Iran’s nuclear rights vs. the West’s ‘bombastic diplomacy’

John Kerry meets with EU High Representative for Foreign Affairs, Catherine Ashton and Iranian Foreign Minister Mohammad Javad Zarif in Geneva, November 9, 2013. (Photo: AP)

John Kerry meets with EU High Representative for Foreign Affairs, Catherine Ashton and Iranian Foreign Minister Mohammad Javad Zarif in Geneva, November 9, 2013. (Photo: AP)

Reports following the end of the most recent round of talks between six world powers and Iran in Geneva early Sunday morning revealed that, while a preliminary deal was close at hand, the failure to produce a workable agreement was due to unnecessary, last minute intransigence by the French delegation, led by Laurent Fabius, France’s foreign minister.

Fabius, much to the ire of the other diplomats present (which included Secretary of State John Kerry, the foreign ministers of Russia, Britain, and Germany and the Chinese deputy FM), reportedly “blocked a stopgap deal aimed at defusing tensions and buying more time for negotiations,” the draft text of which would have established the slowing down or stopping of aspects of the Iranian nuclear program in exchange for limited sanctions relief.

The French foreign minister also broke the agreed upon diplomatic protocol for the talks by “revealing details of the negotiations as soon as he arrived in Geneva on Saturday morning, and then breaking protocol again by declaring the results to the press before Ashton and Zarif had arrived at the final press conference.”

According to The Guardian‘s Julian Borger and Saeed Kamali Dehghan, “Fabius said one of the key issues was Iran’s heavy water reactor at Arak, which is due to reach completion next year after many delays. The west and Israel have called for construction work to stop as part of an interim deal aimed at buying time for negotiations on a more comprehensive long-term deal.”

But the focus on the Arak facility, a half-built heavy water reactor routinely used by Israel and its contingent of hawkish American supporters as an alternate way to fear-monger about Iran’s nuclear program, is disingenuous. The facility itself has been plagued by technical setbacks and delays and won’t be operational until mid-2014 at the very earliest. Whenever it is finally commissioned, it will be used for medical, scientific and agricultural research.

Heavy water reactors pose a potential proliferation threat due to the amounts of plutonium produced as a byproduct of their spent nuclear fuel, material that could then be separated from the irradiated fuel and further processed to weapons-grade levels.

Yet scuttling a deal due to concerns over hypothetical and highly unlikely scenarios makes no sense.

Beyond the fact that Iran has repeatedly denied any intention to weaponize its nuclear program and that all American and international intelligence assessments  consistently  affirm that Iran has no nuclear weapons program, the alarmism over Arak relies on a deliberately decontextualized and incomplete presentation of reality. For example, the heavy water reactor at Arak is subject to IAEA safeguards and is routinely visited by its inspectors. This will continue to be the case once Arak comes online.

Also, as Bloomberg News reported back on June 6, 2013, “Iran encouraged United Nations nuclear monitors to use powerful new detection technologies to dispel international concern that the Persian Gulf country is seeking to build atomic weapons.”

“We always welcome the agency to have more sophisticated equipment, to have more accuracy in their measurements, so that technical matters will not be politicized,” Iranian Ambassador to the IAEA Ali Asghar Soltanieh told the press in Vienna at the time, adding that Iran “won’t object to IAEA monitors using new technologies to determine whether plutonium is being extracted from spent fuel at its new reactor in Arak.”

Furthermore, as Daryl G. Kimball and Kelsey Davenport of the Arms Control Association(ACA) explained back in August:

[T]he reactor at Arak would need to be operational for perhaps up to a year before the plutonium could be extracted. Even then, Iran does not have a reprocessing facility for separating the plutonium to produce weapons-usable material, having revised its declaration to the IAEA regarding the Arak site in 2004. The revision eliminated plans for a reprocessing facility at the site. Tehran maintains that it does not intend to build a plant to separate plutonium from the irradiated fuel that the reactor will produce.

Reacting to the recent reports from Geneva, Kimball, who is ACA’s executive director, said that, if anything, “Arak represents a long-term proliferation risk not a near-term risk and it can be addressed in the final phase of negotiations,” adding, “France and the other… powers would be making a mistake if they hold up an interim deal that addresses more urgent proliferation risks over the final arrangements regarding Arak.”

It appears that France has done just that, in a move met with elation by Congressional hawksIsrael and Arab dictatorships, which whom France recently inked billion dollar weapons deals.

Nevertheless, American officials are now seeking to peg Iran, not France, as the intransigent party, in an effort to placate an increasingly shrill Israeli government worried that diplomacy might actually work and the possibility of war will diminish.

In an article published online Sunday, the New York Times claimed that “the Iranian government’s insistence on formal recognition of its ‘right’ to enrich uranium emerged as a major obstacle” at the Geneva talks.

While the article notes that the “Obama administration is prepared to allow Iran to enrich uranium to the low level of 3.5 percent as part of an interim agreement,” it omits the inconvenient fact that the United States does not have the authority to “allow” or “disallow” anything when it comes to Iran’s nuclear program.

