The US and the Iranian Nuclear Impasse

Aslı Ü. Bâli

Aslı Ü. Bâli is the Irving S. Ribicoff Fellow at Yale Law School and an editor of Middle East Report.

The Nuclear Non-Proliferation Treaty (NPT) underwent its most recent five-year review in May 2005. There were numerous proposals on the table for strengthening the global non-proliferation regime. None were adopted. Perhaps even more puzzlingly, in an age when the White House repeatedly invokes the specter of suitcase-size nuclear weapons in the hands of terrorists, the United States did not send a high-level delegate.

The bone of contention at the conference was the bargain at the heart of the NPT: non-proliferation of atomic weaponry in exchange for disarmament by and civilian nuclear energy cooperation from the nuclear powers. Debate centered ultimately on demands by non-nuclear weapons states for stronger disarmament provisions, while the US, backed to some extent by its European allies, sought reinforced verification of treaty compliance and non-proliferation requirements. With North Korea withdrawn from the NPT, US concerns revolved around the Islamic Republic of Iran. Indeed, one analyst interpreted the failure of the conference as a consequence of disagreements between the US and Iran.[1]

In the runup to the meetings, Tehran appeared extremely concerned that the 2005 NPT review might result in strong support for new restrictions on access to the nuclear fuel cycle or even a specific proposal to prevent Iran from producing nuclear fuel. Fortunately, perhaps, from the Iranian perspective, no such proposals were broached during the meetings, where the US deliberately kept the focus on process rather than substance, ensuring that none of the contentious issues before the review session were ever openly debated.

Why would the NPT’s chief architect resist the strengthening of a framework that preserves the status quo of nuclear weapons haves and have-nots? How can we reconcile the US priority on non-proliferation enforcement with the international record of inconsistent enforcement, with known proliferators escaping any consequence and other suspected proliferators facing severe, punitive sanctions? As the case of Iran illustrates, inconsistent enforcement is often a function of US intervention, in partial concert with other great powers, for political reasons that are independent of legal non-proliferation norms. US obstructionism at the 2005 review conference only makes sense when we see non-proliferation as an instrument of US geopolitical strategy rather than an end in itself, or an international legal norm to be protected in its own right.

Roadblocks

Following the onset of the Iran-Iraq war, the new president of the Islamic Republic, Ali Akbar Hashemi-Rafsanjani, restarted the nuclear energy program that had begun, with US acquiescence, under the Shah, but had lain dormant since his ouster in 1979. Rafsanjani sought to buy uranium fuel for power generation and, later, to acquire some components of the technology needed to enrich uranium ore—of which Iran possesses deposits—to fuel grade.

Initial efforts to enter into talks with the German company that was under contract during the Shah’s reign to construct two nuclear reactors in Bushehr were rebuffed. Iranian attempts to acquire enriched uranium from the Eurodif uranium enrichment plant—in which the Shah had invested over $1 billion in exchange for a promise of 10 percent of the output—also failed. By the mid-1990s, Tehran had concluded that access to Western European markets for its nuclear program was extremely restricted.

Unable to find a Western European supplier, Iran approached Argentine, Brazilian, Chinese, Pakistani and Russian companies either for completion of work on the Bushehr reactors or to acquire additional research reactors. Eventually, Iran was able to conclude a deal to purchase a small research reactor from China, but only that, largely as a result of US interventions.[2] In the mid-1990s, China abandoned an agreement to assist Iran with the construction of a uranium conversion facility at Isfahan, though Iran retained the Chinese blueprints and informed the International Atomic Energy Agency (IAEA) of its intention to build a uranium hexafluoride conversion plant at Isfahan during a November 1996 IAEA inspection of the site.[3]

Rafsanjani’s efforts finally bore fruit in the form of an $800 million contract with the Russian nuclear energy ministry to complete work on a light-water reactor at Bushehr. The Russian deal originally envisioned the completion of the reactor by 2000, but the completion date and the cost of the contract have both been adjusted numerous times. The course of Russian-Iranian nuclear energy cooperation has also been marked by repeated US efforts to persuade Russia to desist and to impede Iranian access to other materials necessary for the Bushehr facility.

US policy on Bushehr has been driven by a number of factors, including concern that the Iranian-Russian agreement might serve as cover for transfer of more sensitive nuclear technology to Iran or provision of training for Iranian nuclear specialists that might later find military applications. But there has never been any suggestion that completion of a nuclear reactor at Bushehr would contravene Iranian or Russian non-proliferation obligations. Rather, US concerns about the nature and intentions of the regime in Tehran drove Washington to attempt systematic blockage of Iranian access to open-market sources of civilian nuclear cooperation or technology transfers that are permissible under the NPT. Through diplomatic pressure, the threat of direct secondary sanctions and the threat of lost access to US markets for companies willing to do business with Iran, the Clinton administration successfully cut off most avenues for Iranian access to trade in civilian nuclear technologies during the 1990s.

This policy of restricted access was in tension with the spirit of the NPT, which expressly allows non-nuclear states to pursue civilian nuclear energy programs in exchange for forgoing the pursuit of nuclear weapons. Further, nuclear material and technology transfers conducted through open-market transactions are automatically subject to IAEA inspections for any country that, like Iran, has concluded a safeguards agreement with the Agency. Finally, light-water reactors are widely acknowledged to have little potential to contribute to a nuclear weapons program.[4] Indeed, the obstruction of Iranian efforts at Bushehr was ultimately counterproductive from a non-proliferation perspective. In particular, US policy regarding Bushehr has fueled Iranian claims that the US has driven Iran to seek nuclear material and technologies from black-market sources and develop a nuclear program clandestinely.

