1 00:00:00,650 --> 00:00:09,080 It's unusual to start off a seven hour talk to say we have a great topic and we have a great speaker. 2 00:00:09,560 --> 00:00:12,860 Well, we have a great topic. We have a timely topic. 3 00:00:13,220 --> 00:00:16,550 And we have just the perfect question to speak to that topic. 4 00:00:17,510 --> 00:00:26,900 The topic, as I'm sure you're aware, is Iran's nuclear program, the international law, and what a great time it is to be talking about these things. 5 00:00:27,020 --> 00:00:34,460 I think that to many Washington, D.C., by the days of Iraq in the beginning when you were talking about the same thing right now, 6 00:00:36,710 --> 00:00:42,830 I think it today is better than joining a who is from the University of Alabama. 7 00:00:42,920 --> 00:00:45,319 Now I am thinking about how to introduce you. 8 00:00:45,320 --> 00:00:57,340 I thought about whether it would be fair to say that he is a very leading expert on international law and nuclear non-proliferation issues. 9 00:00:57,350 --> 00:01:00,530 And I thought, well, that's a pretty big, heavy burden. 10 00:01:01,220 --> 00:01:07,370 But what we are seeing all the expert group and I thought, okay, let me actually throw the other names into it. 11 00:01:07,370 --> 00:01:10,400 You know, is there anything who else could I think about? 12 00:01:11,060 --> 00:01:24,340 But I came to the conclusion that it would be fair to say that he is he is very big expert on international law issues and nuclear non-proliferation. 13 00:01:24,380 --> 00:01:27,830 He has written a couple of books in the last five years, 14 00:01:27,830 --> 00:01:36,030 which are really the place that everybody goes to when when we think about how to interpret the Nuclear Non-Proliferation Treaty, 15 00:01:36,030 --> 00:01:44,510 that when we think about how little or no amplification that actually, though he is American, 16 00:01:44,840 --> 00:01:54,620 has spent as much time in the UK in terms of his academic career as he has spent here in the U.S. because prior to going back to the UK, 17 00:01:54,710 --> 00:02:03,320 he did his doctoral work here in England at the University of Warwick, but he also taught international when he was your Warwick for several years. 18 00:02:03,740 --> 00:02:06,770 So thank you very much for coming. You have done well for you. 19 00:02:07,420 --> 00:02:12,860 Oh, gosh, thank you. To my good friend double fighters me with that introduction. 20 00:02:15,020 --> 00:02:20,990 It's a real privilege to be here and I appreciate all of you coming out. Appreciate the ELAC and CCW programs for having me. 21 00:02:24,200 --> 00:02:29,270 So let's talk about Iran's nuclear program and international law. 22 00:02:29,750 --> 00:02:31,670 I know that we're not all lawyers in this room. 23 00:02:31,670 --> 00:02:37,219 Sometimes I talked to a roomful of lawyers, and so I'll talk a little bit differently because I know we're not all lawyers here. 24 00:02:37,220 --> 00:02:47,660 And and in that light, I'd like to begin by saying that I certainly know that for most people, certainly for those who work for governments, 25 00:02:48,140 --> 00:02:52,010 the Iran nuclear issue crisis, whatever you want to call it, 26 00:02:52,760 --> 00:03:02,060 is not exclusively or most would say not even primarily an issue that revolves around law. 27 00:03:02,300 --> 00:03:11,420 There's a lot more going on history, security, relationships, politics, regional security dynamics, all of that. 28 00:03:14,000 --> 00:03:18,860 But today I and I am with you talk about the legal issues involved because I think they are important, 29 00:03:18,980 --> 00:03:25,130 even if they are not the issues around which the entire situation hinges. 30 00:03:26,030 --> 00:03:31,759 And I think if you haven't already, if you will notice both sides, 31 00:03:31,760 --> 00:03:42,290 meaning Iran on one side and on the other side in particular Western states, the United States, Britain, France, Germany in particular. 32 00:03:43,370 --> 00:03:50,300 They are making legal arguments as part of the diplomatic back and forth thing. 33 00:03:51,020 --> 00:04:01,490 And this is very common, of course, that international law is used as a reference point in order to legitimise or de-legitimize official acts. 34 00:04:01,970 --> 00:04:06,050 And that's what's going on in the Iran nuclear crisis. 35 00:04:06,830 --> 00:04:11,809 Both sides are using as part of their argumentation, legal arguments. 36 00:04:11,810 --> 00:04:21,140 And that is the part of the diplomatic dialogue, part of the situation that I would like to address today, 37 00:04:21,230 --> 00:04:24,800 even though, again, I realise that that's not all that's going on. 38 00:04:27,470 --> 00:04:35,150 So let's talk about the legal arguments that are being used by both sides in trying to 39 00:04:35,600 --> 00:04:42,350 justify the actions that they have taken or taking and say they may take in the future. 40 00:04:43,190 --> 00:04:47,690 Let's start with the arguments of Western governments. 