Report from FACO Conference on Embargoes and International Sanctions

FACO Conference Report Embargoes Sanctions

This (click on the link above) is the report of a conference I participated in back in February in Paris. It was organized by the Faculté Libre de Droit, d’Economie et de Gestion de Paris, which is one of the relatively few private universities in France. I thought the conference was excellent. It considered the issue of sanctions from both legal and political perspectives, and included some really top notch speakers. It was also very well attended by FACO students, which is a high mark of quality for the university.

Speakers included H.E. Boutros Boutros-Ghali, H.E. Roland Dumas, Pierre-Emmanuel Dupont, Elie Hatem, Antonios Tzanakopoulos, Matthew Happold, Alexander Oakelashvili, Rouzbeh Parsi, and myself among others.

The report is useful in giving summaries of each of the presentations. I recommend taking a look at it.


“Diamonds for Peanuts” and the Double Standard

This is a great piece by Marsha Cohen over on LobeLog. I highly recommend it. It’s very direct about a subject – Israel’s nuclear weapons stockpile – that far too few people in the nonproliferation community, especially in the US, are willing to write about directly.  But its so clearly an important set of observations, and so clearly analytically relevant to considerations of the Iran issue, for such obvious reasons. And yet the US nonproliferation community tends to bury its collective head in the sand about Israel’s nuclear weapons stockpile, for fear of upsetting the USG and their funders (when those are different things). I’ll paste the text here:


“Diamonds for Peanuts” and the Double Standard

By Marsha B. Cohen

The New York Times’ op-ed page headlined “Hopes for Iran”, which offers half a dozen cautious-to-negative views on Iran’s president-elect Hassan Rouhani, unexpectedly links to a “Related Story” published last year: Should Israel Accept a Nuclear Ban? Linking the online discussion — intentionally or not — to a debate over Israel’s own nuclear program and policies may be more remarkable than any of the op-ed’s arguments.

One of the most overlooked and under-discussed aspects of the Iranian nuclear program, at least from an Iranian point of view, is the double standard that’s applied to it: while Israel has an estimated 100-200 nuclear weapons that it has concealed for decades, Iran is treated like the nuclear threat — and Iran doesn’t possess a single nuclear weapon. Adding insult to injury, Israel is usually the first, loudest and shrillest voice condemning Iran and demanding “crippling sanctions” while deflecting attention away from its own record.

“Iran has consistently used the West’s willingness to engage as a delaying tactic, a smoke screen behind which Iran’s nuclear program has continued undeterred and, in many cases, undetected,” complained former Israeli Ambassador to the UN, Dore Gold (also president of the hawkish Jerusalem Center for Public Affairs) in a 2009 LA Times op-ed entitled “Iran’s Nuclear Aspirations Threaten the World“:

Back in 2005, Hassan Rowhani, the former chief nuclear negotiator of Iran during the reformist presidency of Mohammad Khatami, made a stunning confession in an internal briefing in Tehran, just as he was leaving his post. He explained that in the period during which he sat across from European negotiators discussing Iran’s uranium enrichment ambitions, Tehran quietly managed to complete the critical second stage of uranium fuel production: its uranium conversion plant in Isfahan. He boasted that the day Iran started its negotiations in 2003 “there was no such thing as the Isfahan project.” Now, he said, it was complete.

Yet half a century ago, Israel’s Deputy Minister of Defense, Shimon Peres — the political architect of Israel’s nuclear weapons program — looked President John F. Kennedy in the eye and solemnly intoned what would become Israel’s “catechism”, according to Avner Cohen: “I can tell you most clearly that we will not introduce nuclear weapons to the region, and certainly we will not be the first.” Fifty years and at least 100 nuclear weapons later, Peres is awarded the U.S. Medal of Freedom, with no mention of his misrepresentation of Israel’s nuclear progress.

According to declassified documents, Yitzhak Rabin, another future Israeli prime minister (who would be awarded the Nobel Prize for Peace in 1994) also invoked the nuclear catechism to nuclear negotiator Paul Warnke in 1968, arguing that no product could be considered a deployable nuclear weapons-system unless it had been tested (Israel, of course, had not tested a nuclear weapon). Warnke was unswayed by Rabin’s talmudic logic but came away convinced that pressuring Israel would be futile since it was already a nuclear weapons state.

