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‘With Friends Like That, Who Needs Enemies?’: Extraterritorial Sanctions Following the United States’ Withdrawal from the Iran Nuclear Agreement

Published on May 29, 2018        Author: 
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On Monday 21 May 2018, the US Secretary of State announced that, as a result of its withdrawal from the Joint Comprehensive Plan of Action (‘JCPOA’ or ‘Iran Nuclear Deal’), the United States is set to impose the ‘strongest sanctions in history’ against Iran. While the remaining states parties are committed to preserve the Iran Nuclear Deal, whether the JCPOA can in fact survive in the face of the US change of heart is a matter of uncertainty. Of particular concern is the effect that the resumption of US economic sanctions will have on non-US companies that have flocked to Iran in the aftermath of the JCPOA. Unlike the sanction programmes implemented against Iran by various states before 2015, the US measures present distinctively extraterritorial features, directly targeting foreign companies carrying out business with Iran despite the absence of a significant connection with the United States. The European Union has already vowed to take action in order to protect its trade interests and to ‘block’ unwarranted interference by the United States. As tension in the transatlantic relations mounts, serious questions arise concerning the legality of the US sanctions regime under international law. This post will focus in particular on the compatibility of these measures with the international rules governing the assertion of jurisdiction by states. It will be shown that, in the absence of an adequate jurisdictional basis, the extraterritorial aspects of the US sanctions regime must be considered unlawful. Some measures that the European Union and other JCPOA states can take in order to react to these wrongful acts will further be considered. Despite the availability of legal means to counter the US sanctions, a negotiated settlement between the United States and its economic partners remains the most viable solution to this standoff.

The long arm of the US sanction regime

Despite the Trump administration’s lack of specific directions on the issue, the US Treasury Department’s Office of Foreign Assets Control (OFAC) recommends that persons engaged in transactions with Iran:

‘should take the steps necessary to wind down those activities to avoid exposure to sanctions or an OFAC enforcement action under U.S. law after August 6, 2018, or November 4, 2018, depending on the activity’ (Question 1.4).

Of particular concern for foreign firms are the provisions contained in Executive Order 13590 (providing for an almost complete ban on the Iranian petrochemical sector), Executive Order 13622, and Executive Order 13645 (which prohibit foreign financial institutions from carrying out a vast set of transactions on behalf of Iranian entities). As recently as August 2017, Congress also vested the US President with ample powers to take measures against:

‘any person that … knowingly engages in any activity that materially contributes to the activities of the Government of Iran with respect to its ballistic missile program, or any other program in Iran for developing, deploying, or maintaining systems capable of delivering weapons of mass destruction’ (Section 104 of the Countering America’s Adversaries Through Sanctions Act).

Alongside their broad content, these measures all are characterised by an unspecified — and potentially unlimited — jurisdictional scope. Through these provisions, the United States seeks to compel not only US persons, but ‘any person’ — wherever located and regardless of their connection with the United States — to refrain from engaging in certain transactions with Iran. This is problematic in several respects. Read the rest of this entry…

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Filed under: Iran, Nuclear Weapons, Sanctions
 

The Trump Presidency and the Iran Nuclear Deal: Initial Thoughts

Published on November 17, 2016        Author: 
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Well it’s been a dramatic and, for many of us, soul searching week since last Tuesday’s presidential election in the U.S. resulting in Donald Trump being elected the next U.S. president. I’ll hold back on political editorializing in this space. We all have our views and there are other fora in which to express them.

Among the many issues that will be affected when Trump assumes the U.S. presidency in January is of course the Iran nuclear issue. Trump famously stated on the campaign trail: “My number one priority is to dismantle the disastrous deal with Iran.”  I don’t actually think this is his number one priority, but nevertheless a President Trump and his foreign policy team will most definitely not be the champions of the Joint Comprehensive Plan of Action (JCPOA) that President Obama and Secretary of State John Kerry have been.

Of course this all comes as a shock to most of us who work in the nuclear nonproliferation area. I genuinely thought that the JCPOA would, under a Hillary Clinton presidency, perhaps not be as positively supported by the U.S. administration as it had been, but that nevertheless the U.S. would seek to keep its commitments under the deal.  And as a side note, I also thought that this meant I probably wouldn’t be writing that much more about the JCPOA, and I welcomed that.

But now we are faced with a new reality and a lot of uncertainty about specifically how President Trump and his foreign policy team will treat the JCPOA, as well as whether Republicans in Congress will now – with Trump as president and willing to sign it into law – be successful in imposing new economic sanctions on Iran through statute.

