John Carlson sent along a comment about Mark’s post,A Bridge Too Far? Syria & GOV/40. It was too important to bury in the comments, so I thought I would put it here:
Syria and safeguards non-compliance – a “new paradigm”?
John Carlson
In a recent article (Carnegie Commentary 17 June 2011) Mark Hibbs suggests the decision of the IAEA Board of Governors that Syria is in non-compliance with its safeguards agreement sets a “new paradigm” for non-compliance. This is because, according to Hibbs, the IAEA based its assessment on intelligence and other information without inspectors verifying the findings first hand in Syria.
This is not a correct representation of the situation. In fact IAEA inspectors did visit the Dair Alzour site, in June 2008. Despite Syrian efforts to destroy evidence of its activities at the site, inspectors found a significant number of particles of uranium, graphite and stainless steel – all consistent with information indicating there had been a natural uranium-fuelled, gas-cooled, graphite-moderated reactor at the site. The IAEA has since continued to seek access to locations where debris from the destroyed building had been moved, to locations that appeared to be functionally related to the Dair Alzour site, and to further information, but Syrian authorities have refused to cooperate.
Clearly a state’s lack of cooperation cannot be allowed to obstruct the IAEA’s efforts to implement safeguards agreements. Far from being a new paradigm, this non-compliance finding is consistent with previous findings where lack of cooperation with the IAEA has been a major factor, e.g. Iraq, North Korea and Iran. Readers interested in a detailed discussion of safeguards non-compliance are referred to my article NPT safeguards agreements – Defining non-compliance in Arms Control Today, May 2009.
________________________________________________________________
John Carlson was Director General of the Australian Safeguards and Non-proliferation Office 1989-2010, and Chair of the IAEA’s Standing Advisory Group on Safeguards Implementation (SAGSI) 2001-06. He is currently a consultant to NTI and a Visiting Fellow at the Lowy Institute.
Over the next week or so I plan to run a series of guest submissions on compliance issues, including posts by Bob Kelley and Dan Joyner. It should be an interesting debate.
Dan Joyner | July 1, 2011
I think that Mr. Carlson is right in his assertion that the Syria case doesnt represent a paradigm change. But that doesnt mean its not worrisome.
I have read Mr. Carlson’s article, and I can say that he and I do not agree on the character and scope of the IAEA’s legal role in determining compliance with CSA’s. We agree that the IAEA can determine compliance with CSA’s, even through the Agency’s simple inability to verify compliance. However, where I think we differ is in the juridical meaning of that determination. My argument (expressed in detail in my new book) is that the IAEA is not a judicial body, and cannot determine that a party which has concluded a bilateral treaty with the IAEA, such as a CSA, is in breach of that treaty. And indeed, the standards for determining CSA noncompliance in the IAEA Statute and CSA’s themselves, including the ability to find noncompliance through simple inability to verify compliance, as in the case of Syria, support my argument.
Legally you cannot be found to have breached a treaty simply based upon another state or international organization’s inability to verify your compliance. That is a standard completely at odds with the Vienna Convention on the Law of Treaty’s rules on material breach. Think about it in domestic law terms. Can you be found to have breached a contract, or violated criminal law based on a finding of a lack of evidence that you have not breached/violated? Absolutely not.
So what is the point? The point is that the IAEA may be acting within its Statutory rights and powers in finding Syria to be in noncompliance with its CSA, but that does not per se mean that Syria is in breach of its CSA. And it further does not mean that there has been any substantive finding that Syria is in any way in breach of the NPT.
So the referral of Syria to the UNSC by the IAEA BOG is only worrying if people misunderstand what it means. In legal terms it really means very little. Again, all it means is that the IAEA cannot determine whether or not Syria has been compliant with the terms of its CSA. What would be worrying is if the UNSC, as it is wont to do, uses this minor legal finding as a pretext to take disproportionate and imprudent further action.
yousaf | July 1, 2011
It should be remembered that signing on to the NPT was voluntary and not all non-weapons states have reaped the benefits of Art 4.
