Mad Dogs

For all the controversy being stirred over Ayatollah Khamenei’s remarks regarding Israel this morning, few have noted that being seen as a ‘rabid dog’ is, in fact, part of Israel’s security doctrine. In fact, Iran’s Leader — whether he knew it or not – offered an almost verbatim quote of Moshe Dayan, the former Israel Defense Minister.

Here is Khamenei this morning, before a large audience of Basij:

‘Is the Islamic system after a war with others? This is the sentence that comes out of the unclean rabid dog of the region — the Zionist regime – that Iran is a threat to the world.’

And then there is Moshe Dayan, as quoted by Israeli military historian, Martin Van Creveld:

‘Israel must be like a mad dog, too dangerous to bother.’

Well, shucks.

Updated: Thanks to the catch from Danial Omidvar on Twitter, it looks as if most were mistranslating Khamenei’s actual remarks. Looking at both video and the released transcript, Khamenei was not referring to Israel itself as the ‘rabid dog of the region’, but rather just Israel’s Prime Minister Benjamin Netanyahu. In the world of translation, Iran’s leaders have been notably ill-served over the years, so this one deserves correction. Once I think enough time has passed for people to see this update, I will remove the post.

Of course, the Dayan quote remains unquestioned.

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Response to Just Security

Over at Just Security, NYU Law Professor Ryan Goodman argues that the media’s insistence on referring to Iran’s right to enrich as a ‘right’ is not unwarranted – since (1) it is the subject of a dispute between the two parties – the U.S. and Iran, and (2) good-faith legal argument can be made over whether Iran, in fact, does have such a right under international law.

Prof. Goodman is wrong on both points.

First, as I’ve argued elsewhere, the nature of the dispute matters. Is it a legal dispute, or a political one? I have reviewed tons of literature on the subject and think clearly the arguments being put forth to deny Iran a right to enrich are entirely political in nature. That is, most analysts disregard the legal question entirely and make a policy-based assessment of Iran’s nuclear rights. And, as I’ve noted, the policy-based arguments are entirely sensible (though unsupported by the relevant law).

If this is the case, and the dispute is a political – not legal – one, then I think the media are right to be called out on their use of quotation marks when discussing Iran’s right to enrich.

Second, Prof. Goodman is confused about what the U.S. legal argument actually is. As Secretary of State Kerry noted last week, the U.S. position is that nobody has a right under the NPT to enrich – not Iran, not others. That is much different than arguing, as Prof. Goodman does, that the Security Council resolutions regarding Iran have suspended Iran’s nuclear rights (to Prof. Goodman’s credit, he does not say that this is a particularly good argument – but just an argument).

If this is the U.S. position – i.e., that neither the NPT nor other principles of international law provide a right to enrich – then that is a hopelessly weak legal position, and it would behoove the U.S. media to point out that few, if any, accept that. There is no reason that the media have to couch Iran’s right as ‘alleged’ just because the U.S. is putting forth a very bad legal argument against such right. Instead, the media should be interrogating the U.S.’s position (as well as Iran’s) and disclosing the relevant law, the thrust of international opinion, etc.

Until that is done, I think the sharp critique that Salon published on the media’s handling of the Iran nuclear dispute is one that is wholly warranted.

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Israel’s Impossible Deal

On one thing, at least, the U.S. and Israelis are agreed – ‘no deal is better than a bad deal’ with Iran. That has become a persistent refrain not just of the Israeli Prime Minister, but also of Secretary of State John Kerry, who seems to have taken it up mainly to assure his Israeli counterparts.

But in a New York Times piece this morning, there is identified one further kind of deal beyond that of a ‘good deal’, ‘bad deal’, and ‘no deal’, and that is a ‘reasonable deal’.

Quoting Giora Eiland, a senior research fellow at the Institute for National Security Studies in Tel Aviv, the Times notes:

‘Netanyahu speaks only about a good deal. The Americans are speaking about a reasonable deal, which is better than having no deal at all.’

If we do the equation right, the U.S. prefers a ‘good deal’, will take a ‘reasonable deal’, but believes ‘no deal is better than a bad deal.’ On the other hand, the Israelis will take only a ‘good deal’ and see anything short of that as being worse than ‘no deal’ at all.

