Monthly Archives: December 2014

Marshall Islands Court Case Update

A Former Ground Zero Goes to Court Against the World’s Nuclear Arsenals

New York Times | Marlise Simons | Dec. 27, 2014

ALT-MARSHALL-1-articleLarge

A nuclear test in the Marshall Islands, one of 67 conducted by the United States in the area.

THE HAGUE — Tony de Brum was 9 years old in 1954 when he saw the sky light up and heard the terrifying rumbles of “Castle Bravo.” It was the most powerful of 67 nuclear tests detonated by the United States in the Marshall Islands, the remote Pacific atolls he calls home.

Six decades later, with Mr. de Brum now his country’s foreign minister, the memory of those thundering skies has driven him to a near-Quixotic venture: His tiny country is hauling the world’s eight declared nuclear powers and Israel before the International Court of Justice. He wants the court to order the start of long-promised talks for a convention to ban atomic arsenals, much like the treaties that already prohibit chemical, biological and other weapons of mass destruction.

Mr. de Brum says the initiative is not about seeking redress for the enduring contamination and the waves of illness and birth defects attributed to radiation. Rather, by turning to the world’s highest tribunal, a civil court that addresses disputes between nations, he wants to use his own land’s painful history to rekindle global concern about the nuclear arms race.

The legal action is expected to run into plenty of legal and political obstacles. Even if the court decides in favor of the Marshall Islands, it has no way to enforce its decision. Prospects of any nuclear power heeding such a ruling anytime soon, experts say, are, obviously, exceedingly slim. But some say the action will shine a light on a serious but neglected issue.

“This case will help clarify where we stand in arms control law and perhaps sharpen the obligation to disarm,” said Nico Schrijver, who heads the law school at Leiden University in the Netherlands and is not involved in the case. “It has merit in a time of growing international tension. But I see a host of legal hurdles ahead.”

In its first written arguments, presented to the court this month, the Marshall Islands contended that the nuclear powers had violated their legal obligation to disarm. Specifically, the arguments said, by joining the 1968 Nuclear Nonproliferation Treaty, five countries — the United States, Russia, Britain, France and China — undertook to end the arms race “at an early date” and to negotiate a treaty on “complete disarmament.”

Three other nuclear nations that did not agree to the treaty — India, Israel and Pakistan — and a fourth that withdrew from it — North Korea — are required to disarm under customary international law, the Marshall Islands’ case claims. The existence of Israeli nuclear weapons is universally assumed, but Israel has not acknowledged having them.

“All the nuclear weapons states are modernizing their arsenals instead of negotiating, and we want the court to rule on this,” said Phon van den Biesen, the leader of the islands’ legal team, who first asked the court to hear the case in April.

The civil suit comes as nuclear arms are increasingly being linked to other pressing international issues, such as the prosecution of war crimes and crimes against humanity and the effort to combat climate change.

Meeting in Vienna this month, humanitarian law experts from 160 nations reiterated that the threat from nuclear arms or other weapons of mass destruction was incompatible with human rights principles. Scientists have stepped up warnings that using even a small percentage of the world’s nuclear arsenal would radically change the atmosphere and could cause drops in temperatures and large-scale crop failures.

More than a dozen international law experts have donated time to assist the tiny Marshall Islands, a string of atolls with 70,000 inhabitants. Rick Wayman, the director of programs at the California-based Nuclear Age Peace Foundation, said that a coalition of 55 international peace and other activist groups were backing the initiative.

One of the key questions that the court’s 15-judge bench is likely to consider is whether modernizing existing arsenals amounts to a new arms race forbidden under existing agreements. The United States and Russia, which control most of the world’s nuclear weapons, have cut old stockpiles and agreed to further reductions under a 2010 bilateral accord. But both countries, along with China, are now engaged in major upgrading of their missile systems. Pakistan and India have been in an arms race for more than 15 years.

The court is also being asked to establish a new disarmament calendar. The Marshall Islands’ suit asks that the nuclear powers begin negotiations on a disarmament treaty one year after the court’s ruling. But, as John Burroughs, director of the New York-based Lawyers Committee on Nuclear Policy, noted: “There have never even been any multilateral negotiations to eliminate nuclear weapons since the 1968 nonproliferation treaty.”

One big question is whether the judges would go beyond an opinion they issued in 1996. Asked to advise the United Nations General Assembly, the judges said unanimously that the obligation existed “to pursue in good faith and bring to a conclusion” negotiations leading to nuclear disarmament. Experts say the bench may be more divided this time.

