International Law and Nonproliferation

Back in June, I had a really stimulating discussion on the comment thread of a post by Mark Hibbs over at Arms Control Wonk. This is one of many great conversations I’ve had on the threads at ACW. I’ve long been grateful particularly to Mark Hibbs, who is one of the core bloggers over there, and who has been singularly important for many years through his contributions as a journalist and analyst on issues of arms control.  His posts are always enlightening, and his liberal comments policy allows for full and frank discussion of the issues by readers. That’s not a policy shared by all of the bloggers over at ACW, but it’s a policy I’d like to emulate here at Arms Control Law.

You can see the whole discussion and the original post by Mark here.

However, for purposes of this post, I have edited the conversation in order to focus only on the exchange I had with George Herbert on the topic of the role of international law in the context of the Iranian nuclear crisis specifically, and more generally in the entire issue area of nonproliferation.  I thought it was a frank, engaging, enlightening and (overall) collegial discussion, and I thank George again for taking the time to discuss the issue with me. I thought I would copy the exchange here because it really does delve into some fundamental and perennial questions about the proper role and contribution, and the limits thereof, of international law in the context of nonproliferation related disputes – especially ones as high profile and dangerous as the dispute over Iran’s nuclear program.

Just as an editorial note, while I have removed a few of the comments by others in the thread, I have preserved every word of George’s and my comments. You will in addition see one or two other commenters quoted/mentioned, which I couldn’t excise without making the conversation seem confusing.

So without further ado, here it is. I hope you find it interesting:

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George William Herbert | June 8, 2012

There is (again) an overly legalistic spin here.

Diplomacy isn’t just about international law, it’s about power and facts on the ground. Diplomats and scholars who focus on law to the exclusion of power or facts on the ground are doing the world and themselves a disservice.

The NPT and IAEA legally have a bunch of particular clauses, and a less formal power agreement (“You won’t build nukes, and we won’t stomp you arbitrarily”).

The legalism was intended in part to enable enough confidence building that the knowledge required to verify “You won’t build nukes” was part of the program. The IAEA basic treaty and particular additional protocols are rather heavily weighted towards that, if you know what you’re looking for.

Facts on the ground are that there’s a whole lot of circumstantial and more alleged evidence that Iran had a 1980s – 2003 active nuclear weapon design and technology program, that allegedly went cool (some ongoing tests but not organized program) after 2003. The IAEA and NPT are failing to provide confidence building or inspections (so far) to disprove or prove that.

The entire point of NPT and IAEA is to prevent people from cheating in ways that then lead to joint US-Israeli bombing campaigns and outright warfare. Iran’s not playing ball, and is playing the legalism card. It’s obviously in their best interest in both scenarios of “there’s a program (cool or covertly active) and we’re hiding it” and “we’re bluffing up a program as a geopolitical tool” (what Saddam’s Iraq did, to its ultimate demise).

The legalists are NOT HELPING.

There’s a point; the treaty should be more explicit, sure. It’s not like they’re wrong there. And IAEA is being politicized in the process. But they’re missing the bigger point, which is that a failure of confidence-building and Iranian cooperation here leads to war, not greater international cooperation and peace.

If you are providing Iran cover here, it’s not helpful. A number of commentators are. If your intention is to help provoke the situation to war, ok, that’s at least consistent behavior then. If you aren’t trying to provoke a war, approaching it purely legalistically from a bash-the-US-and-Israel point of view just encourages the upcoming war.

I would like to submit that it’s immoral to be in the latter camp. Your position doesn’t help Iran, the IAEA, or anyone else. Fixing the legal and treaty situation needs to be a separate thread from crisis management.

 