41 00:04:48,650 --> 00:04:52,270 I say Western because I'm not really including Russia and China on this, 42 00:04:52,280 --> 00:04:59,840 because they they tend to have a different argumentative structure and they tend not to be at the forefront of making. 43 00:05:00,420 --> 00:05:04,650 Arguments against Iran's nuclear program and sort of militating for more action. 44 00:05:06,420 --> 00:05:10,860 So when I say Western governments, I mean primarily United States, Britain, France and Germany. 45 00:05:13,050 --> 00:05:16,110 What are their legal arguments against Iran? 46 00:05:17,220 --> 00:05:20,880 And those arguments they used to justify their positions, their actions. 47 00:05:21,390 --> 00:05:27,470 Well, it starts and I have to be brief about this, but it begins in 2002, 48 00:05:27,480 --> 00:05:34,590 when it was disclosed by Iranian dissident groups that Iran had been for at least a decade, 49 00:05:36,150 --> 00:05:47,340 operating two facilities at Natanz and Iraq that were engaged in undeclared uranium enrichment experiments and actual processing. 50 00:05:48,730 --> 00:05:53,820 I say undeclared because these facilities and these activities had had not been declared to the International 51 00:05:53,820 --> 00:05:59,640 Atomic Energy Agency as Iran was obligated to do under its safeguards agreement with the IAEA. 52 00:05:59,730 --> 00:06:06,410 At the time that was, and the Board of governors of the IAEA found it to be a breach of Iran's non-compliance. 53 00:06:06,420 --> 00:06:13,440 I should say that is the word for non-compliance with Iran's safeguards agreements with the International Atomic Energy. 54 00:06:13,470 --> 00:06:19,560 So that is a legal argument made by Western states against Iran. 55 00:06:21,000 --> 00:06:25,620 Once that issue was decided by the Board of Governors, it was decided that Iran was in non-compliance. 56 00:06:26,490 --> 00:06:31,590 The Board of Governors decided and this was unique the first time it had ever happened, 57 00:06:32,340 --> 00:06:41,970 that Iran was now under a duty to clear up all remaining questions about its nuclear program to the satisfaction of the board of governors, 58 00:06:42,990 --> 00:06:51,990 and that essentially shifting the burden to Iran now to prove that there were no unsafe guarded facilities, 59 00:06:51,990 --> 00:06:57,210 there were no one safeguarded activities, there was no UN safeguards or undeclared nuclear material in Iran. 60 00:06:58,080 --> 00:07:05,030 I've likened this in a in many times to proving a negative that Iran has been given the duty by the Board of Governors. 61 00:07:05,030 --> 00:07:06,870 And again, uniquely, this never happened before. 62 00:07:07,560 --> 00:07:12,360 South Korea was found to have had uranium enrichment experiments, but no such burden was placed on them. 63 00:07:12,360 --> 00:07:17,249 But it was placed on Iran that it was to clear up to the satisfaction of the Board of 64 00:07:17,250 --> 00:07:22,409 Governors all questions about its nuclear program to essentially prove the negative, 65 00:07:22,410 --> 00:07:26,130 to prove that there was no such activities. 66 00:07:27,840 --> 00:07:37,680 Iran's failure to do this to the satisfaction of the Board of Governors has led, in turn, to the file being sent to the U.N. Security Council. 67 00:07:38,280 --> 00:07:44,250 And beginning in 2006, with Resolution 1696, a number of U.N. Security Council resolutions. 68 00:07:45,990 --> 00:07:54,569 The first 6096 commanding Iran to stop all of its uranium enrichment activities and then subsequent resolutions. 69 00:07:54,570 --> 00:07:55,560 But Iran didn't do that. 70 00:07:55,860 --> 00:08:08,519 Imposing sanctions that tend to take the form of financial sanctions, economic sanctions, prohibitions on trading with Iranian firms, 71 00:08:08,520 --> 00:08:18,600 individuals, prohibitions on trading in all sorts of goods that Iran could possibly use in its nuclear program. 72 00:08:18,720 --> 00:08:21,780 And the most recent sanctions just adopted this year. 73 00:08:26,500 --> 00:08:34,120 Actually, I should say the U.N. Security Council seems to have gone along with unilateral state sanctions, and that's what happened most recently, 74 00:08:34,390 --> 00:08:41,680 that the European Union, the United States, unilaterally imposed sanctions on Iran Central Bank, 75 00:08:41,680 --> 00:08:46,990 which has had a very serious effect on Iran's ability to trade oil. 76 00:08:48,010 --> 00:08:49,840 So we sort of know this from the news. 77 00:08:49,870 --> 00:08:59,140 I'm not going over what happened with the sanctions after the breach of safeguards agreements which were discovered in 2002. 78 00:09:00,190 --> 00:09:08,820 Let's then go to the the latest IAEA report in November, I believe it was, of this last year. 79 00:09:08,890 --> 00:09:15,370 The most recent IAEA report by the secretary, the director general to the board of governors. 80 00:09:17,790 --> 00:09:20,520 We have to be careful what we say here. But what did that report say? 81 00:09:21,180 --> 00:09:29,430 Their report said that Iran has been engaged in a number of different kinds of scientific experiments, 82 00:09:29,430 --> 00:09:37,170 industrial developments that pertain to capabilities that could be used in a nuclear weapons program. 