CRS Report on Iran’s Compliance with its International Nuclear Obligations
Posted: July 22, 2013 Filed under: Nuclear 20 CommentsI just read over the new Congressional Research Service report on Iran’s compliance with its international obligations in the nuclear area. My memory is that the same CRS researcher – Paul Kerr – published a very similar report last year, and I seem to remember commenting on it somewhere as well, though I can’t now remember where. Anyway, I remember my thoughts then being pretty much what they are now about this version. It comes across to me as low quality analysis. And in particular, the material on whether Iran has violated the NPT, which begins on Pg. 10, is unfortunately quite erroneous. It really just relies on what the U.S. State Department thinks on the question, and their analysis is also low quality and erroneous.
I remember specifically sending an email to Paul Kerr after reading his last version of this report, and offering to advise him on future reports on the topic. He was apparently not interested in my advice – though I note in one of the footnotes to this version that he did consult Andreas Persbo, whose views are much closer aligned to those of the U.S. State Department than are mine. This is probably not a coincidence.
Oh well. What can you do? There’s alot of inertia to the erroneous views on nuclear law that have been perpetuated by the US nonproliferation epistemic community and their friends for a long time now. And they have a weirdly strong hold over opinion in DC that’s hard to break. Inside the bubble of DC, these views are just accepted, even though they are radically different from the views of most of the rest of the world on these issues. It’s frustrating, but all anyone can do is keep trying to fight back against the tide of BS through solidly grounded explanation, analysis and persuasion.
Arms Control Law 
“And they have a weirdly strong hold over opinion in DC that’s hard to break.”
It would be much more accurate to say that DC has a strong hold over their opinions, rather than vice versa.
After all, a US non-proliferation wonk faces two alternatives: either parrot the Washington Establishment’s line or…. look for another way to make a living.
Because this is a truism: if the US govt has them by the balls – and it does, via the purse-strings that are wrapped tightly around their naughty-bits – then their hearts and minds are going to follow….
Totally agree. It’s a mutually reinforcing little circle of incest.
I have to say that this statement by Kerr is terribly misleading:
“Iran and the IAEA agreed in August 2007 on a work plan to clarify the outstanding questions regarding Tehran’s nuclear program. Most of these questions, which had contributed to suspicions that Iran had been pursuing a nuclear weapons program, have essentially been resolved. Then-IAEA Director-General Mohamed ElBaradei, however, told the IAEA board June 2, 2008, that there is “one remaining major [unresolved] issue,” which concerns questions regarding “possible military dimensions to Iran’s nuclear programme”
The actual work plan itself has this to say:
“Iran reiterated that it considers the following alleged studies as politically motivated and baseless allegations. The Agency will however provide Iran with access to the documentation it has in its possession regarding: the Green Salt Project, the high explosive testing and the missile re-entry vehicle. As a sign of good will and cooperation with the Agency, upon receiving all related documents, Iran will review and inform the Agency of its assessment.”
So the reason *why* there is no progress on that one issue is obvious: the IAEA has reneged on its commitment to let Iran have access to those documents.
The work plan is very clear on this: the IAEA shows Iran all the documents that it has and then – and only then – is Iran committed to responding to the allegations contained therein.
Iran still hasn’t seen those documents.
Not once.
Not ever.
from the linked report:
Play that song again.
IAEA, 1992 Iraq booklet
Actually the IAEA report did specifically state that the previously undeclared activities had no relation to a weapons program, so Kerr is misleading on that point. He adds to this misdirection by asserting that the IAEA has not been able to verify the exclusively peaceful nature of the nuclear program — nevermind that the IAEA does not do this for ANY country unless the AP is in force.
Is there any international agency that polices the NPT?
My understanding of the law is that the IAEA concerns itself with CSAs.
Is there an enforcement arm of the NPT?
