New Article by the Leveretts in the Huffington Post

Friends of ACL Flynt & Hillary Leverett have written an excellent new article in the Huffington Post here.  I agree with everything they have written here (with only one small reservation below) and I think they explain the issues of legal interpretation in a very accessible, and correct, way.

The only point on which I’d like to do some more thinking myself is the WTO point they make. Theyre obviously referring to GATT Article XXI here, and I’m not saying theyre wrong. I’d just like to think about it a bit more before going on record in agreement. I wrote about GATT Article XXI at some length in Chapter 3 of my 2009 book, and I’m planning to address it in a new book I’m planning to begin writing on soon. Much of Article XXI is quite intentionally broadly and subjectively worded, and there is virtually no WTO case law on it, and so determining that a national security related action does not fall within it can be difficult. Certainly not impossible, though, as I argued in my book regarding dual use export controls.

But certainly all of their points regarding the NPT I agree with fully. Do have a look at Flynt & Hillary’s new article.

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26 Comments on “New Article by the Leveretts in the Huffington Post”

  1. Don Bacon says:

    Leveretts: “Those holding that nonproliferation trumps other NPT goals — America, Britain, France, and Israel — claim that there is no treaty-based “right” to enrich, . .”

    That’s amusing, since the first three illegally proliferated to the last.

    • Cyrus says:

      Well, they’re right in the sense that the right to enrich is not “treaty-based” — the NPT merely recognizes that right, it does not grant it. That’s why countries quite legally enriched uranium before the NPT came into existence, or in the case of countries that did not sign the NPT. This is key to understand: the right to enrich is an aspect of a nation’s sovereign status. Iran has the same right to enrich as China, Japan, the US, Israel, the UK etc.

      • Cyrus says:

        …simply by virtue of its status as a sovereign nation, not because of anything the NPT says.

      • Don Bacon says:

        My mistake, I should have left the last part of the quote out. I was referring to the trumping and not the enriching.

        Yes, I like the “sovereign status” characterization. The US has told its puppet South Korea that it can’t enrich, even though it builds reactors for other countries. Iran we’re quite familiar with. Didn’t some Gulf State recently refuse US dictating on the issue? And then there’s this:

        Sep 22, 2010: Jordan and other countries have the right to develop and enrich their uranium deposits, U.S. Undersecretary for Nuclear Security Thomas D’Agostino said at a press briefing in Vienna. We believe quite strongly that nations have the right to develop their civil programs for civil purposes,” D’Agostino said when asked about Jordan’s nuclear program. “We are not trying to tell other nations that you can’t have enrichment,”

        he said
        Has anyone ever done a worldwide study on the issue, i.e. US vs. world on enrichment, and what does the US “believe quite strongly,” really?

      • Cyrus says:

        “We are not trying to tell other nations that you can’t have enrichment”

        What a crock!

    • Cyrus says:

      Right now, the business of commercial uranium enrichment is totally dominated by a few countries, acting through 5 companies. Three of these are under direct state ownership or the equivalent: the United States Enrichment Corporation (USEC) in the USA, Rosatom in Russia, and Japan Nuclear Fuel Limited (JNFL). The other two (URENCO and EURODIF) are international consortia formed by several European governments, and both were intended by European countries to maintain an autonomous enrichment capability for themselves.

      The US has consistently tried to promote a “new” reading of the NPT, according to which Article IV is merely a “loophole” and there is no “right” to enrichment recognized — except for the US and friends. However, the rest of the world sees this has nothing more than an attempt to create a cartel for nuclear power. The Developing Nations have particularly objected to efforts to limit ENR technology under the guise of non-proliferation http://www.nti.org/analysis/articles/bush-proposals/

      The Final Document of the United Nations General Assembly resolution S-10/2 which was adopted at the 27th plenary meeting of the tenth special session on 30 June 1978 stated in paragraph 69:

      “Each country’s choices and decisions in the field of peaceful uses of nuclear energy should be respected without jeopardizing its policies or international cooperation agreements and arrangements for peaceful uses of nuclear energy and its fuel-cycle policies”.

      This language was reiterated in the final document of the 1980 NPT Review Conference and has been consistently reiterated in every Review Conference since then, including the 1995 Review Conference , the 2000 NPT Review Conference and in the Final Document of the 10th Special Session of the United Nations General Assembly in 2002.

