Will the World Blame Iran if Nuclear Talks Fail?
Posted: October 30, 2014 Filed under: Nuclear 9 CommentsI just had to bring attention to this particularly excellent piece by our friend, Ambassador Peter Jenkins, over at LobeLog. In it, Peter makes important legal points, all of which I agree with. He also persuasively argues that if the nuclear talks between the P5+1 and Iran fail, sympathies in most of the world will be on the side of Iran. I agree with this assessment also.
Here is Peter’s piece in it’s entirety:
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Will the World Blame Iran if Nuclear Talks Fail?
By: Peter Jenkins
The remarks of US Under Secretary of State Wendy Sherman at a symposium in Washington, DC on Oct. 23 contained at least one very questionable assertion: “We hope the leaders in Tehran will agree to the steps necessary to assure the world that this program will be exclusively peaceful…If that does not happen, the responsibility will be seen by all to rest with Iran.”
I suspect much of the world will see this assertion as presumptuous and self-righteous. Most of the 189 parties to the Nuclear Non-Proliferation Treaty (NPT) will want to judge for themselves where responsibility for failure lies, and it is not a foregone conclusion that they will decide to point the finger of blame at Iran.
On the contrary, many members of the Non-Aligned Movement (NAM) will applaud Iran if it seems to them to have been steadfast in defending what the NAM considers to be a sovereign right, enshrined in the NPT: the right to use uranium enrichment technology for peaceful purposes.
Most of these will applaud on principle, and also because, sad to say, since 1991 they have come to see the US as a bit of a bully—a bully, what’s worse, who appeases another state, a state which has never adhered to the NPT and is notorious for behaving badly.
A few will applaud because they want to keep open for themselves the option of enriching uranium for peaceful purposes. They will not have forgotten President George W. Bush’s proposal to divide the nuclear technology world into haves and have-nots, and they will suspect that the US has been trying to use Iran as the thin end of an unwelcome wedge.
Even in Europe, away from the NAM, there will be people who will be more inclined to blame the US for having made unreasonable demands than to blame Iran for having taken inadequate steps to “assure the world that its nuclear program will be exclusively peaceful.”
Some of these people have never doubted the peaceful nature of Iran’s nuclear program. Some would like to be trading with, or investing in Iran and are sick of sanctions. Some will question the reasoning behind the blameless objective of obtaining an “exclusively peaceful” assurance.
According to the NPT, states must assure the exclusively peaceful nature of their nuclear programs by submitting all the nuclear material in their possession to international inspection (the safeguards system of the International Atomic Energy Agency, IAEA). Leaks suggest that Iran is more than ready to do this—indeed is ready to submit to an inspection regime that is far more intrusive than the regime envisaged when the NPT first entered into force.
So if the negotiations fail, it will not be because Iran declined to provide the peaceful assurance envisaged by the US and other framers of the nuclear non-proliferation regime. It will be because the US is trying to impose on Iran a later, more radical interpretation of “peaceful assurance.”
What the US wants is an Iranian nuclear program that cannot be anything other than peaceful—a program in which the availability of dual-use nuclear technologies, such as enrichment, is so curtailed and restricted that the non-peaceful option is excluded.
That would be fine if it were consistent with the NPT. But it is not.
So the US has no legal right to demand that Iran, to demonstrate the peaceful nature of its program, cut back to a few hundred or a few thousand centrifuges and maintain that restriction for decades–perhaps until the US has gotten over its dislike and distrust of the Islamic Republic, and no longer has to appease Israel?
Ambassador Sherman probably realizes this, because her remarks contain an attempt to justify US demands: “The Security Council imposed sanctions on Iran…because the government violated its obligations under the Nuclear Non-Proliferation Treaty, engaged in secret nuclear-weapons-related activities, and was less than transparent in reporting to international agencies. That past has created a thick cloud of doubt that cannot be dissipated by Tehran’s words and promises alone.”
This, however, is a political, not a legal justification for imposing a radical interpretation of “peaceful assurance.” Iran’s IAEA safeguards violations obliged Iran only to make the declarations that Iran had failed to make earlier. They did not oblige Iran to accept restrictions on the peaceful use of any technology.
The rest of Ambassador Sherman’s justification is baseless. The IAEA has no proof that Iran has engaged in nuclear-weapon-related activities or violated any NPT obligation apart from the safeguards obligation; and the UN Security Council, which failed to determine that Iran’s nuclear program is a threat to peace and security, demanded suspension of enrichment pending a diplomatic solution, not curtailment.
