Report: North Korea May Be One Test Away from Miniaturization

From this report:

Li Bin, a physicist and nuclear policy expert at the Carnegie Endowment for International Peace, said North Korea could be just one test shy of making the crucial leap to miniaturisation — the ability to fit a nuclear warhead on a missile.

 “If they can do more nuclear tests, maybe just one more, they would be able to have a small and more reliable device,” Li said.

I’ve said it many times before. North Korea is the one we should be most concerned about. Not Iran. Where’s the hand wringing and speeches by members of Congress on this problem?  You know – the one that we KNOW is getting worse and IS DEFINITELY a threat to international peace and security?!?!?


Iran’s Response to the Most Recent IAEA Report

See this Reuters report for an update on diplomacy between Iran and the IAEA, including a link here to Iran’s formal response to the IAEA’s August 28th report on its nuclear program.

I did a post back in July on Iran’s response then to the IAEA’s May 22 report.  There’s alot of overlap in this new response by Iran, but some new stuff as well.

Overall I think its important to have the legal arguments of both sides well aired, and Iran has in my opinion done a good job of setting out its legal arguments in these responses. And I think that in many cases their arguments are correct and persuasive. For those who think international law should play a role in international relations, these are important documents, and I hope others will take the time to read and objectively consider the legal arguments both of the IAEA and Iran on this issue.


New Security Council Resolution Draft Text on Syria

Well we now finally have the language that is likely to be approved by the UN Security Council today and adopted as a Security Council resolution. You can see the text here, as reported by Reuters.

In many ways, this resolution is similar to UNSC Resolution 687 adopted by the Council after the first Gulf War, and instituting the regime for disarming Iraq of its nuclear, chemical, and biological weapons stockpiles.

There are of course a number of differences, one being that this new Syria draft resolution is in response to an actual use of chemical weapons, and focuses almost exclusively on chemical weapons disarmament.

In terms of the legal aspects of the new Syrian draft resolution, it noticeably is not adopted under the Council’s Chapter VII powers. When the Council acts under Chapter VII, it will always say this explicitly right before the operative paragraphs begin. But what does this mean?

There is a common misunderstanding in media reporting that UNSC resolutions adopted under the Council’s Chapter VII authority are legally binding, whereas resolutions not adopted under Chapter VII authority are not legally binding. This is an incorrect understanding. And the new Syrian draft resolution makes this quite clear when it correctly says “Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions.” So if this resolution is adopted by the Council, it will be legally binding on all U.N. member states, including Syria.

The significance of the Council specifying in a resolution that it is acting under its Chapter VII authority is not in the bindingness of such a resolution, but in the fact that, having invoked its Chapter VII authority, the Council is then able to exercise a greater range of powers than if it is not acting under its Chapter VII authority. In particular, Articles 41 & 42 Chapter VII of the Charter specify both non-forceful and forceful measures which can be authorized by the Council, after the Council has determined the existence of a threat to international peace and security under Article 39.

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

Note again that Chapter VII includes both non-forceful and forceful measures to deal with a threat to international peace and security. This is an important fact for understanding what was reportedly the most sensitive and contentious part of the draft resolution during negotiations between the US and Russia – the closing section on compliance. The draft resolution states that the Council:

Decides, in the event of non-compliance with this resolution, including unauthorized transfer of chemical weapons, or any use of chemical weapons by anyone in the Syrian Arab Republic, to impose measures under Chapter VII of the United Nations Charter.

Reportedly, one of the major hangups in negotiations over the draft resolution’s language between the US and Russia was whether the resolution would either explicitly or implicitly authorize the use of force in the event of noncooperation or noncompliance by Syria. In my reading, the Russian view seems to have very much won the day in the present text.

