Iran Has a Right to Enrich—And America Already Recognized It (Muhammad Sahimi--The National Interest)

Published on The National Interest (http://nationalinterest.org)

Source URL (retrieved on Nov 25, 2013): http://nationalinterest.org/commentary/iran-has-right-enrich%E2%80%94-america-already-recognized-it-9425

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Iran Has a Right to Enrich—And America Already Recognized It

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Muhammad Sahimi [2]

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November 19, 2013

Muhammad Sahimi [2]

The recent intensive negotiations in Geneva between Iran and P5+1—the five permanent members of the United Nations Security Council plus Germany—over Iran’s nuclear program did not result in an interim agreement. The negotiations are to be resumed in Geneva on November 20. One of the thorniest issues is Iran’s claim that, as a signatory of Nuclear Non-Proliferation Treaty (NPT), it has, under Article IV of NPT, a fundamental right to accessing all aspects of nuclear technology for peaceful uses, including uranium enrichment on its soil. So far the United States has refused to explicitly recognize Iran’s right to uranium enrichment. In her testimony before the Senate Foreign Relations Committee on October 3, Undersecretary of State Wendy Sherman, who leads the U.S. delegation in the Geneva negotiations, made the following statement [3]:

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.

Another thorny issue, which France claimed motivated its objection to the emerging accord, is the heavy water nuclear research reactor under construction in Arak (southwest of Tehran), which is not expected to come online before late 2014, at the earliest. The reactor’s spent fuel contains plutonium, which can be used for bomb making if Iran can reprocess the spent fuel. But Iran does not currently have any reprocessing facility or even the know-how to undertake such a course of action.
Who is right?
Historically, the United States recognized an Iranian right to enrich in the 1970s, although the U.S. has no authority to interpret the NPT in an arbitrary manner that suits its interests. Many legal scholars disagree with the U.S. position. Ironically, in the 1970s, the U.S. offered Iran both uranium enrichment and spent-fuel technologies.
A bit of history
As first [4]pointed out by this author in 2004 [4], the Ford administration recognized Iran’s right to uranium enrichment, fuel reprocessing, and related technologies. On March 14, 1975, in National Security Study Memorandum 219 [5], signed [5] by then deputy national security adviser Brent Scowcroft, President Gerald R. Ford directed

"a study of the issues involved in reaching an acceptable agreement with the Government of Iran which would allow nuclear commerce between the countries—specifically, the sale of the U.S. nuclear reactors and materials, Iranian investment in the U.S. enrichment facilities, and other appropriate nuclear transactions in the future."

President Ford then instructed the U.S. negotiators to offer Iran uranium enrichment and reprocessing facilities. Specifically, [6]National Security Decision Memorandum 292 [6], dated 22 April 1975, stated that the U.S. shall "permit U.S. materials to be fabricated into fuel in Iran for use in its own reactors and for pass-through to third countries with whom we have Agreements."
In addition, the U.S. offered to allow Iran to invest in its uranium enrichment facilities, for which Iran had proposed investing $2.75 billion (see, Department of State Secret Report, "Current Foreign Relations: US-Iran Commission cements bilateral ties; Iran and Iraq agree to settle differences,” which [7]can be found here [7]). This is stated in Memorandum 292 [6]: The U.S. shall "agree to set the fuel ceiling at a level reflecting the approximate number of nuclear reactors planned for purchase from the U.S. suppliers. We would, as a fallback, be prepared to increase the ceiling to cover Iran's full nuclear reactor requirement under the proviso that the fuel represents Iran's entitlement from their proposed investment in an enrichment facility in the U.S...."
The U.S. was also eager to allow Iran to reprocess the spent fuels, which Memorandum 292 also discussed: The U.S. shall "continue to require U.S. approval for reprocessing of U.S. supplied fuel, while indicating that the establishment of a multinational reprocessing plant would be an important factor favoring such approval...." The motivation for this “generosity” was that the Ford administration did not want to give up that market to France.
Then, in [8]National Security Decision Memorandum 324 [8], dated April 20, 1976 and signed by General Brent Scowcroft, President Ford authorized the following negotiation position for the US with Iran: The US side should "seek a strong political commitment from Iran to pursue the multinational/binational reprocessing plant concept, according the U.S. the opportunity to participate in the project....."
So, it is clear that if Iran does need U.S. recognition of its rights to uranium enrichment and reprocessing of spent fuel—Iran claims it claims it does not—the U.S. has already “granted” such rights and the associated technologies to Iran. That was, of course, when Shah Mohammad Reza Pahlavi, an ally of the United States who had been put back in power by the CIA coup of 1953, was Iran’s ruler.
Legal aspects
Item 1 of Article IV of the NPT states [9] that

