Questions, Treaties, and Safeguards: Iran’s Covert Nuclear Facility At Qom

Originally published here.

Last week, amidst a flurry of nuclear non-proliferation-related meetings at the UN, the United States, Great Britain, and France made the announcement that for several years, Iran has been building a covert uranium enrichment facility near Qom. Their statement was actually preceded by an announcement from the world’s nuclear watchdog, the International Atomic Energy Agency (IAEA):

… [the IAEA] issued a statement confirming that Iran had admitted in a September 21 letter to the atomic watchdog body construction of a previously undisclosed facility to manufacture nuclear fuel.

“I can confirm that on 21 September Iran informed the IAEA in a letter that a new pilot fuel enrichment plant is under construction in the country,” IAEA spokesperson Marc Vidricaire said in a statement from Vienna. “The letter stated that the enrichment level would be up to 5%,” low enriched uranium. “The Agency also understands from Iran that no nuclear material has been introduced into the facility.”

President Obama’s statement, made with President Sarkozy of France, and Prime Minister Gordon Brown, of Great Britain, emphasizes exactly what the problem is:

Now, Iran’s decision to build yet another nuclear facility without notifying the IAEA represents a direct challenge to the basic compact at the center of the non-proliferation regime. These rules are clear:  All nations have the right to peaceful nuclear energy; those nations with nuclear weapons must move towards disarmament; those nations without nuclear weapons must forsake them.  That compact has largely held for decades, keeping the world far safer and more secure.  And that compact depends on all nations living up to their responsibilities.

What is Obama talking about? Let me show you.

The Treaty on the Non-Proliferation of Nuclear Weapons

In 1968, the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) was opened for signature in the UN. The Treaty has 189 signatories, including Iran. According to Article Three of the Treaty [pdf]:

Each Non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards… for the exclusive purpose of verification of the fulfilment of its obligations assumed under this Treaty with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Procedures for the safeguards required by this Article shall be followed with respect to source or special fissionable material whether it is being produced, processed or used in any principal nuclear facility or is outside any such facility. The safeguards required by this Article shall be applied on all source or special fissionable material in all peaceful nuclear activities within the territory of such State, under its jurisdiction, or carried out under its control anywhere.

This means that Iran, as a non-nuclear weapons state and party to the Treaty, must comply with its safeguard agreements. As defined by the IAEA [pdf]:

Safeguards are a set of activities by which the IAEA seeks to verify that a State is living up to its international undertakings not to use nuclear programmes for nuclear weapons purposes. The safeguards system is based on assessment of the correctness and completeness of the State’s declarations to the IAEA concerning nuclear material and nuclear-related activities. To date, 145 States have entered into such agreements with the IAEA, submitting nuclear materials, facilities and activities to the scrutiny of IAEA’s safeguards inspectors.

Basically, these safeguards are the core of the Treaty. If you are a party to the treaty, and you do not declare activity related to enriching nuclear material, you are in violation of the Treaty.

Despite what Ahmadinejad and others are trying to tell you regarding Iran’s clandestine nuclear facility at Qom, they are wrong. There is no loophole. I cannot state it more clearly than this:

Iran violated its safeguard agreements

Nuclear non-proliferation and arms control analyst James Acton cuts through the legalese. The details of Iran’s safeguard agreements are actually laid out in the “fine print”, something known as the IAEA’s Subsidiary Arrangements:

The Subsidiary Arrangements specify when a state must report a new facility to the IAEA. “Code 3.1″ of the 1976 version of the Subsidiary Arrangements requires states to report on new facilities “normally no later than 180 days before the facility is scheduled to receive nuclear material for the first time.”

It became clear that this requirement did not provide the IAEA with sufficient time to plan and prepare for safeguards. So, in the early 1990s the IAEA modified Code 3.1. The new version requires states to report on a new facility as soon as the decision to construct it is taken.

In 2003, Iran agreed to the modified Subsidiary Arrangements, after its uranium enrichment facility at Natanz was discovered. However, in 2007, Iran told the IAEA that it was going back to the 1976 form of the Subsidiary Arrangements. Tthe IAEA basically said “no, you can’t do that”; specifically, the IAEA says [pdf]:

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.

Acton concludes with:

There can be no doubt that since February 2003 Iran has been bound by the modified Code 3.1. It was therefore required to report on its new centrifuge facility as soon as it had decided to build it—before construction had even begun.

What does this mean for the future?

Last week, I spoke with Greg Thielmann of the Arms Control Association, and asked him if he thought Iran’s building of a facility at Qom as something they did in “good faith”. He said that Iran’s attempt to explain the facility as being within the rules… :

…[is] a pretty weak case, partly because their interpretation is so far afield from common sense. They signed an agreement with the IAEA, a safeguards agreement, that included the obligation to provide information as soon as a construction decision had been made… So they’re on very shaky ground if that is their intent. I don’t see any way that they are going to very plausibly say that “what we’ve just done does not create a problem for our IAEA obligations”.

I also asked him if he thought the revelation of the facility was a game-changer. He said:

It’s a game-changer in one sense, and not in another. I think that this discovery does not mean that Iran is closer to getting a nuclear weapon, for example. They already have a lot more centrifuges at Natanz than they’re going to have at this facility, if we understand it correctly… So it’s not adding a large capability. It’s more a game-changer in the sense that the Iranians are really behind the eight ball now. The moral legitimacy of their claim — that they have a right to enrich uranium and the IAEA and the international community are unjustified in putting special obligations on Iran that they’re not putting on other countries — other countries don’t engage in this kind of deception and violation of their contractual obligations. So I think it’s a game-changer in that the interlocutors [at a UN meeting] with Iran on October 1 are going to have much stronger arguments and there’s even a chance that Russia and China will be persuaded to contemplate additional sanctions, which neither country was particularly inclined to do. So I think it will make a difference in the nature of our dialogue with Iran.

In some respects, the outing of this large facility makes some of the covert nuclear weapons options less attractive for Iran, because before, Iran could say “the Natanz facility is under IAEA control, it’s civilian, there’s no reason for suspicion”, and meanwhile spinning centrifuges at a covert facility, which could, over time, enrich uranium to the HEU level that’s used in bombs, all sort of covertly and secretly, if they really intend to do a nuclear weapon, that would be an attractive way to do it, because they would have cover with Natanz. Now that option is stripped bare, because the IAEA knows that they have this facility, so presumably, whatever they develop there will also be under IAEA safeguards, and they won’t be able to do anything more than low-enriched uranium there either, which means that there’s another obstacle to them actually taking the steps needed to get a nuclear bomb. Ironically, the exposure of this has placed another obstacle in some of the hypothetical paths that people speculate about them getting nuclear weapons.

Thielmann highlights the “good” side of the Iran revelation, if there is one. His mention of “hypothetical paths” is part of a point that that arms control experts have been making for a while: that if Iran decided to take the path to make a nuclear weapon, they would do so via a covert facility; Dr. Jeffrey Lewis discusses this in an excellent post that I strongly suggest you read.

I also spoke with Jacqueline Shire of Institute for Science and International Security, who emphasized that “there is a lot that we don’t know. We need more information now about what was going on there…”

Hopefully Iran will allow inspections of the site. They say they are going to do so.

Given the gravity of the situation, I certainly hope they do.

^{Note: Please click here for a background piece on Iran’s nuclear program.}