New Journal Announcement

Hart publishing is announcing the creation of a new, peer-reviewed law journal, the Journal on the Use of Force and International Law.  The journal’s EIC’s are James Green, Christian Hendersen, and Tom Ruys.  I’ve known James for a long time, and consider him to be one of the leading scholars on the jus ad bellum.  He and Christian and Tom have gotten alot of the best scholars writing in this area together to support this new peer-reviewed journal, which I think is a great addition to the quality publication outlets in international security law. Here’s the link to the journal’s homepage, where you can see the advisory board and editorial board (including myself), as well as the call for submissions. I encourage those of us who write in the jus ad bellum area to consider submitting papers to this new journal.

Iran’s Response to the IAEA’s Most Recent Report

A colleague sent me this today. It’s Iran’s formal response to the IAEA DG’s May 22 report on Iran’s safeguards implementation.  I highly recommend that you read it.  Its a very thorough response, covering all of the issues raised in the IAEA report, and making detailed and substantive factual and legal arguments. The point of most of my writing about Iran’s nuclear program is just to say that their legal arguments about the IAEA and the NPT should be taken seriously, because many of them are correct. This is a good source to see those legal arguments as made by Iranian officials themselves.  I’ll excerpt only the “General Observations” section here, but you really have to read the whole thing – including particularly page 16, where the document says the IAEA is being “more Catholic than the Pope.” LOVE that. Note also the specific calling out of David Albright and ISIS, and the “unprofessional” disclosure of confidential materials to him by IAEA officials.

A.  General Observations

 

1-         The report is not balanced and factual since it has not duly reflected the cooperation,  letters and explanations  of the Islamic Republic of Iran to the questions of/or communication  made with the Agency. For more elaboration of this assessment, three letters addressed to the DG are attached.

 

2-          Paragraph    27   of   the    Safeguards    Resolution    adopted    by   the    General    Conference GC(53)/RES/14 as well as GC(54)/RES/11,  mandate the Agency to prepare technically  objective and factually   correct   reports  with  appropriate   references   to  relevant   provisions   of   the  Safeguards Agreement.  Regrettably,  this statutory  requirement  has continuously  been ignored and has not been observed  in  this  and  in the  previous  reports.  The  Agency  should  not  arbitrarily  step  beyond  its statutory  and legal mandate  in preparing  its reports, assessments  and comments  without considering the relevant concrete obligations of a State.

 

3-          More importantly, the IAEA is an independent  inter-governmental  organization,  not a United Nations   programme  or  fund.  Therefore,  the  Agency’s   mandate  is  to  carry  out  its  activities  in accordance  with  its rights and  obligations  under the Statute and  the Safeguards  Agreements.    The Agency  should  therefore  refrain from  taking  instructions  from anonymous  States  and sources  with vested interests or allow unauthorized parties to interfere with its mandates. There are no provisions in the  Safeguards  Agreements  and  IAEA  Statute  which  may  authorize  the  United  Nations  Security Council  (UNSC)  to take  over  the  role of  the  IAEA  in implementing  the  Safeguards  Agreements, impose new requirements, or modify the obligations of the parties to the Safeguards Agreements; nor does the Agency have the right or authority to impose ultra vires demands on Iran by relying upon the UNSC resolutions.

 

4-          The Islamic Republic of Iran has already made it clear, based on the legal provisions such as those of the Agency’s Statute and the Safeguards Agreement as to why the UNSC resolutions against Iran are illegal and unjustified, which have been already explained  in INFCIRCs/: 786, 804, 805, 810,

817, 823, 827, 833, 837, 847, 849 and 850. Iran’s  peaceful nuclear activities have unlawfully been put

on the agenda of the UNSC and the Council  has taken a wrong approach  by adopting  its politically­ motivated, illegal and unacceptable resolutions against Iran. Therefore, any request by the Agency stemming from those resolutions is not legitimate and not acceptable.

