Tag Archive | "Iran"

Iran’s Aspiration to Establish Peace and Security in the Middle East: Closer to Hegemony or International Law?

Photo Credit: AP Photo

A few hours after the Iranian presidential election, which was held on May 19, 2017, the re-elected moderate President Hassan Rouhani characterized the election as a “victory of peace, reconciliation against tension and violence” in his speech addressing the Iranian nation. According to Rouhani, “the message of [the Iranian] people [in this election] was expressed clearly in the election and today, the world knows well that the Iranian nation has chosen the path of interaction with the world, away from violence and extremism.” Rouhani’s statements are extensions of his statements on Iran’s aspiration to form a global coalition against Islamic extremism (any form of Islam that opposes democracy, the rule of law, individual liberties and mutual respect and tolerance of different faiths and beliefs) instead of the armed coalition in the Middle East.

Considering the latest developments in Iran, this post examines some aspects of Rouhani’s attitude towards security and peace in the world and more importantly in the Middle East.

During the General Assembly of the World Ahl-ul beit Forum that was held on August 15, 2015 in Tehran, Iran’s President Hassan Rouhani remarked,

“Our strength, scientific, moral and political power has never been and will be never used against any of the Muslim countries and neighbors in our region. With our ability and strength, we want to establish peace, stability and security in this region… In Yemen, Iraq, Lebanon, Syria and Palestine, there is no difference between a Shia and a Sunni. We want peace, security and brotherhood for all and development for the whole region.”

Rouhani’s statement at the forum has brought the question to mind of whether Iran is pursuing hegemonic power – influence and political dominance of a state or country over another – in the Middle East or Iran’s new administration is pursuing an attitude closer to international law. Answering this question depends on some critical challenges facing Iran.

After a long-running nuclear tension between Iran and the world powers, the P5+1 and the EU, Rouhani’s administration team succeeded in reaching a Nuclear Deal with those powers on July 14, 2015 in Vienna. In summary, the Nuclear Deal prevents Iran from obtaining nuclear weapons. The main purpose of the Nuclear Deal was to ensure the purely peaceful and civilian nature of Iran’s nuclear activities. The Nuclear Deal was an important achievement of Rouhani’s administration, which prepared the solution grounds of the Iranian nuclear crisis. In continuation of this important progress, Iran found an opportunity to build new connections with its neighbors and the EU and non-EU countries. In any case, improvement of Iran’s international and regional relations and, therefore, the growth of Iranian power in the region were underlying concerns of some neighboring countries, such as Saudi Arabia. Saudi officials believe that “increased Iranian power will lead to political mobilization by Shia inside the Sunni-ruled Gulf states.” Nevertheless, Rouhani stated in reaction that Iran is not seeking regional hegemony but is rather working for a strong Middle East and better relations. In this regard, Rouhani also added that “Iran’s face is the face of fighting terrorism and establishing peace and security in the region and we will continue this path with more power in the 12th administration.”

Another step taken which strengthened these assertions was Rouhani’s Draft WAVE Resolution, proposed on September 25, 2013, entitled “A World against Violence and Violent Extremism (WAVE).” The Resolution was approved by the UN General Assembly on December 10, 2015. The WAVE Resolution, which calls on all nations across the globe to denounce violence and extremism, has been adopted on the basis of President Rouhani’s proposals on the fight against extremism and violence.

Keeping in mind Rouhani’s attitude in improving Iran’s relations after the Nuclear Deal, it should be mentioned that international relations of the states which form their national and international interests, is the main criteria of international law, which depends on a balance of power between the states that prevents a state from breaking international law. In this context, the lack of a community of interests or balance of power, there is no international law. Hans J. Morgenthau, “Positivism, Functionalism, and International Law”, 34 AJIL (1940) at 274. On the other hand, regardless of the continuing anti-Iran rhetoric of the new U.S. administration and Israel, adopting the WAVE Resolution by consensus upgraded Iran’s political position in international structures. Since Rouhani’s administration by such a suggestion showed that Iran demands peace and security in the region, it can be concluded that the WAVE Resolution was the most important step taken in order to create a moderate situation around the world.

At first sight, it may be said that the above-mentioned developments are adequate justifications, which demonstrate Iran’s pacifism and get closer to international law, since leadership in the fight against the factors disrupting international peace and security is the natural province of international law. However, it should be said that such leadership is not unlimited and therefore a state cannot act in violation of the basic rules of international law to protect peace and security. Keeping in mind the fact that the United States and its Middle Eastern allies, mainly Israel and Saudi Arabia, have ever aggressive policies such as war against Iran as an option on the table, it cannot be easily claimed that adopting the WAVE Resolution, in line with Rouhani’s anti-extremism proposals, as an anti-war policy to form a global coalition against extremism legitimizes Iran’s regional attitudes (intervention in internal affairs of the other countries due to lead the establishment of peace and security in the Middle East). In other words, Iran’s aspiration to establish peace and security in the region is not a reflection of its compliance with the international legal order.

First, the basic indicator of convergence of a state to the basic norms of international law and its safeguards should be sought at the national level. As a state in which the fundamental human rights such as the right to life, the rights to freedom of speech, access to information, right to express ideas and opinions, health services, and a clean environment are most seriously violated, talking about compatibility with international law is almost impossible.

Second, as a state in which its government’s form is an Islamic Republic, Iran’s foreign policy is based on the aspiration to be a power of the region, which has been foreseen in the Iranian Constitution. In this regard, Article 152 of the Constitution reads:

“The foreign policy of the Islamic Republic of Iran is based on the rejection of all forms of domination, both the exertion of it and submission to it, the preservation of the independence of the country in all respects and its territorial integrity, the defense of the rights of all Muslims…”

