Published on The National Interest (http://nationalinterest.org)

Source URL (retrieved on Nov 25, 2013): http://nationalinterest.org/commentary/iran-has-right-enrich%E2%80%94-america-already-recognized-it-9425

Iran Has a Right to Enrich—And America Already Recognized It

Muhammad Sahimi [2]

November 19, 2013

Muhammad Sahimi [2]

The recent intensive negotiations in Geneva between Iran and P5+1—the five permanent members of the United Nations Security Council plus Germany—over Iran’s nuclear program did not result in an interim agreement. The negotiations are to be resumed in Geneva on November 20. One of the thorniest issues is Iran’s claim that, as a signatory of Nuclear Non-Proliferation Treaty (NPT), it has, under Article IV of NPT, a fundamental right to accessing all aspects of nuclear technology for peaceful uses, including uranium enrichment on its soil. So far the United States has refused to explicitly recognize Iran’s right to uranium enrichment. In her testimony before the Senate Foreign Relations Committee on October 3, Undersecretary of State Wendy Sherman, who leads the U.S. delegation in the Geneva negotiations, made the following statement [3]:

it has always been the U.S. position that that article IV of the Nuclear Nonproliferation 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. And many countries such as Japan and Germany have taken that [uranium enrichment] to be a right. But the United States does not take that position. We take the position that we look at each one of these [cases]. And more to the point, the UN Security Council has suspended Iran's enrichment until they meet their international obligations. They didn't say they have suspended their right to enrichment, they have suspended their enrichment, so we do not believe there is an inherent right by anyone to enrichment.

Another thorny issue, which France claimed motivated its objection to the emerging accord, is the heavy water nuclear research reactor under construction in Arak (southwest of Tehran), which is not expected to come online before late 2014, at the earliest. The reactor’s spent fuel contains plutonium, which can be used for bomb making if Iran can reprocess the spent fuel. But Iran does not currently have any reprocessing facility or even the know-how to undertake such a course of action.
Who is right?
Historically, the United States recognized an Iranian right to enrich in the 1970s, although the U.S. has no authority to interpret the NPT in an arbitrary manner that suits its interests. Many legal scholars disagree with the U.S. position. Ironically, in the 1970s, the U.S. offered Iran both uranium enrichment and spent-fuel technologies.
A bit of history
As first [4]pointed out by this author in 2004 [4], the Ford administration recognized Iran’s right to uranium enrichment, fuel reprocessing, and related technologies. On March 14, 1975, in National Security Study Memorandum 219 [5], signed [5] by then deputy national security adviser Brent Scowcroft, President Gerald R. Ford directed

"a study of the issues involved in reaching an acceptable agreement with the Government of Iran which would allow nuclear commerce between the countries—specifically, the sale of the U.S. nuclear reactors and materials, Iranian investment in the U.S. enrichment facilities, and other appropriate nuclear transactions in the future."

President Ford then instructed the U.S. negotiators to offer Iran uranium enrichment and reprocessing facilities. Specifically, [6]National Security Decision Memorandum 292 [6], dated 22 April 1975, stated that the U.S. shall "permit U.S. materials to be fabricated into fuel in Iran for use in its own reactors and for pass-through to third countries with whom we have Agreements."
In addition, the U.S. offered to allow Iran to invest in its uranium enrichment facilities, for which Iran had proposed investing $2.75 billion (see, Department of State Secret Report, "Current Foreign Relations: US-Iran Commission cements bilateral ties; Iran and Iraq agree to settle differences,” which [7]can be found here [7]). This is stated in Memorandum 292 [6]: The U.S. shall "agree to set the fuel ceiling at a level reflecting the approximate number of nuclear reactors planned for purchase from the U.S. suppliers. We would, as a fallback, be prepared to increase the ceiling to cover Iran's full nuclear reactor requirement under the proviso that the fuel represents Iran's entitlement from their proposed investment in an enrichment facility in the U.S...."
The U.S. was also eager to allow Iran to reprocess the spent fuels, which Memorandum 292 also discussed: The U.S. shall "continue to require U.S. approval for reprocessing of U.S. supplied fuel, while indicating that the establishment of a multinational reprocessing plant would be an important factor favoring such approval...." The motivation for this “generosity” was that the Ford administration did not want to give up that market to France.
Then, in [8]National Security Decision Memorandum 324 [8], dated April 20, 1976 and signed by General Brent Scowcroft, President Ford authorized the following negotiation position for the US with Iran: The US side should "seek a strong political commitment from Iran to pursue the multinational/binational reprocessing plant concept, according the U.S. the opportunity to participate in the project....."
So, it is clear that if Iran does need U.S. recognition of its rights to uranium enrichment and reprocessing of spent fuel—Iran claims it claims it does not—the U.S. has already “granted” such rights and the associated technologies to Iran. That was, of course, when Shah Mohammad Reza Pahlavi, an ally of the United States who had been put back in power by the CIA coup of 1953, was Iran’s ruler.
Legal aspects
Item 1 of Article IV of the NPT states [9] 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 in conformity with Articles I and II of this Treaty.

