“International Lawifying” the Supreme Leader’s Fatwa
Posted: January 17, 2013 Filed under: Nuclear 5 CommentsA few days ago a friend sent me a link to a recent interview with Iran’s Foreign Minister, Ali Akbar Salehi. The interview was published in the World Policy Journal, Volume 29, Number 4. You can see the full document here, though I think you’ll need a subscription.
One of Salehi’s answers in the interview was particularly interesting from a legal perspective. It regards Iran’s willingness to “secularize” the Supreme Leader Ayatollah Ali Khamenei’s fatwa prohibiting the government of Iran from possession or use of nuclear weapons:
We are ready to recognize the concerns of the West and to try to mitigate them using all the possible instruments that are available, such as additional Protocol 3.1, translating the fatwa of the Supreme Leader into a secular, binding document that would bind the government to this fatwa, to which it is already bound, but which some in the West argue is a religious document, not a secular one. But we are ready to transform it into a legally binding, official document in the UN. And so we are ready to use all means and mechanisms and conventions or safeguards to remove the concerns of the other side.
In a separate interview, published by the Belfast Telegraph, Foreign Ministry spokesman Mehmin Mehmanparast also referred to this idea, characterizing it as Iran’s willingness to “register the fatwa as an international document.”
I suppose I do understand Iran’s motivation to convince the world that such a fatwa has indeed been issued by Khamenei, and that in no uncertain terms it is binding in both a religious and secular legal fashion on the government of Iran, including in its international relations. Apparently – and I didn’t know this before – there have been doubts expressed in some quarters regarding the existence and the binding character of this command by Khamenei.
I really don’t know what practical dividends such an action would pay for Iran, in terms of changing the minds of those who currently distrust Iran’s nuclear intentions. Maybe it could have a persuasive effect on open minded people, who don’t have an ideological or other bias.
My main interest in this idea is in the more technical legal question of precisely what mechanism could be used to translate the Supreme Leader’s edict into a binding, international legal obligation on Iran, which is what Salehi and Mehmanparast seem to be proposing.
My first thought would be the principle iterated by the ICJ in the Nuclear Test Cases, that a unilateral pronouncement by a state of its intent to do or not do something, made with the intention of being bound to the terms of the statement, is binding on that state in international law. In that case, it was statements by French officials indicating that there would be no further atmospheric nuclear tests in the South Pacific. In part relying on these statements, the court decided that the legal issue had been settled, and therefore it was unnecessary to proceed to the merits of the case brought by New Zealand against France. A really useful set of excerpts from international judicial opinions on this principle, including from the Nuclear Test Cases, can be found here.
Following this line of legal principle, it may be the case that Ayatollah Khamenei’s statements on the matter already qualify as binding international legal obligations on Iran, given his position as head of state, and the nature of these statements as statements understood to be binding on the government of Iran. Perhaps it’s the fact of the theocratic nature of Iran’s government, and the inevitable mixing of religion and politics in the person and role of the Supreme Leader of Iran, that have allowed such doubts as there are about the legally binding nature of Khamenei’s edict, to subsist in opinion outside Iran. It may also be the case that these statements, which perhaps could be viewed as essentially addressed internally to the Iranian people, and not externally to the international community, may on the basis of this fact not be clearly understood by the outside world to bind the Iranian government in its relations with other states.
So, to remedy these problems of perception, if Khamenei were to issue a formal oral or written statement, saying what he has already said, and clarifying for the outside world that his edict is in fact legally binding on the government of Iran, and is intended to bind the government of Iran in its international relations, then that should satisfy any remaining doubtful legal criteria and fit his statement clearly under the Nuclear Test Cases binding unilateral statement principle. The statement could be officially transmitted to the Secretary General of the U.N. just for the record, though this shouldn’t be formally necessary.
The other way of course to make such an obligation binding in international law would be through treaty, but in this case I don’t even know who the other potential treaty party(ies) would be. The IAEA? The P5+1? All doubtful. I think the unilateral proclamation route would be by far the most practical route, and should be effective.
