Can the U.S. or Israel Lawfully Attack Iran’s Nuclear Facilities?

Like everyone else, I continue to see media reports about the prospect of either a U.S., or far more likely an Israeli, military strike on Iranian nuclear facilities.  It has something of a soap opera aspect to it – sometimes there’s a lot of talk about it and some firebrand statements are made by either U.S. or Israeli officials, and everyone is just sure we’re only weeks away from an Israeli strike. And then a week later, the furor dies down and you read more toned-down statements from other U.S. and Israeli officials, stressing that there’s still time for diplomacy to work. 

 I’ve come pretty close to being convinced that the whole thing is much more political theatre than it is a real potentiality.  The safe money seems to be on the idea that Israel in particular uses this kind of ratcheted-up rhetoric when it wants to put pressure on the P5+1 to make progress in their diplomatic dealings with Iran – progress being defined by Israel as Iran agreeing to every demand of the West, however unreasonable or illegal. And then after a suitable amount of pressure is exerted on the crucible of the negotiations, Israel backs off of its threats in order to wait for the next key, strategic moment to play the bad cop to the P5+1’s incompetent cop.

That’s my political read of the situation. But, just for the sake of argument, lets assume for the moment that there really is a serious potential for either a U.S. or Israeli military strike against Iran’s nuclear facilities, purposed in degrading Iran’s nuclear program and its ability to develop nuclear weapons.  Would such a strike be lawful under international law?

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New Book on Controlling Illicit Trade

I wanted to bring readers’ attention to the new book entitled Governing Guns, Preventing Plunder: International Cooperation against Illicit Trade, authored by Asif Efrat and recently published by OUP.  I’ll exerpt from the OUP website below, including the impressive reviews by Beth Simmons, Anne-Marie Slaughter, and Matthew Evangelista (not a bad group of endorsements!).

I havent read the book yet, but it seems to me from what I can tell so far that its the kind of book that seeks to identify the underlying factors of value and interest that are really driving observable problems in international legal regulation in a number of areas of illicit trade, including small arms.  And that is a very valuable inquiry. 

From the OUP website:

Description

From human trafficking to the smuggling of small arms to the looting of antiquities, illicit trade poses significant threats to international order. So why is it so difficult to establish international cooperation against illicit trade? Governing Guns, Preventing Plunder offers a novel, thought-provoking answer to this crucial question.Conventional wisdom holds that criminal groups are the biggest obstacle to efforts to suppress illicit trade. Contrarily, Asif Efrat explains how legitimate actors, such as museums that acquire looted antiquities, seek to hinder these regulatory efforts. Yet such attempts to evade regulation fuel international political conflicts between governments demanding action against illicit trade and others that are reluctant to cooperate. The book offers a framework for understanding the domestic origins of these conflicts and how the distribution of power shapes their outcome. Through this framework, Efrat explains why the interests of governments vary across countries, trades, and time. In a fascinating empirical analysis, he solves a variety of puzzles: Why is the international regulation of small arms much weaker than international drug control? What led the United States and Britain to oppose the efforts against the plunder of antiquities, and why did they ultimately join these efforts? How did American pressure motivate Israel to tackle sex trafficking? Efrat’s findings will change the way we think about illicit trade, offering valuable insights to scholars, activists, and policymakers. 

Reviews

 

“This book is a major accomplishment. It is rare indeed to find a volume in the social sciences that addresses the question of how international cooperation occurs in the area of banned activities and illicit goods. Asif Efrat weaves a domestic political economy account into his analysis of international collaboration to explain why some governments have embraced (and others have resisted) such bans, from efforts to control trade in small arms to criminalization of human trafficking; from illicit drugs to trade in looted antiquities. The evidentiary basis on which this work rests is monumental, including original evidence on the preferences of 118 governments on regulating illicit international trade in small arms. Compelling, engaging and rigorous, this book is one of the very best reads available on the topic of cooperation among governments to define and address international criminal activity.”– Beth A. Simmons, Harvard University

International Law and Nonproliferation

Back in June, I had a really stimulating discussion on the comment thread of a post by Mark Hibbs over at Arms Control Wonk. This is one of many great conversations I’ve had on the threads at ACW. I’ve long been grateful particularly to Mark Hibbs, who is one of the core bloggers over there, and who has been singularly important for many years through his contributions as a journalist and analyst on issues of arms control.  His posts are always enlightening, and his liberal comments policy allows for full and frank discussion of the issues by readers. That’s not a policy shared by all of the bloggers over at ACW, but it’s a policy I’d like to emulate here at Arms Control Law.

