ElBaradei on Charlie Rose

Two posts in one day is a first for me. Especially since I am posting two video posts. My US readership (which constitutes the vast majority) have probably already seen Dr Mohamed ElBaradei on Charlie Rose. Those in other countries (the vast minority then) may not have seen this. It is two clips.

In the first, Dr ElBaradei said something which was very interesting. He was speaking “as a lawyer” and held that the threat of the use of force cannot be seriously used as a tool of diplomacy in the post-1945 world. It reminded me of something I wrote recently, and which may not pass extensive layers of review and co-authorship (if it does, I hope that someone will publish it).

Russian historian Vladimir Dvorkin recently argued, ‘… genuine nuclear disarmament really does imply practically full and complete disarmament, and this in turn implies a fundamental reorganization of the whole system of international relations and dispute resolution’. For the pessimist, it may be impossible to discern such a fundamental shift in the way the world conducts its business. The optimist may argue that this is not beyond the realm of possibility, recalling the entry into force of the 1945 Charter of the United Nations and the rise of supranational institutions, such as the European Union.

Being a champion of the law can be a lonely place. When I worked at District Court, one of my judges said that the outcome of every dispute is that someone always loses, and that the essence of any good settlement is that both parties loose a little bit. Law is constantly evolving, but ElBaradei’s words struck an inner cord that most good lawyers carry with them from law school, you uphold the law, no matter how uncomfortable it makes you feel. Since, in the words of another accomplished IAEA lawyer (you know who you are), “hard cases makes for bad law”.



The second part is more political. Dr ElBaradei talks about Iranian transparency, and rightly points out that the problem is Iran’s future intentions. He also calls for direct Iranian – US engagement.



The Economist, a paper older that the International Law Association I joined a short while ago, recently called for some sort of new approach to Iran. Its leader fell short of actually suggesting ways forward. I do remember how the adoption of UNSCR 1696 made life very difficult for us working the Iranian issue (and so would my friend James Acton). As a lawyer, you uphold the law, no matter how uncomfortable it makes you feel. Well, this lawyer is very uncomfortable over the fact that UNSCR 1696 (and the two that followed) boxed most of the international community into a pen. You could not call for a flexible approach without questioning the will of the Security Council. And if you questioned the will of the Security Council, you were essentially questioning the very basis of our common security, the UN Charter itself.

That's why I have massive respect for Jeffrey Lewis and Matt Bunn's thinking about "warm standby". It is truly thinking outside the box, inside the box.

Memories of a North Korean summer

You may remember when Ollie Heinonen first visited North Korea to negotiate how the Agency were to get access to Yongbyon. I found this amusing clip at Youtube. I think it is KCNA, but aren’t sure. At 1:06 in the film, you will suddenly be presented with a clip of the site, and some soothing elevator music, after which the picture quality suddenly drops below stoneage-cellphone-quality. Enjoy nevertheless.

Progress on the Korean peninsula

It is going to be chilly in North Korea this week. Temperatures at the Yongbyon nuclear complex will hover around zero degrees Celsius, but it will feel colder. There were relatively few clouds around on Wednesday, but they are assembling on the horizon, the quicksilver is expected to fall below zero by the weekend and snow is anticipated to fall. According to some observers, the buildings at the centre are old and dilapidated, due to inadequate funding, crumbling infrastructure, and many years of suspension. With the reactor switched off, the residents of the centre have to rely on the North Korean national grid for its power. No wonder that the bulkiest item on the inspectors list was a portable generator.



Busy in the cold

The site, which employs some 2,000 people, is probably active in preparing for the last step in disabling North Korea’s nuclear infrastructure, unloading the reactor. According to some press accounts, the fuel rods have not been unloaded yet. Personally, I am not convinced that it is a good idea, since unloading the rods moves them one step closer to being reprocessed. On the other hand, leaving them in and filling the fuel channels with, say, concrete gives rise to a multitude of questions: most of them relating to environmental safety. The Chernobyl-solution is not optimal if everything is to be done in a safe and secure manner.

It takes, according to an article by David Albright, about 140 days to unload a Calder Hall type reactor. However, North Korea could, using unloading machinery located above the core, remove all 8,000 fuel rods in about a month’s time (unloading about 1,700 kilograms of fuel per day). There might be delays, if individual rods are stuck in the fuel channels (which is not uncommon), or if there is a problem with the unloading gear. However, the process as such should not be terribly complicated. The removed rods, each “roughly 50 centimeters long and 3 centimeters in diameter [with] a mass of about 6.2 kilograms” are carefully transported from the reactor building to another structure across the street, which houses a cooling pond, where they are submerged in water and left to cool off. It will not be safe for anyone to handle them in at least two months, quite possibly longer than that.

The entire process should be monitored by the International Atomic Energy Agency, which should also have instruments and protocols in place for on-going monitoring of the reactor and the cooling pond once the transfer has been completed. If one assumes a leisurely work schedule of two months of off-loading the rods and another two to six months for them to cool down, they could be ready for transport to a third country by April 2008 at the earliest.


How serious are you, Mr. Kim?
It has been encouraging to read press reports that Christopher Hill has visited the complex to see the process in person. He is not alone in doing so. According to one report, envoys from all other six-party nations joined him for the three day tour of the site. While there is very little these diplomats are likely to see, it is a remarkable step for a paranoid and isolated state to allow so many uncleared foreign nationals access to such a secure area.

