It’s mid-September, so it must be Vienna, and that means it’s time for another spin on the Prater with the IAEA Board of Governors followed by the annual IAEA General Conference. After that there’s one more board meeting on Sept. 26, and, and before you know it, the Riesling vines in Alsace are turning yellow, and I’ll be ready after all this IAEA stuff in Vienna for a quick swing back through the byways of the Route de Vin in Haut- and Bas-Rhin on the way home, inspired this time by a summer reading of Buerger und Soldaten, Alfred Doeblin’s fine novel on the last days of World War I in Strasbourg and Hagenau.

Business before pleasure, however.

DPRK and Israel: A Preludium

IAEA aficionados generally consider the BOG and the GC as discrete and separate events, and so they are, so they are. But this time the relationship between the two meetings is even a little noteworthy.

There’s a double whammy on the DPRK: The BOG tabled the item “Application of Safeguards in the Democratic People’s Republic of Korea,” as item 6c of GOV/2011/46. This being Tuesday, that might come up tomorrow Wednesday. Next week, we’ll see the same agenda item as item 19 GC/55/1 and GC/55/1/Add.1.

The GC first. The DPRK item is on this year’s agenda because of operative paragraph 10 of this resolution from GC/54.

For this year’s meeting, Director General Yukiya Amano has prepared this report. It was provided to the BOG and the GC a couple of weeks ago.

This report is not without interest. Look, for instance, at Paragraphs 33 and 34. These describe accounts of information which the DPRK provided a Stanford University scholar and ex-LANL director and a private citizen, Sig Hecker, who traveled to the DPRK on non-official business and was briefed by the DPRK on the status of its uranium enrichment programme, including a peek at what Hecker thereafter described as a full-blown and apparently operating centrifuge enrichment plant.

The length of this report on the DPRK might appear to the casual observer as rather unusual, especially given the fact that IAEA safeguards personnel have not been to the DPRK to do inspection-related work since 2008. During the last three years or thereabouts, the agency has received no new first-hand information from its verification activities in that country to report to member states.

Let’s recall that over two years ago, when IAEA Arab states asked Amano to report to the 2010 GC on “Israel’s nuclear capabilities,” which they included on the agenda of GC/54, Amano likewise had little to report back because, as IAEA secretariat officials then pointed out, outside of a very limited number of nuclear activities which are covered under an Infcirc/66 safeguards agreement between Israel and the IAEA, the IAEA has no official information from Israel about its other nuclear activities–the ones that the Arab states are really interested in–because these are not subject to IAEA safeguards. Amano’s report to GC/54 was accordingly extremely perfunctory. Arab states were disappointed, but in fact Amano had little to tell them.

And the DPRK? Amano’s report on September 2 provided the board and the GC an extensive wheeze through North Korean nuclear history. We may hear later this week or next week during the GC about some member states’ misgivings about including the details of Hecker’s trip report from his visit to the nuclear research center in Yongbyon. According to some people at the VIC the last couple of weeks, including this information in the Amano report to the board was unusual, because the Hecker account could not be construed to be “official information” provided by an IAEA member state to the IAEA but was third-party information unverified by the IAEA and therefore might in a legal sense even qualify as hearsay. (Again, think about how the IAEA handled the Arabs’ request for information on Israel’s nuclear weapons activities–the Secretariat wouldn’t touch unverified or unofficial third-party claims about Israel’s nuclear weapons capabilities with a 10-foot pole.)

Shortly after Amano provided his DPRK report to board members and circulated it to member states preparing for the GC, the IAEA Department of Safeguards as usual held a closed-door technical briefing at the VIC for IAEA missions and staff about the contents of its findings reported to the BOG (this time, in addition to DPRK, also Iran).

During that briefing, Ali Asghar Soltanieh, Iran’s IAEA ambassador–who usually has a lot to say about what the IAEA presents during these briefings–raised questions about the procedure by which the Director General reports findings to the BOG on member states’ nuclear activities. The Iranian Ambassador didn’t specifically raise any problems with the Hecker material being included in the DPRK report. But Soltanieh’s remarks in the view of some observers appeared to suggest that Amano’s decision at this time to provide the BOG an extensive overview on North Korea’s nuclear programme was irregular and served a hidden agenda.

Iran and GOV/INF/500/Rev 1

In fact, another IAEA document–there really are no end to these, in this case GOV/INF/500/Rev.1, a.k.a. “Provisional Rules of Procedure of the Board of Governors as Amended up to 23 February 1989″–spells out that it is largely at the discretion of the Director General to decide whether he will report anything to the BOG at or in advance of a board meeting.

  • Rule 8a: “The Director General shall… bring to the Board’s notice as a matter of urgency any fact which may require its intervention, in order to enable it to take any necessary action within the scope of its functions.”
  • Rule 10: “Under the direction of the Director General, the Secretariat shall prepare papers on any matter submitted to it by the board… and generally perform all other work which the board, its committees and other subsidiary bodies may require.”

