By Arka Biswas
The implications of the recently implemented Joint Comprehensive Plan of Action (JCPOA) on Iran’s nuclear program, commonly referred to as the Iran deal, are immense for the nuclear non-proliferation architecture. P5+1 and Iran arrived at the deal after over twenty months of intense negotiations, starting from November 2014 when the interim nuclear deal was signed, to August 2015 when the negotiators agreed on the JCPOA. During the course of negotiations, some of the key sticking points that emerged had their roots in differences in understanding between what the Treaty on Non-Proliferation of Nuclear Weapons (NPT) states as the rights of its signatories and what the current understanding of acceptable non-proliferation practices are. These differences reflect the reality that the current non-proliferation architecture has already expanded beyond NPT. Acknowledging this difference and limiting reference to the NPT as the “central pillar” of the non-proliferation architecture will allow the non-proliferation community to better manage future proliferation threats.
Right to uranium enrichment
A primary sticking point over Iran’s nuclear program was regarding Iran’s right to enrichment. Beginning from 2003, when concerns over Iran’s nuclear program emerged, Iran reiterated its longstanding position that the NPT bestows on it the inalienable right to enrich uranium on its soil. Article IV of the NPT 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 without discrimination and in conformity with Articles I and II of this Treaty.”
Though Article IV of the NPT does not directly refer to the right to uranium enrichment, its language, however, remains open to interpretation. While U.S. government officials have lately stated that “it has always been the U.S. position that article IV of the Nuclear Nonproliferation Treaty does not speak about the right of enrichment at all [and] doesn’t speak to enrichment, period,” as William O. Beeman explains, that has not always been the case. Moreover, the U.S. government has in the past recognized the legitimacy of the uranium enrichment programs of other non-nuclear weapon states (NNWS) of the NPT. Even if recognition does not reflect acceptance of uranium enrichment as an inalienable right, it demonstrates that the U.S. does not see uranium enrichment by NNWS as a violation of the latter’s NPT obligations. Moreover, the U.S. government alone cannot override the interpretation of the remaining 189 members of the NPT and other bodies such as the International Atomic Energy Agency (IAEA). Speaking from a legal perspective, Dan Joyner, a professor at the University of Alabama, School of Law, concludes that while Article IV continues to be open to interpretation, technical understanding of the right to peaceful use of nuclear energy refers to access to all steps of the nuclear fuel production cycle, which includes uranium enrichment.The potential for this right to uranium enrichment to be misused by a NNWS to acquire the requisites to build a bomb, however, is real and remains a serious concern for the non-proliferation community. While some of the NNWS already qualify as threshold states – meaning they have the requisites to build a nuclear weapon – permitting other NNWS to reach that status is based on the political understanding of the threat that might pose to the nuclear non-proliferation architecture, even without crossing over the nuclear Rubicon.
What the Iran deal does is that it acknowledges Iran’s right to enrichment, as a NNWS to the NPT, but simultaneously restricts Iran’s capability to enrich uranium. Given the current understanding, however, it is not in the interest of the non-proliferation community to concede the right to enrichment, under NPT, to more states in future. And while Iran has agreed to accept the heavy restrictions on its enrichment capacity for at least the next ten years, other states may not agree to such conditions.
Monitoring and Verification
Another sticking point has been with regard to the monitoring and verification of Iran’s nuclear activities. Article III of the NPT states that “Each non-nuclear-weapon State Party to the Treaty undertakes to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system…” Fulfilling its obligation to the NPT as a NNWS, Iran signed and ratified the Safeguards Agreement (SA) in 1974.
However, the insufficiency of the SA, as obligated by the NPT, was realized in the early 1990s when Iraq’s clandestine nuclear activities came out into the open. It was then that the decision to introduce the Additional Protocol to the SA was made. The NPT Article, however, was not revised to make negotiation and ratification of the AP to the SA a Treaty obligation. In Iran’s case, for instance, the IAEA report of June 2003 did not find Iran in violation of the NPT, but recommended that Iran cooperate with the IAEA by providing more information regarding its suspected nuclear activities which Iran may not have revealed. Similarly, assessing the IAEA Director Board of Governors adopted-resolution (GOV/2005/77) of September 24, 2005, which recommended that Iran comply with the Board’s demands, Paul K. Kerr notes in CRS report that, “no international legal obligations required Tehran to [comply by the Board’s demands].”
Thus, as far as the monitoring mechanism is concerned, the non-proliferation community has already accepted the shortcoming of the NPT and moved beyond NPT obligations and introduced Additional Protocols to the SA. Continued emphasis on the NPT may therefore make managing future threats of nuclear proliferation difficult from the perspective of monitoring and verification mechanisms. While Iran eventually agreed to an AP that provides “extraordinary and robust monitoring, verification and inspection,” other NNWS may not agree to sign or renounce AP, using Iran’s non-violation of NPT obligations in their defense.
In essence, the Iran nuclear deal succinctly captures how the nuclear non-proliferation community either has already moved beyond the NPT obligations, as with monitoring and verification mechanisms, or does not find the provisions of the NPT in its best interest, with regard to the right to uranium enrichment. The fact that NPT Articles have not been updated or revised only weakens the Treaty’s relevance to the current non-proliferation practices that qualify as acceptable. This reality may be hard to accept given the important role that the Treaty has played over the last four decades, but it nonetheless remains important, especially as the non-proliferation community is confronted with proliferation threats in the future.
Arka Biswas is a Junior Fellow with ORF’s Nuclear and Space Policy Initiative. He is currently pursuing projects related to nuclear developments in Iran, India’s nuclear weapons policy and India’s membership in the export control groups. He has been a Visiting Fellow at the Stimson Center, Washington DC. His work has appeared in Bulletin of the Atomic Scientists, Foreign Policy, The Diplomat, and The National Interest, among others.