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Has Iran Violated Its Nuclear Safeguards Obligations?

by MUHAMMAD SAHIMI in Los Angeles

27 Sep 2009 00:05Comments

[ analysis ] On Monday, Sept. 21, 2009, the Iranian government sent a letter to the International Atomic Energy Organization (IAEA) to say it was constructing a second uranium enrichment facility near the holy city of Qom, 100 miles south of Tehran.

Four days later, in a hastily arranged news conference in the midst of the G-20 summit in Pittsburgh, President Barack Obama, flanked by Prime Minister Gordon Brown of Britain and President Nicholas Sarkozy of France, declared that the United States, Britain and France had provided the Agency the day before with detailed information about the Qom facility.

According to Obama and other U.S. officials, Western intelligence agencies had been monitoring the construction of the facility for years. The President called the new development another example of Iran's violation of its international obligations with respect to its nuclear program. This was echoed by some experts, who immediately declared that the Qom facility represented a gross violation of Iran's Safeguards Agreement, which it signed in 1974.

But has Iran violated its international obligations by failing to declare to the IAEA its intention to construct the Qom facility, and forging ahead with its plan, again without declaring them to the IAEA? If it has, it would indeed represent a gross violation of Iran's international obligations. Before addressing this question, however, one should consider the following points:

(1) Despite all the rhetoric, it was Iran itself that first announced the existence of the facility.

(2) The Qom facility is not complete yet. In a press conference, Mahmoud Ahmadinejad said that Iran is expected to use the facility for uranium enrichment in 18 months. So this is no smoking gun, as some would like to pretend.

(3) Iran has not yet provided the IAEA with the details of the Qom facility. But Western intelligence agencies are estimating that the facility could house about 3000 centrifuges. If that is the true size of the facility, it would be too small for producing low-enriched uranium as fuel for nuclear reactors. That is what the Western powers consider to be the worrisome aspect of the facility. This may be clarified once Iran provides the IAEA with the details of the design of the facility and its size.

The same is true about the 40MW heavy-water nuclear reactor that Iran is constructing in Arak. While Iran states that it will be a research reactor, it is too big to be one. Research reactors are typically around 5MW, which is even too small to be useful for generating electricity.

Iran's possible violation of the Safeguards Agreement, which it signed with the IAEA in 1974, should be studied in the context of the Subsidiary Arrangements (SA) of the Agreement. Code 3.1 of the original (as specified in the 1976) Safeguards Agreement stipulated that Iran must declare to the IAEA the existence of any nuclear facility no later than 180 days before introducing any nuclear material into the facility. Thus, the construction of the Natanz facility, without notifying the IAEA, was perfectly legal.

In 1992, after Iraq's nuclear weapons program was discovered by the IAEA, the Board of Governors of the IAEA amended the Subsidiary Arrangements rules and developed the modified Code 3.1, which requires a member state to notify the IAEA "as soon as the decision to construct or to authorize construction has been taken, whichever is earlier" (emphasis mine).

It also developed the Additional Protocol to the Safeguards Agreement, which empowers the IAEA to carry out intrusive inspections of any site in Iran.

After the Natanz facility was officially declared to the IAEA in February 2003, Iran agreed, on February 26, 2003, to the modified Code 3.1. More precisely, Iran agreed to voluntarily implement the modified Code 3.1, and in December 2003, the Additional Protocol, upon ratification by the Majlis, or Iranian parliament.

In October 2005, Iran declared to the IAEA that it would no longer voluntarily implement the provisions of the Additional Protocol. (The Majles never ratified the Additional Protocol.) The reason given was that the proposal that the European Union had presented to Iran in August 2005 was totally inadequate.

From February 2003 to March 2007, Iran observed the modified Code 3.1. But, in February 2007, the Board of Governors of the IAEA sent Iran's nuclear dossier to the United Nations Security Council. This action was in violation of the IAEA statute setting forth conditions under which the Agency could refer a member state's dossier to the UNSC. This is also explained here.

In retaliation, Iran notified the IAEA in March 2007 that it would no longer voluntarily observe the modified Code 3.1, and would revert to the original Code 3.1, which only required a 180-day notification.

The IAEA responded that,

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.

The IAEA statement is correct. However, Iran responded that it had no obligation toward the modified Code 3.1, since Majles had not approved the change in the Safeguards Agreement. An international treaty signed by any state goes into effect only if it has been ratified by that nation's parliament.

Is Iran's argument valid? Some experts say no, because, according to them, Iran did not seek out Majles approval of the original Safeguards Agreement of 1974, so it should not need to ask the Majles to approve the modification. To my knowledge, the Majles did ratify both the Nuclear Nonproliferation Treaty (signed in 1967, but not ratified until 1970) and the Safeguards Agreement of 1974 (ratified in 1976).

