A Whole ISIS Report Devoted to Little Ol’ Me

See the piece here.

It’s such a thrill to see so many of my detractors gathered together in one place. As an academic, there is in many ways no higher honor than to have your work perceived as so significant, relevant and influential, that it merits the energies of so many to respond to it. So I thank the authors and endorsers of this report for the high compliment they have given me in producing it. It’s kind of like having had a symposium devoted to my work – to which I wasn’t invited. Well, let me now offer my contribution to the symposium.

I could of course begin with a discussion of who each of the authors and endorsers of the report are, their varying academic qualifications (two of the three authors are not lawyers, and the third is not an international law expert in my opinion), and the biases they likely bring to the subject because of their past, present and likely future ties to governments and to the IAEA itself. But I won’t do that.

I could also, of course, mention again how many positive reviews and endorsements my work has received, including in peer-reviewed journals and in the international legal scholarly community generally. All this of course can be gleaned from my C.V.

All that such a discussion really does, however, is reinforce the point that on these issues there are many people who agree with me, and some who don’t. That’s going to be true of any interesting, important, high profile issue of academic debate, and so it should come as no surprise that it’s true here.

I’m happy to let the analysis and arguments that I’ve made in my books and law review articles, in my op-eds – including the ones presently proceeding specifically on this topic over at the Bulletin of the Atomic Scientists as part of an invited Roundtable – and here on ACL, stand for themselves in the eyes and judgments of readers. I’m confident, as I always have been, that serious experts in international law, and people who understand the role of international organizations in the international legal system, will agree with my assessments of the relevant sources of law.

To be honest, I don’t see a lot in this new piece in terms of actual legal arguments that haven’t been made before in response to my work, particularly over in the BAS Roundtable by Ford and Persbo. And I’ve already responded to them there, with references to my original post here on ACL. So I don’t think there’s much new to respond to here in terms of substance. It does of course have Albright’s nastiness of tone, which one can spot a mile away.

But I would offer a few thoughts on this new iteration of those arguments.

First, I would note the weakness of the assertions made in this piece attempting to legally justify the IAEA’s inquiries into possible military dimensions of Iran’s nuclear program. I of course wrote on this issue some time ago here. I see no persuasive legal arguments offered in this piece that would challenge my conclusion that the IAEA lacks the authority to investigate and to assess weaponization related activities in Iran.

Second, so much of the text of this new piece is devoted to chronicling IAEA practice and statements which imply that the IAEA thinks it has a legal mandate under the CSA to investigate and assess both the correctness and completeness of Iran’s declaration – i.e. to investigate and assess whether there are undeclared fissile materials in Iran. I’ve never argued that the IAEA doesn’t think they have this authority. In fact, their statements and actions implying that they think they have this authority, are precisely what led me to write on this issue in the first place.

But just because an international organization asserts a legal authority, doesn’t mean that it actually has that legal authority. This is analogous to domestic governments who assert that they have certain legal authorities to act, only to have those assertions authoritatively contradicted by courts who strike down those actions as unconstitutional. Similarly here, the IAEA is bound by the limits of its authority in its Statute and in its safeguards agreements, and its simple assertions that it has certain authorities in excess of these textual limitations, do not serve to effectively overcome those limitations. Actions by the IAEA in excess of its authority pursuant to its international legal constitutive sources, are just as ultra vires and therefore invalid, as are the unconstitutional actions of a domestic government. An objective assessment of the IAEA’s foundational legal sources, using proper international legal interpretation, is necessary in order to determine whether the IAEA is acting within its authority. This is what a court would do if it were to be properly seized of the matter.

Third and finally, the IAEA in CSA Article II has the mandate to ensure safeguards are applied in the state party, subject to the terms of the CSA, which only give the Agency certain limited investigative authorities. The IAEA has over time come to consider that the terms of the CSA, and the investigative tools given to the Agency in the CSA, aren’t sufficient for it to make the determinations required of it in CSA Article II. The IAEA now considers that, in order for it to be able to make these determinations, the CSA state party must provide the IAEA with cooperation in its investigations, above and beyond the level of cooperation required of the state party according to the terms of the CSA, including through the signing of a separate and additional treaty, the Additional Protocol. If the CSA state party doesn’t provide this cooperation above and beyond the terms of the CSA, the IAEA thinks that it can still apply what it considers to be its mandate for assessment under the CSA, and by reference to this mandate determine that the state party is in noncompliance with its safeguards obligations – even though as far as the state is concerned, it is doing everything it obligated itself to do according to the terms of the CSA, and is providing all the procedural and substantive cooperation it agreed in the CSA to provide.

