by Rob Grace
As far as I know, the fierce debate raging about whether Iran's newly revealed in-the-works nuclear facility near Qom is legal is difficult to resolve. Whereas Obama stated that it "represents a direct challenge to the basic foundation of the nonproliferation regime," and Gordon Brown declared, "The level of deception by the Iranian government, and the scale of what we believe is the breach of international commitments, will shock and anger the entire international community," Ahmadinejad claimed, "What we did was entirely legal."
It's a complex issue involving numerous legal agreements made over the course of several decades. It starts with NPT Article IV, which acknowledges "the inalienable right of all Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes..." To ensure a nuclear program's benign end, NPT Article III requires signatories "to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency ..." Iran under the Shah signed the NPT in 1968, ratified it in 1970, and completed a Safeguards Agreement with the IAEA in 1974. The Safeguards Agreement's Article 42 states that "The time limits for the provision of design
information in respect of the new facilities shall be specified in the
Subsidiary Arrangements and such information shall be provided as early
as possible before nuclear material is introduced into a new facility."
The Subsidiary Arrangements, as far as I know, were not made public, which is perhaps one source of the confusion. However, according to IAEA reports such as this one, Iran completed a Subsidiary Arrangement with the IAEA in 1976 which requires Iran to submit to the IAEA design information on new nuclear facilities "not later than 180 days before the facility is scheduled to receive nuclear material for the first time." In 2003, Iran and the IAEA agreed to a modified version of this provision that required Iran to submit design information as soon as the Iranian government decided to construct a new facility. However, in 2007 Iran informed the IAEA it was reverting back to the 1976 version of the agreement, claiming that Iran was not bound by the revised provision because the Iranian parliament had never ratified it. Basically, the nature of how Subsidiary Arrangements enter into force determines whether Iran's failure to disclose its nuclear facility near Qom was legal.
As far as I can tell, Iran's Safeguards Agreement does not specify how the Subsidiary Arrangements enter into force. The process for enacting amendments is made more clear. Article 25 of Iran's Safeguards Agreement states, "This agreement shall
enter into force on the date upon which the Agency receives from the
Government of Iran written notification that Iran's statutory and
constitutional requirements for entry into force have been met," and
Article 24 states, "Amendments to this Agreement shall enter into force
in the same conditions as entry into force of the Agreement itself."
In other words, amendments do not enter into force until they have
officially become law in Iran, meaning they need to be ratified by the Iranian parliament (See the Iranian Constitution's Article 77, which states, "International treaties, protocols, contracts, and agreements must be approved by the by the Islamic Consultative Assembly.") The Safeguards Agreement makes a distinction between amendments and Subsidiary Arrangements, stating in Article 39, "The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of the Agreement." However, the Safeguards Agreement doesn't specify how the Subsidiary Arrangements enter into force. Given the Iranian Constitution's Article 77, though, it would seem that Subsidiary Arrangements require parliamentary approval.
However, apparently Iran has not previously acted as if Subsidiary Arrangements require parliamentary approval. James Acton of the Carnegie Endowment for International Peace notes:
Iran - like every other state - modifies its Subsidiary Arrangements regularly, without asking for parliamentary ratification. For example, as the size of its enrichment plant at Natanz has grown, Iran has (reluctantly) agreed to various improvements of the Subsidiary Arrangements, but Iran did not ask the Majlis to ratify them.
This fact is pretty damning to Iran's legal case. Additionally, discussion about Iran's Safeguards Agreement and the Subsidiary Arrangements is perhaps irrelevant because Iran is bound by several UN Security Council resolutions to ratify the IAEA's Additional Protocol, which would require early notification of facility design information. Iran has, of course, contested the legality of the IAEA's referral of the matter to the Security Council, claiming that the referral was "in contravention with the provision of the Statute of the IAEA and the NPT." There is, of course, also a strong case against this claim.
It would be interesting for someone to ask Ahmadinejad, or some other Iranian government official, why he believes the 2003 Subsidiary Arrangement required parliamentary approval while the other Subsidiary Arrangements did not. Until then, I'm alright supporting the argument of Western leaders that until last Monday, Iran was violating its Subsidiary Arrangement by not notifying the IAEA of its nuclear facility near Qom.
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