Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

A recent statement issued by the EU entitled ‘Common messages regarding EU sanctions against the Iranian nuclear programme’, posted on the websites of various EU embassies in Tehran (and translated into Farsi), attempts to sum up the reasons which have allegedly justified not only the sanctions on Iran decided by the UN Security Council, but also those adopted by the EU itself, which, as the document make clear, are ‘autonomous sanctions, beyond the ones imposed on Iran by UNSC Resolutions’. However, the recent EU statement, like others making allegations against Iran with respect to its nuclear programme, is vague and imprecise in terms of content of the obligations allegedly breached by Iran. It states that ‘[s]anctions are a response to Iran’s violations of its international obligations’, but it fails to give a precise indication of exactly what obligations would have been breached. In fact, it is noteworthy that the statement limits itself to pointing to the violation by Iran ‘of several resolutions of the United Nations Security Council and IAEA Board of Governors resolutions’, and does not state explicitly that Iran would have breached either its Safeguards agreement with the IAEA, or the NPT itself (which mandates in its Article III the implementation of such safeguards). I have shown previously (here and here on EJIL:Talk!) that it is very dubious that EU sanctions on Iran agreed in 2012, including the comprehensive oil and gas embargo and the freezing of assets of the Iranian central bank, actually comply with both procedural and substantive conditions applicable to countermeasures under the 2001 ILC Articles on State Responsibility.

The purpose of this post is to make two further points. First, the IAEA, in making findings (in Sept 2005) of non-compliance by Iran, has not applied properly applicable rules (both procedural and substantive) in its assessment of Iran’s conduct with respect to its obligations under Iran’s NPT Safeguards Agreement’ (CSA). This implies that the legal validity of such finding is, to say the least, very doubtful.

Second, an authoritative legal determination of the issue of Iranian compliance (or non-compliance) with the obligations assumed under the CSA, or a pronouncement on the existence and the materiality of a breach by Iran (in the meaning of ‘material breach’ under Article 60 of the Vienna Conventions) of the latter, has not yet been made and would indeed require the involvement of the ICJ or of an arbitral tribunal. Furthermore, such a pronouncement could not in any case emanate from the IAEA, since the latter is a party to the treaty the breach of which is alleged. It is clear that, as rightly noted by Joyner, ‘[t]he proposition that the IAEA itself can determine in authoritative fashion that the other party to a bilateral treaty, to which it itself is the other member, is in breach of its obligations under that treaty, has no precedent or analogue in international law’ (D. H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty, 92). Admitting the contrary, i.e. the authority of the IAEA to determine unilaterally the existence of a breach of a bilateral treaty to which itself is a party, would constitute a significant challenge to one of the most established principles in the law of treaties, i.e. the pacta sunt servanda principle embodied in Article 26 of the 1969 and the 1986 Vienna Conventions.There is a dispute between Iran and the IAEA as to whether Iran is in ‘non-compliance” with its obligations under the NPT regime. In September 2005, after three years of investigation and attempts at solving the outstanding issues regarding Iran’s nuclear program, the IAEA Board of Governors adopted a Resolution finding that Iran’s ‘failures’ and ‘breaches’ of its ‘obligations to comply with its NPT Safeguards Agreement’ (CSA) amounted to non-compliance in the context of Article XII.C of the Agency’s Statute’. Iran for its part argued that

there has never been any reference in the Agency’s reports to any ‘non-compliance’ by Iran’ in the meaning of diversion of nuclear materials to military activities (see INFCIRC/837).

