Why Less is More: Law and Policy Considerations on the Iranian Nuclear Issue

Daniel H. Joyner*

In late 2002, the world learned from Iranian opposition groups in exile that Iran had concealed from the International Atomic Energy Agency (IAEA) for eighteen years the existence of facilities at Natanz and Arak engaged in experiments involving uranium enrichment and plutonium separation. Upon a report by IAEA inspectors detailing their findings on the undeclared activities, the IAEA Board of Governors reached the conclusion in a Resolution passed November 26, 2003 that, due to this concealment and to other reporting omissions, Iran had “in a number of instances” failed to meet its obligations under its safeguards agreement with the agency.[1] In its resolution the Board further recognized that Iran had a particular onus of cooperation and transparency in order to “provide and maintain the assurances required by Member States” and “restore confidence.” Iran subsequently agreed to a temporary suspension of its uranium enrichment activities and in December 2003 signed the IAEA Additional Protocol.

Despite these concessions, Iran has continuously maintained that all of its work with fissile materials and related technologies, including work at these undeclared sites, has been aimed at furthering its capacity to produce civilian nuclear energy. Iran’s leaders have thus argued, notwithstanding Iran’s failure to comply with reporting requirements under its safeguards agreement, that Iran has always been in compliance with its substantive obligations under the 1968 Nuclear Non-proliferation Treaty (NPT). In this argument, they have relied specifically upon the inalienable right of all states to engage in peaceful uses of nuclear technologies recognized in Article IV, paragraph 1, of the NPT.[2]

However, suspicions have become widespread, particularly among Western states and Israel, that the uranium enrichment work which Iran has carried out is intended not solely for use in peaceful energy production, but for the creation of nuclear weapons. Notwithstanding these suspicions, IAEA inspectors have to date found no conclusive evidence to support allegations of a clandestine nuclear weapons program in Iran.[3]

Despite this lack of evidence of a weapons program, on February 4, 2006, the IAEA Board of Governors decided to refer Iran’s case to the U.N. Security Council. This referral, without a supporting report by IAEA inspectors providing evidence that Iran was in breach of its substantive NPT obligations or that it was in continuing breach of its safeguards agreement, led some to criticize the Board’s decision as premature. However, on July 31, 2006 the Security Council passed Resolution 1696 in which, acting under Article 40 of Chapter VII of the U.N. Charter, it demanded that Iran suspend all uranium enrichment-related and reprocessing activities and requested a report from the IAEA Director-General by August 31 to confirm this suspension.

Iran’s failure to abide by the terms of this resolution and its insistence that its activities are firmly within its rights under NPT Article IV have led the Security Council to issue additional resolutions under Chapter VII, which impose trade restrictions and other economic sanctions on Iran and on specified Iranian individuals and business entities. Tensions between Iran and Western powers have recently been aggravated by Iran’s disclosure in September 2009 that it has for some years been constructing a facility near Qom intended as an additional uranium enrichment facility to supplement its primary enrichment facility at Natanz.

In this article I will first briefly review the international legal issues surrounding Iran’s development of uranium enrichment capacity. I will conclude that Iran is currently in breach of its international legal obligations to cease uranium enrichment, due to the passage of Security Council Resolution 1696. I will then go on to consider the policy positions that Western governments and Israel in particular have taken in light of this illegality and will argue that none of the policy positions that have so far been adopted or proposed are likely to be effective in stopping Iran from acquiring nuclear weapons capability if indeed that is Iran’s intent. I will conclude by arguing for a more minimalist approach by Western governments and Israel toward Iran and a greater reliance on the influence of international civil society on internal Iranian politics and social movements. I argue that, in the end, internal political change represents the only realistic potential source of meaningful change to Iran’s nuclear posture.

