By M.A. Saki

IAEA must obtain information through legal means: international law expert 

June 27, 2020 - 11:28
‘IAEA resolution on Iran is declaratory, non-obligatory’ 

TEHRAN – An international law expert says the International Atomic Energy Agency (IAEA) must get information about member states’ nuclear program through “legal means”.

“It is obvious that the information by the IAEA should be obtained from legal means,” Abdollah Abedini tells the Tehran Times as the IAEA Board of Governors adopted an anti-Iran resolution on June 19 under the allegations of undeclared nuclear activities by Iran mostly propagated by Benjamin Netanyahu, one of the fiercest opponents of the 2015 nuclear deal. 

Following is the text of the interview:

Question: Is the resolution adopted by the IAEA Board of Governors on Friday obligatory?

“As a matter of fact, when the IAEA concludes that certain outstanding questions has been resolved, raising them again would have an adverse impact on the confidence-building relationship between the IAEA and a Member State.”   
Answer: No. The resolution does not contain provisions upon which oblige Iran to comply with its pertained duties under Safeguards Agreement and Additional Protocol. In paragraph 2, the resolution explicitly only just reaffirmed Iran’s obligations under Safeguards Agreement and Additional Protocol. The main provision of the Resolutions is addressed in paragraph 4 under which it calls upon Iran to cooperate with the Agency. Such a clear wording is a non-obligatory one of which does not contain any additional obligatory value other than expressly stipulated in the Safeguards Agreement and Additional Protocol of Iran.   

Q: Is it possible that the Iran case be referred to the UN Security Council by the IAEA board despite opposition by Russia and China? In the 35-member board, nine countries either opposed or abstained to vote. What does this indicate legally and politically?

A: Under Article 6 of the IAEA Statute, all Board of Governors decisions, except the amount of the Agency's budget, shall be made by a majority of those present and voting. However, Russia and China’s negative votes, unlike their positive votes in a similar process as to Iran’s nuclear program in 2006, is considerable; the resolution and the two supporting reports issued by the IAEA director-general in March and June 2020 under the agenda of “Safeguards Agreement with the Islamic Republic of Iran” deal with the alleged problem that access was not granted by Iran. Thus one may argue that the issue is capable of being referred to the UN Security Council by the IAEA. Nevertheless, such a referral has a special, time-consuming process that needs to be taken gradually and after entering into necessary negotiations by Iran and the IAEA in order to find a solution to the raised questions. On the other hand, Russia and China’s negative votes may be repeated in the UN Security Council and impede adopting the potential decision against Iran’s nuclear program.  

Q: Is what adopted on Friday technically a resolution or a statement? 

A: It is a widely established principle that there is no importance attached to name or title of the instruments and agreements in international law. As a matter of law, the content of and the scope of consent of the parties concluding the instrument or agreement are among crucial elements that determine the obligatory or non-obligatory of that instrument. As mentioned earlier, the recent (IAEA) board of governors resolution is a decision adopted based on the IAEA Statute and its content reveals the fact that it is a declaratory, non-obligatory decision. 

Q: The bone of contention that led to such a situation is that the IAEA says Iran has refused to provide access to what it calls “old sites” under the allegations that nuclear activities may have been carried out there. Allegations of nuclear activity in the claimed sites date back to the pre-JCPOA era. Is it legally acceptable to refer to something that have already been resolved? For instance, the JCPOA resolved issues surrounding the PMD? 

A: As a matter of fact, when the IAEA concludes that certain outstanding questions have been resolved, raising them again would have an adverse impact on the confidence-building relationship between the IAEA and a member state. Nevertheless, since the IAEA has a continuous mission to monitor the declared and undeclared nuclear-related material and activities in the Member States’ territories, it seems making a request to obtain information or visit the relevant locations by the IAEA is not justified legally and practically after concluding in this way regarding Iran in 2015 that “[T]he Agency has found no credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear programme.”   

Q: Is demanding a country to accept or do something based on allegations or espionage activities justified?

A: The IAEA is authorized to receive from various sources or to collect by own means the necessary information as to any nuclear activities that fall within its competence. It is obvious the information should be obtained from legal means. In any way, due to special competence of the IAEA with respect to nuclear activities inspection in member States, it seems that a kind of inspection, the so-called “anywhere and anytime”, has been granted based on the Additional Protocol to the IAEA. However, such competence is far from unlimited and the IAEA should provide the necessary justifications, information and the determined time and place that would be subjected to inspection. For example, according to Article 9 of the Safeguards Agreement between Iran and the IAEA in 1974, “[T]he Agency shall secure the consent of the Government of Iran to the designation of Agency inspectors to Iran” or “ensure protection of industrial secrets or any other confidential information coming to the inspectors’ knowledge”, or under Article 3 (D) “the activities of the Agency shall be carried out with due observance of the sovereign rights of States.”

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