A Treaty's Fatal Loophole

Iran flag, Scud-B missiles and nuclear symbol AP / CBS

This column was written by Rep. Ileana Ros-Lehtinen, R-Fla.

The specter of the Islamic regime in Tehran arming itself with nuclear weapons has given many officials in Washington and elsewhere countless sleepless nights. To prevent that nightmare, the U.S. and the international community have placed increasing pressure on Iran to halt work on its rapidly expanding nuclear program.

Yet, incredibly, even as we struggle to prevent this doomsday scenario, the U.S. government continues to publicly affirm Iran's assertion that it and every other country, regardless of their record, have an absolute, inalienable right to possess virtually the full array of facilities needed for that same weapons program.

This schizophrenic position sends a very dangerous message to Iran and other countries that the U.S. is not serious about shutting down their illegal nuclear-weapons programs, regardless of our bluster. How else can our statements that we recognize their right to do what they are doing, even as we try to stop it, be understood?

The origins of this bizarre situation lie in an apparent loophole in the Nuclear Non-Proliferation Treaty, or NPT, one made enormous by the pronouncements of international lawyers.

The central purpose of the NPT is to prevent the spread of nuclear weapons. In return for giving up the right to manufacture or possess these, signatory states are allowed to develop peaceful nuclear programs, primarily for nuclear energy, as outlined in Article IV of the text.

Unfortunately, this neat division into civilian and military spheres is in large part an artificial one, given that the technologies involved are almost identical. An ability to manufacture nuclear fuel, either by enriching uranium or reprocessing plutonium, to produce energy for civilian purposes can also be used, with minor adjustments, to create the ingredients for nuclear weapons.

Thus, countries seeking nuclear weapons can openly create much of the necessary infrastructure, needing only to innocently claim that it is all for civilian use and defying the world to prove otherwise. This is the strategy that Iran is employing, with considerable success. Accusations by the international community of wrongdoing are met with assertions that Iran is merely exercising its right to nuclear energy, as guaranteed by the NPT.

The center of the problem lies in the prevailing interpretation of Article IV, in particular the widespread belief that it guarantees each signatory state an absolute "right" to enrich and reprocess nuclear fuel, as long as they claim that it is for peaceful purposes.

This assertion has been made so often and for so long, including by some of the most ardent opponents of proliferation, that it has come to be looked upon by many as holy writ, including the lawyers at our own blinkered State Department.

But a fair reading of Article IV reveals no such grant. Instead, it places far-reaching conditions on the exercise of this supposed "absolute" right: namely, conformity with the overarching purpose of the entire document, which is to prevent the spread of nuclear weapons.

However, at present, this strict condition is effectively waived through a myopic interpretation designed to avoid offense, with countries held to little more than empty statements about their peaceful intentions. Instead, the burden of proving malfeasance falls on the international community, which may well be impossible when faced with a country determined to establish a weapons program, be it clandestine or camouflaged in the civilian clothing the NPT affords.

If we are to secure our survival, the U.S. must cease its mindless assertions that Iran and other countries have the right to assemble the precursors for nuclear weapons. Instead, it must state clearly and repeatedly our position that Article IV contains no guarantee of an absolute "right" to such technology. Instead, all rights are strictly conditioned upon their meeting the treaty's overarching purpose of preventing the proliferation of weapons.

Deceptive affirmations by culpable states cannot be sufficient to secure recognition of this right. Instead, they must be required to demonstrate to skeptics the effectiveness of the measures they are taking to ensure that no weapons capability can be assembled, measures far more intrusive than the sullen tolerance of constrained inspections.

This is a very high standard, which many countries could not meet. So be it. The NPT was never intended to provide cover for an illicit nuclear-weapons program, and no lawyer's interpretation can transform it into a suicide pact.

For no paper "right" should be allowed to trump our right to exist.
Reprinted with permission from National Review Online
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