The Treaty on the Non-Proliferation of Nuclear Weapons (hereafter referred to as the NPT) sets out to create a framework to prevent the creation and use of nuclear weapons. It is enforced firsthand by the International Atomic Energy Agency (IAEA) and secondhand by (on referral to) the United Nations (UN), the Security Council (SC) and the greater international community. It has recently (2003-onwards) come into conflict with the Islamic Republic of Iran (Iran) over various issues, such as possible military dimensions of the Iranian nuclear program, and Iran’s consistent non-cooperation and concealment of activities, leading to 7 SC resolutions as of June 2010 (resolutions 1696, 1737, 1747, 1803, 1835 and 1929) but failing to resolve the program issues.
2.1. The NPT Framework
The NPT framework differentiates between two states: those who possess nuclear weapons and those who do not. In articles 1 and 2, it puts forth that states party to the treaty will not transfer or receive anything leading directly or indirectly to the acquisition of nuclear weapons (UN page 2). Article 3.1 states that every state party to the treaty thus also agrees to any safeguards proposed by the IAEA, although such safeguards will be designed to “avoid hampering the economic or technological development” (3) of peaceful nuclear activities, which are allowed as outlined in the preamble and in article 4.1 (“benefits of peaceful applications of nuclear technology… should be available for peaceful purposes to all Parties to the Treaty” , with article 4.1 claiming peaceful purposes of nuclear power as an “inalienable right” ). Last, article 10.1 states that parties may withdraw from the treaty only “if it decided that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country” (5), a provision used only once, by North Korea (“Nuclear Non-Proliferation Treaty” 1).
2.2 Problems arising out of the NPT Framework
The first and most obvious problem of the NPT framework is that “almost all nuclear technology in use around the world today is ‘dual use’” (Acton119). This means that the same technology is used for both peaceful and non-peaceful goals, and that there are very few unambiguously associated weaponising activities, all easily concealable (123). Moreover, the IAEA enforces mainly technical and unambiguously factual aspects: “the IAEA concerned itself with what Iran did, not why it acted” (123), with noncompliance assessable on the basis of nine features: quantity/strategic significance of materials, capabilities, intensity of the program, termination (or lack of), the military dimensions, concealment activities and thus conversely detection, cooperation with the IAEA, and compliance with safeguards/sanctions/treaty provisions (130-1). Though political dimensions are taken into consideration, they are used “only for its own internal planning; results are not publicized” (125). Thus, even though Iran had wanted to buy nuclear weapons from Pakistan (Pakistan is not a signee of the NPT and thus it would be legal for Pakistan to sell to Iran, but not for Iran to buy [“Nuclear Non-Proliferation Treaty“ 1]) as a deterrent following the Iran-Iraq war (McElroy 1), such knowledge does not necessarily imply that Iran is currently weaponizing and thus cannot be used as evidence towards IAEA action.
The IAEA lacks comprehensive intelligence and spy dimensions (Acton124) so thus it must rely on member states complying with the NPT, and to reacting to whatever facts are disclosed and researchable by the IAEA staff through interviews or agreements to facility visits, which are easily manipulateable and not legally enforceable methods of information acquisition (124-5). As Mohamed ElBaradei (former director-general of the IAEA) told the US Congressional Research Service, “We don’t have an all-encompassing mandate to look for every computer study on weaponization. Our mandate is to make sure that all nuclear materials in a country are declared to us” (Kerr 3).
The third major problem of the NPT is evaluating ‘intent’: so far, NPT noncompliance has been judged on the basis of nondisclosure of activities (Acton 119) and of the dual use nature of nuclear technology, ‘intent’ as it applies to the ‘why’ a state is doing something becomes an important judgment to make – that is, are the actions moving towards nuclear proliferation or was there an error or untimely reporting? Because of the dual-use nature of nuclear technology and the lack of a legal basis for evaluating intent, countries are often given the benefit of the doubt concerning their nuclear activities (129). But insomuch as the NPT is a treaty hoping to prevent nuclear proliferation, allowing mal-intentioned states to reach a legal limit of 20% enriched uranium cuts half the time it would take for them to make bomb-level materials (Oelrich 1) and makes them less conductive to outside pressures or deals (5), which undermines the preemptive goals of the NPT.
