Yousaf Butt on Re-setting US Diplomatic Approach Regarding Iran

I mentioned this briefly at the end of my piece yesterday on special inspections, but I wanted to also bring it to the front.  Friend of ACL Professor Yousaf Butt has just published an excellent piece on the need for re-setting the US diplomatic approach toward Iran, and the reasons for this need. I fully endorse the legal conclusions in this piece, and the prescription he gives for a path forward. This is sort of a macro-diagnosis of everything that’s been wrong with the West’s and the IAEA’s efforts, both diplomatic and legal, with regard to Iran’s nuclear program over the past decade and more, and how this mishandling of the situation has led us to where we are today. I highly recommend it to readers.

An IAEA Special Inspection of Parchin?

Cyrus Safdari recently brought to my attention an AP article from March 6, in which Joseph MacManus, the US representative to the IAEA, is reported to have made statements indicating “that America might lobby the IAEA board to ask for a special inspection of Parc[h]in, a facility that the agency suspects was used to test explosive triggers for a nuclear weapon, or that the United States would seek an IAEA resolution critical of Tehran.”

There seems to be a lot of misunderstanding, both in official circles as demonstrated by this article, but also within the nonproliferation specialist community, about what exactly IAEA special inspections are, and about their legal character.

In an article from November 2010, Olli Heinonen argued that the IAEA should call for a special inspection in Syria. As he wrote:

Together with official Syrian reluctance to give the agency access to relevant information, persons, equipment, and sites, the resulting situation calls for the use of full inspection rights to ensure that all nuclear material in Syria is for peaceful purposes. 

So according to Heinonen’s understanding, a special inspection is a constitutive part of the IAEA’s “full inspection rights” under the comprehensive safeguards agreement.

James Acton, Mark Fitzpatrick, and Pierre Goldschmidt, writing in a 2009 Carnegie Endowment piece, argued that:

It is now time for the IAEA to move beyond such voluntary requests and invoke its most powerful inspection provision, the “special inspection,” to make its requests for access legally binding. If Syria refuses then the Board should make a formal finding of “non-compliance.”

These are all incorrect legal characterizations of the process of special inspections as laid out in the provisions of the IAEA INFCIRC/153 comprehensive safeguards agreement.   

Both government officials in the US, and the nonproliferation specialist community (at least, those that aren’t lawyers – which includes Heinonen, Acton, Fitzpatrick, and Goldschmidt), seem to think that IAEA special inspections are a powerful weapon the IAEA has reserved in its quiver, but that it only uses in the most serious of situations, in which desperate measures are needed to bring rogue states to heel. Sort of like a step up in the categorization of a crisis from “code yellow” to “code red.” And that once the IAEA does pull this special inspection weapon out of its quiver, it is exercising its full legal rights to legally compel an inspection of the subject site(s).

But this is a fundamental misunderstanding of the special inspection process as provided for in the CSA. Most commentators, including those quoted above, appear to be confusing IAEA special inspections under the CSA, with a process more akin to a challenge inspection under the Chemical Weapons Convention.  

This is what I wrote about the CWC challenge inspection process on pgs. 114-115 of my 2009 book (see Article IX of the CWC):

 If, however, a state party feels that it has not been satisfied through this process of interrogatory, it may request that the OPCW conduct a challenge inspection on “any facility or location in the territory or in any other place under the jurisdiction or control of any other State Party for the sole purpose of clarifying and resolving any questions concerning possible non-compliance with the provisions of this Convention.”  The state against whom the challenge inspection has been requested is under a basic obligation to cooperate with the challenge inspection by members of the OPCW Technical Secretariat, unless the OPCW Executive Council (composed of 41 state-party members based upon the principle of rotation) determines by a three-fourths vote that the inspection request is “frivolous, abusive, or clearly beyond the scope of [the] convention.”

On the basis of the report generated by the Technical Secretariat, the Executive Council may determine whether non-compliance with the CWC’s terms has occurred and may instruct the offending state party on measures which it must take to remedy such non-compliance.  If the measures directed by the Executive Council are not implemented by the offending state, the issue may be referred by the Council to the Conference of the States Parties (the Conference), the principal organ of the OPCW, comprised of a representative of all states parties.  In its discretion, the Conference may restrict or suspend the rights of an offending state party under the convention, and may at the extreme in “cases of particular gravity,” refer the matter to the U.N. Security Council.

