Iran and the bomb: The legal standards of the IAEA


In 1967—ten years after the United States and Iran signed a civil nuclear cooperation agreement as part of America's Atoms for Peace program—Iran debuted its first nuclear facility in Tehran, a 5-megawatt nuclear research reactor, supplied by the United States and fueled by highly enriched uranium. Today, 45 years later, the country's nuclear program is no longer so simple. As international concerns grow over Iran's nuclear ambitions, so, too, do the International Atomic Energy Agency's inspections in Iran. But what are the standards that the IAEA uses to investigate and assess Iran's compliance with its safeguards agreements, and are they the legally correct standards? Until December 17, Christopher Ford, Andreas Persbo, and Daniel Joyner will tackle this very Roundtable question.

Round 1

Agreements should be kept

Earlier this year, I published a 17-page paper on nuclear safeguards commissioned by theEU non-proliferation consortium; that paper only scratches the surface of how safeguards work. Attempting to summarize the legalities of this complex system on a specific country will not be easy. This Round One essay nevertheless attempts to encapsulate the law of safeguards as applied on Iran's nuclear fuel cycle. As the Roundtable format is brief, less than 900 words, it will involve a certain degree of cherry picking; however, I hope that the following debate will help bring out a fuller flavor of the regime and synopsize its contemporary problems.

It is best to start with the basics. Iran joined the 1968 Nuclear Non-Proliferation Treaty  (NPT) on February 2, 1970. By ratifying the treaty, Iran undertook not to "manufacture or otherwise acquire nuclear weapons or explosive devices" (Article II). It also pledged to sign-up to safeguards "with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices" (Article III.1). The International Atomic Energy Agency (IAEA) is charged with the administration of safeguards under the treaty. A Safeguards Agreement is a separate, legally binding contract between the IAEA and the state. Hence, there are situations when a state can be in compliance with the UN treaty, but not with its Safeguards Agreement. In the past, Iran has not been compliant with its agreement (for instance, in June 2003 and September 2003), whereas its compliance with the NPT has not been established.

Though the process is outlined in the Safeguards Agreement, the easiest way to explain the safeguards system is to paraphrase Hans Blix. The IAEA is a bit like the taxman, investigating annual tax returns. The taxman checks that the income declaration is correct, but may, if the submitter is unlucky, also look into whether everything is complete. The IAEA, in a similar way, confirms that the material balances in the country are as declared, but it also makes an assessment on whether it seems complete.

Iran has a Comprehensive Safeguards Agreement (CSA) with the IAEA. The agreement is called "comprehensive" because it covers "all source or special fissionable material in all peaceful nuclear activities within [Iran's] territory, under its jurisdiction or carried out under its control anywhere" (Article 1). In terms of verification, the IAEA has the "right and the obligation to ensure that safeguards will be applied" on this material "for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices" (Article 2). These two articles of law need to be fully digested and cannot be subject to a quick read.

Consider that the agreement applies to all source or special fissionable material, irrespective of where it is located, if it is declared or undeclared, or even placed in a nuclear explosive device. In practice, this means that the IAEA always needs to check that Iran's material declarations are correct as well as complete. If it did not, it would fail to abide by its own obligations under the agreement. It has long be recognized, however, that doing this completeness check is difficult without some strengthened authority.

Therefore the IAEA, in the early 1990s, embarked on a process to strengthen safeguards, whereby the Additional Protocol was developed. (Several articles on this are publicly available, but Suzanna Van Moyland's "The IAEA's Programme 93+2" is an excellent background read.) One of the drivers behind the drafting of the CSA's Additional Protocol  was to make it easier for the agency to draw a conclusion that there is no undeclared nuclear material in a member state. However, it is important to underline — indeed highlight brightly — that the IAEA's obligation to draw conclusions on the absence of undeclared material is inherent in the CSA. This was not an innovation introduced by the Additional Protocol, as it is sometimes claimed.

So does Iran's Safeguards Agreement require the IAEA to verify that materials have been placed in nuclear explosive devices? No, not at all. The objective of safeguards procedures in Iran is the "timely detection of diversion of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of nuclear weapons or of other nuclear explosive devices or for purposes unknown, and deterrence of such diversion by the risk of early detection" (CSA, Article 28). The reference to "purposes unknown" anticipates situations when a diversion of material to a weapon cannot be conclusively proven. It stands to reason that the IAEA should be able, and indeed is expected, to report to its members if enough material for a nuclear weapon cannot be accounted for.