 

5-          Although  the  report  once again  reconfirmed  that “the  Agency continues to verify the non- diversion of declared nuclear material at the nuclear facilities and LOFs declared by Iran under its Safeguards  Agreement”,  it  keeps  using  “unusual”  and  “irrelevant”   language  with  regard  to  the Safeguards  conclusions,  by stating: “the  Agency is unable to provide credible assurance about the absence of  undeclared nuclear material and activities in Iran”, since  the  Agency  has  to  simply confirm that all declared nuclear material is accounted for and therefore “declared nuclear material in Iran remained in peaceful activities”.

 

6-          The Non-Aligned  Movement  in its several  statements  to the Board of Governors  has stated that “NAM emphasizes the fundamental distinction between the legal obligations of states in accordance with their respective Safeguards Agreements, as opposed to any confidence building measures undertaken voluntarily that do not constitute a legal safeguards obligation.” and also “NAM takes note that the latest report of the Director General includes many references to events that transpired prior to the previous report contained in document GOV/2009/74 dated 16 November 2009, and contrary to the expectation of NAM, does not mention the responses provided by Iran to the Agency on several issues.”, NAM  has also stated that “taking into account the recent developments mentioned above as well as previous Director General’s reports on the implementation of the Work Plan on “Understanding of the Islamic Republic of Iran and the Agency on the Modalities for resolution of the Outstanding Issues” (INFCIRC/711), NAM still looks forward to the safeguards implementation in Iran being conducted in a routine manner”. However, the Director General  in preparing   his  report  has  unfortunately   not  heeded  these  important  statements  which  reflect  the concerns of a large number of the United Nations and the Agency Member States.

 

7-          The Agency should strictly observe its obligations under Article VII.F of the Agency’s  Statute and Article 5 of the Safeguards Agreement between the I.R. oflran and the Agency, both emphasizing on the confidentiality  requirements. As was emphasized in previous Iran’s Explanatory Notes, the information collected during inspections of nuclear facilities should be considered as confidential information.  However, once again, the report in contradiction to the Agency’s  statutory  mandate and the Safeguards  Agreement (INFCIRC/214)  contains a lot of confidential technical details that should have not been published. The DG by including detailed information in his reports such as the number of installed and/or operating centrifuges, amount of nuclear material fed and/or produced, etc., has demonstrated  his  inability  to  fulfill  his commitments  on  confidentiality  measures.  It comes  as  no surprise that almost at the same time the DG report is released, some websites such as ISIS, publish the report contained  with sort of fictitious calculations as its evaluation on the detailed  information of the report. This fact leaves no doubt that ISIS has real time access to the safeguards confidential information,  thanks  to the  DG’s  generosity  in disclosing  confidential  information  to  unauthorized circles  before even  the less privileged  Member  States  have a chance  to examine  such  reports.  We strongly  object to this unprofessional and wrong pattern of non-compliance with the legal framework of the IAEA. This continuous violation must be stopped.

 

8-          Regrettably, the main portion of the DG’s  report  is based on certain  information  related to missile issue, not involving nuclear material activities. The Agency is not entitled to step beyond its mandate to the bilateral Safeguards  Agreement, or interfere with Iran’s  national security concerns on the  pretext of Iran’s  nuclear  program. Moreover, the DG has relied on some forged,  fabricated  and false  information   provided  by  western  intelligence  services  and  known  sources  hostile  to  Iran, assessed  as “overall  credible” information,  without any authenticity  verification,  while  independent observers  have revealed part of the false information  used by the Agency and criticized  ironically its immature assessment on allegations against Iran.

 

9-          The report  in its introductory  part enters into a legal qualification  and judgment  that is not absolutely  at  the  discretion  and the  responsibility  of  the  Director  General  of  the  IAEA.  Defining unilaterally obligations on a sovereign State is beyond the mandate of the Director General. As clearly described  above, the DG has deviated from his mandate. Iran reserves its right to file claims against his acts on the damages arising.

