The IAEA Applies Incorrect Standards, Exceeding its Legal Mandate and Acting Ultra Vires Regarding Iran

The other day I was reading over the most recent IAEA Director General’s (DG’s) report to the IAEA Board of Governors (BOG) on implementation of safeguards in Iran. The report was submitted on 8/30/12 (GOV/2012/37). I had on my mind some comments and queries that Cyrus Safdari had kindly sent to me. The DG’s report includes the following paragraph in its summary section, which is very similar in language to the summary statements that have been included in other DG reports on Iran over the past approximately six years – though the relevant language has evolved significantly over that time and become more consolidated and conclusory:

 While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, 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.

So here the DG begins by saying that the IAEA can verify that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use. This mandate for investigation by the IAEA, and the standard of assessment for this investigation, come directly from Iran’s INFCIRC/153 comprehensive safeguards agreement (CSA), in Article II, which reads:

 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 that such material is not diverted to nuclear weapons or other nuclear explosive devices.

But the DG’s report doesn’t stop there. It continues on to then apply two separate and additional legal standards and make two additional assessments based upon them. These separate and additional legal standards are:

1)      “the absence of undeclared nuclear material and activities in Iran”; and

2)      “that all nuclear material in Iran is in peaceful activities.”

So that got me to thinking, where do these other two legal standards come from? It is an important question, because essentially these two standards, together with the first clearly applicable standard, are the legal standards that the IAEA has been using as its scope of mandate for investigation and assessment regarding Iran’s compliance with its safeguards agreements for at least the last six years or so. And it’s been on the basis of the application of these legal standards, that the IAEA has continued to consider Iran to be in noncompliance with is safeguards agreements, which fact it has reported to the U.N. Security Council and to the world.  This assessment by the IAEA has in turn shaped the diplomatic and security climate surrounding Iran, and the substance of negotiations between Iran and the P5+1. It has also formed a basis of asserted legitimacy for the economic sanctions applied both multilaterally and unilaterally by the West that have crippled the Iranian economy. So it’s important to know whether these legal standards are correct, in order to know whether the investigations and assessments based on them are legally correct.

I think there are two sources from which the IAEA would say these two additional legal standards, and the IAEA’s mandate to apply them, derive. However, as I will show herein I think that in both instances this argument is incorrect. And as a result of this analysis, I will argue that these two additional legal standards are ultra vires the IAEA’s authority to apply to Iran, and to be the basis for investigations and assessments by the IAEA.  I conclude that the only lawful standard for the IAEA to apply is the first of the three standards:  “that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use.” And that pursuant to that sole lawful standard, Iran is in full legal compliance with its safeguards agreements with the IAEA, as the DG once again confirmed in his 8/30/12 report.

A. UNSCR 1737

The first place that I’m confident the IAEA’s Office of Legal Affairs (OLA) would point to as the source of authority for these standards is U.N. Security Council Resolution 1737, adopted in 2006.

To paraphrase, in Resolution 1737 the UNSC commanded Iran to take the steps that the IAEA thought necessary to restore confidence in the peaceful nature of Iran’s nuclear program, that were expressed by the IAEA BOG in its decision recorded in GOV/2006/14.  These steps included ratifying and applying the IAEA Additional Protocol (AP). The UNSC also commanded Iran in Resolution 1737 to cooperate in all respects with the IAEA.

One possible interpretation of these provisions in UNSCR 1737, therefore, is that the UNSC was here commanding Iran to ratify and implement the AP, and to cooperate with everything else the IAEA says it must do. And the OLA argument would, I assume, be that if the AP was indeed binding on Iran, because of UNSCR 1737, then the two additional legal standards would in fact be part of the authorized mandate for the IAEA to use for investigation and assessment purposes.

But there are several problems with this argument.

The UNSC in paragraph 8 of Resolution 1737 “calls on” Iran to ratify the AP. The term “calls on” in UNSC Resolutions is widely considered by international lawyers to indicate invitational, as opposed to mandatory language. Why would the UNSC invite Iran to ratify the AP in paragraph 8, if they had already commanded them to ratify and implement it in paragraph 1? I think therefore that the best reading of Resolution 1737, is that the UNSC is not here directly commanding Iran to ratify and implement the AP. I also think, by the way, that the UNSC doesn’t have the authority to do that even if it wanted to, as I explain in this recent article in the Georgetown Journal of International Law, entitled “The Security Council as a Legal Hegemon. ” However, this latter point is not necessary to argue here.

However, even if arguendo Resolution 1737 should in fact be interpreted to impose on Iran a legal obligation to ratify and implement the AP, and otherwise cooperate with the IAEA, then to the extent that Iran has not done these things – and to the extent that Resolution 1737 itself is lawful – Iran may well be in breach of these obligations of international law produced by this UNSC resolution. Iran certainly is in breach of the resolution in other ways, e.g. by not stopping uranium enrichment as the UNSC commands in paragraph 2. So there’s no real question that Iran is indeed in breach of Resolution 1737.

However, none of these decisions of the UNSC in Resolution 1737 give the IAEA any more investigative or assessment authority than it already had to apply legal standards in determining whether Iran is in compliance with its safeguards agreements. The UNSC did not impose the obligations of the AP on Iran through Resolution 1737. The most the UNSC even arguably did is to create an obligation on Iran to ratify and implement the AP. Iran may therefore be subject to this obligation to ratify and implement the AP, but that doesn’t make them subject to the actual substantive obligations of the AP itself. This is a fine legal point but an important one.

It must be remembered that the IAEA is not a general policeman of international law, or even of international nuclear energy law. And the UNSC in Resolution 1737 doesn’t attempt to make it such. Nor, again, I would argue, could the UNSC do that even if it wanted to. The IAEA as an international organization has only the international legal personality, and the mandate of authority, that it is given in its statute by its state creators, and that it receives through its bilateral safeguards treaty relationships with states.

It’s true that the UNSC in 1737 also asked the IAEA DG to give a report to the IAEA BOG on whether Iran was complying with all of these commands. However, that report is not the same as a report on safeguards agreement compliance. It’s just the DG choosing to comply with the UNSC’s request for him to give a report to the BOG on whether Iran has complied with the UNSC’s commands. This has nothing to do with the IAEA’s authority to investigate and apply legal standards to the question of Iran’s implementation of its safeguards agreements.

So at the end of the day, Resolution 1737 doesn’t enhance the IAEA’s authority to investigate Iran or to apply legal standards to determine Iran’s safeguards agreement compliance.  Even after UNSCR 1737, the IAEA still only has the investigative and assessment authority given to it through its safeguards agreements in force with Iran.

The current status of Iran’s AP agreement with the IAEA is that Iran has signed but has not ratified the AP, and thus it has not come into effect. And in fact the Majlis has made it quite clear that they will not ratify the AP under current conditions. These two facts together remove any AP legal obligations from Iran, pursuant to Vienna Convention on the Law of Treaties Article 18(a).

So at the moment, the only safeguards agreement in force between Iran and the IAEA is Iran’s INFCIRC/153 CSA. Therefore, any further mandate for investigation by the IAEA, and related legal standards for assessment, would have to come from the provisions of Iran’s CSA.

B. Iran’s CSA

The second source that the IAEA OLA would, I think, argue that these two additional legal standards, and their mandate to apply them, come from, is in fact Iran’s CSA itself.

As I was looking through DG reports to the BOG on Iran’s safeguards agreement implementation, I noticed a recurring footnote to the summary section that first appeared (as far as I can tell) in the May 31, 2010 DG report (GOV/2010/28). The footnote appears as footnote 49 in the 8/30/2012 DG’s report, and reads:

The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the nondiversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness) (see, for example, GOV/OR.864, para. 49).

Interesting. Well, let’s go back and look at Article 2 of Iran’s CSA:

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 that such material is not diverted to nuclear weapons or other nuclear explosive devices.

So there clearly is a grant of investigative and assessment mandate to the IAEA agreed to by the parties in Article II.  And the standard of assessment of this mandate can be more fully understood by further referring to Article 19 of the CSA:

 If the Board, upon examination of relevant information reported to it by the Director General, finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices, it may make the reports provided for in paragraph C of Article XII of the Statute of the Agency (hereinafter referred to as “the Statute”) and may also take, where applicable, the other measures provided for in that paragraph.

So we know from the summary paragraph of the 8/30/2012 DG’s report to the BOG, that the DG at least thinks that the BOG has confirmed an interpretation of Iran’s CSA Article II, whereunder the IAEA is mandated to investigate and assess not only the non-diversion of declared, safeguarded nuclear material within Iran, but also the “absence of undeclared nuclear activities in the state.”

I’m confident that this would then be the second legal source from which the OLA would say that these two additional legal standards derive. I think the argument would be that Article II authorizes the IAEA to investigate and assess “the absence of undeclared nuclear material and activities in Iran,” and that the assessment based upon this standard, added to the assessment based on the declared and safeguarded material standard, would allow the IAEA to authoritatively assess whether “all nuclear material in Iran is in peaceful activities.”  Although I would point out that this final standard doesn’t actually appear textually in either the CSA or the AP.

However, looking at this matter objectively, I can think of several problems with the DG’s expressed understanding here.

