There’s a new report out, co-authored by David Albright, Sandy Spector and Orde Kittrie, among others, making recommendations for how to deal with proliferation problems facing the Middle East. Here it is.
I have to say I’m most surprised here at the usually thoughtful and reasonable Sandy Spector for aligning himself with this bunch.
I think Jim Lobe’s review of this report pretty much sums it up generally.
A slightly edgier appraisal is given over at Moon of Alabama.
And an insightful review is also given by Muhammad Sahimi.
Personally, I’ll just say two things. First, in a report co-authored by a law professor – one who on other occasions has purported to provide complex international legal analysis – which recommends the threatening, and potential prosecution, of foreign military strikes against Iran to destroy Iran’s nuclear program, wouldn’t you think that there would be at least some consideration and discussion of the legality of these threats and potential strikes under international law? I certainly would. And yet there is none. What does that say to you about the law professor involved?
Second, for a report on how to address proliferation problems in the Middle East to omit entirely any critical consideration of the one proliferation problem that the nations who are actually in the Middle East overwhelmingly consider to be the most serious proliferation problem – i.e. Israel’s possession of nuclear weapons and refusal to sign the NPT or submit itself to meaningful IAEA inspections, as the rest of the countries in the ME are all expected to do upon pain of military attack from the West – is ridiculous, though not unexpected, and in my opinion fairly transparently speaks to the biases, double standards, and general motivations of its authors.
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.
Sorry for the radio silence lately. First the new year, then the BCS national championship game (ROLL TIDE!), and then I’ve been in the third level of exam grading hell for the last several days. But I’ve got several posts coming in the next few days. In the meantime, here’s a bloomberg article on Parchin that quotes Bob Kelley and me:
Bob is really great, and I recommend all of his media interviews and writings. His most recent analysis of the Parchin issue is here. I find him to be objective and to consistently offer some of the most insightful, reasonable, and authoritative technical commentary on nuclear weapons inspection matters and the IAEA. His credibility of course comes from his long career both with the US DOE, and as a member of the IAEA Action Team in Iraq. So he was a real-deal IAEA weapons inspector, unlike some others who are sometimes mis-identified under that title.
[UPDATE: There have been alot of very interesting comments posted on this piece by Dapo. I would recommend them to readers.]
My friend Dapo Akande, who is University Lecturer in Public International Law at Oxford University, has kindly provided some commentary on my recent ESIL Reflections regarding NPT Article X(1). You can find his comments over at EJIL: Talk! here. He raises an interesting question concerning how the UN Security Council could address a hypothetical withdrawal by Iran (or any other state party) from the NPT and the CSA. As he says:
[Dan’s] second point, relating to the Security Council, might well be correct in its own terms but does not considerwhether the UN SC could impose the same terms on Iran as the NPT and the Safeguards agreement. The council would not need to order Iran to rejoin those treaties, it could just say that Iran has the same obligations as is contained in those treaties. Now, would that be unlawful or ultra vires? When Lebanon was unable to sign the treaty which was to create the Special Tribunal for Lebanon, the SC simply adoped a resolution containing the same text, thus imposing the same treaty terms on Lebanon but this time as an SC resolution, rather than as a treaty obligation. This was upheld by the Special Tribunal for Lebanon. Could the SC not do the same for Iran?
This is a very interesting and useful question to ask. To me, these questions all fit under the general heading of what are the limits of UNSC authority. There’s been a great deal of writing on that topic, by many international law scholars including myself. I typically find myself in the camp of wanting to establish real and fairly tight limitations on what the UNSC can do in terms of imposing new legal obligations on states that are of a lasting character – the kind of obligations that really should be the subject of treatymaking in my view. But the contours of this principle are of course grey, as for example illustrated by the case of Iraq in 1991 and the disarmament obligations imposed on it by the UNSC in Resolution 687. These new obligations were in response to a clear threat to international peace and security (the Iraqi invasion of Kuwait). In my 2009 book I spent two chapters on these questions. One chapter on the general question of the limits of the authority of the UNSC, and in particular applying this analysis to Resolution 1540. And then a second chapter basically arguing that the jurisdiction of the International Court of Justice to incidentally review the legality of UNSC decisions should be better understood and more actively utilized. That would be the best way to bring some clarity to this grey legal question in my view.