Thursday, December 13, 2007

Iran and the NPT

On DebateAnything, Patrick disputes my assertion -- in a 2006 post and recently on that forum -- that Iran violated its obligations under the Nuclear Non-Proliferation treaty. Patrick argues, quoting Wikipedia, that Iran's failure to allow inspections "constituted non-compliance with the IAEA safeguards agreement, not the NPT itself." Patrick is properly sheepish about Wikipedia's authority, especially because it supplies no direct support for this statement, only a link to IAEA's September 2005 findings.

Is Wiki wacky? Yes--its unsupported assertion defies both common sense and the plain words of Iran's commitments.

  • The NPT Treaty: The Nuclear Non-Proliferation treaty does not prevent peaceful uses of nuclear technology (Art. IV), but forbids member nations not already possessing atomic bombs "to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices" (Art. II). The NPT also contains an enforcement provision, Article III.1, which reads:
    Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.
  • IAEA Safeguards: The International Atomic Energy Agency predates the NPT, having been established in 1956 by the so-called IAEA Statute. After the NPT treaty was finalized, the IAEA became:
    the instrument with which to verify that the “peaceful use” commitments made under the NPT or similar agreements are kept through performing what is known as its “safeguards” role. . . The NPT has made it obligatory for all its non-nuclear weapon State parties to submit all nuclear material in nuclear activities to IAEA safeguards, and to conclude a comprehensive safeguards agreement with the Agency.
    In 1970, the IAEA published a template (INFCIRC/153), which says safeguard agreements:
    should contain, in accordance with Article III.1 of the Treaty on the Non-Proliferation of Nuclear Weapons, an undertaking by the State to accept safeguards, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, 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.
  • Iran's Obligations: Iran is a member of the NPT, having ratified in 1970. As conceded in 2003 by Ali Asghar Soltanieh of the Iranian Foreign Ministry, "Iran signed the IAEA Statute in 1958, and signed [a] comprehensive safeguard Agreement with the IAEA in 1973 to facilitate the inspection." The first two articles of the latter agreement--INFCIRC/214--provide:
    BASIC UNDERTAKING

    Article 1

    The Government of Iran undertakes, pursuant to paragraph 1 of Article III of the Treaty, to accept safeguards, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, 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.

    APPLICATION OF SAFEGUARDS

    Article 2

    The Agency shall have the right and the 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.
    In 2003, Iran's Ambassador to the U.K. acknowledged that "Iran signed the statute of IAEA in 1958, and signed [the] Comprehensive Safeguard Agreement with the IAEA in 1973 to facilitate the inspection of Iran's nuclear activities by the IAEA." On May 4, 2004, Iran reaffirmed these commitments:
    Iran has been a party to the NPT since 1970, well before its entry into force, . . . and placing its peaceful nuclear facilities under the full-scope safeguard agreement, is a clear manifestation of our commitment to a strong NPT.
    Indeed, as recently as this spring, Iran's residing representative at IAEA, Ali Asqar Soltanieh, said that his country, like all NPT members, "endorsed the Comprehensive Safeguard Agreement which is referred to as document infcirc/153."


  • The IAEA and UN Position: As my 2006 post discussed, both the IAEA and its Director General were unable to conclude Iran complied with its commitments. IAEA's concerns were transmitted to the UN Security Council, which -- in late 2006 -- adopted Resolution 1737:
    Reiterating its serious concern that the IAEA Director General’s report of 27 February 2006 (GOV/2006/15) lists a number of outstanding issues and concerns on Iran’s nuclear programme, including topics which could have a military nuclear dimension, and that the IAEA is unable to conclude that there are no undeclared nuclear materials or activities in Iran,

    Reiterating its serious concern over the IAEA Director General’s report of 28 April 2006 (GOV/2006/27) and its findings, including that, after more than three years of Agency efforts to seek clarity about all aspects of Iran’s nuclear programme, the existing gaps in knowledge continue to be a matter of concern, and that the IAEA is unable to make progress in its efforts to provide assurances about the absence of undeclared nuclear material and activities in Iran,
    The Security Council adopted a similar statement (Resolution 1747) in March 2007.


  • Analysis: According to Patrick and (unsourced) Wikipedia, Iran breached only the Safeguards Agreement, not the NPT itself. It is true that neither Security Council Resolution, nor the IAEA referral, explicitly says the treaty was breached. In part that is because resolutions are political documents, slimmed to cover the obtainable common agreement. But the lack of specificity also reflects the fact that Iranian limits on IAEA inspections precluded any definitive finding. Such a double negative does not establish treaty compliance, as evidenced by UN officers and organs addressing the issue: "[Iran] was recently found by the International Atomic Energy Agency (IAEA) to have failed to meet its obligations as a State party to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) with respect to the reporting of nuclear imports and the subsequent processing and use of that material and the location of those activities."

