A Response to Laura Rockwood

Laura Rockwood, the former longtime head of safeguards at the IAEA Office of Legal Affairs, has a new article out in Arms Control Today entitled “The IAEA’s State –Level Concept and the Law of Unintended Consequences.”  When I read the piece last week I was surprised at how thoughtful and rigorous the analysis was. I don’t mean this as a slight to Laura personally.  I mean that I’ve gotten used to so much of the writing in arms control literature on international law and safeguards subjects being quite superficial and conclusory, without much supporting legal analysis (see, e.g., this recent piece by Persbo and Carlson).

But apparently, now that Laura is retired from the IAEA and has taken up a position at the Belfer Center, she has found the time to provide a much more thoughtful and thorough analysis in this paper of her view of the IAEA’s legal authority under the INFCIRC/153 comprehensive safeguards agreement (CSA).

While the title of the piece focuses on the IAEA’s state level safeguards approach, something I’ve written about here, Laura actually spends about half of the piece arguing a related and more fundamental point; i.e. that under the CSA alone, the IAEA has the legal authority to investigate and assess both the correctness and the completeness of a safeguarded state’s declaration. Readers will know that this is a subject I have written a lot about in the past.

While, again, I welcome Laura’s thoughtful piece on this question, I have to disagree with her in her analysis and conclusions.  Essentially, Laura is making a revisionist argument about the legal authority of the IAEA under the CSA; a view that has its origin in the aftermath of the 1990-1991 Gulf War, and has been championed by the United States in the IAEA Board of Governors since that time. Laura Rockwood has become the chief public apologist for this argument, which goes against the common understanding of the legal authority of the IAEA, held by IAEA officials and states for the first two decades of the CSA’s existence.  And, as she laments in her new piece, but which I find encouraging, many states are still unpersuaded by it.

As well they should not be.

Laura’s basic argument is that Article 2 of the INFCIRC/153 CSA gives the IAEA the legal authority to not only administer safeguards on sites and fissile materials declared to the agency by a safeguarded state, pursuant to the declaration guidelines in the CSA, but also to use unstipulated means to search for undeclared fissile materials and related sites inside a safeguarded state. This is what she means by additionally verifying the completeness of a state’s declaration.

While it is common to hear arguments that the IAEA Additional Protocol gives the IAEA enhanced authority to investigate the existence of undeclared fissile materials in a safeguarded state, what Laura is arguing here is that even if a safeguarded state has not adopted an Additional Protocol, the IAEA still has the authority under the CSA alone to investigate for undeclared fissile materials on the territory of the safeguarded state, and to withhold its judgment of full safeguards compliance by that state if the state doesn’t comply with the agency’s demands in this regard.

In support of this argument, Laura mainly offers evidence of resolutions of the IAEA Board of Governors from the years immediately following the first Gulf War in 1990-1991, in which the thirty-five member BOG, following the lead of the US and shocked by the recent discovery of a mature nuclear weapons program in Iraq which had been achieved under the very noses of IAEA inspectors, became convinced of the new idea that the IAEA should in future not simply rely on the declaration provided to the agency by a safeguarded state of its fissile materials and related facilities, as it had ill-fatedly done with Iraq, but should additionally of its own accord follow any leads it might have for tracking down undeclared fissile material and facilities, wherever they were being hidden on the territory of the safeguarded state.

Eventually, a recognition of the limits of the IAEA’s legal authority under the CSA to carry out such a broadened investigative program led to the effort, eventually successful in 1997, to create an Additional Protocol to the CSA which would give IAEA inspectors additional delineated authority to inspect sites within the safeguarded state for undeclared fissile materials.

However, Laura’s argument in this new piece is that even if a state – for example, Iran – does not have an Additional Protocol agreement in force, the IAEA nevertheless has the authority, nay the responsibility, under the CSA alone to search for undeclared fissile material on its territory, and to withhold its “broader conclusion” concerning the safeguards compliance of the state, until all of the agency’s suspicions regarding the completeness of the state’s safeguards declaration have been put to rest.