Dan Joyner | June 8, 2012

George,
I find your comments here to mesh very well with what the USG tends to do whenever they sense international law is not on their side in a dispute – argue its irrelevance. How many times did this happen during the Bush administration, regarding Iraq, Afghanistan, Guantanamo Bay, the list goes on. However, when the USG senses the law to be on their side, e.g. In WTO disputes, piracy and law of the sea disputes, diplomatic law disputes, they will wax eloquent with their righteous legal indignation and criticize the other party for their violations of vital principles of international law. This hypocrisy never ceases to tick me off. I am a law professor, and so I do tend to see things in a legalistic light. Though no more than you technical types tend to see things through a technical lens. But I do genuinely think that international law is important, among other reasons because it is a test of consistency and sincerity of policies, and creates a predictable playing field for states, which does tend to reduce distrust and miscommunications of intent. That is of course if international law is honored. In the case of Iran, I think international law plays an important role in exposing the politicized and ideological nature of the criticism of Iran and of the drumbeat to war. The primary reason for both is Israel’s perception of Iran as a threat to their security and regional power, and the wildly disproportionate influence that Pro-Israeli interests have in US politics. International law, in requiring objectivity and consistency, can expose such politicized, ideologically based aggression. In doing so, I sincerely hope that international law helps to avoid war in this case. Legal analysis certainly hasn’t caused the current crisis. All the players share blame for it, though in my opinion the US bears the most blame.
Shaheen, I can’t help disagreeing strenuously with your assertion that legal arguments supporting the Iranian position have been debunked. I have actually been impressed by how little solid legal analysis has been presented anywhere in defense of the US/Israeli/EU legal positions on the Iran issue. I conclude that no one has come forward because there really is no solid legal case supporting their positions, and they know that, and they are simply counting on their economic and military power to overcome the deficiencies in their principled/legal positions.

 

Johnboy | June 9, 2012

GHW: “The entire point of NPT and IAEA is to prevent people from cheating in ways that then lead to joint US-Israeli bombing campaigns and outright warfare.”

George, the entire point of NPT and IAEA is to dangle a carrot under the nose of member states i.e. if you sign this treaty and you abide by its rules then you get lots and lots of goodies for your nuclear program. If you don’t sign it or you refuse to abide by it then you get the cold shoulder.

That is the entire point of NPT and IAEA, and George is simply spouting nonsense when he claims that the role of both is to straight-jacket a.n.y.b.o.d.y so that there is no excuse for the USA/Israel to go aaround hitting that poor unfortunate soul with A Big Stick.

George, baby, there *is* no excuse for the USA/Israel to go hitting anybody with A Big Stick, and that is true regardless of whether (or not) that somebody has (or has not) signed this dinky little treaty.

Might does not make right.

Sorry if that offends you, but, there you are….

 

George William Herbert | June 9, 2012

Dan and Johnboy –

Johnboy seems to feel (I think) that the correct answer is to balance all three of legalism / international law, not going to war, and not having an Iranian nuclear weapon (please correct me if I’m wrong). Do you honestly think we can have all three?

What I want, personally, is to avoid both an Iranian nuclear weapon and a US/Israeli war against Iran. Any damage we can avoid doing to international law in the process is to be pursued, but those two goals are more important to me than legalities.

I would like both. If I cannot have both, I have a reluctant preference for avoiding the Iranian nuclear weapon. I put the law on a second tier at the moment.

I would like to know if you disagree that these are both strongly desirable, and if so, which you would individually reluctantly prefer if in fact a choice has to be made between them.

Dan, you are pretty openly suggesting that you feel that the whole case here is invalid somehow, that we don’t actually face this situation and hard choice. I understand that assertion, but I strenuously disagree that it’s reality. Even if you disagree that that’s the situation we’re in right now, I would like you to (for the sake of argument) answer my question as if that is the choice we face.

If you would put international law on the top tier, above avoiding a war, then that’s what I submit is legalism and at least arguably immoral. In the long run, we need international law and not rule by force, yes. But the long run is not today; power and diplomacy are still intertwined. If you refuse to understand or acknowledge it you’re setting up a falsely simplified model of the situation. It’s essentially a form of utopian diplomacy, which is unrealistic to the point of counterproductivity. That we should be going towards better behavior doesn’t mean that we can ignore power realities now.

 

