|
The US
and the Iranian Nuclear Impasse
Middle East
Report
MER 241 - Winter 2006
Aslı Ü. Bâli
Aslı Ü. Bâli is
the Irving S. Ribicoff Fellow at Yale Law School and an editor
of Middle East Report.
The Nuclear
Non-Proliferation Treaty (NPT) underwent its most recent
five-year review in May 2005. There were numerous proposals on
the table for strengthening the global non-proliferation regime.
None were adopted. Perhaps even more puzzlingly, in an age when
the White House repeatedly invokes the specter of suitcase-size
nuclear weapons in the hands of terrorists, the United States
did not send a high-level delegate.
The bone of
contention at the conference was the bargain at the heart of the
NPT: non-proliferation of atomic weaponry in exchange for
disarmament by and civilian nuclear energy cooperation from the
nuclear powers. Debate centered ultimately on demands by
non-nuclear weapons states for stronger disarmament provisions,
while the US, backed to some extent by its European allies,
sought reinforced verification of treaty compliance and
non-proliferation requirements. With North Korea withdrawn from
the NPT, US concerns revolved around the Islamic Republic of
Iran. Indeed, one analyst interpreted the failure of the
conference as a consequence of disagreements between the US and
Iran.[1]
In the runup to
the meetings, Tehran appeared extremely concerned that the 2005
NPT review might result in strong support for new restrictions
on access to the nuclear fuel cycle or even a specific proposal
to prevent Iran from producing nuclear fuel. Fortunately,
perhaps, from the Iranian perspective, no such proposals were
broached during the meetings, where the US deliberately kept the
focus on process rather than substance, ensuring that none of
the contentious issues before the review session were ever
openly debated.
Why would the
NPT’s chief architect resist the strengthening of a framework
that preserves the status quo of nuclear weapons haves and
have-nots? How can we reconcile the US priority on
non-proliferation enforcement with the international record of
inconsistent enforcement, with known proliferators escaping any
consequence and other suspected proliferators facing severe,
punitive sanctions? As the case of Iran illustrates,
inconsistent enforcement is often a function of US intervention,
in partial concert with other great powers, for political
reasons that are independent of legal non-proliferation norms.
US obstructionism at the 2005 review conference only makes sense
when we see non-proliferation as an instrument of US
geopolitical strategy rather than an end in itself, or an
international legal norm to be protected in its own right.
Roadblocks
Following the
onset of the Iran-Iraq war, the new president of the Islamic
Republic, Ali Akbar Hashemi-Rafsanjani, restarted the nuclear
energy program that had begun, with US acquiescence, under the
Shah, but had lain dormant since his ouster in 1979. Rafsanjani
sought to buy uranium fuel for power generation and, later, to
acquire some components of the technology needed to enrich
uranium ore—of which Iran possesses deposits—to fuel grade.
Initial efforts
to enter into talks with the German company that was under
contract during the Shah’s reign to construct two nuclear
reactors in Bushehr were rebuffed. Iranian attempts to acquire
enriched uranium from the Eurodif uranium enrichment plant—in
which the Shah had invested over $1 billion in exchange for a
promise of 10 percent of the output—also failed. By the
mid-1990s, Tehran had concluded that access to Western European
markets for its nuclear program was extremely restricted.
Unable to find a
Western European supplier, Iran approached Argentine, Brazilian,
Chinese, Pakistani and Russian companies either for completion
of work on the Bushehr reactors or to acquire additional
research reactors. Eventually, Iran was able to conclude a deal
to purchase a small research reactor from China, but only that,
largely as a result of US interventions.[2] In the mid-1990s,
China abandoned an agreement to assist Iran with the
construction of a uranium conversion facility at Isfahan, though
Iran retained the Chinese blueprints and informed the
International Atomic Energy Agency (IAEA) of its intention to
build a uranium hexafluoride conversion plant at Isfahan during
a November 1996 IAEA inspection of the site.[3]
Rafsanjani’s
efforts finally bore fruit in the form of an $800 million
contract with the Russian nuclear energy ministry to complete
work on a light-water reactor at Bushehr. The Russian deal
originally envisioned the completion of the reactor by 2000, but
the completion date and the cost of the contract have both been
adjusted numerous times. The course of Russian-Iranian nuclear
energy cooperation has also been marked by repeated US efforts
to persuade Russia to desist and to impede Iranian access to
other materials necessary for the Bushehr facility.
US policy on
Bushehr has been driven by a number of factors, including
concern that the Iranian-Russian agreement might serve as cover
for transfer of more sensitive nuclear technology to Iran or
provision of training for Iranian nuclear specialists that might
later find military applications. But there has never been any
suggestion that completion of a nuclear reactor at Bushehr would
contravene Iranian or Russian non-proliferation obligations.
Rather, US concerns about the nature and intentions of the
regime in Tehran drove Washington to attempt systematic blockage
of Iranian access to open-market sources of civilian nuclear
cooperation or technology transfers that are permissible under
the NPT. Through diplomatic pressure, the threat of direct
secondary sanctions and the threat of lost access to US markets
for companies willing to do business with Iran, the Clinton
administration successfully cut off most avenues for Iranian
access to trade in civilian nuclear technologies during the
1990s.
This policy of
restricted access was in tension with the spirit of the NPT,
which expressly allows non-nuclear states to pursue civilian
nuclear energy programs in exchange for forgoing the pursuit of
nuclear weapons. Further, nuclear material and technology
transfers conducted through open-market transactions are
automatically subject to IAEA inspections for any country that,
like Iran, has concluded a safeguards agreement with the Agency.
Finally, light-water reactors are widely acknowledged to have
little potential to contribute to a nuclear weapons program.[4]
Indeed, the obstruction of Iranian efforts at Bushehr was
ultimately counterproductive from a non-proliferation
perspective. In particular, US policy regarding Bushehr has
fueled Iranian claims that the US has driven Iran to seek
nuclear material and technologies from black-market sources and
develop a nuclear program clandestinely.
