JURIST Guest Columnist Daniel Joyner of the University of Alabama School of Law says that, reflective of the central tension between nonproliferation and peaceful use, Iran has not clearly violated any legal obligations incumbent upon it in the timing of its disclosure of the existence of an intended uranium enrichment facility at Qom….

Since Iran’s disclosure of the existence of its intended uranium enrichment facility at Qom in September 2009, one of the points of debate among international observers has been whether in the timing of this disclosure, Iran violated its obligations under its legal agreements with the International Atomic Energy Agency (IAEA).

Iran argues that its disclosure was perfectly consistent with its legal obligations under its Safeguards Agreement with the IAEA (INFCIRC/214), as implemented through a Subsidiary Arrangements agreement which Iran entered into with the IAEA in 1976.[1] Under the provisions of this Subsidiary Arrangements agreement known as “Code 3.1,” Iran argues that it is only obligated to disclose the existence of new enrichment facilities “normally not later than 180 days before the facility is scheduled to receive nuclear material for the first time.”

In an opinion piece on the Carnegie Endowment’s website, however, James Acton has made the case that Iran did in fact violate its international obligations by not disclosing the existence of the Qom facility earlier.[2] He argues that Iran agreed by exchange of letters with the IAEA in 2003 to a new and revised set of Subsidiary Arrangements, known as “modified Code 3.1,” which provide that preliminary design information on new enrichment facilities is to be provided “as soon as the decision to construct or to authorize construction has been taken, whichever is earlier.”

The crux of the dispute regarding which of the versions of Code 3.1 is applicable to Iran’s actions in and around September 2009 centers on Iran’s March 29th, 2007 letter to the IAEA in which Iran declared its intention to “revert” to the original 1976 Code 3.1 formulation. The IAEA Legal Advisor's office issued an opinion in March 2009 in which it rejected Iran’s unilateral declaration of reversion, and maintained that the agreed modified Code 3.1 provisions remained in force between Iran and the IAEA. As the Legal Advisor’s office concluded:

The implementation of the provisions of Subsidiary Arrangements can only be amended or suspended with the agreement of both parties to them. . . The provisions cannot be amended or suspended unilaterally by the state. Thus Iran’s failure to provide design information in accordance with the modified Code 3.1 as agreed to by Iran in 2003 is inconsistent with Iran’s obligations under the Subsidiary Arrangements to its Safeguards Agreement.

This statement by the IAEA Legal Advisor's office is generally in harmony with Articles 54-58 of the 1969 Vienna Convention on the Law of Treaties, which address the termination or suspension of treaties. Pursuant to these rules, a bilateral treaty without an explicit termination or suspension provision normally cannot be terminated or suspended unilaterally by one party to it.

However, all of this analysis by the IAEA Legal Advisor’s office, and by commentators like James Acton, assumes that the Subsidiary Arrangements agreement is in fact a treaty, or a legally binding agreement in and of itself, and is thus on par with the Safeguards Agreement. But this is not clearly the case.

Article 39 of Iran’s Safeguards Agreement with the IAEA provides that “The Government of Iran and the Agency shall make Subsidiary Arrangements which shall specify in detail, to the extent necessary to permit the Agency to fulfill its responsibilities under this Agreement in an effective and efficient manner, how the procedures laid down in this Agreement are to be applied.” From this mention alone, it is not at all clear that the subsidiary arrangements to be subsequently concluded between Iran and the IAEA in order to implement the Safeguards Agreement are conceived of by the parties as constituting a treaty.

While terminology is not per se dispositive of legal character, the term “arrangements” is not one of the terms commonly employed by international lawyers to denote a legally binding treaty. It is more commonly used to refer to non-binding international accords, such as the Basel I & II standards issued by the Basel Committee on Banking Supervision, or the 1975 Helsinki Final Act of the Conference on Security and Cooperation in Europe.

The dispositive test for determining whether an international agreement is a legally binding treaty is found in Articles 11-17 of the 1969 Vienna Convention on the Law of Treaties. Essentially this test boils down to the intent of the parties. If the parties to an agreement intend that agreement to constitute a legally binding treaty, and if that intention is manifest through the forms and procedures for concluding the agreement, then the agreement is legally binding. However, if that intent cannot be found manifest in the forms of concluding the agreement, the agreement is not legally binding, and is simply an accord or understanding between two parties.

Looking at the provisions of Iran’s Safeguards Agreement, it is manifestly clear that the Safeguards Agreement itself was intended to be a treaty. Its entry into force as a legally binding instrument is expressly contemplated by the parties in Article 25 of the agreement. As Article 25 states:

This Agreement shall enter into force on the date upon which the Agency receives from the Government of Iran written notification that Iran’s statutory and constitutional requirements for entry into force have been met.

Furthermore, amendments to the Safeguards Agreement are provided in Article 24 only to enter into force upon conclusion of the same procedure, i.e. upon notification that the amendment has been accepted by the domestic lawmaking authorities in Iran. This formal process involving the acceptance of the agreement by domestic authorities is consistent with a manifestation of intent by Iran and the IAEA that the Safeguards Agreement itself is to be considered a legally binding instrument. Indeed, according to Article 77 of Iran’s Constitution, "International treaties, protocols, contracts, and agreements must be approved by the by the Islamic Consultative Assembly." Mindful of this limitation on their domestic authority, Iranian negotiators would have been sure to require this domestic approval as a prerequisite for the entry into force of any legally binding treaty or amendment thereto.

