New Book Contract

Sorry for the light posting lately. I’ve been doing some traveling. But I’m back now, and I have some pretty big news. I’ve just recently signed a contract with Oxford University Press to write a new book entitled Iran’s Nuclear Program and International Law. This new book will apply the understandings of nuclear nonproliferation law from my first two books, to the case study of Iran’s nuclear program. Basically everything I’ve been writing about on this blog for the past year concerning the NPT and IAEA safeguards law, as they apply to the case study of Iran’s nuclear program.

It will also consider the application of international law to other aspects of the dispute over Iran’s nuclear program – for example actions by the Security Council in this case, including the imposition of economic sanctions; the targeted killing of Iranian nuclear scientists; cyber attacks on Iran by the US and Israel; and threats of military force against Iran’s nuclear facilities.

I think that the dispute between Iran and the West over Iran’s nuclear program, in all of these dimensions, provides an excellent opportunity to consider the meaning and application of international law in a wide variety of timely questions of international relations, all of which are raised in the context of this dispute.

Obviously, negotiations are currently ongoing in Geneva regarding a possible resolution, or at least partial resolution to this dispute. Along with most of the rest of the world, I sincerely hope that a negotiated resolution can be achieved at this historic moment of new political leadership in Iran.

No matter what happens in these and future negotiations, however, an analysis of the international legal questions that have been raised in the context of this dispute will, I hope, provide a rich case study of applied international law across a number of timely issue areas, that will be of enduring importance as a reference for other future cases, in addition to the Iran case.

So, I’ll be working on this book for the next couple of years. I’ve already got a good bit of it written in blog posts and other shorter pieces. And I have a research assistant here at UA already hard at work.

I’d like to extend my thanks and appreciation to Blake Ratcliff in the New York OUP office, who was the primary shepherd for this proposal through the review process. I’d also like to thank the four anonymous peer reviewers, all of whom recommended publication. Thanks also to my old friend John Louth, the EIC of OUP’s academic publications. I have had nothing but positive experiences working with John and the OUP team over the years. In my opinion, OUP is the best publishing house for public international law books in the world. Their catalog is always excellent and both broad and deep, and their marketing and support are unrivaled. I’m thrilled to be working with them again on this project.

For interest, here is the planned chapter outline of the book, with short chapter summaries:

Introduction

PART I: HISTORY

Chapter One:  Iran’s Nuclear Program, and the History of the Crisis

This chapter will review Iran’s nuclear program, from its inception in the 1960’s, through to the present, including the causes and implications of the crisis beginning in 2002, and the diplomatic history in relations among Iran, the IAEA, and the P5+1 since 2002.

PART II: INTERNATIONAL NUCLEAR LAW

Chapter Two: International Nuclear Law Sources

This chapter will examine the essential sources of international nuclear law applicable to the dispute regarding Iran’s nuclear program.  These sources include the 1968 Nuclear Non-proliferation Treaty (NPT); the IAEA Statute; the IAEA’s safeguards agreements – in particular the INFCRIC/153 Comprehensive Safeguards Agreement, and the INFCIRC/540 Additional Protocol; and the Subsidiary Arrangements concluded between Iran and the IAEA pursuant to its safeguards agreement.  The chapter will also examine the scope of the IAEA’s authority and mandate for investigation and assessment of the nuclear programs of safeguarded states derived from these sources.

Chapter Three: Arguments Regarding the Application of International Nuclear Law Sources to Iran’s Nuclear Program

This chapter will present the legal arguments which have been maintained by Iran on the one side, and by the IAEA and members of the P5+1 group on the other, concerning the correct application of the sources of international nuclear law to the case of Iran’s nuclear program.  Points to be considered include the harmony of Iran’s actions, and the actions of the IAEA, with the obligations and rights codified in the NPT;  Iran’s compliance with its IAEA safeguards agreement obligations; the lawfulness of Iran’s actions regarding disclosure of nuclear facilities and materials; the IAEA’s application of standards of cooperation, investigation and assessment to Iran’s case, including allegations concerning possible military dimensions of Iran’s nuclear program; and the IAEA’s referral of Iran to the Security Council.