Revelations
Iran’s
reinvestment in its nuclear energy program rose to the top of
the international non-proliferation agenda in August 2002, when
the National Council of Resistance of Iran (NCRI), the
“political wing” of an exiled opposition group, the Mojahedin-e
Khalq, publicized the existence of two undeclared nuclear
facilities in Iran: a centrifuge-based uranium enrichment plant
at Natanz and a heavy water production plant at Arak. Shortly
after the revelations, Iran declared its intention to embark on
a “long-term plan to construct nuclear power plants with a total
capacity of 6,000 megawatts within two decades,” including
pursuit of the full fuel cycle.[5] While the goals of the new
Iranian energy program were more modest than the Shah’s, they
were still considerably more advanced than anything the Islamic
Republic had previously laid out.
The IAEA
intensified its scrutiny of Iran’s nuclear program, publishing
12 reports since June 2003 documenting unreported Iranian
activities over an 18-year period. IAEA inspections at Natanz
and Arak quickly confirmed the NCRI allegations. The heavy water
reactor program consists of a heavy water production plant under
construction at Arak and a planned reactor on which construction
has not yet begun. The uranium enrichment program at Natanz
consists of a pilot-scale gas centrifuge enrichment plant that
went into operation in June 2003. A commercial-scale enrichment
facility is also under construction.
While Iran’s
failure to report plans to construct these facilities is
unfortunate, in the end the construction of the facilities is
not actually a violation of Iran’s IAEA safeguards obligations.
In particular, Iran is not required to report the existence of
facilities where no fissile materials are present. In the case
of the Arak facilities, which are still under construction or in
the planning phase, fissile materials cannot yet be introduced
and therefore no violation has occurred. In the case of the
uranium enrichment facilities, whether Iran violated its
safeguards obligations depends crucially on whether nuclear
material was introduced into the pilot-scale Natanz facility
before the plant went into operation. Doing so in secret would
be a serious violation of the safeguards agreement. Iran has
denied that any nuclear material was introduced into the
facility prior to the first IAEA inspection of it in February
2003. In its June 2003 report following initial inspections of
both sites, the IAEA did not find violations of Iranian
reporting obligations related to the construction of facilities
at either Natanz or Arak.
But three years
of inspections have revealed numerous other reporting
violations. The record of covert Iranian nuclear activities
uncovered by the IAEA includes undeclared enrichment activities,
undeclared reprocessing experiments and the import of undeclared
fissile materials from foreign suppliers in a quest for an
indigenous nuclear fuel cycle. None of these activities are
prohibited in and of themselves, by the NPT or the safeguards
agreement, but they are supposed to be reported to the IAEA. In
addition, evidence revealed by IAEA inspections led to the
discovery of Iranian ties to the A. Q. Khan black-market nuclear
supply network.
Iran protests
that it has been barred from developing a civilian nuclear
energy program in the open, principally by US efforts. Further,
Iran claims that it requires an indigenous nuclear fuel cycle
because it has also faced systematic discrimination in its
efforts to purchase fuel to power its reactors. This
discrimination is a result both of direct US intervention to
cancel contracts and sanction firms that do business with Iran
and indirect intimidation of foreign companies by the threat of
such measures. The US, by contrast, argues that Iran is pursuing
a clandestine nuclear weapons program—either an actual arsenal
or a latent capability that would serve as a virtual deterrent.
The deadlock is as much a matter of perceived interests and
perceived intentions as it is of the objective record of Iranian
compliance with its safeguards obligations.
Reporting
Violations
In October 2003,
Iran provided the IAEA with what it termed a comprehensive
report of all its covert nuclear activities, including
considerable detail about its P-1 centrifuge enrichment program.
It was not until January 2005, however, that Iran revealed
having received an offer from the A. Q. Khan network in 1987
that included a sample P-1 machine, drawings and production
specifications for a complete centrifuge plant and parts for
2,000 P-1 centrifuges, as well as uranium conversion and casting
equipment.[6] The IAEA is still seeking the original
documentation from the Iranian government related to this offer,
as well as the paperwork associated with four shipments of P-1
centrifuge parts and designs that occurred between 1994 and
1995. In addition, the IAEA learned in January 2004 that Iran
acquired design materials for the more advanced P-2 centrifuge
parts in 1995.[7] Tehran claims that no work was carried out on
P-2 centrifuges until 2002, with its scientists focused until
that time on the P-1 program. Unsatisfied, the IAEA has said
that this explanation does not “yet provide sufficient assurance
that no related activities were carried out” in the intervening
seven years.
Iran also
imported nuclear materials—uranium hexafluoride, uranium
tetrafluoride and uranium dioxide—from China in 1991. These are
all forms of uranium that are used in various phases of
conversion and enrichment to generate nuclear fuel. As such,
these imports should have been reported at the time of purchase,
but were only acknowledged by Iran in 2003. Iran’s confirmation
of receipt of these materials in a letter to the IAEA noted that
Tehran did not believe it had broken a reporting obligation, in
that the total imported quantity was less than “one effective
kilogram” of uranium.[8] In making this argument, the Iranians
relied on a provision of the safeguards agreement, Article 95,
specifying that advance reporting of imports is only required
when the quantity is greater than one effective kilogram of
nuclear material. However, the relevant provision in this case,
Article 34(c), requires that an import be reported as a change
in the inventory of the country’s nuclear material, regardless
of quantity.
IAEA inspections
also revealed that the Kalaye Electric Company had been involved
in Iran’s covert enrichment program. Iranian officials initially
acknowledged that the facility had been used to make centrifuge
components, noting (rightly) that a centrifuge production
facility is not subject to reporting requirements. However,
subsequent acknowledgment by Iran of a “limited number of tests,
using small amounts of uranium hexafluoride” having been
conducte at Kalaye between 1999 and 2002 rendered it subject to
inspection.[9] After several months’ delay, inspectors were
permitted to take environmental samples that revealed particles
of highly enriched uranium (HEU) and low-enriched uranium, which
were later also found at the Natanz facility. These discoveries
ultimately led to further revelations concerning the links
between Iran and the Khan network. In its September 2005 report,
the Agency was able to corroborate Iranian claims that the HEU
particles came from contamination of materials purchased from
Pakistan through the Khan network while investigations continue
on the provenance of the low-enriched uranium particles.