      More links of interest:

      http://www.armscontrol.org/act/2006_11/NAFuel

      http://www.utilities-me.com/article-601-saudi-arabia-may-turn-to-uranium-enrichment/

  2. JP Zanders says:

    Dan, a word of caution: Iran is not party to the GATT.

    • Cyrus says:

      The third parties who are subject to sanctions if they deal with Iran, are.

    • Dan Joyner says:

      Thats a good point. And it would foreclose Iran’s ability to bring a claim directly. But as Cyrus notes, a suit brought to the WTO on this matter could also conceivably be brought against the US or the EU by a third party state whose companies feel that sanctions targeting Iran are illegally harming their ability to benefit from WTO concessions. Typically, the claim would first state that the sanctions are a non-tariff barrier to trade, in violation of Article XI and possibly XIII of the GATT. At that point, the burden would shift to the respondent state to show that, notwithstanding this prima facie violation, the measure in question falls under the Article XXI national security exception. That’s when things get difficult, to find the scope and limits if any on the article XXI exceptions – especially Article XXI(b)(iii) and Article XXI(c), which are very broadly and vaguely worded. I’d have to take some time to think it through. When I was looking around the web on this question a while ago, I did find this paper: http://wtocentre.iift.ac.in/workingpaper/Iran%20Sanctions.pdf
      I havent read it all yet, but it is on point.

      • Cyrus says:

        Dan, I am confused. So you’re saying that if the US legitimately invokes the Article XXI national security exception, they can not only refuse to deal with Iran themselves but can also impose sanctions on others for doing so? I can see how this exception would make allow them to opt out of the GATT rules of free trade, however the national security exception allows them to then force others to do the same?

      • Dan Joyner says:

        GATT Article XXI isnt a panacea for any legal breach that is committed by sanctions. it can only constitute an exception for liability under the GATT itself. Unilateral sanctions on Iran by the US and EU are also likely unlawful for other reasons, as Pierre Dupont wrote in his excellent article on the subject: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2086415

  3. Nick says:

    I suggest folks to read Dan’s comment that he left for Mark Hibbs’ article on how Iran can reconvert U3O8 back to UF6. Dan made a very appropriate observation. In particular, since I recently revisited Dan’s suggestions to read Mark’s earlier article as to why Natanz was not a clandestine site.

    Mark is a good guy with tons of detailed information that he has obtained for many years of work in this field, but it would be good for him not to make projections as to what Iran is capable of on the nuclear issue. We hear enough from Albright’s and his team and they have done enough damage to vilify IRI on the enrichment.

  4. Nick says:

    Here is a link to last week’s panel on Iran at the Carnegie:

    http://carnegieendowment.org/2013/04/25/iran-s-nuclear-ambitions-costs-risks-and-motivations/g0ac

    As usual the negative narrative from the usual suspects, for instance:

    * The cost of nuclear program: 11 Billion for Bushehr! Vaez is using funny math to come up with that number. Even if it is true, it pails the cost of two wars we have had to the tune of 2 trillion dollars or UK’s insistence in having new trident subs at the cost of 75 billion dollars to fight , who, Martians?

    * Vaez gives a convincing argument about how renewable energy sources could provide Iran with its all energy needs. Not true, Germany is struggling with their decision to cancel nuclear reactors. We are many decades away from relying on renewables to replace baseload sources of energy, as is the case for nuclear reactors, since they have the capability factor close to 90%.

    *Acton reciting IAEA reports about PMD, when the Agency’s job is not weapons inspection

    • yousaf says:

      I actually agree with Vaez that there are better alternatives than nuclear (nuclear as it is currently used, that is) — where I have an issue is that that advocacy applies to all nations, including the US: the former US NRC head recently said ALL US reactors should be shut because they are dangerous.

      So nuclear power (as it is done presently) is bad for *all* nations — not just enemies of the US.

      I mentioned this piece I had before but evidently worth mentioning again since in the 2nd part of it I go into why nuclear power is a poor choice (for everyone):

      http://www.foreignpolicy.com/articles/2012/12/18/radioactive_decay?page=full

      QUOTING:

      “A notable difference between the NPT and NPT 2.0 would have to be that the updated version would not encourage the propagation of nuclear power. Aside from a few spectacular disasters, nuclear power has been reasonably successful in most advanced nations — but only because of overt and covert government subsidies. However, these subsidies and the attendant political favoritism have in fact harmed the nuclear industry by perpetuating subpar and, in some cases, outright dangerous reactor designs.

