It's unusual to start off a seven hour talk to say we have a great topic and we have a great speaker.
Well, we have a great topic. We have a timely topic.
And we have just the perfect question to speak to that topic.
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.
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,
I think it today is better than joining a who is from the University of Alabama.
Now I am thinking about how to introduce you.
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.
And I thought, well, that's a pretty big, heavy burden.
But what we are seeing all the expert group and I thought, okay, let me actually throw the other names into it.
You know, is there anything who else could I think about?
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.
He has written a couple of books in the last five years,
which are really the place that everybody goes to when when we think about how to interpret the Nuclear Non-Proliferation Treaty,
that when we think about how little or no amplification that actually, though he is American,
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,
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.
So thank you very much for coming. You have done well for you.
Oh, gosh, thank you. To my good friend double fighters me with that introduction.
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.
So let's talk about Iran's nuclear program and international law.
I know that we're not all lawyers in this room.
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.
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,
the Iran nuclear issue crisis, whatever you want to call it,
is not exclusively or most would say not even primarily an issue that revolves around law.
There's a lot more going on history, security, relationships, politics, regional security dynamics, all of that.
But today I and I am with you talk about the legal issues involved because I think they are important,
even if they are not the issues around which the entire situation hinges.
And I think if you haven't already, if you will notice both sides,
meaning Iran on one side and on the other side in particular Western states, the United States, Britain, France, Germany in particular.
They are making legal arguments as part of the diplomatic back and forth thing.
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.
And that's what's going on in the Iran nuclear crisis.
Both sides are using as part of their argumentation, legal arguments.
And that is the part of the diplomatic dialogue, part of the situation that I would like to address today,
even though, again, I realise that that's not all that's going on.
So let's talk about the legal arguments that are being used by both sides in trying to
justify the actions that they have taken or taking and say they may take in the future.
Let's start with the arguments of Western governments.
I say Western because I'm not really including Russia and China on this,
because they they tend to have a different argumentative structure and they tend not to be at the forefront of making.
Arguments against Iran's nuclear program and sort of militating for more action.
So when I say Western governments, I mean primarily United States, Britain, France and Germany.
What are their legal arguments against Iran?
And those arguments they used to justify their positions, their actions.
Well, it starts and I have to be brief about this, but it begins in 2002,
when it was disclosed by Iranian dissident groups that Iran had been for at least a decade,
operating two facilities at Natanz and Iraq that were engaged in undeclared uranium enrichment experiments and actual processing.
I say undeclared because these facilities and these activities had had not been declared to the International
Atomic Energy Agency as Iran was obligated to do under its safeguards agreement with the IAEA.
At the time that was, and the Board of governors of the IAEA found it to be a breach of Iran's non-compliance.
I should say that is the word for non-compliance with Iran's safeguards agreements with the International Atomic Energy.
So that is a legal argument made by Western states against Iran.
Once that issue was decided by the Board of Governors, it was decided that Iran was in non-compliance.
The Board of Governors decided and this was unique the first time it had ever happened,
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,
and that essentially shifting the burden to Iran now to prove that there were no unsafe guarded facilities,
there were no one safeguarded activities, there was no UN safeguards or undeclared nuclear material in Iran.
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.
And again, uniquely, this never happened before.
South Korea was found to have had uranium enrichment experiments, but no such burden was placed on them.
But it was placed on Iran that it was to clear up to the satisfaction of the Board of
Governors all questions about its nuclear program to essentially prove the negative,
to prove that there was no such activities.
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.
And beginning in 2006, with Resolution 1696, a number of U.N. Security Council resolutions.
The first 6096 commanding Iran to stop all of its uranium enrichment activities and then subsequent resolutions.
But Iran didn't do that.
Imposing sanctions that tend to take the form of financial sanctions, economic sanctions, prohibitions on trading with Iranian firms,
individuals, prohibitions on trading in all sorts of goods that Iran could possibly use in its nuclear program.