Iran’s enrichment
efforts were not confined to gas centrifuge facilities, as was
revealed by IAEA inspections in the fall of 2003. In its
November 2003 report, the Agency detailed a 12-year laser
enrichment effort, including a pilot plant that was established
in 2000 but never completed as a result of failure to obtain
export licenses to acquire necessary equipment. The laser
enrichment program was apparently abandoned in 2003.
In its own
October 2003 declaration, Iran revealed that it had conducted
plutonium reprocessing experiments in Tehran, providing
additional information under pressure from the IAEA in May 2004.
Inspections also revealed that Iran had experimented with
polonium-210 between 1989 and 1993.[10] Iran informed the Agency
that the material had been planned for use in nuclear batteries;
the IAEA noted, however, that it remained “somewhat uncertain
regarding the plausibility of the stated purpose of the
experiments.”
Finally, acting
on Western intelligence reports and the concerns of the IAEA
board of governors, the Agency has sought Iran’s cooperation in
inspecting two military sites. The IAEA was not granted access
to the Parchin military complex (south of Tehran) until January
2005, eight months after the initial request. During the visit
inspectors were only permitted to visit certain parts of the
site and were restricted in the areas from which they could take
environmental samples. The Agency also sought access to the
Lavizan site, an area that had contained a military complex,
which was razed in November 2003. Following NCRI allegations
that Lavizan’s activities had been relocated to hide a nuclear
program, Iran explained that the move was a result of a dispute
with the local municipality. Environmental samples taken at the
site revealed no nuclear materials, but the Agency noted in
November 2004 that “detection of nuclear material in soil
samples would be very difficult in light of the razing of the
site.” Nonetheless, Iranian documents provided to the IAEA
supporting the claimed purpose of the razing of the site have
been deemed “coherent and consistent with [Iran’s]
explanation.”[11]
Based on the
inspections’ results, the Agency concluded in November 2004
that:
Many aspects of Iran’s nuclear fuel cycle
activities and experiments, particularly in the areas of
uranium enrichment, uranium conversion and plutonium
separation, were not declared to the Agency in accordance
with Iran’s obligations under its Safeguards Agreement.
Iran’s policy of concealment continued until October 2003,
and has resulted in many breaches of its obligation to
comply with that Agreement. Since that time, good progress
has been made in Iran’s correction of those breaches and in
the Agency’s ability to confirm certain aspects of Iran’s
current declarations, which will be followed up as a routine
safeguards implementation matter.[12]
Despite finding
numerous reporting violations, the IAEA has yet to find Iran in
non-compliance with the NPT itself.
The IAEA board of
governors tends to follow the Agency staff’s lead. Beginning in
2002, however, the US has argued vociferously in board meetings
that the discrepancies in Iran’s reporting establish a pattern
of deception sufficient to find Iran in non-compliance with the
NPT. Washington’s emissaries persisted in these arguments
despite Agency findings that indicated greater Iranian
cooperation. In November 2003, for example, John Bolton, then
undersecretary of state for arms control and non-proliferation,
called an Agency report welcoming Iran’s new “policy of full
disclosure” “impossible to believe.”[13] In September 2005, the
intense US diplomacy succeeded at last: The board issued a
resolution finding that “Iran’s many failures and breaches of
its obligations to comply with its NPT Safeguards Agreement
constitute non-compliance” and threatening to refer Iran to the
UN Security Council should it fail to improve its cooperation
with Agency inspectors and suspend its uranium
enrichment-related activities. Strikingly, the strongly worded
resolution followed on the heels of a relatively positive report
from the Agency staff. Indeed, the IAEA director-general,
Mohamed ElBaradei, has consistently discouraged a Security
Council referral, believing that non-proliferation objectives
would be better served by ongoing inspections and negotiations
for suspension of enrichment. Following the September 2005 board
resolution, ElBaradei voiced his continuing hope that Iran and
its Western interlocutors would return to negotiations.[14] The
timing of the board’s resolution—on the heels of a relatively
positive Agency report, but coinciding with the collapse of
negotiations between Iran and European diplomats—suggests that
the political objective of persuading Iran to halt enrichment,
rather than enforcement of treaty obligations, lay behind the
board’s findings.
Enter the EU-3
The IAEA board of
governors is a political body comprised of the representatives
of 35 governments that occupy board seats on a rotating basis.
In contrast to the Agency secretariat, which is concerned with
technical monitoring, inspection and verification, the board is
charged with interpreting the Agency findings and making
determinations regarding NPT and safeguards obligations case by
case. The Iranian case is complicated by the fact that political
negotiations with a small subset of governments from the IAEA
board were set in motion in parallel with intensified
inspections since the 2002 revelations.
With stepped-up
inspections and repeated Western expressions of concern that
Iran may have a covert nuclear weapons program, Iranian
officials began to complain of double standards in the
enforcement of the non-proliferation regime. During a May 2003
presentation at IAEA headquarters in Vienna, Reza Aghazadeh,
president of the Atomic Energy Organization of Iran, argued: “At
present over 12 countries are engaged in uranium enrichment
activities…. Can one claim that all these countries are working
to develop nuclear weapons?” The invocation of double standards
was likely especially resonant for Iran’s neighbors, in light of
Israel’s well-known clandestine nuclear program. But the specter
of double standards has wider resonance in the developing world,
and particularly among the states that belong to the non-aligned
movement. Iranian officials also repeatedly emphasized the
renunciation by the Islamic Republic of any aspiration to
nuclear weapons, which they have called “inhuman, immoral,
illegal and against our basic principles.”[15]
Despite Iranian
efforts to assuage international fears, however, the first year
of inspections resulted in a toughly worded IAEA board
resolution in September 2003, prompting a brief Iranian walkout
from the IAEA meetings. The September 2003 resolution set a
deadline for improved Iranian cooperation with the IAEA by
October 31, in advance of the board’s November meeting, wielding
an implicit threat of a referral to the Security Council. The
initial Iranian response was to threaten suspension of its
cooperation with the Agency and to accuse Washington of “having
new invasion plans after Iraq.” Following this heated rhetoric,
however, an Iranian delegation entered into negotiations with
European diplomats to develop arrangements for more stringent
inspections and more complete disclosure regarding past
activities.