I thought I would just offer a few initial observations and thoughts about the various questions that we now face relative to the JCPOA:

Read the rest of this entry…

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Is there a place for sovereign immunity in the fight against terrorism? The US Supreme Court says ‘no’ in Bank Markazi v. Peterson

Published on May 19, 2016        Author: 
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The US Supreme Court’s judgment of 20 April 2016 in the case of Bank Markazi, aka The Central Bank of Iran, Petitioner v. Deborah Peterson, et al. highlights the increasingly isolated nature of US practice on sovereign immunity. As well as addressing issues of constitutional law, the judgment is also significant from an international law perspective; the highest jurisdiction of the US took a dangerous step toward the effective application of its terrorism exception to sovereign immunity.

The terrorism exception was introduced to the Foreign Sovereign Immunities Act of 1976 (FSIA) by an amendment made in 1996, and then further revised in 2008.  28 U.S.C. §1605A reads:

A foreign state shall not be immune from the jurisdiction of courts of the United States or of the States in any case […] in which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act if such act or provision of material support or resources is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

The court can hear a case under this provision provided the foreign State has been designated as a State sponsoring terrorism by the Department of State and the claimant or the victim was at the time of the act a US national. This law aims at providing justice for victims through massive civil liability judgments, punishing foreign States committing or sponsoring terrorism, and discouraging them from doing so in the future.

In this post I focus not on the content of the judgment, but rather on the impact of US practice, which has recently seen all assets of the Iranian Central Bank located in the US subject to execution, on international law. Read the rest of this entry…

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Security Council Resolution 2231 and the Joint Comprehensive Plan of Action on Iran’s Nuclear Program

Published on July 27, 2015        Author: 
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Last week I did a couple of posts elsewhere on the Joint Comprehensive Plan of Action (JCPOA), agreed on July 14 between the P5+1 and Iran regarding Iran’s nuclear program. See here and here. These posts may be of interest in explaining the essential agreement contained in the JCPOA, and in examining some of its key legal implications.

The JCPOA is the culmination of twenty months of negotiations between the P5+1 and Iran, since the initial Joint Plan of Action (JPOA) was agreed by the parties in November 2013. I wrote a post discussing the JPOA here at EJIL:Talk! at the time it was agreed.

I’d like to focus this post on the unanimous passage by the U.N. Security Council on July 20 of Resolution 2231, which can be found here. Resolution 2231 comprises 104 pages of text, inclusive of two annexes, one of which is the entire JCPOA text. I mention this because my primary impression in reading over Resolution 2231 and is annexes for the first time, was frankly astonishment that the parties had been able to agree on such an amazingly complex, thorough and comprehensive diplomatic accord. I was also impressed by the precision of the text of Resolution 2231 itself (apart from a couple of typos) in implementing, in what appears to be a very sophisticated and, as far as I can tell, correct way, the agreement reached by the parties on July 14.

The JCPOA itself and Resolution 2231 appear to represent a major success of international diplomacy, as well as a significant achievement of international law in facilitating the implementation of the diplomatic accord. Again, it is difficult to overstate the complexity of the issues that had to be resolved among the parties to arrive at both the JCPOA and Resolution 2231. And the specificity with which these issues were addressed in both documents – down to weights and measures and dates of implementation – is frankly astonishing, and far exceeds my expectations.  And so I compliment all of the diplomats and lawyers involved. Read the rest of this entry…

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The ECJ and (Mis)interpretation of Security Council Resolutions: The Case of Sanctions Against Iran

Published on December 23, 2013        Author: 
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On 28 November 2013, the ECJ set aside the judgment of the General Court of the EU in case T‑509/10, Manufacturing Support & Procurement Kala Naft v Council, which had annulled, in so far as they concerned the applicant (an Iranian company owned by the National Iranian Oil Company), the various EU restrictive measures targeting persons and entities listed as being engaged in nuclear proliferation (including Council Decision 2010/413/CFSP). However, in my view, the ECJ was wrong in considering that the UNSC Resolution 1929 (2010) provided a basis for the challenged EU measures as the Court wrongly interpreted the SC resolution as enabling the European Council to conclude that trading in key equipment and technology for the gas and oil industry was ‘capable of being regarded as support for the nuclear activities of [Iran]’.