 

10-        In the light of the above, the claims and baseless allegations against the Islamic Republic of Iran’s  peaceful nuclear activities as contained in the DG’s  report (GOV/2013/27, dated 22 May 2013) are unprofessional,  unfair, illegal and politicized.

Does Noncompliance with a CSA Per Se Constitute Breach of the NPT?

A colleague asked if I would write something on the relationship if any between a finding by the IAEA of a state’s noncompliance with its comprehensive safeguards agreement (CSA) on one hand, and a breach of Article III of the NPT by that state on the other. In brief, does noncompliance with a CSA per se constitute a breach of NPT Article III?  Well, as it happens I did cover this topic at some length in my 2011 book. So I will just excerpt here from that book, Interpreting the Nuclear Nonproliferation Treaty, pgs. 87-94 (footnotes removed):

I would like to pay particular analytical attention at this point to the treaty interpretations given by NWS during the target period in order to justify the conditioning of nuclear supply, and recognition of the Article IV(1) right to peaceful use, upon NNWS compliance with an IAEA Comprehensive Safeguards Agreement.  As discussed in Chapter 3, there are several points of treaty interpretation included within the logical progression of interpretation maintained by NWS officials.  I identified these steps of interpretive progression as occurring within the following transitive sequence:

 

1. Noncompliance with an IAEA safeguards agreement constitutes a breach of NPT Article III,
2. A breach of NPT Article III results in the invalidity of the rights and obligations in Article IV,
3. Thus, noncompliance with an IAEA safeguards agreement results in the invalidity of the rights and obligations in Article IV.

 

As I explained in Chapter 3, this conditional normative linkage between NPT Articles III and IV, and the transitive conclusion that noncompliance with a safeguards agreement constitutes breach of the NPT, was used by NWS officials during the target era in order to justify the non-recognition of Iran’s right to peaceful nuclear technologies under NPT Article IV(1), as well as to justify a cessation of nuclear assistance to Iran by supplier states, pursuant to the obligation in Article IV(2). 

            The interpretation of a conditional linkage between Article III and Article IV, which forms an integral part of this transitive sequence, is an argument that I have already addressed above.  I concluded above that NNWS compliance or non-compliance with Articles I, II & III has no per se conditional effect upon the residual right of NNWS to engage in the peaceful use of nuclear energy materials and technologies recognized in Article IV(1).  This conclusion, taking away one of the two interpretive pillars of this transitive sequence, on its own renders the interpretive sequence incorrect.  

However, I will assume arguendo for the moment that the NWS interpretation on conditionality between Article III and Article IV is correct.  I will do so to show that, even if it was correct, the other interpretive pillar of this transitive sequence – that noncompliance with an IAEA safeguards agreement constitutes a breach of NPT Article III – is also incorrect. 

Read the rest of this entry »

Rouhani Stopped Iran’s Weaponization Research

This is a really interesting op-ed in the NYT by Francois Nicoullaud, who was France’s ambassador to Iran from 2001-2005.  Nicoullaud claims that Rouhani was the prime mover in Iran’s termination of its nuclear weapons research program in 2003.  You can read about the data points on which he bases this claim.  I’m not sure what else to say about this – there are a number of possible implications. One being the implication that Iran had a nuclear weapons research program prior to 2003. This is of course something that Western intelligence agencies have asserted, but that has never been confirmed.  Another implication being that if this claim is true, and Rouhani really was behind the cessation of this research program, it would be a feather in his cap in terms of his credibility to negotiate on the nuclear issue now, and hopefully to be able to bring Khamenei along to an agreement if necessary.

Luers, Pickering and Walsh NYRB Op-ed

I know this piece came out a couple of weeks ago, and I saw it flying around listserves and Twitter at the time, but I just now got around to reading it myself.  I think it deserves all the buzz it got. Its a really great piece and reads very insightfully and fairly about the current state of affairs between the West and Iran, and the opportunities presented by this moment. I think its analysis is very useful, and I agree 100% with the authors’ prescriptions.

