Obama Should Sanctify IAEA Safeguarded Facilities

by , October 10, 2009

Even if you’ve been a faithful reader of these columns, you were still probably unprepared for the decision by the Nobel Committee to award the Peace Prize to Barack Obama for "his extraordinary efforts to strengthen international diplomacy and cooperation between peoples."

Most members of The Best Congress Money Can Buy – the folks that just last week voted to impose even more draconian sanctions (amounting to an act of war under international law) on Iran because it refuses to give up its "inalienable" rights, affirmed in the enabling statute of the International Atomic Energy Agency, reaffirmed in the Treaty on Non-Proliferation of Nuclear Weapons, reaffirmed in every resolution affecting Iran passed by the IAEA Board of Governors and reaffirmed in every resolution affecting Iran passed by the UN Security Council – were no doubt stunned.

As for the Likudniks?

Don’t ask.

Recall that in his first visit to Europe as President, in an electrifying address to a Czech assemblage, seen and heard and applauded throughout the world, Barack Obama stated "clearly and with conviction America’s commitment to seek the peace and security of a world without nuclear weapons."

Then, last month, for the very first time, an American president chaired a meeting of the United Nations Security Council.

Obama challenged other Council members – including the heads of state of Russia, China, Great Britain and France – to "overcome cynicism" about the possibility of a world without nuclear weapons. And, a few days later, the Security Council adopted Obama’s Resolution 1887, which begins by;

"Resolving to seek a safer world for all and to create the conditions for a world without nuclear weapons, in accordance with the goals of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), in a way that promotes international stability, and based on the principle of undiminished security for all,

"Underlining that the NPT remains the cornerstone of the nuclear non-proliferation regime and the essential foundation for the pursuit of nuclear disarmament and for the peaceful uses of nuclear energy,

"Reaffirming its firm commitment to the NPT and its conviction that the international nuclear non-proliferation regime should be maintained and strengthened to ensure its effective implementation, and recalling in this regard the outcomes of past NPT Review Conferences, including the 1995 and 2000 final documents,

"Calls upon all States that are not Parties to the NPT to accede to the Treaty as non-nuclear-weapon States so as to achieve its universality at an early date, and pending their accession to the Treaty, to adhere to its terms;

"Recalls the statements by each of the five nuclear-weapon States, noted by resolution 984 (1995), in which they give security assurances against the use of nuclear weapons to non-nuclear-weapon State Parties to the NPT, and affirms that such security assurances strengthen the nuclear non-proliferation regime."

As should be obvious to everyone, including members of The Best Congress Money Can Buy, the Nobel Committee intends to do what it can to help Obama convert his "commitment" in Prague and his UNSCR 1887 into an action agenda, rather than a mere recital of platitudes.

It is perhaps not inconsequential that a previous winner of the Nobel Peace Prize, Mohamed ElBaradei, the outgoing IAEA Director-General, had addressed Obama’s extraordinary meeting of the Security Council.

ElBaradei began by noting that the NPT-IAEA international nuclear-weapons proliferation-prevention regime "is fragile and has many shortcomings" and that the "IAEA’s legal authority" to "ensure, as far as it is able" that the materials and activities over which the IAEA has been requested to provide oversight "is not used in such a way as to further any military purpose" is severely limited.

Severely limited?

By what?

Well, first by the IAEA Statute itself, which requires the IAEA to

"Conduct its activities in accordance with the purposes and principles of the United Nations to promote peace and international co-operation, and in conformity with policies of the United Nations furthering the establishment of safeguarded worldwide disarmament and in conformity with any international agreements entered into pursuant to such policie;"

Then, there is the NPT which requires a non-nuclear-weapons state to conclude a Safeguards Agreement with the IAEA – which is effectively an international agreement – covering certain NPT-proscribed "nuclear materials" and all activities involving their chemical or physical transformation, "with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons."

So, according to EBaradei and to the IAEA Secretariat’s Legal Adviser, the IAEA’s authority is – or is supposed to be – limited by the UN Charter, the IAEA Statute and by a IAEA Safeguards Agreement.