83 00:09:37,410 --> 00:09:40,020 I'm dancing around with words here because what I don't want to say, 84 00:09:40,410 --> 00:09:44,710 and this is not what the report said, is that Iran is now building a nuclear weapon. 85 00:09:44,730 --> 00:09:45,750 Did not say that. 86 00:09:46,310 --> 00:09:55,740 It said that it's engaged in a number of these industrial, other scientific experiments and processes that could be used in nuclear arms program. 87 00:09:57,180 --> 00:10:06,930 And so that has then sort of upped the ante because up till this last year report, 88 00:10:07,410 --> 00:10:22,020 western legal arguments against Iran tended to be that Iran was in breach of its safeguards agreements with the IAEA and that it is in breach. 89 00:10:22,140 --> 00:10:29,010 And this is some of the most extreme arguments were that Iran was also in breach of Article three of the Nuclear Non-Proliferation Treaty, 90 00:10:30,780 --> 00:10:36,419 which then justified moving the file to the U.N. Security Council, which then, of course, 91 00:10:36,420 --> 00:10:42,690 has its own standard to find that there's a threat to international peace and security. 92 00:10:45,420 --> 00:10:50,250 So safeguards, breaches, breach of NPT Article three. 93 00:10:50,940 --> 00:11:00,120 But this most recent IAEA report raises in to the minds of some the spectre that there's actually Article two breaches going on in Iran. 94 00:11:00,480 --> 00:11:02,910 Now, in order for especially for the non-lawyers, 95 00:11:03,330 --> 00:11:08,430 I have pointed this out and let's put it out for you to give you the articles of the treaty that I'm referring to. 96 00:11:09,360 --> 00:11:11,579 And I won't go into great detail. I don't have time to do that. 97 00:11:11,580 --> 00:11:17,250 But let me connect the dots for you here, because it's important to understand what they're saying. 98 00:11:20,750 --> 00:11:23,090 Article three. Okay, let's start with Article two. 99 00:11:23,090 --> 00:11:31,940 Article two of the NPT says that none of the member states of the treaty obligate themselves not to possess, acquire or develop nuclear weapons. 100 00:11:35,870 --> 00:11:40,400 While we know that in Article one, the five nuclear weapon states are allowed to keep their nuclear weapons. 101 00:11:41,120 --> 00:11:42,080 In Article three, 102 00:11:42,290 --> 00:11:51,320 we find the safeguards provisions and the export control provisions that are supposed to then monitor and verify the Article two provisions. 103 00:11:52,010 --> 00:12:00,290 And in Article three, paragraph four, we find the obligation on non-nuclear weapon states to conclude a safeguards agreement with the IAEA. 104 00:12:00,950 --> 00:12:11,059 So to connect the dots. Western arguments have been that because Iran breached its safeguards agreement and according to the Board of Governors, 105 00:12:11,060 --> 00:12:18,380 is still in non-compliance with its safeguards agreement, it is therefore in breach of Article three four. 106 00:12:18,800 --> 00:12:24,530 Sometimes they say Article three one relating to keeping safeguards agreements with the IAEA, 107 00:12:26,480 --> 00:12:36,590 and therefore Iran's Article four rights to peaceful use are no longer valid. 108 00:12:39,340 --> 00:12:43,000 You follow that? Let's go through that one more time. 109 00:12:43,030 --> 00:12:44,950 It's like I'm teaching a class. I'm not teaching a class. 110 00:12:44,950 --> 00:12:52,330 But the argument is that because of the breach of safeguards, there has also been a breach of Article three. 111 00:12:53,020 --> 00:12:59,590 And because there's been a breach of Article three, Iran's Article four rights are no longer applicable. 112 00:13:00,670 --> 00:13:07,540 That takes some doing to make those arguments, but they are colourable. 113 00:13:07,810 --> 00:13:12,160 I disagree with them, but they are colourable arguments. If you look at article four one, 114 00:13:12,370 --> 00:13:16,659 nothing in this treaty shall be interpreted as affecting the inalienable right of all parties treated to blah, blah, blah, 115 00:13:16,660 --> 00:13:25,330 peaceful use in conformity with Articles one and two of this treaty, one of the NPT review conferences extended that to Articles one, two and three. 116 00:13:25,810 --> 00:13:31,890 And so that's the hook to saying that if they're in breach of their safeguards agreement, that's a breach of Article three. 117 00:13:31,930 --> 00:13:37,600 It is a breach of Article three. It's also then negating the recognition of. 118 00:13:37,600 --> 00:13:47,379 Right, an Article four one that then serves as the justification for Security Council sanctions. 119 00:13:47,380 --> 00:13:59,920 And all of the talk about airstrikes and sanctions and of upping the ante, that's the NPT, nuclear non-proliferation law justification. 120 00:14:01,630 --> 00:14:10,630 Okay. So let's now talk about Iran's arguments, legal arguments with regard to their safeguards agreements. 121 00:14:14,100 --> 00:14:21,419 Iran does not oppose or I've never seen them reject. 122 00:14:21,420 --> 00:14:30,299 The idea that they're keeping the tunnels and Iraq clandestine was not a breach of their sacred agreements. 