I. Law

First, in consideration of the legal merits of Iran’s claim that its nuclear activities are justified by Article IV of the NPT, it is important to note that uranium enrichment, when declared to the IAEA, is not an NPT violation per se. Certainly when uranium is enriched to a U-235 presence of less than 20%, and can thus still be classified as Low-Enriched Uranium (LEU), that enrichment activity is one that is fully includable within the Article IV inalienable right to engage in peaceful uses of nuclear technologies. This understanding was clear at the time of the drafting of the NPT. As the Director of the U.S. Arms Control and Disarmament Agency told the Senate Foreign Relations Committee in 1968:

It may be useful to point out, for illustrative purposes, several activities which the United States would not consider per se to be violations of the prohibitions in Article II. 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. Also clearly permitted would be the development, under safeguards, of plutonium fueled power reactors, including research on the properties of metallic plutonium, nor would Article II interfere with the development or use of fast breeder reactors under safeguards.[4]

Japan and a number of other Non-nuclear Weapon State (NNWS) parties to the NPT have carried out enrichment of uranium for the purpose of nuclear power generation for many years without complaint from the IAEA Board of Governors. Japan has in fact separated and stockpiled at least 43.1 tons of plutonium and has a robust and productive gas centrifuge program for uranium enrichment at its facility in Rokkasho, Aomori prefecture. This example serves to further illustrate that even the overproduction and stockpiling of fissile materials is deemed permissible by the IAEA.[5] It is only when this enrichment activity by an NNWS is undeclared to the IAEA that a violation of an IAEA safeguards agreement results. Even this, however, is not a violation of the NPT per se. Only if enrichment proceeds to the production of Highly-Enriched Uranium (HEU), at approximately 20% presence of U-235, does it produce a weapons-usable material. Undeclared enrichment of weapons-usable HEU would create a prima facie case of breach of Article II of the NPT, and such activity would not be justifiable by reference to Article IV.

As a matter of law Iran was therefore quite correct in its interpretation of the coverage of its uranium enrichment activities by Article IV of the NPT until July 31, 2006. The basis of Iran’s case was not altered by previous IAEA urgings that Iran cease uranium enrichment, as the IAEA’s only legal competence is in the administration of safeguards agreements, and the continuation of uranium enrichment in declared sites, under IAEA safeguards, poses no challenge to the provisions of Iran’s safeguards agreement. The legal landscape did change, however, on July 31, 2006 with the passage of Security Council Resolution 1696, in which the Council exercised its authority under Chapter VII of the U.N. Charter to order Iran to cease uranium enrichment.

Regardless of prudence or other merit of this demand by the Council, in passing this resolution the Council changed the legal underpinnings of Iran’s case for justifying its enrichment activities by reference to NPT Article IV. This issue can be approached legally under a number of different theories. However, perhaps the most persuasive theory for the superiority of Chapter VII resolutions over the rights of NPT Article IV is simply to be found in the reasoning that the rights defined in Article IV are not creations alone of the treaty terms of the NPT, but are rather rights recognized by the terms of the treaty, yet existing independently within the bundle of rights inherent in the attributes of a state. Under this reasoning, while the Article IV rights are important features of the sovereign character of all NPT parties, they are nonetheless categorizable along with all other general state rights. By a state’s consent to the terms of Article 25 of the U.N. Charter, such general state rights are made surmountable by and subject to the authority of the Security Council acting under Chapter VII.[6] Any other understanding of the relationship between the generally inherent rights of states and Article 25 of the Charter would render the Security Council unable to authorize any remedial force under Articles 41 and 42 as a consequence of its determinations under Article 39 of threats to international peace and security.

In summary, then, Iran is currently in violation of international law in its refusal to abide by Security Council Resolution 1696 and subsequent resolutions in which the Security Council has required Iran to suspend all uranium enrichment-related and reprocessing activities.

II. Policy

In spite of the various efforts that have been undertaken to pressure Iran into compliance with Resolution 1696, including additional resolutions imposing trade restrictions and other economic sanctions, the leadership of Iran has shown no sign of changing course in its nuclear-related activities. Indeed, the pace of uranium enrichment has increased significantly over the past few years, and there are plans to begin operation of an additional enrichment facility near Qom by 2011. In the face of Iran’s resistance to international pressure and in light of their suspicion that Iran’s nuclear program has military aspects, the leaders of Western countries including the United States, the United Kingdom, France, and Germany, as well as Israel, have taken up the almost mantric refrain that a nuclear armed Iran is “unacceptable” to them. This statement is frequently and forcefully made to draw a policy line in the sand, and is clearly meant to communicate that these states are committed to taking all necessary measures to prevent this unacceptable eventuality from coming to pass.

