The “Camp Zeist” Solution to the Iranian Nuclear Problem: How the Scottish Court in The Netherlands Could Be a Model for a New Deal with Iran

[Jens Iverson is an assistant professor of international law at Leiden University]

The Iranian Non-proliferation Problem: Where to Enrich?

The main sticking point for a nuclear non-proliferation deal with Iran is domestic uranium enrichment. It seems intractable: but it might not be. 

Iran has been clear that it is open to a new deal, but insists it must be able to enrich uranium domestically. It frames domestic processing capacity as its “nuclear rights.” Iran has rejected proposals that its enrichment be placed, in the long run, in the territory of a consortium of Arab neighbors, but is open to invite such a consortium onto Iranian territory. Respected non-proliferation experts have suggested such a consortium enrichment center be placed in Oman. 

The United States demands that in the long run, Iran cannot be allowed any domestic uranium enrichment, insisting that Iran can be supplied with uranium enrichment from abroad if its aims are limited to peaceful energy production. Neither side can back down without losing face, and neither country is run by leadership that can stand to lose face. 

“The Scottish Court in The Netherlands” Solution to the Territory Problem

This is not the first time international law and diplomacy has faced a seemingly intractable set of demands based on location. In 2000, more than 11 years after the bombing of Pan Am Flight 103 over Lockerbie, Scotland, a Scottish Court held a trial of Libyan agents… in The Netherlands. Libya would not extradite the suspects to the United States. They would not extradite the suspects to Scotland. Libya maintained they would hold a trial in Libya. It was their right, they insisted. There was a diplomatic stalemate and a rupturing of international relations. But in the end, Libya did agree to extradite them to The Netherlands, knowing that The Netherlands would allow a room in a Dutch military base, Camp Zeist, to be made into a little piece of Scotland for all practical and legal purposes. A deal was struck, and the “Scottish Court in The Netherlands” was born. All sides saved face. 

The Non-proliferation Solution: Iranian “Territory” Abroad

What if something similar was arranged to solve this seemingly intractable problem with Iranian uranium enrichment on Iranian territory? A relatively neutral state could provide the same sort of inviolability it provides to an embassy, consulate, or the premises of international organization — to a uranium enrichment facility. For all intents and purposes, this facility could be considered functionally part of Iran’s territory. The enrichment facility plays the same role as the Scottish Court in The Netherlands: a creative legal solution that reassures all sides. 

Iran’s leadership could credibly claim to their people and themselves that the world bowed to their righteous demand that they retained their right to enrich on their “own territory.” The United States could claim they forced the “best deal ever.” All sides could save face. A return to war could be averted. And the fear of nuclear proliferation could be radically reduced.

The Legal Framework

What is the legal framework for this? Many people have the misconception that when a United States citizen enters a United States embassy, they’ve entered United States territory: that is, they’ve left the territory of the “host state” and entered the territory of the “sending state” (the United States). People speak of entering “international territory” when they enter the United Nations headquarters. Formally, embassies and the like remain the territory of the host state, but the lay understanding that embassies are the “territory” of the sending state and that the premises of an International Organization are “international territory” makes some sense in terms of function: they may generally only be entered under international law with the consent of the sending state or the international organization. 

When the Lockerbie bombers entered the Scottish courtroom in Camp Zeist, they hadn’t technically left Dutch territory. But the courtroom functioned as if they had. Under a bilateral treaty between the United Kingdom and The Netherlands, the premises of the court were under the control of the court: which means in effect Scottish judges were in charge. They could tell Scottish bailiffs what to do. They had the backing not only of Scottish law, or the backing of Dutch-UK treaty obligations: they also had the backing of United Nations Security Council Resolution 1192, which “Welcome[d] the initiative for the trial of the two persons charged with the bombing of Pan Am flight 103 […] before a Scottish court sitting in the Netherlands” and demanded Libyan compliance. Was this normal arrangement of state power? Absolutely not. But there is nothing forbidding such a creative approach.

Candidate “Third States”