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.

The article implies all aspect of nuclear fuel technology, including uranium enrichment. Of about 190 countries that have signed the NPT, there is not a single country, aside from the United States, Britain, France, and Israel—and the last one is not even a NPT signatory—that has claimed the rights to be anything other than inalienable.
However, as the [10]author argued in an article in 2007 [10], Iran does not even need the blessing of the NPT—or the U.S. for that matter—for its right to uranium enrichment. Neither the United Nations Security Council nor any other international organization has the authority to take away any nation's sovereign rights. Iran has such rights to exploit its natural uranium deposits, and to diversify its energy sources, including the use of nuclear energy, both of which imply that Iran has the fundamental right to uranium enrichment. These rights were not bestowed upon Iran by international agreements and treaties. The NPT simply reaffirmed such rights. These are the same rights that the US, France, China, Britain, and the then Soviet Union invoked before the NPT ever existed, in order to develop their nuclear weapons and nuclear industries. One may put this another way: these rights precede the NPT. They are also the same rights that Israel, South Africa, India, Pakistan and North Korea declared after the NPT, in order to develop their nuclear arsenals. Thus, contrary to what Wendy Sherman claimed, the Security Council does not have the authority to take such rights away.
It might be argued that [11]Article 103 of the UN Charter [11] does give the UNSC such rights. This Article states, “In the event of a conflict between the obligation of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Thus, one might argue that, because Iran's rights under the NPT have conflict with the UN Charter, the Charter prevails. However, [10]as described in the author’s 2007 article [10], Iran's rights to peaceful nuclear technology, including uranium enrichment, are not treaty-based rights; they are sovereign rights. Article IV(1) of the NPT simply recognized this right; it did not grant it to Iran. So the argument based on Article 103 is erroneous.
Professor Daniel Joyner of University of Alabama School of Law, a widely recognized authority on international law and proliferation of weapons of mass destruction, [12]puts this in another way [12]: Article 103 “does not speak to the legal obligations of the Security Council as an organ of an international organization. Nor does it speak at all to conflicts between the obligations of the UN Charter, and the rights of states in international law. So again, Article 103 of the UN Charter is inapposite and inapplicable to this question.” In addition, as quoted by Dapo Akande of St. Peter’s College, University of Oxford, [13]in his wonderful article [13], [14]Sir Gerald G. Fitzmaurice [14] (1901-1982), the distinguished legal scholar and a Judge of the International Court of Justice, has stated that

The Security Council, even when acting genuinely for the preservation or restoration of peace and security, has a scope of action limited by the State's sovereignty and the fundamental rights without which the sovereignty cannot be exercised.

The Security Council and Jus Cogens Prohibitions
As described earlier [15] by the author, even if the Security Council can take away Iran’s right, it can do so only in a manner consistent with “the Purposes and Principles of the United Nations” as well as with other international laws. For example, in a ruling in the case of Bosnia and Herzegovina vs. Yugoslavia, for which the Security Council had issued [16]Resolution 713 [16], Judge Sir Elihu Lauterpacht of the International Court of Justice, [17]declared that [17]

Nor should one overlook the significance of the provision in Article 24 of the Charter that, in discharging its duties to maintain international peace and security, the Security Council shall act in accordance with the Purposes and Principles of the United Nations.