123 00:14:30,300 --> 00:14:38,430 I've never heard them argue that. So I think they would probably admit that that was a breach, at least a technical I keep saying breach, 124 00:14:38,430 --> 00:14:46,620 but I must say that because the word is non-compliance in IAEA statute language, the word is non-compliance with the IAEA safeguards agreements. 125 00:14:46,710 --> 00:14:52,890 I write this correctly, but I'm not speaking of non-compliance secrets because not because safeguards agreements. 126 00:14:53,870 --> 00:14:57,729 A state can be in non-compliance for technical reasons, 127 00:14:57,730 --> 00:15:02,070 so you can be in non-compliance with the safeguards agreement just because of an omission in accounting, 128 00:15:03,000 --> 00:15:07,680 not reporting exactly the right amount of uranium that's in your facility on a certain date. 129 00:15:07,710 --> 00:15:14,550 That's non-compliance. That non-compliance with your safeguards agreements as determined by the Board of Governors, 130 00:15:14,820 --> 00:15:18,690 does not in any way mesh with the material breach language. 131 00:15:18,690 --> 00:15:23,700 For example, in Article 60 of the Vienna Convention Law of Treaty. So we're not talking about breach of a treaty. 132 00:15:23,700 --> 00:15:28,439 We're talking about the IAEA board of governors finding that a state is in non-compliance. 133 00:15:28,440 --> 00:15:32,280 That's what the safeguards agreement saying and that's what the IAEA statute says. 134 00:15:33,660 --> 00:15:40,319 So, again, while Iran would argue would not argue, I think that they were not in non-compliance. 135 00:15:40,320 --> 00:15:41,730 There are safeguards here in 2002. 136 00:15:41,940 --> 00:15:52,200 What they would argue is that the obligation on them then, as the board of governors declared to prove the negative was simply unwarranted, 137 00:15:53,340 --> 00:15:59,940 and especially that the decision to send the issue to the Security Council was unprecedented, unwarranted. 138 00:16:01,350 --> 00:16:11,430 And and they would claim that all that since 2002, they have, in fact, been in full compliance with the terms of their safeguards agreements, 139 00:16:11,700 --> 00:16:16,380 not perhaps with the additional duties being imposed upon them by the IAEA Board of Governors, 140 00:16:16,980 --> 00:16:22,410 which they say are ultra vires the Board of Governors Authority under the statute. 141 00:16:22,770 --> 00:16:28,379 But they would say that they have been in complete compliance with their safeguards agreements and with the 142 00:16:28,380 --> 00:16:34,980 subsidiary arrangements which were negotiated with the IAEA by Iran on things like declaration of new facilities, 143 00:16:35,340 --> 00:16:39,030 the new facility in Fordow, for example, something something called the Qom facility. 144 00:16:39,930 --> 00:16:43,260 There was a debate over whether the declaration was correct. 145 00:16:44,250 --> 00:16:48,180 Iran argues that even that was correct, the timing of their declaration. 146 00:16:48,540 --> 00:16:56,640 So there I would argue that they have been completely in compliance with the terms of their safeguards agreements since 2002. 147 00:16:58,890 --> 00:17:04,110 But the real meat of the Iranian argument is about NPT Article four. 148 00:17:04,290 --> 00:17:10,559 So you remember that little acrobatics that I did a minute ago, legal acrobatics in making out the Western arguments? 149 00:17:10,560 --> 00:17:16,560 Well, let's start with Article four now. Nothing in this treaty shall be interpreted as affecting the inalienable right, 150 00:17:17,220 --> 00:17:21,510 inalienable right of all the parties to the treaty to develop research, 151 00:17:21,510 --> 00:17:26,520 production and use of nuclear energy for peaceful purposes without discrimination and conformity with one or two. 152 00:17:26,520 --> 00:17:30,690 The treaty also read Article four to I can't read the whole thing, 153 00:17:30,690 --> 00:17:37,620 but what it says paraphrasing is that not only is there a right in non-nuclear weapon states that peaceful uses of nuclear energy 154 00:17:38,520 --> 00:17:46,890 supplier states are not under our obligation to help them to positively help them to develop their indigenous nuclear fuel cycle. 155 00:17:49,140 --> 00:17:55,320 What Iran argues is that this inalienable right, as recognised in Article four, 156 00:17:56,340 --> 00:18:05,460 is not made conditional in Article four upon full and demonstrated compliance with Articles one and two, 157 00:18:05,760 --> 00:18:15,930 rather that the inalienable right is limited by the conventional clause at the end here, 158 00:18:15,930 --> 00:18:24,059 which says conform with articles one or two, but that even if there is non-compliance with Article three, 159 00:18:24,060 --> 00:18:28,560 for example, as the West claims, that this does not negate the inalienable right. 160 00:18:28,830 --> 00:18:32,430 Let me put this another way maybe make the argument clearer. 161 00:18:32,940 --> 00:18:35,640 Think of Article 51 in the U.N. charter. 