The IAEA Applies Incorrect Standards, Exceeding its Legal Mandate and Acting Ultra Vires Regarding Iran

The other day I was reading over the most recent IAEA Director General’s (DG’s) report to the IAEA Board of Governors (BOG) on implementation of safeguards in Iran. The report was submitted on 8/30/12 (GOV/2012/37). I had on my mind some comments and queries that Cyrus Safdari had kindly sent to me. The DG’s report includes the following paragraph in its summary section, which is very similar in language to the summary statements that have been included in other DG reports on Iran over the past approximately six years – though the relevant language has evolved significantly over that time and become more consolidated and conclusory:

 "While the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs 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."

So here the DG begins by saying that the IAEA can verify that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use. This mandate for investigation by the IAEA, and the standard of assessment for this investigation, come directly from Iran’s INFCIRC/153 comprehensive safeguards agreement (CSA), in Article II, 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.

But the DG’s report doesn’t stop there. It continues on to then apply two separate and additional legal standards and make two additional assessments based upon them. These separate and additional legal standards are:

1)      “the absence of undeclared nuclear material and activities in Iran”; and

2)      “that all nuclear material in Iran is in peaceful activities.”

So that got me to thinking, where do these other two legal standards come from? It is an important question, because essentially these two standards, together with the first clearly applicable standard, are the legal standards that the IAEA has been using as its scope of mandate for investigation and assessment regarding Iran’s compliance with its safeguards agreements for at least the last six years or so. 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 is safeguards agreements, which fact it has reported to the U.N. Security Council and to the world.  This assessment by the IAEA has in turn shaped 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. So it’s important to know whether these legal standards are correct, in order to know whether the investigations and assessments based on them are legally correct.

I think there are two sources from which the IAEA would say these two additional legal standards, and the IAEA’s mandate to apply them, derive. However, as I will show herein I think that in both instances this argument is incorrect. And as a result of this analysis, I will argue that these two additional legal standards are ultra vires the IAEA’s authority to apply to Iran, and to be the basis for investigations and assessments by the IAEA.  I conclude that the only lawful standard for the IAEA to apply is the first of the three standards:  “that all declared, safeguarded nuclear material in Iran has not been diverted to non-peaceful use.” And that pursuant to that sole lawful standard, Iran is in full legal compliance with its safeguards agreements with the IAEA, as the DG once again confirmed in his 8/30/12 report.

A. UNSCR 1737

The first place that I’m confident the IAEA’s Office of Legal Affairs (OLA) would point to as the source of authority for these standards is U.N. Security Council Resolution 1737, adopted in 2006.

To paraphrase, in Resolution 1737 the UNSC commanded Iran to take the steps that the IAEA thought necessary to restore confidence in the peaceful nature of Iran’s nuclear program, that were expressed by the IAEA BOG in its decision recorded in GOV/2006/14.  These steps included ratifying and applying the IAEA Additional Protocol (AP). The UNSC also commanded Iran in Resolution 1737 to cooperate in all respects with the IAEA.

One possible interpretation of these provisions in UNSCR 1737, therefore, is that the UNSC was here commanding Iran to ratify and implement the AP, and to cooperate with everything else the IAEA says it must do. And the OLA argument would, I assume, be that if the AP was indeed binding on Iran, because of UNSCR 1737, then the two additional legal standards would in fact be part of the authorized mandate for the IAEA to use for investigation and assessment purposes.

But there are several problems with this argument.

The UNSC in paragraph 8 of Resolution 1737 “calls on” Iran to ratify the AP. The term “calls on” in UNSC Resolutions is widely considered by international lawyers to indicate invitational, as opposed to mandatory language. Why would the UNSC invite Iran to ratify the AP in paragraph 8, if they had already commanded them to ratify and implement it in paragraph 1? I think therefore that the best reading of Resolution 1737, is that the UNSC is not here directly commanding Iran to ratify and implement the AP. I also think, by the way, that the UNSC doesn’t have the authority to do that even if it wanted to, as I explain in this recent article in the Georgetown Journal of International Law, entitled “The Security Council as a Legal Hegemon. ” However, this latter point is not necessary to argue here.