3.1. The Case of Iran
ThoughIran’s nuclear program has been running since before the Islamic revolution, events in the 70s such as the successful Indian nuclear tests, and the aforementioned Islamic revolution and other politics destroyed healthy relationships for the nuclear program (Burr 1). It has since fluctuated back and forth between weaponization and peaceful means as internal politics changed. For purposes of the discussion, the legal issues considered will be as per the SC resolutions in the 2000s.
The legal problems withIran’s nuclear program have revolved around noncompliance, improper documentation, independent actions, nondisclosure, and the possibility of military dimensions (Director General 1-9). In 2003,Iranagreed to “suspend all enrichment related and reprocessing activities” and expanded that to include “assembly and testing of centrifuges” in June 2004. However, in November 2004, it revoked that suspension, resuming research and development activities on its nuclear program (1). It has also failed to provide detailed plans for the Natanz Fuel Enrichment Plant (FEP) (2).Iranfurther continued its activities without waiting for the IAEA to approve safeguards (3). It has also not responded to concerns over the purpose of the previously undisclosed QomFEP(4).Iranhas also been uncooperative with the IAEA over heavy water related projects and information disclosure (5).Iranhas further been uncooperative with the IAEA over uranium conversion and design information.Iranhas unilaterally (and hence without legal basis) changed its safeguard agreements and obligations without the IAEA, which renders it noncompliant with the IAEA safeguards and SC resolutions (7). It has also not implemented the safeguard agreements that are in force for its program (8). Moreover, the nondisclosure of information concerning Iran’s nuclear activities also leads the IAEA to consider that there may be possible military dimensions, a claim backed by the presence of military related institutes (8) and Iran’s consistent failure to provide proof of peaceful intent and prior history of seeking nuclear weapons, as well as failing to clarify the ongoing military-related activities such as missile and explosion tests (9).
As outstanding questions related to weaponization are unresolved, the IAEA is not providing the go-ahead toIran’s nuclear program (9-10). Such concerns are further echoed by the 2007 US National Intelligence Estimate that claims a “high confidence that Iran has the scientific, technical, and industrial capacity to produce nuclear weapons if it decides to do so” (National Intelligence Council 7) and the 2011 statement by Yukio Amano of the IAEA that Iran is continuing to refuse to cooperate with the UN and that it may have continued its weaponization program in 2004 (Associated Press 1). Furthermore, a 15 page unambiguous ‘weaponization’ document was found on one inspection but was claimed to have been unsolicited & given byPakistan(Acton124).
3.2. SC Sanctions/Countermeasures & IAEA Safeguards…
As mentioned previously, there are now 7 SC resolutions againstIran and the Iranian nuclear program. Sanctions and Countermeasures are defined as “non-forcible measures, unilateral in character, taken in response to an internationally wrongful act… which under normal circumstances would themselves be unlawful as infringing on the rules of international law” (Calamita 1419). These are put in contrast with retorsions, which are “unfriendly yet otherwise legal acts meant to signal disapproval” (1397). Sanctions and countermeasures must be “as far as possible, be reversible: once the justifying wrongful act has ceased and reparations have been made, the countermeasures must cease” (1421). Likewise, safeguards as defined in the NPT must “avoid hampering the economic or technological development of the parties or international co-operation in the field of peaceful nuclear activities” (United Nations 3).
Moreover, the nature of the NPT makes it “akin to a disarmament treaty or a nuclear free zone treaty, [and violations] should be considered as putting each other party to the NPT in the position of an ‘injured state’ and therefore in a position to adopt countermeasures” (Calamita 1423). Along the same principles, “the establishment of injury… does not involve the concept of ‘materiality’, nor does it lead to suspension or termination of the treaty” (1422-23). Thus every state is hurt indirectly by NPT violations and thus responsible for encouraging resolving the violations. However, resolutions will most often be the product of political negotiation between the veto-powers in the SC and their interests (1415), so states considering themselves more-hurt than others must find additional legal basis for their actions, if those actions fall outside the explicit wordings or immediate interpretations SC resolutions (1408).
