Iran’s Suspension of The Modified Code 3.1: Exercising Right or Violating International Obligation?
Abstract: On the 15th of February 2021, Iran informed to the International Atomic Energy Agency (IAEA) it stopping of the implementation of the Modified Code 3.1, integrated within the Subsidiary Arrangements of its Safeguards Agreement between Iran and IAEA. The Director General of the IAEA has adjudged this stopping as a unilateral modification of the Subsidiary Arrangement, which is proscribed by the Safeguards Agreement. This study(paper) aims to ascertain whether the stopping of the Modified Code implementation by Iran constitutes a breach of its international duties, as alleged by the DG of International Atomic Energy Agency? But prior to delving into the subject matter and figuring out answer of question, it is essential to Know the specifics of the of Modified Code 3.1. and why Iran has stopped the implementation of the Code.
Modified Code 3.1: A General Overview
The Code 3.1 constitutes an integral component of the Subsidiary Arrangements to the Comprehensive Safeguards Agreements of the International Atomic Energy Agency (IAEA) with states non- nuclear weapons parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). Iran, as a party to this treaty, concluded this Agreement with the IAEA in 1974 and agreed to implement its Subsidiary Arrangement, including its Code 3.1, the subsequent year. The Code 3.1 sets out the timelines for the provision of design information by a State to the IAEA for facilities and information for locations outside facilities (LOFs). The Code requires states to report on new facilities “normally no later than 180 days before the facility is scheduled to receive nuclear material for the first time.[1]”
In the early of the 1990s, following the discovery of Iraq’s clandestine nuclear programs, the IAEA found that the existing safeguards arrangements were insufficient and inefficient to prevent the diversion of peaceful nuclear activities to nuclear weapons. In 1992, IAEA Board of Governors approved modification of the Code 3.1., urging state parties to the Safeguards Agreement to conform to the Modified Code. The Modified Code mandates states to report information relating to new facilities immediately upon the decision to construct. In February 2003, Iran signed and accepted the Modified Code 3.1. However, following the referral of its nuclear dossier to the United Nations Security Council, it halted its implementation in March 2007.[2] Subsequently, in July 2015, Iran, within the framework of the Joint Comprehensive Plan of Action (JCPOA), pledged to re implement the Modified Code 3.1 Contingent upon the continuance of the Safeguards Agreement.[3] Iran adhered to the Modified Code for a duration of six years; nevertheless, in February 2021, in reaction to the reinstatement of sanctions previously lifted by the United States and the European Union, Iran stopped the implementation of the Modified Code.
IAEA Reaction
The Agency regarded Iran’s unilateral suspension of the code as being in contravention of its obligations under the Safeguards Agreement. The Director-General of the Agency consistently emphasized in the reports submitted to the Board of Governors that the Subsidiary Arrangements, including the Modified Code 3.1, cannot be modified, or their implementation suspended, unilaterally by Iran. Iran accepted modified Code 3.1 in 2003 and that, according to Article 39 of Iran’s Safeguards Agreement, the Subsidiary Arrangements can only be changed by agreement with the Agency. The Joint Comprehensive Plan of Action (JCPOA) has no legal effect in this respect and consequently, Iran’s cessation of the code’s implementation cannot be justified by invoking the JCPOA’s stipulations.[4] Is the assertion made by the Director-General of the Agency correct and accurate, and does Article 39 of the Safeguards Agreement preclude Iran from suspending the implementation of the Modified Code? Furthermore, is the JCPOA unrelated to the suspension of the Code’s implementation and hence cannot be invoked as a legal justification for Iran’s suspension of the code? Analysis of the related provisions of the Safeguards Agreement and the JCPOA indicates that the Agency’s assertions and arguments in this case are not convincing and lack sufficient legal foundation.