The paragraphs above capture the essence of the IAEA's authority to conduct inspections in Iran, and the basis of its right, indeed obligation, to follow up on concerns on undeclared material. This includes possible military dimensions of Iran's nuclear program, as these activities by themselves are indicators of misuse of nuclear material.

Another way of putting it is to say that the IAEA simply employs standards agreed with Iran to investigate and assess the country's compliance with its Safeguards Agreement, and that the agreement should be kept. Those standards are legally correct and politically appropriate. In addition, Iran could take an essential step toward concluding that all material in Iran is in peaceful use by ratifying the Additional Protocol. The ratification would hence, ultimately, serve Iran's best interest.

Standards properly applied

Ever since the first public revelations of Iran's nuclear program in 2002, the International Atomic Energy Agency (IAEA) has struggled to verify and document Iran's degree of compliance with a range of legal obligations. Iran and its defenders have periodically contested the legal standards applied to Tehran, but these criticisms have so far been tendentious and insupportable.

The first challenge for IAEA investigators was to verify compliance with Iran's Comprehensive Safeguards Agreement (CSA), which, it quickly became clear, Iran had repeatedly violated — for example, by secretly importing uranium and experimenting with uranium conversion, plutonium separation, and laser enrichment. The information gathered by the IAEA — and the data provided by Iran under additional promises of transparency — formed the basis of the agency's 2004 findings that Iran had breached its safeguards agreement in reporting the possession, processing, and use of nuclear material, and declaring facilities where such material was processed and stored. The agency's report was painstakingly documented and amply justified. In fact, it is worth mentioning that if the IAEA were guilty of any legal fault at this point, it was in its refusal to follow its own statute for nearly two years in order to protect Iran from UN Security Council sanctions. Pursuant to the IAEA statute, if noncompliance is found, the Board of Governors shall report it to the Security Council; this was not done, however, until 2006.

In February 2003, less than a year after the program was widely revealed, Iran agreed to a modification of Code 3.1 of the Subsidiary Arrangements, which provide amplifying detail for safeguards procedures and obligations under its CSA. Because the original requirements for providing design information about new facilities left too little time for proper safeguards to be established, the IAEA had long been trying to obtain agreement on this particular adjustment. In March 2007, however, the Iranians announced that they were "suspending"  this modification. 

Iran maintains that it had the right to suspend the modified provision because it had not been ratified by parliament; however, Iran's CSA, which was ratified by parliament, specifies that Subsidiary Arrangements are to be created or modified only "by agreement" between Iran and the IAEA — that is, not unilaterally (Article 39). Were Iran's position correct, the entire IAEA safeguards edifice would fall apart, for most of the operational details of all safeguards measures everywhere are provided by Subsidiary Arrangements, rather than in the actual Comprehensive Safeguards Agreements. If compliance with the Subsidiary Arrangements were optional, governments could modify IAEA safeguards procedures at nuclear facilities at their whim, making nuclear accountability impossible.

Fortunately, Iran's position is incorrect. The text and structure of Iran's CSA make clear that Subsidiary Arrangements are intended to be legally binding, for they are integral to the coherence of the safeguards mechanism the agreement establishes. There are numerous points at which the agreement states that parties must follow the detailed procedures established by the Subsidiary Arrangements (e.g., Articles 32, 42, 51, 65, 68, 75, 76, and 90). The Comprehensive Safeguards Agreement — which requires the creation of Subsidiary Arrangements, provides a mechanism for their establishment, and obliges parties to follow their provisions — refers to the arrangements for a whole host of matters that were clearly not intended to be left to the caprice of the host government. In fact, in Article 60, the CSA even authorizes the Subsidiary Arrangements to supersede the provisions of the CSA itself. If the arrangements were not binding, and were not modifiable only by agreement, the CSA's structure and text would be inexplicable and incoherent.

The IAEA is thus correct in continuing to apply the modified Subsidiary Arrangements to Iran — and each time Iran refuses to provide timely information, it is another safeguards violation. The Security Council has also acted under Chapter VII of the UN Charter to require that Iran comply with the arrangements; Iran's refusals constitute violations of this charter.

