The JCPOA and the Broader ConclusionPosted: December 8, 2015
I wanted in that same spirit to make a few observations about his most recent piece, in which he also cites a piece by Mark Hibbs on the same subject.
What I wanted to make sure is clear to everyone is that the JCPOA at no point commits Iran to strive towards or to achieve the IAEA’s determination of a “broader conclusion that all nuclear material in Iran remain in peaceful activities.” Nor does the JCPOA at any point make the granting of such a broader conclusion by the IAEA a condition for the fulfillment of any commitment either by Iran or by any other party to the JCPOA. This includes the lifting of sanctions by the Security Council and by the U.S. and E.U.
The broader conclusion is sometimes mentioned in the JCPOA schedule as an alternative criterion, for example here:
The EU will terminate all provisions of the EU Regulation implementing all EU proliferation-related sanctions, including related designations, 8 years after Adoption Day or when the IAEA has reached the Broader Conclusion that all nuclear material in Iran remains in peaceful activities, whichever is earlier.
But achieving this standard of a broader conclusion being granted by the IAEA, is not incumbent upon Iran under the JCPOA, either now or at any time in the future. Nor indeed is it legally incumbent upon any state, including Iran, and including those states who are party to both an INFCIRC/153 CSA and an INFCIRC/540 Additional Protocol.
According to the 2014 IAEA Safeguards Implementation Report, there are currently 53 states that are party to both a CSA and an AP, and which have not received a broader conclusion from the IAEA (see pg. 23 of the report). Not having received a broader conclusion is not itself an indication of noncompliance with a safeguarded state’s safeguards obligations.
The only legal obligations which safeguarded states have are expressed in the safeguards treaties to which they are parties. And the central legal obligation of any safeguarded state, along with the exclusive purpose for the application of IAEA safeguards, is expressed in Articles I & II of the CSA as follows:
The Government of ___ undertakes, pursuant to paragraph 1 of Article III of the Treaty, to accept safeguards, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, 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.
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 ___, 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.
IAEA safeguards are applied “for the exclusive purpose of verifying that [safeguardable nuclear material in peaceful uses] is not diverted to nuclear weapons or other nuclear explosive devices.” That is the only legal mandate that the IAEA has pursuant to safeguards treaties. And do not be confused – this central legal obligation on the safeguarded state, and this exclusive purpose for the application of IAEA safeguards, does not change when a state supplements its CSA with an Additional Protocol. The AP does add discrete legal obligations for the safeguarded state with regard to declaration and access, and adds to the IAEA’s legal authority to investigate and assess the question of whether there are undeclared nuclear materials or related facilities on the territory of the safeguarded state. But the AP does not change the central legal obligation of the state, nor the exclusive purpose for the application of IAEA safeguards, which are expressed in Articles I & II of the CSA. The Additional Protocol is, after all, simply an attachment to the CSA, and preserves its core principles.
The idea of the IAEA making a broader conclusion that all nuclear material in a safeguarded state remain in peaceful activities, as a safeguards implementation standard, is a completely sui generis creation of IAEA institutional policy, and does not reflect an actual legal obligation of safeguarded states, whether they are party to the AP or not. You will not find this standard expressed in the text of either the CSA or the AP.
To have a broader conclusion made about a safeguarded state’s nuclear program is certainly a laudable goal for the state, but it is not a legal obligation for the state. And for Iran, it plays no necessary role in the implementation of the JCPOA.
I just wanted to be clear on this point, because both Persbo and Hibbs don’t mention this fact, and seem to write about the broader conclusion, as many other observers do, as if it is something that Iran has to achieve under the JCPOA. It’s a nice goal, but it’s not a requirement either under the JCPOA, or for that matter under safeguards law.