It looks like the impasse over Iran’s nuclear ‘rights’ might well be settled – or, at least, put off for another day. In a Reuters piece (as well as in remarks to ISNA), Iran’s Foreign Minister Javad Zarif said that Iran would continue to assert its right to enrich uranium, but would not require that such right be recognized by the P5+1 powers. In short, it looks like Iran has received assurance from the U.S. and Europe that it will be permitted a (smaller) enrichment program following the conclusion of negotiations. Such de facto recognition of its nuclear rights is enough for Iran’s satisfaction, and thus the draft agreement expected to be produced this week between Iran and the P5+1 parties will exclude explicit mention of Iran’s nuclear rights.
That does not mean the question will completely disappear, and there are important (if, at this point, purely theoretical) issues that deserve answer. Very briefly, I want to identify the two potential sources for Iran’s right to enrich and discuss the consequences of each.
(1) Nuclear Non-Proliferation Treaty
This is the most commonly identified source for Iran’s right to enrich. Under NPT Article IV(1), States-parties are recognized as possessing an “inalienable right…to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of [the] Treaty.”
Iran’s right to enrich uranium would be captured within the broad ‘right to produce nuclear energy.’ Few argue with this reading, though the United States and a few European countries have recently signaled their disagreement. But it would be difficult to argue, on the one hand, that NPT signatories (like Iran) have a ‘right to produce nuclear energy,’ but at the same time lack the rights (such as the ‘right to enrich uranium’) to realize this.
It is for this reason that many in the nonproliferation community have taken a different tack, arguing that Iran’s right to produce nuclear energy is contingent on its adherence to NPT Articles II and III (which mandate that non-nuclear weapons States both refrain from manufacturing nuclear weapons or nuclear explosive devices and accept and adhere to safeguard agreements with the IAEA, respectively). Since Iran, it is claimed, has been non-compliant with its Safeguards Agreement with the IAEA, and thus in breach of its Article III obligations, it loses its right to produce nuclear energy under Article IV(1). This argument is problematic for a number of reasons – not least, equating non-compliance with a Safeguards Agreement with an Article III breach, and viewing Article IV(1) rights as contingent on fulfilling obligations under Article III. If people want to pursue a robust critique of this argument, I urge them to take a look at Dan Joyner’s monograph on the subject here.
More importantly, if the source of Iran’s right to enrich is Article IV(1), then that right is ‘inalienable’. That means that Iran cannot trade away such right, even if it so desired (though I am having trouble figuring out how an ‘inalienable right’ works in practice as between States and think there is a pretty big drafting error here). This is the language Iran’s Foreign Minister is mirroring in his remarks – an ‘inalienable right’ that cannot be sold or given away.
(2) General Principles of International Law
For those steeped in international law, there is a basic legal principle called the Lotus presumption after a famous case before the Permanent Court of International Justice (a precursor to the International Court of Justice). That presumption, in brief, holds that a State is free to do whatever act, provided that there exists no prohibitory rule in international law preventing it from doing so. In other words, if there exists no rule preventing a State from enriching uranium, then a State is free to engage in such activity.
This is a second source of the ‘right to enrich’. Under international law, there is no prohibitory rule stating that a State cannot enrich uranium on its own soil, so long as that State does so for exclusively peaceful purposes (here is where Article II and III of the NPT come in to do some work). This is why I have argued elsewhere that it is not enough for the United States to argue that the NPT does not grant a right to enrich to Iran (or any other NPT signatories). Instead, the United States must also argue that there exists a prohibitory rule in international law that prevents States from enriching.
One issue with sourcing the right to enrich to this more general principle of international law, however, is that this right is not inalienable (as the NPT Article IV(1) right is). States have the freedom to enter into international agreements that expand or limit their rights, and this case would be no exception. Iran would be free to trade away its right to enrich, provided that the price was high enough to convince it to do so.
In sum, there are two potential sources for Iran’s right to enrich – the NPT and a general principle of international law. Different consequences flow from sourcing the right to one or the other, however, so how we recognize the right matters. No doubt, this is a theoretical concern at this time, but it does play a role in how the parties (Iran and the P5+1) approach the issue. This is not a question of whether the NPT grants Iran a right to enrich, but instead a question of whether we source Iran’s right to the NPT (as I think we do) or to the background principle provided by the Lotus case.