By Trevor Findlay
On July 14, 2015, after marathon negotiations in Vienna, Iran reached agreement with six world powers—China, France, Germany, Russia, the United Kingdom, and the United States—and the European Union on a deal to roll back and constrain Tehran’s nuclear program. The agreement handed the International Atomic Energy Agency (IAEA) its greatest noncompliance reporting challenge yet.
As the multilateral organization charged with determining compliance with nuclear safeguards agreements, the IAEA has had experience with eight significant noncompliance cases, including that of Iran prior to this latest agreement. None, however, matches the procedural complexity, technical intricacy, and political sensitivity of the Joint Comprehensive Plan of Action, as the Vienna agreement is formally known. To fulfill its role, the IAEA Secretariat and the agency’s director-general, Yukiya Amano, will need to draw on the IAEA’s extensive experience with past noncompliance cases, exploit the latest verification technology promised by the agreement, marshal its finest report-crafting expertise, and steer an impartial, balanced, sensitive path through treacherous political waters.
Reporting in Theory
In theory, the way that the IAEA determines noncompliance with nuclear safeguards agreements is clear, straightforward, and automatic. Article XII.C of the agency’s 1957 statute provides that safeguards inspectors “shall report any non-compliance” to the director-general, who “shall” in turn report such noncompliance to the 35-member Board of Governors, the agency’s policymaking body. If the board determines that noncompliance has occurred, it “shall” report it to the agency’s membership at large (most readily through the annual General Conference), the UN General Assembly, and the UN Security Council.1 The word “shall” makes such steps legally binding. Action to bring a state back into compliance may be taken by the board, although its powers are limited, and by the Security Council, which has enforcement powers under the UN Charter. Beyond this, the details of the process, as in all multilateral arms control and disarmament regimes, are sparse. IAEA member states have not even sought to agree on a definition of noncompliance.2
Safeguards agreements themselves do not contain much more guidance than the statute and in some respects are inconsistent with it. Comprehensive safeguards agreements address noncompliance in just two paragraphs (18 and 19) and do not use the word “non-compliance.”3 Instead of the apparent automaticity of the statute, they give the agency flexibility in deciding what constitutes noncompliance, what actions should be taken by a state to redress it, and whether it should be reported to the Security Council.
Reporting in Practice
Eight safeguards noncompliance cases, beginning with Iraq in 1991, have resulted in special reports to the Board of Governors, the Security Council, or both. Five are considered by most observers to be serious and three less serious, although the agency itself does not categorize them this way in order to avoid implying that minor transgressions are not to be taken seriously. The agency’s noncompliance reporting has ranged from a single report that resolved the case to the board’s satisfaction (Romania, South Korea, and Egypt), to a limited number of reports (Libya and Syria), to voluminous and complicated series of reports lasting more than a decade on particularly egregious cases (Iraq, North Korea, and Iran).
Because the format, scope, and nature of reports and the process by which they are produced are not set out in the statute or elsewhere, the IAEA Secretariat has had to invent every aspect from scratch. As the first multilateral arms control verification organization and the one that still has the most-intrusive powers, the agency has had no precedents to emulate. At the outset, the only guidance it had was the traditional, generic way that the United Nations and, before it, the League of Nations reported to member states on a range of subjects. The diplomatic niceties, especially the respectful language used in addressing states; document format and numbering; and the formal, impartial tone of IAEA reports derive from these traditions. In all other respects, the IAEA Secretariat has been obliged to be innovative, flexible, and constantly aware of the significance of establishing precedents.
Each of the noncompliance cases that the IAEA has confronted has been unique, dynamic, and nonlinear. None has conformed to the straightforward trajectory envisaged in the statute or safeguards agreements. No longer is it just “inspectors” who discover and report noncompliance, but an entire safeguards department, employing inspectors, analysts, and other experts, that did not exist when the statute was negotiated.