But suppose that Majles did not ratify the original Safeguards Agreement. Even then, such arguments are absurd. Just because the Iranian government did not ask (if it indeed did not) Majles to ratify the original agreement, it does not imply that it does not have to do so again. Indeed, two developments since 1974 are key to this argument:

(1) Because some of the agreements that the Shah had signed with foreign powers, without asking the Majles to ratify, ran against national interests, the post-Revolution Constitution stipulated that all such agreements had to be ratified by the Majles.

(2) After the George W. Bush administration began pressuring Iran over its nuclear program, many Majles deputies began angrily denouncing the agreements that the administration of former president Mohammad Khatami had signed with Britain, France, Germany, and the IAEA. It demanded that they be brought before Majles for discussion and ratification, as required by the Constitution.

It was in such an environment, exacerbated by the unjustifiable action of the IAEA Board of Governors of sending Iran's nuclear dossier to the UNSC, that Iran withdrew from implementing the modified Code 3.1. Indeed, Iran has declared repeatedly that it will again begin observing the modified Code 3.1 and the Additional Protocol, if its dossier is returned to the IAEA.

Moreover, Iran -- or indeed any country -- is legally entitled to refuse to implement any treaty until its parliament ratifies it. That is beyond dispute. Even the October 2003 Saad Abad Agreement and the November 2004 Paris Agreement between Iran and Britain, France, and Germany, said specifically that Iran's implementation of the Additional protocol is voluntary, until Iran's parliament approves it.

In my view, the most crucial questions at this point are the date that the decision to construct the Qom facility was made, and the date that construction actually began.

The Obama administration has distributed among officials a document called "Public Points for Qom Disclosure" (PPQD). According to the second point in the Narrative section of the document, the facility has been under construction for several years. The question is, when did it actually start?

If the decision to construct the facility was made before February 2003
and preliminary work on it began before that date, Iran has not violated any of its obligations regarding declaring its intentions. There is nothing in the Safeguards Agreement that says that new versions of it are retroactive. If the decision was made between February 2003 and March 2007, then given that Iran had agreed to voluntarily observe the modified code 3.1, then it would represent a violation of its Safeguards obligation. If, however, the decision and construction began after March 2007, Iran has not violated its obligations.

But, U.S. officials seem to be confused about the issue. Jim Lobe of IPS reported that an official "has insisted that an additional protocol of the safeguards agreement between Iran and the IAEA that Tehran voluntarily accepted in 2003 required it to declare nuclear facilities as soon they begin construction." But there is no such protocol! There is the Additional Protocol that deals with intrusive inspections, and then there is the modified Code 3.1 that deals with the intent to construct a new nuclear facility.

The PPQD document also asserts that (point 5 of the Narrative), "The site is intended to hold approximately 3000 centrifuges.... We assess an enrichment plant containing 3000 centrifuges is not adequate to produce regular fuel reloads for civilian nuclear power plants...."; and (point 7 of the Narrative) "This facility is too small to be viable for production of fuel for a nuclear power reactor, but may be well-suited for a military purpose." The question here is when did the intelligence community reach this conclusion?

It was reported two weeks ago that the U.S. intelligence community has updated its National Intelligence Estimate of November 2007, and has reasserted that Iran has not re-started its nuclear weapons program (if it ever had one). If that is the case, why is there so much "noise" and "shock" over the revelation? The Qom facility is unfinished. Iran declared its existence. The IAEA will inspect and monitor it, and an updated NIE states that Iran does not have a nuclear weapons program.

The PPQD document also says that it must be emphasized to the public that the Qom facility also represents a violation of Iran's obligations under UNSC Resolutions 1696, 1737, 1747, and 1803. These resolutions order Iran to suspend all aspects of its nuclear program. Iran asserts that the Resolutions are illegal. There are scholars of international law that agree with Iran's assertion.

Because the government of Iran has lost legitimacy in the eyes of a majority of Iranians, the question is: Does the Islamic Republic's declaration to the IAEA about the Qom facility have anything to do with Iran's internal politics and the fragile state it is in? Or does it have to do with the P5+1 negotiations that are scheduled to begin on October 1? Or did Iran declare the existence of the facility under-construction because it realized that Western intelligence agencies had discovered it, as the PPQD document claims?

I find the last scenario implausible. Iranian leaders are not so naïve to believe that their activities are hidden from powerful U.S. satellites. Iranian leaders have also shown how capable they are of inventing any story they deem necessary to justify anything they do.