Then there’s the agenda of the board meetings themselves:

  • Rule 15: “The Director General shall prepare, inconsultation with the Chairman, or, in his absence of disability, the Vice-Chairman  acting as Chairman, the provisional agenda for meetings of the board. The provisional agenda shall include:… (b) all items referred to the board by the General Conference… (c) All items the inclusion of which is requested by any member of the agency … (e) reports of the Director General, including reports concerning action taken on decisions and recommendations of the board.”

Now,  Ambassador Soltanieh appeared to suggest in his remarks during that internal briefing this month that the IAEA secretariat was about to depart from established procedures by permitting any member state from requesting a report on a state’s nuclear activities. Rule 15c however might suggest that Amano could decide to report to the BOG on the DPRK on the basis that just one member state may have requested such a report.

In theory, it would appear that Rule 15c would permit any member state on the  board to clog up the agenda of the board meetings with agenda items or reports which could result in a filibuster of the BOG.  In practice, over the years it has been the practice that a consensus rule has been applied to prevent that from happening. In recent years, as we know, however, that consensus has been abandoned on a lot of important issues.

In any case, under GOV/INF/500/Rev.1 it would appear there is nothing to prevent–let’s just assume my hunch may be right about this–that, say, maybe the ambassadors from the Republic of Korea and Japan have a chat with Amano and encourage him to provide a helpful comprehensive and historical overview of the DPRK’s nuclear activities. (A pundit last week suggested to me more than just a little facetiously that maybe Japan might remind the DG that Japan pays about 18% of the IAEA’s budget in this regard… I’m not saying that anything like that happened, mind you, but, as one IAEA lawyer once told me, “All IAEA states are equal, but some are more equal than others…”)

So why a detailed account of DPRK’s nuclear history right now? On this issue I can’t confess to know what makes the board tick, but I was informed at the last board meeting that the BOG’s Syria resolution, which cited Damascus for non-compliance following a report to the board on Syria which had been requested by governors, was seen as a dry run for pending non-compliance resolutions on the DPRK, first, and then Iran.

And my hunch is that Iran is a little concerned about that possible outcome, and may well make some diplomatic moves before the next board meeting to try to deter it.

We can be sure there won’t be any such resolutions served up by the time this week’s BOG ends, probably on Thursday. But that could happen in November, or if not then, then in early 2012. As in the case of Syria in June, whether that happens may depend on Amano’s future course of action, as I argued here.

The Director General’s Next Move

What are the Director General’s options, should he decide to go that route? Well, as I see it off the bat there are two possible options:

  • OPTION A: AN ASSESSMENT OF PMD IN IRAN. Amano could provide an assessment of Iran’s nuclear program, including the information which the IAEA has compiled on the topic of a “posssible military dimension” in that program. On the basis of such a report, the board could rule Iran in non-compliance and report that finding to the UN Security Council.
  • OPTION B: AN AMANO CITATION OF IRAN FOR NON-COMPLIANCE. Amano could go further and on behalf of the IAEA Secretariat cite Iran as in non-compliance with its safeguards obligations. The IAEA board could then in effect rubber-stamp that finding in a consensus resolution and report that finding to the Security Council.

Let’s look a little closer at each of these two options.

AMANO’S ASSESSMENT OPTION:

The IAEA has in its Iran safeguards portfolio a dossier of information concerning the PMD issue. As in the case of the information it had on allegations that Syria had built a clandestine plutonium production reactor–allegations which were the backbone of the BOG’s June determination that Damascus was in non-compliance–in the case of Iran the IAEA likewise has two sets of information: one set comprising information it has been provided by member states, and a second set of information which the IAEA itself compiled–as in the case of Syria, including in the field and on the ground.

How good and how credible is that information? Iran asserts that it is all fabricated. The IAEA doesn’t share that view. Now, in the Syria case, Amano and the Secretariat applied a “credibility scale” recently derived by the Deparment of Safeguards to categorize information it has obtained which potentially point to significant and undeclared activities in a member state. The scale is similar to a scale used by intelligence analysts at US national laboratories. In the case of Syria, Amano reported to the board that the cumulative information suggesting that Syria had built a reactor at Al-Kibar was “very likely.”  “Very likely” is at the top of the IAEA scale, and means that the IAEA Department of Safeguards is highly confident that its conclusion is accurate and correct.

How credible is the IAEA’s information that it would prompt the conclusion that Iran has carried out activities to develop a nuclear weapon? If it is good enough for the IAEA to deem it “very likely,”  that’s actionable by the board and could be cited as non-compliance by Iran, if as in the case of Syria in June, the board strongly takes into consideration that Iran has refused to discuss with the IAEA the PMD allegations in any detail. (For both Iran and Syria, the non-cooperation with the IAEA on these matters extended for three years.)

