A strict construction of the plain text of the statute of the International Atomic Energy Agency (IAEA) reaffirms the UN Charter’s position that the UN Security Council is the leading forum for security matters and suggests parallel tracks for IAEA-related Security Council referrals.  The statute uses language suggesting that in the kind of situations cited such reporting is mandatory.

As such, the statute does not suggest mutually exclusive spheres of activity for the IAEA and the Security Council.  Rather it envisions a cooperative relationship between the two, in which part of the IAEA’s defined function is to inform and defer to the Security Council.

The language of the statute does offer greater discretion with respect to steps that may be taken against a wayward member within the IAEA itself, including suspending the rights and privileges of membership. 

Mandatory Reporting to UN Security Council

Matters impacting peace and security

The statute of the IAEA reads:

Article III: Functions

 

* * *

B. In carrying out its functions, the Agency shall:

* * *

4. Submit reports on its activities annually to the General Assembly of the United Nations and, when appropriate, to the Security Council: if in connection 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, and may also take the measures open to it under this Statute, including those provided in paragraph C of Article XII;[1]

The statute of the IAEA therefore recognizes, consistent with the UN Charter, that the Security Council is the UN organ with main responsibility for maintaining international peace and security. 

Moreover, when a matter does impact on peace and security, the statute does not merely offer an option to report it to the Security Council.  It declares the IAEA “shall” report the matter, implying such reporting is mandatory.

It therefore could be argued that a proper Security Council referral, rather than representing an abdication by the IAEA of its mission, actually fulfills its mission, as framed by the international legal instruments governing its existence and activities.  In that light, to obstruct a proper Security Council referral could be characterized as frustrating and hindering the natural functions of the IAEA.

In the context of weapons of mass destruction (WMD) proliferation, any instance of a non-nuclear weapons state striving towards crossing the nuclear weapons threshold could be said to impact peace and security and therefore be within the purview of the Security Council. 

The presence of an added factor of past involvement with terrorist acts arguably gives added impetus to classifying a matter as impacting peace and security if or when hints of proliferant activity or other irregularities emerge.

Another basis for Security Council referral relates to noncompliance with safeguards frameworks.

Noncompliance

Article XII of the statute of the IAEA, dealing with safeguards, indicates that the IAEA Board of Governors (that is, the sovereign states making up the Board, acting collectively in that capacity) “shall report” instances of noncompliance to the Security Council and the UN General Assembly:

Article XII. Safeguards

C. … The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any non-compliance 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.[2]

The direction that the Board of Governors, even while also seeking to remedy noncompliance, nevertheless still “shall report” noncompliance to the Security Council and General Assembly implies the intent of the statute was to make such reporting mandatory.

As such it could be argued that the Board of Governors’ role would be narrowed to that of fact-finder, focused on the threshold question of whether there had been full compliance with safeguards frameworks, rather than a broader decision about whether it would be a good idea for the Security Council to take up a matter.

Twin Tracks

As seen above, the language of the statute focuses on parallel tracks for Security Council referral, each offering a separate basis for referral, related to international security concerns or safeguards noncompliance, even if there might be cases where both exist.

This arrangement implies that there might be case where there is full compliance with reporting and inspection requirements, but nevertheless where there still exist security concerns requiring Security Council referral.

Conversely, there theoretically could be instances where there is no real security concern, but for some other reason there is noncompliance with the safeguards framework.  In such a case, the plain text of the statute would still call for a referral to the Security Council.

In the case of Iran, the United States would argue that Iran has triggered both criteria for reporting the matter to Security Council.

The nature of the reported agreement between Iran and the EU-3, taken together with reports over the content of the IAEA Inspector-General’s report, could raise the prospect of Iran eventually falling into the category of a state appearing to be in compliance with safeguards agreements but still warranting Security Council referral for security reasons. 

It may well be that Iran comes into compliance with record-keeping and inspections requirements for declared nuclear activities, but that suspicions about undeclared nuclear weapons activities remain and give rise to security concerns even without direct proof of safeguards noncompliance.  At the same time, under the Non-Proliferation Treaty (NPT) framework essentially all nuclear activities under Iran’s control are required to be subject to IAEA safeguards, the absence of which therefore would represent noncompliance regardless.

