“International Lawifying” the Supreme Leader’s FatwaPosted: January 17, 2013
A 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.