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Has Iran Actually Violated Any Specific International Obligations Here?

[Updated 4:08 p.m., Saturday September 26: I think this post is wrong. Carnegie's James Acton explains carefully what obligations Iran has violated. My apologies.]

The disclosure of Iran’s nuclear facility under construction for years in secret near Qom — the second such undisclosed facility operated by Iran — deepens “a growing concern,” President Obama said in Pittsburgh this morning, “that Iran is refusing to live up to those international responsibilities, including specifically revealing all nuclear-related activities.” But notice that neither Obama, French President Nicholas Sarkozy nor British Prime Minister Gordon Brown accused Iran of a specific violation of its international nuclear responsibilities, and pivoted their case instead on Iran’s concealment. That’s because it’s not actually clear whether Iran has committed a specific violation of either the Nuclear Nonprofileration Treaty or its follow-on agreements negotiated separately with the International Atomic Energy Agency.

Under the NPT, each state negotiates a safeguards agreement to the IAEA so the atomic watchdog can work out where and how to establish monitoring devices like cameras at declared facilities. “Iran’s specific safeguards agreement doesn’t say anything about the time limits for the provision of design information,” says Ivanka Barzashka, an analyst with the Federation of American Scientists’ Strategic Security Program. Specific time-frames for site or design disclosure typically occur in *additional *“subsidiary arrangements,” and usually provide for disclosure around 180 days before the introduction of nuclear material into a given facility. But Iran’s subsidiary arrangement with the IAEA “has not been made public as far as I know,” Barzashka says.

That said, in its Aug. 28 report, the IAEA criticizes Iran for not adopt implementing a section of its subsidiary arrangement that dealt with design notificiation. “The absence of such information results in late notification to the Agency of the construction of new facilities and changes to the design of existing facilities,” the IAEA warned. Barzashka translates that such adoption would require Iran to notify the IAEA “of the construction of a new plant, any kind of new facilities, as soon as a decision has been authorized by the government.”

And that clearly hasn’t happened. According to an U.S. intelligence official who would only speak on background, “We’ve known about this facility for years. Over time, a clearer picture evolved of Iran’s intentions and activities at this covert site — one that, it turns out, wasn’t unknown to us.”

That’s still not the same thing as a broken obligation binding under international law. But the lack of a specific broken obligation, in turn, isn’t a reason to dismiss today’s disclosure. “It adds to the fact that Iran’s behavior is ambiguous,” Barzashka says. “The issue for Iran should be to do anything to dissuade this concern, like [implementing] further transparency measures … that should be the issue Iran should address.”

Update: Just in case, maybe this post from Barzashka and her boss, Ivan Oelrich, can clarify the point:

The latest IAEA report (GOV/2009/55) states that Iran has not yet implemented early provisions of design information in accordance with the revised Code 3.1 of the Subsidiary Arrangements General Part, which would require Iran to notify the agency of the construction of new facilities or modifications to existing ones as soon as such a decision has been authorized by the government or the plant operator. The original agreement required Iran to submit such information no later than 180 days before the introduction of nuclear material into the facility (GOV/2003/40).

So that looks like an if-then trigger for a violation. If there was some reason to suspect that Iran was going to place nuclear material for enrichment at the Qom facility within the next six months — and I’m not sure what that may have been, to be clear — then that, as well, might explain why this announcement came when it did. Thanks to reader/pal MWH for the tip.

Update 2: Much much more on that here.

*You can follow TWI on Twitter and Facebook. *

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