Tension between Iran and the United States and its allies has been rising, following Iran’s rejection of the preliminary agreement that was reached between the two sides on Oct. 1, 2009, in Geneva. Under the deal, Iran was supposed to send 75 percent of its stockpile of low-enriched uranium (LEU) to Russia for conversion into fuel for a research reactor in Tehran. Russia was supposed to enrich Iran’s LEU to 19.75 percent (Iran’s LEU is at 3.8 percent level), and France to convert it into fuel rods.
Iran also agreed to allow the inspectors of the International Atomic Energy Agency (IAEA) to visit the newly disclosed uranium-enrichment facility in Qom – called the Fordow facility – within two weeks. Iran delivered on that promise. After the visit by the inspectors, Mohamed ElBaradei, the IAEA outgoing director-general, declared that the facility was a "big hole in the mountain" and nothing to worry about.
But when the preliminary proposal was taken to Tehran, the various factions within the hard-line, conservative camp could not decide how to respond to the proposal. Given Iran’s historical suspicion of the West in general, and of France and Russia in particular, many of its hard-liners are not willing to send the hard-earned LEU abroad. Others, such as Maj. Gen. Hassan Firouzabadi, chief of staff of Iran’s armed forces, supported the proposal. So there were heated arguments in Tehran over the issue.
Finally, Iran’s Supreme Leader Ayatollah Ali Khamenei, who has the final say in the most important issues facing the nation, rejected the proposal. Iran then made a counterproposal. Foreign Minister Manouchehr Mottaki declared that Iran is open to a simultaneous exchange of fuel rods for its research reactor with Iran’s LEU in Tehran. This was rejected by the United States and its allies in the P5+1 group – the five permanent members of the United Nations Security Council (UNSC) plus Germany – which only adds to the Iranians’ suspicion. If the ultimate goal is to transfer Iran’s LEU outside of its reach, what difference does it make where to deliver the fuel and receive the LEU?
The U.S. and its allies responded by lobbying the Board of Governors (BOG)
of the IAEA to pass a resolution on Nov. 27 to censure Iran for the construction
of the Fordow enrichment plant. The resolution, drafted by the P5+1 group,
demanded that Tehran stop uranium enrichment and immediately freeze the construction
of the Fordow nuclear facility. It passed in a 25-3 vote with six abstentions.
As expected, Tehran rejected the IAEA resolution, the first one passed against Iran since 2006, as "politically motivated" and "illegal," aimed at depriving Iran of its basic rights. It announced a lofty goal of setting up to 10 other enrichment facilities on the scale of that in Natanz, which is supposed to house up to 55,000 centrifuges. Although the announcement is more than likely a bluff, it speaks to Iran’s deep anger.
Is there any validity to Tehran’s argument that the latest IAEA resolution is illegal? Let me first point out that, after Iran’s rigged June 12 presidential election, the government of Mahmoud Ahmadinejad has lost its legitimacy in the eyes of a great majority of Iranians. As an Iranian-American, I happen to be one of those who consider Ahmadinejad’s reelection fraudulent. He and the government that he leads, which is essentially a military junta, are dangerous to Iran’s future.
However, the issue between Iran and the West goes beyond Ahmadinejad or any other Iranian government – democratic or not, for that matter. It has to do with Iran’s national rights in the framework of the international agreements that it has signed, in particular the Nuclear Non-Proliferation Treaty (NPT).
The issue also has to do with the double standards of the U.S. and its allies. They have agreed to transfer their nuclear technology to Saudi Arabia, Qatar, Bahrain, and India; did nothing to prevent Pakistan from developing a nuclear arsenal; and supported Israel in its quest for nuclear weapons. They have also not opposed agreements between Egypt and Russia and Oman and Russia regarding the construction of nuclear reactors in Iran’s vicinity. But the same nations lament a nuclear race in the Middle East and the "threat" that Iran’s nuclear program supposedly poses to peace and stability in the region.
In issuing the new resolution, the BOG of the IAEA has continued the questionable actions against Iran that began in the fall of 2006, after Iran ended the voluntary suspension of its uranium enrichment program. The BOG demanded that Iran suspend its nuclear program. However, the demand was illegal, because the IAEA Statute does not give the BOG or the director-general the authority to demand the suspension of a peaceful nuclear program.
Then, after Iran refused to comply with the illegal demand, the BOG voted on Feb. 4, 2006, to send Iran’s nuclear dossier to the UNSC. The two main reasons given for the referral were that the BOG had found Iran in non-compliance with the NPT and its Safeguards Agreement obligations and, second, that Iran had resumed enriching uranium after suspending enrichment voluntarily for nearly two years. Was the BOG’s action legal? The answer is an emphatic no. Let me explain.