The article implies all aspect of nuclear fuel technology, including uranium enrichment. Of about 190 countries that have signed the NPT, there is not a single country, aside from the United States, Britain, France, and Israel—and the last one is not even a NPT signatory—that has claimed the rights to be anything other than inalienable.
However, as the [10]author argued in an article in 2007 [10], Iran does not even need the blessing of the NPT—or the U.S. for that matter—for its right to uranium enrichment. Neither the United Nations Security Council nor any other international organization has the authority to take away any nation's sovereign rights. Iran has such rights to exploit its natural uranium deposits, and to diversify its energy sources, including the use of nuclear energy, both of which imply that Iran has the fundamental right to uranium enrichment. These rights were not bestowed upon Iran by international agreements and treaties. The NPT simply reaffirmed such rights. These are the same rights that the US, France, China, Britain, and the then Soviet Union invoked before the NPT ever existed, in order to develop their nuclear weapons and nuclear industries. One may put this another way: these rights precede the NPT. They are also the same rights that Israel, South Africa, India, Pakistan and North Korea declared after the NPT, in order to develop their nuclear arsenals. Thus, contrary to what Wendy Sherman claimed, the Security Council does not have the authority to take such rights away.
It might be argued that [11]Article 103 of the UN Charter [11] does give the UNSC such rights. This Article states, “In the event of a conflict between the obligation of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Thus, one might argue that, because Iran's rights under the NPT have conflict with the UN Charter, the Charter prevails. However, [10]as described in the author’s 2007 article [10], Iran's rights to peaceful nuclear technology, including uranium enrichment, are not treaty-based rights; they are sovereign rights. Article IV(1) of the NPT simply recognized this right; it did not grant it to Iran. So the argument based on Article 103 is erroneous.
Professor Daniel Joyner of University of Alabama School of Law, a widely recognized authority on international law and proliferation of weapons of mass destruction, [12]puts this in another way [12]: Article 103 “does not speak to the legal obligations of the Security Council as an organ of an international organization. Nor does it speak at all to conflicts between the obligations of the UN Charter, and the rights of states in international law. So again, Article 103 of the UN Charter is inapposite and inapplicable to this question.” In addition, as quoted by Dapo Akande of St. Peter’s College, University of Oxford, [13]in his wonderful article [13], [14]Sir Gerald G. Fitzmaurice [14] (1901-1982), the distinguished legal scholar and a Judge of the International Court of Justice, has stated that

The Security Council, even when acting genuinely for the preservation or restoration of peace and security, has a scope of action limited by the State's sovereignty and the fundamental rights without which the sovereignty cannot be exercised.

The Security Council and Jus Cogens Prohibitions
As described earlier [15] by the author, even if the Security Council can take away Iran’s right, it can do so only in a manner consistent with “the Purposes and Principles of the United Nations” as well as with other international laws. For example, in a ruling in the case of Bosnia and Herzegovina vs. Yugoslavia, for which the Security Council had issued [16]Resolution 713 [16], Judge Sir Elihu Lauterpacht of the International Court of Justice, [17]declared that [17]

Nor should one overlook the significance of the provision in Article 24 of the Charter that, in discharging its duties to maintain international peace and security, the Security Council shall act in accordance with the Purposes and Principles of the United Nations.