In addition to safeguards, the IAEA must verify Iran's compliance with its agreements and obligations to suspend various aspects of its nuclear program. The agency's role in verifying suspension began with Iran's promise in October 2003 — as part of an agreement Tehran made with Britain, Germany, and France — to suspend all enrichment and reprocessing activities. In December 2003, Iran agreed to sign the Additional Protocol, a safeguards standard established in the 1990s in order to give the IAEA more investigative tools to fulfill its responsibility for verifying the absence of undeclared nuclear activities and the correctness and completeness of declarations. This IAEA responsibility stems from the CSA, which gives the agency the "right and the obligation" to ensure that safeguards are applied to "all" relevant nuclear material in peaceful activities in Iran: This necessarily implies the right to look into the possibility that some material or activities haven't been declared, and to assess the veracity of declarations. 

Iran subsequently repudiated the protocol, but in multiple Chapter VII resolutions, the Security Council has imposed further obligations upon Iran: to take steps demanded by the IAEA Board of Governors to clarify outstanding issues, to suspend enrichment-related and reprocessing activities, to stop construction of a heavy water reactor, to ratify — and, pending ratification, comply with — the Additional Protocol, and to give the IAEA more access to information than even specified by the protocol. The agency has been tasked with verifying compliance and Iran has been required to cooperate with the IAEA, so this constitutes another set of IAEA legal authorities and standards to apply vis-à-vis Iran. So far, there is no evidence that these standards have been improperly applied.

Overstepping bounds

The most recent International Atomic Energy Agency (IAEA) director general's report on the implementation of nuclear safeguards in Iran includes the following paragraph in the summary:

"While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and [locations outside facilities (where nuclear material is customarily used)] declared by Iran under its Safeguards Agreement, as Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities."

In his report to the IAEA Board of Governors, Director General Yukiya Amano states — as did his predecessor, Mohamed ElBaradei — that the agency can indeed verify that all declared safeguarded nuclear material in Iran has not been diverted to non-peaceful use. This mandate for investigation, as well as the assessment standard for this investigation, comes directly from Article II of Iran's Comprehensive Safeguards Agreement (CSA) with the IAEA, which mandates the agency to verify "that such material is not diverted to nuclear weapons or other nuclear explosive devices." Currently, Iran has only one safeguards agreement in force with the IAEA.

But the director general's report also applies two additional and separate legal standards — "to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities" (author's emphasis) — and makes two assessments based on them.

So where do these two new criteria come from? This is an important question because they, together with Article II of the CSA, are the legal standards that the IAEA has used, since at least 2006, as its scope of mandate for investigation and assessment of Iran's compliance with its safeguards obligations. And it's been on the basis of the application of these legal standards that the IAEA has continued to consider Iran to be in noncompliance with its safeguards obligations.

This IAEA assessment, in turn, has shaped both the diplomatic and security climate surrounding Iran and the substance of negotiations between Iran and the P5+1. It has also formed a basis of asserted legitimacy for the economic sanctions, applied both multilaterally and unilaterally by the West, that have crippled the Iranian economy.

The IAEA likely would assert that its mandate to apply these two additional legal standards derives from UN Security Council Resolution 1737 and Iran's CSA with the agency. (The space constraints of this Roundtable forum prevent me from analyzing these sources fully; however I have done so in a recent blogpost on Arms Control Law.)

I think that the two additional legal standards are ultra vires, or beyond the authority, of the IAEA to apply to Iran and to be the basis for investigations and assessments by the IAEA. The only lawful standard for the IAEA to apply is the clear standard from Article II of Iran's CSA, i.e. that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use.

It must be remembered that the IAEA is not a general policeman of international nuclear energy law. It is not the "UN's nuclear watchdog," as the media is so fond of calling it. The agency is an independent international organization, which was created through a treaty — an instrument of international law. As such, it has only the international legal personality and the limited mandate of legal authority, which are provided both in the agency's statute and in its bilateral Safeguards Agreements with member states.

So what does this mean in application? It means that the current director general and his predecessor have consistently assessed in their reports to the Board of Governors that, according to this one lawful standard, Iran is in full compliance with its IAEA safeguards obligations.

It also means that, since Iran neither has an Additional Protocol in force with the IAEA, nor is under any legal obligation to conclude one, the fact that the agency is "unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities" — standards derivable from the protocol — is legally irrelevant.

Furthermore, it means that the IAEA does not have the legal authority  to either investigate possible military dimensions, or the weaponization, of Iran's nuclear program, or to publish reports making assessments on this issue, as it did in November 2011.