In offering this critique of Ambassador Sherman’s remarks I am not trying to clear the way for Iran to acquire nuclear weapons. I am trying to change a US mind-set that is likely to prove fatal to reaching an agreement with Iran, since I believe that an agreement can better discourage Iranian proliferation than any viable alternative.
My contention, to be clear, is that the US has no legal right to insist on Iran cutting back its uranium enrichment capacity to a few thousand centrifuges. Instead, the US must be content with making a political appeal to Iranian intelligence and self-interest. Iran’s negotiators can be asked to recognize that enrichment restrictions are a confidence-building measure that can serve the interests of both sides, and to make a good offer.
If the US then concludes that its BATNA (best alternative to a negotiated agreement) is better than what Iran is ready to offer, it can terminate the negotiation. But at that point it should not assume that the rest of the world will judge the US to have been the more reasonable or the more righteous of the two parties.
Arms Control Law 
Excellent piece!
A lot has been written about Iran and it;s nuclear program but the main point is that is the West was REALLY afraid of Iran’s nuclear program it would do whatever it takes to tamp it down. Instead it has been talking for years and years. It is time to get serious or admit that the West does not really fear Iran’s nuclear program:
http://nationalinterest.org/commentary/make-tehran-serious-offer-8120?page=show
QUOTE:
it seems we are back to early 1950s in dealing with Iran. Ray Takeyh in reviewing Ervand Abrahamian’s new book, The Coup: 1953, the CIA and the Roots of Modern US–Iranian Relations, for the journal Survival, mentions that Abrahamian’s historical research reveals that
. . . the British Empire was hardly prone to concede to an Iranian government reclaiming its oil fields, and was all along plotting the overthrow of the impudent premier. Whitehall viewed Mossadegh’s nationalisation as not just an infringement of its prerogatives in Iran but as an act that could potentially endanger all of its considerable overseas assets. Mossadegh had to go, and diplomacy was a mere ruse to achieve that end. In this narrative, London never really sought an accommodation with Tehran, but was merely going through the ritual of diplomacy to ensure a broadbased coalition against an embattled Mossadegh.
It appears, again—that just as in the early 1950s—the P5+1 is now “merely going through the ritual of diplomacy to ensure a broadbased coalition against an embattled” Iranian regime.
There appears to be a striking cognitive dissonance between the pronouncements of the alleged mortal threat posed by Iran’s nuclear program and the foot-dragging approach to doing something about it in negotiations.
The issue is, as always, to define who is meant by “the world”.
I would suspect that Wendy Sherman could not care less if, say, Thailand or Kenya or Peru point the finger of blame at the USA.
What matters is who Germany, and the UK, and Japan, and Australia, and Canada etc. etc. blame for that failure, and since those are all supplicants of the USA then Wendy Sherman will doubtless be confident that they will all point the finger of blame at whomever she tells them to point the finger at.
China matters, certainly.
India, maybe.
Russia, perhaps.
But those are the only three that make any difference, because everyone else of importance is already in the bag, and those who aren’t simply don’t matter.
I totally agree with all the legal arguments made by Ambassador Peter Jenkins in this article.
First of all, “equality of states” is one of the most basic principles of modern international law. (See, for example, 1970 Declaration on Principles of International Law) Hence, in general, the United States does not enjoy a superior status than Iran whatsoever in the international community (or, as the US put it, “the world”) from the perspective of international LAW (not international relations. In the field of international relations, there might be some other theories, which I do not know much about.)
In the case of NPT particularly, both the US and Iran are parties to the treaty, so they shall abide by the obligations as stipulated by the treaty, but nothing more (so long as it does not constitute customary international, of course). Admittedly, the treaty makes a distinction between nuclear-weapon State Parties and non-nuclear-weapon State Parties, and the US and Iran belong to the two groups respectively. But this distinction does not mean that US has a right or obligation to inspect Iran’s nuclear activities or verity Iran’s fulfillment of its NPT obligations, nor does it mean the US can impose an extra obligation that does not exist under the treaty at all, or an existing obligation subject to stricter standards than the treaty originally impose. Under the treaty, Iran simply has an obligation to submit all the nuclear materials in their possession to international inspection (the safeguards system of the International Atomic Energy Agency, IAEA), but nothing more (see Article III of NPT); and whether or not Iran’s nuclear programs are of the exclusively peaceful nature as stipulated by the treaty is for the IAEA, not the US, to decide.