And the most recent sanctions just adopted this year.
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,
that the European Union, the United States, unilaterally imposed sanctions on Iran Central Bank,
which has had a very serious effect on Iran's ability to trade oil.
So we sort of know this from the news.
I'm not going over what happened with the sanctions after the breach of safeguards agreements which were discovered in 2002.
Let's then go to the the latest IAEA report in November, I believe it was, of this last year.
The most recent IAEA report by the secretary, the director general to the board of governors.
We have to be careful what we say here. But what did that report say?
Their report said that Iran has been engaged in a number of different kinds of scientific experiments,
industrial developments that pertain to capabilities that could be used in a nuclear weapons program.
I'm dancing around with words here because what I don't want to say,
and this is not what the report said, is that Iran is now building a nuclear weapon.
Did not say that.
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.
And so that has then sort of upped the ante because up till this last year report,
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.
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,
which then justified moving the file to the U.N. Security Council, which then, of course,
has its own standard to find that there's a threat to international peace and security.
So safeguards, breaches, breach of NPT Article three.
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.
Now, in order for especially for the non-lawyers,
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.
And I won't go into great detail. I don't have time to do that.
But let me connect the dots for you here, because it's important to understand what they're saying.
Article three. Okay, let's start with Article two.
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.
While we know that in Article one, the five nuclear weapon states are allowed to keep their nuclear weapons.
In Article three,
we find the safeguards provisions and the export control provisions that are supposed to then monitor and verify the Article two provisions.
And in Article three, paragraph four, we find the obligation on non-nuclear weapon states to conclude a safeguards agreement with the IAEA.
So to connect the dots. Western arguments have been that because Iran breached its safeguards agreement and according to the Board of Governors,
is still in non-compliance with its safeguards agreement, it is therefore in breach of Article three four.
Sometimes they say Article three one relating to keeping safeguards agreements with the IAEA,
and therefore Iran's Article four rights to peaceful use are no longer valid.
You follow that? Let's go through that one more time.
It's like I'm teaching a class. I'm not teaching a class.
But the argument is that because of the breach of safeguards, there has also been a breach of Article three.
And because there's been a breach of Article three, Iran's Article four rights are no longer applicable.
That takes some doing to make those arguments, but they are colourable.
I disagree with them, but they are colourable arguments. If you look at article four one,
nothing in this treaty shall be interpreted as affecting the inalienable right of all parties treated to blah, blah, blah,
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.
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.
It is a breach of Article three. It's also then negating the recognition of.
Right, an Article four one that then serves as the justification for Security Council sanctions.
And all of the talk about airstrikes and sanctions and of upping the ante, that's the NPT, nuclear non-proliferation law justification.
Okay. So let's now talk about Iran's arguments, legal arguments with regard to their safeguards agreements.
Iran does not oppose or I've never seen them reject.
The idea that they're keeping the tunnels and Iraq clandestine was not a breach of their sacred agreements.
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,
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.
I write this correctly, but I'm not speaking of non-compliance secrets because not because safeguards agreements.
A state can be in non-compliance for technical reasons,
so you can be in non-compliance with the safeguards agreement just because of an omission in accounting,
not reporting exactly the right amount of uranium that's in your facility on a certain date.
That's non-compliance. That non-compliance with your safeguards agreements as determined by the Board of Governors,
does not in any way mesh with the material breach language.
For example, in Article 60 of the Vienna Convention Law of Treaty. So we're not talking about breach of a treaty.
We're talking about the IAEA board of governors finding that a state is in non-compliance.
That's what the safeguards agreement saying and that's what the IAEA statute says.
So, again, while Iran would argue would not argue, I think that they were not in non-compliance.
There are safeguards here in 2002.
What they would argue is that the obligation on them then, as the board of governors declared to prove the negative was simply unwarranted,
and especially that the decision to send the issue to the Security Council was unprecedented, unwarranted.
