The Iran-IAEA Joint Statement on a Framework for Cooperation: A Way Out of the Impasse?

On 11 November 2013, while the (overall successful) negotiations in Geneva between the P-5+1 and Iran had been postponed for a few days, direct talks in Tehran between the International Atomic Energy Agency and Iran proved fruitful. In Geneva, according to open source information, many differences have been solved and only minor gaps remain, and it appears that the main reason why an agreement has not been finalized during this round of negotiation lies in the fact that the position of the P-5+1 was not united, since the French delegation has adopted a ‘hard’ stance. At the same time, in Tehran IAEA DG Yukiya Amano and Mr. Ali Akbar Salehi, Vice-President of the Islamic Republic of Iran and President of the Atomic Energy Organization of Iran, signed a ‘Joint Statement on a Framework for Cooperation’. The document states that both parties have agreed ‘to strengthen their cooperation and dialogue aimed at ensuring the exclusively peaceful nature of Iran’s nuclear programme through the resolution of all outstanding issues that have not already been resolved by the IAEA’.

At first reading, the following observations may be made regarding this Joint Statement:

1. The ‘Framework for Cooperation’ reminds to some extent the ‘Work Plan’ that was agreed between the IAEA and Iran in August 2007, under which Iran pledged to provide over the course of the next few months, answers to questions from the Agency, as well as clarifications and access to information, regarding remaining ‘outstanding issues’ on its nuclear programme. The Framework appears less detailed at this stage than the Work Plan, but this may be explained by the fact that it is understood as a ‘first step’, during which Iran and the IAEA agree to implement a handful of ‘practical measures’ listed in an Annex (entitled ‘Initial Practical Measures to be Taken by Iran Within Three Months’) to the Joint Statement.

2. What is the legal nature of the Joint Statement and of the Framework it embodies? It may be observed at first sight that the Joint Statement matches prima facie the definition of a treaty contained in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations. Article 2(1)(a) of  the 1986 Vienna Convention defines a treaty as ‘an international agreement governed by international law and concluded in written form […] between one or more States and one or more international organizations. The Joint Statement is indeed an international agreement, and it has been concluded in ‘written form’. It is less certain that the Joint Statement be ‘governed by international law’, since this criterion refers to the presence of an intention of the parties to create obligations under international law (as opposed to mere mutual understandings regarding their behaviour). Indeed, it may be reasonably argued that given the terms chosen by the negotiating parties (‘[…] Iran and the IAEA will cooperate further with respect to verification activities to be undertaken by the IAEA to resolve all present and past issues. It is foreseen that Iran’s cooperation will include providing the IAEA with timely information about its nuclear facilities and in regard to the implementation of transparency measures […] – emphasis added), the Joint Statement is more of a nature of a preliminary agreement, a kind of Memorandum of Understanding (MoU), and as such that its binding force is debatable. It may also be viewed as a mere Confidence-Building Measure (CBM), and as such voluntary and non-binding in nature. Given the unclear legal nature of the Joint Statement, it is unclear what would be the legal consequences of the non-fulfillment of an undertaking assumed under the Joint Statement. It is significant that in terms of implementation and ‘compliance’, the document merely provides that the IAEA ‘will report to the Board of Governors on progress in the implementation of these measures’, without further elaborating on the follow-up process.

3. Be it as it may, it appears that the Joint Statement is an important step forward, as well as a significant sign of goodwill by Iran, since the undertakings by Iran under the Joint Statement and its Annex go well beyond the obligations of Iran under its 1974 Safeguards Agreement with the IAEA, and that in some respects (i.e. in terms of the provision of ‘advance’ information on contemplated new nuclear installations) they are (as far as it appears from the wording of the Annex) even broader in scope than those that a country is supposed to assume under an Additional Protocol (AP). However, Iran’s Safeguards Agreement cannot be deemed per se superseded by the Joint Statement. On the contrary, it is to be assumed that the Safeguards Agreement is applicable to the Joint Statement mutatis mutandis, or in other words that the Joint Statement is to be read in conjunction with the Safeguards Agreement, in particular as regards procedures and conditions of cooperation.

4. It may be reminded that the 2007 Work Plan had been satisfactorily implemented by Iran, which led the IAEA to issue a report in February 2008 stating it had been able to conclude that answers provided by Iran, in accordance with the work plan, were either ‘consistent with its findings’ or ‘not inconsistent’ with its own findings. As a consequence, the only remaining issue, according to the 2008 report, was ‘the alleged studies on the green salt project, high explosives testing and the missile re-entry vehicle’. This latter issue had not been considered as one of the ‘outstanding issues’ that the Work Plan was supposed to clarify, but it subsequently unfolded in such a way as to become the focus of the IAEA’s ‘concerns’, with important negative consequences such as the imposition of additional unilateral economic measures against Iran by some countries (whose doubtful legality I examined here, here and here). By the way it shall be reminded that one reason (maybe the main reason) why the issue of ‘alleged studies’ (now termed ‘Possible Military Dimension’) was not resolved since 2008 lies in the fact that the countries which provided the information to the IAEA did not accept that it be transferred to Iran, contrary to the relevant provision of the Work Plan (see para. III).

It is now to be hoped that, if supplemented in due course by technical and administrative understandings satisfactory to both parties and correctly applied, the Framework for Cooperation that the Joint Statement contemplates shall in turn address substantively all remaining ‘concerns’ expressed by the IAEA in its latest reports, and pave the way for the Iranian nuclear file to come back from the Security Council to a ‘routine’ IAEA scrutiny.