The subsidiary arrangements are detailed rules that give effect to an already legally binding instrument. It makes no sense to argue that they are not binding upon the state itself, since removing them makes the comprehensive safeguards agreement itself virtually meaningless. Breaching them makes it impossible for the IAEA to implement safeguards on the territory of the state in question. Breaching them is, in other words, tantamount to breaching safeguards.

I am always suspicious of legal arguments that do not employ the sources defined in the ICJ statute and the methods defined in the VCLT. I am very suspicious of arguments that disregard Occam’s razor. Perhaps that’s just a byproduct of having worked cases for several years, but I doubt it.

The simple interpretation that one can make is that subsidiary arrangements form part of the CSA. And they give meat to the bone. After all, this is very clear in the CSA itself.

Involved interpretations that come to an opposite conclusion are, in my mind, exceptionally unconvincing, and would need to be backed up through an analysis of the preparatory works. I have seen nothing in the arguments presented so far that indicates that anyone has done this, except, of course, the IAEA itself.

This is not domestic law we’re talking about. This is international law. There are different rules of interpretation than in the domestic scene, and there is no burden of proof. The IAEA secretariat is no “party” like a party in a simple divorce case.

It is an organization staffed by international civil servants that serves ALL its member states (including Iran). It’s tasked to provide impartial services to its members. And it does this, in my own humble opinion, very well.

What the IAEA says in terms of interpretation carries a LOT more weight than a IAEA member state’s opinion. Especially the opinion of Iran, which now acts and presents its arguments as a party to a legal conflict. That is why anyone who would want to analyze this objectively attaches more weight to what the secretariat says; and less (but by no means no) weight to what the US or the UK says, and definitely to what Iran says (which seems to have an interest in curtailing IAEA rights on its territory).

Having read through this thread, I sense that we’ve exhausted the discussion, so I will close it after these final words.

I think one thing has come out of this. It would be useful for the IAEA to publish more information on what the subsidiary arrangements say and do not say. Not necessarily what it says about Iran, but in general. This can only benefit the debate, and will not cause any harm to the IAEA membership.

Thanks to everyone for contributing. It’s been a heated, but fun, debate.

This leads to an interesting situation wrt to the UN Charter Article 102, which says:

No party to any … international agreement which has not been registered … may invoke that treaty or agreement before any organ of the United Nations.

This seems to imply that the IAEA cannot invoke subsidiary arrangement issues to the UNSC, which is an “organ of the United Nations”.

Nevertheless BAN Ki-moon does invoke the Iranian subsidiary arrangement [para (g)], and revised Code 3.1 issue [para (h)], in his 7 December 2009 letter to the President of the Security Council.

The subsidiary arrangement Code 3.1 issue is also invoked in UNSC Resolution 1803.

Any lawyer care to comment is this is a valid issue for the IAEA?

Politicizing the IAEA against Iran

On February 18, 2010 the International Atomic Energy Agency (IAEA) issued its latest report on Iran’s nuclear program. The tone of the latest report, as well as its speculations and unfounded allegations, are in sharp contrast with those in the past issued under the former IAEA Director General Mohamed ElBaradei. The new Director General, Yukiya Amano, has set aside ElBaradei’s cautious approach and measured tone and uses blunt language. But, while the blunt language is not a problem, the fact is that, as the latest report indicates, the IAEA is being transformed from an objective international organization to a politicized one to be used by the United States and its allies to advance their agenda regarding Iran’s uranium enrichment program.

To see the politicized nature of the latest IAEA report on Iran, all one should do is compare it with the last report issued by the Agency right before ElBaradei stepped down in November 2009. The first difference is that, whereas the reports issued by the ElBaradei-led IAEA always tried to stay away from the Resolutions issued by the United Nations Security Council, the new report brings the subject into the report very prominently. Another important difference is that, unlike the ElBaradei-led IAEA, the new report resorts to making unreasonable, and sometimes totally illegal, demands. After reporting in the first 4 pages of the report on the uranium enrichment facility at Natanz and the one under construction in Fordow (near Qom), it states in article 25 of the report that,

As previously indicated to the Board [of Governors], in light of Iran’s refusal to permit the Agency access to the Heavy Water Production Plant [near Arak], the Agency has had to rely on satellite imagery to monitor the status of that plant.