In its judgment, the ECJ, recalls that the effectiveness of judicial review requires that the Courts of the EU are to ensure that the decision challenged ‘is taken on a sufficiently solid factual basis’ (at para. 73), and observes that in order to assess the lawfulness of the General Court’s review of the measures, it shall examine ‘the way in which the General Court identified and interpreted the general rules of the relevant legislation’ (para. 74). The ECJ held that “there is nothing in the judgment under appeal to indicate that the General Court took into account the changes in European Union legislation after Security Council Resolution 1929 (2010) (para. 75, emphasis mine). Read the rest of this entry…

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Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

Published on June 22, 2013        Author: 
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A recent statement issued by the EU entitled ‘Common messages regarding EU sanctions against the Iranian nuclear programme’, posted on the websites of various EU embassies in Tehran (and translated into Farsi), attempts to sum up the reasons which have allegedly justified not only the sanctions on Iran decided by the UN Security Council, but also those adopted by the EU itself, which, as the document make clear, are ‘autonomous sanctions, beyond the ones imposed on Iran by UNSC Resolutions’. However, the recent EU statement, like others making allegations against Iran with respect to its nuclear programme, is vague and imprecise in terms of content of the obligations allegedly breached by Iran. It states that ‘[s]anctions are a response to Iran’s violations of its international obligations’, but it fails to give a precise indication of exactly what obligations would have been breached. In fact, it is noteworthy that the statement limits itself to pointing to the violation by Iran ‘of several resolutions of the United Nations Security Council and IAEA Board of Governors resolutions’, and does not state explicitly that Iran would have breached either its Safeguards agreement with the IAEA, or the NPT itself (which mandates in its Article III the implementation of such safeguards). I have shown previously (here and here on EJIL:Talk!) that it is very dubious that EU sanctions on Iran agreed in 2012, including the comprehensive oil and gas embargo and the freezing of assets of the Iranian central bank, actually comply with both procedural and substantive conditions applicable to countermeasures under the 2001 ILC Articles on State Responsibility.

The purpose of this post is to make two further points. First, the IAEA, in making findings (in Sept 2005) of non-compliance by Iran, has not applied properly applicable rules (both procedural and substantive) in its assessment of Iran’s conduct with respect to its obligations under Iran’s NPT Safeguards Agreement’ (CSA). This implies that the legal validity of such finding is, to say the least, very doubtful.

Second, an authoritative legal determination of the issue of Iranian compliance (or non-compliance) with the obligations assumed under the CSA, or a pronouncement on the existence and the materiality of a breach by Iran (in the meaning of ‘material breach’ under Article 60 of the Vienna Conventions) of the latter, has not yet been made and would indeed require the involvement of the ICJ or of an arbitral tribunal. Read the rest of this entry…

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People’s Justice: Addressing the 1988 Massacre of Political Prisoners in Iran

Published on October 2, 2012        Author: 
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 Parisa Zangeneh is currently finishing her LL.M. at the School of Oriental and African Studies, and she completed her LL.B. at the University of Edinburgh and her B.A. at McGill University. She would like to thank those who provided assistance on previous drafts of this note.

“It is far better for an Imam to err in clemency than to err in punishment.”  Ayatollah Montazeri

Introduction

The victims of bloodshed, torture, and horror deserve justice, and selective justice is no remedy. The humanitarians of the world have exercised a discriminatory approach in selecting which human rights atrocities on which to focus, yet this does not provide redress to the invisible suffering of those who, for perhaps political reasons, have been overlooked. This is the case of those who suffered and died in the 1988 massacre of political prisoners in Iran, and this is why the establishment of a People’s Tribunal to address what happened to them, their families, and Iran is so important. To think that this happened in 1988, but that work is actively underway to address these atrocities only at this late stage, in 2012, highlights the need for uniform and intense scrutiny on all crimes on this scale – especially those that have been ignored by the international community.

 An important consideration before the People’s Tribunal will be the international criminal implications of the 1988 political prisoner massacre. The crime of genocide will likely feature in this discussion, considering that some of those who died were atheists or agnostics, and there is an unanswered question of whether these groups fulfill the “religious group” criterion in the 1948 Genocide Convention definition of that crime. Alternatively, or perhaps concurrently, charges of war crimes and/or crimes against humanity may be easier to prove. Read the rest of this entry…

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Update on State Immunity

Published on September 7, 2012        Author: 
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For those interested in recent developments in domestic state immunity acts, see earlier posts here and here, Canada has now announced that Iran will be formally listed as a state sponsor of terrorism. Canada has closed its embassy in Iran and declared personae non gratae all remaining Iranian diplomats in Canada. The news release from the Canadian Department of Foreign Affairs and International Trade (DFAIT) can be found here. Earlier attempts to sue Iran in Canada’s courts can be found herehere and here.

Update: In a separate news release, now available here, Canada has announced that it is listing Syria and Iran as state supporters of terrorism.

