David Morrison / Labour & Trade Union Review – 2006-07-14 09:00:40
Q: Is Iran Breaking the NPT?
A: No, but the US/EU Are
David Morrison / Labour & Trade Union Review
“Under NPT [Nuclear Non-Proliferation Treaty] rules, there is nothing illegal about any state having enrichment or reprocessing technology – processes that are basic to the production and recycling of nuclear reactor fuel – even though these operations can also produce the high enriched uranium or plutonium that can be used in a nuclear weapon. An increasing number of countries have sought to master these parts of the ‘nuclear fuel cycle’ …”
These are words of the Director-General of the IAEA, Mohamed ElBaradei, in an interview with the Egyptian newspaper Al-Ahram (6-12 April 2006) .
Specifically, on Iran’s enrichment programme, he told Reuters on 30 March 2006 :
“Nobody has the right to punish Iran for enrichment. We have not seen nuclear material diverted to a nuclear weapon …”
It could hardly be clearer. By engaging in uranium enrichment-related activities to produce nuclear fuel, Iran is acting within the NPT. And the IAEA has found no evidence that Iran is diverting nuclear material for weapons purposes. In short, Iran is not breaking any of its NPT commitments.
None of this will come as a surprise to regular readers of the Labour & Trade Union Review, but it is rare for ElBaradei to state these crucial facts with such clarity, facts which demolish the US/EU case for reporting Iran to the Security Council and pressurising it to abandon its enrichment programme.
(But don’t expect ElBaradei to repeat these crucial facts every day of the week – to do so would bring down the wrath of the US and others upon his head – so, having put these crucial facts on the record once, you can be sure that from now on all you will hear from him are his doubts about Iran’s past nuclear activities and its alleged failure to answer questions about them.
And when it is stated as a fact by the US and others that Iran is developing nuclear weapons, don’t expect ElBaradei to pop up and make it clear that the IAEA is not in possession of evidence to prove this.
It reminds me of the run up to the invasion of Iraq, when Hans Blix, the head of UNMOVIC, made regular reports to the Security Council. Then, it could be guaranteed that buried away in each of them there would be a sentence saying that UNMOVIC didn’t have any evidence that Iraq possessed chemical or biological weapons – for example, the report he delivered on 27 January 2003 stated “these reports do not contend that weapons of mass destruction remain in Iraq” – but on each occasion this crucial fact was masked by a host of queries about “unaccounted for” material.
And, when time and time again the US/UK asserted baldly that Iraq had chemical and biological weapons, Blix never made it clear that UNMOVIC didn’t possess evidence to prove this. Had he done so, it would have made it much more difficult for the US/UK to invade Iraq on the pretext that Iraq possessed such weapons. However, he said enough to be able to claim after the event, when no weapons were discovered in Iraq, that he and UNMOVIC had got it right.)
On this occasion, ElBaradei could have gone further and pointed out that possessing enrichment and reprocessing technology for peaceful purposes is not merely legal under NPT rules, it is supposed to be an “inalienable right” guaranteed under the NPT to all signatories to the Treaty, Article IV(1) of which states :
“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.”
In other words, those states that are seeking to prevent Iran from engaging in uranium enrichment to fuel nuclear power stations are acting contrary to the NPT. Iran is not.
Reported to the Security Council
The issue of Iran’s nuclear activities is now on the agenda of the UN Security Council. It got there as a result of a resolution passed by the IAEA Board on 4 February 2006 . This requested ElBaradei to inform the Security Council that certain steps, defined in paragraph 1 of the resolution, were “required of Iran” (and to send the Security Council all future IAEA reports and resolutions about Iran).
My article, Iran “reported” to the Security Council , examines these steps, chief among which is the re-suspension of all enrichment-related and reprocessing activities. None of these steps are “required of Iran” under the NPT. The resolution itself makes this clear in paragraph 5, where the steps are referred to as “confidence-building measures, which are voluntary, and non legally binding”.
In other words, Iran was reported to the Security Council, not because it refused to take measures required by the NPT, but because it refused to take measures that were explicitly stated to be voluntary and not required by the NPT. It gives a whole new meaning to the word voluntary.
Negotiations with the EU
It is important to recall that Iran first agreed to the suspension of all enrichment-related and reprocessing activities in November 2004, when it signed the Paris Agreement  with the EU (represented by UK, France and Germany). This suspension was a voluntary act of goodwill on the part of Iran while negotiations with the EU were taking place. As the Paris Agreement itself states:
“The E3/EU recognize that this suspension is a voluntary confidence building measure and not a legal obligation …. In the context of this suspension, the E3/EU and Iran have agreed to begin negotiations, with a view to reaching a mutually acceptable agreement on long term arrangements.”
