Acton, Borger wrong on Iran's second enrichment facility

This article is going to be about debunking Borger and Acton's articles about the second enrichment facility. Acton argues that Iran was in violation of its safeguards agreement by not reporting this facility to the IAEA sooner, and Borger simply parrots a whole lot of bullshit from the US government without question.

From the start, lets get something clear about the Borger article: Commercial satellite photos of this site show 1-that it was not "built underground into a mountain" and is instead located on a hilltop, and 2-far from being "secret" or "hidden", it was pretty obvious from satellite imagery, and 3- it was not heavily guarded at all (the surface-to-air missiles intended to protect the site aren't even installed yet.) In short, it wasn't the Lair of Doctor Evil as the US media portrayed it.

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Gareth Porter has another article published by Inter Press should be contrasted with the propaganda exuded by Julian Borger in the Guardian. Unlike Borger, who seems to simply parrot the US stance, Porter raises raises some pertinent questions about what the US really knew about the additional enrichment facility near Qom, and concludes that US officials were deliberately portraying the new enrichment facility in more menacing terms than the actual intelligence assessment, and the claim that Iran was "forced to come clean" is unsubstatiated.

So let me clear up some other things:

1- Iran didn't "confesss" to the site as Borger claims, because Iran never denied it in the first place. The claim that Iran only "came clean" because it knew that the US already knew about the site, which was otherwise intended to remain a secret, is simply not backed by any evidence. It is just as likely that the US used the opportunity presented by Iran's disclosure of the site as an opportunity to put a negative spin on Iran's compliance with its safeguards, by trying to portray Iran as having forcibly "confessed" to something secret.

2- Borger's says that the enrichment facility was started in 2006, supposedly at which time Iran had agreed to implement the "Modified" version of its safeguards agreement which require informing the IAEA of plans to build a site as soon as construction started, rather than the standard "180 days before introduction of nuclear material into the site" deadline, and so Iran was in violation of its safeguards even if it withdrew from them later:

The Iranian argument is that under IAEA safeguards, as long as no uranium hexafluoride is fed into centrifuges, the plant is not nuclear, and therefore Iran has no obligation to notify the IAEA until six months before uranium is introduced.

But western officials point out that at the time this enrichment plant appears to have been started, in 2006, Iran had an agreed obligation to notify the IAEA as soon as construction began on any new nuclear facility.

However, Borger is plain wrong on this point. So lets get the timeline straight:

From 1974 on, under the terms of Iran's safeguards agreement with the IAEA, Iran was only required to declare nuclear sites to the IAEA 180 days before the introduction of nuclera material into the site. As part of a good faith gesture during the Paris Agrement negotiations with the EU-3, Iran voluntarily and conditionally implemented a "Modified" version of its safeguards (as well as suspending enrichment and implementing the "additional protocol" which allows more stringent inspections) from to November 2004 to Aug 2005, when Iran announced that it would resume enrichment. Though Iran did not formally advise the IAEA specifically that they also would withdraw from implementing the subsidiary arrangements until 2007, it was clear that when Iran resumed enrichment in 2005, the subsidiary arrangements were also no longer considered to be binding by Iran.  So, in short, if Iran started construction on this site in 2006, it was AFTER Iran essentially withdrew from the provisional implementation of the Paris Agreement concessions which included the Modified Subsidiary Arrangements, in August 2005.

You see, Iran had always made it crystal clear that it suspension of enrichment and other concessions including implementation of the Modifieid safeguards was to be a temporary and non-binding gesture, pending the EU-3's submission of their proposals. The negotiations and the suspension of enrichment were supposed to go on for about 6 months as the EU3 prepared a package of proposals for Iran that would recognize Iran's right to enrichment, as the Paris Agreement explicity stated. But lacking cooperation from the US, the EU-3 dragged it out for 2 years, having rejected Iran's call to speed up the talks in Feb 2005 and many other occasions. By Fall 2005, the US had ignored Iranian offers to open its nuclear program to joint US participation (Kevin Morrison, "Iran Offers to Let US Share in its Nuclear Programme," Financial Times, 16 March 2005.) and the EU-3 had violated the Paris Agreement by continuing to demand that Iran give up enrichment permanently, and so Iran withdrew from implementing such good faith gestures.  

3- The next issue is about that Iran's claim that it can withdraw from the Modified safeguards because it never ratified the agreement, and so it remained non-binding. James Acton has a ridiculous article in which he scoffs at this Iranian claim, by saying

Iran justified its action by saying that the modification to Code 3.1 had not been ratified by the Majlis.

The problem with this argument is that, like every other state, Iran did not ask its parliament, the Majlis, to ratify its original Subsidiary Arrangements! To claim that a modification to these arrangements requires ratification is therefore absurd.

Moreover, 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 in safeguards. These improvements required modifications of the Subsidiary Arrangements, but Iran did not ask the Majlis to ratify them.