Basically, the IAEA has taken the view that it can unilaterally change the obligations of cooperation that states are under pursuant to a CSA, to obligate the CSA state party to give the IAEA increased but unspecified investigative and assessment tools, in order to enable the IAEA to make the determination that there are no undeclared fissile materials in the state party.

And therein lies the problem. The IAEA cannot unilaterally change the obligations of cooperation that states are under pursuant to the terms of the CSA. Instead of realizing this fact, and working within the limits of its existing legal authority and the existing legal obligations of Iran, the IAEA has instead insisted on applying pressure on Iran to cooperate above and beyond the terms of its CSA, and has maintained that until Iran provides this extra cooperation, the Agency will continue to find that Iran is in violation of its safeguards obligations – even though Iran has been providing the procedural and substantive cooperation it agreed to provide according to the terms of the CSA, the only safeguards agreement currently in force upon Iran.

It’s basically a case of one party to an agreement unilaterally trying to change the rules of the agreement, and alleging that the other party is in breach of the agreement if they don’t abide by the new rules.

So this has essentially produced the standoff that we see reflected in IAEA DG reports on Iran. The IAEA insisting that it be given more investigative cooperation by Iran than that which Iran is required to provide in its CSA, Iran refusing to provide that additional cooperation, and the IAEA maintaining that if Iran doesn’t give that additional cooperation, the IAEA will continue to determine that Iran is in noncompliance with its safeguards obligations.

The IAEA is simply wrong in doing this, and is aggravating the crisis regarding Iran’s nuclear program through its attempts to act ultra vires its legal authority.

ME WMD Free Zone Conference Will Not Be Held In 2012, No Revised Date Set

I just wanted to bring this important development forward to the top of the list. As a number of commenters have pointed out in the comments to my related post a couple of weeks ago, it’s now official that the ME WMD Free Zone conference that was agreed in the 2010 NPT RevCon Final Document to be held in 2012, will not be held in 2012, and there appears to be no revised date set. I recommend to readers the statements from various governments on the matter, which have been shared in the comments section of the earlier piece. I’m hoping to get one or more commentary pieces on the blog on this development and its implications, by ME officials or area specialists in the coming days. This is a very significant and unfortunate development that bodes ill for the future of the NPT Review Conference process.

New Contributions to BAS Roundtable [UPDATED]

I just thought I’d note that there have been two additional contributions so far to the Bulletin of the Atomic Scientists Roundtable involving Chris Ford, Andreas Persbo, and myself.

Both Chris and I have published contributions subsequent to the initial ones by each author, and this next Monday Andreas’s next piece should be up. [UPDATE 11/26: Its now up. Andreas seems to have given up on legal analysis entirely at this point, and now tries to support his arguments with the assertion that “Law is decided by policy, and policy is often determined by experience.”  Wow.  I don’t even know what that’s supposed to mean, but Andreas seems to have left the building of proper legal interpretation and argumentation. Further, somehow Andreas doesn’t understand that my statement that the IAEA DG has “consistently confirmed that all safeguarded material in Iran is currently in peaceful use” is correct. I said “all safeguarded material,” meaning all material that Iran has declared and that is therefore under IAEA safeguard.]

Have a look at Chris Ford’s piece published just yesterday.  Don’t worry – I’m preparing a crushing reply. It will be published not this coming Monday but the next (December 3).

Did you notice in Ford’s quotation from the CSA in Article II that he conveniently left out the phrase “in accordance with the terms of this agreement”? That omission is very telling (and not a little ironic, as he is at that point castigating me for rendering an interpretation inconsistent with the text of Article II), and therein lies his interpretive error.
He and Andreas in their pieces interpret selected terms from Article II, but omit others. And they completely disregard the entirety of the rest of the treaty, which provides in detail the agreed processes whereby the IAEA is to carry out its Article II mandate. In doing so, they ignore the treaty context of the terms they do discuss, which is a mortal sin against proper treaty interpretation per VCLT Article 31. Through the clause Ford omits, Article II explicitly makes the IAEA’s mandate subject to these agreed procedures, and these procedures alone.
If Ford’s interpretation were correct, and the IAEA’s mandate was unbound by these agreed procedures in the rest of the CSA, it would mean the IAEA would have the authority to do anything it wants to inside Iran, and require Iran to jump through any evidentiary hoops it feels necessary, in order to satisfactorily verify the absence of undeclared materials in Iran (i.e. prove the negative). That’s a completely untenable reading of the CSA – no state would ever agree to that – and that’s why Article II specifies that the IAEA’s mandate is subject to the terms of the agreement. Those terms specify the process for applying safeguards, which essentially involves a declaration by Iran, and the IAEA’s verification of the correctness of that declaration. The Additional Protocol, of course, goes further in providing for an expanded scope of agreed processes for investigation by the IAEA. But we are not dealing with the AP in Iran’s case. UNSC decisions do not change this fact. I made all of these points in my original ACL post, so it’s not new thinking.
Basically, both Ford and Persbo clearly wish that the AP was in force in Iran’s case, and they are straining to try and interpret the CSA to do what the AP would do. But the AP isn’t in force in Iran’s case, and nothing changes that fact. And torturing the interpretation of the CSA only de-legitimizes the CSA in the eyes of developing states.