But a heavy water production plant is not covered by Iran’s Safeguards Agreement with the IAEA. In fact, heavy water is not even considered as nuclear material covered by any IAEA Safeguards Agreement. So, why should Iran open its plants to the IAEA when it has no such obligation?

Another dispute between Iran and the IAEA is about modified Code 3.1 of the Subsidiary Arrangements General Part of Iran’s Safeguards Agreement with the IAEA, signed in 1974 and ratified in 1976. Code 3.1 of the Arrangements stipulated that Iran must declare to the IAEA the existence of any nuclear facility no later than 180 days before introducing any nuclear materials into the facility. That is why, despite all the rhetoric, the construction of the Natanz uranium enrichment facility without it being declared to the IAEA was perfectly legal.

In 1992, the Board of Governors of the IAEA replaced the original Code 3.1 with the modified Code 3.1, which requires a member state to notify the IAEA, “As soon as the decision to construct or to authorize construction has been taken, whichever is earlier” (emphasis mine). It also developed the Additional Protocol to the Safeguards Agreement that empowers the IAEA with the authority for intrusive inspection of any site in any signatory state.

After the Natanz facility was officially declared to the IAEA in February 2003, Iran agreed on February 26, 2003 to the modified Code 3.1. More precisely, Iran agreed to voluntarily implement the modified Code 3.1 until the Majles [the Iranian parliament] ratifies the modification to the Agreement. But while the Majles refused to ratify the modification to the Safeguards Agreement covering the modified Code 3.1, Iran continued to observe it from February 2003 to March 2007.

But, in February 2007 the Board of Governors of the IAEA sent Iran’s nuclear dossier to the United Nations Security Council. Iran contends that the IAEA had acted illegally, and, therefore, in retaliation, it notified the IAEA on 29 March 2007 that it would no longer voluntarily abide by the modified Code 3.1, and would revert to the original Code 3.1 (that required 180 days notification).

Despite this clear history, the IAEA latest report insists in article 29 that,

In accordance with Article 39 of Iran’s Safeguards Agreement, agreed Subsidiary Arrangements cannot be changed unilaterally; nor is there a mechanism in the Safeguards Agreement for the suspension of a provision agreed to in Subsidiary Arrangements. Therefore, the modified Code 3.1, as agreed to by Iran in 2003, remains in force for Iran.

This statement is correct only if the Majles had ratified the change covering the modified Code 3.1. But, given that it did not, Iran has no obligation toward the modified Code 3.1. No country is obligated to carry out the provisions of any international agreement that it has signed, if the country’s parliament has not ratified the treaty. The United States has signed some international agreements, such as the nuclear test ban treaty, that have not been ratified by the Senate.

In article 31 of the report, the IAEA complains again about the modified Code 3.1: “Both in the case of the Darkhovin facility [a mid-size nuclear reactor that Iran intends to construct] and FFEP [Fordow Fuel Enrichment Plant], Iran did not notify the Agency in a timely manner of the decision to construct or to authorize construction of the facilities, as required in the modified Code 3.1….” But, once again, Iran has withdrawn from modified Code 3.1, and has no obligation other than Code 3.1 [that requires only 180 days advanced notification].

In article 40, the report once again makes a political statement against all the relevant international laws:

Previous reports by the Director General have detailed the outstanding issues and the actions required of Iran, including, inter alia, that Iran implement the Additional Protocol…

And again in article 50

The Director General requests Iran to take steps towards the full implementation of its Safeguards Agreement and its other obligations, including the implementation of its Additional Protocol.

