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Expert Opinion on Iran’s “Right” to Enrich Uranium in the Face of Security Council Resolutions

It is early morning in Geneva and dawn of the latest round of negotiations to decide the fate of Iran’s nuclear program. As I wrote yesterday, Iran’s claim to a “right” to enrich uranium will shape the context of the negotiations and, perhaps more ominously, US political and military options if the talks fail to produce a strong agreement. In yesterday’s post, I also examined a legal argument that supports the US stance in the negotiations. In response to reader feedback, it is worth showing some of the wider expert opinion in favor of that view.

Here’s what I wrote: “At the very least, it is not difficult to construct a good legal argument on the other side. Consider just one such legal argument: In a series of resolutions starting in 2006, the UN Security Council has demanded that Iran suspend it enrichment activities; and according to the UN Charter (art. 103) such decisions override any legal right that Iran might have held under an international treaty (the NPT).”

What follows is a sample of statements by experts supporting that view.

Steven E. Miller, Director, International Security Program; Belfer Center, John F. Kennedy School of Government, Harvard University, wrote:

“U.N. Resolution 1696 trumps Article IV of the NPT and the Security Council’s demand for suspension of Iran’s enrichment and reprocessing should carry the day.”

Michael Glennon, Professor of International Law at the Fletcher School of Law and Diplomacy, Tufts University, in a recent story for Businessweek, stated:

“The obligations imposed by the UN Charter trump any inconsistent treaty, including the Nuclear Non-Proliferation Treaty,” Michael Glennon, an international-law professor at Tufts University near Boston, said in an e-mail. Challenging the legality of the UN’s actions “at this point would be diplomatic suicide,” said Glennon, who has advised UN atomic monitors and the U.S. State Department.

Larry D. Johnson, Adjunct Professor at Columbia Law School and former Assistant-Secretary-General for Legal Affairs, United Nations, wrote:

While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.

Orde F. Kittrie, Professor, Arizona State University College of Law, wrote:

“Iran previously insisted it had an ‘inalienable right’ under NPT Article IV to ‘develop research, production and use of nuclear energy for peaceful purposes’ and that neither the NPT nor the IAEA Statute provided a legal basis for requiring Iran to suspend these activities. Resolution 1737′s binding suspension conclusively undermines that argument because…the obligation to comply with Security Council decisions prevails in case of conflict with rights under the NPT or any other treaty.”

Amy Reed, Junior Fellow for Nonproliferation, Carnegie Endowment for International Peace wrote:

And what of Iran’s “inalienable right” under NPT Article IV to nuclear energy development? Article 103 of the UN Charter clarifies this point without room for dispute …. Resolution 1696 supersedes the privileges offered under the NPT.

In line with my post yesterday, I make no attempt here to evaluate whether the above view is ultimately correct. My point remains a more modest one – to show a flaw in the overly strong, categorical position that Iran has an “unambiguous right” under international law to enrich uranium. That position is unsustainable.

 

 

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About the Author

is co-editor-in-chief of Just Security. Ryan is the Anne and Joel Ehrenkranz Professor of Law at New York University School of Law. Follow him on Twitter @rgoodlaw.