Sunday, June 12, 2011

Eric Brill, a US lawyer, analyzes legal issues of the dispute over Iran's nuclear program

Eric Brill has written an excellent analysis of the Iranian nuclear dispute with the United States. Though I vehemently disagree with some of his suggestions for Iran going forward, I highly recommend anyone interested in Iran's nuclear issue read the entire article.

I want to note that I've never seen the arguments Brill presents that Iran is in compliance with the NPT refuted and I have a fairly strong expectation that I never will see them refuted. On the one hand, the dispute is not primarily legal or even strategic, the US and its allies have a sentimental attachment to the idea that Israel should have a nuclear monopoly in its region and no other state should even reach the status of "threshold nuclear power". On the other hand, legalistic arguments are often made by those who sympathize with Israel's nuclear monopoly and Brill's essay can provide a useful counter to that.

Again, if anyone is able to refute these arguments please inform Brill (and let me know also because I am more than interested in seeing criticisms of this). Those who for sentimental-pro Israeli reasons sympathize with the idea that Iran must not be a threshold state, including presidents of the United States, tend to avoid actual argument on the subject because it is a fundamentally unreasonable position.

Iran's Arbitration Argument. Iran's argument predictably would open with a focus on the text of its Safeguards Agreement:

Iran's Safeguards Agreement states clearly what it must do and may not do. That is what Iran agreed to – no more, no less – and it is in full compliance with its obligations.

The IAEA learned in 2003 that Iran had made incomplete disclosures about its nuclear program during the last two decades of the twentieth century, ending in 2003. The IAEA did not claim that any of the activities involved had been prohibited by the NPT or Iran's Safeguards Agreement[39] – only that Iran should have disclosed them. Even so, Iran's disclosure violations were exaggerated by its critics. For example, despite numerous press reports that Iran had illegally concealed its Natanz and Arak facilities, the IAEA never agreed.[40] Nearly all of Iran's disclosure violations involved a small amount of uranium (.13 effective kilogram, as measured under Iran's Safeguards Agreement – 4.6 ounces) that Iran had purchased from China in 1991.[41]

Over the next several years, Iran voluntarily answered hundreds of questions from the IAEA, permitted more extensive inspections than any other country in the world, and disclosed far more about its nuclear program than its Safeguards Agreement calls for. It still does. The IAEA eventually finished its investigation[42] and verified that Iran had not diverted any declared nuclear material. It has routinely verified the same thing in every report since then.

Contrary to the IAEA's assertions, it is not "required by the Safeguards Agreement… to verify that all nuclear material in Iran is in peaceful activities."[43] It is required only to determine whether or not it can make such a verification, and to do so if it can. If it cannot, the IAEA has authority to take certain actions and make certain reports, and it must report to the Security Council, among others, if it finds Iran is in "non-compliance" with its Safeguards Agreement.

Only once, in February 2006, has the IAEA reported Iran's "non-compliance" to the Security Council. Although the IAEA Statute also required the IAEA Board to "call upon [Iran] to remedy forthwith any non-compliance which it finds to have occurred," the IAEA Board did not do so – for a very good reason: Iran's reported "non-compliance" was based entirely on disclosure violations that, according to the IAEA itself, had ended more than two years earlier.[44] Although those violations have led the IAEA to examine Iran much more carefully ever since, it has never found "non-compliance" based on Iran's conduct of its nuclear program since 2003.[45] Instead, it misrepresents to the Security Council that Iran is "required" to take various actions that the IAEA itself acknowledges are entirely voluntary. The IAEA asks the Security Council to transform these voluntary steps into obligations by insisting that Iran's long-ago disclosure violations now require it to provide whatever information, and to accept whatever restrictions, the IAEA deems necessary to verify the absence of undeclared nuclear material.

The IAEA has no such authority under Iran's Safeguards Agreement – nor does the Security Council or anyone else. Although the IAEA now insists it is unacceptable, indefinite uncertainty about undeclared nuclear material is not only an acceptable outcome under Iran's Safeguards Agreement, but one that plainly was contemplated when the Agreement was drafted by the IAEA decades ago. Article 98(O), for example, explicitly excludes uranium "ore" from the definition of "nuclear material" that must be declared, and Article 33 states: "Safeguards under this Agreement shall not apply to material in mining or ore processing activities." Such exclusions would never appear in an agreement whose purpose was to detect undeclared nuclear material. Undoubtedly that is why the IAEA sought to remove them when detection of undeclared nuclear material became important to the IAEA many years later. Article 2(v) of the Additional Protocol, for example, requires extensive disclosures about uranium mines.

Iran's obligations under its Safeguards Agreement may not be increased without its consent merely because the IAEA decided, many years later, to place greater emphasis on detecting undeclared nuclear material and devised a more burdensome inspection scheme to accomplish its new goal – including, for example, the Additional Protocol and revised Code 3.1. Much less does the IAEA's belated emphasis on detection entitle it to venture even beyond the Additional Protocol to ask unending questions about the so-called "alleged studies" files delivered to the IAEA by third parties several years ago. As the IAEA itself acknowledges, even if those files were not entirely fabricated, none of them suggests that Iran has diverted or failed to declare nuclear material, the subject matter of Iran's Safeguards Agreement. Although Iran nevertheless has answered many questions about those files, it is not willing – much less obligated – to reveal sensitive information about its conventional military capabilities merely because the IAEA considers this necessary to satisfy itself about the "alleged studies."

Iran does not dispute that it must declare its nuclear material as required under its Safeguards Agreement, and it has declared all of it. If the IAEA is not persuaded, Article 19 of Iran's Safeguards Agreement requires it "to afford the Government of Iran every reasonable opportunity to furnish the [IAEA] with any necessary reassurance" that Iran has not diverted nuclear material to non-peaceful purposes. The IAEA has afforded many such opportunities to Iran since 2003, and Iran has availed itself of many of them. But Article 19 does not require Iran to continue accepting every opportunity the IAEA may choose to offer. At some point – and that point was reached long ago – Iran fairly may ask that the IAEA accept the same inescapable fact it has accepted for many other countries: No matter what more Iran might disclose, it can never prove that it has no undeclared nuclear material, just as no other country can ever prove this. For dozens of countries, the IAEA has concluded that it cannot determine whether undeclared nuclear material exists. It claims to have reached the same conclusion for Iran. Just as for other countries, such a determination does not mean that Iran has violated its Safeguards Agreement, nor does it give the IAEA a right to impose additional obligations on Iran.

Iran's Safeguards Agreement authorizes the IAEA to report certain matters to the Security Council, but it does not authorize the Security Council to enforce or interpret the Agreement. Only the IAEA,[46] and now this arbitration panel,[47] has that authority. Iran acknowledges that the Security Council may act under the UN Charter if it determines Iran's nuclear program is a Peace Threat. When the Security Council next considers that threshold question, it should be told clearly what has been kept obscure in the past: Except for the parties' Code 3.1 disagreement, the IAEA does not claim that Iran's nuclear program has failed to comply with its Safeguards Agreement since late 2003, and Iran has no obligation to implement the Additional Protocol or to suspend enrichment or reprocessing. Nor, in Iran's opinion, is it required to observe revised Code 3.1. The arbitrators should now decide who is correct and their binding decision should promptly be reported to the Security Council. If the arbitrators rule as we expect, the Security Council will be obliged to acknowledge that it has no basis for demanding that Iran do any of these things.

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