Besides, the contemporary Iranian state practice in “defending the rights of all Muslims” is the most important part of the Iranian political tradition ─ in line with the wide range of privileges and authorities foreseen in the Constitution ─ which has been applied during the whole reign of the ayatollahs. The Iranian political tradition is based on its constitutional monarchy in which intertwined organs of government and laws ensure the authority of the Supreme Leader over the president and the parliament. The Iranian constitutional monarchy is based on the top political organ in the country called the Supreme Leader who delineates the general policies of the Islamic Republic of Iran, Article 110 of the Iranian Constitution. Therefore, the President’s adherence to human rights, at the national level, and international law, at the international or regional level, does not significantly affect Iran’s national and international policies. In this context, it must be kept in mind that applying the policy of defending the rights of all Muslims depends on the maintenance of mutually peaceful relations with others. However, considering Iran’s past regional policies and its Revolutionary Guard Corps’ undeniable role in the Middle East, most notably supporting the other Muslim regimes of the region such as Lebanon, Palestine, Iraq, Syria, Yemen, Qatar etc., it can absolutely be said that despite President Rouhani’s significant achievements ─ the Nuclear Deal as a “victory over war” and approval of the proposal which calls for the World Against Violence and Extremism in the UN General Assembly through consensus ─ Iran has been abusing its international relations in the region. Most importantly, the Iranian regime has continuously violated the principles of sovereign equality and non-intervention in internal affairs of another nation by directly and indirectly intervention in internal affairs of the above-mentioned states. The key point here is that in any case of intervention in other states of the Middle East, Iran had generally justified its attitudes under the guise of restoring regional order and security. In any case, Iran’s influence in the Middle Eastern states’ internal affairs and its continuing intercontinental ballistic missile program under the Revolutionary Guard Corps have promoted Iran to a regional power.

In sum, regardless of the significance of Iran’s achievements during Rouhani’s presidency, its attitude to establish peace and security in the Middle East through intervention in internal affairs of other states of the region committed in line with the Iranian political tradition is a hegemonic posture of Iran towards being a power in the region. Accordingly, the steps taken to restore order to the region are not in compliance with international law and the UN principles, including sovereign equality and non-intervention in the internal affairs of another state.

 

Dr. Saeed Bagheri is the Max Weber Post-Doctoral Fellow in the Law Department of the European University Institute (EUI), Florence, Italy.

Posted in 1TVFA Posts, 2Featured Articles, 4Guest & Faculty Articles, Saeed BagheriComments (0)

Does Iran’s Ballistic Missile Test Detonate the Nuclear Deal?

On October 10 Iran successfully test launched a new precision-guided ballistic missile. On Wednesday, Britain, France, the United States, and Germany addressed a letter to the United Nations Security Council’s Iran Sanctions Committee claiming that the test violated a Security Council resolution prohibiting Iran from nuclear capable missile testing. In the wake of this allegation, and the recent adoption of the nuclear deal forged between Iran and world powers, there is confusion as to what impact an affirmation of the allegation may have on the deal, and why Iran may have chosen to test now, at such a sensitive time.

The Facts

1028340053
October 10th launch of Iran’s Emad IRBM. Courtesy of IRINN news in Iran.

On July 14 Iran and world powers signed a ground-breaking deal to limit the ‘breakout time’ for Iran to develop a nuclear weapon, in exchange for a reduction and eventual repeal of sanctions levied against the Islamic Republic. For decades, the UN Security Council has held strong to a policy of sanctioning Iran for actions it takes with respect to its nuclear program, a program which Iran has consistently claimed is intended only for peaceful purposes. This deal signals a strong shift by the UN, United States, and world powers in their approach to dealing with Iran, prioritizing direct negotiation and an incentives-based approach over sanctions. The world powers who signed the agreement with Iran include; The United States, France, Germany, China, Russia, and the United Kingdom.

Specific details on the October launch are sparse, but we do know that the missile, named the Emad (Pillar), is a surface-to-surface intermediate-range ballistic missile (IRBM). The missile, precision-guided until it reaches the target, greatly enhances Iran’s medium-range precision strike capabilities because, as reported by Iran’s national news organization, the Emad is “capable of scrutinizing the targets and destroying them completely.” It has been reported that the missile is capable of complete accuracy within a 1,700km range, can carry a 750kg payload, and would be deployed in 2016. The State of Israel, which the leadership of Iran has vowed, but never attempted, to destroy, is within 1,700km range of Iranian territory. Israel and The United States are long-time allies. The tested missile was not loaded with a nuclear weapon, but a ballistic missile is the preferred delivery system for a nuclear warhead.

The letter addressed to the UN stated that the missile was “inherently capable of delivering a nuclear weapon”, and that they hope the information will be used to “examine and take appropriate action in response to violations.”

The Laws

United Nations Security Council Resolution 1929 adopted in June 2010 prohibits Iran from “undertake[ing] any activity related to ballistic missiles capable of delivering nuclear weapons[,]” but the leadership in Iran has consistently, and successfully, rejected the enforceability of UN resolutions targeting its domestic activity.

UN Sec Council

Members of the Security Council vote at United Nations headquarters, Monday, July 20, 2015. The U.N. Security Council unanimously endorsed the landmark nuclear deal between Iran and six world powers and adopted a series of measures leading to the end of U.N. sanctions that have hurt the Iranian economy. (AP Photo/Seth Wenig)

 

 

Under the new deal, titled the Joint Comprehensive Plan of Action (JCPOA), world powers have agreed to lift sanctions which were implemented under Resolution 1929, and other resolutions, in exchange for Iran stepping themselves back from developing warhead capability. As a part of the JCPOA a timeline of stages has been set, the first, which began this week, includes a reduction of some sanctions and the beginning of monitoring by the International Atomic Energy Agency (IAEA). UN Security Council Resolution 2231, the implementing document for the JCPOA in the United Nations, mandates that the next stage will begin on the ‘Transition Day’, eight years from Sunday. Annex V, Schedule D para. 19 conditions repeal of sanctions relating to the the international transfer of ballistic weapons to Iran on the completion of IAEA testing and the first phase of the agreement, or on the Transition Day, whichever comes first.

Additionally, while obfuscated by confounding language, the document does lay out a requirement similar to the language in Resolution 1929 prohibiting the development of nuclear ballistic missiles. Paragraph 3 of Annex B states that until the Transition Day, “Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons.” The scope of Annex B of Resolution 2231, titled “Statements”, is comprised of additional provisions set forth by each of the signatory world powers which must be met to in order to facilitate complete “implementation of the JCPOA.” Paragraph 3 does allow for an earlier reduction in ballistic weapon sanctions, contingent on an IAEA report that suggests Iran has fully complied with the nuclear capability reduction requirements of the JCPOA prior to the deadline, but the United States has a veto on any proposed early repeal. It should be noted that nothing in the JCPOA or Resolution 2231 explicitly dictates what actions taken by Iran prior to the date of Adoption would violate the agreement, or what force a new violation of Resolution 1929 would have on the implementation of the JCPOA during the 90 days between execution and Adoption.