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,
not perhaps with the additional duties being imposed upon them by the IAEA Board of Governors,
which they say are ultra vires the Board of Governors Authority under the statute.
But they would say that they have been in complete compliance with their safeguards agreements and with the
subsidiary arrangements which were negotiated with the IAEA by Iran on things like declaration of new facilities,
the new facility in Fordow, for example, something something called the Qom facility.
There was a debate over whether the declaration was correct.
Iran argues that even that was correct, the timing of their declaration.
So there I would argue that they have been completely in compliance with the terms of their safeguards agreements since 2002.
But the real meat of the Iranian argument is about NPT Article four.
So you remember that little acrobatics that I did a minute ago, legal acrobatics in making out the Western arguments?
Well, let's start with Article four now. Nothing in this treaty shall be interpreted as affecting the inalienable right,
inalienable right of all the parties to the treaty to develop research,
production and use of nuclear energy for peaceful purposes without discrimination and conformity with one or two.
The treaty also read Article four to I can't read the whole thing,
but what it says paraphrasing is that not only is there a right in non-nuclear weapon states that peaceful uses of nuclear energy
supplier states are not under our obligation to help them to positively help them to develop their indigenous nuclear fuel cycle.
What Iran argues is that this inalienable right, as recognised in Article four,
is not made conditional in Article four upon full and demonstrated compliance with Articles one and two,
rather that the inalienable right is limited by the conventional clause at the end here,
which says conform with articles one or two, but that even if there is non-compliance with Article three,
for example, as the West claims, that this does not negate the inalienable right.
Let me put this another way maybe make the argument clearer.
Think of Article 51 in the U.N. charter.
And if you know what that that's about self-defence and it says nothing in this charter shall abrogate, I'm paraphrasing,
the inherent right of all states to have a right of all states to use self-defence, whether individually or collectively.
If an armed attack occurs until the Security Council becomes seized of the matter
and the state must give notice to the Security Council of its self-defence.
So, analogously, what Iran is saying is that the.
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.
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.
You see, if you were to argue that,
who would accept that argument that the right of self-defence is extinguished if you fail to report it to the Security Council,
or if you continue the right, if you continue your self-defence,
even if the Security Council passed passes first resolution, no one would accept that.
So this is Iran's argument that just because there may have been some non-compliance with safeguards agreements,
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.
The Iranian argument on Article three is that all Article three does is obligate in Article three
for non-nuclear weapon states to conclude agreements with the International Atomic Energy Agency.
And that these agreements, it says, are to be of a character described in articles one and three of Article three.
And this makes sense. Just from a macro perspective, but because the International Atomic Energy Agency predates the NPT, NPT was signed in 1968.
But the IAEA as an organisation predates that by about ten years.
Late fifties, it was set up as part of President Eisenhower's Atoms for Peace initiative.
So the Iranian argument is that the Iranian Atomic Energy Agency safeguards which Article 34 obligates non-nuclear
weapons states parties to conclude or separate treaties with an established international organisation.
And those treaties are fully independent from the NPT as treaties.
This makes sense. They are in fact separate treaties. They have their own terms.
They're bilateral treaties between the non-nuclear area, state and this established international organisation of the IAEA.
So Iran argues that any non-compliance with a safeguards agreement does not then constitute a breach of Article three,
because the only obligation out of all three is to have an agreement of this character.
And again, that makes sense because, as I said before, non-compliance with the not with an IAEA.
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.
So you cannot say that the one equals the other, even in most cases.
Is it possible for an activity to both breach your safeguards agreement and Article three?
I would say that would only happen if it was of such a character as to essentially negate the safeguards agreement.
That would be a very high bar. So we're getting all lawyerly now and the non-lawyers in the room.
But this is what you came for. I told you that this was essentially about international law.
But I will then try to go more policy in a minute.
So the Iranian argument is essentially that the NPT, as is quid pro quo bargain between unusual states and a nuclear weapon state,
did not, in fact, make peaceful use conditional on Iran's compliance with its other obligations.