Iran’s inalienable right to a peaceful, domestic nuclear energy program is affirmed by international law via the Nuclear Non-Proliferation Treaty (NPT).   As Fred Kaplan recently wrote in Slate, “So, when the Iranians insist on their ‘right’ to enrich uranium for peaceful nuclear energy, they aren’t asserting some self-contrived privilege; they are quoting the NPT.”

Iran’s inherent right to enrichment and indigenous fuel-cycle technology is actually quite clear and uncontroversial.  The vast majority of the international community – including ChinaRussiaBrazil, TurkeyIndia, South Africa, and all 120 members of the Non-Aligned Movement - acknowledges this right.

The United States, however, “is not prepared to acknowledge at this point that Iran has a ‘right’ to enrich.”

Undersecretary of State for Political Affairs Wendy Sherman, who is leading the U.S. delegation at the nuclear talks (as long as John Kerry isn’t in the room), denied Iran’s right to enrich uranium during testimony before the Senate Foreign Relations Committee last month. “It has always been the U.S. position,” she told Florida Senator Marco Rubio, “that Article IV of the Nuclear Non-Proliferation Treaty does not speak about the right of enrichment at all.”

Speaking to reporters in Geneva on November 6, an unnamed “senior administration official” insisted that ”the United States does not believe there is an inherent right to enrichment, and we have said that repeatedly to Iran.” He added later that “the United States does not believe any country has a right… We believe Iran does not have a right. We don’t believe any country has a right.”

Flynt and Hillary Mann Leverett have noted some of the hypocrisy at play here:

In 1968, as America and the Soviet Union, the NPT’s sponsors, prepared to open it for signature, the founding Director of the U.S. Arms Control and Disarmament Agency, William Foster, told the Senate Foreign Relations Committee—the same committee to which Sherman untruthfully testified last month—that the Treaty permitted non-weapons states to pursue the fuel cycle. We quote Foster on this point: “Neither uranium enrichment nor the stockpiling of fissionable material in connection with a peaceful program would violate Article II so long as these activities were safeguarded under Article III.” [Note: In Article II of the NPT, non-weapons states commit not to build or acquire nuclear weapons; in Article III, they agree to accept safeguards on the nuclear activities, “as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency.”]

There are even more recent examples of American duplicity on this matter, however.

In a 2009 interview with the Financial Times, John Kerry himself – then a Massachusetts Senator - stated that the demand – once pushed by the Bush administration and now maintained by Israeli Prime Minister Benjamin Netanyahu and his acolytes in Congress - that Iran have no enrichment capability is “ridiculous” and “unreasonable.”

“They have a right to peaceful nuclear power and to enrichment in that purpose,” Kerry said. To claim otherwise was “bombastic diplomacy.”

The following year, on September 22, 2010, a Bloomberg News report opened this way:

Jordan and other countries have the right to develop and enrich their uranium deposits, U.S. Undersecretary for Nuclear Security Thomas D’Agostino said at a press briefing in Vienna.

“We believe quite strongly that nations have the right to develop their civil programs for civil purposes,” D’Agostino said when asked specifically about Jordan’s nascent nuclear program. “We are not trying to tell other nations that you can’t have enrichment.”

Wait, what?  Read that again.

The point here is clear.  The United States believes it can dictate which rights countries are entitled to on a case by case basis.  In fact, Undersecretary Wendy Sherman said as much at her recent Senate appearance.

“The United States does not take [the] position” that enrichment is an inherent right of all nations, she said. “We take the position that we look at each one of these [cases].”
This is piecemeal international law and the explicit obliteration of the equal application of law for all nations. Essentially, if you are a willing and pliant client of the United States, you have certain rights; if you’re not, you don’t.

This concept was articulated in February 2012 by former Israeli Deputy Defense Minister Ephraim Sneh during a forum at the Wilson Center in Washington D.C., entitled, “Israel, Iran, and the Arabs: A Regional Perspective.”  At the end of a rambling, fact-free diatribe about how Iranian leaders (or, as Sneh put it, “the very smart ayatollahs”) use negotiations simply to “gain time” in order “to progress toward weaponizing uranium,” Sneh declared:

So, there is no sense to back to talks about enrichment. It’s not the case… When there is a secular and democratic Iran, let them have all the technologies in the world, whatever they like. Not this regime. not this regime, which despises the culture and the values of your [Iranian] society, if you don’t know it.

A month earlier, former CIA and NSA chief under George W. Bush, General Michael Hayden similarly confirmed that opposition to a nuclear-capable Iran has nothing to do with proliferation fears or international law, but rather regional hegemony  and regime change.

“It’s not so much that we don’t want Iran to have a nuclear capacity, it’s that we don’t want this Iran to have it,” Hayden told a gathering of analysts, experts and journalists at the Center for the National Interest. “Slow it down long enough and maybe the character [of the Iranian government] changes.”

As long as the United States maintains the absurd position – inconsistent with international law and its own previously held policy – that Iran be denied its fundamental national rights, a diplomatic compromise will be unachievable.

And that’s exactly what spoilers like Netanyahu and his fans in Congress and on K Street are gunning for.

