Saturday, November 02, 2013

Does Iran Have the Right to Enrich Uranium? The Answer is Yes--William O. Beeman

This article was printed in an abbreviated form on Huffington Post

Does Iran Have the Right to Enrich Uranium? The Answer is Yes.
William O. Beeman
Now that serious talks with Iran over its nuclear program are underway, one seemingly insurmountable issue is whether Iran has the right to enrich uranium. The short answer is: Yes.

Those who are trying to torpedo the ongoing talks, including Israeli Prime Minister Benjamin Netanyahu, want Iran to be forced to agree to the whole monty—a complete cessation of uranium enrichment and a dismantling of all enrichment facilities. Iran claims that it has the inalienable right to enrich uranium as guaranteed in the Nuclear Non-proliferation Treaty (NPT) to which it is a signatory.

The NPT treaty language is quite clear. In Article IV of the treaty it states:
Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty[1].

The United States position as articulated by Undersecretary of State, Wendy Sherman is claiming that under the treaty Iran does not have the right to uranium enrichment because this activity is not specifically cited in the treaty. Secretary Sherman told the Senate Foreign Relations committee in answer to a question by Senator Marco Rubio in a Committee Hearing on Oct. 3 that

“it has always been the U.S. position that   that article IV of the Nuclear Nonproliferation Treaty does not speak about the right of enrichment at all [and] doesn’t speak to enrichment, period. It simply says that you have the right to research and development. And many countries such as Japan and Germany have taken that [uranium enrichment] to be a right. But the United States does not take that position. We take the position that we look at each one of these [cases]. And more to the point, the UN Security Council has suspended Iran’s enrichment until they meet their international obligations. They didn’t say they have suspended their right to enrichment, they have suspended their enrichment, so we do not believe there is an inherent right by anyone to enrichment.[2]

Secretary Sherman’s comments reveal several important errors, as well as a prejudicial view of Iran’s nuclear program.

First, Secretary Sherman downplays the serious differences in U.S. interpretations of the NPT with most of the rest of the world. The United States cannot object very strenuously to Article IV  of the treaty. U.S. objections to the idea that uranium enrichment under the treaty should be restricted are actually based on Articles I and II of the treaty, specifically cited in Article IV. Articles I and II, which read as follows.

Article I
Each nuclear-weapon State Party to the Treaty undertakes not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon State to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices.
Article II
Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices[3].

The relationship between Articles I, II and IV of the treaty has been extensively analyzed by Xinjun Zhang,  Associate Professor of Public International Law, Tsinghua University , Beijing, in an authoritative article published in 2006[4]. Zhang points out that there is a discrepancy between the U.S. interpretation of the relationship between the three clauses and that of other nations, notably European allies. The principle difference lies in the word “manufacture” in Article II. Zhang writes:
In contrast to what has been recognized as the US view that the NPT commitment not to ‘‘manufacture’’ nuclear weapons includes a prohibition on all related development, component fabrication and testing, the European view prevailing in the 1980s insisted that the ‘‘inalienable right’’ was subject to no restrictions except the explicit ban on nuclear explosion in the Treaty[5].

Zhang goes on to document that European signatories to the NPT have viewed the “inalienable right” to include complete access to the nuclear fuel cycle, including enrichment of uranium. This is also the view of former IAEA Directors Mohammad El-Baradei and Bernard Goldschmidt.. He quotes Goldschmidt in particular as asserting: “that up to the mid-1970s, the IAEA safeguards and NPT policy were free from any technical fix; that the NPT policy could be summarized in one sentence: explosion was forbidden, everything else was allowed; and that nothing in NPT prohibited Party States from following the technical path of their choice[6].”

Despite Secretary Sherman’s assertions, it should be obvious that United States government has no authority to interpret this international treaty on its own with no input or ratification from the other 189 signatories (North Korea withdrew in 2003). In fact, several attempts to modify or interpret the NPT in international review conferences, the latest in 2005, have ended in failure to make any modification[7]. Aside from that, however, if Washington takes the position that Iran does not have the right to enrich uranium under the NPT, it is acting unilaterally and is out of sync with its allies and with the very organizations it cites on this policy, such as the International Atomic Energy Association (IAEA). It is worth noting that Israel has no say in this matter, because it is not a signatory to the NPT.