In fact, what they're arguing is that an Article four, just like in Article 51 of the UN Charter.
What's happening here is the recognition of an inherent right that inures to a state because of its sovereignty.
And that and again, it further argues that it is not in breach of Article three,
that any non-compliance with the safeguards agreements is just that technical non-compliance with safeguards agreements that,
in the case of other states, has been solved by the IAEA.
Cases like South Africa, Brazil, South Korea.
South Korea is a good example.
In 2000, around 2002, it was discovered that in South Korea they had been conducting decades long uranium enrichment experiments.
Not on the scale of Iran. That's true, but uranium enrichment experiments, the exact same safeguards violation.
And yet the South Korean case was not referred to the Security Council.
So those are Iran's arguments under the NPT that it is not in breach of the NPT.
And therefore they argue that U.N. Security Council action is unwarranted.
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.
That's a tough argument to make.
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.
In this case, I find that argument difficult to make. For one thing, the U.N. Security Council standard, which is in Article 39,
is a very broad one for determining when the U.N. Security Council could act threat to international peace and security.
And if the Security Council finds that there is a threat to international peace and security,
then you're really you're removing the issue from NPT law anymore.
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?
And then they move on to Articles 41 and 42.
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.
You could, however, argue that it was unwarranted.
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,
which found that Iran had been engaged in scientific industrial activities, experiments that could be used in a nuclear weapons program.
Iran's primary argument is this is all falsified, and it may be who knows?
But let's let's just say it's not falsified.
Hypothetically, if it's true, they would still argue that all of the activities that the IAEA has found in
this report that Iran is engaged in are engaged in by all advanced industrial,
non-nuclear weapon states. Japan is a very good example.
Every technical capability that the IAEA says Iran now has in its eye in its report of November.
Japan has had for decades. Everyone knows it's sort of one of these little secrets.
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.
They have all the technical capability. I'm not picking on Japan for any particular reason.
I'm just using it as an example. Germany is another example.
These are highly industrialised, highly technically, scientifically capable states.
They could create a nuclear warhead. They could enrich the uranium.
They could do everything they need to do to make a warhead in a matter of weeks or months.
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,
is a bit diluted when you consider that all advanced industrial, none of the weapon states can do that.
Again, these are the legal arguments. What they're saying is that is not an Article two violation.
If it's Article two violation, that Japan's pilots are able to verbalise in violation or whatever.
All the advanced industrial states are in violation of Article two. So it can't be that.
So there you have the NPT based arguments about Iran's nuclear program, the West making safeguards,
arguments Article three and Article four of the NPT arguments, and in the end, the Security Council arguments.
While Iran responds with its own arguments about safeguards, its own arguments about the NPT interpretation and the new IAEA report.
Let me give you my legal assessment about who's right and who's wrong for its worth.
This is one of the frustrating things about international law. We tend not to have predictable adjudication of many matters that are important,
and so this will certainly never be adjudicated by an international tribunal.
But my own legal assessment is that on matters of substance, Iran is mostly right, that its interpretation of the ingredients,
interpretation of its safeguards, agreement obligations, its interpretation of the meaning of the new IAEA report.
Substantively, it is correct and that it does have the retains the right to indigenous fuel cycle capabilities.
However, at least prima fashion, I am willing to accept that the U.N. Security Council Resolution 1690.
And subsequent resolutions. Trump by virtue of Article 103 of the U.N. Charter, and therefore,
notwithstanding substantive NPT obligations, the substantive NPT arguments fall on Iran's side.
Nevertheless, the Security Council resolutions do prohibit Iran from enriching uranium.
Therefore, Iran is in breach of those resolutions.
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.
Now that we have arrived at this current moment.
Well, they've already taken some actions. The authorship of some of these is disputed.
But we know that there have been targeted killings of Iranian nuclear scientists,
as well as the degradation of Iranian nuclear enrichment capabilities via the introduction of the Stuxnet virus.
