Catching Up and Michal Onderco’s Work

I know the blog has been a bit quiet of late. I don’t have much of an excuse – I’m not teaching this semester. But I am trying to devote all the time I can to writing my new book on Iran’s nuclear program and international law. I hope to have it done in August.

I’m also working, with Marco Roscini and others, on a special issue of the Cambridge Journal of International & Comparative Law on the topic of the rights of states in international law. This is a topic that Marco and I have been thinking about for a long time and that, for me, derives from my thinking over the years about what to make of the “inalienable right” language in NPT Article IV.

I just got back on Saturday from an excellent conference in Rome, organized by Professor Natalino Ronizitti and the Instituto Affari Internazionale, on coercive economic sanctions and international law. A great group of speakers.

On Monday, then, I met with Michal Onderco here in Tuscaloosa.  Michal is currently a Max Weber Fellow at the EUI in Florence (bio here).  He works at the intersection of international relations theory and international law. We talked about his current work on nonproliferation topics, and I wanted to pass along to readers one of his previous articles published in International Studies Quarterly, entitled “Accommodation or Confrontation? Explaining Differences in Policies Toward Iran.”  I found the paper’s focus on different states’ “cultures of dealing with deviance” to be particularly parsimonious and powerful. Here’s a link to the paper:  Onderco Accomodation or Confrontation

In general, I’m trying to keep up like everyone else is with the ongoing negotiations between Iran and the P5+1.  Seems a bit like a soap opera sometimes. Some days Joanie seems to love Chachi, and everything seems set for them to get married. Other days Joanie’s relatives start screaming that the pair shouldn’t get married, and Joanie has to keep them from spoiling things.  The next day its Chachi’s family screaming.  I suppose we won’t really know anything until the wedding date comes.

With Russia/US relations in the tank over Ukraine, a number of important developments concerning arms control law have recently occurred in that bilateral relationship. Russian termination of the longstanding and successful cooperative threat reduction program is perhaps the most noteworthy of these.

And of course the 2015 NPT Review Conference kicks off at UN Headquarters in New York on April 27th. Hard to predict what’s going to happen there. Alot of bad feelings in the Arab world about the failure to hold a Middle East WMD Free Zone conference, as was promised in the 2010 NPT RevCon Final Document. Difficult to predict what impact that will have on whether a final document will be agreed, and if so what will be in it. More on that issue to come.

An Appeal to the EU Regarding Iran Sanctions

Reading articles like this just makes me mad. I’ve said many times that the multilateral and unilateral sanctions that have been levelled against Iran by the West over its nuclear program should not have been put in place to begin with.  I think that the reason they were has much more to do with hawkish, biased, pro-Israel politics and ideology in the U.S. than with any real, reasonable assessment of threat posed by Iran’s nuclear program.

I was so optimistic that a comprehensive deal between the P5+1 and Iran would be achieved last November. It appears that all the pieces were in place for a reasonable deal to be reached, and honestly I still don’t know what went wrong.  As I wrote at the time, and appears now to be coming true, the prospects for a deal will only dim with the passage of more time, due to domestic pressures on both sides.

Of course, it has long been known that even if such a deal were to be struck, the likelihood that the U.S. would actually follow through on meaningful sanctions relief on its part, given the poisonous partisan atmosphere in Washington, is vanishingly small. We can see evidence of this by the fight brewing even now on whether to impose yet additional sanctions on Iran.

I’m actually working on a paper right now that examines the limits which international law places on the application of international economic/financial sanctions, whether unilateral or multilateral. I think this is an important theme in the modern era of the use of coordinated economic sanctions as a method of foreign policy coercion, particularly by powerful states against developing states. Among the limits which international law places on economic sanctions are:

1) the general international law principle of non-coercion;

2) the law of countermeasures; and

3) human rights law, and in particular the principle of proportionality

I’ll have more to say about this after I finish the paper, but in brief I think that there’s a good case to be made that the sanctions being imposed on Iran regarding its nuclear program are violative of the principle of non-coercion, and principles of human rights law.

At this point my only real hope is that the EU and its member governments will demonstrate once again their greater regard for international law, and their more reasonable objectivity in foreign relations, as compared to that of our leaders here in the U.S., and actually meaningfully scale back their sanctions on Iran, to allow for a normalization of trade relations, whether a comprehensive deal between Iran and the P5+1 is reached or not.