These statements are even contrary to what the report says in article 6, where the Agency states that, “Since the last report, the Agency has successfully conducted 4 unannounced inspections at FEP, making a total of 35 such inspections since March 2007.” Such unannounced visits are covered only by the Additional Protocol (AP). So, while Iran is still carrying out this aspect of the AP, the IAEA still complains about it and, at the same time, it considers implementation of the AP an obligation for Iran! What is the truth?

Beginning on December 18, 2003, Iran did begin to carry out the provisions of the AP on a voluntary basis, until the Majles ratifies it. Even the European Union that had negotiated the implementation of the AP by Iran recognized its volunteer nature. Iran continued doing so until October 2005, when it declared to the IAEA that it would no longer abide by the AP. The reason was that the proposal that the European Union had presented to Iran in August 2005, according to which Iran was to receive significant economic concessions and security guarantees, was deemed by Iran to be totally inadequate.

At the same time, angered by the European Union attitude toward Iran, the Majles never ratified the AP. Thus, unlike what the IAEA claim, Iran cannot be required to implement the AP. No sovereign nation has any obligation to sign and implement any international agreement that it does not deem it to be in its national interests.

Articles 42 and 43 of the report have to do with the alleged documents that were supposedly in a laptop that had been purportedly stolen in Iran, taken out of the country, and made available to Western intelligence agencies in Turkey. Most experts have cast doubt on the authenticity of the laptop’s documents. A senior European diplomat was quoted by the New York Times in a Nov. 13, 2005, article as saying, “I can fabricate that data. It looks beautiful, but is open to doubt.” Another European official said, “Yeah, so what? How do you know what you’re shown on a slide is true, given past experience?”

But, the IAEA, led by Olli Heinonen, the IAEA’s deputy Director General of safeguards – a man who has a reputation inconsistent with impartiality and objectivity, continues insisting that Iran explain the document, while also refusing to present Iran with the original document, or check the laptop for its digital chain of custody that would show when the alleged document were up loaded in the laptop.

Then, in article 46 of the report, the IAEA makes the most outrageous statement:

While the Agency continues to verify the non-diversion of declared nuclear material in Iran, Iran has not provided the necessary cooperation to permit the Agency to confirm that all nuclear material in Iran is in peaceful activities.

Thus, what the report seems to be implying is that, there are undeclared nuclear materials in Iran, whereas there has never been a shred of evidence that such materials exist.

Finally, the report prominently mentions the Security Council Resolutions against Iran. As I have explained elsewhere, sending Iran’s nuclear dossier to the Security Council, which was the basis for approving resolutions 1737, 1747, 1803, and 1835 against Iran, was completely illegal and against the IAEA Status. Thus, even the legality of the Security Council resolutions is questionable.

Thus, the IAEA is being totally politicized by the U.S. and its allies to advance their agenda against Iran. This is being done while Iran is by and large abiding by its obligations under the Nuclear Non-proliferation Treaty and its Safeguards Agreement, while the U.S. allies – South Korea, Taiwan, and Egypt – have grossly violated their nuclear obligations. Not only has the IAEA not taken any action against these countries, there is hardly any official IAEA report about their illegal nuclear activities.

http://www.campaigniran.org/casmii/index.php?q=node/9604

any thoughts on its content?

“I hope no-one thinks I’m too sharp in my comments.”

To be frank, I had thought that.

Relevant Provisions of Iran’s Safeguards Agreement

Article 24(b): All amendments [of Iran’s Safeguards Agreement] shall require the agreement of the Government of Iran and the Agency.

Article 39: The Government of Iran and the Agency shall make Subsidiary Arrangements which shall specify in detail, to the extent necessary to permit the Agency to fulfil its responsibilities under this Agreement in an effective and efficient manner, how the procedures laid down in this Agreement are to be applied. The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of this Agreement.

