Luers, Pickering and Walsh NYRB Op-ed

I know this piece came out a couple of weeks ago, and I saw it flying around listserves and Twitter at the time, but I just now got around to reading it myself.  I think it deserves all the buzz it got. Its a really great piece and reads very insightfully and fairly about the current state of affairs between the West and Iran, and the opportunities presented by this moment. I think its analysis is very useful, and I agree 100% with the authors’ prescriptions.

One of the best sections of the piece is the authors’ discussion of the coercive policies of the United States against Iran, including sanctions:

Washington could continue with the same approach it has followed since the fall of the Shah, namely, a “two-track” policy based primarily on sanctions and isolation that does not exclude diplomacy. While American-led international sanctions have damaged the Iranian economy and demonstrated the world’s opposition to Iran’s nuclear program, they have done little to change Iran’s actions or policies.

One alternative would be to increase pressure. And indeed, many in Washington believe that more sanctions and threats of military action are the right response. Under a policy of “coercive diplomacy,” the US would give Iran a clear ultimatum: agree to US demands on nuclear issues by a certain date, or the US will take military action.⁹ The former diplomat Dennis Ross wrote recently that the Obama administration should make Iran’s leaders an offer they must take or leave within a set period of time, and he implies that the option of military force should be available if they reject the offer. He contends that “coercive diplomacy succeeds when threats are believed and the game playing and manipulation stop.”¹⁰

Some advocates of coercive diplomacy argue that such an approach helped President Kennedy pressure Khrushchev to withdraw Soviet nuclear missiles from Cuba. But a final agreement was reached when Kennedy gave Khrushchev a face-saving exit and offered to withdraw America’s Jupiter missiles from Turkey. A few years earlier, when China shelled the islands of Matsu and Quemoy in an attempt to intimidate and threaten Taiwan, President Eisenhower demonstrated his own desire to avoid ultimatums. Rather than define the point at which the US would take military action, he said that he would “just confuse” the press when asked what he intended to do.

Ike took to heart Clausewitz’s insight that a nation fighting for survival will persevere regardless of pressure. More coercion will only reinforce the belief among Iran’s leaders that America’s goal remains destruction of the regime, hardening their resistance and making diplomatic progress less attainable. On military action, it is worth remembering what President Johnson’s national security adviser, McGeorge Bundy, said in the 1990s about the Vietnam War. What surprised him most, he acknowledged, was “the endurance of the enemy.”¹¹ Bundy admitted that he had placed too much faith in “the power of coercion.”

“Coercive diplomacy” is an oxymoron. Invariably the coercive side dominates the diplomatic side. Intransigent enemies who threaten US interests and security cannot be ignored; yet the United States’ experience in solving such problems by the use of coercive action such as war or sanctions that end in war has been highly costly in human lives, resources, and its global position during the past sixty years. As in Vietnam, coercion has often failed to achieve US objectives or a negotiated settlement that gave us most of what we needed. Yet the US has been impressively successful in achieving its objectives when it has placed diplomacy above punitive measures.

Pressure has helped get Iran to negotiate; but diplomatic negotiation cannot succeed unless each side gets some of what it needs and unless each side comes to believe that the other wants an agreement and is willing to comply with it. At present the US has imposed not only an arms ban but a nearly complete economic embargo on Iran, although Iran can still gain access to the US financial system through foreign banks and other institutions. We are not proposing a preemptive suspension of sanctions without firm agreements from Iran on nuclear-related issues. But we do believe that the piling on of more coercive sanctions and ultimatums, particularly when there are new hopes for the diplomatic process to get underway, will undermine or even preclude the possibility of negotiating a nuclear deal.

That’s some gold right there. And I hope the “sanction first, ask questions later” crowd in DC is listening.

ABA Seeks Nominations for the 100 Best Legal Blogs of 2013

The ABA Journal is seeking nominations for its annual list of the 100 best legal blogs. None of the ACL bloggers can nominate ACL because the rules say you can’t nominate your own blog. In fact, they say that anyone who has posted on a blog is discouraged from nominating that blog – which I interpret to mean doing actual posts on the blog, not commenting on posts. Commenters are still fully eligible.

