The Emerging Geneva Agreement with Iran

Vol. 13, No. 30    12 November 2013

• Eliminating Iran’s 20-percent-enriched uranium, but allowing the Iranians to continue to produce 3.5-percent-enriched uranium is an unacceptable option if the goal of the West is to prevent Iran from advancing a nuclear weapon. Allowing Iran to enrich to the 3.5-percent level will not address the threat emanating from Iran’s latest generation of faster centrifuges and the scenario of a fast dash by Iran to weapons-grade uranium, known as “nuclear break-out.”

• President Obama’s former aide on the National Security Council, Gary Samore, warned in October that ending the production of 20-percent-enriched uranium is not enough because Iran can also reach weapons-grade uranium using its stock of 3.5-percent-enriched uranium. Thus, any agreement must eliminate all of Iran’s enriched uranium.

• If the Geneva talks produce a bad agreement and allow Iran to continue its drive for nuclear weapons, there will be accelerated nuclear proliferation in the Middle East among Iran’s neighbors, like Saudi Arabia, Egypt, and Turkey. A multi-polar nuclearized Middle East will in no way resemble the bi-polar superpower balance during the Cold War and is likely to be unstable.

• Iran’s global network of terrorism will obtain a protective nuclear umbrella, allowing its organizations to strike with complete impunity. Finally, given Iran’s increasing propensity in recent years to remove any constraints on the supply of state-of-the-art conventional weapons to its terrorist proxies, the flow of nuclear technologies to these groups cannot be dismissed.

• Iran has argued that it has an “inalienable right” to enrich uranium under the Nuclear Non-Proliferation Treaty (NPT), while Western states have contested this. If the West now accepts Iranian enrichment of uranium to the 3.5-percent level, it will be acknowledging that Iran has a right to enrichment. Moreover, the UN Security Council adopted six resolutions under Chapter VII of the UN Charter that called on Iran to suspend all uranium enrichment. Chapter VII resolutions are binding international law. If the West now says that the suspension is no longer necessary, what does that mean for the binding nature of Chapter VII resolutions?

• Turning to the question of plutonium production, up until now, the West has been encouraging states not to erect heavy-water reactors, but instead to accept light-water nuclear reactors which have a reduced risk of being used for plutonium production. At present it appears that Western proposals to Iran do not include the dismantling of the Arak heavy-water facility.

The details of the agreement being worked out with Iran may not be fully known, but several elements of the Western position have already been disclosed. At the heart of virtually every Western proposal under consideration at Geneva by the P5+1 (the five permanent members of the Security Council plus Germany) is the idea that the international community will acquiesce to Iran continuing to enrich uranium, at least to the level of 3.5 percent. Israel has objected to this idea on security grounds.

Even if the impending agreement will only be an interim deal, assuming that it leads to a reduction of Western economic sanctions, it is questionable how much leverage the West will have to improve the agreement at a later stage after it is signed. Therefore, it is important to scrutinize those details of the Geneva negotiation that have already entered the public discourse.

The Declining Importance of the 20-Percent Threshold

Originally, Prime Minister Benjamin Netanyahu, like other world leaders, focused on the dangers emanating from Iran’s growing stockpile of 20-percent-enriched uranium, since uranium at this level of enrichment can be enriched quickly to the level of weapons-grade uranium with little effort in what is called “nuclear break-out.”

Enriched uranium has a greater proportion of the fissile isotope U-235, as opposed to U-238, which cannot be easily split in order to release atomic energy. Since natural uranium ore has only 0.7 percent U-235, enormous energy must be expended to elevate the amounts of U-235 during the process of enrichment. As Prime Minister Netanyahu explained to the UN General Assembly in 2012, when uranium is enriched to the 20-percent level, it is already 90 percent of the way to the weapons-grade level. Thus, using 20-percent-enriched uranium as a starting point is a short-cut to reaching weapons-grade material.

But in the last year, new technological factors have been introduced. Iran has been installing advanced IR-2m centrifuges, which operate three to five times faster than the older IR-1 centrifuges.1 Thus, Iran can also jump-start its advance to weapons-grade uranium by using only its 3.5 percent inventory and, therefore, establish afait accompli as a nuclear weapons threshold state.

