy of threats and ultimata.

The issue under discussion was the absence of progress in relation to clarifying concerns about past, but also possibly ongoing, Iranian activities of a non-peaceful nuclear nature, often referred to as a “possible military dimension” (PMD). The US representative asserted that Iran could not be allowed indefinitely to ignore “its obligations” and implied that in the event of a continuing absence of progress when the Board meets in March, the US will argue for Iran to be found in non-compliance with those obligations.

This raises two questions. To what extent is Iran in non-compliance with its IAEA obligations in failing to cooperate to resolve these concerns? And, is Iran likely to become more cooperative as a result of this threat?

It is widely accepted that Iran’s safeguards agreement with the IAEA entitles the agency secretariat to verify not only that all nuclear material declared by Iran remains in peaceful use, but also that such declarations are correct and (most importantly) complete.

Notably, paragraph 73 of the standard NPT safeguards agreement (to which Iran is subject) states that the IAEA may request a special inspection if it deems information made available by a state inadequate for the Agency to fulfil its official responsibilities.

So, insofar as Iran is failing to cooperate to resolve concerns which may reasonably imply the existence of undeclared nuclear material, there is a case for saying that Iran is in breach of its obligation to cooperate.

However, in this instance it’s questionable whether all the activities for which Iranian cooperation has been sought imply with adequate credibility the possibility of undeclared nuclear material. These activities were described in the annex to GOV/2011/65 of 8 November 2011 (the IAEA report used to build support for further sanctions at the turn of the year). A careful reading of that annex suggests that several of these activities, maybe even the majority of them, would not have involved nuclear material.

Of course it could be argued that PMD activities not involving nuclear material, such as missile warhead design work, can imply that at some future stage a state intends to acquire nuclear material which it does not intend to declare. That, however, seems a very tenuous basis on which to base an IAEA non-compliance finding. Moreover, it would also imply that all states that have engaged, even as a precautionary measure, in research into any aspect of the design or construction of nuclear devices should be found non-compliant.

So, my first conclusion is that if the US decides in March to accuse Iran of fresh non-compliance, it should take care to focus the accusation on activities that can reasonably be suspected of involving the use of nuclear material and are manifestly not the figment of some other state’s imagination.

However, to come to my second question, is proceeding in that way likely to be productive? The experience of the last seven years suggests not. Each time the West has resorted to punitive or coercive measures to influence Iranian behaviour, the results have been either unproductive or, worse, counterproductive. Iran was far more cooperative when, between October 2003 and April 2005, a less aggressive diplomacy was used to influence Iran’s leaders.

Furthermore, for some time there have been hints that Iran’s failure to cooperate in resolving PMD concerns is not its last word. On the contrary, cooperation can be expected in return for Western flexibility on sanctions and certain assurances in the context of an overall settlement based on the provisions of a treaty to which Iran insists it’s committed to, the NPT.

Moreover, if Iranian suspicion of Western good faith is one of the greatest obstacles to achieving an agreement, then the priority in the coming months should be to overcome that suspicion. This will not be achieved by seeking yet again to unite the IAEA Board in a humiliating condemnation of Iran, least of all if the legal grounds for that condemnation are not watertight. On the contrary, securing a further IAEA non-compliance finding would be a rum way to go about convincing Iran’s Supreme Leader that the US should no longer be seen as the Great Satan.

If, nonetheless, the US persists on the non-compliance course and succeeds, what then? Will Russia and China allow Iran to be penalized in the absence of evidence that it has decided to make nuclear weapons and therefore constitutes a genuine threat to international peace and security? If they do, will Iran pay any more heed to such a resolution than it has to the five previous Chapter VII resolutions of dubious legitimacy?

It’s certainly desirable that light be shed on suspected research into nuclear warhead construction and delivery, especially if it involved or involves undeclared nuclear material. But at last US voters have created political space for the West to revert to less aggressive, less confrontational tactics. At last the West can afford to experiment with a more exploratory, empathetic approach. It would be a pity to squander that opportunity.

The Bulletin of the Atomic Scientists is hosting an online discussion on Iran and International Atomic Energy Association (IAEA) compliance standard. Authors include Arms Control Law blogger Daniel Joyner, the Hudson Institute’s Christopher Ford, and Vertic’s executive director, Andreas Persbo. Last week, Joyner, a law professor at the University of [...]]]> via Lobe Log

The Bulletin of the Atomic Scientists is hosting an online discussion on Iran and International Atomic Energy Association (IAEA) compliance standard. Authors include Arms Control Law blogger Daniel Joyner, the Hudson Institute’s Christopher Ford, and Vertic’s executive director, Andreas Persbo. Last week, Joyner, a law professor at the University of Alabama, wrote that the IAEA is overstepping its bounds with the two additional and separate legal standards included in the Director General’s Board of Governor’s report:

I think that the two additional legal standards are ultra vires, or beyond the authority, of the IAEA to apply to Iran and to be the basis for investigations and assessments by the IAEA. The only lawful standard for the IAEA to apply is the clear standard from Article II of Iran’s CSA, i.e. that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use.

