In responding to recent developments around the Iranian nuclear programme, it is important for all parties to exercise maximum restraint and work for a sustainable and peaceful resolution to this matter through dialogue and negotiations, writes Aziz Pahad.
On 6 June 2006, an offer for a long-term agreement was made to the Islamic Republic of Iran by a group of six countries - the so-called EU3 (France, Germany and the United Kingdom) together with China, the Russian Federation and the United States of America. The details of this offer were not made public and, at the time of publication, Iran was still to officially react to it. According to unverified information, the offer contained a number of economic incentives in return for a renewed suspension of uranium enrichment-related activities by Iran.
Whatever the outcome of the latest offer and Iran's possible reaction, the current impasse over the Iranian nuclear programme has brought to the fore a significant dilemma for the non-proliferation regime in general, but even more so for the Nuclear Non-Proliferation Treaty (NPT), which remains the foundation of the regime. This dilemma has been brought about primarily due to the unequal implementation of the delicately balanced rights and obligations contained in the NPT itself.
Iran is one of the original signatories and became a State Party to the NPT on 2 February 1970. Any consideration of the current debate surrounding Iran's nuclear programme needs to take into account the international legal regime established under the provisions of the NPT and trends that have emerged during the past few years that threaten the continued credibility of one of the world's most widely-recognised multilateral instruments.
Nuclear Non-Proliferation Treaty The NPT contains a number of carefully-balanced, inter-linked, legally-binding rights and obligations under its three main pillars: * Nuclear non-proliferation: The treaty seeks to prevent the proliferation of nuclear weapons. Article I requires each nuclear-weapon state (NWS) party to the treaty not to transfer to any recipient whatsoever nuclear weapons or other nuclear explosive devices or control over such weapons or explosive devices directly, or indirectly; and not in any way to assist, encourage, or induce any non-nuclear-weapon state to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices, or control over such weapons or explosive devices. Article II requires each non-nuclear-weapon state (NNWS) party to the treaty not to receive the transfer of nuclear weapons or other nuclear explosive devices or of control over such weapons or explosive devices directly, or indirectly; not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices; and not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices. Article III of the treaty requires all non-nuclear-weapon states to accept safeguards by concluding with the International Atomic Energy Agency (IAEA) an agreement with a view to preventing the diversion of nuclear energy from peaceful uses to nuclear weapons or other nuclear explosive devices. Significantly, Article III (3) states that the safeguards required by this article shall be implemented in a manner designed to comply with Article IV of the treaty, and to avoid hampering the economic or technological development of the parties or international cooperation in the field of peaceful nuclear activities, including the international exchange of nuclear material and equipment for the processing, use or production of nuclear material for peaceful purposes.
Peaceful uses of nuclear energy: Article IV states that nothing in the treaty shall be interpreted as affecting the 'inalienable right of all the Parties to the treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this treaty'. The parties also undertake to facilitate, and have the right to participate in the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the treaty in a position to do so shall also cooperate in contributing alone or together with other states or international organisations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of NNWS party to the treaty, with due consideration for the needs of the developing areas of the world.
Thus, a fundamental bargain contained in the treaty relates to the rights and obligations of the non-nuclear weapon states, namely that these states forfeit the right to develop nuclear weapons in return for the 'inalienable right' to develop research, production and use of nuclear energy for peaceful purposes. The other part of the bargain is the explicit undertaking by the nuclear weapon states towards nuclear disarmament and the elimination of all nuclear weapons.
Few States doubt the inherent discriminatory nature of the treaty, which created two distinct groups - the 'haves' and the 'have-nots'. Article IX defines the 'haves' as those that had manufactured and exploded a nuclear weapon or other nuclear explosive device prior to 1 January 1967 - the so-called NWS. The rest it treats as NNWS - the 'have-nots' - all those who had not developed or tested such devices before the cut-off date. While some argued strongly for the indefinite extension of the treaty, others questioned the rationale for perpetuating an inherently discriminatory instrument.
The eventual 1995 decision on the indefinite extension of the NPT was made possible by agreements on the Strengthening of the Review Process for the treaty and a set of Principles and Objectives for Nuclear Non-Proliferation and Disarmament.
