France, serving as a cat’s paw for Saudi Arabia and Israel, sabotaged an interim agreement on Iran’s nuclear program, but another problem is the U.S. refusal to recognize Iran’s right to enrich uranium, say Flynt and Hillary Mann Leverett.
By Flynt Leverett and Hillary Mann Leverett
Notwithstanding France’s simultaneously arrogant and craven grandstanding over Iran’s Arak heavy water reactor, the main reason for the failure of last week’s nuclear talks between the Islamic Republic and the P5+1 was the Obama administration’s imperious refusal to acknowledge Tehran’s right to enrich uranium under international safeguards.
On this point, we want to highlight a recent post by Dan Joyner on Arms Control Law, titled, “Scope, Meaning and Juridical Implication of the NPT Article IV(1) Inalienable Right.”
U.S. Secretary of State John Kerry takes a walk in a park between meetings in Geneva, Switzerland, on Nov. 8, 2013, that focused on limits on Iran’s nuclear capabilities. (State Department photo)
Dan opens with a favorable reference to our recent post on the issue; he then focuses on how to interpret the NPT Article IV(1) right to peaceful nuclear energy, a subject he has already written about at some length. He usefully inserts an excerpt from his excellent 2011 book, Interpreting the Nuclear Nonproliferation Treaty, Interpreting the Nuclear Nonproliferation Treaty Pages 79-84.
This excerpt lays out Dan’s argument that the right to peaceful use of nuclear technology should be interpreted as “a full, free-standing right of all NNWS [non-nuclear-weapon states] party to the treaty, and not as a contingent right, contrary to the interpretation of some NWS [nuclear-weapon states].” After elaborating this basic point, Dan continues:
“The question of the scope of this right is one that continues to be debated. I have looked to the Lotus principle in international law (see the excerpt from my book) to show that the lawfulness of NNWS’, and in fact all states’, indigenous nuclear fuel cycle activities can be shown to derive from the absence of any prohibition of these activities in international law.
“This observation will, I have argued, serve to legally justify the full nuclear fuel cycle of activities within a NNWS, subject only to the positive requirements of Articles II and III of the NPT, i.e. no manufacture of nuclear explosive devices, and the conclusion of a safeguards agreement with the IAEA.
“The question of just what exactly is the nature and scope of the right recognized in Article IV(1) of the NPT, and what are its juridical implications (e.g. in tension with the UN Security Council’s order in Resolution 1696 for Iran to cease uranium enrichment), is a subject that I have been thinking/researching about recently. These questions actually raise some very deep issues of international law, and analyzing them properly requires serious work. But let me say this here.
“Article IV(1) of the NPT states 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.’
“In my view, the recognition by over 190 states parties to the NPT that all states have such an inalienable right, which I interpret to include all elements of the full nuclear fuel cycle including uranium enrichment, strongly suggests that the right to peaceful nuclear energy research, production and use is one of the fundamental rights of states in international law. In my view, both fundamental and acquired rights of states should be understood to create in third parties, both states and international organizations, a legal obligation to respect those rights.
“This means that other states and international organizations are under an international legal obligation not to act in serious prejudice of states’ rights. In the case of fundamental rights, this reciprocal obligation is of a jus cogens order, meaning that all states and international organizations are under a jus cogens order legal obligation not to act to seriously prejudice the fundamental rights of other states.
“When states or international organization do act in serious prejudice of a state’s fundamental rights, that action is an internationally wrongful act, and implicates the international responsibility of the acting state or international organization.
“According to this analysis, UN Security Council Resolution 1696, which commands Iran to cease uranium enrichment, constitutes a violation of international law, at least as to this particular command, and is void of legal effect (See Article 25 of the UN Charter).
“Note that the often heard rebuttal to this argument, which references Article 103 of the UN Charter, is in fact erroneous and inapplicable. Article 103 of the UN Charter provides that ‘In 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.’
“My analysis, which is based on the recognition of a fundamental right of states in international law, and the juridical implication of an obligation in other states and international organizations to respect that right, is unaffected and unanswered by this provision, which merely recognizes that in the case of a conflict between UN member states’ international legal obligations under the Charter, and their obligations deriving from other sources, the Charter obligations trump.
“It 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.”
Dan’s work on these issues is both breathtakingly clear and, as far as we are concerned, definitive. (For more of his analysis on the illegality of Security Council resolutions calling on Iran to suspend uranium enrichment, we refer everyone to his brilliant article, “The Security Council as Legal Hegemon,” published last year in the Georgetown Journal of International Law, see here.)
More immediately, Dan’s work underscores an important reality: the Obama administration’s hegemonically abusive refusal to recognize Iran’s right to safeguarded enrichment is not just diplomatically and strategically counter-productive, it is illegal.
Flynt Leverett served as a Middle East expert on George W. Bush’s National Security Council staff until the Iraq War and worked previously at the State Department and at the Central Intelligence Agency. Hillary Mann Leverett was the NSC expert on Iran and from 2001 to 2003 was one of only a few U.S. diplomats authorized to negotiate with the Iranians over Afghanistan, al-Qaeda and Iraq. They are authors of Going to Tehran. [This article previously appeared at GoingtoTehran.com.]
It seems obvious to me that an enormous shift in global power is imminent. The USA doesn’t appear to have the same kind of power it used to have, and anyway, military power is not what it used to be. The weightier power already resides in the financial corporations which can build up or tear down anything that might further or thwart their designs. Before a new order can be cemented into place, chaos will have a day. National rivalries and alliances will soon take second place after corporate ambitions.
Iran should plan to increase its ties to the SCO nations (Shanghai Cooperative
Organizations) of which it is already a member. The specific details are for Iran
and SCO to negotiate.
Before action on its nuclear affairs, Iran should demand (in quiet dignity) that
Israel join the MENFZ(Middle East Nuclear Free Zone) and elimine ALL of its
bases for nuclear weapons under detailed and random inspections from
the IAEA. Israel should be compelled to SIGN and RATIFY the NPT (Nuclear
Proliferation Treaty) which Iran signed years ago.
It goes without saying that the so-called “separation wall” should come down
as it is illegal according to international law. Israeli activities in the West Bank
should cease immediately. All these have been repeated again and again by
various United Nations committees but never (NEVER) reported in the US.
If Israel finds it cannot abide by international law and the UN Charter, it should
resign—permanently— from the organization. I hope the stay and follow
international law which it has defied again and again and again.
I recall how years ago the California Coastal Commission sometimes used to condition its approvals on a homeowner or developer giving up vested rights and that they were ultimately called on it and successfully sued on the theory that the condition was a taking in the form of an “inverse condemnation”, but it had to go all the way up to the U.S. Supreme Court before the petitioner received any relief. (See, for example Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and the line of cases under it.) Obviously, the laws and legal system at issue are not the same or equivalent. Yet, I wonder if Iran should nonetheless also be pursuing a dual track while is negotiating with the P5+1, and try to validate its NPT Article IV rights before an International Court or the U.N. so that will have a definitive judicial decision under its belt confirming the validity of its vested rights and of the arguments set forth by Dan Joyner and the Leveretts.