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UK’s Position on the Diplomatic Protection of Dual Nationals

Published on March 8, 2019        Author: 
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The UK Government decided today to exercise diplomatic protection over Nazanin Zaghari-Ratcliffe, a dual UK-Iranian national imprisoned in Iran (and one of a number of people who have been in such a position over the past few years). In this post I just want to briefly flag a possible evolution in the UK’s legal views on the diplomatic protection of dual nationals by one state of nationality against the other state of nationality. The traditional position was of course that diplomatic protection could not be exercised in such circumstances.

In its 2006 Articles on Diplomatic Protection, the ILC adopted a more flexible rule, which relied on a test of predominant nationality. Article 7 ADP thus provides that ‘A State of nationality may not exercise diplomatic protection in respect of a person against a State of which that person is also a national unless the nationality of the former State is predominant, both at the date of injury and at the date of the official presentation of the claim.’ In the ILC’s view this more flexible rule was one of customary international law, a position embraced by some states but not others (see, e.g., here for an enthusiastic endorsement of the rule by Norway on behalf of Scandinavian states, and a more skeptical position of Japan).

The UK’s position on Article 7 has been as follows (A/CN.4/561/Add.1, p. 7):

Draft article 7 sets out a general rule of international law that a State will not support the claim of a dual national against another State of nationality. The Government of the United Kingdom will not normally take up the claim of a national if the respondent State is the State of second nationality. However, exceptionally, the Government may take up the claim of a person against another State of nationality where the respondent State has, in the circumstances leading to the injury, treated that person as a British national. However, we consider that the test for “predominant nationality” included in draft article 7 requires further clarification.

Now, obviously, it is not easy to argue that Iran has treated Zaghari-Ratcliffe as a British national – in fact Iran rejects the other nationality of its dual nationals, treating them formally as Iranians only, even if clearly many of them are being detained precisely because of their dual nationality. So it seems more likely that Foreign Office is now endorsing more expressly the predominant nationality rule that it was not very keen on when the ILC ADP were being discussed.

In that regard, I would like to flag for readers an opinion that John Dugard, who was the ILC special rapporteur on diplomatic protection, and barristers Tatyana Eatwell and Alison Macdonald have written for Redress on Zaghari-Ratcliffe’s situation, arguing precisely that the UK could exercise diplomatic protection over on the basis that her British nationality was predominant, and explaining how the predominance test was satisfied on the facts. It seems quite possible, if not likely, that the UK government’s views now substantially align with the legal and factual analysis in the Dugard/Eatwell/Macdonald opinion, which is well worth a read.

Filed under: EJIL Analysis
 

‘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…

Filed under: Iran, Nuclear Weapons, Sanctions
 

What Will a Trump Administration Mean for International Agreements with the United States?

Published on December 13, 2016        Author: 
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On 20 January 2017, Donald Trump will become the 45th President of the United States. During the campaign, he spoke often about terminating landmark international agreements concluded by the Obama administration, including the Paris Agreement on climate change, the Iran nuclear deal, the Trans-Pacific Partnership and the normalization of relations with Cuba. Predicting what might actually happen in a Trump administration is difficult, because his statements as a private citizen, candidate and president-elect have been inconsistent. Should he wish to follow through on the campaign rhetoric to take immediate action on these issues, what can the president actually do unilaterally? Decisions to terminate these agreements raise questions under both international and domestic law. The United States is bound under international law when it becomes a party to an international agreement, and also has some limited obligations upon signature. Under US constitutional law, the presidency is at its most independent and powerful in dealing with foreign relations. While that power is not unlimited, soon-to-be President Trump could arguably fulfil all of those campaign promises without violating domestic or international law.

Paris Agreement on Climate Change

On 3 September 2016, the United States ratified the Paris Agreement on climate change which entered into force on 4 November 2016. The agreement was concluded under the auspices of the United Nations Framework Convention on Climate Change (“UNFCCC”) which was ratified by the United States in 1992 and entered into force in 1994. The Paris Agreement establishes no binding financial commitments or emissions targets. The states party are bound only to formulate and publish national plans for reducing greenhouse gas emissions to hold the increase in the global average temperature to “well below” 2°C above pre-industrial levels and pursue efforts to reduce the increase to 1.5°C. The United States is the second largest emitter of greenhouse gases in the world, and its participation in the Paris Agreement was critical to bringing other states, particularly China, on board. Read the rest of this entry…