      In the United States — the biggest user of nuclear power — the industry continues to receive enormous insurance bail-outs under the ancient 1957 Price-Anderson Act, which limits the liability of the nuclear industry in case of a major nuclear accident and artificially cheapens the price it pays for insurance. As a result, nuclear power itself appears artificially cheap, one among several reasons that it continues to displace renewables and other energy sources in the not-so-free-market. If the nuclear industry had to buy its own insurance on the free-market, nuclear power — at least the current incarnations of it — would be unaffordably expensive. The Nuclear Regulatory Commission reports that many nuclear suppliers have explicitly said that “without Price-Anderson coverage, they would not participate in the nuclear industry.” Another covert subsidy is that governments worldwide underwrite nuclear waste disposal.

      If an industry that has benefited from massive government research and development and other subsidies for more than five decades, and which creates staggering unresolved waste disposal problems, raises proliferation issues, and poses serious risks to human health, cannot survive without government support, then perhaps it should be left to its fate in the free market.

      And the same goes for all energy sources: removing subsidies and pricing all types of power right will make them all more expensive, which will encourage much needed conservation and innovation all-around. In fact, a truly free market may well come up with cost-effective and safer new nuclear power reactors, but not if the dodgy old designs simultaneously continue to be heavily subsidized. One thing that certainly does not make sense is to have a treaty to force-feed a flawed and dangerous Beatles-era technology to developing nations, as the NPT now does. Just as there is no treaty to send landline rotary phone technology to developing nations in the era of cell phones, there’s also no pressing reason to pass on outdated nuclear technology to non-nuclear-weapon states.

      Nuclear power advocates often claim that the imperative of climate change argues for “zero carbon” nuclear power. But life-cycle carbon emissions from nuclear power are far from zero: the uranium has to be mined, milled, and transported, and the plant itself has to be constructed and decommissioned, and the waste disposed of — all of which are carbon intensive steps. A study published in Energy Policy found that nuclear power emits roughly twice as much carbon as solar photovoltaic, and six times as much as onshore wind farms. And as the available uranium ore grades progressively decline this equation will only worsen for nuclear.

      So the current NPT provision that technologically advanced nations and the nuclear-weapon states provide nuclear know-how to lesser developed states could be augmented — or even replaced — in a NPT 2.0 by a clause encouraging the transfer of renewable energy and energy efficiency technology as well.

      The bottom line is that, although the NPT has done its job well for 40-plus years, it is already many years past time to critically examine its fundamental tenets to see if they still make any sense. Nuclear power is not the panacea it was thought to be back when cars had tailfins. And the states that have nuclear weapons — especially Russia and the United States — don’t have any need for their vastly bloated and hyper-expensive nuclear stockpiles.

      The 1960s-era NPT has been a swell ride, but the wheels are now coming off — we need to stop tinkering with the dangerous old jalopy and get a new, safer, ride.”

    • Cyrus says:

      In their report — which I have critiqued over at IranAffairs.com, Sadjadpur and Vaez make no distinction between “costs” of the nuclear program itself versus costs of the sanctions. On the $11 billion for Bushehr figure, their own report points out that over half of that “sunk cost” occurred prior to the revolution. In other words the Islamic Republic inhereted that sunk cost. This was a point that I believe Rafsanjani made when he signed the deal with the Russians to build the reactors. But in any case, what are Sadjadpur and Vaez suggesting by raising this figure? Re-building after wars is expensive, so what? Is Iran supposed to just give up all progress and development because it is expensive?

      • Nick says:

        Thank you for making that point. I was going to also add that Germany has kept about 2 billion dollars of Iran’s initial Bushehr project investment prior to IRI and never returned it, in violation of international contract agreements, no doubt.

        As for the nuclear energy, let me make some comments:

        * It is a misunderstanding of the facts that the earthquake directly caused the Fukushima disaster. Actually, the control rods came down and picked up energetic neutrons and stopped the fission process. It was the flooding of the tsunami that caused all the destruction and prevented the control room and the support pumps to keep the core cool. This was another mistake by Vaez. As far as I know there has never been an earthquake disaster that directly disabled a nuclear reactor. The chance of a tsunami for the Persian Gulf is much lower than Japan or other countries that face the Pacific ocean.

        * Uranium fission holds the most condensed source of energy as compared to fossil fuel; 1 gram of 235 produces as much electricity as 2.3 tons of coal. In terms of KWh, nuclear has the lowest rate, in par with coal.

