Scope, Meaning and Juridical Implication of the NPT Article IV(1) Inalienable RightPosted: November 7, 2013 Filed under: Nuclear 22 Comments
Interpreting the Nuclear Nonproliferation Treaty Pages 79-84
Friends of ACL Flynt and Hillary Leverett Recently posted a piece on their excellent blog entitled “America’s Lead Iran Negotiator Misrepresents U.S. Policy (and International Law) to Congress.” Their post is both troubling in its observation of official statements by US officials, and insightful regarding international law. The piece is here, and I recommend it highly.
Flynt and Hillary were kind enough to mention my work approvingly in this post, for which I’m grateful. They mention it particularly in the context of the interpretation of the NPT Article IV(1) right to peaceful nuclear energy. This is indeed something I’ve written about at length already. I’ll insert into this post the text from pages 79-84 of my 2011 book Interpreting the Nuclear Nonproliferation Treaty on this subject. As you’ll see, when I’ve written about this topic, I’ve interpreted it as a full, free-standing right of all NNWS party to the treaty, and not as a contingent right, contrary to the interpretation of some NWS states.
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, and which was to be the subject of the “think piece” that I was invited to submit to the Melbourne Journal of International Law. Readers will know how that turned out. I also broached it toward the end of my article last year in the Georgetown Journal of International Law (see the article here). In any event, I am now working with Marco Roscini and others to publish a set of papers on the subject of the rights of states in international law, that will include an in-depth analysis of these questions. I’m also planning, in the next few days, to publish a piece on this subject elsewhere online, which I will copy here.
These questions actually raise some very deep issues of international law, and analyzing them properly requires serious work, some of which I did in my aborted Melbourne Journal piece. I will plan to publish this work in the papers Marco and I are working on, and in a more applied way in my new book on Iran’s Nuclear Program and International Law.
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.
So would it be accurate for the benefit of lay people such as myself, to say that Article 103 applies to disputes between the UNSC and treaties or “agreements” — and as such it is NOT applicable to the current dispute with Iran since the NPT is not the source of Iran’s nuclear rights (it merely recognizes what is a pre-existing sovereign right to have the full fuel cycle) …. thus making Art 103 irrelevant to the question of whether the UNSC resolutions can trump Iran’s right to enrich uranium?
Article 103 doesn’t apply to the case of Iran’s nuclear rights because they are rights and not obligations competing with the UN Charter. Article 103 only applies to a case when a member state of the UN has a legal obligation arising from some other source, that is in competition with a UN Charter obligation. That situation is not present here. Article 103 similarly doesn’t apply to obligations of the Security Council as an organ of an international organization, a situation that is present here. So Article 103 just doesn’t really apply at all to this case.
If some governments claim that enrichment is not a sovereign right, then by what right do non-NPT signatory nations enrich uranium, and by what right did they develop their nuclearp program before the NPT came into existence?
quote: 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.”
some people also assert that Iran “loses” its right because it is not in conformity with Art I or II — but, in fact, no such finding has ever been made. Iran was previously found to not comply with its CSA but that has since been rectified, and no finding has ever been made of any NPT violation. Pls correct me if I’m wrong.
Yes, that’s correct.
[…] I write now to direct readers to his most recent posting, where he challenges the predominant view in Washington that States have no ‘right to enrich’ […]
Thank you for this excellent legal analysis. It’s a credit to the profession as well as to the professor.
Thank you Don. Very kind.
[…] right to a peaceful, domestic nuclear energy program is affirmed by international law via the Nuclear Non-Proliferation Treaty (NPT). As Fred Kaplan recently wrote in Slate, […]
A participant on the Mondoweiss blog who is an attorney commented that according to the recent decision in the Lockerbie case,
“Article 103 of the UN Charter is a supremacy clause that allows Security Council resolutions to prevail in the event of conflict with a treaty, like the NPT.
That means the US cannot unilaterally permit Iran to violate those chapter 7 resolutions, and France can veto any US attempt to repeal them, i.e. France has a legal right, but Iran does not, unless it withdraws from both the UN and NPT.” http://mondoweiss.net/2013/11/nuclear-bombastic-diplomacy.html/comment-page-1#comment-611265
Did the last paragraph of your analysis contemplate the Lockerbie decision? Is the comment about the impact of Lockerbie correct?
Lockerbie has no bearing on these facts. That case was about a conflict of treaty obligations. This case is not.
What P5+1 wants is for Iran to be a footnote to Article IV, like this:
“Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty (except for the Islamic Republic) to develop research, production and use of nuclear energy for peaceful purposes ….”
No analysis is complete without reflecting on the two part test of Article IV. Fuel cycle development must be for peaceful purposes and in conformity with Articles I and II.
It’s not hard to imagine why some may think that a state that had had a nuclear weapon program and violated a safeguards agreement by developing a fuel cycle facility in secret that has the potential to produce nuclear weapon useable material had violated Article IV and that the remedy was not to allow the use of that technology.
This is a classical Fox News rhetorical statement without any foundations, the story of main stream media in the US, unfortunately.
For the umpteen time: IAEA had known about IRI’s intentions in Isfahan (UCF) and Natanz (FEP) for years prior to 2002, not to mention that the original SA code 3.1 was fully in effect, as it is now. There was never a need to declare anything, 180 days prior to injection of UF6.
Why is it underground? I will leave it as a homework; hint: all options are on the table.
“and in conformity with Articles I and II.”
Marianne — see my comment above and do let us know when Iran was found to not comply with Article I or II of the NPT.
How is Iran not in conformity with Art I and II? Iran has met those obligations: not made nukes, and executed a Safeguards agreement.
Anyway, the US argues that there is no right to enrich, PERIOD.
Furthermore, note that nothing in the NPT says that a country can or cannot be “allowed to use” technology as a “punishment.”
Never. But it’s a two part test. Violating I or II. Or not peaceful. Speak to the latter.
Could you elaborate?
You seem to agree with me that Iran was never found in violation of Art I or II of the NPT.
If so, what is your argument?
Iran is now in full compliance with its CSA — since 2008. The CSA violation was about unreported material from China, not non-peaceful uses.
Please state your argument clearly.
[…] 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 […]
Can someone explain to us how US and Iran can reach the final agreement, or even pass this first freeze hurdle, when Iran demands recognition of its rights to enrich and USG says no one has that right.
The point you have to understand, is that this isnt about enrichment or Iran’s nuclear program at all. Those are just pretexts used by the US to vilify and ultimately work towards toppling the regime there. the last thing the us wants is for this conflict to be peacefully resolved with the regime still in power
The USG is lying when it claims that no one has that right, in fact the USG’s own position was previously contrary to this statement, and furthermore it isn’t just Iran that insists on the right to enrich — Iran is supported by the vast majority of states.