JURIST Guest Columnist Daniel Joyner of the University of Alabama School of Law says the IAEA went outside of its legal mandate with its latest report on Iran, a move that has been viewed by some states as indicating the IAEA’s shift from a technical body to a politicized one…

On November 8, Yukiya Amano, the Director General of the International Atomic Energy Agency (IAEA), delivered a formal report [PDF] on Iran’s nuclear program to the IAEA Board of Governors and the UN Security Council.

This report is most notable for its analysis and findings regarding possible military dimensions of Iran’s nuclear program. In previous reports, the Director General had expressed concern about this as well. However, in this report, the Director General’s office provided its most thorough and comprehensive analysis of all information and evidence that it has acquired on Iran’s nuclear program, either directly through the work of IAEA inspectors, or by the provision of information to the IAEA by national governments.

The report details information on Iran’s nuclear program and presents information which, the report asserts, “indicates that Iran has carried out … activities that are relevant to the development of a nuclear explosive device.” Most of the evidence for this assertion presented in this report has been known in official and non-official circles for some time. However, the report is notable for its public presentation of the information on Iranian weapons-related activities held by the IAEA, and its detailed analysis of that information. This analysis includes a discussion of Iran’s capabilities and activities with regard to the production and enrichment of fissile material, in particular uranium, which has been the subject of a number of IAEA Board of Governors reports and UN Security Council decisions.

However, the analysis does not stop with this consideration of the location of Iran’s uranium stores and the status of its facilities that are directly linked to the production and enrichment of uranium, all of which must be under IAEA safeguards pursuant to Iran’s agreement with the IAEA. Rather, the analysis in this report is mostly dedicated to discussing other activities which the IAEA, again, considers “relevant to the development of a nuclear explosive device.” These activities can generally be described as activities of design, research and experimentation related to the development of a nuclear warhead — i.e. the actual explosive device that weaponizes fissile material into a nuclear weapon.

These activities include Iran’s possession of a document which “describes, inter alia, processes for the conversion of uranium compounds into uranium metal and the production of hemispherical enriched uranium metallic components”; the development of “safe, fast-acting detonators, and equipment suitable for firing the detonators”; the possession of “information on the design concept of a multipoint initiation system that can be used to initiate effectively and simultaneously a high explosive charge over its surface”; “experimental research involving a scaled down version of [a] hemispherical initiation system and high explosive charge”; the construction of “a large explosives containment vessel in which to conduct hydrodynamic experiments”; and the conduct of “studies involv[ing] the modeling of spherical geometries, consisting of components of the core of an HEU nuclear device subjected to shock compression, for their neutronic behaviour at high density, and a determination of the subsequent nuclear explosive yield.”

This report is legally problematic in a number of ways.

Firstly and most fundamentally, the IAEA simply has no legal mandate to produce such a report on activities being carried on within an IAEA member state concerning items and technologies that may be related to the development of a nuclear explosive device, but that are not directly related to fissionable materials or associated facilities.

A thorough discussion of the IAEA’s history, role and legal mandate cannot be presented here, though I have attempted such an analysis in my 2009 book, International Law and the Proliferation of Weapons of Mass Destruction. It must therefore suffice to say that the agency is tasked in the IAEA Statute to conclude safeguards agreements with IAEA member states, pursuant to which all fissionable materials and related facilities within the state are subject to IAEA safeguards, and to monitor and verify member states’ compliance with these agreements. The IAEA is not tasked, either by its Statute or by the Nuclear Non-Proliferation Treaty (NPT), in monitoring or verifying the compliance of states with their broader NPT legal obligations.

The basic undertaking of all IAEA safeguards agreements, including the IAEA’s agreement with Iran [PDF], is spelled out in the first two articles of the document. Iran’s safeguards agreement, which is the legal basis for the IAEA’s monitoring and verification mandate with regard to Iran’s nuclear program, states in Articles I and II:

The Government of Iran undertakes, pursuant to paragraph 1 of Article III of the [NPT], to accept safeguards, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices. … The [IAEA] shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of Iran, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

Note that the role of the IAEA, as agreed with the Iranian government, is limited to applying and monitoring safeguards on fissionable material and related facilities within the territory of Iran, with the purpose of assuring that no such fissile material is diverted from peaceful nuclear activities to military purposes. The IAEA is given no authority to inquire into or to examine activities within Iran that are not directly related to fissile materials, even if they may possibly relate to the development of a nuclear explosive device. Again, the IAEA has a limited legal mandate that does not include being a general nuclear weapons watchdog.

Thus, in conducting these investigations into technologies other than fissile materials and producing this report, the IAEA is acting wholly outside of its authority pursuant to its safeguards agreement with Iran.