Dan Joyner | June 9, 2012

George,
First, I’m glad to have this stimulating conversation with you. It’s only through such collegial exchanges that those with different viewpoints can at least try to understand each other, if not agree. I would also like to take this opportunity to thank Mark for providing us this forum. He is rare among ACW bloggers in allowing this kind of in depth discussion of non-technical matters.
To your points. I think I understand that you see the current situation as a choice between war and an Iranian nuclear weapon. And that you think demanding compliance by all sides with international law might lead to the Iranian nuclear weapon happening instead of the war. And that you think in fact the war would be preferable to the Iranian nuclear weapon happening. Thus, you think people like myself should stop giving Iran the aid and comfort of substantiating legal arguments. Do I have this about right?
Assuming that I do have this about right, I have to say that I do disagree with you in your basic assessment of the current situation and the assumptions you make about the future. I think that the situation we currently face is that Iran is likely developing, inclusive of past efforts and current efforts, a technical and industrial capacity to make a nuclear weapon. I think they are trying to get to the point at which they could make a nuclear weapon if they wanted to. When I consider that reality, I am simply not as shocked and full of fear as so many people in this country, including most of the arms control policy and technical community, appear to be. I see Iran reaching this capacity as an inevitable, and reasonably foreseeable occurrence, and I really don’t see why people are so afraid of it. I know all too well the arguments for why we should be afraid of it. But in the end I think all of that is either consciously or unconsciously us reflecting the concerns of the only country that has a legitimate claim to being threatened by an Iranian NW capacity – Israel. Somehow we have collectively internalized Israel’s fear and concern about Iran, and have begun to parrot it as our own. So much so that we have convinced ourselves of the objective truthfulness of that narrative and our own identification with it. I am personally just not that afraid of Iran having a NW capability. I do not believe that, were Iran to develop NW capability, they would instantly build a bomb and as quickly as possible lob it toward Tel Aviv. I know that most Israeli’s do actually believe this – I know this from long talks with a very good Israeli friend – but I think there is simply no convincing basis for this belief. I think that Iran’s government is too rational to do something so clearly failing a cost/benefit analysis for them. I think that when Iran does achieve NW capability, it will use that capability exactly as Israel uses its NW capability – to deter aggression against it, and to project its regional influence without using NW. To me, there is nothing any more evil about Iran doing this than there is about the U.S., France, India, Pakistan or Israel doing this. Do I understand why Israel is concerned about their regional power being diluted and their security situation being less stable? Yes. But is that a reason why the US and the EU should be freaking out about Iran achieving NW capability, so much so that we think war is our only option for dealing with it? No.
So, to summarize, I do not see the current situation as either war or an Iranian NW. I see the current situation as Iran inevitably moving toward having a NW capability, and that we in the West should stop freaking out about it and giving such ridiculous aid and enablement to Israel’s subjective concerns about its own security and loss of regional power. So to put it simply I see the current situation as neither war nor an Iranian NW, but rather as a progression toward an Iranian NW capability, in response to which there should not be a war.
We cannot stop Israel from going to war if that’s what they choose to do. But I think we should take ourselves out of the equation and let Israel make its choices on its own. If it chooses war, then it will bear the consequences of that war itself. If it chooses not to go to war, I think the sun will rise the day after Iran achieves NW capability and the world will go on much as it did before, if we allow it to.
So what about international law? I really don’t see it as an obstacle to a peaceful outcome of this situation, as I understand that you do. As I said before, I think the law helps all the parties to the dispute to see, if they will see, how valid from both a principled and moral perspective their positions are. If they would internalize those lessons, and not allow irrational ideology and politics and ego to govern their conduct, then I genuinely believe that peace is a more likely outcome than war.
But as I think Johnboy was saying earlier, the law doesn’t control what people do. It only tries to guide them to do what is most likely to result in peace. People are always free to disregard the law. But if they do, they are more likely to be convicted in the court of world opinion of having done wrong and having acted in a manner likely to result in war.

 

George William Herbert | June 9, 2012

Dan writes:

To your points. I think I understand that you see the current situation as a choice between war and an Iranian nuclear weapon. And that you think demanding compliance by all sides with international law might lead to the Iranian nuclear weapon happening instead of the war. And that you think in fact the war would be preferable to the Iranian nuclear weapon happening. Thus, you think people like myself should stop giving Iran the aid and comfort of substantiating legal arguments. Do I have this about right?

No, it’s more nuanced.

In order, I value all of:
1. No iranian nuclear weapons
2. No war (or serious violent conflict)
3. International law and norms

I value international law and norms in part because they build stable international relations and avoid long term conflicts. I value avoiding wars as killing people is wrong, it breeds more violence too often, and is often subverted by agendas other than the particular causus belli. I value avoiding an Iranian bomb as I fear that they are less amenable to stable deterrence WRT Israel, making a regional nuclear war likely, and it is highly likely that nearby non-nuclear nations such as Saudi Arabia would find the threat to them unacceptable, forming an even more escalating regional nuclear arms race and further exponentiating risks of nuclear regional war and nukes eventually leaking out to non-state actirs such as islamicist terrorists.