However, even if arguendo Resolution 1737 should in fact be interpreted to impose on Iran a legal obligation to ratify and implement the AP, and otherwise cooperate with the IAEA, then to the extent that Iran has not done these things – and to the extent that Resolution 1737 itself is lawful – Iran may well be in breach of these obligations of international law produced by this UNSC resolution. Iran certainly is in breach of the resolution in other ways, e.g. by not stopping uranium enrichment as the UNSC commands in paragraph 2. So there’s no real question that Iran is indeed in breach of Resolution 1737.

However, none of these decisions of the UNSC in Resolution 1737 give the IAEA any more investigative or assessment authority than it already had to apply legal standards in determining whether Iran is in compliance with its safeguards agreements. The UNSC did not impose the obligations of the AP on Iran through Resolution 1737. The most the UNSC even arguably did is to create an obligation on Iran to ratify and implement the AP. Iran may therefore be subject to this obligation to ratify and implement the AP, but that doesn’t make them subject to the actual substantive obligations of the AP itself. This is a fine legal point but an important one.

It must be remembered that the IAEA is not a general policeman of international law, or even of international nuclear energy law. And the UNSC in Resolution 1737 doesn’t attempt to make it such. Nor, again, I would argue, could the UNSC do that even if it wanted to. The IAEA as an international organization has only the international legal personality, and the mandate of authority, that it is given in its statute by its state creators, and that it receives through its bilateral safeguards treaty relationships with states.

It’s true that the UNSC in 1737 also asked the IAEA DG to give a report to the IAEA BOG on whether Iran was complying with all of these commands. However, that report is not the same as a report on safeguards agreement compliance. It’s just the DG choosing to comply with the UNSC’s request for him to give a report to the BOG on whether Iran has complied with the UNSC’s commands. This has nothing to do with the IAEA’s authority to investigate and apply legal standards to the question of Iran’s implementation of its safeguards agreements.

So at the end of the day, Resolution 1737 doesn’t enhance the IAEA’s authority to investigate Iran or to apply legal standards to determine Iran’s safeguards agreement compliance.  Even after UNSCR 1737, the IAEA still only has the investigative and assessment authority given to it through its safeguards agreements in force with Iran.

The current status of Iran’s AP agreement with the IAEA is that Iran has signed but has not ratified the AP, and thus it has not come into effect. And in fact the Majlis has made it quite clear that they will not ratify the AP under current conditions. These two facts together remove any AP legal obligations from Iran, pursuant to Vienna Convention on the Law of Treaties Article 18(a).

So at the moment, the only safeguards agreement in force between Iran and the IAEA is Iran’s INFCIRC/153 CSA. Therefore, any further mandate for investigation by the IAEA, and related legal standards for assessment, would have to come from the provisions of Iran’s CSA.

B. Iran’s CSA

The second source that the IAEA OLA would, I think, argue that these two additional legal standards, and their mandate to apply them, come from, is in fact Iran’s CSA itself.

As I was looking through DG reports to the BOG on Iran’s safeguards agreement implementation, I noticed a recurring footnote to the summary section that first appeared (as far as I can tell) in the May 31, 2010 DG report (GOV/2010/28). The footnote appears as footnote 49 in the 8/30/2012 DG’s report, and reads:

"The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the nondiversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness) (see, for example, GOV/OR.864, para. 49)."

Interesting. Well, let’s go back and look at Article 2 of Iran’s CSA:

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.

So there clearly is a grant of investigative and assessment mandate to the IAEA agreed to by the parties in Article II.  And the standard of assessment of this mandate can be more fully understood by further referring to Article 19 of the CSA:

" If the Board, upon examination of relevant information reported to it by the Director General, finds that the Agency is not able to verify that there has been no diversion of nuclear material required to be safeguarded under this Agreement, to nuclear weapons or other nuclear explosive devices, it may make the reports provided for in paragraph C of Article XII of the Statute of the Agency (hereinafter referred to as “the Statute”) and may also take, where applicable, the other measures provided for in that paragraph."

So we know from the summary paragraph of the 8/30/2012 DG’s report to the BOG, that the DG at least thinks that the BOG has confirmed an interpretation of Iran’s CSA Article II, whereunder the IAEA is mandated to investigate and assess not only the non-diversion of declared, safeguarded nuclear material within Iran, but also the “absence of undeclared nuclear activities in the state.”