First, the only documentary evidence provided in support of this understanding of the DG is cited as GOV/OR.864, para. 49. And the footnote says that this document evidences the fact that the BOG has “confirmed” this interpretation. Notice from the citation format, that this document is a record of the oral statements made at a BOG meeting, specifically the BOG meeting that was held on Thursday, 30 March 1995, at 10.30 a.m. So let’s take a look at it. Here is paragraph 49 from that document reproduced in full:

 The CHAIRMAN said that, in reflecting on a summing-up which would command full acceptance in the Board, he had had the benefit of advice and inputs – often difficult to reconcile – from many representatives of Member States. It had not been possible to articulate all the views of every country in the summing-up, but he hoped that the text which he now proposed to read out, while not taking into account all the aspects of the discussion, would be seen to reflect the broad majority view in the Board: “The Board commends the Secretariat for the quality of document GOV/2784 and the work done in developing proposals for a strengthened and cost-effective safeguards system, together with the accompanying evaluation of their technical, legal and financial implications, otherwise known as ‘Programme 93+2′.”The Board reiterates that the purpose of comprehensive safeguards agreements, where safeguards are applied to all nuclear material in all nuclear activities within the territory of a State party to such an agreement, under its jurisdiction or carried out under its control anywhere, is to verify that such material is not diverted to nuclear weapons or other nuclear explosive devices. To this end, the safeguards system for implementing comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of States’ declarations, so that there is credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities.” It was recognized that under comprehensive safeguards agreements the States parties and the Agency have an obligation to co-operate fully in achieving effective implementation of the agreements. “While recognizing that a strengthened safeguards system will benefit from technological developments and call for greater access to relevant information and greater physical access to relevant sites for the Agency, either on the basis of existing authority provided for in comprehensive safeguards agreements or on the basis of complementary authority to be conferred by the States involved, while noting that some Governors have reservations at this stage about the need for greater access to sites and while not at this stage taking a decision on any of the specific measures proposed in document GOV/2784 or on their legal basis, which were not fully discussed at the present session, the Board endorses the general direction of Programme 93+2.”The Board takes note of document GOV/2784 and requests that the Secretariat, taking into account the comments made during our discussions and any comments which may still be received from interested Member States, submit for the Board’s consideration in June specific proposals for a strengthened and cost-effective safeguards system. Naturally, the technical, legal and financial implications of these proposals should also be covered. It is understood that the Secretariat will take into account the principles set out in paragraph 4 of document INFCIRC/153.”

This paragraph cited by the DG as evidence that the BOG has confirmed the stated interpretation in footnote 49 ABSOLUTELY DOES NOT provide evidence for this assertion. Note that all that is happening at this point in the meeting is the Chairman is reading out a statement that he has written, giving his own views. The transcript notes that the Chairman “hoped that the text which he now proposed to read out, while not taking into account all the aspects of the discussion, would be seen to reflect the broad majority view in the Board.” He then reads the statement. The only question presented to the BOG for their vote at this point is the statement “the Board endorses the general direction of Programme 93+2” and then some procedural statements. But no such vote is ever actually taken. And you find out why if you keep reading the document. Here are some excerpts from the rest of the meeting, including the next several paragraphs quoted in their entirety:

 50. Copies of the summing-up were being circulated to all present.

51. Mr. ARCILLA (Philippines) said that the summing-up just read out by the Chairman seemed to be nothing but a proposed decision of the entire Board that was apparently acceptable to certain delegations which the Chairman had deemed fit to consult initially.

52. How could the Board even begin to talk about making comprehensive safeguards more efficient, transparent and cost-effective when its own working procedure could not be regarded as such? . . . . .

56. On the question of transparency, it was perhaps the Chairman’s privilege to select the delegations with which he was going to consult. The Philippines delegation had no idea as to the criteria applied in the selection, but the Board should not lose sight of the fact that it consisted of 35 members with varying views and that its decisions were taken by all its members. He believed that planned consultations should be announced in advance and that all Board members should be invited to participate.

57. The Philippines delegation had apparently failed to impress upon the Board the seriousness of its position on safeguards. As the points which it had made had not been reflected in the summing-up and as his delegation had not had the privilege of explaining them in the consultations, he would now make them again for the consideration of the entire Board. . . . .

59. Ms. MACHADO QUINTELLA (Brazil) said that, as she had stated on previous occasions, her country was strongly committed to the cause of non-proliferation and supported the strengthening of the safeguards system in the sense both of making it more cost-effective and efficient and of enhancing the Agency’s ability to detect non-declared nuclear material and activities. How those goals should be achieved, however, was something still to be determined, and her delegation was looking forward to a thorough, open discussion on Programme 93+2 in June. . . . . .

61. Thanking the Chairman for having noted in his summing-up the reservations at the present stage of some Governors about the need for greater access to sites, she said that her delegation was among those which did not want to prejudge the contents of the strengthened safeguards system.

62. She appreciated the clarification given by the Director General in his introductory statement to the effect that acceptance of the recommendations made in document GOV/2784 would not imply endorsement of any of the specific measures described in that document or of the legal interpretations advanced by the Secretariat. See para. 31 of GOV/OR.858.

63. Mr. CHEN (China) said that his delegation had two difficulties with the Chairman’s summing-up. Firstly, the phrase “the Board endorses the general direction of Programme 93+2″ was rather vague and perhaps redundant. In fact, several delegations had made important comments regarding the general direction of the future strengthened and more cost-effective safeguards system, and the phrase did not do justice to those comments.

64. Secondly, the final sentence of the summing-up (“It is understood that the Secretariat will take into account the principles set out in paragraph 4 of document INFCIRC/153.”) seemed to be an attempt to reflect views which had been put forward by his delegation and some other delegations. If it was such an attempt, it had not succeeded. Rather than talking of the principles set out in paragraph 4 of document INFCIRC/153 being taken into account by the Secretariat, one ought to say clearly that the strengthened safeguards system should be implemented in a manner designed to avoid hampering the economic and technological development of States, undue interference in States’ peaceful nuclear activities, the promotional activities of the Agency and international co-operation in the peaceful utilization of nuclear energy. . . . .

73. The CHAIRMAN invited the Director General to explain his understanding of the phrase “the Board endorses the general direction of Programme 93+2″.

74. The DIRECTOR GENERAL said that, in his view, the phrase was not unnecessary and by endorsing the general direction of Programme 93+2 the Board would not be approving specific measures.

75. With regard to the last sentence of the summing-up, he did not think it was necessary to spell out the whole of paragraph 4 of document INFCIRC/153; the sentence could be amended to read something like: “A strengthened safeguards system will respect the principles set out in paragraph 4 of document INFCIRC/153″.

The meeting rose at 1.5 p.m.

Doesn’t that make for some great reading? Note again that there is never a vote by the BOG on the Chairman’s statement. The statement is his own alone and is never endorsed by the BOG.  Quite the contrary, most of the comments made after the Chairman read the statement are critical of the statement and of the process the Chairman had followed in producing it. There’s also the wonderful language in paragraph 62 in which the Representative of Brazil says “She appreciated the clarification given by the Director General in his introductory statement to the effect that acceptance of the recommendations made in document GOV/2784 would not imply endorsement of any of the specific measures described in that document or of the legal interpretations advanced by the Secretariat.”  So here we see that the DG himself had told the BOG that even if they did vote to endorse the document under discussion, this endorsement would not imply an endorsement of the DG’s legal interpretations, which were probably the legal interpretations being parroted by the BOG Chairman.

So to summarize, the statement in footnote 49 of the DG’s 8/30/2012 report to the BOG, in which the DG states that “The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the nondiversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)” IS UTTERLY FALSE. The BOG confirms nothing in this cited document, and certainly does not confirm this legal interpretation being asserted by the DG.

Before moving on, this in itself is kind of a big deal, isn’t it? I mean, if you read the document the DG cites to in his report, it’s transparently clear that the DG’s description of what the document says is just plain false. What’s up with that? Was this just negligence on the part of the IAEA OLA? Did they really think that this document showed the BOG confirming this interpretation? How is that possible? Read the document for yourself. There’s no way any competent lawyer, or just intelligent lay person, in my opinion, could think that this is in fact what happened during the transcribed meeting.  Or alternatively, and I have to say that this is a more persuasive explanation to me, was this a little bit more than just negligence – maybe a little slight of hand by the OLA lawyers?  An intentional attempt to add some apparent legal legitimacy to the DG’s analysis and conclusions by inserting a reference to an obscure IAEA document that they knew didn’t really provide such legitimacy, but hoped that no other independent lawyers would actually take the trouble to look up and call them out on their intentionally erroneous interpretation? For an agency that climbs all over states for making false statements in reports, this seems more than a little ironic to me.

But back to the analysis.  Even if, counterfactually, the BOG had formally decided that it deemed CSA Article 2 to mean what the DG asserts, it’s worthwhile to note that this would not have been the end of the inquiry into what the provision actually does legally mean. Remember, a CSA is a bilateral treaty signed between the IAEA and a state – here Iran. One party to the treaty doesn’t simply get to decide what the treaty’s provisions mean. Of course, the parties together can decide what the treaty means. So the first place to look for guidance on interpretation of a treaty, is in the treaty itself. And there is in fact a section of Iran’s CSA entitled “Interpretation and Application of the Agreement and Settlement of Disputes.” The provisions in this section certainly don’t give any special right of interpretation to the IAEA BOG. In fact, in article 22 the treaty provides that:

 Any dispute arising out of the interpretation or application of this Agreement, except a dispute with regard to a finding by the Board under Article 19 or an action taken by the Board pursuant to such a finding, which is not settled by negotiation or another procedure agreed to by the Government of Iran and the Agency shall, at the request of either, be submitted to an arbitral tribunal . . .

