26 Sep Iran’s Nuclear Program and International Law: From Confrontation to Accord
[Dan Joyner is Professor of Law and Director of International Programs at the University of Alabama School of Law.]
In July 2015 a historic diplomatic accord was reached among Iran, the E.U., and the P5+1 states (the U.S., U.K., France, Germany, Russia, China). The Joint Comprehensive Plan of Action (JCPOA), as the accord was titled, consisted of 159 total pages of agreed text, addressing all of the issues that had been in dispute among the parties concerning Iran’s nuclear program for thirteen years –a dispute which had at times appeared likely to precipitate military conflict. I summarized the JCPOA in a blog post here at Opinio Juris at the time of its adoption.
My newly published book, Iran’s Nuclear Program and International Law: From Confrontation to Accord, provides an in-depth examination of the legal and diplomatic history that form the context for the JCPOA’s agreement, and sets out to describe and to answer the most important legal questions that were in dispute among the JCPOA’s parties. The aim of the book is to clarify how the relevant sources of international law – including primarily the 1968 Nuclear Nonproliferation Treaty (NPT) and the law of the International Atomic Energy Agency (IAEA) – should be properly interpreted and applied to these questions.
In this post I’ll give a very brief summary of the questions the book addresses, and of my analysis and conclusions concerning them.
The first question addressed in the book is whether Iran has at any time in the history of its pursuance of a nuclear program violated the terms of the NPT. Iran is, of course, a non-nuclear weapon state party to the NPT, and is therefore prohibited from inter alia the manufacture or other acquisition of a nuclear explosive device.
It has been long argued by Iran’s detractors in the West, and in December 2015 it was confirmed in a report by the IAEA, that through the decade of the 1990’s and essentially ending in 2003, Iran did pursue a nuclear weapon research and development program separate from its civilian nuclear program. However, in the words of the IAEA report: “these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities.” In other words, Iran did develop some understanding and technical capabilities that it would need were it to decide to build a nuclear weapon, but it did not ever actually construct a nuclear explosive device. On the basis of these facts concerning Iran’s weaponization research program, I conclude that Iran did not at any time manufacture or otherwise acquire a nuclear explosive device, and that therefore Iran did not violate the NPT.
The second question addressed is whether Iran was in violation of its IAEA safeguards treaty obligations in 2003, when international scrutiny of Iran’s nuclear program began following the revelation that Iran had clandestinely begun construction on two nuclear facilities at Natanz and Arak. After a review of Iran’s safeguards obligations pursuant to its bilateral safeguards treaty with the IAEA, as well as the subsidiary arrangements agreed between Iran and the IAEA in implementation of the treaty, I conclude that the various failures by Iran to declare the existence and location of nuclear materials prior to 2003, and Iran’s several failures to declare experiments conducted using those nuclear materials, did constitute a violation by Iran of its safeguards treaty obligations.
I further conclude, however, that this internationally wrongful act by Iran was remedied through effective reparation in cooperation with the IAEA between 2003 and 2008, culminating in IAEA Director General ElBaradei’s February 22, 2008, report to the IAEA Board of Governors, in which he assessed that all declared nuclear material in Iran was in peaceful use, and that all prior concerns the IAEA had registered involving nuclear materials and related facilities in Iran had been resolved through dialogue with Iranian authorities.
The third question addressed is whether Iran was, as Western states led by the United States claimed, in continuing violation of its safeguards treaty obligations in the several years leading up to the conclusion of the JCPOA in July 2015. And further, whether during this time period the IAEA employed correct legal standards in assessing Iran’s compliance with its safeguards obligations.
I conclude that, according to the correct legal standards, contained in Iran’s safeguards agreement, from 2008 to 2015 Iran was in fact in full compliance with its safeguards treaty obligations. This is the case even though during this period the IAEA made numerous allegations and findings concerning the possible existence of undeclared nuclear materials within Iran. To be clear, the IAEA did not find any undeclared nuclear materials in Iran during this time, it only asserted its inability to determine satisfactorily that such materials did not exist.