Revelations

Iran’s reinvestment in its nuclear energy program rose to the top of the international non-proliferation agenda in August 2002, when the National Council of Resistance of Iran (NCRI), the “political wing” of an exiled opposition group, the Mojahedin-e Khalq, publicized the existence of two undeclared nuclear facilities in Iran: a centrifuge-based uranium enrichment plant at Natanz and a heavy water production plant at Arak. Shortly after the revelations, Iran declared its intention to embark on a “long-term plan to construct nuclear power plants with a total capacity of 6,000 megawatts within two decades,” including pursuit of the full fuel cycle.[5] While the goals of the new Iranian energy program were more modest than the Shah’s, they were still considerably more advanced than anything the Islamic Republic had previously laid out.

The IAEA intensified its scrutiny of Iran’s nuclear program, publishing 12 reports since June 2003 documenting unreported Iranian activities over an 18-year period. IAEA inspections at Natanz and Arak quickly confirmed the NCRI allegations. The heavy water reactor program consists of a heavy water production plant under construction at Arak and a planned reactor on which construction has not yet begun. The uranium enrichment program at Natanz consists of a pilot-scale gas centrifuge enrichment plant that went into operation in June 2003. A commercial-scale enrichment facility is also under construction.

While Iran’s failure to report plans to construct these facilities is unfortunate, in the end the construction of the facilities is not actually a violation of Iran’s IAEA safeguards obligations. In particular, Iran is not required to report the existence of facilities where no fissile materials are present. In the case of the Arak facilities, which are still under construction or in the planning phase, fissile materials cannot yet be introduced and therefore no violation has occurred. In the case of the uranium enrichment facilities, whether Iran violated its safeguards obligations depends crucially on whether nuclear material was introduced into the pilot-scale Natanz facility before the plant went into operation. Doing so in secret would be a serious violation of the safeguards agreement. Iran has denied that any nuclear material was introduced into the facility prior to the first IAEA inspection of it in February 2003. In its June 2003 report following initial inspections of both sites, the IAEA did not find violations of Iranian reporting obligations related to the construction of facilities at either Natanz or Arak.

But three years of inspections have revealed numerous other reporting violations. The record of covert Iranian nuclear activities uncovered by the IAEA includes undeclared enrichment activities, undeclared reprocessing experiments and the import of undeclared fissile materials from foreign suppliers in a quest for an indigenous nuclear fuel cycle. None of these activities are prohibited in and of themselves, by the NPT or the safeguards agreement, but they are supposed to be reported to the IAEA. In addition, evidence revealed by IAEA inspections led to the discovery of Iranian ties to the A. Q. Khan black-market nuclear supply network.

Iran protests that it has been barred from developing a civilian nuclear energy program in the open, principally by US efforts. Further, Iran claims that it requires an indigenous nuclear fuel cycle because it has also faced systematic discrimination in its efforts to purchase fuel to power its reactors. This discrimination is a result both of direct US intervention to cancel contracts and sanction firms that do business with Iran and indirect intimidation of foreign companies by the threat of such measures. The US, by contrast, argues that Iran is pursuing a clandestine nuclear weapons program—either an actual arsenal or a latent capability that would serve as a virtual deterrent. The deadlock is as much a matter of perceived interests and perceived intentions as it is of the objective record of Iranian compliance with its safeguards obligations.

Reporting Violations

In October 2003, Iran provided the IAEA with what it termed a comprehensive report of all its covert nuclear activities, including considerable detail about its P-1 centrifuge enrichment program. It was not until January 2005, however, that Iran revealed having received an offer from the A. Q. Khan network in 1987 that included a sample P-1 machine, drawings and production specifications for a complete centrifuge plant and parts for 2,000 P-1 centrifuges, as well as uranium conversion and casting equipment.[6] The IAEA is still seeking the original documentation from the Iranian government related to this offer, as well as the paperwork associated with four shipments of P-1 centrifuge parts and designs that occurred between 1994 and 1995. In addition, the IAEA learned in January 2004 that Iran acquired design materials for the more advanced P-2 centrifuge parts in 1995.[7] Tehran claims that no work was carried out on P-2 centrifuges until 2002, with its scientists focused until that time on the P-1 program. Unsatisfied, the IAEA has said that this explanation does not “yet provide sufficient assurance that no related activities were carried out” in the intervening seven years.

Iran also imported nuclear materials—uranium hexafluoride, uranium tetrafluoride and uranium dioxide—from China in 1991. These are all forms of uranium that are used in various phases of conversion and enrichment to generate nuclear fuel. As such, these imports should have been reported at the time of purchase, but were only acknowledged by Iran in 2003. Iran’s confirmation of receipt of these materials in a letter to the IAEA noted that Tehran did not believe it had broken a reporting obligation, in that the total imported quantity was less than “one effective kilogram” of uranium.[8] In making this argument, the Iranians relied on a provision of the safeguards agreement, Article 95, specifying that advance reporting of imports is only required when the quantity is greater than one effective kilogram of nuclear material. However, the relevant provision in this case, Article 34(c), requires that an import be reported as a change in the inventory of the country’s nuclear material, regardless of quantity.

