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Volume 3

February 2008

Number 2

Abroad Thoughts from Home

with Ian Townsend-Gault
Director of the Centre for Asian Legal Studies
Faculty of Law, UBC
Vancouver, Canada

Fixture Postponed: The Iran Stand-down

This article was begun in late November 2007, when it appeared that Iran and a number of Western countries were destined for conflict. An increasingly acrimonious confrontation had arisen over its right to develop nuclear technology and, it was feared, nuclear weapons. The inevitability of armed conflict was predicted by some - very much the same sort of people who applauded the intervention in Iraq. And President George W. Bush, leading the charge yet again, was able to welcome a new ally for this cause to replace the departed Tony Blair - Nicholas Sarkosy, the newly-elected President of France, anxious to mend trans-Atlantic broken fences.

Then, in a stunning development in early December, the US intelligence services pulled the rug out from under the pro-war party by declaring Iran had halted its nuclear weapons programme as long ago as 2003, and consequently did not pose a threat - for the present, at any rate. Bloodied but unbowed, President Bush promptly declared that he persisted in his belief that the country remained dangerous. His Vice-President rallied round loyally, voicing similar views. It was not, however, their finest hour exactly (and the President of France might also be re-considering his strategy for Franco-American rapprochement). With the apparent stand-down, much of the relevance of what I wanted to say disappeared.

In a previous article, I discussed the issue of trust vis-à-vis those who urge their views of international developments on us. Much can surely be made of the "Leadership of the Free World" retreating with egg on its collective face yet again, though thankfully before people had to die. But the theme I wanted to pursue back in November is surely still pertinent: can the stronger members of the international community play favourites as regards states that can and states that cannot join the nuclear weapons club? India no, then yes? Pakistan no, but since we need this ally on the war on terror, yes again? Israel, always yes? But always no when it comes to the absurdly termed "axis of evil"? As always, this writer's interest is in how these debates and determinations impact on the relevant rules of international law.

can the stronger members of the international community play favourites as regards states that can and states that cannot join the nuclear weapons club? India no, then yes? Pakistan no, but since we need this ally on the war on terror, yes again? Israel, always yes?

Much of the debate is coloured - for many - by the almost palatable unpleasantness of the current Iranian government led by President Mahmoud Ahmadinejad, a former revolutionary guard and ardent Islamist. The President is notorious for his views on the Holocaust (it didn't happen), the existence of the State of Israel (it shouldn't exist), and for domestic policies of increasing severity and conformity with a narrow vision of Islam. To some extent, all this is irrelevant: we do not come to conclusions about matters of international law based on whether or not we like the government of a state in question. In another way, of course, it is relevant: legalities aside, no one in possession of their faculties would wish to see dangerous weapons in the hands of unstable rulers who might be tempted to use them. This was one of the reasons advanced by the US-led coalition to topple the regime of Saddam Hussein, but we now know that the reports of the UN's weapons inspectors led by Dr. Hans Blix were correct - Iraq did not possess weapons of mass destruction. But the factual situation regarding Iran and nuclear capability is much clearer and more certain. If the country follows its current course, it will be able to develop sufficient nuclear technology and equip itself with nuclear weapons. The question is, does it have the right to do this?

As with many complicated issues, it is important to separate the legal and non-legal (i.e. ethical) issues. This is not to discard one or the other, but to separate them in order to come to grips with them more clearly than might otherwise be possible. The non-legal arguments take many forms, of which that regarding non-proliferation is probably the strongest. Put simply, it is not in the interest of the planet and those living on it that states acquire further nuclear weapons capacity. Indeed, the better course would be to try and reverse history and persuade those countries in possession of such weapons to destroy or disable them: no more Hiroshimas.

But one does not have to examine the record very closely to discern that double standards, if not outright hypocrisy, are at work. India and Pakistan conducted nuclear tests in 1998, and the response of the international community appeared to be one of outrage. Aid programmes were put on hold, diplomatic measures were taken. But all of that seems to be behind us, as witness President Bush's promise to try and persuade congress to change US law to allow the export of nuclear technology to India (forbidden by the Treaty on Non-Proliferation). As for Pakistan, NATO desperately needs the support of the government of that country in its struggle to extirpate the Taliban in Afghanistan. In other words, both countries seem to have got away with it.

And then there is Israel. Although its government has said nothing officially, there is very strong evidence that the country has nuclear weapons capacity: indeed, it will be somewhat surprising if it did not, given the constant threats that have been made to its existence since it was founded in 1947. Few countries have been attacked militarily so often and in such a short space of time. If Israel has nuclear weapons, it is inconceivable that its major supporters (and detractors) do not know this, but again, nothing is said. Israel is perceived by the West as an ally, and as has been said, there is no hard evidence. It will be recalled that Israel dealt very harshly with one of its scientists, Mordecai Vannanu, who released information on the country's nuclear policies. Vannanu is finally out of prison, but was recently rearrested for breaking the conditions of his parole by talking to journalists.

In sum, once again, western countries are prepared to be perfectly subjective about who is and who is not allowed to possess nuclear weapons. Our trusty friends are allowed to do so, albeit reluctantly (not to say discretely), but those of whom we disapprove most certainly may not.

In This Issue

Socrates and Irony
Professor Steve Wexler on Socrates and Irony

The International Failures in Somalia: UN and Arab League
Aweis Issa talks about the need for parity and action in Somalia when it comes to the UN and the Arab League.