For example, Article 19 of Iran’s Safeguards Agreement provides that if the IAEA Director-General reports to the Board of Governors that he is – because of some actions the Iranians may have taken or have not taken – unable to verify the non-diversion of Safeguarded materials, then the Board has the statutory option of reporting the situation to the Security Council and to the UN General Assembly for possible appropriate action, under the UN Charter.

However, if the Director-General reports to the Board that he has been able to "verify" the non-diversion of Iranian safeguarded materials, then – statutorily – the Board has nothing to report requiring possible action.

It follows, statutorily, that the Board acted improperly when it made the reports that resulted in UNSC Resolutions 1737, 1747, 1803 and 1835.

It also follows that, under the UN Charter, the Security Council also acted improperly in promulgating UNSC Resolutions 1737, 1747, 1803 and 1835, which improperly "required" Iran to give up certain rights, perversely affirmed by those very same resolutions, and directed ElBaradei to conduct certain investigations and make certain reports in flagrant violation of the legally-binding IAEA-Iran Safeguards Agreement.

ElBaradei was apparently appealing to the Security Council – and later to the IAEA Board – to do what it could to eliminate all those pesky limitations he judges to be "severe."

But that’s not the judgment of the heads of state of the 118-member Non-Aligned Movement. They presented a Statement to the IAEA Board of Governors meeting in June, apparently reaffirming it at subsequent meetings of the UN General Assembly and IAEA General Conference; concerning these improper – illegal, actually – IAEA Board and Security Council resolutions.

In particular:

"NAM reaffirms the basic and inalienable right of all states to develop research, production and use of atomic energy for peaceful purposes, without any discrimination and in conformity with their respective legal obligations. Therefore, nothing should be interpreted in a way as inhibiting or restricting the right of states to develop atomic energy for peaceful purposes. States’ choices and decisions, including those of the Islamic Republic of Iran, in the field of peaceful uses of nuclear technology and its fuel cycle policies must be respected.

"NAM recognizes the IAEA as the sole competent authority for verification of the respective safeguards obligations of Member States and stressed that there should be no undue pressure or interference in the Agency’s activities, especially its verification process, which would jeopardize the efficiency and credibility of the Agency.

"NAM emphasizes the fundamental distinction between the legal obligations of states to their respective safeguards agreements and any confidence building measures voluntarily undertaken to resolve difficult issues, and believes that such voluntary undertakings are not legal safeguards obligations."

But, getting back to Obama’s Peace Prize,

"NAM considers the establishment of a nuclear- weapons-free-zone (NWFZ) in the Middle East as a positive step towards attaining the objective of global nuclear disarmament and reiterates its support for the establishment of such a zone in accordance with relevant General Assembly and Security Council resolutions."

Surprise, surprise. Perhaps emboldened by Obama’s electrifying commitments and actions, the IAEA General Conference in Vienna finally passed a much-introduced resolution – sponsored by Iran and many members of the Non-Aligned Movement – which "Expresses concern about the Israeli nuclear capabilities, and calls upon Israel to accede to the NPT and place all its nuclear facilities under comprehensive IAEA safeguards."

Furthermore, the IAEA General Conference very nearly passed a resolution based upon the following NAM "re-affirmation":

"NAM reaffirms the inviolability of peaceful nuclear activities and that any attack or threat of attack against peaceful nuclear facilities – operational or under construction – poses a great danger to human beings and the environment, and constitutes a grave violation of international law, principles and purposes of the Charter of the United Nations and regulations of the IAEA.

"NAM recognizes the need for a comprehensive multilaterally negotiated instrument prohibiting attacks, or threat of attacks on nuclear facilities devoted to peaceful uses of nuclear energy."

So, now that the Nobel Committee has officially recognized Obama’s efforts thus far, he can and should take the lead in negotiating such a comprehensive international ban.

Meanwhile, he can and should declare that so long as he is President and Commander-in-Chief he will not allow our armed forces to attack any IAEA Safeguarded facility, anywhere in the world.

What will the Likudniks think of that?

Don’t ask.

Read more by Gordon Prather