An IAEA Special Inspection of Parchin?Posted: May 16, 2013
Cyrus Safdari recently brought to my attention an AP article from March 6, in which Joseph MacManus, the US representative to the IAEA, is reported to have made statements indicating “that America might lobby the IAEA board to ask for a special inspection of Parc[h]in, a facility that the agency suspects was used to test explosive triggers for a nuclear weapon, or that the United States would seek an IAEA resolution critical of Tehran.”
There seems to be a lot of misunderstanding, both in official circles as demonstrated by this article, but also within the nonproliferation specialist community, about what exactly IAEA special inspections are, and about their legal character.
In an article from November 2010, Olli Heinonen argued that the IAEA should call for a special inspection in Syria. As he wrote:
Together with official Syrian reluctance to give the agency access to relevant information, persons, equipment, and sites, the resulting situation calls for the use of full inspection rights to ensure that all nuclear material in Syria is for peaceful purposes.
So according to Heinonen’s understanding, a special inspection is a constitutive part of the IAEA’s “full inspection rights” under the comprehensive safeguards agreement.
James Acton, Mark Fitzpatrick, and Pierre Goldschmidt, writing in a 2009 Carnegie Endowment piece, argued that:
It is now time for the IAEA to move beyond such voluntary requests and invoke its most powerful inspection provision, the “special inspection,” to make its requests for access legally binding. If Syria refuses then the Board should make a formal finding of “non-compliance.”
These are all incorrect legal characterizations of the process of special inspections as laid out in the provisions of the IAEA INFCIRC/153 comprehensive safeguards agreement.
Both government officials in the US, and the nonproliferation specialist community (at least, those that aren’t lawyers – which includes Heinonen, Acton, Fitzpatrick, and Goldschmidt), seem to think that IAEA special inspections are a powerful weapon the IAEA has reserved in its quiver, but that it only uses in the most serious of situations, in which desperate measures are needed to bring rogue states to heel. Sort of like a step up in the categorization of a crisis from “code yellow” to “code red.” And that once the IAEA does pull this special inspection weapon out of its quiver, it is exercising its full legal rights to legally compel an inspection of the subject site(s).
But this is a fundamental misunderstanding of the special inspection process as provided for in the CSA. Most commentators, including those quoted above, appear to be confusing IAEA special inspections under the CSA, with a process more akin to a challenge inspection under the Chemical Weapons Convention.
This is what I wrote about the CWC challenge inspection process on pgs. 114-115 of my 2009 book (see Article IX of the CWC):
If, however, a state party feels that it has not been satisfied through this process of interrogatory, it may request that the OPCW conduct a challenge inspection on “any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the provisions of this Convention.” The state against whom the challenge inspection has been requested is under a basic obligation to cooperate with the challenge inspection by members of the OPCW Technical Secretariat, unless the OPCW Executive Council (composed of 41 state-party members based upon the principle of rotation) determines by a three-fourths vote that the inspection request is “frivolous, abusive, or clearly beyond the scope of [the] convention.”
On the basis of the report generated by the Technical Secretariat, the Executive Council may determine whether non-compliance with the CWC’s terms has occurred and may instruct the offending state party on measures which it must take to remedy such non-compliance. If the measures directed by the Executive Council are not implemented by the offending state, the issue may be referred by the Council to the Conference of the States Parties (the Conference), the principal organ of the OPCW, comprised of a representative of all states parties. In its discretion, the Conference may restrict or suspend the rights of an offending state party under the convention, and may at the extreme in “cases of particular gravity,” refer the matter to the U.N. Security Council.
In the case of a CWC challenge inspection, any state party to the CWC may designate any site within any other state party (subject to limitations on scope and abuse), whether declared or undeclared, for a challenge inspection. And the challenged state is under a legal obligation to allow the OPCW to conduct the inspection. Refusal on the part of the challenged state to allow the inspection constitutes a breach of the CWC.
The special inspection process laid out in the IAEA INFRIC/153 CSA, by contrast, can only be invoked for one of two reasons, as stipulated in CSA Article 73. The first is if a state voluntarily submits a special report to the IAEA. The second is
If the Agency considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.
Before proceeding, let’s be sure we remember what the IAEA’s responsibilities are under the CSA. These are laid out very concisely in Article 2:
The Agreement should provide for the Agency’s right and obligation to ensure that safeguards will be applied, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, 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.
As I’ve explained in detail elsewhere, this means that the IAEA’s mandate is to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.
So, pursuant to the second reason listed in Article 73, if the IAEA thinks that an inspection of an undeclared site, i.e. one that is not subject to routine or ad hoc inspections under the CSA, is necessary for the Agency to verify that no declared fissile material within the safeguarded state has been diverted from peaceful use to military use, the Agency may submit a request to the state that it be allowed to inspect the subject site.
Article 77 of the CSA provides that:
The Agreement should provide that in circumstances which may lead to special inspections for the purposes specified in paragraph 73 above the State and the Agency shall consult forthwith. As a result of such consultations the Agency may make inspections in addition to the routine inspection effort provided for in paragraphs 78—82 below, and may obtain access in agreement with the State to information or locations in addition to the access specified in paragraph 76 above for ad hoc and routine inspections.