The negotiations
were spearheaded on behalf of the European Union by the
governments of Britain, France and Germany (the “EU-3”).
Significant progress was made in the initial discussions,
resulting in a joint statement of agreed measures to bring Iran
into full compliance with the requirements of the September IAEA
board resolution. Under the terms of the document, known as the
Tehran Declaration, Iran agreed to engage in full cooperation
with the IAEA to resolve all outstanding issues with
transparency, to sign the IAEA Additional Protocol, subjecting
Iranian facilities to spot inspections, and to suspend all
uranium enrichment and reprocessing activities. The wording of
the declaration with respect to suspension of enrichment is
worth citing in full: “While Iran has a right within the nuclear
non-proliferation regime to develop nuclear energy for peaceful
purposes it has decided voluntarily to suspend all uranium
enrichment and reprocessing activities.” Thus, Iran succeeded in
underscoring its right to develop nuclear energy and the
voluntary nature of the suspension, while the EU-3 secured a
confidence-building measure sufficient to hold off further US
pressure for immediate action against Iran while the IAEA
continued its inspections. In addition, the EU-3 promised
longer-term cooperation with Iran including “easier access to
modern technology and supplies in a range of areas.”
While the Tehran
Declaration was an important diplomatic breakthrough, it had two
weaknesses. First, the scope of the suspension and the
activities that it covered were not clearly specified and proved
to be contentious. Second, the incentive of the EU-3 promise of
easier access to technology would only be realized subsequent to
an IAEA finding that all outstanding issues had been resolved.
This left Iran with no short- or medium-term incentives for
continued suspension. Initial Iranian compliance was good
despite these weaknesses, with the IAEA declaring that Iran had
submitted a “comprehensive” declaration of its nuclear program
by October 31 in compliance with the IAEA board deadline.
Further, an IAEA report on November 11 found no evidence of
diversion of Iranian nuclear materials to non-peaceful purposes.
However, reports that Iran was continuing centrifuge assembly
work despite the agreed suspension were met with accusations
that Tehran was violating the declaration by December 2003. Iran
responded that it did not consider centrifuge assembly to be
covered by the suspension. Ultimately, under European, US and
IAEA pressure, Iran agreed to cease building centrifuges in
February 2004. However, when a subsequent IAEA board resolution
in June 2004 expressed concern that Iran’s interpretation of the
suspension was at variance with that of the Agency, Iran
expressed its own irritation by resuming the centrifuge assembly
work. In the end, Iran and the EU-3 engaged in mutual
recriminations over the breakdown of their agreement, with
European diplomats accusing Iran of bad faith in its narrow
interpretation of the agreed suspension of enrichment activities
and Iran accusing the EU-3 of failing to facilitate Iranian
access to technologies.
By September
2004, the Iranian case had once again assumed urgency for the
IAEA board, with the suspension of enrichment activities no
longer in place and numerous additional revelations over the
course of inspections in 2004 casting doubt on the completeness
of Iran’s declaration of its nuclear program in October 2003.
With heightened concerns prompted particularly by the discovery
of HEU particles at the Natanz and Kalaye facilities, the board
issued another tough resolution in September 2004, almost one
year to the day after its previous ultimatum demanding full
Iranian cooperation. While the September IAEA report actually
found improved Iranian cooperation on unresolved issues, the
board resolution demanded immediate suspension of enrichment
activities and expressed deep regret that Iran’s compliance with
the Tehran Declaration fell short of board expectations. Still,
the board declined to refer the Iranian case to the Security
Council, despite continued US pressure to do so.[16] Instead,
the resolution afforded Iran a period until the next board
meeting on November 25 in which it could suspend its enrichment
activities. Against this backdrop, the EU-3 presented Iran with
a new proposal on October 21, opening a new round of
negotiations that continued until mid-November. The EU-3
pressured Iran to accept an indefinite suspension of its
enrichment activities with a specific definition of the scope of
activities to be covered under the suspension. In return, Iran
was offered a package of incentives including a guaranteed
nuclear fuel supply, access to civilian nuclear technology,
economic assistance and support for Tehran’s application to the
World Trade Organization. While Iran remained consistent in
refusing to accept an indefinite suspension of its enrichment
activities, it proved willing to compromise on a far-reaching
suspension for a “reasonable” period as a confidence-building
measure.[17]
A new agreement
between the EU-3 and Iran, known as the Paris Agreement, was
announced on November 15, 2004. Under this document, Iran agreed
voluntarily to suspend its enrichment and reprocessing
activities, which were specifically defined. Following IAEA
verification of suspension, negotiations on a longer-term
agreement between the EU-3 and Iran were to commence.
Specifically, these negotiations were expected to yield an
agreement that “will provide objective guarantees that Iran’s
nuclear program is exclusively for peaceful purposes…[and]
equally provide firm guarantees on nuclear, technological and
economic cooperation and firm commitments on security issues.”