From a policy perspective, this position seems problematic. It appears to expose a gap between rhetoric and reality on the question of what Western governments can realistically hope to do to prevent Iran from acquiring nuclear weapons, if indeed that is Iran’s intention. In fact, there are likely no realistic options for externally preventing Iranian acquisition of nuclear weapons if Iran’s intent is sufficiently fixed on this goal.

First to a consideration of that intent. A variety of evidence has been adduced of Iran’s involvement in research and possible development of nuclear weapons related technologies.[7] The most recent such allegation was made on December 14, 2009 in an article published by The Times of London. In this article, reporter Catherine Philp claims to have obtained a 2007 “technical document” from an office in Iran’s Defense Ministry that “describes the use of a neutron source, uranium deuteride, which independent experts confirm has no possible civilian or military use other than in a nuclear weapon.”[8] As with other allegations of evidence supporting the claim of a military aspect to Iran’s nuclear program, this document’s authenticity is difficult to confirm. Moreover, even if this document or other pieces of evidence are determined to be authentic, it is even more difficult to show that any Iranian nuclear weapons work has moved beyond the research stage and into development or manufacture. Thus far no weapons-grade HEU or other single use fissile material, or manufactured nuclear explosive devices or components thereof, have been found in Iran. Then there is the December 2007 U.S. National Intelligence Estimate, in which the U.S. intelligence community judged “with high confidence” that Iran halted its nuclear weapons program in the fall of 2003.[9] This assessment—vigorously disagreed with by Israel in particular—casts doubt on much of the evidence of an ongoing Iranian nuclear weapons program. Iran itself has repeatedly stated that it does not desire to acquire nuclear weapons and that all of its nuclear work is peaceful in purpose.

However, let us assume for the sake of argument the worst-case scenario: that Iranian officials are lying, and that Iran does indeed intend to acquire nuclear weapons. Or, more realistically, let us assume that what Iran intends to obtain is the latent capability to construct nuclear weapons within a relatively short time. As Ariel Levite has described it, this is a policy of nuclear hedging.[10] Nuclear hedging means having the knowledge and capacity to produce a sufficient amount of weapons-grade fissile material and manufacture the warhead hardware of a nuclear weapon in a matter of weeks once the political decision to construct a weapon has been made. This status of nuclear hedging is almost certainly a more realistic goal for Iran than is the manufacture and maintenance of one or more completed nuclear weapons. The nuclear hedging policy, pursuant to which the knowledge and capacity to manufacture a nuclear weapon are obtained but no concrete steps are taken in construction of a weapon, would keep Iran’s nuclear programs technically legal under NPT law. This would in turn serve to defuse negative international opinion and would avoid giving the West a justification for war or other serious pressuring efforts. However, it creates in the hedging state a real capability that, if known or suspected by others, confers many of the same strategic benefits of nuclear weapons possession, including deterrent value against aggressors.

We come then to the gap between rhetoric and reality presented by statements of Western states and Israel that a nuclear armed Iran is unacceptable and by the concomitant pledge to take all necessary measures to prevent Iran from acquiring nuclear weapons capability. There would appear in fact to be no realistic means available to these unaccepting states whereby they might externally prevent Iran from obtaining nuclear hedging status if that is indeed Iran’s intent. None of the options that have been discussed for doing so—strengthened economic sanctions, targeted airstrikes on Iranian nuclear facilities, and diplomatic accords—are likely to achieve significant results or alternatively achieve benefits which outweigh their costs.