I’m confident that this would then be the second legal source from which the OLA would say that these two additional legal standards derive. I think the argument would be that Article II authorizes the IAEA to investigate and assess “the absence of undeclared nuclear material and activities in Iran,” and that the assessment based upon this standard, added to the assessment based on the declared and safeguarded material standard, would allow the IAEA to authoritatively assess whether “all nuclear material in Iran is in peaceful activities.”  Although I would point out that this final standard doesn’t actually appear textually in either the CSA or the AP.

However, looking at this matter objectively, I can think of several problems with the DG’s expressed understanding here.

First, the only documentary evidence provided in support of this understanding of the DG is cited as GOV/OR.864, para. 49. And the footnote says that this document evidences the fact that the BOG has “confirmed” this interpretation. Notice from the citation format, that this document is a record of the oral statements made at a BOG meeting, specifically the BOG meeting that was held on Thursday, 30 March 1995, at 10.30 a.m. So let’s take a look at it. Here is paragraph 49 from that document reproduced in full:

 'The CHAIRMAN said that, in reflecting on a summing-up which would command full acceptance in the Board, he had had the benefit of advice and inputs – often difficult to reconcile – from many representatives of Member States. It had not been possible to articulate all the views of every country in the summing-up, but he hoped that the text which he now proposed to read out, while not taking into account all the aspects of the discussion, would be seen to reflect the broad majority view in the Board: “The Board commends the Secretariat for the quality of document GOV/2784 and the work done in developing proposals for a strengthened and cost-effective safeguards system, together with the accompanying evaluation of their technical, legal and financial implications, otherwise known as ‘Programme 93+2′.”The Board reiterates that the purpose of comprehensive safeguards agreements, where safeguards are applied to all nuclear material in all nuclear activities within the territory of a State party to such an agreement, under its jurisdiction or carried out under its control anywhere, is to verify that such material is not diverted to nuclear weapons or other nuclear explosive devices. To this end, the safeguards system for implementing comprehensive safeguards agreements should be designed to provide for verification by the Agency of the correctness and completeness of States’ declarations, so that there is credible assurance of the non-diversion of nuclear material from declared activities and of the absence of undeclared nuclear activities.” It was recognized that under comprehensive safeguards agreements the States parties and the Agency have an obligation to co-operate fully in achieving effective implementation of the agreements. “While recognizing that a strengthened safeguards system will benefit from technological developments and call for greater access to relevant information and greater physical access to relevant sites for the Agency, either on the basis of existing authority provided for in comprehensive safeguards agreements or on the basis of complementary authority to be conferred by the States involved, while noting that some Governors have reservations at this stage about the need for greater access to sites and while not at this stage taking a decision on any of the specific measures proposed in document GOV/2784 or on their legal basis, which were not fully discussed at the present session, the Board endorses the general direction of Programme 93+2.”The Board takes note of document GOV/2784 and requests that the Secretariat, taking into account the comments made during our discussions and any comments which may still be received from interested Member States, submit for the Board’s consideration in June specific proposals for a strengthened and cost-effective safeguards system. Naturally, the technical, legal and financial implications of these proposals should also be covered. It is understood that the Secretariat will take into account the principles set out in paragraph 4 of document INFCIRC/153.” '

This paragraph cited by the DG as evidence that the BOG has confirmed the stated interpretation in footnote 49 ABSOLUTELY DOES NOT provide evidence for this assertion. Note that all that is happening at this point in the meeting is the Chairman is reading out a statement that he has written, giving his own views. The transcript notes that the Chairman “hoped that the text which he now proposed to read out, while not taking into account all the aspects of the discussion, would be seen to reflect the broad majority view in the Board.” He then reads the statement. The only question presented to the BOG for their vote at this point is the statement “the Board endorses the general direction of Programme 93+2” and then some procedural statements. But no such vote is ever actually taken. And you find out why if you keep reading the document. Here are some excerpts from the rest of the meeting, including the next several paragraphs quoted in their entirety:

" 50. Copies of the summing-up were being circulated to all present.

51. Mr. ARCILLA (Philippines) said that the summing-up just read out by the Chairman seemed to be nothing but a proposed decision of the entire Board that was apparently acceptable to certain delegations which the Chairman had deemed fit to consult initially.