IAEA inspections also revealed that the Kalaye Electric Company had been involved in Iran’s covert enrichment program. Iranian officials initially acknowledged that the facility had been used to make centrifuge components, noting (rightly) that a centrifuge production facility is not subject to reporting requirements. However, subsequent acknowledgment by Iran of a “limited number of tests, using small amounts of uranium hexafluoride” having been conducte at Kalaye between 1999 and 2002 rendered it subject to inspection.[9] After several months’ delay, inspectors were permitted to take environmental samples that revealed particles of highly enriched uranium (HEU) and low-enriched uranium, which were later also found at the Natanz facility. These discoveries ultimately led to further revelations concerning the links between Iran and the Khan network. In its September 2005 report, the Agency was able to corroborate Iranian claims that the HEU particles came from contamination of materials purchased from Pakistan through the Khan network while investigations continue on the provenance of the low-enriched uranium particles.

Iran’s enrichment efforts were not confined to gas centrifuge facilities, as was revealed by IAEA inspections in the fall of 2003. In its November 2003 report, the Agency detailed a 12-year laser enrichment effort, including a pilot plant that was established in 2000 but never completed as a result of failure to obtain export licenses to acquire necessary equipment. The laser enrichment program was apparently abandoned in 2003.

In its own October 2003 declaration, Iran revealed that it had conducted plutonium reprocessing experiments in Tehran, providing additional information under pressure from the IAEA in May 2004. Inspections also revealed that Iran had experimented with polonium-210 between 1989 and 1993.[10] Iran informed the Agency that the material had been planned for use in nuclear batteries; the IAEA noted, however, that it remained “somewhat uncertain regarding the plausibility of the stated purpose of the experiments.”

Finally, acting on Western intelligence reports and the concerns of the IAEA board of governors, the Agency has sought Iran’s cooperation in inspecting two military sites. The IAEA was not granted access to the Parchin military complex (south of Tehran) until January 2005, eight months after the initial request. During the visit inspectors were only permitted to visit certain parts of the site and were restricted in the areas from which they could take environmental samples. The Agency also sought access to the Lavizan site, an area that had contained a military complex, which was razed in November 2003. Following NCRI allegations that Lavizan’s activities had been relocated to hide a nuclear program, Iran explained that the move was a result of a dispute with the local municipality. Environmental samples taken at the site revealed no nuclear materials, but the Agency noted in November 2004 that “detection of nuclear material in soil samples would be very difficult in light of the razing of the site.” Nonetheless, Iranian documents provided to the IAEA supporting the claimed purpose of the razing of the site have been deemed “coherent and consistent with [Iran’s] explanation.”[11]

Based on the inspections’ results, the Agency concluded in November 2004 that:

Many aspects of Iran’s nuclear fuel cycle activities and experiments, particularly in the areas of uranium enrichment, uranium conversion and plutonium separation, were not declared to the Agency in accordance with Iran’s obligations under its Safeguards Agreement. Iran’s policy of concealment continued until October 2003, and has resulted in many breaches of its obligation to comply with that Agreement. Since that time, good progress has been made in Iran’s correction of those breaches and in the Agency’s ability to confirm certain aspects of Iran’s current declarations, which will be followed up as a routine safeguards implementation matter.[12]

Despite finding numerous reporting violations, the IAEA has yet to find Iran in non-compliance with the NPT itself.

The IAEA board of governors tends to follow the Agency staff’s lead. Beginning in 2002, however, the US has argued vociferously in board meetings that the discrepancies in Iran’s reporting establish a pattern of deception sufficient to find Iran in non-compliance with the NPT. Washington’s emissaries persisted in these arguments despite Agency findings that indicated greater Iranian cooperation. In November 2003, for example, John Bolton, then undersecretary of state for arms control and non-proliferation, called an Agency report welcoming Iran’s new “policy of full disclosure” “impossible to believe.”[13] In September 2005, the intense US diplomacy succeeded at last: The board issued a resolution finding that “Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement constitute non-compliance” and threatening to refer Iran to the UN Security Council should it fail to improve its cooperation with Agency inspectors and suspend its uranium enrichment-related activities. Strikingly, the strongly worded resolution followed on the heels of a relatively positive report from the Agency staff. Indeed, the IAEA director-general, Mohamed ElBaradei, has consistently discouraged a Security Council referral, believing that non-proliferation objectives would be better served by ongoing inspections and negotiations for suspension of enrichment. Following the September 2005 board resolution, ElBaradei voiced his continuing hope that Iran and its Western interlocutors would return to negotiations.[14] The timing of the board’s resolution—on the heels of a relatively positive Agency report, but coinciding with the collapse of negotiations between Iran and European diplomats—suggests that the political objective of persuading Iran to halt enrichment, rather than enforcement of treaty obligations, lay behind the board’s findings.

Enter the EU-3

The IAEA board of governors is a political body comprised of the representatives of 35 governments that occupy board seats on a rotating basis. In contrast to the Agency secretariat, which is concerned with technical monitoring, inspection and verification, the board is charged with interpreting the Agency findings and making determinations regarding NPT and safeguards obligations case by case. The Iranian case is complicated by the fact that political negotiations with a small subset of governments from the IAEA board were set in motion in parallel with intensified inspections since the 2002 revelations.