A. Sanctions

As noted above, the United Nations Security Council has imposed several rounds of economic sanctions on Iran and on Iranian individuals and business entities in response to Iran’s failure to abide by the terms of the Council’s Resolution 1696. These sanctions have largely been focused on Iran’s nuclear program itself and have included an international prohibition on supply of nuclear-related materials to Iran as well as a freeze on the overseas assets of named Iranian individuals and businesses. There have been a number of voices arguing for a stepping up of the sanctions regime against Iran, with some calling for the Security Council to institute a wide-ranging international embargo of trade with Iran, similar to that imposed upon Iraq by the Security Council in the aftermath of the 1990-91 Gulf War.[11]

However, in the specific case of Iran and its policy regarding its nuclear program, economic sanctions are not likely to be effective in changing Iran’s policy of nuclear hedging if that is indeed its intent. In the leading academic study of the use of economic sanctions as a tool of foreign policy, the authors found that economic sanctions have historically achieved success in changing target state behavior in only thirty-four percent of cases.[12] However, when one considers the particular facts of the Iranian case, the expected likelihood of a stepped up sanctions program significantly influencing Iran’s nuclear policy would be considerably less than that.

Iran is a large and regionally powerful country. It is led by an essentially autocratic government, founded upon religious principles. The specific issue in question —the state’s nuclear policy—is an issue of the highest political and security sensitivity, particularly if one assumes that there is a military aspect to that policy. It is also one that is a focus of nationalist pride among much of the population of the country. On these facts, even stepped up sanctions are highly unlikely to be an effective tool in influencing the policies and behavior of Iran’s leaders.[13] As the authors of the abovementioned study conclude:

Policymakers often have inflated expectations of what sanctions can accomplish. This is especially true of the United States today and was true of the United Kingdom in an earlier era. At most there is a weak correlation between economic depravation and political willingness to change. . . . Sanctions are seldom effective in impairing the military potential of an important power or in bringing about major changes in the policies of the target country. . . In high policy cases, the costs of compliance for the target are high, both sender and target are intensely interested in prevailing, and the sender must be able to either threaten or impose unusually high costs on a defiant target in order to prevail.[14]

Specifically with regard to cases in which the target state is led by an autocracy, the authors note:

It is hard to bully a bully with economic measures. The evidence from the cases suggests that democratic regimes are more susceptible to economic pressure than autocratic ones and that economic weakness and political instability in the target country can make it still more vulnerable, but the evidence on this last point is weaker than expected.[15]

The case of Iran’s nuclear program is therefore disanalogous to many of the economic sanction success stories held up by proponents of this foreign policy tool; for example, the role of Security Council authorized economic sanctions in bringing down the Apartheid government of South Africa. Even within the international security issue area, the economic sanctions success stories, including Iraq, do not provide particularly encouraging precedents. In these cases the economic sanctions regimes imposed upon the target states tend to be comprehensive and draconian. This is particularly true in the case of Iraq in the 1990s. And even with such crushing economic sanctions, the success of that program could only be determined after many years of its maintenance. Thus, economic sanctions should be considered likely to be effective in changing state behavior in high politics and military related cases only in the long term, and only through high-cost and comprehensive sanctioning programs that cause massive societal disruption and privation for the civilian populace of the target state. In the case of Iran’s nuclear program, causing the Iranian people to suffer a decade of poverty just to see if this will have any effect upon the autocratic ideologues who run their country’s government hardly seems proportionate to the feared potential that Iran will achieve a status of nuclear hedging.

In this cost/benefit analysis, one must also consider how Iran is likely to react to a strengthened sanctions regime. If a comprehensive trade embargo were imposed, Iran might consider this action tantamount to an armed attack against it. Iran has declared that in such a case, it would move to block access to the Straits of Hormuz, potentially severely restricting the flow of oil out of the Persian Gulf and causing chaos in world energy markets. To an international economy struggling to pull itself out of a deep worldwide recession, such an energy crisis could be devastating.