Over the last couple of months, I’ve also had discussions with Chinese and US officials who, in a touching act of unity, all seem content with North Korean cooperation. In fact, the Chinese representative I talked to almost seemed to think that things were going too well. He claimed that the North Koreans were sucking up to the US too much, eager to please, and that they (the DPRK) seem to have forgotten who their real friends are.

On balance, it would seem like the North Korean government seem to value a normalization of relations with the United States more than clinging on to their decrepit yet functional nuclear infrastructure. If that is correct, then one has every reason to believe that North Korea will play ball in the next phase.

The ultimate test
The real test to the denuclearization plan will be North Korea’s complete declaration, and subsequent verification of it; and at heart of the challenge is the alleged centrifuge enrichment programme. According to the often cited Dave Albright:

There is ample evidence to suggest that North Korea did acquire equipment and centrifuges for a small-scale gas centrifuge program, including a centrifuge starter kit from the notorious Pakistani Abdul Qadeer Khan, and many items for a small-scale program from abroad. However, no information exists on the status or accomplishments of this effort

A denial will raise suspicion. If the North Korean’s admit to parts of the programs, they may see their omission being unraveled by inspectors following the paper trail. All declarations will be dismissed or criticized by US hardliners, and with the Heritage Foundation marching in the first line. It is not going to be easy for those designated to verify the declaration. And speaking of inspectors: it has not been decided yet, at least not officially, who is supposed to handle the verification aspect. Hopefully, the International Atomic Energy Agency will be involved a bit earlier than they were during Libya’s dismantlement, and by other means than the CNN.

Transparency: Iranian style

The trench warfare over Iran's controversial nuclear programme continues without respite, with the press on each side of the nuclear no-man's land continuing their irksome sniping at the other side. While there are many examples of spin, the most biased utterance thus far must be PressTV's headline that the "world welcomes Iran-IAEA cooperation". A more precise headline would be "Iran welcomes Iran-IAEA cooperation, the rest are waiting for better days". Headlines like that of PressTV just shows, in my humble opinion, that one should not take any foreign ministry controlled media channel in any country more seriously than, say, the Disney Channel.

The plain truth is that Iran still has plenty to work to do if it is serious about shedding light on its nuclear programme. It is undeniably a good thing that it has increased its cooperation with the International Atomic Energy Agency. But increased cooperation does not automatically mean that all riddles are solved and all questions answered. The Economist holds that the IAEA-Iran work plan is "controversial" and that it "allows Iran to drip-feed information to inspectors, with new questions addressed only when previous files are closed". That's part of the story. The other part is that the IAEA has "agreed to provide Iran with all remaining questions according to the … work plan". Moreover, the inspectorate seems to have one chance at asking the right questions. According to the plan, "after receiving the questions, no other questions are left". Obviously, that is not how the post-Iraq safeguards system is supposed to work. There are still many ambiguities over how the plan is supposed to work. This is not the fault of the Agency, but of Iran. According to some close to the Department of Safeguards, the Iranians were more or less free to draft the plan to their liking. After all, the IAEA works for their member states.

Iran is, of course, acting within their legal right when drafting the plan to please their own tastes. Safeguards agreements are international agreements and therefore require the consent of the state to become legally binding. The basis for this statement can be found in articles 11-17 of the 1969 Vienna Convention on the Law of Treaties. Legally, I would stipulate that contemporary arms control law places few, if any, legal constraints on states' freedom to decide on these matters. Moreover, present UN Security Council practice in respect to arms control is confusing, unclear and at times contradictory. Lately, the council has had an ambiguous attitude towards the legality of nuclear testing, and it has had an uneven approach to safeguards as well. All things considered, it would seem like the Lotus Principle, i.e. the principle that states may do as they wish unless they contravene an express prohibition, still reigns supreme in international arms control and disarmament law, despite recent attempts by the Security Council and others to define and limit it.

However, there is a saying in legal practice that stipulates that an action may not necessarily be smart, just because it is lawful. Principles can be costly, and this is a statement that the Iranian government should take seriously. Even if all questions on the history and present operations of Iran's nuclear programme are answered, Iran still have to ask itself how it can assure the international community that its intentions are peaceful. Iran may find, after some reflection, that the answer is not necessarily one of technology and international law, but of politics and perceptions.

There are many ways through which Iran could build international confidence in its intentions: developing a more transparent safeguards approach for its enrichment plant in Natanz is one way, setting up an ad-hoc verification regime with a broad ranging mandate another way, and revoking the law prohibiting the ratification of the country's additional protocol a third way. However, at the moment Iran seems content stonewalling everything that breathes Persian compromise, essentially acting in bad faith in respect to its negotiations with the European Union.

Sadly, by pushing any diplomatic solution aside, and by refusing to allow certain issues to come back on the table, Iran is playing right into the hands of the minority that favors the use of force against its facilities. What use are treaty rights, one might wonder, if there is nothing but smoldering ruins left to exercise those rights with? The use of force against Iran will have far-ranging consequences. It will be difficult to argue that Iran's program constitutes an imminent threat, and the Security Council is not likely to authorize the use of force, so any armed intervention is likely to be unlawful. It will be difficult to survey an attack's consequences for the ius ad bellum (the law governing the right to use force), especially coming so soon after another legally questionable intervention (Iraq). The political fall-out will be even more unpredictable, and so will the general security situation in the Middle East. That said, there is a growing feeling amongst many in the west that faced with the choice between an Iranian bomb and an unstable Middle East, they might take their chances.

In that sense, a new Security Council resolution on Iran seems desirable. Security Council action would at least temporarily deny the argument that the use of force is the only viable solution.