Jeffrey LewisIAEA Legal Adviser on Arak, Darkhovin

Greetings from Europe!

A little Euroblogging from the Thalys train — I am traveling from Den Haag to Paris.

My final destination is the South of France, where I am joining a tour of France’s decommissioned fissile material production facilities at Pierrelatte and Marcoule.

A colleague sent me this very interesting document — a Statement by the IAEA Legal Adviser on Iran’s failure to promptly provide design information on the reactors at Arak and Darkhovin, as well as permitting design information verification (DIV) at Arak.

Many of you know that I think the 40 MW heavy water reactor that Iran is building near Arak is, in many ways, a more troubling construction project than the Fuel Enrichment Plant at Natanz. The size and design are perfect for a bomb program, which is precisely why India, Israel, Pakistan and Taiwan built similar reactors

There are two interesting things about the document:

(1) The document opens the possibility that the Board may make a further finding that Iran’s refusal to grant the IAEA access to conduct “design information verification” (DIV) at Arak constitutes noncompliance with its safeguards agreement.

(2) The IAEA produced the document in response to a request by France, which has taken a very tough line with Iran and may want to increase the pressure on Tehran (or Washington).

Although the legal wording is very, very careful, the document makes the following argument about the lack of a DIV at Arak:

Iran’s actions are inconsistent with its safeguards obligations, and

The Board may report the issue to the Security Council if it finds that Iran’s refusal “rises to a level where the Agency cannot verify that there is no diversion” of safeguarded material.

The reactor remains under construction and is some years away from operation. As long as the IAEA DG continues to state that “it has has been able to continue to verify the non-diversion of declared nuclear material in Iran” despite the lack of access at Arak, nothing can be done politically. At least for now, I think it is a hard sell, politically, to state that the refusal to provide a DIV prevents the IAEA from verifying that there is no diversion of safeguarded material.

On the other hand, there is an argument that Iran’s refusal today will prevent the Agency from ever being able to verify non-diversion at Arak. For example, the document warns that lack of access “adversely impacts the Agency’s ability to ensure that no diversion pathways are built into the facility.” I don’t know what that magic point is, but I observe the groundwork exists in this document to argue that the lack of a DIV has hopelessly complicated verification efforts. Your collective thoughts on this argument are solicited, dear readers.

I have been told — but have not verified — that the document was requested by France. (So, you see, I am not just “place-dropping” by mentioning Paris — I will try to follow up on the document.)

There has been an on- and off-again debate about whether the Europeans really want the United States to drop suspension as a condition for negotiations. France has been pretty tough on the Iranians, leading me to wonder if this is a coincidence or part of a concerted effort by the Sarkozy government to turn the screws on the Iranians (or the incoming Obama Administration).

Comments

  1. jonjon

    Hello Jeffrey,

    I found a pretty worrisome sentence in this briefing. The Legal adviser said:
    “The term “non-compliance”, as used in the statute has, in respect of safeguards agreement, no defined meaning other than its generic meaning and does function as a trigger for any obligatory action by the board. The board’s response may vary to fit the circumstances.”
    On the other side, the famous art. XII.C of the IAEA statute firmly states that:
    “The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which it finds to have occurred. The Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations.”
    Nice example of political statement by a legal adviser, isn’t it?
    I just wonder what may be the consequences of such a statement on future problematic cases…

  2. Andreas Persbo

    Of interest here is the statement that the implementation of the provisions of the Subsidiary Arrangement cannot be amended or suspended without the agreement of both parties. This fits neatly with the amendment provision in paragraph 20 of INFCIRC/153 which, by the way, remains in force for as long as the state is a party to the NPT. Basically, amendments require the agreement of both parties.