So again, even if the BOG had formally approved the Chairman’s statement of interpretation, this would have had a negligible effect on the actual, correct legal interpretation of Iran’s CSA, Article II.

But let’s stay on this question of the DG’s legal interpretation of Article II, that the OLA would likely argue forms the basis of authority for the additional standards of review employed by the DG in his 8/30/2012 report to the BOG.  Is this the correct interpretation of Article II?

Well, if this substantive question of legal interpretation were ever to be brought by Iran and the IAEA to a duly appointed arbitral panel for dispute resolution, how would the arbitral panel approach the question of interpretation? They would apply the rules on treaty interpretation contained in the Vienna Convention on the Law of Treaties (VCLT) Articles 31 & 32.

Now, if I was writing a book or doing this analysis for a client, I’d go through the whole analysis step by step. But this is a blog post, and it’s already alot longer than it should be. So I’m going to be a bit cursory in this analysis.

So, does Iran’s CSA Article II authorize and require the IAEA to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)? And do either Article I or Article II of Iran’s CSA authorize the IAEA to assess whether all nuclear material in Iran is in peaceful activities?  Well, here are the articles in their entirety:

 Article I

The Government of Iran undertakes, pursuant to paragraph 1 of Article III of the 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 II

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 that such material is not diverted to nuclear weapons or other nuclear explosive devices.

The first and primary step in a VCLT treaty interpretation is to discern the ordinary meaning of the words in their context within the treaty, and in the light of the treaty’s overall object and purpose.

In Article II the IAEA only has the right and obligation to ensure that safeguards are applied “in accordance with the terms of this agreement.” And if you look at the terms of the rest of the agreement, which also of course form the context for Article II, there is clearly a process stipulated whereby that is to be done. And here I’m going to crib from my 2009 book, pgs. 20-21 (footnotes excluded), where I summarize that process:

 The basic system established by INFCIRC/153 is one in which states have an obligation to keep detailed records “on all source or special fissionable material in all peaceful nuclear activities,” and to provide the IAEA with design information on facilities in which such materials are kept, as well as well as access to such facilities for IAEA inspectors.

The IAEA’s role is essentially one of verification of the details on the location and handling of nuclear materials provided to the Agency through national reporting.  In order to fulfill this role, the IAEA is to engage in routine inspections of declared facilities, including sampling of the environment within and outside of such facilities.  However, the INFCIRC/153 system was constructed to impose the minimum burden necessary upon NNWS, and to be applied in a manner designed “to avoid hampering” technological development, “to avoid undue interference” in civilian nuclear energy, and “to reduce to a minimum the possible inconvenience and disturbance to the State.”  Thus, as one result, IAEA inspectors are not granted rights of access to all parts of safeguarded facilities, but only to agreed “strategic points” within facilities.

I think that the INFCIRC/153 CSA agreement is quite clear in Article II, which references the rest of the agreement, that it exclusively authorizes the IAEA to investigate the question of whether declared, safeguarded fissile materials have been diverted to non-peaceful uses within the state treaty party.  I think that by the plain meaning of its terms, Article II does not authorize the IAEA to investigate either the question of whether there are undeclared nuclear activities within the state party, or the question of whether all nuclear material in the state is in peaceful activities. There’s just no textual support for either of these assertions of interpretation, and in my view the plain meaning of the terms, referencing as they do the rest of the agreement and the process detailed therein, is very clear that the IAEA has only a limited mandate pursuant to Articles I & II, and that is to investigate the question of whether declared, safeguarded fissile materials have been diverted to non-peaceful uses within the state treaty party, and to make an assessment exclusively according to that legal standard.

Article 31 of the VCLT does give a number of other sources of evidence to evaluate in interpreting a treaty provision, in addition to the context of the provision which I’ve already considered.  Article 31(3) provides that these sources include:

 (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation

I think that the subsequent practice of application of INFCIRC/153 agreements by states and by the IAEA after its adoption in 1972, IAEA decisions regarding safeguards agreements, and the creation and implementation of the Additional Protocol in 1997, all evidence that my interpretation of the limited mandate given the IAEA in CSA Article II is correct.

Again cribbing from my 2009 book (footnotes excluded):

 The Additional Protocol has been characterized as “an effort to transform IAEA inspectors from accountants to detectives.”  It attempts to do this by supplementing the INFCIRC/153 safeguards system in two primary areas.  First, the Additional Protocol requires states to produce a more expanded declaration regarding nuclear fuel cycle activity being carried out within its territory than that required by the INFCIRC/153 system.  This expanded declaration is to include details on nuclear materials and the facilities involved in producing, processing and utilizing them, as required under INFCIRC/153, but in addition must also include information on all nuclear fuel-cycle related research and development activities that do not themselves involve nuclear materials, but which may be used in the production of nuclear materials, including activities being carried out in privately owned facilities.  This expansion of information required from the states significantly widens the Agency’s understanding of the full range of nuclear related activities being carried on within a state. This more complete understanding allows the IAEA to better assess the purpose and direction of nuclear programs within NNWS.

Second, the Additional Protocol provides for the IAEA to have “complementary access” to that it enjoys under the INFCIRC/153 system.  INFCIRC/540 gives the IAEA the right of access “on a selective basis in order to assure the absence of undeclared nuclear material” to “any place” on the site of a declared facility, and not only to agreed strategic points, as under the INFCIRC/153 system. It further provides for IAEA access to all sites on which information has been provided by the state regarding research and development activities on nuclear fuel cycle related technologies, in order “to resolve a question relating to the correctness and completeness of the information provided.”

Additionally, INFCIRC/540 provides for IAEA access to “any location specified by the Agency” in order to carry out “location-specific environmental monitoring.”  This provision enables IAEA inspectors to nominate undeclared locations at which they would like to take soil, water and air samples in order to detect the presence of fissile materials, and thus potentially produce evidence of undeclared nuclear activities.

The notice requirements for the carrying out of inspections under the Additional Protocol are significantly shortened from their length under the INFCIRC/153 system, and are typically set at 24 hours, down from the normal one week notice period under INFCIRC/153.  The Additional Protocol further requires the state to grant multi-entry visas to inspectors.  Under the INFCIRC/153 system, this was not a requirement, and the necessity in many states of inspectors obtaining entry visas, often a months long process, served to give the state even earlier warning of impending inspections.

These supplements to the information gathering ability of the IAEA, as well as its ability to conduct inspections in a more efficient and effective manner, are significant improvements to the Agency’s ability to verify not only the correctness, but also the completeness of state declarations.  They allow for increased confidence in the determinations of the IAEA that no undeclared nuclear-related activity is being carried out in a safeguarded territory.

So here’s my question. Why would the AP, which was specifically designed to increase the mandate of the IAEA to move from accountant to investigator, from just looking at declared stuff to actually trying to find out if there was undeclared stuff, and thus to determine whether all nuclear material is in peaceful activities – why would that have been necessary if the DG’s interpretation in footnote 49 were correct, and Article II of the CSA already gave the DG that authority? If the DG’s expanded interpretation of the CSA were correct, there would have been no need for an AP, would there? The fact that the IAEA and its member states recognized that the CSA was limited in the mandate it gave to the IAEA, and acted on that understanding to create and implement the AP to expand that mandate, in my opinion argues strongly for the limited interpretation of CSA Article II’s meaning that I advance here.

Conclusion

So let’s return to the summary from the 8/30/2012 report that started this analysis. What I have argued in this post is that two of the three legal standards that the DG states in this summary as being part of the IAEA’s mandate for investigation and assessment of Iran’s implementation of its safeguards agreements, are in fact not part of the lawful mandate of the IAEA. Specifically, these two standards are:

1)      “the absence of undeclared nuclear material and activities in Iran”; and

2)      “that all nuclear material in Iran is in peaceful activities.”

It doesn’t matter whether these additional standards in the summary relate to things that, if true, could very well be breaches of international law, including the NPT. The IAEA is not some general FBI-like investigator of all alleged breached of international nuclear energy law. The IAEA is an international organization that was created by states to have a limited monitoring and verification mandate. This mandate is given to it by states parties in its Statute, as well as in its bilateral safeguards agreements. This mandate cannot be aggrandized or enlarged by unilateral fiat of the DG or the BOG, or the U.N. Security Council for that matter. Any increase to the IAEA’s investigative and assessment mandate with regard to any state, would need to be agreed to by that state, which Iran certainly hasn’t done in this case.

In fact, in a 2006 DG report (GOV/2006/27), Mohamed Elbaradei essentially admitted that the BOG had acted outside of its legal mandate based in its Statute and safeguards agreements, in its imposition of requirements of cooperation on Iran.  He stated in his report that:

 In [BOG Resolution (GOV/2006/14)], the Board deemed it necessary for Iran to . . .

implement transparency measures, as requested by the Director General, including in GOV/2005/67, which extend beyond the formal requirements of the Safeguards Agreement and Additional Protocol, and include such access to individuals, documentation relating to procurement, dual use equipment, certain military-owned workshops and research and development as the Agency may request in support of its ongoing investigations (Bold type added)

These ultra vires legal standards of investigation and assessment have been the basis for the IAEA’s decisions regarding Iran since at least 2006, and have been the apparent underpinning authority for, inter alia, the IAEA’s inquiries into “possible military dimensions” of Iran’s nuclear program.  I wrote about this specific issue previously here, and pointed out how this subject of investigation and assessment is ultra vires the IAEA’s authority. The present analysis, however, goes even deeper to show that the core legal standards that the IAEA has used in its official reports as the basis for its scope of investigations and assessment on any issues outside of the question of non-diversion of declared, safeguarded nuclear material in Iran have been unlawful. And that in applying these unlawful legal standards in its investigations and assessments, the IAEA has, since at least 2006, been acting ultra vires its authority. In short, it has been acting illegally.

