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The Interim Iranian Nuclear Accord: Diplomacy, Politics and International Law – Professor Urfan Khaliq

2 December 2013

The much reported interim deal that has been struck between the P5 +1 or the EU 3 + 3 (whichever way you cut it: United Kingdom, France, Germany, China, Russia and the United States of America), on the one hand, and, on the other, Iran, is a triumph of diplomacy and international law.  Notwithstanding the grumbling of Saudi Arabia, a number of Gulf States and Israel –unlikely bed-fellows but whose strategic and military interests coincide on this occasion – and the potential for the USA Congress to derail the progress made, the deal highlights how diplomacy, soft power and respect for international law can take the heat out of the most intractable of disputes.

At the heart of the dispute involving Iran have been questions of international law and what is and what is not permissible and these have been closely intertwined with power politics.  The key international document in question has been the Nuclear Non-Proliferation Treaty (the NPT.)  The NPT is an inherently unfair treaty although this is not without reason.  The NPT recognises the right of the five declared nuclear powers (China, Russia, United Kingdom, France and United States of America) to maintain nuclear weapons and all other States are forbidden from acquiring them.  States with substantial nuclear arsenals such as India, Pakistan and North Korea are not party to the NPT.  Nor is Israel, which has a policy of ‘no comment’ on whether or not it has nuclear weapons although the universally received wisdom is that Israel does indeed have such weapons.  The key legal question though was what are the rights under the NPT of those States who are party to it but are not declared nuclear powers?

The answer to that question is not straight forward.  The NPT in Articles I, II and IV seems to indicate that all States who are party to it but who are not declared nuclear powers have the right to pursue nuclear technology and enrich uranium, so long as it is for peaceful purposes.  The use of nuclear energy for peaceful purposes is to be verified by the IAEA (the International Atomic Energy Agency).  This has more or less always been Iran’s position and China, Russia and Germany amongst others support it; under the NPT there is a ‘right’ to enrich uranium.  The United States of America, France and the United Kingdom have been arguing that Article IV does not grant any right to enrich uranium; all that it does is grant a right to States Parties to peacefully enjoy nuclear energy.  Iran is often portrayed in the West as a rogue regime and it could have walked away from the NPT under Article X citing ‘extraordinary events’ – North Korea did so in 2003.  But Iran is no North Korea and has made extensive reference to the NPT and whether it grants a right to pursue nuclear technology and enrich uranium.  The legal doctrine is split on whether there is such a right under the NPT or international law more generally but to all extents and purposes the matter moved away from the niceties of the NPT in the case of Iran when the Security Council considered that Iran’s enrichment activities constituted a ‘threat to international peace and security’.  In Resolution 1696 (2006) the Council demanded ‘that Iran suspend all enrichment-related and reprocessing activities, including research and development.’  An additional complication with this is that the IAEA is required to report non-compliance with the NPT to the Security Council but the trigger for Security Council intervention was the IAEA noting that there was evidence of activities in Iran which were ‘inconsistent’ with its obligations under the NPT.  The Security Council resolutions indeed use the term ‘inconsistent’ and not ‘non-compliance’.  All of this may seem like distinctions without differences but the bottom line is the Security Council made the political decision that Iran’s activity posed a ‘threat to international peace and security’ and this subsequently led to the imposition of a punitive sanctions regime.  The broader political context cannot be ignored in that determination.  Fundamentally Iran’s leadership is seen by many Western powers as too unpredictable, unreliable and belligerent to possess such technology.  We cannot forget the rhetoric of Ahmadinejad when President and further Israel’s ability to muster support for its legitimate concerns in the light of such rhetoric.  The threat of the use of unilateral force by Israel against Iran, however, did nothing to ease tensions.  Israel’s threats to use force to destroy Iran’s facilities are not without precedent and had to be taken seriously.  Israel unilaterally attacked and destroyed an Iraqi nuclear reactor in Osirak in 1981 – this was at the time of Iraq-Iran war and when Saddam Hussain was in power.  Israel was condemned by the entire international community but was willing to accept that in return for eliminating a nuclear threat, clearly one that it considered was real enough otherwise it would not have risked the operation and the potential fall-out.  In the case of Iran now, however, an attack by Israel would have far wider and more serious repercussions.  Thus the interim deal, which interestingly does not seem to be intended to be legally binding, whereby Iran has agreed to further supervision and to suspend parts of its nuclear operations in return for the release of an estimated seven billion dollars of assets and the easing of other sanctions while a long-term deal is negotiated is a very welcome step forward.  If respected it should certainly make it impossible for Iran to engage in subterfuge and acquire full weapons capability.  If the deal fails, however, it is not difficult to see Saudi Arabia’s Wahabi regime, who loath the Iranian Shia leadership, reminding Prime Minister Nawaz Sharif of Pakistan of the hospitality they afforded him when he was in exile further to Musharaff’s military coup in 1999 and all the aid Saudi Arabia have been giving Pakistan, over many years, especially in terms of subsidised oil.  It will be time to call in a few favours and that will include Pakistan handing over nuclear weapons technology to the Saudis: a move that would massively escalate the dangers in the region.  In that regard the continued commitment to international legal obligations of all interested States is critical and highlights how diplomacy, international law and a good helping of common sense can help solve some of the most difficult international issues.