Iran's Resumption of its Nuclear Program: Addendum

Frederic L. Kirgis
September 29, 2005
As was mentioned in the August 2005 ASIL Insight on Iran's resumption of its nuclear program, Iran is a non-nuclear-weapon party to the Nuclear Nonproliferation Treaty (NPT) and to a safeguards agreement with the International Atomic Energy Agency (IAEA).[1] Article 19 of the safeguards agreement provides in part, "If the [IAEA Board of Governors], upon examination of relevant information reported to it by the [IAEA] 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 . . . ."
The Statute of the Agency is the IAEA's governing instrument. Paragraph C of Article XII says in part, "The Board shall call upon the recipient State or States to remedy forthwith any non-compliance [with a safeguards agreement] 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." Article III.B.4 of the Agency's Statute says in part, "[I]f in connexion with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security . . . ."
On September 24, 2005, the Agency's Board of Governors noted "Iran's failure in a number of instances over an extended period of time to meet its obligations under its NPT Safeguards Agreement . . . with respect to the reporting of nuclear material, its processing and its use, as well as the declaration of facilities where such material had been processed and stored . . . ."  Although it went on to say that Iran had made good progress recently in its cooperation with the Agency, some important issues remained outstanding and the Agency was still not in a position to conclude that there are no undeclared nuclear materials or activities in Iran. Consequently the Board of Governors found that Iran had failed to comply with its NPT safeguards agreement in the context of paragraph C of Article XII of the Agency's Statute (quoted above). The Board went on to find "that the history of concealment of Iran's nuclear activities referred to in the Director General's report [of Sept. 2, 2005[2]], the nature of these activities, issues brought to light in the course of the Agency's verification of declarations made by Iran since September 2002 and the resulting absence of confidence that Iran's nuclear programme is exclusively for peaceful purposes have given rise to questions that are within the competence of the Security Council . . . ."[3] The Board requested the Director General to continue his efforts to implement all the relevant Resolutions and to report back to it, and said "The Board will address the timing and content of the report required under Article XII.C [of the Statute] and the notification required under Article III.B.4."[4]
Contrary to the inferences that might be drawn from some media reports on this IAEA action, the Board did not refer the situation to the Security Council. It did, however, give notice that it intends to do so. Nevertheless, the IAEA Director General, in a press statement after the Board had adopted its Resolution, said that "the issue remains very much here in Vienna"[5] (the seat of the IAEA). In other words, he was saying that the issue was not (or not yet) in New York (the seat of the UN Security Council). He expressed his intention to continue to solve the problem through negotiations. Thus it is possible that the situation will not wind up in the Security Council.
According to news reports, Iran has called the IAEA Resolution illegal and has said it might retaliate by banning IAEA inspectors from its nuclear sites. The Resolution appears to have been adopted in accordance with IAEA procedures and under the instruments referred to above. Consequently it appears that Iran would not be able to assert a right to suspend its performance of the safeguards agreement under the doctrine that allows one party to a treaty to suspend or terminate its performance if the other party materially breaches it.[6] But Iran might assert its right to withdraw from the NPT, and consequently from its safeguards agreement, under a provision in the NPT that allows withdrawal under certain circumstances. Such an assertion would raise further issues. See the August 2005 ASIL Insight to which this Addendum is attached.
About the author
Frederic L. Kirgis, an ASIL member, is Law Alumni Association Professor of Law Emeritus at Washington and Lee University. He has written books and articles on international law, including a book on the law of international organizations, and is an honorary editor of the American Journal of International Law.
[1] See also ASIL Insight, Iran, the IAEA and the UN (Nov. 2004).
[3] IAEA Board of Governors Resolution of 24 Sept. 2005, IAEA Doc. GOV/2005/77, available at <> . Most Board of Governors resolutions are adopted by consensus, but this one was adopted by a vote of 22 to 1 (Venezuela), with 12 abstentions.
[4] Id.
[5] Transcript of the Director General's Press Statement on Iran, Sept. 24, 2005, available at <> .
[6] Vienna Convention on the Law of Treaties, art. 60(1).