Even as the agreement was being concluded, however, the
political context for its implementation remained fraught. In
the same month, for instance, then-Secretary of State Colin
Powell accused Iran of developing delivery systems for nuclear
warheads by adjusting the design of the Shihab-3 missile.[18]
With the US expressing its ongoing belief that Iran was pursuing
a covert nuclear weapons program, the reference to “firm
commitments on security issues” was unlikely to provide great
comfort to the Iranian government. Indeed, EU-3 promises of
nuclear and technological cooperation and security guarantees
were both hollow in the absence of US support for the Paris
Agreement, since the threat of US sanctions against European
companies would likely stall cooperation while the EU-3 would
hardly be able to provide security guarantees in the face of US
regime change policies. Further, the Paris Agreement suffered
from vagueness in two crucial respects: the definition of
“objective guarantees” and the duration of the Iranian voluntary
suspension. These weaknesses would prove to be serious stumbling
blocks as negotiations got underway.
Issued on the
same day as the Paris Agreement, the November 2004 IAEA report
found that all nuclear materials in Iran had been accounted for
and that no evidence had been uncovered of any military nuclear
program. The report cautioned, however, that the existence of a
weapons program could not be discounted as a result of
incomplete information and a series of unresolved questions. A
generally positive IAEA board resolution followed on November
29, welcoming the Iranian decision to suspend its enrichment
program and calling on ElBaradei to verify the suspension and
resolve all outstanding questions. Over the course of December
and January, the IAEA discovered that Iran was completing
uranium processing begun prior to the November suspension, but
all such activity was verified to have ended by February 2005.
Although implementation of the suspension aspect of the
agreement was complete by February, negotiations between the
EU-3 and Iran concerning the longer-term agreement were
flagging.
Diplomacy
Stalls
Negotiations
between the EU-3 and Iran reportedly got underway in January
2005, with the Europeans seeking to put together an attractive
package of nuclear cooperation and generous economic assistance
to persuade Iran to forgo the development of an independent
nuclear fuel cycle. As negotiations began, however, the State
Department announced that it was penalizing eight foreign
companies under the Iran Non-Proliferation Act of 2000 for
transferring to Iran technologies deemed restricted by the US
legislation. Secondary sanctions imposed by the US on foreign
companies engaging in trade with Iran were an important source
of frustration for Iranian diplomats relying on the Paris
Agreement for improved access to open-market sources for
technology and nuclear cooperation. Similarly, Secretary of
State Condoleezza Rice’s statement in February that the US would
withhold its support from the EU-3 incentives package was a blow
to the credibility of European commitments. Following President
George W. Bush’s late February trip to Europe, senior Iranian
officials apparently concluded that the Paris Agreement was dead
for lack of US support for any guarantees short of complete
cessation.
These Iranian
conclusions did not, however, prompt an immediate withdrawal
from negotiations or a resumption of enrichment activities.
Rather, Iranian officials continued to press to see whether
“objective guarantees” short of complete permanent cessation of
enrichment activities were attainable. For instance, President
Mohammad Khatami stated that although ending Iran’s uranium
enrichment program would be “completely unacceptable,” Iran
would be willing to provide any “objective guarantees” of the
peaceful uses of enrichment requested by the EU-3 or the IAEA.[19]
Iran proposed a package to the EU-3 in late March, agreeing to
permanent halts of its broader uranium enrichment program and
planned reprocessing program in exchange for economic and
technical assistance and the continued operation of its pilot
enrichment facility under a system of “objective guarantees”
implemented by the IAEA. Among the proposals put forth by the
Iranian side was a “phased approach” involving enhanced IAEA
monitoring and on-site IAEA inspectors to be permanently
stationed at the enrichment facility. While the Iranians
believed that the offer of an enhanced monitoring scheme coupled
with the phasing of any progress toward the fuel cycle
represented an important step toward satisfying international
concerns about the intentions of the Iranian program, the
Europeans were reportedly not prepared to accept any measure
short of complete cessation of enrichment activities as an
adequate “objective guarantee.”[20]
Following the
European rejection of the Iranian proposal, Iranian negotiators
imposed a July 31 deadline on the EU-3 to prepare a
counter-proposal. There is reason to believe that the Iranian
claims of an agreement between the Europeans and US officials
concerning the limits of permissible results from the
negotiations are accurate. For instance, reports in May 2005
suggested that the EU-3 had reached an agreement with the US to
call for UN Security Council action if their negotiations with
Iran failed to secure an agreement to full cessation of
enrichment activities.[21] Despite these reports, Iran again
offered a proposal to the European delegation in July to try to
break the impasse in negotiations. This mid-July offer
contemplated the phasing of any permitted enrichment activity to
prevent sufficient quantities of nuclear material for a weapons
program from ever accumulating while also offering multinational
participation in the enrichment pilot project to add an
additional layer of international supervision and control. This
proposal, too, was rejected.
The EU-3 finally
offered their counter-proposal on August 5, five days after the
Iranian deadline had expired. In the interim, Iran announced on
August 1 that it would resume uranium conversion activities
under IAEA supervision. The 34-page European proposal, entitled
“Framework for a Long-Term Agreement,” reportedly acknowledged
Tehran’s right to “a safe, economically viable and
proliferation-proof civil nuclear power generation and research
program.” But, it stipulated, Iran would have to “make a binding
commitment not to pursue fuel cycle activities other than the
construction and operation of light water power and research
reactors” to get European help in obtaining nuclear fuel.[22]
The proposal was
officially rejected on August 6 when Iranian Foreign Ministry
spokesman Hamid Reza Asefi stated that any proposal would have
to recognize Iran’s “inalienable right” to an enrichment
program. The collapse of the Paris Agreement and Iran’s
resumption of uranium conversion, in turn, prompted emergency
meetings of the IAEA board of governors, resulting in a
resolution demanding renewed suspension of all activities
related to the nuclear fuel cycle. The resolution set the stage
for the nearly inevitable confrontation between Iran,
representatives of the EU, US officials and the IAEA at the
September 2005 IAEA board meetings.
