Iran’s Right to Enrichment

Whether Iran is possessed of a right to enrich uranium is said to be the central question in its negotiations with the P5+1.  It should not  be.

Neither side’s argument is frivolous.  The Iranian claim, which it contends is confirmed by the interim agreement concluded in Geneva on November 24, is grounded upon the first paragraph of Article IV of the Nuclear Nonproliferation Treaty (NPT), which provides as follows:

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.

Iran’s argument has not been spelled out precisely, so far as I am aware, but seems premised on the idea that an “inalienable right” to peaceful nuclear energy necessarily implies the right to do and acquire those things essential to its research, production, and use.  If enriched uranium were not reasonably available on the international market, the right to enrich could be seen as an implied corollary right.

In response, the P5+1 place reliance upon Article 103 of the United Nations Charter.  It provides that “[i]n the event of a conflict between the obligations 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.”  The argument on their behalf is that, under Article 25 of the Charter, members of the UN are obliged to accept and carry out decisions of the Security Council; that the Security Council has, in the past, prohibited Iran from enriching uranium; and that the Council could hardly have proceeded to do so were Iran possessed of an inviolable right to enrich uranium. The Council must necessarily have read Iran’s Charter obligation to comply with the Security Council’s decision as trumping whatever rights are conferred upon Iran by the NPT.

Iran appears to have responded to this argument with a suggestion not unlike the claim made by the United States when it adhered to the Kellogg-Briand Peace Pact: some rights are so fundamentally intertwined with a nation’s sovereignty that they cannot by negotiated away.  On this theory the United States dismissed objections to the Pact, which had been criticized as banning even the defensive use of force.  The United States claimed that the Pact could not possibly do so; a nation’s right to defend itself goes to the core of its implicit sovereign right of survival, which cannot be bargained away. The Pact was signed in Paris on August 27, 1928.  On June 23, 1928, the United States delivered a note to the foreign offices of fourteen governments participating in the negotiation of the Pact.  The note stated that the government of the United States “believes that the right of self-defense is inherent in every sovereign state and implicit in every treaty.  No specific reference to that inalienable attribute of sovereignty is therefore necessary or desirable.”  Iran seems, similarly, to claim the right to enrich uranium as a right inherent in the notion of sovereignty, which Iran cannot be regarded as having contracted away when it ratified the United Nations Charter.

Were it to get more technical, Iran might further contend that a close reading of Article 103 of the Charter confirms this view and reveals that Article 103 is not, in fact, an all-purpose trump card.  Article 103 provides only that a nation’s obligations under the Charter prevail as against conflicting obligations imposed by another treaty.  Article IV of the NPT, Iran might point out, does not impose an obligation on Iran; it confers a right.  Hence, the  right to enrich is not trumped after all.

I have three reactions to all this.  First, the P5+1 have the better argument.  It’s hard to get around the precedent established by the Security Council when it prohibited Iranian enrichment.  The Council must necessarily have rejected contentions that the NPT precluded it from doing so.  It must also have construed Article 103 as broadly encompassing rights as well as obligations, which would not have been unreasonable.  Rights are the flip side of obligations; the two go together.  It would make little sense for the NPT to have conferred a putative right to enrichment without imposing a correlative obligation on all parties to the NPT to respect that right; that correlative obligation, however, would give way under Article 103.  Further, the contemporary validity of the 1928 U.S. position with respect to the negotiability of defensive measures seems problematic. Many international agreements have since involved trading something of potential defensive utility for something else that was thought to be of greater security-enhancing utility.  In any event, it is not clear that a right to enrichment, if were to exist, would be comparable to the foundational right of self-defense.

Second, Iran’s claim is not vindicated, as Iran insists, by the interim agreement.  The interim agreement merely paraphrases and reiterates Article IV of the NPT, without going beyond it.  The interim agreement provides that the “comprehensive solution would enable Iran to fully enjoy its right to nuclear energy for peaceful purposes under the relevant articles of the NPT in conformity with its obligations therein.”  That gives Iran nothing that it did not already have.  What the interim agreement does do, however, is to undercut, at least partially, the argument that a right to enrichment cannot be bargained away.  The interim agreement provides that, as a voluntary measure, Iran would undertake “not [to] enrich uranium over 5% for the duration of the 6 months.”  If Iran can bargain to limit enrichment it presumably can agree to forego enrichment altogether (though it almost surely will not do so).  Whether Iran is legally bound to that limit is for these purposes beside the point; arms control measures often are cast in ambiguous (or flatly non-binding) terms, but involve options that are for all practical purposes bargained away.

Finally, the same applies to the whole issue of the “right” to enrich: whether it exists or not is irrelevant.  The extent to which even established rights will be exercised often is the subject of negotiation, among nations as well as individuals.  Rights commonly are bargained away, in whole or in part, in favor of broader interests.  The Iran-P5+1 negotiations are a textbook example of a case in which a legal abstraction—the notion of a “right”—impeded rather than advanced international cooperation, or could have done so had not the negotiators been nimble enough to sidestep a metaphysical quibble.  Let’s hope that they continue to focus on things, not words, as negotiations on the long-term, comprehensive agreement progress.  That will mean continuing to think in terms of interests, not rights. 

About the Author(s)

Michael J. Glennon

Professor of International Law at the Fletcher School of Law and Diplomacy at Tufts University, Former Legal Counsel to the Senate Foreign Relations Committee (1977-1980), Former Consultant to Various Congressional Committees, the U.S. State Department, and the International Atomic Energy Agency