Iran Has a Right to Enrich—And America Already Recognized It

The forgotten history of the dispute.

As described earlier by the author, even if the Security Council can take away Iran’s right, it can do so only in a manner consistent with “the Purposes and Principles of the United Nations” as well as with other international laws. For example, in a ruling in the case of Bosnia and Herzegovina vs. Yugoslavia, for which the Security Council had issued Resolution 713, Judge Sir Elihu Lauterpacht of the International Court of Justice, declared that

Nor should one overlook the significance of the provision in Article 24 of the Charter that, in discharging its duties to maintain international peace and security, the Security Council shall act in accordance with the Purposes and Principles of the United Nations.

This implies that the Security Council must not violate jus cogens (Peremptory Norm) prohibitions, a fundamental principle of international law that acts as a norm from which no derogation is ever permitted. For example, that no law can be enacted that permits genocide is a jus cogens matter. It is a well-established principle that jus cogens prohibitions are also applicable with equal force when it is acting pursuant to Chapter VII, under which the UN Security Council issued its resolutions against Iran. For example, in the same Bosnia and Herzegovina vs. Yugoslavia case, Judge Lauterpacht stated that the UNSC could not take action under Chapter VII contrary to jus cogens: “It is not to be contemplated that the Security Council would ever deliberately adopt a resolution clearly and deliberately flouting a rule of jus cogens ...” He also declared that, “The relief which Article 103 of the Charter [of UN] may give the Security Council in case of conflict between one of its decisions and an operative treaty obligations cannot—as a simple hierarchy of norms—extend to a conflict between a Security Council Resolution and jus cogens.”

What is the relevance of jus cogens prohibitions to Iran's case? An important aspect of the UN Charter, explicitly recognized by Article 2 of the Charter, is the principle of Equal Sovereignty. Article 2 states that, “To develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace.” The principle of Equal Sovereignty is a jus cogens matter and, hence, cannot be violated. Thus, even if the Security Council can demand that Iran suspend its enrichment program—i.e., suspend Article IV(1) of the NPT for Iran—it must do so for all other Member States of the NPT as well. But by not suspending Article IV(1) rights of all Member States of the NPT, except Iran's, the UNSC has violated the jus cogens prohibition.

Thus, it is clear that Iran has sovereign rights to uranium enrichment and the U.S. has, indeed, recognized such rights in the past.

Iran analyst Muhammad Sahimi, a Professor at the University of Southern California, is the editor of the website Iran News & Middle East Reports.

Image: Flickr/Denis Dervisevic. CC BY 2.0.

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