Obviously, if the information isn’t that credible, and the IAEA instead classifies it as likely, less likely, or unlikely, then the governors–if they know what is good for them–won’t take the risk that a non-compliance finding would be based on bad and politically motivated information.

AMANO’S NON-COMPLIANCE CITATION OPTION:

Let’s suppose Amano is as confident about his data on PMD in Iran as he was about the Syrian reactor construction. In other words, that the Department of Safeguards is highly confident that Iran has pursued activities or is pursuing activities for the development of a nuclear weapons capability.  Amano might then simply declare Iran in non-compliance with safeguards. In that case, doing this would provide some definite advantages:

  • It would give the  board, 151 member states, and the rest of us a solid imprimatur from the IAEA that Iran is not in compliance with its legal obligations under international law.
  • It would in that case (as John Carlson argued in that recently leaked cable) deprive Iran of legitimacy for its nuclear program under its NPT safeguards agreement.
  • A technical finding by the IAEA Secretariat (as opposed to a politically contentious determination by the board of governors) would be less likely to be interpreted as a subjective and motivated judgment.
  • It would also make it more likely that, in response to the citation, the board would act in something like or close to consensus, since the determination that Iran was out of compliance was made by the IAEA Secretariat and not by the board of governors representing member states.

Could Amano do this?

In principle, yes. Keep in mind that on March 30 1993–as my colleague Pierre Goldschmidt reminded me last week–former Director General Hans Blix cited the DPRK for non-compliance with its safeguards obligations, one day before the BOG then confirmed that finding in a resolution. Considerably before that, Blix had warned the DPRK in a report that if the DPRK refused to permit a special inspection, Blix would have no alternative than to declare the DPRK in non-compliance.

Hans Blix was well-informed. This in fact is the procedure called for under Article XII C. of the IAEA Statute. It specifically states: IAEA “inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors.”  Thereafter, it would be up to the board to “remedy forthwith any non-compliance” and if that doesn’t happen “within a reasonable time” then the board can suspend assistance to the state, and the IAEA can under Article XIX of the statute “suspend any non-complying member from the exercise of the privileges and rights of membership.”

There you have it.

In all 5 subsequent citations of non-compliance by member states since 1993, including on Iran in 2006 and on Syria this June, it was the board–not the DG–which took that action.

Will Yukiya Amano take this step on Iran as Hans Blix did on North Korea? So far, the IAEA’s governors and member states are fairly confident that the answer is no. But an IAEA assessment for the board on Iran including PMD? Stay tuned.

Additional Protocol, Iran, and the Board

There is no firm consensus about what constitutes non-compliance with NPT safeguards agreements. That will certainly play out over how the IAEA and the board handle Iran in coming months.

The BOG in June cited Syria for non-compliance on the basis of Syria’s failure to notify the IAEA of the construction of the facility at Al-Kibar, deemed a reactor by the IAEA secretariat and, thereafter the board. Notification would have been required by Code 3.1 in Syria’s safeguards agreement.

In the case of Iran, it isn’t spelled out clearly for all to see that the Secretariat or the board could arrive at a non-compliance finding alone on the basis of determinations that Iran has carried out weapons-related R&D and even the design and development of a nuclear warhead, according to officials from some board member states. They assert that for a postive finding on PMD to be actionable by the IAEA or the BOG, Iran would have to have an Additional Protocol, which of course Iran claims that it doesn’t have since there was no formal ratification process in Iran for the AP.

If this is true, it raises some interesting questions and possible conclusions:

  • If without an AP in Iran neither the IAEA nor the board can cite Iran for non-compliance related to PMD-related activities (assuming these are positively determined by the IAEA to be for real or confirmed), then why should references to PMD be included in the IAEA’s reports to the board on Iran’s safeguards compliance?
  • It might be argued that the IAEA could nonetheless use the PMD information it has collected in the process of forming a “broader conclusion” about the nature of Iran’s nuclear activities, and the IAEA could make an assessment as to whether it believes that Iran’s nuclear program is indeed all for peaceful use.
  • The IAEA could perhaps invoke special inspection language to hunt for evidence or confirmation of PMD-related activities in Iran, but given the nature of these kinds of activities, the chances of finding them or confirming that they took place is very risky, including for practical considerations.
  • Remaining is the issue whether, as some argue, “non-cooperation equals non-compliance.” Syria failed to respond to IAEA requests to explain the reactor allegations for three years. Iran also has not responded to the PMD issues for the same amount of time.

If board members aim to prepare a non-compliance resolution on Iran, they will have to sort all this out in advance.

If they want to do that in November, they don’t have a lot of time.