Pursuant to the only lawful standard for investigation and assessment by the IAEA, Iran is in full legal compliance with its safeguards agreements, as the DG confirmed once again in his 8/30/2012 report.

Again, this is an important subject because the IAEA’s assessment of Iran’s compliance with its safeguards agreements forms a vital element of the diplomatic and security dialogue surrounding Iran. In this context, is extremely important that the IAEA does its job correctly and lawfully, and does not try to overreach its authority in order to be helpful to certain influential states, and thus politicize its important work.

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57 Comments on “The IAEA Applies Incorrect Standards, Exceeding its Legal Mandate and Acting Ultra Vires Regarding Iran”

  1. Barry S. Kellman says:

    To say that I disagree with the substance and direction of this post is putting it mildly. Let me begin with where we agree. Yes, the IAEA’s authority to judge Iran’s nuclear capabilities is important (imperative) to the legitimacy of sanctions on Iran (whether crippling or not). Yes, the question of where the IAEA’s legal standards come from is an important question because the IAEA has based its determinations that Iran is in noncompliance obligations on those standards. From there, the argument about the illegitimacy of the IAEA’s determinations exhibits a remarkably constricted view of the role and nature of international law in disregard of the law’s primary imperative of international peace and security.

    To begin a discussion of UNSCR 1737 with a discussion of how lawyers view the verb “calls on” is to take the issue entirely out of context. The stated thrust of 1737 is as follows:
    Acting under Article 41 of Chapter VII of the Charter of the United Nations,
    1. Affirms that Iran shall without further delay take the steps required by the IAEA Board of Governors in its resolution GOV/2006/14, which are essential to build confidence in the exclusively peaceful purpose of its nuclear programme and to resolve outstanding questions.

    In this regard, Iran is obligated to suspend its sensitive nuclear activities as delineated in para. 2. The cited para. 8 asserts that “Iran shall provide such access and cooperation as the IAEA requests to be able to verify the suspension outlined in para. 2 and to resolve all outstanding issues.” The second clause of para. 8, calling upon Iran to ratify the Additional Protocol is presented in the blog post as if it is the sum and substance of UNSCR 1737. A reading of the resolution of the whole makes it patently clear that this obligation is a part of how Iran must fulfill its broader obligations to enable the IAEA to verify suspension of its “sensitive nuclear activities.” The rhetorical question of why would the UNSC “invite Iran to ratify the AP in para. 9 if they had already commanded them to ratify and implement it in paragraph 1” is nonsensical. The inclusion of the obligation to ratify the AP is a specific element to the broader purpose.

    It is asserted that UNSCR 1737 does not “give the IAEA any more investigative or assessment authority than it already had.” Again, the purpose of 1737 is to say clearly that Iran must take steps required by the IAEA “which are essential to build confidence….” Although I would argue that the UNSC most certainly did impose the obligations of the AP through 1737, the important point is that the IAEA was explicitly authorized to determine precisely what steps are required. The blog post again implies that the 1737 is all about requiring Iran to adopt the AP when it is so patently obvious that the resolution is directed at the outcome of verifiability of peaceful purposes.

    More broadly, the assertion is made that “the IAEA is not a general policeman of international nuclear energy law.” While there is no need to argue every conceivable nuance about the IAEA’s authority, the IAEA’s mandate is to verify the obligations that nations, including Iran, have undertaken pursuant to the NPT. There are limits to this authority, of course (just as there are on policemen’s authority), but those limits cannot be narrower than the explicit authority given to the IAEA by 1737 (and other resolutions). It must be remembered that nuclear proliferation has long ago been deemed a threat to international peace and security, and the IAEA is the exclusive enforcer of obligations in that regard.

    The blog post admits that the IAEA DG is mandated to report on Iran’s compliance, but then the assertion is made that the DG is just choosing to comply with the UNSC’s request by furnishing this report – “this has nothing to do with the IAEA’s authority.” Again, this is cabined formalism that altogether ignores the objective of 1737, the primacy of the IAEA’s authority in verifying compliance with peaceful purposes, and the linkages of all this to the international community’s (and international law’s) imperative of international peace and security. The assertion inverts mechanisms and purpose in a domain where the purpose could not be more clearly and virtually universally understood.

    There is a larger point. UNSCR 1737 was adopted pursuant to the Security Council’s authority under Chapter VII. As every law student knows, every state is bound by Chapter VII resolutions through the operation of Article 25. Thus, Iran is obligated to “take the steps required by the IAEA.” The sentence that “1737 doesn’t enhance the IAEA’s authority to investigate Iran” might be arguable only if Iran were to withdraw from the Charter. As Iran has accepted its obligations under the Charter generally, it cannot be denied that obligations following therefrom are binding.

    All this leads to the must stunning statement of all that “it doesn’t matter” whether Iran’s nuclear activities “could very well be breaches of international law, including the NPT.” Yes, it does matter. I think the proposition so obvious as to scarcely need defense.

    –Barry Kellman

    • Dan Joyner says:

      Barry,
      I actually don’t see that you have in your rejoinder pointed out any real defects in my legal analysis or conclusions in this piece. Your entire argument seems to be that my analysis is “formalistic.” To me, that’s not even a criticism, and it certainly doesn’t imply a defect of legal analysis. Frankly, when someone responds to a legal argument by calling it formalistic, and not in keeping with what they think is the more “realistic” view of the law, or what the “spirit of the law” means, it usually just means that the critic doesn’t like the conclusions of the legal analysis, and thinks that the institution making the law in question should have more legal authority than it actually does. To me, formalism just means jurisprudential correctness, without regard for the desirability of the conclusion of that analysis.

      I also think that, whatever theoretical arguments we might have about formalism versus realism in the domestic law context, the context of international law is quite different, and to my mind is even more deserving of a formalistic approach to law. In international law we are dealing with sovereign states, who hold all the attributes of international legal personality. They enter into binding legal obligations that should be interpreted in a limited fashion. This follows when they choose to create an international organization, and endow it with certain specified aspects of international legal personality, as they have done with both the IAEA and the UN. I think there are many people who want international organizations and their organs, including the UNSC and the IAEA BOG, to have more authority than that which their constituting legal documents actually give them. I think that often tends to depend on whether your sympathies lie with the powerful states that essentially control these organizations, or with the developing states that are typically the subject of bullying by these organizations. Although, I would note importantly that many people who want to aggrandize the power of international organizations when they are going after a state like Iran, certainly do not have the same view when, for example, the law of the United Nations and the decisions of the UNSC were not on the side of the U.S. when it wanted to invade Iraq in 2003. I think that formalism and realism are often selectively chosen, depending on the issue and on the states involved.

      Neither the IAEA BOG nor the UNSC are super legislatures, endowed with a general lawmaking power. And I think it’s a mistake to think of them as such. I have written on this subject extensively in the context of the UNSC. See the article I cited in the post, as well as chapters 4 & 5 of my 2009 book. I think the UNSC in particular has tried to make of itself a super legislature in recent years, and it appears that some people are buying into this idea, even when the UNSC IS ONLY 15 OUT OF THE CURRENT 190 STATES IN THE WORLD. An institution of that nature should not, in my opinion, have its legal edicts aggrandized by realist theories that vaunt the spirit and not the letter of the law.

      I will essentially leave my comments there, because as I said I don’t see any specific defect in my legal analysis pointed out in your comments. You apparently think it’s enough to say I’m missing “the point” and “the thrust” and “the imperative” of the legal sources.

      However, I have to point to a couple of sentences in your comments that I really feel betray a lack of understanding of the basic sources of law in this area. You say:

      “ . . . the IAEA’s mandate is to verify the obligations that nations, including Iran, have undertaken pursuant to the NPT” and “It must be remembered that nuclear proliferation has long ago been deemed a threat to international peace and security, and the IAEA is the exclusive enforcer of obligations in that regard.”

      Barry, these are both patently incorrect statements. I don’t have the room here to explain how they are incorrect, but my 2011 book contains the explanation.

      • andrewfilis says:

        “I think that formalism and realism are often selectively chosen, depending on the issue and on the states involved”.

        Hear, hear!

      • Johnboy says:

        “You apparently think it’s enough to say I’m missing “the point” and “the thrust” and “the imperative” of the legal sources. ”

        It is ever thus, isn’t it?

        Treaties have text, and so if you want to know “the thrust” of that treaty then, you know, a good place to start is to look at the text..

        Mind you, if the text says *this*, but someone wants it to mean *that*, weelllllllll, let’s not look too closely at the text, shall we?

        I read posts like Barry’s and I can’t help thinking of Humpty Dumpty: When I say a word it means whatever I want it to mean, neither more nor less.

    • Irani says:

      Barry:
      “UNSCR 1737 was adopted pursuant to the Security Council’s authority under Chapter VII. As every law student knows, every state is bound by Chapter VII resolutions through the operation of Article 25″.

