The latest International Atomic Energy Agency report on Iran’s nuclear program has prompted a wide range of responses. From the hawkish “bomb-bomb-bomb Iran” crowd to the “jaw-jaw-not-war-war” folks, we are inundated with suggestions of how best to stop Iran from getting a bomb. As if it’s a blatantly obvious fact that Iran’s on a mad dash to make nuclear weapons.
But not only is there no evidence for any current nuclear weapons program in Iran, there’s nothing in international law that prohibits Iran from gaining a nuclear weapons capability.
Iran, and other signatory non-nuclear weapons states of the Nuclear Nonproliferation Treaty, are only prohibited from manufacturing nuclear bombs or diverting fissionable material to weapons uses — things Iran has not been accused of doing.
Some of the most incriminating-sounding accusations in the this new report refer to weapons-relevant research work that allegedly took place in Iran before 2004 – almost a decade ago. The report states that the research program “was stopped rather abruptly pursuant to a ‘halt order’ instruction issued in late 2003.” and that “the agency’s ability to construct an equally good understanding of activities in Iran after the end of 2003 is reduced, due to the more limited information available.”
This is decidedly underwhelming and possibly explains both the muted White House reaction, and the watered down IAEA resolution Friday — merely voicing “deep concern” and taking no further punitive measures.
Luckily, the Obama administration also has other sources of intelligence on Iran, besides the IAEA. Earlier this year, the Director of National Intelligence, James Clapper, released a new National Intelligence Estimate on the Iranian nuclear program. It presents the consensus view of 16 US intelligence agencies. Though its content is classified, Clapper recently confirmed in Senate questioning that he has a “high level of confidence” that Iran “has not made a decision as of this point to restart its nuclear weapons program.”
This jibes with the intelligence community’s 2007 National Intelligence Estimate, the unclassified version of which publicly stated that Iran wrapped up its nuclear weapons program in 2003. Recent State Department cables provided by WikiLeaks back this up — for example, State Department officials confirmed in 2009 that some previous IAEA reports of suspicious Iranian activities dating to 2004 were “consistent with the 2003 weaponization halt assessment, since some activities were wrapping up in 2004,”
More important, it’s unclear whether Iran was breaking the letter of the law — even when it allegedly carried out research into nuclear weapons-relevant technologies prior to 2004. The NPT is focused on preventing non-nuclear weapons states from manufacturing nuclear weapons. Studying or researching nuclear weapons designs; carrying out computer simulations, or even conducting experiments using conventional high-explosives of the sort that could be used in a nuclear bomb are not specifically proscribed – though such activities would certainly be against the spirit of the treaty.
In any case, the IAEA is not charged with in monitoring or verifying the states’ compliance of NPT legal obligations. It’s responsible for verifying compliance with very specific “safeguards agreements”— which pertain to fissionable materials and their related facilities within the member states. As Daniel Joyner, a noted NPT authority, wrote recently, “the IAEA simply has no legal mandate to produce such a report on activities being carried on within an IAEA member state concerning items and technologies that may be related to the development of a nuclear explosive device, but that are not directly related to fissionable materials or associated facilities.”
He continues, “Since the IAEA is acting outside of its legal authority in this section of the report, it does not have a legal standard to apply to its conclusions regarding possible nuclear weapons related activities not involving fissile material.
Throughout the report, the director general expresses ‘concern’ about the information being presented, and requests ‘clarification’ from Iran in order to address these concerns. However, since there is no treaty language in Iran’s, or any other state’s, safeguards agreement that deals with non-fissile-material activities related to nuclear weapons, there is no prohibitive or regulatory standard that the director general can point to against which to make a conclusion of compliance or non-compliance. In short, as the ancient legal maxim states, there can be no illegality where there is no law. The IAEA is simply ‘concerned.’”
As for the accountancy of nuclear material in Iran, according to the latest IAEA report, “continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs [locations outside facilities] declared by Iran under its Safeguards Agreement.” — as it has done every year since IAEA safeguards have been in place in Iran. Six former ambassadors to Iran recently wrote that Iran is not in breach of international law, and that the West’s strategy has backfired and contributed to the concocted crisis.
Despite the repeated misapplication of the label, the IAEA is not a “nuclear watchdog” or nuclear policeman. It’s merely an “inspector,” and its legal authority was deliberately limited in consultation with individual states when concluding their narrowly focused safeguards agreements. Even Pierre Goldschmidt, a former deputy director of the IAEA Safeguards Department, admits, “the Department of Safeguards doesn’t have the legal authority it needs to fulfill its mandate”
And the February 2006 IAEA report on Iran explicitly states, “absent some nexus to nuclear material, the agency’s legal authority to pursue the verification of possible nuclear weapons related activity is limited” Certainly, the IAEA has no business looking into Iran’s – or any other country’s – missile programs.
Many commentators appear upset that the IAEA does not have more teeth to make sure Iran does not weaponize in the future. But this is not a failure of the IAEA — since it is not the agency’s task to be a nuclear policeman. The NPT effectively allows nations to stockpile low enriched Uranium — which is what Iran is doing, ostensibly for use as fuel for its research reactor.
Brazil and Japan similarly have a latent nuclear weapons capability.
In a perfect world, it would have been better to have a tougher treaty that forbids a nuclear weapons capability. But the treaty that we have reflects the political compromises made to get the broad international support that it now enjoys. To get international consensus on a tougher treaty now would probably require the nuclear armed states to commit to a more rapid and verifiable program of disarmament, — something that appears not to be in the cards.
The highest level of enrichment being carried out in Iran is to 19.75 percent, a level considered low enriched uranium by both the International Atomic Energy Agency, not “medium” enriched uranium as even the august New York Times misstated.
In fact, the IAEA’s International Fuel Cycle Evaluation working group has emphasized, “Proliferation resistance can be increased by enrichment reduction preferably to less than 20 percent, which is internationally recognized to be a fully adequate isotopic barrier to weapons usability of 235U”
Of course, it would be a nice gesture for Iran to offer greater transparency for its nuclear program, but it is not legally bound to do so. Both the unilateral sanctions as well as the U.N. Security Council sanctions are a disincentive for Iran to cooperate with the West since they require Iran to stop enrichment — something Iran is entitled to do.
Even if Iran provides more transparency, it will likely still be sanctioned for enriching — so why should it cooperate with the West?
Individual states may feel threatened by and even take unilateral action against Iran. But they ought to stop politicizing the IAEA or claiming that Iran is in violation of its safeguards agreement — when it is not.
Unfortunately, as long as the most IAEA funding comes from the West and Japan, the agency is likely to have biases and be susceptible to such politicization.
It should be said that the oft-touted military “option” is not really an option – at least, not an option in compliance with the UN Charter. Since they strengthen the hands of hawkish political elements in Iran who favor nuclear weaponization, such military threats are counter-productive and should be shelved.
Possibly the best way to wind down the standoff now is to offer Iran a simple quid-pro-quo: if Iran agrees to more intrusive “Additional Protocol” inspections by the IAEA, both the unilateral and U.N. Security Council sanctions will be dropped.
Yousaf Butt, a nuclear physicist at the Harvard-Smithsonian Center for Astrophysics, serves as a scientific consultant on national security issues. The views expressed are his own.
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