 In the case of a CWC challenge inspection, any state party to the CWC may designate any site within any other state party (subject to limitations on scope and abuse), whether declared or undeclared, for a challenge inspection. And the challenged state is under a legal obligation to allow the OPCW to conduct the inspection. Refusal on the part of the challenged state to allow the inspection constitutes a breach of the CWC.

 The special inspection process laid out in the IAEA INFRIC/153 CSA, by contrast, can only be invoked for one of two reasons, as stipulated in CSA Article 73.  The first is if a state voluntarily submits a special report to the IAEA. The second is

If the Agency considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.

Before proceeding, let’s be sure we remember what the IAEA’s responsibilities are under the CSA. These are laid out very concisely in Article 2:

The Agreement should provide for the Agency’s right and obligation to ensure that safeguards will be applied, in accordance with the terms of the Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of the State, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

As I’ve explained in detail elsewhere, this means that the IAEA’s mandate is to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.

So, pursuant to the second reason listed in Article 73, if the IAEA thinks that an inspection of an undeclared site, i.e. one that is not subject to routine or ad hoc inspections under the CSA, is necessary for the Agency to verify that no declared fissile material within the safeguarded state has been diverted from peaceful use to military use, the Agency may submit a request to the state that it be allowed to inspect the subject site.

Article 77 of the CSA provides that:

The Agreement should provide that in circumstances which may lead to special inspections for the purposes specified in paragraph 73 above the State and the Agency shall consult forthwith. As a result of such consultations the Agency may make inspections in addition to the routine inspection effort provided for in paragraphs 78—82 below, and may obtain access in agreement with the State to information or locations in addition to the access specified in paragraph 76 above for ad hoc and routine inspections.

So the first step is for the IAEA and the state to consult about the IAEA’s request. If the state agrees to the request, the special inspection proceeds according to terms agreed between the IAEA and the state.  However, if the state does not agree to the IAEA’s request, Article 77 provides that:

Any disagreement concerning the need for additional access shall be resolved in accordance with paragraphs 21 and 22; in case action by the State is essential and urgent, paragraph 18 above shall apply.

Articles 21 & 22 of the CSA provide for two processes of dispute settlement in case of a disagreement between the IAEA and the state over the need for the special inspection.  These are, respectively: 1) arbitration; and 2) referral of the case to the International Court of Justice.

The only way in which the IAEA can circumvent this dispute resolution process, is in a circumstance in which “action by the State is essential and urgent.”  In such a circumstance, Article 18 of the CSA applies, which states that:

The Agreement should provide that if the Board, upon report of the Director General, decides that an action by the State is essential and urgent in order to ensure verification that nuclear material subject to safeguards under the Agreement is not diverted to nuclear weapons or other nuclear explosive devices the Board shall be able to call upon the State to take the required action without delay, irrespective of whether procedures for the settlement of a dispute have been invoked.

So, even in a case in which the IAEA considers is essential and urgent that the safeguarded state permit the special inspection, the IAEA is only empowered to “call upon” the state to do so. It is well understood by international legal scholars that when an international legal instrument provides for an international organization to “call upon” a state or states to do or refrain from doing something, this is not a legally binding command. Rather, it is a non-binding exhortation.

Therefore, in the case of a state being called upon by the IAEA BOG to allow a special inspection to take place, the state’s refusal to allow the requested special inspection would not be an action in noncompliance with the terms of the CSA, or in breach of any other principle of international law. It would simply be the state’s sovereign determination not to provide the IAEA with access additional to that which it is obligated to provide under the terms of the CSA.

Thus, such a refusal would not be grounds per se for the BOG to determine that the state is in noncompliance with the CSA. Therefore Article XII paragraph C of the IAEA Statute, which allows the BOG to report noncompliance with the CSA to the UN Security Council, would not be triggered.

So in the final analysis, unlike challenge inspections under the CWC, special inspections under the IAEA CSA are not legally compulsory. They are a request by the IAEA to the safeguarded state, to allow IAEA inspectors to examine sites not included in the state’s declaration, and therefore not subject to routine and ad hoc inspections. This request may be agreed to, or not agreed to, by the safeguarded state.