While diplomacy
stalled, there was welcome news concerning fears of a covert
Iranian weapons program. First, the ongoing IAEA investigation
into the HEU particles determined that they had not been
produced in Iran, confirming Iranian claims that the traces
arrived on contaminated parts imported from Pakistan. Second,
the CIA released a new National Intelligence Estimate in July
2005 regarding the progress of the Iranian nuclear program.
Revising a 2000 projection, the new estimate concluded that
Iran’s nuclear program was at least ten years away from being
capable of building an atomic bomb, pushing the new projection
past 2015. The extension of the timeline was supported by
revisions in Israeli and British estimates.
Nevertheless,
Iran faced the most severe IAEA board resolution yet, with an
explicit threat of Security Council referral on September 24.
Specifically, the board resolution threatened to refer Iran to
the Security Council as a result of “Iran’s many failures and
breaches of its obligations,” unless the Iranian government
renewed and drastically improved its cooperation with the
Agency, suspended its uranium enrichment-related activity,
reconsidered construction of the heavy water reactor at Arak and
ratified the Additional Protocol. Of the 35 countries
represented on the IAEA board in September, 22 voted in favor of
the resolution, including all of the European members, the US,
Canada, Australia, Japan and, notably, Iran’s long-time ally
India. Twelve countries, including Russia and China, abstained
and only one country, Venezuela, voted no. The vote represented
one of a few instances where the board of governors has acted
without unanimity. Despite the divided vote, all board members
agreed that Iran should resume its freeze on uranium enrichment
activities and return to negotiations with the EU-3.
Escalation
The battle lines
were now clearly drawn on the key issue of uranium
enrichment—with Iran increasingly vocal in its insistence on its
right under the NPT to enrich uranium as a necessary step toward
developing a domestic fuel cycle and the US, along with its
European allies, adamant that Iran must give up
enrichment-related activities.
On December 21,
2005, European negotiators met with their Iranian counterparts,
for the first time since August, in Vienna. Prior to the
meeting, the Europeans (and, more reluctantly, the US) had
embraced a Russian proposal whereby Iranian scientists would
conduct some fuel-cycle research at home but would conduct
enrichment-related research in conjunction with Russian
scientists on Russian soil. In Tehran, the Iranian foreign
minister elucidated the Islamic Republic’s negotiating stance:
“When we talk about nuclear technology to produce fuel for our
reactors it means enrichment and having the complete nuclear
fuel cycle.” The sides agreed to keep talking, and Iran met face
to face with Russia to clarify “ambiguities” in Moscow’s offer,
but in the meantime Iran notified the IAEA of its intention to
break IAEA seals on enrichment-related equipment in Natanz and
resume its own research, which, Iran said, “has been suspended
as part of its expanded voluntary and non-legally binding
suspension.”
The seals were
broken on January 10, 2006. Two days later, the EU-3 announced
that talks with Iran had reached a “dead end,” and called for an
emergency meeting of the IAEA board of governors, a step
welcomed by Secretary of State Rice as a prelude to referring
Iran to the Security Council. At a press briefing, Rice said
that “these provocative actions by the Iranian regime have
shattered the basis for negotiation…. There is simply no
peaceful rationale for the Iranian regime to resume uranium
enrichment.” Iran vowed to cease voluntary cooperation with the
stricter inspections required by the Additional Protocol if the
board of governors placed the Iranian dossier before the
Security Council. Tehran’s renewal of contacts with Moscow about
the Russian offer briefly delayed the board of governors’
meeting, but on February 4 the board passed a resolution
demanding that Iran renew suspension of enrichment, “reconsider”
its plans for a heavy water reactor and resume transparent
dealings with the IAEA. The resolution also requested ElBaradei
“to report to the Security Council of the United Nations that
these steps are required of Iran” and to keep the Security
Council apprised of all subsequent Agency findings regarding
these requirements. Iran, in response, told the IAEA to remove
from nuclear sites surveillance cameras and other monitoring
equipment that had been installed as part of the stricter
inspection regime. The ensuing stalemate led to the sharpest
rebuke yet to Tehran on the nuclear issue, a March 29
presidential statement from the Security Council calling on Iran
to suspend enrichment activities. “Iran is more isolated now
than ever,” Rice claimed.
These events took
place against a backdrop of heightened political tensions
between the Islamic Republic and the West. Beginning in the fall
of 2005, Iranian President Mahmoud Ahmadinejad made a series of
speeches that questioned the veracity of historical research
about the Holocaust and suggested that the present system of
government in Israel is destined to fall. These statements were
seized upon by the Israeli government and pro-Israel groups in
the US, among others, as backing for their long-standing
contention that Iran’s nuclear program, which they believe to be
military in nature, poses an existential threat to Israel and
must be eliminated. There were persistent media reports that the
Bush administration was considering—and even actively planning—airstrikes
or other military measures to destroy or retard the progress of
Iran’s nuclear program, possibly as part of a strategy of regime
change in Tehran. Veteran investigative journalist Seymour Hersh
published the most detailed of these stories, including the
explosive allegation that elements of the Bush administration
were pondering the use of nuclear warheads to destroy Iranian
facilities buried deep underground.[23] In response to these
stories, US officials, including Bush himself, have maintained
that their efforts are focused on passing sanctions against Iran
at the Security Council, though they have pointedly declined to
“take other options off the table.” The creation of a new Office
of Iranian Affairs based in the US embassy in the United Arab
Emirates was another signal that fueled suspicions of a
continuing regime-change motivation at the heart of US policy.
The US push for
sanctions, and the increasingly broad hints from EU-3 government
officials that they, too, would favor sanctions, did not come as
a result of any fresh violation by Iran of the letter of its
obligations under the NPT or the safeguards agreement, and ran
counter to the spirit of Agency recommendations. The initial
IAEA report to the Security Council, on March 8, while it did
not “conclude that there are no undeclared nuclear materials or
activities in Iran,” otherwise only confirmed the permitted
activities that Iran had announced. In various statements,
ElBaradei called for a “cool-headed” approach from all parties
and requested them to “lower the pitch” of political rhetoric,
so that Agency verification and monitoring might proceed
unhindered. European warnings about Security Council sanctions
were rather tied to Iran’s failure to resume negotiations with
the EU-3, talks which aimed to produce Iran’s renunciation of
its right to enrichment and which could not promise security
guarantees in return. US pressure was prompted, similarly, not
by a desire to see the resumption of verification inspections
but by the political goal of denying Iran an enrichment capacity
protected by the NPT.