In 1995, the NPT states parties agreed on four nuclear disarmament measures as an integral part of the Principles and Objectives for Nuclear Non-Proliferation and Disarmament. These entailed agreements:
In 2000, the NPT State Parties also agreed to thirteen practical steps for nuclear disarmament that included an 'unequivocal' undertaking by the nuclear-weapon states.
It was therefore expected that the 2005 Review Conference would assess the progress or the lack thereof by the NPT States Parties in meeting the 1995 and 2000 obligations, commitments and undertakings. There has been limited, if not minimal, progress. In some areas there was in fact a reversal of these undertakings, particularly in the area of nuclear disarmament. A central challenge for the 2005 Review Conference, therefore, was to balance the dissatisfaction at the lack of progress and reversals on the agreed nuclear disarmament measures with non-proliferation concerns that have been exacerbated by the role of non-state actors.
What, in fact, materialised at the 2005 Review Conference were attempts by some to reinterpret, negate or withdraw from treaty obligations, commitments and undertakings, including those made in 1995 and 2000. In addition, a number of proposals were made to impose restrictions on the inalienable right to utilise nuclear energy for peaceful purposes. These proposals included a cap on the development of new enrichment and reprocessing facilities. South Africa warned against such an approach, arguing that it may be laying the foundation for undermining the entire package of bargains that make up the NPT.
While some concerns have been raised about the implementation of nuclear non-proliferation obligations, commitments and undertakings by NNWS State Parties, the treaty's non-proliferation obligations are largely being successfully expanded and implemented. However, there is a growing concern that while demands are being made for NNWS to agree to new measures in the name of non-proliferation, concrete actions towards nuclear disarmament are neglected. These concerns are exacerbated by the actions and signals from NWS Parties that reinterpret, negate or withdraw from elements of their treaty's obligations, commitments and undertakings. Such actions disturb the balance of the NPT bargains - a '...balance of mutual obligations of the nuclear and non-nuclear Powers', which was the core principle envisaged for the NPT in the 1965 United Nations mandate for negotiations on the treaty.
Iran's nuclear programme As a NNWS State Party to the NPT, Iran has undertaken not to develop nuclear weapons. But in return, the treaty provides an 'inalienable' right to Iran to develop and use nuclear energy for peaceful purposes. This right includes the right to develop domestic nuclear fuel cycle capabilities for exclusively peaceful purposes.
Since 1974, the International Atomic Energy Agency (IAEA) has been implementing NPT safeguards in Iran, in accordance with its obligations under Article III of the treaty. However, in March 2003, the agency reported that Iran had failed in a number of instances over a period of 18 years to meet its obligations under its Safeguards Agreement with respect to the reporting of nuclear material, its processing and use, as well as the declaration of facilities where such material had been processed and stored.
Since the initial report to the IAEA Board of Governors on this matter, the IAEA Director General, Mohamed ElBaradei, has submitted various written reports on developments related to the implementation of safeguards in Iran.
In these reports, the agency confirmed that Iran had taken a number of corrective actions. As a result of these corrective actions and other activities, the agency was able, by November 2004, to confirm certain aspects of Iran's declarations related to conversion activities and laser enrichment, which the agency has since been following up as matters of routine safeguards implementation under the Safeguards Agreement.
While some safeguards issues require further clarification, there are still two important outstanding issues relevant to the agency's efforts to provide assurance that there is no undeclared nuclear material and that there are no undeclared enrichment activities in Iran. These are: the origin of LEU and HEU particle contamination found at various locations in Iran; and the extent of Iran's efforts to import, manufacture and use centrifuges of both the P-1 and P-2 designs.
In various resolutions since 2003, the IAEA Board of Governors has called on Iran to adopt a number of voluntary confidence-building measures to restore the necessary confidence in the peaceful nature of Iran's nuclear programme.
These included the suspension of Iran's enrichment-related activities; the suspension of the construction of a Heavy Water Reactor and the suspension of conversion activities; as well as the signing of an Additional Protocol and its provisional implementation pending its ratification by the Iranian Parliament.
It should be noted that from a legal perspective, Iran is only under obligation, as State Party to the NPT, to implement its NPT Safeguards Agreement with the Agency. Voluntary confidence-building measures do not and cannot constitute legal obligations and the non-implementation of such measures cannot be regarded as a breach of any legal obligations under the NPT.