Not only does the text not invoke the Council’s Chapter VII powers for acting in this resolution itself, but in the excerpted section on compliance, it only says that in the event of noncompliance, the Council will act to impose measures under Chapter VII. These could be any number of a range of measures, from diplomatic censure, to economic or financial sanctions, up to and including military force. But importantly there could be no argument, in my view, based on this text that noncompliance on the part of Syria automatically triggers a right on the part of the US or any other state to legally use military force against Syria. This, it will be recalled, was a key element of the US/UK legal argument for the legality of the 2003 Iraq war – i.e. that UNSC Resolution 1441 did contain such an “automaticity” of authorization of force (See Chapter 7 of my 2009 book for a full narrative on this).

So overall, I read this draft resolution as effectively imposing a legally binding disarmament regime on Syria, and adding further weight to Syria’s obligations of compliance with OPCW and UN inspectors. But it does not change the legal dynamics of the argument concerning a potential use of military force against Syria by the US or any other country. On that subject, we are still where we were yesterday.

I do stand by this conclusion, although I also want to note something I found interesting about this draft resolution. In both the preliminary and operative paragraphs, the text states in at least two places that the Council determines that the use of chemical weapons, in Syria or anywhere else, “constitutes a threat to international peace and security.” And it also recognizes in the preliminary paragraphs that chemical weapons were used in Syria.

I find it a bit strange that the Council would use the “trigger” language for its Chapter VII authority pursuant to Article 39 of Chapter VII, but then not explicitly state that it is acting under Chapter VII, as it always explicitly does. I don’t remember ever seeing this particular combination of aspects before in a Security Council resolution. Can others find examples of this, or is this a case of first instance?

It does raise a query in my mind of whether the US negotiators wanted to get this language, amounting to a determination of a threat to international peace and security, into the resolution, even if they couldn’t get an explicit acknowledgement of the Council acting under Chapter VII into the text.  Could this be laying the ground work for some future argument by the US that the Council was indeed acting under Chapter VII here, even though it doesn’t say it is? I don’t know. That would be a very significant deviation from normal Council procedure of explicitly stating when it is acting under Chapter VII. But from the experience of viewing the competing interpretations of Resolution 1441 in 2003, and the fairly clear attempts by both sides in that debate to insert language into the resolution supporting their respective positions on the future legality of the use of force (see Byers’ paper on this), this is at least something to be aware of.


Update on Syria and Goings on at the UN

I was listening to NPR this morning and just laughed out loud when I heard US ambassador to the UN Samantha Power criticizing Russia for holding the Security Council “hostage” and preventing Council action on Syria. Here are her remarks in a WSJ piece:

“The U.S. ambassador said to “stand back would endanger not only international peace and security but the very international system that we have working these decades to build.” She said that for Russia as Syria’s “patron,” to block agreement on the council went against the “spirit” of the U.N. charter.”

Yes, that must be really frustrating for the US to have to deal with another permanent member of the Security Council, who appears willing to protect a state under its patronage from any and all Security Council action against it. I mean, Ambassador Power is completely right, here. That does fly in the face of the UN Charter system and is an abuse of the veto prerogative given to permanent members of the Security Council under the Charter.  It’s a good thing the US never does anything like that. Here are a few links that in no way demonstrate the hypocrisy of the US position. Here, here, here, here.

Whatever. Everyone knows that politics is no place to find principle and consistency.

WRT the substance of what has been going on re Syria, I’ve kind of been waiting like everyone else has to see in more detail what the Russian proposed, and American agreed-to-in-principle deal for disarming Syria will look like. As I said previously, I’m certainly for the idea in theory, but I’m still pessimistic about it being carried through to completion.

From a legal perspective, I’m concerned that, maybe without really even noticing it, we’ve switched legal paradigms now for dealing with what was originally a grave violation of the law of armed conflict – the use of chemical weapons. In the immediate aftermath of this event, I supported a limited use of force against Syrian military targets in order to send a clear message of the unacceptability of this violation of a longstanding norm of international law.