Analysis

First, referenced above, the launch occurred on October 10, after the execution of the JCPOA but prior to the Adoption Day of Resolution 2231 in the UN. Therefore, it may be argued that the JCPOA and 2231 do not apply. This leads to an interesting analysis, because the penalty for violation of a provision in Resolution 1929 would be economic sanctions, which Iran has consistently ignored and which 2231 is designed to reduce in exchange for cooperation from Iran regarding all facets of their nuclear agreement, which includes nuclear ballistic missile development. It seems, from this perspective, that Iran may have been attempting to get in “one last shot” before the JCPOA is implemented. It had no direct incentive not to do so and knew that the international community would have little recourse in the way of remedy or penalty.

On the other hand, when Iran launched they were fully aware of the imminence of the adoption of the agreement they had signed, and therefore their actions may also be judged by whether they comply with the JCPOA. The preamble to the JCPOA states that the parties to the agreement “commit to implement this JCPOA in good faith and in a constructive atmosphere, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of this JCPOA that would undermine its successful implementation.” It does not seem that a test launch weeks before Adoption would be in the ‘letter, spirit and intent’ of the deal. The launch did, however, occur just days before Ayatolla Khomeini’s official acceptance on the part of the Islamic Republic, possibly timed as to preempt any consequence under the JCPOA.

Second, there is an important difference in the language of the two resolutions prohibiting Iran from developing nuclear capable ballistic missiles. Resolution 1929 requires that Iran refrain from any activity related to ballistic missiles “capable of delivering [nukes]”, while 2231 prohibits any activity related to ballistic missiles “designed to be capable of delivering [nukes.]” Interestingly enough, when asked to comment, Iranian Foreign Minister Mohammad Javad Zarif said that “none of [Iran’s] missiles has been designed for a nuclear capability”, echoing the less restrictive language of 2231. The argument purported by the US and EU powers in the letter to the Iran Committee said that the missile was “inherently capable” of delivering nukes, focusing on the language of 1929.

Therefore, it seems that the United States claims that all ballistic missiles, whether ‘designed’ for nuclear capability or not, are “capable” of carrying a nuclear weapon, and therefore must fall under the provision as stated in 1929. Does this mean that the US claims that because the launch occurred prior to the Adoption Day of the JCPOA, Resolution 1929, which does not require ‘direction’ and therefore has a lower burden of proof, should be the controlling law? It is unclear whether the administration noticed the difference in the language when adopting their statement, or whether it thought the public would notice. Even if 1929 is the controlling law, the enforcement mechanisms in 1929 were not only ineffective when they were drafted, but are especially ineffective now, since they are in the process of being removed as a part of the JCPOA.

The Iranians, on the other hand, argue that they never conducted activity on missiles ‘designed’ to be nuclear capable, and therefore are not in violation of the provision, even though the test occurred prior to the Adoption Day. The official Iranian statement on the launch echoes the language in the JCPOA, and not that of 1929. The Iranian government has made no comment on whether, since they prefer to define the terms of their actions based on the JCPOA, they consider the launch to be within the ‘letter, spirit and intent’ of deal, as required by the preamble of the agreement. To sum it up, the US prefers the language of the old Security Council resolution, which is more inclusive but has no enforceability, whereas the Iranians defend their actions using the language of the JCPOA, which should be found not to include tests like the one on Oct 10, but if it was, would truly destroy the progress made to reach this deal.

Why Now?

Khomeni
Supreme Leader, Ayatollah Ali Khamenei 2015.

Based on the above analysis, it seems that neither the United States nor the Iranians want this launch, or any subsequent investigation, to detonate the landmark deal. Even so, neither is backing down. White House spokesperson Josh Earnest stated that while the administration was investigating the launch, that the test was “separate from the JCPOA” and did not violate the agreement. While no credible analysts believe that Iran’s ballistic missile program is for peaceful means, non-nuclear capable missile development is not prohibited by the JCPOA. So whether this missile is found to be nuclear capable or not, it has the potential to destabilize, but not detonate, the nascent trust between Iran and world powers. It is a wonder why, then, when the Ayatollah has come out in support of the deal, would he make such a bold, instigating, and seemingly benefit-less choice to launch?

In his effortless brilliance, Thomas Friedman, economist and columnist for the New York Times, may have inadvertently provided the answer almost a month before the launch. In his NY Times column dated September 16, ‘Iran Deal Players’ Report Cards’, Friedman grades all of the actors in the deal and gives the Ayatollah an “A”.  He explains that throughout the process, the Supreme Leader had been clever, acting to make himself domestically popular by “cheating” Iran’s way out of the “crippling sanctions, which his people want,” while all the while “giving his hard-line base the feeling that he’s still actually against this deal and his negotiators the feeling that he’s for it.”

While Friedman does end with a humorous reference to lessons the Ayatollah will learn in relation to the imminent domestic democratic transition in Iran, a-la Mikhail Gorbachev, he does also make a poignant parallel to the launch. He reminds us that just a week before the September 17 deadline for the US Senate to block American acceptance of the resolution, the Ayatollah made an ill-timed public statement predicting that Israel “won’t be around in 25 years[.]” This statement was clearly referencing a period of time within which Iran could successfully overcome the effects of the international sanctions and restrictions on its nuclear program by the JCPOA, and develop an actionable nuclear weapon. The statement eruditely left Iran’s direct participation in the destruction of the State of Israel to inference, but was timed specifically to instigate the right-wing in the US Senate and the Israeli government. A simple analogy is made from the statement to the launch of the missile, timed just a week before the Adoption of the JCPOA.

In the end, it is clear that none of the European powers, the US, UN, or Iran want to allow this launch, even if found to be of a missile ‘designed to be nuclear capable’, to destroy the hard-fought nuclear deal. Was the Ayatollah intentionally attempting to derail the agreement? Could he have just been catering to his conservative base by showing that any concessions he makes to support the deal will be in protest? Did he launch to send a little reminder to Israel before allowing his nuclear program to lay dormant?

