The Statute of the International Atomic Energy Agency is a general inter-national agreement or treaty.1
The possibility of establishing an atomic energy organization within the United Nations system by means of a resolution of the General Assembly or the Security Council had been examined by UNAEC in connection with IADA2, and it had again been mentioned as an abstract possibility in the study that the UN Secretary-General prepared during and for consideration at the 9th General Assembly.3 However, the reason for rejecting this solution in the case of IADA, i . e . , the possible subjection of the activities and parti-cularly the control functions of the organization to the Security Council veto, while not as significant in the case of the IAEA, was still sufficiently cogent to preclude the principal sponsors of the Agency from giving any serious consideration to that solution.4
5.1.2. Signature
The text of the Statute was adopted unanimously on 23 October 1956 by the Conference on the Statute, in which 81 of the 87 invited States participated.
Article XXI. A provided that starting on 26 October 1956 the Statute would be open for a period of 90 days ( i . e . , until 24 January 1957) for signature by "all States Members of the United Nations or of any of the specialized agencies" which was in effect the same formula by which the 87 States in-vited to participate in the Conference had been chosen.5 Altogether 80 States signed within the specified period and thus became eligible to become, pur-suant to Article IV. A, "initial members of the Agency" by depositing an instrument of ratification; included among these 80 were several States that had not participated in the Conference (though of course they had been among the invitees because of the substantive identity of the two invitation formulae)?
5.1.3. Authentic texts
The original copy of the Statute was, in accordance with Article XXIII, pre-pared and signed in Chinese, English, French, Russian and Spanish, the 71
five official languages of the Conference on the Statute.7 This copy was de-posited in the archives of the United States Government, which was named as depositary by Article XXI. C.
Pursuant to Article XXIII, the US State Department first sent certified copies of the Statute to all "Governments concerned"8 on 28 December 1956, together with a list of signatures up to 7 December. On 10 January 1957, the Soviet Ambassador to the United States, who had headed his Government's delegation to the Conference on the Statute, wrote to the head of the American Conference delegation that a number of substantive e r r o r s had been d i s -covered in the Russian text of the Statute (which had been prepared hurriedly by the UN Secretariat for the signature ceremony), as a result of which the signed Russian text was "no longer in conformity with the English text"; a list of 36 e r r o r s and proposed corrections was enclosed. On 26 February the Chinese Ambassador wrote the American State Department to request the correction of an error in Article V.E.9 of the Chinese text (an erroneous cross-reference to Article XVIII. B instead of to Article XVIII. C).
On 15 March the State Department sent copies of these communications to all the Governments concerned, stating that in its view the proposed corrections in the Chinese and Russian texts would "bring them into sub-stantial conformity with the English text", and requesting Governments to inform it whether they approved of the proposed corrections, "tacit approval [to] be presumed in the absence of information to the contrary received by the Secretary of State by May 1, 1957". On 12 June the Secretary of State informed the Governments that "no information to the contrary having been received, tacit approval of the proposed corrections by the Governments signatory to the Statute is presumed and the Secretary of State transmits herewith two corrected certified copies of the Statute, in the five languages in which it was done, to replace the certified copies transmitted on the date of December 28, 1956".9
Thus in two of its five languages, the authentic texts of the Statute are not identical to the ones that were actually signed in New York.
5 . 1 . 4 . Entry into force
Article XXI. E provided that the Statute (apart from Annex I, which according to Article XXI. G entered into force on 26 October 1956) should enter into force on the fulfilment of a dual condition:
(a) Ratification by 18 signatory States;
(b) Including at least three of the following five: Canada, France, USSR, United Kingdom, United States of America.
The first condition was fulfilled on 16 July 1957, on the deposit of the r a t i -fication of India; however, on that date the Soviet Union was the only one of the five named States that had ratified. The second condition was fulfilled on 29 July 1957 - by the end of that day 26 States, including all five of those especially named, had ratified. On that day the Statute thus entered into force for those 26 States.1 0
Subsequently the Statute has entered into force for additional States on the day on which they deposited their instruments of ratification (if they were signatories of the Statute) or acceptance (if their membership is based on approval by the General Conference upon the recommendation of the Board of Governors).11
5.1.5. Reservations, observations and statements
In spite of the recommendation of the General Assembly relating to inter-national treaties,12 the Statute contains no provision concerning the per-missibility (or not) of making reservations or defining the legal effect of any that might be made.