In overstepping the bounds of its legal mandate through the application of these unwarranted legal standards of investigation and assessment, particularly during the tenure of current Director General Yukiya Amano, the IAEA has undermined the perception of its independence and objectivity. Indeed, many developing countries now believe the IAEA has simply become one more politicized instrument of the foreign policy goals of the United States and other Western nations. This is a great tragedy for those of us who support and value the IAEA's proper role in the nuclear nonproliferation legal regime and the important work it has done in this role in the past.

Round 2

Correct and complete is the norm

No one is trying to argue that the present is the past. At the same time, it is fatuous to declare that history is irrelevant for contemporary policy choices, or for the interpretation of law. Law is decided by policy, and policy is often determined by experience. Iran has been found in non-compliance with its safeguards agreement, and this has colored the debate over the past decade.

The scope of the agreement is, as I noted in Round One, not limited to material declared by the state; it also includes material that should be declared. Borrowing from the director general: "the system such as it had developed up to the Iraqi case, had limited capability to deal with completeness. This was the result of practical, rather than legal, considerations." Since then, the agency has taken steps to strengthen safeguards.

These steps do not, in any way, mean that the IAEA cannot investigate the completeness of state declarations absent in an Additional Protocol. Such an interpretation is even rejected by the IAEA membership,  which, in the latest safeguards resolution, noted "that the implementation of comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of a State's declarations." The General Conference sets policy, and I cannot find anything in its records that indicates a state objected to this formulation. Dan Joyner's argument appears to be deeply flawed: It not only goes against the apparent majority view on safeguards implementation, it also goes against the views of member states, including Iran.

It is important to be accurate in a debate, and Joyner has failed to be so. At no point has the IAEA director general, neither past nor present, "consistently confirmed that all safeguarded material in Iran is currently in peaceful use" as Joyner confidently declares. Rather, they have stated that the agency has been able to "verify the non-diversion of declared nuclear material in Iran" or that it "continues to verify the non-diversion of declared material."

The difference is fundamental. What the agency is saying is that it can confirm that all material declared by Iran is where Iran says it would be. The IAEA does not say that all material in Iran is accounted for. It cannot make this statement unless Iran provides them with further access under the Additional Protocol. Regrettably, the agency draws asimilar conclusion for more than 50 other member states. When the IAEA is able to assure the absence of undeclared nuclear material and activities for each of these states, it will be able to draw a conclusion about the absence of undeclared material. Not before.

Finally, no one likes to have words placed in one's mouth. I have made no implied argument about the role of the Security Council in safeguards implementation, as Joyner alleges. Since he brought it up, however, it suffices to say that the council has played a minor role as far as safeguards are concerned. The council, as Joyner well knows, has simply decided that Iran should take those steps identified by the IAEA Board of Governors. This hardly amounts to "deputization." I therefore leave Joyner's underhand argument without further consideration.

“All” materials means all materials

In Round Two of this Roundtable, Professor Daniel Joyner discusses the IAEA's efforts to verify the absence of undeclared activities in Iran as an "additional and separate" legal standard imposed beyond Iran's Comprehensive Safeguards Agreement (CSA). He asserts that this "new" criterion is ultra vires. It is "irrelevant," he writes, whether there are undeclared nuclear materials or activities in Iran: It is enough merely that "all declaredsafeguarded nuclear material in Iran has not been diverted to non-peaceful use" (emphasis added).

This is a poor argument easily dispensed with, as indeed both Andreas Persbo and I have already done in our earlier contributions. (I have also reviewed this legal history in a recent briefing paper.) It's a shame to have to recapitulate, but obviously necessary.

In truth, there is nothing new or additional about the IAEA's responsibility for assessing whether undeclared nuclear activities exist in Iran, for it has had this role since Iran's CSA came into effect in 1974. (It has not always had investigative authorities adequate to this task, and did not always have reason to look beyond Iran's declarations, but that is a different question. In any case, the UN Security Council has done much to remedy this lack of tools vis-à-vis Iran.) Pursuant to Article 2 of Iran's CSA, the IAEA has "the right and the obligation to ensure that safeguards will be applied … 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."

Joyner does not explain how he interprets the word "all" here, but for him it apparently doesn't mean the whole amount, quantity, or extent of.  Instead, it seems he would have Article 2 read something like: "to ensure that safeguards will be applied … only to whatever source or special fissionable material Iran chooses to declare to the IAEA." Of course, Article 2 doesn't actually say that.