You can see the whole discussion and the original post by Mark here.

However, for purposes of this post, I have edited the conversation in order to focus only on the exchange I had with George Herbert on the topic of the role of international law in the context of the Iranian nuclear crisis specifically, and more generally in the entire issue area of nonproliferation.  I thought it was a frank, engaging, enlightening and (overall) collegial discussion, and I thank George again for taking the time to discuss the issue with me. I thought I would copy the exchange here because it really does delve into some fundamental and perennial questions about the proper role and contribution, and the limits thereof, of international law in the context of nonproliferation related disputes – especially ones as high profile and dangerous as the dispute over Iran’s nuclear program.

Just as an editorial note, while I have removed a few of the comments by others in the thread, I have preserved every word of George’s and my comments. You will in addition see one or two other commenters quoted/mentioned, which I couldn’t excise without making the conversation seem confusing.

So without further ado, here it is. I hope you find it interesting:

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South Korea as Oliver Twist

I just saw this story about the ongoing negotiations between the U.S. and South Korea on a replacement 123 agreement. South Korea very much wants to be able to have domestic ENR capability and the U.S. is not willing to sign a deal with them unless they commit not to have it.

Theres just a tone to stories like this of the little developing state begging the big powerful developed supplier state to please, sir, allow them to have this technology that they really want, and think would be really beneficial for them. Like little Oliver asking for more gruel from the headmaster. The paternalism is just palpable, and really disturbing to me. The child presents its well-thought-through reasons why they should have the new stuff, and how they’ll be extra careful with it and make sure it doesnt hurt anyone. And then the dad just shoots them down, saying they dont really need it; its just too dangerous for them to have; they can’t be trusted to be responsible with it yet; theyre fine without it and should just keep relying on dad for the stuff.

I noted in my post below on the current gold standard interagency review about the debate going on in the comments to Mark Hibbs’ post over at Arms Control Wonk. David Fite in those comments tries to persuade us that when countries like Taiwan and South Korea agree to no-ENR commitments in their 123 agreements witht the U.S., its completely voluntary and an exercise of their sovereign right to choose that everyone should respect. And even more, that we should view such decisions as state actions producing a new global norm.

Well South Korea doesnt look very sovereign here to me.

Gold Standard Policy Under Review – Again

Mark Hibbs has a very good post at the moment over at Arms Control Wonk about Taiwan’s acceptance of what U.S. officials call the “gold standard” provision, committing not to engage in domestic enrichment or reprocessing activities, as a part of the renewal of their nuclear technology sharing treaty with the U.S. (such treaties with the U.S. are typically referred to as “Section 123 agreements” because of the section of the 1954 Atomic Energy Act that specifies the conditions necessary for the U.S. to enter into such agreements).  See the post here.  I’ll let Mark’s analysis speak for itself, though noting that I completely agree with it and I think it’s an important insight.

What I wanted to mention here is that in the comments to the post (where there’s a good discussion going on that I’d recommend checking out BTW), David Fite, who is a member of the Democratic professional staff for the House International Relations Committee, notes that the U.S. administration’s policy with regard to negotiating 123 agreements, specifically on the subject of the enrichment and reprocessing (ENR) “gold standard,” is currently under interagency review, for the third time.  This was news to me and I’m glad David mentioned it.  Its surprising because the policy under review was only about six months old, having been laid out in a January 10, 2012 letter by Deputy Secretary of Energy Daniel Poneman and Undersecretary of State for Arms Control and International Security Ellen Tauscher, which was sent to members of Congress.  See a summary of the letter and the policy here. 