This post originally appeared on Nima Shirazi’s website Wide Asleep in America

About Nima Shirazi

Nima Shirazi is co-editor of the Iran, Iraq and Turkey pages for the online magazine Muftah. His political analysis can be found on his blog, WideAsleepinAmerica.com, where this post first appeared. Follow him on Twitter @WideAsleepNima.
Posted in Iran, Israel/Palestine, US Policy in the Middle East, US Politics

{ 52 comments... read them below or add one }

  1. Israel want to see dead iranians, they want no solution, just like israel’s they want no diplomacy with palestinians.

  2. just says:

    Super article– well written and resourced! Even the uninformed should be able to grasp this.

    Our sheer duplicity and hubris, coupled with our hypocrisy is mind- boggling.

  3. HarryLaw says:

    Excellent article which goes to the heart of the problem, the US does not want to abide by International law, in particular the NPT, Russia and China must now know the US cannot be trusted, and should distance themselves from all this duplicity, the question which should be put to France, UK and Germany is do you agree that Iran has the right to uranium enrichment on Iranian soil yes or no? Then we can see the p5 group breakup and sanctions fall away as other nations see the hypocrisy inherent in the US position.

  4. seafoid says:

    “As long as the United States maintains the absurd position – inconsistent with international law and its own previously held policy – that Iran be denied its fundamental national rights, a diplomatic compromise will be unachievable.”

    I wouldn’t rule out a U turn. Iran has all that oil. America’s plutocrats will do anything for money. Absurdity is the default for the great powers.

  5. RE: Iran does not have a reprocessing facility for separating the plutonium to produce weapons-usable material, having revised its declaration to the IAEA regarding the Arak site in 2004. The revision eliminated plans for a reprocessing facility at the site. Tehran maintains that it does not intend to build a plant to separate plutonium from the irradiated fuel that the reactor will produce.” ~ Daryl G. Kimball and Kelsey Davenport

    AS CONTRASTED WITH THE PLUTONIUM REPROCESSING PLANT THAT FRANCE SECRETLY BUILT FOR ISRAEL!
    SEE: “How Israel Out-Foxed US Presidents”, By Morgan Strong (A Special Report), ConsortiumNews.com, 5/31/10

    [EXCERPT] ● Secret Nukes and JFK
    . . . Even as it backed down in the Sinai [following its invasion in 1956], Israel was involved in another monumental deception, a plan for building its own nuclear arsenal.
    In 1956, Israel had concluded an agreement with France to build a nuclear reactor in the Negev desert. Israel also signed a secret agreement with France to build an adjacent plutonium reprocessing plant.
    Israel began constructing its nuclear plant in 1958. However, French President Charles de Gaulle was worried about nuclear weapons destabilizing the Middle East and insisted that Israel not develop a nuclear bomb from the plutonium processing plant. Prime Minister Ben-Gurion assured de Gaulle that the processing plant was for peaceful purposes only.

    After John F. Kennedy became President, he also wrote to Ben-Gurion explicitly calling on Israel not to join the nuclear-weapons club, drawing another pledge from Ben-Gurion that Israel had no such intention.
    Nevertheless, Kennedy continued to press, forcing the Israelis to let U.S. scientists inspect the nuclear reactor at Dimona. But the Israelis first built a fake control room while bricking up and otherwise disguising parts of the building that housed the plutonium processing plant.
    In return for allowing inspectors into Dimona, Ben-Gurion also demanded that the United States sell Hawk surface-to-air missiles to the Israeli military. Kennedy agreed to the sale as a show of good faith.
    Subsequently, however, the CIA got wind of the Dimona deception and leaked to the press that Israel was secretly building a nuclear bomb.
    After Kennedy’s assassination, President Lyndon Johnson also grew concerned over Israel’s acquiring nuclear weapons. He asked then-Prime Minister Levi Eshkol to sign the Nuclear Non-Proliferation Treaty.
    Eshkol assured Johnson that Israel was studying the matter and would sign the treaty in due course. However, Israel has never signed the treaty and never has admitted that it developed nuclear weapons. [For details, See "Israel and The Bomb" by Avner Cohen.] . . .

    ENTIRE REPORT – link to consortiumnews.com

    • P.S. TAKE ACTION! TAKE ACTION! TAKE ACTION!

      Tell Your Senators: No More Sanctions

      When Iran got down to the real business of talking with the US and other countries on October 15, it was clear that they were interested in more than a ‘charm offensive.’ US diplomats optimistically noted that the tone and substance of talks had changed. There’s promise for a negotiated deal, but that good news could turn bad if the Senate isn’t careful.

      Take action before next week’s talks to help diplomacy win.

      Despite the positive signs coming out of the first round of negotiations, some Senators want to move forward with additional sanctions. The Obama administration has asked Congress to hold off, but there are loud, powerful groups pushing for Congress to play ‘bad cop’ in the game of diplomacy. Sheldon Adelson, a GOP megadonor, went so far as to suggest that the US launch a preemptive nuclear strike on Iran.

      Will Congress stand with President Obama or with extremist hawks?

      The next round of talks is happening at the beginning of November. More punishment from the US before the November talks could empower hardliners in Iran and make it harder for Iran’s president to negotiate. When you undermine diplomatic solutions, you head toward war.

      Tell your Senators not to undermine diplomacy with Iran.