So, if you don’t fall into these discouraged categories, and you would like to nominate ACL for inclusion in the list of 100 best legal blogs, we would really appreciate it if you would use the form at this site to nominate us.

Nominations have to be submitted no later than 7:00 pm (ET) on Friday, August 9, 2013.

Thanks in advance.

Samore on the Unsupportable U.S. Line in the Sand

I really think this quote from Gary Samore, a former key NSC official, sums up one of the central problems in the dispute between the West and Iran over Iran’s nuclear program.

The establishment of a bilateral channel is a necessary but not sufficient condition for coming to an agreement,” Mr. Samore said. “They want a nuclear weapons capability, and we want to deny them a nuclear weapons capability. Finding a compromise between those two objectives is going to be very difficult.

You see he’s actually being candid here about the line in the sand that the US has drawn in the negotiations. They want to deny Iran the capability to build a nuclear weapon. And therein lies the problem. That standard has no basis in international law whatsoever. That means this line in the sand drawn by the US is completely arbitrary and subjective. It has no authority or precedent as an international norm. And as I’ve said many times it is profoundly discriminatory. There are many states around the world that have the capability to build a nuclear weapon. They just choose not to. Iran is in no different technological situation than they are. In fact, they are at the moment quite technologically behind many of them in terms of this capability.  So why single out Iran for this arbitrary standard?  That is the problem that makes the Western approach to negotiations with Iran so bereft of legitimacy and so unsupportable. They’re just making up an arbitrary, subjective, standard that has no basis in international law or norms, and that is blatantly discriminatory. And they are enforcing it on Iran through crippling economic sanctions that are increasingly harming ordinary Iranian civilians. In a nutshell, that explains why I feel so strongly that this is an issue that needs attention and why I spend so much time writing about it.

Now, in the same article in which the Samore quote appears, and in this WSJ article (subscription, unfortunately) as well,  it is reported that the US has recently loosened some of its sanctions on Iran with regard to trade in medical and agricultural products.  This appears to me to be a very welcome act of goodwill on the part of the US, so I want to give credit where its due. Again, it appears to be an action aimed at signalling to President-elect Rouhani, US willingness to negotiate in good faith about sanctions relief, and to invite good faith efforts on his part as well. If that’s true and if that willingness on the part of the US is genuine, then I think this is a very welcome development, and one of the first signs I’ve seen of real good faith effort on the part of the US administration.

EU Courts and Iran Sanctions

This is a good new piece reviewing the wave of court judgments in the EU striking down designations of individuals and businesses for financial sanctions, in implementation of UN Security Council resolutions.  The basic problem is that the EU governments are unwilling to furnish evidence for these designations, and even when they do, as in judicial proceedings in the UK, the evidence is found to be lacking.

This is essentially the same basis on which the EU courts, even more famously, have struck down designations of individuals for sanctions in implementation of UN Security Council decisions regarding terrorism. The Kadi case is one of the leading cases in this area. My friend Antonios Tzanakopoulos has written a couple of great pieces on the Kadi cases (see here and here), including the final judgment on the appeal of the EU governments, which was just handed down a few days ago.

In all of these cases, the EU courts are being consistent in their protection of the rights of the designees, based in fundamental principles of due process. No one should be subject to legal action by a government depriving them of life, freedom, or property, without due process of law, which includes having the evidence against them presented and reviewed by a court, and subject to proper evaluation for both soundness and sufficiency.  The plea by governments of the necessity of secrecy of sources of evidence cannot and must not be allowed to overcome this basic requirement of any developed legal system.

In summary, the Security Council can’t just point its finger at anyone it decides to, and have those individuals and businesses financially sanctioned in domestic courts in the EU. Fortunately, the EU requires proper due process for legal sanction, and so far EU governments have in many cases failed to meet this requirement in both the Iran sanctions and terrorism sanctions contexts.