EAB COMMENTS:

As I noted in an earlier post, the CSA language is essentially identical in Article 24(b), governing amendments to the CSA itself, and the second sentence of Article 39, governing amendments to a Subsidiary Arrangement. Only one word differs (“agreement of the Government of Iran and the Agency” versus “agreement between the Government of Iran and the Agency”), and I doubt anyone would argue that that slight difference distinguishes the meanings of the two phrases. Nothing else in the CSA suggests that the two phrases mean different things. Thus, there is no basis for concluding, from the CSA language alone, that a different form of approval is required for those two types of amendments. Accordingly, if an amendment of the CSA requires Majlis approval (which appears to be agreed by everyone in this debate), so does an amendment of a Subsidiary Arrangement – assuming, again, that we limit ourselves to what appears in the CSA.

Of course, in real life, it made little sense to expect that each Subsidiary Arrangement, and especially each change to a Subsidiary Arrangement, would be submitted by the IAEA representative of a signatory country to that country’s legislature (or to whatever other government body or government official was authorized to give approval on behalf of the signatory country). In recognition of this, the IAEA and the representatives of signatory countries long ago developed a modus operandi under which changes (or even the initial adoption) of Subsidiary Arrangements were approved by an exchange of letters between the IAEA and the IAEA representative of a signatory country, without the formal approval of the signatory country’s government being obtained or even sought. That, for example, is how the initial Iran Subsidiary Arrangements were adopted, and that is how Iran and the IAEA approved the “new” Code 3.1 in 2003.

Let me digress for just a paragraph to repeat a point I made in an earlier post. Assume in this paragraph that there is no dispute as to whether an “exchange of letters” is sufficient to adopt or change a Subsidiary Arrangement; assume here that only a formal approval by the government of the signatory country will suffice. On this assumption, if a Subsidiary Arrangement has been approved by Iran’s Majlis, I think (unlike Dan Joyner, who reaches the same general conclusion as I do, but along a different analytical route) that the Subsidiary Arrangement would unquestionably be binding on Iran. I think the first sentence of Article 39 implies this plainly enough, and that, if one disagrees about that, one must nevertheless acknowledge that any other interpretation of that first sentence would render the second sentence of Article 39 meaningless – a result strongly disfavored whenever a court (or anyone else who follows the guidelines a court would follow) is trying to discern the meaning of a treaty, a statute or a contract. The second sentence of Article 39 requires IAEA approval to change a Subsidiary Arrangement, which obviously implies that a Subsidiary Arrangement cannot be changed without IAEA approval. But, if a Subsidiary Arrangement indeed were non-binding, as Dan Joyner has argued, why would Iran need the IAEA’s approval to change it? It could simply ignore the Subsidiary Arrangement any time it saw fit, regardless of how the IAEA might feel about that, which obviously would make the second sentence of Article 39 utterly meaningless. So, to conclude this paragraph, I think there is no question that, setting aside the “exchange of letters” issue I’ll get back to in the next paragraph, Subsidiary Arrangements made between Iran and the IAEA under the first sentence of Article 39 are binding on Iran unless and until they are changed with the approval of Iran and the IAEA under the second sentence of Article 39.

Now back to the hard part, which is the effect of an “exchange of letters” on a Subsidiary Arrangement. Let me first assume four facts that I do not believe are in dispute.

FIRST, the government of Iran has never expressly agreed to amend or waive the second sentence of Article 39, which reads: “The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of this Agreement.”

SECOND, the government of Iran has never expressly informed the IAEA that Iran’s government had granted authority to Iran’s IAEA representative to amend or waive the second sentence of Article 39 on behalf of the government of Iran.

THIRD, Iran’s IAEA representative has never expressly represented to the IAEA that Iran’s government had granted him authority to amend or waive the second sentence of Article 39 on behalf of the government of Iran.

FOURTH, when Iran’s IAEA representative approved new Code 3.1 in 2003, the IAEA did not believe that Iran’s IAEA representative had either obtained or sought formal approval of the new Code 3.1 from the government of Iran, nor had Iran’s IAEA representative informed the IAEA that he intended to seek such formal approval.