In short, eliminating Iran’s 20-percent-enriched uranium, but allowing the Iranians to continue to produce 3.5-percent-enriched uranium is an unacceptable option if the goal of the West is to prevent Iran from advancing a nuclear weapon. As Gary Samore, a nonproliferation expert who served on the National Security Council during President Obama’s first term, has warned: “Ending production of 20-percent-enriched uranium is not sufficient to prevent breakout because Iran can produce nuclear weapons using low-enriched uranium and a large number of centrifuge machines.”2 Prime Minister Benjamin Netanyahu told his cabinet that with its new capacity, Iran can enrich uranium from the 3.5-percent level to the weapons-grade level in a matter of weeks.3

Yet allowing Iran to enrich to the 3.5-percent level appears to be part of the approach which the Obama administration is taking.4 Any agreement must eliminate all of Iran’s enriched uranium. According to various reports on the Geneva negotiations, it does not seem that the impending agreement will address the threat emanating from Iran’s latest generation of faster centrifuges and their implications for nuclear break-out by Iran.

The Risks of an Iranian Nuclear Breakout

The risks emanating from an Iranian nuclear breakout are well-known, if the Geneva talks produce a bad agreement. There will be accelerated nuclear proliferation in the Middle East among Iran’s neighbors, like Saudi Arabia, Egypt, and Turkey. Already, leaks have appeared about Saudi-Pakistani cooperation in this regard. A multi-polar nuclearized Middle East will in no way resemble the bi-polar superpower balance during the Cold War and is likely to be unstable.5 Iran’s global network of terrorism will obtain a nuclear umbrella, allowing organizations like Hizbullah to strike with complete impunity. Finally, as experts point out, the threat of nuclear technologies spreading to terrorist organizations cannot be dismissed, given Iran’s propensity in recent years to supply state-of-the-art conventional weapons to its terrorist proxies.

The Erosion of Previous Western Positions

But even before these scenarios become possible, there are other vital issues that will be affected by a Western decision in Geneva to accept parts of Iran’s current nuclear program as legitimate. First, since negotiations began between the West and Iran over the Iranian nuclear program in 2003, Iran has argued that it has a right to manufacture enriched uranium under the 1968 Nuclear Non-Proliferation Treaty (NPT). Up until now, Western states have contested this Iranian interpretation of the NPT. However, if the West now accepts Iranian enrichment of uranium to the 3.5-percent level, it will be acknowledging, even without saying this explicitly, that Iran has a right to enrichment.

Second, the UN Security Council adopted six resolutions under Chapter VII of the UN Charter that called on Iran to suspend all uranium enrichment and its activities for the eventual production of plutonium. Chapter VII resolutions are binding international law. But what if the West now says that the suspension is no longer necessary? What does that mean for the binding nature of Chapter VII resolutions?

Third, turning to the question of plutonium production, Iran is building a heavy-water nuclear reactor whose by-products may be re-processed for the production of plutonium, another radioactive material used in the manufacture of atomic bombs. Up until now, the West has been encouraging states not to erect heavy-water reactors, but instead to accept light-water nuclear reactors which have no risk of being used for plutonium production. At present it appears that Western proposals to Iran do not include the dismantling of the Arak heavy-water facility.

Iran’s Alleged Right of Enrichment and the NPT

In a recent address to parliament, Iran’s president, Hassan Rouhani, was quoted on November 10 as repeating what has become a refrain for Iranian leaders, that Iran’s nuclear rights, “including uranium enrichment, on its soil,” are not negotiable. The Iranians have called enrichment an “inalienable right” under the NPT. But this Iranian assertion is not true.6

In 2009, Secretary of State Hillary Clinton appeared on “Meet the Press” and, directing her words to the Iranian leadership, stated: “You do not have a right to obtain a nuclear weapon. You do not have the right to have the full enrichment and reprocessing cycle under your control.”7 Clinton was right to take this position since the spread of enrichment facilities worldwide, under the guise of civilian nuclear work, is one of the ways in which nuclear proliferation is expected to spread. Perhaps with considerations of these sorts, the initial position of the Obama administration was to say that Iran did not have a right of enrichment as its spokesmen had asserted.