    Indeed, safeguards compliance is linked to treaty compliance. As quoted above, NPT Article III requires member states to "accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system." This means that NPT members like Iran took on the additional obligations set forth in safeguards agreements, says Robert Zarate in The NPT, IAEA Safeguards and Peaceful Nuclear Energy (at 19; footnotes omitted):
    By requiring non-nuclear-weapon signatories to submit to full-scope IAEA safeguards in order to verify the fulfillment of their obligations under Articles I and II, as well as other parts of the NPT, Article III effectively establishes a third legally-binding qualification on the “nuclear energy for peaceful purposes” to which signatories have an “inalienable right” under Article IV. That is, to develop “research, production and use” of peaceful nuclear energy “in conformity with articles I and II” means to do so “in conformity with article III.” Thus, Article IV’s third qualification appears to recognize the “inalienable right” of a signatory to peaceful nuclear energy only when the signatory’s nuclear activities are effectively safeguardable by the IAEA, and the signatory complies fully with its obligations under Article III of the NPT and related IAEA comprehensive safeguard agreements.
    In other words, Article III incorporates a member nation's safeguard obligations, and activities inconsistent with the safeguards are outside the safe harbor of NPT Article IV.

    Even were the legal distinction between the NPT and the Safeguards relevant, that would not establish that the latter is somehow less significant than the former, contrary to the intimation of Patrick and Wikipedia. As caddis says, "Isn't that like arguing, 'I didn't violate the constitution when I prevented that person from carrying that picket sign, I just violated the laws that followed the Constitution that allowed him to picket?'" Or, in the alternative, it's like allowing picketers but blinding anyone who might see the signs.

    The Safeguards system was adopted to administer treaty compliance. If a nation violates the safeguards to shelter an atomic weapons program, that program also is contrary to the limits of NPT Article II. The various statements quoted above show that even Iranian officials link Safeguards standards with treaty duties. The contrary result would un-moor the NPT from any practical enforcement. In other words, Wiki's reading renders the NPT strictly advisory.
Conclusion: Notwistanding Patrick and Wikipedia, Article III of the NPT requires non-nuclear signatories to enter into, and follow, safeguards overseen by the IAEA. Iran voluntarily ratified the NPT treaty and committed itself to a set of safeguards. If Iran disregarded the safeguards, it has breached, or at least nullified, the treaty too.

2 comments:

Hass said...

You're not qualified on the topic of NPT law, it appears.

A violation of the NPT occurs when there has been diversion of nuclear material for nonpeaceful uses.

A violation of safeguards occurs when, as in the case of Iran, a country doesn't report the use or storage of nuclear material.

Safeguards violations are relatively common. Egypt and South Korea, for example, had violated their safeguards much more egrigiously that Iran.

The IAEA has a mechanism to address safeguards violations. In the case of Iran, the IAEA has said that the previously undeclared nuclear activity had no relation to a weapons program, and all the nuclear material was accounted for. Thus, there was no violation of the NPT.

Read about it at the site of Lawyer's Committee on Nuclear Policy:

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.[5] The IAEA reached this same conclusion in September 2005.[6]
http://www.lcnp.org/disarmament/iran/undeclared.htm

Carl said...

Hass:

Safeguards agreements are different from the NPT. But, as Zarate’s article shows, Article III of the treaty obliges non-nuclear NPT signatories to agree, then adhere to, their Safeguards Agreement. Iran, all concede, flunks that test.

The Lawyers Committee document you cite omits some of the conclusions of the September 2005 IAEA report. It is true that the IAEA was able to determine that no declared nuclear material had been diverted in violation of the treaty. However, outstanding questions remained about undeclared material not reported by Iran but discovered nonetheless. And, "[g]iven Iran's past concealment efforts over many years . . . the Agency is not yet in a position to clarify some important outstanding issues after two and a half years of intensive inspections and investigation" (paragraph 50). In particular, the IAEA could not confirm that Iran's so-called P-1 and P-2 centrifuge programs were operated for peaceful purposes (paragraphs 46-47). Accordingly, the IAEA concluded (paragraph 51):

"The Agency is, however, still not in a position to conclude that there are no undeclared nuclear materials or activities in Iran. . . In view of the past undeclared nature of significant aspects of Iran’s nuclear programme, and its past pattern of concealment, this conclusion can be expected to take longer than in normal circumstances."

This position also is reflected in the September IAEA resolution:

"(g) Noting that, as reported by the Director General, the Agency is not yet in a position to clarify some important outstanding issues after two and a half years of intensive inspections and investigation and that Iran’s full transparency is indispensable and overdue,
(h) Uncertain of Iran’s motives in failing to make important declarations over an extended period of time and in pursuing a policy of concealment up to October 2003,
(i) Concerned by continuing gaps in the Agency’s understanding of proliferation sensitive aspects of Iran’s nuclear programme, . . .
(o) Noting that the Agency is still not in a position to conclude that there are no undeclared nuclear materials or activities in Iran,"

In sum, as of 2005, Iran operated a centrifuge program using nuclear materials that the IAEA could not confirm was meant for peaceful purposes. This is inconsistent with NPT Article III. Any other construction would validate silence as a way to vitiate treaty obligations.