However, with regard to Subsidiary Arrangements, the Safeguards Agreement states in Article 39 that “The Subsidiary Arrangements may be extended or changed by agreement between the Government of Iran and the Agency without amendment of the Agreement.” While Article 40 of the Safeguards Agreement mentions the entry into force of the Subsidiary Arrangements, it gives no specifications on the process by which such entry into force is to be accomplished. 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.

Again, not all international agreements are treaties. States and other holders of international legal personality very frequently choose to conclude international agreements on a non-legally-binding basis. This is particularly true when the subject of the agreements is detailed and technical, and/or subject to foreseeable change over time in light of technological and other circumstantial dynamics. States do this for many reasons, including so that they do not have to seek the consent of their domestic lawmaking authorities for changes to such relatively minor agreements whenever they are needed.

It is, unfortunately, not possible for international observers generally to analyze either the Subsidiary Arrangements agreement between Iran and the IAEA, or the 1976, 2003, and 2007 letters exchanged between Iran and the IAEA relative to the Subsidiary Arrangements, as these documents have not been made public by the parties. This is unfortunate because these documents would provide important additional evidence regarding the intent of the parties. However, the text of the Safeguards Agreement between Iran and the IAEA seems to indicate that the Safeguards Agreement itself, which established the broad contours of the agreement between Iran and the IAEA, was intended to be a legally binding treaty, but that the Subsidiary Arrangements which were to follow by agreement between Iran and the IAEA were likely intended, at least by Iran, to comprise non-binding guidelines for implementation of the treaty, which could be modified by simple agreement between Iranian officials and IAEA officials without the requirement of consent from Iran’s domestic lawmaking authorities.

If this analysis is correct, neither Code 3.1 nor modified Code 3.1 of the Subsidiary Arrangements would constitute an international legal obligation. Thus, it would not be possible for Iran to have breached any such obligation by the timing of its disclosure regarding the existence of the Qom facility.

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. Indeed, no centrifuges had at that time been installed in the facility. Thus, again if the analysis presented herein is correct, Iran’s September 2009 disclosure of the existence of the facility to the IAEA would indeed have been consistent with all applicable legal obligations contained in its agreements with the IAEA.

It is likely impossible for general international observers to make a final determination of the legality of Iran’s disclosure of the Qom facility due to the closed source nature of several of the primary documents relevant to this analysis. However, from an analysis of the sources that are open to general review, and in particular the Safeguards Agreement itself which is the only source clearly comprising legal obligations for Iran regarding the disclosure of enrichment facilities, it is not at all clear that Iran violated any legal obligations incumbent upon it in the timing of its Qom declaration.

So what does this legal analysis mean for the relationship between Iran and the West/Israel going forward? It may serve as an illustration of the intelligence and diplomatic savvy of Iranian leaders, and their ability to go right up to the line of Iran’s treaty obligations without clearly crossing over it, and thereby deny the members of the Security Council, and Israel in particular, clear justification to significantly increase economic pressure on Iran or act militarily against it. If Iran continues this strategy of legal brinksmanship, it could even potentially achieve a viable nuclear hedging position without formally breaching its Non-Proliferation Treaty (NPT) and Safeguards Agreement legal obligations.[3]

If this is Iran’s intention, the fact that it can do so within its nonproliferation treaty obligations is a cause for concern.[4] Indeed, some have termed this ability of NPT Non-Nuclear Weapon States parties to achieve a nuclear breakout capability, while remaining formally compliant with the NPT and their Safeguards Agreement obligations, a “loophole” in the NPT normative regime.[5] In the end, however, this “loophole” has much more to do with the fundamentally dual use nature of fissile materials, and the complex reflection of this reality in the grand bargain codified by the NPT, than with poor drafting of the NPT itself. This central tension between nonproliferation and peaceful use, as well as the related tensions between these principles and the principle of disarmament, make for a thoroughly bedeviling issue area for international legal regulation. But that is the nature of the nuclear beast.

Notes

[1] "IAEA: Iran Broke Law by Not Revealing Nuclear Facility,” CNN.com, September 30, 2009

[2] “Iran Violated International Obligations on Qom Facility.” Available at http://www.carnegieendowment.org/publications/index.cfm?fa=view&id=23884

[3] Nuclear hedging means having the capacity to produce a sufficient amount of weapons grade fissile material, and the knowledge and capability to manufacture the warhead hardware of a nuclear weapon, possibly in a matter of weeks once the political decision to construct a weapon has been made. See Ariel Levite, Never Say Never Again: Nuclear Reversal Revisited, INTERNATIONAL SECURITY, Volume 27.3, Pgs. 59-88 (2002-2003).

[4] Iran is currently in violation of U.N. Security Council resolutions, including Resolution 1696 which ordered Iran to cease its uranium enrichment activities. For more on this aspect of the legal situation, see Daniel H. Joyner, INTERNATIONAL LAW AND THE PROLIFERATION OF WEAPONS OF MASS DESTRUCTION, Pg. 50 (2009).

[5] Joseph Pilat, Introduction, in Joseph Pilat, ed., ATOMS FOR PEACE: A FUTURE AFTER FIFTY YEARS?, Pg. 4 (2007).

Daniel Joyner is an Associate Professor at the University of Alabama School of Law, where he writes and researches in the area of proliferation studies. He is the author of International law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009)
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