Iran’s ‘Outlawed’ Nuclear Program

By Jeremy R. Hammond
April 8, 2009
Courtesy Of Foreign Policy Journal

A common refrain in the Western media is that Iran’s nuclear program is illegal, “outlawed”, or otherwise of a proscribed nature. This assertion is based on the fact that the U.N. Security Council passed a number of resolutions calling on Iran to halt its enrichment activities and imposing sanctions on the country for disinclining to acquiesce to the U.N. demand. The U.S. view, adopted elsewhere as well, is that the resolutions are binding and by failing to heed their demands Iran is in violation of international law.

Iran’s view, of course, is that as a signatory of the nuclear non-proliferation treaty (NPT), who has not been shown to have been developing a parallel weapons program, their program is perfectly legal and their right to enrich uranium guaranteed under international law. It is therefore the U.N. resolutions themselves which are illegal, a violation of the very Charter under which they were passed and therefore null and void.

There can only be one correct interpretation. In this case, a reading of the relevant texts under international law clearly demonstrates that Iran’s interpretation is actually the correct one.

The NPT obligates signatories to “undertake to accept safeguards” under the International Atomic Energy Agency (IAEA). These safeguards are “for the exclusive purpose of verification of the fulfillment of its obligations assumed under this Treaty”. Iran’s obligations are to employ its nuclear technology only for the production of energy. Any effort to develop nuclear weapons is strictly forbidden.

The safeguards, the NPT states, “shall be implemented in a manner designed to comply with Article IV of this Treaty, and to avoid hampering the economic or technological development of the Parties”. Sanctions, needless to say, hamper Iran’s economic and technological development.

Article IV states that “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….” (emphasis added). In other words, no one can tell Iran that it can’t enrich uranium for a civilian nuclear program.

The key U.N. resolution in question is 1696 of July 2006, which notes “with serious concern” that “Iran has not taken the steps required of it by the IAEA Board of Governors, reiterated by the Council in its statements of 29 March and which are essential to build confidence, and in particular Iran’s decision to resume enrichment-related activities….”

Notice the word “resume” there. Iran had voluntarily suspended its research and development of enrichment technology on a temporary basis as a show of good faith. Iran engaged E.U. member states, but when nothing came of the talks and negotiations over Iran’s program stalled, Iran resumed its activities, which it had every right to do under the NPT.

Furthermore, the NPT does not obligate Iran to halt research and development in order to “build confidence”. Iran must allow the IAEA to monitor and inspect its nuclear program under the safeguards system, but under no circumstances is required to suspend activities that are not shown to be undertaken towards the development of a nuclear weapon.

The language of 1696 is couched very carefully. The resolution “Calls upon Iran without further delay to take the steps required by the IAEA Board of Governors in its resolution GOV/2006/14″ and “Demands, in this context, that Iran shall suspend all enrichment-related and reprocessing activities….”

Notice that the U.N. is appealing to the authority of the IAEA. However, short of evidence that Iran has actively engaged in research and development of a nuclear weapons program, neither the IAEA nor the U.N. has any legal basis to demand that Iran halt its activities. The NPT unambiguously guarantees the “inalienable right” of member states to develop a peaceful nuclear program, which includes enrichment of uranium for nuclear fuel. Moreover, nothing about Iran’s agreement to allow the IAEA to monitor and verify its program may be interpreted in a manner that prejudices that right. The NPT explicitly guarantees that parties may continue such activities while inspections are ongoing.

The IAEA Board of Governors resolution in question does not find Iran in violation of any of its obligations under the NPT. In fact, GOV/2006/14 categorically recognizes that “Article IV of the Treaty on the Non Proliferation of Nuclear Weapons [NPT] stipulates that nothing in the Treaty shall be interpreted as affecting the inalienable rights of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination….”

The IAEA resolution does not find Iran in violation of its obligations under the NPT, but merely “Expresses serious concern” that the Agency could not yet “clarify some important issues” and “Deeply regrets” that Iran had disinclined to acquiesce to requests to once again voluntarily suspend enrichment. Of course, there is no legal obligation for Iran to do so, and the IAEA resolution does nothing to suggest otherwise. It “Requests” that Iran “extend full and prompt cooperation to the Agency”. The IAEA may request that Iran halt legitimate enrichment activities, but has no legal authority to demand that it do so.

So the authority of U.N. resolution 1696 demanding that Iran halt enrichment activities is based upon the authority of an IAEA resolution requesting that Iran do so while also expressly recognizing Iran’s “inalienable right” to continue said activities. This is the “context” of the relevant clause in 1696 forming the basis for the argument that Iran’s enrichment activities are illegal. Since in passing 1696 the U.N. took an IAEA request that Iran voluntarily halt said activities and falsely gave it the appearance of a legal obligation, this operative clause is therefore moot.

The lack of legal authority of the U.N. to demand that Iran halt its enrichment activities becomes even more apparent in recognizing the fact that 1696 was passed acting under Article 40 of Chapter VII of the U.N. Charter. Article 40 states that the Security Council may “call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable”. But there are two caveats to this clause to consider.

First, the context, given in Article 39, is in cases where the Security Council has determined “the existence of any threat to the peace, breach of the peace, or act of aggression”. If such a threat is determined to exist, the Security Council may make recommendations or decide upon further measures to be taken, but before doing so may “call upon” parties to take said provisional measures under Article 40. The U.N. Security Council, lacking evidence of proscribed activities, has not determined that Iran’s nuclear program constitutes a “threat to the peace” or a “breach of the peace”, or that Iran has engaged in any “act of aggression”.

Second, and perhaps even more importantly, Article 40 also clearly states that such provisional measures parties determined to pose a threat to peace are expected to abide by “shall be without prejudice to the rights, claims, or position of the parties concerned.” That would include Iran’s “inalienable right” under the NPT to continue enrichment activities for its civilian nuclear program operating under the IAEA safeguards system.

There’s a final point to consider. Assume, for argument’s sake, that Iran was found to be developing a nuclear weapons program and that the U.N. Security Council had passed a legitimate and legally binding resolution demanding that Iran cease this activity. The fact would remain that U.S. policy towards Iran, while in the hypothetical justified, would still reveal its glaring hypocrisy, considering its silence on the matter of the only state in the Middle East known to actually have a nuclear weapons program. Iran has in fact appealed to the U.S. to cooperate in making the Middle East a nuclear-free zone. But that would mean a shift in U.S. policy towards Israel and a cessation of its financial, military, and diplomatic support to the nuclear-armed Jewish State. So the proposal was summarily rejected.

One corollary might be that U.S. policy towards Iran is drastic need of reassessment. One might have hoped that such a policy review would occur under the Obama administration, but the new administration has already made it clear that it would continue the same policy as the Bush administration in demanding that Iran end its enrichment activities before entering negotiations on the matter; translated into meaningful terms, that means the U.S., contrary to Obama’s campaign rhetoric, will not engage in diplomacy with Iran on the nuclear issue, but instead continue to issue ultimatums.

The complicity of the mainstream corporate media in the West in constructing the framework wherein U.S. policy actually sounds somewhat reasonable is in large part the reason why such a hypocritical and erroneous policy is allowed to continue.

Jeremy R. Hammond is the Editor of Foreign Policy Journal (www.foreignpolicyjournal.com). He has also written for numerous other print and online publications around the world. Contact him at jeremy@foreignpolicyjournal.com.