52. How could the Board even begin to talk about making comprehensive safeguards more efficient, transparent and cost-effective when its own working procedure could not be regarded as such? . . . . .

56. On the question of transparency, it was perhaps the Chairman’s privilege to select the delegations with which he was going to consult. The Philippines delegation had no idea as to the criteria applied in the selection, but the Board should not lose sight of the fact that it consisted of 35 members with varying views and that its decisions were taken by all its members. He believed that planned consultations should be announced in advance and that all Board members should be invited to participate.

57. The Philippines delegation had apparently failed to impress upon the Board the seriousness of its position on safeguards. As the points which it had made had not been reflected in the summing-up and as his delegation had not had the privilege of explaining them in the consultations, he would now make them again for the consideration of the entire Board. . . . .

59. Ms. MACHADO QUINTELLA (Brazil) said that, as she had stated on previous occasions, her country was strongly committed to the cause of non-proliferation and supported the strengthening of the safeguards system in the sense both of making it more cost-effective and efficient and of enhancing the Agency’s ability to detect non-declared nuclear material and activities. How those goals should be achieved, however, was something still to be determined, and her delegation was looking forward to a thorough, open discussion on Programme 93+2 in June. . . . . .

61. Thanking the Chairman for having noted in his summing-up the reservations at the present stage of some Governors about the need for greater access to sites, she said that her delegation was among those which did not want to prejudge the contents of the strengthened safeguards system.

62. She appreciated the clarification given by the Director General in his introductory statement to the effect that acceptance of the recommendations made in document GOV/2784 would not imply endorsement of any of the specific measures described in that document or of the legal interpretations advanced by the Secretariat. See para. 31 of GOV/OR.858.

63. Mr. CHEN (China) said that his delegation had two difficulties with the Chairman’s summing-up. Firstly, the phrase “the Board endorses the general direction of Programme 93+2″ was rather vague and perhaps redundant. In fact, several delegations had made important comments regarding the general direction of the future strengthened and more cost-effective safeguards system, and the phrase did not do justice to those comments.

64. Secondly, the final sentence of the summing-up (“It is understood that the Secretariat will take into account the principles set out in paragraph 4 of document INFCIRC/153.”) seemed to be an attempt to reflect views which had been put forward by his delegation and some other delegations. If it was such an attempt, it had not succeeded. Rather than talking of the principles set out in paragraph 4 of document INFCIRC/153 being taken into account by the Secretariat, one ought to say clearly that the strengthened safeguards system should be implemented in a manner designed to avoid hampering the economic and technological development of States, undue interference in States’ peaceful nuclear activities, the promotional activities of the Agency and international co-operation in the peaceful utilization of nuclear energy. . . . .

73. The CHAIRMAN invited the Director General to explain his understanding of the phrase “the Board endorses the general direction of Programme 93+2″.

74. The DIRECTOR GENERAL said that, in his view, the phrase was not unnecessary and by endorsing the general direction of Programme 93+2 the Board would not be approving specific measures.

75. With regard to the last sentence of the summing-up, he did not think it was necessary to spell out the whole of paragraph 4 of document INFCIRC/153; the sentence could be amended to read something like: “A strengthened safeguards system will respect the principles set out in paragraph 4 of document INFCIRC/153″.

The meeting rose at 1.5 p.m."

Doesn’t that make for some great reading? Note again that there is never a vote by the BOG on the Chairman’s statement. The statement is his own alone and is never endorsed by the BOG.  Quite the contrary, most of the comments made after the Chairman read the statement are critical of the statement and of the process the Chairman had followed in producing it. There’s also the wonderful language in paragraph 62 in which the Representative of Brazil says “She appreciated the clarification given by the Director General in his introductory statement to the effect that acceptance of the recommendations made in document GOV/2784 would not imply endorsement of any of the specific measures described in that document or of the legal interpretations advanced by the Secretariat.”  So here we see that the DG himself had told the BOG that even if they did vote to endorse the document under discussion, this endorsement would not imply an endorsement of the DG’s legal interpretations, which were probably the legal interpretations being parroted by the BOG Chairman.