Further unlike in the CWC challenge inspection context, refusal by the safeguarded state to allow the special inspection to occur is not, in the IAEA CSA context, a violation of international law, or an act in noncompliance with the CSA.

This is a far cry from the way in which special inspections have been characterized by the non-lawyer nonproliferation specialists quoted above.

So let’s take all this newly corrected understanding about the legal character of special inspections, and apply it to the question of whether the IAEA could perform a special inspection at the Parchin military facility in Iran.  It turns out that we don’t have to proceed far into the analysis in order to find the answer.

Remember that special inspections can only be requested for one of two reasons, according to CSA Article 73. First, if there has been a voluntary special report by the safeguarded state. There has not been one in this case.  Second, if the IAEA “considers that information made available by the State, including explanations from the State and information obtained from routine inspections, is not adequate for the Agency to fulfill its responsibilities under the Agreement.”

Again, this links challenge inspections directly to the responsibilities of the IAEA under the CSA. And what are those responsibilities? As noted above, they are stipulated in Article 2 of the CSA. They are to verify that no declared fissile material within the safeguarded state is diverted from peaceful uses to military uses.

Parchin is not a site that is at all connected, even in IAEA and third party allegations, with fissile material that should be declared pursuant to Iran’s CSA.  The allegations about the site – allegations that are unsubstantiated, and the evidence for which the IAEA will not share with Iran – concern conventional explosives testing and other non-fissile-material-related activities that could be used in developing a nuclear warhead.  As I explained in a piece on the JURIST site some time ago, and as is made clear in Article II of the CSA quoted above, the mandate of the IAEA does not extend to investigations and assessments of non-fissile-material-related aspects of a nuclear weapons program (i.e. nuclear warhead development).  Thus, since an inspection of the Parchin site definitionally cannot be said to be necessary in order for the IAEA to fulfill its responsibilities under the CSA, a special inspection cannot be requested for the site. This is the effective end of the legal analysis.  

However, even if arguendo Parchin was a site at which there was a reasonable basis for concluding that fissile material, subject to declaration to the IAEA, is or has been present, it should be noted that as explained above, the IAEA would only be authorized to ask Iran if it could conduct a special inspection. If Iran denied this request, as it almost certainly would, the IAEA could submit the dispute to arbitration or to the ICJ, but that’s about it in terms of the ability of the IAEA to enforce its wish to conduct a special inspection of the site.

Perhaps, then, it’s no wonder that the IAEA has not opted for this route with Parchin, and at present shows no inclination to do so. Hopefully the US will think better of trying to force the IAEA into a special inspection attempt that will only poison relations with Iran further, and that ultimately won’t yield any useful results in resolving the dispute between Iran and the West over Iran’s nuclear program.

For some MUCH better ideas about how the US SHOULD proceed with regard to Iran’s nuclear program, see Yousaf Butt’s new piece here.

David Koplow’s New Article on US CWC Noncompliance

David Koplow of Georgetown University Law Center has just recently published an article entitled Train Wreck: The U.S. Violation of the Chemical Weapons Convention in the Journal of National Security Law & Policy. See the full pdf of the article here.  David is a leading arms control law scholar who, in addition to his academic work, has had applied experience through several stints in high level government positions. These positions have included Special Counsel for Arms Control to the General Counsel of the Department of Defense (2009-2011); Deputy General Counsel for International Affairs at the Department of Defense (1997-1999); and Attorney-Advisor and Special Assistant to the Director of the U.S. Arms Control and Disarmament Agency (1978-1981).  He’s also a very generous colleague and a nice guy to boot. I haven’t convinced him to come onto ACL as a blogger . . . yet.  But he knows he has a standing invitation!

This new piece of David’s begins like this:

The United States is violating a multilateral arms control treaty. Russia is, too. It’s not just some minor accord at stake; it’s the 1993 Chemical Weapons Convention (CWC), the critical, near-universal undertaking to banish the centuries-old scourge of chemical warfare. And it’s not just some trivial misstep; it’s a blatant transgression of one of the treaty’s most fundamental provisions, requiring the timely destruction of the massive inventories of chemical weapons (CW) that the planet’s erstwhile superpowers had laboriously constructed and assiduously maintained throughout the Cold War. And it won’t be a near-miss; each country will stumble years beyond complying with the treaty’s April 29, 2012, final deadline for accomplishing the total dismantling of this noxious ordnance – the United States now figures to eclipse that mandatory mark by at least eleven years.

