May 4, 2016
Understanding Iran’s Right to Enrichment
Jul 23, 2012
By Nathan Donohue
The Wall Street Journal recently featured an article on their Opinion page entitled “Iran Has No ‘Right’ to Enrich Uranium.” The article, written by Michael Makovsky and Blaise Misztal of the Bipartisan Policy Center’s Foreign Policy Project, discussed Iran’s right to enrich uranium, or lack thereof.
Iran maintains that the Nuclear Nonproliferation Treaty (NPT) defends their right to uranium enrichment, which they are currently conducting in facilities such as the underground Fordow Fuel Enrichment Plant outside of Qom. For almost a decade Iran has maintained that the recognition of this right is a prerequisite for Iranian participation in nuclear talks. As Iran’s chief negotiator stipulated in September 2004, “no international body can force Iran” to legally cease its peaceful nuclear activities, but that Iran might choose voluntarily to suspend enrichment, albeit with the right to resume enrichment later. However, Makovsky and Misztal purport that the NPT does not specifically enumerate this right to enrichment and that “nothing in the NPT implies a right to possess all, especially potentially military, elements of nuclear technology.”
With a firmly established treaty in place, why is there this ongoing debate?
To begin, it is important to understand what is written in Article IV of the NPT. Article IV 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.
Dr. Xinjun Zhang, an Associate Professor of Public International Law at Tsinghua University, argues that the “inalienable right” of states to the peaceful application of nuclear energy stated in Article IV is not the contentious issue in that it has been repeatedly confirmed in the past, specifically in regards to the nuclear fuel cycle. An article by Henry Sokolski in the National Review Online in 2004 noted that under the NPT “Iran, backed by Brazil, South Africa, Germany, the IAEA’s own director general, and [then] Democratic vice presidential candidate Edwards” have always agreed on a party’s right to the complete fuel cycle. More importantly, the 2000 NPT Review Conference produced a final document which stated:
The Conference confirms that each country's choices and decisions in the field of peaceful uses of nuclear energy should be respected without jeopardizing its policies or international cooperation agreements and arrangements for peaceful uses of nuclear energy and its fuel-cycle policies.
As Dr. Zhang notes, opinions diverge about the phrase in Article IV which states “in conformity with Articles I and II of this Treaty.” Article I of the treaty relates to the nuclear weapons states, but Article II refers to nonnuclear weapons states and maintains that:
Each non-nuclear-weapon State Party to the Treaty undertakes not to receive the transfer from any transferor whatsoever of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices.
The controversy surrounds the question of what it means to ‘manufacture’ nuclear weapons. In regards to Article II, Jon Wolfsthal, the Deputy Director at the James C. Martin Center for Nonproliferation Studies, wrote in 2006 that “the NPT contains no specific clauses determining whether a state’s violation of the NPT’s requirements voids its right to obtain or pursue nuclear research in other areas.” This corresponds to the traditionally European perspective that the “inalienable right” agreed to in Article IV of the NPT is without restriction, except for nuclear explosions. More specifically, former chairman of the IAEA Board of Governors Bertrand Goldschmidt purported that that nothing in NPT prohibited Party States from following the technical path of their choice.
In contrast as Dr. Zhang notes, the U.S. has historically viewed the NPT commitment not to ‘‘manufacture’’ nuclear weapons as related to a prohibition on all related “development, component fabrication and testing.” Makovsky and Misztal, as well as Sokolski, appear to agree with the U.S. position in regards to Iran and the interpretation of Article II of the NPT. Beyond the idea that the NPT does not enumerate Iran’s right to enrichment, they purport that the right to “peaceful” use is fully dependent upon compliance with Article II of the treaty.
Yet there is more than just this binary interpretation of the NPT. As Christopher Ford stated in a paper for the Nonproliferation Policy Education Center, some states “defend a view of Article IV that gives non-possessors a right to develop – or perhaps even to be given – the full range of nuclear-related technology short of actual weaponization techniques.” This interpretation has also been utilized by Iran, whereby Iranian representatives not only maintain that Iran has the right to enrichment, but that restrictions imposed by nuclear suppliers concerning the development of nuclear technology are actually violations of Iran’s Article IV rights.
In addition, the former director of the Stockholm International Peace Research Institute (SIPRI) Frank Barnaby further dissected the language of the treaty essentially stating that by his interpretation of Article II of the treaty, that mating fissile material to a nuclear device was necessary before a state was in violation of “manufacturing” a nuclear weapon as outlined by Article II. In Barnaby’s words, “A party to the NPT could legally manufacture the components of any number of nuclear weapons, and the non-nuclear parts of the weapons could be assembled. Only when the fissile material was placed into one of the devices would the Treaty be broken.”
These markedly divergent interpretations of the text of the NPT remain a significant unresolved issue between states, and appear to be more the product of the inherent ambiguity of the treaty than the intransigence of the deliberators. This begs the question of why there isn’t more clarity in the text of the treaty given the obvious severity of the issue.
It is suggested that this ambiguity was actually purposeful. As Ford notes, “the language of Article IV is quite notably ambiguous, and repeated efforts to make it more specific in just such ways were rejected.” Similarly, Dr. Zhang highlights how during the original negotiating process that created the NPT, there were a number of drafts created to incorporate acceptable language on all sides. Some nations viewed Article IV as having inconsistencies between ‘inalienable right’ and ‘in conformity with Articles I and II,’ and “proposed for clarification and urged concreteness.” For example, in 1967, Switzerland requested the interpretation of the phrase ‘to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices,’ in Article II of the NPT not cover the “exploitation of uranium deposits, enrichment of uranium, extraction of plutonium from nuclear fuels, or manufacture of fuel elements of heavy water, when these processes are carried out for civil purposes.” However, in the end, these calls for clarification were ignored and the language was adopted as we currently know it.
Dr. Zhang argues that the reason that these issues were not clarified was that the dominant negotiating states such as the U.S. purposefully made this component of Article IV “ambiguous and thus unreal.” Having an inherent ambiguity about the rights of nonnuclear weapons states would allow for the completion of a treaty that would not only ban the acquisition of nuclear weapons, but which could then be interpreted to control other phases related to the process. This ambiguity could, in this way, function to give the nuclear weapons states future negotiating leverage over the nonnuclear weapons states. In the end, the refusal of these dominant negotiating states to address this issue forced the other negotiating countries to compromise with the ambiguity, purportedly because “an imperfect treaty [was] preferable to no treaty at all.”
What this all means is that the absence of an Iranian “right” to enrichment is not as clear cut as Makovsky and Misztal put forth in their article. The right to enrichment has long been and remains a contentious issue between Iran and the U.S., as well as the other NPT members. The NPT does not clearly set out the rights of a state. Instead the language is vague and open to interpretation, possibly as a direct result of the dominant negotiating parties of the NPT. Whether this is the case or not, this inherent ambiguity has made it even more difficult to establish a common understanding between negotiating parties. In the absence of some resolve, the inherent ambiguity within the NPT will likely be a stumbling block for further negotiations between Iran and the P5 + 1 countries of the United States, China, Russia, Germany, France and Britain. More so, the repeated failures to address this ambiguity on the inherent rights codified within the NPT, presents a real and ongoing threat to the continued legitimacy and success of the NPT.
Nathan Donohue is a research intern for the Project on Nuclear Issues. The views expressed above are his own and do not necessarily reflect those of the Center for Strategic and International Studies or the Project on Nuclear Issues.