On affixing their signatures or depositing their instruments of r a t i -fication of the Statute, the representatives of a number of Governments for-mally recorded certain reservations or made other observations or state-ments. Insofar as these constituted objections to signatures affixed or rati-fications deposited on behalf of other Governments they are discussed in Chapter 6. Aside from these, several related to certain parts of the Statute.
These are recorded and commented on below, in the order of the statutory Articles to which they principally relate or refer:
5.1.5.1. Article III. B.4. (perhaps also III. B.I, XII.C and XVI. B) (i) Reservation by Switzerland
The instrument of ratification of Switzerland contains the following reser-vation:
"in depositing its instrument of ratification of the Statute of the Inter-national Atomic Energy Agency, Switzerland makes the general reser-vation that its participation in the work of the International Atomic Energy Agency, particularly as regards relations between the Agency and the United Nations, may not exceed the limits imposed by its status as a permanently neutral State. In the context of this general r e s e r -vation it makes a specific reser-vation with regard to the text of article III. B.4 of the Statute and any analogous clause which might replace or supplement these provisions in the Statute or in another agreement. "1 3
The depositary Government appears to have accepted the ratification and reservation without any objection, and notified both routinely to the Governments concerned. None of these indicated any objection.
It is not clear what the actual effect of this reservation might be - i . e . , to postulate any situation in which it might be applied. While the Statute (in Articles III. B. 4, XII. C and XVI. B. 1), as well as consequently the Agency's Relationship Agreement with the United Nations,14 requires sub-mission of reports to the Security Council in appropriate situations (if any State fails to comply with a safeguards agreement), such a report issued by the Board of Governors of the Agency would hardly compromise Switzer-land's status as a "permanently neutral State"; neither the Statute, nor the UN Charter, nor the Relationship Agreement empowers the Security Council
to direct the Agency or its members (insofar as they are not UN members) to take any particular action, and any recommendation of the Security Coun-cil could only be complied with by the Agency if in accord with the Statute and approved by a competent Agency organ. It thus seems that the Swiss reservation merely represents a reflex reaction against any mention of the Security Council in any instrument to which that Government is a party.
5 . 1 . 5 . 2. Article XII (perhaps also II and HI. A. 5) (ii) Observation by India
The Indian Embassy in Washington stated in a Note dated 16 July 1957 (the date of the deposit of India's instrument of ratification):
" 1 . If safeguards are applied by the Agency only to those States which cannot further their atomic development without the receipt of aid from the Agency or other Member States, the operations of the Agency will have the effect of dividing Member States into two categories, the smaller and less powerful States being subject to safeguards, while the Great Powers are above them. This will increase rather than decrease international tension.
"2. As long as uranium and other materials needed for the development of atomic energy are sold by Member States to certain Member States under bilateral agreements without the application of any safeguards, the sale of such materials to other States with the application of Agency safeguards will result in discrimination. " 1 5
This "observation", which is not couched in the form of a reservation, does not appear to be intended to be one, nor does it appear to have any other legal effect. Nevertheless the depositary Government registered it with the United Nations. The statement would seem to relate to all the safeguards provisions of the Statute, the most important of which is Article XII, but which also include Articles II and III. A. 5 and to a subsidiary extent XI. F. 4, XIV. B. 1(b) and XIV. C.
5.1.5.3. Article XVII
(iii) Note added to the Venezuelan signature
On 25 October 1956, the delegate of Venezuela addressed a letter to the President of the Conference on the Statute,16 which included the following:
"The Delegation of Venezuela signs this Statute ad referendum on the understanding:
"(1) With regard to article XVII thereof, the signing or ratification of this instrument by Venezuela does not signify acceptance by the latter of the jurisdiction of the International Court of Justice without Venezuela's express consent in each c a s e . "1 7
The text of this letter was not communicated to the Conference.
