The Law and Congressional Red-Lines on Iranian Nuclear Talks

(Published in the Truman Doctrine blog, July 11, 2012)

The Moscow round in the talks with Iran over its nuclear program, in which the world powers are ultimately trying to prevent Iran from developing nuclear weapons, collapsed last month. The next round of talks are scheduled to begin soon. This has renewed claims that further talk is futile and harsher measures are required, and counter-arguments that diplomacy is failing precisely because the U.S. refuses to make reasonable and necessary concessions in the negotiations.

One of the central issues in this debate is whether the U.S. should “permit” Iran to enrich uranium for non-military purposes. Israel and its supporters in Congress have pressed for a categorical “red-line” in the negotiations, according to which Iran should be prohibited permanently from any enrichment whatsoever. Others have responded with powerful policy and strategic reasonswhy, on the contrary, a “concession” to acknowledge Iran’s right to develop a peaceful nuclear program, is necessary for there to be any meaningful chance of success in the negotiations. Past U.S. policy has, of course, been that Iran has the right to peaceful nuclear energy development, and the proposed red-line would be a departure from past policy.

The claims against Iran are, of course, framed largely in legal terms — and there should, therefore, be a careful consideration of the legal principles that relate to this central issue of Iranian enrichment. And an analysis of the law suggests that a U.S. failure to acknowledge Iran’s right to peaceful enrichment would not only be unprincipled and perhaps unwise, but it would be fundamentally inconsistent with the governing legal regime – the legal regime that is the foundation for our objection to Iran’s program to in the first place.

Before turning to the law, let us recap the positions in the current talks. The P5+1 (the five permanent members of the UN Security Council plus Germany) are demanding that Iran stop enriching uranium to 20 percent purity, shut down its underground nuclear facility at Fardow, and agree to ship its current stockpile of 20 percent enriched uranium out of the country. It is a relatively small step to refine 20 percent enriched uranium to weapons-grade material. It is important to keep clearly in focus that the real objective, the ultimate goal, is ostensibly to prevent Iran from developing nuclear weapons.

Iran, on the other hand, has been demanding that the six powers acknowledge its right to enrich uranium (not to 20 percent, but to enrich at lower levels of purification for purposes of civilian power generation) under the nuclear non-proliferation treaty, and that they agree to reduce some of the economic sanctions against Iran in return for concessions on its nuclear program. It of course denies that it is developing nuclear weapons, though such denials are treated with considerable skepticism. (A useful review of the issues can be foundhere, and a summary of the proposals and counter-proposals over the years of negotiations can be found here).

One of the key sticking points, then, is whether Iran is to be permitted to continue a civilian uranium enrichment capability. In the face of Israeli and Congressional  calls for “red-lines” against such “concessions”, Iran has made it quite clear that it will not give up its “right” to enrich uranium for civilian purposes. The relevant international law principles tend to support Iran’s position that it indeed has such a right.

The legal basis upon which the world is opposing the Iranian nuclear development is the Nuclear Non-Proliferation Treaty (NPT). The NPT was negotiated in the 1960s to prevent the further spread of nuclear weapons. It involved a grand bargain, in which the non-nuclear states agreed not to develop nuclear weapons, in exchange for the commitment of the nuclear powers to not only acknowledge the right of non-nuclear countries to employ nuclear energy, but to assist those states that joined the regime with the development of a peaceful nuclear energy generation capability. In addition, the nuclear powers committed to make meaningful efforts on their part towards nuclear disarmament, and agreed never to use nuclear weapons against non-nuclear states.

189 countries are now party to the NPT, and the treaty has survived as the primary legal framework for the international effort to prevent the proliferation of nuclear weapons. There is no other legal prohibition against the development or possession of nuclear weapons, and absent the NPT and its underlying bargain, there is indeed no principled basis why some countries should be permitted to maintain nuclear weapons while the rest are denied the right to develop them. Israel, Pakistan, and India all rejected the NPT and developed and continue to possess nuclear weapons outside of the regime, without any meaningful international approbation or sanctions.

Iran is a party to the NPT, and if it were to develop nuclear weapons it would be in violation of its treaty obligations, in Article 2 and 3 of the NPT, not do so. But while there is suspicion, supported by some evidence, it has not been clearly established that Iran has a nuclear weapons program, or that it has any intention to develop nuclear weapons. Many believe it would be more in Iranian interests to stop short of creating a weapon, at the point of “break-out capability”, meaning that it would develop the material and capability such that it could manufacture nuclear weapons in a relatively short period if necessary, but would not do so until some event required it. Many advanced countries with nuclear energy programs, such as Japan, South Korea, and Germany, have achieved such “break-out capability,” which is not in violation of their NPT commitments.

Iran was, in 2002, found to be in non-compliance of certain “safeguards agreements” between Iran and the International Atomic Energy Agency (IAEA), which is an international organization that monitors national nuclear programs, in part to ensure compliance with the NPT. This was due to undisclosed uranium enrichment facilities, and the enrichment of uranium to 20 percent purity.

Non-compliance with safeguards agreements, however, does not itself constitute a violation of the NPT. Many countries, including South Korea in the very same period, and for similar reasons, have been in non-compliance. They were not subjected to UN Security Council resolutions and economic sanctions. Nonetheless, Iran’s continued intransigence in refusing to resolve the IAEA’s concerns, and deepening suspicions that Iran was intent on developing nuclear weapons capability, lead to UN Security Council resolutions, beginning in 2006, ordering Iran to cease uranium enrichment. Iran has been and remains in breach of those resolutions.

Yet, while Iran is in breach of the UN Security Council Resolution, it remains the case that under Art. 4 of the NPT, which forms one of the core principles of the grand bargain at the heart of the NPT regime, Iran has an “inalienable right…to develop research, production and use of nuclear energy for peaceful purposes without discrimination.” The prevailing legal view is that this right is unaffected by the fact that Iran is in non-compliance with aspects of its safe-guards agreements with the IAEA, or for that matter the UN Security Council resolutions.

Seen in this light, Iran’s insistence that the six world powers acknowledge its right to peaceful uranium enrichment is nothing more than an assertion of its inalienable right under the treaty. Indeed, the quid pro quo for surrendering any right to develop nuclear weapons was not only the acknowledgment of this right, but a commitment by the nuclear weapons states to assist with the development of such peaceful nuclear energy capability.

This is not to minimize the legitimate concerns about Iran’s potential weapons program, or the threat to the region posed by a nuclear-armed Iran. But the objective here is, after all, to prevent Iran’s development of nuclear weapons, not preventing it from having any nuclear capability whatsoever.

Dennis Ross, former special envoy in the Obama White House, has recently argued that the six world powers should in fact make a commitment to Iran to assist it in the development of its peaceful nuclear energy program, which would entail surrendering its stock-pile of 20 percent enriched uranium. If Iran baulks it would reveal the hidden military objectives of its nuclear program, and clearly put Iran on the wrong side of the legal argument.

In contrast, drawing red-lines against any Iranian enrichment activity, when no other country has been subjected to such conditions, would be unprincipled and inconsistent with the NPT, which is itself the only legal basis for objecting to Iran’s nuclear program. The West would be not only violating the strict terms of the NPT, but undermining the entire bargain upon which the regime is based. Moreover, in causing the failure of negotiations, it would make war with Iran that much more likely, which would make a nuclear-armed Iran are more likely in the future.

Political posturing in an election year should not get in the way of this. The Obama administration should be left free to negotiate in a principled and effective manner with Iran, in order to better achieve the objectives of these talks. And that means no red-lines on peaceful enrichment programs.