The director-general’s role also has evolved far beyond simply reporting noncompliance to the board. He (all IAEA directors-general have been men) may, for instance, seek to resolve a noncompliance issue with the state concerned before it gets to the board. He may present an oral briefing to board members instead of or in addition to a written report. Directors-general are now intimately involved, for better or worse, in drafting and finalizing noncompliance reports. Technical briefings by IAEA personnel to the board are increasingly common.
The role of the board also has evolved. Contrary to what is envisaged in the statute, the board may or may not act in response to a noncompliance report by adopting a resolution or taking some other action. It may or may not report a case to the Security Council even when noncompliance has clearly occurred. In two cases, those of Romania and Libya, it has even taken to reporting to the council “for information purposes only,” presumably signaling that the council should take no action. The council took the hint and did not act.
When the council does act, the intensity of reporting by the agency usually increases as the council directs it to verify compliance with new undertakings imposed on noncompliant states. The scale of secretariat reporting also has increased markedly through the practice of ad hoc groups of states negotiating agreements that task the director-general with verifying compliance with additional undertakings. Such agreements, notably those imposed on or agreed with North Korea, Libya, and Iran, may involve the agency verifying and reporting on matters considered to be well beyond traditional safeguards, such as weaponization, dismantlement, disarmament, or a freeze in nuclear activity.
The secretariat’s reporting on noncompliance has thus increased in complexity, intensity, and technical sophistication over time. Long, drawn-out noncompliance sagas, such as those involving Iraq, North Korea, Iran, and Syria, were not envisaged by the statute, which is charmingly naive in its assumption that noncompliance will be speedily addressed. Certain cases have lasted so long that consolidated reports, summaries, timelines, maps, and diagrams have become commonplace. Complexity has also come from overlapping and linked noncompliance cases, also not envisaged in the statute. In 2004 the agency was dealing with five cases simultaneously (Iran, Iraq, Libya, North Korea, and South Korea). Currently, it has three (Iran, North Korea, and Syria). Revelations during the Libyan episode about the Abdul Qadeer Khan illicit nuclear export network soon linked several cases not just temporally but substantively.
Political controversy has attended the handling of every noncompliance case. This is inevitable. Governors representing member states, with all of their divergent interests and allegiances, make the ultimate judgment on noncompliance. Unless the evidence is overwhelming. which seldom is the case, the board is unlikely to rush to a decision. Because of the political implications, the board has a natural reluctance to report a fellow member state to the Security Council. Instead, the board is prone to ask for more verification and more reporting. Some governors may be unconvinced by the evidence and be reluctant, whether for political or substantive reasons, to declare a state in noncompliance. Some may wish to give the state a chance to explain itself or return quickly to compliance. Although the statute is silent on the matter, comprehensive safeguards agreements oblige the board to “afford” the state “every reasonable opportunity to furnish the Board of Governors with any necessary reassurance.” The board also may collectively wish to keep the case within its own control rather than hand it over to an unpredictable Security Council, especially one subject to the veto of any of the five permanent members.
At least at the outset, the board’s inclination is to seek consensus in making a noncompliance judgment, invoking the famous “spirit of Vienna.” The board resorts to a vote only when it becomes clear that consensus is unachievable. Voting in favor of finding a state in noncompliance has steadily declined, providing evidence for the thesis that there is increasing politicization of the board due largely to the split between the Western group and the Non-Aligned Movement. Yet, this may not be the only factor. The increasing technical complexity of cases, the ambiguity of verification data, and the unprecedented solidarity among accused states, such as that between Iran and Syria, may also account for a reluctance by board members to vote yes or no and instead find refuge in abstention (fig. 1).
The Iran Precedents
In 2002, allegations that Iran was constructing undeclared nuclear facilities at Natanz and Arak plunged the IAEA into a noncompliance saga that has consumed enormous amounts of the secretariat’s energy, time, and resources; generated political controversy about the IAEA’s noncompliance role; and set new precedents.