I believe both 1 and 2 are simultaneously achievable. That has already entailed scope creep for the IAEA and NPT. To some degree we are compromising on 3 already and may need somewhat more to get 1 and 2. As a separate long term issue the NPT and IAEA need strengthening to work effectively, and bending things now may harm this effort, and I am not blind nor unconcerned about that result.

My concern is that legalistic focus on 3, pushing the NPT and IAEA back “into line”, plays directly against solving both 1 and 2 for real. This happens in two significant ways:

One, it undermines using IAEA as a multinational negotiator and inspector which can both build western confidence that Iran has shelved the earlier apparent / asserted weapons program. There is no other evident path to a mutually agreeable confidence building intermediary.

Two, it promotes Iran’s legalistic intransigence and pushes them away from accepting confidence building paths forwards. You and Iran have points that international laws and organizations have been politicized and bent, but they have to move past that and come clean about the historical program and confidence build to convince us and Israel that there is no longer an ongoing weapons program. Without confidence building, it is blindingly obvious now that risk of war is very high. Israel has clearly telegraphed that absent convincing confidence building that the weapons program is shut down, they will go it alone if the other western powers do not; The US has clearly telegraphed that we’re more patient but willing to go to an attack eventually.

If this round of talks outright fails on confidence building there’s high risk Israel goes before November; if they don’t and Obama loses the election there is high risk he goes before January so he doesn’t leave it to Romney un-resolved. If obama wins and Israel stays stayed the situation could drag on a year.

In my opinion and estimation, therefore, if you place 3 ahead of 1 and 2 you only get a war and possibly, if it’s not a decisive war, Iranian nukes in 3 to 4 years anyways, and general nuclear proliferation breaks out in the gulf. I find this at least offensive and borderline horrific. Too many of the nightmare scenarios in which the NPT breaks down generally start like this.

I don’t see promoting international law first and only here in any practical manner doesn’t hamstring the necessary focus on confidence building, needed to offer a non-war non-nuclear-Iran path forwards. The alternatives seem implausible.

I would rather accept bending international law in a way that gives us that potential intermediary through which a non-nuclear non-war scenario can work.

I disagree that Iran weaponizing is no big deal; even if it was, Israel disagrees and is willing to go to war over that. Your “well, that’s their problem” seems immorally to just be chosing war, that we both admit will thence happen, to give the US a more morally neutral sidelines view of the carnage. It’s extremely going to happen even if we say no. We can fight against that outcome with negotiations and diplomacy and sanctions and concessions, and find the confidence building peace path. You seem to explicitly not want that, for a temporary and tenuous moral high ground.

As long as the peace path is possible, imho, we owe everyone all the effort we can expend to make it work.

 

Dan Joyner | June 9, 2012

George,
You make some good points worth considering. But I think you, and the USG, are still making some assumptions that are not necessary and that are themselves contributing to both a war and a NW-Iran outcome. If we should, as you suggest, step back from a focus on international law and look primarily at what would pragmatically help to achieve a non-war, non-NW-Iran outcome, shouldnt we stop giving Israel a free pass with regard to its nuclear weapons program and its bellicose behavior? That tends to be a taboo topic in this country, but its an ongoing assumption underlying US policy that I think should be reconsidered if we are really genuinely serious about trying to be pragmatic in achieving a good result in the ME.
Why have we for decades given Israel a free pass to have a nuclear weapons program, and to say and do basically anything they think they should in the name of their security? As you know, we have not only turned a blind eye to this behavior and these facts, but we have positively facilitated and aided Israel in every way we possibly could. And we approach any issue involving Israel by taking for granted the validity and acceptability of Israel’s concerns and actions, and simply say to the other parties involved that they must do whatever it is that Israel wants them to do. And when Israel makes military threats, we dont try to reign them in, as we would any other country in the ME, rather we take it for granted that they will make good on those threats, and we warn the potential targets to stop doing whatever it is that is making Israel make those threats, no matter what the underlying facts and principles would objectively dictate.
Its alot like having a paranoid friend that constantly makes threats to his neighbors over anything he thinks is threatening to him, whether it reasonably looks that way from the outside or not, and he has a gun himself. And our approach is to warn the neighbors that they had better do whatever our friend says, no matter what it is and no matter how unreasonable his demands, or he will attack them with his gun (and BTW we might join him in that attack with our guns), including the neighbors not getting their own guns, because that would really set him off.
Wouldnt anyone say that the more objectively reasonable approach in that situation would be to try and help your friend overcome his paranoia, convince him to stop threatening his neighbors, and give up his own gun before he hurts someone with it? Wouldnt that in turn predictably go a long way toward convincing the neighbors not to get their own guns in order to defend themselves and deter your friend from his aggressive behavior?
This metaphor is directly relevant to the Iran crisis. Why does Iran want NW capability? Surely a huge part of the answer is Israel’s NW capability. And why has the situation reached the current crisis level? As I outlined earlier, its primarily due to Israel’s concerns about its security and regional power, and its threats of aggression against Iran if the West doesnt do more to stop Iran’s nuclear program.
If we are really serious about wanting a non-war, non-Iran-NW outcome, then why dont we start turning the screws into Israel to come clean about its NW program, and to dismantle it, just like we are doing with Iran? And why dont we also get tough with Israel about its threats of aggression against Iran? We all know that if we really did this, it would have a hugely positive potential effect on all aspects of ME peace efforts. And it would very likely slow or stop Iran’s push for NW capability.
But we will not do this very practical thing because of the history and ideology and politics that we all know about.
But again, the point is that this is an unnecessary continuing assumption underlying US policy that is contributing to a war, NW-Iran outcome. This fact makes US rhetoric about practicality and doing whatever it takes to get a good outcome, including bending international law, come off as disingenuous and unbelievable.