The central issue is whether the ‘failures’ by Iran, identified by the IAEA (see e.g. GOV/2003/40), to meet its obligations under its Safeguards Agreement, with respect to ‘the reporting of nuclear material, the subsequent processing and use of that material and the declaration of facilities where the material was stored and processed’, amounted to non-compliance in the context of Iran’s CSA. Article 1 of Iran’s CSA states that its ‘exclusive purpose’ is ‘verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices’. The notion of diversion is therefore central to the purpose of IAEA safeguards and is the decisive criterion for any appreciation of non-compliance. In other words, a finding of non-compliance with safeguards in the context of Iran’s CSA (or of any other bilateral comprehensive safeguards agreement, the so-called INFCIRC/153-type safeguards agreement) would essentially be the consequence of a finding, or at least of the presence of strong and consistent elements of evidence, of diversion of nuclear materials in Iran to nuclear weapons. This means that a finding of non-compliance would imply, as stated in Article 19 of Iran’s CSA, 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’. The plain meaning of the provision of Article 1 of Iran’s CSA stating that verification of non-diversion to nuclear weapons is the ‘exclusive purpose’ of the CSA is confirmed inter alia by the authoritative (albeit unofficial) negotiating history of the NPT (3 volumes available here), by Ambassador Shaker (see M. I. Shaker, The Nuclear Non-Proliferation Treaty: Origins and Implementation, 1959-1979, vol. II, at 709-710). This implies that, as rightly noted by M. I. Shaker, the sanctions foreseen in Article XII.C of the IAEA Statute may be set in motion ‘[i]f safeguards fail after all to deter diversion and if there are strong indication that diversion has taken place‘ (M. I. Shaker, ‘The Evolving International Regime of Nuclear Non-Proliferation’, 321 Recueil des Cours (2006) 9, at 79).

Applying such interpretation to the case considered, where there had been no conclusive finding, nor strong and consistent elements of evidence, of diversion of nuclear materials in Iran to nuclear weapons, one can conclude that the equation made by the IAEA between ‘failures’ by Iran to meet its obligations under its CSA with instances of non-compliance in the meaning of the CSA and the IAEA Statute, rested on an incorrect interpretation of Article 1 of Iran’s CSA.

There is also disagreement over a second, closely related issue, regarding the scope of safeguards to be applied, as provided for in Article 2 of Iran’s CSA. The point is the assertion by the IAEA (and various IAEA member States) that the Agency’s mandate extends 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)’ (see e.g. GOV/2013/27, para. 67, fn. 67).

In that respect, as already observed by Joyner and myself, a review of the Board discussions at the time of negotiation within the IAEA of the model Additional Protocol (AP), shows that it can hardly be contended that there has been a subsequent agreement regarding the interpretation or application of INFCIRC/153-type CSAs between States parties to the IAEA Statute and/or parties to the NPT, in the meaning of Article 31.3(b) of the 1986 Vienna Convention, which would have resulted in an extension of the IAEA’s mandate, allowing it 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).

An examination of the practice of the IAEA in the implementation of safeguards in other countries found in non-compliance with their CSA (Egypt) or AP (South Korea) is also relevant, and points to the same conclusion.

In light of these various interpretative elements, it appears that the interpretation of Article 2 of Iran’s CSA which reads its terms as authorizing the IAEA to verify both the non-diversion of nuclear material from declared activities (i.e. correctness) and the absence of undeclared nuclear activities (i.e. completeness) in Iran, is in fact incorrect.

That being said, it is obvious that, by entering into a CSA with the IAEA, Iran has accepted the role of the IAEA in monitoring its compliance with its safeguards undertakings, under the conditions agreed in the CSA. Iran is thus supposed to have agreed to the power of the IAEA’s BoG, upon findings made by IAEA inspectors, to issue a statement of compliance (or non-compliance) by Iran. But a determination of non-compliance by the BoG is not per se a determination of breach of the CSA. The reason for a strict distinction between the two determination processes is that, while the BoG actually possesses (under the modalities set out in the CSA) the right to make a determination of non-compliance with the CSA, it is not, however, endowed with the authority to make a determination of breach of the CSA.

As a rule, the process of determination of breach of a treaty is carried out through the application of the methods of dispute settlement listed in Article 33 of the UN Charter, and generally used in the determination of breach of any international obligation (see e.g. M. M. Gomaa, Suspension or Termination of Treaties on Ground of Breach (1996) 142). Determination of breach of treaty, being a determination of an internationally wrongful act, is governed by general international law. It is interesting at this point to have a close look at the provisions of Article 60(2)(b) of the 1969 Vienna Convention, according to which a ‘material breach’ of a multilateral treaty entitles a party ‘specially affected’ by the breach to ‘invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State’. Anthony Aust has observed that ‘the use of ‘invoke’ means that a party may not simply declare a treaty at an end because of a perceived breach’ (A. Aust, Modern Treaty Law and Practice (2007) 293). Rather, subject to such right as it may have to take countermeasures, the affected party is required by Article 33 of the UN Charter to seek a peaceful settlement of the dispute, and more particularly, to follow the procedure in Articles 65 to 68 of the Vienna Convention. It has been rightly noted that ‘[i]t is implicit in the wording of Article 60 that responses can only be taken against actual violations of a treaty’ (Simma and Tams, ‘Article 60’, in O. Corten and P. Klein (eds), The Vienna Conventions on the Law of Treaties, 1351, at 1358). Thus, ‘Article 60 does not justify responses taken against alleged breaches of a treaty’ (ibid.).