The Iran noncompliance case has been running for so long that it has resulted in more than 50 reports to the board and the Security Council, as well as innumerable oral reports, technical briefings, and bilateral and multilateral consultations. Although the reports are mostly cumulative, largely repeating what has been reported previously with the addition of an update, they are sometimes novel. The Iran case has set several new reporting precedents as a result of the multiple alleged violations involved, the waxing and waning of Iranian cooperation over the years, the involvement of outside parties in the case, and the sheer technical detail necessary for the agency to make its case. Novel areas of investigation, such as the “possible military dimensions” of Iran’s nuclear program—that is, its alleged past weaponization activities—have appeared.
The Iran reports paint a changing picture of the secretariat’s relationship with and attitudes toward Iran. At times, the secretariat demonstrates a willingness to give Iran the benefit of the doubt with respect to relatively minor issues that Tehran apparently clarified to the reasonable satisfaction of the agency. At other times, the secretariat draws a much harder line. An extreme example of the latter is its continuing concern about the alleged installation of a chamber for conducting hydrodynamic experiments with high explosives at the Parchin
Even more than the other cases, the Iran case has been complicated by diplomatic efforts by other parties to negotiate a resolution. These efforts, not necessarily in consultation with the IAEA, have mainly involved various permutations of the parties involved in the Vienna agreement but also at one time Brazil and Turkey. The Security Council itself, by imposing bans on Iranian activities relating to uranium enrichment and spent fuel reprocessing, obliged the IAEA to report on Iran’s compliance with such measures. Such reporting was pointless because Iran had indicated from the outset it would never accept such constraints. The Iran case also became entangled with other noncompliance cases, most notably those of Libya and Syria, and the A.Q. Khan connection.
One particular precedent that the Iran case has established concerns the use and nonuse of the term “non-compliance” by the secretariat in reporting alleged safeguards breaches to the board. In all previous cases, the director-general had used the term “non-compliance,” and the board had followed his lead in using it (table 1). In 2003, the George W. Bush administration began pressing the secretariat to use the term in order to trigger Iran’s “referral” to the Security Council, relying on the presumed automaticity the statute provides. Other countries, including France, Germany, and the UK, which were seeking to negotiate a settlement with Iran, preferred not to have it found in noncompliance at that time.
Faced with such divisions, Director-General Mohamed ElBaradei sought legal advice. After examining the statute, successive types of safeguards agreements, and precedents set by the previous cases, the IAEA legal office concluded that he had discretion as to whether and when to report noncompliance to the board and whether to use the term “non-compliance.” Moreover, it was concluded that there was no difference between the terms “non-compliance,” “breach,” and “failure to comply.” In his report of November 10, 2003, ElBaradei thus spoke of Iran’s “breaches of its obligation to comply with the provisions of its Safeguards Agreement” and of “serious concerns.” The board used the same language in its resolution. Only in a subsequent resolution did the board use the word “non-compliance.” The secretariat has never done so with regard to Iran or in any subsequent noncompliance cases—those of Libya, South Korea, Egypt, and Syria.
Although this may sound like terminological hair-splitting, it illustrates the fine line that the IAEA Secretariat has to walk in noncompliance reporting. It has to provide strictly technical, factual reports using standard safeguards formulations, which are often unrevealing except to the cognoscenti, while signaling unambiguously that noncompliance has occurred. Furthermore, it has to perform this feat while taking into account the interests and concerns of interested member states.
The July 2015 Agreements
On July 14, 2015, a new phase of the Iran case began.4 The Vienna accord is a long, complex agreement that imposes new constraints on Iran’s nuclear program while offering sanctions relief in return. This includes Iran’s implementation of the stricter verification requirements of an additional protocol to its comprehensive safeguards agreement. Also on July 14, Amano and Ali Akbar Salehi, vice president of Iran and head of the Atomic Energy Organization of Iran, signed a “Road-map for the Clarification of Past and Present Outstanding Issues Regarding Iran’s Nuclear Programme.”5 On July 20, the UN Security Council, in Resolution 2231, endorsed the agreement and added its own requirements.6 The agency is now involved in even more voluminous and complex reporting on Iran, pursuant to even more legal and quasi-legal undertakings.