It is far from clear how the judges will vote. Although the bench is meant to be independent, six of the 15 judges come from nuclear powers — the five original nations plus India. Heikelina Verrijn Stuart, co-author of “The Building of Peace,” a comprehensive history of the International Court of Justice, said that politics have usually trumped international law and that in the majority of the court’s cases, judges have ruled in favor of their country of origin. “Most states simply do not accept a higher legal authority,” she said, adding, “however there is no reason to suggest that the I.C.J. judges are in any way instrumental to the politics of their country of origin.”

Among the nuclear powers, only Britain, India and Pakistan have recognized the court’s jurisdiction as compulsory; the others choose whether to opt in. So far, only China has replied, stating that it will not accept the court’s jurisdiction in this case, said Mr. van den Biesen, the lawyer.

Mr. de Brum is not discouraged, arguing that his nation is justified in taking action because it has suffered the effects of nuclear testing and is now threatened by rising sea levels.

From a climate summit meeting in Lima, Peru, in mid-December, he sent an email emphasizing the parallel between climate change and nuclear issues. “They both affect the security and survival of humanity,” Mr. de Brum wrote. “Finally it comes down to this: What would it gain mankind to reach a peaceful resolution of the climate change threat, only to be wiped out by a nuclear misunderstanding?”

Hearings in the case are expected in the coming year.

Jefferson Proving Ground – the NRC’s Role

U.S. NRC | Stephen Lemont | December 22, 2014

Most people think of nuclear reactors when they think of the NRC. Some may think of nuclear medicine or uranium. Many would be surprised to know we are also involved in regulating radioactive materials at U.S. military sites.

Although nuclear weapons are completely outside our purview, some military sites need an NRC license to possess and use certain nuclear materials. For example, the Army has a license to possess depleted uranium (DU) at a site in Indiana called Jefferson Proving Ground.

The Army began using the 56,000-acre site in 1941 to test fire all sorts of conventional munitions. The Army fired more than24 million rounds before testing came to an end in 1994 and the installation closed in 1995 as a result of the Base Realignment and Closure Act. Today, the Army still owns about 51,000 acres of the original site, but nearly all of that is managed as a wildlife refuge. The Indiana Air National Guard uses another part of the site as an air-to-ground bombing training range. The 51,000-acre area contains unexploded ordnance —explosive munitions that could still go off—and live detonators, primers and fuzes, and can’t ever be used for farming, housing or commerce.

dupicture

In the early 1980’s, the NRC got involved with the site when the Army wanted to test DU rounds there. The DU in these rounds is able to penetrate the armor on a tank. Over a 10-year period, the Army fired about 220,000 pounds of DU projectiles into a 2,080-acre area known as the DU Impact Area. The Army still has its NRC license for the DU and now wants to decommission the DU Impact Area, which lies within the 51,000 acres with unexploded ordnance.

The Army has proposed a plan for decommissioning. It has asked the NRC to terminate the license, with certain restrictions as allowed under our regulations. The NRC is in the early stages of reviewing the proposal.

About 162,000 pounds of DU remain in the DU Impact Area. There is also a high density of unexploded ordnance in this area. The Army proposes to leave the DU and unexploded ordnance in place because cleanup would be very dangerous and very expensive. To keep people out of the Jefferson Proving Ground site, the Army says it will keep the current access barriers—including a perimeter fence with padlocked gates and security warning signs—as well as legal and administrative controls.

The NRC met with the public near the site in early December to discuss the Army’s request. We wanted to hear people’s comments and concerns about the environmental aspects of the Army’s plan. We transcribed the meeting to record these statements. We have also taken written public comments.

And, we will consider this input during our independent review of the Army’s proposal. Our analyses and conclusions will be documented in a draft Environmental Impact Statement that explains everything we looked at. We’ll publish the draft for comment and discuss it at a future public meeting. We will consider all the comments we receive on the draft as we put together a final Environmental Impact Statement. The final document will discuss the comments and how we addressed them.

Our process also includes a separate review of the safety impacts of what the Army is proposing. We will publish those findings in a Safety Evaluation Report. Once both the environmental and safety reviews are complete, we will be able to make a decision on the Army’s request.

Local residents told us they want the Army to monitor the environment even after the license is terminated. Others told us they want the Army to clean up the site. Our environmental review will look at those alternatives. People were also concerned about radiation. Our review will make sure the Army’s plan meets all NRC requirements to protect public health and safety.