162 00:18:36,180 --> 00:18:42,450 And if you know what that that's about self-defence and it says nothing in this charter shall abrogate, I'm paraphrasing, 163 00:18:42,840 --> 00:18:52,620 the inherent right of all states to have a right of all states to use self-defence, whether individually or collectively. 164 00:18:52,890 --> 00:18:59,820 If an armed attack occurs until the Security Council becomes seized of the matter 165 00:19:00,240 --> 00:19:05,700 and the state must give notice to the Security Council of its self-defence. 166 00:19:07,410 --> 00:19:12,990 So, analogously, what Iran is saying is that the. 167 00:19:13,050 --> 00:19:23,970 Alien of a right to peaceful use of nuclear energy does not become extinguished by any non-compliance with Articles one, two or three of the NPT. 168 00:19:23,970 --> 00:19:34,170 Just like the inherent right of self-defence, isn't extinguished by a state's failure to report an act of self-defence to the Security Council. 169 00:19:35,010 --> 00:19:36,480 You see, if you were to argue that, 170 00:19:37,680 --> 00:19:43,710 who would accept that argument that the right of self-defence is extinguished if you fail to report it to the Security Council, 171 00:19:43,980 --> 00:19:47,190 or if you continue the right, if you continue your self-defence, 172 00:19:47,400 --> 00:19:51,630 even if the Security Council passed passes first resolution, no one would accept that. 173 00:19:52,080 --> 00:19:59,040 So this is Iran's argument that just because there may have been some non-compliance with safeguards agreements, 174 00:19:59,940 --> 00:20:10,830 even if you admit that that was a breach of Article three, which they do not, that the right of peaceful use survives going to Article three. 175 00:20:11,430 --> 00:20:19,979 The Iranian argument on Article three is that all Article three does is obligate in Article three 176 00:20:19,980 --> 00:20:26,850 for non-nuclear weapon states to conclude agreements with the International Atomic Energy Agency. 177 00:20:27,690 --> 00:20:36,990 And that these agreements, it says, are to be of a character described in articles one and three of Article three. 178 00:20:38,850 --> 00:20:49,350 And this makes sense. Just from a macro perspective, but because the International Atomic Energy Agency predates the NPT, NPT was signed in 1968. 179 00:20:49,710 --> 00:20:54,190 But the IAEA as an organisation predates that by about ten years. 180 00:20:54,300 --> 00:20:59,340 Late fifties, it was set up as part of President Eisenhower's Atoms for Peace initiative. 181 00:21:00,060 --> 00:21:10,200 So the Iranian argument is that the Iranian Atomic Energy Agency safeguards which Article 34 obligates non-nuclear 182 00:21:10,200 --> 00:21:18,570 weapons states parties to conclude or separate treaties with an established international organisation. 183 00:21:19,980 --> 00:21:24,480 And those treaties are fully independent from the NPT as treaties. 184 00:21:25,860 --> 00:21:29,579 This makes sense. They are in fact separate treaties. They have their own terms. 185 00:21:29,580 --> 00:21:35,580 They're bilateral treaties between the non-nuclear area, state and this established international organisation of the IAEA. 186 00:21:37,860 --> 00:21:49,290 So Iran argues that any non-compliance with a safeguards agreement does not then constitute a breach of Article three, 187 00:21:49,290 --> 00:21:54,210 because the only obligation out of all three is to have an agreement of this character. 188 00:21:54,690 --> 00:22:00,269 And again, that makes sense because, as I said before, non-compliance with the not with an IAEA. 189 00:22:00,270 --> 00:22:09,540 Sinclair's agreement can take the form of very technical omissions which do not at all map onto material breach in Article six of the VLT. 190 00:22:09,810 --> 00:22:14,400 So you cannot say that the one equals the other, even in most cases. 191 00:22:15,000 --> 00:22:20,520 Is it possible for an activity to both breach your safeguards agreement and Article three? 192 00:22:21,210 --> 00:22:26,520 I would say that would only happen if it was of such a character as to essentially negate the safeguards agreement. 193 00:22:27,510 --> 00:22:34,910 That would be a very high bar. So we're getting all lawyerly now and the non-lawyers in the room. 194 00:22:34,920 --> 00:22:39,240 But this is what you came for. I told you that this was essentially about international law. 195 00:22:39,780 --> 00:22:42,000 But I will then try to go more policy in a minute. 196 00:22:43,440 --> 00:22:52,170 So the Iranian argument is essentially that the NPT, as is quid pro quo bargain between unusual states and a nuclear weapon state, 197 00:22:52,440 --> 00:23:01,890 did not, in fact, make peaceful use conditional on Iran's compliance with its other obligations. 198 00:23:01,920 --> 00:23:05,760 In fact, what they're arguing is that an Article four, just like in Article 51 of the UN Charter. 199 00:23:06,120 --> 00:23:13,380 What's happening here is the recognition of an inherent right that inures to a state because of its sovereignty. 