There is the Iran Safeguards Agreement (entered into force 15 May 1974) which contains the following article:

DESIGN INFORMATION
General provisions
Article 42
Pursuant to Article 8, design information in respect of existing facilities shall be provided to the Agency during the discussion of the Subsidiary Arrangements. 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.

Clearly, this article is subject to the implementation details of the Subsidiary Arrangements. However, for the moment I have not been able to track down an on-line copy of that agreement. If you do some digging around the Internet you will come across references to Code 3.1 which exist in two forms, one from 1976, and a revision established in 1990. The following quote seems to be viral when digging into the subject:

The Subsidiary Arrangements specify when a state must report a new facility to the IAEA. “Code 3.1″ of the 1976 version of the Subsidiary Arrangements 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.”

It became clear that this requirement did not provide the IAEA with sufficient time to plan and prepare for safeguards. So, in the early 1990s the IAEA modified Code 3.1. The new version requires states to report on a new facility as soon as the decision to construct it is taken.

From what I understand, Iran is and remains compliant with the 1976 version of the agreement, and that following the 1990 amendment, Iran undertook a number of reporting actions consistent with that amendment, although, IAEA minutes back to around 2003 claim Iran breaching 1990 criteria. Iran on the other-hand made the distinction between state authorisation (which they point out has never occured) as opposed to their voluntary supply of information consistent with both the 1976 and 1990 criteria. Iran claims that prior voluntary actions do not constitute state endorsement (and on this I’m tempted to side with Iran). According to James M. Acton the IAEA claim that amendments are not subject to unilateral modification.

In accordance with Article 39 of Iran’s Safeguards Agreement, agreed Subsidiary Arrangements cannot be modified unilaterally; nor is there a mechanism in the Safeguards Agreement for the suspension of provisions agreed to in Subsidiary Arrangements.

If the IAEA states that Subsidiary Arrangements cannot be modified unilaterally, how was it possible that the 1990 amendments came into force if not by a unilaterally decision of the IAEA? We should keep in mind that there may be a perfectly plausible legal basis supporting the right of the IAEA to undertake unilateral action, but for now, I have not found any supporting evidence, and frankly, I doubt it exists. It may also be the case the bilateral agreement was established but not formally ratified (a more probably scenario).

An interview on MSNBC with Scott Ritter, former Chief UN Weapons Inspector supports a growing scepticism forming in my mind. In fact I think that perhaps there are grounds to argue that IAEA processes dealing with formal adoption, resolution of amendments, and accountability provisions may not be everything we would hope them to be. But if we turn around and look towards IAEA as an improvement opportunity, one cannot ignore the Israeli issue as reported by Reuters just a few days ago (18 September 2009):

The UN nuclear assembly voted on Friday to urge Israel to accede to the Non-Proliferation Treaty (NPT) and place all atomic sites under UN inspections, in a surprise victory for Arab states.

The resolution, passed narrowly for the first time in nearly two decades, expresses concern about “Israeli nuclear capabilities” and calls on International Atomic Energy Agency chief Mohamed ElBaradei to work on the issue.

One could argue that the IAEA frameworks and the geopolitical integrity of the UN (vis-a-vis Israel) are the things to watch as this process unfolds. Even more interesting in the short-term will be the approach Iran takes in the negotiations ahead.

/Cat.

Supplementary Information

Recommended Reading

Concrete Steps to Improve the Nonproliferation Regime
Pierre Goldschmidt, April 2009
Carnegie Endowment for International Peace
Nonproliferation Program

STATEMENTS BY PRESIDENT OBAMA, FRENCH PRESIDENT SARKOZY, AND BRITISH PRIME MINISTER BROWN ON IRANIAN NUCLEAR FACILITY

Pittsburgh Convention Center
Pittsburgh, Pennsylvania

8:43 A.M. EDT

PRESIDENT OBAMA: Good morning. We are here to announce that yesterday in Vienna, the United States, the United Kingdom, and France presented detailed evidence to the IAEA demonstrating that the Islamic Republic of Iran has been building a covert uranium enrichment facility near Qom for several years.

Earlier this week, the Iranian government presented a letter to the IAEA that made reference to a new enrichment facility, years after they had started its construction. The existence of this facility underscores Iran’s continuing unwillingness to meet its obligations under U.N. Security Council resolutions and IAEA requirements. We expect the IAEA to immediately investigate this disturbing information, and to report to the IAEA Board of Governors.

Now, Iran’s decision to build yet another nuclear facility without notifying the IAEA represents a direct challenge to the basic compact at the center of the non-proliferation regime. These rules are clear: All nations have the right to peaceful nuclear energy; those nations with nuclear weapons must move towards disarmament; those nations without nuclear weapons must forsake them. That compact has largely held for decades, keeping the world far safer and more secure. And that compact depends on all nations living up to their responsibilities.