In a BBC Radio June 14 debate between Gold and former British Foreign Secretary Jack Straw about the prospects for improving relations with Iran after Rouhani’s election, Straw pointed out that Israel has a “very extensive nuclear weapons program, and along with India and Pakistan are the three countries in the world, plus North Korea more recently, which have refused any kind of international supervision…”:

JOHN HUMPHRYS (Host): Well let me put that to Dr Gold; you can’t argue with that, Dr Gold?

DORE GOLD: Well, we can have a whole debate on Israel in a separate program.

JOHN HUMPHRYS: Well, it’s entirely relevant isn’t it? The fact is you’re saying they want nuclear weapons; the fact is you have nuclear weapons.

DORE GOLD: Look, Israel has made statements in the past. Israeli ambassadors to the UN like myself have said that Israel won’t be the first country to introduce nuclear weapons into the Middle East.

JACK STRAW: You’ve got nuclear weapons.

JOHN HUMPHRYS: You’ve got them.

JACK STRAW: You’ve got them. Everyone knows that.

DORE GOLD: We have a very clear stand, but we’re not the issue.

JACK STRAW: No, no, come on, you have nuclear weapons, let’s be clear about this.

National security expert Bruce Riedel is among those who have observed Washington’s “double standard when it comes to Israel’s bomb: the NPT applies to all but Israel. Indeed, every Israeli prime minister since David Ben-Gurion has deliberately taken an evasive posture on the issue because they do not want to admit what everyone knows.” Three years ago, Riedel suggested that the era of Israeli ambiguity about its nuclear program “may be coming to an end, raising fundamental questions about Israel’s strategic situation in the region.” Thus far that hasn’t happened. Instead, Israeli leaders and the pro-Israel lobby use every opportunity (including Peres’ Medal of Freedom acceptance speech) to deflect attention from Israel’s defiant prevarication about its own nuclear status and directing it toward Iran.

This past April, Anthony Cordesman authored a paper for the Center for Strategic and International Studies (CSIS) arguing that Israel posed more of an existential threat to Iran than the other way around. “It seems likely that Israel can already deliver an ‘existential’ nuclear strike on Iran, and will have far more capability to damage Iran than Iran is likely to have against Israel for the next decade,” Cordesman wrote. (The paper has since been removed from the CSIS website, but references to it persist in numerous articles.)

This double standard, and refusal to recognize Iranian security concerns, is not news to Iranians. Ali Larijani, Speaker of the Iranian Majlis (Parliament), assured the Financial Times last September that talks between the U.S. and Iran “can be successful and help create more security in the region. But if they try to dissuade Iran from its rights to have peaceful nuclear technology, then they will not go anywhere — before or after the US elections.” Larijani, who was Iran’s nuclear negotiator between 2005-2007, proposed that declarations by U.S. political leaders that Iran has a right to “peaceful nuclear technology” be committed to in writing.

“Many times the US president or secretary of state have said they recognise Iran’s right to nuclear energy,” Larjani said. “So, if [they] accept this, write it down and then we use it as a basis to push forward the talks…What they say during the talks is different from what they say outside the talks. This is a problem.” Larijani also denied that Iranian leaders were discussing withdrawal from the Nuclear Non-Proliferation Treaty (NPT) even though the benefits of Iran remaining a signatory — in the face of mounting international pressure campaigned for by Israel while Israel itself faced little to no criticism — seemed unclear. “The Israelis did not join the NPT and they do not recognize the IAEA,” he said. “They are doing what they want — producing nuclear bombs, and no one questions it.”

This past weekend, CNN’s Christiane Amanpour bluntly suggested that up until now, the U.S. has offered Iran few incentives to comply with the international community’s demands regarding Iran’s nuclear program: “Let’s just call a spade a spade. I’ve spoken to Iranian officials, former negotiators, actually people who worked for Dr. Rouhani earlier, and they said that so far the American incentives to Iran in these nuclear negotiations amounts to demanding diamonds for peanuts.”