This implies that the Security Council must not violate [18]jus cogens [18] (Peremptory Norm) [18] prohibitions, a fundamental principle of international law that acts as a norm from which no derogation is ever permitted. For example, that no law can be enacted that permits genocide is a jus cogens matter. It is a well-established principle that jus cogens prohibitions are also applicable with equal force when it is acting pursuant to Chapter VII, under which the UN Security Council issued its resolutions against Iran. For example, in the same Bosnia and Herzegovina vs. Yugoslavia case, Judge Lauterpacht stated that the UNSC could not take action under Chapter VII contrary to jus cogens: “It is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting a rule of jus cogens ...” He also declared that, “The relief which Article 103 of the Charter [of UN] may give the Security Council in case of conflict between one of its decisions and an operative treaty obligations cannot—as a simple hierarchy of norms—extend to a conflict between a Security Council Resolution and jus cogens.”
What is the relevance of jus cogens prohibitions to Iran's case? An important aspect of the UN Charter, explicitly recognized by Article 2 of the Charter, is the principle of [19]Equal Sovereignty [19]. Article 2 states that, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” The principle of Equal Sovereignty is a jus cogens matter and, hence, cannot be violated. Thus, even if the Security Council can demand that Iran suspend its enrichment program—i.e., suspend Article IV(1) of the NPT for Iran—it must do so for all other Member States of the NPT as well. But by not suspending Article IV(1) rights of all Member States of the NPT, except Iran's, the UNSC has violated the jus cogens prohibition.
Thus, it is clear that Iran has sovereign rights to uranium enrichment and the U.S. has, indeed, recognized such rights in the past.
Iran analyst Muhammad Sahimi, a  [20]Professor at the University of Southern California [20], is the editor of the website  [21]Iran News & Middle East Reports [21].
Image: Flickr/Denis Dervisevic [22]. CC BY 2.0.

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Muhammad Sahimi [2]

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Source URL (retrieved on Nov 25, 2013): http://nationalinterest.org/commentary/iran-has-right-enrich%E2%80%94-america-already-recognized-it-9425

Links:
[1] http://www.addthis.com/bookmark.php?v=250&username=nationalinterest
[2] http://nationalinterest.org/profile/muhammad-sahimi
[3] http://www.huffingtonpost.com/william-o-beeman/does-iran-have-the-right-_b_4181347.html
[4] http://www.payvand.com/news/04/dec/1186.html
[5] http://www.fordlibrarymuseum.gov/library/document/0310/nssm219.pdf
[6] http://www.fordlibrarymuseum.gov/library/document/0310/nsdm292.pdf
[7] http://nsarchive.chadwyck.com
[8] http://www.fordlibrarymuseum.gov/library/document/0310/nsdm324.pdf
[9] http://www.un.org/en/conf/npt/2005/npttreaty.html
[10] http://www.payvand.com/news/07/dec/1044.html
[11] http://www.un.org/en/documents/charter/index.shtml
[12] http://armscontrollaw.com/2013/11/07/scope-meaning-and-juridical-implication-of-the-npt-article-iv1-inalienable-right/
[13] http://journals.cambridge.org/abstract_S0020589300060450
[14] http://en.wikipedia.org/wiki/Sir_Gerald_G._Fitzmaurice
[15] http://www.google.com/url?q=http%3A%2F%2Fwww.payvand.com%2Fnews%2F07%2Fdec%2F1044.html&sa=D&sntz=1&usg=AFQjCNF68jtDen8h6X7tYiVkgy1mOHZSqQ
[16] http://www.nato.int/ifor/un/u910925a.htm
[17] http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=8d&case=91
[18] http://en.wikipedia.org/wiki/Peremptory_norm
[19] http://www.un.org/en/documents/charter/chapter1.shtml
[20] http://chems.usc.edu/faculty_staff/sahimi.htm
[21] http://www.imenews.com/
[22] http://www.flickr.com/photos/denisdervisevic/5052351594/in/photostream/
[23] http://nationalinterest.org/topic/global-governance/international-law
[24] http://nationalinterest.org/topic/global-governance
[25] http://nationalinterest.org/region/middle-east/persian-gulf/iran

The Real News Network two-part interview with Robert Kelley on Iran’s Nuclear Program November 12-13, 2013 PART 1

The Real News Network two-part interview with Robert Kelley on Iran’s Nuclear Program
November 12-13, 2013

To see a video of both interviews Please see the URL’s below

Part I: IAEA& Iran Enter New Inspections Deal, But What Does the IAEA Already Know?

