Treaty loopholes and deception in Iran's relations with IAEA

From GPS website at CNN, November 9, 2011
By Micah Zenko: Iran’s nuclear program and the IAEA

Editor's Note: Micah Zenko is a fellow for conflict prevention at the Council on Foreign Relations, where he blogs. You can also follow him on Twitter. The following is reprinted with the permission of CFR.org.
By Micah Zenko, CFR.org
For those who regularly read the International Atomic Energy Agency (IAEA) reports from the Director General to the Board of Governors on Iran’s nuclear program, the report leaked yesterday was remarkable in scope and detail of its findings. In particular, the annex, “Possible Military Dimensions to Iran’s Nuclear Programme,” listed every step required to make a highly enriched uranium nuclear explosive device and ballistic missile delivery system. An anonymous Obama administration official correctly stated: “It’s a very telltale sign of nuclear weapons work.”
Yet, like the previous thirty-four IAEA Iran reports, this one does not answer the essential question of whether Iranian decision-makers have opted to pursue a nuclear weapons capability. That is an issue of intent, which is a judgment call that the Statute of the IAEA does not authorize the agency to attempt. The relevant statute authorizes the IAEA:
“To establish and administer safeguards designed to ensure that special fissionable and other materials, services, equipment, facilities, and information made available by the Agency or at its request or under its supervision or control are not used in such a way as to further any military purpose.”
In the recent discussions over whether Iran is pursuing a nuclear weapon and how the international community could respond, some history and perspective might be useful.
Iran signed the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) on July 1, 1968. Under the NPT, Iran agreed that it was a non-nuclear weapon State Party to the Treaty, which prohibits Iran from receiving, manufacturing, or otherwise acquiring nuclear weapons or nuclear explosive devices. Furthermore, like most other non-nuclear weapons State Parties to the Treaty, Iran was required to enter into a NPT Safeguards Agreement with the IAEA, which it did in May 1974. (As of June, fifteen non-nuclear weapons State Parties have not yet signed such a safeguard agreement with the IAEA.)
The May 1974 NPT Safeguards Agreement has ninety-eight articles, which lay out in detail the rights and responsibilities between the IAEA and Iran as a signatory to the NPT. Articles I and II of that Safeguards Agreement are worth recreating in whole, because they are the crux of the ongoing eight-year dispute between Tehran and Vienna over whether Iran is living up to its NPT obligations:
Article 1
The Government of Iran undertakes, pursuant to paragraph 1 of Article III of the [NPT] 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.
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.
To strengthen the authority and effectiveness of the IAEA at verifying that non-nuclear weapon State Parties—such as Iran—are not using their permitted civilian nuclear programs for prohibited military purposes, Tehran also signed an Additional Protocol of its Safeguards Agreement with the IAEA in December 2003.
Despite the headline-grabbing findings in the IAEA report’s annex, the crucial issue for the international community is found in one sentence:
“As Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.”
Therefore, the issue of Iran’s suspected nuclear weapons activities is a function of whether a technical agency—classified as an “autonomous international organization” under an arrangement between the U.N. and the IAEA—can verify that a member state is complying with a thirty-seven year old mutual agreement. Since Iran first acknowledged in 2002 that it has pursued a covert uranium enrichment program since the mid-1980s, the answer has been no. The IAEA is mandated to continue working with Iran to assure that it complies with the non-proliferation agreements that they endorse.
Again, this does not mean Iran’s decision-makers have decided to pursue a nuclear weapons capability, which many U.S. policymakers have assumed since at least January 1994, when then-Undersecretary of State Lynn Davis stated: “Iran’s actions leave little doubt that Tehran is intent upon developing a nuclear weapons capability. They are inconsistent with any rational civil nuclear program.” Unfortunately, rationality is rarely the sole driving factor behind whether a government decides to become a nuclear weapons power.
The views expressed in this article are solely those of Micah Zenko
First, thank you to Mr. Zenko, for his meticulous and scrupulous "parsing" of the relationship between Iran and the IAEA, in terms of the specific articles.
However, while the "devil is always in the details," the devil also knows precisely how to slip through the inevitable loop-holes in those details. From the perspective of the West, there can be little if any doubt that Iran is "the devil" in all discussions about a potential nuclear weapon, and the threat of its use, particularly against Israel.
We can all bet safely that lawyers in Israel and in the State Department are poring over the words of this piece along with the original documents, in an effort, (if you will pardon the mixed metaphor, to grab hold of the slippery, loose mercury (Iran's intentions) with respect to nuclear weapons. And any statement to that effect, even after parsing, leaves the reader or listener gasping for clarity, like grabbing for a floating dust particle in the afternoon sunlight.
Meanwhile, "spokespersons" in both Washington and Tel Aviv are public convinced that they do not have to harbour an ambiguity about Iran's intentions. Most moderate, western readers of the Zenko piece would not be under much confusion either.
The real question, after all the bafflegab, is: "What to do about Iran?"
Sanctions seem to have been only modestly successful. There are certainly enough boiling pots on the desk of the Secretary of State's desk, and even more on the President's desk, that Iran knows it will not face a military threat, with U.S. sanction in the immediate future. Israel continues to issue threats, leaving some wondering if the muscle of those threats is wearing thin from over-exposure.
With the debt-deficit crisis in the financial world over-shadowing the potential development of nuclear weapons by Iran, can there be any doubt that, if Iran intends to produce nuclear weapons, the time is now, under cover of the many distractions facing world leaders?
Tying all the loose ends in any treaty tightly is virtually impossible, as this Zenko piece demonstrates; attempting a policy of absolute control would inevitably result in few if any signatories to any treaty. However, implementing a policy of "zero tolerance" is equally fraught with peril, especially in the "foggy-bottom" world of international diplomacy. Duplicity thrives in such murkiness, and between the "articles" that cover that murkiness...and Iranian murkiness is proving to be a most intractable and a most evasive intent even to the experts, resulting in a "proceed -with-all-caution" approach in such danger.
And just as the financial crisis has serious implications for everyone in all countries, so does the potential development and deployment of nuclear weapons by a rogue state like Iran. And in both cases, there is no international body with both memberships and political clout to enforce a clear and sustainable policy of both prevention of rising danger, and protection for the billions of innocents.
Certainly gives new meaning to the need for collaboration among all countries interested in survival and protection of their people, not only Israel.