 

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Countermeasures vs. Collective Security? The EU Sanctions Against Iran

Published on June 22, 2012        Author: 
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 Pierre-Emmanuel Dupont, is a lawyer based in Paris,France. His practice is centered on public international law and international investment. His article “Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran” will appear shortly in (2012) 17 Journal of Conflict and Security Law but is now available here

The additional sanctions agreed in early 2012 by the European Union against Iran in relation to its nuclear program (see Council Decision 2012/35/CFSP of  23 January 2012, and Council Regulation 267/2012 of 23 March 2012), including an embargo on imports of Iranian oil and the freeze of assets of the Iranian Central Bank, go well beyond those mandated by the successive UN Security Council resolutions (Res. 1737 (2006); 1747 (2007); 1803 (2008) and 1929 (2010); for a comprehensive analysis of Res. 1737 and Res. 1929, see e.g. D H Joyner, ‘The Security Council as a Legal Hegemon’, (2012) 43 Georgetown Journal of International Law 225-257, at 238-248.). Given their unprecedented extent, they raise various specific issues regarding their lawfulness under international law. I have written an article (a prepublication version of which is available here) in the forthcoming issue of the Journal of Conflict and Security Law, which aims at characterizing these measures. In this piece I argue that the EU measures cannot be characterised as measures of retorsion or as sanctions. Rather they are to be regarded as countermeasures. However, characterising these measures as such raises the question whether it is open to States or regional organizations to take countermeasures in circumstances where the UN Security Council has already adopted measures under Chapter VII of the Charter.

According to the ILC, a retorsion  is ‘unfriendly’ conduct ‘which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act’ (see Commentaries on the Draft articles on Responsibility of States for Internationally Wrongful Acts, in 2001 ILC Yearbook II(2), at 128). While it is true that measures restricting or impeding trade relations (in general or in specific areas), such as an embargo, are a typical example, often quoted, of retorsion (see ILC Commentaries on State Responsibility Articles at 128), it remains that, as it has been rightly noted, measures of the kind of those enacted by the EU in January 2012 ‘go beyond mere expressions of disapproval and involve the suspension of the performance of international legal obligations otherwise owed to Iran’ (N. Jansen Calamita, Sanctions, Countermeasures, and the Iranian Nuclear Issue, (2009) 42 Vanderbilt Journal of Transnational Law 1393-1442, at 1397). Indeed, in this case, the EU measures actually imply non-performance of various international legal obligations owed to Iran, for instance treaty commitments under BITs (see e.g. Iran-Germany BIT, 1965, Iran-France BIT, 2003). It may also be considered that the oil embargo, and in particular the mandatory termination of existing contracts related to import, purchase and transport of petrochemical products, raises prima facie an issue of compliance with a customary standard of investment protection. Read the rest of this entry…

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‘Crowing’ About Iran Sanctions Should Stop

Published on May 25, 2012        Author: 
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Daniel Joyner is Professor of Law at the University of Alabama School of Law. His research interests are focused in nuclear weapons nonproliferation law and civilian nuclear energy law. He has also written extensively on international use of force law, and on the UN Security Council. He is the author of International Law and the Proliferation of Weapons of Mass Destruction (Oxford University Press, 2009) and Interpreting the Nuclear Nonproliferation Treaty (Oxford University Press, 2011).

There is a good bit of “crowing” going on at the moment by US officials, particularly about the role of Western financial sanctions in “bringing Iran to the table” for negotiations with the International Atomic Energy Agency (IAEA) and the West about its nuclear program. For example, US Treasury Under-Secretary for Terrorism and Financial Intelligence David Cohen said regarding these sanctions:

“They [Iran] are increasingly isolated — diplomatically, financially and economically … I don’t think there is any question that the impact of this pressure played a role in Iran’s decision to come to the table.”

This assessment, however, reflects a good deal of peripheral blindness: both about the past and about the future of the Western sanctions program.

If the question is: has the policy of institutional escalation at the IAEA and the UN Security Council (UNSC), and the imposition of sanctions on Iran by the UN, the US and the European Union (EU), had an influence on Iran’s actions and the development of a crisis between Iran and the West over its nuclear program, the answer is definitely yes. But not in the way these crowing US officials think.

The reasons that Iran stopped implementing its Additional Protocol safeguards agreement with the IAEA back in 2005, pulled back from meaningful discussions with the IAEA and the West at the same time, have since become entrenched in their determination not to give in to Western pressure, and even threatened to block the straits of Hormuz and send world oil prices skyrocketing, have been explicitly stated by Iran to be the decisions by the IAEA and the UNSC requiring Iran to cease its enrichment of uranium beginning in 2005, and the sanctions that have been imposed by the UNSC, and unilaterally by the US and the EU, since that time.

To put it simply, the West’s sanctions program is the reason that Iran pulled back from the negotiating table in the first place.

To now claim that Western sanctions have had the successful effect of bringing Iran back to the negotiating table is to ignore this broader view of the history of the crisis over Iran’s nuclear program, and the material role that Western sanctions have played in actually creating and intensifying the crisis. Read the rest of this entry…

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