So much has been written and said about the uranium enrichment aspect of the 14-month nuclear negotiation with Iran that it is hard to look at it with fresh eyes, and starting from first principles. Nonetheless what follows is an attempt to do so. It suggests that the US and Iran are closer on enrichment than once seemed possible, but are still at risk of failing to find common ground in the course of the extension agreed a week ago.

From an international legal perspective the text that matters is the Nuclear Non-Proliferation Treaty (NPT), to which Iran deposited its last instrument of ratification on 5 March 1970, the same day as the deposit of the US instruments. Under the NPT the US is a “Nuclear Weapon State,” Iran a “Non-Nuclear Weapon State” (NNWS).

The NPT does not prohibit the acquisition of enrichment technology by NNWS. Nor does it impose any limit on the size or number of NNWS enrichment facilities. It merely requires NNWS to use that technology exclusively for peaceful purposes, and to place all the nuclear material fed into and produced by such facilities under International Atomic Energy Agency (IAEA) safeguards.

In the current negotiation, Iran has assured the US that it takes its NPT obligations very seriously. It has also reaffirmed its intention to use enrichment technology exclusively for peaceful purposes, and to continue to implement the NPT safeguards agreement that it concluded in 1975.

Some people assume that such assurances are worthless. They point to the breaches of the NPT safeguards agreement that occurred between approximately1991 and 2003. However, none of those breaches amounted to evidence of an intention to use enrichment for non-peaceful purposes. And US intelligence has yet to come across any such evidence; suspicion of Iranian nuclear weapon intent has rested on inference, not evidence. States, like people, can make mistakes and then resolve not to repeat them.

There are also several resolutions adopted by the UN Security Council (UNSC) between 2006 and 2010 that make legal demands of Iran. But none of them imposes limits on the size and number of Iranian enrichment facilities. Still less do any of them outlaw Iranian possession of enrichment technology for peaceful purposes. One of them requires Iran to cooperate with the IAEA to resolve concern that Iran has engaged in research into nuclear weapon-related technologies. Iran has been doing that since November 2013, albeit with increasing hesitancy.

In the Iranian case another perspective is as important as the legal perspective; it is the confidence-building perspective. This was crucial to an attempt to resolve the problem peacefully in the wake of the IAEA Director General reporting the safeguards breaches to which reference is made above, because these breaches had undermined confidence in Iran’s peaceful intentions.

In the autumn of 2003, Iran volunteered, in the interest of confidence-building, to go beyond the requirements of its NPT safeguards agreement and make available to the IAEA the information and access required by the Additional Protocol (AP). Tehran also undertook to suspend activity at its only enrichment facility while it negotiated longer-term confidence-building measures with the UK, France and Germany (E3). The Iranians implemented these short-term measures scrupulously and ceased doing so only after they had grasped that nothing less than renunciation of the enrichment option would satisfy the E3.

In the current negotiation, various reports suggest that Iran has so far volunteered to renew application of the AP, de facto initially and later de jure; to accept limits on the size and number of its enrichment facilities during a confidence-building period; to refrain from producing uranium enriched to more than 5% U235; to convert some of its under 5% U235 uranium (LEU) into forms in which it would not be readily available as feed material; and to send the rest of its LEU stock to Russia for use in the fuel that the Rosatom corporation is supplying to the power reactor at Bushehr. Iran’s negotiators also have reportedly suggested that they are ready to extend the Bushehr fuel supply contract well beyond 2021.

In parallel, Iran has negotiated that Rosatom will help build two further power reactors and will supply them with fuel throughout their operating lives.

In confidence-building terms, this amounts to an impressive package. With only 10,000 IR-1 centrifuges in operation in only one facility, and its LEU stock unavailable to serve as feed material, Iran would need at least six months to produce enough highly enriched uranium (HEU) for one nuclear device. With only 8000 IR-1s and no LEU feed, Iran would need at least eight months.

And if the Bushehr supply contract were extended to 2031, Iran would only need to consider increasing the available quantity of separative work units (a measure of centrifuge output) in the late 2020s.

In other words, Iran is offering a package that exceeds its NPT obligations by a wide margin. IAEA inspectors would be able to acquire confidence that there are no undeclared nuclear activities or material in Iran. The international community would know that it had six to eight months at least to react to any sign of Iranian misuse of its enrichment capacity for non-peaceful purposes.

So why in Vienna did it seem that this package is not enough for the US? That is for representatives of the US administration to explain. Past statements suggest that they will say that they need certainty that Iran will be incapable of producing (“cannot”) even one nuclear weapon.