The negotiations came to an abrupt halt in August 2005 when the EU proposed  to Iran that it abandon not just uranium enrichment, but all aspects of its so-called “nuclear fuel cycle”. Instead of mining its own uranium ore, and processing and enriching it to make fuel for its nuclear reactors, as Iran planned to do, the EU proposals required Iran to import enriched uranium fuel, and to export spent fuel afterwards.
This would have meant that nuclear power generation in Iran would be completely dependent on fuel from abroad, which could be cut off at any time, even though Iran has a domestic supply of uranium ore. It was no surprise, therefore, that Iran rejected these proposals out of hand.
Following the failure to reach “a mutually acceptable agreement on long term arrangements” with the EU, Iran proceeded to resume enrichment and reprocessing activities – as it was entitled to do since the suspension was voluntary in the first place. The resumption began at the uranium processing plant in Isfahan in August 2005. Later, in January 2006, enrichment was resumed at the pilot plant at Natanz.
The latter was the trigger for the EU to call a special meeting of the IAEA Board which passed the resolution of 4 February 2006 reporting Iran to the Security Council. Iran’s only crime was to voluntarily resume what it had voluntarily suspended in November 2004.
The formal reporting of Iran to the Security Council occurred after the March meeting of the IAEA Board, at which ElBaradei made yet another report to the Board on Iran’s nuclear activities . On 8 March 2006, he duly sent this report to the Security Council.
Like all of his previous reports, this one did not present any evidence that Iran is developing nuclear weapons. It formally reported that Iran had not obeyed the IAEA Board’s request to suspend enrichment and related activities. On IAEA access to Iran’s nuclear sites, the report said:
“Iran has continued to facilitate access under its Safeguards Agreement as requested by the Agency and, until 6 February 2006, implemented the Additional Protocol as if it were in force, including by providing, in a timely manner, the requisite declarations and access to locations.” (Paragraph 30)
In other words, in response to its referral to the Security Council by the IAEA Board resolution of 4 February 2006, Iran reduced IAEA access to its nuclear sites. Since 6 February 2006, it is no longer granting unannounced access to sites in accordance with the so-called Additional Protocol to its Safeguards Agreement with the IAEA (which Iran signed in December 2006 but the Majlis hasn’t ratified). So, the net effect to date of referring Iran to the Security Council has been to reduce the IAEA’s ability to monitor Iran’s nuclear activities.
Signing a Safeguards Agreement with the IAEA, and implementing its provisions, is a requirement of the NPT (see Article III(1)). Signing and implementing an Additional Protocol is not a requirement of the NPT. It is a voluntary matter for each signatory state, so by ceasing to implement its provisions Iran is not breaking any commitment under the NPT – it is continuing to allow the IAEA the degree of access that is mandatory under the NPT.
The US/UK predicted immediate “action” by the Security Council in response to this report by ElBaradei. However, it took them three weeks to persuade Russia and China to agree a form of words for a statement by the President of the Council, which was eventually issued on 29 March 2006  in the name of César Mayoral of Argentina, the President of the Council in March.
(A presidential statement is the lowest form of Security Council “action” – even lower than a Chapter VI resolution, which can be safely ignored since it doesn’t carry any form of sanction, either economic or military. Only Chapter VII resolutions may be accompanied by the latter.)
The presidential statement calls upon Iran to take the steps “required” of it by the IAEA Board in its resolution of 4 February 2006. However, it doesn’t describe these steps as “voluntary and non legally binding” as the Board resolution does. But, it begins by reaffirming that engaging in nuclear activities for peaceful purposes is a right guaranteed under the NPT, saying:
“The Security Council reaffirms its commitment to the Treaty on the Non Proliferation of Nuclear Weapons and recalls the right of States Party, in conformity with articles I and II of that Treaty, to develop research, production and use of nuclear energy for peaceful purposes without discrimination.”
In other words, having reaffirmed its commitment to the NPT, the Security Council is asking Iran to desist from activities that are supposed to be its “inalienable right” under the NPT.
Another IAEA Report
The Presidential statement requested that ElBaradei make a report to the IAEA and the Security Council within 30 days, and he did so as ordered on 28 April 2006 (see, for example, BBC summary ).