But Acton seems to be missing a brainlobe. First of all, Iran's safeguards agreement in 1974 did in fact say that it would enter into force when "Iran’s statutory and constitutional requirements for entry into force have been met." (See Article 25 of Infcir 214, 13 December 1974.) Of course, the safeguards agreement is not the same thing as the subsidiary agreement (which is a subset of the safeguards agreement, the details) but it does show that Iran did not implement the subsidiary agreement without some form of constitutional procedure. And given Iran did not ask Parliament to ratify the original subsidiary agreement way back in 1974 under very different political circumstances and regime, that doesn't mean it could never ever require such a thing ever again. Similarly, the fact that Iran did not regularly require ratification of changes to its safeguards agreement does not establish some sort of binding precedent on Iran. It could very well be that Iran did require the new subsidiary arrangements to be ratified. This is especially true when you consider the fact that the Iranians had made it EXPLICITLY clear that their implementation of other good faith gestures during the Paris Agreement negotiations, were temporary, conditional and non-binding, and Iran's parliament was very much involved in the negotiations (having passed a law obligating Iran to restart enrichment if the EU-3 continued to drag their heels by attempting to indefinitely lengthen Iran's temporary suspension of enrichment.)

But here we get to the bigger point: Iran is being daily threatened with bombardment, which the threat itself constitutes a blatant and basic violation of international law. To say that Iran must nevertheless abide by the strict meaning of the subsidiary arrangements and disclose the location of all of its intended nuclear sites is essentially asking Iran to draw up a bombing list for the US and Israel, which is ridiculous. You can't violate international law on one hand, then complain about Iran's technical violations of a subsidiary arrangement.

Comments

[PM Casey]

Thank you. Muhammad Sahimi has some observations on point at http://www.pbs.org/wgbh/pages/frontline/tehranbureau/2009/09/when-did-iran-begin-building-the-qom-nuclear-facility.html. And keep up the great work.

[PM Casey]

I am extremely sympathetic to the general point of this post that the US press, political classes and think tank hangers-on once again have seized on Iran's exercise of its basic rights under the NPT with the usual malice and bellicose exaggeration. I differ with the analysis and some of the facts, however.

First, it appears that Iran did not purport to suspend application of modified Code 3.1 to the subsidiary arrangements until March 2007. See GOV/INF/2007/8. Second, I think the post confuses the 1974 "Safeguards Agreement" (which clearly required formal legal ratification in accord with Iranian law) with the so-called "subsidiary arrangements." According to Article 39 of the Safeguards Agreement, subsidiary arrangement are contemplated to “specify ion detail … how the procedures laid down in this Agreement are to be applied.” More importantly, the Safeguards Agreement states that such subsidiary arrangements “may be extended or changed by agreement between the
Government of Iran and the Agency without amendment of this Agreement.” By obviating a requirement of “amendment,” the Safeguard Agreements contemplate that the subsidiary specifications may be changed by agreement of the parties from time to time, and become binding on them, without formal ratification.

Having said that, however, Acton’s argument remains idiotic, but for the following reason: If the Iranian parliament never “ratified” any subsidiary arrangements in the first place, then Iran was never bound by any at all. Article 40 provides that subsidiary arrangements shall enter into force at the same time as, or as soon as possible
after, the entry into force of this Agreement.” While somewhat ambiguous on whether that requires formal ratification (rather than mere adoption at or after ratification of the Safeguards Agreement), the express provision that “extension or modification” – but not “adoption”--of subsidiary arrangements may be done “without amendment” to the Safeguards Agreement strongly suggests that initial subsidiary agreements require ratification. Under this Acton lightweight’s analysis, therefore, Iran has from the outset never been required to do anything more than provide “design information in respect of the new facilities” as “early as possible before nuclear material is introduced into a new facility.”

The best answer to the dispute of the legality of Iran’s prior non-disclosure of the Qum facility may be found in its letter of 26 February 2003 to the IAEA, in which it apparently purported to agree to implement modified Code 3.1. That is, any conditions, caveats, contingencies or limitations Iran put on such acceptance necessarily would govern—as it was completely free to stick with the older six month requirements (if even that applied, as noted.) Unfortunately, neither that letter nor the IAEA’s response are available on the IAEA website or anywhere else, as far as I can see. If the letter does contain limitations (i.e., Iran will implement the modified code only as a confidence building measure, and not as an enforceable obligation), then the arguments of Acton and the other warmongering tools of his stripe are gutted, real good.

[CYRUS RESPONDS: Thank you -- I have yet to find the correspondence between Iran and the IAEA on the adoption of the modified subsidiary arrangements - it may or may not clear things up. I only mentioned the ratification of the safeguards agreement in 1974 as an indication that Iran did not willy-nilly adopt safeguards without any sort of constitutional procedure, as Acton seems to suggest. Iran's parliament was very much involved in the Paris agreement negotiations and even passed laws obligating the government to resume enrichment. While it is true that Iran formally informed the IAEA of plans to abrogate the Modified Safeguards agreement in 2007, it is apparent that Iran felt no longer bound by them by Aug 2005 when it ceased implementing all of the good-faith gestures it had previously adopted (including the Modified Safeguards.) In any case, in practical terms this amounts to a quibble over when Iran should have declared the site, and nothing more -- Iran is in "substantial compliance". There's no evidence that the site was intended to be secret, no evidence of any weapons-related work, the site isn't yet built, and once operational it will be under IAEA safeguards. Even assuming that Iran violated the Modified Safeguards, it is ridiculous to hold Iran to a strict standard of liability when in fact the EU-3 were never negotiating with Iran in good faith at that time, and when they've blatantly violated their own end of the NPT bargain and Iran is consistently threatened with attacks. I have updated the post to clarify this.]