With stepped-up inspections and repeated Western expressions of concern that Iran may have a covert nuclear weapons program, Iranian officials began to complain of double standards in the enforcement of the non-proliferation regime. During a May 2003 presentation at IAEA headquarters in Vienna, Reza Aghazadeh, president of the Atomic Energy Organization of Iran, argued: “At present over 12 countries are engaged in uranium enrichment activities…. Can one claim that all these countries are working to develop nuclear weapons?” The invocation of double standards was likely especially resonant for Iran’s neighbors, in light of Israel’s well-known clandestine nuclear program. But the specter of double standards has wider resonance in the developing world, and particularly among the states that belong to the non-aligned movement. Iranian officials also repeatedly emphasized the renunciation by the Islamic Republic of any aspiration to nuclear weapons, which they have called “inhuman, immoral, illegal and against our basic principles.”[15]

Despite Iranian efforts to assuage international fears, however, the first year of inspections resulted in a toughly worded IAEA board resolution in September 2003, prompting a brief Iranian walkout from the IAEA meetings. The September 2003 resolution set a deadline for improved Iranian cooperation with the IAEA by October 31, in advance of the board’s November meeting, wielding an implicit threat of a referral to the Security Council. The initial Iranian response was to threaten suspension of its cooperation with the Agency and to accuse Washington of “having new invasion plans after Iraq.” Following this heated rhetoric, however, an Iranian delegation entered into negotiations with European diplomats to develop arrangements for more stringent inspections and more complete disclosure regarding past activities.

The negotiations were spearheaded on behalf of the European Union by the governments of Britain, France and Germany (the “EU-3”). Significant progress was made in the initial discussions, resulting in a joint statement of agreed measures to bring Iran into full compliance with the requirements of the September IAEA board resolution. Under the terms of the document, known as the Tehran Declaration, Iran agreed to engage in full cooperation with the IAEA to resolve all outstanding issues with transparency, to sign the IAEA Additional Protocol, subjecting Iranian facilities to spot inspections, and to suspend all uranium enrichment and reprocessing activities. The wording of the declaration with respect to suspension of enrichment is worth citing in full: “While Iran has a right within the nuclear non-proliferation regime to develop nuclear energy for peaceful purposes it has decided voluntarily to suspend all uranium enrichment and reprocessing activities.” Thus, Iran succeeded in underscoring its right to develop nuclear energy and the voluntary nature of the suspension, while the EU-3 secured a confidence-building measure sufficient to hold off further US pressure for immediate action against Iran while the IAEA continued its inspections. In addition, the EU-3 promised longer-term cooperation with Iran including “easier access to modern technology and supplies in a range of areas.”

While the Tehran Declaration was an important diplomatic breakthrough, it had two weaknesses. First, the scope of the suspension and the activities that it covered were not clearly specified and proved to be contentious. Second, the incentive of the EU-3 promise of easier access to technology would only be realized subsequent to an IAEA finding that all outstanding issues had been resolved. This left Iran with no short- or medium-term incentives for continued suspension. Initial Iranian compliance was good despite these weaknesses, with the IAEA declaring that Iran had submitted a “comprehensive” declaration of its nuclear program by October 31 in compliance with the IAEA board deadline. Further, an IAEA report on November 11 found no evidence of diversion of Iranian nuclear materials to non-peaceful purposes. However, reports that Iran was continuing centrifuge assembly work despite the agreed suspension were met with accusations that Tehran was violating the declaration by December 2003. Iran responded that it did not consider centrifuge assembly to be covered by the suspension. Ultimately, under European, US and IAEA pressure, Iran agreed to cease building centrifuges in February 2004. However, when a subsequent IAEA board resolution in June 2004 expressed concern that Iran’s interpretation of the suspension was at variance with that of the Agency, Iran expressed its own irritation by resuming the centrifuge assembly work. In the end, Iran and the EU-3 engaged in mutual recriminations over the breakdown of their agreement, with European diplomats accusing Iran of bad faith in its narrow interpretation of the agreed suspension of enrichment activities and Iran accusing the EU-3 of failing to facilitate Iranian access to technologies.

By September 2004, the Iranian case had once again assumed urgency for the IAEA board, with the suspension of enrichment activities no longer in place and numerous additional revelations over the course of inspections in 2004 casting doubt on the completeness of Iran’s declaration of its nuclear program in October 2003. With heightened concerns prompted particularly by the discovery of HEU particles at the Natanz and Kalaye facilities, the board issued another tough resolution in September 2004, almost one year to the day after its previous ultimatum demanding full Iranian cooperation. While the September IAEA report actually found improved Iranian cooperation on unresolved issues, the board resolution demanded immediate suspension of enrichment activities and expressed deep regret that Iran’s compliance with the Tehran Declaration fell short of board expectations. Still, the board declined to refer the Iranian case to the Security Council, despite continued US pressure to do so.[16] Instead, the resolution afforded Iran a period until the next board meeting on November 25 in which it could suspend its enrichment activities. Against this backdrop, the EU-3 presented Iran with a new proposal on October 21, opening a new round of negotiations that continued until mid-November. The EU-3 pressured Iran to accept an indefinite suspension of its enrichment activities with a specific definition of the scope of activities to be covered under the suspension. In return, Iran was offered a package of incentives including a guaranteed nuclear fuel supply, access to civilian nuclear technology, economic assistance and support for Tehran’s application to the World Trade Organization. While Iran remained consistent in refusing to accept an indefinite suspension of its enrichment activities, it proved willing to compromise on a far-reaching suspension for a “reasonable” period as a confidence-building measure.[17]

A new agreement between the EU-3 and Iran, known as the Paris Agreement, was announced on November 15, 2004. Under this document, Iran agreed voluntarily to suspend its enrichment and reprocessing activities, which were specifically defined. Following IAEA verification of suspension, negotiations on a longer-term agreement between the EU-3 and Iran were to commence. Specifically, these negotiations were expected to yield an agreement that “will provide objective guarantees that Iran’s nuclear program is exclusively for peaceful purposes…[and] equally provide firm guarantees on nuclear, technological and economic cooperation and firm commitments on security issues.” Even as the agreement was being concluded, however, the political context for its implementation remained fraught. In the same month, for instance, then-Secretary of State Colin Powell accused Iran of developing delivery systems for nuclear warheads by adjusting the design of the Shihab-3 missile.[18] With the US expressing its ongoing belief that Iran was pursuing a covert nuclear weapons program, the reference to “firm commitments on security issues” was unlikely to provide great comfort to the Iranian government. Indeed, EU-3 promises of nuclear and technological cooperation and security guarantees were both hollow in the absence of US support for the Paris Agreement, since the threat of US sanctions against European companies would likely stall cooperation while the EU-3 would hardly be able to provide security guarantees in the face of US regime change policies. Further, the Paris Agreement suffered from vagueness in two crucial respects: the definition of “objective guarantees” and the duration of the Iranian voluntary suspension. These weaknesses would prove to be serious stumbling blocks as negotiations got underway.