Depleted Uranium – A-10 attack aircraft

USAF A-10 aircraft in war against ISIS – firing 30mm rounds of depleted uranium (DU)

No mention of depleted uranium in these articles

Video of A-10 attacking ISIS targets in Iraq emerges
The A-10 is back in Iraq doing what it does better than many other assets: attacking hostile targets that threaten friendly forces or assets on the ground.
The Aviationist | David Cenciotti | Dec 07 2014

The A-10 is back in Iraq doing what it does better than many other assets: attacking hostile targets that threaten friendly forces or assets on the ground.

During the week of Nov. 17-21, the U.S. Air Force moved a squadron-sized element of A-10C Thunderbolt aircraft from Bagram, Afghanistan, to Ahmed al Jaber airbase, in Kuwait, to join the fight against ISIS.

The aircraft belong to the 163rd Expeditionary Fighter Squadron “Blacksnakes”, part of the 122nd Fighter Wing of the Air National Guard, based at Fort Wayne, Indiana.

US-A-10-Ahmed-al-Jaber-Air-Base-706x397

Little was known about their activities in support of Operation Inherent Resolve until a video showing a “Warthog” (as the A-10 is nicknamed among the fighter pilots community) attacking ground targets in Al Anbar region, in western Iraq, using its GAU-8 Avenger a 30 mm hydraulically driven seven-barrel Gatling-type cannon

The Air Force planned to get rid of the A-10 but the Congress blocked the retirement in 2015 keeping part of the Warthog fleet (100 aircraft) intact.

Image credit: U.S. Air Force

A-10s deployed to take on the Islamic State

Stars and Stripes | Jon Harper | November 26, 2014

WASHINGTON — An attack aircraft that the Pentagon is trying to get rid of has been deployed to the Middle East to take on the Islamic State.

A squadron-sized element of A-10 Thunderbolts arrived in the region during the week of Nov. 17-21, according to the Air Force. The aircraft were previously being used in Afghanistan.

The move marks the first time the ugly but battle-proven jet, also known as the “Warthog,” has been thrown into the fight against Islamic State, which controls much of Iraq and Syria. The A-10 is a slow, low-flying plane that can unleash massive amounts of firepower against enemy ground forces while conducting close-air-support missions.

“They’re going over there because there’s a need … to be postured for a combat rescue mission,” said Jennifer Cassidy, an Air Force spokeswoman.

However, the attack aircraft will likely be sent out to bomb Islamic State targets as part of the Pentagon’s larger air campaign.

“While they’re there we will maximize their use,” Cassidy said.

U.S. and partner nations have continued to strike Islamic State units and assets since the A-10 arrived in the region, but Cassidy said she did not know whether the Warthogs participated in any of those attacks.

The Air Force declined to provide the number of A-10s that are being deployed, other than to say that it is an “expeditionary squadron-sized element” of personnel and aircraft.

The planes are with the 163rd Expeditionary Fighter Squadron. The unit, also known as the “Blacksnakes”, is part of the Air National Guard’s 122nd Fighter Wing, based at Fort Wayne, Ind. The squadron is a component of the newly reactivated 332ndAir Expeditionary Group, its heritage tied to the famous 332rd Fighter Group led by the Tuskegee Airmen in World War II. The group was reactivated on Nov. 16 to participate in Operation Inherent Resolve.

The service would not say where in the region the A-10s are deployed. The U.S. military uses a number of large air bases throughout the Middle East, and often declines to identify the host nations of particular combat aircraft due to political sensitivities.

There is a good deal of controversy surrounding the A-10. The Air Force is trying to retire the fleet to save money as the Pentagon faces large budget cuts. Service leaders argue that other aircraft can perform close air support missions.

But supporters of the A-10 in Congress and elsewhere argue that no jet in the inventory can fully replace the Warthog.

Torture, American-style

Bulletin of the Atomic Scientists | Hugh Gusterson | 12/21/2014

As an anthropologist, I am fascinated by the term “enhanced interrogation.” It must surely take pride of place in the American lexicon of government euphemisms for violence, alongside such phrases from nuclear discourse as “collateral damage” (for the mass killing of civilians), “event” (for a nuclear explosion), “countervalue strike” (for the nuclear destruction of a city), “surgical strike” (a targeted strike with nuclear weapons), and “clean bombs” (nuclear weapons designed to optimize blast over radiation). As Carol Cohn notes in her classic article on the language of nuclear strategists, “Sex and Death in the Rational World of Defense Intellectuals,” “‘clean bombs’ may provide the perfect metaphor for the language of defense analysts and arms controllers. This language has enormous destructive power, but without emotional fallout.”