Comprehensive Safeguards Agreement and Suspension of implementing The Modified Code 3/1
As mentioned above, the Director-General of the Agency has contended that article 39[5] of the Safeguards Agreement precludes Iran from the unilateral stopping of the Modified Code 3.1’s implementation. However, this contention does not seem correct and it is not in line with the article’s stipulations. The article inclusively states that “the Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency.” Article 39 does not encompass the unilateral suspension of the implementation of the Subsidiary Arrangements (the Modified Code), nor does it specifically stopping the implementation of the Code. The terms ‘extend’ and ‘change’ possess distinct definitions and do not encompass the concept of ‘suspension of implementation.’ Consequently, it is not a tenable interpretation of this article to assert that Article 39 imposes a prohibition on Iran’s suspension of the Code’s implementation. Article 39 lacks explicit provisions concerning the lawfulness or unlawfulness of Iran’s unilateral suspension of the code’s implementation. To ascertain the lawfulness or unlawfulness of unilateral stopping of the Modified code implementation by Iran, it is imperative to refer and consider other pertinent legal instruments.
JCPOA and Stopping of Implementation of Modified Code 3.1
The Director-General of the Agency asserted that the JCPOA bears no legal influence on Iran’s obligation to enforce Modified Code 3.1 and it cannot serve as a legal basis to vindicate the cessation of the code’s implementation by Iran. However, this argument appears to be flawed, as the JCPOA explicitly addresses the matter of the Modified Code and contains specific provisions regarding it. Paragraph 65 of JCPOA clearly reiterated that “Iran will notify the IAEA that it will fully implement the Modified Code 3.1 of the Subsidiary Arrangement to Iran’s Safeguards Agreement as long as the Safeguards Agreement remains in force”. Although Iran accepted the Modified Code 3.1 in 2003 within the stipulations of Article 39 of the Safeguards Agreement, but it appears that the its commitment to the re-implementation of the Modified code—suspended in 2007—is based upon paragraph 65 of JCPOA. The essence of incorporating this specific paragraph was to create a binding obligation for Iran within the framework of the JCPOA to re-implement the suspended Modified Code. If that rationale did not underpin the inclusion of the paragraph 65, what motivated the JCPOA parties to incorporate such a clause into the agreement? The inclusion of paragraph 65 in the JCPOA, while reaffirms it as the legal basis for Iran’s commitment to re implement the previously suspended Modified Code, but it also may imply that the prior suspension of the Modified Code’s implementation by Iran have been legally sound and justifiable.
The JCPOA and Iran’s Authority to Suspend the Modified Code 3.1
Does JCPOA permit Iran to suspend the implementation of the Modified Code 3.1? The answer to this question is positive in the provisions of clause 26[6] of JCPOA. The paragraph articulates the circumstances that permit such a suspension. The Paragraph emphasizes that should sanctions outlined in Annex II be reintroduced or reimposed by any of the JCPOA parties, Iran is entitled to regard the reintroduction or reimposition of these sanctions as justification to suspend its commitments under the JCPOA, either partially or in entirety. Iran, Subsequent to re impositions of sanctions by the United States in 2018 and the European signatories’ failure to adhere to their JCPOA commitments, incrementally diminished its JCPOA obligations and, in February 2021, ceased the implementation of the Modified Code 3.1. Consequently, Iran’s cessation of implementation the Modified Code aligns with its JCPOA commitments and does not constitute a contravention thereof. The JCPOA, being a sui generis accord and an integral component of a United Nations Security Council resolution (2231), and pursuant to Article 103[7] of the United Nations Charter, takes precedence over other treaties, including safeguards Agreements. As mentioned above, the JCPOA, under certain circumstances, has allowed the reduction and suspension of Iran’s JCPOA obligations, including its obligation to implement the Modified Code, and the Director General of the Agency cannot ignore this in evaluating the legality or illegality of the suspension of the implementation of the Code by Iran.
The Vienna Convention on the Law of Treaties and Iran’s Right to Suspend the Modified Code 3.1
Iran’s cessation of the Modified Code 3.1, as provided in paragraph 26 of the Joint Comprehensive Plan of Action (JCPOA), aligns with the overarching principles of the international law of treaties. Even in the absence of these specific paragraph within the JCPOA, Iran retains the right to cease its obligation to implement the Modified Code pursuant to the general rules of law of treaties. The JCPOA is a treaty[8] and subject to the rules of this law. Article 60[9] of the Vienna Convention on the Law of Treaties (1969) provides a party, adversely impacted by a material breach by another contracting party, the prerogative to invoke such a breach as grounds for suspending the treaty’s operation, either in totality or in part within the context of its relationship with the defaulting state(s). A material breach, as defined by Article 60, encompasses “(a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the achievement of the object or purpose of the treaty.” This stipulation, as a recognized norm of customary international law, entitles Iran, as a party affected by the material breach of the JCPOA by the United States and European nations, to suspend or stop the implementation of the JCPOA, including its paragraph 65.The withdrawal of the United States from the JCPOA in May 2018 and the subsequent re-imposition of sanctions by the United States and European countries align with the definition of a “material breach,” potentially granting Iran the right to cease the implementation of the Modified Code 3.1.