In sum, the unlikely benefits to be gained by significantly ratcheting up the international sanctions regime against Iran, when compared with the massive potential costs of maintaining such a coordinated and sustained sanctions program and the collateral damage it would inevitably inflict on the Iranian civilian populace, makes this an unrealistic option for externally changing Iran’s policy of acquiring a nuclear hedging capability, if indeed that is Iran’s intent.

B. Airstrikes

Another possibility for changing the direction of Iran’s nuclear policies is of course the military option, and specifically the option of targeted airstrikes on Iranian nuclear facilities. This possibility is periodically mentioned by government officials in the West, usually in a dismissive sense, but is still among the options that are “on the table.” Israeli officials are at times more candid about their willingness to use force if they perceive that Iran has crossed some threshold of nuclear weapons capability.

The idea of addressing the Iranian nuclear question through the use of targeted airstrikes is also unlikely to achieve benefits that outweigh its costs. The only benefit that targeted airstrikes might achieve is the destruction of known nuclear facilities. However, these known facilities likely comprise only a part of the overall Iranian nuclear complex. There are almost certainly hidden or underground facilities about which Western intelligence sources know little or nothing. Destroying Iran’s known facilities is not likely to lead to a permanent change in Iran’s nuclear policies. At best such a military strike would amount to a temporary setback to some of Iran’s nuclear capabilities, a setback that could likely be overcome by a few years of rebuilding.

In terms of costs, this will depend largely on how Iran reacts to such a strike. It would almost certainly strike back at its attackers, likely Israel, precipitating a military conflict of unpredictable scope and duration. The cost in human life and national infrastructure could be significant for both Iran and Israel.

The diplomatic consequences of a military strike against Iran would be of long duration. It would essentially foreclose any future diplomatic engagement on the nuclear issue. Such an attack, which would itself almost certainly be a breach of international law, would undermine the perceived legitimacy of the West’s umbrage at Iran’s own violations of international law and negatively affect international support for further pressuring efforts against Iran.[16]

The unrealistic nature of the targeted airstrikes option for changing the course of Iran’s nuclear policies is not lost upon most leaders in the West, and it is highly unlikely that any Western governments will participate directly in such a military action against Iran. However, Israel’s willingness to take such drastic measures, if in its opinion Iran passes some threshold of nuclear weapons capability, is much less predictable.

C. Diplomatic Accord

Efforts by Western states to influence Iranian nuclear policy have thus far focused on diplomatic negotiation, looking toward some international accord pursuant to which Iran will agree either to cease uranium enrichment entirely or to at least take other meaningful steps toward restoring the confidence of Western leaders that its nuclear intentions are purely peaceful. The most recent of such efforts have been directed at a compromise plan, under which Iran would ship approximately seventy percent of its existing LEU out of the country to be further enriched and then processed into fuel rods for use in its medical isotope producing reactor in Tehran. To the West, acceptance of this plan by Iran would show a willingness on Iran’s part to make confidence-building concessions, and it would also remove a significant quantity of Iran’s known LEU reserves out of the country, preventing them from being used in the manufacture of a nuclear weapon. Iran has so far rejected this proposal.

However, even if Iran were to accept this proposal or some similar international accord focused on neutralizing its LEU stockpile, this would not necessarily represent a change in Iran’s assumed policy of nuclear hedging. The problem that all such international accords pose is that they are only as good as their verifiability by IAEA inspectors. Again, it is likely, in light of Iran’s decades-long maintenance of clandestine facilities at Arak and Natanz and the recent revelation of the centrifuge facility at Qom, that the full extent of Iran’s nuclear complex is not known to Western intelligence agencies. Thus, an agreement to neutralize known LEU stockpiles, or even to cease uranium enrichment work at known facilities, will not provide evidence of a true change in Iran’s assumed policy of nuclear hedging. The IAEA is simply not equipped to act as an investigative agency, uncovering facilities and activities which a safeguarded state wishes to keep clandestine. Any such international accord focusing on known fissile materials or facilities would be suspected as being only for diplomatic appearances, with nuclear activities continuing at undeclared locations. This problem cannot be overcome through the deployment of any number of international inspectors inside Iran.