The NPT itself never explicitly mentions enrichment. Article II of the treaty prohibits signatories, like Iran, from manufacturing nuclear weapons. The Iranians always cite Article IV which states: “[N]othing 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.” Clearly, if a state is violating Article II by developing a nuclear weapons program, it cannot claim a right of enrichment, which would not be used for “peaceful purposes.”

The August 2013 report on Iran by the International Atomic Energy Agency (IAEA) reminds Tehran that the international community has had serious doubts over whether the Iranians are developing their nuclear capabilities for peaceful purposes and do not actually have a nuclear weapons program: “Since 2002, the Agency has become increasingly concerned about the possible existence in Iran of undisclosed nuclear-related activities involving military-related organizations, including activities related to the development of a nuclear payload for a missile.” As long as Iran has not taken the necessary steps to prove these concerns to be unfounded, then it would be a cardinal error to recognize that Iran has a right to enrichment.

If the new Western understanding with Iran being worked out in Geneva allows Tehran to continue to enrich uranium to any level, then the P5+1 are acquiescing to the Iranian demand to recognize its right of enrichment, even if no explicit statement accompanies the agreement. This implicit acknowledgement has also been called “de facto recognition of the Islamic Republic’s ‘right’ to enrich uranium.”8

True, as noted by The New York Times, the Obama administration is not prepared to acknowledge “at this point” that Iran has a “right” to enrich.9 An unnamed senior administration official stated, “The United States does not believe there is an inherent right to enrichment, and we have said that repeatedly to Iran.”10 Yet it is likely that after an agreement is reached allowing Iran to enrich to 3.5 percent, Iran itself will make explicit what will be implicit through the agreement. It will be difficult to deny other states the same right to enrichment that they will now assert, thereby further undermining nuclear non-proliferation in the years ahead.

The Fate of the Chapter VII Resolutions on Iran in the UN Security Council

Any decision taken in Geneva to allow Iran to continue to enrich uranium to any level stands in contradiction to UN Security Council Resolution 1696 as well as five other resolutions that followed which prohibited Iran from enriching uranium. Resolution 1696, which was adopted on July 31, 2006, stated that the Security Council: “Demands, in this context, that Iran shall suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA.”

The resolution, as well as the five that were adopted subsequently on Iran, was based on the support of all five permanent members of the Security Council, including China and Russia. It was a great accomplishment for U.S. diplomacy. Now, if the proposed Geneva Agreement allows Iran to enrich uranium to the 3.5-percent level, it will undermine what the U.S. achieved seven years ago and no longer lock in Russia and China to their UN commitment. The agreement will let them off the hook.

In the UN system, Security Council resolutions may be adopted under different chapters of the UN Charter. Resolution 1696 and the five resolutions adopted on its basis were approved under specific clauses of Chapter VII, which deals with cases of aggression and threats to international peace. These are the most stringent of UN resolutions. UN members regard them as binding under international law.

Chapter VII resolutions are also self-enforcing and hence do not require a negotiation in order to be implemented. In some cases, if they are not implemented, then the Security Council can take punitive actions and resort to the use of force against a state that violates such a resolution. Significantly, a Chapter VII resolution supersedes the terms of a multilateral treaty like the NPT (in the case, for example, that the Iranians argue that they have a right of enrichment according to their interpretation of the NPT).11

In today’s international political environment, many observers will not lose sleep over a further weakening of the UN’s role in guaranteeing international peace and security. But if the specific terms of a Chapter VII resolution are ignored by a new agreement between Iran and the P5+1, then states will undoubtedly question the extent to which they will be bound by such resolutions in the future.