This site deepens a growing concern that Iran is refusing to live up to those international responsibilities, including specifically revealing all nuclear-related activities. As the international community knows, this is not the first time that Iran has concealed information about its nuclear program. Iran has a right to peaceful nuclear power that meets the energy needs of its people. But the size and configuration of this facility is inconsistent with a peaceful program. Iran is breaking rules that all nations must follow — endangering the global non-proliferation regime, denying its own people access to the opportunity they deserve, and threatening the stability and security of the region and the world

It is time for Iran to act immediately to restore the confidence of the international community by fulfilling its international obligations. We remain committed to serious, meaningful engagement with Iran to address the nuclear issue through the P5-plus-1 negotiations. Through this dialogue, we are committed to demonstrating that international law is not an empty promise; that obligations must be kept; and that treaties will be enforced.

And that’s why there’s a sense of urgency about the upcoming meeting on October 1st between Iran, the permanent members of the U.N. Security Council, and Germany. At that meeting, Iran must be prepared to cooperate fully and comprehensively with the IAEA to take concrete steps to create confidence and transparency in its nuclear program and to demonstrate that it is committed to establishing its peaceful intentions through meaningful dialogue and concrete actions.

To put it simply: Iran must comply with U.N. Security Council resolutions and make clear it is willing to meet its responsibilities as a member of the community of nations. We have offered Iran a clear path toward greater international integration if it lives up to its obligations, and that offer stands. But the Iranian government must now demonstrate through deeds its peaceful intentions or be held accountable to international standards and international law.

I should point out that although the United Kingdom, France, and the United States made the presentation to Vienna, that Germany, a member of the P5-plus-1, and Chancellor Merkel in particular, who could not be here this morning, wished to associate herself with these remarks.

I would now like to turn to President Sarkozy of France for a brief statement.

PRESIDENT SARKOZY: (As translated.) Ladies and gentlemen, we have met yesterday for a meeting — a summit meeting of the Security Council on disarmament and nuclear disarmament. I repeated my conviction that Iran was taking the international community on a dangerous path. I have recalled all the attempts that we have made to offer a negotiated solution to the Iranian leaders without any success, which what has been revealed today is exceptional. Following the enriching plant of Natanz in 2002, it is now the Qom one which is revealed. It was designed and built over the past several years in direct violation of resolutions from the Security Council and from the IAEA. I am expecting from the IAEA an exhaustive, strict, and rigorous investigation, as President Obama just said.

We were already in a very severe confidence crisis. We are now faced with a challenge, a challenge made to the entire international communities. The six will meet with the Iranian representatives in Geneva. Everything — everything must be put on the table now.

We cannot let the Iranian leaders gain time while the motors are running. If by December there is not an in-depth change by the Iranian leaders, sanctions will have to be taken. This is for the peace and stability. Thank you.

PRIME MINISTER BROWN: America, the United Kingdom, and France are at one. Iran’s nuclear program is the most urgent proliferation challenge that the world faces today.

As President Obama and President Sarkozy have just said, 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 whole international community, and it will harden our resolve.

Confronted by the serial deception of many years, the international community has no choice today but to draw a line in the sand. On October the 1st, Iran must now engage with the international community and join the international community as a partner. If it does not do so, it will be further isolated.

And I say on behalf of the United Kingdom today, we will not let this matter rest. And we are prepared to implement further and more stringent sanctions.

Let the message that goes out to the world be absolutely clear: that Iran must abandon any military ambitions for its nuclear program. Thank you.

THE WHITE HOUSE
Office of the Press Secretary

Tehran and Tegucigalpa are the two cities in question. In Tehran we witnessed a popular uprising against an election result that announced a landslide victory to the incumbent president, a brutal suppression, and the beginning of a political power struggle that will possibly continue for a number of years. Tegucigalpa in contrast was much more a political/industrial action to maintain a status quo, a pre-emptive action to circumvent what was perceived as a move by a rogue president to move the country to the far left.

Rahm Emanuel said [1] …

You never want a serious crisis to go to waste.

[1] YouTube: Rahm Emanuel on a serious crisis.

What he meant by that was that in crisis there is opportunity to do things you could not have done before. In Iran this principal translates into an opportunity for structural changes to the Islamic Republic of Iran, it’s relationships with the outside world, it’s position on human and moral rights, and the potential for the change to the ultimate power structure. But to be clear, the role of popular unrest in this scenario is just the trigger enabling a political opportunity. Over in Honduras the events unfolded with a pre-emptive political move, a reactive but unsuccessful counter-strike, the emergence of a mediation process, and a probably conclusion within which the exiled president will be returned to his position but stripped of any effective power, and the ultimate arbitrators will be the people of Honduras in a new election in November.

In the Honduras case, chances are that the people will get to vote in free and fair elections in just a few months from now. For Iran the situation is much less clear and projection much more uncertain.

What is common between Tehran and Tegucigalpa is that …

Crisis is the mother of political opportunity.

For more on the emerging story:

Huffington Post : News : Iran Election
New York Times : World : Countries and Territories : Iran
Wikipedia: Iranian presidential election, 2009
Twitter : #iranelection

Images: TehranLive.org