As Henry Sokolski, executive director of the Washington based Nonproliferation Policy Education Center, a stringent critic of Iran’s nuclear program, had to concede in the National Review Online in 2004:

Do nations have a right under the NPT to acquire ostensibly civilian nuclear technology, if it brings them within days of having a bomb?

Iran–backed by Brazil, South Africa, Germany, the IAEA’s own director general, and, most recently, Democratic vice presidential candidate John Edwards–has always said yes. Iran’s most sensitive nuclear activities, which can generate weapons-usable fuels, they argue, are clearly backed by the NPT’s authorization of all members to develop peaceful nuclear energy as they see fit.
Whether you call this a legal loophole or, as Iranian officials insist, an inalienable right, the only way either Iran or the supporters of this view can imagine getting Iranians to desist in their nuclear brinkmanship is to sit down with them, treat them as equals, and cut a deal that addresses their concerns.[8]

Additionally, contrary to Secretary Sherman’s statement, it has not “always” been the U.S. position that the NPT does not grant the right to nations to enrich uranium. In fact, the U.S. position has only concretized during the George W. Bush administration, with specific opinions regarding uranium enrichment much more recent than that. The initial interest in the NPT and its wording seems to date from 2003 when the Bush administration, alerted by information from the anti-Iranian group, the Mujaheddin-e Khalq (MEK or MKO) then classified as a terrorist organization, provided information that Iran was engaged in nuclear development. This was, of course, not news at all, since Iran had an active nuclear energy program dating from pre-Revolutionary times in the Pahlavi era, fostered and aided by the United States. It was at this time in the wake of the tragic air attacks on the World Trade Center in New York and the Pentagon in Washington that that U.S. verbal and political attacks on Iran began to focus on its nuclear energy program.

From December 18, 2003 to January 10, 2006; Iran voluntarily suspended its uranium enrichment program as a “confidence building gesture” in adherence to an additional protocol to the NPT recommended by the IAEA. However the additional protocol had not been ratified by the Iranian Parliament. The result was no response from the United States or its allies, and increased economic sanctions for Iran. At this point the Iranian Parliament refused to ratify the additional protocol and Iran resumed uranium enrichment.

Secretary Sherman also testified that the United Nations Security Council had “suspended their [Iran’s] enrichment.” This is untrue. The Security Council does not have the power to suspend any nation’s nuclear activities. They can only request that nations do so. As an aside, Security Council Resolutions have been regularly ignored by many nations without consequence over the years. The original call for Iran to suspend enrichment of uranium as a further “confidence building measure” was articulated in Security Council resolution 1696 in July, 2006[9], which calls on Iran to implement the measures recommended by the IAEA Board of Governors, issued one month after Iran resumed uranium enrichment. The recommendation also is a request, not an outright prohibition or suspension.

[The IAEA Board of Governors] Underlines that outstanding questions can best be resolved and confidence built in the exclusively peaceful nature of Iran's programme by Iran responding positively to the calls for confidence building measures which the Board has made on Iran, and in this context deems it necessary for Iran to:
·         re-establish full and sustained suspension of all enrichment-related and reprocessing  activities, including including research and development, to be verified by the Agency;
·         reconsider the construction of a research reactor moderated by heavy water;
·         ratify promptly and implement in full the Additional Protocol; pending ratification, continue to act in accordance with the provisions of the Additional Protocol which Iran signed on 18 December 2003;
·         implement transparency measures, as requested by the Director General, including in GOV/2005/67, which extend beyond the formal requirements of the Safeguards Agreement and Additional Protocol, and include such access to individuals, documentation relating to procurement, dual use equipment, certain military-owned workshops and research and development as the Agency may request in support of its ongoing investigations[10]

Subsequent UN Resolutions regarding Iran’s nuclear program all refer back to Resolution 1696 and the stated purpose of requiring Iran to suspend enrichment for “confidence building.”