One of the best sections of the piece is the authors’ discussion of the coercive policies of the United States against Iran, including sanctions:

Washington could continue with the same approach it has followed since the fall of the Shah, namely, a “two-track” policy based primarily on sanctions and isolation that does not exclude diplomacy. While American-led international sanctions have damaged the Iranian economy and demonstrated the world’s opposition to Iran’s nuclear program, they have done little to change Iran’s actions or policies.

One alternative would be to increase pressure. And indeed, many in Washington believe that more sanctions and threats of military action are the right response. Under a policy of “coercive diplomacy,” the US would give Iran a clear ultimatum: agree to US demands on nuclear issues by a certain date, or the US will take military action.⁹ The former diplomat Dennis Ross wrote recently that the Obama administration should make Iran’s leaders an offer they must take or leave within a set period of time, and he implies that the option of military force should be available if they reject the offer. He contends that “coercive diplomacy succeeds when threats are believed and the game playing and manipulation stop.”¹⁰

Some advocates of coercive diplomacy argue that such an approach helped President Kennedy pressure Khrushchev to withdraw Soviet nuclear missiles from Cuba. But a final agreement was reached when Kennedy gave Khrushchev a face-saving exit and offered to withdraw America’s Jupiter missiles from Turkey. A few years earlier, when China shelled the islands of Matsu and Quemoy in an attempt to intimidate and threaten Taiwan, President Eisenhower demonstrated his own desire to avoid ultimatums. Rather than define the point at which the US would take military action, he said that he would “just confuse” the press when asked what he intended to do.

Ike took to heart Clausewitz’s insight that a nation fighting for survival will persevere regardless of pressure. More coercion will only reinforce the belief among Iran’s leaders that America’s goal remains destruction of the regime, hardening their resistance and making diplomatic progress less attainable. On military action, it is worth remembering what President Johnson’s national security adviser, McGeorge Bundy, said in the 1990s about the Vietnam War. What surprised him most, he acknowledged, was “the endurance of the enemy.”¹¹ Bundy admitted that he had placed too much faith in “the power of coercion.”

“Coercive diplomacy” is an oxymoron. Invariably the coercive side dominates the diplomatic side. Intransigent enemies who threaten US interests and security cannot be ignored; yet the United States’ experience in solving such problems by the use of coercive action such as war or sanctions that end in war has been highly costly in human lives, resources, and its global position during the past sixty years. As in Vietnam, coercion has often failed to achieve US objectives or a negotiated settlement that gave us most of what we needed. Yet the US has been impressively successful in achieving its objectives when it has placed diplomacy above punitive measures.

Pressure has helped get Iran to negotiate; but diplomatic negotiation cannot succeed unless each side gets some of what it needs and unless each side comes to believe that the other wants an agreement and is willing to comply with it. At present the US has imposed not only an arms ban but a nearly complete economic embargo on Iran, although Iran can still gain access to the US financial system through foreign banks and other institutions. We are not proposing a preemptive suspension of sanctions without firm agreements from Iran on nuclear-related issues. But we do believe that the piling on of more coercive sanctions and ultimatums, particularly when there are new hopes for the diplomatic process to get underway, will undermine or even preclude the possibility of negotiating a nuclear deal.

That’s some gold right there. And I hope the “sanction first, ask questions later” crowd in DC is listening.

ABA Seeks Nominations for the 100 Best Legal Blogs of 2013

The ABA Journal is seeking nominations for its annual list of the 100 best legal blogs. None of the ACL bloggers can nominate ACL because the rules say you can’t nominate your own blog. In fact, they say that anyone who has posted on a blog is discouraged from nominating that blog – which I interpret to mean doing actual posts on the blog, not commenting on posts. Commenters are still fully eligible.

So, if you don’t fall into these discouraged categories, and you would like to nominate ACL for inclusion in the list of 100 best legal blogs, we would really appreciate it if you would use the form at this site to nominate us.

Nominations have to be submitted no later than 7:00 pm (ET) on Friday, August 9, 2013.