Now that is how you start a law review article! A great hook for readers. It continues:

How did we get into this mess? How did the United States, the leading exponent of the rule of law and a prime mover in negotiating and implementing the CWC, fall into such conspicuous violation? What can be done at this point to extricate ourselves and the Russians from this grisly political and legal predicament? And what can we do in the future to avoid other similar international law train wrecks? This article parses the problem of noncompliance with the CWC’s dismantling obligations as a case study in the operation (or non-operation) of international law.

As is typical of David’s work, this article is thorough and excellent. I recommend it highly.

Syria Update, and the Evolution of a Right of Counterproliferation-Oriented Preemptive Self-Defense?

Well I’ve been listening to the news about Syria just like everyone else has. Things appear to be getting more complex by the day now, with the allegations by Carla del Ponte that it’s the opposition that has used Sarin gas; and the recent Israeli missile strikes inside Syria, condemned by Syria, Turkey and Iran.  For the USG, knowing exactly what if anything to do about this huge political and security mess, and more importantly about the unfolding humanitarian tragedy for ordinary Syrians, has been difficult from the beginning.  It now resembles a Gordian Knot, and I don’t envy President Obama his choices.

I thought I’d write down some thoughts about the recent Israeli missile strikes against what Israel claims were sites containing long-range missiles in transit from Iran, through Syria, to Hezbollah in Lebanon, who would then likely have used them against Israel at some point in the future. I really can’t penetrate the question of whether this narrative of the facts is correct. Like the Syrian chemical weapons situation, it’s very difficult to know what the facts are and whose version of them to believe.

But for the moment, let’s assume arguendo that the Israeli narrative is correct, and these military strikes by Israel inside Syria have been targeting, successfully, missiles in transit from Iran to Hezbollah, and that these missiles likely would have been used against Israel at some point.  Turkey and others have said that these strikes by Israel are a violation of international law.  Are they right?

Readers of this blog will recall that I wrote about the previous Israeli strikes into Syria, conducted for this same avowed purpose, back in January. See that post here. In the comments to that post, and in some other posts and comments to them lately, I’ve written quite a bit about my views concerning both what the lex lata (current law) is on preemptive international uses of force for counterproliferation and other reasons, as well as my views about when and how governments might legitimately consider acting in disharmony with that law.  I wrote about the subject of counterproliferation-oriented preemptive self-defense from both a lex lata and lex ferenda (what the law should be) perspective in depth in an article in the George Washington International Law Review a few years ago.  Even since then I’d say my views have evolved, and are still evolving.

In terms of the lex lata, I think Turkey is almost certainly right to say that these strikes by Israel inside Syria are in violation of international law. I can’t think of a persuasive justification under current law for striking at missiles in a warehouse in another country, that might at some point make their way to someone who might then shoot them at you sometime in the future. I don’t think this is covered by the customary law on anticipatory self-defense – and that’s even if you’re among those states and scholars (a majority in my opinion) who recognize this right in customary international law. See my recent brief discussion with Jordan Paust on this subject in the comments to this post by Dapo Akande over at EJIL: Talk.

That being said, as I noted in my piece about a similar strike by Israel into Syria back in January, if I put myself into the shoes of an Israel defense official at this moment, knowing what they know about how very likely it is that these missiles would indeed end up in the hands of Hezbollah, and in fact eventually be shot at Israeli cities including Tel Aviv, I have a lot of sympathy and understanding for why they are doing exactly what they are doing. And I would probably do exactly the same thing – a targeted strike on where the missiles are being housed in Syria, which is in the midst of a civil war and largely lawless, before they can be transferred to Hezbollah, and the moment to destroy them is lost.

Now, one thing I don’t want to be trite about is the fact that in this instance it appears that more than forty Syrian soldiers were killed in this attack. If that’s true, then it’s very lamentable. This would form a part of the law of armed conflict analysis of this strike, which is of course legally separate from the use of force law analysis I’ve been discussing so far. We’d have to know more facts about the incident to know if it complied with the law of armed conflict’s rules concerning discrimination and proportionality. And let me be clear about one thing – even in cases where I think it would be legitimate, even if not lawful under the jus ad bellum, to engage in international military force, there are no facts that would in my opinion excuse a violation of the law of armed conflict.  So if these strikes violated the law of armed conflict rules on targeting, then they are unlawful and condemnable.