The scholarly literature could not be more clear that economic sanctions are ineffective in changing a target state’s policies on an established, entrenched national security related issue such as nuclear nonproliferation.  Sanctions do not change state behavior.  They only hurt average people, like the people of Iran, contrary to principles of human rights law.

And in the case of Iran, if there is no deal and the international sanctions regime continues unabated, there’s every reason to think that the moderate government of President Rouhani will be short lived, and that conservatives in the Iranian government will gain in influence, which is in no one’s best interests – not the people of Iran, and not the world.

Mark Hibbs on the IAEA’s Legal Authority to Investigate PMD Allegations

Mark Hibbs has a new post over at Arms Control Wonk.  In it he addresses Iran’s invitation to the IAEA to visit a site in Iran which the IAEA previously alleged was the site of nuclear weaponization work.  This of course was also the subject of a recent post by Bob Kelley, which I highlighted here.

Aside from a bit of thinly veiled snark about Bob’s and Gareth Porter’s articles on this topic, overall I think Mark’s post is thoughtful and fair. And in the end it seems to me that he does not essentially disagree with what Bob and Gareth have written about the Marivan invitation. He concludes:

In the short term, it looks like Iran has maneuvered Amano into a corner. If the IAEA doesn’t go to Marivan on Iran’s terms, Iran’s spin doctors will claim that the IAEA is not cooperating to resolve PMD allegations. If the IAEA instead goes to Marivan, and finds nothing, Iran will declare the case closed.

I was actually most interested, though, in a paragraph earlier in the piece in which Mark writes this:

There may be internal deliberations concerning the IAEA’s authority and priorities. While UNSC resolutions endorse the IAEA’s pursuit of PMD-related activities in Iran, Iran’s CSA (and for that matter the AP) expressly endorse the IAEA’s authority to inspect as deriving from a nexus to nuclear materials. To my knowledge, no allegations have come forth that Iran used nuclear materials in any undeclared activity at Marivan. The IAEA may be more interested in pursuing allegations at Parchin if it has information suggesting that nuclear materials may have been involved in undeclared activities at that site.

This interests me because it seems that here Mark is agreeing in essence with a point that I have been making for a long time – i.e. that the IAEA does not have the legal authority to investigate or assess questions concerning nuclear-weaponization-related activities that do not directly involve fissile materials.

I wrote this back in 2011 here, and have repeated it many times on this blog. Since then, the assertion that the IAEA does have the authority to investigate PMD issues not necessarily involving fissile materials, has been made by many in the establishment arms control wonk community.

Mark and Andreas Persbo wrote a piece back in January that discussed the issue of the IAEA’s authority to investigate PMD allegations against Iran, but as I read that piece they didn’t take a clear position on the matter at that time. But reading Mark’s new ACW piece at least appears to clarify his position, and demonstrate that it is in agreement with mine. Good to know.

IAEA Declines to Inspect an Area Where They Formally Alleged Weaponization Activities Took Place in Iran

Here is another absolute must read piece from Bob Kelley over at LobeLog.  He titled it “The IAEA Faces a Major Credibility Test,” and he hit the nail right on the head with that title. What he’s talking about is the recent offer that Iranian officials made to the IAEA to come and inspect a site in Iran, in the city of Marivan in Northwestern Iran, that was named in the IAEA’s 2011 PMD report as being linked to weaponization-related activities. The IAEA has declined the invitation to visit. This paragraph from Bob’s piece sums the situation up perfectly:

Marivan is important. In fact, it is the litmus test for the credibility of the IAEA’s 2011 report. If the IAEA claims detailed knowledge of a test and its location, it is critical that it work with Iran to verify that information. If, however, the information turns out to be false, irrelevant, inactionable or beyond the scope of IAEA’s expertise, then the agency should either withdraw its 2011 “Weaponization Annex” or issue a revised report after a thorough vetting of the rest of its contents. As noted above, the large-scale high explosive experiments are the most detailed claim in the agency’s weaponization report. That claim needs to be investigated and resolved, and the IAEA’s reluctance to do so is deeply disturbing.

I agree with Bob that the IAEA’s decision to decline this invitation is in essence an admission by the IAEA that this allegation in its November 2011 report was incorrect. And if this allegation was incorrect, by the IAEA’s on implicit admission, then that should call into question all of the allegations in the 2011 report.  Again, the sources of these allegations were never made public, or communicated to Iran, or subjected to any transparent qualitative assessment.  The question of the IAEA’s ability to assess third-party-source information about nuclear weapons programs is something that Bob has addressed at length before.