Ben Caspit, writing in al-Monitor last week week, notes that as soon as the Russians hinted Iran would be willing to suspend uranium enrichment and keep it at the 20% level, Israeli Prime Minister Benjamin Netanyahu blew off the suggestion as merely cosmetic. The Israeli demand will continue to be  uncompromising, Caspit says, insistent that “…nothing short of complete cessation of uranium enrichment, removal of all enriched uranium out of Iran; termination of nuclear facility activities and welcoming the International Atomic Energy Agency (IAEA) would provide sufficient guarantee of Iran’s willingness to abandon the nuclear program. Needless to say this will never happen.”

As Jim Lobe pointed out the other day, Rouhani outlined an 8-point blueprint for resolving the nuclear standoff between the U.S. and Iran in a letter to TIME in 2006. Rouhani stated:

In my personal judgment, a negotiated solution can be found in the context of the following steps, if and when creatively intertwined and negotiated in good faith by concerned officials…Iran is prepared to work with the IAEA and all states concerned about promoting confidence in its fuel cycle program. But Iran cannot be expected to give in to United States’ bullying and non-proliferation double standards.

Compliance with nonproliferation treaties – the case of Iran revisited

This is to draw your attention on a piece on Iran’s (non-)compliance with its nonproliferation obligations that I have just posted on Ejil:Talk! It draws on my recent article on the same topic, a draft of which is available on SSRN, and which will appear in the forthcoming issue of the Journal of Conflict and Security Law.

Here is the abstract of the article:

The controversy over the Iranian nuclear programme is probably one of most sensitive contemporary instances of a situation involving legal issues related to compliance and enforcement of non-proliferation treaty obligations. The allegations put forward against Iran in this context are rarely formulated or substantiated in legal terms, nor grounded in a clearly identifiable legal basis or framework. This article aims at the identification of the specific international obligations that Iran would have breached or failed to comply with, whether contained in the NPT or in other non-proliferation agreements, and at the evaluation of the criteria or standards under which the occurrence of a failure or a breach of treaty commitments by Iran is to be assessed. It begins with an overview of the instruments comprising the safeguards system established pursuant to the NPT and monitored by the IAEA, then provides an account of the treatment by the IAEA of the Iranian nuclear program since 2002, which led the IAEA to declare that Iran was in non-compliance with its safeguards agreement, before assessing the IAEA’s findings, in light of relevant rules pertaining to both general international law and the NPT/IAEA legal framework for nuclear safeguards as lex specialis.

Your comments are welcome!

New Article on Nuclear Power Plant Financing and International Investment Law

I’ve recently had accepted for publication a new paper in the Journal of World Energy Law & Business, which is a peer-reviewed journal published by Oxford University Press. The article is entitled Nuclear Power Plant Financing Post-Fukushima, and International Investment Law. The complete paper can be downloaded from SSRN here.

This paper project took me about a year to complete, and represented a significant new direction in my research, that required a steep learning curve in order to get up to speed.

The paper grew out of my experience in consulting and advising states and private companies on international investment law in the context of nuclear power plant finance. It struck me along the way that there were some current trends in financing of nuclear power plants that were likely to make the triggering of host-state obligations under international investment law sources more likely in the future. And that this was a phenomenon that both host states and foreign investors should be aware of, as it could be quite significant in a number of calculi (risk, liability, pricing, etc.) concerning a potential nuclear power plant investment project.

Here’s the abstract. I would appreciate forwarding of the link to any listserves readers think appropriate.

The essential thesis of this article is that, as corporate and project finance trends continue in nuclear power plant financing, resulting in diversified and much broader and more complex structures of foreign investment, international investment law will become increasingly relevant to and influential upon these transactions. This in turn will spawn a new wave of disputes based in international investment law claims, before international arbitral tribunals including the ICSID. After discussing the 2011 Fukushima nuclear disaster, and the first international investment law case directly related to an investment in a nuclear power plant, the article begins in Part I by describing recent trends in the financing of nuclear power plants. These trends include a shift from almost exclusively sovereign-assumed financing cost and risk, to other financing models which increasingly access global capital markets, and spread risk among a larger and more diverse set of investors. It then proceeds in Part II to review and consider the international legal sources addressing nuclear energy development and related international trade and investment transactions, focusing on the sources of international investment law. It considers both the primary ways in which the current trends in nuclear power plant financing are making international investment law increasingly relevant to nuclear power plant related investments, as well as the secondary effect this increasing relevance will likely have upon future structuring of financing arrangements for new nuclear power plants. In Part III it provides detailed consideration of the application of international investment law to foreign investments in nuclear power plants, including areas in which host states of such investments are most likely to experience increased exposure to liability due to current financing trends. It concludes with a further consideration of the secondary effects caused by this increased host state exposure to liability, including effects on future structuring of financing arrangements for new nuclear power plants, and effects on (re)negotiations of international investment law instruments between actual or potential host states, and states that are actual or potential home states of nuclear vendors and investors.