So to summarize, the statement in footnote 49 of the DG’s 8/30/2012 report to the BOG, in which the DG states that “The Board has confirmed on numerous occasions, since as early as 1992, that paragraph 2 of INFCIRC/153 (Corr.), which corresponds to Article 2 of Iran’s Safeguards Agreement, authorizes and requires the Agency to seek to verify both the nondiversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)” IS UTTERLY FALSE. The BOG confirms nothing in this cited document, and certainly does not confirm this legal interpretation being asserted by the DG.

Before moving on, this in itself is kind of a big deal, isn’t it? I mean, if you read the document the DG cites to in his report, it’s transparently clear that the DG’s description of what the document says is just plain false. What’s up with that? Was this just negligence on the part of the IAEA OLA? Did they really think that this document showed the BOG confirming this interpretation? How is that possible? Read the document for yourself. There’s no way any competent lawyer, or just intelligent lay person, in my opinion, could think that this is in fact what happened during the transcribed meeting.  Or alternatively, and I have to say that this is a more persuasive explanation to me, was this a little bit more than just negligence – maybe a little slight of hand by the OLA lawyers?  An intentional attempt to add some apparent legal legitimacy to the DG’s analysis and conclusions by inserting a reference to an obscure IAEA document that they knew didn’t really provide such legitimacy, but hoped that no other independent lawyers would actually take the trouble to look up and call them out on their intentionally erroneous interpretation? For an agency that climbs all over states for making false statements in reports, this seems more than a little ironic to me.

But back to the analysis.  Even if, counterfactually, the BOG had formally decided that it deemed CSA Article 2 to mean what the DG asserts, it’s worthwhile to note that this would not have been the end of the inquiry into what the provision actually does legally mean. Remember, a CSA is a bilateral treaty signed between the IAEA and a state – here Iran. One party to the treaty doesn’t simply get to decide what the treaty’s provisions mean. Of course, the parties together can decide what the treaty means. So the first place to look for guidance on interpretation of a treaty, is in the treaty itself. And there is in fact a section of Iran’s CSA entitled “Interpretation and Application of the Agreement and Settlement of Disputes.” The provisions in this section certainly don’t give any special right of interpretation to the IAEA BOG. In fact, in article 22 the treaty provides that:

" Any dispute arising out of the interpretation or application of this Agreement, except a dispute with regard to a finding by the Board under Article 19 or an action taken by the Board pursuant to such a finding, which is not settled by negotiation or another procedure agreed to by the Government of Iran and the Agency shall, at the request of either, be submitted to an arbitral tribunal . . ."

So again, even if the BOG had formally approved the Chairman’s statement of interpretation, this would have had a negligible effect on the actual, correct legal interpretation of Iran’s CSA, Article II.

But let’s stay on this question of the DG’s legal interpretation of Article II, that the OLA would likely argue forms the basis of authority for the additional standards of review employed by the DG in his 8/30/2012 report to the BOG.  Is this the correct interpretation of Article II?

Well, if this substantive question of legal interpretation were ever to be brought by Iran and the IAEA to a duly appointed arbitral panel for dispute resolution, how would the arbitral panel approach the question of interpretation? They would apply the rules on treaty interpretation contained in the Vienna Convention on the Law of Treaties (VCLT) Articles 31 & 32.

Now, if I was writing a book or doing this analysis for a client, I’d go through the whole analysis step by step. But this is a blog post, and it’s already alot longer than it should be. So I’m going to be a bit cursory in this analysis.

So, does Iran’s CSA Article II authorize and require the IAEA to seek to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities in the State (i.e. completeness)? And do either Article I or Article II of Iran’s CSA authorize the IAEA to assess whether all nuclear material in Iran is in peaceful activities?  Well, here are the articles in their entirety:

" Article I

The Government of Iran 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.

"Article II

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."

The first and primary step in a VCLT treaty interpretation is to discern the ordinary meaning of the words in their context within the treaty, and in the light of the treaty’s overall object and purpose.

In Article II the IAEA only has the right and obligation to ensure that safeguards are applied “in accordance with the terms of this agreement.” And if you look at the terms of the rest of the agreement, which also of course form the context for Article II, there is clearly a process stipulated whereby that is to be done. And here I’m going to crib from my 2009 book, pgs. 20-21 (footnotes excluded), where I summarize that process:

" The basic system established by INFCIRC/153 is one in which states have an obligation to keep detailed records “on all source or special fissionable material in all peaceful nuclear activities,” and to provide the IAEA with design information on facilities in which such materials are kept, as well as well as access to such facilities for IAEA inspectors.

