The Lawyers’ Committee on Nuclear Policy & Western States Legal Foundation – 2006-01-24 23:17:43

http://www.lcnp.org/disarmament/iaea_letter-jan06.htm

RE: The situation with Iran and the upcoming emergency meeting of the IAEA Board of Governors.

Dear Ambassador,

(January 23, 2006) — The IAEA Board of Governors is set to meet in early February to consider the Iranian nuclear standoff. At this juncture referral of the matter to the UN Security Council is the wrong step. A non-confrontational solution is achievable and efforts to this end are ongoing. Additionally, the IAEA investigation into Iran’s past nuclear activities has not yet reached a conclusion.

Escalation would needlessly and artificially create a condition of crisis and tension which could easily undermine the diplomatic and IAEA processes, and pave the way for dangerous confrontation in the future. As civil society organizations working for the global elimination of nuclear arsenals, we adamantly oppose the further spread of nuclear weapons. The following comments are offered in that context.

Security Council consideration of the Iranian situation is not well founded in the NPT or in the Safeguards Agreement. Non-compliance under the Safeguards Agreement requires a finding of diversion, or uncertainty regarding diversion, of nuclear materials toward military use.

The IAEA has concluded that no such diversion has occurred. Its nearly three year old investigation uncovered a vast and undeclared program involving all aspects of the nuclear fuel cycle going back nearly two decades. The Iranian failure to declare various activities violated the Safeguards Agreement.

However, the IAEA concluded in November 2004 that all declared nuclear materials had been accounted for in Iran and therefore none had been diverted to military purposes. The IAEA states that it is not yet in a position to determine the presence or absence of additional undeclared nuclear materials or activities.

Western powers are not blameless for the dissolution of the Paris Agreement negotiating framework. The agreement intended to provide “objective guarantees that Iran’s nuclear programme is exclusively for peaceful purposes” and to “equally provide firm guarantees on nuclear, technological and economic cooperation and firm commitments on security issues.”

Under the agreement “the E3/EU recognize Iran’s rights under the NPT exercised in conformity with its obligations under the Treaty, without discrimination,” which was mutually understood at the time to allow Iran to conduct uranium enrichment following the final outcome of negotiations.

Last spring, the EU3 changed its bargaining position, declaring that the only objective guarantee would be the absence of enrichment. This change precipitated a damaging chain of unilateral responses from Iran, leading to a general loss of confidence. Moreover, the August EU proposal required very firm commitments from Iran on forfeiting aspects of its nuclear program in exchange for a weak and nebulous package of incentives.

For its part, in March 2005 Iran made a proposal to the EU3 providing for continuous on-site presence of IAEA inspectors at its nuclear fuel cycle sites, ceilings on the level of enrichment, limiting the extent of its fuel cycle to only the needs of its power reactors, and binding national legislation prohibiting the development of nuclear weapons.1

As set forth below, the better course would be for Iran not to pursue national fuel production capabilities. Nonetheless, the international community should explore the merits of Iran’s proposal. There should also be full exploration of the proposal for locating an enrichment facility in Russia.

Two issues underlie this standoff, which must be kept separate. The first issue relates to the IAEA fulfilling its statutory obligation to verify the peaceful nature of Iran’s nuclear program. Mohammed ElBaradei has stated that he is “running out of patience, the international community is running out of patience, the credibility of the verification process is at stake and I would like, come March, which is (the time of) my next report, to be able to clarify these issues.”

The second issue is Iran’s pursuit of nuclear fuel cycle capabilities, which has been the focus of US and EU efforts. Director General ElBaradei recently noted that “as a matter of law, Iran has the right to do all the nuclear activities, including enriching uranium.”

The IAEA Board should concentrate on supporting the ability of the Agency to successfully verify compliance with safeguards. To this end the Board, with the advice of the Agency, should set a definitive timeline for the conclusion of the investigation into Iran’s past activities.