      TO SEND AN EMAIL OPPOSING ADDITIONAL SANCTIONS DURING THE NEGOTIATIONS - link to winwithoutwar.org

  6. “When I use a word,” Humpty Dumpty said, in a rather scornful tone, “it means just what I choose it to mean–neither more nor less .” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master–that’s all.”

  7. Hostage says:

    While the article notes that the “Obama administration is prepared to allow Iran to enrich uranium to the low level of 3.5 percent as part of an interim agreement,” it omits the inconvenient fact that the United States does not have the authority to “allow” or “disallow” anything when it comes to Iran’s nuclear program.

    Iran’s inalienable right to a peaceful, domestic nuclear energy program is affirmed by international law via the Nuclear Non-Proliferation Treaty (NPT).

    That’s not really the case. I just commented on this issue in another thread. There are UN Security Council resolutions, that prohibit any enrichment at all by Iran or its commercial agents, or the lifting of UN sanctions while any enrichment is still on-going. The ICJ has already ruled in the US/UK vs Libya (Lockerbie Extradition) case that Article 103 of the UN Charter is a supremacy clause that allows Security Council resolutions to prevail in the event of conflict with a treaty, like the NPT.

    That means the US cannot unilaterally permit Iran to violate those chapter 7 resolutions, and France can veto any US attempt to repeal them, i.e. France has a legal right, but Iran does not, unless it withdraws from both the UN and NPT.

    • Hostage says:

      P.S. I think this is situation where several member states have violated the Charter by threatening to launch unilateral attacks on Iran. Article X of the NPT allows states whose strategic interests are threatened to withdraw from the NPT and obtain weapons.

      One or more permanent members of the Security Council are blocking a peaceful settlement and the General Assembly should convene a special emergency session to resolve the problem in all of its aspects, including the US and Israeli threats and the failure of Israel to abide by Security Council resolution 487 calling for inspections of Israel’s nuclear program.

      • just says:

        Hostage- thanks for that.

        What are the chances that this will happen?

        • Hostage says:

          What are the chances that this will happen?

          I think they are remote. It’s only happened ten times in nearly 70 years. But the odds get better all the time on this situation, when we are talking about lawless countries bombing and sanctioning another member that is willing to abide by the terms of the NPT and allow inspections.

        • ToivoS says:

          Dear Hostage on things involving international law.

          This a very complex subject and thank you for many informative posts in the past. Your exchange here raised some questions that I thought I understood.

          What is the stature of a UNSC resolution compared to “international law”.

          What is the status of a “treaty”.

          What is “international law”.

          (OK skip the last question, I have already accepted that it is undefinable).

        • Hostage says:

          Your exchange here raised some questions that I thought I understood. What is the stature of a UNSC resolution compared to “international law”.

          There are various sources of public international law. They can roughly be divided into these categories: 1) customary international laws binding on all states; 2) conventional international laws, like treaties, which are only binding on the contracting parties; and 3) treaties or declarations reflecting customary principles that have been universally ratified or which represent a formal codification of customary rules that are binding on all states, including non-signatories.

          All contracting parties to the UN Charter have a conventional treaty obligation to accept the decisions contained in UN Security Council resolutions and to carry them out in accordance with the explicit provisions of Articles 24 and 25 of the Charter:

          Article 24

          1. In order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.

          2. In discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations. The specific powers granted to the Security Council for the discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.

          3. The Security Council shall submit annual and, when necessary, special reports to the General Assembly for its consideration.
          Article 25

          The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.

          In the event of a conflict with another treaty or source of conventional law, the Charter obligation prevails in accordance with Articles 103 and Article 2:

          Article 2
          The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance with the following Principles.

          2. All Members, in order to ensure to all of them the rights and benefits resulting from membership, shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.

          5. All Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action.

          Article 103

          In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

          link to yale.edu

          In several cases, like “Reparations”, “Certain Expenses”, and Namibia, the ICJ has advised that Articles 2 and 18 contain treaty obligations for members to accept and carry out dispositive decisions contained in UN General Assembly resolutions too.

          So in this case, the US and Iran are bound to respect the decisions and provisional measures taken under Chapter 7 because that’s what they have agreed to do. The resolutions require that the UN sanctions stay in place, at least until the IAEA confirms that Iran is no longer engaging in any enrichment and is allowing unrestricted international inspections. That’s true regardless of what the Non-Proliferation Treaty might say on the same subject.

          The ICJ spelled-out the legal status of Security Council resolutions in the cases regarding “Questions of Interpretation and Application of the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie”, (Libyan Arab Jamahiriya v. United States of America) and (Libyan Arab Jamahiriya v. United Kingdom), e.g. link to icj-cij.org

          In the Bosnian Genocide case, Judge Lauterpacht advised that, while Article 103 applies to conflicting conventional laws, the Security Council remains unconditionally bound by the terms of customary norms and customary international law. So a Security Council resolution cannot trump a norm or create a legal loophole that would allow a state to acquire territory by war, engage in genocide, piracy, slavery, traffic in drugs, or commit war crimes or crimes against humanity.

        • Hostage says:

          P.S. There is obviously no legal loophole that permits either the US or Israel to violate the customary or Charter prohibitions against employing unilateral or multilateral threats or force outside the UN system to settle their international disputes with Iran.

