On the scope of IAEA safeguards in Iran

The latest IAEA DG Report on Iran (‘Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the Islamic Republic of Iran’, 21 February 2013, GOV/2013/6) contains in its conclusion the usual statement, found in previous reports, according to which: 

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 (para. 62). 

What is interesting is that there has been a light change, more precisely an addition, in the footnote (fn. 61) supposed to support such statement, by comparison with the same text in previous IAEA reports. The addition is shown in italics below:

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). 

As Dan Joyner has already shown here, GOV/OR.864 does not in fact support the ‘completeness’ argument but on the contrary evidences divergences on the issue within the Board at the time.

So it seems (and it is quite plausible) that this additional reference has been added by the IAEA in an attempt to counter Joyner’s arguments referred to above. The same reference may be found in the ‘legal’ paper issued by ISIS/Heinonen/Goldschmidt/Persbo et alii recently, which was intended to establish the inacurracy of Joyner’s ‘dangerous claim’.

I’m afraid that this additional reference to GOV/OR.865, paras. 53-54 is no more conclusive than the reference to GOV/OR.864, para. 49. The relevant summary of the BoG discussion may be found as an annex to a 1995 IAEA GC document.

The context of the relevant IAEA BoG discussion is to be reminded. In 1995 the IAEA DG exposed the measures envisioned under the ‘93+2’ programme for updating the safeguards system (which led to the adoption of the Model Additional Protocol), and invited the BoG to confirm, inter alia, that:

The purpose of comprehensive safeguards agreements is the continuing verification of the correctness and completeness of States’ declarations of nuclear material in order to provide maximum assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities ‘ (in ‘Strengthening the Effectiveness and Improving the Efficiency of the Safeguards System’, Report by the Director General to the Board of Governors (GOV/2784), 21 February 1995, para. 110).

At the March 1995 session of the BoG, such ‘invitation’ was largely debated. The United States, Australia and Japan, inter alia, endorsed the specific proposal contained in para. 110 of GOV/2784 (quoted above). But the proposal also met with significant opposition from several members of the Board. For instance, the governor from Cuba, stated that

[t]he aim of comprehensive safeguards agreements was to detect swiftly any diversion to non-peaceful uses of significant quantities of nuclear material, and the means of doing so was by verifying the nuclear material declarations of States. Therefore, the Board could not confirm what was recommended in paragraph 110. A of the document within the current legal framework.

Similar reservations were formulated among others by Mexico, India, Pakistan, China, Algeria, Turkey, the Russian Federation.

The most elaborated criticism of the DG’s invitation came from the governor from Brazil, Ms. Machado Quintella, whose statement is worth being quoted extensively:

regretfully her delegation had some difficulty in accepting the present wording of paragraph 110, although it believed that there would be scope for consensus after some adjustments, as no one was likely to deny the desirability of increasing the level of assurance provided by the safeguards system. All were committed to strengthening the system; the question on which views differed was how to achieve that common goal.

100. What the Board was being asked to approve in subparagraph 110.A was not a confirmatory interpretation of document INFCIRC/153, but rather a new concept regarding the purpose of comprehensive safeguards agreements – one that would require the modification of existing agreements or their amplification by additional legal instruments.

101. As things stood at present, the purpose of existing comprehensive safeguards agreements was to verify that there was no diversion of nuclear material to the manufacture of nuclear weapons or of any other explosive device. Confirming what was stated in subparagraph 110. A, that the purpose of such agreements was the continuing verification of the correctness and completeness of States’ declarations of nuclear material, would thus represent a substantial departure, with no legal basis, from the original purpose as defined in paragraph 2 of document INFCIRC/153 and in Article III(l) of the NPT.

102. The assertion made in paragraph 5 of document GOV/2784 regarding the intentions of the drafters of document INFCIRC/153 was entirely uncorroborated by the records of the Board’s Safeguards Committee (1970), which she had studied at length. In approving the concept put forward in document GOV/2784 regarding the purpose of comprehensive safeguards agreements, the Board would therefore not be confirming previous understandings, but introducing new ideas which would require amendments or protocols to existing agreements in order that the envisaged new safeguards measures might be applied. Such measures could, of course, be introduced on the basis of bilateral arrangements between the Agency and each Member State concerned, but there was as yet no proper legal basis for changing the Agency’s safeguards system from one aimed at the verification of non-diversion to one aimed at verification of the non-existence of undeclared activities.

103. Verification of the absence of undeclared nuclear materials or activities required actions that had not been considered by the drafters of document INFCIRC/153 […].

109. With regard to paragraphs 2, 3 and 4, where there were references to the continuous development of safeguards, she believed that technological developments in the safeguards field should not be confused with the evolution of the safeguards system itself. The system had evolved from one based on safeguards agreements deriving from the Statute to one based on comprehensive safeguards agreements deriving from document INFCIRC/153, but a safeguards agreement was a legal instrument not subject to evolution; if additional undertakings were to be entered into, that called for a protocol or some other form of additional legal instrument acceptable to the parties.

110. The statement in paragraph 6 that in February 1992 the Board had reaffirmed the requirement that the Agency provide assurance regarding the correctness and completeness of nuclear material declarations by States was misleading: that requirement had been affirmed not as a general principle, but in respect of the initial inventories of two specific countries – and on both occasions Brazil had expressed reservations.

