America's Lead Iran Negotiator Misrepresents U.S. Policy (and International Law) to Congress
Last month, while testifying to the Senate Foreign Relations Committee, Wendy Sherman, Undersecretary of State for Political Affairs and the senior U.S. representative in the P5+1 nuclear talks with Iran, said, with reference to Iranians, We know that deception is part of the DNA. This statement goes beyond orientalist stereotyping; it is, in the most literal sense, racist. And it evidently was not a mere slip of the tongue: a former Obama administration senior official told us that Sherman has used such language before about Iranians.
If a senior U.S. government official made public statements about deception or some other negative character trait being part of the DNA of Jews, people of African origin, or most other ethnic groups, that official would, rightly, be fired or forced to resign, and would probably not be allowed back into polite society until after multiple groveling apologies and a long period of penance.
But a senior U.S. official can make such a statement about Iranians, or almost certainly about any other ethnic group a majority of whose members are Muslim and that's just fine.
Of course, it's not fine. But that's the America we live in.
Putting aside Sherman's glaring display of anti-Iranian racism, there was another egregious manifestation of prejudice-cum-lie in her testimony to the Senate Foreign Relations Committee that we want to explore more fully. It came in a response to a question from Senator Marco Rubio (R-Florida) about whether states have a right to enrich under the Nuclear Non-Proliferation Treaty (NPT). Here is the relevant passage in Sherman's reply:
It has always been the U.S. position that Article IV of the Nuclear Non-Proliferation 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.
Sherman goes on to acknowledge that many countries such as Japan and Germany have taken that [uranium enrichment] to be a right. But, she says, the United States does not take that position. We take the position that we look at each one of these [cases]. Or, as she put it at the beginning of her response to Sen. Rubio, It has always been the U.S. position that Article IV of the Nuclear Non-Proliferation Treaty does not speak about the right of enrichment at all” (emphasis added).
Two points should be made here. First, the claim that the NPT’s Article IV does not affirm the right of non-nuclear-weapons states to pursue indigenous development of fuel-cycle capabilities, including uranium enrichment, under international safeguards is flat-out false.
Article IV makes a blanket statement that 'nothing in this 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 it's not just countries such as Japan and Germany, both close U.S. allies, which affirm that this includes the right of non-weapons states to enrich uranium under safeguards. The BRICS (Brazil, Russia, India, China, and South Africa) countries and the Non-Aligned Movement (whose 120 countries represent a large majority of UN members) have all clearly affirmed the right of non-nuclear-weapons states, including the Islamic Republic of Iran, to pursue indigenous safeguarded enrichment.
In fact, just four countries in the world hold that there is no right to safeguarded enrichment under the NPT: the United States, Britain, France, and Israel (which isn't even a NPT signatory). That's it.
Moreover, the right to indigenous technological development—including nuclear fuel-cycle capabilities, should a state choose to pursue them, is a sovereign right. It is not conferred by the NPT; the NPT's Article IV recognizes states' inalienable right in this regard, while other provisions bind non-weapons states that join the Treaty to exercise this right under international safeguards.
There have been many first-rate analyses demonstrating that the right to safeguarded enrichment under the NPT is crystal clear from the Treaty itself, from its negotiating history, and from subsequent practice, with at least a dozen non-weapons states building fuel-cycle infrastructures potentially capable of supporting weapons programs. Bill Beeman published a nice Op Ed in the Huffington Post on this question in response to Sherman's Senate Foreign Relations Committee testimony, see here and, for a text including references, here. For truly definitive legal analyses, see the work of Daniel Joyner, for example here and here. The issue will also be dealt with in articles by Flynt Leverett and Dan Joyner in a forthcoming special issue of the Penn State Journal of Law and International Affairs, which should appear within the next few days.
From any objectively informed legal perspective, denying non-weapons states' right of safeguarded enrichment amounts to nothing more than a shameless effort to rewrite the NPT unilaterally. And this brings us to our second point about Sherman's Senate Foreign Relations Committee testimony.
Sherman claims that It has always been the U.S. position that Article IV of the Nuclear Non-Proliferation Treaty does not speak about the right of enrichment at all [and] doesn't speak to enrichment, period. But, in fact, the United States originally held that the right to peaceful use recognized in the NPT's Article IV includes the indigenous development of safeguarded fuel-cycle capabilities.
In 1968, as America and the Soviet Union, the NPT's sponsors, prepared to open it for signature, the founding Director of the U.S. Arms Control and Disarmament Agency, William Foster, told the Senate Foreign Relations Committee the same committee to which Sherman untruthfully testified last month, that the Treaty permitted non-weapons states to pursue the fuel cycle. We quote Foster on this point: Neither uranium enrichment nor the stockpiling of fissionable material in connection with a peaceful program would violate Article II so long as these activities were safeguarded under Article III. [Note: In Article II of the NPT, non-weapons states commit not to build or acquire nuclear weapons; in Article III, they agree to accept safeguards on the nuclear activities, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency.]
Thus, it is a bald-faced lie to say that the United States has always held that the NPT does not recognize a right to safeguarded enrichment. As a matter of policy, the United States held that that the NPT recognized such a right even before it was opened for signature; this continued to be the U.S. position for more than a quarter century thereafter.
It was only after the Cold War ended that the United States, along with Britain, France, and Israel, decided that the NPT should be, in effect, unilaterally rewritten (by them) to constrain the diffusion of fuel-cycle capabilities to non-Western states. And their main motive for trying to do so has been to maximize America's freedom of unilateral military initiative and, in the Middle East, that of Israel.
This is the agenda for which Wendy Sherman tells falsehoods to a Congress that is all too happy to accept them.