          The ICJ has already addressed that situation in the Oil Platforms case (Iran v United States) and the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States).

    • Shingo says:

      That’s interesting Hostage, though one has to ask whether chapter 103 grants the UN the right to restrict the onaloae rights of any member state or whether it violates the UN Charter itself.

      • Hostage says:

        That’s interesting Hostage, though one has to ask whether chapter 103 grants the UN the right to restrict the onaloae rights of any member state or whether it violates the UN Charter itself.

        The ICJ has already ruled in other cases that the UN Security Council can adopt provisional or enforcement measures that abridge rights under other treaties and cited Articles 2, 24, 25, 39-41, and 103 of the Charter.

    • hass says:

      Sorry but this is amateurish legal advice. Article 103 is not even relevant here, since it speaks of conflicting “obligations” whilst Iran’s nuclear rights are “rights” not obligations, as explained by an actual nuclear arms attorney
      link to armscontrollaw.com

      • Hostage says:

        Sorry but this is amateurish legal advice. Article 103 is not even relevant here, since it speaks of conflicting “obligations” whilst Iran’s nuclear rights are “rights” not obligations, as explained by an actual nuclear arms attorney

        FYI, I’m citing expert opinions written by the jurists of the ICJ and the UN Secretariat Legal Experts who prepare the Repertoire of the Practice of the Security Council in accordance with General Assembly in resolution 686 (VII) “Ways and Means For Making Evidence of Customary International Law More Readily Available”.

        Dan Joyner admits that he only thinks Article 103 is inapplicable, based upon his personal analysis and the implications of the possible existence of a fundamental right of states in international law that his analysis merely “suggests”.

        The Charter talks about conflicting obligations under international treaty agreements, which are one of the sources of international law applied by the Courts to settle disputes. See Article 38 of the ICJ Statute. link to icj-cij.org

        Joyner admits that the scope of the right in question continues to be debated by state parties who claim it is contingent and that he personally thinks it is derived from the lack of any prohibition in international law. But that can only apply to peaceful applications of the indigenous fuel cycle. That goes right out the window the minute there is any evidence of concealment or diversion for military use. Joyner turns right around and says:

        “subject only to the positive requirements of Articles II and III of the NPT – i.e. no manufacture of nuclear explosive devices, and the conclusion of a safeguards agreement with the IAEA.

        So this inalienable or fundamental right is already “subject to” a separate international agreement with a non-state, international actor, the IAEA. He argues unpersuasively IMO that these safeguard agreements merely need to be concluded. But in fact the inalienable right is not an unqualified one, because it is strictly limited to peaceful purposes and is subject to any number of legal prohibitions and presumptions regarding diversion or suspected diversion of fissionable materials for military purposes in those separate agreements with the IAEA – and they have to be implemented and observed not merely concluded. The terms of the agreement with Iran include provisions for binding international arbitration in the event of a dispute. In addition those terms technically lie outside the scope of that NPT “nothing in this treaty” clause that Joyner is analyzing.

        The real crux of the matter is that only states and UN organs have the necessary legal standing to dispute the scope of the treaties that they contract to accept or conclude and Joyner is really using a lot of qualified language and weasel words like “peaceful” and “suggests”:

        But let me say this here. Article IV(1) of the NPT states that “Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.” In my view, the recognition by over 190 states parties to the NPT that all states have such an inalienable right, which I interpret to include all elements of the full nuclear fuel cycle including uranium enrichment, strongly suggests that the right to peaceful nuclear energy research, production and use is one of the fundamental rights of states in international law.

        According to Article 36(2)(a) of the ICJ Statute the Court has the jurisdiction in all legal disputes like this concerning:
        a. the interpretation of a treaty;
        b. any question of international law;
        c. the existence of any fact which, if established, would constitute a breach of an international obligation;

        link to icj-cij.org

        • Hostage says:

          P.S. I’ve already indicated that if Iran really thought that the NPT created an inalienable, fundamental, and unqualified right that the Security Council, IAEA, and other state parties are under an international obligation to respect, and that there is no evidence that constitutes a breach of its own international obligations under the safeguard agreements, and UN Charter, it would have beaten a path to the ICJ years ago.

        • Shingo says:

          P.S. I’ve already indicated that if Iran really thought that the NPT created an inalienable, fundamental, and unqualified right that the Security Council, IAEA, and other state parties are under an international obligation to respect, and that there is no evidence that constitutes a breach of its own international obligations under the safeguard agreements, and UN Charter, it would have beaten a path to the ICJ years ago.

          Why bother? A fat lot of good the ICJ Wall Ruling has done for the Palestinians at the UNSC.

          And seeing the actual UN sanctions are benign compare to the unilateral US sanctions, utterly futile.

        • Hostage says:

          Why bother? A fat lot of good the ICJ Wall Ruling has done for the Palestinians at the UNSC.

          The Court has jurisdiction to interpret treaties and state when the facts represent violations of an international obligation arising from one or from customary international law. In that sense the ICJ Advisory Opinion has done a lot of good by saying what the applicable law is and is not.

        • talknic says:

          Shingo “A fat lot of good the ICJ Wall Ruling has done for the Palestinians at the UNSC”

          It was A) an opinion showing that B) should the court be asked for a ruling, it would fall clearly against Israel.