Arms Control Law 
Dear Professor Joyner,
It may be that in this particular instance your idea serve international peace as well as the interests of the Iranian people. But as a general principle, international lawifying the will of a dictator and recognizing its expression as a source of international obligations for a whole nation looks like a very bad idea to me.
Regards
Hi Vida, thats a fair comment. I certainly don’t mean here to comment on the virtue or otherwise of Khamanei’s being in the role he’s in in Iran. Only that since he is the head of state, for good or for bad, his declarations can have international legal implications for Iran. I’ve said it before but will say it again here, that if I wake up tomorrow and the Iranian people have risen up to install a democratically accountable, meaningfully representative government in Tehran, I will be thrilled. That’s the best thing that could happen in Iran.
Dear Professor Joyner,
I find the idea of operationalising the Fatwa very useful. But I am not sure we should talk about another unilateral pronouncement of the Iranian leadership, nor about a treaty to be concluded between Iran and some othe party(ies). To start with, I am not sure it would be wise and realistic to ask the Supreme Leader to repeat once again, what he has already said (even less so, with some improvements) and then recognise that as binding on Iran. The precedent of the “Nuclear Test Cases” is not, in my view, really applicable, because it was created in the absence of a treaty, which was binding on France (the Moscow 1963 treaty did exist, of course, but France did not want to join), while Iran is already a party to NPT, CWC and BWC, which cover almost the whole spectrum of WMD. For that same reason developing a new treaty to solve the Iranian nuclear problem would make little sence.
Rather, I would think about Iranian national legislation, outlawing – for Iran, its citizens and residents, any activity, leading to the development, prooduction, possession and use of nuclear weapons (or, better, all weapons of mass destruction.A national law, which many contries have in order to support and consolidate, through their national legislation, their obligations under NPT, CWC and BWC. In fact, the OPCW pioneered this approach initially, and then this idea was picked up by the 1540 Ctte. Today, this approach is being picked up in the BWC context by some countries, including Ganada and Switzerland in their attemt to buttress compliance and confidence in compliance. Under the circumstances, it is difficult to imagine, how the mainstream arms control community can speak against or belittle such a measure.
For the Iranians, such a legislation may be secondary to what the Supreme Leader once said, but still useful, because it would facilitate the practical implementation of his words and clarify their meaning to people directly involved at relevant facilities and laboratories. There is no problem with the introduction such a law into the international mechanisms – it can be issued as an official document of 1540 Cttee, as well as of the OPCW and of the BWC under the heading “National implementing legislation by Iran” – or something similar. In addition to that, Iran will be well advised to officially submit it to the IN Secretary General, as you are suggesting..
It would be a mistake, though, to conceive this step only in the context of a package deal between Iran and P5+1 – as the recent Iranian statements seem to indicate. It would have even greater effect if Iran could develop and adopt such a legislation without linking it to any give-and-take process.
Thank you again for bringing this issue to everyone’s attention,
Beyond international law, there may be both a face saving, and a security angle to Salehi’s and Mehmanparast’s suggestion to have Iran’s ‘ban-the-bomb’ declaration registered at the UN, to join Sa’adi poem, and Curus’ cylinder.
“The other way of course to make such an obligation binding in international law would be through treaty, but in this case I don’t even know who the other potential treaty party(ies) would be.”
Yes, what we need is some kind of, you know, Nuclear Non-Proliferation Treaty that all countries sign and honor.
…. Oh wait.
“I’ve said it before but will say it again here, that if I wake up tomorrow and the Iranian people have risen up to install a democratically accountable, meaningfully representative government in Tehran, I will be thrilled. That’s the best thing that could happen in Iran.”
Apparently not, which becomes obvious to those who are educated about history, because it has happened before and the USA sabotaged it.
As long as the West ignores rules and treaties, and in other cases makes rules, bends them, breaks them and changes them at will, as long as diplomacy is not based on sincerity, but on imperialism, arrogance and hybris, there can’t be a lasting solution to the conflict, and the Ayatollah stated pretty much this. The USA are waging more or less covert war against Iran, with assassinations, support of terrorism, espionage, cyber-attacks, propaganda lies and more.
Who would want to negotiate with an infamous liar and bully?