New International Court of Justice Judgment Validates My Arguments about the IAEA Board of Governors’ AuthorityPosted: March 31, 2014
The International Court of Justice today handed down its judgment in a case between Australia and Japan concerning Japanese whaling activities. There is a lot to talk about in this case (Japan lost the case by the way, and has to stop a controversial whaling practice), but I wanted to focus for a moment on the Court’s discussion of the decisions of organs of international organizations, and their relevance as subsequent agreements or practice relevant to the interpretation of related treaties.
As Julian Arato has explained in an excellent piece over at EJIL:Talk:
Australia and New Zealand argued that the Court should rely on certain resolutions by the IWC [a supervisory body established by the Whaling Convention] offering a restrictive view of the permissible scope of lethal means in scientific research. Among others, Australia pointed to Resolution 1995-9, which recommends that the killing of whales “should only be permitted in exceptional circumstances where the questions address critically important issues which cannot be answered by the analysis of existing data and/or use of non-lethal research techniques.”
Australia claimed that the resolutions had to be taken into account in interpreting the Convention because they comprised “subsequent agreement between the parties regarding the interpretation of the treaty” and “subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation” in the sense codified by the Vienna Convention on the Law of Treaties (Articles 31(3)(a)-(b)).
Crucially, only some of the relevant resolutions were adopted by consensus. Others, including Resolution 1995-9 in particular, were adopted by mere majority, and notably without the concurrence of Japan.
This facet proved critical. The Court concluded that those resolutions adopted by consensus did not sufficiently establish Australia and New Zealand’s restrictive interpretation of the scope of permissible lethal means in scientific research. While others, like Resolution 1995-9, may have seemed more to the point, they could not be accepted here as authoritative guides to the interpretation of the Convention. In the Court’s words:
“… Australia and New Zealand overstate the legal significance of the recommendatory resolutions and Guidelines on which they rely. First, many IWC resolutions were adopted without the support of all States parties to the Convention and, in particular, without the concurrence of Japan. Thus, such instruments cannot be regarded as subsequent agreement to an interpretation of Article VIII, nor as subsequent practice establishing an agreement of the parties regarding the interpretation of the treaty within the meaning of [VCLT 31(3)(a) & (b)]. (¶83).”
Thus, to generalize, while unanimous or consensus resolutions of a supervisory treaty body might be considered subsequent agreements or practice relevant to the interpretation of the underlying convention, resolutions adopted by disputed majority will not count under the general rule of interpretation.
When I read this I immediately thought about the relevance of this judgment in the context of the IAEA. As readers will know, the IAEA has a 35 member-state Board of Governors, which exercises some monitoring and verification duties under the IAEA Statute, to which a total of 162 states are parties.
As I have noted in several previous posts, the IAEA Director General, as well as some outside observers including the David Albright gang in their infamous hatchet job report on my work, have argued that the IAEA Board of Governors has the authority to interpret the IAEA Statue, as well as the bilateral safeguards treaties signed between the IAEA and member states, e.g. to determine the scope of the IAEA’s authority to investigate and assess member states’ nuclear programs. See previous discussions of this issue in posts here and here, and in some of the arguments Persbo and Ford made in our BAS Roundtable debate here.
In these posts, I have long argued that this is not a correct understanding of the competency of the IAEA BOG – i.e. that the BOG does not have any special grant of interpretive authority in any of the relevant treaty sources, and that, particularly with regard to the bilateral safeguards treaties which the IAEA has signed with states, decisions of the 35 member BOG have no particular interpretive weight.
This new ICJ judgment validates my analysis.
Again, the IAEA BOG does not have the authority to interpret the IAEA Statue or individual CSA’s, and it does not have the authority to determine the scope or content of the IAEA’s authority 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 hope that the IAEA Office of Legal Affairs reads this new ICJ judgment, and advises the Director General accordingly.