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
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.
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
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
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
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
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
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.
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