        • Shingo says:

          In that sense the ICJ Advisory Opinion has done a lot of good by saying what the applicable law is and is not.

          It’s still entirely meaningless when the US is able to veto resolutions based on the ICJ’s findings.

        • Hostage says:

          It’s still entirely meaningless when the US is able to veto resolutions based on the ICJ’s findings.

          In fact the ICJ findings of fact have been cited in Israeli Supreme Court decisions, incorporated by reference in reports turned over to the ICC Prosecutor by the Secretary of the League of Arabs States, HRW, AI, and in criminal charges filed in the Courts of UN member states. So the notion that the US can veto the applicable law is a mistaken view.

          It’s likewise a mistaken view to simply assume that the NPT governs peaceful applications of nuclear technology, rather than the IAEA Statute.
          link to iaea.org

          It required the IAEA to establish an agreement with the UN governing relationship between the organizations, requires the Board of Governors to report situations to the Security Council as the primary UN organ responsible for maintaining international peace and security, and contains some provisions on inspections of member state research facilities and dispute resolution through the ICJ.

          You keep ignoring IAEA reports that mention the inability of the Agency to verify that unreported materials and activities haven’t been used to divert materials to prohibited or unknown purposes. You claiming there is no evidence of any violations of the NPT. Here is a link which explains that violation of the record keeping requirements contained in the safeguard agreement constitutes a violation of the NPT. Thomas B. Cochran
          Adequacy of IAEAs Safeguards for Achieving Timely Detection-PAPER (PDF) link to npolicy.org

          It also explains that in cases where there is no additional protocol agreement in place, it is simply assumed that once a significant amount of material goes missing: (a) that all facilities needed to clandestinely convert the diverted material into components of a nuclear explosive device exist in a State; (b) that processes have been tested (e.g by manufacturing dummy components using appropriate surrogate materials); and (c) that nonnuclear components of the device have been manufactured, assembled and tested. Under these circumstances, detection time should correspond approximately to estimated conversion times (see [IAEA Safeguards Glossary] No. 3.13). Longer detection times may be acceptable in a State where the IAEA has drawn and maintained a conclusion of the absence of undeclared nuclear material and activities. Detection time is one factor used to establish the timeliness component of the IAEA inspection goal (see [IAEA Safeguards Glossary] No. 3.24).9 [Emphasis added]

          IAEA timeliness detection goal — the target detection times applicable to
          specific nuclear material categories (see [IAEA Safeguards Glossary] No. 4.24). These goals are used for establishing the frequency of inspections (see No. 11.16) and safeguards activities at a facility or a location outside facilities during a calendar year, in order to verify that no abrupt diversion (see [IAEA Safeguards Glossary] No. 3.10) has occurred. Where there is no additional protocol in force or where the IAEA has not drawn and maintained a conclusion of the absence of undeclared nuclear material and activities in a State (see No. [IAEA Safeguards Glossary] 12.25), the detection goals are as follows:
          —One month for unirradiated direct use material,
          —Three months for irradiated direct use material,
          —One year for indirect use material.

          In the case of Iran there was undeclared nuclear material and activities and the IAEA had been unable to verify its disposition for more than three years according to the reports cited by the Security Council in the chapter 7 resolutions. The report also highlights that the fact that if a state has a safeguarded reprocessing facility it could still very easily divert significant amounts of material to one or more clandestine plants like the underground facilities we’ve been discussing here.

        • Shingo says:

          Here is a link which explains that violation of the record keeping requirements contained in the safeguard agreement constitutes a violation of the NPT

          His point seems to be that the IAEA’s detection efforts are insufficient to to
          provide a “timely warning.”

          In the case of Iran there was undeclared nuclear material and activities and the IAEA had been unable to verify its disposition for more than three years according to the reports cited by the Security Council in the chapter 7 resolutions.

          And according to El Baradei himself, he would have been able to account for that material had he been given more time.

          The report also highlights that the fact that if a state has a safeguarded reprocessing facility it could still very easily divert significant amounts of material to one or more clandestine plants like the underground facilities we’ve been discussing here.

          Not according to James Clapper, Director of National Intelligence. Furthermore, the underground facility was not clandestine. I find it amusing when even today, people still refer to Fordo as a secret facility, in spite of everyone knowing about it.

          But it is a fascinating article. Your resourcefulness astounds me Hostage.

        • Hostage says:

          But it is a fascinating article. Your resourcefulness astounds me Hostage.

          It isn’t me, I just read and discuss these things with a lot of other people. You can’t do justice to some of these subject when trying to summarize hundreds of pages of elaborate detail to a sentence like “the ICJ said:”, because it’s a miracle when they all agree on the details of anything. Lockerbie lasted for years after the opinions on preliminary judgments were handed down and the parties finally settled their differences among themselves and went away.

          East Timor was another case that went nowhere. But the finding on self-determination gets cited in other cases like the Wall case. So snippets of opinions get picked-up and cited like that.

        • Shingo says:

          It isn’t me, I just read and discuss these things with a lot of other people.