There’s a lot of silliness in all this, but nevertheless I think it is instructive, especially when we consider what constitutes a ‘good deal’ for the Israelis. As a senior administration strategist in the White House told the Times:

‘[Netanyahu] will be satisfied with nothing less than the dismantlement of every scrap of the Iranian nuclear infrastructure. We’d love that, too – but there’s no way that’s going to happen…’

In other words, a ‘good deal’ for the Israelis is what everyone else recognizes as an impossible deal (i.e., it is one in which Iran capitulates to U.S. demands, which Iran will not do now or in the future). Unless the impossible deal is put forward, Israel will prove itself a rejectionist party.

I don’t think that is unintended, either. I don’t think Israel wants a deal – at least not when it means the U.S. and the Iranians are talking to each other at the negotiating table. It has been a fundamental tenet of Israel’s security policy for the past two decades, after all, that Iran remain isolated from the U.S.

The matter was put most succinctly by former Israeli Deputy Defense Minister, Ephraim Sneh, who said in regards to U.S.-Iranian overtures during the Clinton Administration:

‘We were against it [U.S.-Iran dialogue]…because the interest of the U.S. did not coincide with ours.’ (cited in Trita Parsi’s ‘Treacherous Alliance’)

The same, I would argue, is playing out right here today. Israel is, no doubt, concerned about the proliferation potential of Iran’s nuclear program, but even more so, Israel worries about the possibilities, however far removed as of now, of U.S.-Iranian rapprochement.

For two decades, Israel has lined up an impressive array of barriers to U.S.-Iran dialogue, not least of which are the robust U.S. and multilateral sanctions against the Islamic Republic. The fact that these are now being negotiated away with Iran is a troubling issue for the Israelis, and understanding this is crucial to understanding why a ‘reasonable deal’ for the White House is such a ‘bad deal’ to the Israelis.

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It’s a Legal Issue, Not a Policy One

In all the pieces I’ve read concerning whether Iran has a right to enrich, as it insists it does, I have not once seen a legal expert consulted to share his or her expertise on the subject matter. That has had plenty of unfortunate consequences, not least of which is that what is, in fact, a purely legal dispute has become translated into a political one in the media. Instead of interrogating the relevant law (both the NPT and background international law principles, as I’ve suggested elsewhere), the U.S. media create the pretense that Iran’s ‘alleged right’ is purely a subject for political negotiation.

But that it is not.

In two separate pieces today, one in Time and the other in Foreign Affairs, the legal question is quickly dismissed as being ‘esoteric’ and ‘theoretical’. Gary Samore, the White House’s former WMD czar and now President of a leading anti-Iran group, United Against Nuclear Iran, prefaces his remarks on the subject by pushing ‘matters of legal theory aside.’ In doing so, he then proceeds to discuss the broad implications of permitting Iran a right to enrich (and at whatever levels it chooses to do so), making what are policy arguments against U.S. recognition.

But whether Iran has a right to enrich, under the NPT or other international law principles, is neither a theoretical nor a policy issue at all. In fact, the question is one well-suited as an exam question for an introductory course in International Law, requiring as it does basic understanding of treaty interpretation (VCLT Articles 31 and 32), knowledge of basic case-law in the subject area (the Lotus case), and background facts on how States have interpreted NPT Article IV(1) in the past. As I have pointed out, whether we recognize the source of Iran’s right to be found in the NPT or the Lotus presumption, Iran does indeed have a legal right to enrich uranium on its own soil, provided its purposes be peaceful. This is not, I repeat, NOT a controversial legal conclusion.

I think this is what upsets Samore (and much of the nonproliferation community in D.C.) so much, and this is what explains their inordinate focus on the policy issues surrounding enrichment, while dismissing the legal question as too arcane for understanding.

On its face, after all, their policy argument is not half-bad. By providing States a right to enrich, we allow their engagement with dual-use technologies that could just as easily be used to build a nuclear weapon as to produce peaceful nuclear energy. States would be free to stockpile nuclear material until the point at which a political decision was made to weaponize, and then once made, the time would be too short to muster a meaningful international response. This is often called the ‘loophole’ of the NPT.

Iran has thousands upon thousands of centrifuges right now, capable of enriching up to and past the point at which the uranium becomes bomb-grade. Considering the regional situation in which Iran finds itself, with hostile neighbors on almost each of its borders and the constant threats from the U.S. and Israel, Iran would seem to have all the incentives to build up its nuclear program to such a point as to allow it virtual breakout capacity (meaning that, once a political decision in Tehran was made to build a weapon, Iran would have enough nuclear materials for a few bombs). It would be a rational course for Iran to straddle that line as best it could (and I suspect that this is a centerpiece of Iran’s nuclear strategy). Thus, for those concerned about nuclear proliferation, Iran’s nuclear program is a serious issue.