NPT Para VIII
3. Five years after the entry into force of this Treaty, a conference of Parties to the Treaty shall be held in Geneva, Switzerland, in order to review the operation of this Treaty with a view to assuring that the purposes of the Preamble and the provisions of the Treaty are being realized. At intervals of five years thereafter, a majority of the Parties to the Treaty may obtain, by submitting a proposal to this effect to the Depositary Governments, the convening of further conferences with the same objective of reviewing the operation of the Treaty.
last conference 2010, next 2015, managed by UNODA – UN Office for Disarmament Affairs
2015 NPT Review Conference
Preparatory Committee:
Second Session of the Preparatory Committee, 2013
First Session of the Preparatory Committee, 2012
http://www.un.org/disarmament/WMD/Nuclear/NPT_Review_Conferences.shtml
Thanks but my question was more narrowly focused on Dan’s statement:
“And in particular, the material on whether Iran has violated the NPT, which begins on Pg. 10, is unfortunately quite erroneous. It really just relies on what the U.S. State Department thinks on the question, and their analysis is also low quality and erroneous.”
Is there an Agency that has the remit to weigh in on whether any nation has violated the NPT?
Or is the NPT more similar to the Outer Space Treaty which also has no enforcement arm?
My view is the latter, but I am open to discussion as I am not an expert in the law.
I believe you’re looking for a court, not an agency, that would adjudicate treaty differences. I don’t know of any international court that would act on international agreements as domestic courts are employed in (large) commercial contract disputes.
So as we’ve seen the IAEA acts ‘way beyond its treaty authority and gets away with it, including referring Iran to the UNSC which acts as a court. What’s the legal authority for that? The UNSC certainly hasn’t acted against Israel, which has defied an almost endless list of UN condemnations (UNSC, UNGA, Human Rights) nor against the US with its world war on terrorism (a crime).
Yousaf, the NPT is not “enforced” — there is basically only a provisoin for referral to the UNSC if the inspectors are not able to account for declared nuclear material.
Isn’t that the job of ICJ to resolve the differences between member states and the Agency enforcement of NPT?
Good question. But I’d submit, per an older discussion with Dan, that the Agency is NOT tasked with NPT enforcement but only checking on CSA compliance. The CSA and NPT being very distinct legal entities.
The IAEA is definitely not an enforcer or adjudicator of the NPT. As with most multilateral treaties, there is little practical chance of getting an authoritative adjudication of any question of NPT compliance. The ICJ would have subject matter jurisdiction over such a question generally, but states have to consent to the ICJ’s “personal” jurisdiction in order to be either petitioner or respondent in a contentious case before the court. There is also of course the ICJ’s advisory jurisdiction, as it used in its 1996 opinion about nuclear weapons which touched on the NPT, but advisory decisions are nonbinding. So basically there is no practical recourse for authoritative legal determination of compliance with the NPT. Again, that’s not at all unique in the international legal system. Its more the rule than the exception. This is probably the most frustrating aspect of being an international lawyer – at least it is to me. In the absence of such adjudication, states are generally left to their own opinions, hopefully assisted by legal scholars, about their own and other states’ compliance with international law. They can try to build coalitions around a particular view, and persuade others of their opinion. You can think of this as a form of informal horizontal compliance determination. But its still informal. The Security Council is also not an adjudicator of law, or really an enforcer of law. Their standard for action is in cases where there is a threat to international peace and security. A breach of law is not per se required for such a threat to exist. The IAEA has no competence to determine compliance of states with their obligations under the NPT. Full stop. It can only determine compliance of states with their safeguards agreements with the IAEA. And as I’ve explained before, this is best understood not as a legal judgment of breach, but as a preliminary technical assessment of noncompliance. Two different things.
Dan,
thanks very much — very helpful. At some point it may be worth a post, in my view.
So basically when people say that Iran is “not living up to its NPT obligations” — that is their personal view.
The IAEA’s take on Safeguards compliance or non-compliance (CSAs) does not have an automatic implication for whether states are “living up to their NPT obligations”.
As you concisely put it:
” The IAEA has no competence to determine compliance of states with their obligations under the NPT. Full stop. It can only determine compliance of states with their safeguards agreements with the IAEA. ”
Would be good if that message got out more forcefully so we don’t have misinterpretations of the NPT from the State Dept and the non-proliferation community alike.
Also, as has been noted on this blog before CSA noncompliance findings are highly subjective and politicized.
I’ll hopefully have a piece out on this soon.
Dan: ‘There is also of course the ICJ’s advisory jurisdiction, as it used in its 1996 opinion about nuclear weapons which touched on the NPT, but advisory decisions are nonbinding. So basically there is no practical recourse for authoritative legal determination of compliance with the NPT.”