The same is true when it comes to “enhanced interrogation.” My dictionary tells me that “to enhance” is to “improve in value, quality, desirability, or attractiveness.” The word “enhanced” usually applies to images, food flavors, and consumer electronics, but why not torture as well? The rest of the world has classic torture, which involves electrodes, pincers, batons, and bloodstains. The United States, being exceptional, has enhanced torture, which involves rectal feeding (in other words, anal rape), no sleep for a week, “insult slaps,” ice-cold baths, stress positions, being locked in a box for 18 hours, waterboarding, and threats that your mother’s throat will be slit. But no bloodstains.

“Enhanced interrogation” is torture, American style. Exceptional torture. Torture that insists it is not torture. Post-torture? This uniquely American kind of torture has six defining characteristics.

First, it eschews tools used in medieval times or in Third World jails (with the exception of the centuries-old technique of waterboarding). If we are not using the classic tools of the torture trade—electrodes to the genitals, batons to the ribs—then, the theory goes, what we are doing cannot be torture. Above all, there must be no blood, burns, or scars, since these are the after signs of classic torture. American torture is cutting-edge and clean. It leaves no tell-tale marks.

Second, American torture techniques must be designed by scientific experts, so that they are certifiably modern, rational, and scientific. In this case the experts were the PhD psychologists James Mitchell and John Bruce Jessen, whose company was paid $81 million by US taxpayers to perfect the shiny new interrogation techniques.

Third, American torture is medically supervised. The Hippocratic oath to do no harm provides a fig leaf of immunity to the torturers, even if the CIA doctors who attended the torture sessions have been condemned by the American Medical Association for betraying their vocation. In a bizarre parsing of their conflicting obligations to the victims and their torturers, these doctors made sure that prisoners who underwent the agony of having their arms shackled for hours in painful positions were allowed to do so sitting down if they had broken bones in their feet, that prisoners’ diets were adjusted so they would not permanently damage the esophagus when they vomited while being waterboarded, and that Tylenol was offered to alleviate the pain of torture.

Fourth, the fiction of legality must be maintained. No matter that the “black site” practice of establishing secret prisons in which to conduct torture clearly violated the Geneva Conventions and the Convention Against Torture (ratified by the United States in 1994) in most lawyers’ opinions. Washington had to find lawyers who would certify that the new interrogation techniques did not constitute torture; the sheen of legality, no matter how risible, is vital. Thus John Yoo and James Bybee of the Office of Legal Counsel in the George W. Bush Justice Department certified that, as long as death or permanent organ damage did not result, it did not constitute torture to repeatedly bring a prisoner to the edge of death by drowning, shackle him in painful positions, deny him sleep for days at a time, or introduce foreign objects into his anus. The interrogators could then say they had it in writing that they were not torturers. Thus CIA official Jose Rodriguez told Fox News, “all of these techniques were approved by the lawyers.” A tortured interpretation of the law trumps common sense.

Fifth, in keeping with American exceptionalism, the torture is presented as an exception, but one that proves the rule. “We don’t torture,” President George W. Bush said. “We don’t torture people. OK?” said George Tenet, Bush’s CIA director. That is the enunciation of the rule, the insistent proclamation of which coincides with its nullification in practice. Thus, while leaders tell us that the United States doesn’t practice torture, apologists tell us that the days after the 9/11 attacks were a desperate time when “harsh measures” were, exceptionally, allowable to ensure there would be no more terrorist attacks. And, since 9/11, the United States has repeatedly invoked its status as the exceptional nation committed to human dignity and freedom to license offshore and black site suspensions of human dignity and freedom—a chain of suspensions that constitute an unacknowledged de facto reversal of the “we-do-not-torture” rule.

Finally, sixth, spin doctors are brought in to devise phrases like “enhanced interrogation,” that, operating as phraseological cloud cover, obscure what lies beneath. “Enhanced interrogation” is a Madison Avenue term, like “new and improved,” that seeks to make something seem more novel than it is while obscuring its defects. And, like all euphemisms, it dulls the spiritual pain of those whose job it is to inflict physical pain on others. It is a tool of what the anthropologist Didier Fassin calls “moral anesthesia.” “Enhanced interrogation” is one of a whole new family of euphemistic phrases brought to us by the “war on terror” – a cousin to other sinisterly bland neologisms such as “unlawful combatant” (a guerilla out of uniform), “extraordinary rendition” (for illegal kidnapping by the state), and “signature strike” (for the deliberate killing by drone of people whose identity is unknown).

