Nuclear Chickens Come Home to Roost in South Asia

I was just reading this new report about an agreement between Pakistan and China, under which China will provide two new nuclear reactors to Pakistan over the next few years. China argues that such cooperation with Pakistan is “grandfathered in” to China’s accession to the NSG in 2004. But the other very clear undercurrent of this deal is China’s sense of freedom to act in a way that is arguably in disharmony with NSG standards, because of the 2005 U.S.-India Civil Nuclear Agreement, for which the US received a waiver from the NSG.

Critics, including myself, have decried the US-India deal as representing a hugely significant undermining of the spirit of the NPT. India, like Pakistan, possesses nuclear weapons and is not a member of the NPT.  The US-India nuclear cooperation deal effectively gives to India, which developed nuclear weapons outside the NPT, the same benefits of civilian nuclear cooperation that every Non-nuclear Weapon State member understood they had to sign the NPT, and forego a nuclear weapons program, to secure from the US and other supplier states. Giving this cooperation to India without India’s similar commitment to forego a nuclear weapons program, goes right to the heart of the grand bargain of the NPT, and makes NPT NNWS question what they are really getting in return for their NPT commitments.

Having signed this agreement with India, the US now has very little moral high ground on which to stand to criticize China’s civilian nuclear cooperation with Pakistan. China knows this, and knows that this fact will insulate it from any meaningful criticism or compliance pressure with regard to NSG rules.

New Paper by Mark Hibbs on the Vietnam/US 123 Agreement

This is an excellent new paper by Mark Hibbs on the recent signing of a 123 agreement between the US and Vietnam.  As Mark explains, this new 123 agreement includes a political understanding that Vietnam will not pursue enrichment or reprocessing activities (ENR), but does not make this understanding a legally binding obligation. Mark argues that the US policy of flexibility in approaching the negotiation of new 123 agreements, and not requiring what has come to be known as the “gold standard” of a legally binding obligation not to pursue ENR activities, is prudent and should continue. I am in complete agreement with Mark on this point, for the reasons he well explains.  Mark has long been one of the most sensible commentators on this issue.

VERTIC Paper on the IAEA GC Safeguards Resolution

This paper by Sonia Drobysz and Hassan Elbahtimy of VERTIC is the best review and analysis of the IAEA General Conference deliberations, and ultimate action, on the annual safeguards resolution last month that I’ve seen. I recommend it highly. It explains the concerns that many states have about the IAEA DG’s new state level concept for safeguards.  I have given my own analysis of the most recent IAEA DG state level concept report previously here, which includes these same concerns. I’m glad to see that these concerns persuaded so many states to object to inclusion of language regarding the state level concept in the safeguards resolution.

Nuclear Weapons Bibliography

Nuclear Weapons bibliography

I wanted to bring readers’ attention to the attached nuclear weapons bibliography, compiled by friend of ACL Patrick O’Donnell, who is an adjunct faculty member of the Philosophy Department at Santa Barbara City College, and who blogs over at Ratio Juris.  The bibliography is a really useful compilation of publications on “Development, Detonation, Deterrence & Disarmament” as it says. Thanks to Patrick for forwarding it.

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.