One more point I wanted to address, though, is the possibility that these strikes by Israel against sites in Syria, avowedly purposed in counterproliferation-oriented preemptive self-defense, might be contributing to the evolution in customary international law of a legal right to engage in such strikes. I know that these are contentious waters factually, but the legal principles here are well established. Customary international law can be created in areas like international use of force law, in which there are (thankfully) few data points, as long as there is state practice and opinio juris by acting states supporting the principle, along with general acquiescence by other states.  In this way, use of force law is not unlike, say, the law governing shooting satellites into orbit. In both contexts there are relatively few states who have the capability to engage in the relevant state practice. If, therefore, among those states that do engage in the relevant state practice, there emerges consistent practice establishing a certain rule, and if it is accompanied by opinio juris of the acting states and, crucially, by the general acquiescence of the rest of the international community, a new rule of customary law will come into being.

This is the point at which the facts become highly contested in the context of a right of counterproliferation-oriented preemptive self-defense.  Have there been sufficient examples of state practice establishing such a right? Has there been sufficient opinio juris expressed by those acting states? Has there been general acquiescence by the international community in the development of this rule? I expect that there are scholars who have written articles on this question – though I don’t know of any myself – engaging in a rigorous analysis of each question, using available empirical facts.  And if there aren’t, then someone definitely should write one!

My own impression, based only on me sitting here thinking about it, is that we are likely not quite there yet on a number of vectors, but that such a right is likely emerging as a principle of customary international law. When Israel attacked Osirak in 1981 there was general condemnation of this act in the international community, including in the Security Council. When Israel launched a similar targeted attack on the suspected nuclear reactor at Al Kibar in Syria in 2007, there was nowhere near that level of condemnation. And in fact I think the facts probably support general acquiescence in that instance. Now with these recent strikes in Syria, there are a few regional states that are condemning them, but I doubt we’ll see much more generalized condemnation. In fact, I suspect a lot of silence and general acquiescence on the matter, because I think, like me, most people can understand where Israel is coming from here.

Iraq 2003 is a special case, and I wrote about it extensively in my 2009 book.  It was, of course, not just a targeted counterproliferation strike.  It was a monstrous, boots on the ground, regime change debacle, that started off with a – completely false as it turned out – counterproliferation objective. I think that this huge difference in context explains a lot of the condemnation associated with Iraq – which, believe me, I share in 100%.

I’m not going to take the time here to go through the empirical record systematically, and do the whole analysis. I’ll just say again that, while I don’t think there is currently a right of counterproliferation-oriented preemptive self-defense in the international lex lata, I do think that such a right is likely evolving through limited, targeted, instances of state practice like those we’re currently seeing Israel engage in in Syria, and the overall acquiescence of the international community in those cases.

Egyptian Delegation Walks Out of NPT PrepCom Meeting Over Failure to Convene Middle East WMD Summit

I just read about this here.  Quite a surprising move, but I’m personally glad they did it.  I think it is time for action on this issue.  Although it is a bit quizzical as to why they didn’t coordinate with other Arab League states beforehand. Does this indeed show fracturing on strategy within the Arab League on this issue? I’m pretty sure there’s still consensus on principle.

Readers will recall I’ve written on the ME WMD FZ issue several times, most recently here.  I think that Egypt and the rest of the Arab league are perfectly justified in feeling that an important deal they made in 1995 has been broken by the West, and as Ambassador Badr was quoted as saying in the GSN piece: “We cannot continue to attend meetings and agree on outcomes that do not get implemented, yet be expected to abide by the concessions we gave for this outcome.”

I’ll just put in a couple of cents worth of thoughts on the underlying issues. As we all know, the whole ME WMD FZ issue is about Israel. The fact that Israel has nuclear weapons, and hasnt signed the NPT, nor will they even admit to having nuclear weapons. The Arab League is tired of the double standard of treatment that they receive from the West in the nuclear area, as compared to how Israel’s nuclear program is treated by the West. The ME WMD FZ project is a way to put the spotlight of the international community squarely on Israel’s nuclear weapons stockpile, and put Israel and its backer, the US, in the uncomfortable position of having to explain why Israel won’t come to the meeting and won’t meaningfully engage with the program.