 
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OFAC’s Settlement with Commerzbank AG: Coerced Voluntary Settlements of the Competitively Disadvantaged

Published on March 20, 2015        Author: 
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Nine months after the Office of Foreign Asset Control’s largest ever settlement with French BNP Paribas (see my previous post), OFAC is striking again. On March 11, OFAC settled for the first time with a German financial institution, Commerzbank AG, for alleged violations of the U.S. sanctions regulations. Commerzbank is the thirteenth foreign financial institution (and eleventh European one) to settle with U.S. authorities (see e.g. OFAC’s Selected Settlement Agreements) for processing electronic funds on behalf of its Cuban, Iranian, Burmese and Sudanese customers, among others. (Settlement Agreement [26-30]). In exchange for Commerzbank’s agreement to pay OFAC $258 million (less than a third of what BNPP agreed to pay OFAC alone), OFAC pardoned the bank of all civil liability in government-initiated cases for its alleged wrongful conduct, thought to have started in 2002. (See Settlement Agreement [39]).

The total amount paid to all relevant U.S. authorities (United States Department of Justice, New York County District Attorney’s Office, Federal Reserve Boards of Governors and the Department of Financial Services of the State of New York) is $1.45 billion. This post considers only OFAC’s actions toward Commerzbank and calls into question OFAC’s jurisdiction to enforce its sanctions regulations and penalties abroad.

Allegations against Commerzbank

Commerzbank allegedly violated the U.S. sanctions regulations by routing non-transparent payment messages for states, entities and individuals subject to U.S. sanctions through the U.S. financial system between 2002 and 2010. By removing or omitting references to U.S.-designated entities from SWIFT’s MT103 and MT202 payment messages, Commerzbank also allegedly caused U.S. financial institutions to violate U.S. law. (Settlement Agreement [3-5, 1-9, 11, 20]). The first question we must ask is why Commerzbank, a German entity, would have to follow U.S. sanctions regulations?

OFAC’s main argument is that the alleged wrongful transactions went through the U.S. financial system, and, therefore, under the territoriality principle, U.S. law applies. Without repeating myself (see my previous post), I would like to stress that Commerzbank, incorporated in Germany and initiating its transactions in Germany, has a much stronger jurisdictional link to German than to U.S. law. In the settlement, OFAC acknowledges that Commerzbank agrees to OFAC’s requests only to the extent permitted by local law. (Settlement Agreement [44]). 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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The Iranian Charter of Citizens’ Rights

Published on December 10, 2013        Author: 
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 Nazila Ghanea teaches international human rights law at the University of Oxford.

100 days into his presidency, Iranian President Hassan Rohani delivered a partial result on the nuclear issue (see EJIL:Talk! discussion by Dan Joyner)and released his draft Charter of Citizens’ Rights (henceforth ‘the Charter’) on 26 November 2013. Though the Presidential website offers content in 7 languages including English, the draft Charter has only been made available in Persian.

It is reported that the President consulted religious elites, experts, activists and academics within Iran with regard to this draft Charter, but not the Iranian judiciary. Academics, thinkers, universities and others have been asked to send their comments on the draft Charter to the legal deputy of the Iranian President within a month so that it can be revised and a final version released. So what feedback can one give the President’s office on the draft Charter? What does the Charter add and which rights does it guarantee? Does it fulfill the President’s aim (see here) that citizens’ rights make “all Iranians feel they are part of one nation, one identity, under one umbrella they can feel proud of”?

The Charter itself announces that it will not have an effect on existing rights, laws and obligations or on international conventions (article 1.1). The Charter states that it declares the most important citizenship rights and the direction of the government’s human rights policy, but that it does not intend to create new rights or obligations (article 1.6). The importance of the Charter, therefore, lies in the fact that it is declaratory of the Islamic Republic of Iran’s understanding of the most important citizens’ rights that it will henceforth prioritise in its activities. Though it should not impact existing UN human rights obligations according to article 1.1, this ‘prioritisation’ suggests that there will be a notable impact on Iran’s future human rights compliance. This is underscored in the follow-up suggested within the Charter, for example that there will be three-monthly updates to the Presidency regarding activities concerned with advancing Charter rights (article 15). Such Charter activities may well overshadow action on other human rights obligations binding upon Iran and on recommendations stemming from international human bodies. Read the rest of this entry…

 
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