PART III: ACTIONS BY OTHER STATES AND INTERNATIONAL ORGANIZATIONS IN RESPONSE TO IRAN’S NUCLEAR PROGRAM

Chapter Four: Action by the U.N. Security Council

This chapter will consider legal questions regarding the Security Council’s adoption of Resolution 1696 and further resolutions, in which the Council ordered Iran to cooperate with the IAEA and to cease its uranium enrichment program. These commands, and their legal basis in the U.N. Charter, as well as the implications of these commands for the role of the IAEA, will be considered in light of the codification in Article IV of the NPT of an “inalienable right” of states to possess the full nuclear fuel cycle for peaceful purposes.  This consideration will include questions concerning the scope of the authority of the U.N. Security Council under the Charter.

Chapter 5: Sanctions

This chapter will consider legal questions regarding the economic and financial sanctions imposed upon Iran by the U.N. Security Council, as well as those imposed on Iran unilaterally by the United States and the European Union.  Legal analysis of these two contexts of sanctions – multilateral and unilateral – will be separate, although there will be cross-cutting legal analysis involving the law of countermeasures in the law of state responsibility, and the law of armed conflict. Arguments for and against the legality of both the multilateral and unilateral sanctions programs will be thoroughly considered.

Chapter 6: Targeted Killings

This chapter will consider the instances of assassinations of Iranian civilian nuclear scientists inside Iran, which Iran alleges have been carried out by foreign powers. Legal issues to be considered include those arising under the law of state responsibility, international human rights law, and the law of armed conflict.

Chapter 7: Cyberattacks

Consideration of cyber warfare in international law is a new and emerging area of legal analysis.  The existing sources of international law are arguable in their relevance and applicability to the use of cyber weapons.  This chapter will consider the arguments concerning the applicability of legal sources – including the law of armed conflict, the law governing international uses of force, and the law of state responsibility – in the specific context of the use of cyber weapons (e.g. Stuxnet, Flame) against Iran’s nuclear facilities.

Chapter 8: Threats of Military Force against Iran’s Nuclear Facilities

This chapter will consider the lawfulness of potential military strikes by foreign militaries against Iran’s nuclear facilities, as has been publicly discussed/threatened by officials in both the United States and Israel.  This consideration will include the law governing international uses of force, and the law of armed conflict.

PART IV: ASSESSMENTS AND LESSONS

Chapter 9: Assessments and Lessons

This chapter will give an overall assessment of the dispute over Iran’s nuclear program, including an evaluation of the lawfulness of the actions of the various actors involved.  It will consider the road ahead, and the likely effectiveness and advisability of the various options open to the relevant actors.  It will conclude that a diplomatic, negotiated resolution is the most prudent and most likely effective way forward. It will review the options for a diplomatic resolution, including the likely necessary detailed, technical terms of such a resolution.

The chapter will also consider the lessons that can be learned from the book’s review of legal issues involved the Iranian nuclear case, and how these lessons can be applied to other similar cases both now and in the future.

BAS Roundtable Back Online

After being unavailable for some time due to a website makeover, my debate with Andreas Persbo and Chris Ford in a roundtable over at the Bulletin of the Atomic Scientists is now back up at this link.

And while I’m writing, I talked to someone today who is a senior CIA analyst and who is currently furloughed because of the government shutdown. He said many other senior analysts are also being furloughed as of today. See here.

Still think the shutdown doesn’t threaten US national security? What are we not watching right now that we should be watching, and would be watching if a small number of radical ideologue republicans in the House weren’t holding the US government hostage? Unbelievable.

Report: North Korea May Be One Test Away from Miniaturization

From this report:

Li Bin, a physicist and nuclear policy expert at the Carnegie Endowment for International Peace, said North Korea could be just one test shy of making the crucial leap to miniaturisation — the ability to fit a nuclear warhead on a missile.

 “If they can do more nuclear tests, maybe just one more, they would be able to have a small and more reliable device,” Li said.

I’ve said it many times before. North Korea is the one we should be most concerned about. Not Iran. Where’s the hand wringing and speeches by members of Congress on this problem?  You know – the one that we KNOW is getting worse and IS DEFINITELY a threat to international peace and security?!?!?

Iran’s Response to the Most Recent IAEA Report

See this Reuters report for an update on diplomacy between Iran and the IAEA, including a link here to Iran’s formal response to the IAEA’s August 28th report on its nuclear program.