On the following day, the representatives of Venezuela added the follow-ing note to their signatures of the Statute:
"Ad referendum and subject to the conditions set forth in the communi-cation addressed to the President of the Conference on 25 October 1956. "18
The instrument of ratification which was deposited on behalf of Venezuela on 19 August 1957 did not contain any reference to this letter or to the note.
Perhaps this omission is due to the intervening statement by the Union of South Africa, quoted under (iv) below. In any case, the depositary Govern-ment raised no question about the Venezuelan instruGovern-ment of ratification, as it had done some weeks earlier in connection with the Argentine instrument (see (v) below) which contained a reservation with respect to the same Article.
The evident purpose of this reservation is to avoid the possible auto-matic subjection of Venezuela to the jurisdiction of the International Court of Justice pursuant to Article XVII. A of the Statute.19 The question is whether Venezuela's failure to repeat the reservation in its instrument of ratification voids the effect of mentioning it in the signature.20
(iv) Statement by the Union of South Africa
The Ambassador of the Union of South Africa stated in a Note dated 6 June 1957 (the date of the deposit of South Africa's instrument of ratification):
"While the Government of the Union of South Africa is satisfied with Article XVII as it stands and has ratified the Statute unreservedly, it will have to consider very carefully whether it would be in a position to agree to any ratifications which are made subject to reservations on this Article. " 2 1
The only legal effect this statement appears to have is to prevent the depositary Government from assuming tacit approval by South Africa of any reservation to Article XVII. As such, it may explain the depositary's action with respect to the Argentine reservation (see (v) below - which should be contrasted with its treatment of the Swiss reservation referred to under (i) above). In addition, its psychological effect may account for the failure of Venezuela to repeat in its instrument of ratification the reservation it had made in signing the Statute (see (iii) above).
(v) Reservation by Argentina
Immediately after the Conference on the Statute had unanimously adopted the Statute the representative of Argentina reserved his Government's right to refuse to place under the procedure outlined in Article XVII "any dispute involving the sovereignty of the Argentine nation".22
On 26 June 1957 the Charge d'Affaires ad interim of the Argentine Em-bassy in Washington offered to deposit an instrument of ratification contain-ing the followcontain-ing reservation:
"So far as concerns Article XVII, the Argentine Government reserves the right not to submit to the procedure indicated in that article any dispute concerning sovereignty over its territory. " 2 3
The State Department evidently refused to accept this instrument - the only case in which it has done so, at least by reason of a reservation.
On 13 August, the Argentine Ambassador attempted to clarify in a letter the meaning of the reservation. After explaining that this was merely a routine caveat always used by Argentina, he indicated:
" . . . I wish to make it perfectly clear that the reservation does not in any way imply opposition to the clause [Article XVII] itself, but rather that it has been submitted for the sole purpose of clearly establishing the interpretation which, in the opinion of the Argentine Government, should be applied to said article.
"in view of the foregoing, I wish to point out that the Argentine Govern-ment understands that the reservation does not restrict the Statute nor any of its clauses and therefore would only be invoked in the rare in-stance that the Statute might be used to the detriment of its own objec-tives to impair the irrefutable rights of Argentine territorial sover-eignty. " 2*
On 20 August the State Department communicated the text of the reservation and of the above letter to all Governments concerned, asking them to notify their acceptances of the reservation. All but nine of the Governments that had ratified the Statute before being notified of the reservation replied by the time the first regular session of the General Conference convened, and none expressed any objection. The Argentine representative was permitted to participate fully in the Conference,25 and at its third meeting, at which all the nine above-mentioned Governments were represented, the Conference unanimously approved26 the report of its Credentials Committe which stated, inter alia, that satisfactory credentials had been submitted by Argentina27
and on the same day it unanimously elected Argentina to the Board of Gover-nors.28 The depositary Government thereupon concluded,29 and subsequently informed all Governments concerned, that Argentina had become a member on that day (3 October 1957). The difference in the depositary's treatment of the Swiss and the Argentine reservations, of which the former might appear to be the more serious, can probably be explained by the South African
"statement" mentioned under (iv) above, since the Argentine reservation related to precisely the Article to which the statement referred.