Permitting a Heavy-Water Reactor

Since the revelation of Iran’s effort to construct a heavy-water reactor at the Arak facility, the international community has been concerned that Tehran will reprocess the reactor’s spent fuel to produce weapons-grade plutonium, as an alternative fuel to enriched uranium for manufacturing an atomic bomb. This was the pathway that North Korea initially used to acquire nuclear weapons. During the negotiations between the EU-3 and Iran that transpired between 2003 and 2005, the Europeans proposed to Iran that it replace its heavy-water reactor with a light-water reactor which would be less useful for the production of plutonium. Revealingly, Iran refused to accept the proposal. UN Security Council Resolution 1696 and the other five Chapter VII resolutions on the Iranian file call on Iran to suspend all reprocessing activities.

French Foreign Minister Laurent Fabius described one of the key issues at Geneva as the Western call for all construction work at Arak to stop.12 But if the diplomacy in Geneva leaves the Arak facility intact and does not seek its replacement with a more benign reactor, then the international effort to halt the spread of heavy-water reactors and plutonium-based atomic bombs will undoubtedly be set back.

Conclusions

The agreement being worked on in Geneva between the P5+1 and Iran has not yet been set in stone. What has been reported about the substance of the understandings that it contains poses serious challenges to international security. These understandings also challenge many of the past understandings that have underpinned the international order in countering proliferation. It would be tragic if one of the consequences of an international agreement with Iran would be a serious erosion of the global effort to halt the spread of nuclear weapons, especially in such an unstable region as the Middle East.

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Notes 

1. Patrick Migliorini, David Albright, Houston Wood, and Christina Walround, “Iranian Breakout Estimates, Updated September 2013,” Institute for Science and International Security, ISIS Report, October 24, 2013, http://isis-online.org/isis-reports/detail/iranian-breakout-estimates-updated-september-2013.

2. Michael R. Gordon and Thomas Erdbrink, “In New Nuclear Talks, Technological Gains by Iran Pose Challenges to the West,” New York Times, October 14, 2013, http://www.nytimes.com/2013/10/15/world/middleeast/us-iran-sanctions.html?_r=0

3. “PM: “Iran Can Enrich Uranium from 3.5% to 90% in Weeks,” Israel Hayom, October 27, 2013,http://www.israelhayom.com/site/newsletter_article.php?id=12873

4. Michael R. Gordon, Mark Landler and Jodi Rudoren, “Iran Balked at Language of Draft Nuclear Deal, Western Diplomats Say,”New York Times, November 10, 2013, http://www.nytimes.com/2013/11/11/world/middleeast/kerry-no-deal-in-hand-defends-negotiating-strategy-on-iran.html.

5. Shmuel Bar, “Can Cold War Deterrence Apply to a Nuclear Iran?” Strategic Perspectives No. 7, Jerusalem Center for Public Affairs, Institute for Contemporary Affairs, 2011, pp. 8-10, http://jcpa.org/wp-content/uploads/2011/11/cold_war_deterrence_nuclear_iran.pdf.

6. Nasser Karimi, “Iran’s Rouhani Says Uranium Enrichment ‘Red Line,’” Associated Press, November 10, 2013,http://news.yahoo.com/irans-rouhani-says-uranium-enrichment-red-line-080300726.html.

7. David E. Sanger, “Clinton Says Nuclear Aim of Iran is Fruitless,” New York Times, July 27, 2009,http://www.nytimes.com/2009/07/27/us/politics/27clinton.html?_r=0.

8. Mark Dubowitz and Reuel Marc Gerecht, “The Case for Stronger Sanctions on Iran,” Wall Street Journal, November 10, 2013,http://online.wsj.com/news/articles/SB10001424052702304644104579189714065263216?commentid=6611893.

9. See note 4.

10. Ibid.

11. Kenneth M. Pollock, Unthinkable: Iran, the Bomb, and American Strategy (New York: Simon & Schuster, 2013); and Emily B. Landau, “Does Iran Have an ‘Inalienable Right’ to Enrich Uranium,” INSS Insight No. 376, October 22, 2012, p. 38,http://www.inss.org.il/publications.php?cat=21&incat=&read=10356.

12. Julian Borger and Saeed Kamali Dehghan, “Iran Nuclear Negotiations at Crucial Juncture over Arak Reactor,” Guardian (UK), November 9, 3013, http://www.theguardian.com/world/2013/nov/09/iran-nuclear-negitiations-arak-reactor-crucial