200 00:23:14,550 --> 00:23:19,410 And that and again, it further argues that it is not in breach of Article three, 201 00:23:20,820 --> 00:23:27,299 that any non-compliance with the safeguards agreements is just that technical non-compliance with safeguards agreements that, 202 00:23:27,300 --> 00:23:30,600 in the case of other states, has been solved by the IAEA. 203 00:23:31,050 --> 00:23:34,500 Cases like South Africa, Brazil, South Korea. 204 00:23:34,560 --> 00:23:35,810 South Korea is a good example. 205 00:23:35,820 --> 00:23:43,590 In 2000, around 2002, it was discovered that in South Korea they had been conducting decades long uranium enrichment experiments. 206 00:23:43,620 --> 00:23:50,040 Not on the scale of Iran. That's true, but uranium enrichment experiments, the exact same safeguards violation. 207 00:23:50,040 --> 00:23:54,270 And yet the South Korean case was not referred to the Security Council. 208 00:23:58,560 --> 00:24:02,880 So those are Iran's arguments under the NPT that it is not in breach of the NPT. 209 00:24:06,540 --> 00:24:13,410 And therefore they argue that U.N. Security Council action is unwarranted. 210 00:24:14,820 --> 00:24:21,810 They usually don't go so far as saying U.N. security. Sometimes they do go so far as to say U.N. Security Council action is illegal. 211 00:24:23,280 --> 00:24:24,930 That's a tough argument to make. 212 00:24:25,650 --> 00:24:33,870 I have made that argument in other contexts that U.N. Security Council action, in some cases ultra vires the their right to the charter. 213 00:24:34,230 --> 00:24:42,060 In this case, I find that argument difficult to make. For one thing, the U.N. Security Council standard, which is in Article 39, 214 00:24:42,660 --> 00:24:49,080 is a very broad one for determining when the U.N. Security Council could act threat to international peace and security. 215 00:24:49,920 --> 00:24:53,040 And if the Security Council finds that there is a threat to international peace and security, 216 00:24:53,040 --> 00:24:57,030 then you're really you're removing the issue from NPT law anymore. 217 00:24:57,060 --> 00:25:03,630 Now, it's just a question of has the U.N. Security Council determined that there's a threat to breach of international peace, security? 218 00:25:03,900 --> 00:25:08,250 And then they move on to Articles 41 and 42. 219 00:25:10,380 --> 00:25:20,550 So I don't I don't think I would agree that because the NPT arguments fail, therefore, U.N. Security Council action is illegal. 220 00:25:20,910 --> 00:25:24,360 You could, however, argue that it was unwarranted. 221 00:25:24,750 --> 00:25:31,620 But let's not go there any further. I did want to address the newest IAEA report that I referred to in November report of the IAEA, 222 00:25:32,370 --> 00:25:43,440 which found that Iran had been engaged in scientific industrial activities, experiments that could be used in a nuclear weapons program. 223 00:25:44,610 --> 00:25:49,200 Iran's primary argument is this is all falsified, and it may be who knows? 224 00:25:51,540 --> 00:25:54,930 But let's let's just say it's not falsified. 225 00:25:54,960 --> 00:26:04,440 Hypothetically, if it's true, they would still argue that all of the activities that the IAEA has found in 226 00:26:04,440 --> 00:26:13,110 this report that Iran is engaged in are engaged in by all advanced industrial, 227 00:26:13,110 --> 00:26:17,310 non-nuclear weapon states. Japan is a very good example. 228 00:26:17,820 --> 00:26:24,180 Every technical capability that the IAEA says Iran now has in its eye in its report of November. 229 00:26:24,750 --> 00:26:30,660 Japan has had for decades. Everyone knows it's sort of one of these little secrets. 230 00:26:30,900 --> 00:26:38,850 Not really secrets, but not well-kept secret. Everyone knows that Japan could make a nuclear warhead in a matter of weeks if they wanted to. 231 00:26:38,940 --> 00:26:42,450 They have all the technical capability. I'm not picking on Japan for any particular reason. 232 00:26:42,450 --> 00:26:45,960 I'm just using it as an example. Germany is another example. 233 00:26:46,020 --> 00:26:50,880 These are highly industrialised, highly technically, scientifically capable states. 234 00:26:51,570 --> 00:26:55,020 They could create a nuclear warhead. They could enrich the uranium. 235 00:26:55,020 --> 00:26:59,100 They could do everything they need to do to make a warhead in a matter of weeks or months. 236 00:27:00,420 --> 00:27:12,840 So the sort of shock value of, oh, my gosh, Iran has a, you know, a pit in which it's been conducting hemispherical explosive tests, 237 00:27:13,320 --> 00:27:20,340 is a bit diluted when you consider that all advanced industrial, none of the weapon states can do that. 238 00:27:22,290 --> 00:27:27,359 Again, these are the legal arguments. What they're saying is that is not an Article two violation. 239 00:27:27,360 --> 00:27:32,250 If it's Article two violation, that Japan's pilots are able to verbalise in violation or whatever. 240 00:27:32,400 --> 00:27:36,630 All the advanced industrial states are in violation of Article two. So it can't be that. 241 00:27:39,330 --> 00:27:47,610 So there you have the NPT based arguments about Iran's nuclear program, the West making safeguards, 242 00:27:47,970 --> 00:27:55,590 arguments Article three and Article four of the NPT arguments, and in the end, the Security Council arguments. 