Sandy Spector on a “Return or Destroy” Requirement for the Iran/P5+1 DealPosted: November 19, 2014
I was just reading a new piece by Sandy Spector over at Eurasia Review. He’s arguing in this piece that, as part of the Iran/P5+1 nuclear deal, there should be an agreed requirement for Iran to either return or destroy items that were procured by Iran and used in its nuclear program, the procurement of which violated either national export control laws of other countries, or relevant UN Security Council Resolutions.
I think the article overall fits nicely in the “let’s try to obstruct a nuclear deal by throwing in all the historical baggage” file. That file also contains all the PMD allegations.
Sandy is certainly right that the sale to Iran of some items currently in use in Iran’s nuclear program was in violation of various countries’ export control laws, and arguably in violation of UNSC Resolutions, including Resolution 1737. It’s less clear to me that in any of these instances it was Iran that violated the applicable law, as opposed to whoever the seller was whose activity was actually subject to the law.
In the case of the domestic export control laws of states, including the US, it’s typically the exporter/seller, who is a national of the state imposing the law, who is subject to its application, and who violates the law by engaging in the prohibited transaction. Generally speaking, national export control laws do not and cannot make illegal the actions of another sovereign state. And even if they were to, there is no principle of international law that would require the target sovereign state to comply with such an extra-territorial law of the imposing state. So I don’t see how Iran’s procurement of items, the sale of which to Iran was unlawful for exporters under foreign national laws, was a meaningfully unlawful act by Iran.
As for UNSC resolutions including 1737, in a similar vein, the operative obligations were imposed on states prohibiting their export to Iran of covered items. So to the extent that violations occurred, it would be the exporting states that were in violation of their obligations. It’s not clear to me that there was in these resolutions any obligation applicable to Iran itself, and obligating it to not procure these items.
I know you could say that, particularly on this last point, I’m splitting hairs a bit. But I also think that the spirit of the matter argues against taking the view that Sandy does in this piece.
Iran’s file should never have been transferred to the UNSC from the IAEA in the first place. And as I’ve argued elsewhere, the UNSC overstepped its own authority in subsequently imposing requirements on Iran relating to its civilian nuclear energy program.
Even if there had been some justification in 2006 for the requirements imposed by Resolution 1737 et al., those requirements should have been withdrawn after IAEA DG ElBaradei’s February 22, 2008 report to the IAEA Board of Governors (GOV/2008/4), in which he determined that all declared fissile material in Iran was in peaceful use, and that all prior concerns the IAEA had registered involving fissile materials and related facilities in Iran had been resolved through dialogue with Iranian authorities.
The UNSC resolutions on Iran have from the beginning been politically motivated and without merit. They should not now be accorded the dignity that Sandy wants to bestow on them, by making sure that every jot and tittle of the resolutions are honored by Iran, even after a comprehensive political solution is reached between Iran and the P5+1.