Again, as have others who have made this same argument, Laura primarily relies on resolutions of the IAEA BOG for this interpretation.  However, as I have previously explained, and as has been verified by the International Court of Justice in its recent Australia v. Japan whaling decision, the IAEA BOG does not have the authority to interpret the IAEA Statute, let alone the CSA which is in every case a bilateral treaty of which the IAEA is only one of the two treaty parties.  Therefore all of Laura’s examples of the opinions of the BOG on the interpretation of the CSA are in fact irrelevant to the task of correctly interpreting the CSA as a treaty.

Nevertheless, I want to make it clear before moving on to interpretation of the treaty itself that these and later resolutions by the BOG expressing their opinion about the authority of the IAEA and its ability to verify correctness and completeness under the CSA alone, comprise a fundamental break from the common understanding of states and IAEA officials in the years prior to the first Gulf War, and the efforts that began at that time to enhance the IAEA’s authority through the conclusion of an Additional Protocol to the CSA.

In the official history of the IAEA, written by David Fischer and published by the IAEA itself in 1997, Fischer writes the following regarding the 1970-1971 negotiations leading up to the adoption of the INFCIRC/153 template agreement:

The EURATOM delegations succeeded in sustaining the principle, implicit in the NPT, that safeguards should be applied only to nuclear material . . . and in limiting the access of inspectors, during routine inspections, to previously agreed ‘strategic points’. In simple language, this meant that IAEA inspectors would normally − i.e. during routine inspections − verify only nuclear material at locations that had been declared by the State and would do so by access that would be limited to pre-defined strategic points in the plant concerned . . .

The EURATOM delegations accepted, however, that there would be no limit on the IAEA’s access rights if the Board considered that a ‘special inspection’ was needed, and the State gave its agreement, or if the Board decided that a special inspection was urgent and essential to verify non-diversion. (Pg. 256, emphasis added)

Regarding the INFCIRC/153 system generally, and the eventual recognition of the necessity of an Additional Protocol to increase the investigative authority of the IAEA, Fischer further writes:

It will be recalled that in verifying compliance with comprehensive safeguards agreements IAEA inspectors had essentially confined their focus, during routine inspections, to the nuclear material at locations that had been declared by the State . . . The IAEA’s inspectors would verify the State’s reports on its stocks of nuclear material and changes in those stocks . . . chiefly by access limited to a number of pre-defined strategic points in the plant concerned. The 1971 system was thus largely one of auditing the State’s nuclear material accounts, and it had worked well in regard to locations and nuclear material that had been reported to the IAEA. The IAEA’s experience in Iraq and the DPRK had shown, however, that it was essential that the Agency should go beyond auditing the State’s nuclear accounts. The Agency must be able to assure itself that the State’s declarations were also complete – that the State had reported all its nuclear material. . . In 1995, the Board authorized the Secretariat to put into effect those elements of the ‘Programme 93+2’ that did not require additional legal authority. In May 1997, the Board approved a protocol, to be added to existing comprehensive safeguards agreements, which will provide the legal authority for several safeguards measures that go beyond the existing system, for instance, access by the IAEA to more information about a State’s nuclear activities, more intensive inspections, including access beyond previously agreed ‘strategic points’ in a safeguarded plant, access to any installation within the perimeter of a nuclear site, and access to plants engaged in nuclear related activities such as those manufacturing components of enrichment plants. . . [t]he Board approved the protocol on 15 May 1997. (Pg., 296-299, emphasis added)

Similarly, Mohamed ElBaradei, who was the head of the IAEA’s Office of Legal Affairs from 1984-1993, during the period leading up to, and immediately after the first Gulf War, before becoming the Director General of the IAEA from 1997-2009, has written the following in his 2011 book concerning his understanding of the IAEA’s authority under the CSA:

There are plenty of flaws with the treaty.  As I have already pointed out, it is weak on execution: the IAEA for decades was expected only to inspect or “verify,” what NPT members had declared. (Pg. 11)

He writes further of the period immediately following the first Gulf War, and the revelations concerning Iraq’s secret nuclear weapons program:

Back in Vienna, at the IAEA Secretariat, we had begun work on the concept of a Model Additional Protocol to make the Agency’s in-country verification authority more robust and explicit . . . Finally, on May 13, 1997, the Model Additional Protocol was adopted by the IAEA Board of Governors.  It was a breakthrough legal instrument that would strengthen the effectiveness of the NPT safeguards system.  So what had changed? In countries that accepted the Additional Protocol, IAEA inspectors had more freedom on the ground, with more access to information and sites, and could now search more effectively for undeclared nuclear material and facilities.  In the past, the IAEA could theoretically invoke the right to look for undeclared material and facilities through a “special inspection” mechanism.  But special inspections were arduous to invoke and had almost never been used. The Additional Protocol enabled greater access as a routine matter. . . For countries that had only a safeguards agreement in place, the IAEA was expected to provide assurance that declared nuclear material and facilities had not been diverted for non-peaceful purposes.  But for those that brought an Additional Protocol into force, the IAEA could provide, in addition, the equally important assurance about the absence of undeclared nuclear material and facilities. (Pg. 27, 29-30)

Several points stand out from these accounts. One is an understanding that the INFCIRC/153 CSA was a carefully negotiated agreement that took into account the sensitivities of states about overly intrusive safeguarding activities by the IAEA. In its final form, the CSA was a compromise in which a safeguarded state agreed to allow the IAEA to function within its territory, and to safeguard its nuclear program, but only in strict accordance with the delineated procedures spelled out in the CSA.  These primarily included a detailed declaration by the safeguarded state of all of the fissile material and related facilities on its territory. The IAEA’s role was to account for all of the declared material, and to make sure that none of that material was diverted from peaceful to military uses.

The CSA was designed with an internal procedure which was to be used in cases where the IAEA considers the declaration by the safeguarded state to be inadequate.  This is the special inspection procedure laid out clearly in Articles 73 and 77 of the CSA.  Any question of the existence of fissile materials that had not been properly declared by the safeguarded state can be addressed through this process. And indeed, as the quotes above by Fischer and ElBaradei make clear, this was the understanding of IAEA officials for the first two decades of the existence of the CSA, i.e. that the only process provided for in the CSA for investigating the existence of undeclared fissile material was the special inspection process, which was a cooperative process between the state and the IAEA, through which the IAEA registered its concerns and secured the permission of the state for inspections of areas additional to those agreed to for routine inspection.

Laura’s argument in her new piece that there is in the CSA text authority granted to the IAEA to search for undeclared fissile materials on the territory of a safeguarded state, in a manner outside of the procedures outlined in the special inspection process in Articles 73 and 77 of the CSA, is revisionist and is not in keeping with the understandings generally held by states and IAEA officials prior to 1991.

And indeed, this earlier common understanding was the correct legal understanding.

This question is at its core a question of treaty interpretation; the interpretation of the CSA as a bilateral treaty between the IAEA and a state. And the process for treaty interpretation in international law is quite clearly spelled out in Articles 31 & 32 of the 1969 Vienna Convention on the Law of Treaties (VCLT).

I am planning to give a more thorough and exhaustive analysis of this question of treaty interpretation in my forthcoming book, Iran’s Nuclear Program and International Law. But I would offer this truncated analysis here.

The key treaty provision for this question is indeed Article 2 of the CSA, which reads:

The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, 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 have argued elsewhere, I think that a plain meaning reading of Article 2 results in an understanding that the parties agree therein the IAEA is to have the authority to ensure the application of safeguards in accordance with the terms provided in the rest of the CSA, taken in their entirety, and that the exclusive purpose of the IAEA’s role and authority under the CSA is to verify that fissile material held inside the safeguarded state is not diverted from peaceful to military uses.