As I’ve noted, I’ve recently been to Israel. I think that we can enhance our understanding of other nations’ policies and attitudes so much by putting ourselves, as much as possible, into their shoes and looking at the world from their perspective. It’s the failure of so many observers to be able to do this that narrows their ability to objectively analyze problems in international relations.

If I put myself in the shoes of Israeli officials, I totally understand why Israel wants to have nuclear weapons, doesnt want to sign the NPT, and wants to keep the whole thing “in the basement.” If I were an Israeli official, with the history of the Holocaust as my personal and national context, I would do the exact same thing. But here’s where I think Israel’s policies in the nuclear area start to get indefensible – when they criticize other countries for wanting their own nuclear weapons, or for even doing research to build up their capability to one day acquire nuclear weapons if they decide they need them.  This is just basic hypocrisy, and the absence of any principled leg to stand on. It doesn’t have anything to do with history, or with Israel’s unique perspective on the world.  And I really don’t like it when people say, well, Israel isnt under a legal obligation not to have nuclear weapons, whereas these other countries are.  Israel’s failure to sign the NPT, and the West’s willful blindness toward this fact, are not a diplomatic asset that Israel and the West can play as a card to justify the double standard.  In this regard, Israel is part of a rather ignominious club of regime outlier states – rogue states if you will – that also includes India, Pakistan and North Korea. Its not a moral high ground fact.

I think that it would gall the Arab League states a whole lot less if Israel and the West would pull the reins in on the double standard they apply so publicly, and in international institutions such as the IAEA and the U.N. Security Council, as between Israel’s nuclear program and the nuclear programs of every other state in the region.  If the rhetoric and the policies of the US and the West generally weren’t so very prejudicial toward Middle Eastern states, with the glaring exception of Israel, when it comes to both peaceful nuclear technology trade and nonproliferation policy (going back to the Leveretts’ article I posted about earlier) it might well take much of the wind out of the sails of the ME WMD FZ movement, and contribute a lot to the general level of support for the NPT in the Middle East.

New Article by the Leveretts in the Huffington Post

Friends of ACL Flynt & Hillary Leverett have written an excellent new article in the Huffington Post here.  I agree with everything they have written here (with only one small reservation below) and I think they explain the issues of legal interpretation in a very accessible, and correct, way.

The only point on which I’d like to do some more thinking myself is the WTO point they make. Theyre obviously referring to GATT Article XXI here, and I’m not saying theyre wrong. I’d just like to think about it a bit more before going on record in agreement. I wrote about GATT Article XXI at some length in Chapter 3 of my 2009 book, and I’m planning to address it in a new book I’m planning to begin writing on soon. Much of Article XXI is quite intentionally broadly and subjectively worded, and there is virtually no WTO case law on it, and so determining that a national security related action does not fall within it can be difficult. Certainly not impossible, though, as I argued in my book regarding dual use export controls.

But certainly all of their points regarding the NPT I agree with fully. Do have a look at Flynt & Hillary’s new article.

New Congressional Research Service Report on Iran Sanctions

Check it out here. Very thorough and informative.  Quoting from the Summary section:

Increasingly strict sanctions on Iran—which target primarily Iran’s key energy sector as well as its ability to access the international financial system—have harmed Iran’s economy, but not to the point where key Iran leaders have been compelled to reach a compromise with the international community on Iran’s nuclear program. And, the strategic effects of sanctions might be abating as Iran adjusts to them economically and advertises the adverse humanitarian effects.

This jives with the conclusions of the recent NIAC report on the efffectiveness of sanctions on Iran, about which I posted a while ago.  It’s also consistent with my general views on sanctions which I’ve written about a number of times, including here and here starting on Pg. 6.

I really hope this starts to sink in in Washington – that sanctions will not force Iran into doing what the US and Israel want it to do regarding its nuclear program. I also hope it sinks in with people like Orde Kittrie who have so misguidedly been pushing for newer and tougher sanctions on Iran for years. 