Although I doubt it actually will, this development should make all of the Iran hawks in NGOs and in governments think twice about the evidence they are relying on in their rush to scuttle diplomatic negotiations between Iran and the West.

Additional Protocol Negotiating History

A friend recently brought to my attention a three volume treatment of the negotiating history of the IAEA Additional Protocol:
Volume I: http://www.bnl.gov/isd/documents/71012.pdf

Volume II: http://www.bnl.gov/isd/documents/71014.pdf

Volume III: http://www.bnl.gov/isd/documents/71015.pdf

The report was published in 2010 and authored by a group from Brookhaven Science Associates, which has close ties to the U.S. national laboratories. I haven’t read the whole thing, but what I have read looks very good. What I like most about it is that it seems to actually be descriptive of what the various parties to the negotiations of the AP said and did during the negotiations. Some works that purport to be negotiating histories are really just the opinions of one party to the negotiations.

For example, on the issue of the IAEA’s authority to investigate and assess the question of whether undeclared fissile materials exist in a safeguarded state that is a party only to the INFCIRC/153 CSA – an issue that I have debated with former IAEA head safeguards lawyer Laura Rockwood – compare the treatment of this question in a source that she cites to in her piece, which you can find here at pgs. 33-43, with Volume II of the Brookhaven Additional Protocol study here at pgs. 6-11.

Do you see the difference? In the treatment that Laura cites to, there is very little if any discussion of what states other than the US thought about the question when negotiating INFCIRC/153. While in the Brookhaven AP study, they take pains to consider statements from a wide array of negotiating parties on essentially the same question which had been brought up again in the context of the negotiation of INFCIRC/540. This makes the Brookhaven AP study, at least on this point, a much more credible representation of negotiating history on this subject, in my opinion.

I would encourage readers (and Laura if she’s reading) to look at pgs. 6-11 of Volume II of the Brookhaven AP study on this question, because I think it’s very insightful into the debates that took place when the AP was being negotiated. And I think that the review of this negotiating history clearly supports my interpretation of the IAEA’s authority under INFCIRC/153, which I presented in my response to Laura’s article.

As the authors of the study conclude from their review:

Although the issue of whether additional legal authority was needed for many of the proposed measures for strengthening safeguards was fundamental to many of the decisions of the Board and Committee 24, it received relatively little debate in either forum. Both the Secretariat and the member states either wanted new explicit authority or seemed prepared to proceed on the basis of an assumption of the need for additional legal authority. This would, thereby, avoid a lengthy and possibly contentious and inconclusive debate as to which measures did and which did not require additional legal authority. Although suggestions arose that would have permitted States to use different mechanisms for providing the IAEA with the necessary authorities, a consensus emerged, and is reflected in the Model Additional Protocol, that a single instrument was best. This would achieve uniformity and avoid any risk of different interpretations arising.

Although some Board actions during the period from 1991-1997 suggest that the Agency might have the legal authority to apply protocol measures in states with comprehensive safeguards agreements that have not concluded a protocol, the fact of the Additional Protocol, itself, suggests otherwise politically, if not also legally. As a result, obtaining universal adherence to Additional Protocols is the best, perhaps, the only way, to provide the Agency everywhere with the authorities contained in the Model Additional Protocol.

I Love Bob Kelley

If you’re interested in the Iran PMD issue, which of course I have written about here many times over the past couple of years (see, e.g. here), and in particular Western/IAEA allegations concerning the Parchin military facility (see here), Bob Kelley’s new piece over at LobeLog is an absolute must read. It explains the allegations and their overall incredibility so clearly and comprehensively.

It’s so important to have people like Bob who are highly qualified, independent technical experts, and who can explain such complex technical issues to us non-technical people. And this is important stuff – even though it shouldn’t be, the PMD issue is still very much a part of the ongoing negotiations between the IAEA and Iran, which are of course intimately politically connected to the Iran/P5+1 negotiations.

Arms Control Law Included in the ABA Journal’s Blawg 100 List Again!!!

I just recently got word that ACL has been chosen for the second year in a row for the ABA Journal’s Blawg 100 list, as one of the top 100 best blogs for a legal audience!!!

See the official announcement here.

Let me first say that I really appreciate all of those who took the time and effort to answer my request back in July to nominate the blog for this distinction.  In particular, Professor Nader Entessar of the University of South Alabama wrote in some very kind comments about ACL, which the ABA Journal quoted in its announcement:

This is by far the best blog for impartial, yet critical, discussion of important legal issues about arms control law and its application. The posts debunk the simplistic analysis one reads in the news media.