Clearly, the future of peace and security in the region is too important to risk over a single missile launch. Only time will tell if any lasting effect will result from launch. It is unlikely that any action will be taken by the Security Council to reprimand Iran for launching, because this could cause a rift in the already tenuous partnership. As to the Ayatollah’s intentions? This author hopes that the launch was mere Putin-esq political puffery, destined to be relegated to the history books as the defining record of the most deadly weapon that Iran ever developed, never to be exceeded.

Jeremy S Goldstein is a 3L at the University of Denver – Sturm College of Law and the Online Editor-in-Chief of the Denver Journal of International Law and Policy.

Posted in 1TVFA Posts, 2Featured Articles, DJILP Staff, Jeremy GoldsteinComments (0)

5 Reasons the Iran Deal Doesn’t Matter to You

**This article originally appeared at Treasure Fleet on August 20, 2015 and has been reproduced with the author’s permission.**

by Tyler Rauert

A little disclosure up front: I am a strong supporter of President Obama’s proposed deal on Iran’s nuclear program.  The Joint Comprehensive Plan of Action (JCPOA), as the agreement is officially known among policy wonks and the chattering class, was announced by the Permanent 5 members of the UN Security Council (China, France, Russia, the UK, and the US) plus Germany and Iran on July 14, 2015.  I had a small role in laying the initial groundwork for what ultimately evolved into this bargain several years ago along with several Iranian, Arab, Israeli, Chinese, Russian, and European colleagues.  I support it for a host of geo-strategic reasons that we can get into if you’re itching for an unproductive argument about foreign policy.  But my focus today is why this agreement really won’t matter for most Americans.

When corporate clients, friends, and acquaintances here in Colorado learn about my experience with US-Iran policy, they often ask for my thoughts on what this deal means for usa-iran-flagopportunities to do business in Iran with an expectant look in their eyes as if I’m about to unveil something that will unlock the exotic riches of the orient.  The truth is that no magic carpet ride is imminent.  What follows are five reasons that, whatever you think of the politics surrounding the Iran deal, its impact on US companies that want to trade with Iran are vanishingly small.

1. Sanctions relief is not certain.

Many commentators and policy-makers, particularly those opposed to the Iran deal, criticize the sanctions relief included in the JCPOA.  However, there are some major hurdles in the way of its implementation.  First and foremost, the US Congress will have an opportunity to scuttle the deal.  Even though the bargain’s opponents in Congress can’t muster enough votes to block it, they can still make the deal’s implementation difficult for the Obama administration at a time when scoring political points for appearing “tough” on Iran and thwarting a lame-duck President can win votes.  This political milieu means that there is a significant chance the sanctions relief included in the JCPOA never sees the light of day with the result that the segregation of the US and Iranian economies continues indefinitely.

2. Sanctions relief is not immediate

Even if the Iran Deal is implemented in full, we shouldn’t expect to see US sanctions relief anytime soon.  Under this rosy scenario sanctions won’t start to be lifted for several months and most likely not until the middle of 2016.  In the meantime, the activities that were prohibited with Iran the day before the JCPOA was announced will continue to be prohibited until further notice from the Department of Treasury’s Office of Foreign Assets Control (OFAC).  Once OFAC announces changes, companies interested in doing business in Iran will need to work very closely with compliance professionals to determine what is permissible and what remains forbidden.  This will be complex, time consuming, and probably costly.  Not the kinds of words sales and marketing departments like to hear.

3. Sanctions relief is limited

Frankly, there will be little impact on US companies because the sanctions relief included in JCPOA is so limited.  In this agreement the US only arranged to lift selected, nuclear-related sanctions such as extraterritorial sanctions that restrict the ability of non-US persons to work with Iran.  This is a fancy way of saying that the Islamic Republic will only receive relief from sanctions outside the US.  Those sanctions involving US citizens, companies, or products will largely remain in place as will US sanctions of Iran based on human rights violations and state sponsorship of terrorism.  The meat of US sanctions that forbid the export of US goods and services to the country as well as those that prohibit most US people and companies from transacting business with it will remain in force until Congress modifies them.  Did I just hear you laugh?  Yeah, me too.  The possibility of Congress reducing sanctions on Iran seems remote.

So after the JCPOA is fully implemented beginning in mid-2016, US sanctions policy on Iran will revert to what was essentially its policy in 2010 when secondary sanctions were first imposed on the Islamic Republic.  Show of hands: how many of you were doing business with Iran in 2010?  Seeing none, we’re on to point 4.

4. The sectors of the Iranian economy affected by sanctions relief are minimal

While US economic sanctions on Iran are extensive, American firms have long been able to export goods such as food, medicine, and medical devices to Iran with a special license.  This policy will not change under JCPOA.  The only significant Iranian sector affected by US sanctions relief is aerospace.  Once the implementation of JCPOA begins in 2016, US firms will be allowed to obtain a special license to sell or lease commercial passenger aircraft and parts to Iran for civilian use.  While this is no small victory, unless you’re Boeing this probably won’t impact you.  And if you are Boeing, why are you reading this blog?  Don’t you have expensive consultants to tell you this stuff?

On the other side of the coin, once the agreement is implemented, the US will once again allow the importation of Iranian carpets and food that were allowed from 2000 – 2010.  Pistachio lovers get ready.  Moreover, one area where US sanctions relief under JCPOA might have broader impact involves foreign subsidiaries of US companies.  Under the agreement, OFAC will be able to issue licenses for such entities to engage with Iran so long as its activities are consistent with the agreement.  Not exactly the unleashing of pent-up US entrepreneurial zeal but this could be a way to ease into more integrated economic ties over time.

5. Keeping up with the Joneses can be dangerous.

A number of companies – particularly Chinese, Russian, Indian, and some European firms – will ramp up their activities in Iran.  US businesses will need to be wary of participating in a “Persian gold rush.”  Just because a competitor is entering the Iranian market or transacting business with an Iranian partner doesn’t mean they are complying with US law, or even their home country’s law.  The US and European sanctions against Iran are likely to remain in place for some time after this deal is implemented.  US firms in particular need to base their decisions on OFAC guidance as well as changes from other US regulatory agencies such as the Bureau of Industry and Security.  You don’t want those guys knocking on the door of your corporate headquarters.