Could a state play a similar role with respect to the Iranian uranium enrichment? Would any state willingly limit sovereignty over its own territory and possibly even turn over existing enrichment infrastructure to Iran? I suspect so. Such an arrangement could start from scratch in a neighboring Arab state, although Iran might object. Known civil uranium enrichment takes place in Russia, China, France, the United States, The Netherlands, the United Kingdom, and Germany, via four main companies: Rosatom, CNNC, Urenco and Orano. Of those, the United States and the United Kingdom are non-starters for obvious historical and political reasons. The other states, however, are generally eager to put themselves forward as world leaders that can fill the power vacuum left by the end of the post-Cold War unipolar moment. There is no evidence that any of them wish Iran to have a nuclear bomb. The states and companies involved could be compensated as needed by Iran and other interested states. The “loss of territory” involved in allowing Iran to operate as though it was Iranian territory is no different than states allowing embassies, consulates, or international organizations such as the United Nations or the International Atomic Energy Agency (IAEA) to have premises on their territory. It would be a small price to pay for prestige and a genuine contribution to the nuclear non-proliferation regime. China might be the best placed for this role: neither part of NATO nor an ally of Iran, with the second largest enrichment capacity (after Russia). China might be most eager to play the role of a neutral, globally important, problem solver as well. For the sake of simplicity, one could call the proposed facility the “Iranian Facility in the Host State,” (or just “Facility”) modelled after the “Scottish Court in The Netherlands.”

Inviolable but Inspectable: The Continued Role of the IAEA

The IAEA would need to have full access to the Facility for such a deal to work. While the host state (e.g. China) would need to respect the inviolability of the Facility, under an agreement acceptable to the United States, Iran would not be permitted to keep out inspectors and automatic monitoring run by the IAEA. This is the virtue for those interested in non-proliferation: there is essentially no chance of a secret program being run or international inspectors being kept out in the way there has been historically in Iran. Iran would also need to open its existing facilities to IAEA inspectors.

Calling the Bluffs

One virtue of this solution is that it calls the bluffs of the states involved. Iran says it wants a peaceful nuclear problem with domestic enrichment. Is that a bluff? Will they accept a deal that provides that, or do they insist on being a threshold or actual nuclear power? If they rejected an offer such as this, it would have the virtue of making clearer to everyone involved, including their own population, that this is about more than pride or “nuclear rights” — it is about violating their commitments and UN Security Council Resolutions. 

Israel’s justification for war is Iran’s nuclear threat. Is that a bluff? If Israel rejected such a deal, or pressed their allies to reject it, it would show that Israel’s goal is really a weak Iran or an overthrown regime, not merely an Iran with no nuclear weapons. The United States says it wants a deal. Is the current administration willing to make a deal and stick to it, or is there no realistic deal that would satisfy it? 

Even if this plan was offered by one state, there is no guarantee that it would be accepted and implemented. But even in failure it would be clarifying.

Implementation Options

There are a wide range of options in international law and international relations for implementing such a deal. The last deal, the “Joint Comprehensive Plan of Action” was not a treaty. It was a political agreement between seven nations and the European Union, subsequently backed by UN Security Council resolutions. The Facility could be made inviolable (but inspectable by the IAEA) by a bilateral treaty, a multilateral treaty, or less formally with an agreement. A treaty or agreement could be made stronger and more widely binding if backed by a UN Security Council resolution. Treaties can allow for binding dispute resolution, allowing a neutral body such as an arbitral panel or the International Court of Justice to resolve any disputes that might arise between parties to the treaty — without having to resort to force. The simplest solution might proceed in three steps. First, a political agreement to maintain the ceasefire and provide a framework. Second, a treaty between the Host State, Iran and the IAEA and binding arbitration. Third, UN Security Council backing. That’s one plan, but other options are possible. Where there’s a political will, there’s a legal way.

It’s Not Necessarily Too Late

The choice for both Iran and the United States is clear. On one hand, there is the difficult but viable route of a negotiated deal that largely removes Iran’s possibility of developing a nuclear weapon. On the other hand, there is the near-inevitable return to war. Iran’s first-order priority is regime preservation, and its second-order priority is to save face. Renewed war may threaten both those goals. The United States and Israel have achieved their second-order goals of temporary escalation dominance and temporary degradation of Iran’s capacity, but the first-order goal of durable nuclear non-proliferation is at more risk than ever, if Iran decides the only way to preserve its regime is to build a nuclear weapon. An agreement would reduce the likelihood of escalation and bloodshed for Iran and Israel, and is in the long-term security interests of both states. It is possible the recent bombing may convince some, particularly in Iran, that a suboptimal bargain is better than no bargain.

Iran and the United States have indicated they want a deal, and this may be the best chance left to achieve one. For the moment, Israel is less likely or able to derail a renewed diplomatic process than it was before the last round of bombing, given the United States public endorsement of a ceasefire and the current depletion of its antimissile systems. Iran has not yet necessarily decided to commit to making a nuclear weapon.

A deal is in the interest of more than just Iran and the United States: most countries around the world want an enforceable agreement and functional nuclear non-proliferation, not renewed war or a race to the bomb. There is a deal to be had. The real question is whether Iran and the United States want a sustainable, agreed-upon solution. If not, sooner or later, war will likely return, or Iran will arm itself with nuclear weapons. Or both.

Photo attribution: QSL.net