Now, the US wants “an Iranian nuclear program that cannot be anything other than peaceful—a program in which the availability of dual-use nuclear technologies, such as enrichment, is so curtailed and restricted that the non-peaceful option is excluded”. It is not an obligation imposed to Iran by the treaty, but by the US. The US’ requirement is much stricter than that of the treaty. Of course, the US and Iran can negotiate with each other bilaterally, or with other states multilaterally. During the negotiation, the US can propose any offer it desires, but whether to accept the US’ offer or not is fully under the sovereignty of Iran. The logic flaw of the US here is that: it is understandable that the US may blame Iran for rejecting its offer, but how can “the world” as a whole blame Iran on the ground that Iran has rejected the US’ offer?
Another point the US has raised is that due to Iran’s previous violation of NPT, Iran has bear more obligations now. Morally appealing it may be, this argument has no basis in international law. It is a question of state responsibility, so we may make a reference to ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter ILC Draft Articles).
Indeed, by engaging in secret nuclear-weapons-related activities and being less than transparent in reporting to international agencies, Iran breached an international obligation impose by NPT; and this breach was undoubtedly attributable to Iran. Therefore, Iran committed an internationally wrong act. (Article 2 of ILC Draft Articles) Since “every internationally wrongful act of a State entails the international responsibility of that State” (Article 1 of ILC Draft Articles), Iran shall bear responsibility, but what type of responsibility? I agree with the author’s argument that “Iran’s IAEA safeguards violations obliged Iran only to make the declarations that Iran had failed to make earlier”, and I think “mak[ing] the declarations that Iran had failed to make earlier” can be classified as cessation. Article 30 of ILC Draft Articles states that “[t]he State responsible for the internationally wrongful act is under an obligation … [t]o cease that act, if it is continuing…” Furthermore, the commentaries of this article provide that the word “act” covers both acts and omissions. [Draft Articles on Responsibility of States for Internationally Wrongful Acts with Commentaries, in 2001 YBILC II(2), U.N.Doc.A/CN.4/SER.A/2001/Add.1 (Part 2), at p.88] Here, Iran’s internationally wrongful act was an omission (i.e. failing to make the declarations). Therefore, Iran’s cessation took the form of making the declarations. Certainly, there is no such type of state responsibility in international law as the US has suggested, namely, imposing the responsible state a stricter obligation in the future.
Wang Tingliang
(A student of Dr. James Fry’s course “Arms Control and Disarmament Law” at University of Hong Kong)
I don’t think there was a “previous violation of NPT” by Iran — there was a breach of safeguards by failure to report otherwise legal activities, but since these involved no diversion of nuclear material for non-peaceful purposes, the breach of safeguards (occasioned by the US interference with Iran’s legal nuclear contracts with other states) did not rise to a violation of the NPT and indeed other states that breached safeguards in a more egregious manner were not similarly hauled before the UNSC.
Thank Cyrus for raising the question of whether or not Iran violated NPT previously by breach of safeguards with IAEA. Actually, I have never thought of this question before. However, after some research and consideration, I find myself unable to agree with Cyrus.
Cyrus argued that since Iran’s nuclear activities involved no diversion of nuclear material for non-peaceful purposes, the breach of safeguards with IAEA did not rise to a violation of the NPT. I assume he means that Iran did not violate Articles II and IV which provides that non-nuclear-weapon State Parties shall not “manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices”, but “develop research, production and use of nuclear energy for peaceful purposes” are not prohibited. I totally agree with Cyrus that as IAEA has no proof that Iran has engaged in nuclear-weapon-related activities, it can be assumed that Iran’s nuclear activities were for peaceful purposes, and as a result, Iran has not violated its obligations under Articles II and IV of NPT.
But what about other articles of NPT? Has Iran violated Article III which stipulates, inter alia, non-nuclear-weapon State Parties’ safeguards obligations? Cyrus seems to argue that what Iran has violated is its safeguards agreement with IAEA, not NPT. This argument seems untenable to me. Carefully examining the language of Article III, one would find out that this article, per se, contains safeguards obligation. In other words, the safeguards obligation is an inherent part of NPT, not something outside and independent from NPT. As such, a breach of safeguards is not only a violation of safeguards agreement with IAEA, but a violation of NPT as well.