In my view, Iran's hardliners disclosed the Qom facility in advance of the October 1 negotiations with the P5+1 Group because they knew these talks would lead to dramatically increased pressure on them. To Iran's hardliners, this might be an opportunity to try to unify Iran again by rallying against a foreign threat -- a real one this time -- and to get people to forget, at least temporarily, their widespread fraud and bloody crackdown after the June 12 election.

The Western powers also disclosed their information because they view it as their leverage on Iran. This point has been emphasized by the PPQD document. The U.S. and its allies wanted to enter the negotiations armed with this.

And predictably, the warmongers have begun beating their chests with cries of "We told you so."

Even the supposedly liberal New York Times, and the editorial page of the Washington Post, which has been ultra-hawkish, are full of all sorts of claims: "Officials say that when it [the Qom facility] is operational, it could deliver the material for a bomb in a year," and "If it had not been discovered, the Qom facility could have given Iran the means for a bomb by 2011 without the world knowing about it. And if there is one clandestine facility, most likely there are others."

As the excellent Glen Greenwald of Salon.com reports,

The Chinese, one administration official said, were more skeptical, and said they wanted to look at the intelligence, and to see what international inspectors said when they investigated.

The lessons of the Iraq war still lingered.

"They don't want to buy a pig in a poke," the senior administration official said.

That's rational, isn't it? Shouldn't the American media infuse its coverage with some of that same skepticism, along with a similar desire to see actual evidence to support the claims being made? Isn't that exactly the lesson every rational person should have learned from the Iraq War?

Warmongering U.S. senators and congressmen are also hard at work, trying to steer the public and the Obama administration toward imposing crippling sanctions on Iran, and possibly military attacks. Senators Evan Bayh, Joseph Lieberman and Jon Kyle, the sponsors of the Iran sanctions bill before the U.S. Senate, declared in a statement that,

The discovery that Iran has been hiding a secret uranium enrichment facility adds fierce new urgency to the collective, comprehensive effort to stop Iran's nuclear breakout.

For years, Iran has cheated and lied to the world about its nuclear activities and its nuclear ambitions. Just last week, a secret IAEA report was leaked, describing Iran's covert nuclear weapons work. Now it has been caught red-handed once again. After today, the evidence all points to one inescapable conclusion: Iran is determined to acquire nuclear weapons.

Note that the reference to the leaked IAEA report is unsubstantiated, and the IAEA itself has denied it.

The statement continues,

Given Iran's consistent pattern of deceit, concealment, and bad faith, the only way to force Iran to abandon its nuclear ambitions is to make absolutely clear to the regime in Tehran that its current course will carry catastrophic consequences. We must leave no doubt that we are prepared to do whatever it takes to stop Iran's nuclear breakout.

In the absence of immediate compliance by Iran with the IAEA and multiple UN Security Council resolutions, we must act swiftly and decisively to impose crippling new sanctions against Iran.

In the Senate, an unprecedented bipartisan majority now supports the Iran Refined Petroleum Sanctions Act -- S. 908 -- which has attracted 76 cosponsors, including both some of the most conservative and most liberal members of this chamber. It is now urgent that our coalition move forward on this bill.

As our former colleagues Senators Chuck Robb and Dan Coats recently urged in an important bipartisan report, President Obama must also reaffirm that -- should diplomacy fail -- all options remain on the table.

These Senators are essentially calling for war with Iran.

Another unrelenting warmonger, Ileana-Ros-Lehtinen, the ranking Republican on the House Foreign Affairs Committee, said that,

The U.S. and other countries must immediately impose crippling sanctions on the Iranian regime, including cutting off of gasoline. The world cannot stand by and watch the nightmare of a nuclear-armed Iran become reality.

Another Congressman, Howard Berman (D), Chairman of the Foreign Affairs Committee and a staunch ally of AIPAC, called in a Washington Post article for "sanctions that would cause the Iranian banking system to collapse," and recommended the imposition of other severe economic sanctions.

Until recently, these officials acted like they were concerned about the human rights of the Iranian people. They must now view them as collateral damage.

Right now the Iranian people themselves have put tremendous pressure on Ahmadinejad and his government. The revelation about the Qom facility may in fact be a way of alleviating that pressure. Western powers must not act in a way to help entrench the Ahmadinejad government.

If Iran had pursued the rational policies of Mohammad Khatami regarding its nuclear program, it would have maintained its inalienable rights to the complete nuclear fuel cycle, and would not have unified the Western powers against Iran, which may lead to sanctions that hurt only ordinary Iranians.

Copyright © 2009 Tehran Bureau

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