The report told essentially the same story as before: again no evidence was presented that Iran was developing nuclear weapons. Even John Bolton, the US Ambassador to the UN, reluctantly admitted this on 28 April 2006, saying :
“I think, if anything, the IAEA report shows that Iran has accelerated its efforts to acquire nuclear weapons, although, of course, the report doesn’t make any conclusions in the regard.”
The “acceleration” referred to by Bolton related to Iran’s announcement on 13 April 2006 that it had succeeded in enriching a small amount of uranium to the level required for nuclear fuel. ElBaradei reported that the IAEA had examined samples of what had been produced and concluded that the enrichment level declared by Iran (3.6%) was probably correct.
The US/EU now intend to press for a resolution under Chapter VII of the UN Charter, demanding that Iran take the steps “required” of it by the IAEA Board in its February resolution, in particular, the suspension of enrichment-related activities. Initially, they do not intend to press for a Chapter VII resolution accompanied by economic sanctions.
The UK strategy for action against Iran in the Security Council was set out in a letter, which was leaked to The Times and published on 22 March 2006. The letter, dated 16 March 2006, was written by John Sawers, the political director of the Foreign Office, to his counterparts in France, Germany and the US. Its main theme was that it was going to be difficult to persuade Russia and China to take any effective action on the Security Council. Sawers wrote :
“Implicit in the paper is a recognition that we are not going to bring the Russians and Chinese to accept significant sanctions over the coming months, certainly not without further efforts to bring the Iranians around.
“Kislyak [Sawers’ Russian counterpart] might argue that those diplomatic efforts should start straightaway after a Presidential Statement is adopted. Our own assessment here is that the Iranians will not feel under much pressure from PRST [Presidential statement] on its own, and they will need to know that more serious measures are likely.
This means putting the Iran dossier onto a Chapter VII basis. We may also need to remove one of the Iranian arguments that the suspension called for is ‘voluntary’. We could do both by making the voluntary suspension a mandatory requirement to the Security Council, in a Resolution we would aim to adopt I, say, early May.”
Note that an important reason advanced for a Chapter VII resolution is to transform a request to Iran from the IAEA Board to voluntarily suspend its enrichment-related activities – a request Iran could legitimately refuse – into a mandatory demand from the Security Council, perhaps eventually backed up by economic sanctions, if Iran refuses to comply.
For the US, John Bolton expressed it this way on 28 April 2006 :
“The purpose of acting under Chapter 7 is to invoke the mandatory compliance features of Chapter 7, which … would be binding on all UN members. Therefore, it’s not a matter of discretion for Iran. They have to comply or the Security Council is free to take other steps.”
Obviously, the US/EU are conscious of the shaky ground on which they currently stand in asking Iran to suspend enrichment. They know full well that Iran is within its rights in refusing to take any of the steps “required” of it by the IAEA Board resolution of 4 February 2006. As the resolution itself says, these steps amount to “confidence-building measures, which are voluntary, and non legally binding” and not required of Iran by the NPT. Understandably, therefore, the US/EU are anxious to move onto more solid ground where the Security Council orders Iran to take these steps in a Chapter VII resolution.
Iran a Threat to Peace?
Article 39 is the first article in Chapter VII of the UN Charter . It says:
“The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.”
Article 41 provides for economic sanctions and Article 42 for military sanctions.
Before a Chapter VII resolution is passed in respect of Iran – even recommendations under Article 40 without sanctions, which is envisaged by the US/EU initially – the Security Council has to formally declare that Iran is a “threat to the peace” or that a “breach of the peace, or act of aggression” has taken place. Even the most fertile minds in Washington and London would have difficulty making a case that Iran has been guilty of either of the latter (though it shouldn’t be ruled out – Iranian support for Hezbollah and Hamas might be construed as a breach of the peace), so the US/EU will most likely try to persuade Russia and China to indict Iran as a “threat to the peace”.
At a press conference on 28 April 2006, John Bolton was asked what case could be made that Iran was a threat to peace. He replied :
“I think that the evidence of Iran’s efforts to acquire nuclear weapons, its extensive program to achieve a ballistic missile capability of longer and longer range and greater accuracy, constitutes a classic threat to international peace and security, especially when combined with Iran’s long status as the world’s leading state sponsor of terrorism.”
He should think before opening his mouth – if the possession of nuclear weapons and ballistic missiles is a measure of a state’s “threat to peace”, then John Bolton has the privilege of representing the biggest “threat to peace” in the world – by a distance. And Iran is way, way behind.
Remember that Iran, unlike Israel, possesses no nuclear weapons, and there is no objective evidence that it is developing them. Remember that Iran, unlike Israel, has not invaded any of its neighbours in living memory and, when it was invaded by Iraq in 1980, the Security Council didn’t lift a finger to help, because the US/UK were cheering on Iraq at the time.