It must be remembered that the IAEA is not a general policeman of international nuclear energy law. It is not the “UN’s nuclear watchdog,” as the media is so fond of calling it. The agency is an independent international organization, which was created through a treaty — an instrument of international law. As such, it has only the international legal personality and the limited mandate of legal authority, which are provided both in the agency’s statute and in its bilateral Safeguards Agreements with member states.

Now for the kicker:

So what does this mean in application? It means that the current director general and his predecessor have consistently assessed in their reports to the Board of Governors that, according to this one lawful standard, Iran is in full compliance with its IAEA safeguards obligations.

It also means that, since Iran neither has an Additional Protocol in force with the IAEA, nor is under any legal obligation to conclude one, the fact that the agency is “unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities” — standards derivable from the protocol — is legally irrelevant.

Furthermore, it means that the IAEA does not have the legal authority PDF to either investigate possible military dimensions, or the weaponization, of Iran’s nuclear program, or to publish reports making assessments on this issue, as it did in November 2011.

It’s not easy for a European observer of US politics to understand why the US Congress seems so much more concerned by Iran’s nuclear activities than by those of North Korea (the DPRK). Congressional pressure on the White House to put a stop to Iranian activities seems never-ending and Congressional majorities [...]]]> via Lobe Log

It’s not easy for a European observer of US politics to understand why the US Congress seems so much more concerned by Iran’s nuclear activities than by those of North Korea (the DPRK). Congressional pressure on the White House to put a stop to Iranian activities seems never-ending and Congressional majorities for anti-Iranian resolutions are staggering. In comparison, when did Congress last pass a resolution requiring the administration to take action against the DPRK?

On the face of it, this makes little sense. To a European, North Korea looks to be a greater and more actual threat to US interests than Iran.

North Korea is sitting atop enough plutonium for perhaps a dozen nuclear weapons. Two underground nuclear tests have shown that the North Koreans are able to put together nuclear devices, though experts surmise that these are still somewhat rudimentary.

North Korea has also acquired the capacity to enrich uranium. Western experts have seen a relatively small enrichment plant at the main DPRK nuclear research centre. There has been speculation that there exists a larger plant deep within the mountains in the North of the country.

Iran has no plutonium. Iran possesses enough low-enriched uranium for half a dozen nuclear weapons but has so far shown no sign of wanting to enrich this material to the 90% level required for weapons. The Iranians are not suspected of having conducted nuclear tests; they may not be capable of assembling a workable nuclear explosive device.

North Korea expelled the inspectors of the International Atomic Energy Agency (IAEA) at the end of 2002, and has only allowed them back in for a brief period since. Over the last ten years no state has received as many IAEA inspections as Iran, whose two enrichment plants were declared to the IAEA before they started to operate.

North Korea withdrew from the Nuclear Non-Proliferation Treaty (NPT) in early 2003, having failed to correct the nuclear safeguards non-compliance declared by the IAEA in 1993. Iran corrected its pre-2004 safeguards failures within two years of their discovery; it expressed regret over these transgressions; and ever since it has affirmed the fullest of commitments to the NPT, to which it became a party fifteen years before the DPRK.

North Korea’s nuclear weapons are viewed as a threat by two of the US’s most valuable allies: Japan and South Korea (the ROK). These two allies are crucial to the US’s defence of its strategic interests in the Western Pacific. In the event of hostilities between the US and China (heaven forefend!) Japan would offer the US vital staging facilities, akin to those the US would have enjoyed in the UK if the US needed to go to war on the European mainland.

US strategic interests in South West Asia are on the wane. The US is now self-sufficient in natural gas and imports less than 12% of the crude oil it consumes from the Gulf; it could quite easily switch to African and American suppliers if Saudi and Iraqi supplies were threatened. Over the last decade the risk of Iraqi transfers of WMDs to Al Qaeda and Al Qaeda acquisition of safe havens in the Middle East has been eliminated (albeit at a price!).

Since the end of the Cold War, over twenty years ago, no single power has been capable of challenging US influence in South West Asia, whereas China is increasingly seen in the US as an emerging challenger to the US in East Asia.

When it comes to making belligerent noises, Iran’s leaders can’t hold a candle to those of North Korea. And the average alienist would surely find it easier to treat the former than the latter.

In 2011 US merchandise exports to the Far East were worth $286 billion and imports $718 billion. Comparable figures for South West Asia, including Turkey and Israel, were $71 billion and $108 billion. Far Eastern investors supply the US with a far larger percentage of external credit than do Middle Eastern investors. Far Eastern corporations are major employers and tax-payers in the United States.

All of these very basic facts must be familiar to Congressional staffers, if not to members of Congress. So how can one explain the disproportionate attention that Congress pays to Iran’s nuclear activities?

I have a theory. But I think it would be more appropriate for me to leave readers to come up with their own answers. I suspect that most will be honest enough to admit to themselves that they have a pretty shrewd idea as well.