Former Israeli Ambassador Calls for NK to be “Wiped Off the Map”

I think this goes under the “you could cut the irony with a knife” category. Did he really not see it? Wow.

Call Me, Maybe: New US-Russia Cybersecurity Initiatives

At the G-8 meeting in Northern Ireland, the United States and Russia made efforts to improve bilateral relations, and these efforts include new initiatives on cybersecurity that mean, according to the White House, the US and Russia “now are leading the way in extending traditional transparency and confidence-building measures to reduce the mutual danger we face from cyber threats.” These initiatives involve:

1. Deeper engagement through senior-level dialogue. Through the existing US-Russia Presidential Bilateral Commission, the two countries are establishing a new working group tasked with assessing emerging threats to information and communication technologies (ICTs) and proposing joint responses to such threats.

2. ICT confidence-building measures. The US and Russia agreed to implement new confidence-building measures (CBMs) “designed to increase transparency and reduce the possibility that a misunderstood cyber incident could create instability or a crisis in our bilateral relationship.” The CBMs seek to strengthen US-Russian relations in cyberspace, expand a shared understanding of cyber threats that appear to originate in each other’s territories, and prevent escalation of cybersecurity incidents. The CBMs adopted are:

    – Links and information exchanges between the US and Russian computer emergency readiness teams (CERTs) to increase information sharing between the two countries on “technical information about malware or other malicious threats” in order to facilitate “proactive mitigation of threats.”

    – Exchange of cybersecurity notifications that will permit communications and “formal inquiries about cybersecurity incidents of national concern.” Such information exchanges and inquiries will flow through the existing Nuclear Risk Reduction Center, established in 1987 between the US and the former USSR, in order to facilitate reduction of “misperception and escalation from ICT security incidents.”

    – Direct cyber hotline between the White House and the Kremlin to provide a secure means to “manage a crisis situation arising from an ICT security incident.” The direct cyber hotline will be integrated into the existing Direct Secure Communication System the two countries maintain.

The White House also indicated that, in order to “create predictability and understanding in the political military environment, both the U.S. and Russian militaries have shared unclassified ICT strategies and other relevant studies with one another. These kinds of exchanges are important to ensuring that as we develop defense policy in this dynamic domain, we do so with a full understanding of one another’s perspectives.”

These steps by the US and Russia are important for cybersecurity because the two countries are applying approaches used in arms control contexts (e.g., CBMs and “hotline” communications) to cybersecurity challenges. This strategy dovetails with needs emphasized in cybersecurity policy–the need for better “situational awareness” and transparency through increased information exchange and for stronger, more effective cooperation among key countries through functional collaboration at the technical level and political interactions among high-level officials.

Although based on long-standing arms control strategies, their application to cybersecurity will develop its own features given the differences between addressing cyber threats and, say, preventing nuclear war. In arms control contexts, CBMs have, at best, a mixed record, so we should not expect “iCBMs” to be a panacea for cybersecurity problems experienced nationally or internationally. The US-Russian initiatives do not restrain, for example, cyber espionage or development of more powerful military cyber capabilities or resolve disagreements the US and Russia have over broader cyberspace issues, such as Internet governance and “Internet freedom.” But the US-Russia initiatives provide a test case for understanding whether legacy strategies from arms control, such as CBMs and hotlines, can contribute to stabilizing geo-cyber politics.

“Peace with Justice”: Nuclear Weapons and Cyber Surveillance

In his June 19 remarks at the Brandenburg Gate in Berlin, President Obama stressed the theme of achieving “peace with justice” in addressing challenges the United States and its allies face–and two of the challenges he highlighted are of interest to the readers of Arms Control Law–nuclear weapons and cyber surveillance against terrorism.