I argue that throughout this period, the IAEA applied incorrect legal standards of investigation and assessment to Iran’s case. Standards that were derived from erroneous legal interpretations of Iran’s safeguards treaty obligations. I argue that due to the application of these incorrect standards, the IAEA during this time reached erroneous conclusions regarding Iran’s compliance with its safeguards agreement, and improperly withheld its determination that Iran was in fact in compliance with its safeguards obligations. The IAEA’s withholding of its determination of Iran’s compliance had a significant influence on the diplomatic and security crisis surrounding the issue during this period, as states and the U.N. Security Council relied upon the IAEA’s technical determinations of Iran’s compliance. This third set of questions is addressed in Chapter 5 of the book, which is publicly accessible here on my SSRN page.
The fourth question addressed is whether and to what extent the decisions of the United Nations Security Council on the subject of Iran’s nuclear program should be understood to impact on the analysis of the previous three questions. After reviewing the Security Council’s decisions on Iran from 2002 through July 2015, I conclude that those decisions neither added to Iran’s safeguards-related obligations, nor enhanced the legal authority of the IAEA to investigate and assess Iran’s compliance with its safeguards obligations. In Resolutions 1696 and 1737, both adopted in 2006, the Security Council did command Iran to suspend its uranium enrichment program. Iran did not suspend its uranium enrichment program after the adoption of those decisions, and as such Iran can be at least prima facie considered to have been in noncompliance with those decisions of the Security Council, up until those resolutions of the Council were themselves terminated on JCPOA Implementation Day (January 16, 2016). I do however argue that the legal validity of this specific command of the Security Council is doubtful. I base this argument on the conflict between, on the one hand, the obligation of all U.N. member states pursuant to Article 25 of the U.N. Charter to “accept and carry out” the decisions of the Security Council, and on the other hand Iran’s “inalienable right” to peaceful nuclear energy as expressed in Article IV of the NPT.
The final chapter of the book provides a detailed explanation and consideration of the JCPOA itself. Essentially, Chapter 7 of the book (also publicly accessible here on my SSRN page) is a full chapter-length review and analysis of the legal implications of the JCPOA, on issues including Iran’s safeguards obligations, and the economic sanctions levied against Iran by the U.N. Security Council and by the U.S. and E.U. acting unilaterally.
The book thus follows the Iran case study through the period of confrontation between Iran and the West from 2002 through July 2015, setting this confrontation in its historical and diplomatic context, and examining key international legal questions that were raised during this period, and which played a significant role in the diplomatic crisis over Iran’s nuclear program. It then explains the historic diplomatic accord which was painstakingly negotiated to resolve these various legal questions, and to bring the parties together on an agreed plan of action for building confidence in the peaceful nature of Iran’s nuclear program, and for the lifting of economic sanctions on Iran.
The implementation of the JCPOA continues to the present to be controversial. Political forces within Iran opposed to the relatively moderate regime of President Rouhani are tapping into popular sentiment among Iranians, to the effect that the economic benefits of the nuclear deal have been too small and too slow in coming. They argue that the West has not lived up to its commitments to meaningfully lift international economic sanctions on Iran.
In the U.S. as well, there are influential political forces arguing that the JCPOA gave Iran too much in the way of economic concessions, in return for relatively minor nonproliferation commitments that will mostly expire within ten years. They are quick to jump on any perceived noncompliance by Iran with its technical commitments under the JCPOA – even though the IAEA itself has repeatedly determined that Iran has abided by its JCPOA commitments.
These domestic political movements, both in Iran and in the U.S., threaten to frustrate and ultimately to marginalize the JCPOA, and bring the world back to a state of active confrontation over Iran’s nuclear program. With the U.S. presidential election in November of this year and Iranian presidential elections in May of 2017, the question of the future of the JCPOA and the diplomatic path to resolution of the Iran nuclear dispute remain very much in question.