    The Vienna Convention on the Law of Treaties doesn’t apply on state-IGO contracts, unless the provisions form part of customary law. However, the conditions under which agreements can be terminated or suspended are generally considered to be part of custom. So, basically, the only way for Iran to wiggle out of the Code, if it’s a legally binding document, would be to claim the IAEA has breached its obligations under the safeguards agreement in some way, or to say that there has been a so-called ‘supervening impossibility of performance’ (this is the permanent disappearance or destruction of an object indispensable for the execution of the agreement). Neither ground has been invoked.

    My point is this. IF the Code forms part of the CSA (meaning that it’s binding) AND the Agency has not agreed to its suspension THEN non-fulfilment of the requirements to provide design information should interpreted as non-compliance. Johan’s argument in paragraph 4 of his statement is not immediately clear, at least not to me.

    Finally, in response to jonjon, INFCIRC/153 is both lex specialis and was agreed at a later date than the Statue, which means that it has precedence over the Statute. Johan is just applying common legal techniques; his statement is not political at all.

  3. scud

    I am no legal expert, but I’m baffled by the recurring use of the expression “inconsistent with”. This screams “it’s really non compliance but, er, we really don’t want to use such a politically loaded expression”. I smell a rat.

  4. MWG

    It is clear from paragraph 39 of INFCIRC/153 that changes to the Subsidiary Arrangements require agreement of both the State and the IAEA: “Provision should be made for the possibility of an extension or change of the Subsidiary Arrangements by agreement between the Agency and the State without amendment of the Agreement.”

    I am also troubled by the sentence that troubles jonjon. There are two ways to read this. One would be based on the argument that the provisions of the IAEA Statute are not self-executing and are binding on states to the extent that they are incorporated into agreements with those states. According to this argument, Article XII.C is binding on a state that has a safeguards agreement with the IAEA only through paragraph 19 of INFCIRC/153. The two are not identical. Paragraph 19 says that the Board “may” take the actions in Article XII.C if it finds that the Agency cannot verify that nuclear material has not been diverted. Article XII.C says that the Board “shall” report non-compliance to the Security Council.

    This would be a change in position by the IAEA Secretariat. In particular, the Safeguards Glossary section 2.2 simply quotes the Statute: “In the event of non-compliance, pursuant to Article XII.C of [the Statute], the IAEA Director General shall report to the IAEA Board of Governors, which would call upon the recipient State or States to remedy forthwith any non-compliance which it finds to have occurred, and would inform all members and the Security Council and General Assembly of the United Nations.”

    The argument is also dubious in this case because Article XII.C of the Statute does not define the obligations on a state with a safeguards agreement. It defines obligations of IAEA inspectors, the Director General, and the Board of Governors. The Statute is binding on all of them.

    A more defensible interpretation of the Legal Adviser’s statement is simply that the Statute does not define a threshold for what defines non-compliance. Some failures to meet the requirements of a safeguards agreement fall below the threshold of when the Security Council should be informed. For example, sloppy record-keeping or delayed reporting by the state has not been considered non-compliance. The Statute itself offers no direct guidance on where the threshold should be set. While the Board has not defined that threshold, it has established several precedents in deciding that South Korea (2004) and Egypt (2005) fell below that threshold while Libya (2004) and Iran (2005) rose above it.

    I am inclined to be charitable and interpret the Legal Adviser’s opinion to have the second meaning.

    The tacit acknowledgment of a threshold test would also explain what seem like weasel words “inconsistent with.” If the Board has the discretion to define “noncompliance,” the Secretariat should use a different term. However, this does seem inconsistent with the requirement that inspectors and the Director General report “non-compliance.” Previous Director General Blix reported Iraq, North Korea and Romania for non-compliance, while the current DG has avoided that term.

  5. kme

    If the lack of DIV will make future non-diversion impossible to verify, then this has major negative implications for both a FMCT and nuclear disarmament.

    You’ve already pointed out four countries that built similar reactors without DIV, and that’s just the tip of the iceberg. If non-diversion can’t ever be verified for those reactors, then a verifiable FMCT seems to be completely out of reach.

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