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27Dec/12Off

IAEA Legal Standards: The Final Round

Note:

Below appears the final exchange (of three) in the colloquy between Dr. Ford, Daniel Joyner, and Andreas Persbo published by the Bulletin of the Atomic Scientists on the subject of whether or not the IAEA was properly applying legal standards vis-à-vis Iran.  The entire conversation is available from the Bulletin, but NPF reproduces the final round here.  (The first two exchanges also appear here and here.)


EXTENDING ABOVE AND BEYOND, by Daniel Joyner

Christopher Ford and I agree on one thing: The IAEA's Comprehensive Safeguards Agreement (CSA) needs to be read clearly. We differ, however, in that I am reading the CSA both clearly and fully as the text is actually written, and not as Ford and Andreas Persbo -- or perhaps the IAEA itself -- might wish that the agreement had been written.

Ford and Persbo have cherry-picked phrases from Articles I and II of the agreement to support their arguments that the CSA provides the agency with the authority to investigate and assess whether there are undeclared fissile materials in Iran. However, they essentially disregard the entire rest of the treaty, which details the agreed processes for the agency's application of safeguards.

It's as if Ford and Persbo want to convince readers that the CSA and the Additional Protocol are one and the same. Under the protocol, the IAEA's mandate and the agreed processes for carrying out investigations and assessments, do allow the IAEA, within limits, to investigate and assess the completeness, in addition to the correctness, of a state's declaration. However, the CSA and the protocol are not one and the same, and the protocol is not in force in Iran's case. Thus, the IAEA's mandate for investigation and assessment in Iran's case must be taken solely from the text of the CSA.

Article I of the CSA is Iran's basic undertaking, while Article II is the agency's mandate. Article II states that the agency has the "right and obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices."

Chiding me for rendering an interpretation inconsistent with the text of Article II, Ford, when quoting the article, rather conveniently omitted the above-italicized clause entirely. But these words are not just superfluous, as his ellipsis implies -- they are essential for a holistic understanding of what Article II means within the context of the CSA. This clauseexplicitly makes the IAEA's mandate in Article II subject to, and circumscribed by, the procedures agreed to in the CSA.

If Ford's interpretation were correct -- and the IAEA's mandate were not limited by the agreed procedures in the rest of the CSA -- it would mean that the agency would have unlimited authority to ensure that safeguards are applied on all fissionable material anywhere within the territory of Iran, by any means the agency considers necessary, no matter how intrusive or compromising of Iran's national security or sovereignty. The IAEA could require Iran to meet any evidentiary standard it unilaterally determined, in order to subjectively satisfy itself of the absence of undeclared materials in Iran (i.e., require Iran to prove the negative).

That is a completely untenable reading of the CSA. No state would ever agree to such a broad and unrestricted mandate for the IAEA. That's why Article II specifies that the agency's mandate is subject to, and limited by, the terms of the agreement. Those terms stipulate in detail the process to be followed for applying safeguards. That process essentially involves a declaration by Iran, and the IAEA's verification of the correctness of that declaration.

The agency, therefore, is simply incorrect when it claims that its mandate under the CSA extends to investigations and assessments beyond the agreement's terms -- i.e., beyond verifying the correctness of Iran's declaration.

-- Daniel Joyner

DON'T ERASE THE TERMS OF THE CSA, by Christopher Ford

Daniel Joyner seems to be having as much trouble reading my earlier essays in this Roundtable as he does Iran's Comprehensive Safeguards Agreement (CSA). He somehow understands my interpretation of the agreement to mean that the IAEA has "unlimited authority to ensure that safeguards are applied on all fissionable material anywhere within the territory of Iran, by any means the agency considers necessary, no matter how intrusive … ." This assertion about my views suggests he never actually read my last essay, however, for in it I made quite the contrary claim.

As I explained, the fact that a CSA fails to provide sufficiently intrusive tools with which the IAEA can carry out its responsibilities is precisely the problem that the Additional Protocol was designed to help solve. As written, Article 2 makes the agency responsible for verifying the correctness and completeness of declarations, but the agreement, itself, fails to provide the agency with adequate investigative authority to do this job. The Additional Protocol was written to remedy this.

This isn't too complicated a point, and it's a shame to repeat it: Far from providing "unlimited" authority to poke around in Iran, the CSA doesn't provide nearly enoughinvestigative authority relative to the verification responsibility with which it saddles the IAEA.

In truth, even though the protocol improves things immensely, it still provides too little investigative authority to permit reliable verification in a country such as Iran, which has a dismal compliance track record and has engaged in systematic denial and deception. Even if Iran were to comply with the protocol as the Security Council has required, therefore, this would only partly solve the problem; this is why the council has commanded Iran to cooperate beyond the scope of what is specified in the protocol.

If Joyner were really interested in protecting the sovereignty of states with CSAs, he should consider what might happen if Article 2 existed today in the absence of the investigative tools that the protocol seeks to provide. A generation ago, the IAEA was willing to assume it could do its job simply by inspecting declared facilities. Having learned from the nuclear work secretly conducted by Iraq, Libya, and Iran in the 1980s and 1990s, however, it now knows that, by using only traditional investigative tools, it cannot verify that safeguards apply to "all" relevant materials and activities.

The agency's standard of proof for reporting to the Security Council is fairly low.  Under Iran's CSA, the agency may report Iran if it "finds that the Agency is not able to verify that there has been no diversion of nuclear material … to nuclear weapons or other nuclear explosive devices." The IAEA doesn't need to show that there has been a diversion, just that it's insufficiently clear that there hasn't.