When noncompliance does occur, some might argue that it is tempting to permit the IAEA to continue to “work” the matter to encourage remediation.  The text of the statute of the IAEA does envision remediation and a “working out” of noncompliance, but not as a basis for hindering Security Council referral.  Instead, remediation is viewed as relevant to decisions over a special set of sanctions applied within the IAEA framework itself.

Iranian Safeguards Agreement

As will be examined in greater depth in another writing, Iran’s safeguards agreement augments the noncompliance prong of referral options by coming at noncompliance from yet another angle. While the Statute of the IAEA mandates that there ”shall” be referral in all cases of established noncompliance, Article 19 of the safeguards agreement provides that there also "may" be referral in cases where it simply is not possible to establish that no diversion of nuclear material to nonpeaceful purposes has occurred.

As a result there are multiple potentially alternative tracks for Security Council referral.

Discretion with IAEA-Based Sanctions

After setting out bases for Security Council referral, the above-quoted section of the statute of the IAEA continues:

. . . In the event of failure of the recipient State or States to take fully corrective action within a reasonable time [to remedy noncompliance], the Board may take one or both of the following measures: direct curtailment or suspension of assistance being provided by the Agency or by a member, and call for the return of materials and equipment made available to the recipient member or group of members. The Agency may also, in accordance with article XIX, suspend any non-complying member from the exercise of the privileges and rights of membership.[3]

In other words, in addition to Security Council referral, the noncomplying party that fails to remedy its noncompliance to the satisfaction of the IAEA Board of Governors, may face:

• suspension of assistance provided by the IAEA or an IAEA member, in the case of Iran presumably including assistance from Russia
   
• a call for the return of relevant materials and equipment (keep in mind, however, that in the case of Iran while some assistance was provided by Russia, a member, other assistance, including centrifuges, has come from Pakistan, a non-member)
   
• suspension of the privileges and rights of membership; it could be argued that this should extend to any NPT-based “right” to nuclear energy itself

In the Iranian case the Board of Governors already has demanded that Iran cease uranium enrichment.  If uranium enrichment was a right of membership under the NPT, then perhaps that step might be considered a type of IAEA-based sanction.  Iran, of course, has denied that the Board of Governors has the right to lay down such a sanction and that any agreement to suspend enrichment is based on a political deal with the European Union.

On the other hand, as will be examined in greater depth in another writing, the notion that the NPT necessarily envisions a “right” to the indigenous development of the entire nuclear fuel cycle to begin with is unlikely, even in cases when a country has not posed grave threats to the NPT framework.  Some have argued that such a position also is inconsistent with the NPT’s negotiating history.

With respect to remediation of noncompliance, even if safeguards noncompliance was remedied, such as with respect to disclosure, record-keeping, inspections, and the like, the question remains whether a more egregious breach of the NPT, such as efforts towards actual weapons proliferation, could ever be remedied or instead would bar any future involvement with nuclear activities.

Conclusion

Under the plain text of the statute of the IAEA, Security Council referral should be forthcoming as a matter of course in instances raising concerns relating to international peace security or involving safeguards noncompliance.

In cases of unremedied noncompliance, the Board of Governors has additional options it can exercise to sanction members for noncompliance, including the suspension of the rights and privileges of IAEA membership.

While the language of the statute appears to grant the Board of Governors discretion with respect to IAEA-based sanctions, it does not appear to grant the IAEA or the Board of Governors the same discretion with respect to withholding Security Council referrals in cases such as those mentioned above.  This fact implies that well-intentioned efforts to support the work of the IAEA by leaving a matter “in its hands” may actually hinder the intended functions of the IAEA as a close partner of the Security Council by obstructing one of its defined roles.

[Content available on this site is for informational purposes only and not for the purpose of providing legal advice. Use of this site does not create an attorney-client relationship.]

  

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