Now with the new Russian disarmament plan, we seem to be moving away from the original idea of punishing and deterring use of CW, which I see rooted essentially in the law of armed conflict and to a lesser extent international use of force law WRT the response, to more of an arms control law paradigm of compelling Syria to sign the CWC, and work with OPCW and/or UN inspectors to verifiably disarm Syria’s CW stockpile.

As many commentators have already noted, the machinery of arms control law has never been used in quite this way in the past – i.e. as a response to an unlawful use of WMD, inside a continuing war zone. Typically, the machinery of arms control law has been used in a more preventative way, to ensure that WMD are not used in the future. I certainly understand that there is some overlap here with the idea of deterring Syria from using WMD in the future. But I don’t think the overlap is complete. Deterrence and prevention are not the same thing. You deter someone from doing something by convincing them that the cost of doing that thing exceeds its benefits. This is what I think president Obama’s credible and continuing threat of the use of force against Syrian military targets has accomplished. I really see the disarmament process through the machinery of arms control law in this case, as being rather tangential, and essentially epiphenomenal.  It is serving the role of a secondary sign of evidence that Assad has gotten the message, and will agree to make whatever public gestures are required of him, to avoid the actualization of that threat.

The disarmament process in and of itself would never be able to give full assurance that Assad would not be able to hide CW, or reconstitute his CW program, in order to allow his further use of CW. So again, I don’t see the use of arms control law machinery in this case as the independent variable producing confidence that he will not use CW again. This role, I think, has been and must continue to be played by the credible US threat of force, in a limited but effective way, to punish any future uses.

So in all, I think the diplomatic process and the use by Syria of the CWC/OPCW process for declaring and disarming itself of CW is a good thing. I’m still pessimistic, though, that the process will be followed through to successful completion under the circumstances in Syria. If it does, it would be a case of first instance for a state in such a situation.  But I actually think that the most important element of the response to Syria’s CW use – deterrence – has already been accomplished through President Obama’s credible threat of the use of force. And for that reason, I hope that the promise of action in the event of future CW use remains in place.

Just briefly on the wrangling going on between the US and Russia regarding the structure and content of a potential Security Council resolution on Syrian disarmament, I think all international lawyers who work in the security area are struck by the déjà vu of the 2003 wrangling that ultimately produced UNSC Resolution 1441. My mentor professor Michael Byers wrote a great article on that process and its result, which you can see here. I also wrote about it at length in chapter 7 of my 2009 book.

I think the takeaway from this revisitation at the moment is that Russia learned its lesson through the unfortunate experience of Resolution 1441, and its subsequent use by the US as a justification for war in Iraq, about having any ambiguity in UNSCRs regarding use of force authorization. I expect they will stand pretty strong on the wording this time to make sure no such ambiguity exists this time around.


Rouhani’s WaPo Op-ed, Trip to the UN, Major New Concession, and an Opportunity Not to be Missed

Many will have already read Iranian President Hassan Rouhani’s op-ed published yesterday in the Washington Post. Part of an interesting trend lately, begun with Russian President Putin’s op-ed in the NYT last week, of foreign leaders trying to speak directly to the American people through leading American media outlets.  Rouhani’s op-ed is just the most recent installment in a number of statements by the new Iranian president, including through a Twitter account, in which he has tried to strike a much more conciliatory and positive tone with the West and with Israel than his predecessor Mahmoud Ahmadinejad. He has said repeatedly that he is willing to negotiate on a real and meaningful basis with the West in order to resolve the dispute over Iran’s nuclear program.

It has been reported that President Obama and President Rouhani have already exchanged letters, in a very rare instance of direct communication between US and Iranian leaders. Further, in what appears to be a significant sign of goodwill, the US Treasury department has twice this year eased some provisions of its sanctions on Iran.

In the midst of these positive signs of a changed tone and willingness on the part of both sides to cooperate productively in negotiations regarding Iran’s nuclear program, President Rouhani will be traveling to the United Nations in New York next week, for his first address to the UN General Assembly.