Thanks in advance.

Samore on the Unsupportable U.S. Line in the Sand

I really think this quote from Gary Samore, a former key NSC official, sums up one of the central problems in the dispute between the West and Iran over Iran’s nuclear program.

The establishment of a bilateral channel is a necessary but not sufficient condition for coming to an agreement,” Mr. Samore said. “They want a nuclear weapons capability, and we want to deny them a nuclear weapons capability. Finding a compromise between those two objectives is going to be very difficult.

You see he’s actually being candid here about the line in the sand that the US has drawn in the negotiations. They want to deny Iran the capability to build a nuclear weapon. And therein lies the problem. That standard has no basis in international law whatsoever. That means this line in the sand drawn by the US is completely arbitrary and subjective. It has no authority or precedent as an international norm. And as I’ve said many times it is profoundly discriminatory. There are many states around the world that have the capability to build a nuclear weapon. They just choose not to. Iran is in no different technological situation than they are. In fact, they are at the moment quite technologically behind many of them in terms of this capability.  So why single out Iran for this arbitrary standard?  That is the problem that makes the Western approach to negotiations with Iran so bereft of legitimacy and so unsupportable. They’re just making up an arbitrary, subjective, standard that has no basis in international law or norms, and that is blatantly discriminatory. And they are enforcing it on Iran through crippling economic sanctions that are increasingly harming ordinary Iranian civilians. In a nutshell, that explains why I feel so strongly that this is an issue that needs attention and why I spend so much time writing about it.

Now, in the same article in which the Samore quote appears, and in this WSJ article (subscription, unfortunately) as well,  it is reported that the US has recently loosened some of its sanctions on Iran with regard to trade in medical and agricultural products.  This appears to me to be a very welcome act of goodwill on the part of the US, so I want to give credit where its due. Again, it appears to be an action aimed at signalling to President-elect Rouhani, US willingness to negotiate in good faith about sanctions relief, and to invite good faith efforts on his part as well. If that’s true and if that willingness on the part of the US is genuine, then I think this is a very welcome development, and one of the first signs I’ve seen of real good faith effort on the part of the US administration.

EU Courts and Iran Sanctions

This is a good new piece reviewing the wave of court judgments in the EU striking down designations of individuals and businesses for financial sanctions, in implementation of UN Security Council resolutions.  The basic problem is that the EU governments are unwilling to furnish evidence for these designations, and even when they do, as in judicial proceedings in the UK, the evidence is found to be lacking.

This is essentially the same basis on which the EU courts, even more famously, have struck down designations of individuals for sanctions in implementation of UN Security Council decisions regarding terrorism. The Kadi case is one of the leading cases in this area. My friend Antonios Tzanakopoulos has written a couple of great pieces on the Kadi cases (see here and here), including the final judgment on the appeal of the EU governments, which was just handed down a few days ago.

In all of these cases, the EU courts are being consistent in their protection of the rights of the designees, based in fundamental principles of due process. No one should be subject to legal action by a government depriving them of life, freedom, or property, without due process of law, which includes having the evidence against them presented and reviewed by a court, and subject to proper evaluation for both soundness and sufficiency.  The plea by governments of the necessity of secrecy of sources of evidence cannot and must not be allowed to overcome this basic requirement of any developed legal system.

In summary, the Security Council can’t just point its finger at anyone it decides to, and have those individuals and businesses financially sanctioned in domestic courts in the EU. Fortunately, the EU requires proper due process for legal sanction, and so far EU governments have in many cases failed to meet this requirement in both the Iran sanctions and terrorism sanctions contexts.

I only wish US courts held US government action to such high standards.

New Article by Muhammad Sahimi

Professor Muhammad Sahimi of USC has just published an article in the Cairo Review of Global Affairs, recounting and analyzing the history and dilomacy surrounding Iran’s nuclear program.  THIS IS A MUST READ, PEOPLE!

Should the Entire NAM Collectively Withdraw from the NPT?

