Reaching Critical Will

Non-Proliferation Treaty (NPT)

Conference on Disarmament

General Assembly First Committee

UN Disarmament Commission

Special Session on Disarmament

Nuclear Iran?
Key Issues

There are several key issues that make the Iran nuclear issue so complex.

(1) The "inalienable right" to produce nuclear energy
Under the Non-Proliferation Treaty (NPT), all countries are allowed to develop nuclear power for peaceful uses, under the inspection of the IAEA. This is discussed in the preamble of the NPT, wherein the States Parties to the Treaty commit to:

"Affirming the principle that the benefits of peaceful applications of nuclear technology, including any technological by-products which may be derived by nuclear-weapon States from the development of nuclear explosive devices, should be available for peaceful purposes to all Parties of the Treaty, whether nuclear-weapon or non-nuclear weapon States,"

and are

"Convinced that, in furtherance of this principle, all Parties to the Treaty are entitled to participate in the fullest possible exchange of scientific information for, and to contribute alone or in cooperation with other States to, the further development of the applications of atomic energy for peaceful purposes."

This right is further entrenched in Article IV of the Treaty, which states that:

1. 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.

2. All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also cooperate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.

All States Parties are also allowed to enrich uranium to the level needed to make fuel for nuclear power, again under the IAEA's monitoring regime. Most states get such fuel from a few supplier countries under strict regulations. Iran has indicated that it needs to be able to develop this process itself because it cannot trust outside suppliers. Please see Iran’s working paper on “Peaceful use of nuclear energy,” submitted to the Main Committee III of the 2005 NPT Review Conference, 19 May 2005.

(2) Nuclear energy processes are dual-use technologies
The same technology used in nuclear power reactors for peaceful energy purposes can be used to enrich uranium further in order to make nuclear weapons. In additon, the heavy-water reactor in Arak could provide plutonium, which is an alternative source of fuel to highly-enriched uranium for a nuclear explosion. For an explanation of how uranium and plutonium can be converted from a peaceful energy source to a nuclear weapon, please see RCW's nuclear fuel cycle.

(3) Legal discrepencies
The NPT entered into force in Iran in 1974, followed by the Safeguards Agreement. After the Islamic Revolution in 1979, Iran sustained its membership with the NPT. States Parties to the NPT agree to several verification and safeguard measures to ensure compliance. In Article III,

"Each non-nuclear-weapon State party to the Treaty undertakes to accept safeguards, as set forth in agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency's safeguards system, for the exclusive purpose of verification of the fulfillment 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."

The IAEA Safeguards System and Additional Protocols are intended to grant the IAEA authority to inspect and report on the nuclear activities and developments of every State Party. They are a blend of verification activities, compliance assurances, confidence-building measures, and early warning mechanisms. Article 28 of the Iran Safeguards Agreement explains that “the objective of the safeguards procedures set forth in this part of the Agreement is the timely detection of diversion of significant quantities of nuclear material from peaceful nuclear activities to the manufacture of nuclear weapons or of other nuclear explosive devices or for purposes unknown, and deterrence of such diversion by the risk of early detection.” The Safeguards Agreement, along with the Additional Protocol and the IAEA Statute, grants the IAEA Board the authority to refer issues of noncompliance to the Security Council when deemed necessary.

In its resolution of 24 September 2005, the IAEA Board pointed out that “Iran’s policy of concealment has resulted in many breaches of obligation to comply with its Safeguards agreement,” though “good progress has been made in Iran’s correction of the breaches and in the Agency’s ability to confirm certain aspects of Iran’s current declarations.” However, it “finds that Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement, as detailed in GOV/2003/75, constitute non compliance in the context of Article XII.C of the Agency’s Statute.”

In addition, after inspections, the Director General of the IAEA can make resolutions which call for certain measures to be followed by the particular State Party, such as the suspension of certain activities (i.e. uranium enrichment). However, since enriching uranium is Iran’s right, compliance with these requests is not legally binding but is a voluntary confidence building measure. In the Iran case, the E3 (France, Germany, and the UK) and Iran adopted the Paris Agreement, under which Iran “decided, on a voluntary basis, to continue and extend its suspension to include all enrichment related and reprocessing activities, and specifically: the manufacture and import of gas centrifuges and their components; the assembly, installation, testing or operation of gas centrifuges; work to undertake any plutonium separation, or to construct or operate any plutonium separation installation; and all tests or production at any uranium conversion installation.” While the IAEA can verify and monitor this suspension, it does not have legal authority to enforce it.