        * Nuclear is the only CO2 free baseload available, reliance on renewables for baseload requires huge infrastructures to store excess capacity, during nights or calm days, which are not in place and will not be for decades.

        * R&D has to continue and find new ways to more efficiency burn left over uranium and eliminate long lived nuclear byproducts that could last 1000’s of years, that is a genuine problem.

  5. Solon says:

    A key argument against Iran’s pursuit of nuclear technology is that “If Iran gets nuclear weapons, others in the region will do so as well.”

    Yet, according to Yochi Dreazen, USA is assisting UAE to build a nuclear facility to support UAE’s lavish lifestyle. — http://www.nationaljournal.com/magazine/the-choice-on-nuclear-power-20120202

    “Talk of Middle Eastern nuclear energy typically sets off alarm bells in Washington, Jerusalem, and elsewhere, because ***a nation with a civilian program could theoretically become a nation with a nuclear weapon. ***The United States and its allies have slapped economic sanctions on Tehran to prevent such a thing; officials here and around the Persian Gulf hope that the Americans or the Israelis will launch air strikes to destroy Iran’s facilities before the year is out.

    The nuclear plant at Braka is a different story. The U.A.E. has already volunteered not to enrich uranium or reprocess spent fuel, the steps necessary to build a weapon. In exchange for this vow, Washington is giving technical advice, clearing the way for Emirati nuclear engineers to study at American universities, and allowing U.S. firms like Westinghouse to build Emirati plants. The International Atomic Energy Agency, which shares the American belief that Iran is building a nuclear bomb, says that the U.A.E.’s plans are transparent and civilian. The Braka plant, in other words, isn’t just a way to cut fossil-fuel use. It is meant to be an object lesson for Iran and every other country in the region: Come clean; if your program is verifiably peaceful, we will support you.

    The Americans who helped set up Braka hope that others are watching. The Emiratis, of course, are one target: Seeing how the international community accepts their civilian plan, they should never want to weaponize it. The Saudis are the more important target for this message. Iran is their enemy, and it could soon have a nuke. Now Saudi Arabia is planning its own nuclear program, and it will have to decide what kind. Tehran offers one model; Abu Dhabi, another.”

    The distinction Dreazen points to is rhetorical, not technical.

    • yousaf says:

      The Jordanians have found quite some U ore and they will not accept the “no fuel cycle” deal: they aim to enrich.

      The UAE case reminds me of Iran under the Shah — I wonder what the USG will do when the tyrant sheikhs there fall:

      http://www.foreignpolicy.com/articles/2013/04/26/why_the_sheikhs_will_fall?page=full

      • Dan Joyner says:

        A very interesting comment. And I do think it will be really interesting as pressure mounts in Saudi Arabia, Jordan, and the Gulf states, to get rid of the monarchies. There has for so long been such hypocrisy in US policy, particularly towards Saudi Arabia but also toward the gulf states, in being so favorable towards them and never breathing a word of criticism, even though from a human rights perspective things are as bad or worse in Saudi Arabia than they have been in Iran and Syria and Iraq pre-2003. But of course we have a long and sordid history (e.g. in Latin America) of picking friends because of what they can do for us and our interests, as we see them in a very short sighted way, in their region, and not because of the quality of their governments or treatment of their citizens.

    • Cyrus says:

      The UAE case is a “sui generis case unlikely to be replicated that creates a misleading impression about U.S. leverage over certain partners.” http://www.foreignpolicy.com/articles/2012/08/01/it_s_not_as_easy_as_1_2_3

    • Nick says:

      This is what happens when countries exit nuclear power generation without proper backup plans:

      (Reuters)…Japan’s utilities post losses due to continuing nuclear shutdown
      Seven of Japan’s regional utilities have posted combined losses of
¥1.6 trillion (US$ 16 billion) for the year ended March 31, marking the second consecutive year of such losses. The weaker yen (down 12% this year) has raised costs to import fossil fuels for electricity generation while most nuclear reactors remain shut down. The losses may lead to higher residential and business power rates or approaching the government for assistance, as the utilities look for ways to gain financial stability. Some utilities, including Tepco, Kansai and Kyushu have already responded with price increases for customers, which the government approved from May. Utilities are hopeful that reactors can be restarted by the end of September, following the publication of new safety regulations in July.


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