by Peter Jenkins
Anyone who took an interest in the diplomatic twists and turns that finally resulted in last year’s Iran nuclear agreement (the Joint Comprehensive Plan of Action or JCPOA) are likely to enjoy Iran’s Nuclear Program and International Law by Daniel H. Joyner, professor of law at the University of Alabama.
So are those who are unfamiliar with the details of that diplomatic saga but are curious to understand why 12 years elapsed between the director general of the International Atomic Energy Agency (IAEA) reporting that Iran had failed to comply with some of the IAEA safeguards obligations and members of the UN Security Council (including the United States) welcoming the JCPOA and expressing “a desire to build a new relationship with Iran.”
Professor Joyner’s main purpose is to describe and analyze the positions adopted by Iran, on the one hand, and the United States and its European allies, on the other, in relation to key aspects of international nuclear non-proliferation law and the UN Charter. He also sheds light on the subtle semantic distinctions that determine whether UN Security Council injunctions are or are not legally binding.
He concludes most of the analytical sections of his work by justifying a preference for one or other side’s case. Iran has the better of that adjudication.
The important questions considered by Joyner include:
- Did Iran’s IAEA safeguards non-compliance violate the Nuclear Non-Proliferation Treaty (NPT)?
- Were the United States and allies on firm legal ground when they denied an Iranian right to enrich uranium for peaceful purposes?
- Was the IAEA entitled to claim a right, under Iran’s safeguards agreement, to verify the non-existence of undeclared nuclear material and to investigate a “possible military dimension”?
- Which of the demands made of Iran by the UN Security Council, in resolutions adopted between 2006 and 2010, were of a legally-binding nature?
Joyner’s answers to these questions are both well informed and, in some cases, quite surprising. The United States, for instance, was not on firm legal ground in denying Iran the right to pursue uranium enrichment for peaceful purposes—and Iran’s safeguards non-compliance was of a procedural character and therefore did not amount to a violation of the NPT. However, rather than spoiling readers’ intellectual pleasure by spelling out the answers, I will, instead, take the opportunity to mount a few of the hobbyhorses that the answers have brought to mind.
Secret Nuclear Weapon Production Plant?
Joyner explains why in August 2002 Iran was under no obligation to declare the enrichment facility under construction at Natanz. August 2002 was when an Iranian opposition group “outed” the facility and claimed it to be a secret nuclear weapon production plant. Iran’s safeguards agreement required declaration only 180 days before the introduction of material. In August 2002 the facility was at least a year away from a fit state for the introduction of material.
In August 2002 I was one of those who believed that Iran had had no intention of declaring the Natanz facility. With the benefit of hindsight, I came later to realize the foolishness of that view. In 2000 Iran had declared and placed under safeguards a facility to produce large quantities of UF6, the feed-material for enriching uranium. To declare that facility and then fail to declare an enrichment facility that was complementary in scale would have made no sense and entailed high risks. And both facilities were far larger than would be natural for the covert production of nuclear weapon material.
Unfortunately, in 2002-03 few, if any, of us in Vienna reasoned in that way. Instead we swallowed the “secret nuclear weapon production plant” claim. This must have pleased John Bolton, then assistant secretary at the State Department, whom I suspect of having inspired the claim. In 2002-03 his ambition was to get a safeguards non-compliance finding and report to the UN Security Council out of the IAEA as quickly as possible and use the Security Council to get authorization for the use of force to close down Iran’s nuclear program, with a spot of regime change thrown in perhaps – all this on behalf of Israel, needless to say.
Luckily the foreign ministers of France, Germany, and the United Kingdom came together to thwart that ambition.
Iran’s Missile Program
Joyner makes plain why the legal restrictions on Iran’s ballistic missile program that the Security Council imposed in 2010 lapsed on January 16 this year (JCPOA Implementation Day). UNSC resolution 2231 of 20 July 2015 “calls upon Iran not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons…” Those of us who have been on the receiving end of Security Council injunctions know that “calls upon” is an exhortation. It is not a verbal expression that the Council uses when it intends to create a legally binding obligation under Chapter VII of the UN Charter.
All in Congress who claim that Iran’s missile program violates international law, and use this to justify a demand for further US sanctions, should note that. The plain fact is that since January Iran is not violating international law when it develops and tests ballistic missiles—nor is it in any way violating the JCPOA, which does not cover missile development. Those in Congress who are upset with Iran’s missile developments should be pressing to negotiate an agreement that covers missiles instead of putting at risk the existing nuclear agreement by introducing further sanctions on Iran.
Damage to the IAEA
Joyner is right to mention in passing the baleful effect on the IAEA of some of the legal controversies that he describes, especially a controversy over the scope of the investigative authority conferred upon the secretariat by Iran’s safeguards agreement. In their eagerness to put Iran under pressure to abandon uranium enrichment, the United States and allies insisted that Iran’s safeguards agreement gave the secretariat a right to do far more than verify that declared nuclear material is in peaceful use.
This de facto expansion of the IAEA’s authority has damaged support for a valuable international organization among those states that do not take instructions from the US government. Joyner puts it this way:
The IAEA influence in international affairs is based upon a perception that it is an independent, technical body tasked with supervising states’ compliance with their safeguards agreements….To the extent that the IAEA is perceived as…acting as an agent for powerful states to achieve their national interests, and using incorrect legal standards in compliance assessments, support among states, particularly in the developing world, will decrease.
As a huge fan of the NPT—an international achievement that has exceeded expectations—and an admirer of the IAEA—a jewel in the UN organizational crown—I hope that those “powerful states” recognize the wisdom of those words and have resolved never to repeat that mistake.
Photo: IAEA Director General Yukiya Amano shakes hands with Iranian Deputy Foreign Minister for Legal and International Affairs Abbas Araghchi, courtesy of IAEA Imagebank via Flickr.