Since Hossein Mousavian wrote his powerful piece a few weeks ago on the choices Iran’s new leadership has in dealing with its dispute with the West over its nuclear problem, there’s been a good deal of discussion about one of the options he outlined in particular: withdrawal by Iran from the NPT.  In my post about Mousavian’s article, I cited to some things I’ve written on this subject recently as well.

Others have, however, written very thoughtful pieces on whether it would be wise or productive for Iran to withdraw from the NPT, reaching mostly negative conclusions. See here and here in particular for quality pieces.

I think overall these commentators are correct to say that it would be imprudent for Iran to unilaterally withdraw from the NPT, for the reasons they discuss.

But I also think, and have said before, that the NPT is in serious need of replacement. The basic facts are these: the NPT was never intended to be the final agreement on the subject of nuclear energy and nuclear weapons. It was understood at the time of its drafting to be a “halfway house” on the road to a treaty that would ban nuclear weapons outright.  The concept of nuclear weapons haves and have nots as the legal status quo both was and still is understood not to be indefinitely sustainable. What utility there was in the NPT for decades has now been eclipsed by the problems the treaty causes as the cornerstone treaty governing nuclear energy in all of its applications. First, the NPT is woefully out of date and has become problematically anachronistic. The landscape of states that have nuclear weapons has changed drastically since 1968, and the treaty is incredible in not including these countries in some manner within its scope. This causes all sorts of problems – from civilian nuclear tech sharing with India, to the thorny problem of Israel’s nuclear weapons stockpile in the Middle East. Second, the two primary obligations to which the nuclear weapon states committed themselves, in exchange for non-nuclear weapon states’ promises not to acquire nuclear weapons, have become so thoroughly undermined and marginalized as to now be almost farcical. I’m referring to Article IV and Article VI of the NPT. There is a strong, and well supported view, among the states of the NAM, that the NWS are in breach of their obligations pursuant to Article VI, and that the rights and obligations in Article IV have been so diluted and abused by supplier states through the NSG, that there really is very little left that the NPT accomplishes in this area. And this of course goes to the heart of the original grand bargain of the NPT.

Of course, NAM states still in general strongly support the nonproliferation aims of the NPT.  For this reason, and for the cost reasons associated with unilateral withdrawal which the pieces noted above explain, no one NNWS (with the exception of NK) has so far been willing to go out on the limb of international opinion to unilaterally withdraw from the NPT on these principled grounds.

But what if the member states of the NAM, comprising about two-thirds of the NPT NNWS, collectively agreed that the NPT is no longer a viable paradigm for governing nuclear energy and nuclear nonproliferation, and decided to finally bring the issue to a head and withdraw from the treaty collectively, on a coordinated date? The benefits of such an approach would be several. First, no one state would bear the stigma of outlier in unilaterally withdrawing from the treaty, with the implication of “something shady” going on in their territory. This would be a collective action more persuasively based in mutually agreed principle.  Second, it would in fact force the issue of producing a new treaty to take the place of the NPT. For all of the reasons mentioned above and more, the NPT has been perceived less and less credibly by NAM states for many years now.  However, when you talk with officials about amending or replacing the NPT, they just roll their eyes at the enormity of the task, and the improbability of ever achieving consensus on a new treaty. The result has been that the NPT is simply left in place to limp along as it has for 45 years, becoming more and more problematic by the year. Surely this is not an acceptable long term approach to the issue. At some point the NPT will have to be replaced. If not, it will continue to slide into disdain and irrelevance among the states of the NAM, comprising by far the majority of states in the world, as it already has in large measure, because of the fundamental principled inequity of the treaty’s structure, along with the previously discussed failure of the NWS and supplier states collectively to maintain their obligations under it.

I have no delusion that this scenario is likely to be played out soon. But I think that it may be the only realistic way in which to bring the issue of the NPT’s essential unfitness for purpose to the fore, and to bring about the necessary conditions for serious work to be commenced on a replacement treaty.