"The IAEA’s role is essentially one of verification of the details on the location and handling of nuclear materials provided to the Agency through national reporting.  In order to fulfill this role, the IAEA is to engage in routine inspections of declared facilities, including sampling of the environment within and outside of such facilities.  However, the INFCIRC/153 system was constructed to impose the minimum burden necessary upon NNWS, and to be applied in a manner designed “to avoid hampering” technological development, “to avoid undue interference” in civilian nuclear energy, and “to reduce to a minimum the possible inconvenience and disturbance to the State.”  Thus, as one result, IAEA inspectors are not granted rights of access to all parts of safeguarded facilities, but only to agreed “strategic points” within facilities."

I think that the INFCIRC/153 CSA agreement is quite clear in Article II, which references the rest of the agreement, that it exclusively authorizes the IAEA to investigate the question of whether declared, safeguarded fissile materials have been diverted to non-peaceful uses within the state treaty party.  I think that by the plain meaning of its terms, Article II does not authorize the IAEA to investigate either the question of whether there are undeclared nuclear activities within the state party, or the question of whether all nuclear material in the state is in peaceful activities. There’s just no textual support for either of these assertions of interpretation, and in my view the plain meaning of the terms, referencing as they do the rest of the agreement and the process detailed therein, is very clear that the IAEA has only a limited mandate pursuant to Articles I & II, and that is to investigate the question of whether declared, safeguarded fissile materials have been diverted to non-peaceful uses within the state treaty party, and to make an assessment exclusively according to that legal standard.

Article 31 of the VCLT does give a number of other sources of evidence to evaluate in interpreting a treaty provision, in addition to the context of the provision which I’ve already considered.  Article 31(3) provides that these sources include:

" (a) any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

"(b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation"

I think that the subsequent practice of application of INFCIRC/153 agreements by states and by the IAEA after its adoption in 1972, IAEA decisions regarding safeguards agreements, and the creation and implementation of the Additional Protocol in 1997, all evidence that my interpretation of the limited mandate given the IAEA in CSA Article II is correct.

Again cribbing from my 2009 book (footnotes excluded):

" The Additional Protocol has been characterized as “an effort to transform IAEA inspectors from accountants to detectives.”  It attempts to do this by supplementing the INFCIRC/153 safeguards system in two primary areas.  First, the Additional Protocol requires states to produce a more expanded declaration regarding nuclear fuel cycle activity being carried out within its territory than that required by the INFCIRC/153 system.  This expanded declaration is to include details on nuclear materials and the facilities involved in producing, processing and utilizing them, as required under INFCIRC/153, but in addition must also include information on all nuclear fuel-cycle related research and development activities that do not themselves involve nuclear materials, but which may be used in the production of nuclear materials, including activities being carried out in privately owned facilities.  This expansion of information required from the states significantly widens the Agency’s understanding of the full range of nuclear related activities being carried on within a state. This more complete understanding allows the IAEA to better assess the purpose and direction of nuclear programs within NNWS.

"Second, the Additional Protocol provides for the IAEA to have “complementary access” to that it enjoys under the INFCIRC/153 system.  INFCIRC/540 gives the IAEA the right of access “on a selective basis in order to assure the absence of undeclared nuclear material” to “any place” on the site of a declared facility, and not only to agreed strategic points, as under the INFCIRC/153 system. It further provides for IAEA access to all sites on which information has been provided by the state regarding research and development activities on nuclear fuel cycle related technologies, in order “to resolve a question relating to the correctness and completeness of the information provided.”

"Additionally, INFCIRC/540 provides for IAEA access to “any location specified by the Agency” in order to carry out “location-specific environmental monitoring.”  This provision enables IAEA inspectors to nominate undeclared locations at which they would like to take soil, water and air samples in order to detect the presence of fissile materials, and thus potentially produce evidence of undeclared nuclear activities.

"The notice requirements for the carrying out of inspections under the Additional Protocol are significantly shortened from their length under the INFCIRC/153 system, and are typically set at 24 hours, down from the normal one week notice period under INFCIRC/153.  The Additional Protocol further requires the state to grant multi-entry visas to inspectors.  Under the INFCIRC/153 system, this was not a requirement, and the necessity in many states of inspectors obtaining entry visas, often a months long process, served to give the state even earlier warning of impending inspections.