The first major test for the IAEA came in December 2015 when Amano was obliged to provide his “final assessment on the resolution of all past and present outstanding issues” to the board, specifically the possible military dimensions of Iran’s nuclear program that the agency had been investigating since 2002.7 His report, released on December 2, was like standard IAEA compliance reports in its use of routine formulations.8 It recorded that the agency had found no “evidence” or “indications” that Iran had undertaken proscribed activities after 2009, that it currently had an undeclared nuclear fuel cycle, or that it had diverted nuclear material from its belatedly declared program. The report also spoke of the agency’s inability to undertake the necessary verification with respect to alleged activities, notably at the Parchin military base. As expected, the report abjured the word “non-compliance” and did not mention breaches or even “serious concerns,” the term used in ElBaradei’s November 2003 report, even though it recorded that Iran had not cooperated to the extent necessary to resolve certain concerns. It also deemed implausible some of Iran’s claims about the nonmilitary nature of some of its dual-use technologies.
In other respects, however, the report was extraordinary. It was not geared toward assessing compliance with standard safeguards undertakings in a legally binding safeguards agreement but with a series of steps to be undertaken not just by the state concerned but by the IAEA itself, all of which were reported to have been accomplished on schedule. Most unusually, the report did not indicate that the IAEA would continue to carry out verification activities in pursuit of any of the unresolved issues. Normally, IAEA noncompliance reports signal that the director-general will remain “seized” of the issue and that monitoring and verification will continue.
On December 15, the board adopted a resolution that noted that the activities listed in the road map were indeed implemented on schedule, but it did not declare that all issues had been resolved. Although the resolution explicitly “closes the Board’s consideration” of the issue of the alleged past weaponization activities, a step that Iran had long demanded, it hardly let Iran off the hook as to its past activities. The board indicated that the IAEA will indeed continue to be seized of the Iran issue for the lifetime of the Vienna accord. The director-general was asked to report on a quarterly basis and at any time he has “reasonable grounds to believe there is an issue of concern.” The artful layering of the various elements of the Vienna deal ensures that if Iran wishes to obtain complete sanctions relief in less than eight years, the IAEA must reach the so-called broader conclusion that all of Iran’s nuclear material since the beginning of its nuclear activities decades ago has been declared and is under safeguards. Even for countries such as Australia and Canada, which offered full cooperation to the IAEA, reaching this determination took many years.
In the meantime, a complicated set of verification and reporting tasks awaits the agency with regard to the multiple new constraints imposed by the Vienna accord on Iran’s nuclear and related activities for the coming 10 to 15 years. Amano must submit a report, expected by some as early as January 2016, assessing whether Iran has completed all of the actions specified in the Implementation Plan (Annex V of the Vienna agreement). These include removal and storage of most of its functioning centrifuges, conversion of the Arak reactor so it can no longer produce significant amounts of plutonium, and removal from Iran of most of its stockpile of enriched uranium. Implementation Day will be declared when the IAEA concludes that Iran has complied with the plan. Most sanctions will be terminated, waived, or suspended on that day.
This puts great responsibility on the shoulders of the IAEA Secretariat and director-general. They will be under pressure from Iran, China, Russia, and their supporters to give the green light for sanctions to be lifted, while the United States and its allies will be scrutinizing the agency’s verification activities and compliance reporting to ensure they are credible. In accordance with the precedent set earlier in the Iran case, the secretariat does not have to use the word “non-compliance” in order to convey that noncompliance has occurred, but it must do more than simply report data. It should provide analysis and assessment and indicate clearly where there is evidence of breaches and shortcomings.
The secretariat faces several challenges in performing this role. First, even with the best will in the world, Iran’s compliance is unlikely to be perfect. Distinguishing between technical and material breaches and between what is unintentional and deliberate is crucial. A second challenge is the sheer complexity of the Vienna agreement, the Security Council resolution, and associated elements of the deal, as well as the number of stakeholders involved. This is bound to produce interpretive differences. Notwithstanding the exquisite detail of the Vienna agreement, there is no such thing as an unambiguous undertaking in arms control, no matter how hard negotiators try.