Albright Wrong on Legal Analysis Again

See this ISIS report by David Albright, just posted today.  It’s a rundown of “facts” about two companies that may have worked with an Iranian defense organization called the Physics Research Center (PHRC) in the 1990’s, and whose work with the PHRC may have aided in the PHRC’s obtaining items from abroad that may or may not have violated other countries’ export control laws. Yawn. And from these facts there can, of course, be no other conclusion than the one reached by Albright that “the PHRC was part of a chain of secret organizations, the long-term aim of which was to lay the basis for nuclear weapons development.”

Sitting here in 2012, it’s hard to see how a study like this of possible export control violations by Iran 15-20 years ago is of any real relevance and usefulness to the current set of legal and diplomatic issues regarding Iran.

But as a legal matter, I take issue substantively with David’s conclusion, which is:

More generally, the IAEA needs to continue investigating the PHRC. It should insist that Iran answer questions derived from PHRC procurement information as part of the IAEA verifying the completeness of Iran’s declarations under its comprehensive safeguards agreement. The IAEA has the legal mandate to do so and the international community should support this effort.

Apparently David just couldn’t resist making another legal assessment, even after our pointed conversation about his doing so a while ago.  Well, his assessment is just as wrong on this outing. Currently, the IAEA does not have a legal mandate to assess the completeness of Iran’s CSA declaration. Only its correctness, as I’ve been explaining in my contributions to the current Roundtable at the Bulletin of the Atomic Scientists site,  and as I discussed in greater detail in a previous post here .  

So whatever the PHRC may or may not have done back in the 1990’s, it’s ancient history now and irrelevant to, and merely a distraction from, the real current issues regarding Iran. And the IAEA does not in fact have the authority to investigate it. Wrong again, David.

The UN Security Council Should Impose a Final Legal Status on the Occupied Territories

This post is a follow-on from my recent post regarding the postponement of the Middle East WMD Free Zone conference.

The ME WMD FZ program is only one aspect of the overall set of arms control issues facing the Middle East. And of course, it’s an attempt to try and address these overall problems. But surely, like so many of the other international security issues facing the region, and by extension of significant interest and influence the rest of the world, these problems would be by far most effectively addressed if there was a final and permanent solution to the Israeli-Palestinian crisis which has been simmering since 1948.

Listening to the news this morning and hearing about the fresh round of rocket attacks from Gaza into southern Israel, and the responsive missile attacks into Gaza by the Israeli military, put this into my mind.

I think it’s time for the UN Security Council to step in and act under Chapter VII to legally determine the boundaries of a new Palestinian state, consisting of the West Bank (bordered at the 1949 Green Line), and Gaza, along with a sui generis legal solution for connecting them into a sovereign state, and a sui generis international administration or partition of Jerusalem.

At the moment there is total deadlock in the diplomatic process that has been laboring on between Israel and the Palestinian leadership for decades. And now with the Palestinian leadership divided, there is essentially no prospect for meaningful progress on a negotiated solution between the parties. And yet, the continuing situation of one state, Israel, and two occupied territories – a situation begun in 1967 – is gravely offensive to many principles of international law and human rights. And as the most recent violence in and around Gaza demonstrates, it is a continuing source of armed violence between the two sides, and comprises the most divisive international security dilemma in the world, the influence of which underpins most of the security issues facing the region, with serious implications for the rest of the world as well.

If ever there was a situation of a “threat to the peace” entitling the Security Council to act through its Chapter VII powers “to . . . restore international peace and security,” surely this is it.

