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Home Posts tagged "Iran"

Drone Attacks on Saudi Aramco Oil Installations

Published on September 17, 2019        Author: 

Half of Saudi Arabia’s oil production has been stopped by air attacks involving drones and possibly cruise missiles on 14 September 2019. Houthi rebels in Yemen have claimed responsibility. United States Secretary of State Mike Pompeo has asserted by tweet that Iran is responsible because there is “no evidence the attacks came from Yemen” and Iran is behind “100” attacks on Saudi Arabia. The U.S. has since released satellite imagery showing immense smoke clouds. Unnamed American officials say 19 sites were struck. According to the BBC, on 16 September, ‘UK, Foreign Secretary Dominic Raab said it was not yet clear who was responsible for what he described as a “wanton violation of international law”’.

Regardless of who is responsible, the attacks are unlawful for a variety of reasons. For several of those same reasons and others, however, Saudi Arabia has no right to use military force outside its territory in a response. The limits on other states responding with military force or other forms of coercion are equally restricted. Lawful responses are available, ones that would avoid further ‘wanton’ law violations.

The important starting place of the analysis is with the fact that the Houthi rebels are not the government in effective control of Yemen, so they do not qualify as having authority to use military force on the basis of the one relevant justification in this case, United Nations Charter exception to Article 2(4), Article 51. The fact Saudi Arabia has been attacking them in Yemen does not give rise to their right to attack Saudi Arabia.

The most accurate characterization of the Houthis is as a belligerent party engaged in internal armed conflict or civil war from which all non-Yemeni armed groups—state or nonstate—are barred. Saudi Arabia has apparently based its participation in the Yemeni civil war on an invitation from Abdrabbuh Mansur Hadi. Hadi, however, fled and thereby lost effective control or status as the government in March 2015. The conflict remains undecided with the Houthis holding the capital Sanaa as well as territory that is home to more than half the population. While Hadi continues to claim ‘international recognition’ plus Yemen’s seat in the United Nations, under international law, the government for purposes of authorizing force in self-defence must for practical reasons and reasons of self-determination be based on the effective control rule as applied in the Tinoco Claims Arbitration (1 U.N. Rep. Int’l Arb. Awards 369 (1923). Read the rest of this entry…

 

Did the US Stay “Well Below the Threshold of War” With its June Cyberattack on Iran?

Published on September 2, 2019        Author: 

On 20 June 2019, the United States conducted a major cyberattack against Iran in response to Iran’s (alleged) attacks on oil tankers in the Hormuz Strait and the downing of an American surveillance drone. The attack was widely reported at the time, but on 28 August the New York Times published important new details, which included information about the legal-strategic thinking of the Americans. Specifically, it was reported that the US cybercampaign against Iran was “calibrated to stay well below the threshold of war”. Translated into legalese, this seems to imply that the Americans aim to keep their activities at a level that undoubtedly fall short of legal thresholds like article 2(4) of the UN Charter, which defines use of force, and common article 2 of the Geneva Conventions, which de facto triggers the laws of war. In this post, I discuss whether the Americans succeeded in keeping their distance from such thresholds.

The attack

In the original reporting on the attack by Yahoo! News, it was noted that the operation targeted “an Iranian spy group” with “ties to the Iranian Revolutionary Guard Corps”, which supported attacks on commercial ships in the Hormuz Strait. The precise object of attack was not specified, but it was mentioned that the group had “over the past several years digitally tracked and targeted military and civilian ships passing through the economically important Strait of Hormuz”.

The New York Times’ report explains that the cyberattack successfully “wiped out a critical database used by Iran’s paramilitary arm to plot attacks against oil tankers and degraded Tehran’s ability to covertly target shipping traffic in the Persian Gulf, at least temporarily”. The Iranians, it is noted, are “still trying to recover information destroyed in the June 20 attack and restart some of the computer systems — including military communications networks — taken offline”. Accordingly, the attack seems to have crippled the targeted system in a way that has taken it offline and, presumably, rendered it useless for months. The effects of the attack were “designed to be temporary”, officials said, but had “lasted longer than expected”. In terms of the specific target of the attack, it was reported that the target was the Iranian Revolutionary Guards’ intelligence group. Read the rest of this entry…

 

How International Law Restricts the Use of Military Force in Hormuz

Published on August 27, 2019        Author: 

We await whether an allied action will protect shipping in the Persian Gulf, and whether it will be led by the USA or by European states. The UK’s new government will support US action, while at least some other European states are reluctant to be seen as supporters of US aggressive policy towards Iran. Political arguments aside, there are important international law concerns with participation in such action, whether American or European-led (see also this recent post by Hartwig).

Absence of a Security Council mandate

The first concern is that such an action would not have a UN mandate. The Security Council can authorize military actions to ensure peace and security, even setting aside other rules of international law. Admittedly, protection of shipping might not fall under the Security Council’s competencies to maintain peace and security. Regardless, a mandate for a military action in the Persian Gulf is in any case politically unlikely.

The law of the sea

Without a mandate from the Security Council, there are strong arguments against the legality of such action. Read the rest of this entry…

Filed under: Law of the Sea, Self Defence
 
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Tanker Games – The Law Behind the Action

Published on August 20, 2019        Author: 

The conflict between some western States and Iran has reached a new phase. Last month, both sides arrested tankers off their coasts. Whereas the political intentions of either side are evident, difficult questions come up with regard to the legal assessment of these actions. They concern the extraterritorial application of a sanction regime, the law of the sea and countermeasures. The post will describe the facts related to the detention of a tanker off Gibraltar (1). It will be investigated if the regime of the transit passage (2) or of innocent passage (3) is applicable under the UN Convention on the Law of the Sea (UNCLOS). Thereafter, the post will study which State may rely on the respective rights (4). The post then will turn to the facts of the second case which happened in the strait of Hormuz (5). It will shortly mention Iran’s right to take measures for the safety of navigation beyond its territorial waters (6), and the regime of countermeasures (7). In part (8) the compatibility of military patrols by western States in the strait of Hormuz with the law of the sea will be studied.