These considerations have ramifications for getting co-operation any future non-proliferation treaties.
virtualnomad | July 1, 2011
“Inspectors found a significant number of particles of uranium, graphite and stainless steel,” wrote Mr. Carlson
Uranium particle details have never been released, only selectively leaked. What does a “significant amount” mean? 5? 10? 20? 40? 400?
The graphite particle paucity was enough to keep their mere mention out of IAEA reports until the agency’s latest findings issued in May.
Stainless steel particles. Please…
Syria was referred on the Agency’s strong suspicion that Syria was hiding something. The forensic evidence is too weak to prove anything. Unlike other IAEA members which have been referred after admitting to non-compliance, Syria made no such admission.
The BoG referral, which stole UNSC thunder with its reference to “international peace and security,” was cast as an effort to defend safeguards.
Time will tell whether the referral either helps maintain peace and security or helps strengthen future inspection efforts.
masoud | July 2, 2011
John Carlson argues that Syria is non compliance with it’s CSA but I must be missing something: Where has Syria committed to not allow a site within it’s borders that may have contained “uranium, graphite and stainless steel” be bombed to smithereens by state that has amassed the third largest arsenal of WMD in the world?
The fact that the Agency found trace amounts of Uranium at Dair Alzour means nothing in and of itself. For all anyone knows, Dair Alzour was a conventional military site of some import and the trace elements found were deposited by Israeli Munitions. Syria had absolutely no obligations to allow access to Dair Alzour or any related sites.
If the Agency inspectors believed that Dair Alzour was connected to some kind of illicit activity, or that it should have been declared pursued to Syria’s CSA there are remedies available to the BOG specified in the CSA for such a grievance: namely to ask Syria for Article 73 special inspections, try to compel it to cooperate with such special inspections with resolution from the BOG, or failing that Article 22 arbitration.
That the Agency has failed make use of these tools, and has rather adopted a policy of excusing illicit behavior of strategic partners of the US, and targeting nations that have proven to be obstacles to US power projection, is a fair indication that the DG and a critical mass of nations on the BOG now see their primary role as one of advancing US interests.
yousaf | July 2, 2011
Further, before any UNSC sanctions result from this referral a “threat to peace” must be determined in accordance with Chapter VII, Article 41, of the United Nations Charter.
As far as I am aware, this has not been done in the case of Iran. (For which, incidentally, Masoud’s prescription of arbitration as the correct route also stands, in accordance with its CSA.)
If such UNSC sanctions can result from a trigger of nuclear-related activities without a finding of a “threat to peace” (which is unclear and legally unlikely) then they absolutely ought not be limited to NPT member states: this would be a distinct disincentive to joining the NPT. i.e. Such UNSC sanctions should also apply to non-NPT member states such as Pakistan, India and Israel.
It appears that signing on the NPT has made sanctions more likely for member states. The lesson learned will be to avoid all future voluntary arms control initiatives like the NPT and the Additional Protocol.
India, Pakistan and Israel have been treated much better by NWSs than several NPT member states.
Arguably the biggest nuclear-related “threat to peace” is in the subcontinent, but we see no UNSC sanctions being enacted.
Lastly, in my view, Mark Hibbs’ view of the politicization of the IAEA as expressed in his Carnegie write-up is accurate and accords with what most of the nations of the UN think.
wfr | July 2, 2011
Masoud says:
“The fact that the Agency found trace amounts of Uranium at Dair Alzour means nothing in and of itself. For all anyone knows, Dair Alzour was a conventional military site of some import and the trace elements found were deposited by Israeli Munitions.”
Which, of course, is not what the IAEA says:
“The presence of a significant number of particles of anthropogenic natural uranium at the Dair
Alzour site indicates a connection to nuclear related activities at the site and increases concerns about
possible undeclared nuclear material at the site. The Agency has not been able to determine the origin
of the particles. Notwithstanding the lack of response to the Agency’s requests for additional
information concerning the origin of the particles, the Agency’s assessment of Syria’s explanation for
the presence of the particles is that, based on their morphology and distribution, there is a low
probability that they could have originated from the munitions used to destroy the building or by aerial
dispersion as suggested by Syria.”
