New IAEA DG report on Iran Still Incorrect on the Legal Mandate of the IAEAPosted: March 11, 2013
The February 21, 2013 IAEA Director General’s report on implementation 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 hatchet job) by David Albright and some of his friends, only one of whom is a lawyer (I responded to their report previously here). The point in question is the incorrectness of the IAEA Director General’s (and by extension the IAEA Office of Legal Affairs’) understanding of the scope and content of the IAEA’s legal mandate to investigate and assess compliance of states parties to INFCIRC/153 Comprehensive Safeguards Agreements with the IAEA. (See also my contributions to a roundtable on this question published by the Bulletin of the Atomic Scientists)
Much of the discussion on this point in my earlier post, and in the Albright & Co. report, focused on a recurring footnote in IAEA DG reports on Iran. As Pierre-Emmanuel Dupont noted in his excellent review of this question in light of the new DG report on Iran, in this new report there was a slight but (to lawyers at least) significant change in the footnote text (fn. 61). Here is the new version, with the change in italics:
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 non-diversion 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 and GOV/OR.865, paras. 53-54).
Pierre was kind enough to speculate in his post that this change in the footnote text was a result of my arguments in my previous post. I have to say that that was my first thought as well when I saw the new report. If that’s true, then I am glad to see that the lawyers in the IAEA OLA are taking note of the commentary on ACL. I do very much hope that this blog will add to serious consideration of arms control law issues among governments and international organizations.
Unfortunately, however, I must agree with Pierre that the addition of the document GOV/OR.865, paras. 53-54, does not provide support to the DG’s erroneous understanding in the text of the footnote 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 non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)”
Let’s first deal with the threshold fact that in footnote 61, as in its incarnations in previous DG reports, the IAEA DG cites to decisions of the IAEA Board of Governors for authority in interpreting the legal mandate of the IAEA to investigate and assess compliance of states with CSA obligations. This in and of itself is incorrect as a matter of law.
The IAEA BOG is comprised of 35 states, out of the 180+ member states of the IAEA. The IAEA Statute does not confer on the BOG any special proprietary entitlements with regard to interpretation of the IAEA Statute or CSA’s. As Pierre insightfully pointed out in his piece, decisions of the BOG are therefore very different in their interpretive implications for relevant treaties from, say, the consensus Final Documents of NPT Review Conferences, under the rules on treaty interpretation contained in the 1968 Vienna Convention on the law of Treaties, and the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Unlike the consensus decisions of all NPT parties contained in Final Documents of NPT Review Conferences and their very real implications for interpretation of the NPT, decisions of the 35 members of the IAEA BOG have absolutely no interpretive implications per se for the IAEA Statute, or for individual CSA’s.
So let’s first of all be clear on this point – the IAEA BOG does not have the authority to interpret the IAEA Statue or individual CSA’s, and they do not have the authority to determine the scope or content of the IAEA’s mandate to investigate and assess state compliance with CSA’s. The IAEA’s authority, as that of any international organization, is a product of its constituting documents (here the IAEA Statute), other authorities specifically given to it by states (e.g. CSA’s), and its practice as accepted generally by states (see the ICJ’s 1949 Reparations case for these principles of law). I made this point in my original post on this topic.
However, for the sake of interest, and because of the erroneous reliance by both the IAEA Director General (or rather the IAEA Office of Legal Affairs) and Albright & Co. on these decisions by the IAEA BOG as a statement of the IAEA’s authority to investigate and assess compliance with CSA’s, let’s proceed to take a look at the new addition to the footnote, GOV/OR.865, paras. 53-54.
We do find in this newly cited document, as was not present in the previously exclusively cited GOV/OR.864, a record of the continuation of the BOG’s March 30, 1995 meeting, which records a decision by consensus of the BOG to accept the chairman’s previously recorded summing up, as reflecting “the broad majority view in the Board.” This decision was taken even though there was very serious disagreement expressed with the summing up statement by a number of governors, as I noted in my original post, and as Pierre has noted as well.