This raises the issue of who is competent to determine the existence of a material breach. As long as the grounds invoked by one party to a treaty for termination or suspension have not been established as constitutive of a material breach, they remain mere allegations (Gomaa, op. cit., at 141). Indeed, ‘[t]here is no rule in the law of treaties which enables one or several parties to denounce a treaty, at their discretion, by simply alleging material breach by another party’ (Ibid., at 141). In the case of Iran, there is a dispute, i.e. a ‘disagreement on a point of law or fact, or a conflict of legal views or interests between two persons’ (PCIJ, Mavrommatis Case (1924)), related to implementation and application of a treaty (the CSA). As such, this dispute may be settled either by a judicial forum or by non-judicial means. It is true that dispute settlement in arms control law ‘is primarily of a non-judicial nature and only very rarely, if at all, judicial’ due to the political and strategic sensitivity of most issues implied (G. Den Dekker, The Law of Arms Control, 108-109).  But it remains that findings of breach of treaty resulting from non-judicial dispute settlement procedures ‘are not legally binding and most often bear the character of advice or recommendation on how to solve the dispute (rather than being an estimate of the degree of compliance)’ (Ibid.). This is why, as a matter of principle, it can be said that a truly authoritative determination of material breach of the CSA (and the same may be said of a breach of the NPT itself, as of any other international treaty) could only emanate from an international judicial body having appropriate jurisdiction over the dispute.  It has been observed in that respect that

[i]n the case of the IAEA, a review of its constituting instrument, the IAEA Statute, yields compelling evidence that the IAEA was not intended by its creators to exercise a judicial role. Rather, it was to perform a technical role of verifying the disclosures and accounting of nuclear materials and activities occurring within the boundaries of states that entered into safeguards agreements with the organization. (D. H. Joyner, Interpreting the Nuclear Non-Proliferation Treaty, 91)

Here it may be noted that general principles of procedural law regarding the burden of proof, and the standard of proof to be applied to the determination of non-compliance with a treaty commitment, assume a considerable importance in the context of settlement of a dispute over allegations of treaty non-compliance, be it referred to a judicial forum or settled through a non-judicial treaty mechanism. These procedural requirements, as emphasized inter alia by the ICJ in the Corfu Channel and the Genocide cases, while elaborated in a judicial context, shall indeed a priori be deemed relevant in the context of compliance mechanisms in the framework of international organisations or treaty bodies, and in specie in the IAEA verification process. To what extent are these principles relevant to the case considered? As a matter of principle, allegations of a particularly grave character (obviously such as the diversion of nuclear materials by a State to the manufacturing of nuclear weapons), shall be established through the application of a high standard of proof. In other words, it may be argued that the principle applied by the ICJ, according to which facts underlying claims against a State involving charges of exceptional gravity (such as, for instance, genocide) require the full conviction of the court (the ‘beyond reasonable doubt’ standard), shall be applied as well even in the context of an international dispute of which no court or tribunal has been seized. As a matter of fact, the Iranian government considers that conclusive evidence of diversion of nuclear material was an essential pre-condition for referring its nuclear program to the Security Council, and argues that since this pre-condition was not fulfilled, the Security Council has been involved in its nuclear program in contravention with the IAEA Statute.

What is obvious is that the assessment by the IAEA, in its November 2011 report (GOV/2011/65), of ‘overall credibility’ of documents deemed ‘indicating that Iran has carried out activities that are relevant to the development of a nuclear explosive device’ does not correlate to the ‘beyond reasonable doubt’ standard of proof required regarding such allegations of an exceptional gravity.

Even if the hypothesis of involvement of an international court or tribunal in the dispute may appear remote at present, a determination of (non-)compliance or of occurrence of a ‘material breach’ by Iran in the case considered could be effected by the ICJ, for instance in the context of an application made by Iran before the ICJ against one or some States which have, through the IAEA’s BoG, referred the Iranian case to the Security Council and/or have enacted sanctions against Iran. This would raise, however, the problem of the jurisdictional basis of an application before the ICJ.