I only wish US courts held US government action to such high standards.

New Article by Muhammad Sahimi

Professor Muhammad Sahimi of USC has just published an article in the Cairo Review of Global Affairs, recounting and analyzing the history and dilomacy surrounding Iran’s nuclear program.  THIS IS A MUST READ, PEOPLE!

Should the Entire NAM Collectively Withdraw from the NPT?

Since Hossein Mousavian wrote his powerful piece a few weeks ago on the choices Iran’s new leadership has in dealing with its dispute with the West over its nuclear problem, there’s been a good deal of discussion about one of the options he outlined in particular: withdrawal by Iran from the NPT.  In my post about Mousavian’s article, I cited to some things I’ve written on this subject recently as well.

Others have, however, written very thoughtful pieces on whether it would be wise or productive for Iran to withdraw from the NPT, reaching mostly negative conclusions. See here and here in particular for quality pieces.

I think overall these commentators are correct to say that it would be imprudent for Iran to unilaterally withdraw from the NPT, for the reasons they discuss.

But I also think, and have said before, that the NPT is in serious need of replacement. The basic facts are these: the NPT was never intended to be the final agreement on the subject of nuclear energy and nuclear weapons. It was understood at the time of its drafting to be a “halfway house” on the road to a treaty that would ban nuclear weapons outright.  The concept of nuclear weapons haves and have nots as the legal status quo both was and still is understood not to be indefinitely sustainable. What utility there was in the NPT for decades has now been eclipsed by the problems the treaty causes as the cornerstone treaty governing nuclear energy in all of its applications. First, the NPT is woefully out of date and has become problematically anachronistic. The landscape of states that have nuclear weapons has changed drastically since 1968, and the treaty is incredible in not including these countries in some manner within its scope. This causes all sorts of problems – from civilian nuclear tech sharing with India, to the thorny problem of Israel’s nuclear weapons stockpile in the Middle East. Second, the two primary obligations to which the nuclear weapon states committed themselves, in exchange for non-nuclear weapon states’ promises not to acquire nuclear weapons, have become so thoroughly undermined and marginalized as to now be almost farcical. I’m referring to Article IV and Article VI of the NPT. There is a strong, and well supported view, among the states of the NAM, that the NWS are in breach of their obligations pursuant to Article VI, and that the rights and obligations in Article IV have been so diluted and abused by supplier states through the NSG, that there really is very little left that the NPT accomplishes in this area. And this of course goes to the heart of the original grand bargain of the NPT.

Of course, NAM states still in general strongly support the nonproliferation aims of the NPT.  For this reason, and for the cost reasons associated with unilateral withdrawal which the pieces noted above explain, no one NNWS (with the exception of NK) has so far been willing to go out on the limb of international opinion to unilaterally withdraw from the NPT on these principled grounds.

But what if the member states of the NAM, comprising about two-thirds of the NPT NNWS, collectively agreed that the NPT is no longer a viable paradigm for governing nuclear energy and nuclear nonproliferation, and decided to finally bring the issue to a head and withdraw from the treaty collectively, on a coordinated date? The benefits of such an approach would be several. First, no one state would bear the stigma of outlier in unilaterally withdrawing from the treaty, with the implication of “something shady” going on in their territory. This would be a collective action more persuasively based in mutually agreed principle.  Second, it would in fact force the issue of producing a new treaty to take the place of the NPT. For all of the reasons mentioned above and more, the NPT has been perceived less and less credibly by NAM states for many years now.  However, when you talk with officials about amending or replacing the NPT, they just roll their eyes at the enormity of the task, and the improbability of ever achieving consensus on a new treaty. The result has been that the NPT is simply left in place to limp along as it has for 45 years, becoming more and more problematic by the year. Surely this is not an acceptable long term approach to the issue. At some point the NPT will have to be replaced. If not, it will continue to slide into disdain and irrelevance among the states of the NAM, comprising by far the majority of states in the world, as it already has in large measure, because of the fundamental principled inequity of the treaty’s structure, along with the previously discussed failure of the NWS and supplier states collectively to maintain their obligations under it.