PART I

JESSICA DESVARIEUX, TRNN PRODUCER: Welcome to The Real News Network. I'm Jessica Desvarieux in Baltimore.

On Monday, the UN nuclear watchdog, the International Atomic Energy Agency, announced that Iran agreed to wider scrutiny over its nuclear program. It would allow managed access by international inspectors to two key nuclear facilities, the Gachin uranium mine and the heavy-water production plant being built at Arak. This news comes on the heels of the breakdown of talks between the P5+1 group and Iran. And parties have entered the talks with the goal that if Iran provided verifiable assurances that it would not build a nuclear weapon, then the West would ease economic sanctions.

Now joining us to debunk the myths and shed some light on what inspectors know about Iran's nuclear program already is Robert Kelley. He's a nuclear engineer who has worked in the U.S. nuclear complex for more than 30 years. He assisted the IAEA as the director in the Iraq Action Team.

Thank you so much for joining us, Robert.

ROBERT KELLEY, FORMER NUCLEAR WEAPONS ANALYST, LOS ALAMOS NATIONAL LABORATORY: Good evening. How are you, Jessica?

DESVARIEUX: Doing well.

So let's first talk about what we already know about these two quote-unquote nuclear facilities--at least that's what the media is calling them. Can you please just debunk some of the myths? And tell us: what do we actually know about, let's say, for example, Gachin?

KELLEY: Well, I think the important thing is that IAEA and Iran have agreed to some symbolic gestures that replace some of the very contentious things they were doing.

So going to Gachin and going to the Arak heavy-water plant are sort of inoffensive [inaud.] that, again, are symbolic but don't have a lot of technical significance.

The first thing you need to know is they're not nuclear facilities, by legal definition. So people who are calling them nuclear facilities don't know what they're talking about.

The mine is a mine. And IAEA has been there in the past. They've inspected that mine on a voluntary basis when Iran said, okay, we don't have to take you there, but we will. That was quite a few years ago, I'm thinking four or five years ago. By going to Gachin, they will learn that, yes, it's a uranium mine. They will see on the ground what they already see in satellite images. And we all know that the facility is operating. But it's not a nuclear facility, and they've been there before. So it won't answer any of the serious questions at hand.

The second one is the Arak heavy-water production plant. IAEA also [inaud.] it's not a nuclear facility. It doesn't handle nuclear [material]. It's not nuclear by legal definitions. It's a big kind of chemical plant. It looks like an oil refinery that turns light water into heavy water by separating out the heavy molecules. But it's a chemical plant. And so in the process of going there, they will also learn that the plant is operational, that it's produced a lot of heavy water for the reactor. And that's probably something we know before we even go.

DESVARIEUX: Let's talk about Arak a little bit further. You say it's a chemical plant, but we have the French foreign minister, Laurent Fabius, who said in an interview on France Inter Radio that without an Iranian pledge to stop work at that particular Arak reactor, from which plutonium can be extracted and used for bomb-grade material, will be faced with a fait accompli. Is Arak really a threat?

KELLEY: Well, Jessica, let's draw a distinction between the two plants at Arak. One is this great big heavy-water plant that looks like a very large oil refinery. That's not a nuclear facility. It's just changing the chemical form of water for use in the reactor. The reactor is across the street. And the reactor could be used to make plutonium for weapons. In fact, many proliferants have used heavy-water reactors of about that size to make plutonium for weapons in the past.