Michael Vick and the Jena Six: Race and Punishment in the United States

Literary Contributions
Contributions from an International Selection of Writers

There is no doubt that the general trend in international law is to discourage proliferation, and, rather less strongly perhaps, to encourage disarmament. The Treaty on the Non-Proliferation of Nuclear Weapons of 1968, which entered into force in 1970, essentially recognized the status quo, namely, that some countries had nuclear weapons, and forbad state parties outside this category to make any attempt to join it. These are the rules broken by India and Pakistan and, quite possibly, Israel. Iran sees no reason why it should not follow suit. There are of course other agreements, international, regional and bilateral. Most notable of these is the Test Ban Treaty of 1963, under which state parties undertook to hold the testing of nuclear devices. France has been in violation of this on a number of occasions, leading to a challenge by Australia and New Zealand before the International Court of Justice, a case from which France withdrew (indignant at being placed in the dock, as it were, France has refused to appear before the International Court ever since). Matters are not helped here not only by the abandonment of the treaty by President Putin of Russia, but indications from the White House of the United States might well follow suit. This makes the subjective nature of nuclear policy making even more stark-states with muscle reserve the right to do precisely as they like, and others must do as they are told-most notably by those states with muscle. All of this is completely inimical to even the most basic notions of the rule of law.

The international community acted both by means of state action and collectively, through the United Nations. Its will has been clearly expressed: Iran is to cease and desist from its current course. President Ahmadinejad made it clear what he thinks of the will of the international community: Iran has a right to continue, and intends to do precisely that.

So what is the legal position? Are members of the international community, individually and collectively, entitled in the matter of international law to demand that Iran change course? Is President Ahmadinejad correct when he maintains that his country has a legal right to carry on? Let us consider the matter from the standpoint of customary international law. This body of law is not well understood by those who do not have the appropriate training, because it appears somewhat inculpate and diffuse. Basically, customary international law is derived from the practice of states based on the assertion of a legal right or obligation. That last element is crucial-it is not merely practice or custom or habit, but an act or a mission which is carried out or refrained from because the country concerned considers it has a legal obligation to act as it has.

There seems little doubt that the trend of customary international law is against proliferation. India, Pakistan, and possibly Israel are exceptions to this rule -troubling exceptions, but it must be remembered that the initial reaction of the international community to nuclear tests in the subcontinent was hostile and condemnatory. Subsequent overlooking of the conduct of these two states does not change that and, as previously noted, we do not have hard evidence concerning Israel. In the present case, however, it is important that we look for the legal element in the attitude taken by those opposing Iran's nuclear program. This would mean we need to find evidence that states are maintaining Iran does not have the legal right to proceed, and an international law requires it to cease and desist, as opposed to positions based on approval or disapproval of the government of President Ahmadinejad. (In conclusion, the international community should act with greater clarity and vision in the matter of nuclear non-weapons. As with terrorism, or indeed any other area of law, the more state behaviour is based on subjective factors, then the greater the damage inflicted on the rule of international law. Law is, after all, supposed to be the great leveller - equality before the law and under the law is not an empty phrase. But this is virtually impossible if the most influential countries in the world take a position that there is one set of rule for our friends and another for everyone else. A dangerous game, and one that might one day be lost.

The legalities of armed intervention are surely clear. As with Iraq, distaste for the government, whether or not such a view is well grounded, does not justify an invasion and actually compromises the territorial integrity of the foreign state in question. Further, the presumptions against the legality of the use of force are in full effect. In 1990, the US-led coalition had law as well as might on its side when it ejected Iraq from Kuwait. The Security Council had authorized this act. No such authorization was given for the subsequent invasion of Iraq in 2002: there can be no doubt that this act was illegal. And so it is with Iran. To particularize the situation with respect to that country and the United States, the US would only have been justified in taking military action in self defence, and the circumstances outlined in Article 51 of the Charter of the United Nations. But Iran is not attacking the United States, and by no stretch of the imagination does it pose a danger to that country. Until the Security Council has spoken, no state has a right to take action individually or collectively. Indeed, it would be very injudicious to do so. The invasion of Iraq and its aftermath have been brilliantly successful in alienating the larger part of the Islamic world against western states. Because of the disastrous nature of that act (and its equally disastrous continuation), the credibility of many western states, and its leaders standing, is low. It would be virtually impossible to convince the bulk of the Islamic world that armed intervention in Iran is anything other than yet another anti-Muslim act.

There remains the question of the standing of the Ahmadinejad government in Iran itself. A recent opinion poll shows that the bulk of educated Iranians have little in common with their President. For example, while they disapprove strongly of Israel's practice Vis Vis the Palestinians, they do not question the country's right to exist. They do not necessarily want Iran to have nuclear weapons, but do not for one moment concede the right of any other country to take military action against it. And yes, they would dearly like to see the back of President Ahmadinejad.

At the end of the day, the problem lies with the present regime. Taking action that even temporarily consolidates its power would, in the long run, be foolish. And it is difficult to see where the urgency comes from, unless what we are really seeing is an example of a somewhat desperate White House striving to regain a measure of respect and popularity with the American electorate. It need hardly be said that there was no conceivable legal justification for proceeding with military force on grounds that seemed flimsy even before the intelligence volte face of December 2007.

Intelligence failures facilitated the work of the 9/11 bombers, and led to the Iraq quagmire. It has been estimated that more than one hundred thousand people have died, and the tally of wounded, physically and/or psychologically, must be very much greater than this. Hundreds of billion of dollars have been spent: university teachers cannot but speculate on better ways of using these funds. The intelligence services of the US have served the international community as a whole well this time around. Given the massive budgets dedicated to intelligence services, it is surely not too much to ask that policy, especially where the use of force is contemplated, will be built on facts, as opposed to longed-for but ultimately baseless suppositions.

More incisive articles from Ian Townsend-Gault

Ian's December 2007 article on international commentators

Ian's September 2007 article on Kosovo

Ian's August 2007 article on Arctic sovereignty


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