If these four assumptions are valid, as I believe they are, then the question boils down to what meaning can fairly be assigned to the approval of new Code 3.1 given by Iran’s IAEA representative in 2003 through an “exchange of letters” with the IAEA. That meaning, I believe, may be found in one of the following “statements” by Iran’s IAEA representative to the IAEA:

ONE: “As you know, I have not been granted authority to amend or waive the second sentence of Article 39 on behalf of the government of Iran and I do not intend to seek such authority or to seek the Iranian government’s formal approval of new Code 3.1. Nevertheless, I hereby approve new Code 3.1 and assure you that Iran will henceforth act accordingly until such time, if ever, as I inform you in writing that I no longer approve of this change, in which case the previous version of Code 3.1 will thereafter be in effect again – unless, before I have withdrawn my approval, the government of Iran has approved new Code 3.1, in which case new Code 3.1 will be binding on Iran as provided in the second sentence of Article 39 unless and until it is changed again with the approval of the government of Iran and the IAEA as provided in that sentence.”

TWO: “As you know, I have not been granted authority to amend or waive the second sentence of Article 39 on behalf of the government of Iran and I do not intend to seek such authority or to seek the Iranian government’s formal approval of new Code 3.1. Nevertheless, I hereby approve new Code 3.1 and waive any right to withdraw my personal approval. I assure you that Iran will henceforth act accordingly until such time, if ever, as I inform you in writing that the government of Iran has formally disapproved of new Code 3.1, in which case the previous version of Code 3.1 will thereafter be in effect again.”

THREE (same as TWO except for added last sentence): “As you know, I have not been granted authority to amend or waive the second sentence of Article 39 on behalf of the government of Iran and I do not intend to seek such authority or to seek the Iranian government’s formal approval of new Code 3.1. Nevertheless, I hereby approve new Code 3.1 and waive any right to withdraw my personal approval. Iran will henceforth act accordingly until such time, if ever, as I inform you in writing that the government of Iran has formally disapproved of new Code 3.1, in which case the previous version of Code 3.1 will thereafter be in effect again. If, however, I have not informed you, within a reasonable period of time hereafter, that the government of Iran has formally disapproved of new Code 3.1, you may thereafter treat my approval of new Code 3.1 as fully equivalent to formal approval by the government of Iran, in which case new Code 3.1 will be binding on Iran as provided in the second sentence of Article 39 unless and until it is changed again with the approval of the government of Iran and the IAEA as provided in that sentence.”

FOUR: “As you know, I have not been granted authority to amend or waive the second sentence of Article 39 on behalf of the government of Iran and I do not intend to seek such authority or to seek the Iranian government’s formal approval of new Code 3.1. Nevertheless, I hereby approve new Code 3.1 and waive any right to withdraw my personal approval. You may treat my approval as fully equivalent to formal approval by the government of Iran and, accordingly, Code 3.1 will henceforth be binding on Iran as provided in the second sentence of Article 39 unless and until it is changed again with the approval of the government of Iran and the IAEA as provided in that sentence.”

Some may understand (and they may be correct) that Iran’s stated position is essentially equivalent to ONE above, but I don’t understand that Iran has ever claimed that (and, if Iran indeed has claimed ONE as its position, it can and should rely instead on TWO, since that fits the facts). I understand Iran’s position is essentially equivalent to TWO: its IAEA representative’s approval of new Code 3.1 was effective unless and until new Code 3.1 was formally disapproved by Iran’s government, which is what occurred in 2007. My understanding is that the IAEA’s position on this is equivalent to FOUR: that the approval of new Code 3.1 by Iran’s IAEA representative was irrevocably binding on Iran the moment it was given. Perhaps, if pressed, the IAEA might rely instead on THREE, thus acknowledging that Iran’s IAEA representative’s approval of new Code 3.1 could have been nullified by a reasonably prompt formal disapproval by Iran’s government, but that, by the time this finally occurred four years later, new Code 3.1 had become irrevocably binding on Iran.

