Since its secret nuclear weapons program was revealed in August 2002, Iran has steadfastly insisted that its uranium enrichment efforts – and the plutonium capability it is also developing, in the form of the plutonium-production reactor at Arak – are intended exclusively for “peaceful purposes.”  Stung by international criticism for its safeguards violations, noncompliance with the Nuclear Nonproliferation Treaty (NPT), and disregard of legally-binding U.N. Security Council resolutions, Iran cites Article IV of the Treaty in claiming it has an absolute legal “right” to any sort of nuclear technology it wants for “peaceful purposes” and subject to International Atomic Energy Agency (IAEA) inspections.  The fact that the Treaty doesn’t actually say this – that Article IV’s  “inalienable right” applies by its own terms merely to “research, production and use” of “nuclear energy” itself, and that the drafters of the NPT do not appear to have envisioned per se technology rights – doesn’t seem to bother anyone in Tehran.

This claim of a general “right” to fissile material production is highly significant.  Conceding such a claim could have huge proliferation consequences: it would make it the legal “right” of every country in the world to develop capabilities that bring it right up to the edge of producing nuclear weapons.  Fissile material availability has long been understood as the principal obstacle to weapons development; if one has enough enriched uranium or separated plutonium, the other aspects of building at least a simple weapon are neither prohibitively complicated nor particularly time-consuming.  However often IAEA inspectors might show up, conceding a “right” to produce this material would authorize every country to hover no more than a little “attitude” and a brief delay away from nuclear weaponry.  (It is easy and apparently relatively costless to impede or expel inspectors, and by no means impossible to deceive or elude them.)

In the face of strident Iranian assertions on this point, Washington has sent mixed messages on this issue for years.  In the first term of the George W. Bush Administration, some officials publicly contested Iran’s claims.  (Full disclosure: I was among them.)  Soon thereafter, however, an Energy Department publication inexplicably endorsed Iran’s legal interpretation, after which a largely unresponsive “clarification” provided to Congress by the State Department in late 2007 further muddled an already mixed message.

President Obama has a chance to clear up this mess and provide Iran’s legal argument with the clear and cogent rebuttal it deserves.  So far, however, he seems to have gone to some trouble to perpetuate the mixed messages that have given solace to Iran and undercut the international community’s efforts to rein in Tehran’s fissile material production work.  On the one hand, a close reading of the president’s remarks suggests that Obama has not yet actually endorsed the tendentious Iranian view of absolute nuclear technology rights.  In his April 5, 2009, speech in Prague, for instance, he carefully described countries as having a “right” merely to “access peaceful power without increasing the risks of proliferation.”  Describing, as he did, a right to “nuclear energy” is by no means the same thing as acknowledging a right to produce fissile material potentially usable in nuclear weapons.  (Obama subsequently described Iran as having legitimate “energy concerns” – and what country, after all, does not? – but this is also nothing like endorsing a right to fissile material production.)  Similarly, in his June 4 speech in Cairo, Obama spoke only of a “right to access peaceful nuclear power” for countries that comply with the NPT. With such careful phrasings, the President has left himself room for a refutation of Iran’s arguments.

On the other hand, Obama has so couched his comments in conciliatory language – breezily playing to the perceived grievances of developing nations and bomb-seeking Iranian clerics unhappy with his predecessor’s approach to nuclear technology control – that everyone who doesn’t carefully parse his remarks should be forgiven for assuming he has now sided with Iran’s view of Article IV.  In Prague, for instance, the president stressed that “no approach will succeed if it’s based on the denial of rights to nations that play by the rules.”  That’s not wrong in itself, but it plays to the rights-based discourse that Iran advances.  As long as it is only Iran that offers legal argument about what those rights actually are , tipping one’s hat in this fashion can hardly be taken as anything but endorsement of the mullahs’ legal claims.

Similarly, Obama’s subsequent comments about Iran’s “legitimate” energy concerns were widely covered as if they endorsed Tehran’s absolutist view of the Treaty.  In Cairo, his remarks stressing the importance of reconciliation with the Muslim world were predicated upon comments about how unfortunate it was, among other things, that the outside world for so long “denied rights and opportunities to many Muslims.”  Bizarrely, Obama also seemed to suggest that providing access to nuclear technology was “at the core” of the Treaty – a claim also explicitly made by Iran at the 2009 NPT Preparatory Committee, albeit one belied by the NPT’s text, its negotiating history, and its very name.

There is a notable gap, in other words, between what people seem to think the Obama Administration has said about the specific meaning of Article IV and what it actually has – a gap he so far seems to have encouraged and been happy to exploit in earning acclaim for not being George Bush, even while (so far) not actually departing noticeably from second-term Bush policy in these respects.

When given the opportunity to clarify things in July, Secretary of State Hillary Clinton chose to offer stern-sounding words that nonetheless carefully sidestepped the question.  Speaking on NBC’s Meet the Press as if directly addressing Iran, she declared that “[y]ou have a right to pursue the peaceful use of civil nuclear power,” but “[y]ou do not have the right to have the full enrichment and reprocessing cycle under your control.”  Again, this is both correct and evasive.

Thanks to several legally-binding U.N. Security Council resolutions enacted pursuant to Chapter VII of the U.N. Charter that require Iran to suspend its enrichment and reprocessing work, it is quite true that Tehran presently has no right to the full nuclear fuel cycle.  But saying this does not necessarily say anything about Article IV itself.  The real question with powerful implications for the future of the NPT is whether Article IV recognizes or conveys a right to the full fuel cycle in the first place – that is, whether Iran had this right before the Security Council resolutions, and whether every non-weapons state today has the right Iran claims for itself.  As had her boss, Secretary Clinton seems to have taken some trouble to seem to have a position on that question while carefully avoiding saying anything clear or useful in this respect.

This willfully mixed message, however, is unwise – and any momentary public relations benefit it may provide President Obama is unsustainable.  The careful equivocation of the administration’s words on this topic will be no more than a trivial footnote if the President’s remarks continue to avoid clarity while sounding like endorsements of the legal view that Iran advances contrary to nonproliferation good sense, in opposition to longstanding U.S. foreign policy, and in defiance of the mandates of the Security Council.  Nor is it a solution for his subordinates, like Secretary Clinton, to sound tough on this score without actually being so.

President Obama can and must set the record straight on this issue, and with his upcoming chairmanship of a high-profile Security Council meeting on nuclear issues, he has the perfect opportunity to so.  He should make clear that support for negotiations with Iran doesn’t entail conceding a view of Article IV that will open the legal door to a dangerously unstable world full of “virtual” nuclear weapon states able to undertake weapons development on demand.  The United States should articulate a view of Article IV that makes clear that the developed world’s commitment to sharing the benefits provided by nuclear technology and providing access to nuclear energy need not entail permitting the spread of specific technologies if this increases proliferation risks.

If Article IV is not to become the NPT’s suicide note, we must clearly and emphatically refute the idea of per se technology rights in favor of an interpretation that evaluates technology issues through the lens of proliferation risk.

– Christopher Ford