Public Service Announcement

One of the nice things about blogging over traditional media is that we can tap into the people behind the stories and interactively pick the brains of experts. In that regard, I’m pleased to pass on a public service announcement by Prof. Yousaf Butt at the James Martin Center for Nonproliferation Studies at the Monterey Institute. Yousaf is a nuclear physicist and an expert on technical arms control. He’s one of the few folks active in both science and policy (and indeed, at their interface), and has served as an invaluable resource to the community by explaining complex technical matters in a straightforward jargon-free way. He’s also been instrumental in debunking a lot of misinformation/propaganda on Iran’s nuclear program propagated by the usual suspects. Anyway, he has kindly agreed to provide one-on-one guidance to any aspiring scientists (or other academics) thinking about navigating over to the policy world. Yousaf can provide you the inside scoop on the DC scene, as well as on what’s going down on the West Coast, e.g. at the Monterey Institute. If you’re contemplating studying or working on technical arms control issues, especially at Monterey or in DC, I urge you to take advantage of this opportunity to pick Yousaf’s brain! As he mentions, there is great need for scientists (and science) in policy-making…the situation is so dire and the need for science in DC is so great that even institutes without any scientists have put “Science” in their titles!  So without further ado, I’ll let Yousaf explain his offer:

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I’d like to thank Dan for hosting this Q&A on his excellent blog. I’m certain that some of the ideas being discussed on this blog day-to-day will determine the future trajectory of arms control. I’ve long thought we need some fresh thinking on arms control and non-proliferation: as any of the diplomats from Non-Aligned Movement will tell you, we are witnessing the death throes of the NPT. The bulk of the fault, in my view, lies with the multiple “band-aid” solutions and outright politicization of the nonproliferation institutions by some of the P5 states. In fact, a few months ago I proposed the broad outlines of what an NPT 2.0 could look like. That’s why I admire Dan’s intellectual honestly, and find his blog to be an enormous resource to the community.

As a small gesture of thanks, and as my own small contribution to helping train up the next cadre of arms control professionals, I’m happy to try to answer any questions any students or scientists/academics may have about transitioning over to the arms control NGO community. I can’t say I’ll have the answers but I’ll try my best! If there are general non-personal questions please post them in the comments section below, but if you need any personal advice you can email me at ybutt2002 –at- yahoo.com . (I’ll try my best to get back to you as soon as possible, depending on the traffic that’s generated.)

By way of background, my own transition to security studies started in Cambridge, MA while I was a staff scientist at the Harvard-Smithsonian Center for Astrophysics (CfA). Luckily, the Union of Concerned Scientists (UCS) was just down the road near Café Algiers, and a CfA colleague had just gotten a job there. Through her, I found out about a research fellowship on Space Security and was launched on my way…out of outer space and pure science and into technical arms control and global security issues. In parallel, however, I continued my science work. When I heard about the fellowships at the National Academy of Sciences, I applied for those and moved to DC for a bit. DC is an all-you-can-eat buffet of seminars, lectures, roundtables on policy but it is  – for the most part – shockingly science-deprived! So it’s good there are outfits like the Federation of American Scientists, for whom I later consulted leading to a report with Ted Postol of MIT: “Upsetting the Reset – the Technical Basis of Russian Concern Over NATO Missile Defense.”  Of course, that report was not what the community wanted to hear at the time, but in the end we were proven correct and one of recommendations has just been adopted (dropping the Phase IV of the NATO missile defense system). My point is the science in invaluable in the policy world: from Climate change, to nuclear power,  to clean energies, to missile defense, to nuclear weapons etc. – there are few decisions that can be made without scientific or technical input. Yet DC remains, in my opinion, highly science deprived. So if you’re a scientist or science student looking to join the policy world there is plenty (plenty!) of need! But you may need to be somewhat entrepreneurial in finding the channels to make the transition. There are also unique challenges academics may face in the transition: for instance, as academics we take freedom of expression for granted, but things can be a little different in the NGO world where there may sometimes be subtle pressures to hew to the political opinions of the funding institutions or senior administrators.

In any case, if I can help, or if you’re thinking of working/studying in DC or Monterey and want to know what to expect, or how I’ve found the experiences, drop me a line at ybutt2002 –at- yahoo.com or post your comments below.