On 15 November 2004, the United Kingdom, France and Germany (who comprise the so-called EU3) concluded the Paris Agreement with Iran, in which Iran agreed in principle to maintain its suspension in exchange for a comprehensive EU economic package proposal which would include assistance for Iran's civilian nuclear programme and address the issue of Iran's security, support the establishment of a regional (Middle East) nuclear-weapon-free zone and provide 'objective guarantees' about the peaceful nature of Iran's nuclear programme. During 2005, Iran provided the EU3 with a document containing elements that it would have liked to see reflected in a comprehensive package proposal. The EU rejected this and undertook to provide Iran with its own proposal. When the EU3 submitted a proposal to Iran on 5 August 2005, Iran was required to make a binding commitment not to pursue fuel cycle activities and to stop construction of its Heavy Water Research Reactor at Arak. Some analysts also viewed the EU economic package framework as weak on substance. Iran rejected the EU proposal saying that it negated its 'inalienable right' to the peaceful uses of nuclear energy as provided for under the NPT.
At its meeting in September 2005, following the rejection by Iran of the EU3 proposal, the IAEA Board of Governors adopted a resolution proposed by the EU, which found Iran to have been in 'non-compliance' with its Safeguards Agreement. The resolution was adopted by a vote of 22 in favour, 1 against and 12 abstentions. South Africa together with Russia, China, Brazil and Mexico, as well as a number of members of the Non-Aligned Movement, abstained on the resolution. Venezuela voted against. It should be noted that under the agency's statute, a finding of 'non-compliance' requires the board to report the matter to the UN Security Council and the General Assembly. The resolution furthermore determined that the Iranian nuclear programme constitutes a 'threat to international peace and security', a matter that falls within the mandate of the UN Security Council.
Accordingly, the resolution decided to report Iran to the UN Security Council, but made no determination as to the timing and content of such a report, which would be determined by the board. Significantly, the September 2005 resolution was the first board resolution that was not adopted by consensus.
Following the board's decision, Iran warned that any referral to the UN Security Council would lead to a suspension of the voluntary implementation of the Additional Protocol by Iran, which would substantially diminish the extensive inspection powers of the agency.
Developments since January 2006 On 10 January 2006, the IAEA informed the Board of Governors that Iran had started, in the presence of IAEA inspectors, to remove the seals installed at Natanz, Pars Trash and Farayand Technique. The seals affected were some of those that were placed on equipment and material following Iran's voluntary suspension of enrichment-related activities. Iran also conveyed to the Agency that '[d]uring this R&D [research and development], UF6 gas would be fed into these cascades for research purposes' and that, '[t]his R&D, which may include manufacturing of a limited number of new components, is currently planned only for P-1 centrifuges'. Following Iran's resumption on 9 January 2006 of enrichment-related research and development activities, the EU foreign ministers met in Brussels on 12 January 2006 and decided to call for an emergency session of the Board.
On 4 February 2006, the IAEA Board of Governors adopted another resolution on Iran. This was the second resolution that was not adopted by consensus.
Twenty-seven countries voted in favour, three against (Cuba, Syria and Venezuela), and five abstained (Algeria, Belarus, Indonesia, Libya and South Africa).
The resolution outlined the steps that Iran needs to undertake to re-establish confidence in its peaceful use of nuclear energy, and requested the IAEA Director General to report these steps to the UN Security Council together with all the IAEA reports and board resolutions on Iran. The Director General was also requested to report on the implementation of this resolution to the next regular session of the board in March, and immediately thereafter to convey that report with any resolution from the board to the Security Council. In practice, this resolution meant that the Iranian nuclear 'dossier' would be forwarded to the Security Council for possible action. Although the 24 September 2005 board resolution decided to report Iran to the UN Security Council, it decided that 'the Board will address the timing and content of the report'.
The 4 February 2006 board resolution made no decision regarding the 'content and timing of the report', but requested the IAEA Director General to report to the UN Security Council on the steps that Iran needs to take, together with all the adopted IAEA reports and resolutions on Iran. It also decided that the Director General's report to the March 2006 board meeting should be sent to the UN Security Council.