243 00:27:56,400 --> 00:28:03,360 While Iran responds with its own arguments about safeguards, its own arguments about the NPT interpretation and the new IAEA report. 244 00:28:05,010 --> 00:28:10,130 Let me give you my legal assessment about who's right and who's wrong for its worth. 245 00:28:11,880 --> 00:28:20,730 This is one of the frustrating things about international law. We tend not to have predictable adjudication of many matters that are important, 246 00:28:21,210 --> 00:28:24,990 and so this will certainly never be adjudicated by an international tribunal. 247 00:28:26,610 --> 00:28:33,450 But my own legal assessment is that on matters of substance, Iran is mostly right, that its interpretation of the ingredients, 248 00:28:33,450 --> 00:28:39,210 interpretation of its safeguards, agreement obligations, its interpretation of the meaning of the new IAEA report. 249 00:28:39,840 --> 00:28:47,940 Substantively, it is correct and that it does have the retains the right to indigenous fuel cycle capabilities. 250 00:28:48,660 --> 00:28:56,940 However, at least prima fashion, I am willing to accept that the U.N. Security Council Resolution 1690. 251 00:28:57,300 --> 00:29:04,560 And subsequent resolutions. Trump by virtue of Article 103 of the U.N. Charter, and therefore, 252 00:29:04,920 --> 00:29:12,180 notwithstanding substantive NPT obligations, the substantive NPT arguments fall on Iran's side. 253 00:29:13,140 --> 00:29:20,820 Nevertheless, the Security Council resolutions do prohibit Iran from enriching uranium. 254 00:29:20,860 --> 00:29:25,140 Therefore, Iran is in breach of those resolutions. 255 00:29:27,270 --> 00:29:41,040 So now what? Here's where I'll try to get a little bit more policy oriented while maintaining a discourse in law about what options for the West. 256 00:29:42,060 --> 00:29:45,240 Now that we have arrived at this current moment. 257 00:29:46,320 --> 00:29:52,020 Well, they've already taken some actions. The authorship of some of these is disputed. 258 00:29:52,020 --> 00:29:56,850 But we know that there have been targeted killings of Iranian nuclear scientists, 259 00:29:57,480 --> 00:30:05,610 as well as the degradation of Iranian nuclear enrichment capabilities via the introduction of the Stuxnet virus. 260 00:30:06,450 --> 00:30:11,310 These activities are largely attributed to Israel and the United States. 261 00:30:11,730 --> 00:30:17,490 Exactly who did what? No one knows. Well, some people know, but not us. 262 00:30:18,900 --> 00:30:27,660 But there have already been some actions taken in a sort of a counterproliferation stance of degrading Iran's nuclear capabilities. 263 00:30:28,920 --> 00:30:32,999 Further actions we often hear about, well, they've already been sanctions. 264 00:30:33,000 --> 00:30:37,960 We keep hearing about more and more sanctions. Sanctions. 265 00:30:38,470 --> 00:30:47,530 I'll just spend a moment on sanctions. Sanctions, whether authorised by the U.N. Security Council or simply done unilaterally. 266 00:30:48,940 --> 00:30:53,739 And this is not a legal point, but for the political scientists in the room, we can argue about this if you want, 267 00:30:53,740 --> 00:31:08,260 but my review of literature on sanctions, and especially with a target state like Iran that is essentially theocratic, that is authoritarian, 268 00:31:08,710 --> 00:31:15,490 and on an issue that involves national security and national pride at the highest level, 269 00:31:16,570 --> 00:31:21,370 the literature in international relations on sanctions would tend to say that sanctions 270 00:31:21,370 --> 00:31:26,500 are highly unlikely to be effective in changing the target states behaviour meaningfully. 271 00:31:28,180 --> 00:31:35,320 And so as a matter of the of the empirical work that's been done on sanctions, sanctions seem to be a road to nowhere. 272 00:31:37,240 --> 00:31:45,309 The few success stories that there have been tend to involve broad based strangling sanctions 273 00:31:45,310 --> 00:31:52,660 on the entire populace that do degrade the target state's ability to do what they are, 274 00:31:53,470 --> 00:31:59,020 what they're doing, but at the same time impose terrible collateral effects on the civilian populace. 275 00:32:02,210 --> 00:32:06,710 So sanctions are only going to go so far and they're probably not going to work. What about airstrikes? 276 00:32:06,800 --> 00:32:11,720 Well, this is the big sort of elephant in the room. 277 00:32:12,500 --> 00:32:20,030 There could be targeted airstrikes by Israel, most likely against Iranian nuclear facilities. 278 00:32:21,110 --> 00:32:26,479 What would that achieve? I won't get some of you know much more about the military aspects tonight. 279 00:32:26,480 --> 00:32:31,310 I won't get into that. But could they do it? They could do something that would knock out some of them. 280 00:32:31,320 --> 00:32:40,680 They could knock out the known sites. That, of course, doesn't account for the unknown sites, of which there are surely some redundant sites. 