The Qom Enrichment Facility: Was Iran Legally Bound to Disclose?

I wonder if the folks at the New York Times will stop automatically referring to the facility in Qom as being "clandestine" after someone reads Daniel Joyner's legal analysis of the question of whether Iran violated any law in the timing of its disclosure of the Qom facility, which concludes: "it is not at all clear that Iran violated any legal obligations incumbent upon it in the timing of its Qom declaration."

The operative point of the analysis is this:

"This absence of specification regarding the process for entry into force of the Subsidiary Arrangements, in light of the detailed specification of the process for entry into force of the Safeguards Agreement and amendments to it, including the constitutionally required consent of the Iranian domestic lawmaking institutions, is probative textual evidence that Iran did not intend for the Subsidiary Arrangements to be legally binding per se. Rather, the Subsidiary Arrangements would appear to be more accurately characterized as agreed guidelines or understandings for implementation of the Safeguards Agreement by the parties, of a non-binding legal character...

If the various Subsidiary Arrangements agreements between Iran and the IAEA were in fact non-legally-binding in character, the only legal obligation with regard to the disclosure of design details for enrichment facilities incumbent upon Iran would be the provision in Article 42 of its Safeguards Agreement which states that “such information shall be provided as early as possible before nuclear material is introduced into a new facility.”

It is uncontested that no nuclear material had, as of September 2009, been introduced into the Qom facility."

Comments

[MoonofA]

Cyrus, you want to keep this link handy with regards to Code 3.1 and the "when has Iran to inform" questions:

http://www.armscontrolwonk.com/2218/iaea-legal-adviser-on-arak-darkhovin

The IAEA's own legal adviser found that the question of providing of design information etc as it differs between new Code 3.1 (the IAEA's questionable position) and old Code 3.1 (Iran's position) is too murky to be judged "non-compliance".
http://www.armscontrolwonk.com/file_download/162/Legal_Adviser_Iran.pdf

Please check especially point 4 of the analysis in the above document.

/quote/
4. While Iran's action are inconsistent with its obligations under the Subsidiary Arrangements to its Safeguards Agreement, this should be seen in the proper context. Given the fact that Article 42 is broadly phrased and that the old version of Code 3.1 had been accepted as complying with the requirements of this Article for some 22 years prior to the Board's decision in 1992 to modify it as indicated above, it is difficult to conclude that providing information in accordance with the earlier formulations in itself constitutes non-compliance with, or a breach of, the Safeguard Agreement as such. It should also be noted that currently more than 60 States with operative SQPs based on the old standard text of SQPs, and 27 States party the NPT but without a CSA in force, are not yet bound by provisions similar to that in the modified Code 3.1.
/endquote/