Conclusion

All of this is a long way of saying that while there are many legitimate political, security, and strategic disagreements in the debate over the Iran Deal, the broad opening of the Iranian market to US companies is not one of them.  If all goes well with the agreement we may see a gradual economic opening that will benefit both Iranian and US firms.  That day simply is not today.

Tyler Rauert is a global attorney at Polaris Law Group in Longmont, Colorado. Prior to joining Polaris, he spent nearly a decade in the Washington, DC national security community, served as Associate Professor in Law and Strategy at the National Defense University in Washington, DC, worked in the US Senate, and was a consultant on the use of force in international law. He currently serves on the Board of Directors of the World Trade Center Denver and Chairs its Trade Policy Committee, Co-Chairs the Colorado Bar Association’s international business transactions unit, and is a Director-at-Large for Denver Sister Cities International. Tyler has a J.D. and Master of Arts in International Affairs from American University. He also received an LLM in International Business Transactions from the University of Denver’s Sturm College of Law.

 

Posted in 1TVFA Posts, 2Featured Articles, 4Guest & Faculty Articles, Tyler RauertComments (0)

iran nuclear agreement negotiators

The Interim Iranian Nuclear Deal: Enforcement and a Right to Enrichment

On January 20, 2014, an interim agreement over Iran’s nuclear program will go into effect. The agreement is a compromise between Iran and major Western powers reached on November 24, 2013. The terms of the agreement provide that Iran will scale back activities under its nuclear program, but not dismantle it entirely. This compromise has prompted criticism that the agreement will not prevent Iran from developing a nuclear weapon, begging the questions, is there an international right to enrichment, and will enforcement of this agreement be adequate?

iran nuclear agreement negotiators

Representatives from France, Britain, U.S., and Jordan in Paris (Thierry Gesnot/Getty Images)

The agreement itself contains no explicit recognition of Tehran’s right to enrichment. While Iranian news proclaimed that it did recognize such a right, U.S. Secretary of State John Kerry emphasized that it did not. The question then turns on an interpretation of Article IV of the U.N. Treaty on Non-Proliferation of Nuclear Weapons, which Iran signed in 1968. It states, in part, that “[n]othing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination….” Many countries have read this to create a right to enrichment, whereas the U.S. has taken the position that each case should be considered individually. This view is not in alignment with the other parties to the treaty. Moreover, the U.S. does not have authority to interpret the agreement unilaterally without ratification by other parties to the treaty.

The other question raised following the announcement of the interim agreement was the means of enforcement and the consequences for Iran breaching the terms. Some of the International economic sanctions on Iran will be lifted as part of the agreement, and U.S. President Barack Obama said that the U.S. would give “modest relief” on sanctions on Iran, but would increase sanctions if Iran reneged on the deal. The International Atomic Energy Agency [IAEA] will play a central role in verifying that the terms are met. Reuters reported the IAEA as saying that there will be “…a significant increase in the frequency of inspections in Iran, access to more sites in the country, a need for more equipment and more analytical work….” The additional cost will come to around 6 million euros. The IAEA requested 5.5 million euros from its 160 member states to voluntarily help cover the expenses. The parties to the interim nuclear agreement are confident that the additional inspections and economic consequences of sanctions for the oil-dependent Iran will be sufficient to prevent the development of nuclear weapons.

Despite the criticism surrounding the agreement, most notably from Israeli Prime Minister Benjamin Netanyahu, it remains a six-month interim agreement intended to provide additional time for negotiations to a final settlement in the decade-old nuclear dispute. The next few months will help elucidate Iran’s motivation for enrichment and any right that exists thereof. But perhaps it would also be beneficial to revisit the terms of the Non-Proliferation Treaty in the wake of the Fukushima disaster. Nuclear energy is no longer the golden child of clean energy when considering the progress of alternatives like solar, wind and hydro. The U.N. could consider clarifying Article IV to narrow the permissible scope of research and production of nuclear energy in recognition of its limited potential and substantial risk.

It is possible that Iran’s nuclear activities are politically motivated and its insistence on a right to enrichment is rooted in principle. Regardless, diplomacy prevailed, and the path to a permanent agreement has been established. To quote a statement from the White House:

[W]e have made concrete progress. I welcome this important step forward, and we will now focus on the critical work of pursuing a comprehensive resolution that addresses our concerns over Iran’s nuclear programme.

Alex Milgroom is a 3L at the University of Denver and the Online Editor-in-Chief of the Denver Journal of International Law and Policy

Posted in 1TVFA Posts, 2Featured Articles, Alex Milgroom, DJILP StaffComments (0)

Critical Analysis: Division in Iranian Leadership

Supreme Leader Ayatollah Ali Khamenei waves to the crowd at the conclusion of his speech in Tehran, Iran. (Washington Post)

Supreme Leader Ayatollah Ali Khamenei waves to the crowd at the conclusion of his speech in Tehran, Iran. (Washington Post)

Some argue that the West is continually trying to find ways to contain Iran and their believed attempt to acquire nuclear weapons. Recent infighting shows that the country’s leadership may be splintering leading to a fissure in the Islamic Republic of Iran. Do these public confrontations present an opportunity for the West to find workable solutions to this issue?

The Iranian Supreme Leader Ayatollah Ali Khamenei is finding himself in new territory, wading into the internal political battles of Iran. Khamenei has been forced to respond to the ever more confrontational President Mahmoud Ahmadinejad. This conflict began in 2011 when Ahmadinejad challenged Khamenei over the appointment of a high-ranking intelligence ministry post. Since, Ahmadenejad has taken several other opportunities to raise tension between himself and the Supreme Leader, forcing several of Ahmadinejad’s political allies off the upcoming ballot. However, it seems that a significant majority of lawmakers are still loyal to Khamenei.

This conflict comes out of a contentious session of parliament. This session included several instances where Ahmadinejad and Iran’s legislative body frequently feuded publicly. This included the impeachment of the President’s labor minister. Also, Ahmadinejad accused a judiciary chief, and appointee of the Supreme Leader, of bribery. These public riffs come ahead of the June presidential election that will elect Ahmadinejad’s successor. Throughout this spat, Khamenei has called for calm, especially against the pressure of economic sanctions from the West.