But however nice this sounds as a matter of policy, it is not the law. It is not the agreement that was forged four decades ago (the Nuclear Non-Proliferation Treaty). Instead, according to the relevant law, States-Parties to the NPT have an ‘inalienable right…to develop research, production and use of nuclear energy for peaceful purposes without discrimination…’ And, as part and parcel of that right, the grand majority of States-parties recognize nuclear enrichment as being a perfectly legal endeavor (see, for example, Article VI of the Non-Aligned Movement’s ‘Tehran Declaration’ in 2012). Despite Samore’s claim that the United States has ‘long opposed’ viewing NPT Article IV(1) as containing within it a right to enrich, I think we’d find that the U.S.’s opposition is of much more recent vintage, taking on its full character only towards the tail-end of the Clinton Administration (for an alternative take, see Peter Jenkins’ piece here).

My point is, we can talk about the policy issues concerning nuclear weapons (proliferation, disarmament, peaceful use). Those can be fruitful. But we cannot confuse what is a purely legal matter (i.e., whether Iran has a right to enrich) with our policy preferences. To do so not merely misleads the public as to the substance of the dispute, but also threatens to undermine the legal regime that has, not wholly unsuccessfully, kept weapons proliferation at bay. Because if we push our policy preferences to be the law, we remove the incentives that bought States into the Nuclear Non-Proliferation Treaty in the first place — the right to access nuclear materials, the right to produce nuclear energy, and the right to be sure that one’s neighbors are tied to a legal regime restricting proliferation. Remove those incentives from Iran’s plate, we might well end with a program of much greater concern than the one we find today.

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Sourcing the Right to Enrich

It looks like the impasse over Iran’s nuclear ‘rights’ might well be settled – or, at least, put off for another day. In a Reuters piece (as well as in remarks to ISNA), Iran’s Foreign Minister Javad Zarif said that Iran would continue to assert its right to enrich uranium, but would not require that such right be recognized by the P5+1 powers. In short, it looks like Iran has received assurance from the U.S. and Europe that it will be permitted a (smaller) enrichment program following the conclusion of negotiations. Such de facto recognition of its nuclear rights is enough for Iran’s satisfaction, and thus the draft agreement expected to be produced this week between Iran and the P5+1 parties will exclude explicit mention of Iran’s nuclear rights.

That does not mean the question will completely disappear, and there are important (if, at this point, purely theoretical) issues that deserve answer. Very briefly, I want to identify the two potential sources for Iran’s right to enrich and discuss the consequences of each.

(1) Nuclear Non-Proliferation Treaty

This is the most commonly identified source for Iran’s right to enrich. Under NPT Article IV(1), States-parties are recognized as possessing an “inalienable right…to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of [the] Treaty.”

Iran’s right to enrich uranium would be captured within the broad ‘right to produce nuclear energy.’ Few argue with this reading, though the United States and a few European countries have recently signaled their disagreement. But it would be difficult to argue, on the one hand, that NPT signatories (like Iran) have a ‘right to produce nuclear energy,’ but at the same time lack the rights (such as the ‘right to enrich uranium’) to realize this.

It is for this reason that many in the nonproliferation community have taken a different tack, arguing that Iran’s right to produce nuclear energy is contingent on its adherence to NPT Articles II and III (which mandate that non-nuclear weapons States both refrain from manufacturing nuclear weapons or nuclear explosive devices and accept and adhere to safeguard agreements with the IAEA, respectively). Since Iran, it is claimed, has been non-compliant with its Safeguards Agreement with the IAEA, and thus in breach of its Article III obligations, it loses its right to produce nuclear energy under Article IV(1). This argument is problematic for a number of reasons – not least, equating non-compliance with a Safeguards Agreement with an Article III breach, and viewing Article IV(1) rights as contingent on fulfilling obligations under Article III. If people want to pursue a robust critique of this argument, I urge them to take a look at Dan Joyner’s monograph on the subject here.

More importantly, if the source of Iran’s right to enrich is Article IV(1), then that right is ‘inalienable’. That means that Iran cannot trade away such right, even if it so desired (though I am having trouble figuring out how an ‘inalienable right’ works in practice as between States and think there is a pretty big drafting error here). This is the language Iran’s Foreign Minister is mirroring in his remarks – an ‘inalienable right’ that cannot be sold or given away.