It has been argued that Article III.B.4 of the IAEA Statute empowers it to send Iran’s dossier to the UNSC. This article states that the Agency shall
"Submit reports on its activities annually to the General Assembly of the United Nations and, when appropriate, to the Security Council: if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security, and may also take the measures open to it under this Statute, including those provided in paragraph C of Article XII."
And what does Article XII.C state?
"[T]he inspectors shall report any non-compliance to the director
general who shall thereupon transmit the report to the Board of Governors.
The Board shall call upon the recipient state or states to remedy forthwith
any non-compliance which it finds to have occurred. The Board shall report the
non-compliance to all members and to the Security Council and the General Assembly
of the United Nations."
Thus, there are at least three points in the two articles worth noting:
1. Contrary to what has been argued, the responsibility for identifying non-compliance rests not with the BOG, but with the inspectors and the director-general, none of whom have ever reported Iran to be in non-compliance with the NPT (i.e., making nuclear weapons in secret, helping another member state to do so, or transferring nuclear technology to a non-member state).
2. The dossier should be referred to the UNSC only if the NPT has been violated by the member state (in the above sense), or if nuclear materials have been diverted to non-peaceful applications (bomb-making), or if a breach has occurred to “further any military purpose." But the IAEA has certified time and again that none has occurred in Iran’s case.
3. The resolution adopted for sending Iran’s dossier to the UNSC also made illegal demands on Iran beyond the authority of the BOG and the IAEA. Among other things, it “deemed necessary” for Iran to
"Implement transparency measures, as requested by the director-general, including in GOV/2005/67, which extends beyond the formal requirements of the Safeguards Agreements and Additional Protocol, which include such access to individuals, documentation relating to procurement, dual-use equipment, certain military-owned workshops, and research and development as the Agency may request in support of its ongoing investigations." (Item 5 of article 1; emphasis mine.)
But there is not a single word in the UN Charter, the NPT, Iran’s Safeguards Agreement, or the IAEA Statute that indicates that the BOG or the director-general need to satisfy themselves that a country’s nuclear program is exclusively peaceful, or that it even has the authority to make such demands.
According to the BOG of the IAEA, one main reason that Iran’s dossier was sent to the UNSC was that the IAEA could not verify that Iran does not have a secret, parallel nuclear program and, hence, cannot verify the peaceful nature of Iran’s program. In addition to demanding proof of a negative (namely, that Iran does not have a secret, parallel nuclear program), the issue is dealt with by the Additional Protocol, not by the Safeguards Agreement. Regarding the Protocol, the following facts are well-established.
One is that according to the Sa’d Abaad Agreement of October 2003 and the Paris Agreement of November 2004 between Iran and the EU3 (Britain, France, and Germany), Iran agreed voluntarily to abide by the provisions of the Additional Protocol and provide the IAEA with expanded access to its nuclear facilities, well beyond its obligations (which Iran did). As the Paris Agreement stipulated,
"The EU3/EU recognize that this suspension [of enrichment-related activities] is a voluntary confidence-building measure and not a legal obligation. … In the context of this suspension, the EU3/EU and Iran have agreed to begin negotiations, with a view to reaching a mutually acceptable agreement on long-term arrangements."
But even if implementation of the Additional Protocol had been mandatory, it had nothing to do with the IAEA. The Sa’d Abaad and Paris Agreements were between Iran and the EU3. The IAEA was not a party to the agreements. Therefore, it could not use them against Iran. In fact, it was the EU3 that violated the Paris Agreement by insisting that Iran give up its inalienable right under Article IV of the NPT to the complete uranium enrichment cycle.
Since Iran has not ratified the Additional Protocol, it has no legal obligation to follow it. This puts Iran in the same category as 36 other nations, none of which have been referred to the UNSC. Moreover, according to the IAEA’s own reports, of the 61 states that have signed both the NPT safeguards and the Additional Protocol, the IAEA can certify the absence of undeclared nuclear facilities in only 21 nations. This puts Iran in the same category as 40 other nations, including Canada, the Czech Republic, and South Africa, none of which have been referred to the UNSC, another manifestation of the West’s double standards.
In its latest resolution against Iran, issued on Nov. 27, the IAEA once again made illegal demands by ordering Iran to stop construction of the Fordow facility. To give its demands "legal" cover, the resolution refers to the UNSC resolutions against Iran. But those resolutions too are illegal, because not only were they issued after Iran’s nuclear dossier was sent illegally to the UNSC, but the UNSC also did not follow the correct procedure for filing its resolutions under Chapter VII of the UN Charter, as I have described in detail elsewhere.
There is only one path to resolve the issue of Iran’s nuclear program: diplomacy without prejudice, double standards, and illegal demands. If a solution is reached, it will allow Iran’s democratic movement to advance further. If Iran does become a democracy, the question of its nuclear program should become moot.
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