          Either way, your input is without peer Hostage and I am forever grateful for the information you provide and your arguments. I archive pretty much every comment you contribute here because it is an incredible resource and I shamelessly admit that I paraphrase them in debates in other fora.

  8. HarryLaw says:

    The UN sanctions under those chapter 7 resolutions in UNSC Resolutions 1737 and 1747,following UNSC Res 1696, are not the sanctions which are causing the Iranians all that much of a problem since they only target individuals and companies doing business in the nuclear field, the Russians and Chinese saw to that, the illegal unilateral ones imposed by the US followed by the EU in the field of banking and other commodities are the main problem, many can be done away with at the stroke of Obama’s pen. The issue of enforcing the no enrichment resolution is dubious since Russia and China would never agree to it.

    • Hostage says:

      The UN sanctions under those chapter 7 resolutions in UNSC Resolutions 1737 and 1747,following UNSC Res 1696, are not the sanctions which are causing the Iranians all that much of a problem since they only target individuals and companies doing business in the nuclear field,

      No, the scope of Security Council resolution 1696 (2006) contained no limitations and applied to any enrichment activities of the government of Iran. It said the Security council was acting in accordance with Article 40 of the Charter (Chapter 7) and:

      2. Demands, in this context, that Iran shall suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA;

      link to un.org

      Articles 40 and 41 of the Charter almost grant the Security Council a blank check in the area of imposing “provisional measures”:

      Article 40

      In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
      Article 41

      The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

      • HarryLaw says:

        Hostage @ “Articles 40 and 41 of the Charter almost grant the Security Council a blank check in the area of imposing “provisional measures”: The point is the blank check is for the Security Council to determine, not unilateral decisions made by individual countries , of course there is nothing to stop other countries imposing measures of their own but they must be within International law which many European and US measures are clearly not see link to telegraph.co.uk

        • Hostage says:

          The point is the blank check is for the Security Council to determine, not unilateral decisions made by individual countries

          I agree entirely and have commented in the past that some of the sanctions proposed by our Congress here in the USA are completely outlandish and are usually considered to be acts of war under customary law.

        • ToivoS says:

          Hostage and Harry.

          So if UNSC resolutions have precedence over treaties then the US position that Iran is illegally enriching U235 is correct. Forget about enforcement, but that the Iranians are in fact in violation of international law. Those who argue that Iran has rights under the NPT are wrong because those rights have been trumped by the UNSC.

          Do I have this correct?

        • Hostage says:

          Do I have this correct?

          Essentially, except that the parties themselves don’t get to decide for themselves as a preliminary matter that the two obligations in question actually do contract each other. That’s a question of interpretation for the Court to decide after hearing the arguments and weighing their merits.

          The treaties and the resulting obligations to accept and carry out UN decisions are supposed to be interpreted in good faith and the Security Council has not rescinded the right to safeguarded enrichment. It has simply called for a provisional halt long enough for the IAEA to ensure that materials are not being diverted before all provisional sanctions are lifted,

      • hass says:

        Article 103 is not even apt or relevant, as explained by Prof Dan Joyner at ArmsControlLaw- dot- com

        • ToivoS says:

          Hass has pointed out a real difference of interpretation of Ariticle 103. Dan Joyner is arguing the opposite and he is the basis for the Lerverett’s arguments that the NPT protects Iran’s “right” to enrich U235.

          BTW in the above link, Hostage’s words are quoted and Dan is invited consider them (not yet done at this time).

        • ToivoS says:

          Speaking of the devil. The Leveretts link to goingtotehran.com have just re-posted Dan Joyner’s latest article with a strong endorsement.

          Let have a real debate, this is interesting.

        • Hostage says:

          BTW in the above link, Hostage’s words are quoted and Dan is invited consider them (not yet done at this time).

          I’ve provided a written response to his analysis: link to mondoweiss.net

        • Hostage says:

          Hass has pointed out a real difference of interpretation of Ariticle 103. Dan Joyner is arguing the opposite and he is the basis for the Lerverett’s arguments that the NPT protects Iran’s “right” to enrich U235.

          You didn’t really quote what I said about the “Reparations”, “Certain Expenses”, and “Namibia” cases regarding the international obligation of all member states under the conventional international law contained in Articles 2, 24, 25, and 103 to accept and carry out decisions made on their behalf by the Security Council or Iran’s international obligations under the verification system contained in the safeguard agreement INFCIRC/214 link to iaea.org

          The fact is that Iran can voluntarily enter into other treaty agreements that waive some or all of its rights under the NPT, because it remains legally obliged by the terms of its own acceptance of those other agreements.