Reza Nasri on UNSC Role Regarding Iran

Reza Nasri has written a really important analysis about the unhelpful role the UN Security Council has played in the Iran nuclear issue.  I endorse his view and his prescription completely. Its a relatively short piece in the CS Monitor. I hope neither he nor the Monitor mind, but I’ll reprint the piece here:

To Nudge Iran Talks, New UN Resolution Needed

The latest round of nuclear talks between Iran and “P5+1” international negotiators ended earlier this month with no more than an agreement to resume negotiations at a later date. As usual, pundits on both sides offered their assessments about why the talks did not succeed.

But one factor – UN Security Council resolutions that Iran “suspend all enrichment-related activities” – may play more of a role in fruitless negotiations than most commentators realize.

Since 2006, when the Security Council first made that demand, it has repeated it in three subsequent resolutions, the latest being Resolution 1929, adopted in June 2010. But the demand to cease all uranium enrichment is overly restrictive, essentially denying Iran the ability to develop even peaceful nuclear power. For the negotiation process, this restrictiveness poses several problems.

First, the resolutions are out of touch with the realities on the ground in Iran – namely, enrichment taking place that is not at bomb grade (at least not yet). They are also out of date, neglecting all the developments and understandings that both sides have achieved throughout various rounds of negotiations since 2006.

Today, after years of multilateral negotiations, most negotiating countries seem to have adopted a more pragmatic and practical approach and no longer truly expect a full suspension of Iran’s nuclear activities. Nonetheless, the shadow of the Security Council’s unrealistic and outdated request still looms over the talks.

Second, because of the Security Council’s radical stance on enrichment, world powers cannot legally offer Iran any meaningful relief on international sanctions in exchange for fair and reasonable concessions from Tehran. In the present climate, agreeing to anything short of a full suspension of Iran’s nuclear activities would breach UN resolutions, and that would set a bad precedent and dent the credibility of the UN collective security regime.

Third, because of the legal restrictions that these UN resolutions impose on all states, including on Western states that are in the process of negotiating with Iran, P5+1 negotiators cannot legally offer Iran any technical incentive to secure its cooperation. The Security Council effectively bans most forms of assistance to, and investment in, Iran’s nuclear and energy sector. That restricts the  P5+1 negotiators, which are legally bound to maintain the full force of the resolutions, from offering any captivating alternative to Iran.

To illustrate the point, Germany’s Green Party submitted a proposal last year in which the German government would help Iran build a solar energy facility in exchange for Iran curbing some aspects of its nuclear program. Such a proposition, and similar ones, could have been put on the table by the P5+1 to increase the negotiations change of success. But the Security Council renders such creative initiatives irrelevant as their realization would be illegal under its resolutions.

In other words, because of these legal strictures, the P5+1 goes to the negotiation table without having the capacity to offer its counterpart any positive incentive, something that most negotiators would find a handicap rather than a leverage to their advantage.

Of course, despite these legal restrictions, various international actors have occasionally been able to offer promising deals to Iran. For example, in May 2010, Brazil and Turkey persuaded Tehran to ship 1200 kg (2640 pounds) of its low-enriched uranium to Turkey (as a confidence-building measure) based on a proposal that was initially drafted by the Obama administration. However, the United States itself subsequently blocked the bargain on the ground that it still did not meet the restrictive demands of the Security Council.

“While it would be a positive step for Iran to transfer low-enriched uranium off of its soil as it agreed to do last October, Iran said today that it would continue its 20 percent enrichment, which is a direct violation of United Nations Security Council resolutions,” the White House said in a statement.

In sum, despite the fact that the UN Charter mandates the world body to encourage and facilitate peaceful settlements of international disputes, it seems that in the case of Iran’s nuclear crisis, the Security Council has had the exact opposite effect.

The way out of this conundrum is for the Security Council to issue a new resolution. The resolution would do two things: It would explicitly acknowledge whatever achievement the P5+1 track has so far produced. And it would promise to lift its sanctions if the parties reach a “reasonable agreement” – notwithstanding previous resolutions.

Such a move by the Security Council would greatly help to resolve the Iranian nuclear problem in a peaceful manner. It would give Iran the long-awaited assurance that its cooperation would be met with some degree of reciprocation. And it would free Western negotiators from the burden of having to work within the unrealistic and outdated UN strictures on enrichment.

It remains to be seen which member of the Security Council is bold enough to propose such a draft resolution.

Reza Nasri is an international lawyer specializing in Iranian affairs and charter and foreign relations law at the Graduate Institute of International and Development Studies in Geneva.