I’ve been digging into some of the legal foundations concerning the Iran nuclear facility question over the last couple of days. In this process I should point out that getting the facts has not been at all easy. I can say that what is clear is that recent events have been either overplayed, under-documented, or more probably a combination of both.
There is the Iran Safeguards Agreement (entered into force 15 May 1974) which contains the following article:
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.
Concrete Steps to Improve the Nonproliferation Regime
Pierre Goldschmidt, April 2009
Carnegie Endowment for International Peace