South Africa stated at the board meeting that in the absence of a definitive assessment by the IAEA of the implementation by Iran of its NPT Safeguards Agreement, the Board of Governors could not consider referring reports to the Security Council and General Assembly. South Africa also noted that the best approach would have been for the board to adopt decisions by consensus that would reinforce the work of the IAEA, and create a climate conducive to resolving the outstanding issues pertaining to Iran's peaceful nuclear programme.
On 5 February 2006, as a consequence of the board's reporting of the matter to the UN Security Council, Iran notified the IAEA of its decision, in accordance with legislation adopted earlier by the Iranian Parliament, to suspend all voluntary confidence-building measures. Iran undertook, however, to continue to implement its legal obligations stemming from the NPT, including the implementation of its Safeguards Agreement with the IAEA. In practical terms, this decision resulted in a substantial reduction in the number of agency inspectors on the ground in Iran and an end to snap inspections to any facility.
The report by the IAEA Director General issued for the March 2006 board meeting confirmed that all the declared nuclear material in Iran had been accounted for and that the Agency had not as yet found any evidence of the diversion of nuclear material to nuclear weapons or other nuclear explosive devices. However, the agency also confirmed that it was not yet able to conclude that there were no undeclared nuclear materials or activities in Iran. At its March 2006 session, the board discussed the report without any resolution being considered. The chair of the board issued a chair's conclusion that reflected the discussion by the board and requested the Director General to submit his report to the UN Security Council.
Following the March board meeting, the Security Council adopted a statement in which it noted with 'serious concern' Iran's resumption of uranium enrichment-related activities and its 'suspension of cooperation with the International Atomic Energy Agency (IAEA)'. In this context, the Security Council underlined the importance of re-establishing full and sustained suspension of all enrichment-related and reprocessing activities, including research and development. According to the statement, the council expressed the conviction that such suspension, and full, verified compliance with the requirements set out by the IAEA Board of Governors, would contribute to a diplomatic, negotiated solution that would guarantee Iran's nuclear programme was for exclusively peaceful purposes.
The council noted with serious concern that the IAEA Director General's report of 27 February 2006 listed a number of outstanding issues, 'including topics which could have a military nuclear dimension', and that the agency was unable to conclude that there were no undeclared nuclear materials or activities in Iran. It called upon Iran to take the essential steps required by the IAEA Board of Governors to build confidence in the exclusively peaceful purpose of its nuclear programme and to resolve outstanding questions. The council also requested the Director-General submit to the Board of Governors and to itself, within 30 days, a report on Iranian compliance with the steps required by the board.
On 28 April 2006, the IAEA Director General submitted a report to the IAEA Board and the UN Security Council, as requested by the Security Council in its statement on 29 March 2006. The report again confirmed that all nuclear material declared by Iran to the agency had been accounted for. Furthermore, the report stated that apart from the small quantities previously reported to the board, the agency had found no other undeclared nuclear material in Iran. However, the Director General also reported that gaps remain in the agency's knowledge with respect to the scope and content of Iran's centrifuge programme. Because of this, and other gaps in the agency's knowledge, including the role of the military in Iran's nuclear programme, the agency was unable to make progress in its efforts to provide assurances about the absence of undeclared nuclear material and activities in Iran.
With regard to the existing gaps, the report stated that any progress requires full transparency and active cooperation by Iran - transparency that goes beyond the measures prescribed in the Safeguards Agreement and Additional Protocol - if the agency is to be able to understand fully the twenty years of undeclared nuclear activities by Iran.
While the report noted that Iran continues to facilitate the implementation of the Safeguards Agreement, it stated that additional transparency measures, including access to documentation, dual use equipment and relevant individuals, are needed for the agency to be able to verify the scope and nature of Iran's enrichment programme. However, the report also recognised that while the results of agency safeguards activities may influence the nature and scope of the confidence building measures that the board requests Iran to take, it is important to note that safeguards obligations and confidence building measures are different, distinct and not interchangeable.
Importantly, the report emphasised that the agency's safeguards judgements and conclusions are based on verifiable information available to the agency, and are therefore, of necessity, limited to past and present nuclear activities. The agency cannot make a judgement about, or reach a conclusion on, future compliance or intentions.