The lack of a
firm legal basis for Security Council action against Iran was
one important factor impeding US efforts to persuade other great
powers, particularly Russia and China, to back sanctions. Even
after Iran announced, amidst ostentatious ceremony, on April 11
that its scientists had succeeded in enriching small amounts of
uranium (to a low level very far from weapons grade), there was
no great power consensus behind punitive measures. Frustrated,
the US tried another tack. On May 31, Rice dismayed Washington
hawks by offering direct talks with the Islamic Republic over
ways to facilitate a peaceful nuclear energy program. “As soon
as Iran fully and verifiably suspends its enrichment and
reprocessing activities,” Rice said, “the United States will
come to the table with our EU-3 colleagues and meet with Iran’s
representatives.” This offer, while perhaps a victory for State
Department “realists” over less compromising elements in the
administration, was rejected by Tehran as a “propaganda move.”
Iranian officials pointed, once more, to the fact that the US
was asking Iran to surrender an NPT prerogative as a
precondition of engagement. On June 2, the US joined five other
nations, Britain, France, Germany, Russia and China, in offering
a package of commercial incentives, including support for
Iranian membership in the World Trade Organization, if Iran
halted uranium enrichment.
When Iran had not
lodged an official response within the timeframe dictated by the
six powers, Iran was referred back to the Security Council. On
the same day, July 12, Israel launched a massive assault on
Lebanon following a Hizballah raid into northern Israel. The US,
backed by the other great powers, laid the blame for the
escalating war in Lebanon squarely on Hizballah, an Iranian
ally, and President Bush accused Iran of complicity in the
original raid. Though Iran had not yet given an official reply
to the six-nation package, deliberations about the terms of the
offer were eclipsed by the sense of building confrontation
between Tehran and Washington. The eventual Iranian
counter-offer, proposing international participation in a fuel
program on Iranian soil, was dismissed out of hand by the US and
the EU-3, likely bolstering the belief of Iranian officials that
the West did not really want compromise. On July 31, with the
Lebanon war still raging unattended to by the Security Council,
the UN’s supreme body passed Resolution 1696, which demanded
that Iran suspend its uranium enrichment activities or face
“appropriate measures” from the Security Council to ensure its
compliance. As Iran has not complied, the US continues to press
for sanctions.
Hawk
Engagement
The forgoing
suggests that there are additional issues at stake in the
stalemate over Iran’s nuclear program beyond the implementation
of safeguards commitments. Under the NPT, the safeguards
agreement and the Additional Protocol, Iran is entitled to
engage in enrichment or reprocessing activities for its civil
nuclear energy program. While there is no question that Iran has
been guilty of serious reporting failures over the course of
nearly two decades, the IAEA has not (yet) found evidence of
diversion of nuclear materials to military purposes in Iran.
Moreover, the IAEA has repeatedly welcomed corrective action by
the Iranian government to remedy past reporting violations. Iran
has also now signed (but not ratified) the Additional Protocol,
subjecting itself, albeit voluntarily until ratification, to a
much more intrusive inspections regime than it had faced prior
to 2003. Furthermore, Iran is still seeking to acquire the
technology to enrich uranium in significant quantities. At this
quite preliminary stage of nuclear development, the technologies
required for civilian and military use are basically identical.
Iran is permitted under the NPT to pursue an indigenous nuclear
fuel cycle provided that its facilities and materials are under
tight IAEA supervision. Nor is Iran under any legal obligation
to suspend these operations provided that Tehran complies with
inspections and reporting requirements.
That said, the
language and authority of Resolution 1696 has slightly changed
the legal landscape.[24] The council acted under Article 40 of
Chapter VII of the UN Charter, making suspension
compulsory. Article 40 governs provisional measures, in which
category the requirement of enrichment suspension presumably
qualifies, as it is not a demand for full and permanent
cessation of all enrichment activity. On the other hand, the
resolution invoked Article 41 of Chapter VII as the legal basis
for future action in the event of Iranian non-compliance, making
suspension an enforceable obligation under international law.
Iran may now face an international legal obligation for a
provisional suspension of all activities. Yet this political
exercise of Security Council power is, from a legal perspective,
arbitrary, as it unilaterally alters Iran’s international legal
obligations without basis in the actual framework—the NPT—that
constitutes the legal standard for judging Iranian compliance
with non-proliferation requirements. Further, the Council’s
actions are in tension with the recommendations of the IAEA, the
international agency legally charged with monitoring that
compliance.
The nature of
Iran’s past reporting failures or discrepancies is largely a
matter of interpretation. Under international law, Iran can
legally develop a nuclear energy program that would include many
dual-use technologies and materials that might subsequently be
diverted to military uses. Iranian officials argue that, for
this reason, the US will never be satisfied with any degree of
Iranian compliance or even the most intrusive inspections
regime, citing US lack of confidence in inspections in Iraq as
precedent. US officials counter that if Iran were willing to
permanently forego uranium enrichment and the pursuit of an
indigenous nuclear fuel cycle (both permitted under
international law generally, though less so for Iran in light of
the exceptional constraints imposed by the Secuirty Council),
and subject its remaining nuclear activities (including at
Bushehr) to rigorous IAEA inspections, they would accept that
Iran was in compliance with its non-proliferation obligations.
This is a political impasse—not a legal one—as it turns not on
the legality of Iran’s activities, but on the interpretation of
Iranian intentions.