      What about the Article 24 pargraph 2 which requires “In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. …”

      Iran’s “explanatory notes” regarding the resolutions have mentioned the shortcomings of the BOG and UNSC adherence to “Purposes and Principles of the United Nations” (Iran’s communication with Agency, for example: http://www.iaea.org/Publications/Documents/Infcircs/2012/infcirc837.pdf
      – section G)

  2. yousaf says:

    There is also the fact that it is a logical impossibility to prove:
    1) “the absence of undeclared nuclear material and activities in Iran”; and

    2) “that all nuclear material in Iran is in peaceful activities.”

    Unless one occupies every square centimeter of Iran. Even then there could be a possible facility under some lake that the IAEA did not find.

    Can the IAEA vouch for (1) and (2) in ANY country? Can they vouch for (1) and (2) in Argentina and Brazil?

    Even after Parchin is inspected, and any number of other buildings, one cannot prove that Ahmedinejad’s uncle’s maid’s grand-daughter’s school yard might not have some enriched U buried in it for some possible future nefarious non-peaceful purpose.

    Proving a negative is a logical impossibility as well as being legally problematic.

    • The IAEA confirms the “absence of undeclared material” and thus the “exclusively peaceful nature” of a country’s nuclear program ONLY for countries that have ratified the Additional Protocol. For countries that have agreed to the basic safeguards, the IAEA’s only function is to measure the declared nuclear material and verify that none of that declared material is been “diverted to non-peaceful uses”. Since Iran is not a signatory to the AP, where does the IAEA get the authority to demand that Iran abide by the standards of the AP? (Nevermind for the moment the fact that Iran nonetheless voluntarily implemented the AP for about 2 years, and regularly exceeded it by allowing inspections of non-nuclear sites such as Parchin — twice)

  3. As the IAEA report itself stated in its February 2006 report:

    “absent some nexus to nuclear material, the Agency’s legal authority to pursue the verification of possible nuclear weapons related activity is limited.”

    And yet today the IAEA is demanding accees to non-nuclear sites and information.

    And as Elbaradei explained in a 2005 interview, the IAEA inspectors do not have carte blanche to go around poking their heads into every location in a country:

    “Mind you, we don’t have an all-encompassing mandate to look for every computer study on weaponization. Our mandate is to make sure that all nuclear materials in a country are declared to us.”

    And yet today the IAEA is demandind access to specifically alleged “studies on weaponization” that involved no nuclear materials.

  4. yousaf says:

    The IAEA says that it cannot prove:

    1) “the absence of undeclared nuclear material and activities in Iran”; and
    2) “that all nuclear material in Iran is in peaceful activities.”

    The response to that is “That is OK, no-one tasked you with doing so”

    So it is perfectly OK that the IAEA cannot do (1) and (2) — that was never their job, besides the fact that it is logically impossible.

  5. Mohammad says:

    Thanks for the thorough analysis, and also thanks to Barry Kellman for challenging it. This is a very informative discussion, which can be used as a reference.
    As another related note, I wonder if the UNSC resolutions against Iran can really be justified under Chapter VII of the UN charter (first article copied below)? I mean I really doubt that 3.5% uranium enrichment at the time resolution 1737 was adopted, amounted to a “threat to peace”, especially considering that Iran was implementing the Additional Protocol until its case was referred to the UNSC in early 2006.

    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.”

    Is there any objective legal standard on how to identify “threats to international peace”?

    • Cyrus Safdari says:

      Even if there was an objective standard, who is to enforce it? The UNSC has declared itself the sole competent authority to judge the legality of its own actions. This is one of the big current legal disputes in international law.

      People think that this dispute over Iran’s nuclear program is just about that nuclear program but in fact it stands at the forefront of many on-going international controversies. Limits to the powers of the UNSC in the post-Cold War era, the on-going dispute over attempted efforts to place limits on who can enrich uranium and who can’t, the evolving standards on the use of force, the legality of secondary sanctions, international humanitarian liability for sanctions, etc etc. This is all the much broader context.

    • andrewfilis says:

      There cannot be any objective standard in the determinations of the UNSC in relation to Art 39 powers when the very group itself is founded on the privileged position within the UN system of a tiny group of permanent members who forged a global rules-based system which buttresses their interests. Rather than wish or argue for an Art 39 objective standard why not argue for the rationalisation of the UN system and the removal of such privileges between (notionally) legally ‘equal’ sovereign entities?

    • yousaf says:

      Mohammad raises an important point: what or who determines a “threat to the peace” such that Chapter VII sanctions can be kicked off? Even now, the US IC confirms that no decision has been made to weaponize in Iran with “high confidence”. Since, at the moment, Iran’s nuclear program is not known to have military dimensions what constitutes the threat to the peace? And if such a threat exists for Iran’s case, why not Brazil’s or Argentina’s?

      It would be good if some legal scholars could weigh in on this issue.

      • Dan Joyner says:

        Regarding the question of who determines whether there is a threat to the peace such as to trigger the UNSC’s authority to act, the UNSC itself has this authority, at least prima facie. It is sometimes referred to as their “competence de la competence,” or the competence to determine when they have competence. Article 39 is worded very broadly and ambiguously, and its difficult to find any justiciable limitation on this first instance power.

        Two thoughts, though. First, in my view, this discretion in the UNSC was not so much a problem in the days before the UNSC took such an extreme and in my view ultra vires view of its authority under Articles 40-42, to assume the mantle of both super legislature and super international court. My second thought is that the UNSC’s decisions are not beyond judicial review by the ICJ. I wrote about this extensively in my 2009 book.

  6. I think the problem lies with the wording of Article 2 of the CSA and more
    generally in the NPT:

    “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 that such material is not
    diverted to nuclear weapons or other nuclear explosive devices.”

    A lot of people would interpret the phrase “in all peaceful nuclear activities
    within the territory of [the state]” as being then FOLLOWED BY, as opposed to
    being MODIFIED BY, the phrase “under its jurisdiction or carried out under its
    control anywhere”.

    In other words, the article may be interpreted as meaning that not only the
    “peaceful nuclear activities” should be monitored, but ALSO ANY OTHER activities
    related to nuclear material anywhere in the state.

    In other words, it seems some people believe it should be interpreted as not
    distinguishing between “correctness” (of declared material) and “completeness”
    (investigation of undeclared material.).

    The Article in my view is ambiguous, first because it refers to “all source or
    special fissionable material in all peaceful nuclear activities” which seems to
    PREJUDGE or ASSUME whether the activity is “peaceful” on the face of it (which
    might be a priori true of some activities but not necessarily all), and then
    does not make clear whether the following phrases are intended to be applied
    solely to those “peaceful activities” or instead to ANY OTHER UNKNOWN activities
    that might exist.

    To accomplish the latter unambiguously, the phrase “in all peaceful nuclear
    activities” should have been removed and the Agency’s mandate specified as
    locating and monitoring ALL source and fissionable material whether declared or
    undeclared in the state being monitored.

    I think the problem is that some people think that the way it SHOULD be written
    is the way it IS written.

    Of course, the only way to truly distinguish the meaning as it is written is to
    look at the specific activities the IAEA and the state being monitored have
    agreed to allow to be undertaken in the monitoring program. This should
    establish that the meaning is as is averred here, i.e., to monitor declared
    materials solely.

    The real problem for the NPT, the IAEA and those who want “strengthened
    standards” is that it will forever be IMPOSSIBLE to truly establish no
    “undeclared activities” without a literal sampling of the earth of every square
    mile in the territory being monitored. Worse, there’s nothing stopping any state
    from buying an island in the China Sea or the South Pole under false identities,
    setting up a nuclear research station completely separate from its normal
    territorial boundaries and conducting weapons research underground so that even
    satellite detection would be infeasible.

    The current episode of the TV show “Strike Back” has a billionaire in South
    Africa doing precisely that.

    The NPT was negotiated to accomplish as much as it could based on what the NWS
    states wanted and what the NNWS would permit in terms of imposition on their
    sovereignty. It is not capable of doing more and it is being bent out of shape
    and corrupted in the attempt to do so, in furtherance of geopolitical agendas
    unrelated to its mandate.

  7. yousaf says:

    Would any legal scholars be able to throw some light on the provisions in the CSA about resolving conflicts between the iAEA and Iran which do not concern diversion of materials? My understanding is that CSA says that arbitration is the way to resolve such conflicts. Either arbitration is kicked off or the IAEA or Iran have to continue sans arbitration — absent diversion of fissile materials, my understanding is that the UNSC has no role in the dispute (?).

    • yousaf says:

      To expand:

      According Article 19 of Iran’s safeguards agreement, the IAEA may refer Iran to the UN Security Council only if the IAEA is “not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices”

      AND Art. 2 which states that the purpose of the safeguards agreement is for the “****exclusive***** purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”

      This is standard language in the all basic safeguards.

      Note further that even then, the IAEA’s model safeguards agreement (INFCIRC-153) imposes various limits on inspections, and requires that IAEA inspections avoid hampering or causing “undue inteference” with civilian nuclear programs, whilst also requiring that the IAEA collects the “minimum amount of information and data consistent with carrying out its responsibilities” and “reduce to a minimum the possible inconvenience and disturbance to the State.”

  8. [...] Iran’s compliance with its safeguards agreements for at least the last six years or so. http://armscontrollaw.com/2012/09/13/the-iaea-applies-incorrect-standards-exceeding-its-legal-mandat…   Iran was forced to enrich 20% by the US – Former Iran nuclear negotiator By Cyrus [...]