Whereas countries like Egypt and Myanmar leave torture to thugs who work over their victims’ bodies in windowless cells, expecting news of their work to travel, the United States has brought in psychologists, doctors, lawyers, and spin doctors to rework it into torture bureaucratized to code, torture engineered for plausible deniability. This is torture, American style.

But euphemisms such as “enhanced interrogation” are also a symptom of repressed shame. The resort to euphemism betrays shame about that which cannot be honestly named. Now, finally, honesty is making a comeback. As more commentators and politicians openly use the old-fashioned word “torture,” the hollowness of the euphemism becomes apparent, and it loses its power to obscure what was done in the CIA’s hidden sites. Now “enhanced interrogation” increasingly finds itself in ironic quote marks, imparting a sense of rigidity and absurdism to the government spokespersons who insist on continuing to use it.

Reclaiming our language is the first step in confronting the crimes that were committed in our name. Let’s stop using “enhanced interrogation,” and, if Americans want to defend what their government did, at least call torture by its true name.

IAEA’s Legal Authority to Investigate PMD Allegations

Mark Hibbs on the IAEA’s Legal Authority to Investigate PMD Allegations

Arms Control Law | Dan Joyner | December 17, 2014

Mark Hibbs has a new post over at Arms Control Wonk.  In it he addresses Iran’s invitation to the IAEA to visit a site in Iran which the IAEA previously alleged was the site of nuclear weaponization work.  This of course was also the subject of a recent post by Bob Kelley, which I highlighted here.

Aside from a bit of thinly veiled snark about Bob’s and Gareth Porter’s articles on this topic, overall I think Mark’s post is thoughtful and fair. And in the end it seems to me that he does not essentially disagree with what Bob and Gareth have written about the Marivan invitation. He concludes:

In the short term, it looks like Iran has maneuvered Amano into a corner. If the IAEA doesn’t go to Marivan on Iran’s terms, Iran’s spin doctors will claim that the IAEA is not cooperating to resolve PMD allegations. If the IAEA instead goes to Marivan, and finds nothing, Iran will declare the case closed.

I was actually most interested, though, in a paragraph earlier in the piece in which Mark writes this:

There may be internal deliberations concerning the IAEA’s authority and priorities. While UNSC resolutions endorse the IAEA’s pursuit of PMD-related activities in Iran, Iran’s CSA (and for that matter the AP) expressly endorse the IAEA’s authority to inspect as deriving from a nexus to nuclear materials. To my knowledge, no allegations have come forth that Iran used nuclear materials in any undeclared activity at Marivan. The IAEA may be more interested in pursuing allegations at Parchin if it has information suggesting that nuclear materials may have been involved in undeclared activities at that site.

This interests me because it seems that here Mark is agreeing in essence with a point that I have been making for a long time – i.e. that the IAEA does not have the legal authority to investigate or assess questions concerning nuclear-weaponization-related activities that do not directly involve fissile materials.

I wrote this back in 2011 here, and have repeated it many times on this blog. Since then, the assertion that the IAEA does have the authority to investigate PMD issues not necessarily involving fissile materials, has been made by many in the establishment arms control wonk community.

Mark and Andreas Persbo wrote a piece back in January that discussed the issue of the IAEA’s authority to investigate PMD allegations against Iran, but as I read that piece they didn’t take a clear position on the matter at that time. But reading Mark’s new ACW piece at least appears to clarify his position, and demonstrate that it is in agreement with mine. Good to know.

Amano’s Move on Marivan

Mark Hibbs | Op-Ed – Arms Control Wonk | December 17, 2014

AUSTRIA-NUCLEAR-IAEA-AMANO

After the powers and Iran in late 2013 concluded the Joint Plan of Action (JPA), I cautioned that, a year later, when everything else is supposed to be settled, the toughest nut to crack might be what to do about Iran’s nuclear past. Happy talkers who didn’t like that message marginalized it for months. But right now, questions raised by IAEA Director General Yukiya Amano about what he calls “possible military dimensions” (PMD) of Iran’s nuclear program are standing tall between the negotiators and a comprehensive settlement of the crisis.