I think your expression:
“…try to compel it [Syria] to cooperate with such special inspections…”
is amusing, given its record of non-cooperation over the past three years: but I’m guessing that you probably don’t think Syria should cooperate(?).
masoud | July 2, 2011
wfr says
“Which, of course, is not what the IAEA says…”
This is akin to referencing the Bible to prove that objections to the idea that there was a worldwide flood 4000 years ago are asinine.
For starters, what does the IAEA know of Israeli munitions and nuclear sabotage and deception capabilities? Without significant study of those capabilities, how can it possibly determine what is or is not of “low probability?” Has the IAEA analysis been published, or is the world supposed to take for granted that their “analysis” is bullet proof? Does the IAEA now employ “analysts”(or psychics) to monitor the nuclear programs of the countries of the world rather than inspectors? What in the world does “low probability” mean anyway? 35%? Is this one of those situations like when the CIA tells the world it knows with “high confidence” that Iran does not have a nuclear weapons program, but then reasonable people are allowed to turn that on its head completely and argue with a straight face that the unclassified version of that same predictions says the complete opposite? Is “low probability” as determinative an evaluation as “it’s a slam dunk”, to quote the head of an intelligence organ of a member state from which the IAEA seems to obtain most of it’s information and guidance on these matters? Has anyone in the world ever charged the IAEA to declare, or even expressed the slightest interest in what the IAEA deems probable?
With regards to the special inspections, I think if the IAEA put forth a reasonable call for a finite special inspections regime(that doesn’t mean a call to open up all military facilities to inspectors and demanding Asad undergo a proctol examination), and Syria outright refused to abide by it, then the BOG would be within it’s rights to then find Syria in non-compliance.
Anon | July 2, 2011
wrf: If you read your quote from the IAEA you will see that it supports Masoud’s argument:
“The Agency has not been able to determine the origin
of the particles. ”
Period. Everything else is hand-waving.
That the IAEA agrees there is some (but an unquantitative “low”) probability that the U came from Israeli munitions somewhat bolsters Syria’s argument.
And, of course, using Yousef’s (in my view correct) interpretation of when to use “threat to peace” UN sanctions — these sanctions ought to be kicked off against Israel for the bombing raid and its general militant history.
The biggest threats to the peace (in a nuclear sense) are Israel [for bombing raids, state-sponsored collective punishment against civilians etc. and propelling the Middleast arms race] and Pakistan and India. All non-NPT states.
yousaf | July 2, 2011
I mention Chapter VII, Article 41 of the UN Charter above, but the precise conditions for kicking of Art 41 sanctions is actually contained in Art 39:
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.
=================
No such “threat to the peace, breach of the peace, or act of aggression” was mentioned in UNSCR 1747:
http://www.iaea.org/newscenter/focus/iaeairan/unsc_res1747-2007.pdf
So it is unclear to me on what UN Charter Art 39/41 sanctions [enacted in UNSCR 1747] are based.
wfr | July 2, 2011
would you like the IAEA to determine the origin of the particles?
Anon | July 2, 2011
Would I like the IAEA to determine the origin of the U particles?
No, personally I am profoundly uninterested in their origin — I would like the IAEA to use its limited capabilities to track down NPT member states that may be weaponizing under the guise of a civilian program (e.g. Brazil) and to help developing nations gain access to nuclear technology, in accordance with Art 4.
However, should the IAEA choose to investigate the origin of the U particles (after coming under pressure from its Western paymasters to so so) I would suggest they go and compare the composition of the U particles they have in their possession with the depleted U in Israeli bombs. I presume this has been tried and that the Israelis are stonewalling.
When the IAEA has the study of the comparison of the “Syrian” U particles with Israeli munitions please wake me up and we can discuss further.
In the meantime I suggest the IAEA do something constructive like help the UNSC in drafting Chap. 7 sanctions against Israel, India and Pakistan — as mentioned above.
wfr | July 2, 2011
Anon – Thanks for explaining your position. So, when you say that you
“… would like the IAEA to use its limited capabilities to track down NPT member states that may be weaponizing under the guise of a civilian program (e.g. Brazil)”
that would never include Syria – correct?
Jeffrey | July 4, 2011
Thank you for putting such a fine point on it.