On U.S. Efforts to Take Away Iran’s Rights by (Unilaterally) Rewriting the NPT: And the Complicity of America’s Iran “Experts” in the Charade

By Flynt Leverett and Hillary Mann Leverett | The Race for Iran | October 14th, 2012

One of the more striking passages in President Obama’s address to the United Nations General Assembly last month presented Obama’s view of Iran’s nuclear rights.  Specifically, the President noted, “We respect the right of nations to access peaceful nuclear power, but one of the purposes of the United States is to see that we harness that power for peace.”

This is a more restrictive formulation than Obama and senior officials in his administration have deployed in previous statements, which emphasized that Iran has a right to “pursue peaceful nuclear energy.”  In normal English usage, the verb “to pursue” implies that, in the official American view, Iran might at least have a right to generate its own “peaceful nuclear energy.”  By contrast, Obama’s more recent phrasing implies that, in Washington’s current reading, Iran does not even have a right to generate its own nuclear power, but may have to content itself with trying to “access to peaceful nuclear power” that is generated by others.

Needless to say, all of this is far removed from Iran’s longstanding insistence on its right to enrich uranium if it chooses to do so.  And, of course, Iran has long recognized that, as a signatory to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), it must exercise that right under international monitoring.

Initially, even the George W. Bush administration acknowledged that there was, somewhere in a vague legal ether, an Iranian right to enrich—but it argued that Tehran had somehow managed to “forfeit” this right.  Such an argument did not persuade most of the lawyers working on the issue in the Bush administration, much less most of the other nations of the world.  Eventually, the Bush administration retreated to a rigid demand that the Islamic Republic obey Security Council resolutions calling on it to suspend enrichment before the United States would negotiate with Tehran—and without ever stipulating that a negotiated settlement would include an explicit recognition of Iran’s nuclear rights.  Predictably, this stance was diplomatically dysfunctional.

When the Obama administration came in, it dropped the Bush administration’s insistence on suspension as a precondition for negotiations.  But it has been even less willing than the Bush administration to acknowledge Iran’s nuclear rights—and it, too, has the diplomatic (non)results to show for its obtuseness.

From a global perspective, the positions of the Bush and Obama administrations on Iran’s right to develop indigenous nuclear fuel cycle capabilities and to pursue internationally safeguarded enrichment of uranium on its own territory make the United States a real outlier.  This reality was underscored in August at the Non-Aligned Movement (NAM) summit, convened in Tehran, where NAM members—including the vast majority of the world’s nation-states—strongly endorsed the Islamic Republic’s right to pursue uranium enrichment.  Although hardly covered in the American media, the NAM summit marked a significant international repudiation of U.S. policy regarding the nuclear rights of Iran and, by extension, other non-Western NPT signatories.

In the United States, this prompted defenders of the Bush/Obama line to spring into action.  One of them, David Albright of the Institute for Science and International Security, co-wrote a piece for the U.S. government-sponsored Iran Primer last month, see here, which argued that the NAM communique “misconstrues the NPT.”  This sparked a vigorous online exchange between Albright—who is not a lawyer or student of international legal regimes—and Daniel Joyner, professor at the University of Alabama’s School of Law and one of the legal academy’s most accomplished scholars of the NPT.  That exchange reveals much about the contribution of many Western Iran “experts” to America’s Iran debate.

According to Albright and his co-author,

“Under Article IV [of the NPT], Iran cannot claim the right to nuclear energy production—or a right to enrich at all—while under investigation for possible non-peaceful uses of these capabilities.  Iran’s right to nuclear energy is qualified—a long as there are no major lapses in its Article II obligations…the NAM communique failed to acknowledge the need for Iran to fully comply with the international treaty on nuclear weapons.  Iran tried to portray that the final communique represented a diplomatic victory for Tehran and its controversial nuclear program.  But the summit’s resolution instead undermined the Non-Aligned Movement’s credibility, since it demonstrated that developing nations cannot be counted on to deal seriously with nuclear nonproliferation issues.”