It is not merely that Joyner's interpretation is inconsistent with the text. His standard would be weak in practice. As he has written, safeguarding all nuclear material in Iran covers nothing more than whatever is declared. By his interpretation, therefore, Iran would never have been in safeguards noncompliance, even when secretly working on uranium conversion, plutonium separation, and laser enrichment. (These things went on for years before being declared.) Nor does the confusion stop there, for Joyner offers no reason why Iran could not now amend its declaration to drop all mention of its enrichment program — thus, absolving it of any need to apply safeguards to its fissile material production infrastructure. (For Joyner, in fact, nuclear work doesn't even have to be secret to fall outside safeguards jurisdiction; it just has to not appear in a declaration.)

The best phrase to describe this argument is more pungent than merely to term it "legally incorrect," but that will have to suffice here. Because the IAEA is charged with safeguarding "all" materials in Iran, the agency is necessarily and properly concerned whether nuclear material or activities have been omitted from Iran's declarations. It has not acted ultra vires.

Joyner laments that, in its search for undeclared activities in Iran, the IAEA has become a "politicized instrument" for the West, which he says taints "the important work" the agency has done in the past. His own interpretation of the law, however, would contravene Iran's CSA, gut nuclear safeguards, and facilitate nuclear weapons proliferation. The IAEA and the nonproliferation regime do not need the crocodile tears of such friends. They simply need their rules to be read clearly.

The past is not the present

A non-nuclear weapon state's noncompliance with its Comprehensive Safeguards Agreement (CSA) does not per se constitute treaty breach. This is a fine legal point, but an important one (pp. 87-93). Historically, noncompliance with safeguards agreements — which can include minor technical accounting omissions or mistakes — has happened frequently and by many different countries.

Former IAEA Deputy Director General Pierre Goldschmidt notes in a 2009 article that, since 2003, the IAEA director general has reported to the Board of Governors on matters of noncompliance with safeguards obligations by Iran, Libya, South Korea, and Egypt. He also notes that the actions taken by the board in each case were inconsistent: It only referred Iran to the UNSC.

I agree that, in 2004, Iran was properly determined to be in noncompliance with its safeguards obligations. But that was eight years ago, and IAEA safeguards have now been applied to all of the facilities and activities cited by the board. As I noted in Round One, the IAEA director general has consistently confirmed that all safeguarded material in Iran is currently in peaceful use. Thus, in accordance with the agency's only lawful standard of investigation and assessment, Iran's 2004 safeguards noncompliance has been remedied, and Iran now is in full compliance with its obligations.

Ford argues that the Subsidiary Arrangements agreed to between Iran and the IAEA are legally binding. I disagree with this conclusion. He also writes that noncompliance with subsidiary arrangements by a non-nuclear weapon state  per se constitutes noncompliance with the relevant CSA. There is simply no support for this assertion in the CSA. All of the CSA provisions that Ford cites only delineate the subjects that should be addressed in the subsidiary arrangements. They do not bear on the question of the relationship between the two documents.

The Additional Protocol is not legally binding on Iran, and its expanded mandate for the IAEA's investigations and assessments is not applicable to Iran's case. The UN Security Council's decisions have not changed this fact.

The CSA that is currently binding on Iran does not give the agency the authority to assess the completeness of Iran's declaration — that is, whether undeclared fissile materials exist — but only its correctness. If the CSA provided otherwise, there would have been no raison d'être for the Additional Protocol. Brazilian governor Machado Quintella, for example, highlighted this distinction during her remarks at the 860th Board of Governors meeting in 1995. It is a critical point misunderstood by both Ford and Persbo, who stress only the scope of safeguards in Articles 1 and 2 of the CSA. Viewing the agreement holistically, however, it is clear that the CSA sets up a system and a mandate for applying safeguards, which entails only (1) the state's declaration of specified materials on its territory and (2) the IAEA's verification that the declared materials are exclusively in peaceful use.

With regard to the argument, implied by both Ford and Persbo, that the UNSC has somehow deputized the IAEA through its decisions, and thereby given it some measure of extra authority to apply investigative or assessment standards in Iran's case, this is also fundamentally incorrect. While it can make decisions legally binding on Iran, as a UN member state, the UNSC does not have the power to give the IAEA additional authority to act outside of what it possesses pursuant to the agency's statute and its safeguards agreements with states. There is no basis in international law for this argument that one international organization can enlarge the authority of another international organization by fiat.