This infighting comes in the face of renewed effort from the West in regards to Iran’s nuclear program. Last week Iran rejected negotiations with the United States. Khamenei proclaimed that if Iran wanted to build nuclear weapons, no country could stop them. The Supreme Leader insisted that before any negotiations will occur, the West must lift all sanctions because Iran will not surrender. After addressing the recent offer to negotiate, Khamenei transitioned into criticizing Ahmadinejad and the speaker of the Parliament.

There seems to be a split between the two most powerful men in Iran. Is now the time that the West may be able to leverage the divided leadership in order to reign in Iran?

 Wesley Fry is a 3L and Managing Editor of the Denver Journal of International Law and Policy

Posted in 1TVFA Posts, 2Featured Articles, DJILP Staff, Wesley FryComments (1)

U.S. Ratchets Up Iran Sanctions and Enforcement Actions

Ramping up the trade sanctions on Iran
(ABC)

The U.S. Government has restricted activities with Iran since the U.S. Embassy was seized in Tehran in 1979.  In 2012, the United States continued to ratchet up sanctions against Iran as part of a continued effort to curb the country’s nuclear activities and to further actions taken against Iran since 2006.  By placing economic pressure on Iran and restricting the country’s access to the rest of the global economy, U.S. officials hope to make it difficult for Iran to survive without succumbing to diplomatic pressures.  The already strained Iranian economy has experienced heightened inflation, and oil exports dropped after the EU embargo on Iranian oil went into effect in July 2012.  Increased sanctions have lead to broad-based enforcement actions for violations, and compliance with the ever-changing web of regulations is, by no means, an easy feat.

Prosecutors have targeted institutions worldwide that use the U.S. financial system to process Iranian transactions.  Since 2009, the Justice Department (“DOJ”), the Treasury Department, and the district attorney’s office have brought cases against five European Banks.  On June 12, 2012, for example, ING Bank, N.V. (“ING”), a Netherlands-based financial institution, reached a settlement of $619 million with the Office of Foreign Assets Control (“OFAC”), as part of a global settlement among ING, OFAC, the DOJ, and the New York County District Attorney for alleged violations of the Iranian Transactions Regulations (“ITR”) and other sanctions.  ING allegedly moved billions of dollars through the U.S. financial system on behalf of sanctioned entities.

The ING case is extreme.  It involved sophisticated parties that likely should have had more sophisticated compliance programs in place.  Investigations into sanction violations, however, do not stop at large financial institutions. In general, unless licensed by OFAC, any goods, technology or service exports, simply, cannot have any connection to Iran or the Government of Iran.  These restrictions affect companies of all sizes and across numerous different sectors.  In April 2012, OFAC reached a settlement with a Colorado-based company for ITR violations.  Sandhill Scientific, Inc. (“Sandhill”), allegedly exported medical devices to Dubai, knowing that the goods would be transshipped to an Iranian company.  Sandhill was forced to remit $126,000 to settle these allegations.

OFAC also imposes penalties in circumstances where it appears the company, simply, did not know any better.  In May 2012, OFAC reached a settlement with a U.S. investment fund for its failure to oversee the actions of its foreign subsidiary.  Genesis Asset Managers, LLP (“GAM US”) was forced to remit $112,500 because its foreign subsidiary purchased Iranian securities, conferring a prohibited economic benefit on Iran.  In OFAC’s Enforcement Information release, it stated that GAM US may not have fully understood its OFAC obligations under US law.

Individuals and companies can also be criminally prosecuted for their actions relating to violations of Iran sanctions.  Criminal penalties for ITR violations can result in fines of up to $1,000,000 and twenty years imprisonment.  In February 2012, for example, Sunrise Technologies and Trading Corporation was sentenced to 24 months corporate probation for exporting U.S. origin computers to Iran through the United Arab Emirates.  The company’s owner, Jeng “Jay” Shih, was sentenced to 18 months in prison in the District of Columbia.  Prosecutions like these are evidence of the severe consequences companies and individuals can face for violations.

Investigation targets range from some of the world’s largest corporations to small-town operations.  Given this breadth, it is important for companies of all sizes to ensure that internal compliance procedures comport with applicable regulations.  The U.S. Government imposes sanctions that extend beyond mandatory U.N. sanctions and those imposed by the European Union.  Even as the United States attempts to further isolate Iran, it is still unclear whether these efforts and the increasing sanctions will produce the desired result, to curb Iran’s nuclear activities.

Kaitlin Fox is an alumna of the Denver Journal of International Law and Policy.  Currently, she is at Schuchat, Herzog & Brenman, LLC, and is interested in international trade and sales law.  In law school, she was on DU’s Willem C.Vis team, where she won the Shanghai Moot and was an oralist in Hong Kong.

Posted in 1TVFA Posts, 2Featured Articles, Kaitlin FoxComments (0)

Critical Analysis: Stuxnet Leaks: More than a Domestic Political Affair

It’s in the Network (FreePhotosBank)

Last week, U.S. intel leaks made headlines after an article in the New York Times quoted numerous anonymous sources, including current and former U.S. officials, alleging that President Obama ordered the Stuxnet attack against Iran’s Natanz uranium enrichment facility. The story comes in the wake of a two-week period of national security leaks in the New York Times, including the disclosure of a disrupted plot by Al Qaeda’s Yemen affiliate to smuggle a bomb onto a U.S. flight, the Obama administration’s expansion of the drone program, and how the Obama administration determines the drone “kill list.” Investigation by the Department of Justice into the Stuxnet intel leaks has begun, while political finger-pointing has the U.S. asking whether the White House is in part responsible for the leaks and ignoring the potential international repercussions of the leaked information.

