The breaking development that Iran has been secretly constructing a second uranium enrichment plant has dominated the news cycle of the last few days. It is critical to ask, however, whether the "secrecy" surrounding the Iranian plant is a violation of international law, or whether it constitutes a mere breach of trust between the Islamic Republic and the West. For when it comes to Iran and the West, trust has not exactly been in high supply during the last thirty years, to put it lightly.
First, it should be noted that Iran notified the IAEA of the construction of this plant on September 21, four days before the United States (flanked by France and the UK) revealed it to the world at the meeting of the G20 in Pittsburgh. Iran's disclosure is being framed by Western powers (and the mainstream media) as a preemptive attempt at damage-control, undertaken only after it had learned that the United States was aware of the plant's existence. There is another possibility, however: the United States revealed the existence of the plant in Qom only after Iran had effectively neutralized the ace it had up its sleeve. If the U.S. has known of this plant for "years" -- well before the 2007 National Intelligence Estimate which found that Iran did not have an active nuclear weapons program -- why did it not disclose it earlier, especially with Western efforts being framed as a race against the clock? As the Obama Administration has itself stated, the U.S. did not even disclose this clandestine information to its own allies until only last week.
But that is all political and beside the point; this issue should be viewed through a strictly legal lens. After all, some things that are out in the open can be illegal (e.g. the 2003 invasion of Iraq) while other things that are kept clandestine can in fact be very much legal. To strictly hold otherwise is a logical fallacy. The question is: what does the NPT legal framework say about Iran's obligations to disclose new nuclear facilities?
The IAEA and the Islamic Republic's Safeguards Agreement was signed in 1974 (Doc. INFCIRC/214). This understanding, however, never set a time-frame for when Iran must declare newly constructed facilities. Instead, the agreement set aside that issue to be addressed under a so-called "subsidiary arrangements," which were required by Article 39 of the agreement. As Iran's subsidiary agreement stands on its own, however, Iran (as with every signatory) is well within its rights to prohibit IAEA inspections of its new nuclear facilities up until six months before material is to be introduced into them.
The dangers of this loophole became apparent in 1991 when it was discovered that Iraq had devised of a plan to tamper with a fuel reactor that was under IAEA inspections in such a manner that would allow it to recover highly-enriched uranium. Iraq, in fact, had built a nuclear facility for just this purpose (which the U.S. bombed in the 1991 Gulf War).
It was in response to this international embarrassment that prompted the IAEA Board of Governors to ask all parties to the NPT to accept modifications to their Subsidiary Arrangements in 1991. The changes had the effect of eliminating the so-called “six months clause” and instead required parties to adopt provisions mandating the early disclosure of new nuclear facility designs and locations. Many states accepted and signed this modification agreement. Iran did not.
Not longer after that, the Additional Protocol was introduced. Implementation of the Protocol by member-states gave the Agency considerably more enforcement muscle. Among other things, it also required members to provide information pertaining to future processing plants to the IAEA. The rub, of course, was that it required member-states to voluntarily confer additional legal authority to the Agency past what they had already bestowed with their ratification of the NPT. While this was not an issue for most countries, it was for Iran and the Islamic Republic again did not sign.
This changed in Feburary of 2003. With reformist Mohammad Khatami still president and international suspicions towards Iran's program on the rise, the Islamic Republic voluntarily accepted the 1992 modifications to its Subsidiary Agreements, thereby eliminating the “six months clause” from its Safeguard Agreement. By October, Iran decided to voluntarily sign onto the Additional Protocol as well, and as a further step of cooperation, agreed that it would act in accordance to the Protocol in advance of its ratification by its parliament. (To be clear, Iran's parliament never ratified either the Additional Protocol or the modifications to its Subsidiary Agreement.) By a year later, Iran had completely suspended its enrichment of uranium. Worth noting, the EU3 released a statement the day of the announcement stating that they recognized Iran's "suspension is a voluntary confidence building measure and not a legal obligation.”
But EU-3 negotiations failed to make any meaningful progress in proceeding months, with a final proposal in 2005 calling on Iran to completely abandon its enrichment of uranium and its nuclear fuel cycle altogether in exchange for specific (and minor) economic benefits. Iran rejected the offer and Mahmoud Ahmadinejad was sworn in as the fourth president of the Islamic Republic four days later. Three days after that, Iran partially resumed enriching uranium.
The IAEA found Iran in noncompliance with its NPT Safeguard Agreement obligations and initially only threatened Iran with referral to the Security Council, contending that its concealment of facilities laid within the Council's competence. But this only prompted Iran to press on and by January 2006, uranium enrichment was fully resumed. In response, the IAEA Board of Governors asked Director ElBaradei to report the Islamic Republic to the Security Council, which he eventually did.
While the Board of Governors was seeking Iran's re-suspension of enrichment and its ratification of the Additional Protocol (which again, Iran had signed but never ratified), what is interesting to note is that ElBaradei’s own report immediately following Iran's referral specifically states that such transparency measures “extend beyond the formal requirements of the Safeguards Agreement and the Additional Protocol." Only two days thereafter, Iran notified the IAEA that it was suspending its voluntary commitment to the Additional Protocol, and it has not been acting under it ever since.
From this point onward, Iran has been acting strictly under the terms of its Safeguard Agreement and not under the modifications to the Subsidiary Agreement or the Additional Protocol. Since neither of the latter two were ever ratified by the Iranian Majlis, Iran was well within its rights to stop its adherence to them. In fact, Iran is one of many countries that has yet to ratify the Protocol, and the United States only ratified it this January. Going off its original Safeguard Agreement with the IAEA, then, the Islamic Republic's argument that it lawfully disclosed the Qom facility (at least 180 days before nuclear material was introduced) is not unsound.
This is not to excuse the Iranian program as peaceful by any means. Rather, it simply shows that the West does not necessarily have the legal-hook (at least with respect to the Qom facility) to adamantly claim that Iran is in breach of the NPT. In the face of "crippling sanctions" and the threat of bombing from Israel, should Iran be more transparent? Absolutely. But the law cannot (and should not) be applied so arbitrarily. Some would argue that that is one of the reasons why international law is so weak in the first place.
Rather than sabre-ratting before negotiations even begin, the 5+1 group should give Iran incentives to ratify the Additional Protocol by itself, and should not link these incentives to an overall suspension of Iran's nuclear program. Not only will this prove far more easier, but with the U.S.' ratification of the Protocol in January, an air of hypocrisy has been removed, stripping Iran of that all-too-common fallback argument. (Israel, for its part, remains completly removed from the entire NPT framework). At that point, negotiations can proceed with Iran legally committed to be more transparent under the stricter reporting requirements, undoubtedly easing Western concerns for the time being.