I think that the context in which Article 2 appears in the treaty is of utmost importance to its proper interpretation. Laura’s argument, focusing only on Article 2 and taking it out of its context within the rest of the treaty, is basically that Article 2 gives the IAEA the authority to not only investigate and assess the correctness of the safeguarded state’s declaration – which is a process carefully outlined in the CSA, but also to investigate and assess the completeness of its declaration – a task for which there is no process spelled out in the rest of the CSA, other than in the limited context of the special investigation provisions.

She seems to think that the framers of the CSA intended for the treaty to grant an expansive authority and responsibility to the IAEA in Article 2, but to only provide the procedural tools for the agency to carry out half of that authority and responsibility in the rest of the treaty’s provisions.  This makes absolutely no sense.

And indeed the authority/tools distinction that Laura attempts to draw here and elsewhere is itself illusory.  The two concepts are co-extensive and co-definitional.

VCLT Article 31(1) makes the context of the treaty a primary source for interpreting its provisions. The fact that there are in the terms of the CSA only procedures for the IAEA’s verification of the correctness of the declaration by the safeguarded state, with the stipulated and limited exception of the special investigation process, is strong interpretive evidence that Article 2 should be interpreted to only grant the IAEA the authority to investigate and assess in accordance with these delineated procedures, which focus on verifying the correctness of the safeguarded state’s declaration. In essence, the IAEA’s verification tools equal its authority.

Laura’s interpretation, by contrast, would mean that the IAEA additionally has the authority to demand access to sites not covered in the state’s declaration, potentially anywhere within the territory of the state.  And since the CSA is silent on what procedures would need to be followed for these off-declaration inspections, it would appear that Laura thinks the IAEA has unlimited discretion in choosing sites, and specific areas within them, as well as unlimited discretion in determining how many times a site must be visited, and how many times and how persons connected with the sites must be interviewed, in order for the IAEA to satisfy its suspicions regarding the existence of undeclared fissile material within the state. And furthermore that until the IAEA is satisfied, it can withhold its determination that the state is in compliance with its safeguards obligations.

This interpretation is, in the words of the Article 32 of the VCLT, manifestly absurd and unreasonable. No state would agree to such a broad and unrestricted grant of authority to the IAEA. Indeed, this conception of the authority of the IAEA goes well beyond what is provided for in the provisions of the Additional Protocol itself.  In fact, under Laura’s interpretation of the CSA, the bringing into force by a safeguarded state of an Additional Protocol would not only be a useless gesture, as I have argued elsewhere, but would in fact actually decrease the IAEA’s authority, as the Additional Protocol places further delineated limits on the IAEA’s discretion to visit sites than does this broad interpretation of the CSA.  This simply cannot be the correct interpretation of the CSA and the authority granted to the IAEA in its Article 2.

Rather, the correct interpretation of Article 2 of the CSA is that it grants the IAEA the authority and responsibility to carry out its role in safeguarding in accordance with the terms of the rest of the CSA, which focus on verifying the correctness of a state’s declaration.  The Additional Protocol, if in force for a safeguarded state, does grant the IAEA additional authority to investigate and assess sites not included in the standard CSA declaration, and does give the IAEA increased ability to detect undeclared fissile materials.  This is the Additional Protocol’s entire raison d’être.

However tempting it may be, for reasons of increased nonproliferation assurance, to argue that states which have not brought an IAEA Additional Protocol into force, are nevertheless under the same obligations as those contained in the Additional Protocol, this is simply not legally accurate.

In my opinion, it would be better and more credible for IAEA officials to simply be honest about the obligations of safeguarded states and the limited authority of the IAEA under the CSA, and to urge states to bring Additional Protocols into force in order to increase those obligations and authorities.

Attempts, like Laura’s most recent, to erroneously shoehorn additional obligations and rights into the CSA itself, only degrade the credibility of the IAEA, and further reduce states’ trust in the apolitical and unbiased character of the agency.