(2) General Principles of International Law

For those steeped in international law, there is a basic legal principle called the Lotus presumption after a famous case before the Permanent Court of International Justice (a precursor to the International Court of Justice). That presumption, in brief, holds that a State is free to do whatever act, provided that there exists no prohibitory rule in international law preventing it from doing so. In other words, if there exists no rule preventing a State from enriching uranium, then a State is free to engage in such activity.

This is a second source of the ‘right to enrich’. Under international law, there is no prohibitory rule stating that a State cannot enrich uranium on its own soil, so long as that State does so for exclusively peaceful purposes (here is where Article II and III of the NPT come in to do some work). This is why I have argued elsewhere that it is not enough for the United States to argue that the NPT does not grant a right to enrich to Iran (or any other NPT signatories). Instead, the United States must also argue that there exists a prohibitory rule in international law that prevents States from enriching.

One issue with sourcing the right to enrich to this more general principle of international law, however, is that this right is not inalienable (as the NPT Article IV(1) right is). States have the freedom to enter into international agreements that expand or limit their rights, and this case would be no exception. Iran would be free to trade away its right to enrich, provided that the price was high enough to convince it to do so.

In sum, there are two potential sources for Iran’s right to enrich – the NPT and a general principle of international law. Different consequences flow from sourcing the right to one or the other, however, so how we recognize the right matters. No doubt, this is a theoretical concern at this time, but it does play a role in how the parties (Iran and the P5+1) approach the issue. This is not a question of whether the NPT grants Iran a right to enrich, but instead a question of whether we source Iran’s right to the NPT (as I think we do) or to the background principle provided by the Lotus case.

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This Road Leads to War

Few things test one’s patience more than the U.S. Congress waxing rhapsodic on Iran. From calling the Islamic Republic a ‘Hitlerite regime’ to believing that the regime’s overthrow is just days around the corner, the U.S. Congress proves a reservoir for both profound ignorance and unrelenting hostility. Listening to HFAC’s hearing on Iran this morning, one wonders whether the truly imprudent and irrational course of action for Iran is, in the end, its failure to pursue a nuclear deterrent to U.S. aggression.

Thankfully, the White House looks intent on pursuing a broad strategy of diplomacy with Iran, and Congress tends towards exceptional deference to the Executive in this arena. While there might well be a lot of huffing and hawing from Congress over the terms of a nuclear deal, it remains unlikely that Senators from the President’s own party will undercut and undermine him in such a public way and on such a global platform. As Secretary of State John Kerry prepares testimony before the Senate committee this afternoon, even the most hawkish Senate Democrats, such as Chuck Schumer, have signaled indecisiveness as to whether to pursue additional sanctions on Iran. That is, almost ridiculously, a unique sentiment in the Congress, and one that demonstrates the force with which the White House is pressing for time and space to resolve the nuclear dispute with Iran diplomatically.

But the White House will have to keep the pressure up. If the Iran hearing in the House this morning showed anything, it is that the Congress is more than willing to resort to force and violence to win Iran’s capitulation. And that is, after all, the likeliest outcome of U.S. sanctions policy, as lone-wolf Colin Kahl was keen to point out during the hearing. Unless the White House veers U.S. policy towards Iran off-ramp, and soon, we can expect to arrive at the place Iran-hawks have long sought – one more U.S. war.

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This Isn’t Munich, It’s Abadan

Seriously, is the ultimate character of U.S. policies towards the Islamic Republic any different than those of the British in 1951, when they imposed a naval blockade on the port in Abadan to prevent the export of Iran’s oil? U.S. sanctions are explicitly designed to prevent Iran from being able to export its petroleum resources abroad and thus put a chokehold on the lifeblood to Iran’s economic well-being, which is precisely what the British intended to do by preventing the sale of Iran’s oil abroad. These are policies demanding Iran’s capitulation, not good-faith negotiation – a fact that is nowhere more clear than in the rhetorical excesses of Congressional leaders the morning after Geneva.

For a people who have long lived under the boot of colonial domination – be it Russian, British, or American-made – the vindictive nature of the imperial state is clear: Choose an independent path in world affairs, and prepare to suffer the consequences. That is what Iran did and that is what Iran now suffers. Why we persist in describing the state of affairs as anything but this is a question deserving of answer.

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