3.3. …as specifically concerning Iran
Because of the nature of the Iranian nuclear program (the government’s close cooperation and aid in the program), sanctions and countermeasures must target Iran as much as they target the nuclear program (1410, footnote 66). Thus the most recent SC resolution (resolution 1929) imposes limits on both government and program activities. There now exists a full ban on all sorts of weaponization and arms transfer, new controls and oversights on cargo shipped into Iran, new limits on the role of military-related government sections in working with the nuclear program, new financial approaches to avoiding implicit support of Iran’s nuclear program, as well as a newly appointed ‘panel of experts’ to follow up with Iran’s activities (Resolution 1929 1-15) (Fact Sheet on the New UN Security Council Sanctions on Iran 1). Annex I-IIIincludes a list of freshly singled-out targets concerning sanctions (Resolution 1929 10-15). Additionally, Annex IV of Resolution 1929 includes an international partnership and proposal to helpIrandevelop a better international standing on the nuclear issue as well as incentives to take non-nuclear energy routes (Resolution 1929 16-18).
In this light, America’s activities in helping Iran to sell its natural gas is a legal and pursuable deterrent for the nuclear program, despite whatever other political motivations it may have (Luft). Conversely, the STUXNET computer virus targeting to disableIran’s nuclear infrastructure is an illegally measure in that it is extrajudicial and does irreversible damage if successful (Broad et al 1). Likewise, targeted assassinations (whether attributed to states or rogue organizations) of top Iranian nuclear scientists are also considered illegal within the sanctions/countermeasures frameworks (and all legal frameworks, really) (Borger1).
In conclusion, while the UN SC has never declared Iran to be in explicit violation of the NPT (Kerr 8), and while the much of the initial suggestions of the IAEA concerning Iran were not legally binding (4), this is because of a legal loophole in that there are no explicit enforcement powers of the IAEA—it must take the case to the UN SC for consideration for action. Nonetheless, the IAEA placedIranin a Catch-22 in that though it was not legally obligated to comply initially, non-compliance with the non-legally binding IAEA-concerns would placeIranin a worse position politically and in reference to the safeguards. Moreover, because of the nature of differences between IAEA safeguards and SC resolutions,Irancannot profess compliance with simply one or the other and be in the clear. UntilIrancreates some sort of proof of intent of its nuclear program, it will be in legally murky waters, implicitly non-complying with the NPT, IAEA safeguards, and the SC resolutions.
Works Cited & Referenced
Acton, James M. “The Problem with Nuclear Mind Reading.” Survival 51.1 (2009): 119-42.International Institute for Strategic Studies. Web.17 Apr. 2011. <http://www.iiss.org/publications/survival/survival-2009/year-2009-issue-1/the-problem-with-nuclear-mind-reading/>.
Associated Press. “Iran: U.N. Official Says Iran’s Nuclear Program May Be Aimed at Making Atomic Weapons.” New York Times. New York Times Company,7 Mar. 2011. Web.17 Apr. 2011. <http://www.nytimes.com/2011/03/08/world/middleeast/08briefs-Iran.html?_r=1&src=recg>.
Borger, Julian. “Attack on Iranian Nuclear Scientists Prompts Hit Squad Claims.” The Guardian. Guardian News and Media Limited 2011,29 Nov. 2010. Web.16 Apr. 2011. <http://www.guardian.co.uk/world/2010/nov/29/iranian-nuclear-scientists-attack-claims>.
Broad, William J., John Markoff, and David E. Sanger. “Israeli Test on Worm Called Crucial in IranNuclear Delay.” New York Times. New York Times Company,15 Jan. 2011. Web.16 Apr. 2011. <http://www.nytimes.com/2011/01/16/world/middleeast/16stuxnet.html?_r=1>.
