New International Court of Justice Judgment Validates My Arguments about the IAEA Board of Governors’ Authority
Posted: March 31, 2014 Filed under: Nuclear 10 CommentsThe 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.
Arms Control Law 
That NPT statement has always been crystal clear to me, if not to others, and not open to interpretation by anyone.
exclusive_purpose_preventing_diversion
The same language appears in Iran’s safeguards agreement with the IAEA, twice:
“for the exclusive purpose of verifying that such material is not diverted to nuclear
weapons or other nuclear explosive devices”
Click to access infcirc214.pdf
Note it says nothing about missiles and mines and non-nuclear sites etc nor limiting enrichment to make Israel and Einhorn happy.
The P5+1 would say that the UNSCRs bestow extra authority on them to empower the IAEA to do so, but even if one were to buy such an argument, it is clear that the nuclear-based UNSCRs on Iran via Ch. 7 were improperly applied, and in any case following the resolution of CSA concerns in 2008 there is no basis whatsoever for the continued application of the nuclear-based UNSCRs.
Don’t miss Gareth Porter’s article —
The False Intelligence Behind the “Manufactured Crisis” over Iran’s Nuclear Activities
excerpt – final paragraph:
Is the IAEA even the NPT’s “supervisory treaty body”?
Of course not (but you knew that). The IAEA (exclusively) has a non-diversion role only,
The mainstream media goes even further, commonly referring to the IAEA as “the UN nuclear watchdog” when of course the iAEA isn’t even a UN agency. It does have a pretty blue flag, though, similar to the UN’s.
Dan, your reliance on the ICJ decision is a bit odd for two reasons: One is that you find that part of an ICJ decision is valid when it finds that non-consensus decisions are invalid even though the ICJ decision is a non-consensus decision (12-4 vote). Who cuts the barber’s hair?
More relevant is that the ICJ does accept consensus decisions. If it did not, it would not have taken the trouble to assess whether the relevant consensus decisions had a bearing on the question at hand.
Most, but certainly not all, decisions of the IAEA Board of Governors are taken by consensus.
Best, Marianne
This is definitely the strangest comment you have made here, Marianne. Do you really not see a difference between a majority ruling by judges of a court of law on the one hand, and the statements agreed to by a small subset of the states parties of an international organization on the other?
Dan, The ICJ consists of 15 members elected by the UN General Assembly and the Security Council. The Board of Governor’s election process is a bit more complicated, but in essence its 35 members are elected by the IAEA General Conference directly (the majority) or indirectly. It is not a particularly small subset – 35 out of about 140. (The Board is perhaps more “representative” than the ICJ, for example, having a higher percentage of non-aligned states. There is a core group in each with a high degree of overlap. But the IAEA Board has an additional 20-25 members and the ICJ an additional 6 or so. (Yes, politics are involved.)
The ICJ has limited authority extending to issues between states where they agree to abide by its judgments. Its advisory opinions are not binding on anyone. The Board of the IAEA has limited authority, too, as spelled out in the IAEA Statute. I think it is an apples and oranges comparison, but no matter, since that point was a bit of a joke – perhaps a poor one.
The much more important point is the one that you did not address. The ICJ in its whaling decision did not make the case that you relied on to take exception to IAEA Board consensus decisions. It described as overreach only the decisions cited that were not taken by consensus.
Marianne
No, note what the ICJ says in paragraph 83 of its judgment: “”First, many IWC resolutions were adopted without the support of all States parties to the Convention . . .” The court here is not talking about whether the resolutions were taken by a consensus of the IWC, but rather whether they were taken by a consensus of the parties to the underlying treaty, the ICRW. So analogously, the question of whether IAEA BOG resolutions can be used to interpret the IAEA Statute is not a question of whether the IAEA BOG was in consensus on those decisions, but rather whether all parties to the IAEA Statute were in consensus on those decisions. That’s why IAEA BOG decisions cannot be used, as IWC decisions could not be used, as evidence of subsequent practice of the parties to the relevant conventions – because they dont represent all the parties to the relevant conventions. And I would stress again that, under the Court’s holding, the IAEA BOG should be understood to not have the ability in and of itself to interpret the IAEA Statute, MUCH LESS to interpret a bilateral treaty (the CSA) to which the IAEA is only one of the two contracting parties.