281 00:32:41,130 --> 00:32:48,180 And now we know that the Fordow site, a large enrichment facility which has been built under a mountain, 282 00:32:49,020 --> 00:32:54,930 which, as I understand it is is largely well impenetrable, not able to be destroyed. 283 00:32:56,100 --> 00:33:03,270 But in any event, the point is that airstrikes would potentially set the program back a few years. 284 00:33:04,410 --> 00:33:10,650 I very referred to as mowing the grass. Yeah, sure, you could mow the grass once, but it's going to come back. 285 00:33:11,550 --> 00:33:21,210 It would not permanently disabled the program and the political and strategic ramifications are almost unthinkable of what would happen the next day. 286 00:33:21,450 --> 00:33:25,740 I won't go into that. That's not my area. But it all sounds pretty bad. 287 00:33:26,700 --> 00:33:30,509 Continued counterproliferation, degradation, sanctions, airstrikes. 288 00:33:30,510 --> 00:33:35,160 It all sounds like pretty bad options. What are the options for Iran? 289 00:33:36,270 --> 00:33:39,390 Well, it could block the Strait of Hormuz as it's threatened to do. 290 00:33:39,990 --> 00:33:43,680 That would arguably be illegal. 291 00:33:43,710 --> 00:33:47,460 There's a great post by Douglas GUILFOYLE, our colleague on Angel Talk. 292 00:33:47,950 --> 00:33:57,630 If you drill international law blog that my friend and it's about this but largely illegal idea blocking the Strait of Hormuz. 293 00:33:59,070 --> 00:34:05,640 They could also enact countermeasures against against the West, against all bad ideas, though it's not really going to help anything. 294 00:34:07,710 --> 00:34:15,270 So what should happen? What's the best idea now for for dealing with the crisis as we have it? 295 00:34:15,720 --> 00:34:19,379 And I am now getting away from law and I'm getting into policy. 296 00:34:19,380 --> 00:34:22,410 But I think this is important. 297 00:34:24,030 --> 00:34:29,250 The way forward, I am confident, is a negotiated solution. 298 00:34:29,820 --> 00:34:32,940 And the sort of what is it? 299 00:34:33,450 --> 00:34:39,779 Tantalising thing about it is we all know what it is. Everyone knows everyone in this, 300 00:34:39,780 --> 00:34:46,290 in the non-proliferation community knows what could be done to resolve the problem and it would go something like this. 301 00:34:48,000 --> 00:34:52,590 What is the core problem right now? All it is is that Iran is enriching uranium. 302 00:34:53,250 --> 00:35:01,560 That's what the West has freaked out about from the beginning. But for Iran, that is sort of that is a line they won't cross. 303 00:35:01,740 --> 00:35:07,620 They won't give up their enrichment capability. It's a matter of national pride and all of that. 304 00:35:09,100 --> 00:35:14,940 But and so now you have the U.N. Security Council saying you must, not Iran saying we want you. 305 00:35:15,780 --> 00:35:26,490 There's a way around that. And it goes something like this. If Iran was allowed to keep its uranium enrichment facilities like Natanz and like Fordow, 306 00:35:27,360 --> 00:35:43,349 but it agreed to then send the EU to another country like Russia for fuel fabrication and then have the fuel sent back to run the reactors, 307 00:35:43,350 --> 00:35:48,960 the new Bushehr reactor and the reactor in Tehran. That would allow for accounting. 308 00:35:49,800 --> 00:35:56,550 You would send the facilities would be safeguarded, you would send the fuel out, it would be accounted for. 309 00:35:56,550 --> 00:36:02,880 You send the fuel back, it would be accounted for. You might even be able to negotiate with them to have the fuel then sent out for 310 00:36:03,630 --> 00:36:14,730 disposal or for well disposal in some way that would allow for all sides to save face. 311 00:36:16,470 --> 00:36:22,740 And that in the end, is what diplomacy is about. It's about saving face, about pride and saving face. 312 00:36:23,070 --> 00:36:31,770 And under a negotiated solution like that, Iran would get what it most wants the national pride of having uranium enrichment on its soil. 313 00:36:32,130 --> 00:36:34,650 But the UN Security Council, the IAEA, 314 00:36:34,650 --> 00:36:40,920 would get what it most wants greater accountability for what's going on in those facilities and what the output is. 315 00:36:42,510 --> 00:36:47,100 Would it please everyone who know? That's why it's so good. 316 00:36:48,270 --> 00:36:53,610 Because the Israelis wouldn't like it, because Iran would keep its fuel cycle capability. 317 00:36:53,850 --> 00:36:58,410 Iran would not like it because they don't want to have to then send the fuel out to get it back. 318 00:36:59,520 --> 00:37:07,010 Would the US like it? No. They want Iran to have no uranium enrichment, but that's when you know you've got the right solution. 319 00:37:07,020 --> 00:37:13,020 Everyone hates it, but in the end it does satisfy everyone enough. 320 00:37:14,550 --> 00:37:19,560 So I've ended on a policy note there, but I couldn't help myself. 321 00:37:19,560 --> 00:37:26,940 I think that is the way out. I'll end my comments there and open up to questions.