Sandy Spector on a “Return or Destroy” Requirement for the Iran/P5+1 Deal
Posted: November 19, 2014 Filed under: Nuclear 4 CommentsI 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.
Arms Control Law 
I think it is useful to review why Iran went clandestine in the first place — while noting that things can be clandestine but not necessarily illicit:
http://nationalinterest.org/commentary/eight-ways-youre-wrong-about-irans-nuclear-program-9723?page=show
QUOTE:
“Meme 8: “Iran has been deceptive in the past so we cannot trust them.”
Iran’s nuclear enrichment program was not covert by initial design. Iran’s nuclear program was kicked off in the 1950s with the full encouragement and support of the United States, under president Eisenhower’s Atoms for Peace program. In 1983, after the Islamic revolution, Iran went—in an overt way—to the IAEA to get help in setting up a pilot uranium enrichment facility. And the IAEA was then quite receptive to the idea. According to an authoritative account by Mark Hibbs in Nuclear Fuel, “IAEA officials were keen to assist Iran in reactivating a research program to learn how to process U3O8 into UO2 pellets and then set up a pilot plant to produce UF6, according to IAEA documents obtained by Nuclear Fuel.” But, according to Hibbs, “when in 1983 the recommendations of an IAEA mission to Iran were passed on to the IAEA’s technical cooperation program, the U.S. government then ‘directly intervened’ to discourage the IAEA from assisting Iran in production of UO2 and UF6. ‘We stopped that in its tracks,’ said a former U.S. official.”
So when Iran’s open overture to the IAEA was stymied politically, they used more covert means to set up their enrichment facilities. Enrichment facilities by their nature can be dual-use, of course, but they are certainly not disallowed under the NPT. Iran’s allegedly “covert” or “sneaky” behavior may thus have been a response to the politicization at the IAEA documented in Hibbs’ Nuclear Fuel article.
A good way to stop the propagation of dual-use nuclear technology is to implement a revamped “NPT 2.0” that explicitly discourages the propagation of nuclear fuel-cycle and nuclear power technology.”
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Iran would not have to go clandestine if it was not pushed to do so by the politicization of the IAEA.
The real problem is the politicization at the IAEA.
Lance that boil.
Start by getting a new chief: Amano has zero (negative?) legitimacy.
“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”
This is true of a number of Security Council resolutions. UNSCR1701 springs readily to mind – nowhere does it tell Hezbollah that it must disarm, instead it tells all member states that they must not send arms to Lebanon “except as authorized by the Lebanese government”.
Apparently those forms of words are much easier to get past the permanent members, and so it really is a “distinction with a difference” and not just a splitting of hairs.
Thanks for drawing people’s attention on these political manoeuvres in the context of Iran nuclear talk.
It is not surprising that countries led by the US bully Iran by blaming the country for breaches of international law whereas some of which are not even committed by Iran. When the US decided to use force against Iraq in 2003, they claimed that Iraq is developing weapons of mass destruction. However, they blew up the whole country and found no trace of these weapons. They use legal arguments to serve their political interests.
The nature of international law certainly contributes to this instrumentalism. International treaties and conventions are based on political consensus among states. They are often very vague and unspecific. States can flexibly interpret the provisions in order to achieve political goals. For example, the US redefined torture in order to avoid liability under international law, mainly the Torture Convention.
Apart form international treaties/conventions, UNSC resolutions are sometimes abusively used. The binding resolutions are based on the consensus of a small group states. It is rather easier to abuse the power of this UN organ since every country is bound by UNSC resolutions. Countries can be put under international obligations by UNSC resolutions disregarding whether the country signed and ratified a particular treaty/convention or not. Sometimes, these resolutions are tools of big bullies. For example, North Korea, withdrew from NPT, has to be abide by NPT and even by CTBT (which has not even entered into force) because of UNSC Resolution 1718 (example given by Dr. James Fry in his class of Arms control and Disarmament Law). This demonstrate that it is not difficult to bully Iran by simply referring to UNSC resolutions. Passing a UNSC resolution has become a legitimate way for states to serve their political interests.
I am very interested in the interpretation of the domestic export control laws of states and the fact that it is typically the exporter/seller who is responsible for the transaction.
I remember in the case of Germany’s exports to Iraq in the early 1990s, the blame was laid upon the exporter/supplier and the German Government. The German government did go ahead and make changes to its export control legislation, especially enforcement procedures. An extensive authorising process, end-user controls, regulated internal-compliance, heavy penalties and prosecution for company officials has resulted in a tightening of the export control regulations.
However, getting back to the current topic, it is generally established that it is the exporter who is responsible for the export and in case of exports of prohibited imports, it is the exporter who is responsible for the violation. Therefore, I do not understand how Iran can be held responsible for the ‘unlawful’ act of import when it is the export that is regulated.
I do think, however that countries should follow the German system (or better) and strengthen its export control regulations, cover the existing loopholes, and be more responsible exporters especially for exports of weapons, munitions and other items that can be used in WMD programs.