So, GOV/OR.865, paras. 53-54 records that the Board eventually decided to accept the chairman’s summing up as a majority statement. Do note this fact. The BOG decided to accept that a majority of the members of the BOG agreed with this summing up statement. They didn’t agree that they all agreed with it. Again, this goes to the interpretive weight of this statement – which is nil.
But, to proceed. Let’s look at the chairman’s summing up statement, with which a majority of the Board agreed, to see what it actually says.
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 nuclearweapons or other nuclear explosive devices.
Ok stop right there. Did you read that? Here the Board correctly states that the purpose of CSA’s is to verify the non-diversion of fissile materials to nuclear weapons. This comes right out of Article 2 of the CSA. So right off the bat, this shows that the Board, at least in 1995, understood that the purpose of CSA’s, and thus the mandate of the IAEA, DOES NOT extend to investigations or assessments of research and development related to nuclear warheads – i.e. “possible military dimensions” of a safeguarded state’s nuclear program, as the DG has grown fond of phrasing it. That has certainly changed over time. See my JURIST piece on this subject following the release of the DG’s report on possible military dimensions of Iran’s nuclear program in November 2011.
Continuing with the summing up statement . . .
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.
This is the sentence that the IAEA OLA, and the Albright brigade of mostly non-lawyers in their report criticizing my legal analysis, think is so important in showing that the IAEA has the legal mandate under the INFCIRC/153 CSA to investigate and assess not only the correctness but also the completeness of an NNWS’s CSA declaration. But what does the text of the summing up actually say? It says that the system for implementing CSA’s should be designed to provide for verification by the IAEA of both completeness and correctness of the declaration. Ok. So are they saying here that the basic CSA – the INFCIRC/153 – ALREADY provides this authority? No, they are not saying that. Pierre very insightfully in his piece referenced the context of these deliberations of the BOG in 1995, and the 93+2 program that was their subject. In light of this context, it is clear that what the BOG is referencing at this point in the summing up statement is the Additional Protocol, which was the second component part of the 93+2 program, and which was the primary subject of this statement of the Board.
So with this understanding, what is the BOG, or I should say a majority of the BOG, saying here? They are saying that NNWS under IAEA safeguards should adopt the new Additional Protocol in order to allow the IAEA the authority and tools to verify not only the correctness but also the completeness of the INFCIRC/153 declaration. Now read the rest of the excerpt with this interpretation in mind.
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.
It makes sense, doesn’t it? Authority and tools for the IAEA to investigate and assess the completeness of a state’s declaration, as well as its correctness, was to come from “complementary authority to be conferred by the States involved” – i.e. through the adoption of an Additional Protocol, on a state by state basis.
So to sum up, both the IAEA DG (OLA), and Albright & Co. are incorrect in a number of ways on this point. First, they are incorrect in relying on decisions by the IAEA BOG as a basis for determining the scope and content of the IAEA’s authority to investigate and assess safeguards compliance. Second, they are incorrect in asserting that the decision of the IAEA BOG recorded in GOV/OR.865, paras. 53-54 in any way supports the understanding that, pursuant to the terms of the INFCIRC/153 CSA alone, the IAEA has the authority to investigate and assess not only the correctness but also the completeness of a state’s CSA declaration. As I have explained in my previous post, and in my contributions to the BAS Roundtable on this topic, the IAEA’s mandate under an INFCIRC/153 CSA, which is the only safeguards agreement in force in Iran’s case, is limited to investigation and assessment of the correctness of the state’s (here Iran’s) declaration, pursuant to the terms of its CSA.
Thus, when in the February 21, 2013 IAEA DG report on Iran, the DG once again states that the IAEA “continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards Agreement,” he is making an assessment under the only lawful authority the IAEA has for investigations and assessment of safeguards compliance. In this assessment, the DG confirms once again that Iran is currently in full compliance with its IAEA safeguards obligations, as verified by the IAEA.