My argument may be supported by this article written by Peter Jenkins. Note Jenkins’ language “IAEA has no proof that Iran has … violated any NPT obligation apart from the safeguards obligation”. It can be inferred that safeguards obligation is also one of NPT obligations.
Wang Tingliang
(A student of Dr. James Fry’s course “Arms Control and Disarmament Law” at University of Hong Kong)
Hello Wang,
Thanks for your comment. I would disagree on your Article III interpretation, however. I examined this question in my 2011 book Interpreting the Nuclear Nonproliferation Treaty. You can find my analysis therein.
DJ
If we focus on the legal scope, Iran has an “inalienable” right to develop research, produce and use nuclear energy for peaceful purposes without discrimination (Article IV, Non Proliferation Treaty). The Iranian development of nuclear weapon has not been proved yet, so I am not very sure that the Non Proliferation Treaty has been violated by Iran. Now, I believe two of the major issues here are (1) politics and (2)the lack of trust and understanding between the Nations on the negotiation table. If we go back in history, the Iranian nuclear research program was initially supported by the USA. In the 60s, USA supplied a research reactor to Iran under the “atoms for peace program.” Later on the 70s, this program was supported by both USA and some European countries. At the end of the 70s the Iranian revolution changed the whole perspective and the hostage crisis between Iran and the USA distanced the countries. After the Iran-Iraq war, the nuclear program reawakened but this time the terms and conditions were different. Iran was more ambitious about uranium enrichment and the USA more suspicious about it.
I don’t doubt the peaceful intentions of the Iranian program. But the negotiation should be focused on building trust and respecting states’ sovereignty which I think is Iran’s primary requisite.
Now with the rise of Islamic State, the political circumstances have changed again, perhaps it is more convenient for the USA to collaborate closely with Iran, today more than ever.
I agree – even though under Article IV(1) of the NPT, Iran has an “inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination,” in reality, it is all about bargaining power. Iran has a lot on the table. If Iran walks away from the negotiations, the economic sanctions will be dire. However, reaching a deal would mean “access to very large amounts of frozen assets, the ability to trade freely with the world again and the ability to reset relationships with the international community.” (Philip Hammond, UK Foreign Secretary – see http://www.telegraph.co.uk/news/worldnews/middleeast/iran/11245599/Britain-urges-Iran-to-show-flexibility-to-achieve-huge-prize-of-nuclear-deal.html)
In addition, the discrimination against Iran is quite obvious. Although “some of these people have never doubted the peaceful nature of Iran’s nuclear program” but some people will always remember that Iran has a record of deceit. US views Iran under a different light. Any enrichment capability of Iran will be seen as a threat and used for military purposes.
I think it is worth noting here the book Manufactured Crisis. The Untold Story of the Iran Nuclear Scare, written by Gareth Porter. He argues that Iran never had a military nuclear program, and that as early as 1983, the US has intervened to prevent Iran from pursing peaceful nuclear power. This is why Iran had to resort to black market transactions to acquire the technology necessary for its civilian nuclear program. (see http://www.globalresearch.ca/manufactured-crisis-the-untold-story-of-the-iran-nuclear-scare/5374677)
I completely agree with the points made by Ambassador Peter Jenkins in this article. His comments are refreshing in the wake of the US Under Secretary of State’s remarks pointing fingers at Iran.
The US has no legal right to demand that Iran cut back on its centrifuges. The UNSC failed to determine that Iran’s nuclear program is a threat to peace and security, and there is no clear evidence that Iran seeks to develop its nuclear program for military purposes.
In the interim agreement that was reached between the US and Iran, Iran already agreed to restrict its level of enrichment to levels below that which would be needed to develop a nuclear weapon. Furthermore, it already agreed to submit to enhanced international inspections. It has complied with its NPT obligations, and should not be held to a unilateral, US-imposed standard.
I also agree with the commentators above that Iran has an inalienable right under Article 4 of the NPT to develop its nuclear program for peaceful purposes. The US cannot pick and choose the provisions that it would like to enforce, and ignore the fundamental rights provided for in provisions such as Article 4.
The US’s recent demands, and failed attempts at negotiating are just another example of the US confounding politics with international law.