So the first step is for the IAEA and the state to consult about the IAEA’s request. If the state agrees to the request, the special inspection proceeds according to terms agreed between the IAEA and the state. However, if the state does not agree to the IAEA’s request, Article 77 provides that:
Any disagreement concerning the need for additional access shall be resolved in accordance with paragraphs 21 and 22; in case action by the State is essential and urgent, paragraph 18 above shall apply.
Articles 21 & 22 of the CSA provide for two processes of dispute settlement in case of a disagreement between the IAEA and the state over the need for the special inspection. These are, respectively: 1) arbitration; and 2) referral of the case to the International Court of Justice.
The only way in which the IAEA can circumvent this dispute resolution process, is in a circumstance in which “action by the State is essential and urgent.” In such a circumstance, Article 18 of the CSA applies, which states that:
The Agreement should provide that if the Board, upon report of the Director General, decides that an action by the State is essential and urgent in order to ensure verification that nuclear material subject to safeguards under the Agreement is not diverted to nuclear weapons or other nuclear explosive devices the Board shall be able to call upon the State to take the required action without delay, irrespective of whether procedures for the settlement of a dispute have been invoked.
So, even in a case in which the IAEA considers is essential and urgent that the safeguarded state permit the special inspection, the IAEA is only empowered to “call upon” the state to do so. It is well understood by international legal scholars that when an international legal instrument provides for an international organization to “call upon” a state or states to do or refrain from doing something, this is not a legally binding command. Rather, it is a non-binding exhortation.
Therefore, in the case of a state being called upon by the IAEA BOG to allow a special inspection to take place, the state’s refusal to allow the requested special inspection would not be an action in noncompliance with the terms of the CSA, or in breach of any other principle of international law. It would simply be the state’s sovereign determination not to provide the IAEA with access additional to that which it is obligated to provide under the terms of the CSA.
Thus, such a refusal would not be grounds per se for the BOG to determine that the state is in noncompliance with the CSA. Therefore Article XII paragraph C of the IAEA Statute, which allows the BOG to report noncompliance with the CSA to the UN Security Council, would not be triggered.
So in the final analysis, unlike challenge inspections under the CWC, special inspections under the IAEA CSA are not legally compulsory. They are a request by the IAEA to the safeguarded state, to allow IAEA inspectors to examine sites not included in the state’s declaration, and therefore not subject to routine and ad hoc inspections. This request may be agreed to, or not agreed to, by the safeguarded state.
Further unlike in the CWC challenge inspection context, refusal by the safeguarded state to allow the special inspection to occur is not, in the IAEA CSA context, a violation of international law, or an act in noncompliance with the CSA.
This is a far cry from the way in which special inspections have been characterized by the non-lawyer nonproliferation specialists quoted above.
So let’s take all this newly corrected understanding about the legal character of special inspections, and apply it to the question of whether the IAEA could perform a special inspection at the Parchin military facility in Iran. It turns out that we don’t have to proceed far into the analysis in order to find the answer.
Remember that special inspections can only be requested for one of two reasons, according to CSA Article 73. First, if there has been a voluntary special report by the safeguarded state. There has not been one in this case. Second, if the IAEA “considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.”
Again, this links challenge inspections directly to the responsibilities of the IAEA under the CSA. And what are those responsibilities? As noted above, they are stipulated in Article 2 of the CSA. They are to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.
Parchin is not a site that is at all connected, even in IAEA and third party allegations, with fissile material that should be declared pursuant to Iran’s CSA. The allegations about the site – allegations that are unsubstantiated, and the evidence for which the IAEA will not share with Iran – concern conventional explosives testing and other non-fissile-material-related activities that could be used in developing a nuclear warhead. As I explained in a piece on the JURIST site some time ago, and as is made clear in Article II of the CSA quoted above, the mandate of the IAEA does not extend to investigations and assessments of non-fissile-material-related aspects of a nuclear weapons program (i.e. nuclear warhead development). Thus, since an inspection of the Parchin site definitionally cannot be said to be necessary in order for the IAEA to fulfill its responsibilities under the CSA, a special inspection cannot be requested for the site. This is the effective end of the legal analysis.
However, even if arguendo Parchin was a site at which there was a reasonable basis for concluding that fissile material, subject to declaration to the IAEA, is or has been present, it should be noted that as explained above, the IAEA would only be authorized to ask Iran if it could conduct a special inspection. If Iran denied this request, as it almost certainly would, the IAEA could submit the dispute to arbitration or to the ICJ, but that’s about it in terms of the ability of the IAEA to enforce its wish to conduct a special inspection of the site.
Perhaps, then, it’s no wonder that the IAEA has not opted for this route with Parchin, and at present shows no inclination to do so. Hopefully the US will think better of trying to force the IAEA into a special inspection attempt that will only poison relations with Iran further, and that ultimately won’t yield any useful results in resolving the dispute between Iran and the West over Iran’s nuclear program.
For some MUCH better ideas about how the US SHOULD proceed with regard to Iran’s nuclear program, see Yousaf Butt’s new piece here.