The purpose of the Argentine reservation is explained in the Ambassador's letter. Legally it evidently rests on the same supposition as to the effect of Article XVTI. A as underlies the Venezuelan letter.3 0
5 . 1 . 5 . 4 . Article XVIII
(vi) Statement of interpretation and understanding by the United States of America
The instrument of ratification of the United States of America quotes the
"statement of interpretation and understanding" subject to which the Senate, on 18 June 1957, gave its advice and consent to the ratification of the Statute, namely that:
"(1) any amendment to the Statute shall be submitted to the Senate for its advice and consent, as in the case of the Statute itself, and (2) the United States will not remain a member of the Agency in the event of an amendment to the Statute being adopted to which the Senate by a for-mal vote shall refuse its advice and consent. "3 1
In the same circular note in which the Acting Secretary of State of the United States, as representative of the depositary authority, informed all Govern-ments concerned of this statement, he also indicated that:
"The Government of the United States of America considers that the above statement of interpretation and understanding pertains solely to United States constitutional procedures and is of a purely domestic character. " 32
As appears from the report of the Senate committee - the reason for the statement was not any concern about the efficacy of Article XVIII. D of the Statute (which permits any member "unwilling to accept an amendment to this Statute [to] withdraw from the Agency by notice in writing to that effect given to the depositary Government"), but a distrust of some future P r e s i -dent who, even if the Senate should formally refuse its consent to an amend-ment which nevertheless enters into force by the action of other Member States, might decline to make use of this withdrawal provision.33 As indi-cated by the Acting Secretary of State, and especially because of this official communication to all Governments concerned, the Senate's "statement" can have no automatic international effect - i . e . , the effect of withdrawing the United States from the Agency without any action on the part of the President;
at most it requires him to take the necessary action.34
(vii) Note added to the Venezuelan signature
The same Venezuelan letter of 25 October 1956 (partially quoted in (iii) above) also contained the following paragraph:
"(2) That no amendment to this instrument, as referred to in article XVIII, paragraph C, can be considered by Venezuela to be in force un-less the l a t t e r ' s constitutional provisions concerning the ratification and deposit of public treaties have previously been complied with."3 5
The note attached to the Venezuelan signatures of the Statute (quoted in (iii) above) therefore referred equally to this statement. The Venezuelan instrument of ratification, however, did not contain any reference to this reservation either.
Even assuming that the reservation attached to the Venezuelan signa-ture was not voided by the failure to repeat it in the instrument of ratifica-tion, the question i s how any effect could practically be given to it. With
the relatively minor exception of Article XIV. D (supported by Articles XVIII. E and XIX. A) concerning assessed contributions and to a lesser extent Articles VIII. A, XV. A and XV. B and perhaps XII. C ("direct curtailment or suspension of assistance being provided.. .by a member"), almost all provisions of the Statute are institutional in character ( i . e . , they prescribe how the Agency is to conduct its affairs) and do not put any obligation on Member States except as accepted by them in separate agreements with the Agency.36 With respect to an institutional provision, such as the size and composition of the Board or the powers of the General Conference, one can-not see how an amendment can be implemented if it is in force for some States but not for others. Of course, possibly, the reservation might haVe been intended as a safeguard against some amendment which would place some direct obligation on Members - though it would seem that the uncon-ditional withdrawal provision in Article XVIII. D would afford sufficient
the relatively minor exception of Article XIV. D (supported by Articles XVIII. E and XIX. A) concerning assessed contributions and to a lesser extent Articles VIII. A, XV. A and XV. B and perhaps XII. C ("direct curtailment or suspension of assistance being provided.. .by a member"), almost all provisions of the Statute are institutional in character ( i . e . , they prescribe how the Agency is to conduct its affairs) and do not put any obligation on Member States except as accepted by them in separate agreements with the Agency.36 With respect to an institutional provision, such as the size and composition of the Board or the powers of the General Conference, one can-not see how an amendment can be implemented if it is in force for some States but not for others. Of course, possibly, the reservation might haVe been intended as a safeguard against some amendment which would place some direct obligation on Members - though it would seem that the uncon-ditional withdrawal provision in Article XVIII. D would afford sufficient