I was going to revisit Natanz in my 14th post on the Wonk, but something more interesting came my way. I could not help noticing that Dan Joyner, a member of the powerful International Law Association, has written a response of sorts to James Acton’s article Iran Violated International Obligations on Qom Facility (Proliferation Analysis, 25 September 2009).
In a nutshell, James argues that subsidiary arrangements in INFCIRC/153-type safeguards agreements are legally binding instruments, in essence contracts between the IAEA and the state. Dan, on the other hand, concludes that subsidiary arrangements may not carry any legal force, that they have a ‘non-binding legal character’.
To be clear, both James and Dan reaches the same conclusion, that Iran’s behaviour is a cause for concern. Dan, however, looks at the problem from a structural perspective, and readily agrees there are worrying consequences for the safeguards system if his interpretation is correct.
I would probably subscribe to the view that subsidiary arrangements are part and parcel of the safeguards agreement itself. Without them, the safeguards agreement would not be meaningful. Their legal force is not explicitly stated, but the safeguards agreement is littered with functional references to its subsidiary arrangements.
For instance, paragraph 32 requires the state to set up certain measures (such as procedures for taking a physical inventory), as specified in the subsidiary arrangements. Paragraph 39 states that “provision should be made for the possibility of an extension or change of the Subsidiary Arrangements by agreement between the Agency and the State without amendment of the Agreement”. In other words, that they can be changed without having to go through the ratification procedure again. In addition, like any other contract, subsidiary agreements enter into force (see paragraph 40).
As an intergovernmental organization, the IAEA has what we lawyers call “legal personality”. This means that it has right to enter into agreement with states or, for that matter, non-state actors. And it has the right, as any sovereign state has, to expect that agreements are kept. The question is whether Iran has kept its agreement with the Agency.
And that is something that is debatable.