This implies that the Security Council must not violate [18]jus cogens [18] (Peremptory Norm) [18] prohibitions, a fundamental principle of international law that acts as a norm from which no derogation is ever permitted. For example, that no law can be enacted that permits genocide is a jus cogens matter. It is a well-established principle that jus cogens prohibitions are also applicable with equal force when it is acting pursuant to Chapter VII, under which the UN Security Council issued its resolutions against Iran. For example, in the same Bosnia and Herzegovina vs. Yugoslavia case, Judge Lauterpacht stated that the UNSC could not take action under Chapter VII contrary to jus cogens: “It is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting a rule of jus cogens ...” He also declared that, “The relief which Article 103 of the Charter [of UN] may give the Security Council in case of conflict between one of its decisions and an operative treaty obligations cannot—as a simple hierarchy of norms—extend to a conflict between a Security Council Resolution and jus cogens.”
What is the relevance of jus cogens prohibitions to Iran's case? An important aspect of the UN Charter, explicitly recognized by Article 2 of the Charter, is the principle of [19]Equal Sovereignty [19]. Article 2 states that, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” The principle of Equal Sovereignty is a jus cogens matter and, hence, cannot be violated. Thus, even if the Security Council can demand that Iran suspend its enrichment program—i.e., suspend Article IV(1) of the NPT for Iran—it must do so for all other Member States of the NPT as well. But by not suspending Article IV(1) rights of all Member States of the NPT, except Iran's, the UNSC has violated the jus cogens prohibition.
Thus, it is clear that Iran has sovereign rights to uranium enrichment and the U.S. has, indeed, recognized such rights in the past.
Iran analyst Muhammad Sahimi, a [20]Professor at the University of Southern California [20], is the editor of the website [21]Iran News & Middle East Reports [21].
Image: Flickr/Denis Dervisevic [22]. CC BY 2.0.

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Source URL (retrieved on Nov 25, 2013): http://nationalinterest.org/commentary/iran-has-right-enrich%E2%80%94-america-already-recognized-it-9425

Links:
[1] http://www.addthis.com/bookmark.php?v=250&username=nationalinterest
[2] http://nationalinterest.org/profile/muhammad-sahimi
[3] http://www.huffingtonpost.com/william-o-beeman/does-iran-have-the-right-_b_4181347.html
[4] http://www.payvand.com/news/04/dec/1186.html
[5] http://www.fordlibrarymuseum.gov/library/document/0310/nssm219.pdf
[6] http://www.fordlibrarymuseum.gov/library/document/0310/nsdm292.pdf
[7] http://nsarchive.chadwyck.com
[8] http://www.fordlibrarymuseum.gov/library/document/0310/nsdm324.pdf
[9] http://www.un.org/en/conf/npt/2005/npttreaty.html
[10] http://www.payvand.com/news/07/dec/1044.html
[11] http://www.un.org/en/documents/charter/index.shtml
[12] http://armscontrollaw.com/2013/11/07/scope-meaning-and-juridical-implication-of-the-npt-article-iv1-inalienable-right/
[13] http://journals.cambridge.org/abstract_S0020589300060450
[14] http://en.wikipedia.org/wiki/Sir_Gerald_G._Fitzmaurice
[15] http://www.google.com/url?q=http%3A%2F%2Fwww.payvand.com%2Fnews%2F07%2Fdec%2F1044.html&sa=D&sntz=1&usg=AFQjCNF68jtDen8h6X7tYiVkgy1mOHZSqQ
[16] http://www.nato.int/ifor/un/u910925a.htm
[17] http://www.icj-cij.org/docket/index.php?p1=3&p2=3&k=8d&case=91
[18] http://en.wikipedia.org/wiki/Peremptory_norm
[19] http://www.un.org/en/documents/charter/chapter1.shtml
[20] http://chems.usc.edu/faculty_staff/sahimi.htm
[21] http://www.imenews.com/
[22] http://www.flickr.com/photos/denisdervisevic/5052351594/in/photostream/
[23] http://nationalinterest.org/topic/global-governance/international-law
[24] http://nationalinterest.org/topic/global-governance
[25] http://nationalinterest.org/region/middle-east/persian-gulf/iran

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