While diplomacy should of course continue in an effort to resolve the nuclear standoff between Iran and the West through low-cost peaceful means, diplomatic accords and confidence-building measures themselves can only potentially be seen as limited evidence of a change in Iran’s nuclear policy.

D. Internal Change

In considering the several policy options that have been put forward for externally influencing Iran’s assumed intention to achieve nuclear hedging status, none appear to be realistically likely to achieve significant results, or alternatively to achieve benefits that outweigh their costs. Rather, the only possibilities for realistic change to Iran’s assumed intent to obtain a latent nuclear weapons capability lie internally in Iran.

One possibility for internal policy change is a decision by the current government in Tehran to reverse course in its nuclear weapons desires and forego the acquisition of a latent nuclear weapons capability. This possibility is not without precedent. Though imperfectly analogous in important ways, there are historical examples of nuclear reversal decisions of this kind. Brazil, South Africa, Argentina, Libya, and Egypt all reversed course on their nuclear weapons programs after varying degrees of progress down the nuclear path. Understanding why these states chose nuclear reversal is difficult due to the variety of factors present in each individual case.[17] However, if lessons can be learned from these past cases, they probably caution against optimism that Iran will follow this course.

If Iran does desire nuclear weapons and is working toward that end, it is primarily because of significant regional and international security interests. Iran wants to strategically strengthen its hand against Israel and Western states it perceives as hostile towards its interests. By acquiring a nuclear deterrent, Iran would level the playing field with Israel, which up to now has enjoyed the upper hand in regional security dynamics as the only state in the region with nuclear weapons. Iran is thus not comparable to North Korea, a financially ruined country that seems to have pursued nuclear weapons largely as a tool of leverage to force economic concessions from other states and which at times seems to be willing to forego its nuclear weapons program if the foreign financial inducement for doing so is sufficient. Iran’s interests in nuclear weapons are far more rational and strategic and are unlikely to be changed by any carrot that can be offered by the West. The only meaningful carrot that could be offered to assuage Iran’s regional security concerns would be an offer by Israel to completely disarm Israel’s own nuclear arsenal. However, this is certain not to occur. And Iran is also, as discussed above, unlikely to be significantly influenced by any of the practical sticks (e.g. stepped up sanctions or targeted military strikes) the West can bring to bear for this purpose.

The other possibility for internal policy change on the nuclear issue, and perhaps the more realistic possibility, is a more fundamental change to the current Iranian political regime that results in a change in Iran’s overall approach to the region and to the West, including a decision to reverse course on the desire for a latent nuclear weapons capability. The social and political schisms within Iran that were revealed in the protests and government crackdown following the June 2009 presidential election appear to be the deepest since the 1979 revolution. Time will tell whether these schisms run deep enough to threaten the ruling political regime in fundamental ways, as some have argued.[18]

The current policy of the West toward Iran should be informed by an understanding that the only realistic possibilities for change to Iran’s assumed intent to acquire latent nuclear weapons capability lie in social and political change inside Iran. This understanding argues for a halt to the escalation of economic sanctions against Iran, as well as for a change in Western political rhetoric towards Iran. Specifically, the rhetoric of deadlines, take-it-or-leave-it offers, and implicit threats of sanctions and military force should be abandoned. Export controls on nuclear-related items and technologies can remain in place to avoid actively contributing to any potential nuclear weapons program, and diplomatic dialogue should continue with an eye toward communication, transparency, and understanding. However, the best hope for change to Iran’s nuclear weapons ambitions is real internal political change in Iran.

Supporting that change will require a paradigm shift for Western policy officials, particularly in the United States. No Western government can be seen to explicitly or directly support social and political change movements inside Iran, as this would give the government in Tehran a pretext to crack down on these change elements. In this situation, only international civil society efforts by groups that are not connected to or identifiable with Western governments— i.e. NGOs—are likely to be effective in supporting movements for political change in Iran from the outside. Thus, in the final analysis, the best action that Western governments can take to realistically effect change to Iran’s assumed intent to acquire latent nuclear weapons capability is as little action as possible.

