About what happened in Moscow . . .

The June 18-19 meetings in Moscow between the P5+1 and Iran were a disappointment. Whether or not the outcome was a surprise, depends on who you ask. Surprising or not, the most disappointing thing to many observers, including me, was the noticeable hardening of the positions of the P5+1 at the Moscow meetings, compared to the positions they appeared to take at the earlier Baghdad and Istanbul meetings.  In the run-up to the Moscow meeting there was some considerable optimism, based on the two previous meetings, that at least some progress might be possible towards a negotiated, diplomatic resolution of the crisis over Iran’s nuclear program.  But those hopes were dashed in Moscow, and some among the parties were left scrambling to see if they could salvage at least an agreement by the sides to keep talking.

 Much could be said about developments of the positions maintained in Moscow by the two sides, and what went wrong and why – and of course much has, including this insightful op-ed by Trita Parsi. 

But here I would like to focus on a development that I found particularly interesting from an international legal perspective.  It has been reported that at the Moscow meeting “Winning a multilateral affirmation of the legality of their nation’s uranium refinement operations [] emerged as Iranian diplomats’ central objective . . .”  I find this very interesting. Iran’s primary objective at the Moscow meeting was to wring from the P5+1 a stipulation to a statement of Iran’s international legal rights. 

 I suppose first of all it interests me as an international lawyer to see a question of international law front and center in a diplomatic negotiation of such significance and high profile.  It would appear to show that at least the Iranians consider international law to be a material element in the diplomatic standoff, and one that should influence the parties’ resolution of the dispute by clarifying the (il)legitimacy of some disputed positions. So that’s heartening to me in the vein of “what I do all day isn’t completely useless.”

 I also think its interesting that Iran apparently believes that this question of law essentially frames much of the rest of the diplomatic dispute, and that achieving an agreement on a correct statement of the law will be fundamental to supporting its diplomatic positions.

So is Iran correct in its proffered statement of law? Is Iran’s uranium enrichment program legal? Well, this is a question I’ve written on fairly extensively, and I won’t re-hash all my arguments here. For those who are interested, however, I give this question the most comprehensive legal consideration in my 2011 book, Interpreting the Nuclear Non-proliferation Treaty, on pgs. 78-87. I also consider it in my online piece in the Harvard Law & Policy Review.

The short version is that, as is the case with every party to the NPT, whether NWS or NNWS, Iran has the legal right to engage in the full spectrum of peaceful uses of nuclear energy materials and technologies.  This in essence means that, as a substantive matter of international treaty and customary law, Iran like all other states has the right to indigenous control over the full nuclear fuel cycle for peaceful purposes, including enrichment at the front end, and reprocessing at the back end.

Now, it is of course correct that the U.N. Security Council decided in 2006 in Resolution 1737, acting pursuant to its Chapter VII powers, that Iran must suspend all uranium enrichment-related and reprocessing activities.  Iran has responded that this decision of the UNSC is ultra vires its authority. I considered this argument most recently in my article  The Security Council as a Legal Hegemon, in the Georgetown Journal of International Law.  However, even if we accept arguendo that this decision of the Security Council is valid and legally binding on Iran, the decision is framed as a demand for a temporary suspension of certain specified fuel cycle activities that the Council (for whatever reason) considers to constitute a threat to international peace and security.  This demand, even if legally binding, does not affect Iran’s permanent substantive rights regarding peaceful use of nuclear materials and technologies.