Therefore, as Michael Spies of the Lawyers' Committee on Nuclear Policy (LCNP) points out in his legal analysis of the Iranian situation, “the hard-line position of the US and EU is largely at odds with the statutory powers of the IAEA, which prevent it from legally enforcing the terms of the Paris Agreement. The agreement “invites” the IAEA to verify and monitor the suspension of enrichment related activities. . . . The agreement relegates the IAEA to the role of a neutral and ostensibly impartial observer.

“Moreover, the Paris Agreement is not a binding treaty. The text contains no expression that the state parties consent to be bound by the agreement terms, thus depriving the text from possessing any legally binding character. Specifically the agreement lacks the language which confers binding legal status unto treaties, such as provisions for ratification and deposit. Under this view the agreement is analogous to a memorandum of understanding or a statement of principles, to be used to guide a framework for continued negotiations. Only the stated outcome document of this negotiated framework would conceivably take the form of a legally binding treaty.”

Iran makes similar arguments in its communiqué of 4 November 2005, which outlines all of the legal discrepancies Iran believes are associated with the resolution. The legal analysis by Michael Spies corroborates some of these points, as he declares that "the issue before the IAEA Board is not whether to punish Iran because it is clandestinely operating a nuclear weapons program. A report released by the IAEA last month indicated HEU contamination on Iranian nuclear equipment originated in Pakistan, thus absolving Iran of the sole remaining potential “smoking gun” evidence of a nuclear weapons program. Absent evidence of such a program the U.S. and E.U. appear to seek to punish Iran for operating an ostensibly civilian nuclear program, in abrogation of their legally binding recognition of Iran’s “inalienable right” to develop such technology under Article IV of the NPT."

In addition, Spies points out that "under the Statute (Art. 12(C) and the Safeguards Agreement the Board may only refer Iran to the Security Council if it finds that, based on the report from the Director General, it cannot be assured that Iran has not diverted nuclear material for non-peaceful purpose. In the past findings of “non-assurance” have only come in the face of a history of active and ongoing non-cooperation with IAEA safeguards. The pursuit of nuclear activities in themselves, which are specifically recognized as a sovereign right, and which remain safeguarded, could not legally or logically equate to uncertainty regarding diversion."

Since Iran is allowed to enrich uranium and produce plutonium, accusations and resolutions against Iran's engagements in these processes must be based on violation of international law. The IAEA investigation declared that Iran had failed to meet its NPT obligations concerning the reporting of its nuclear materials and how they are used. However, it is clear that both sides have very different perspectives on what exactly Iran’s legal obligations are and whether or not they have been met.

As Joseph Cirincione of the Carnegie Endowment for International Peace points out, the “NPT’s failure to define specifically what constitutes the ‘peaceful’ application of nuclear capabilities to which non-nuclear-weapon states commit themselves,” could lead to new nations acquiring nuclear weapons, especially since” as the treaty has been interpreted, countries can acquire technologies that bring them to the very brink of nuclear weapon capability without explicitly violating the agreement, and can then leave the treaty without penalty.” This is the nature of the catch-22 of Article IV.

These legal complexities are the most difficult elements of the Iran case to contend with, as they requires a completely unobjective analysis and access to inspections and reporting that has not been manipulated or pressured by outside parties. It also requires delicate legal language, to stress the differences between legally binding obligations and voluntary confidence building measures. Finally, using legal instruments which are by their very nature supposed to be indiscriminatory can create new problems if double-standards regarding their implementation are employed – the fourth key issue.

(4) NPT Double-Standards
Reaching Critical Will, along with the vast majority of the world, has long maintained that the disarmament and non-proliferation obligations of the NPT are equally important, inextricable, and mutually reinforcing. No state can claim the moral high ground when accusing another of non-compliance if that state is not holding up its half of the bargain. This has become the fundamental finger-pointing game of the Iran situation.

