Verification of Correctness and Completeness in the Implementation of IAEA Safeguards: The Law and Practice

Abstract

Pursuant to Article III.1 of the Treaty on the Non-Proliferation of Nuclear Weapons (the NPT) each non-nuclear-weapon State (NNWS) Party to the Treaty undertakes to conclude with the International Atomic Energy Agency (IAEA) an agreement for the application of safeguards on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere. As provided for in Article III.1 of the NPT, the purpose of these agreements, referred to as comprehensive safeguards agreements (CSAs), is the ‘verification of the fulfilment of [the NNWS’s] obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices’. These safeguards agreements are highly standardized and are based on a document negotiated by a committee of the IAEA’s Board of Governors and approved by the Board in 1971, INFCIRC/153 (Corr.). Paragraph 2 of INFCIRC/153, which is reproduced mutatis mutandis, in every CSA concluded by the IAEA, provides that the IAEA shall have the ‘right and obligation to ensure that safeguards will be applied … on all source or special fissionable material …’. Between 1971 and the early 1990s, the implementation of safeguards under these agreements was primarily, although not exclusively, focused on the verification of nuclear material and facilities declared by the State concerned. The discovery in 1993 of Iraq’s clandestine nuclear programme made it clear that more should, and could, be done by the IAEA, as authorized and required by para 2 of INFCIRC/153, and the corresponding articles of CSAs, with a view to providing assurances not just of the non-diversion of declared nuclear material, but of the absence of undeclared nuclear material and activities in such States. This right and obligation has been confirmed consistently by the policy-making organs of the IAEA since the early 1990s. In 1997, the Board approved a Model Additional Protocol, designed as a model for protocols to be concluded with States party to CSAs, with a view to providing the IAEA with complementary authority to request access, on a more routine basis, to additional information and locations related to a State’s nuclear fuel cycle, with a view to strengthening the IAEA’s ability to fulfil its obligations under such agreements. In recent years, Iran, supported by a very few other Member States of the IAEA and a small number of academics, has challenged the IAEA’s efforts to verify the completeness of Iran’s declarations under its CSA, arguing that, without an additional protocol to that agreement, the IAEA has no authority to do so. In accordance with the general rules of interpretation codified in both the Vienna Convention on the Law of Treaties between States and the Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations, these safeguards agreements must be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the agreements in their context and in the light of their object and purpose. Account is also to be taken of any subsequent agreement between the parties regarding the interpretation of the agreements or the application of its provisions and any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. Recourse to supplementary means of interpretation, such as the preparatory work of the treaty and the circumstances of its conclusion, may be had in order to confirm the meaning resulting from the application that general rule, or to determine the meaning when the interpretation in accordance with that rule leaves the meaning ambiguous or obscure or leads to a result which is manifestly absurd or unreasonable. As discussed in this chapter, a plain reading of INFCIRC/153 clearly demonstrates the IAEA’s right and obligation to verify the non-diversion of the declared nuclear material and the absence of undeclared nuclear material and activities—that is to say, to provide assurances of the correctness and completeness of States’ declarations under such agreements. The text of INFCIRC/153 is clear on its face. This is clearly supported by the context of these agreements, and in the light of their object and purpose. This unambiguous meaning is confirmed by the subsequent agreement and practice of the parties to those agreements, as reflected in the documents adopted by the States Parties to the NPT in their quinquennial review conferences, the decisions of the IAEA policy-making organs and the consistent practice of the IAEA since the early 1990s—long before the Model Additional Protocol was approved by the Board of Governors. The travaux preparatoires reflected in the negotiation history of INFCIRC/153 further confirms that interpretation. With the approval of the Model Additional Protocol in 1997, and the conclusion of additional protocols based on the model, the IAEA has been able to more effectively and efficiently implement its right and fulfil its obligation under CSAs to provide the necessary assurances. To interpret INFCIRC/153, and the agreements concluded on the basis of that document, in such a way as to preclude IAEA verification of the correctness and completeness of States’ declarations under such agreements would defeat the very object and purpose of such agreements, and the very foundations of such agreements, the NPT, which is to ensure the timely detection of the diversion of nuclear material to nuclear weapons and other nuclear explosive devices and the deterrence of such diversion through the risk of timely detection.