While the powers and Iran were negotiating the JPA, they and Iran set up a Framework for Cooperation on a parallel track which committed the IAEA and Iran to resolve PMD issues. That  began with confidence-building steps which were supposed to coax Iran to give the IAEA enough data for it to tell its Board of Governors and the U.N. Security Council that things with Iran were working out.

After six months, all the low-hanging fruit was picked. This May, the IAEA and Iran agreed to a third set of “practical measures” under the Framework, with an August deadline. The list included “exchanging information with the Agency with respect to the allegations related to the initiation of high explosives, including the conduct of large scale high explosives experimentation in Iran.”

The last we heard about this from the IAEA was in its 7 November report to the Board, GOV/2014/58:

Iran and the Agency held technical meetings on two separate occasions in Tehran to discuss the two outstanding practical measures agreed in May 2014 in the third step of the Framework for Cooperation. Iran has not provided any explanations that enable the Agency to clarify the outstanding practical measures, nor has it proposed any new practical measures in the next step of the Framework for Cooperation.

Iran responded to that in a comment filed on 1 December to the IAEA Secretariat as GOV/INF 871:

During technical meetings in Tehran on 7 and 8 October 2014 and 2 November 2014 [and regarding high-explosion initiation allegations] Iran… provided detailed explanations on the documents shown by the Agency to Iran and provided pieces of evidence that indicate such documents are fabricated. Those forged documents have no sign to prove that they are of Iranian origin and contrary to such claim; the documents are full of mistakes and contain fake names with specific pronunciations, which only point toward a certain Member of the IAEA as their forger… Indeed, invalidity of Agency’s information or better to say invalidity of information given to the Agency and lack of substantiated evidences at the disposal of the Agency are the major problems on these issues. In continuation of our cooperation with the Agency, we intend to arrange another technical meeting on these two practical measures as soon as we receive specific questions of the Agency with substantiated documents in order to conclude them and once these issues are clarified and closed, we can start considering implementation of new practical measure.

I read Iran’s statement to mean that, unless the IAEA provides Iran “substantiated evidences” that Iran agrees are valid, the Framework for Cooperation is on ice. Iran says Amano’s information on high-explosion initiation is falsified. Finito la musica.

But in mid-November once again it was Iran, not Amano, that moved next. In the IAEA boardroom it told the IAEA Iran would permit inspectors to carry out one managed access at Marivan, one of two sites (the other being Parchin) mentioned in the IAEA November 2011 report concerning explosives allegations. The IAEA through a spokesman thereafter blurted out that it wouldn’t take up Iran’s offer.

AP Article 8

Not without consistency, Gareth Porter and Robert Kelley then went into print taking issue with the IAEA’s decision not to go to Marivan. Porter published an article speculating that the reason the IAEA passed is that it has no evidence for any weapons-related activity–befitting the thesis of his previous magnum opus which claims that the Iranian nuclear crisis was concocted by the U.S. and Israel to confront Iran. Kelley’s contribution instead cited details from the IAEA November 2011 report and lamented that the IAEA chose not to chase them down in Marivan because–as Kelley has opined–these activities would not likely have been carried out at Parchin.

These authors didn’t mention that the IAEA might consider pursuing Iran’s Marivan gambit for another reason: Promoting the implementation of Iran’s Additional Protocol.

Iran’s AP includes Article 8:

‘Nothing is this Protocol shall preclude Iran from offering the Agency access to locations in addition to those referred to in Articles 5 and 9 or from requesting the Agency to conduct verification activities at a particular location. The Agency shall, without delay, make every reasonable effort to act upon such a request.’ 

That language might imply that the IAEA should go to Marivan if Iran invited inspectors to go there.

I talked to one safeguards aficionado about this. He recalled that he was in the room when a Board working committee conceptualized the AP back in 1996. Director-General Hans Blix, he said, “asserted that, if there is a claim that a state has carried out non-compliant activities at a location, the state could voluntarily call upon the Agency to assist in clearing its name by visiting the location on the state’s invitation and reporting what it found. Blix insisted that would be the best way to resolve such claims, and [that such a provision] should be in the AP… That concept was formulated as Article 8.”

Yesterday I asked Blix if that version of events was basically correct. He confirmed to me that it was.

“I remember vaguely a view I had that while any demand by the Agency for a special inspection would be perfectly legal, it would be somewhat dramatic and likely to lead to controversy, so a possibly less difficult path to inspection and facts could be if the state was given an opportunity itself to invite the inspection. I seem to remember that the special inspections we had had before the DPRK were in fact by such invitation. This might be an explanation for Article 8.”

