Has P5+1 deal given Iran legitimacy for nuclear activities?

A central component of the campaign against Iran’s nuclear activities was that all uranium enrichment activities had to stop. In contrast, the interim deal does not prohibit – and therefore permits – enrichment up to 5%.

By YONAH JEREMY BOB
Iran's Bushehr nuclear reactor_150 (photo credit: Reuters)
Iran's Bushehr nuclear reactor_150
(photo credit: Reuters)
According to the US and the European powers that signed the recent dramatic interim agreement with Iran, the deal’s purpose is to halt any Iranian surge toward a nuclear weapon, while giving merely reversible and moderate sanctions relief.
But has Iran gained another critical achievement by virtue of the agreement – quasi-legal legitimacy for those nuclear activities the deal does not specifically prohibit?
A central component of the campaign against Iran’s nuclear activities was that all uranium enrichment activities had to stop. UN Security Council Resolution 1737 required Iran to suspend all enrichment-related activities, with no differentiation regarding the level of enrichment.
In contrast, the interim agreement does not prohibit – and therefore permits – the enrichment of uranium up to the level of 5 percent.
There is an ongoing debate as to whether with new technologies Iran has developed, uranium at this level can be quickly enriched to a high enough level for use in nuclear weapons.
But at least according to some, the agreement has essentially legalized and legitimized a level of uranium enrichment that could allow Iran a quick breakout from pre-weapons capability toward full nuclear arms capability.
There is another side debate about whether the agreement has indirectly legalized nuclear activities related to the Arak heavy-water facility for producing plutonium, which could potentially be used for nuclear weapons.
While the deal has prohibited installation of new parts at the facility, there is a question of whether it permits Iran to build parts without installing them.
Also, the underground Fordow uranium enrichment facility – which the Iranians kept hidden until 2009 and which the Western powers had previously insisted on their closing down – may not be further developed under the interim deal, but it is also not being closed.
While the Western powers would prefer to interpret the agreement as simply a stop on the way to closing that plant, another possibility is a “permanent” freeze or limiting of the facility – a possibility that also indirectly gives the plant its first possible veneer of legitimacy.
This new-found legal legitimacy may also protect Iran going forward from preemptive strikes, even beyond the six-month term of the agreement.
Many view an attack on Iran’s program as highly unlikely during those six months, and the deal may be extended or even remain the unofficial status quo after it expires.
When Israel struck an Iraqi nuclear reactor in 1981 and a Syrian reactor in 2007 (according to foreign reports), neither program had any official legitimacy, as both programs were, to varying degrees, operating covertly, or operating for dual civilian and military purposes and keeping the latter covert.
In contrast, if the interim agreement expires in six months with no final agreement, but inspectors are still on the ground in Iran and no official grave violation of the deal has been declared in practice, Iran will be able to claim ongoing Western-granted legitimacy for its program.
Not that the Western powers were remotely happy with Israel’s attack on Iraq in 1981, but there was no special agreement legitimizing Iraq’s right to enrich uranium as there is now with Iran (although the deal does not officially recognize such a right, it does in practice, since it does not prohibit enrichment below the 5% level).
Preemptive strikes are controversial in any situation under international law, but more aggressive theories justifying them often depend on established state customary actions. Now the clear state custom with Iran is to lay off for an extended period.
Put differently, by signing this agreement, Iran may have achieved the most legitimacy for enriching uranium and for some of its most controversial facilities – as well as the most extended insurance plan against an attack on that program – that it has had in years.