"These supplements to the information gathering ability of the IAEA, as well as its ability to conduct inspections in a more efficient and effective manner, are significant improvements to the Agency’s ability to verify not only the correctness, but also the completeness of state declarations.  They allow for increased confidence in the determinations of the IAEA that no undeclared nuclear-related activity is being carried out in a safeguarded territory."

So here’s my question. Why would the AP, which was specifically designed to increase the mandate of the IAEA to move from accountant to investigator, from just looking at declared stuff to actually trying to find out if there was undeclared stuff, and thus to determine whether all nuclear material is in peaceful activities – why would that have been necessary if the DG’s interpretation in footnote 49 were correct, and Article II of the CSA already gave the DG that authority? If the DG’s expanded interpretation of the CSA were correct, there would have been no need for an AP, would there? The fact that the IAEA and its member states recognized that the CSA was limited in the mandate it gave to the IAEA, and acted on that understanding to create and implement the AP to expand that mandate, in my opinion argues strongly for the limited interpretation of CSA Article II’s meaning that I advance here.

Conclusion

So let’s return to the summary from the 8/30/2012 report that started this analysis. What I have argued in this post is that two of the three legal standards that the DG states in this summary as being part of the IAEA’s mandate for investigation and assessment of Iran’s implementation of its safeguards agreements, are in fact not part of the lawful mandate of the IAEA. Specifically, these two standards are:

1)      “the absence of undeclared nuclear material and activities in Iran”; and

2)      “that all nuclear material in Iran is in peaceful activities.”

It doesn’t matter whether these additional standards in the summary relate to things that, if true, could very well be breaches of international law, including the NPT. The IAEA is not some general FBI-like investigator of all alleged breached of international nuclear energy law. The IAEA is an international organization that was created by states to have a limited monitoring and verification mandate. This mandate is given to it by states parties in its Statute, as well as in its bilateral safeguards agreements. This mandate cannot be aggrandized or enlarged by unilateral fiat of the DG or the BOG, or the U.N. Security Council for that matter. Any increase to the IAEA’s investigative and assessment mandate with regard to any state, would need to be agreed to by that state, which Iran certainly hasn’t done in this case.

In fact, in a 2006 DG report (GOV/2006/27), Mohamed Elbaradei essentially admitted that the BOG had acted outside of its legal mandate based in its Statute and safeguards agreements, in its imposition of requirements of cooperation on Iran.  He stated in his report that:

" In [BOG Resolution (GOV/2006/14)], the Board deemed it necessary for Iran to . . .

implement transparency measures, as requested by the Director General, including in GOV/2005/67, which extend beyond the formal requirements of the Safeguards Agreement and Additional Protocol, and include such access to individuals, documentation relating to procurement, dual use equipment, certain military-owned workshops and research and development as the Agency may request in support of its ongoing investigations (Bold type added)"

These ultra vires legal standards of investigation and assessment have been the basis for the IAEA’s decisions regarding Iran since at least 2006, and have been the apparent underpinning authority for, inter alia, the IAEA’s inquiries into “possible military dimensions” of Iran’s nuclear program.  I wrote about this specific issue previously here, and pointed out how this subject of investigation and assessment is ultra vires the IAEA’s authority. The present analysis, however, goes even deeper to show that the core legal standards that the IAEA has used in its official reports as the basis for its scope of investigations and assessment on any issues outside of the question of non-diversion of declared, safeguarded nuclear material in Iran have been unlawful. And that in applying these unlawful legal standards in its investigations and assessments, the IAEA has, since at least 2006, been acting ultra vires its authority. In short, it has been acting illegally.

Pursuant to the only lawful standard for investigation and assessment by the IAEA, Iran is in full legal compliance with its safeguards agreements, as the DG confirmed once again in his 8/30/2012 report.

Again, this is an important subject because the IAEA’s assessment of Iran’s compliance with its safeguards agreements forms a vital element of the diplomatic and security dialogue surrounding Iran. In this context, is extremely important that the IAEA does its job correctly and lawfully, and does not try to overreach its authority in order to be helpful to certain influential states, and thus politicize its important work.