And it’s not as if there is no precedent for UN involvement in this situation. As is well known, the UN General Assembly in 1947 adopted Resolution 181 which comprised a partition plan for the previous British mandate territory of Palestine, dividing it into two independent Arab and Jewish states. The reasons for UN involvement in this situation included prominently the fact that the territory in question was not the sovereign territory of any state, but rather a part of the post-WW I mandate system.  Thus, the external involvement of the UN was seen as necessary to resolve the very sensitive question of how the status and organization of the non-sovereign territory should be determined.

I think the same consideration applies now. The West Bank and Gaza are not Israeli sovereign territories, but have since 1967 only been under the military administration of Israel. So it would not violate any principle of Israel’s sovereignty for the UN Security Council to act in the way I’ve proposed. The ICJ in its 2004 advisory opinion on the West Bank wall made it clear that Israeli settlements in the West Bank are illegal, and the court consistently used the 1949 Green Line as the legal determination of the boundaries of the West Bank occupied territory. So from a legal perspective, the situation is clear that the entirety of the West Bank east of the Green Line is not the sovereign territory of Israel. The West Bank and Gaza are occupied territory, as the court made clear, the sovereign title to which is and has been disputed for decades.

So doesn’t this situation just scream out for the UN Security Council to do the job it was mandated to do in the UN Charter, and respond to this most serious ongoing threat to international peace and security, which it alone can resolve, by determining that these occupied territories constitute a Palestinian state, thus imposing a final legal status on the territories, and hugely contributing to a solution to the Israeli-Palestinian crisis?

I think from a legal perspective, this is clearly legally justified and within the authority of the Security Council, and from a prudential perspective is so obviously what the Security Council should do.

So why don’t they do it? There’s one reason, and one reason alone, in my opinion. And it’s that the United States, which has a veto on all decisions of the Council, will not allow it to happen. I’ve written before about the undue influence of pro-Israeli political groups in domestic US politics. This influence and the general bias that the US has had towards Israel for decades, has led the US to veto almost all resolutions in the Security Council that would be in any way contrary to Israel’s perceive interests. And at the moment, the US still apparently thinks that it’s in Israel’s interests to allow the status quo to continue, and so it won’t allow this obviously sensible intervention by the UN Security Council to take place.

Israel, of course, doesn’t want the UNSC to take such action. My sense, bolstered by the ICJ’s findings in its 2004 decision, is that Israel is holding out for more advantageous terms, territorially and otherwise, for itself in any final status agreement than it would get through Security Council intervention per the proposal I’ve made. So I’m sure Israeli officials have made it clear to their US counterparts that they are not in favor of any outside UN intervention, and that this will undoubtedly work a continuation of the US policy of vetoing any meaningful UN Security Council involvement in the crisis.

To me, all this means is that the US is an accomplice to every violation of international law committed by both sides – Israeli and Palestinian – in this ongoing human rights debacle, because it won’t allow the one thing that might actually meaningfully address the underlying problems that give rise to the continuing violations.

Middle East WMD Free Zone Conference Likely to be Postponed

This is not good.

The NPT regime is at a fragile and sensitive moment for a number of reasons, but none more important than the failure of NPT parties to meaningfully progress the program of a nuclear weapon free zone in the Middle East.

The decision by NPT member states on whether to extend the NPT indefinitely in 1995 was not at all a foregone conclusion. Nuclear Weapon States were generally for it.  Many NNWS developing and developed states, however, had serious concerns, particularly regarding Nuclear Weapon States’ track record on implementation of NPT Article VI, and regarding the situation in the Middle East.

The final decision to extend was based upon a package deal of adoption of a set of principles and objectives, and a resolution on the Middle East which called on all states in the region to join the NPT, and further called on them to take practical steps towards the establishment of a WMD free zone in the Middle East.

In 2010 the Review Conference  adopted a Final Document by consensus, which included another Middle East resolution, specifically calling for a conference by the end of 2012 on the establishment of a Middle East WMDFZ.

I think it’s important to understand that many Middle Eastern and other developing states saw this Resolution in 2010 as a vital part of the bases on which they agreed to the 2010 Final Document. They also link this process directly back to the 1995 Middle East resolution, which they saw and continue to see as a vital part of the bases on which they agreed to the indefinite extension of the NPT. 

So as a result, to many NNWS the holding of a MEWMDFZ conference in 2012, the way in which the conference proceeds, and the continuing process and negotiations on universal Middle East NPT membership and a WMDFZ which that conference must beget, are perceived as directly related to their continued level of support for the 64 action items of the 2010 RevCon Final Document, and their overall commitment to the future RevCon process. 

