Has Iran a right to uranium enrichment?

The Treaty on the Non-Proliferation of Nuclear Weapons (NPT) [1] is a very odd affair. Parties to it are divided into two distinct categories, those that possessed nuclear weapons prior to 1 January 1967 and those that didn’t, and very different obligations are placed on states in each category.

The former, “nuclear-weapon state”, parties were permitted to sign the NPT and keep their nuclear weapons. Five states – China, France, Russia, the UK and the US – qualified for this extraordinary privilege.

The latter, “non-nuclear-weapon state”, parties are forbidden under Article II of the Treaty to acquire nuclear weapons, and under Article III are obliged to subject their nuclear facilities to IAEA inspection to ensure that nuclear material is not diverted for the production of weapons.

This category included Iran, which was one of the original signatories on 1 July 1968, when the Treaty was opened for signature.

Enrichment an inalienable right?

Article IV(1) of the NPT 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.”

On the face of it, this Article gives all “non-nuclear-weapon” state parties to the Treaty, including Iran, the “inalienable right” to uranium enrichment on their own soil, so long as they conform to Article II, that is, so long as enrichment is not for weapons manufacture.

Argentina, Australia, Brazil, Germany, Japan, Netherlands and South Korea, which like Iran are “non-nuclear-weapon” state parties to the NPT, have uranium enrichment facilities without being accused of breaching the NPT (as have the 5 “nuclear-weapon” state parties to the NPT: China, France, Russia, the UK and the US) [2].

But, as far as I know, neither the US nor the EU has ever acknowledged in public (or in private in negotiations with Iran) that Iran has a right to uranium enrichment on it own soil for peaceful purposes.

And the same is true of Ireland. On 7 July 2012, the Irish Foreign Minister, Eamon Gilmore, was asked in Dáil Éireann, if Iran is entitled under Article IV(1) of the NPT to engage in uranium enrichment for peaceful purposes on its own soil. He replied:

“The nuclear non-proliferation treaty makes no specific reference to a right to engage in uranium enrichment. Article IV (1) of the treaty provides that states are entitled to develop research, production and use of nuclear energy for peaceful purposes.” [3]

He had the opportunity to confirm Iran’s right to enrichment under the NPT, and didn’t. That wasn’t an accident.

The official US position in 1968

The text of Article IV(1) puts no restriction whatsoever on the technologies that may be employed “to develop research, production and use of nuclear energy for peaceful purposes”, so it cannot be inferred from that that uranium enrichment, or any other technology, is excluded.

Furthermore, the official view of the US at the time it signed the treaty was that the possession of uranium enrichment facilities would not be in breach of Article II of the treaty.

On 10 July 1968, Arms Control and Disarmament Agency Director, William Foster, testified before the Senate Foreign Relations Committee about the NPT. In response to a question regarding the type of nuclear activities prohibited by Article II of the treaty, Foster supplied a statement containing the following:

“It may be useful to point out, for illustrative purposes, several activities which the United States would not consider per se to be violations of the prohibitions in Article II. Neither uranium enrichment nor the stockpiling of fissionable material in connection with a peaceful program would violate Article II so long as these activities were safeguarded under Article III. Also clearly permitted would be the development, under safeguards, of plutonium fuelled power reactors, including research on the properties of metallic plutonium, nor would Article II interfere with the development or use of fast breeder reactors under safeguards.”

(See US Congress Research Service report Iran’s Nuclear Program: Tehran’s Compliance with International Obligations [4], June 2012, page 17)

On the basis of this interpretation, the US signed the NPT. Yet, today the US refuses to acknowledge Iran’s right under the NPT to uranium enrichment for peaceful purposes.

US/EU understandable

The US/EU refusal to acknowledge Iran’s right to enrichment is understandable, because, if they were to do so, their case for applying any sanctions against Iran would melt away.

Iran’s uranium enrichment plants at Natanz and Fordow are operating under IAEA supervision, and the IAEA has verified that no material is being diverted and that each facility is operating as declared by Iran in the relevant design document.

In order to produce fissile material for a nuclear weapon, uranium has to be enriched to over 90% U235. At the moment, enrichment has not gone beyond the 20% figure, which is required to fuel a research reactor in Tehran (supplied to Iran by the US in the late 60s). This has been verified by the IAEA, which in each of its reports on Iran’s nuclear activity gives an inventory of the amounts of uranium enriched to 5% and 20% at each facility (see, for example, paragraphs 10 to 27 of its report dated 24 February 2012 [5]).

If Iran were to proceed to enrich uranium to a level above 20%, that is, towards the 90% level required to produce fissile material for a nuclear weapon, this would be immediately apparent to the IAEA.

David Morrison

11 October 2012

References:

[1] www.iaea.org/Publications/Documents/Infcircs/Others/infcirc140.pdf

[2] www.ieer.org/reports/uranium/enrichment.pdf

[3] oireachtasdebates.oireachtas.ie/debates%20authoring/debateswebpack.nsf/takes/dail2012071100012

[4] www.fas.org/sgp/crs/nuke/R40094.pdf

[5] www.iaea.org/Publications/Documents/Board/2012/gov2012-9.pdf