The NPT specifies
that enhanced inspections under the Additional Protocol are
enough to verify compliance with non-proliferation obligations
and that non-nuclear weapons states have the right to pursue
enrichment or processing activities or a complete nuclear fuel
cycle subject to the strict supervision provided for by the
Protocol. Some analysts argue that changes in nuclear technology
have facilitated the conversion of civilian nuclear energy
programs into weapons programs to the degree that NPT
inspections are no longer an adequate guarantee that nuclear
materials will not ultimately be diverted to military
purposes.[25] Other analysts argue that no civilian nuclear
energy program has been transformed into a weapons program and
that the technical hurdles remain formidable.[26] ElBaradei and
others propose a multilateral regime governing universal access
to enrichment and reprocessing facilities under international
controls. Many states, including the US, dislike this idea
precisely because of its potentially equalizing effect. But the
alternative, a multi-tiered system in which different states
have different levels of access to technology based on
assessments of their intentions or judgments concerning the
regime, introduces precisely the kind of inconsistency that
threatens to undermine the global credibility and legitimacy of
the non-proliferation norm.
In fact, for all
the protestations about Iran’s bad faith in dealing with the
IAEA, there is ample reason to suspect that US motives are not
pure either. Since 2002, in particular, Washington may have
decided to pursue “hawk engagement” whereby weak offers of
compromise are made to legitimize subsequent coercive
action.[27] In particular, the absence of US security guarantees
to Iran—up to and including the Bush administration’s toleration
of persistent rumors of regime-changing war—in exchange for
compliance may indicate such a strategy. In that it spoke of no
security guarantees, and made Iranian renunciation of enrichment
a precondition rather than a preferred outcome, Rice’s offer of
direct talks fits the “hawk engagement” description.
Certainly, the US
preference is a predominant element of the enforcement decision
of the international community. Other great powers may have
acted to shield Iran from enforcement for their own
self-interested reasons. Iran may have sought to cultivate ties
with such countries, such as Russia and China, expressly to
shield itself from a potential enforcement decision. The
North-South dimension of the enforcement outcome reinforces the
international perception that enforcement is politicized and may
therefore weaken the underlying norm. Finally, US reluctance to
take the path suggested by the relevant international
agency—continued inspections and diplomacy rather than Security
Council action—suggests that enforcement is not strictly a
technical or legal decision, nor one that rests principally with
an impartial bureaucracy. Consequential as this is for Iran, the
implications of politicized enforcement of the non-proliferation
norm have far greater reach than this case. The failure of the
2005 NPT review conference reflects in part the damage done to
the bargain at the heart of the non-proliferation regime. If
developing countries are led to believe that non-proliferation
means obstruction of access to new technologies or that
pretextual enforcement may be a new instrument of great power
politics, then “success” in containing Iran will come at the
price of far greater risks of future proliferation.
Endnotes
[1] Suzanne
DiMaggio, “US-Iran Disagreements Play a Part in NPT Deadlock,”
InterDependent (Fall 2005).
[2] For an
excellent history of US efforts to block Chinese-Iranian nuclear
cooperation, see Anthony Cordesman, Iran and Nuclear Weapons:
A Working Draft (Washington, DC: Center for Strategic and
International Studies, February 2000).
[3] Andrew Koch
and Jeanette Wolf, Iran’s Nuclear Facilities: A Profile
(Monterey, CA: Center for Non-Proliferation Studies, 1998), p.
1.
[4] See, for
instance, Cordesman, p. 15.
[5] Reza
Aghazadeh, president of the Atomic Energy Organization of Iran,
quoted in IAEA, “Implementation of the NPT Safeguards Agreement
in the Islamic Republic of Iran,” Report by the Director
General, June 6, 2003.
[6] Washington
Post, February 27, 2005.
[7] IAEA,
“Implementation of the NPT Safeguards Agreement in the Islamic
Republic of Iran,” Report by the Director General, September 2,
2005.
[8] IAEA report,
June 6, 2003.
[9] IAEA,
“Implementation of the NPT Safeguards Agreement in the Islamic
Republic of Iran,” Report by the Director General, November 10,
2003.
[10] IAEA,
“Implementation of the NPT Safeguards Agreement in the Islamic
Republic of Iran,” Report by the Director General, November 15,
2004.
[11] IAEA report,
September 2, 2005.
[12] IAEA report,
November 15, 2004.
[13] Reuters,
November 12, 2003.
[14] New York
Times, September 25, 2005.
[15] Statement by
G. Ali Khoshroo, deputy foreign minister for legal and
international affairs, second session of the Preparatory
Committee for the 2005 NPT Review Conference, April 29, 2003.
[16] On US
pressure, see International Crisis Group, Iran: Where Next on
the Nuclear Standoff? (Amman/Brussels, November 2004), p. 4.
[17] New York
Times, October 25, 2004.
[18]
Washington Post, November 18, 2004.
[19] Global
Security Newswire, March 17, 2005.
[20] New York
Times, March 24, 2005.
[21]
Washington Post, May 17, 2005.
[22] Associated
Press, August 5, 2005.
[23] Seymour
Hersh, “The Iran Plans,” New Yorker, April 17, 2006.
[24] For a
categorical argument to this effect, see Amy Reed, “UN
Resolution 1696 Moots Iranian Legal Claims,” Carnegie Endowment
for International Peace, August 21, 2006.
[25] See, for
example, Henry Sokolski, “Keeping Nuclear Energy Peaceful: Why
We Must Review the NPT,” testimony before the House Committee on
International Relations, April 28, 2005, available online at
http://www.nti.org/e_research/official_docs/congress/senate042805sokolski.pdf
[26] Alexander H.
Montgomery, “Ringing in Proliferation: How to Dismantle an
Atomic Bomb Network,” International Security 30/2 (Fall
2005).
[27] The term
“hawk engagement” is taken from Victor D. Cha, “Hawk Engagement
and Preventive Defense on the Korean Peninsula,”
International Security 27/1 (Summer 2002).
Source |