Nuclear Weapons

Press reports have often focused on the President’s proposal to reduce the numbers of US and Russian nuclear warheads by one-third from the levels set in the New Start Treaty. But the President’s remarks went beyond this proposal to lay out an even more ambitious agenda of nuclear diplomacy for his second term.

After declaring that “so long as nuclear weapons exist, we are not truly safe[,]” the President said:

Peace with justice means pursuing the security of a world without nuclear weapons — no matter how distant that dream may be. And so, as President, I’ve strengthened our efforts to stop the spread of nuclear weapons, and reduced the number and role of America’s nuclear weapons. Because of the New START Treaty, we’re on track to cut American and Russian deployed nuclear warheads to their lowest levels since the 1950s.

But we have more work to do. So today, I’m announcing additional steps forward. After a comprehensive review, I’ve determined that we can ensure the security of America and our allies, and maintain a strong and credible strategic deterrent, while reducing our deployed strategic nuclear weapons by up to one-third. And I intend to seek negotiated cuts with Russia to move beyond Cold War nuclear postures.

At the same time, we’ll work with our NATO allies to seek bold reductions in U.S. and Russian tactical weapons in Europe. And we can forge a new international framework for peaceful nuclear power, and reject the nuclear weaponization that North Korea and Iran may be seeking.

America will host a summit in 2016 to continue our efforts to secure nuclear materials around the world, and we will work to build support in the United States to ratify the Comprehensive Nuclear Test Ban Treaty, and call on all nations to begin negotiations on a treaty that ends the production of fissile materials for nuclear weapons. These are steps we can take to create a world of peace with justice.

Predictably, this agenda has sparked questions, skepticism, and opposition. But, with the speech, the President made clear that he wants his presidential legacy linked with global progress toward a world without nuclear weapons.

Cyber Surveillance and Terrorism

In a less noted section of the speech, the President included the challenge of “balancing the pursuit of security with the protection of privacy” within the “peace with justice” agenda. Here the President was referring to the international controversies caused by the disclosure of secret US surveillance programs, including PRISM, which targets Internet communications of foreign nationals. The President’s host, German Chancellor Angela Merkel, has been one of the leading European politicians to raise concerns about PRISM. The President said:

Our current programs are bound by the rule of law, and they’re focused on threats to our security — not the communications of ordinary persons. They help confront real dangers, and they keep people safe here in the United States and here in Europe. But we must accept the challenge that all of us in democratic governments face: to listen to the voices who disagree with us; to have an open debate about how we use our powers and how we must constrain them; and to always remember that government exists to serve the power of the individual, and not the other way around. That’s what makes us who we are, and that’s what makes us different from those on the other side of the wall.

Unlike pushing nuclear diplomacy forward, President Obama, no doubt, did not plan to talk about this issue in this speech but was forced to do so by the fallout from the disclosures. Here, the President defends what he believes is “peace with justice” in terms of the balance his administration struck between preventing terrorism and protecting civil liberties. This balance, and the process through which it is achieved, he distinguished “from those on the other side of the wall”–a phrase that resonates with memories of physical walls of the past and worries about virtual walls of the present. Whether Americans agree with the President about what should happen on our side of the wall remains to be seen, an outcome that will also affect how history remembers this President.

Report on the CWC and Regulation of “Wide Area” Riot Control Agent Delivery Mechanisms

The University of Bradford Non-Lethal Weapons Research Project and the Omega Research Foundation have produced a report written by Michael Crowley entitled Drawing the Line: Regulation of “Wide Area” Riot Control Agent Delivery Mechanisms under the Chemical Weapons Convention (Apr. 2013).

The report notes (1) the CWC’s prohibition against use of riot control agents (RCAs) as a method of warfare and against the development of RCA munitions for use in armed conflict; and (2) the permissibility under the CWC of the use of RCAs for law enforcement purposes, including domestic riot control. However, the report identifies questions about the “regulation of large caliber munitions and delivery systems that can be utlised for dispersing significant amounts of RCA over wide areas and/or over extended distances[,]” specifically whether such wide-area RCA munitions and delivery systems qualify as appropriate for law enforcement use of RCAs under the CWC. It discusses potential problems with these wide-area mechanisms, including their use in armed conflict, proliferation to non-state actors, and use for law enforcement purposes.