To now see that the 2012 conference is apparently not going to happen – at the very least not in 2012 – is a very bad development, and the reaction particularly from Arab states will no doubt be very negative.

If support from Middle Eastern and other developing states for the NPT RevCon process disintegrates, this could have dire consequences for the ongoing relevance of the NPT.

European Union performance in the field of non-proliferation

I want to draw your attention to the latest issue of UNISCI – a Spanish journal-. This special issue (http://www.ucm.es/info/unisci/english/index.html) is devoted to the analysis and evaluation of some aspects of the EU policy in the field of non-proliferation, ten years after the adoption of the EU Strategy against WMD. Considering that sometimes the non-English publications are “out of the record”, I’ve considered that this blog gives us the opportunity to be aware of this literature.

Below I reproduce several paragraphs of the Coordinator (Clara Portela) pointing out the main contributions of the articles included (most of them in English!):

“In the opening article, Megan Dee evaluates the role of the EU in NPT negotiations. The EU has a history in this forum, having coordinated positions at NPT Review Conferences since the 1995, when it conducted a celebrated campaign in support of indefinite extension. It also appeared promising on account on its multilateral nature and vocation, very much highlighted in the ESS. However, according to Megan Dee, EU’s performance is ultimately hampered by its own lack of ambition, as well as by the other groups which fulfill the consensus-building role the EU aspires to. In other words, it has been outperformed by groups with better defined and less status-quo oriented visions.

The second article by Oliver Meier analyses an issue area that has remained conspicuously absent from current accounts of the EU’s action in this field, its policies in various arms control regimes, with refreshing and sometimes unexpected results. Oliver Meier concludes that, despite the EU’s favorable position in the export control regimes, members’ action in these informal fora remains uncoordinated.

The following article by Milagros Álvarez comparing the non-proliferation strategies of the EU and the US demonstrates that, despite the hopes instilled by Obama’s nuclear disarmament impetus, US action in the field remains conservative in several respects. Her findings are rather disappointing: Transatlantic collaboration prospers in the consolidation of informal non-proliferation tools. Her contribution also helps us contextualizing nuclear non-proliferation in the broader field of WMD: selective progress in the non-proliferation is matched by stagnation in the biological and chemical domain.

Anne Finger follows up exploring European options for the implementation of a key initiative in the field, Obama’s “Global Zero”, a highlight which has so far received less resolute support from the EU than one would expect following the adoption of the EU’s WMD strategy. In the face of “Global Zero’s” fading momentum, Anne Finger suggests ways forward for reviving and facilitating progress towards nuclear elimination in Europe.

A second set of articles examines significant issues surrounding the EU and WMD proliferation. Benjamin Kienzle looks at the EU’s policies towards Iran in an effort to explore the problems created by the multiplicity of norms promoted in EU foreign policy. He shows that in the EU’s Iran policy, non-proliferation was eventually privileged over human rights objectives. In the absence of pre-established priorities among norms, the EU faces a dilemma in its external norm promotion; namely, it might have to prioritize among competing norms, or else pursue both of them at the expense of coherence. Two subsequent contributions analyze key issues determining the non-proliferation context in which the EU operates: Belén Lara compares and assesses European reactions to the US plans to deploy a Missile Defence system, while Natividad Fernández reviews the sometimes misrepresented, or simply misunderstood, non-proliferation policies of the Russian Federation. Finally, Fernando Borredá explores the role of the EU in the field of chemical weapons by applying most the straightforward standards, i.e., by assessing the relevance of EU action to the main challenges currently faced by the chemical weapons regime.

While the picture that emerges from this compilation of articles points to a suboptimal performance, it does not necessarily augur badly for the future of the EU as a nonproliferation actor. Those articles evaluating the EU’s track record reveal a gradual improvement in EU coordination, such as in the NPT framework. Others deal with arenas where the EU has not seriously contemplated closer co-ordination, as exemplified, to all appearances, in the export control regime. And granted, some contributions discuss issue areas which European countries prefer not to address through the EU, such as Missile Defence. The benefits of the emerging literature to which the present issue draws attention is that it shows a growing interest in the policies of the EU in the field, pointing to current deficiencies and sometimes even suggesting avenues for improvement. Nonetheless, the EU is clearly “not yet there”. In order to achieve relevance in the non-proliferation domain, the EU still requires a breakthrough….”