In perhaps the most significant sign yet of Iran’s commitment to serious negotiations with the West over its nuclear program, the German magazine Der Spiegel reported a few days ago that President Rouhani is prepared to offer as a concession something that President Ahmadinejad would never have considered offering – the decommissioning of of the Fordow enrichment facility. The decommissioning of Fordow has been one of the P5+1’s longstanding demands in the negotiations.  I wrote about it in one of my very first ACL posts last summer, including the explicit rejection of this idea by Iran’s IAEA representative at the time. The Der Spiegel report says that Rouhani may even make this offer publicly during his UN visit next week.

It it’s true that Rouhani is willing to put the decommissioning of Fordow on the table, then people can stop their dismissal of Rouhani’s recent statements as a charm offensive without any real substance. The decommissioning of Fordow would be a major concession by Iran to Western demands, and would, as part of a negotiated package deal, deserve a reciprocal major concession on the part of the P5+1, in the form of real and meaningful sanctions relief for Iran.

I think that the current circumstances of Rouhani’s election and mandate from the Iranian people, and his expressed willingness to negotiate productively and to put major concessions on the table, represent a historic opportunity that President Obama would be a fool to miss. I think he has a real chance here to do something that would re-earn him his Nobel Peace Prize – negotiate an accord with Iran over its nuclear program that will significantly reduce international tension surrounding this longstanding dispute, that has harmed the reputation of the US and the EU in the world, seriously damaged the perceived credibility of the IAEA, and harmed millions of Iranian civilians through international sanctions that courts in the EU have repeatedly found to be unlawful.

If President Obama takes this opportunity to lead the P5+1 to a negotiated accord with Iran, I think there is a real possibility for rollback of UN Security Council sanctions on Iran. This in turn would likely lead to a significant rollback in EU unilateral sanctions on Iran, which I suspect EU leaders would welcome in light of the ongoing legal problems they have encountered in implementing them. Rolling back US unilateral sanctions on Iran will be the most difficult part of the puzzle to put into place, primarily due to the influence of special interest groups supporting pro-Israel policies in Congress. I’m much less optimistic about meaningful unilateral US sanctions rollback. But rollback of UN Security Council sanctions and EU sanctions would appear eminently achievable if President Obama decides to exercise his second-term prerogative of doing what is, in fact, in the best interests of the United States and the world, even if it’s not politically popular in Congress, and seizing this historic moment to negotiate a meaningful diplomatic accord with Iran.


UPDATE: Israeli Nuclear Capabilities Resolution at the IAEA GC

I did a post a while ago about the Israeli response to a proposed agenda item for the 2013 IAEA General Conference, which is going on right now.  The item, which did in fact make it onto the agenda, is to vote to express concern regarding Israeli nuclear capabilities, and urge Israel to join the NPT. The General Conference adopted a similar resolution concerning Israeli nuclear capabilities in 2009, though in 2010 the resolution was defeated in the GC. According to a Reuters story today, the vote on that agenda item may take place this Thursday.  As the article explains:

Frustrated over the postponement of an international conference on ridding the region of atomic arms, Arab states have proposed a resolution at a U.N. nuclear agency meeting expressing concern about “Israeli nuclear capabilities”.

The non-binding text submitted for the first time since 2010 to this week’s member meeting of the International Atomic Energy Agency calls on Israel to join a global anti-nuclear weapons pact and place its atomic facilities under IAEA monitoring.

Israel is widely believed to possess the Middle East’s only nuclear arsenal, drawing frequent Arab and Iranian condemnation. It has never acknowledged having atomic weapons.

U.S. and Israeli officials – who see Iran’s atomic activity as the main proliferation threat – have said a nuclear arms-free zone in the Middle East could not be a reality until there was broad Arab-Israeli peace and Iran curbed its programme.