That may sound reasonable but is in fact an unrealistic goal. It would require Iran not only to destroy all its centrifuges but also to wipe the minds of its engineers clean of all their knowledge and experience of enrichment technology. It also puts the negotiation at risk of the same fate as the 2003-5 E3 negotiation, because Iran is unready to build confidence by closing down its enrichment program. And it runs counter to the spirit of the NPT, since the NPT bases nuclear non-proliferation on self-restraint, political will, and deterrence through verification, not on nuclear technology surrender.

If instead the administration admits that it cannot literally “close all pathways” to a weapon but claims that it needs at least 12 months to react to any break-out attempt, then they should be asked why six to eight months would not be enough.

It is self-evident that 12 months of additional sanctions would not cause Iran to abandon a break-out attempt. Eight years of sanctions have failed to persuade Iran to re-suspend enrichment. Post-1918 history is littered with failed sanctions policies.

On the other hand, 12 months are more than are needed to get UN Security Council approval for the use of force to prevent break-out and to act on it—or for a coalition of the willing to form in the unlikely event of Russia or China threatening to veto a UNSC resolution. In 1990, only six months were needed for the US to gain approval for and prepare a massive operation to drive Saddam Hussein out of Kuwait. As recently as last April, Secretary John Kerry was formulating the goal as “six to 12 months.”

This analysis will be misconstrued by some as an apologia for Iran. Others will realize, I hope, that it is an attempt to clarify the progress that has been made on enrichment over the last 12 months; to explain why the current Iranian offer is reasonable from a legal and from a confidence-building perspective; and to counter the pernicious influence on US negotiating goals of people who want the bar set so high that Iran will refuse the jump.

Of course the similarities between the two countries, comprising two-thirds of George W. Bush’s “Axis of Evil,” are limited. North Korea is a self-imposed “hermit kingdom.” Iran, much to the dismay of those calling for ever tighter sanctions, is eager to establish both trade and political links with both its neighbors and allies around the world.

The week started with what appears to be widely held assumptions that Iran and North Korea may have collaborated on Pyongyang’s HEU facilitity, or North Korea might transfer the technology to Iran, or Tehran might have transferred technology to Pyongyang. This leaves a lot of room for questions. However, the conventional thinking is that there is a link — with no agreement on how, or if, a technology transfer has occurred.

The WSJ‘s Jay Solomon interviewed the Washington Institute for Near East Policy‘s (WINEP) Simon Henderson, who told him:

One has to assume that Iran either has the P-2 centrifuge from North Korea, or could get it very easily.

And former UN ambassador, outspoken hawk, and American Enterprise Institute (AEI) fellow John Bolton wrote in the LA Times:

There is substantial reason for concern that Tehran’s capabilities and its penchant for cooperating with the North exceed U.S. intelligence estimates.

Indeed hawks from WINEP and AEI are not the only ones making assumptions about how Pyongyang’s announcement might impact Iran’s nuclear program.

The extremely well informed Nelson Report, an insider newsletter which focuses on U.S.-Asia policy, suggested that a technology transfer may have occurred from Iran to North Korea. An anonymous expert who told them:

From what we’re seeing, you have to think the components of this plant were moved-in from elsewhere and set up, which is a stunning defeat for our intelligence, since it could equally imply there are many HEU-related facilities elsewhere in N. Korea, in addition to whatever was imported from Pakistan and/or Iran.

The Report also wrote:

Every expert we touched base with today felt that despite its years of known effort to achieve HEU capability, the equally known assistance and information sharing with Pakistan, and the presumed but not proven cooperation with Iran, leads the experts to assume that the DPRK had help with the current HEU facility.

Indeed, uncertainty continues to run rampant over the extent of the DPRK-Iran relationship and how a technology transfer may have played a role in Pyongyang’s HEU announcement. The lack of details hasn’t slowed hawkish pundits from translating this week’s artillery attack and the earlier Cheonan sinking into the conclusion that containment is a failed policy. Thus, the U.S. should take any and all actions to prevent Iran from reaching North Korea’s level of nuclearization.

Council on Foreign Relations fellow Max Boot writes in Commentary (my emphasis):

For those who advocate containment as the solution to the Iranian nuclear threat, it is worth noting how destabilizing a nuclear-armed rogue state can be and how hard it is to contain. Even now, North Korea could be planning to export nuclear know-how or uranium to Iran. If so, what are we going to do about it? My guess: not much. That is an argument for stopping Iran by any means necessary before it crosses the nuclear threshold and becomes as dangerous as North Korea.