Issued on the same day as the Paris Agreement, the November 2004 IAEA report found that all nuclear materials in Iran had been accounted for and that no evidence had been uncovered of any military nuclear program. The report cautioned, however, that the existence of a weapons program could not be discounted as a result of incomplete information and a series of unresolved questions. A generally positive IAEA board resolution followed on November 29, welcoming the Iranian decision to suspend its enrichment program and calling on ElBaradei to verify the suspension and resolve all outstanding questions. Over the course of December and January, the IAEA discovered that Iran was completing uranium processing begun prior to the November suspension, but all such activity was verified to have ended by February 2005. Although implementation of the suspension aspect of the agreement was complete by February, negotiations between the EU-3 and Iran concerning the longer-term agreement were flagging.

Diplomacy Stalls

Negotiations between the EU-3 and Iran reportedly got underway in January 2005, with the Europeans seeking to put together an attractive package of nuclear cooperation and generous economic assistance to persuade Iran to forgo the development of an independent nuclear fuel cycle. As negotiations began, however, the State Department announced that it was penalizing eight foreign companies under the Iran Non-Proliferation Act of 2000 for transferring to Iran technologies deemed restricted by the US legislation. Secondary sanctions imposed by the US on foreign companies engaging in trade with Iran were an important source of frustration for Iranian diplomats relying on the Paris Agreement for improved access to open-market sources for technology and nuclear cooperation. Similarly, Secretary of State Condoleezza Rice’s statement in February that the US would withhold its support from the EU-3 incentives package was a blow to the credibility of European commitments. Following President George W. Bush’s late February trip to Europe, senior Iranian officials apparently concluded that the Paris Agreement was dead for lack of US support for any guarantees short of complete cessation.

These Iranian conclusions did not, however, prompt an immediate withdrawal from negotiations or a resumption of enrichment activities. Rather, Iranian officials continued to press to see whether “objective guarantees” short of complete permanent cessation of enrichment activities were attainable. For instance, President Mohammad Khatami stated that although ending Iran’s uranium enrichment program would be “completely unacceptable,” Iran would be willing to provide any “objective guarantees” of the peaceful uses of enrichment requested by the EU-3 or the IAEA.[19] Iran proposed a package to the EU-3 in late March, agreeing to permanent halts of its broader uranium enrichment program and planned reprocessing program in exchange for economic and technical assistance and the continued operation of its pilot enrichment facility under a system of “objective guarantees” implemented by the IAEA. Among the proposals put forth by the Iranian side was a “phased approach” involving enhanced IAEA monitoring and on-site IAEA inspectors to be permanently stationed at the enrichment facility. While the Iranians believed that the offer of an enhanced monitoring scheme coupled with the phasing of any progress toward the fuel cycle represented an important step toward satisfying international concerns about the intentions of the Iranian program, the Europeans were reportedly not prepared to accept any measure short of complete cessation of enrichment activities as an adequate “objective guarantee.”[20]

Following the European rejection of the Iranian proposal, Iranian negotiators imposed a July 31 deadline on the EU-3 to prepare a counter-proposal. There is reason to believe that the Iranian claims of an agreement between the Europeans and US officials concerning the limits of permissible results from the negotiations are accurate. For instance, reports in May 2005 suggested that the EU-3 had reached an agreement with the US to call for UN Security Council action if their negotiations with Iran failed to secure an agreement to full cessation of enrichment activities.[21] Despite these reports, Iran again offered a proposal to the European delegation in July to try to break the impasse in negotiations. This mid-July offer contemplated the phasing of any permitted enrichment activity to prevent sufficient quantities of nuclear material for a weapons program from ever accumulating while also offering multinational participation in the enrichment pilot project to add an additional layer of international supervision and control. This proposal, too, was rejected.

The EU-3 finally offered their counter-proposal on August 5, five days after the Iranian deadline had expired. In the interim, Iran announced on August 1 that it would resume uranium conversion activities under IAEA supervision. The 34-page European proposal, entitled “Framework for a Long-Term Agreement,” reportedly acknowledged Tehran’s right to “a safe, economically viable and proliferation-proof civil nuclear power generation and research program.” But, it stipulated, Iran would have to “make a binding commitment not to pursue fuel cycle activities other than the construction and operation of light water power and research reactors” to get European help in obtaining nuclear fuel.[22]

The proposal was officially rejected on August 6 when Iranian Foreign Ministry spokesman Hamid Reza Asefi stated that any proposal would have to recognize Iran’s “inalienable right” to an enrichment program. The collapse of the Paris Agreement and Iran’s resumption of uranium conversion, in turn, prompted emergency meetings of the IAEA board of governors, resulting in a resolution demanding renewed suspension of all activities related to the nuclear fuel cycle. The resolution set the stage for the nearly inevitable confrontation between Iran, representatives of the EU, US officials and the IAEA at the September 2005 IAEA board meetings.