In its 12 September 2005 communiqué to the IAEA, Iran argues that its nuclear issues have been politicized by certain parties who do not wish to accede Iran’s right to develop nuclear technology, and who maintain double-standards in the selection of who is to be held accountable for upholding international obligations. Iran made the case that the US falsely accuses others of violating international law while violating the law itself. In its working paper submitted to the 2005 NPT Review Conference Main Committee I on 19 May 2005, Iran outlined the broken promises and unfulfilled obligations that Nuclear Weapon States (NWS) made during the 2000 NPT Review Conference. Iran noted “the non-entry into force of START II agreement, the reluctance to pursue the START III negotiations, and abrogation of the Anti-Ballistic Missile (ABM) Treaty are among the serious set backs to the implementation of 13 practical steps. The international community has noted the signature of the Moscow Treaty on Strategic Offensive Reduction in 2002. However, reductions as stipulated in this treaty are far below the international expectations for real steps towards total elimination of nuclear weapons. Moscow Treaty does not go beyond de-commissioning of nuclear weapons and Parties do not have any obligation to destroy their nuclear weapons. No verification mechanism is also envisaged. It, therefore, does not take into account the principles of ‘increased transparency’, ‘diminishing role for nuclear weapons’ and ‘irreversibility’ which were agreed by the nuclear-weapon States in the 2000 NPT Conference.”

Iran also presented these arguments during the 2005 session of the UN General Assembly First Committee on Disarmament and International Security. Iran presented a draft resolution entitled "Follow-up to nuclear disarmament obligations agreed in the 1995 and 2000 Review Conferences of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons" (A/C.1/60/L.38/Rev.2) in First Committee. The resolution calls upon the Nuclear Weapon States (NWS) to comply with the commitments made in the practical disarmament steps adopted by the 2000 NPT Review Conference, focusing on step nine, which includes further unilateral reductions, increased transparency, reduction of non-strategic weapons, reduction of operational status of nuclear weapons, a diminishing role for nuclear weapons, and engagement of all NWS in the disarmament process. This step is in accordance with Article VI of the NPT, which states

"Each of the Parties to the Treaty undertakes to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament, and on a treaty on general and complete disarmament under strict and effective international control."

As John Burroughs of the Lawyers' Committee on Nuclear Policy (LCNP) reported in the Final Edition of the First Committee Monitor, ". . . given that Iran's draft, unlike other resolutions, focuses solely in its operative provisions on obligations of Nuclear Weapon States, it would appear to be a sort of gamesmanship showing that two can play at accusations of non-compliance with NPT obligations. Based on a past history of concealment, Iran was found to be in non-compliance with its safeguards agreement in a divided September 24 vote of the IAEA Board. Iran's draft in a way invites one to imagine that if there was a similar Disarmament Board to assess the behavior of the Nuclear Weapons States, it would find breaches of the 2000 commitments, especially by the United States."

Joseph Cirincione expounded this sentiment in his testimony before the Subcommittee on International Terrorism and Nonproliferation on 28 August 2005, stating, “the majority of countries feel that the five original nuclear weapons states (the United States, Russia, the United Kingdom, France and China) do not intend to fulfill their end of the NPT bargain—the pledge to eliminate nuclear weapons. That growing conviction erodes the willingness among members of this majority to live up to their side of the bargain—much less to agree to strengthen the regime.”

However, Iran is also politicizing the issues of compliance and nonproliferation, by concealing its true intentions behind the language of multilateralism. As Rebecca Johnson of the Acronym Institute for Disarmament Diplomacy noted, in presenting its resolution Iran took advantage of the structure of the First Committee, which “makes it difficult to defeat any resolution that gestures sufficiently towards past agreements, the rhetoric of a moral high ground (however spurious) or even the blandly meaningless. ”(Please see the Verification Report of the Final Edition of the First Committee Monitor 2005.) Whether or not Iran is intent on developing nuclear weapons, its actions have been duplicitous, covert, and antagonistic, despite its claims to have cooperated beyond legal obligation with the IAEA.

The NPT faces extreme blows to its strength and legitimacy as an effective tool of international law if the US or Iran continues on their current paths. If Iran obtains a bomb legally, by withdrawing from the NPT, or illegally, by violating it, the NPT suffers. If the US and other Western countries reject Iran’s right to develop nuclear technology, the NPT also suffers.