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.

UPDATE: Is the IAEA Director General Trying to Scuttle the Middle East WMD Free Zone Program?

IAEA ME Report 2013 Addendum

I wanted to provide an update to this piece that I wrote last week and that has gotten a good bit of attention.  I have just been sent an Addendum to the 2013 Middle East report, which re-inserts the language specifying the states to be included in a ME WMD FZ, back into footnote 1 of the report. See the document attached.

This is an interesting development. I know that some people have argued that leaving the language out was just an honest oversight. I don’t buy that. Anyone who has worked on legal documents knows that any minimally competent lawyer will be sure to reference the template that has been used in the past for the same document, and will in fact probably use that template when constructing the new document. So the idea that a footnote that has been part of the report template for the past eight years would have just been forgotten in the newest version of the report, evidences one of only two possible facts: either 1) the OLA lawyers who wrote the document were incompetent; or 2) the language was removed intentionally, on instruction.  I think that the latter is by far the more likely.

As I said in my last post, I suspect the drafters simply hoped no one would notice the change.  And now that it has been noticed, and objected to formally by a member state (the UAE from what I understand), they have had to re-insert the language.

Is the IAEA Director General Trying to Scuttle the Middle East WMD Free Zone Program?

I’ve written here several times about the failure last year to hold a Middle East WMD Free Zone meeting, as was unanimously agreed to in the 2010 NPT Review Conference Final Document. See my post here, which links to other earlier posts.

While there have been many voices, including mine, pushing for a fulfillment of the promise of serious measures to be taken to bring about a ME WMD FZ, there have also been many detractors of this idea. Many such detractors, like Pierre Goldschmidt in this piece last year, write about the impracticality of the program, and the unfairness of the concept to Israel.

One of the specific arguments frequently employed by those attempting to obfuscate the scope and implementation of the concept, and thereby push for its abandonment, is that there is no clear definition of “The Middle East” as an area of states to be included in a ME WMD Free Zone.  They try to complicate consideration of such a definition by arguing that it only makes sense for, particularly Turkey and Pakistan, to be included in this area – knowing that the inclusion of these states would cause huge problems to the already troubled workability of the program. The Goldschmidt piece above is a good example of this argument being made with regard to Turkey.

Fortunately, in his yearly report entitled “Application of IAEA Safeguards in the Middle East,” the IAEA Director General has, every year since 2004, provided a definition of the area to be included in a potential Middle East WMD Free Zone.  That area is annually defined in this report to include:

“Algeria, Bahrain, Comoros, Djibouti, Egypt, Islamic Republic of Iran (Iran), Iraq, Israel, Jordan, Kuwait, Lebanon, Libyan Arab Jamahiriya (Libya), Mauritania, Morocco, Oman, Qatar, Saudi Arabia, Somalia, Sudan, Syrian Arab Republic, Tunisia, United Arab Emirates and Yemen.”

This definition has provided very useful clarity on this issue, and has helped to keep arguments in favor of expanding the area relatively marginalized.

That is, until this year.

Unlike the Middle East reports for every year from 2004-2012, the footnote containing this definition of the states to be included in a potential ME WMD FZ is notably absent from the report for 2013.  Compare footnote 1 of the 2011 and 2012 reports, with the 2013 report.  There is no definition in the 2013 report of the states to be included in the ME WMD FZ.

What could account for this change?  It’s well known that the U.S. has long resisted discussion of the ME WMD FZ concept at the IAEA — Susan Burk and her predecessors made no secret of this. So is this yet another example of DG Amano dancing to the tune played by the USG, for the reasons I explained here? Did he quietly direct that the definition be removed from the report, assuming no one would notice it, in order to take away what clarity there was on the scope of the potential ME WMD FZ, and thereby support and facilitate arguments made by Israel, and the US, and by people like Goldschmidt about how unworkable such a concept is?

I don’t know. But I can’t think of any other plausible reason for the definition to be removed. Can you?

Putin’s NYT Op-ed

As you’ve probably seen, Russian President Vladimir Putin has written an op-ed in the New York Times, including an impassioned plea for the U.S. to abide by international law and in particular the UN Charter process of obtaining Security Council authorization for any international use of force.  He adds that it is “alarming that military intervention in internal conflicts in foreign countries has become commonplace for the United States . . .” and urges the U.S. to seek exclusively diplomatic solutions for problems with other countries.

Oh, nuts. Instead of linking to Putin’s NYT op-ed above, I accidentally linked to an article about the Russian army invading Georgia in 2008, without Security Council authorization, in what Putin argued was a humanitarian intervention. Oh well, I guess I’ll just leave it there. It nicely makes the next point I was about to make anyway.

Russia to Sell S-300’s to Iran, and Build Another Reactor at Bushehr

Two very significant developments reported in this article in the Jerusalem Post:

1. Russia has approved the sale of S-300 anti-aircraft missiles to Iran;

2. Russia has also agreed to build another nuclear reactor at Bushehr.

Kind of seems like Russia is flexing its muscles in doing some things it knows the US doesn’t want it to do. Putin is back.

Quote of the Week

The Secretariat will have to review such a request in light of legal authorities, mandate, and resources and must determine whether there is a scientific basis for conducting a highly speculative investigation of this kind.  In short, this will need further study.  Looking past the current context, Mr. Chairman, it is our view that [such] requests for . . .  analyses of hypothetical scenarios are beyond the IAEA’s statutory authority.  The IAEA has never before conducted this type of analysis, and it would exceed IAEA’s mandate, and have far-reaching implications that exceed IAEA capabilities and authorities.

Guess who said it?

If you guessed the Iranian representative to the IAEA, regarding the IAEA’s continuing refusal to find Iran in compliance with its safeguards obligations, based largely on unevidenced suspicion and speculation about what may have happened, or what might in the future happened in Iran . . . . YOU’D BE WRONG!

This was, in fact, the US representative to the IAEA, Joseph Macmanus, complaining about a Russian request that the IAEA consider how a potential US strike on Syria might create new threats through the destruction of storage facilities for nuclear material in Syria. That, Macmanus argues, would clearly be an overstepping of the IAEA’s legal mandate.

Can someone loan me a knife with which to cut this irony?