While diplomacy stalled, there was welcome news concerning fears of a covert Iranian weapons program. First, the ongoing IAEA investigation into the HEU particles determined that they had not been produced in Iran, confirming Iranian claims that the traces arrived on contaminated parts imported from Pakistan. Second, the CIA released a new National Intelligence Estimate in July 2005 regarding the progress of the Iranian nuclear program. Revising a 2000 projection, the new estimate concluded that Iran’s nuclear program was at least ten years away from being capable of building an atomic bomb, pushing the new projection past 2015. The extension of the timeline was supported by revisions in Israeli and British estimates.

Nevertheless, Iran faced the most severe IAEA board resolution yet, with an explicit threat of Security Council referral on September 24. Specifically, the board resolution threatened to refer Iran to the Security Council as a result of “Iran’s many failures and breaches of its obligations,” unless the Iranian government renewed and drastically improved its cooperation with the Agency, suspended its uranium enrichment-related activity, reconsidered construction of the heavy water reactor at Arak and ratified the Additional Protocol. Of the 35 countries represented on the IAEA board in September, 22 voted in favor of the resolution, including all of the European members, the US, Canada, Australia, Japan and, notably, Iran’s long-time ally India. Twelve countries, including Russia and China, abstained and only one country, Venezuela, voted no. The vote represented one of a few instances where the board of governors has acted without unanimity. Despite the divided vote, all board members agreed that Iran should resume its freeze on uranium enrichment activities and return to negotiations with the EU-3.

Escalation

The battle lines were now clearly drawn on the key issue of uranium enrichment—with Iran increasingly vocal in its insistence on its right under the NPT to enrich uranium as a necessary step toward developing a domestic fuel cycle and the US, along with its European allies, adamant that Iran must give up enrichment-related activities.

On December 21, 2005, European negotiators met with their Iranian counterparts, for the first time since August, in Vienna. Prior to the meeting, the Europeans (and, more reluctantly, the US) had embraced a Russian proposal whereby Iranian scientists would conduct some fuel-cycle research at home but would conduct enrichment-related research in conjunction with Russian scientists on Russian soil. In Tehran, the Iranian foreign minister elucidated the Islamic Republic’s negotiating stance: “When we talk about nuclear technology to produce fuel for our reactors it means enrichment and having the complete nuclear fuel cycle.” The sides agreed to keep talking, and Iran met face to face with Russia to clarify “ambiguities” in Moscow’s offer, but in the meantime Iran notified the IAEA of its intention to break IAEA seals on enrichment-related equipment in Natanz and resume its own research, which, Iran said, “has been suspended as part of its expanded voluntary and non-legally binding suspension.”

The seals were broken on January 10, 2006. Two days later, the EU-3 announced that talks with Iran had reached a “dead end,” and called for an emergency meeting of the IAEA board of governors, a step welcomed by Secretary of State Rice as a prelude to referring Iran to the Security Council. At a press briefing, Rice said that “these provocative actions by the Iranian regime have shattered the basis for negotiation…. There is simply no peaceful rationale for the Iranian regime to resume uranium enrichment.” Iran vowed to cease voluntary cooperation with the stricter inspections required by the Additional Protocol if the board of governors placed the Iranian dossier before the Security Council. Tehran’s renewal of contacts with Moscow about the Russian offer briefly delayed the board of governors’ meeting, but on February 4 the board passed a resolution demanding that Iran renew suspension of enrichment, “reconsider” its plans for a heavy water reactor and resume transparent dealings with the IAEA. The resolution also requested ElBaradei “to report to the Security Council of the United Nations that these steps are required of Iran” and to keep the Security Council apprised of all subsequent Agency findings regarding these requirements. Iran, in response, told the IAEA to remove from nuclear sites surveillance cameras and other monitoring equipment that had been installed as part of the stricter inspection regime. The ensuing stalemate led to the sharpest rebuke yet to Tehran on the nuclear issue, a March 29 presidential statement from the Security Council calling on Iran to suspend enrichment activities. “Iran is more isolated now than ever,” Rice claimed.

These events took place against a backdrop of heightened political tensions between the Islamic Republic and the West. Beginning in the fall of 2005, Iranian President Mahmoud Ahmadinejad made a series of speeches that questioned the veracity of historical research about the Holocaust and suggested that the present system of government in Israel is destined to fall. These statements were seized upon by the Israeli government and pro-Israel groups in the US, among others, as backing for their long-standing contention that Iran’s nuclear program, which they believe to be military in nature, poses an existential threat to Israel and must be eliminated. There were persistent media reports that the Bush administration was considering—and even actively planning—airstrikes or other military measures to destroy or retard the progress of Iran’s nuclear program, possibly as part of a strategy of regime change in Tehran. Veteran investigative journalist Seymour Hersh published the most detailed of these stories, including the explosive allegation that elements of the Bush administration were pondering the use of nuclear warheads to destroy Iranian facilities buried deep underground.[23] In response to these stories, US officials, including Bush himself, have maintained that their efforts are focused on passing sanctions against Iran at the Security Council, though they have pointedly declined to “take other options off the table.” The creation of a new Office of Iranian Affairs based in the US embassy in the United Arab Emirates was another signal that fueled suspicions of a continuing regime-change motivation at the heart of US policy.

