IRAN’S NUCLEAR PROGRAM AND INTERNATIONAL LAW IRAN’S NUCLEAR PROGRAM AND INTERNATIONAL LAW From Confrontation to Accord Daniel H. Joyner 1 1 Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trademark of Oxford University Press in the UK and certain other countries. Published in the United States of America by Oxford University Press 198 Madison Avenue, New York, NY 10016, United States of America. © Oxford University Press 2016 First Edition published in 2016 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above. You must not circulate this work in any other form and you must impose this same condition on any acquirer. Library of Congress Cataloging-in-Publication Data Names: Joyner, Daniel, author. Title: Iran’s nuclear program and international law : from confrontation to accord / Daniel H. Joyner. Description: First edition. | New York : Oxford University Press, 2016. | Includes bibliographical references and index. Identifiers: LCCN 2016011939| ISBN 9780199377893 ((hardback) : alk. paper) | ISBN 9780190635718 ((pbk.) : alk. paper) Subjects: LCSH: Nuclear nonproliferation—Iran. Classification: LCC KZ5770 .J698 2016 | DDC 341.7/340955—dc23 LC record available at http://lccn.loc.gov/2016011939 1 3 5 7 9 8 6 4 2 Paperback printed by WebCom, Inc., Canada Hardback printed by Bridgeport National Bindery, Inc., United States of America Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com. To Aharon Barak. A hero of the law. CONTENTS Preface ix Acknowledgments xi Introduction xiii PART ONE CONFRONTATION 1. Iran’s Nuclear Program and the Period of Confrontation from 2002 to 2015 3 2. Summary of Arguments 65 3. Has Iran Violated the NPT? 73 4. Was Iran in Violation of Its Safeguards Obligations in 2003? What about Its Failures to Timely Declare Nuclear Facilities? 95 5. Was Iran in Violation of Its Safeguards Obligations in July 2015? And Did the IAEA Use Proper Standards in Its Assessments of Iran’s Compliance? 141 CONTENTS 6. What Were the Implications of the Actions of the U.N. Security Council? 189 PART TWO ACCORD 7. The Joint Comprehensive Plan of Action and Developments since July 2015 221 Index 247 viii PREFACE I began writing this book two years before the announcement of the Joint Comprehensive Plan of Action (JCPOA) among the P5+1 states (the United States, the United Kingdom, France, Germany, Russia, China), the European Union, and Iran in July 2015. My intention in writing this book was to examine the international legal questions that have been raised regarding Iran’s nuclear program since 2002, when it was discovered that Iran was secretly constructing two nu- clear facilities at Natanz and Arak. I of course knew from the begin- ning of the project that the diplomacy surrounding the international dispute over Iran’s nuclear program was a moving target, and so I very deliberately organized and framed the book as a historical case study, applying the sources of international law to questions con- cerning both Iran’s, and the International Atomic Energy Agency’s (IAEA’s), compliance with the relevant legal sources over the period from 2002 through to the summer of 2015, when I planned to com- plete the manuscript. Again, my plan was to clarify for students, scholars, and practitioners alike, how the relevant sources of law, including primarily the 1968 Nuclear Nonproliferation Treaty and IAEA treaty law, should be properly applied to this historical case study, in hopes that this examination would inform both the ongoing ix PREFACE diplomacy surrounding the Iran nuclear dispute itself, as well as simi- lar future cases. The JCPOA’s agreement in July 2015 was a watershed moment in the diplomatic history of the dispute between the West and Iran over the latter’s nuclear program, and it is a development to be welcomed. It did, however, necessitate some fairly substantial late reworking of the text of this book in order to properly include within it a consid- eration of the JCPOA and its legal and political implications, and to place this diplomatic accord in its context within the legal and diplo- matic history of the Iran nuclear dispute. The advantages of being able to include a consideration of the JCPOA in this volume are clear. All of the diplomatic history and the legal analysis that I had already planned to provide herein concerning developments from 2002 to 2015, can now both serve its originally intended purposes as well as provide the indispensable context for understanding the JCPOA, its meaning and implications. I am grateful to the editors at Oxford University Press, and espe- cially to John Louth— with whom I’ve now worked closely on three books— for their cooperation and guidance in the making of these changes to the manuscript. DJ Tuscaloosa, Alabama January 2016 x ACKNOWLEDGMENTS I would like to gratefully acknowledge the significant research as- sistance which a number of people have provided in the process of the production of this book. These persons include Tyler Cullis, Onur Guven, Jay Saxon, Erkan Ardogan, and Sirous Amerian. I wish to par- ticularly acknowledge and thank Alyse Gillman, who was my research assistant for two years and whose contribution to the research and writing of this book was substantial. A number of colleagues have also provided invaluable comments and suggestions as the research for this book has progressed. I fear to accidentally exclude someone and so will not attempt to provide a comprehensive listing. They know who they are. If I did provide a list, it would include many of the colleagues who participated in the various workshops and panels at which I have presented early versions of the analyses herein. I would be remiss, however, if I did not particularly thank Marco Roscini, David Koplow, and Peter Jenkins, each of whom reviewed the manu- script in its entirety and provided extremely valuable and much ap- preciated comments and suggestions for revision. Finally, I would like to thank the contributors and readers of my blog Arms Control Law, where much of the analysis herein has been honed through the gauntlet of, mostly collegial, critique and exchange. xi INTRODUCTION In this book, I want to provide an international legal analysis of the most important legal questions that have been raised since 2002 regarding Iran’s nuclear program, and to set those legal questions in their historical and diplomatic context. My purpose is to clarify how the relevant sources of international law—including primarily the 1968 Nuclear Nonproliferation Treaty and International Atomic Energy Agency (IAEA) treaty law— should be properly applied in the context of the Iran case. My hope is thereby to provide an instruc- tional case study of the application of these sources of international law, the lessons from which can be applied to inform both the ongo- ing legal and diplomatic dynamics surrounding the Iran nuclear dis- pute itself, as well as similar future cases. I have been writing articles and blog posts about Iran’s nuclear program and related international legal questions for over ten years. At a conference several years ago, a friend said to me, “You’ve already written so much on this topic, you’ve basically got half a book written already. Why not just finish the book?” That made a lot of sense to me. As a bit of an aside, the development of my ideas on this subject I think interestingly demonstrates how changes in technology have affected the scholarly endeavor. We can now develop ideas through blog posts and other shorter online pieces, inclusive of engagement xiii INTRODUCTION with peers through comments in those fora, and through that pro- cess mature and ferment our thinking for a while, before we sit down to write a formal article or book on the subject. In years past, one could try out one’s ideas at conferences and in private discussion with peers, but opportunities to engage with essentially the entire epistemic community were simply not readily available. The Internet and the blogging revolution now give us this opportunity. For me, the process of blogging and writing shorter online pieces for the past several years has been invaluable in developing, testing out, and re- forming my thoughts on the subject of this book. In the course of that development, I have had a range of responses to my analysis and arguments concerning Iran’s nuclear program.