IAEA Legal Expert Stifles Neocrazies

On the eve of the September report by Director-General Mohamed ElBaradei – Nobel Peace Prize Laureate as well as Bonkers Bolton’s principal nemesis – to the Board of Governors of the International Atomic Energy Agency, it’s worth reprising his June, 2009 report on Iran.

The Treaty on Non-Proliferation of Nuclear Weapons requires all signatories not already having nuclear weapons to negotiate and conclude a Safeguards Agreement with the IAEA, with a view to preventing diversion of "source or special fissionable material" – whether it is being produced, processed or used in any principal nuclear facility or outside any such facility – from peaceful uses to nuclear weapons.

The IAEA employs periodic on-site inspections and continuous on-site monitoring to verify the correctness of signatories’ reports of "declared" nuclear material and activities.

According to ElBaradei’s June, 2009, report [.pdf], the IAEA Secretariat, for the umpteenth time "continues to verify the non-diversion of declared nuclear material in Iran."

Hence, Iran is in total compliance with its NPT responsibilities.

However, ElBaradei went on to note that Iran is no longer implementing the "modified text of its Subsidiary Arrangements" and has refused to permit IAEA inspectors to "carry out design information verification" with respect to the IR-40 reactor, now under construction.

Modified Subsidiary Arrangements? What the hell is ElBaradei talking about?

Well, way back in December, 2003, Iran signed an Additional Protocol [.pdf] to Iran’s IAEA Safeguards Agreement [.pdf]. And, although not required to do so until the Iranian Parliament ratified it, Iran volunteered to act "in accordance with the provisions of the Additional Protocol, as a confidence-building measure."

Then, in late 2004, Iran also entered into formal related negotiations with the Brits, French and Germans, hoping that by providing "objective guarantees" to the European Union – going far beyond even those provided by the Additional Protocol – that "Iran’s nuclear program is exclusively for peaceful purposes," they could secure "firm guarantees" that the EU would resist pressure from Bush-Cheney-Bolton and provide Iran "firm commitments on security issues."

The Iranians-Brits-French-Germans invited the IAEA to verify Iranian compliance with the voluntary suspension of certain Iranian Safeguarded activities for the duration of the negotiations.

So, in March 23, 2005 Iran offered a package of "objective guarantees" to the EU that included a voluntary "confinement" of Iran’s nuclear programs, to include:

  1. forgoing the reprocessing of spent reactor fuel;
  2. forgoing the production of plutonium;
  3. producing only the low-enriched uranium required for Iran’s power reactors;
  4. the immediate conversion of all enriched uranium to fuel rods.

By any measure, the Iranian "confinement" offer is substantial. The Iranians had intended to "close the fuel cycle" – making new fuel from unburned uranium and plutonium recovered from "spent fuel." Furthermore, they already had the aforementioned IR-40 reactor under construction, which could produce plutonium.

But now we know that – as a result of extreme pressure by Bush-Cheney-Bolton – the EU never even acknowledged this substantial Iranian offer, much less responded to it.

So as a result of these failures of the EU to negotiate in good faith the Iranians announced in the summer of 2005 they would resume the uranium conversion – subject to IAEA Safeguards – that they had voluntarily suspended.

Well, Bush-Cheney-Bolton would not let them get away with that.

So, on February 4, 2006, as a result of strenuous arm-twisting by Bush-Cheney-Bolton, the thoroughly corrupted IAEA Board of Governors outrageously exceeded its authorization, "deeming it necessary" for Iran to;

    • re-establish full and sustained suspension of all enrichment-related and reprocessing activities, including research and development, to be verified by the Agency;
    • reconsider the construction of a research reactor moderated by heavy water;
    • ratify promptly and implement in full the Additional Protocol;
    • pending ratification, continue to act in accordance with the provisions of the Additional Protocol which Iran signed on 18 December 2003;
    • implement transparency measures, as requested by the Director General, including in GOV/2005/67, which extend beyond the formal requirements of the Safeguards Agreement and Additional Protocol, and include such access to individuals, documentation relating to procurement, dual use equipment, certain military-owned workshops and research and development as the Agency may request in support of its ongoing investigations;

Bush-Cheney-Bolton hoped that this outrageous "decision" by the IAEA Board, in violation of the IAEA Statute and the UN Charter, would result in Iran withdrawing from the NPT, itself, making its NPT-related Safeguards Agreement null and void.

But, Iran merely announced it would – henceforth – revert to complying only with its basic Safeguards Agreement.

Now, when it had offered to voluntarily comply with the Additional Protocol, Iran had apparently modified some of the Subsidiary Arrangements to its basic Safeguards Agreement.

There have been many loud allegations by Bush-Cheney-Bolton and Obama-Biden-Susan Rice that Iran’s actions since ceasing voluntary compliance with some (but not all) provisions of a never-to-be-ratified Additional Protocol to their Safeguards Agreement constitute "non-compliance" not only with the Agreement, itself, but even with the NPT.

Wrong!

Here are excerpts from the opinion offered by the IAEA Secretariat Legal Adviser to the question posed earlier this year by the IAEA Board of Governors with respect to Iran’s reported non-implementation of the November 2003 modification to the Subsidiary Arrangements to Iran’s NPT-related Safeguards Agreement.

"While Iran’s actions are inconsistent with its obligations under the Subsidiary Arrangements to its Safeguards Agreement, this should be seen in proper context.

"Given the fact that Article 42 [of Iran’s Safeguards Agreement] is broadly phrased and that the old version of Code 3.1 had been accepted as complying with the requirements of this Article for some 22 years prior to the Board’s decision in 1992 to modify it as indicated above, it is difficult to conclude that providing information in accordance with the earlier formulation in itself constitutes non-compliance with, or a breach of, the [NPT-related] Safeguards Agreement as such.

"Article 19 of Iran’s Safeguards Agreement provides that "if the Board upon examination of the relevant information reported to it by the Director General finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement to nuclear weapons or other nuclear explosive devices, it may make the reports provided for in paragraph C of Article XII of the Statute..:’

"It is thus for the Board to consider and determine if any action by a State that is inconsistent with its Safeguards Agreement rises to a level where the Agency cannot verify that there is no diversion, in which case the Board has the option to take the actions set out in Article XII.C of the Statute, e.g. report the matter to the Security Council and General Assembly."

Since ElBaradei will no doubt report next month to the IAEA Board for the umpteenth-plus time that he "continues to verify the non-diversion of declared nuclear material in Iran," Board members ought to take his word for it.

Of course, some of them may have previously made an irrevocable pact with the Devil; or Bonkers Bolton.

Read more by Gordon Prather

Author: Gordon Prather

Physicist James Gordon Prather has served as a policy implementing official for national security-related technical matters in the Federal Energy Agency, the Energy Research and Development Administration, the Department of Energy, the Office of the Secretary of Defense and the Department of the Army. Dr. Prather also served as legislative assistant for national security affairs to U.S. Sen. Henry Bellmon, R-Okla. -- ranking member of the Senate Budget Committee and member of the Senate Energy Committee and Appropriations Committee. Dr. Prather had earlier worked as a nuclear weapons physicist at Lawrence Livermore National Laboratory in California and Sandia National Laboratory in New Mexico.