(for the full statement see IAEA Board of Governors, Record of the 860^th meeting, supra note 185, paras. 99-110)

This review of the Board discussions shows that it can hardly be contended that there has been a subsequent agreement regarding the interpretation or application of INFCIRC/153-type CSAs between States parties to the IAEA Statute and/or parties to the NPT, in the meaning of Article 31.3(b) of the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, which would have resulted in an extension of the IAEA’s mandate, allowing it 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).

Reading the summary of discussions within the BoG during the subsequent GOV/OR.865 meeting, I do not see that the States opposed to the wording of para. 110 of GOV/2784 (as mentioned above) changed their minds in the meantime, nor that the final endorsement by the BoG of the Chairman’s ‘summing-up’ (which contains indeed a reference to the ‘completeness’ argument, but appears to be above all an endorsement of the ‘general direction of Programme 93+2′) is to be interpreted as a subsequent agreement (or, to quote the IAEA, a ‘confirmation’) on the correct interpretation of paragraph 2 of INFCIRC/153 (supposed to require the IAEA to seek to verify both the correctness and the completeness of declarations made by States under their CSAs).

I would welcome any comments on this issue. Thanks in advance!

France’s ‘responsibility’ to strenghten sanctions against Iran

On 27 August 2012, French President François Hollande delivered a speech at the 20^th French Ambassadors Conference (original French text here). It contains the following passage on the Iranian nuclear issue:

My approach to the Iran crisis is based on the same requirement for collective security.

The Iranian nuclear programme, which has no credible civilian purpose, constitutes a threat to all countries in the region. It’s all the more unacceptable because it’s being carried out by a regime that frequently issues statements – reiterated in recent days – directly calling for the destruction of the State of Israel.

France’s position is clear: it would be unacceptable for Iran to acquire a nuclear weapon. And that country must comply with its international obligations under the NPT as well as the resolutions adopted by the Security Council and the IAEA. The path of dialogue remains open because our goal is to achieve a diplomatic resolution to the crisis, but until Iran answers all the outstanding questions and complies with international law, France has a responsibility to further strengthen the sanctions against the Tehran regime.

This statement, apart from the fact that it is grounded in an allegation (‘no credible civilian purpose’) which has not been to date verified nor affirmed by the body in charge of monitoring compliance with nuclear safeguards under the NPT (i.e. the IAEA), after nearly ten years of intensive verification/inspection activities in Iran, nor established authoritatively by an international court or tribunal, poses a major problem from the point of view of international law, more precisely the body of norms referred to as the ‘law of collective security’ (see e.g. the leading work of Orakhelashvili, and the volume edited by White).

The problem lies in the assertion that ‘France has a responsibility to further strengthen the sanctions against the Tehran regime’.

Additional‘sanctions’ against Iran would necessarily amount to ‘countermeasures’ in the meaning of the 2011 ILC Articles on State responsibility for internationally wrongful acts. As I pointed out in my article ‘Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran’ (SSRN draft available here, also discussed here), the availibility of countermeasures, either taken by one individual country (France), or enacted in the framework of a regional organization (the EU), in situations where the Security Council has already enacted measures (which the UN Member States are mandated to comply with) is at least very doubtful. I referred in my article inter alia to the opinion expressed by professor Pellet during the debates at the ILC on the role of countermeasures in the law of State responsibility. Prof. Pellet held the view that

recourse to the measures provided for in Chapter VII of the Charter was the first essential limitation on the unilateral use of countermeasures. If the Security Council had decided on sanctions, in accordance with Articles 41 and 42 of the Charter, it was hardly likely that States would take no notice of them and continue to carry out measures of their own, just as individual or collective self-defence was allowed in the event of aggression only, according to Article 51,

… until the Security Council has taken measures necessary to maintain international peace and security.

If the Security Council had decided on measures within the meaning of Articles 41 and 42, States were no longer free to decide as they wished on countermeasures of their own.

In my opinion, therefore, France, or even the EU as a whole, cannot invoke any‘responsibility’ to take ‘independent’ countermeasures against Iran while the UN Security Council is and remains seized of the matter, insofar as none of them, unlike the Security Council, can claim to have been granted an enforcement power in the field of international peace and security. That is the reason why the invocation, in the same statement, of the ‘requirement for collective security’ seems quite paradoxal.

Is the Conclusion of an Additional Protocol Mandatory under the NPT?

In an article published in the July/August 2012 of Arms Control Today (‘The Rocky Road of Nuclear Diplomacy With Iran’), the former IAEA Head of Safeguards, Olli Heinonen, repeats the well-known contention that progress in the negotiations on the Iranian nuclear programme would require Iran’s agreement ‘to implement an additional protocol to its safeguards agreement’ with the IAEA (the reader in search of an overview of the differences between the comprehensive IAEA Safeguards Agreements (INFCIRC/153) and the IAEA Additional Protocol (INFCIRC/540), shall have a look at the IAEA document ‘The Safeguards System of the International Atomic Energy Agency’, undated, available at http://www.iaea.org/OurWork/SG/documents/safeg_system.pdf, and the book published by the IAEA, The Evolution of IAEA Safeguards, Vienna: International Atomic Energy Agency, 1998).

It is interesting to observe that this ‘requirement’, which is basically a political one, has for some time been put in a ‘legal’ form, for instance during the latest Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons (2010), during which several States parties expressed the view that the conclusion of an Additional Protocol (AP) is mandatory under Article III of the NPT.

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