How to Safeguard and guarantee the credibility of the IAEA: Reviewing one last challenge

How to Safeguard and guarantee the credibility of the IAEA: Reviewing one last challenge

In this article, considering the approach and manner chosen by the Director General of the Agency to address the issue of canceling / withdrawal of the designation of some Agency’s inspectors assigned to conduct verification activities in Iran, in September 2023 by Iran, we would like to discuss and assess the impact of this approach of the Director General on the credibility of the Agency in carrying out the missions and duties assigned to it in the framework of the Non-Proliferation Treaty effectively, efficiently and in an objective, professional and impartial framework.

First, we will take a look at the statement of the Director General of the Agency regarding the issue, which was released on September 16 by the Agency’s news website. several points are mentioned in this statement:

The fact of withdrawal by stipulating” decision of the I.R. of Iran to withdraw the designation of several experienced Agency inspectors assigned to conduct verification activities in Iran under the NPT Safeguards Agreement.”
The previous similar action by Iran “This follows a previous recent withdrawal of the designation of another experienced Agency inspector for Iran.”
Emphasizing on the high quality and uniqueness of refused inspectors:

” These inspectors are among the most experienced Agency experts with unique knowledge in enrichment technology.

Insisting on the adverse effect of Iran’s decision on Agency’s ability to conduct its duties:

” With today’s decision, Iran has effectively removed about one third of the core group of the Agency’s most experienced inspectors designated for Iran.”
“This measure, while formally permitted by the NPT Safeguards Agreement, has been exercised by Iran in a manner that affects in a direct and severe way the ability of the IAEA to conduct effectively its inspections in Iran.”

Condemnation of Iran’s decision:

“I strongly condemn this disproportionate and unprecedented unilateral measure which affects the normal planning and conduct of Agency verification activities in Iran and openly contradicts the cooperation that should exist between the Agency and Iran.”

Introducing the decision as one step along a wrong direction:

“This profoundly regrettable decision by Iran is another step in the wrong direction and constitutes an unnecessary blow to an already strained relationship between the IAEA and Iran in the implementation of the NPT Safeguards Agreement.”

Emphasizing on the cooperation and confidence;

“Without effective cooperation, confidence and trust will continue to be elusive and the Agency will not be in a position to discharge effectively its verification mandate in Iran and provide credible assurances that nuclear material and activities in Iran are for peaceful purposes.”

Emphasizing on the adverse effect of Iran’s decision on Agency’s ability to conduct its duties:

“Our experience demonstrates that shutting out Agency inspectors affects our essential verification mandate and is not the way of working in a cooperative manner.”

calling upon the Iranian Government to reconsider its decision and to return to a path of cooperation with the Agency and also calling upon the highest authorities of Iran to engage with me at the earliest opportunity to correct course and work with the Agency for the complete clarification of the outstanding safeguards issues.

Now, very briefly, we will review the issues raised in the Director General’s statement, taking into account the provisions of Iran’s Comprehensive Safeguard Agreement with the Agency, based on model INFCIRC 153, which is the basis of interactions between the Agency and the Non-weapon state member of the Agency and a party of Non-proliferation treaty, and express our opinion about it.

According to the INFCIRC 153, the member state has the right to refuse accepting one or a group of inspectors that member state found to be incompetent, or to assume their mission as incomplete or half-completed. and exercising of this right is unconditional. It means that the member state is completely free to decide how to implement its rights. According to paragraph one of Article 9 of the Comprehensive Safeguard Agreement, the Agency shall secure member state’s consent (in this case I.R. of Iran) for its proposed inspectors.

In addition, according to the paragraph ii(a) of the same article, if member state opposes it either at the time of the proposal of an inspector or at any other time after the selection of an inspector, the Agency must propose another inspector or inspectors to the government of state. According to paragraph three of the aforementioned article, if due to the repeated refusal of the desired state’s government to accept the inspectors proposed by the Agency, the implementation of the inspection is interrupted according to the agreement, this objection must be referred to the board of governors by the director general of the Agency.