The US push for sanctions, and the increasingly broad hints from EU-3 government officials that they, too, would favor sanctions, did not come as a result of any fresh violation by Iran of the letter of its obligations under the NPT or the safeguards agreement, and ran counter to the spirit of Agency recommendations. The initial IAEA report to the Security Council, on March 8, while it did not “conclude that there are no undeclared nuclear materials or activities in Iran,” otherwise only confirmed the permitted activities that Iran had announced. In various statements, ElBaradei called for a “cool-headed” approach from all parties and requested them to “lower the pitch” of political rhetoric, so that Agency verification and monitoring might proceed unhindered. European warnings about Security Council sanctions were rather tied to Iran’s failure to resume negotiations with the EU-3, talks which aimed to produce Iran’s renunciation of its right to enrichment and which could not promise security guarantees in return. US pressure was prompted, similarly, not by a desire to see the resumption of verification inspections but by the political goal of denying Iran an enrichment capacity protected by the NPT.

The lack of a firm legal basis for Security Council action against Iran was one important factor impeding US efforts to persuade other great powers, particularly Russia and China, to back sanctions. Even after Iran announced, amidst ostentatious ceremony, on April 11 that its scientists had succeeded in enriching small amounts of uranium (to a low level very far from weapons grade), there was no great power consensus behind punitive measures. Frustrated, the US tried another tack. On May 31, Rice dismayed Washington hawks by offering direct talks with the Islamic Republic over ways to facilitate a peaceful nuclear energy program. “As soon as Iran fully and verifiably suspends its enrichment and reprocessing activities,” Rice said, “the United States will come to the table with our EU-3 colleagues and meet with Iran’s representatives.” This offer, while perhaps a victory for State Department “realists” over less compromising elements in the administration, was rejected by Tehran as a “propaganda move.” Iranian officials pointed, once more, to the fact that the US was asking Iran to surrender an NPT prerogative as a precondition of engagement. On June 2, the US joined five other nations, Britain, France, Germany, Russia and China, in offering a package of commercial incentives, including support for Iranian membership in the World Trade Organization, if Iran halted uranium enrichment.

When Iran had not lodged an official response within the timeframe dictated by the six powers, Iran was referred back to the Security Council. On the same day, July 12, Israel launched a massive assault on Lebanon following a Hizballah raid into northern Israel. The US, backed by the other great powers, laid the blame for the escalating war in Lebanon squarely on Hizballah, an Iranian ally, and President Bush accused Iran of complicity in the original raid. Though Iran had not yet given an official reply to the six-nation package, deliberations about the terms of the offer were eclipsed by the sense of building confrontation between Tehran and Washington. The eventual Iranian counter-offer, proposing international participation in a fuel program on Iranian soil, was dismissed out of hand by the US and the EU-3, likely bolstering the belief of Iranian officials that the West did not really want compromise. On July 31, with the Lebanon war still raging unattended to by the Security Council, the UN’s supreme body passed Resolution 1696, which demanded that Iran suspend its uranium enrichment activities or face “appropriate measures” from the Security Council to ensure its compliance. As Iran has not complied, the US continues to press for sanctions.

Hawk Engagement

The forgoing suggests that there are additional issues at stake in the stalemate over Iran’s nuclear program beyond the implementation of safeguards commitments. Under the NPT, the safeguards agreement and the Additional Protocol, Iran is entitled to engage in enrichment or reprocessing activities for its civil nuclear energy program. While there is no question that Iran has been guilty of serious reporting failures over the course of nearly two decades, the IAEA has not (yet) found evidence of diversion of nuclear materials to military purposes in Iran. Moreover, the IAEA has repeatedly welcomed corrective action by the Iranian government to remedy past reporting violations. Iran has also now signed (but not ratified) the Additional Protocol, subjecting itself, albeit voluntarily until ratification, to a much more intrusive inspections regime than it had faced prior to 2003. Furthermore, Iran is still seeking to acquire the technology to enrich uranium in significant quantities. At this quite preliminary stage of nuclear development, the technologies required for civilian and military use are basically identical. Iran is permitted under the NPT to pursue an indigenous nuclear fuel cycle provided that its facilities and materials are under tight IAEA supervision. Nor is Iran under any legal obligation to suspend these operations provided that Tehran complies with inspections and reporting requirements.

That said, the language and authority of Resolution 1696 has slightly changed the legal landscape.[24] The council acted under Article 40 of Chapter VII of the UN Charter, making suspension compulsory. Article 40 governs provisional measures, in which category the requirement of enrichment suspension presumably qualifies, as it is not a demand for full and permanent cessation of all enrichment activity. On the other hand, the resolution invoked Article 41 of Chapter VII as the legal basis for future action in the event of Iranian non-compliance, making suspension an enforceable obligation under international law. Iran may now face an international legal obligation for a provisional suspension of all activities. Yet this political exercise of Security Council power is, from a legal perspective, arbitrary, as it unilaterally alters Iran’s international legal obligations without basis in the actual framework—the NPT—that constitutes the legal standard for judging Iranian compliance with non-proliferation requirements. Further, the Council’s actions are in tension with the recommendations of the IAEA, the international agency legally charged with monitoring that compliance.

The nature of Iran’s past reporting failures or discrepancies is largely a matter of interpretation. Under international law, Iran can legally develop a nuclear energy program that would include many dual-use technologies and materials that might subsequently be diverted to military uses. Iranian officials argue that, for this reason, the US will never be satisfied with any degree of Iranian compliance or even the most intrusive inspections regime, citing US lack of confidence in inspections in Iraq as precedent. US officials counter that if Iran were willing to permanently forego uranium enrichment and the pursuit of an indigenous nuclear fuel cycle (both permitted under international law generally, though less so for Iran in light of the exceptional constraints imposed by the Secuirty Council), and subject its remaining nuclear activities (including at Bushehr) to rigorous IAEA inspections, they would accept that Iran was in compliance with its non-proliferation obligations. This is a political impasse—not a legal one—as it turns not on the legality of Iran’s activities, but on the interpretation of Iranian intentions.

