Iran Changing Course on Nukes? Establishing a Legal Framework for Nuclear Negotiations with Iran’s New Leadership

Photo Courtesy: Pete Souza[i]

By: Ben Haight

“We no longer live in a world where only the actual firing of weapons represents a sufficient challenge to a nation’s security to constitute maximum peril. Nuclear weapons are so destructive and ballistic missiles are so swift, that any substantially increased possibility of their use or any sudden change in their deployment may well be regarded as a definite threat to peace.”

-President John F. Kennedy, October 22, 1962[ii]

On September 27, President Obama and Iranian President Hassan Rouhani spoke by telephone for approximately thirty minutes. This was the first conversation between American and Iranian presidents in over thirty years. President Obama said the conversation was very positive and “While there will surely be important obstacles to moving forward and success is by no means guaranteed, I believe we can reach a comprehensive solution.”[iii] Rouhani has called the United States a “great” nation, which is a drastically different outlook than his predecessor Mahmoud Ahmadinejad.

Israeli Prime Minister Benjamin Netanyahu has concerns over the new discussions between Rouhani and Obama.[iv] In a recent speech to the UN General Assembly, Netanyahu stated, “Ahmadinejad was a wolf in wolf’s clothing. Rouhani is a wolf in sheep’s clothing.”[v] The Israeli Prime Minister has been supportive, however, of President Obama’s commitment to dismantling Iran’s nuclear program. Both leaders, Obama and Netanyahu, want concrete evidence that Iran is disassembling its nuclear program and making efforts to conform to international law. President Obama has called for a diplomatic resolution, but has refused to take a military option off the table.[vi]

But is a military strike the best option? Could a military strike be legally justified? Would a military strike be successful? Are we required by law to wait until we are attacked first? These are questions that the Obama Administration has undoubtedly pondered for the last several months. Article 51 of the UN Charter allows a military strike in self-defense “if an armed attack occurs.” Additionally, because Iran has not granted the IAEA full access to its reactors and centrifuges, the full extent of its nuclear program is unclear. It has been reported that Iran produces approximately 4.5kg of medium enriched uranium (MEU) every month at the Natanz plant and 10kg of MEU at the Fordow plant.[vii]

While Iran argues that it is producing MEU for peaceful purposes consistent with the Non-Proliferation Treaty (NPT), the IAEA and the UN Security Council think otherwise. The IAEA Board of Governors has issued several reports of Iranian noncompliance with their NPT safeguards agreement,[viii] while the UN Security Council has issued seven resolutions calling for Iranian compliance.[ix]

Although it seems as though Rouhani is taking Iran and its nuclear program down a different path, it is important for Obama to remain aggressive in his negotiations.[x] It is crucial for America to stay committed to international law and favor diplomacy. Practical realities and the consequences of inaction, however, leave a military option on the table.[xi] An agreed upon framework outlining military strike factors will help build a stronger foundation for successful and fruitful negotiations.

Politicians and legal scholars have worked to develop a framework justifying a preemptive military attack. In the mid-nineteenth century, British Minister to the United States Lord Ashburton and Secretary of State Daniel Webster were the first in this endeavor. They agreed that the attacking nation must “…show a necessity of self-defense, instant, overwhelming, leaving no choice of means, and no moment for deliberation.”[xii] Legal scholar Matthew Waxman stresses the exhaustion of peaceful alternatives, the unacceptable risk of losing the opportunity to eradicate the threat, the magnitude of the threat, and the consistency with the purposes of the UN Charter.[xiii]

It makes little sense to require a nation to absorb a nuclear strike before defending themselves with military options. The loss of life and complete destruction caused by modern-day weapons could be so devastating that it precludes any possibility of response. It is crucial, however, that the impending attack is imminent. The U.S.’s national security intelligence must be flawless. In the world of nuclear weapons, there is no room for error. It must be determined by high-ranking officials that an attack is imminent and in the process. Furthermore, as argued earlier, diplomatic alternatives must take precedence over a strike. Every diplomatic relationship is fact sensitive, but it must be proved that negotiations failed. Lastly, any military strike must be proportional as to accomplish only the intended goals.

These factors are merely suggestions for Obama and Rouhani to discuss at future meetings and among their staffs. Whether they use similar factors or not, it is imperative that the two nations reach a consensus. Negotiating within an agreed-upon structured legal framework will lead to quicker and more satisfactory solutions. The September 27 phone conversation was a good start.

Further Reading: James W. Houck, Caroline Revisited: An Imagined Exchange Between John Kerry and Mohammad Javad Zarif, PENN ST. J.L. & INT’L AFF. (forthcoming Fall, 2013)

 

Ben Haight is a third-year law student at The Pennsylvania State University. Ben is a Senior Editor on the Penn State Journal of Law and International Affairs and is an Ensign in the Judge Advocate General’s Corps, U.S. Navy.


[i] http://www.flickr.com/photos/35591378@N03/3608066101/.

[ii] Radio and Television Address to the American People on the Soviet Arms Build-up in Cuba, Washington D.C., Oct. 22, 1962, The John F. Kennedy Presidential Library and Museum.

[iii] Obama Speaks to Rouhani, Says Iran Nuclear Deal Possible, CBS News (Sep. 27, 2013), available at http://www.cbsnews.com/8301-250_162-57605065/obama-speaks-to-rouhani-says-iran-nuclear-deal-possible/.

[iv] Rebecca Kaplan, Obama and Netanyahu Agree: Iranian Nuclear Program is a Top Priority, CBS News (Sep. 30, 2013), available at http://www.cbsnews.com/8301-250_162-57605290/obama-and-netanyahu-agree-iranian-nuclear-program-is-a-top-priority/.

[v] Israel PM Calls Iran Leader ‘Wolf in Sheep’s Clothing,’ BBC News (Oct. 2, 2013), available at http://www.bbc.co.uk/news/world-middle-east-24354160.

[vi] See Kaplan, Obama and Netanyahu Agree: Iranian Nuclear Program is a Top Priority.

[vii] The Institute for Science and International Security, Nuclear Iran, available at http://isisnucleariran.org/.

[viii] See, generally, Int’l Atomic Energy Agency, Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran, Report by the Director General, IAEA Doc. GOV/2012/55 (Nov. 16, 2012).

[ix] See SC Res. 1696 (Jul. 31, 2006), SC Res. 1737 (Dec. 23, 2006), See SC Res. 1747 (Mar. 24, 2007), SC Res. 1803 (Mar. 3, 2008), SC Res. 1835 (Sep. 27, 2008), SC Res. 1929 (Jun. 9, 2010), SC Res. 1984 (Jun. 8, 2011).

[x] See Somini Segupta, Rouhani, Blunt and Charming, Pitches a Moderate Iran, N.Y. TIMES (Sep. 26, 2013), available at http://www.nytimes.com/2013/09/27/world/middleeast/irans-president-calls-on-israel-to-join-nuclear-treaty.html?ref=nuclearprogram&_r=0.

[xi] See Daniel Bethlehem, Self-Defense Against an Imminent or Actual Armed Attack by Nonstate Actors, 106 AM. J. INT’L L 769,773 (2012).

[xii] See Letter from Secretary of State Daniel Webster to British Minister to the United States, Lord Alexander Baring Ashburton, (Jul. 27, 1842), available at http://www.avalon.law.yale.edu/19th_century/br-1842d.asp.

[xiii] Matthew C. Waxman, The Use of Force Against States That Might Have Weapons of Mass Destruction, 31 MICH. J. INT”L. L. 1, 27 (2009).

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