Bloomberg: The political clash over Iran’s nuclear program reflects an equally implacable legal conflict between treaties that both sides say back up their positions. Iran, with enough enriched uranium to make 15 atomic weapons if it chooses, has called the sanctions illegal.
By Jonathan Tirone
The political clash over Iran’s nuclear program reflects an equally implacable legal conflict between treaties that both sides say back up their positions.
Whether Iran has a right to enrich the uranium-235 isotope, used to generate atomic power and make nuclear bombs, is at the heart of a dispute that has raised the specter of war for the past decade. The primacy of the question may be the only area of agreement this week in the first round of international talks since Hassan Rouhani was elected Iran’s president on a pledge to resolve the dispute.
“The question of enrichment is at the center of the negotiations themselves,” U.S. Secretary of State John Kerry said Oct. 10 in Kuala Lumpur. “I’ve personally had private discussions with the foreign minister and I think it’s best to keep those discussions private and personal at this point.”
Iran asserts the right to enrich uranium under the 1968 Nuclear Non-Proliferation Treaty, an interpretation rejected by the United Nations Security Council, which says its demands take precedence. While Iran says its nuclear work under international monitors is peaceful, its past deceptions and alleged military work have compelled the UN to order a suspension of enrichment. It has imposed four rounds of sanctions aimed at undermining the country’s economy and restricting its access to nuclear technology.
“The obligations imposed by the UN Charter trump any inconsistent treaty, including the Nuclear Non-Proliferation Treaty,” Michael Glennon, an international-law professor at Tufts University near Boston, said in an e-mail. Challenging the legality of the UN’s actions “at this point would be diplomatic suicide,” said Glennon, who has advised UN atomic monitors and the U.S. State Department.
The Geneva talks, scheduled for Oct. 15 and 16, will include China, France, Germany, Russia and the U.K., in addition to the U.S. The senior U.S. official will be Under Secretary of State for Political Affairs Wendy Sherman and Iran will be represented by Foreign Minister Mohammad Javad Zarif.
Iran, with enough enriched uranium to make 15 atomic weapons if it chooses, has called the sanctions illegal. It insists the 1968 NPT is the legal standard by which its rights should be measured. The treaty allows signatories access to peaceful nuclear technologies in exchange for a pledge they won’t use that expertise to develop weapons.
Iran won’t ship out any of its stockpile of enriched uranium, Abbas Araghchi, deputy foreign minister said on state TV today. “We will negotiate about the form, size and level of enrichment, but transporting the enriched stockpile out of the country is one of our red lines,” Araghchi said.
Other countries, including those that have had nuclear weapons programs like Brazil and South Africa, enrich uranium. Iran denies its military had a role in nuclear work and questions why it shouldn’t have the same rights.
Iran will put forward a three-step proposal at the talks, according to the Iranian Students News Agency. As part of the plan, Iran would seek a commitment from the so-called P5+1 to recognize the country’s right to enrich at the end of the talks.
“The essence of the matter is that many similarly situated NPT non-nuclear weapon states have uranium-enrichment programs,” Dan Joyner, a University of Alabama law professor who wrote the book “Interpreting the Nuclear Non-Proliferation Treaty,” said in an e-mail. “The UN resolutions calling for Iran to cease uranium enrichment were ill-considered, and arguably exceeded the authority of the Security Council.”
Rouhani, who negotiated a two-year suspension of Iran’s nuclear work from 2003 to 2005, has invoked Pakistan and Brazil as examples for Iran.
“The world did not want Pakistan to have an atomic bomb or Brazil to have the fuel cycle, but Pakistan built its bomb and Brazil has its fuel cycle, and the world started to work with them,” he said in a 2004 speech to Iran’s Supreme Cultural Revolution Council, according to reproduced text from his talk published by Brandeis University in Waltham, Massachusetts. “Our problem is that we have not achieved either one, but we are standing at the threshold.”
Brazil, with the world’s No. 5 uranium reserves, abandoned decades of covert work in the early 1990s while keeping its enrichment program for domestic energy needs. South Africa, which had atomic devices during the apartheid era, has plans to expand its enrichment program, according to the South African Institute of International Affairs in Johannesburg.
Squeezed by sanctions, Iran’s economy, with the world’s No. 4 proven oil reserves, will contract 1.3 percent this year after shrinking 1.9 percent in 2012, according to International Monetary Fund estimates.
“From the perspective of southern countries, this looks very much like U.S. suspicions trying to prevent southern countries from developing nuclear technology,” said Jo-Ansie van Wyk, who wrote a report in June called South Africa’s Nuclear Future for the South African Institute of International Affairs. “This looks discriminatory under the NPT.”
Article 4 of the NPT says that countries meeting their non-proliferation obligations have “the inalienable right” to all peaceful nuclear technology. That right can be lifted by the UN Security Council.
“In the event of a conflict between the obligations 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,” reads Article 103 of the UN rulebook. It came into force in 1945.
“The gray area relates to whether Iran has met all its obligations,” wrote Rajesh Basrur, author of “South Asia’s Cold War: Nuclear Weapons and Conflict in Comparative Perspective.”, in response to questions. “If it is determined that it has, then, under the existing terms of the treaty, it has the ‘right’ to enrich uranium.”
Sides negotiating this week in Geneva will have to maneuver between competing demands putting both the UN’s integrity and the NPT at stake.
The Security Council’s five permanent members want their supremacy over international treaties recognized. That means that at some point, Iran would again have to suspend enrichment. Iran wants its “right” to enrich under the NPT acknowledged. Something will have to give.
“It is highly regrettable that in recent years attempts have been made in certain quarters to reinterpret NPT Article 4 to the detriment of the authority of the treaty,” said Tariq Rauf, former head of verification and security-policy coordination at the UN’s International Atomic Energy Agency in Vienna. “Without this article there would not have been an NPT.”