Basically, the letter said that U.S. policy going forward would be to evaluate each new 123 agreement negotiation on a “case by case” basis, and not to have a predetermined, inflexible policy on the sorts of provisions that would have to be included in the final agreement.  There had been considerable pressure on the administration from Congress – and in fact there had been efforts to pass legislation legally requiring the administration – to adopt a policy of requiring all new 123 agreements to contain a gold standard provision in which the nuclear sharing partner state would legally commit not to engage in domestic ENR activities.  The Tauscher-Poneman letter manifested the administration’s resistance to that pressure, and its adoption of a more flexible policy that the administration felt would better serve U.S. interests.  As the letter explained:

Nuclear trade carries with it a critical nonproliferation advantage in the form of consent rights, along with other opportunities to influence the nuclear policies of our partners.  To obtain this advantage, we need to negotiate agreements that our partners can accept and that open doors to U.S. industry.  We are concerned that other options could have the opposite effect, by reducing the number of future U.S. partners, minimizing our nonproliferation influence, and raising questions about our reliability as a supplier.

Our competitors are not standing still.  France and Russia in particular are very aggressive in pursuing nuclear business worldwide, and offer favorable terms.  Neither imposes ENR conditions in their agreements.  Each billion dollars of American nuclear exports supports 10,000 jobs, and provides the U.S. with access and influence over the direction of nuclear programs, ensuring they meet the highest standards for nonproliferation, security, and safety.

This very sensible, practical realization about the limits of U.S. influence, the competitive realities of the international nuclear technology market, and the harm that an inflexible policy would do to U.S. nuclear technology vendors, was criticized by some at the time – including by John Bolton – as placing the profitability of the U.S. nuclear industry over nonproliferation goals.  Maybe enough Bush-era people, high enough up in the relevant USG agencies, have banded together to bring the policy back under review. I don’t know. 

But in my opinion, the balance of both practical and principled considerations weighs heavily on the side of maintaining the “case by case,” flexible approach to 123 agreement negotiations announced in the Tauscher-Poneman letter, and to a policy that places little to no emphasis on pressuring developing states to make legally binding commitments to forego their legal rights to full indigenous nuclear fuel cycle capability.

I’ll leave the principled NPT Article IV arguments for other posts.  I don’t think you really even need to get into them to see that the Tauscher-Poneman approach is the most prudent position for U.S. policy.  I think they are absolutely right to cite to the competitive realities of the international nuclear technology market, and make the point that if the U.S. requires a no-ENR commitment, when none of the other home states of major nuclear technology vendors do (e.g. France, Russia, South Korea, Japan, China), then buyer states will likely just go elsewhere for their nuclear technology.  And how would this help the nonproliferation cause? That’s of course if you even think that requiring developing states to commit not to have ENR technologies does somehow contribute to nonproliferation goals.  The reality is that most developing states don’t want to have indigenous enrichment and reprocessing capabilities. These are extremely expensive and technologically complex programs, and just don’t make sense for most developing states, when they can source nuclear fuel much more easily and cheaply from the private market.

But what developing states do care about, and this has been reiterated in NAM statements time after time, is not being pressured by supplier states to give up what they correctly view as their legal rights to have ENR capabilities if they choose to have them. That’s why states like Jordan have outright refused to enter into 123 agreements with the U.S. containing no-ENR commitment provisions. It’s a matter of principle and sovereign independence that matters to many developing states. Saudi Arabia and Vietnam also, for a variety of reasons, appear highly unlikely to be willing to make such commitments in their 123 agreement negotiations with the U.S.  

So if U.S. policy on 123 agreement negotiations changes through the current interagency review process, to a requirement of such a provision, who will lose out? Not the buyer states. They’ll be happy to sign deals with Rosatom or Areva or KEPCO or any number of other nuclear vendors not based in the U.S.  No, the only losers will be General Electric and Westinghouse who, in the absence of a 123 agreement, won’t be able to sell their nuclear technology to these countries.

Hossein Mousavian in ACT

I wanted to call readers’ attention to what I think is a very important and insightful article by Hossein Mousavian in the current issue of Arms Control Today.  Mousavian is currently a Research Scholar at Princeton’s Woodrow Wilson School, but from 1997 to 2005 he was the head of the Foreign Relations Committee of Iran’s National Security Council, and from 2003-2005 he was spokesman for Iran in its nuclear negotiations with the EU.  Basically, he was intimately involved on the inside of Iran’s nuclear diplomacy with the West up through 2005.