On this basis, the IAEA might argue that, if a visit were held and it cleared up suspicion about Marivan, Iran might also benefit if it permitted the IAEA to see what it wants to see at Parchin and, along the way, have an interview with Mohsen Fakhrizadeh, a scientist and officer in the Iran Revolutionary Guard Corps who is suspected of having guided nuclear weapons work in Iran. So far Iran has not permitted the IAEA to go back to Parchin or meet with Fakhrizadeh.

How Much IAEA Leverage?

So why didn’t the IAEA grab Iran’s bait?

First off, Iran’s AP isn’t in force. Until it is, IAEA verification work in Iran is mandated by Iran’s Comprehensive Safeguards Agreement, the JPA, the Framework for Cooperation, and resolutions passed by the IAEA board and by the Security Council. AP Article 8 doesn’t apply.

Far more significantly, were the IAEA to agree to Iran’s terms for a one-off visit to Marivan, and if the IAEA failed to find anything, Iran would probably shut the door. That happened at Parchin, where the IAEA in 2005 failed to detect non-compliant activity and Iran then barred the IAEA from visiting a specific location it now wants to see.

Cheryl Rofer joins Porter in suspecting that the IAEA would find nothing at Marivan–but also for the reason that Iran could hide evidence which after a decade may have also eroded, not because allegations are groundless.

There may be internal deliberations concerning the IAEA’s authority and priorities. While UNSC resolutions endorse the IAEA’s pursuit of PMD-related activities in Iran, Iran’s CSA (and for that matter the AP) expressly endorse the IAEA’s authority to inspect as deriving from a nexus to nuclear materials. To my knowledge, no allegations have come forth that Iran used nuclear materials in any undeclared activity at Marivan. The IAEA may be more interested in pursuing allegations at Parchin if it has information suggesting that nuclear materials may have been involved in undeclared activities at that site.

The Kelley and Porter articles have resonated among some pundits and trolls who appear to share as an article of faith Iran’s claim that PMD is is a conspiracy of a big power and its allies abusing a multilateral agency to beat up on a recalcitrant adversary. Their argument follows the approach which Russia pressed home during the 2014 IAEA safeguards symposium in Vienna in October. There, Russians asked the IAEA again and again: “How do you know you are not being manipulated by sources giving you third-party information?”

This Russian question, as I said in Moscow last month, is a good question. But the correct answer doesn’t have to be that the IAEA’s use of third-party information must be poisoned by manipulation and bias. Amano knows that the IAEA’s impartiality is under scrutiny; it would therefore be premature to conclude that the IAEA is foolhardy and is being rope-a-doped by a dozen states sharing data alleging that Iran carried out high-explosives work. Lest we forget: None of the people speculating about what happened or didn’t happen at Parchin and Marivan have access to the IAEA’s current inventory of safeguards confidential data on Iran.

In the short term, it looks like Iran has maneuvered Amano into a corner. If the IAEA doesn’t go to Marivan on Iran’s terms, Iran’s spin doctors will claim that the IAEA is not cooperating to resolve PMD allegations. If the IAEA instead goes to Marivan, and finds nothing, Iran will declare the case closed.

Iran’s chess-playing with the IAEA, in parallel with its negotiations with the powers, is ultmately aimed at release of sanctions. If Iran is hiding evidence of activities related to nuclear weapons development, its moves will be designed to protect that knowledge, including at any site where undeclared activities may have taken place. The IAEA might tell Iran: It is up to the IAEA to decide where its safeguards resources are best put to use. If you want us to go to Marivan, then bring Iran’s AP into force now and assure us in advance that this won’t be a one-off visit. But as long as Iran views its cooperation with the IAEA as a bargaining chip in a negotiation with the powers for future benefits, it may not agree.

The IAEA isn’t powerless in this game. It needs to recall that  under UNSC/RES/S/1929 (2010), nuclear sanctions cannot be rescinded without an IAEA statement to the UNSC that “Iran has fully complied with its obligations under the relevant resolutions of the Security Council and met the requirements of the IAEA Board of Governors, as confirmed by the IAEA Board of Governors.”

This article was originally published in Arms Control Wonk.