On 8 June 2006, the IAEA Director General submitted a further report to the Board. The report states that there has been no further progress on the resolution of the contamination issue. The report reiterates that a full understanding of the scope and chronology of Iran's centrifuge enrichment programme, as well as full implementation of the Additional Protocol, are necessary for the agency to be able to provide credible assurances regarding the absence of undeclared nuclear material and activities in Iran.
According to the report, the agency is carrying out investigations, with the assistance of some member states, on information and documentation that may have been provided to Iran by foreign intermediaries. The report further states that to understand the full scope of the offers made by the intermediaries to Iran, it is still necessary for the agency to have a copy of the 15-page document describing the procedures for the reduction of UF6 to uranium metal and the casting and machining of enriched and depleted uranium metal into hemispheres. According to the report, Iran has yet to provide the agency with a copy of that document.
The report confirms that the enrichment process and product at the Pilot Fuel Enrichment Plant (PFEP), including the feed and withdrawal stations, are covered by agency containment and surveillance measures. According to the report, Iran has thus far declined to discuss the implementation of remote monitoring at the PFEP, which is an important verification measure in certain enrichment facilities.
With reference to the environmental samples taken from some equipment at a technical university in January 2006, the report states that an analysis of those samples showed a small number of particles of natural and highly enriched uranium. On 16 May 2006, Iran responded to the agency's requests for clarification stating, inter alia, that the equipment had not been acquired for or used in the field of nuclear activities. Iran indicated that it was, however, investigating how such particles might have been found in the equipment.
According to the report, Iran has not yet responded to the agency's requests for clarifications concerning, and access to carry out environmental sampling of, other equipment and materials related to the Physics Research Centre (PHRC). Iran has also not provided the agency access to interview the other former head of the PHRC.
South Africa's principled positions South Africa has consistently called on Iran to clarify all outstanding safeguards issues and questions raised by the IAEA in the various reports of the Director General. South Africa believes that the Iranian nuclear issue can only be resolved peacefully and in a sustainable way within the framework of the IAEA, that remains the only internationally-recognised credible authority responsible for the implementation and verification of safeguards agreements.
South Africa has consistently reiterated the basic and inalienable right of all States to develop atomic energy for peaceful purposes in conformity with Articles I and II of the NPT. South Africa cannot support any restrictions on the inalienable right of states that fully comply with their obligations under the NPT. While we respect the sovereign right of any state that may decide not to exercise its rights, the right to the peaceful application of the atom remains an inalienable one. This right includes the development of a domestic nuclear fuel cycle under the requisite safeguards as required under the NPT to provide assurances regarding the exclusive peaceful nature of such programmes.
Although South Africa recognises the importance of confidence-building measures, South Africa has, together with members of the Non-Aligned Movement, as well as other board members, including Russia and China, continually emphasised the importance of distinguishing between the legal obligations of Iran (the implementation of its safeguards agreement with the agency, as is required under Article III of the NPT) and the voluntary confidence-building measures that Iran has adopted to demonstrate its good faith (the suspension of enrichment-related and conversion activities, the suspension of the construction of a heavy water plant at Arak, and the implementation of the Additional Protocol pending its ratification by the Iranian Parliament).
At the same time, South Africa has consistently reiterated its deep concern over the slow pace of progress towards nuclear disarmament. South Africa remains steadfast in its opposition to the development or continued retention of nuclear weapons by some states contrary to their nuclear disarmament obligations under the NPT. Likewise, South Africa remains concerned about the continued operation of unsafeguarded nuclear facilities for which no assurances can be given in terms of the non-diversion to non-peaceful purposes, including by those states that have chosen to remain outside the NPT.
Despite recent developments pertaining to the Iranian nuclear programme and the crisis and confrontation that has arisen, it is important for all parties to continue to exercise the maximum restraint and to work for a sustainable and peaceful resolution to this matter through dialogue and negotiations.
Any sustainable solution to this issue should, by necessity, encompass a comprehensive recognition of the rights, obligations and aspirations, including the need for security, stability and the economic development of all the parties concerned.
Aziz Pahad is a member of the ANC National Executive Committee and Deputy Minister of Foreign Affairs.
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