In this ACT article, Mousavian gives a narrative of the history of Iran-West nuclear diplomacy from 2002 up to the present, from the Iranian perspective.  This is a perspective that we in the West just dont get to hear very often, and here it’s being recounted by someone who was an insider on the process for many years on the Iranian side.

You can find the full text of the article here: http://www.armscontrol.org/2012_07-08/The_Iranian_Nuclear_Dispute_Origins_and_Current_Options 

I can’t recommend this article highly enough. I think Mousavian’s thesis, that the history of Iran’s nuclear program – going back more than 50 years – “suggests that the West is inadvertently pushing Iran toward nuclear weapons,” is laid out quite clearly and persuasively in the article.  I was personally struck in reading the narrative Mousavian lays out, at how essentially reasonable Iran’s diplomatic positions since 2003 appear to have been.  I knew alot of this information already of course, but Mousavian puts it in a narrative that allows you to see how, over and over, Iran has been willing to negotiate and compromise on so many of the points of concern the West has had.  And I was just as struck by how intransigent and unreasonable the U.S. led diplomatic positions of the West have been, in essentially refusing to budge off of the just patently unreasonable and unnecessary (and in my view illegal) demand that Iran give up entirely its enrichment program.  Again, I knew alot of this already, but the narrative really brings it out. 

Now, I know this is a former government official speaking, and just like with any other current or former government official of any state, one must be mindful of the likelihood of selective fact presentation and spin. But even with that caveat, I really encourage people to read the article in its entirety. Just for a taster, here are a few quotes that stood out to me in their significance. 

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Japan’s Nuclear Law and National Security

I recently saw this report about the Japanese Diet having amended its 57 year old national atomic energy act – Japan’s fundamental legislative framework governing its nuclear energy sector – to include “national security” as an ‘aim’ of the law:

Recent modifications to Japan’s national atomic energy act include the insertion of “national security” as an aim of the law, causing consternation in some quarters that the language could be used as a legal basis for the nation to create a nuclear weapons program in the future, the Korea Herald reported on Thursday.

“The safe use of atomic power is aimed at contributing to the protection of the people’s lives, health and property, environmental conservation and national security,” reads the new amendment to the Atomic Energy Basic Act.

The new national security clause was included as an appendix to a bill for the establishment of a new nuclear regulatory body in late June, and appears to effectively amend Article 2 of the 1955 Atomic Energy Basic Act, which originally read:

The research, development and utilization of nuclear energy shall be limited to peaceful purposes, shall aim at ensuring safety, and shall be performed independently under democratic administration, and the results obtained shall be made public so as to actively contribute to international cooperation.

This new amendment apparently went unnoticed for some time by the media, but since it was picked up it has caused a lot of controversy both inside Japan and within the region.  Many in Japan consider the new amendment to be in disharmony with the “three non-nuclear principles” that have guided Japanese law and policy on nuclear energy for decades.  The three principles (Hikaku San Gensoku) were first announced by Prime Minister Eisaku Sato in an address to the Diet on December 11, 1967, and later adopted by the Diet (though never actually made into law) in a 1971 resolution.  Every Japanese Prime Minister since has publicly reaffirmed them. The principles state that: Japan shall neither possess nor manufacture nuclear weapons, nor shall it permit their introduction into Japanese territory.

Under some interpretations of the amended language – and I have to say that at least to me as a non-Japanese-law-expert, these interpretations seem pretty persuasive – the insertion of “national security” as an aim of Japan’s development and utilization of nuclear energy could pave the way, at least under Japanese domestic law, for the future development of a Japanese nuclear weapons program.  That may well not have been the intent of the amendment – and numerous parliamentarians and government officials have been stressing that it was not – but it does seem to me that at the very least the newly crafted provision of this centerpiece legislation could colorably be used as a legal basis on which to ground the development of nuclear weapons in the future, by a government that wished to pursue such a program. Again, I’m not a Japanese law expert at all, so others that are may have a better sense of this potentiality (I’ll try to get Professor Masahiko Asada, a good friend and a great arms control law scholar at Kyoto University, to comment).  In any event, the amended language has caused considerable alarm in Japan and has prompted calls for the amendment to be repealed in the next Diet session.

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About what happened in Moscow . . .