The chronicle of Iran’s engagement with the Modified Code 3.1 reveals a consistent pattern of adherence. It was not Iran that initiated the cessation of the Code’s implementation; rather, it was the adversarial actions of certain states that forced Iran to stop the implantation of the Code in 2007 and again in 2021. As a committed member of both the IAEA and the Treaty on Nonproliferation of Nuclear Weapons Iran has demonstrated no intrinsic reluctance or impediment to the Code’s implementation. The suspension of Code’s implementation is a direct consequence of the failure of certain states to uphold their JCPOA commitments. Should these states rectify their breaches and resume their responsibilities, Iran is prepared to reciprocate by reinstating its compliance with the code.
[1] IAEA Safeguards Glossary, IAEA,Vienna,2022,P.14
[2] James M. Action, Iran Violated Its International legal Obligation On Qom Facility, 2009 available in https://carnegieendowment.org/2009/09/25/iran-violated-international-obligations-on-qom-facility-pub-23884
[3] Joint Comprehensive Plan of Action (JCPOA), para 65. The Joint Comprehensive t Comprehensive Plan of Action (JCPOA), commonly known as the Iran nuclear deal, is an agreement on the Iranian nuclear program reached in Vienna on July 14, 2015, between Iran and the P5+1 (the five permanent members of the United Nations Security Council—China, France, Russia, the United Kingdom, United States plus Germany) together with the European Union.
[4] NPT Safeguards Agreement with the Islamic Republic of Iran, Report by the Director General, 26 February 2024, pp.5-6. Available in https://www.iaea.org/sites /default/files/24/03/gov2024-8.pdf
[5] Article 39: The Government of Iran and the Agency shall make Subsidiary Arrangements which shall specify in detail, to the extent necessary to permit the Agency to fulfill its responsibilities under this Agreement in an effective and efficient manner, how the procedures laid down in this Agreement are to be applied. The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of this Agreement.
[6] Article 26: The EU will refrain from re-introducing or re-imposing the sanctions that it has terminated implementing under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. There will be no new nuclear related UN Security Council sanctions and no new EU nuclear-related sanctions or restrictive measures. The United States will make best efforts in good faith to sustain this JCPOA and to prevent interference with the realization of the full benefit by Iran of the sanctions lifting specified in Annex II. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA, without prejudice to the dispute resolution process provided for under this JCPOA. The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions. Iran has stated that it will treat such a re-introduction or re-imposition of the sanctions specified in Annex II, or such an imposition of new nuclear-related sanctions, as grounds to cease performing its commitments under this JCPOA in whole or in part
[7] Article 103 of the charter: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail”.
[8] Shokrani ,Maziya.& Nasiruddeen, Muhammad, Joint Comprehensive Plan of Action (JCPOA): Interrogating the Legal Status of JCPOA and Contextualizing the Legal Implication of United States’ Withdrawal, Global Journal of Politics and Law Research, Vol.7, No.4, pp.56-70, May 2019.
[9] A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as a ground for terminating the treaty or suspending its operation in whole or in part. 2. A material breach of a multilateral treaty by one of the parties entitles: (a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either: 20 (i) in the relations between themselves and the defaulting State; or (ii) as between all the parties; (b) a party specially affected by the breach to invoke it as a ground for suspending the operation of the treaty in whole or in part in the relations between itself and the defaulting State; (c) any party other than the defaulting State to invoke the breach as a ground for suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty. 3. A material breach of a treaty, for the purposes of this article, consists in: (a) a repudiation of the treaty not sanctioned by the present Convention; or (b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty. 4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach. 5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