This will admittedly be a bitter pill to swallow for leaders of Western governments, who want to be seen politically to be doing something about the perceived threat of Iran’s nuclear ambitions. However, these officials must remember that acting aggressively and confrontationally to address a problem of conflicting state interests in international relations is seldom the most effective policy choice. Often, aggressive confrontation will only make things worse by triggering primal psychological reactions of defiance and self-preservation in the leaders of the confronted state. The most effective opposition strategy is usually a policy of resolution of fundamental conflicts of interest through cooperation when possible or a policy of calculated efforts of passive opposition when interests cannot be compromised and cooperation is not possible. In the case of Iran’s nuclear ambitions, a policy of passive opposition through reliance on international civil society groups and the Iranian people themselves to work a fundamental change to the Iranian political regime, is more likely to bring about meaningful change than are any efforts of external pressuring by Western states and Israel.

*Dan Joyner is an Associate Professor at the University of Alabama School of Law. The author would like to thank Adam Lebovitz and the staff of the Harvard Law and Policy Review Online for helpful comments on an earlier draft of this article.

[1] IAEA Document GOV/2003/81.

[2] For an analysis of the legal arguments surrounding Iran’s nuclear program, see Daniel H. Joyner, International law and the proliferation of weapons of mass destruction, 50–55 (2009).

[3] See also Office of the Dir. of Nat’l Intelligence, December 2007 National Intelligence Estimate, Iran: Nuclear Intentions and Capabilities, available at http://www.dni.gov/press_releases/20071203_release.pdf.

[4] Treaty on the Nonproliferation of Nuclear Weapons: Hearings Before the S. Comm. on Foreign Relations, 90th Cong. 39 (extension of remarks by Mr. Foster in response to question regarding nuclear explosive devices).

[5] See Japan’s “Separated” Plutonium Stockpile Increases to 43 Tons, Kyodo News Agency, available at http://www.redorbit.com/news/science/231519/japans_separated_plutonium_stockpile_increases_to_43_tons/index.html. Uranium enrichment through centrifuge cascade is also carried out, for example, at the Almelo facility in the Netherlands, and at the Gronau facility in Germany.

[6] Article 25 states that “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

[7] See Dafna Linzer, Strong Leads and Dead Ends in Nuclear Case Against Iran, Washington Post, Feb. 8, 2006.

[8] Catherine Philp, Secret Document Exposes Iran’s Nuclear Trigger, Times (London), Dec. 14, 2009,available at http://www.timesonline.co.uk/tol/news/world/middle_east/article6955351.ece.

[9] Office of the Dir. of Nat’l Intelligence, supra note 4, at 6.

[10] Ariel Levite, Never Say Never Again: Nuclear Reversal Revisited, International Security, Winter 2002-03, at 59-88.

[11] Orde Kittrie, Using Stronger Sanctions to Increase Negotiating Leverage with Iran, Arms Control Today, December 2009, at 18.

[12] Gary Clyde Hufbauer et al., Economic Sanctions Reconsidered 158 (3rd ed. 2007).

[13] See generally Martin Matishak, House Approves Gasoline Cutoff Bill on Iran Despite Warnings, Global Security Newswire, Dec. 16, 2009, available at http://gsn.nti.org/gsn/nw_20091216_7976.php.

[14] Hufbauer et al., supra note 13, at 162.

[15] Id. at 166.

[16] Such an attack would be in many ways analytically similar to the 2007 Israeli attack on a suspected nuclear facility in Syria. On this case, see Daniel Joyner, North Korean Links to Building of a Nuclear Reactor in Syria: Implications for International Law, ASIL Insights, Apr. 28, 2008, available at http://www.asil.org/insights080428.cfm.

[17] See Levite, supra note 11, at 59-88.

[18] E.U. Institute for Security Studies, Analysis Paper: The Iranian Elections and the Aftermath (June 2009) (prepared by Rouzbeh Parsi), available at http://www.iss.europa.eu/uploads/media/Iranian_elections_and_the_aftermath.pdf.

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