A third difficulty arises from the well-known challenge of assessing and reporting on research and development, which Iran is permitted to pursue with respect to uranium enrichment.
A fourth challenge is how to make an overall assessment of Iran’s compliance at any one time. There are so many moving parts, technical subtleties, and potential compliance lacunae that the IAEA Secretariat will be hard pressed to provide the pithy summary assessments necessary to keep the process moving forward politically and to convince all interested parties of the validity of its assessments. These parties include IAEA member states without deep technical knowledge of verification and compliance matters; an often skeptical media; legislators in some countries, especially the United States; and nongovernmental experts. Finally, considerable uncertainty pertains to the precise relationship among the IAEA; the joint commission established by the Vienna agreement, comprising all the parties to that accord; and the Security Council in determining and acting on Iran’s compliance. The IAEA’s mandate and authorities must be respected in order to avoid harming its credibility in implementing nuclear safeguards globally, far beyond the specifics of the Iran case.
To boost the chances of the IAEA successfully carrying out its new responsibilities, the following ingredients are necessary:
- As past cases have demonstrated, the director-general and the board need to be afforded flexibility in handling the complexities of noncompliance issues, notably in navigating the line between inadvertent, technical noncompliance and systematic, willful noncompliance.
- The IAEA needs as soon as possible to obtain the state-of-the-art verification technology promised in the Vienna accord, the additional personnel and funding that Amano has requested, and the best analytical and report-crafting skills it can muster.
- It is the responsibility of the board and the Security Council, not the secretariat, to declare Iran in noncompliance if necessary. The declaration should be based on evidence and analysis, not just raw data, prepared by the secretariat and presented by the director-general.
- Care must be taken to avoid the joint commission usurping the roles of the IAEA director-general and board.
Ultimately, Iran’s compliance will depend on whether it has made a strategic decision to comply. If it provides grudging cooperation, undertakes minimal compliance, constantly tests the boundaries of toleration, and seeks overall to game the system, no amount of finely crafted, technically competent, and politically astute reporting by the IAEA Secretariat and director-general will suffice to avoid a crisis. On the other hand, if Iran offers its full cooperation, there may still be uncertainties, minor disputes, or inadvertent noncompliance, but none of this will be insoluble. To ensure this outcome, Iran would be wise to work proactively with the IAEA Secretariat to facilitate the agency’s reporting and to provide as much transparency and access as possible in order to build confidence in its full compliance.
1. Despite common usage, including at times by successive directors-general and members of the International Atomic Energy Agency (IAEA) Board of Governors, nowhere do the legal documents speak of “referring” a case to the board or UN Security Council. The correct term is “report.”
2. The Safeguards Glossary—which the secretariat, not the board, created—defines “non-compliance” as “a violation by a State of a safeguards agreement with the IAEA.” It provides several examples but no definitive list. See IAEA Safeguards Glossary (Vienna: IAEA, 2002), p. 13.
3. IAEA, “The Structure and Content of Agreements Between the Agency and States Required in Connection With the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/153 (corrected), June 1972.
4. UN Security Council, S/RES/2231, July 20, 2015, annex A (“A Joint Comprehensive Plan of Action (JCPOA), Vienna, 14 July 2015”).
5. IAEA Board of Governors, “Road-map for the Clarification of Past and Present Outstanding Issues Regarding Iran’s Nuclear Programme,” GOV/INF/2015/14, July 14, 2015.
6. UN Security Council, S/RES/2231.
7. IAEA Board of Governors, “Road-map for the Clarification of Past and Present Outstanding Issues Regarding Iran’s Nuclear Programme,” para. 8.
8. IAEA Board of Governors, “Final Assessment on Past and Present Activities Regarding Iran’s Nuclear Programme,” GOV/2015/68, December 2, 2015.