A view of the reactor building at the Bushehr Nuclear Power Plant in southern Iran (file photo)
In a recent piece for Foreign Policy, former Obama Iran hand Robert Einhorn argues that Iran should not be allowed to enrich uranium because he feels Iran is not in compliance with its Nuclear Non-Proliferation Treaty (NPT) obligations, saying:
[W]hat is not debatable is that Iran has forfeited—at least temporarily—any right to enrichment (and reprocessing) until it can demonstrate convincingly that it is in compliance with its NPT obligations.
While this is something Einhorn may wish to be true, it is not correct on several levels. And if it's indicative of the viewpoint of American policymakers, this misunderstanding may be at the root of deadlock over Iran's nuclear program—a program that, according to the U.S. Director of National Intelligence, is not currently aimed towards weaponization. The Iran nuclear issue will not be resolved unless we come to grips with what the NPT is—and isn't.
Contrary to common belief, there is no agency or international body tasked with checking compliance with the NPT. And, even if there were, there is no automatic nuclear fuel-cycle “forfeiture” provision in the NPT, or any other legal instrument in existence. On both these counts Einhorn's argument is without legal basis.
Just like with the Outer Space Treaty, there is no enforcement arm of the NPT. There is the International Atomic Energy Agency (IAEA), but it is not tasked with—nor does it have the ability to—verify compliance with the NPT. The IAEA's monitoring role is very specifically restricted to a different set of bilateral treaties: the narrowly focused “Comprehensive Safeguards Agreements” (CSAs). There are more than 140 such bilateral CSA “treaties” whereby the IAEA monitors and accounts for the fissile material in various countries.
Simply put, it is not the remit of the IAEA to enforce the multilateral NPT. In fact, the Agency doesn't have the budget nor the manpower to do so, even if it wanted to.
In fact, it is possible for a state to be in noncompliance with its bilateral CSA and still be in compliance with the NPT. The CSAs and the NPT are completely independent legal instruments, although they both deal with nuclear nonproliferation.
Further, such lack of verification measures was quite common with older treaties, such as the 1968 NPT. More modern treaties do often have verification mechanisms and associated international organizations to operate them to try to guarantee compliance. The best example is perhaps the Chemical Weapons Convention (CWC) and the associated Organization for the Prohibition of Chemical Weapons (OPCW) that monitors compliance with the CWC.
If there were a specific question about a state's compliance with the NPT then the proper body to adjudicate that would be the International Court of Justice. For example, in 1996 the court interpreted the NPT’s nuclear disarmament clause as a legally binding obligation on the five nuclear-weapon states (the United States, Britain, France, China and Russia)—although, admittedly, it did not impose any time frame to accomplish this goal. Similarly, to officially find any country in noncompliance with the NPT would require the intervention of the International Court of Justice.
While there may be no formal international agency that polices NPT compliance, experts can certainly weigh in. One of the foremost experts in this regard is Dr. Hans Blix, former head of the IAEA, who recently stated: “So far, Iran has not violated the NPT,” adding, “and there is no evidence right now that suggests that Iran is producing nuclear weapons.” And Mohamed ElBaradei, the Nobel Peace Prize laureate who spent more than a decade as the director of the IAEA, said that he had not "seen a shred of evidence" that Iran was pursuing the bomb. “All I see is the hype about the threat posed by Iran,” he concluded.
If U.S. policy makers are interested in making headway towards a negotiated solution with Iran they must clarify their understanding of the NPT.
Sadly, it appears that some in the administration may be more interested in maintaining sanctions rather than finding a equitable solution based upon the law. In a recent Brookings discussion former WMD czar Gary Samore outlines why the administration torpedoed a nuclear deal brokered by Turkey and Brazil:
...And at the very last moment, as most of you will remember, Brazil and Turkey and Iran announced an agreement which was viewed in the White House really as a pretty transparent effort to try to delay the sanctions. So we went ahead with those sanctions.
It appears, then, that the goal all along was to keep sanctions on, and conditions are created that make sure that goal is maintained. In some ways, we are back to early 1950s in dealing with Iran. Ray Takeyh in reviewing Ervand Abrahamian’s new book, The Coup: 1953, the CIA and the Roots of Modern U.S.–Iranian Relations, for the journal Survival, mentions that Abrahamian’s historical research reveals that:
.....the British Empire was hardly prone to concede to an Iranian government reclaiming its oil fields, and was all along plotting the overthrow of the impudent premier. Whitehall viewed Mossadegh’s nationalisation as not just an infringement of its prerogatives in Iran but as an act that could potentially endanger all of its considerable overseas assets. Mossadegh had to go, and diplomacy was a mere ruse to achieve that end. In this narrative, London never really sought an accommodation with Tehran, but was merely going through the ritual of diplomacy to ensure a broadbased coalition against an embattled Mossadegh.
It appears that—like London in the early 1950s—Washington is now “merely going through the ritual of diplomacy to ensure a broad-based coalition against an embattled” Iranian regime. If so, it is treading on dangerous ground that may lead to the unraveling of the NPT itself.
If the United States wants to place unilateral sanctions on Iran because it is an enemy nation, that is certainly Washington's prerogative, but misinterpreting the NPT and pressuring the IAEA as a pretext for such sanctions could bring grievous harm to the nonproliferation regime.
Misunderstanding the NPT is not limited to government officials. Several U.S. think tanks also conflate opinion with analysis. For example, the Institute for Science and International Security (ISIS) often writes commentary on Iran's nuclear program. Two recent pieces from ISIS confuse what ISIS would like (ISIS' opinion) with what is required of Iran (i.e. a legal analysis): the first deals with the perceived threat from Iran's Arak reactor and the second with Iran's centrifuges. While there may be legitimate concerns about both these issues, the important legal point is that both these technologies are dual-use and permitted under the NPT. If one does not like how permissive the current NPT is, one can propose a more restrictive “NPT 2.0”.
As the Russian foreign minister Sergey Lavrov recently put it regarding the centrifuge issue: Iran, “is doing everything in line with their commitments under the Safeguards Agreement.” Similarly, the Arak reactor could be misused in the future for weapons-related activity. But if one does not have an appetite for such risk, then one needs to propose a new NPT that disallows such reactors. The current treaty allows dual-use nuclear technology and reflects the compromises made to gain its wide adherence.
If Iran legitimately feels it is getting nothing positive out of the NPT—and in addition, the United States is actually misusing the NPT against it—this may increase calls among Iranian polity for NPT withdrawal. Although it is unlikely that Iran would actually leave the NPT just yet, if it does it may not go alone, taking many sympathetic nations with it. The 120 nations of the Nonaligned Movement—the real “world community”—actually agree with Iran in its dispute with the IAEA and the United States.
Before getting bogged down in negotiations with Iran it makes sense for all parties involved to agree on a common legally sound interpretation of the NPT, otherwise continued deadlock is all but guaranteed.