As clearly explained and stipulated in the text of the Comprehensive Safeguard Agreement, Iran can refuse accepting inspector or inspectors without any explanation and at any time when it deems an inspector or inspector’s incompetent, and the Agency must replace another inspector or inspectors. The agreement did not set a condition for the country and instead obliged the Agency to appoint other inspectors with the consent of the other party.

In this particular case, the director general has immediately made the matter known to the media without fulfilling his duty based on the agreement, which is clearly stipulated in the text of Agreement as” the Agency shall
propose to the Government of Iran an alternative designation or designations”. Apart from whether the publication of the statement is basically in line with the regulations or not, this action of the director general can be interpreted as a kind of escape from the reality and projection to overshadow the possible criticism of not fulfilling his duty, that’s mean to introduce and propose a new inspector.

The Director General ignoring and regardless to the provisions and spirit of Article 9 of the Comprehensive safeguards Agreement, which focuses on the cooperation of the Agency for the introduction of new inspector(s), with another one escaping from the stipulated solution, and probably using ideas from paragraph three of Article 9, he noted that “Iran’s action to has been applied in a manner that directly and severely affects the Agency’s ability to effectively carry out its inspections in Iran,”. It shall be noted that provision of paragraph three of the article is about repeated refusals to admit inspectors and it is not applicable for current issue.

However, and as we know, in this particular case, there was no repetition of refusal, and if the Director General of the Agency was really trying to solve the issue, he should have to be entered into negotiations and interaction with the Iranian officials immediately after announcing Iran’s decision to replace the rejected personnel, and he could have given the safeguards department an immediate command to resolve the issue with the member country as soon as possible, basing on the paragraph II.(a) of article 9 of the agreement.

The statement in the next section condemned the action as unilateral action. This interpretation of member state’s reaction is also in contradiction with the country’s rights and has no legal basis (the agreement did not require country to coordinate its opposition with the Agency or any other institution or even to inform them about reasons of its decision). Calling Iran’s action as “disproportionate” also lacks any legal or technical basis.

Now we review one of the most important claims of the statement. The claim is about the Agency’s ability to perform its safeguards duties. In several parts of the statement director General emphasizes on the reverse impact of Iran’s action. It is stated as follows: “These inspectors are among the most experienced Agency experts with unique knowledge in enrichment technology. They have conducted essential verification work at the enrichment facilities in Iran which are under Agency safeguards.”

And that ” With today’s decision, Iran has effectively removed about one third of the core group of the Agency’s most experienced inspectors designated for Iran.” And further, it is said that ” This measure, while formally permitted by the NPT Safeguards Agreement, has been exercised by Iran in a manner that affects in a direct and severe way the ability of the IAEA to conduct effectively its inspections in Iran.”

According to the reports disseminated by the Agency, the safeguards department of the Agency uses services of about 400 inspectors from 80 different nationalities from member states to perform its safeguards duties in various safeguards fields. Of these, about 120 inspectors have been assigned to inspect and verify nuclear activities within the framework of safeguards obligations under the Comprehensive Safeguard Agreement of the Islamic Republic of Iran. That is, about one third of the total number of inspectors of the Agency are assigned for inspecting Iran’s activities, all of Iran’s facilities based on safeguards obligations are under the supervision of the Agency’s safeguards, and the number of inspectors whom, after the initial approval, Iran at last summer did not consider advisable to continue their missions in Iran, includes 8 people (according to some reports and quoted by Wall Street Journal report). If the Agency cannot perform its duties efficiently and sustainably by reducing this few number people from about 120 inspectors, the Director General’s claim means that:

The Agency is weak in managing its resources and human resources. Therefore, the agency must be accountable to the member states because despite having the necessary budget and supports, it has suffered such a fragile situation and failed in providing skilled inspectors to perform its duties.
Considering the emphasis of the Director General on the special and exclusive skills of the aforementioned inspectors(8 people), and their great influence in carrying out the Agency’s safeguards duties and the fact that the Agency uses the services of about 400 inspectors, the aforementioned emphasis means that the inspection activity of the Agency in the most sensitive part of the fuel cycle, or at least one of the most sensitive parts of the fuel cycle, is dependent on the expertise of about one-fiftieth of Agency’s inspectors. regardless of quality and effectiveness of the work.
This issue further highlights the dire and critical situation of resource management in the Agency, an issue that the Director General should be questioned by the agency’s members: According to the Agency’s 2022 Safeguards Implementation Report (SIR), at that year safeguards were implemented in 188 countries, and 230,754 significant quantities of nuclear material and 722 nuclear facilities were under IAEA safeguards supervision.
Director General’s claim regarding the great expertise of only 8 people in carrying out the Agency’s safeguards duties in Iran concerning a sensitive part of the fuel cycle, shows / indicates the poor situation of the Agency’s capacity in this important field, as a whole. Then with this in mind how can member states trust the Agency’s reports in the implementation of non-proliferation obligations, the integrity of the Agency’s information, and how can they trust the Agency’s ability to effectively monitor the large number of nuclear facilities and finally how they can rely on to the materials referred to in the annual reports.

Another point is related to the history of the issue and of Iran’s previous actions in refusing or canceling the designation proposals. If the issue has historical background and such a situation had happened before, why did the Agency not take the necessary precautions to prevent such an event from happening again? According to the available reports, in 2007, Iran refused to accept 38 inspectors, but the two sides later reached an agreement and the Agency did not face any problems in fulfilling its duties. Therefore, the recent approach and event can be attributed to the Agency’s technical insufficient capacity (in providing sufficient skilled manpower) and the weakness in conducting negotiations and interaction with the member state and inability of the Agency’s management system to transfer knowledge and experience and lessons learned. Again considering that the issue was a precedent, what was the approach of the parties in resolving the issue? and why the same approach was not used by the Agency at this time? Why the Agency’s standard safeguard measures was not used to solve the issue? Can’t this new approach be considered as a result of the Agency’s lack of technical competence and the Agency’s lack of confidence in itself and can we suppose that this manner is its attempt to hide its weakness behind media hype? This is an issue that the members should ask the director general about it.

Returning to the issue of 8 person:

According to the Wall Street Journal report, 8 inspectors whom Iran withdrawal their designation were from Germany, France and one other country. This raises a question: If there are no expert inspectors from other countries in the mentioned field in the safeguards department of the Agency, then, this actually reflects a class nature within the distribution structure of the Agency’s inspectors and their expertise and within Agency. A class nature based on which only inspectors from certain countries are accepted for sensitive issues, and inspectors from other countries cannot or could not enter the scope of inspection of some specific fields. This issue can somehow reveal the inability of the Agency in professional training of the employees of its specialized departments. Here we do not go into the issue of discrimination among employees.
If there are no qualified inspectors from other countries other than a few western countries in specific fields (in this case, enrichment), this means that the issue of neutrality cannot be properly followed by the Agency’s inspectors from the aforementioned/said western countries. In this case, instead of considering the good implementation of safeguard obligations for the integrity of the NPT and in all members, the Agency actually accomplish this role only for some countries, and others are either exceptions or the Agency cannot implement its rights and duties in an impartial, professional and objective manner, because its experts are from the same countries and of course the national obligations of the said experts cannot be ignored. Such conditions are against the charter of the treaty and the statutory and non-proliferation duties of the Agency.

Finally public disclosure of the issue in the media, on the one hand, violates the nature of confidentiality of information related to inspectors and member states, and on the other hand, it has revealed the weak points of the Agency. These mean that the real substance of the Agency’s inspection regime became victim of the director-general’s media actions. In addition, It can pose threats to the Agency’s inspectors and put them at risk of exposure to espionage agencies and the resulting consequences.

The Director General’s approach in the continuation of the statement is based on a political approach and threaten the member country. Instead of a being a technical and professional approach to resolve the issue, in cooperation with Iran, the way that is stipulated in provisions of Article 9 and Agency is obligated to do in accordance with it. This approach is not considered a positive approach from statutional point of view. Even assuming that Iran repeatedly refused to accept the designation of Agency inspectors, then according to paragraph iii(a) of article 9 such refusal shall be considered by the Board of Governors, upon referral by the Director General of the Agency, with a view to its taking appropriate action. As stated clearly in the text of the Agreement the director general should have report to the board of Governors and not to a release a public statement.