So again, the essential answer is that yes, Iran’s uranium enrichment program is legal. And this is the stipulation that Iran sought in Moscow from the P5+1.  So why was such a stipulation not forthcoming?  That’s a question that has puzzled more players in the dispute than just the Iranians. The Russians, for example, seem equally dismayed that even such a request for a simple stipulation of a relatively straightforward statement of law would be more than the P5+1 could bring itself to collectively concede.  Journalist Michael Adler summarizes and quotes Russian Deputy Foreign Minister Sergey Ryabkov’s telling responses during a post-Moscow interview thus:

“Ryabkov said his personal opinion was that the West should yield onIran’s call to have its right to enrich uranium recognized. The United States says thatIran must eventually suspend all enrichment, as is called for in several United Nations Security Council resolutions. But Ryabkov agrees with the Iranian position that this right is guaranteed in the clause of the Non-Proliferation Treaty which says that signatory nations have the right to the peaceful use of nuclear energy. “What in the world precludes the US, France, and others to recognize this very simple fact” if they can get the Iranians not just to “pocket it” but to allow for a level of inspections that would guarantee they could not divert their nuclear work for military purposes, Ryabkov said.”

So the rejection of the Iranians’ proposed statement of their legal rights is clearly not unanimous within the P5+1.  As far as I know, no other P5+1 official has gone on record one way or the other on this specific issue. However, what appears clear to me from my research on statements made by NPT members during official NPT PrepComs and RevCons over the past 15 years or so, is that the U.S. is the state that has by far most clearly gone on record in the past as opposing the interpretation of law that Iran, and Russia, support.

 In my 2011 book, I go through in detail the statements by both NWS and NNWS on the subject of the NPT Article IV(1) right to peaceful nuclear energy.  What emerges, is a view by the United States, expressed multiple time between 2003-2008, that the Article IV(1) right is questionable as a legally cognizable right at all, and that if it is a legal right, it is a conditional right, i.e. conditional on NNWS’ demonstrable and verifiable compliance with Articles I, II and III of the NPT.  And as Andrew Semmel, the U.S. Representative at the 2003 PrepCom stated, states with “suspect nuclear programs” should be denied Article IV “benefits” (note, not ‘rights’) until these “suspicions are resolved.”  (See pgs. 66-68 for quotes and cites).  

 This interpretation of conditionality became the legal basis for the U.S. to argue that the right held by NNWS to peaceful nuclear materials/technology supply could in effect be forfeited by NNWS if they failed to, for example, adopt an IAEA Additional Protocol agreement; source nuclear materials exclusively from a multilateral fuel bank or multinational enrichment center; or to be to any degree noncompliant with their IAEA Comprehensive Safeguards Agreement. 

 In short, this interpretation of the conditionality of the Article IV(1) right became the fundamental legal basis for supplier states in the Nuclear Suppliers Group, led by the U.S., to impose what the U.S. saw as important nonproliferation-oriented restrictions on NNWS’ rights to engage in peaceful nuclear energy activities, AS WELL AS to claim significant limitations on the obligation Article IV(2) imposes on supplier states to “co-operate in contributing . . . to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of non-nuclear-weapon States Party to the Treaty. . .”

So, you can perhaps now see why the simple stipulation that Iran’s enrichment activities are essentially legal – a legal position in harmony with statements made consistently by the NAM (currently representing 120 states) over several decades, and a position supported at least by Russia within the P5+1 itself – was not so simple for the U.S. to concede to in Moscow.

But as I’ve argued herein, and as I explain much more fully in my 2011 book, the interpretation the U.S. is clinging to so zealously is simply incorrect as a matter of law, and has always been a marginal position which it alone has strongly maintained. 

While some aspects of U.S. nuclear policy have changed dramatically – at least in word if not in sufficient deed – since president Obama took office in 2008, U.S.policy positions on NPT Article IV and the rights and obligations relating to peaceful use contained therein, seem not to have significantly evolved.  This is a shame for all sorts of reasons, but the most immediate and problematic is the unnecessary stumbling block that this increasingly marginalized position by the U.S.– yet one it apparently refuses to depart from – is creating for the already sufficiently difficult diplomatic efforts to defuse the crisis overIran’s nuclear program.

I would urge the USG to reconsider this erroneous and unhelpful legal position, and to bring its legal and policy positions on the matter into line with those of the international community.