Leaving aside the patronizing tone of the last sentence—in effect, Albright and his co-author are positing that responsible Americans and Europeans (the rightful masters of the universe) cannot possibly think non-Westerners are “dealing seriously” with important international issues unless those non-Westerners simply accept, uncritically, the views advanced by their Western superiors—this statement is wrong on several substantive points.  Among other things, it is wrong as an interpretation of the NPT and in its assertion that there have been “major lapses” in Iran’s Article II obligations.  These features prompted Daniel Joyner to offer the following observations on his blog, Arms Control Law, see here:

“Why is it that in the nonproliferation area everyone, including engineers, physicists, chemists and general policy wonks, think they can do legal interpretation?  You won’t find me writing articles about the technical aspects of missile capabilities, or the internal physics of a warhead core. I know these things are outside of my training and qualification to do. But apparently everyone thinks they can do legal analysis. With respect, I think David should stick to obsessing over satellite pictures of tarps at random military bases in Iran.”

On our own, we found Joyner’s comment mildly amusing.  But it clearly touched a nerve in David Albright, see here, who responded with a remarkable broadside characterized by ad hominem invective and fallacious arguments from authority:

“I have belatedly read Joyner’s rant about our Iran Primer article with amusement and likewise find his chorus of lackeys a pathetic bunch. Now I understand that Joyner’s blogging is supposed to be an ego trip for him and a safe haven for commentators, but Joyner’s blogging is particularly egotistical and, with respect, off-the-wall.  In the comments and in Joyner’s writings, I can see the deep ignorance of the NPT.  I certainly see no need to revise our analysis and statements in our Iran Primer article. We have consulted with many lawyers who find Joyner’s analysis deeply flawed and agenda driven… I would recommend that Joyner have his work reviewed by competent lawyers.  He would need to revise most of his work.”

Joyner responded vigorously, see here, making the point, among his other rejoinders, that he has published two peer-reviewed books, with Oxford University Press, on interpreting the NPT.  But, for our purposes, the most important part of his response concerns the public posture adopted by too many Washington, DC-based policy “experts” and the motives for their adoption of such a posture.  Joyner’s analysis focuses on nonproliferation specialists, but, in our view, it also applies very well to many who claim expertise on other Iran-related issues:

”A colleague in D.C. once said this to me about the U.S. nonproliferation epistemic community—and by this community we both meant the entirety of the various NGOs and think tanks and the few University based centers that focus on nonproliferation studies in the U.S.:  that the community is very D.C. centric, cliquish, incestuous and self-referential, to its detriment. These words have really stuck with me, because I find them to be absolutely true, and both insightful and parsimonious as I’ve observed the community over the years.

I would take it even further and say that in addition, in my opinion, the whole U.S. based nonproliferation experts community—with few exception—is systematically biased toward support of USG positions on all the top nonproliferation issues.  They maintain an essentially common narrative and set of emphases that is in line with, and that provides support for, the narrative and emphases of the USG, with only the smallest amounts of quibbling around the edges (Albright will talk all day long about his “aluminum tubes” work).  I think that there is in the work of the U.S. nonproliferation epistemic community far too little real, independent evaluation and criticism of USG positions.  As I see it, the U.S. nonproliferation community almost acts as a second wave of apologists for U.S. policy, after the USG itself—though it sometimes shrouds this effort in a lot of technical and sometimes academic-looking jargon.  But in the end what the U.S. nonproliferation community ABSOLUTELY DOES NOT DO is serve in the role of an independent, rigorous, analytical check on USG nonproliferation positions, as it could and should do, and as the nongovernmental nonproliferation community in other countries does.  And I think there are some clear reasons for this.  Much more so than in other countries, the members of the U.S. based nonproliferation community tend, with very few exceptions, to

1)  have been employed by the USG in the past;

2) want to be employed by the USG in the future;

3) be funded by or hope to be funded by the USG; and/or

4) want to maintain the access and good favor they have with USG officials, for the sake of information and for the sake of invitations to cool events, etc.

Basically what I’m saying is that they are biased towards the positions of the USG, because of their overly close personal and institutional associations with the USG, and because they see their own professional success as being tied to the favor of the USG.

I think there’s also a significant degree of media whorishness at work here as well.  As a colleague once wrote to me while we were discussing this topic: ‘I think there is another—very important—aspect you may be missing that may even over-ride the ones you mention:  aside from taking USG positions, the non-proliferation community likes the high-media profile allotted it, when it loudly tut-tuts 3rd world nuclear arms capacities (or enemies of the west’s nuclear arms capacities), whether or not such capacities are consistent w/ NPT and/or CSAs.  People like being quoted, appearing on TV, and generally feeling important.  The Non-proliferation community “loves” the attention and basks in this glow, and though they would “privately” acknowledge that Iran is not so far outside bounds (if at all), they nonetheless pass on statements and innuendo to media indicating the alleged dangers and thus wittingly or not, fan the flames.  Others like ISIS simply pass on opinions dressed as expert findings.  It just would not do for Non-proliferation types to tell the media:  “well, no, Iran’s program is actually not a threat to world peace yet” like the DNI did.’”