This is certainly what I have hoped this blog would accomplish, and the recognition from readers and from the ABA Journal once again is extremely gratifying. I of course share this honor with all of the other contributors to ACL who have written posts this year.

This seems like an appropriate moment to mention some thoughts that have recently crystallized in my mind about the purpose of this blog, and all the writing that I, in particular, do on it (I do not presume to speak for the other bloggers on ACL).

It’s no secret that I have often been frustrated by the dynamics of the arms control epistemic community.  Here I should of course clarify. I see several distinct communities, or audiences, existing under this broader umbrella, that I try to address and engage with in my work.

The first is the international law scholarly community, of which I consider myself firstly and foremost a part. This is my home community, and with very few exceptions, I respect and value the collegial engagement that I have always had with the members of this community, a number of whom are bloggers with me here at ACL. This community includes university students of international law at all levels (undergraduate and graduate).

The second is the policy community. This is of course comprised of officials of governments and international organizations working in the arms control area. Here I experience all the complexities that any academic does in trying to engage and influence relevant policymakers. It is my hope that my writing on this blog, and also in my books and articles, has had and will continue to have an influence in this community.

The third is the primarily NGO-based arms control wonk community, about which I have written critically on numerous occasions (recently here). Unfortunately, in at least some circles of the policy community (e.g. the US government, the IAEA), the arms control wonk community has a disproportionate influence. I have tried to engage with the wonk community on many occasions, but overall these attempts have been rebuffed.

So this is my newly crystallized resolution. I write what I write on this blog, and in my scholarly books and articles, primarily for the international law scholarly community, and for the policy community. The arms control wonk community is, for reasons I’ve discussed previously, essentially impervious to ideas from sources outside of its own cliquish, incestuous, and self-referential circles. It has become clear that they are not open to genuine engagement, and are therefore essentially beyond influencing.

I do have some hope, however, that university students who will in the future become members of the arms control wonk community, may yet be susceptible to influence, and so I will include them in my understanding of the audience of this blog and my other work. In fact, I think of them as a key audience, because they will in the future have influence in policy circles, and I’m hopeful that my work can influence them before they become indoctrinated by their mentors in the existing wonk community. It is for the sake of these future arms control wonks that I will point out the shortcomings of their predecessors.

This reappraisal of the audience of this blog and of my other work is basically a part of my ongoing mid-career crisis, in which I’m trying to identify my professional identity and plan for the future.

Missed Opportunity in Vienna

I’m pretty bummed today that the latest round of talks between the P5+1 and Iran in Vienna has ended in a decision to extend the JPOA for another six months. I fail to see what will be different in six months that will make a deal more doable then than now. As others have observed, at this point there are no real technical issues. It’s all about political will. I was one among those who were hoping that the two sides would exert leadership and make the tough choices necessary to obtain a deal.

I know that both sides’ positions are complicated, perhaps made practically irreconcilable, by domestic politics in their respective capitals. If that’s the case, then I don’t know why we should be optimistic that those dynamics will change significantly over the next six months. Far more likely, I would think, is that more stumbling blocks will arise over that time, either in the form of domestic politics or unpredictable world events.

If there is no deal, I really don’t know what will happen long term. I don’t expect war, to be honest. I think more likely is the continuation of sanctions on Iran by the West, which will help nothing and no one, with more and more instances of economic dealmaking between Iran and Russia, China, and others who will increasingly see the sanctions programs by the West as unsupportable.

The Revolving Door Between the USG and Wonkdom Turns Yet Again

A few weeks ago I did a post noting William Burns’ move from the State Dept to the Carnegie Endowment, and I quoted an even earlier post arguing that there is systemic pro-government bias in the US nonproliferation think tank world.

Well, now the revolving door is swinging around the other way to carry Jon Wolfsthall of CNS from think-tankdom back into government; in his case to be Senior Director for Arms Control and Nonproliferation at the National Security Council.  See the announcement here.

What’s the point of my bringing attention to this revolving door between the USG and arms control think tanks? The point is to show how close the connections are between the two, so readers can see that they should not view the work of these think tanks as objective, or independent. They are all, to one degree or another, dependent on the USG for patronage, favor, and access and it is incredulous to think that this dynamic does not influence their work – from the subjects that they choose to work on, to their actual analysis.

So the next time you see a piece written by someone at Carnegie, or CNS, or IISS, or ISIS, bear this in mind.

Sandy Spector on a “Return or Destroy” Requirement for the Iran/P5+1 Deal

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.