The Board should involve the Security Council only if Iran fails to comply with its obligations, including if the Agency finds it cannot verify the presence or absence of undeclared nuclear materials or activities due to Iranian non-cooperation. The Security Council should not be involved by the IAEA Board simply because Iran fails to accede to demands regarding nuclear fuel cycle capabilities.

Referral at this point will likely serve to impede the Agency’s ability to complete its investigation, further expanding the crisis of confidence. Iran must be given the opportunity to fully account for its past activities and to remove all ambiguities regarding its current intentions.

There is room for the IAEA Board to find constructive and comprehensive solutions to non-proliferation problems. Recognizing the inextricable link between nuclear energy and nuclear weapons, states could use the present situation as a basis for working towards the arrangements called for by ElBaradei creating multilateral controls over the sensitive parts of the nuclear fuel cycle, including enrichment, reprocessing, and the management and disposal of spent fuel.

Pending the establishment of such multilateral control, all construction of enrichment and reprocessing facilities would be voluntarily suspended, and Iran and other states would be given credible nuclear supply assurances. Beyond ElBaradei’s proposal, cessation of operation of all nuclear fuel production capabilities, except monitored production of low enriched uranium, should be considered.

Movement toward a proliferation-resistant global nuclear fuel cycle is best accomplished in a balanced and nondiscriminatory way, accompanied by a concerted effort to expand use of energy sources not dependent on nuclear energy or fossil fuels.

In this connection, for multiple reasons, we urge Iran not to pursue capabilities to produce nuclear fuels. Iran and other states should rather work towards an energy economy oriented towards energy efficiency and renewable sources of energy. To symbolize and implement this mission, the international community should create an International Sustainable Energy Agency.

Iran must also cease making wholly unacceptable, indeed incendiary, statements about Israel, which have certainly contributed to the perception of crisis. For its part, the international community, in considering proposals for multilateralization of the nuclear fuel cycle and in other respects, must act upon the oft-repeated commitment to the achievement of a WMD-free zone in the Middle East.

We also once again underscore the inextricable link between non-proliferation and disarmament. Lackluster progress on the nuclear disarmament commitments made at the 2000 NPT Review Conference undermines support for nonproliferation efforts.

The breakdown of the NPT Review Conference signals that the non-nuclear weapon states are increasingly unwilling to accept de facto concessions of their right to develop nuclear technology without tandem progress on the total elimination of nuclear arsenals.

The abandonment of language on nonproliferation and disarmament in the 2005 World Summit outcome document illustrates that nonproliferation efforts will be weakened unless the nuclear weapon states live up to their unequivocal undertaking to disarm and implement in good faith commitments already made.

In closing, we emphasize that with respect to the Iran situation the use of force is unacceptable, however rationalized or authorized. The use of violence begets violence. In this case the threat or use of force could drive Iran’s nuclear program underground, prompt Iran to develop nuclear arms in a misguided effort to increase its security, and unite the population strongly behind anti-western sentiments, preventing dialogue and further jeopardizing security in the Middle East.

The mistake of Iraq must not be repeated. In early 2003, the IAEA very clearly stated that there was no evidence of a reconstituted Iraqi nuclear program. ElBaradei said that the Agency needed only three more months to confirm the absence of a program, but it did not get that three months due to the illegal invasion launched by the United States.

To date the IAEA has not uncovered substantial evidence of an Iranian nuclear weapons program. By many accounts Iran remains five to ten years from possessing the capability to enrich uranium for use in a warhead. In light of this reality the situation has been needlessly and artificially elevated into a crisis.

The Agency needs time to rebuild confidence and to ensure the peaceful nature of Iran’s program. It is imperative that the Board provide the Agency the chance to reach its conclusions.

Respectfully yours,

• John Burroughs, Executive Director
Michael Spies, Program Associate
Peter Weiss, President
Lawyers’ Committee on Nuclear Policy

• Jacqueline Cabasso, Executive Director
Western States Legal Foundation

Similar letters to the IAEA Board have been sent by Reaching Critical Will and Greenpeace International