  9. Pierre-Emmanuel Dupont says:

    Dear Dan,

    I find your arguments very interesting. Obviously they deserve further investigation and research. I have just an initial comment for the moment:

    I had a look at the latest available IAEA ‘Safeguards Statement’ (covering 2011). In the summary (at p. 1), after dealing with safeguards in States applying a CSA plus an AP, the statement turns to safeguards activities ‘implemented for 61 States with comprehensive safeguards agreements in force, but without additional protocols in force’. It is stated that:

    For these States, the Secretariat found no indication of the diversion of declared nuclear material from peaceful nuclear activities. On this basis, the Secretariat concluded that, for these States, declared nuclear material remained in peaceful activities.

    However, special mention is made of Iran:

    While the Secretariat concluded that, for 2011, declared nuclear material in Iran remained in
    peaceful activities, it was unable to conclude that all nuclear material in Iran was in peaceful
    activities.

    The reason for this (absence of) conclusion is explained later in the Statement:

    23. While the Agency continued throughout 2011 to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement, as Iran did not provide the necessary cooperation, including not implementing its Additional Protocol, as required in the binding resolutions of the Board of Governors and the United Nations Security Council, the Agency was unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran and, therefore, was unable to conclude that all nuclear material in Iran was in peaceful activities.

    It is made quite clear here that, as you assume in your post, the IAEA considers that Iran’s obligation to implement the AP (or, alternatively, to apply AP-level standarts of safeguards) derives indeed from both UNSC 1737 and the BoG ‘resolution’ that you quote. In other words, Iran’s is subject by the IAEA to a ‘special treatment’, and the invoked legal basis for this is UNSC 1737 as well as the BoG ‘resolution’ referred to. This confirms that under ‘normal’ circumstances, i.e. for all (61) States other than Iran ‘with comprehensive safeguards agreements in force, but without additional protocols in force’, the IAEA limits itself to a finding of absence of ‘diversion of declared nuclear material from peaceful nuclear activities’, so that it concludes that for these States ‘declared nuclear material remained in peaceful activities’.

    • Dan Joyner says:

      A very useful observation, Pierre. Thanks for making it.

      • yousaf says:

        just fyi, I checked the text of UNSCR 1737 and it “calls upon Iran to ratify promptly the Additional Protocol;”

        It does not require Iran to do so.

    • yousaf says:

      Thank you.

      Quoted above is “….including not implementing its Additional Protocol, as required in the binding resolutions of the Board of Governors and the United Nations Security Council,”

      Is this true? Can the UNSC force or require Iran to implement the AP? Does UNSCR 1737 require that? Or does the resolution suggest that? The AP, being voluntary, should be an option for a state(?) or can the UNSC compel a state to implement the AP?

  10. So basically, the bit of skullduggery there, was Amano trying to stealthily apply the “93+2 Program” standard (which includes the “Additional Protocol”) on Iran, when this standard has not been approved by the IAEA members in general (many countries are explicitly opposed to it) and certainly Iran has not agreed to this standard either.

  11. [...] hour, it is not illicit for countries to have the capability to build a nuclear weapon. What is illicit is for Iran to divert its safeguarded enriched-uranium stockpile to any military uses — [...]

  12. [...] af atomenergiagenturet. Tilføjes kan det, at den ubegrundede særbehandling er ulovlig ifølge den ledende ekspert i loven på området. Det vides vitterligt ikke, om Iran overtræder ikkespredningstraktaten, og den særlige tolkning [...]

  13. [...] af atomenergiagenturet. Tilføjes kan det, at den ubegrundede særbehandling er ulovlig ifølge den ledende ekspert i loven på området. Det vides vitterligt ikke, om Iran overtræder ikkespredningstraktaten, og den særlige tolkning [...]

  14. [...] kan det, at den ledende ekspert på loven om nedrustning, Daniel Joyner, mener, at IAEA overtræder sit eget mandat. I en tale til Lauterpacht Centre for International Law, siger han, at man befinder sig i et [...]

  15. [...] konkluderer, at Iran ikke har overtrådt sine forpligtelser, og en førende atomspredningsekspert vurderer, at det internationale atomenergiagentur “applies incorrect standards, exceeds its legal [...]

  16. [...] A while ago I was contacted by an editor at the BAS who asked if I would be interested in participating in a roundtable discussion of my recent post here on ACL about the IAEA’s standards for investigation and assessment as applied to Iran. You can see the original post here. [...]

  17. [...] Apparently David just couldn’t resist making another legal assessment, even after our pointed conversation about his doing so a while ago.  Well, his assessment is just as wrong on this outing. Currently, the IAEA does not have a legal mandate to assess the completeness of Iran’s CSA declaration. Only its correctness, as I’ve been explaining in my contributions to the current Roundtable at the Bulletin of the Atomic Scientists site,  and as I discussed in greater detail in a previous post here .   [...]

  18. [...] AP in Iran’s case. UNSC decisions do not change this fact. I made all of these points in my original ACL post, so it’s not new thinking.   Basically, both Ford and Persbo clearly wish that the AP was in [...]

  19. [...] Roundtable by Ford and Persbo. And I’ve already responded to them there, with references to my original post here on ACL. So I don’t think there’s much new to respond to here in terms of substance. It does [...]

  20. Marianne says:

    DG’s statement is not UTTERLY FALSE. It is at most poorly referenced. Please see GOV/OR.865.

    Please review internal consistency of INFCIRC/153 rather than looking to other sources.

    Para. 18: Board can call on a state to take action in order to ensure that nuclear material subject to safeguards under the Agreement [all nuclear material in all nucear activities] is not diverted to nuclear weapons regardless of whether Para. 22 is invoked.
    Para. 19: if Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under the Agreement [all nuclear material in all peaceful nuclear activities] to nuclear weapons or other nuclear explosive devices ….

    There is no legal basis for interpreting the word “diversion” as a transfer from declared nuclear material stocks even if this has become the common usage. It applies equally well in the context of INFCIRC/153 to “diversion” of undeclared nuclear material to nuclear weapons.

    There is no legal basis to use or interpret the phrase “complete and correct” as it is commonly done. A declaration cannot be correct if it is not complete, i.e., if it omits either nuclear material subject to safeguards or facilities required to be reported. The phrase is better read as singular, rather than as two concepts, even if that has become common for descriptive purposes.

    INFCIRC/153 provides a tool to address the need to rule out undeclared nuclear material or activities and to do so at both declared and undeclared locations – special inspections. These may be made if the IAEA (the DG or the Board) considers that the IAEA cannot fulfill its responsibilities, one of which is to ensure that safeguards are applied to all nuclear material in all peaceful nuclear activities. Under this authority, the IAEA can get access to information and locations in adddition to the acess provided for in ad hoc or routine inspecions. This would include access anywhere in a facility (not limited to strategic points) or anywhere in a State.

    Taken as a whole, INFCIRC/153 provides all of the authority necessary to address the question of whether or not there are undeclared nuclear material or activities. IAEA cannot verify that nuclear material subject to safeguards has not been diverted to nuclear weapons without ensuring that there is no undeclared nuclear material.

    This is consistent with Board decisions at least in 1971, 1991, and 1995 and in the way in which it approached the DPRK situation.

    It is also consistent with IAEA practice since roughly 1980 in designing safeguards approaches for declared enrichment and reprocessing plants and for reactors in order to ensure that there is no undeclared production of nuclear material, for example HEU at enrichment plants or plutonium via undeclared irradiation at reactors, whether or not it is produced from declared material.

    Without any specific knowledge of it, it would be surprising if Iran had not accepted such safeguards approaches for its reactor and enrichment facilities in the facility attachments that it concluded with the IAEA. This would confirm its agreement to the principle of addressing undeclared nuclear material and activities.

    • yousaf says:

      Marianne says: “” that nuclear material subject to safeguards under the Agreement [all nuclear material in all nucear activities] “”

      Not true.

      The [ ] is wrong.

      It is not ALL. That even the IAEA admits: The IAEA is pretty crystal clear on this point:

      http://www.iaea.org/Publications/Factsheets/English/sg_overview.html

      QUOTE:
      ================
      “Basically, two sets of measures are carried out in accordance with the type of safeguards agreements in force with a State.
      One set relates to verifying State reports of ****declared**** nuclear material and activities. These measures – authorized under NPT-type comprehensive safeguards agreements – largely are based on nuclear material accountancy, complemented by containment and surveillance techniques, such as tamper-proof seals and cameras that the IAEA installs at facilities.
      Another set adds measures to strengthen the IAEA’s inspection capabilities. They include those incorporated in what is known as an “Additional Protocol” – this is a legal document complementing comprehensive safeguards agreements. The measures enable the IAEA not only to verify the non-diversion of declared nuclear material but also to provide assurances as to the absence of undeclared nuclear material and activities in a State.”
      ===============

      If the benefits of the Additional Protocol were available to the IAEA without a state having ratified the AP, then there would be no need for the AP.
      Furthermore, the UNSC has not “imposed” the AP on Iran (as it cannot do so), and only “calls upon” Iran to consider doing so. The AP is a voluntary measure.
      Moreover, there is no one who has tasked the IAEA with proving that a nation’s nuclear program is purely peaceful.

      Kindly stop propagating utter nonsense.

      • Marianne says:

        In a legal analysis, one should refer to the legal obligations of the parties, not to Fact Sheets (although one could cite aanother Fact Sheet that makes clear that the IAEA considers its role under INFCIRC/153 agreements to include addressing undeclared nuclear material – see http://www.iaea.org/Publications/Factsheets/English/S1_Safeguards.pdf).