 

George William Herbert | June 9, 2012

Dan writes in part:

This metaphor is directly relevant to the Iran crisis. Why does Iran want NW capability? Surely a huge part of the answer is Israel’s NW capability. And why has the situation reached the current crisis level? As I outlined earlier, its primarily due to Israel’s concerns about its security and regional power, and its threats of aggression against Iran if the West doesnt do more to stop Iran’s nuclear program.
If we are really serious about wanting a non-war, non-Iran-NW outcome, then why dont we start turning the screws into Israel to come clean about its NW program, and to dismantle it, just like we are doing with Iran? And why dont we also get tough with Israel about its threats of aggression against Iran? We all know that if we really did this, it would have a hugely positive potential effect on all aspects of ME peace efforts. And it would very likely slow or stop Iran’s push for NW capability.
But we will not do this very practical thing because of the history and ideology and politics that we all know about.
But again, the point is that this is an unnecessary continuing assumption underlying US policy that is contributing to a war, NW-Iran outcome. This fact makes US rhetoric about practicality and doing whatever it takes to get a good outcome, including bending international law, come off as disingenuous and unbelievable.

The Israeli nuclear weapons are not a credible cause of the Iranian nuclear weapons program. In historical order, the Iraqi weapons program and Iran/Iraq war, and US antagonism, then fear of US regime change efforts after 9/11.

Iran sees Israel as an enemy, but the distance makes it a non-existential threat to Iran. They oppose Israel and arm its enemies, and can use holding Israel at risk with ballistic missiles and eventually possibly nukes as a deterrent threat to US interventions and regime change efforts. Of course, US regime change efforts spiked in response to their nukes…

Israel, on the other hand, faced multiple genocidal existential threats, and went nuclear to forestall them. They were paranoid (and still are) but really did have people out to exterminate them. Again.

Until Iran’s nuclear behavior, one could have argued that Israeli nukes were now unnecessary, as the genocidal threat had passed. But Iran brought it back. It will be generations before that is viable again.

Israeli / Iranian conflict was low key and not aimed at Iran regime change until credible evidence of Iran’s nuclear program surfaced.

You are implicitly and somewhat explicitly asking for and asserting there should be more symmetry here. Perhaps morally yes, but from a historical and real point of view that’s not credible and doesn’t reflect history. Geopolitics doesn’t work by morality. It should be instructed by it – war and genocide bad – but playing geopolitics through an overly moralistic lens fails. Iran is not playing by international law here either. We’ve let them tiptoe up to a big red line in the sand. The symmetry and legalism the situation can tolerate is decreased by proximity to that line.