          Here is a Wikipedia summary of some information on that subject published by the UN Legal experts as evidence of customary law and some links to the original UN sources documents:

          * Article 25 of the Charter says that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. The Repertory of Practice of United Nations Organs, a UN legal publication, says that during the United Nations Conference on International Organization which met in San Francisco in 1945, attempts to limit obligations of Members under Article 25 of the Charter to those decisions taken by the Council in the exercise of its specific powers under Chapters VI, VII and VIII of the Charter failed. It was stated at the time that those obligations also flowed from the authority conferred on the Council under Article 24(1) to act on the behalf of the members while exercising its responsibility for the maintenance of international peace and security. See page 5, The Repertory of Practice of United Nations Organs, Extracts Relating to Article 25 link to legal.un.org

          * Article 24, interpreted in this sense, becomes a source of authority which can be drawn upon to meet situations which are not covered by the more detailed provisions in the succeeding articles. see The Repertory of Practice of United Nations Organs, Extracts Relating to Article 24, link to legal.un.org

          * The Repertory on Article 24 says: “The question whether Article 24 confers general powers on the Security Council ceased to be a subject of discussion following the advisory opinion of the International Court of Justice rendered on 21 June 1971 in connection with the question of Namibia (ICJ Reports, 1971, page 16)”. See Note 2 on page 1 of Sup. 6, vol. 3, Article 24 link to legal.un.org

        • Hostage says:

          Let have a real debate, this is interesting.

          Surely, except that I’ve posted an analysis from the UN Legal Department which explained that some of these issues related to the international obligations of all the members of the UN to accept decisions adopted on their behalf by the Security Council in its role of maintaining international peace and security had ceased to be the subject of discussion after the Namibia case in the 1970s. That means Iran has agreed to stop enrichment, on a provisional basis, if the Security Council demands that it do so.

          Here’s Security Council resolution 1887 (2009). It discusses a number of disarmament treaties. It prohibits members from using unilateral threats or force to settle disputes over weapons of mass destruction, and says that enjoyment of the benefits of the NPT by a State Party can be assured only by compliance with the obligations thereunder (including the Article III safeguard agreements). It affirms that effective IAEA safeguards are essential to prevent nuclear proliferation and to facilitate cooperation in the field of peaceful uses of nuclear energy, and in that regard called upon all non-nuclear-weapon States party to the NPT that have yet to bring into force a comprehensive safeguards agreement or a modified small quantities protocol to do so immediately. It stipulated that this resolution was adopted for the maintenance of international peace and security, so Articles 24 and 25 apply in this instance. — link to un.org

          And here’s a link to Chapter 10 of Henry D. Sokolski (editor), “Reviewing the Nuclear Nonproliferation Treaty (NPT)”:
          Robert Zarate, “The Three Qualifications of Article IV’s “Inalienable Right”link to books.google.com

          The bottom line is that there isn’t much of a debate about the right to the benefits of the undefined peaceful nuclear technologies, but the NPT doesn’t define them and it incorporates some qualifications on the exercise of that right. The NPT isn’t going to offer the last word when it comes to settling disputes regarding interpretation and scope of application by reading between the lines. That’s the job of the responsible UN organs, including the ICJ.

        • Shingo says:

          The NPT isn’t going to offer the last word when it comes to settling disputes regarding interpretation and scope of application by reading between the lines.

          There is no need to read between the lines to follow the logic. If the NPT grants signatories the inalienable right to peaceful nuclear energy, and none of the other members states agree to supply it – be it reactors or fuel – then that member state (which still has an inalienable right to peaceful nuclear energy) has a right to build it’s own reactors and produce it’s own fuel.

          We don’t need the ICJ to explain that to us.

        • Hostage says:

          There is no need to read between the lines to follow the logic.

          LOL! Some people here are citing sources who don’t even admit the operation or existence of the most basic principles of civil law and of international law, that agreements must be kept (pacta sunt servanda) or that the exercise of a legal right is frequently conditioned on the performance of fundamental legal duties that aren’t spelled out in the text of every treaty (customary legal obligations).

          So you end up wading through pages of legal explanations and arguments that are never going to see the light of day in an ICJ oral or written submission, like the proposition that the NPT doesn’t make the connection, so the parties to the convention or the Security Council are making a controversial assertion when they say that states only have the right of access to peaceful nuclear technology when in full compliance with their safeguard obligations under Article III. But allowing a state to continue to operate enrichment facilities when it can’t provide verifiable records on the disposition of fissionable materials it has produced violates both the stated object and purpose of the NPT to deter or prevent unreported diversions or unreported activities. See for example, the discussion under the heading “Peaceful Use and Compliance” near the bottom of the page. link to books.google.com

    • Hostage says:

      The issue of enforcing the no enrichment resolution is dubious since Russia and China would never agree to it.

      The problem isn’t enforcing the prohibition. It’s that the P-5 + 1 can’t just agree among themselves to lift the existing UN sanctions. They have to get the necessary nine votes in the Security Council, while avoiding a possible French veto that would derail the proposed deal.

  9. talknic says:

    Not able to find any evidence Iran is pursuing Nuclear Weapons, the UNSC demands a teapot

  10. Ludwig says:

    Does anyone really believe that are using nuclear isotopes for medical research? Fools.

  11. talknic says:

    As I understand it, countries wanting Nukies can refuse to join the NPT. Like India, Israel, Pakistan, who’re still members of the IAEA, still receiving the benefits of membership and;
    have Nukies.

    OR

    Having ratified the NPT, they can legally leave the NPT, still be a member of the IAEA, still receive the benefits of membership and;
    develop Nukies.

    • Hostage says:

      Having ratified the NPT, they can legally leave the NPT, still be a member of the IAEA, still receive the benefits of membership and;
      develop Nukies.

      SC Resolution 1887 attempts to make that more difficult IIRC, but yes that has been the case.