Burr, William. “The history of Iran’s nuclear energy program.” Bulletin of the Atomic Scientists (2010). Bulletin of the Atomic Scientists. Bulletin of the Atomic Scientists,19 Jan. 2009. Web.17 Apr. 2011. <http://www.thebulletin.org/web-edition/op-eds/the-history-of-irans-nuclear-energy-program>.
Calamita, N. Jansen. “Sanctions, Countermeasures, and the Iranian Nuclear Issue.” Vanderbilt Journal of Transnational Law 42.5 (2009): 1393-442. Vanderbilt Journal of Transnational Law. Vanderbilt Journal of Transnational Law, Nov. 2009. Web.17 Apr. 2011. <http://law.vanderbilt.edu/publications/journal-of-transnational-law/download.aspx?id=4324>.
Director General, Board of Governors. Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1835 (2008) in the Islamic Republic of Iran. Rep. International Atomic Energy Agency,3 Mar. 2010. Web.17 Apr. 2011. <http://www.iaea.org/Publications/Documents/Board/2009/gov2009-35.pdf>
Kerr, Paul K. Iran’s Nuclear Program: Tehran‘s Compliance with International Obligations. Rep. no. R40094. Congressional Research Service,15 Feb. 2011. Web.17 Apr. 2011. <http://www.fas.org/sgp/crs/nuke/R40094.pdf>.
Luft, Gal. “The Pipeline Paradox.” Foreign Policy. THE SLATE GROUP, A DIVISION OF THE WASHINGTON POST COMPANY,12 Apr. 2011. Web.17 Apr. 2011. <http://www.foreignpolicy.com/articles/2011/04/12/the_pipeline_paradox>.
McElroy, Damien. “Iran’tried to Buy Nuclear Weapons from Pakistan’” Telegraph.co.uk. Telegraph Media Group Limited 2011,15 Mar. 2010. Web.17 Apr. 2011. <http://www.telegraph.co.uk/news/worldnews/middleeast/iran/7449806/Iran-tried-to-buy-nuclear-weapons-from-Pakistan.html>.
“Nuclear Non-Proliferation Treaty.” Wikipedia, the Free Encyclopedia. Web.17 Apr. 2011. <http://en.wikipedia.org/wiki/Nuclear_Non-Proliferation_Treaty>.
Oelrich, Ivan, and Ivanka Barzashka. “Deconstructing the Meaning of Iran’s 20 Percent Uranium Enrichment.” Bulletin of the Atomic Scientists (2010). Bulletin of the Atomic Scientists. Bulletin of the Atomic Scientists,19 May 2010. Web.17 Apr. 2011. <http://www.thebulletin.org/web-edition/features/deconstructing-the-meaning-of-irans-20-percent-uranium-enrichment>.
Security Council, United Nations. Resolution 1929 (2010). Rep. no. 1929. United Nations.Resolution 1929 (2010). United Nations,9 June 2010. Web.17 Apr. 2011. <http://www.unhcr.org/refworld/docid/4c1f2eb32.html>.
United Nations. International Atomic Energy Agency. Treaty on the Non-Proliferation of Nuclear Weapons. United Nations.22 Apr. 1970. Web.17 Apr. 2011. <http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc140.pdf>.
“United Nations Security Council Resolution 1929.” Wikipedia, the Free Encyclopedia. Web.17 Apr. 2011. <http://en.wikipedia.org/wiki/United_Nations_Security_Council_Resolution_1929>.
United States of America. National Intelligence Council. Office of the Director of National Intelligence. Iran: Nuclear Intentions and Capabilities. By National Intelligence Estimate. National Intelligence Council, Nov. 2007. Web.17 Apr. 2011. <http://www.dni.gov/press_releases/20071203_release.pdf>.
United States of America. The White House. Office of the Press Secretary. Fact Sheet on the New UN Security Council Sanctions on Iran. By White House. The White House,9 June 2010. Web.17 Apr. 2011. <http://www.whitehouse.gov/the-press-office/fact-sheet-new-un-security-council-sanctions-iran>.