 

Dan Joyner | June 9, 2012

George,
You seem to have done a bit of a rhetorical 180 here. You were the one to start making accusations of immorality at the legalists in your first comment on this subject. You actually made that charge a couple of times, at which I admit I bristled a bit. Now you say that morality doesnt really matter when you come right down to it, only power and the facts on the ground and what the US wants to have happen. You see, this is what I was talking about from the beginning. When the USG thinks the law is on their side, theyll argue law. If they cant argue law, theyll argue morality. When the moral arguments are challenged, theyll just fall back on power, and realism, and “do it because we say so or we’ll bomb you.” So perhaps we have now finally stripped away the pretenses. The US will take Israel’s side in any dispute, up to and including using military force, not because of law, or principle, or morality, but because of ideology and politics and a one-sided view of history that sees only the narrative of Israel’s troubled past, but not the narrative of the troubled past and security interests of other states. In addition to the Israeli nuclear program, another core reason for the Iranian NW program was the Iran-Iraq war and the realized fear of genocidal acts by Saddam Hussein. Again I put it to you, is Iran’s NW program any more evil and deserving of eradication than Israel’s, or Pakistan’s, or America’s? But that doesnt matter, as you conclude. We will take Israel’s side. We will do everything in our power to safeguard Israel’s security and regional power. We will not make Israel change its policies one iota, and we will not compromise ourslves in the process. We will give commandments to Iran and we will back up those commandments with all the implements of leverage we have to make them capitulate and comply. Full stop. This reminds me once again of Stephen Walt’s excellent post at FP about how arms control has changed, in just this way:
http://walt.foreignpolicy.com/posts/2012/03/29/whatever_happened_to_arms_control

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4 Comments on “International Law and Nonproliferation”

  1. Prof. Joyner, I appreciate that you’ve taken the time to go over this stuff and make it beter understood for the rest of us who are not international law experts but (and this may not be relevant to the particular discussion from Arms Control Wonk that you’ve reproduced here) I have to nit to pick regarding another article you wrote about the UNSC as a “legal hegemon” in the Georgetown journal. You phrase the issue of Iran’s right to enrichment in the conditional tense — “IF” Iran’s right to enrichment can be recognized as jus cogens — but I’ve raise my points here: http://www.iranaffairs.com/iran_affairs/2012/07/unsc-as-legal-hegemon.html. In short: “The question therefore isn’t whether uranium enrichment itself is a peremptory norm and fundamental right of states, which is how Joyner frames the issue, but whether the UNSC’s selective and arbitrary approach to deciding what countries do and what countries do not have that right, constitutes a violation of the principle of Sovereign Equality.”

    I would appreciate your comments on that point -thanks.

    • Dan Joyner says:

      Hi Cyrus,
      Thanks for your comment and query. I have read your commentary on my Georgetown piece. Thanks for recommending it to your readers. On the whole, I dont think that you and I disagree very much at all. It sounds like we are just taking different views about which would be the stronger legal argument on which to base a claim that the UNSC has overstepped its authority in some aspects of its decisions regarding Iran’s nuclear program. You are of course right that soverign equality is a fundamental principle of international law. However, Chapter VII of the UN Charter does by definition give the UNSC the power to make decisions that set states on unequal legal footing. For the Council to have any power in addressing threats to interntaional peace and security, it must be able to do things like authorize economic sanctions, which definitionally changes the legal context in which the targeted state exists. SImilarly, Article 42 of the Charter explicitly conceives of the UNSC authorizing military force, which is of course generally prohibited in Article 2(4). But if the UNSC determines there is a threat to international peace and security, it can make the targeted state unequal by creating an exception to the legal protection in normally enjoys through Article 2(4). So I dont think one can argue that UNSC actions are ultra vires simply because they selectively change the legal status of the targeted state in comparison to other states. That is preceisely the point of the UNSC having its Chapter VII powers. However, you also use the word arbitrarily. That, to my mind, is an invocation of some concept of due process obligation on the part of the UNSC. An obligation to render its decisions according to some rules of substantive and/or procedural due process. I would be interested in your or anyone else’s comments on this point, but I cant think off the top of my head of a provision of the Charter, or of a rule of general international law, that would impose some justiciable due process obligation on an organ of an international organization. I will gladly admit to being wrong on this point if someone can provide evidence of such a rule. There are certainly due process standards in human rights treaties, but those are not applicable here. In any event, the breadth of the power the UNSC has as described in Article 39 of the Charter makes it difficult to argue that a decision the Council makes, determining a threat to international peace and security, and acting on it, is an arbitrary decision. Now, could you argue that with regard to a domestic organ of government, like for example some new regulation adopted by the EPA? Of course you could, and that happens all the time. But thats because there are rules of administrative law that govern how agencies are supposed to come to their decisions. Theres just no analogous proceduraly rules in the Charter. So thats why we often say that the council has competence de la competence – the authority to determine when it has authority. I dont think that is a prudent way to structure the UNSC’s authority, but in light of the wordking of Article 39 and the absence of any Charter provision or rule of general international law circumscribing the UNSC’s authority to determine threats and decide on what measures to take in response to them, I think it will be difficult to argue that the UNSC has acted ultra vires on a procedural or even substantive due process basis.