But is it now necessary for Iran to continue “confidence building” after more than seven years of no detectable nuclear weapons activity? Since 2006 there have been at least two public U.S. National Intelligence Estimate reports (2007 and 2011) that state that Iran does not have a nuclear weapons program. In addition the IAEA has, in every quarterly report since 2003 asserted that Iran has not diverted fissile material for any military purpose. Additional assessments by American and Israeli military and intelligence officials reassert that there is no evidence that Iran has a nuclear weapons program. Iran’s leaders, most notably Supreme Leader Ayatollah Ali Khamene’i have renounced the manufacture of nuclear weapons.

In answer to another question by Senator Rubio, who asked if Iran was more like Pakistan and North Korea, who are not NPT signatories, but enrich uranium; or like Germany, Japan, the Netherlands, Argentina and Brazil who are NPT signatories and who also are allowed by the world community to enrich uranium (there are fifteen other NPT non-weapons signatory nations who do so as well), Secretary Sherman said as much in her answer:

They [the Iranians] resemble themselves. They are a sui generis case. In many ways more dangerous than any country who has the ability to reprocess enrich or has nuclear weapons or seeks to get nuclear weapons[11]

In light of this information it seems clear that the United States has singled out Iran for prejudicial treatment among NPT signatories. If the United States is viewing uranium enrichment on a case by case basis, then Iran is the only nation that is being treated in this manner.
It should be clear that much of Secretary Sherman’s testimony is colored by the fact that the United States is staking out a hard-line position for the sake of bargaining with Iran. The positions of both sides could change. President Obama stated on September 27, 2013
"I've made clear that we respect the right of the Iranian people to access peaceful nuclear energy in the context of Iran meeting its obligations. So the test will be meaningful, transparent and verifiable actions, which can also bring relief from the comprehensive international sanctions that are currently in place[12]."

Secretary Sherman in her testimony pointed out that the word “access” was carefully chosen in the President’s remarks in contrast with “right,” opening the way for a diplomatic solution to U.S.-Iranian differences that would save face.

Iranian President Rouhani responded on October 3, 2013 by saying that, although Iran was not willing to concede its right to enrich uranium, Iran is open to discussing “details” of nuclear activities including the enrichment of uranium[13].

It is clear that the only way that the United States can claim that Iran does not have the right to enrich uranium is by ignoring the provisions of the NPT as they have been understood by the international community, by singling out Iran for prejudicial treatment, and by ignoring its own intelligence regarding Iran’s nuclear program.

Bottom line: At present Iran has the legal right under treaty to enrich uranium. It may be persuaded to give up that right in negotiations, but there is at present no justification for holding it to this unreasonable demand.
William O. Beeman is Professor of Anthropology at the University of Minnesota and Visiting Scholar at Stanford University for 2013-2014. He has conducted research in Iran and other areas of the Middle East for more than forty years. He is the author of The “Great Satan” vs. the “Mad Mullahs”: How the United States and Iran Demonize Each Other (Chicago, 2008)

[1] Treaty on the Non-Proliferation of Nuclear Weapons (NPT, Opened for signature: 1 July 1968; Entered into force: 5 March 1970; Duration: extended indefinitely in 1995 NPT Review and Extension Conference), 729 UNTS 161, Article IV
[2] Sherman, Wendy. 2013. Testimony before U.S. Senate Foreign Relations Committee (October 3).
[3] Treaty on the Non-Proliferation of Nuclear Weapons, Articles I and II
[4] Zhang, Xinjun. 2006. The Riddle of ‘‘Inalienable Right’’ in Article IV of the Treaty on the Non-Proliferation of Nuclear Weapons: Intentional Ambiguity Chinese Journal of International Law (2006) 5 (3): 647-662.
[5] Ibid, p. 651.
[6] Ibid. See also Zhang, Xinjun. 2009. Intentional Ambiguity and the Rule of Interpretation in Auto-interpretation: the case of “inalienable right” in NPT Article IV. Japanese Yearbook of International Law, 52: 35-66.
[7] Review Conference of the Treaty on the Non-Proliferation of Nuclear Weapons, 2 May 2005
[8] Sokolski, Henry. 2004. Nuclear Rights and Wrongs. National Review Online (September 21).>
[11] Sherman, op. cit.