I did a post back in July on Iran’s response then to the IAEA’s May 22 report.  There’s alot of overlap in this new response by Iran, but some new stuff as well.

Overall I think its important to have the legal arguments of both sides well aired, and Iran has in my opinion done a good job of setting out its legal arguments in these responses. And I think that in many cases their arguments are correct and persuasive. For those who think international law should play a role in international relations, these are important documents, and I hope others will take the time to read and objectively consider the legal arguments both of the IAEA and Iran on this issue.

Rouhani’s WaPo Op-ed, Trip to the UN, Major New Concession, and an Opportunity Not to be Missed

Many will have already read Iranian President Hassan Rouhani’s op-ed published yesterday in the Washington Post. Part of an interesting trend lately, begun with Russian President Putin’s op-ed in the NYT last week, of foreign leaders trying to speak directly to the American people through leading American media outlets.  Rouhani’s op-ed is just the most recent installment in a number of statements by the new Iranian president, including through a Twitter account, in which he has tried to strike a much more conciliatory and positive tone with the West and with Israel than his predecessor Mahmoud Ahmadinejad. He has said repeatedly that he is willing to negotiate on a real and meaningful basis with the West in order to resolve the dispute over Iran’s nuclear program.

It has been reported that President Obama and President Rouhani have already exchanged letters, in a very rare instance of direct communication between US and Iranian leaders. Further, in what appears to be a significant sign of goodwill, the US Treasury department has twice this year eased some provisions of its sanctions on Iran.

In the midst of these positive signs of a changed tone and willingness on the part of both sides to cooperate productively in negotiations regarding Iran’s nuclear program, President Rouhani will be traveling to the United Nations in New York next week, for his first address to the UN General Assembly.

In perhaps the most significant sign yet of Iran’s commitment to serious negotiations with the West over its nuclear program, the German magazine Der Spiegel reported a few days ago that President Rouhani is prepared to offer as a concession something that President Ahmadinejad would never have considered offering – the decommissioning of of the Fordow enrichment facility. The decommissioning of Fordow has been one of the P5+1’s longstanding demands in the negotiations.  I wrote about it in one of my very first ACL posts last summer, including the explicit rejection of this idea by Iran’s IAEA representative at the time. The Der Spiegel report says that Rouhani may even make this offer publicly during his UN visit next week.

It it’s true that Rouhani is willing to put the decommissioning of Fordow on the table, then people can stop their dismissal of Rouhani’s recent statements as a charm offensive without any real substance. The decommissioning of Fordow would be a major concession by Iran to Western demands, and would, as part of a negotiated package deal, deserve a reciprocal major concession on the part of the P5+1, in the form of real and meaningful sanctions relief for Iran.

I think that the current circumstances of Rouhani’s election and mandate from the Iranian people, and his expressed willingness to negotiate productively and to put major concessions on the table, represent a historic opportunity that President Obama would be a fool to miss. I think he has a real chance here to do something that would re-earn him his Nobel Peace Prize – negotiate an accord with Iran over its nuclear program that will significantly reduce international tension surrounding this longstanding dispute, that has harmed the reputation of the US and the EU in the world, seriously damaged the perceived credibility of the IAEA, and harmed millions of Iranian civilians through international sanctions that courts in the EU have repeatedly found to be unlawful.

If President Obama takes this opportunity to lead the P5+1 to a negotiated accord with Iran, I think there is a real possibility for rollback of UN Security Council sanctions on Iran. This in turn would likely lead to a significant rollback in EU unilateral sanctions on Iran, which I suspect EU leaders would welcome in light of the ongoing legal problems they have encountered in implementing them. Rolling back US unilateral sanctions on Iran will be the most difficult part of the puzzle to put into place, primarily due to the influence of special interest groups supporting pro-Israel policies in Congress. I’m much less optimistic about meaningful unilateral US sanctions rollback. But rollback of UN Security Council sanctions and EU sanctions would appear eminently achievable if President Obama decides to exercise his second-term prerogative of doing what is, in fact, in the best interests of the United States and the world, even if it’s not politically popular in Congress, and seizing this historic moment to negotiate a meaningful diplomatic accord with Iran.

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?