The Facts related to the case off the coast of Gibraltar

On July 4, 2019 the British navy detained the tanker Grace 1, allegedly in the territorial waters of Gibraltar. The vessel was passing through the strait of Gibraltar after having circumnavigated Africa. The chief minister of Gibraltar declared in a press release that the vessel was seized in order to enforce EU sanctions against Syria. The decision was based on the EU regulation 36/2012, a law of Gibraltar of 29 March 2019 and a regulation of Gibraltar of 3 July 2019. According to art. 14 para. 2 of the EU regulation it is prohibited to make available economic resources to corporations listed in Annex 2 to the regulation which includes the Banyas Oil Refinery Company. The chief minister of Gibraltar alleged that the oil carried by the tanker came from Iran and was destined to the refinery; this is denied by Iran.

The EU regulation and the above-mentioned legislation of Gibraltar is applicable on the territory of Gibraltar and the territorial waters. Gibraltar claims territorial waters up to 3 nm.

Grace 1 is owned by a shipping company located in Singapore and flew the flag of Panamá. However, according to the Autoridad Marítima de Panamá the vessel was removed from the open registry of Panamá on 29 May 2019.

Transit Passage

It is generally recognized that this strait falls under art. Read the rest of this entry…

 

A Reply to Professor Kraska on the Iranian Shootdown of the US Global Hawk Drone

Published on July 17, 2019        Author: 

Prof. Kraska has argued in his latest EJIL: Talk! article that the incident regarding the downing of a US drone by Iran happened due to the scarce knowledge of international law by an Iranian Revolutionary Guard Corps (IRGC) commander. While I do appreciate Prof. Kraska’s discretion in referring to US intelligence sources, on the other hand the US President himself openly provided to the media the same assessment.

I will now concentrate on some points raised by Prof. Kraska:

  1. The US counterattack was cancelled.

This observation implies by default and without any specifics that the action conducted by Iran was in fact an attack confirming the US policy on the equivalence of  use of force with armed attack. One might disagree and follow the difference between the two as expressed by the ICJ in the Nicaragua case (para. 191). It is also difficult to understand this point of view, as the author did not state from the beginning that he was taking the US declarations on the position of the drone as a given fact. Even so, Iran’s declarations to the UN Security Council (UNSC) would have been worth mentioning to the reader for awareness purposes. In his letter, the Iranian Ambassador defines the US violation of his Country’s airspace as a “hostile act” to which Iran responded in self-defense. This is a shift on the interpretation of self-defense by Iran that actually aligns with the US view (use of force = self-defense). For more insights on the topic see here. Read the rest of this entry…

Filed under: Iran, Use of Force
 

Justifying Self-defense against Assisting States: Conceptualizing Legal Consequences of Inter-State Assistance

Published on May 23, 2019        Author:  and

Cause for thought: Israel’s airstrikes directed against Iran and Syria

Israel has acknowledged to have repeatedly struck Iranian military targets in Syria. While confrontations occur frequently, the incident of January 21, 2019 has received  particular attention. Israeli guided missiles, apparently fired over Lebanese territory (UN Doc. S/PV.8449, p. 31f), hit Iranian military targets in Syria, also leading to personal and material damage of Syria. Israel invoked its right to self-defense, apparently reacting to Iran firing a surface-to-surface missile towards the Golan Heights on Sunday, January 20 from Syrian territory. Syria’s precise role in the Iranian action beyond this territorial link remains murky.

The problem: self-defense affecting assisting states

The Israeli claim to self-defense faces various legal questions (e.g. whether the attack meets the necessary threshold or whether annexed territories can be defended). This contribution does not aim to assess the Israeli claim, but shall use this example to shed light on one problem only: May the victim of an armed attack defend itself not only against the attacker state, but also against an “assisting” state?

Even if the use of force by the defending state (here Israel) against the attacking state (here Iran) is assumed to be justified by self-defense, it also forcefully infringes upon the territorial integrity of the assisting State (here Syria), as protected under Article 2(4) UNC, and warrants justification, too. The claim that strikes directed against an actor within the territory of another state are not a prohibited use of force against the territorial state has been repeatedly rebutted.

In fact, in the Security Council debate on the January incident, Syria labelled the Israeli strikes as “acts of aggression targeting the Syrian Arab Republic”, a “gross violation of international law” (S/PV.8449, p. 31f). Iran like Russia condemned the Israeli action, emphasizing the infringement of Syria’s sovereignty. Interestingly, Israel (unlike the USA or Germany) showed awareness of the problem by holding “the Syrian regime responsible for the missile that was launched against Israel from Syrian territory” (S/PV.8449, p. 8). The IDF added that “Syria paid the price for allowing Iran to conduct attacks from its soil.”

While the permissibility of self-defense against states supporting non-state actor violence is being extensively discussed, self-defense against states assisting another state has received little attention Read the rest of this entry…

 
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UK’s Position on the Diplomatic Protection of Dual Nationals

Published on March 8, 2019        Author: 

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: 

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: 

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: 

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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