Einhorn on Getting to Yes with Iran

I’ll try to stay calm as I write this. I’ll try.

I just read Robert Einhorn’s new article over at Foreign Policy entitled “Getting to ‘Yes’ with Iran.” Most of you will know that for the past four years, until May, Einhorn was a key member of the Obama administration’s diplomatic team working on the Iran nuclear issue, and was involved in the P5+1 negotiations with Iran. Because of this, I think its fair to take his opinions as fairly representative of the US perspective on the ongoing diplomatic process with Iran.

It’s honestly hard to know where to begin to criticize this piece. There’s so very much to criticize. I think the most maddening aspect to it is simply the tone throughout – the paternalistic, arrogant tone that drives most of the world crazy about US “diplomacy,” and makes them want to collectively scream at us “who the f#&*! do you think you are!?!”  Here are a few jewels:

The two sides could try to work out a road map containing the general elements or principles of a phased, comprehensive deal, including an outline of the key elements of an Iranian civil nuclear program that would be permitted in an end-state. . .

More specifically, any acceptable approach to permitting enrichment would have to provide confidence that Iran could not quickly or secretly “break out” of agreed arrangements and use its enrichment capabilities to produce highly-enriched uranium for nuclear weapons. This would require limits on Iran’s enrichment capacity (both in terms of numbers and types of centrifuges), restrictions on its stocks of enriched uranium (in terms of quantities and locations), and special monitoring measures capable of detecting a breakout at the earliest possible moment. . .

The question of whether the negotiations’ end-state should include a domestic enrichment program cannot be answered until we have explored such practical arrangements with the Iranians. Such engagement will not be easy for either side. It will require the United States and its partners to do what they have so far avoided: talk about what would make an Iranian enrichment program acceptable. And it will require the Iranians to recognize that the United States and the international community will not accept an unrestricted enrichment program, but only a regulated capability that denies them the opportunity to convert their program rapidly or clandestinely to the production of nuclear weapons.

Do you hear it? How many times he uses words like “permit,” “accept,” and “acceptable”? This drives the rest of the world crazy – how the U.S. and the West generally put themselves in the position of parents telling other states – as if they were little children and not fully equal sovereigns – what they will accept and not accept, permit and not permit those states to do in their own countries! And if you don’t go along with these parental orders, the U.S. and E.U. will slap sanctions on you, like a parent punishing a child. Nevermind if there is no international legal basis either for the substantive “non-acceptance” of the activity, or for applying punitive sanctions, as is the case with Iran’s nuclear program. Dad’s going to do it anyway, because he knows what’s best, and because he can.

Do you not see how this drives other states crazy, and makes them want to defy these edicts from the West, just on principle? It’s basic schoolyard psychology. And we would feel and respond the same way, if the tables were turned.

But wait, there’s more. He also tries his hand at legally justifying the U.S. refusal to recognize Iran’s right to peaceful uranium enrichment:

The United States has been justified in rejecting an unfettered “right to enrich.” The Nonproliferation Treaty protects the right of compliant parties to pursue nuclear energy for peaceful purposes, but it is silent on whether that right includes enrichment, which is a dual-use technology that can also produce fissile material for nuclear weapons. Lawyers can debate whether a right to enrich is included in the treaty, but what is not debatable is that Iran has forfeited — at least temporarily — any right to enrichment (and reprocessing) until it can demonstrate convincingly that it is in compliance with its NPT obligations. For the time being, whatever rights it has to these technologies have been suspended by a series of U.N. Security Council resolutions, which are legally binding on all U.N. members, including Iran.

Well, I wrote a whole book on why he is wrong in his assessment of the NPT and Article IV. I’d be happy to explain it to him sometime, or he can just buy the book and read it (it’s out in paperback!), now that he’s out of office and has time to actually think about policies, instead of running around implementing them based on erroneous understandings. And as far as the Security Council resolutions are concerned, I’ve written about them as well, including in an article in the George Washington International Law Review. And I’m currently writing another piece in which I will discuss more thoroughly the issue of states’ rights in international law. In that piece I plan to demonstrate that the rights of states, including the one codified in NPT Article IV, have jurisprudential meaning and implications, and impose obligations on other actors to respect them – including the Security Council.  And when the Council acts to prejudice these rights, its decisions are null and void.

But coming back to a macro view of this piece by Einhorn, it really makes for a depressing read. It convinces me that there really is no hope for a practical, negotiated solution, as long as the U.S. approaches the negotiating table with this attitude and with these erroneous ideas about both the principle and practicality of what they’re hoping to accomplish through them.

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22 Comments on “Einhorn on Getting to Yes with Iran”

  1. yousaf says:

    “Iran has forfeited — at least temporarily — any right to enrichment (and reprocessing) until it can demonstrate convincingly that it is in compliance with its NPT obligations. ”

    As far as I understand the law, the CSA and NPT are different treaties and Iran has never been accused of being in violation of the NPT.