Washington is committed to working toward a Middle East zone free of weapons of mass destruction (WMD) and their delivery systems, the U.S. envoy to the IAEA said.

But the Arab resolution “does not advance our shared goal of progress toward a WMD-free zone in the Middle East,” Ambassador Joseph Macmanus said in a comment emailed to Reuters.

“Instead, it undermines efforts at constructive dialogue toward that common objective,” Macmanus added.

Israel and the United States accuse Iran of covertly seeking a nuclear arms capability, something the Islamic state denies.

Iran this week said Israel’s nuclear activities “seriously threaten regional peace and security”.

World powers agreed in 2010 to an Egyptian plan for an international meeting to lay the groundwork for creating a Middle East free of weapons of mass destruction.

But the United States, one of the big powers to co-sponsor the meeting, said late last year it would not take place as planned last December and did not suggest a new date.

Arab diplomats said they refrained from putting forward their resolution on Israel at the 2011 and 2012 IAEA meetings to boost the chances of the Middle East conference taking place last year but that this had had no effect. A vote on the text may take place on Thursday, one envoy said.

UPDATE: The vote was held today and, as this article reports, the resolution was defeated by a vote of 51-43.  I am surprised by this outcome, as I think many observers are. I’ve heard that there was alot of behind-the-scenes arm-twisting going on in Vienna and in national capitals by US diplomats, trying to get states to vote against the resolution and protect Israel from another negative resolution by the IAEA GC.

I have of course written about Israel’s nuclear weapons in the past, including here, and while I do have sympathy for the Israeli position in many respects, I also think that Israel and its patron the US have to concede the obvious double standard of their criticism of states like Iran that have joined the NPT and do not have nuclear weapons, as compared with their refusal to suffer any criticism of Israel for not joining the NPT and having nuclear weapons.


The Melbourne Journal of International Law Screws Me Over

So, last February I received the following invitation from the Melbourne Journal of International Law, a peer reviewed journal at the University of Melbourne in Australia:

Having reviewed your recent work, ‘Interpreting the Nuclear Nonproliferation Treaty’, we are confident that any submission of yours would serve as an important contribution to this field of inquiry. MJIL publishes Commentaries of between 5000 and 8000 words, which are fully-referenced think-pieces aimed at exploring or critically examining an issue or idea without needing to come to a definite conclusion.MJIL is a peer-reviewed journal, publishing commentaries, review essays and full articles dealing with public and private international law issues” (italics added)

The invitation I think quite clearly set the parameters for what I was invited to submit: a commentary that was to be a “think-piece” exploring the agreed area, without necessarily advancing and supporting a thesis as one would do in a full academic article. This commentary format for the piece was clearly distinguished from other formats published by the journal, including review essays and “full articles.”

So I did precisely what I was invited to do. I spent months researching and writing a commentary on an agreed topic – the rights of states in international law. The commentary was tailor-written to this invitation. I did not set out to write a “full article.” That’s not what I was invited to do. The tone and substance of my piece were perfectly in keeping with the “think-piece” commentary that I was invited to submit.

A few days ago, I received the three peer reviewers’ reports, and a rejection of the piece by the editors of the journal. Now, I’ve been through peer review of my work many, many times. And I’ve had my share of rejections. What upsets me most about this particular instance is not that the reviewers didn’t like my piece, it’s that the reviewers clearly used the wrong standard of review when evaluating my piece. Here’s a couple of excerpts from the reviews.