The IAEA might point out that no other country, including Iran prior to this dispute, has argued that its “exchange of letters” approval of a Subsidiary Arrangement change could be revoked. Assuming here that that is true (I don’t know whether it is), however, it could just as easily mean that: (1) no such country (except Iran, in this dispute) has ever desired to retract its approval of a Subsidiary Arrangement change, and so the issue has simply never arisen; or (2) one or more of such countries have desired to retract approval of a Subsidiary Arrangement change but believed, mistakenly, that its “exchange of letters” approval was binding; or (3) one or more of such countries have desired to retract approval of a Subsidiary Arrangement change, believed that its “exchange of letters” approval was not binding (i.e. as Iran believes), but nevertheless decided not to press the issue because doing so might generate too much ill will with the IAEA. Thus, unless the IAEA can point to an example of a country that has actually pressed this same issue, and has had the dispute resolved against it (by someone other than the other party to the country’s safeguards agreement – i.e. the IAEA), I do not believe such an argument by the IAEA would count for much.

I cannot say which version an independent judge would find most reasonable – and reasonable for the IAEA to have relied upon – but I think it would be TWO – what I understand to be Iran’s position.

Dan, Iran’s interpretation of the agreement which included a ratification by the parliament is evident from the outset in 2003, Khatami is on record stating this. The bbc also states this in their original article published when Iran signed the protocol: http://news.bbc.co.uk/2/hi/middle_east/3327065.stm

Doesnt this have some effect on the interpretation of the protocol? I am not a international law expert but in corporate law if one side to an agreement clearly states that the full enforcement of the agreement depends on the board of directors approval then in most cases the agreement is not fully binding until this is done. Since Iran’s interpretation is clear from the outset, shouldn’t the IAEA stated to the Iranians that this is not a case, and that the protocol would be binding from the start?

I was also wondering why there is no posts mentioning the US’s refusal to allow Iran the ability to purchase medical fuel for it Tehran research reactor. this is contrary to the NPT and to the sanctions themselves which specifically states that medical supplies are not part of the sanction regime. This site has to state violations from both sides not just Iran’s

Thanks for what’s shaping up to be a good debate, with lots of various perspectives. I hope no-one thinks I’m to sharp in my comments. I just want to steer and clarify.

However, I need to attend to quite a few tasks as VERTIC director over the next few days. I’ll moderate, but don’t expect too much in terms of contributions.

I do apologize for that.

Best,

Andreas

P.S. Richard: that’s the Additional Protocols.

Andreas/EAB,

Wouldn’t you say that Article 39, in combination with Articles 24 and 25 of the Iranian CSA, differentiates, or at least appears to seek to differentiate, between amendments to the Subsidiary Arrangements and amendments to the CSA itself? The purpose would appear to be to allow amendments to Subsidiary Arrangements, unlike the CSA, to NOT need parliamentary ratification.

That would be different I suppose if the SAs specifically required ratification, or if the Iranian constitution specifically required it. On that level, can any agreement be binding on a country WITHOUT being ratified by their government?

Regarding whether or not Iran has breached the agreement and the steps that should follow, in the case of a dispute on interpretation (which this appears to be), the next step is set out in Articles 20-22. These detail a procedure for referring the dispute to arbitration. Has either party sought to take that step?

It’s my first attempt to use http://treaties.un.org/ so I may have this wrong, but searching for IAEA in the database seems to show up some Safeguards Agreements (about 68 – not including Iran), but I cannot find any subsidiary arrangements registered.

Does this support the view that subsidiary arrangements are not treaties?

NB There are some “Protocol additional to the Agreement between X and the International Atomic Energy Agency for the application of safeguards …” – these sound like amendments to Safeguards Agreements, but it is possible these could be subsidiary arrangements – needs checking.