Round 3

The dubious joy of misperceptions

Aristotle is sometimes credited with saying, "the law is reason, free from passion." If this is true, our Roundtable may not have been one of law. Some arguments seem to have been motivated by passion, and not by reason.

I understand one thing about Daniel Joyner's arguments: that he believes that both Christopher Ford and I should bend to his sense of logic. That I cannot do. His academic credentials do not make his line of reasoning any stronger, and his coherence leaves a lot to be desired. Indeed, Professor Joyner's arguments are full of misinterpretations, cherry-picking (an accusation he levels at others), or impenetrable obscurity. Worse, he seemingly attempts to get around salient points by throwing up bewildering arguments. The latest example is to accuse his fellow debaters of not analyzing the Comprehensive Safeguards Agreement (CSA) holistically against the entirety of the text. At this stage of the debate, this is nothing more than a rhetorical trick designed to seed confusion. The arguments brought forward by Ford and I are clear, and appear to be supported by two former IAEA deputy directors general and one former chair of the Standing Advisory Group on Safeguards Implementation.

If Daniel Joyner reflects on the CSA more carefully, he will see that it enables the agency to conduct "special inspections," which would give it exceptionally broad authority to go anywhere, see anything, and request access to whatever information it desires. Why would the agency need these powers if the agreement were limited to declared nuclear material? The answer should be evident, however, I strongly predict that Joyner might come up with an answer that fits his own world view. Lest we forget, the Greeks once imagined the heaven as a large dome of bronze onto which the constellations of stars were fixed. The explanation made sense to the Greeks. However, as we now know, it was erroneous.

I believe that the safeguards system, a fundamental pillar of the world's common security, is worthy of a more dignified and informed debate. I disagreed with some of Ford's statements, also. For instance, there is a legitimate debate on whether Article XII(c) in the agency's statute, which mostly deals with noncompliance in respect to IAEA projects, was properly applied in Iran's case — considering that Article 19 of the CSA, which is both more recent and more specific than the statute,  envisions a slightly different way to deal with non-compliance. In particular, before the agency submits a report to the Security Council, the Board of Governors must "afford the Government of Iran every reasonable opportunity to furnish the Board with any necessary reassurance" on the application of safeguards. This Roundtable could, for instance, have examined whether Iran was given every reasonable opportunity to resolve issues in 2006. We also could have debated the dynamic among the IAEA and the United Nations (both intergovernmental organizations with a relationship agreement) and Iran (a member state of both bodies). These discussions were lost in favor of a quarrel over a rather simple interpretative issue. Matters of common security deserve, indeed demand, more stringent contemplation than this.

The IAEA applies far more standards in Iran than we have had the chance to cover. From a legal perspective, they appear to have been applied correctly. Practically, as far as Iran is concerned, it does not matter that much. Iran is refusing to allow the IAEA to conclude that all material that should be declared has been declared. This is not the time, if ever there was one, to allow passion to flow freely into a legal debate.

Don’t erase the terms of the CSA

Daniel Joyner seems to be having as much trouble reading my earlier essays in this Roundtable as he does Iran's Comprehensive Safeguards Agreement (CSA). He somehow understands my interpretation of the agreement to mean that the IAEA has "unlimited authority to ensure that safeguards are applied on all fissionable material anywhere within the territory of Iran, by any means the agency considers necessary, no matter how intrusive … ." This assertion about my views suggests he never actually read my last essay, however, for in it I made quite the contrary claim.

As I explained, the fact that a CSA fails to provide sufficiently intrusive tools with which the IAEA can carry out its responsibilities is precisely the problem that the Additional Protocol was designed to help solve. As written, Article 2 makes the agency responsible for verifying the correctness and completeness of declarations, but the agreement, itself, fails to provide the agency with adequate investigative authority to do this job. The Additional Protocol was written to remedy this.

This isn't too complicated a point, and it's a shame to repeat it: Far from providing "unlimited" authority to poke around in Iran, the CSA doesn't provide nearly enoughinvestigative authority relative to the verification responsibility with which it saddles the IAEA.