The June 18-19 meetings in Moscow between the P5+1 and Iran were a disappointment. Whether or not the outcome was a surprise, depends on who you ask. Surprising or not, the most disappointing thing to many observers, including me, was the noticeable hardening of the positions of the P5+1 at the Moscow meetings, compared to the positions they appeared to take at the earlier Baghdad and Istanbul meetings.  In the run-up to the Moscow meeting there was some considerable optimism, based on the two previous meetings, that at least some progress might be possible towards a negotiated, diplomatic resolution of the crisis over Iran’s nuclear program.  But those hopes were dashed in Moscow, and some among the parties were left scrambling to see if they could salvage at least an agreement by the sides to keep talking.

 Much could be said about developments of the positions maintained in Moscow by the two sides, and what went wrong and why – and of course much has, including this insightful op-ed by Trita Parsi. 

But here I would like to focus on a development that I found particularly interesting from an international legal perspective.  It has been reported that at the Moscow meeting “Winning a multilateral affirmation of the legality of their nation’s uranium refinement operations [] emerged as Iranian diplomats’ central objective . . .”  I find this very interesting. Iran’s primary objective at the Moscow meeting was to wring from the P5+1 a stipulation to a statement of Iran’s international legal rights. 

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You want us to do what now?

Am I the only one who sees the P5+1 demand for Iran to close its Fordow enrichment facility as having no other reasonable derivation than Israel’s desire (expressed through its mouthpiece, the U.S.) to get rid of the only HDBT nuclear site in Iran that they can’t bomb? I think it’s almost comical that the West would ask Iran to do this – and it has been one of the recurring Western demands over the past six months at least.  

To me it brings the threat of the use of force implicitly, but very plainly, into the core diplomatic dialogue between Iran and the West, which I find really strange. I have to say I also find it kind of dumb. I mean, do they really think Iran doesn’t see what they’re trying to do? 

To paraphrase the request, wouldn’t it go something like this (with apologies in advance for channeling Bill Lumbergh from “Office Space.” Couldn’t be helped):

U.S.official: “So, Mr. Ahmedinejad, I’m gonna need you to go ahead and get rid of that one nuclear facility you have that we can’t bomb. Yeeaahh, we used to be able to threaten airstrikes against all of your nuclear facilities but, since you built that darn underground enrichment site at Qum, we really can’t say that anymore and be believable.  And it’s really kind of a problem for us. So, if you could just go ahead and close ‘er on up, that would be grreeaatt.  Then we’ll be able to get back to making threats to bomb all of your nuclear facilities, and we would really like to be able to do that. So how ‘bout it?”

I mean, am I missing something here? I’ve tried to look for any other even colorable reason as to why the West would be specifically demanding the closure and dismantling of the Fordow site, and not, for example, the Natanz site, which is also devoted to enrichment.  I can’t find any.  Fordow is under IAEA safeguards just like Natanz is, so there’s no obvious difference in formal classification or level of transparency.  I know that Fordow is reportedly where Iran has been doing its 20% enrichment work, but that doesn’t technically define the site. They could just do 5% enrichment there if they stopped the 20% enrichment.  So that current activity doesn’t seem to offer a persuasive reason why Fordow should be specifically targeted for decommissioning. The only real difference between the two facilities appears to be the fact that Natanz is out in the open, and Fordow is underneath a mountain.

 It just seems so painfully obvious and transparent that this is why the West is asking for this.  And I think it has provoked the most easily predictable answer in history from Iran. Roughly translated from the Farsi, it comes out to: “Are you kidding? No, we’re not gonna do that. Who would do that? How do you have the nerve to even ask that? Are you nuts? Do you think we’re nuts? Why would we do that?”  

Or, as Iran’s IAEA Ambassador is reported to have reacted to this proposal, with the same message and an evident touch of incredulity, yet still diplomatically:

 “Iran’s ambassador to the International Atomic Energy Agency, Ali Asghar Soltanieh, told Reuters he saw “no justification” for closing Fordow, which he said was under IAEA surveillance. “When you have a safe place, secure place under IAEA control, then why do you tell me that I should close it?” he said, making clear Iran built the site to better protect its nuclear program against any Israeli or U.S. attacks. “Fordow is a safe place. We have spent a lot of money and time to have a safe place,” Soltanieh added.”

Like I said. “Are you kidding?”