24 Nov Why Is the New Agreement Between P5+1 and Iran Not Void?
A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran’s uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a “right” to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT):
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.
Ryan disagreed, arguing that any such “right” in the NPT has been superceded by a series of Security Council resolutions — beginning with Res. 1696 in 2006 — demanding that Iran cease its enrichment activities. In defense of his position, Ryan cited a number of eminent non-proliferation scholars, such as Larry D. Johnson, a former Assistant-Secretary-General for Legal Affairs at the United Nations:
While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.
I think Ryan are Johnson are right that the “inalienable right” guaranteed by Iran’s ratification of the NPT is nullified — at least for now — by the various Security Council resolutions. So here is my question: why is the just-announced agreement between P5+1 and Iran not void ab initio for the same reason? SC Res. 1737 categorically prohibits Iranian uranium enrichment (emphasis mine):
2. Decides, in this context, that Iran shall without further delay suspend the following proliferation sensitive nuclear activities:
(a) all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA; and
(b) work on all heavy water-related projects, including the construction of a research reactor moderated by heavy water, also to be verified by the IAEA.
The new agreement between P5+1 and Iran, however, explicitly permits Iran to continue to enrich uranium for at least six months (emphasis mine):
Iran would undertake the following voluntary measures:
• From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line.
• Iran announces that it will not enrich uranium over 5% for the duration of the 6 months.
• Iran announces that it will not make any further advances of its activities at the Natanz Fuel Enrichment Plant, Fordow, or the Arak reactor, designated by the IAEA as IR-40.
• Beginning when the line for conversion of UF6 enriched up to 5% to UO2 is ready, Iran has decided to convert to oxide UF6 newly enriched up to 5% during the 6 month period, as provided in the operational schedule of the conversion plant declared to the IAEA.
To be sure, Res. 1737 does contemplate P5+1 entering into an agreement with Iran concerning uranium enrichment. Indeed, it welcomes it:
21. Welcomes the commitment of China, France, Germany, the Russian Federation, the United Kingdom and the United States, with the support of the European Union’s High Representative, to a negotiated solution to this issue and encourages Iran to engage with their June 2006 proposals (S/2006/521), which were endorsed by the Security Council in resolution 1696 (2006), for a long-term comprehensive agreement which would allow for the development of relations and cooperation with Iran based on mutual respect and the establishment of international confidence in the exclusively peaceful nature of Iran’s nuclear programme.
But here is the problem: the June 2006 proposal that the Security Council endorsed in Res. 1696 also does not permit any Iranian uranium enrichment (emphasis mine):
To create the right conditions for negotiations… Iran will:
• Commit to addressing all of the outstanding concerns of IAEA through full
cooperation with IAEA,
• Suspend all enrichment-related and reprocessing activities to be verified by IAEA, as requested by the IAEA Board of Governors and the Security Council, and commit to continue this during these negotiations.
• Resume the implementation of the Additional Protocol.
P5+1, in short, has entered into an agreement with Iran that deviates from the proposal endorsed by the Security Council in Res. 1696. The agreement thus violates Res. 1737. How, then, can the agreement not be void ab initio?
To be clear: I am in no way opposed to the substance of the agreement. I think it’s a very important development. But I am genuinely curious why P5+1 thinks it can ignore Security Council resolutions that they themselves (minus the +1) were responsible for. Shouldn’t they have passed a resolution endorsing a proposal that permitted Iranian uranium enrichment first? I know P5 have permanent vetoes — but there are 10 other members of the Council. Does their input count for nothing?