This is why the report’s findings are so indeterminate. Since the IAEA is acting outside of its legal authority in this section of the report, it does not have a legal standard to apply to its conclusions regarding possible nuclear weapons related activities not involving fissile material. Throughout the report, the Director General expresses “concern” about the information being presented, and requests “clarification” from Iran in order to address these concerns. However, since there is no treaty language in Iran’s, or any other state’s, safeguards agreement that deals with non-fissile-material activities related to nuclear weapons, there is no prohibitive or regulatory standard that the Director General can point to against which to make a conclusion of compliance or non-compliance. In short, as the ancient legal maxim states, there can be no illegality where there is no law. The IAEA is simply “concerned.”

Why they are concerned is itself a matter of curiosity. There is no knowledge or technical ability related to nuclear weapons detailed in this report, and allegedly possessed by Iran, which other technologically advanced non-nuclear-weapon states like Japan or Germany do not possess. These are specialized bodies of knowledge and technical capabilities, to be sure, but they are well within the knowledge base and technical abilities of these advanced industrial states.

Within nonproliferation studies circles, no one seriously doubts that Japan, for example, has all of the knowledge and technical ability relating to all necessary components and technologies that it would need to build a nuclear weapon in a matter of weeks or months if it made the political decision to do so. Japan has gained this knowledge through decades of high technology design, research and manufacturing experience, built upon a broad base of scientific knowledge gained through both in-country research and experimentation, and information sharing with other states.

Fortunately for Japan and Germany, and all other technologically and scientifically advanced non-nuclear-weapon states, knowledge about how to build a nuclear weapon — gained through scientific experiments, development of technological capability, or any other means including information sharing with other states — is not prohibited under international law, either in IAEA safeguards agreements or in the NPT itself.

What the NPT does provide in Article II is that all non-nuclear-weapon states shall not “manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices.” The term “manufacture” as used in Article II has been the subject of some controversy regarding its interpretation. Some current and former government officials and other observers, particularly in the US, hold that the prohibition on manufacturing a nuclear explosive device entails a scope which reaches far back along the knowledge acquisition and development line of a nuclear weapons program to the concept, capacity building, design, research and experimentation stages. Under this interpretation, the information presented in this new IAEA report might be considered evidence of a breach. However, this interpretation is incorrect by reference to the plain meaning of the terms of Article II, as confirmed by the negotiating history of the NPT.

Pursuant to Articles 31 and 32 of the Vienna Convention on the Law of Treaties, a treaty interpreter must first look to the plain meaning of the terms of a treaty provision taken in their context and in light of the treaty’s object and purpose. For the plain meaning of the term “manufacture,” one need only consult a dictionary. If you do, you will find a definition along the lines of “the making of goods from raw materials by manual labor or machinery.” This definition will be accompanied by a listing of synonyms, such as “assemble” and “fabricate.” The plain meaning of the term “manufacture” in Article II thus refers to the physical construction of a nuclear explosive device, or perhaps at its broadest reading, to the physical construction of the component parts of a nuclear explosive device.

In order to confirm the interpretation of a term rendered by an analysis of its plain meaning, an interpreter may consult the negotiating history of the treaty. In his seminal treatise on the negotiating history of the NPT, Mohamed Shaker offers this interesting vignette about the drafting of Article II, and in particular the term “manufacture”:

The prohibition on manufacture was envisaged in all the previous treaty drafts. The Soviet draft of 24 September 1965 also envisaged the undertaking by the States “not possessing nuclear weapons” not to “prepare for the manufacture” of nuclear weapons. The American draft as amended on 21 March 1966 included the preparations for the manufacture but only with respect to the prohibition on assistance. This means that non-nuclear-weapon States would have been allowed, under the American draft, to prepare for the manufacture of nuclear weapons
as long as no assistance was provided from outside.

There are at least two interesting points here that can help to confirm the meaning of “manufacture” given above. One is that in the early US and Soviet drafts of the NPT, there was a distinction clearly drawn between the terms “manufacture” and “prepare for the manufacture.” These were separate terms of different scope and meaning, and were selected intentionally by different drafters for inclusion in different drafts. “Manufacture” was clearly of a more limited scope than “prepare for the manufacture,” and looked more to the later steps of actual fabrication, construction and assembly of the component parts of a nuclear weapon, and to the completion of the full device from those component parts. “Prepare for the manufacture” clearly sought to include earlier steps on the ladder of development of a nuclear weapon, including the concept, capacity building, design, research and experimentation steps. The fact that both terms had been considered by the drafters, and that the term “manufacture” was the term eventually agreed upon by all NPT treaty parties, confirms the limited meaning of the term.