 

 

India looks to sway Americans with nuclear power insurance plan

Reuters | Tommy Wilkes and Sanjeev Miglani | NEW DELHI Fri Dec 19, 2014

U.S. President Barack Obama hosts a meeting with India's PM Narendra Modi at the White House in Washington

U.S. President Barack Obama smiles as he hosts a meeting with Prime Minister Narendra Modi in the Oval Office of the White House in Washington September 30, 2014.

Credit: Reuters/Larry Downing/Files

India is offering to set up an insurance pool to indemnify global nuclear suppliers against liability in the case of a nuclear accident, in a bid to unblock billions of dollars in trade held up by concerns over exposure to risk.

Prime Minister Narendra Modi’s government is hoping the plan will be enough to convince major U.S. companies such as General Electric to enter the Indian market ahead of President Barack Obama’s visit at the end of next month.

Under a 2010 nuclear liability law, nuclear equipment suppliers are liable for damages from an accident, which companies say is a sharp deviation from international norms that put the onus on the operator to maintain safety.

From the 1950s, when the United States was the only exporter of nuclear reactors, liability has been channeled to plant operators across the world.

India’s national law grew out of the 1984 Bhopal gas disaster, the world’s deadliest industrial accident, at a factory owned by U.S. multinational Union Carbide Corp which Indian families are still pursuing for compensation.

The law effectively shut out Western companies from a huge market, as energy-starved India seeks to ramp up nuclear power generation by 13 times, and also strained U.S.-Indian relations since they reached a deal on nuclear cooperation in 2008.

GE-Hitachi, an alliance between the U.S. and Japanese firms, Toshiba’s Westinghouse Electric Company and France’s Areva received a green light to build two reactors each. They have yet to begin construction several years later, according to India’s Department of Atomic Energy.

Even Indian suppliers refused to sell equipment until the law is amended or they can be sure they are indemnified against any liabilities.

“We are working fast to address the concerns of suppliers. We are working on a solution with the insurance companies,” R.K. Sinha, Chairman of India’s Atomic Energy Commission, told Reuters.

“ENCOURAGING SIGNAL”

State-run reinsurer GIC Re is preparing a proposal to build a “nuclear insurance pool” that would indemnify the third-party suppliers against liabilities they would face in the case of an accident.

Under the plan, insurance would be bought by the companies contracted to build the nuclear reactors who would then recoup the cost by charging more for their services. Alternatively, state-run operator Nuclear Power Corporation of India (NPCIL) would take out insurance on behalf of these companies.

Sinha said New Delhi believed the insurance plan was the best option given how tricky changing the law would prove, and that the proposal should be ready within the next two months.

Details of the plan have yet to be thrashed out, and Sinha said the government was considering how it would better capitalise NPCIL.

India wants to generate 62,000 megawatts from nuclear sources within two decades from the current level of 4,780 megawatts, even as other countries shift away from nuclear energy following Japan’s Fukushima disaster.

GE declined to comment on the Indian proposal to offer insurance cover. Westinghouse said it needed more information before it could comment.

Areva said in a statement that the creation of an insurance pool was an “encouraging signal”, and that the government appeared committed to working out a comprehensive solution soon.

However, India’s nuclear liability regime remained open to interpretation and an Areva spokeswoman said the company needed more clarification to make the legal framework acceptable.

RUSSIA MUSCLING IN

One Indian company said it was ready to return to the 2,800 megawatt Gorakhpur nuclear power project in the northern state of Haryana it abandoned, once the insurance cover is in place.

The insurance scheme would convince Walchandnagar Industries Ltd, which makes heat exchangers for reactors, to restart supplying equipment for Gorakhpur, managing director and CEO G.K. Pillai told Reuters.

Moves to win over the Americans coincide with Russia’s push to build more nuclear reactors in India.

Earlier this month, during President Vladimir Putin’s visit, Russia’s state-owned Rosatom said it would supply 12 nuclear energy reactors for India over 20 years, following two it has already built in the south of the country.

G. Balachandran, one of India’s foremost nuclear affairs experts, said Russia appears to believe it can operate with the existing nuclear liabilities law without suffering a loss.

This week U.S. and Indian nuclear affairs officials, as well as representatives from the NPCIL Ltd, Westinghouse and GE-Hitachi met to advance implementation of the nuclear deal, an Indian foreign ministry official said.

The group is meeting again early next month, before Obama arrives, to move the discussion forward.

Creating the insurance scheme to help projects get off the ground is GIC’s “top priority”, chairman Ashok Kumar Roy said in an email, although he cautioned that the timing, coverage and level of participation were yet to be finalised.

(Editing by Mike Collett-White)