Iran Has a Right to Enrich—And America Already Recognized It

The forgotten history of the dispute.

The recent intensive negotiations in Geneva between Iran and P5+1—the five permanent members of the United Nations Security Council plus Germany—over Iran’s nuclear program did not result in an interim agreement. The negotiations are to be resumed in Geneva on November 20. One of the thorniest issues is Iran’s claim that, as a signatory of Nuclear Non-Proliferation Treaty (NPT), it has, under Article IV of NPT, a fundamental right to accessing all aspects of nuclear technology for peaceful uses, including uranium enrichment on its soil. So far the United States has refused to explicitly recognize Iran’s right to uranium enrichment. In her testimony before the Senate Foreign Relations Committee on October 3, Undersecretary of State Wendy Sherman, who leads the U.S. delegation in the Geneva negotiations, made the following statement:

it has always been the U.S. position that that article IV of the Nuclear Nonproliferation Treaty does not speak about the right of enrichment at all [and] doesn't speak to enrichment, period. It simply says that you have the right to research and development. And many countries such as Japan and Germany have taken that [uranium enrichment] to be a right. But the United States does not take that position. We take the position that we look at each one of these [cases]. And more to the point, the UN Security Council has suspended Iran's enrichment until they meet their international obligations. They didn't say they have suspended their right to enrichment, they have suspended their enrichment, so we do not believe there is an inherent right by anyone to enrichment.

Another thorny issue, which France claimed motivated its objection to the emerging accord, is the heavy water nuclear research reactor under construction in Arak (southwest of Tehran), which is not expected to come online before late 2014, at the earliest. The reactor’s spent fuel contains plutonium, which can be used for bomb making if Iran can reprocess the spent fuel. But Iran does not currently have any reprocessing facility or even the know-how to undertake such a course of action.

Who is right?

Historically, the United States recognized an Iranian right to enrich in the 1970s, although the U.S. has no authority to interpret the NPT in an arbitrary manner that suits its interests. Many legal scholars disagree with the U.S. position. Ironically, in the 1970s, the U.S. offered Iran both uranium enrichment and spent-fuel technologies.

A bit of history

As first pointed out by this author in 2004, the Ford administration recognized Iran’s right to uranium enrichment, fuel reprocessing, and related technologies. On March 14, 1975, in National Security Study Memorandum 219, signed by then deputy national security adviser Brent Scowcroft, President Gerald R. Ford directed

"a study of the issues involved in reaching an acceptable agreement with the Government of Iran which would allow nuclear commerce between the countries—specifically, the sale of the U.S. nuclear reactors and materials, Iranian investment in the U.S. enrichment facilities, and other appropriate nuclear transactions in the future."

President Ford then instructed the U.S. negotiators to offer Iran uranium enrichment and reprocessing facilities. Specifically, National Security Decision Memorandum 292, dated 22 April 1975, stated that the U.S. shall "permit U.S. materials to be fabricated into fuel in Iran for use in its own reactors and for pass-through to third countries with whom we have Agreements."

In addition, the U.S. offered to allow Iran to invest in its uranium enrichment facilities, for which Iran had proposed investing $2.75 billion (see, Department of State Secret Report, "Current Foreign Relations: US-Iran Commission cements bilateral ties; Iran and Iraq agree to settle differences,” which can be found here). This is stated in Memorandum 292: The U.S. shall "agree to set the fuel ceiling at a level reflecting the approximate number of nuclear reactors planned for purchase from the U.S. suppliers. We would, as a fallback, be prepared to increase the ceiling to cover Iran's full nuclear reactor requirement under the proviso that the fuel represents Iran's entitlement from their proposed investment in an enrichment facility in the U.S...."

The U.S. was also eager to allow Iran to reprocess the spent fuels, which Memorandum 292 also discussed: The U.S. shall "continue to require U.S. approval for reprocessing of U.S. supplied fuel, while indicating that the establishment of a multinational reprocessing plant would be an important factor favoring such approval...." The motivation for this “generosity” was that the Ford administration did not want to give up that market to France.