In the summer of 2010, a computer worm coined “Stuxnet” had the world’s leading cyber security experts up in arms as the self-replicating computer worm made its way through computers the world over. Although Stuxnet was designed to target Siemens industrial software and equipment (specifically the computer systems that run Iran’s main nuclear enrichment facilities), a bug in the coding allowed Stuxnet to escape onto the public internet. Overnight, the worm infected computers across the globe, from Europe to China. At the onset of the Stuxnet outbreak, cyber security experts narrowed the list of culprits down to a short list of state actors with the ability to develop such complex computer code – America, Israel, China and Russia. Russia and China were quickly eliminated, leaving America and Israel as possible suspects, alone or working in conjunction. Despite this short list of actors, U.S. involvement with the Stuxnet has been dismissed as mere accusation. Even in the wake of the New York Times story, the U.S. has not publicly taken responsibility for the Stuxnet attack or issued a denial as to the legitimacy of the leak providing U.S. involvement with the computer worm.

Rather than address the substance of the leaked information, authorities in Washington have launched investigations into the leaks. Taking over direction of existing investigations by the Federal Bureau of Investigation, the Department of Justice is conducting two separate but concurrent investigations into the sources of the leaked  information. U.S. Attorneys Ronald Machen, Jr. of Washington, D.C., and Rod Rosenstein of Maryland are overseeing the investigation and have full authority to prosecute criminal violations discovered as a result of their investigations. While the White House denies providing classified information to New York Times reporter David Sanger, it has come under fire from both sides of the political divide. Senior lawmakers, including Senator John McCain, claim that White House officials authorized the leaks to boost public support of President Obama in an election year through highlighting his stance on national security, basing their allegations in large part on the fact that the level of detail in the accounts could only have come from senior officials in the White House.

In addition to dispute over the source and cause of the Stuxnet leak, the ongoing investigations have generated significant political uproar in both the House and Senate Intelligence Committees. The committees have joined together in calling for an outside probe of the leaks. Specifically, Republican members of the Senate Judiciary Committee have criticized the Attorney General appointing U.S. Attorneys to probe the leaks. Instead, they are calling for a special counsel to lead an independent investigation.  After the Justice Department’s national security division recused itself from the investigation due to the possibility that the department might have been a source of some of the disclosures, questions about possible conflicts of interests have arisen as frontline prosecutors might be required to interview their own department heads and senior officials. In light of the conflict of interests involved with the investigations, the House and Senate Intelligence Committees have begun discussing new legislation that would curtail unauthorized disclosures by limiting the pool of people with access to classified information and providing inspectors general with far more investigative powers.

The outrage over the leaks and the ensuing investigations is more than just another bipartisan affair dividing the next election: attributing the Stuxnet attack on Iran to a nation, specifically the U.S., potentially sets a new precedent in the realm of warfare. Now that the accusations of U.S. responsibility in the Stuxnet attack are becoming more of a reality, the international community is confronted with the real possibility of cyber attacks being used in times of war. Furthermore, many political and legal scholars already consider Stuxnet, and other similar cyber attacks, the equivalent of an armed attack; for example, unleashing a worm to damage another nation’s nuclear reactor has the same results as if a missile were fired at the same nuclear facility. In both cases, the right to self-defense and the use of force would arguably be triggered. However, the law of armed conflict requires attribution to a state actor, which was a missing element in the case of Stuxnet. The leaks of U.S. involvement in Stuxnet, if not refuted, may lead to attribution to the U.S. for the attack. The consequences could lay grounds not only for Iran to retaliate in self-defense under the law of armed conflict, but also set a preceden allowing the use of cyber attacks. The cyber attacks have a propensity for harm and collateral damage in our increasingly internet-dependent societies. State infrastructure, such as Supervisory Control and Data Acquisition control systems, are intertwined with public networks and a cyber attack could very well shut down anything from a water pump to an electrical grid. With the potential for such damage to result by cyber attacks, our national leaders need to be more concerned with how to reign in this potential precedent, whether by providing evidence that the U.S. was not responsible for the Stuxnet attack or by examining how this form of weaponry fits into the law of armed conflict.

Posted in 1TVFA Posts, 2Featured Articles, Cassandra Kirsch, DJILP StaffComments (0)

You want to shoot our drones down now, Iran?

Occasionally alarming drones stories cross my desk. Up until this morning, this one ranked as #1 most alarming: “‘Flesh-eating robot’ is actually a vegetarian, say inventors.”

In an attempt to reassure the reader, the inventors add this gem of a quote: “The … Energetically Autonomous Tactical Robot – known as Eatr for short – does indeed power its “biomass engine” by digesting organic material, but that it is not intended to chomp its way through battlefields of fallen soldiers.” That is just great.  Eatr is not intended to devour humans, but as it gobbles up a hedgerow to sate its appetite it obviously may unintentionally scoop up a human or two in the process.

Energetically Autonomous Tactical Robot

So the Eatr article sat comfortably at number 1 for many weeks until this morning: “US draws up plans for nuclear drones.”  The Guardian article states that “American scientists have drawn up plans for a new generation of nuclear-powered drones capable of flying over remote regions of the world for months on end without re-fuelling.”  Remote regions? What, are we going to start flying drones over Western Sahara?

Most of our drones are deployed in Iraq, Pakistan and Yemen.  By my count a fair number of folks live there. And these drones crash “a lot” says Chris Coles of Drone Wars UK.  Do we really want to further infuriate inhabitants of these countries by flying nuclear materials over them?

The stated appeal of nuclearizing drones is to enhance their ability to fly for long periods of time without refueling.  But one wonders whether a second motivation is to create a huge disincentive for countries like Iran in shooting down a drone like they did last December.

 

Posted in 1TVFA Posts, 2Featured Articles, David AkersonComments (0)

News Post: U.S., Russia try to Dissuade Israel from Preemptive Strike on Iran

In recent months, tensions between Israel and Iran have been on the rise and speculation has been growing that Israel may attack Iran’s nuclear facilities.

Israeli Prime Minister Benjamin Netanyahu (The Inquisitr)

Although Iran says its nuclear program is meant to develop energy, it has refused to negotiate guarantees that the program is peaceful, giving rise to security concerns – particularly in Israel, where leaders think that Iran’s nuclear program is a threat to the continued existence of Israel.  Recently, discussion in both the U.S. and Israel has turned to the issue of whether an Israeli strike can do enough damage to the Iranian program to be worth the risks.