“A much deeper theoretical exploration would be needed to justify publication, and this the piece lacks. Assertions like “I would like to argue that the states’ rights program can be seen as adding a new dimension to the scholarly literature on the constitutionalization of the international legal system” (p. 16) are left in isolation from the rest: these are assertions with nothing like the integral connection to the raw material (history, practice, treaties) that would be necessary for a serious academic article.” (italics added)

“This article contains the seeds of a potentially interesting and worthwhile project on the concept of states’ rights.  However, in its current form it is not sufficiently well developed to stand alone as an article. The tone is too casual, the range of issues addressed is too broad and therefore too thinly covered (the development and maturation of the international legal system, globalization, fragmentation of international law, developments in the security council etc.) and the order and organization of the ideas requires significant further refinement. (italics added)

When I read these reviews, it’s clear to me that at least two of the reviewers were not reviewing my piece as a “think-piece” commentary, but as a “full article,” and that their criticism is based on this erroneous standard. That’s what frustrates me about this. I think that the definition of the invited work in my invitation letter is just impossible to reconcile with at least two of the reviewers’ responses.

I have tried to explain to the editors of the MJIL how this is a serious problem for the journal. They invited me to write a piece in a specific format, implying a promise that my work would be reviewed for publication according to the proper standards relating to that format. I wrote exactly such a piece, expending a lot of my time and effort in good faith reliance on their invitation and implied promise. They are now refusing to publish my work in the journal because they have caused/allowed the peer reviewers to review my work according to a clearly erroneous standard, and even after this problem has been demonstrated to them, they are stubbornly refusing to right this wrong. Essentially, this is a bait and switch – asking me to do one thing, and then switching the standards for accomplishing that thing to much different and more demanding standards later.

I have tried to work with the editors directly over the past few days, but they are refusing to work with me in a reasonable way. Basically, I’ve been baited and switched out of months of work, and now have nothing to show for it.

This is all a shame, because up till now I’ve always had a high opinion of the Melbourne Journal of International Law. But I would now sound a note of caution to my international law academic colleagues out there about working with the MJIL in the future.

UPDATE:  Many will have seen Kevin Jon Heller’s reply to this post on Opinio Juris. Though you can’t see it anymore. He has taken it down, likely because the comments were overwhelmingly supportive of my position, and several questioned the propriety of his detailed justification of the MJIL’s treatment of me in that forum.

In my original post, I purposely left Kevin’s name out of my complaint, to avoid personalizing the issue with him. He, unfortunately, did not show the same level of respect and judgment in his post.

But before he deleted it, I think he actually provided some of the best evidence yet of the failings of the MJIL editorial staff that were a primary cause of the incorrect outcome in this case. Kevin wrote:

“In one important respect, Dan’s objection was unjustified: the emails that MJIL sent to the reviewers asking them to review Dan’s submission clearly stated that the submission was a commentary, not an article. That said, the emails did not specifically lay out the standard of review appropriate to a commentary — and I agreed with Dan that it seemed likely at least one of the negative reviewers had, in fact, held his submission to the standard of an article, not an informal commentary.”

In this quote Kevin says two important things. One, that the MJIL editors failed in their correspondence with the reviewers to explain the correct standard of review. This fact alone shows negligence and a lack of professionalism and I think is the primary cause for the erroneous reviews of the reviewers.

Second, Kevin says that on his read of the reviewers’ comments, he agreed with me that at least one of the reviewers appeared to use the wrong standard of review. He later explained that the MJIL editors spoke with the reviewers again after I raised my objections. At that point, it would be natural for the reviewers not to want to repeat their review, and therefore to say that their review still stands, even under a different standard.

In my view, this ex post facto discussion with the reviewers is irrelevant. What is relevant is the ex ante facts that the reviewers did not have explained to them the correct standard of review, and that both I and Kevin could see that at least one or possibly two of them had objectively used the wrong standard in their review.

In my opinion, these are sufficient facts to justify setting aside one if not both of the negative reviews. Again, however, even in light of this evidence supporting my complaint, the MJIL editors have refused to work out a reasonable resolution with me.

In his most recent Tweet on the matter, Kevin says it’s sad that I can’t just get over this. But I suspect that if the tables were turned, and he had put months of work into something tailor-made to match an invitation, and then had that piece rejected according to improper procedures, and had to just eat the loss of all that work, he’d be singing a different tune.