In conclusion, as it was observed, the lack of attention and maybe ignorance the spirit and provisions of the country’s comprehensive safeguards agreement has been evident in the approach of the Director General in issuing the statement. The Director General disregards the inherent rights of the member country and over the years has neglected to effectively carry out safeguard measures taking advantage of previous experiences in interactions with the country, as well as the effective use of all resources, including its human resources. He made an issue one thing that is a part of member country’s rights and used it as a basis for avoiding proper accountability to members.

Unfortunately, the aforementioned approach during the year continued, and instead of permanently solving the problem of the lack of effective use of resources, training and improving the skills of employees, and comprehensively looking at the issue of the role of inspectors in the impartial, professional, and objective implementation of Agency’s safeguards duties, the issue continues to be addressed through non-technical methods and approaches. The Director General Instead of negotiating with the member country and introducing new inspectors, repeatedly requests Iran to reconsider its decision, contrary to the provisions of Article 9.

The Director General intends to use the issue as a tool to exert political pressure on Iran by raising the issue in various forums.

It seems that instead of solving the issue technically, the Agency seeks to take advantage of the world’s political conditions to solve it through politics, which is beyond its technical competence. This way of functioning of the Agency, which is contrary to the text of the Comprehensive Agreement and the mechanisms recognized in it, will intentionally or unintentionally be noticed and misused by some countries and political institutions, because the current approach of the Agency in relation to inspections of Iran strengthens their political positions as they are against Iran and use any tools against it. The Director General should refrain from taking actions that show his lack of attention to the agreement, which is the basis for the countries’ safeguards interactions with it. The current approach of the Agency, which is willingly or unwillingly is in the direction of the interests of a group of western countries, can lead to a decrease in the Agency’s technical credibility. The only way is to return to the text of the agreement and adapt the measures to the mechanisms provided in it. Any action by the Agency that weakens the comprehensive agreement and non-proliferation mechanisms ultimately weakens international law, which is not the desire of any international organization, and this is not only specific for the Agency or restricted to it, and in any case, the demands and expectations outside the agreements and tools between International community may end up benefiting a group of countries at some point in time, but it will ultimately lead to the weakening of international institutions, in which case everyone will suffer.

References

Director General’s Statement
INFCIRC153
INFCIRC 214

Appendixes

Director General’s Statement

Today, the Islamic Republic of Iran (Iran), informed me of its decision to withdraw the designation of several experienced Agency inspectors assigned to conduct verification activities in Iran under the NPT Safeguards Agreement. This follows a previous recent withdrawal of the designation of another experienced Agency inspector for Iran.

These inspectors are among the most experienced Agency experts with unique knowledge in enrichment technology. They have conducted essential verification work at the enrichment facilities in Iran which are under Agency safeguards.

With today’s decision, Iran has effectively removed about one third of the core group of the Agency’s most experienced inspectors designated for Iran.

This measure, while formally permitted by the NPT Safeguards Agreement, has been exercised by Iran in a manner that affects in a direct and severe way the ability of the IAEA to conduct effectively its inspections in Iran.

I strongly condemn this disproportionate and unprecedented unilateral measure which affects the normal planning and conduct of Agency verification activities in Iran and openly contradicts the cooperation that should exist between the Agency and Iran.

This profoundly regrettable decision by Iran is another step in the wrong direction and constitutes an unnecessary blow to an already strained relationship between the IAEA and Iran in the implementation of the NPT Safeguards Agreement.

Without effective cooperation, confidence and trust will continue to be elusive and the Agency will not be in a position to discharge effectively its verification mandate in Iran and provide credible assurances that nuclear material and activities in Iran are for peaceful purposes.

Our experience demonstrates that shutting out Agency inspectors affects our essential verification mandate and is not the way of working in a cooperative manner.

I call upon the Iranian Government to reconsider its decision and to return to a path of cooperation with the Agency. I also call upon the highest authorities of Iran to engage with me at the earliest opportunity to correct course and work with the Agency for the complete clarification of the outstanding safeguards issues.

Rafael Mariano Grossi

Director General of the IAEA

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How to Safeguard and guarantee the credibility of the IAEA: Reviewing one last challenge

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