        In paragraph 1 of the Iran-IAEA safeguards agreement, Iran undertakes to accept safeguards on all nuclear material in all peaceful nuclear activities, and paragraph 2 of the agreement states that the IAEA has the obligation to ensure that safeguards are applied to all nuclear material in all peaceful nuclear activities in Iran.

      • Dan Joyner says:

        Marianne,
        This “mandate versus tools” distinction that you and Ford and Persbo and all the others are trying to make is simply incorrect by reference to the text of the CSA. Just as Ford did in his last BAS installment, when you quote from Article II of the CSA, you leave out a pivotal clause, which is that the IAEA has the right and obligation to ensure that safeguards will be applied “in accordance with the terms of this Agreement.” This clause explicitly makes the procedures the parties agreed to in the rest of the CSA an integral part of the definition of the IAEA’s mandate under the CSA. The purpose of the IAEA’s involvement as expressed in Article II, and the tools for carrying out that purpose agreed to in the rest of the CSA, TOGETHER make up the IAEA’s mandate in CSA Article II.

  21. Marianne says:

    Of course the IAEA’s obligations and Iran’s are to be implemented in accordance with the terms of the Agreement. What else? That’s why fact sheets and documents written for the public are not relevant. Let’s take them altogether but look at the NPT as well.

    PART I of Iran’s safeguards agreement
    1. ¶1. Iran undertakes to accept safeguards on all nuclear material in all peaceful nuclear activities in accordance with the terms of the Agreement.
    [Comment: This clause defines the nuclear material that is “required to be subject to safeguards” (which is used later in ¶18) as “all nuclear material in all peaceful nuclear activities.”
    2. ¶7. Iran must establish a State System of Accounting and Control (SSAC) for all nuclear material subject to safeguards under the Agreement, i.e., all nuclear material in all peaceful nuclear activities, and the IAEA is to apply safeguards so that it can “verify, in ascertaining that there has been no diversion of nuclear material from peaceful uses to nuclear weapons or other nuclear explosive devices, findings of the State’s system.”
    [Comment: Since the SSAC is supposed to account for all nuclear material in Iran, its findings will be incorrect if it fails to include in the accounting all nuclear material in Iran. If the IAEA is to verify its “findings” and they are incorrect, the IAEA needs to address the potential for failure to include all nuclear material.
    3. ¶ 7. Agency gets to do independent measurements using the procedures specified in Part II, which includes special inspections.
    [Comment: In this context, the rationale for special inspections is clearly to provide for information and access needed to verify nuclear mateial not included in Iran’s findings.]
    4. ¶18. The IAEA may report to the UN Security Council if is “not able to verify that there has been no diversion of nuclear material required to be safeguarded under the Agreement ….” Since all nuclear material in Iran is “required to be safeguarded under the Agreement,” this provision applies equally to nuclear material reported by Iran and nuclear material not reported by Iran or included in the findings of its SSAC.
    Part II of Iran’s safeguards agreement
    5. ¶28. Objective of safeguards is the timely detection of diversion of significant quantities of nuclear material.
    [Comment: there is no distinction in this paragraph between declared and undeclared nuclear material.]
    6. ¶34. This paragraph requires that Iran apply the “other procedures” of the Agreement to any production of uranium hexafluoride (UF6) because it is “suitable for enrichment” and which forms the basis for Iran’s enrichment program.
    [Comment: This would include, for example, providing the IAEA with design information about the production facility and any facilities to which the material was shipped, for example, an enrichment plant, reporting to the IAEA any production of enriched uranium using the UF6, agreeing on material balance areas for the facilities, reporting nuclear material, etc. Iran can do none of this if it fails to report the initial production.]
    7. ¶62. The implementation process that Iran is required to follow begins with an initial report to the IAEA on all nuclear material that is subject to safeguards under the Agreement, i.e., all nuclear material in all peaceful nuclear activities in Iran.
    8. ¶71. The IAEA can carry out ad hoc inspections to verify the information in the initial report.
    9. ¶76-77 The IAEA can have access to any location identified in the initial report or any location where inspections to verify the initial report indicates that nuclear material is present . A special inspection could also be used to go to any other location if the IAEA thinks it cannot verify the initial report (one of its responsibilities under the Agreement).
    [Comment: It is not possible to interpret these provisions other than providing the IAEA with the right, the obligation, too, to look for undeclared nuclear material and activities. In practice, this the process that the IAEA followed in the DPRK when it sought access to undeclared locations in the DPRK because of discrepancies found in its initial report. This is just one example of how an inspection to verify an initial report could lead to the conclusion that there is undeclared nuclear material. In this case, analysis of nuclear material samples provided by the DPRK demonstrated that the initial declaration was incomplete. The IAEA asked for a special inspection, which was refused.]
    Conclusion: I agree that one should look at the agreement as a whole. But one also needs to look to the NPT.
    In terms of the safeguards agreement taken as a whole, it is not possible to draw any other conclusion than that it is the IAEA’s right and obligation to carry out its verification responsibilities with respect to both declared nuclear material and undeclared nuclear material.
    The Agreement is clear – Iran is obligated under the Agreement to report to the IAEA all nuclear material in Iran – whether it is there at the time of the initial inventory or produced or imported later. (Iran has not complied with any of these requirements.) It is equally clear that the IAEA has the right and obligation under the agreement to verify whether Iran has fulfilled its responsibilities and if it cannot do so – either because it finds that it is unable to apply safeguards to all nuclear material in Iran under the terms of the Agreement or because of direct evidence to the contrary (via cross reference to Article XII of the IAEA Statute) – it either may or must report that to the UN Security Council.
    The distinction between declared and undeclared is artificial. The phrase “correct and complete” is short hand and not significant in terms of Iran’s or the IAEA’s legal obligations. An interpretation of “diversion of nuclear material” that restricts it to nuclear material reported by the State is artificial and has no legal basis in NPT safeguards agreements.
    Overall, the conclusion that the IAEA has not exceeded its mandate in Iran is sound. It is supported by considering Iran’s safeguards agreement as a whole and by IAEA practice, both in it actions vis-a-vis the DPRK in the early 1990s and in designing safeguards approaches at facilities under safeguards to detect undeclared nuclear activities. As I mentioned earlier, there is a good chance that Iran has accepted such safeguards approaches at both its reactor and enrichment plants.
    Iran’s obligations under the NPT in Article III.1 are:
    [Iran] undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system, for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities [in Iran]..
    What does this mean, in short hand:
    a. NPT non-nuclear weapon states must have a safeguards agreement with the IAEA
    b. the purpose of safeguards is to prevent diversion
    c. the safeguards procedures apply to nuclear material whether it is used in a facility or not
    d. safeguards procedures apply to all nuclear material in all peaceful nuclear activities
    “All” means “all,” and It is not credible (or true) that the drafters of INFCIRC/153 narrowed the scope of the NPT.

    • yousaf says:

      I will let Dan address the legal details.

      I will only note that ABSENT known diversion of nuclear material the Agency can request arbitration to settle disputes (see CSA).

      Or it can kick off special inspections.

      And BTW there is no formal legal or technical standard to find a nation in “non compliance”

      And is it not funny that of all the states that have Iran has been extra-judicially referred to the UNSC.

      Arbitration or special inspections were open legal recourses that the IAEA had. They chose an extra-judicial route.

    • Dan Joyner says:

      Marianne,
      My position has always been that the IAEA has exactly and only the authority and mandate to investigate and assess that is spelled out in the terms of the CSA as a whole. Let’s think about the issue this way – after looking at the procedures for investigation spelled out in the CSA as a whole, which of the three standards that I identified at the beginning of this post does the IAEA have the ability to assess by using these investigative procedures?

      1. that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use
      2. the absence of undeclared nuclear material and activities in Iran
      3. that all nuclear material in Iran is in peaceful activities

      The answer is that the CSA only gives the IAEA investigative tools to assess number 1 – i.e. only to verify the essential correctness of Iran’s declaration as required by the CSA. The IAEA does not have the tools to investigate and to assess with any degree of confidence standards number 2 and 3. That is the reason the AP was created – to give more information from the state and more investigative tools to the IAEA. In other words, to increase the scope of the mandate of the IAEA to investigate and to assess whether there are undeclared fissile materials and related facilities. At this point, the argument sometimes gets bogged down in semantics, as I noted before. You and others want to maintain that the CSA gives the IAEA a larger mandate than it has the tools under the CSA to assess. I think that is an incorrect way of looking at the treaty. As I said in another comment, I maintain that the purpose of the IAEA’s role as expressed in Article II, AND the investigative tools for carrying out that purpose agreed to in the rest of the CSA, TOGETHER make up the IAEA’s mandate in the CSA. Putting it in other words as I have here, the tools given to the IAEA for investigation and assessment in the CSA only allow it to reasonably assess standard number 1, and not standards number 2 and 3. Therefore, the mandate of the IAEA for investigation and assessment under the CSA is limited to standard number 1.

      What you and the others are arguing for is an interpretation of the CSA as a whole that is manifestly absurd and unreasonable – i.e. that even though the agreed procedures in the CSA do not allow the IAEA to investigate fully enough to assess standards number 2 and 3, nevertheless the IAEA retains the mandate and obligation to investigate and to assess them (and remember – both are essentially standards that require proving the negative), and has the right to do so through whatever measures it deems necessary, and according to any evidentiary and assessment standards it unilaterally concocts for its subjective satisfaction. And even further, that the IAEA is within its authority to stubbornly and illogically maintain its right and obligation to do this, and until Iran grants the additional non-CSA-based cooperation required to actually assess these standards, the IAEA is within its authority to maintain a determination that Iran is in noncompliance with its safeguards obligations.