The difference is that this time the IAEA is inspecting the facility, will be inspecting it when it's operating, and will understand what the facility's actually doing. So we're not talking about what India did or what Pakistan did or what Israel did with their 40-megawatt reactors that weren't being safeguarded. This one is safeguarded by IAEA.

The second point is that the reactor doesn't do anything without fuel, and so if you don't have fuel, the reactor doesn't run. If the reactor doesn't run, it doesn't make plutonium.

So IAEA will be extremely interested in looking at the reactor and looking at the fuel fabrication plant. By looking at the fuel fabrication plant and understanding how much fuel that plant is making and how it's being used in the reactor, IAEA will be able [inaud.] degree of certainty the reactor is being used for weapons purposes or is not.

So IAEA's being there makes the facility not really very dangerous.

DESVARIEUX: Okay. And in a New York Times article, they point out to this promise of wider scrutiny did not extend to this contentious location, the Parchin military site that's Southwest of Tehran. You've been on The Real News before, speaking about this site. Can you just get us up to speed? What do we actually know about what's going on there?

KELLEY: Well, the arguments about Parchin have really been kind of silly, and they've reached the level of a schoolyard fight. IAEA doesn't have a strong legal reason to go to Parchin. It's not a declared nuclear facility, and it's probably not a nuclear facility at all, but someone has given IAEA some intelligence saying that nuclear activities maybe went on there sometime in the past.

If you examine that intelligence, it's filled with holes. The facility that's supposed to be built there was being designed after IAEA said it was installed. There are things like that that don't make sense. There are things that say that this site has been cleaned up. And yet if you look at the satellite imagery, you can see that large parts of the site that are adjacent to the building are not being cleaned up and others are. So it makes no sense to say this is a nuclear facility.

By continuing to beat on this dead horse, IAEA has been one of the stumbling blocks in the big negotiations such as the P5+1 are having in Geneva. By getting IAEA's silly request to go to Parchin off the table, now we have a possibility that the serious partners in the negotiations in Geneva can reach accord.

DESVARIEUX: Okay. And in what way do you think this deal that the IAEA struck with Iran is a way for them to save face?

KELLEY: Well, I think it's a tremendous saving face. If you look at the communiqué that came out today, there were six things that they agreed to do. All of them were symbolic. None of them were significant. None of them impact the weapons allegations for Iran [incompr.] things in there like the IAEA will talk to Iran about the 16 nuclear reactors that they plan to build over the next 20 to 50 years. Does anybody think there's any significance in that whatsoever? It's just one of six things they can put on a list to say they're talking.

But the really sticking issues--Parchin and the possible weapons [incompr.] Iran's program have disappeared from the communiqué. And that means, I think, that both sides have agreed to step back and let the P5+1 do their job and not be embroiled by this schoolyard fight in Tehran.

DESVARIEUX: Okay. Well, Robert Kelley, in part two we'll continue this discussion, and we'll discuss how Iran can be more transparent, and if they've already been quite transparent.

Thank you so much for joining us.

KELLEY: You're welcome.

DESVARIEUX: And thank you for joining us on The Real News Network.

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

http://www.huffingtonpost.com/william-o-beeman/does-iran-have-the-right-_b_4181347.html#es_share_ended

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)

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[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 http://www.iaea.org/NewsCenter/Statements/2005/ebsp2005n006.html

[8] Sokolski, Henry. 2004. Nuclear Rights and Wrongs. National Review Online (September 21). http://www.nationalreview.com/articles/212273/nuclear-rights-and-wrongs/henry-sokolski>

[9] http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=453786b00

[10] http://www.iaea.org/Publications/Documents/Board/2006/gov2006-14.pdf

[11] Sherman, op. cit.

[12] http://www.mcclatchydc.com/2013/09/27/203494/obama-talked-to-irans-rouhani.html

[13] http://world.time.com/2013/10/02/rouhani-iran-to-discuss-nuke-details-not-rights/#ixzz2jElrhYVE