Daniel Joyner is Professor of Law at the University of Alabama School of Law. In an Op-ed at Jurist Forum he writes on the recent IAEA report on Iran: Iran’s Nuclear Program and the Legal Mandate of the IAEA:
This report is legally problematic in a number of ways.Firstly and most fundamentally, the IAEA simply has no legal mandate to produce such a report on activities being carried on within an IAEA member state concerning items and technologies that may be related to the development of a nuclear explosive device, but that are not directly related to fissionable materials or associated facilities.
Since the IAEA is acting outside of its legal authority in this section of the report, it does not have a legal standard to apply to its conclusions regarding possible nuclear weapons related activities not involving fissile material. [...] In short, as the ancient legal maxim states, there can be no illegality where there is no law. The IAEA is simply “concerned.”
Why they are concerned is itself a matter of curiosity. There is no knowledge or technical ability related to nuclear weapons detailed in this report, and allegedly possessed by Iran, which other technologically advanced non-nuclear-weapon states like Japan or Germany do not possess. These are specialized bodies of knowledge and technical capabilities, to be sure, but they are well within the knowledge base and technical abilities of these advanced industrial states.
Since there is no evidence presented in this new report by the IAEA Director General that Iran has physically constructed a nuclear explosive device or any of its components, one can conclude that the Director General’s concern expressed in this report cannot be justified as being based upon a breach of a rule of international law prohibiting the activities outlined in the IAEA report. Such a rule exists neither in Iran’s safeguards agreement with the IAEA, or in the NPT. Rather, the reason for the IAEA’s and the UN Security Council’s attention to Iran can only be based on other factors, primarily including the determination of the US and other states that Iran is a threat to Israel, the region and international peace and security generally.
[The IAEA's] track record in devoting so much critical attention to Iran over the past nine years, and not to other non-nuclear-weapon states who have for decades engaged in precisely the same production of knowledge and capabilities, through the same processes, has convinced both Iran and the other members of the Non-Aligned Movement (comprising the vast majority of states in the world) that the IAEA has thereby undermined its independence and objectivity as a technical monitoring and verification body. Instead, they believe, it has become a politicized instrument of the foreign policy goals of the US and other Western states. The agency’s overreaching in its new report is simply the most recent evidence of this fact.
With regard to “to other non-nuclear-weapon states who have for decades engaged in precisely the same production of knowledge and capabilities, through the same processes” Joyner mentions, let us just point to two of them (there are many more).
From the Wall Street Journal, October 28 2011: In Japan, Provocative Case for Staying Nuclear
Many of Japan’s political and intellectual leaders remain committed to nuclear power even as Japanese public opinion has turned sharply against it. One argument in favor rarely gets a public airing: Japan needs to maintain its technical ability to make nuclear bombs.
“I don’t think Japan needs to possess nuclear weapons, but it’s important to maintain our commercial reactors because it would allow us to produce a nuclear warhead in a short amount of time,” Shigeru Ishiba, a former defense minister, said in an interview in a recent edition of Sapio, a right-leaning twice-monthly magazine.”It’s a tacit nuclear deterrent,” added Mr. Ishiba, an influential parliament member who made similar remarks on a prime time television news show in August while serving as policy chief of Japan’s main opposition party.
This on Brazil from a HuffPo piece datelined September 25 2009: Jose Alencar, Brazil VP, Says Country Should Build Nuclear Arms
Jose Alencar, who also served as defense minister from 2004 to 2006, said in an interview with journalists from several Brazilian news media that his country does not have a program to develop nuclear weapons, but should: “We have to advance on that.”
Like Iran Brazil has not signed the Additional Protocol to the Nuclear Non-Proliferation Treaty plus it has several nuclear activities that awake at least suspicion with regards to possible nuclear weapon manufacturing including an HEU production facility for highly enriched Uranium at Resende that is only partially under IAEA watch. Brazil seems, in total, much more determined and active working towards nuclear weapon capability than Iran.
Joyner is quite right in pointing out that the IAEA is far off its legal basis and highly partisan with regards to Iran. He also caught the reason why this is so quite well.
In an Orwellian move, the Provost of the University of Chicago sent an email to the entire campus titled “Freedom of Expression” to announce the university’s intention to crack down on any protestors of tomorrow’s event with former Bush administration officials Secretary of State Condoleezza Rice and Treasury Secretary Henry Paulson.
Provost Thomas Rosenbaum wrote:
We will continue to respect the rights of protesters to express their views in a peaceful manner that does not prevent invited guests from speaking. However, should individuals violate these expectations and attempt to shut down the speech of others, we must take action to protect our fundamental values. This means escorting disruptive individuals out of events and pursuing appropriate disciplinary action in accordance with longstanding policies noted in the University’s Statutes and in the Student Manual.”
Undoubtedly Rosenbaum had in mind what happened when former Israeli prime minister Ehud Olmert visited the campus in October 2009 to give the King Abdullah II leadership lecture. On that occasion, as the viral video of the event shows, members of the audience disrupted Olmert, preventing him from speaking.
But as The Electronic Intifada’s Ali Abunimah, who took part in the Olmert protest explained, this was because the University itself had already shut down all possibility of challenging Olmert and holding him accountable even to the point of banning media from the event. Then, as now, the University disingenuously claimed to be protecting “free speech.”
On this occasion, the University is making a special effort to protect the free speech rights of someone promoting a book published by Random House that will be distributed in the mass market and has already been reviewed in mainstream publications including the Los Angeles Times and the Washington Post.
We can only speculate as to whether the University of Chicago has been emboldened in its anti-free-speech stance by the September conviction of the Irvine 11 for protesting Israeli ambassador and military officer Michael Oren.
The University’s threats of “appropriate disciplinary action” against its own students may in fact be much worse than arrest, because these measures include suspension and expulsion.
Here’s the email in full
WEST BANK — The Israeli occupation authority (IOA) still bars dozens of Palestinian families from leaving the West Bank to meet their exiled relatives who were released as part of the swap deal with Hamas Movement, according to UFree, the European network to support the rights of Palestinian Prisoners.
Many Palestinian prisoners were exiled to the Gaza Strip, Syria, Turkey and Qatar following a recent swap deal between Hamas and Israel; the latter, however, refuses to allow families of these ex-detainees to travel to where they are.
UFree said that dozens of West Bank families, mostly women and children, were denied travel to meet their freed fathers and husbands and prevented from crossing King Hussein and Karama bridges for alleged security reasons.
UFree condemned the IOA for making flimsy security excuses to prevent families from traveling to meet their relatives.
What kind of security danger could a 14-year old girl like Sarah Kafisha cause if she visited her own father whom she knows only from pictures? UFree questioned.