The NPT specifies that enhanced inspections under the Additional Protocol are enough to verify compliance with non-proliferation obligations and that non-nuclear weapons states have the right to pursue enrichment or processing activities or a complete nuclear fuel cycle subject to the strict supervision provided for by the Protocol. Some analysts argue that changes in nuclear technology have facilitated the conversion of civilian nuclear energy programs into weapons programs to the degree that NPT inspections are no longer an adequate guarantee that nuclear materials will not ultimately be diverted to military purposes.[25] Other analysts argue that no civilian nuclear energy program has been transformed into a weapons program and that the technical hurdles remain formidable.[26] ElBaradei and others propose a multilateral regime governing universal access to enrichment and reprocessing facilities under international controls. Many states, including the US, dislike this idea precisely because of its potentially equalizing effect. But the alternative, a multi-tiered system in which different states have different levels of access to technology based on assessments of their intentions or judgments concerning the regime, introduces precisely the kind of inconsistency that threatens to undermine the global credibility and legitimacy of the non-proliferation norm.

In fact, for all the protestations about Iran’s bad faith in dealing with the IAEA, there is ample reason to suspect that US motives are not pure either. Since 2002, in particular, Washington may have decided to pursue “hawk engagement” whereby weak offers of compromise are made to legitimize subsequent coercive action.[27] In particular, the absence of US security guarantees to Iran—up to and including the Bush administration’s toleration of persistent rumors of regime-changing war—in exchange for compliance may indicate such a strategy. In that it spoke of no security guarantees, and made Iranian renunciation of enrichment a precondition rather than a preferred outcome, Rice’s offer of direct talks fits the “hawk engagement” description.

Certainly, the US preference is a predominant element of the enforcement decision of the international community. Other great powers may have acted to shield Iran from enforcement for their own self-interested reasons. Iran may have sought to cultivate ties with such countries, such as Russia and China, expressly to shield itself from a potential enforcement decision. The North-South dimension of the enforcement outcome reinforces the international perception that enforcement is politicized and may therefore weaken the underlying norm. Finally, US reluctance to take the path suggested by the relevant international agency—continued inspections and diplomacy rather than Security Council action—suggests that enforcement is not strictly a technical or legal decision, nor one that rests principally with an impartial bureaucracy. Consequential as this is for Iran, the implications of politicized enforcement of the non-proliferation norm have far greater reach than this case. The failure of the 2005 NPT review conference reflects in part the damage done to the bargain at the heart of the non-proliferation regime. If developing countries are led to believe that non-proliferation means obstruction of access to new technologies or that pretextual enforcement may be a new instrument of great power politics, then “success” in containing Iran will come at the price of far greater risks of future proliferation.

Endnotes

[1] Suzanne DiMaggio, “US-Iran Disagreements Play a Part in NPT Deadlock,” InterDependent (Fall 2005).

[2] For an excellent history of US efforts to block Chinese-Iranian nuclear cooperation, see Anthony Cordesman, Iran and Nuclear Weapons: A Working Draft (Washington, DC: Center for Strategic and International Studies, February 2000).

[3] Andrew Koch and Jeanette Wolf, Iran’s Nuclear Facilities: A Profile (Monterey, CA: Center for Non-Proliferation Studies, 1998), p. 1.

[4] See, for instance, Cordesman, p. 15.

[5] Reza Aghazadeh, president of the Atomic Energy Organization of Iran, quoted in IAEA, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” Report by the Director General, June 6, 2003.

[6] Washington Post, February 27, 2005.

[7] IAEA, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” Report by the Director General, September 2, 2005.

[8] IAEA report, June 6, 2003.

[9] IAEA, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” Report by the Director General, November 10, 2003.

[10] IAEA, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” Report by the Director General, November 15, 2004.

[11] IAEA report, September 2, 2005.

[12] IAEA report, November 15, 2004.

[13] Reuters, November 12, 2003.

[14] New York Times, September 25, 2005.

[15] Statement by G. Ali Khoshroo, deputy foreign minister for legal and international affairs, second session of the Preparatory Committee for the 2005 NPT Review Conference, April 29, 2003.

[16] On US pressure, see International Crisis Group, Iran: Where Next on the Nuclear Standoff? (Amman/Brussels, November 2004), p. 4.

[17] New York Times, October 25, 2004.

[18] Washington Post, November 18, 2004.

[19] Global Security Newswire, March 17, 2005.

[20] New York Times, March 24, 2005.

[21] Washington Post, May 17, 2005.

[22] Associated Press, August 5, 2005.

[23] Seymour Hersh, “The Iran Plans,” New Yorker, April 17, 2006.

[24] For a categorical argument to this effect, see Amy Reed, “UN Resolution 1696 Moots Iranian Legal Claims,” Carnegie Endowment for International Peace, August 21, 2006.

[25] See, for example, Henry Sokolski, “Keeping Nuclear Energy Peaceful: Why We Must Review the NPT,” testimony before the House Committee on International Relations, April 28, 2005, available online at http://www.nti.org/e_research/official_docs/congress/senate042805sokolski.pdf.

[26] Alexander H. Montgomery, “Ringing in Proliferation: How to Dismantle an Atomic Bomb Network,” International Security 30/2 (Fall 2005).

[27] The term “hawk engagement” is taken from Victor D. Cha, “Hawk Engagement and Preventive Defense on the Korean Peninsula,” International Security 27/1 (Summer 2002).