Not surprisingly, Joyner sees David Albright as embodying this description, as he points out in criticizing some of Albright’s analysis on Iran’s nuclear activities:

“All [Albright] really does is make provocative speculations about what “could” be happening at locations in Iran, and what “maybe” Iran will do in the future.  And it’s so clear that he’s working on the basis of a set of unproven, but firmly held assumptions about Iran—the same assumptions he had about Iraq, for which his work has been widely discredited—that they have a nuclear weapons program, and he is ginning up all the evidence he can that might support that assumption, speculating about what that evidence may mean, but only in a direction that would tend to support his preexisting assumption.  There’s no rigor here in thoroughly considering and evaluating other possible explanations for the same observations—like a real academic or even a real, quality NGO analysis would.  Maybe it’s because David has never done PhD level academic work, and so he doesn’t understand what is expected of quality scientific analysis. But this is an assumption-driven piece of provocative speculation that serves only to provide support for the USG’s contentions about Iran’s nuclear program. That’s just what he infamously did in the lead up to the 2003 Iraq war too. That’s not rigorous and independent analysis. That’s biased and low quality work…

I know very well how the D.C. nonproliferation crowd feels about me… They think my work is pro-Iranian and generally pro-developing country, and anti-U.S.  They say I’m biased and agenda driven… Am I personally sympathetic to or biased towards the policies of the Iranian government? Absolutely not… However, do I think that the legal arguments of the current government of Iran deserve a fair and independent and rigorous hearing and analysis by the international community, just as the legal arguments of any other government do?  Yes I do, for many reasons, not least of which is the prevention of unnecessary and unjust economic sanctions and possibly war against the Iranian people, and the fairness and perceived legitimacy and relevance of international law.  I don’t see anyone else stepping up to make these arguments, and make sure that they are taken seriously in the West, and that’s why I keep doing it.

Am I sympathetic to developing countries’ positions in the nuclear energy area generally?  Yes I am.  I admit that freely.  And it’s because I genuinely think that they are bullied by the West in the nuclear area, as in many other areas, for a whole range of political and economic reasons, and that the legal advisors of Western governments have concocted erroneous legal arguments to give perceived credibility to these policies.  I can’t change the policies and the politics they’re based on, but I think there is a real need to lend whatever professional abilities I have to making sure that their legal arguments are made at a high level of competence and sophistication, and are given due consideration by the international community.  Again, no one else seems to be doing this in the West, and so I keep doing it.  But I maintain that my legal analysis is independent and essentially objective, and that I follow the proper analysis of a legal source to its most persuasively correct conclusion, no matter what that conclusion is.

I think that the U.S. nonproliferation community, linked so closely as it is to the USG itself, generally takes a negative view of my work for a number of reasons.  One of the primary reasons is that they are so used to being able to effectively tell the rest of the world what to think about the NPT regime, and how to interpret the law associated with it, that when someone independent comes along and poses a genuine intellectual challenge to the warped and USG driven legal views of the NPT regime that they’ve been spouting for decades, they genuinely don’t know what to do about it.  With the errors and intellectual bankruptcy of their legal arguments laid bare, they make only feeble attempts to defend themselves substantively because, honestly, they don’t have very good substantive arguments to make and they never have.  The only argument they have left to make is to argue in desperation that the challenger is biased and agenda driven—which is in the end the ultimate irony, because it’s precisely their own bias and USG-centric agenda that has made their arguments so weak, and has provided the legal errors that the challenger now corrects, to the persuasion of everyone else in the world.”

Our compliments to Prof. Joyner.

Related articles

• NAM demands that Israel join the NPT without further delay (alethonews.wordpress.com)
• IAEA resolution casts doubt on benefit of NPT: Iran (alethonews.wordpress.com)
• Iran Urges Israel to Join NPT (en.rian.ru)
• NAM calls for total nuclear disarmament (alethonews.wordpress.com)
• What If Iran Leaves the NPT? (nationalinterest.org)

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