Question on UNSCR 1929Posted: March 6, 2013
I received a very good question a couple of days ago from Michal Onderco (see his website here). With his permission, I will reprint here his question and my answer for interested readers:
Dear prof. Joyner,
I am writing to you with a question about the blog post you wrote last year
about the IAEA standards when it comes to Iran. In your blog in Sep 13,
2012 you wrote that the IAEA could not claim the right to access any
Iranian facilities under UNSCR 1737, because it only calls on Iran to
cooperate with the Agency.
However, as you are certainly aware, in later work, the UNSCR adopted a
much tougher language. In the R 1929 of June 9, 2010, there are the
following words in paragraph 3:
“Reaffirms that Iran shall cooperate fully with the IAEA on all outstanding
issues, particularly those which give rise to concerns about the possible
military dimensions of the Iranian nuclear programme, including by
providing access without delay to all sites, equipment, persons and
documents requested by the IAEA, and stresses the importance of ensuring
that the IAEA have all necessary resources and authority for the fulfilment
of its work in Iran;”
This paragraph, to me, seems fairly clear on whether IAEA can request
access to Parchin – and it can argue it does so on the basis of UNSCR 1929.
And while we could hold a debate whether it is lawful for the UNSC to
impose these obligations on Iran, in absence of evidence to the contrary,
the IAEA can very well base their position on this paragraph.
You seem, however, to ignore 1929 in your blogpost (and also in your
subsequent writings) on the subject. I very much like your analyses but I
remained perplexed about why the above-mentioned clause of the UNSCR 1929
couldn’t be the legal basis for IAEA’s demand to access Parchin.
Thank you for your answer and reply in advance.
Thank you for your message. You ask a very good question.
I maintain that the UNSC cannot add to the authority or mandate of the IAEA through its UN Charter powers. Nor does the UNSC appear to be attempting to do so in either 1737 or 1929. Rather, they are in both resolutions imposing obligations directly on Iran. Whatever obligations Iran these UNSC resolutions impose on Iran (and you’re right that I think there is a legal limit to the UNSC’s power to do this), these obligations on Iran have no impact upon the scope or content of the IAEA’s mandate to investigate and assess. That authority is exclusively to be found in the IAEA’s own legal source documents – its statute and its safeguards agreements with NNWS.
Furthermore, I think the best way in which to read this particular command by the UNSC in 1929, is to read it as a command to Iran to cooperate with the IAEA to the extent that the IAEA itself is acting within its existing lawful authority. Otherwise, this would have to be read as an attempt by the UNSC to aggrandize the authority of the IAEA beyond its current sources of authority. Again, the UNSC does not say that this is what it’s trying to do, and I don’t think we should read in such an attempt.
I genuinely think that in this provision of 1929, as well as in 1737, the UNSC was simply attempting to use its Charter authority to command Iran to cooperate with the IAEA in the IAEA’s regularly authorized work. I do not think the intent of the resolution was to tell Iran that it had to do whatever the IAEA said, no matter what the IAEA wanted it to do, and with no limits on the IAEA’s discretion. The text of the resolution does not appear to support this reading, and I think that would be a manifestly absurd and unreasonable reading of the resolution.
Thus, inasmuch as inspection of Parchin is not within the regular mandate of the IAEA pursuant to its own governing documents (and it’s not), it is also not included in the obligations placed on Iran pursuant by Resolution 1929.
I’m happy to discuss this further.
All the best,