Missing the Point

I missed this, but Ryan Goodman posted what may well be a response to a piece I had written earlier, arguing that he had misunderstood the nature of the U.S. claim regarding Iran’s ‘right to enrich’. Based on what is here, I think he has compounded the error.

He argued in his first post on the subject that the view that Iran has a categorical right to enrich by the terms of the NPT is in err, as it is not difficult to construct contrary arguments. He pointed out, for instance, that the string of UNSC resolutions regarding Iran’s nuclear program trump whatever Iran’s claimed rights are under the NPT (by virtue of UN Charter Article 103), and since the resolutions demand Iran suspend all enrichment, Iran’s right to enrich is hardly sacrosanct. As I noted, that is all well and fine (though I hardly think it is the last word on the subject – there are, at least, three responses: (1) that the IAEA’s referral to the UNSC was procedurally invalid; (2) the UNSC acted ultra vires by failing to identify the basis under which it triggered its Chapter VII powers; and (3) the nature of Iran’s nuclear rights are such that UN Charter Article 103 does not, in fact, apply to this case), but it ignores what is the U.S.’s (and the UK’s, apparently) actual argument.

That argument is that neither Iran nor any other NPT signatory has a ‘right to enrich’ by the terms of the Nuclear Non-Proliferation Treaty. Secretary of State John Kerry did not say that Iran’s claimed right to enrich was suspended upon passage of UNSC Res. 1696 (and all subsequent resolutions), but rather that no such right to enrich exists ‘by the four corners’ of the NPT. That, I argued, reeks of a bad-faith legal interpretation of the relevant provision of the NPT, which states that all signatories have an ‘inalienable right…to develop…production…of nuclear energy for peaceful purposes…’  If the right to produce nuclear energy does not admit of a right to enrich, then I’m not sure what else it does.

So far as I’ve seen, Iran does not argue that, should the UNSC resolutions be legally applicable, it still maintains the right to enrich. Rather, it argues that, at the end of this process, Iran will retain its nuclear rights under the NPT, which includes the ‘right to enrich’. That is what the U.S. and Iran are, in fact, fighting over during negotiations, especially as Iran has already encountered the U.S.’s resolve to deny Iran such nuclear rights when it negotiated with the E3 back in 2003-2005. Iran wants to make sure that, in a final deal, the U.S. and the Europeans will recognize Iran’s right to enrich on its own soil – even if limits are placed on the extent of Iran’s enrichment program. Whether the NPT admits of such right, then, is the actual question – not whether the UNSC resolutions suspended Iran’s right (which is, indeed, a debatable point).

However, in his response, Goodman points to the views of a series of nuclear experts, who all argue, in near uniformity, that Iran’s claimed right to enrich has been suspended by UNSC Res. 1696. Ok fine, but how does that answer the real question being argued in the world today?


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