The report recommends that the OPCW:

– Develop a process for determining prohibited means of RCA delivery;
– Develop a clarifactory document detailing prohibited RCA means of delivery;
– Strengthen existing RCA declaration and reporting measures, and explore the feasibility and utility of introducing appropriate monitoring and verification measures.

Rouhani’s Nuclear Thoughts in 2006

Now that Rouhani is the President of Iran, we’re all trying to figure out exactly who he is and what his views are on the nuclear issue, and that makes his prior writing and speeches on the subject quite important. Here is a very insightful piece he wrote for Time magazine in 2006. I really encourage you to read the whole thing. I find it very thoughtful and well expressed. I think you can see his legal training coming through in his thought process – which of course I like. Here’s an excerpt:

Iran is not accused of having the bomb. There are no indications that Iran has a nuclear weapon program. If Iran were to have a weapons program, the alarmists in the U.S. and Israel have reportedly said that it would take at least another seven to ten years for Iran to make the bomb. What is often cited by American officials as 20 years of Iranian secret nuclear military program turned out to be, as declared by the IAEA, nothing more than the failure to declare, in a timely manner, some experiments and receiving some material and equipment. Such failures to declare are not uncommon among the NPT members. Remedial steps are envisioned in the Safeguards Agreement to address them, and Iran has done so. Moreover, it was no secret that we were in the European, Russian and Asian markets to purchase enrichment technology in the late ’80s and ’90s. Therefore, an Iranian secret weapon program is only hype, and the sense of urgency about Iran’s nuclear program is rather tendentious. The world should not allow itself to be dragged into another conflict on false pretenses in this region again.

Iran is intent on producing nuclear fuel domestically for reasons both historic and long-term economic. The U.S. and some Europeans argue that they cannot trust Iran’s intentions. They argue that they cannot accept Iran’s promise to remain committed to its treaty obligation once it gains the capability to enrich uranium for fuel production. They ask Iran to give up its right under the NPT, and instead accept their promise to supply it with nuclear fuel. This is illogical and crudely self-serving: I do not trust you, even though what you are doing is legal and can be verified to remain legal, but you must trust me when I promise to do that which I have no obligation to do and cannot be enforced. It is this simple and this unfair. There must be a better way out of this than to top this travesty with threatening Iran in the Security Council with possible sanctions and perhaps even use of force. This path can potentially cause harm and suffering at differing degrees to all parties to the conflict.

Rouhani Discusses Potential Nuclear Deal with the West

In his first press conference to address the nuclear issue, newly elected Iranian President Hassan Rouhani made some important statements about how he intends to approach nuclear diplomacy with the West, and he intriguingly mentioned the specifics of a deal he says he worked out with French President Chirac in 2005 when Rouhani was Iran’s chief nuclear negotiator:

Rouhani proposed that a deal he discussed in 2005 with then French President Jacques Chirac, which he said was rejected by the UK and the US, could be the model going forward.

Hossein Mousavian, who served as a member of the Rouhani negotiating team, said the Chirac idea that Rouhani referenced involved the highest level of transparency of Iran’s nuclear program in exchange for Iran having its rights under the nuclear Non Proliferation Treaty (NPT) recognized.

We agreed with Chirac that: first, the EU-3 would respect the legitimate rights of Iran for peaceful nuclear technology under the NPT, including enrichment,” Mousavian told Al-Monitor Monday. “Second, Iran would accept the [International Atomic Energy Agency] IAEA’s definition for objective guarantees that the Iranian nuclear program would remain peaceful and would not divert toward weaponization in the future.

It means that Iran would respect the maximum level of transparency that internationally exists,” Mousavian, a contributing writer to Al-Monitor, further explained. “In return, the P5+1 would not discriminate against Iran as a member of the NPT. It would respect Iran’s rights under the NPT like other members.

I think that the basic contours of this deal as he describes it, are what everyone is basically coming around to accepting as the inevitable essentials of a potential diplomatic accord between the West and Iran. Its alot like the Israeli-Palestinian dispute in that sense – i.e. everyone basically knows what has to happen here for both sides to agree and for the issue to finally be settled. Now its just down to having leaders on both sides who are willing to do what has to be done to solve the dipute peacefully. Rouhani seems to be going out of his way to try and tell the world that he wants to be that leader on the Iranian side. Now if he can only find a good faith partner in President Obama.