Without the expanded tools of the protocol, therefore, the IAEA today might have to refer countries -- more often than they deserve -- to the Security Council, simply because the agency is unable to verify non-diversion. The Additional Protocol, therefore, protects countries that follow the rules, because it permits the agency to satisfy its responsibilities in more cases without having to involve the council.

The agency is charged with applying safeguards to all nuclear materials in Iran "in accordance with the terms" of its CSA, and it is precisely those terms that make clear that this responsibility extends to "all" materials. The agency asks that the terms of Iran's agreement be honored, while Joyner asks that they be selectively erased.

Faced with those alternatives, I submit, lawyers must side with the IAEA.

-- Christopher Ford

THE DUBIOUS JOY OF MISPERCEPTIONS, by Andreas Persbo

Aristotle is sometimes credited with saying, "the law is reason, free from passion." If this is true, our Roundtable may not have been one of law. Some arguments seem to have been motivated by passion, and not by reason.

I understand one thing about Daniel Joyner's arguments: that he believes that both Christopher Ford and I should bend to his sense of logic. That I cannot do. His academic credentials do not make his line of reasoning any stronger, and his coherence leaves a lot to be desired. Indeed, Professor Joyner's arguments are full of misinterpretations, cherry-picking (an accusation he levels at others), or impenetrable obscurity. Worse, he seemingly attempts to get around salient points by throwing up bewildering arguments. The latest example is to accuse his fellow debaters of not analyzing the Comprehensive Safeguards Agreement (CSA) holistically against the entirety of the text. At this stage of the debate, this is nothing more than a rhetorical trick designed to seed confusion. The arguments brought forward by Ford and I are clear, and appear to be supported by two former IAEA deputy directors general and one former chair of the Standing Advisory Group on Safeguards Implementation.

If Daniel Joyner reflects on the CSA more carefully, he will see that it enables the agency to conduct "special inspections," which would give it exceptionally broad authority to go anywhere, see anything, and request access to whatever information it desires. Why would the agency need these powers if the agreement were limited to declared nuclear material? The answer should be evident, however, I strongly predict that Joyner might come up with an answer that fits his own world view. Lest we forget, the Greeks once imagined the heaven as a large dome of bronze onto which the constellations of stars were fixed. The explanation made sense to the Greeks. However, as we now know, it was erroneous.

I believe that the safeguards system, a fundamental pillar of the world's common security, is worthy of a more dignified and informed debate. I disagreed with some of Ford's statements, also. For instance, there is a legitimate debate on whether Article XII(c) in the agency's statute, which mostly deals with noncompliance in respect to IAEA projects, was properly applied in Iran's case -- considering that Article 19 of the CSA, which is both more recent and more specific than the statute,  envisions a slightly different way to deal with non-compliance. In particular, before the agency submits a report to the Security Council, the Board of Governors must "afford the Government of Iran every reasonable opportunity to furnish the Board with any necessary reassurance" on the application of safeguards. This Roundtable could, for instance, have examined whether Iran was given every reasonable opportunity to resolve issues in 2006. We also could have debated the dynamic among the IAEA and the United Nations (both intergovernmental organizations with a relationship agreement) and Iran (a member state of both bodies). These discussions were lost in favor of a quarrel over a rather simple interpretative issue. Matters of common security deserve, indeed demand, more stringent contemplation than this.

The IAEA applies far more standards in Iran than we have had the chance to cover. From a legal perspective, they appear to have been applied correctly. Practically, as far as Iran is concerned, it does not matter that much. Iran is refusing to allow the IAEA to conclude that all material that should be declared has been declared. This is not the time, if ever there was one, to allow passion to flow freely into a legal debate.

-- Andreas Persbo

About Dr. Ford

Dr. Christopher Ford presently serves as Republican Chief Counsel to the U.S. Senate Committee on Appropriations. From 2008-13, Dr. Ford was a Senior Fellow at the Hudson Institute in Washington, D.C. Before that, he served as U.S. Special Representative for Nuclear Nonproliferation, Principal Deputy Assistant Secretary of State, Minority Counsel and then General Counsel to the U.S. Senate Select Committee on Intelligence, and Staff Director of the Senate's Permanent Subcommittee on Investigations. A graduate of Harvard College (summa cum laude), Oxford University (as a Rhodes Scholar), and Yale Law School, Dr. Ford was also ordained by Roshi Joan Halifax of the Upaya Zen Center as a lay chaplain in a lineage Soto Zen Buddhism. He is also a student of Grandmaster Dong Jin Kim in Japanese jujutsu (black belt 2nd Dan) and Hapkido (also 2nd Dan), and served from 1994 until 2011 as an intelligence officer in the U.S. Navy Reserve. The author of the books "The Mind of Empire: China's History and Modern Foreign Relations" (2010) and "The Admirals' Advantage: U.S. Navy Operational Intelligence in World War II and the Cold War" (2005), as well as co-editor of "Rethinking the Law of Armed Conflict in an Age of Terrorism" (2012), Dr. Ford has written dozens of articles and essays in international and national security affairs. For a list of his publications, see http://www.newparadigmsforum.com/NPFtestsite/?page_id=1628. The views he expresses here are entirely his own, and do not necessarily reflect the perspectives of anyone else in the U.S. Government.
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