I find those two sentences to be….. confusing, I suppose.
Consider this:
a) A member state does “this”.
b) The UN asks the ICJ for an advisory opinion of the implications under international law of that country doing “this”.
c) The ICJ sits, listens to all the submissions, and then gives its opinion: Doing “this” is indisputably a violation of international law.
In essence:
The UN has just asked: Is this legal, or what?
The ICJ has just replied: Are you kidding? Of course it’s illegal.
In what way is such an Advisory Opinion not an “authoritative legal determination” of non-compliance with international law?
And if it is (as I believe it to be) then in what way can that determination be “nonbinding” on law-abiding nations?
Sure, they can refuse to lift a finger, but they can’t pretend that what they are doing is anything other than averting their gaze from a crime.
As I said, I must be confused…..
Hi Johnboy, yes this point can be a bit confusing. Let me see if I can clarify. If the question is, is an ICJ advisory opinion legally binding on states, just like its judgements in contentious cases, the answer is very clearly no. That means that legally a state does not have to comply with the judgment of the court in an advisory opinion, as it does if a judgement in a contentious case is rendered against it.
If the question is, do ICJ advisory opinions authoritatively adjudge the legality or illegality of a state’s actions, then it depends on what one means by authoritatively. If one means that the principal judicial body of the United Nations has given its opinion on the legality of the matter, which is the most highly respected judgement that can be given on the matter, then in that sense yes, the court has spoken authoritatively on the matter. And the international legal community will presumptively accept the court’s opinion as an answer to the matter. If one means by authority, however, that the court’s opinion carries with it the authority to bind states to act in accordance with their judgement, then going back to the first question, the answer is no. Does that help?
This is not a process, or concept that we in common law countries are familiar with. Our courts do not typically give judgments outside of an actual controversy between parties who are before the court, and who are then legally bound to comply with the court’s decision. But in the civil law tradition, advisory opinions by courts, in contexts where there are not parties directly before the court in the case, are more common.
OK, I’m pretty sure I understand what you are saying.
I only have one remaining question, and it is essentially the mirror-image of the question of the non-binding nature of ICJ Advisory Opinions.
Take the ICJ Advisory of the separation wall, where the court opined that the wall was illegal under int’l humanitarian law and, furthermore, that states are obliged to, well, cold-shoulder anything to do with the building of that wall.
My question is this: Does that advisory opinion give sufficient LEGAL justification to boycott, divest, sanction, etc., entities that are engaged in that illegal activity?
Or, put another way: if entities in the EU slap BDS’s on Israel (a political decision), and Israel responds by seeking legal remedy in an int’l court (i.e. seeks to overturn that political decision via court action), would that advisory opinion be sufficient to ensure that this is a hopeless brief?
A long-winded question, I admit, but I have always been intrigued by claims that the 2005 ICJ advisory opinion was a meaningless waste of the court’s time.
Well, no, it’s still out there.
And as far as I can tell all it takes is for someone (EU, anybody?) to pick it up, dust it off, and decide to run with it…..
That is a good question, and the Wall opinion is a good example.
I dont think it was at all a waste of time for the court to give its judgment in the Wall case. The decision was very clear and virtually unanimous as I recall. Even if technically nonbinding, it sent a powerful message that the highest international court in the land considered the settlements in the WB to be illegal, and the wall to be illegal. I think this was a major diplomatic blow to Israel, and gave compelling talking points to everyone that opposes Israel’s actions in the WB. I think this case is an example of the best possible use of the court’s advisory jurisdiction.
To your specific question, it would really depend on which entity was doing the sanctioning – a state or the EU. That would determine to a large extent the directly applicable law, whether national or EU. In either case, though, if the sanctions were to be challenged, the challenge would probably be based on that directly applicable law, in the form of some kind of due process claim. And it would have to be defended by the sanctioning entity primarily by reference to that directly applicable law and the standards it contains. However, I think the fact of the ICJ opinion could play a significant role in that defense, by showing that the domestic or EU institution’s judgment was in harmony with general international law, as determined by the ICJ.
I know thats a complex answer, but its quite a complex question. Its the kind of question that keeps lawyers in jobs.
I second that. Look forward to that post.
Agree — I think once and for all settling the brouhaha over the “Is Iran not living up to its NPT obligations?” question would be worthwhile.