The second interesting point arising from the above negotiating history vignette is that it was the American draft of 1966 that apparently initiated the use of “manufacture,” as opposed to “prepare to manufacture,” in the text of what eventually became Article II. This fact is rather ironic in light of the current US-led efforts to expand the meaning of “manufacture” to include steps that would have much more persuasively been included in the term “prepare to manufacture,” which was proposed by the Soviet Union for inclusion in the NPT and rejected by US drafters.

In the practice of states since the establishment of the NPT, the cases of Japan and Germany and other advanced industrialized countries who have the knowledge and capability to construct a nuclear weapon, but that have not on that account been criticized by the IAEA or by the UN Security Council, are yet further evidence of the correctness of this interpretation of the limited definition of the term “manufacture” in the Article II prohibition.

Some would argue that this definition of “manufacture” is too limited. They might argue that a purposive or intent-focused interpretation is most in keeping with the object and purpose of the NPT. They would inevitably reference the testimony which William Foster, the head of the US delegation to the NPT negotiations, gave before the US Senate Foreign Relations Committee in 1968.

Facts indicating that the purpose of a particular activity was the acquisition of a nuclear explosive device would tend to show non-compliance. (Thus, the construction of an experimental prototype nuclear explosive device would be covered by the term “manufacture” as would be the production of components which would only have relevance to a nuclear explosive device.)

The problem with such an interpretation is that it requires an inference of a specific intent or purpose associated with activities that could be related to a nuclear weapons program. That intent must be to manufacture or otherwise acquire a nuclear explosive device. While domestic legal systems routinely provide for the inference of intent as one criterion for the establishment of tortious or criminal liability, they seldom if ever provide for a determination of intent prospectively, i.e. in domestic law we seldom if ever allow a finder of fact to infer from evidence what the accused party intends to do in the future. Rather, we wait until the actus reus, or objective act-based element of a crime is committed before putting actus reus and mens rea together to determine liability. This is both an evidentiary point as well as a substantive element point. Substantively, it would be nearly impossible to ever show from evidence that falls short of satisfying the legal concept of “manufacture” as interpreted above, that an accused state nevertheless intends in the future to manufacture a nuclear explosive device. It will in almost all conceivable cases be just as reasonable, if not more so, to infer an intent simply to develop the knowledge and capacity necessary to manufacture a nuclear weapon, without actually constructing working components or a finished device. This is a strategy that Ariel Levite has referred to as “nuclear hedging.”

Thus, my interpretation above of the Article II term “manufacture,” which focuses on actus reus and does not focus on intent, is more persuasive from both an evidentiary and substantive perspective.

Since there is no evidence presented in this new report by the IAEA Director General that Iran has physically constructed a nuclear explosive device or any of its components, one can conclude that the Director General’s concern expressed in this report cannot be justified as being based upon a breach of a rule of international law prohibiting the activities outlined in the IAEA report. Such a rule exists neither in Iran’s safeguards agreement with the IAEA, or in the NPT. Rather, the reason for the IAEA’s and the UN Security Council’s attention to Iran can only be based on other factors, primarily including the determination of the US and other states that Iran is a threat to Israel, the region and international peace and security generally.

The UN Security Council does in fact have the authority to make such a determination, pursuant to Article 39 of the UN Charter, even though this grant of authority does not mean that such a decision is any less subjective and politicized as among UN Security Council member states. The IAEA, on the other hand, is not supposed to be a politicized body. It was established to be a purely technical body, tasked with independently verifying state compliance with agreements related to fissile materials accounting. Nevertheless, its track record in devoting so much critical attention to Iran over the past nine years, and not to other non-nuclear-weapon states who have for decades engaged in precisely the same production of knowledge and capabilities, through the same processes, has convinced both Iran and the other members of the Non-Aligned Movement (comprising the vast majority of states in the world) that the IAEA has thereby undermined its independence and objectivity as a technical monitoring and verification body. Instead, they believe, it has become a politicized instrument of the foreign policy goals of the US and other Western states. The agency’s overreaching in its new report is simply the most recent evidence of this fact.

Daniel Joyner is Professor of Law at the University of Alabama School of Law. His research interests are focused in nuclear weapons nonproliferation law and civilian nuclear energy law. He has also written extensively on international use of force law, and on the UN Security Council. He is the author of International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009), and Interpreting the Nuclear Nonproliferation Treaty (Oxford University Press, 2011).

Suggested citation: Daniel Joyner, Iran’s Nuclear Program and the Legal Mandate of the IAEA, JURIST – Forum, Nov. 9, 2011, http://jurist.org/forum/2011/11/dan-joyner-iaea-report.php.