I have no delusion that this scenario is likely to be played out soon. But I think that it may be the only realistic way in which to bring the issue of the NPT’s essential unfitness for purpose to the fore, and to bring about the necessary conditions for serious work to be commenced on a replacement treaty.

CRS Report on Iran’s Compliance with its International Nuclear Obligations

I just read over the new Congressional Research Service report on Iran’s compliance with its international obligations in the nuclear area. My memory is that the same CRS researcher – Paul Kerr – published a very similar report last year, and I seem to remember commenting on it somewhere as well, though I can’t now remember where. Anyway, I remember my thoughts then being pretty much what they are now about this version. It comes across to me as low quality analysis. And in particular, the material on whether Iran has violated the NPT, which begins on Pg. 10, is unfortunately quite erroneous. It really just relies on what the U.S. State Department thinks on the question, and their analysis is also low quality and erroneous.

I remember specifically sending an email to Paul Kerr after reading his last version of this report, and offering to advise him on future reports on the topic. He was apparently not interested in my advice – though I note in one of the footnotes to this version that he did consult Andreas Persbo, whose views are much closer aligned to those of the U.S. State Department than are mine. This is probably not a coincidence.

Oh well. What can you do? There’s alot of inertia to the erroneous views on nuclear law that have been perpetuated by the US nonproliferation epistemic community and their friends for a long time now. And they have a weirdly strong hold over opinion in DC that’s hard to break. Inside the bubble of DC, these views are just accepted, even though they are radically different from the views of most of the rest of the world on these issues. It’s frustrating, but all anyone can do is keep trying to fight back against the tide of BS through solidly grounded explanation, analysis and persuasion.

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.

Hibbs on Closing the Iran File

A couple of days ago I wrote a post in which I said this about Mark Hibbs’ most recent post over at Arms Control Wonk:

While I’m writing, I might as well also quickly address Mark’s other recent piece over at Arms Control Wonk. This one is entitled Closing the Iran File, and contains Mark’s prescription for how Iran can normalize its relationship with the IAEA. I honestly don’t see much that is novel in this piece. It seems to just be saying that Iran should do everything the IAEA and UNSC says it should do, and that if they do, in time the IAEA may back off on its scrutiny of Iran’s nuclear program and normalize its safeguards relationship with Iran. The piece doesn’t seriously engage with any of Iran’s objections to the substance or process of IAEA/UNSC actions regarding it, or with Iran’s proposals for normalizing relations with the IAEA. It appears to offer no new insights into how the dispute between Iran and the West can practically be resolved.

 

It is of course all wrong in its fundamental assumption, upon which the entire piece is based, that the IAEA should be investigating ”potential military dimensions” in Iran, or anywhere else for that matter. But I’ve made this point so many times before that I didn’t really see it as worth the time or effort to do so again in comments to this new piece.

After writing this, I decided to make a short comment to his post, agreeing with Yousaf and Johnboy and some of the others that had commented. Mark didn’t allow my comment to be posted. So I suppose I’m now officially persona non grata with both Mark Hibbs and Jeffrey Lewis, the latter of which has made his disdain for me very clear for a long time. Lewis is of course a poster child for the US nonproliferation epistemic community, which I critiqued here.

But I have actually respected Mark Hibbs for years, and continue to think that his work is extremely valuable overall – in particular his more journalistic and explanatory pieces. And if you were to look at his pieces over the past several years on ACW, you’ll see that I’ve been very openly complimentary of him in the comments to many of them.  Its really only on the issue of Iran that I have taken issue with his analysis. Its a bit strange to me – on other issues Mark seems to be quite open minded and willing to challenge the US and the IAEA on things. But on the Iran issue, somehow it seems that Mark has drunk the Kool Aid flowing from the DC echo chamber which, along with its unfortunate implications, was recently insightfully discussed by Robert E. Hunter in a post over at LobeLog.

Oh well. I guess its a good thing that I have my own blog now where I can say anything I want and neither Lewis nor HIbbs can stop me.