Yet the US/EU is about to press the Security Council to deem Iran a “threat to the peace”, something which it has never done to Israel – a Chapter VII resolution of any kind has never been passed against Israel, despite its possession of nuclear weapons and the means of delivering them, and its invasion of every one of its neighbours at one time or another, and its annexation of bits of them.
The supreme irony of this is that the US/UK, which invaded Iraq in 2003 causing the deaths of tens of thousands of people, are taking the lead in the indictment of Iran as a “threat to peace”. They were, of course, able to invade and occupy Iraq without being deemed a “threat to peace” by the Security Council because they wield a veto on the Security Council. By the same token, Israel has never been deemed a “threat to peace” by the Security Council, because it has a veto-wielding friend in Washington.
The corollary of this is that, if the five veto-wielding members of the Security Council decide to gang up on an ordinary UN member, with no veto and no special friend with a veto, it can be declared to be a “threat to the peace” without the slightest justification. It remains to be seen if Russia and China allow this to happen to Iran.
Amending the NPT
If Iran is forbidden to enrich uranium by a mandatory Security Council resolution, that is tantamount to amending the NPT, without Iran’s consent, to take away Iran’s right to engage in nuclear activities for peaceful purposes. Article IV(1) of the NPT would in effect become:
“Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty except Iran 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.”
At that point, Iran would be justified in withdrawing from the NPT, since rights that were supposedly guaranteed under the NPT when it signed up to in 1968 would have been taken away.
It remains to be seen if Russia and China go along with this denial of NPT rights to Iran. At the moment, they say that they are opposed to a Chapter VII resolution, even one without economic sanctions. But, both of them are opposed to Iran having enrichment facilities on its own soil, so they may support a Chapter VII resolution eventually. According to Sawers’ letter, the UK believes that they can be persuaded to agree to one without accompanying economic sanctions in the next few weeks.
New Offer to Iran
Sawers then envisages a new offer being made to Iran to supply fuel from abroad for its proposed nuclear power stations. Making such an offer to Iran is deemed to be a necessary condition for persuading Russia and China to go further and agree to another Chapter VII resolution, this time one with economic sanctions of some kind. Sawers writes:
“In return for the Russians and Chinese agreeing to this [initial Chapter VII resolution], we would then want to put together a package that could be presented to the Iranians as a new proposal. Ideally this would have the explicit backing of Russia, China and the United States as well as the E3, though Nick [Burns of the US] will want to consider the scope of presenting this in that way.
Our thought is that we would need to finalise this during June, and the obvious occasion to do so would be in the margins of the G8 Foreign Ministers’ meeting. The period running up to the G8 Summit will be when our influence on Russia will be at its maximum, and we need to plan accordingly.
“In parallel with agreeing a new proposal, we will also want to bind Russia and China into agreeing to further measures that will be taken by the Security Council should the Iranians fail to engage positively. … We would not, at this stage, want to be explicit about what would be involved then – there will need to be extensive negotiations on that in May/June.”
An offer from Russia for the supply of fuel to Iran has been on the table since last autumn. This is that Russia take uranium hexafluoride produced by Iran from domestic ore at Isfahan and enrich it in Russia, and produce fuel rods for return to Iran. This would mean Iran abandoning uranium enrichment at Natanz. Any new proposal is bound to be on similar lines, the key element being that Iran has no enrichment facilities on its own soil.
The Russian proposal has the support of the EU, and China – and of the US, which until November 2005 had not associated itself with any proposal of this kind to Iran. While Iran has not publicly accepted this proposal, even as a basis for negotiations, it has not rejected it out of hand either and fitful discussions seem to be continuing with Russia about it.
Note that, according to Sawers, the US is hanging back from being associated with any new proposal to Iran, along with the EU and Russia and China. This is a continuation of the US refusal to deal directly with Iran since 1979 (apart from the arms for hostages affair in the 1980s).
This principle has recently been breached with Bush’s authorisation of Zalmay Khalilzad, the US ambassador in Iraq, to talk directly to Iran about Iraqi matters. This authorisation was granted last November 2005, but no meetings have taken place as yet, even though Khalilzad has repeatedly asked Iran for a meeting – in early March an Iranian official showed John Snow of Channel 4 News evidence of Khalilzad’s requests. However, it now appears that no meetings will take place until after a new Iraqi government is established and in a position to take part.
It will be interesting to see if the US agrees to deal directly with Iran on nuclear issues as well.