    And since the 2008 IAEA report, Iran is also in compliance with its CSA, as Peter Jenkins and I pointed out:

    http://blogs.reuters.com/great-debate/2013/04/04/helping-iran-safeguard-its-nuclear-stockpile/

    http://blogs.reuters.com/great-debate/2013/05/16/reset-on-iran-now/

    Also no one country can claim another is not in compliance with the NPT — as far as I know, only the International Court of Justice or some such body can weigh in on NPT compliance.

    The IAEA, I believe, only deals with CSA compliance.

    Dan, please feel free to correct me on these legal points.

    • Johnboy says:

      Yousaf, just one correction regarding that article with Jenkins, where it is stated that “Lost in the din is the prospect that the United Nations agency charged with monitoring Iran’s nuclear activities”….

      The IAEA is not a United Nations agency.

      It can’t be, since it is a creation of the IAEA Statute, not a creation of the Charter of the United Nations.

      Indeed, Article 6 says: “To establish or adopt, in consultation and, where appropriate, in collaboration with the competent organs of the United Nations”….. which clearly establishes that the relationship between the IAEA and the UN is that of a “collaboration” between two separate entities, and not a relationship where the former is a subordinate to the latter.

  2. Nick says:

    What Einhorn is saying is that, IRI should not expect to have full rights, as is the case for Japan and Brazil, even if the toughest inspection regime was adopted. The end state acceptable is when we get to know all the centrifuge R&D locations, interview those involved and either scare them or recruit them, then will let you have face saving obsolete enrichment plan with break out period of “n” years.

  3. Johnboy says:

    If there is one positive thing to take from that article it is this: the real core of this conflict revolves around the question of whether countries have a RIGHT to a nuclear industry.

    That is, of course, the Iranian view. The alternative argument (call it the Einhorn doctrine) is that signing the NTP means that the signatory has agreed to make any such right subordinate to (or conditional upon, take your pick) some good behavior bond.

    It’s only AFTER you accept the Einhorn doctrine that you can get to the USA’s role, which is to be the (utterly self-appointed) arbiter of Iran’s good behavior.

    Of course the corollary is this: if the Einhorn doctrine is false then the USA’s self-appointed role is nothing but an arrogant and unwarranted interference in Iran’s internal affairs, precisely because it represents an attempt to impinge upon a RIGHT that Iran (like all nations) possess.

    Einhorn is wrong to claim that a country surrenders its right to nuclear power when it signs the NTP if favour of some undenied good behavior bond.

    He is, indeed, so obviously wrong that he *must* know he is telling an untruth.

    In which case, of course, he is a lying sack o’ shit. No wonder he went so far….

  4. yousaf says:

    To my mind, the problem is that the desired USG goal is not a negotiated solution but a reason — any reason — to maintain sanctions.

    That is the end goal that must be sustained.

    This is not a hypothesis of mine: it has been admitted to by the relevant ex-USG officials:

    Interview discussion with Javier Solana and Gary Samore — Listen from about minute 29:20:

    http://www.brookings.edu/events/2013/04/01-negotiating-iran

    Samore at Brookings about the failed 20% agreement with Turkey and Brazil:

    “…..And at the very last moment, as most of you will remember,
    Brazil and Turkey and Iran announced an agreement which was viewed in
    the White House really as a pretty transparent effort to try to delay the
    sanctions. So we went ahead with those sanctions. ”

    ==============================

    Smart proposed solutions from the NGOs or other governments are unwelcome.

    Any smart good solution is seen as an effort to undermine sanctions — with sanctions being the desired end-state that must be protected.

    • Johnboy says:

      “To my mind, the problem is that the desired USG goal is not a negotiated solution but a reason — any reason — to maintain sanctions.”

      I think that’s a very fair comment, as is Cyrus’ comment below that there is no “forfeiture” provision in any of the agreements between the IAEA and any of the signatory nations to the NPT.

      Taken together they illustrate the problem that the US government faces on this issue i.e. the truth is not on its side, and so it must seek to maintain these sanctions by insisting on a falsehood.

      The USA really needs to do one of two things:
      a) Get the UN Security Council to pass a resolution stating that Iran’s nuclear program represents “a threat to the peace”, thereby providing the ONLY valid legal basis for sanctions against Iran, or
      b) Admit that it is blowing smoke out its arse when it claims that the USA has a right to prevent Iran from having a nuclear program.

    • Don Bacon says:

      The US goes beyond nuclear with its sanctions, a full frontal attack suggesting that nuclear is not the real issue.

      Iran sanctions bases:
      –illicit nuclear activities
      –human rights abuses
      –development of unconventional weapons and ballistic missiles
      –support for international terrorism
      –deceptive banking
      –computer and network disruption, monitoring, and tracking
      –evading sanctions

  5. Cyrus says:

    JUST FYI, there is no “foreiture” provision in the NPT, IAEA Statutes, or Iran’s Safeguards Agreement

  6. Johnboy says:

    DJ: …”including in an article in the George Washington International Law Review”….

    Thanks for the link, Dan. That’s a terrific article, and well worth the read.

    I have thought for some time that the UNSC is acting more and more as if it were a world legislature (which, clearly, it is not) but I hadn’t really considered the implications of UNSCR 1929 i.e. the council also considers itself authorized to act as a judicial body.