With regard to Hibbs’ most recent post, I stand by what I said previously. PMD issues are not within the IAEA’s mandate to investigate and assess. Period. Nothing has changed, or can change that. At one point in the comments, Mark says:

There can be no question that the IAEA has that authority to pursue these issues in the case–as I outline in the blog post–should Iran volunteer to ratify, bring into force, and implement its Additional Protocol.

And then he cites to the hatchet job report that Albright and friends did on my work a while back. Fortunately, Yousaf was allowed by Hibbs to reply to that comment and to site to my responses to that report, and to my earlier Jurist piece on the PMD issue specifically. Mark’s allusion to the AP here is confusing and inapposite.  The AP gives the IAEA no additional remit of authority to investigate PMD issues than it has under the CSA, which is zero.  The AP is about increasing the IAEA’s authority to verify both the correctness and completeness of a safeguarded state’s declaration about the location and amounts of fissile material within its territory. Its not about giving the IAEA the authority to investigate or assess nuclear warhead development related research within the state, which is what the PMD issue is all about. As I’ve explained before, the entire PMD issue is a red herring that should be completely and immediately dropped by the IAEA.

Many of the regular commenters here at ACL have, however, been allowed to comment on HIbbs’ post, and I’ve been very glad to see the excellent legal points that you’ve been making there. In a comment to one of my earlier posts, Johnboy asked me a question about something Hibbs wrote over there:

Dan, I’m reading the comments in Mark’s post at armscontrolwonk, and one of his statements left me puzzled.

This comment in reply to Cyrus:
“The Board of Governors made a big mistake in not responding to the IAEA’s 2003 findings of 18 years of systematic deception by Iran, by passing a resolution stating clearly and without further ado, in 2003, that Iran was in non-compliance with its safeguards obligations and then ordering Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding”

That the Board can pass a resolution declaring that based on the “IAEA’s 2003 findings” that Iran is guilty of non-compliance with its safeguards is not something that I dispute.

It’s the “and then ordering Iran” bit that leaves me puzzled, because I can’t see where the Board of Governors has the authority to order anyone to pull the pin on their uranium enrichment plant.

It does rather suggest that Mark thinks that the Board has the authority to be judge, jury and executioner which – to say the least – is a level of unaccountable power that is Somewhat Open To Abuse.

Maybe I’ve missed something.

Maybe the Board of Governors does have the power to “order” a country to “suspend sensitive nuclear activities pending clarification of outstanding issues”.

What’s your take?

My take is that you’re not the one who is puzzled, Johnboy. You are right on the law, as have the other ACL commenters been, and Hibbs is wrong. Of course the IAEA BOG has no authority to “order[] Iran to suspend sensitive nuclear activities pending clarification of outstanding issues related to the non-compliance finding.” All the BOG can do is determine that a safeguarded state is in noncompliance with its safeguards agreement, and, if it chooses, refer the matter to the Security Council. Its this kind of comment, from someone as knowledgeable about the IAEA as Hibbs, that shows me how much misunderstanding there is in the nonproliferation community about what the actual legal authority of the IAEA is, and how limited it is.

At another point, George William Herbert makes this statement: “. . . I believe that the AP has caused the international standard / legal expectation to be that the IAEA becomes the NPT enforcer.”  Again, this isn’t even in the ballpark of a correct understanding of the IAEA’s legal authority.

I know that all of these guys – Lewis, Albright, Hibbs, Herbert, Fitzpatrick, Pollack, Ford, Wulf, Kittrie, and the rest of the US nonproliferation crowd, along with their few foreign friends like Persbo and Heinonen, think I’m just a pain in the butt, and an Iran apologist. They’ve made that very clear. And I’m sure I am a pain in their collective butts in bringing up these legal issues that they would rather not have brought up. But I am right, and people who really understand international law agree that I’m right. And the rest of the world, that actually cares about international law and the lawfulness of acts of international organizations, thinks these things are important and shouldn’t be marginalized.