These activities are largely attributed to Israel and the United States.
Exactly who did what? No one knows. Well, some people know, but not us.
But there have already been some actions taken in a sort of a counterproliferation stance of degrading Iran's nuclear capabilities.
Further actions we often hear about, well, they've already been sanctions.
We keep hearing about more and more sanctions. Sanctions.
I'll just spend a moment on sanctions. Sanctions, whether authorised by the U.N. Security Council or simply done unilaterally.
And this is not a legal point, but for the political scientists in the room, we can argue about this if you want,
but my review of literature on sanctions, and especially with a target state like Iran that is essentially theocratic, that is authoritarian,
and on an issue that involves national security and national pride at the highest level,
the literature in international relations on sanctions would tend to say that sanctions
are highly unlikely to be effective in changing the target states behaviour meaningfully.
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.
The few success stories that there have been tend to involve broad based strangling sanctions
on the entire populace that do degrade the target state's ability to do what they are,
what they're doing, but at the same time impose terrible collateral effects on the civilian populace.
So sanctions are only going to go so far and they're probably not going to work. What about airstrikes?
Well, this is the big sort of elephant in the room.
There could be targeted airstrikes by Israel, most likely against Iranian nuclear facilities.
What would that achieve? I won't get some of you know much more about the military aspects tonight.
I won't get into that. But could they do it? They could do something that would knock out some of them.
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.
And now we know that the Fordow site, a large enrichment facility which has been built under a mountain,
which, as I understand it is is largely well impenetrable, not able to be destroyed.
But in any event, the point is that airstrikes would potentially set the program back a few years.
I very referred to as mowing the grass. Yeah, sure, you could mow the grass once, but it's going to come back.
It would not permanently disabled the program and the political and strategic ramifications are almost unthinkable of what would happen the next day.
I won't go into that. That's not my area. But it all sounds pretty bad.
Continued counterproliferation, degradation, sanctions, airstrikes.
It all sounds like pretty bad options. What are the options for Iran?
Well, it could block the Strait of Hormuz as it's threatened to do.
That would arguably be illegal.
There's a great post by Douglas GUILFOYLE, our colleague on Angel Talk.
If you drill international law blog that my friend and it's about this but largely illegal idea blocking the Strait of Hormuz.
They could also enact countermeasures against against the West, against all bad ideas, though it's not really going to help anything.
So what should happen? What's the best idea now for for dealing with the crisis as we have it?
And I am now getting away from law and I'm getting into policy.
But I think this is important.
The way forward, I am confident, is a negotiated solution.
And the sort of what is it?
Tantalising thing about it is we all know what it is. Everyone knows everyone in this,
in the non-proliferation community knows what could be done to resolve the problem and it would go something like this.
What is the core problem right now? All it is is that Iran is enriching uranium.
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.
They won't give up their enrichment capability. It's a matter of national pride and all of that.
But and so now you have the U.N. Security Council saying you must, not Iran saying we want you.
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,
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,
the new Bushehr reactor and the reactor in Tehran. That would allow for accounting.
You would send the facilities would be safeguarded, you would send the fuel out, it would be accounted for.
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
disposal or for well disposal in some way that would allow for all sides to save face.
And that in the end, is what diplomacy is about. It's about saving face, about pride and saving face.
And under a negotiated solution like that, Iran would get what it most wants the national pride of having uranium enrichment on its soil.
But the UN Security Council, the IAEA,
would get what it most wants greater accountability for what's going on in those facilities and what the output is.
Would it please everyone who know? That's why it's so good.
Because the Israelis wouldn't like it, because Iran would keep its fuel cycle capability.
Iran would not like it because they don't want to have to then send the fuel out to get it back.
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.
Everyone hates it, but in the end it does satisfy everyone enough.
So I've ended on a policy note there, but I couldn't help myself.
I think that is the way out. I'll end my comments there and open up to questions.