      All this, then, is I suppose to show why I think the stronger legal basis for challenging the validity of the UNSC’s actions regarding Iran’s nuclear program, would be to argue that its powers are substantively circumscribed by a rule of jus cogens – a rule of general international law from which no derogation is permitted. I think I put that point in a conditional mode in the passage you cite in my article, among other reasons because I think theres alot we really dont know at present (or havent decided upon) about the nature of the rights of states in international law. Its something that I plan to write an article about with my friend Marco Roscini soon. We need to know (or decide) more about the juridical nature of the rights of states, and whether they, or some subset of them, could constitute a substantive limit on the power of the UNSC to act.

      • Cyrus says:

        Thanks for taking the time to reply. It seems to me that while procedural due process rules may not exist for UNSC resolutions, nevertheless even under Chapt VII the UNSC is bound by the principles enunciated in the charter and jus cogens which require that there be some valid substantive reason for disparate treatment metted out to nations. I think we can agree for example that the UNSC cannot declare that everyone named Bob should be executed, etc. but is bound by some legal limits if not in procedure then in substance. I can’t imagine that the Charter intended to create an institution that had no boundaries to its authority.

  2. edwin says:

    “The entire point of NPT and IAEA is to prevent people from cheating in ways that then lead to joint US-Israeli bombing campaigns and outright warfare. Iran’s not playing ball,

    If you aren’t trying to provoke a war, approaching it purely legalistically from a bash-the-US-and-Israel point of view just encourages the upcoming war.

    What I want, personally, is to avoid both an Iranian nuclear weapon and a US/Israeli war against Iran. Any damage we can avoid doing to international law in the process is to be pursued, but those two goals are more important to me than legalities.

    I value avoiding an Iranian bomb as I fear that they are less amenable to stable deterrence WRT Israel, making a regional nuclear war likely, and it is highly likely that nearby non-nuclear nations such as Saudi Arabia

    You and Iran have points that international laws and organizations have been politicized and bent, but they have to move past that and come clean about the historical program and confidence build to convince us and Israel that there is no longer an ongoing weapons program. Without confidence building, it is blindingly obvious now that risk of war is very high. Israel has clearly telegraphed that absent convincing confidence building that the weapons program is shut down, they will go it alone if the other western powers do not;”

    Taken from various parts of George Herbert’s posts.

    You said “When the USG thinks the law is on their side, theyll argue law. If they cant argue law, theyll argue morality. When the moral arguments are challenged, theyll just fall back on power, and realism, and “do it because we say so or we’ll bomb you.” So perhaps we have now finally stripped away the pretenses.”

    Yes that is it, but I want to make it clear. Israel is not a signatory so why are they so important? It looks from Herbert’s post that the world evolves around Israel and its wants. His comments that it is up to the NPT to prevent a non-signatory country from attacking a signatory country by penalizing he signatory country does not make sense to me.

    My feeling is, I am glad that he brings up good points, but I don’t feel that he brings up good arguments. I feel that he is arguing in bad faith – my side no matter what. I don’t even get the impression he is opposed to nuclear weapons so much as nuclear weapons of all countries except Israel.

    “to convince us and Israel that there is no longer an ongoing weapons program” Israel – I am not any sort of expert on the legalities of international law, or nuclear weapons, but this bit is stunning to me. Why do we need to convince Israel of anything at all? What business of Israel is the NPT anyway? They oppose it. They have violated the spirit of it by building their own nuclear weapons, and not only building their own nuclear weapons but have done so in a way that is not transparent. It also looks like they may have transferred the technology for building nuclear weapons to Apartheid South Africa. (http://www.guardian.co.uk/world/2010/may/23/israel-south-africa-nuclear-weapons) I find it difficult to imagine a more thorough repudiation of NPT than what Israel has done.

    Herbert would probably respond with something about avoiding nuclear war – a non-sequitur (perhaps extremely important, but still a non-sequitur). It is not the job of the NPT to put forward Israeli foreign policy and it is not the job of the NPT to placate [] Israel that will destroy Iran if it does not do as Israel tells it to.


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