    While I agree that states need to consider advocating legal remedies/roadblocks to this (disturbing) trend, I doubt that this will have much effect.

    After all, if the Big Five decide to bend the UNSC out of all recognition in pursuit of a common political objective then they will – and the legal advocacy of the minnow states that this isn’t what the Security Council is for isn’t going to stop them.

    The remedy will certainly be political, not legal, and its form will be this: one or both of Russia and China will need to be convinced that it isn’t in their interests to run with this pack….

    So look to the “B” and the “I” amongst the BRICs to push for a more formal and formalized arrangement as a counterweight to USA/UK/France, or look very closely at the meetings of the P5+1 to see if/when those meetings begin to wrap up without any agreement amongst the participants.

    Because if either of those two things happen then the happy days of the Big Five agreeing to push a joint agenda will begin to revert back to the Good Old Days i.e. the USA (and its two mini-me’s) pushing one barrow, while the Russkies push theirs, and the Chinese push theirs….

    When that happens then the Security Council will cease its judicial and legislative activism, precisely because that requires unanimity amongst the Big Five.

    • yousaf says:

      I think R and C will also show less appetite for cooperation with the rest of the P5 going forward given what is going on in world affairs these days. And some division in the P5 may end up being healthy.

      • Johnboy says:

        Indeed.

        You’ll know it when it happens, because I’ll bet very good money that if/when it does happen then the USA will do a *massive* dummy-spit of a sort that is unbecoming of a grown-up.

        A lot of this has to do with China’s policy of not being the Odd Man Out on any Security Council vote i.e. it’ll join in a veto with another P5, but it never wants to be seen casting a lone veto.

        Which is odd, because the USA does that all the time and without a care in the world.

        China is supposed to be a Great Power, if not yet a Super Power, so it shouldn’t care about who gets upset by it casting a lone veto.

        But – apparently – that prospect weighs heavily on the Chinese, though I can’t begin to understand why.

      • Johnboy says:

        Sorry, I should make myself clear: when I talk about when “it happens” I mean “an open split in the P5+1” i.e. an irrevocable split into a “P3+1” vs “P2”.

      • Don Bacon says:

        And Iran is the catalyst for the new world order! Iran’s foreign policy has been masterful.

      • Johnboy says:

        DB: “Iran’s foreign policy has been masterful.”

        Hardly. If Iran’s foreign policy had been masterful then they would have ensured that Russia and/or China were guarding its back when the IAEA bumped this issue to the Security Council.

        In which case there would have been no UN-sanctions, just some pointless wrist-slapping.

        Look at, say, Brazil, who *have* been masterful at sailing under the radar even though they probably *do* have a nuclear weapons program. Yet who even mentions them, much less criticizes them? THAT’s masterful work…

        But, sure, the Iranians have been more nimble than the USA but – let’s face it – that’s because the Iranians are free to stake out their own position. Unlike The Big Dawg who has to try and figure out how to walk a straight line while being frantically wagged by its tail….

      • Don Bacon says:

        I repeat, Iran’s foreign policy has been masterful. Iran has the friendship of its non-Arab neighbors, chairs the NAM, and has close relations with large and important Asian countries, which is where the economic growth is.

        In Europe, the US-imposed sanction effect has been to help tank the EU economy (and perhaps the EU itself) and help to financially destroy some companies, like Citroen-Peugeot. Europe banks are now moving to cancel the US sanctions effects which is not welcome news to the US.

        OF COURSE Iran can’t dictate to Russia and China, who follow foreign policies that naturally benefit Russia and China’s interests, not Iran’s. Nevertheless, these two countries have supported Iran in many ways, and China (like India) generally disregards the sanctions.

        There’s no doubt — Iran’s foreign policy has been masterful.

      • Don Bacon says:

        This just in from WaPo–

        UNITED NATIONS — The U.N. Security Council has refused to back a report by a panel of experts which unanimously concluded that Iran violated U.N. sanctions when it launched several ballistic missiles a year ago.

        Australia’s U.N. Ambassador Gary Quinlan, who chairs the committee monitoring sanctions on Iran, did not identify which countries were opposed in his briefing to the council on Monday. But council diplomats, speaking on condition of anonymity because consultations were private, said Russia was most vocal in its opposition and was supported by China.

  7. Don Bacon says:

    Nice piece, Dan. I love the “Father Knows Best” perspective (I’m dating myself).

    • Dan Joyner says:

      Thanks Don. I remember that show too – it was a bit before my time, but reruns were still on when I was coming up.

    • Denis says:

      Yeah, how many times did we hear Jim Anderson’s heart-warming: “Hi, honey. I’m home.”

      Mostly what I remember about the program was thinking: “Man, wish my mom was that hot.” Margaret was definitely hotter than June Cleaver, and not nearly as daft.

      With all the country’s dysfunctional families watching all those idealized TV families and assuming the idealized ones were the norm, it’s no wonder we boomers all ended up high or on the shrink’s couch.


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