In truth, even though the protocol improves things immensely, it still provides too little investigative authority to permit reliable verification in a country such as Iran, which has a dismal compliance track record and has engaged in systematic denial and deception. Even if Iran were to comply with the protocol as the Security Council has required, therefore, this would only partly solve the problem; this is why the council has commanded Iran to cooperate beyond the scope of what is specified in the protocol.

If Joyner were really interested in protecting the sovereignty of states with CSAs, he should consider what might happen if Article 2 existed today in the absence of the investigative tools that the protocol seeks to provide. A generation ago, the IAEA was willing to assume it could do its job simply by inspecting declared facilities. Having learned from the nuclear work secretly conducted by Iraq, Libya, and Iran in the 1980s and 1990s, however, it now knows that, by using only traditional investigative tools, it cannot verify that safeguards apply to "all" relevant materials and activities.

The agency's standard of proof for reporting to the Security Council is fairly low.  Under Iran's CSA, the agency may report Iran if it "finds that the Agency is not able to verify that there has been no diversion of nuclear material … to nuclear weapons or other nuclear explosive devices." The IAEA doesn't need to show that there has been a diversion, just that it's insufficiently clear that there hasn't.

Without the expanded tools of the protocol, therefore, the IAEA today might have to refer countries — more often than they deserve — to the Security Council, simply because the agency is unable to verify non-diversion. The Additional Protocol, therefore, protectscountries that follow the rules, because it permits the agency to satisfy its responsibilities in more cases without having to involve the council.

The agency is charged with applying safeguards to all nuclear materials in Iran "in accordance with the terms" of its CSA, and it is precisely those terms that make clear that this responsibility extends to "all" materials. The agency asks that the terms of Iran's agreement be honored, while Joyner asks that they be selectively erased.

Faced with those alternatives, I submit, lawyers must side with the IAEA.

Extending above and beyond

Christopher Ford and I agree on one thing: The IAEA's Comprehensive Safeguards Agreement (CSA) needs to be read clearly. We differ, however, in that I am reading the CSA both clearly and fully as the text is actually written, and not as Ford and Andreas Persbo — or perhaps the IAEA itself — might wish that the agreement had been written.

Ford and Persbo have cherry-picked phrases from Articles I and II of the agreement to support their arguments that the CSA provides the agency with the authority to investigate and assess whether there are undeclared fissile materials in Iran. However, they essentially disregard the entire rest of the treaty, which details the agreed processes for the agency's application of safeguards. 

It's as if Ford and Persbo want to convince readers that the CSA and the Additional Protocol are one and the same. Under the protocol, the IAEA's mandate and the agreed processes for carrying out investigations and assessments, do allow the IAEA, within limits, to investigate and assess the completeness, in addition to the correctness, of a state's declaration. However, the CSA and the protocol are not one and the same, and the protocol is not in force in Iran's case. Thus, the IAEA's mandate for investigation and assessment in Iran's case must be taken solely from the text of the CSA.

Article I of the CSA is Iran's basic undertaking, while Article II is the agency's mandate. Article II states that the agency has the "right and 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."

Chiding me for rendering an interpretation inconsistent with the text of Article II, Ford, when quoting the article, rather conveniently omitted the above-italicized clause entirely. But these words are not just superfluous, as his ellipsis implies — they are essential for a holistic understanding of what Article II means within the context of the CSA. This clauseexplicitly makes the IAEA's mandate in Article II subject to, and circumscribed by, the procedures agreed to in the CSA.

If Ford's interpretation were correct — and the IAEA's mandate were not limited by the agreed procedures in the rest of the CSA — it would mean that the agency would have unlimited authority to ensure that safeguards are applied on all fissionable material anywhere within the territory of Iran, by any means the agency considers necessary, no matter how intrusive or compromising of Iran's national security or sovereignty. The IAEA could require Iran to meet any evidentiary standard it unilaterally determined, in order to subjectively satisfy itself of the absence of undeclared materials in Iran (i.e., require Iran to prove the negative).

That is a completely untenable reading of the CSA. No state would ever agree to such a broad and unrestricted mandate for the IAEA. That's why Article II specifies that the agency's mandate is subject to, and limited by, the terms of the agreement. Those terms stipulate in detail the process to be followed for applying safeguards. That process essentially involves a declaration by Iran, and the IAEA's verification of the correctness of that declaration.

The agency, therefore, is simply incorrect when it claims that its mandate under the CSA extends to investigations and assessments beyond the agreement's terms — i.e., beyond verifying the correctness of Iran's declaration.



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