Discrimination in the Application of Nuclear Law

It would be hard to find a more stark demonstration of how differently the IAEA and Western governments, led by the United States, have treated Iran and its nuclear program, as compared to other NPT NNWS who are under essentially the same legal obligations, than in the following couple of developments within the last week.

The first is a presentation given by Robert Einhorn, a recently retired senior US official, who many see as a close confidant of the administration, in which he floated a “trial balloon” of a possible comprehensive agreement between Iran and the P5+1. Among the elements of such a deal, Einhorn proposed the following:

Convert the underground uranium enrichment plant at Fordow into a research and development facility for testing more advanced centrifuges and conducting other nuclear research. Centrifuges there now would be removed to monitored storage.

Modify a heavy-water reactor under construction at Arak to greatly reduce its production of plutonium — another potential bomb fuel — by converting it into a light water reactor, fueling it with enriched uranium or reducing its power level. “Fueling the reactor with enriched uranium would make it more capable of producing medical isotopes than the original” planned facility, Einhorn writes.

Require even more stringent monitoring of the Iranian program than dictated by the Additional Protocol of the Nuclear Non-Proliferation Treaty, including “more frequent and wider access by International Atomic Energy Agency personnel, more extensive installation of surveillance and containment equipment and greater use of remote, real-time monitoring.”

Set up procedures to ensure that any questions about Iranian compliance are “investigated and resolved expeditiously.”

So, under Einhorn’s plan, Iran would get to keep a limited capacity to enrich uranium, but only at a limited number of agreed facilities, not to include the ones that could not be easily bombed if necessary by Israel or the U.S.  Iran would also have to scrap plans for building a reactor at Arak that might produce some plutonium, but only if Iran built a separate reprocessing facility that it has no plans to build.

Now, juxtapose that development with the news this past week that Japan has agreed to repatriate some of the weapons grade plutonium contained in its massive stockpile of already separated plutonium, to the US, although according to this report:

The joint statement released at the summit by Washington and Tokyo did not specify how much nuclear material was being repatriated. According to a 10-year-old U.S. report on the Tokai research facility, roughly 1,210 pounds of bomb-ready uranium and 730 pounds of separated plutonium existed at the site, the Center for Public Integrity reported on Tuesday.

Though nonproliferation supporters commended the announcement on the coming withdrawal of fissile material from Tokai, the amount of plutonium held at the facility represents less than one percent of Japan’s worldwide stockpile and just 3.5 percent of the total amount held domestically. Those figures also do not take into account the 8 tons of plutonium the country could begin producing annually at its mixed-oxide fuel fabrication plant at Rokkasho, which is still under construction.

See any differences in treatment?

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8 Comments on “Discrimination in the Application of Nuclear Law”

  1. S. Batsanov says:

    Dan, thank you very much for laconic and precise commentary. Unfortunately, this is not the only area where the habit of selective, politics-driven interpretation of international law is surpassing all limits of decency. If this tendency to undermine the rule of law in international relations is not stopped soon, the world will soon find itself in a very precarious and dangerous state.

  2. Dan Joyner says:

    I cannot disagree with you there, Sergey. I frequently lament the limitations of the international legal system at its current point in evolution. I would say that what the international legal system needs most is a working international court system that is actually able to consistently exercise jurisdiction over important international legal disputes, even those involving powerful states. To be clear, this would definitely not solve the problems of the influence of international law on state behavior. It would, however, make the obligations of international law more clear, so that states would be forced to face up to instances in which their behavior has, according to a credible objective arbiter, violated international law. This does, of course happen occasionally, as in the ICJ’s judgment regarding Japanese whaling this week. But it is all too rare for an international judicial body to successfully exercise jurisdiction over a dispute regarding international law in an area of high political sensitivity, when powerful states are involved.

    • Don Bacon says:

      I too believe in the concept of the primacy of law in governing human behavior. But it’s merely a concept.

      Unfortunately the law has been subordinated to petty political practice, so domestically we have government lawyers justifying torture and other rights violations, and internationally buttressing actions against designated, concocted enemies principally including Iran.

  3. Cyrus says:

    Einhorn et al seem deadset at ignoring the fact that by the terms of the agreement with the P5+1, Irans nuclear program is to be treated just like any other nations’. Iranian’s have a saying: “To give from the Caliph’s purse” — meaning to bestow things that dont belong to you. Einhorn doesn’t seem to realize that the rights he’s dreaming the Iranians will give up belong not to the govt but the nation and people of Iran who are watching extremely closely. EXTREMELY closely. And I think Einhorn knows that his list of demands don’t have a ghost’s chance of success, he’s just trying to set a bar to declare any agreement a “failure” just like they ginned-up the nuclear issue as a pretext in the first place: Its not about nuke, it’s about regime change, and always has been .. and may still be.

    And considering what a failure that policy turned out to be (not only did it not lead to regime change, nor the ending of enrichment, but the expansion of enrichment) one wonders why anyone still listens to the Ross and Einhorn’s of the world.

    • Don Bacon says:

      Excellent, really good.
      In my blogging I’ve uncovered a more earthy Iranian saying than the Caliph’s purse one.
      To paraphrase: If the Iran rulers agree to this they would by hung on the lamp-posts.

    • yousaf says:

      The JPOA says Iran’s program will be treated like any other NPT state’s following the conclusion of the comprehensive deal. That is why Einhorn’s suggestion that some parts of the deal go on forever are a non-starter. Also a non-starter: that the deal would endure for 20 years.

      OTOH: Since some non-NPT states (Israel, India and Pak) are being treated better than NPT member states maybe the JPOA should have said that if Iran behaves well, it will be treated like non-NPT India, Israel or Pakistan. (See Dan’s post on Mark Fitzpatricks’ book).

      It is truly Kafkaesque! Or maybe Onion-esque.

  4. Don Bacon says:

    USA Today, Apr 1

    Dempsey: U.S. and Israel agree on Iran threat

    ABOARD A GOVERNMENT AIRCRAFT — Israel and the United States are now in broad agreement about the threat that Iran poses to the region and how to deal with it, the top U.S. military official said Tuesday.

    “I think they are satisfied that we have the capability to use a military option if the Iranians choose to stray off the diplomatic path,” Gen. Martin Dempsey, chairman of the Joint Chiefs of Staff, said of Israeli officials. “I think they are satisfied we have the capability. I think they believe we will use it.”

  5. Nick says:

    Limiting enrichment to 4000 IR1s is nothing more than a “Mickey Mouse” enrichment. A colossal strategic mistake by IRI from all aspects of evaluation, if they agree to this joke. Loosing billions of dollars in sanctions related economic expenses just to agree with something that Albright and his cohorts are spoon feeding the Congress?

    When you ask the question about the weaponization steps that are not included in their breakout calculation, all you hear is that enrichment is the longest pole in the tent and that other stuff is really easy, and should not be counted, really? It has taken North Korea 6 years and three tries (mind you the first two were nuclear fizzles) and we are still not certain if they can miniaturize it and put it on the top of a rocket.

    Unfortunately, former officials like Samore and Einhorn have personal biases and interests that do not let them question such a naive time frame limitations as what has been proposed by Albright, which are now considered the litmus test for these negotiations.


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