Military analysts at the Pentagon say that an Israeli attack meant to setback Iran’s nuclear program would be a highly complex operation.   Michael V. Hayden, prior CIA director from 2006 to 2009, said that “airstrikes capable of seriously setting back Iran’s nuclear program were ‘beyond the capacity’ of Israel’” However, military analysts have also said that if the United States decides to get involved, it has the military power to effectuate an attack of the scale desired by Israel.

Last week, America’s top intelligence official told a senate committee that a successful bombing of Israel may set Iran’s nuclear development program back by one or two years at most. Most experts agree that Iran now possesses so much technological information that no air campaign could destroy its ability to someday produce a nuclear weapon. Both the United States and Russia have advised against a preemptive attack on Iran, but Israeli’s foreign minister has said that the state will not give in to pressure in deciding whether to attack Iran.

General Martin Dempsey, chairman of the U.S. Joint Chiefs of Staff acknowledged in a recent television interview that Israel and the U.S. have divergent views on the best course of action on Iran. “I’m confident that (Israel’s leaders) understand our concerns that a strike at this time would be destabilizing and wouldn’t achieve their long-term objectives,” Dempsey told CNN. However, Dempsey did not go so far as to say that the U.S. has persuaded the Israelis that it was best not to attack Iran.  The White House has said that it believes the intense punitive sanctions imposed on Iran have had some impact and that there is still time for a peaceful resolution to be reached.  Even so, many in the U.S. fear that Israel will act unilaterally, and that the United States will be sucked into finishing the job.  Others believe that increased U.S. involvement in the Middle-East will cause an increase in oil prices and endanger Obama’s reelection campaign.

Posted in 1TVFA Posts, DJILP StaffComments (0)

Iranian President Mahmoud Ahmadinejad

News Post: EU and US Impose Further Sanctions on Iran

By: Kaitlin Fox

Iranian President Mahmoud Ahmadinejad

Mahmoud Ahmadinejad with nuclear scientists

The European Union (EU) and the United States took further action on Monday to curb Iran’s nuclear program.  The EU agreed to impose a phased ban on oil purchases from Iran while the United States expanded its sanctions on Iran to include the countries’ third largest bank, Bank Tajarat.  Iranian Government Officials reacted by reiterating their threat to close the Straight of Hormuz, in which twenty percent of the world’s oil passes.  It is unclear whether the EU and U.S. actions will prove effective.  Some speculate that Iran will simply turn to alternative markets while others sense that the sanctions will cause major damage to the Iranian economy.  Either way, recent events are certain to escalate tensions in the region.

The EU’s phased ban on oil purchases does not permit EU member states to enter into new contracts for Iranian oil.  However, countries that have existing contracts will have until July 1 to end those agreements.  The EU’s decision is meant to “force a shift in policy and avert the risk of military strikes against Tehran.”  The U.S.’s sanction against Bank Tejarat is poised to further restrict Iran’s access to the international financial market.  The Treasury, under the Secretary for Terrorism, David Cohen, stated that, “At a time when banks around the world are cutting off Iran and its currency is depreciating rapidly, today’s action against Bank Tejarat strikes at one of Iran’s few remaining access points to the international financial system.”   Thus far, Iran has had little regard for its international obligations, and both U.S. and EU officials hope that these moves will increase their cost of defiance.

The EU’s action represents a shift in policy, as the EU has been reluctant to impose an embargo on Iranian oil imports. The U.S. stopped importing oil from Iran years ago where as EU member states, including France, Italy, Greece and Spain, currently import approximately 600,000 barrels of oil per day from Iran..  The EU’s shift came after the International Atomic Energy Agency reported that Iran was moving toward nuclear capability this fall.  The EU’s timeline to enforce its embargo coincides with the U.S. six-month timeframe, during which President Obama will need to decide whether to pursue sanctions on countries that import Iranian oil.    The effectiveness of recent action is unclear. Jamie Webster, a Middle East oil analyst at PFC Energy stated that the sanction could merely cause Iran to shift its customers and deliver more to Eastern markets.  What is clear, however, is that a drop in oil revenue would have a significant negative impact on an already weak Iranian economy.

Iran’s reaction to the EU and U.S. sanctions was defiant and almost skeptical.  Officials in Tehran insisted that the EU needed Iranian oil more than Iran needed its business.  Intelligence Minister Heydar Moslehi stated that, “The West’s ineffective sanctions against the Islamic state are not a threat to us. They are opportunities and have already brought lots of benefits to the country.”  The particular benefits he refers to are undefined and other officials in the region fear grave consequences of Iran’s hard-line approach.  Saudi Arabia’s ambassador to Britian, Prince Mohammad Bin Nawaf, expressed his concern that Iran’s threat to block the Straight of Hormuz would have grave consequences on the region and would undoubtedly escalate the entire situation to the detriment of Iranian citizens.  http://www.reuters.com/article/2012/01/24/us-iran-idUSTRE80N0YB20120124  If Iran’s attitude remains unchanged, the situation will certainly escalate as evidenced by the United States sailing an aircraft carrier through the straight, accompanied by British and French warships on Sunday.  The United States has asserted that, “it would not tolerate the closure of the world’s most important oil shipping gateway.” http://www.reuters.com/article/2012/01/24/us-iran-idUSTRE80N0YB20120124

Amidst this turmoil, it remains in controversy: do sanctions actually work?  Sanctions are appealing to governments like the U.S. and the EU.  In theory, sanctions force policy by blocking money from flowing in and out of a country, and thus forcing the sanctioned government to give in to political pressure.  On the surface, this seems like a much better option than forcing the issue through military action whilst risking American lives.  However, it is arguable whether sanctions do more harm to the citizens of the sanctioned country than to the governments they attempt to influence.  In this case, Iranian citizens already suffer from a weak economy and an oppressive government and it is likely that these sanctions will enhance these problems by further devaluing the currency and increasing oil prices.  The goal of these sanctions is to persuade the Iranian government to halt its nuclear program; but with the imminent risk of further stirring tension in the region and without any guarantee of success, there is the possibility that sanctions may do more harm than good.

Posted in 1TVFA Posts, 2Featured Articles, DJILP Staff, Kaitlin FoxComments (0)

University of Denver Sturm College of Law

Posts by Date

September 2017
M T W T F S S
« Aug    
 123
45678910
11121314151617
18192021222324
252627282930  
Resources