      Yours is a revisionist interpretation that tries to foist upon the text of the CSA meaning that you and the IAEA wish it had, but that it does not have either textually or reasonably.

  22. Marianne says:

    Dan, you have shifted grounds. The legal mandate of the IAEA is contained in the agreement read as whole, as we agree. It doesn’t depend on the degree of effectiveness of the tools available to the IAEA to investigate non-compliance. Your reasoning is circular, and makes one of the key provisions of 153 agreements, special insections, superfluous. If the IAEA cannot fullfill its responsibilities it may ask for a special inspection and seek access to information and locations additional to those required to verify diversion from declared stocks. You assert that its responsibilities do not include verifying anything else, so under your interpretation it is difficult to explain what the purpose of a special inspection would be. If one is sought, Iran has an obligation to cooperate.

    I would say that you are wrong on more than a few points;

    With respect to your assertion that Iran is in full legal compliance with its safeguards agreement, this does not depend on what the IAEA’s investigative authority. Iran is obligated to report all nuclear material and its failure to do so is non-compliance. It is obligated to report all facilities, and its failure to do so is non-compliance. It is obligated to report nuclear material that reaches the starting point of safeguards, and its failure to do so is non-compliance.

    Dwelling on GOV/OR.864 is misleading. The Board approved the authority with respect to undeclared activities in GOV/OR.865.

    Your reading of the history and practice is misleading and omits the Board’s affirmation of special inspections in 1991 and the “right to ensure that al nuclear materials in peaceful nuclear activities are under safeguards”; its DPRK investigation, safeguards approaches that call for detecting undeclared activities at declared facilities and which are agreed in facility attachments (a subsequent agreement that would be relevant to your VCLT analysis).

    Your interpretation of “according to the terms of the agreement” is too parsimonious. The terms, for example, provide for action in some circumstances without regard to Para. 22; referral to the UNSC, which may demand actions; reference to reporting to the UNSC if it is unable to verify that there is no divefsion of nuclear material “required to be safeguarded,” not limiting it to declared nuclear material; and special inspections.

    The Additional Protocol enhances the IAEA’s ability to investigate via complementary access. (It should be noted that a special inspection to an undeclared location would not be limited to conducting environmental sampling. In fact, the primary purpose of environmental sampling, which was introduced in the early 1990s before the Additional Protocol, is to detect undeclared nuclear activities) The Additional Protocol does not limit the IAEA’s right to investigate via inspections under INFCIRC/153.

    All in all, INFCIRC/153 is internally consistent and all of its provisions straightforward if it is read as providing for the IAEA’s right to ensure that safeguards are applied to all nuclear material, declared and undeclared.

    It would be odd for NPT safeguards agreements to provide authority to investigate only one type of non-compliance. It would also be odd for it to be inconsistent with the NPT. (Your VCLT analysis should have included the NPT and the negotiating history of the NPT safeguards agreement.)

    • yousaf says:

      Yes, why were special inspection not invoked in Iran, then?

      There is a difference between a mandate and the legal authority, however.

      The police have a mandate to stop crime.

      But — to mix metaphors — they do not have the legal authority to poke around your bedroom at 3am, absent an A.P., to carry out their mandate to stop crime.

      So it’s nice of the IAEA to have a mandate, they should enjoy it to the hilt, but they are still restricted in their legal authority, absent an AP.

      You can perhaps talk to your colleague Pierre Goldschmidt at Carnegie about the subtle distinction:

      Pierre Goldschmidt, former deputy director of the IAEA Safeguards Department, has summed it up well:

      http://carnegieendowment.org/2011/11/03/looking-beyond-iran-and-north-korea-for-safeguarding-foundations-of-nuclear-nonproliferation/6nz6

      “the Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate and to provide the assurances the international community is expecting ”

      i.e. the expectations are misplaced.

      If the IAEA had the legal authority do the same things with an AP in a country as it could do without an AP, then there would be no need for an AP.

    • yousaf says:

      Plugging my own take on this:

      http://www.csmonitor.com/layout/set/print/Commentary/Opinion/2012/1205/Flawed-graph-weakens-case-against-Iran-nuclear-program-video

      There are a number of other problems in the IAEA reports on Iran: For example, the agency keeps saying that it cannot “provide credible assurance about the absence of undeclared nuclear material and activities in Iran” or that “all nuclear material in Iran is in peaceful activities.” But the agency cannot be expected to do this – that is not its job. Pierre Goldschmidt, the former deputy director of Safeguards at the IAEA summed it up well: “The Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate and to provide the assurances the international community is expecting.”

      In fact, not only is it legally problematic to fulfill such a verification, it is a logical impossibility: The agency cannot prove the absence of something. There can always be somewhere in Iran where the IAEA has not looked. In fact, no one can reasonably task the IAEA to prove a negative in any country, whether it be in Brazil, Argentina, or the 49 other nations for which it is evaluating the absence of undeclared nuclear activity.

      The most sensible way to wind down the impasse with Iran now is to recognize that although Iran may have been non-compliant with the IAEA in the past, it is in full compliance with its safeguards agreement now: The nation is not diverting any declared nuclear material to any weapons program. The IAEA has verified this every year since it began monitoring Iran’s program. Hounding Iran about possible activities it may or may not have done years or even decades ago – especially if some of the allegations are possible hoaxes – is not going to solve anything.

      A smart move would be to start to roll back sanctions on Iran in exchange for Iran suspending its uranium enrichment to 20 percent, as both Henry Kissinger and I have suggested.

      • Marianne says:

        You are cherry picking from the article by Pierre Goldschmidt and misinterpreting his comment because it is taken out of context. He clearly believes that the IAEA has the right o address the issue of and investigate undeclared activities. Late in the article, he states that the IAEA should “promptly makee use of the right to conduct special inspections at undeclared locations whenever states are otherwise denying access.”

        You also state that Iran is in “full compliance with its safeguards agreement now.” There is no basis for this statement. For example, if Iran has failed to report that it is:building a nuclear facility; is processing nuclear material so that it crosses the starting point of safeguards; or is otherwise in possession of undeclared nuclear material, then it is not in compliance with its safeguards agreement.

  23. yousaf says:

    Thank you for letting me know what Pierre was thinking.

    I agree with him:

    “promptly make use of the right to conduct special inspections at undeclared locations whenever states are otherwise denying access.”

    Why did the IAEA NOT DO THIS?

    Why did they choose to take the extra-judicial route?

    Why did they not kick off arbitration?

    Why did they not refer any other of the several nations found in non compliance to the UNSC ? — the politicization is evident.

    Why are there no firm legal or technical standards to find a nation in non compliance?

    http://www.iaea.org/Publications/Documents/Board/2006/gov2006-15.pdf

    “…absent some nexus to nuclear material the Agency’s legal authority to pursue the verification of possible nuclear weapons related activity is limited…”

    Kindly stop propagating rubbish extra-legal personal views and discuss the subject at hand.

  24. [...] resolutions regarding the cessation of uranium enrichment, a demand many have long acknowledged is ultra vires, itself abrogates the NPT and the resolutions are [...]

  25. [...] material in Iran is in peaceful activities.” But the agency cannot be expected to do this – that is not its job. Pierre Goldschmidt, the former deputy director of Safeguards at the IAEA summed it up well: [...]

  26. nader says:

    Dear Dan
    thank you for your very useful work.
    your arguments are very interesting, lawful and therefore, correct.
    i believe that the IAEA activities on the non-safeguard-Based issues such as alleged studies, which are irrelevant to the nuclear fissionable material, are inconsistent with the arts 1 and 2 of the 214 agreement. in international institutional law, IGOs have not competent in activity ultra vires, ie. beyond their mandate and in particular contradictory to the strictly and explicit jurisdictions and authorities.
    IAEA “is an independent intergovernmental, science and technology-based organization, in the United Nations family, that serves as the global focal point for nuclear cooperation” (see http://www.iaea.org/About/mission.html). IAEA is not a political or security organization. therefore, its works and powers shall be based on technical analysis. in this arena, the political or security matters are not criterion for pressure on a member state by another or in light of the IAEA organs.
    of course, in this method of argument, any country such as Iran, has right to make objection. recourse to the international adjudication, specially ICJ, can resolve this issue. in any case, this direction and process of act within the IAEA can hamper the international environment and the rule of law in international community.

    N. Saed
    Tehran University.
    Jan. 30, 2013

  27. [...] to do, in an atmosphere already highly charged with threats of war.   For the legal issues, see http://armscontrollaw.com/2012/09/13/the-iaea-applies-incorrect-standards-exceeding-its-legal-mandat….  For a typical press story, see Alan Cowell, “U.N. Nuclear Official Seeks Access to Iranian [...]

  28. [...] Dan Joyner has already shown here, GOV/OR.864 does not in fact support the ‘completeness’ argument but on the contrary [...]

  29. [...] of safeguards in Iran provides a good opportunity to revisit one of the points I made in a blog post last year, which has been fairly widely discussed and which was the subject of an ISIS report (read [...]

  30. […] extremists in the West insist that Iran go beyond the requirements of the Additional Protocol, such as opening up its military installations in Parchin to inspection, […]


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