EU Sanctions on Iranian Businesses Adjudged Illegal

I’ve also been meaning to write something for some time on the recent cases in which the EU General Court has ruled that sanctions imposed on Iranian businesses unilaterally by the EU – i.e. unauthorized by the U.N. Security Council – are unlawful. These are very significant cases, and as I understand it the illegality of these sanctions has become so well settled that the affected parties are now moving on to actions against the EU seeking compensation for the harm caused by these illegal acts of the EU.  As noted in this report of the most recent case, the Court has ruled that “The Council (of EU governments) is in breach of the obligation to state reasons and the obligation to disclose to the applicant … the evidence adduced against it.”  The Bank Saderat case can be viewed at this link.

EU law is one of the many areas outside of my expertise, so I would welcome comments from ACL colleagues and others who could explain to readers the bases for these decisions of the General Court better than I can.

Penn State Symposium Video is Up

You can find it here.  You may have to load an updated media player (called “Mediasite”) on your computer.  It does make the presentation look good, though.  The video is also divided into segments, which makes it easier to find particular panels or presentations. I and Ambassador Butler are on Panel 1. I dont think I’m at my most eloquent here, but I think I do manage to get my points across. I really recommend that you listen to Ambassador Butler’s presentation. I also HIGHLY recommend that you watch both FLynt’s and Hillary’s presentations – Flynt gives the opening address, and Hillary gives the concluding address. I was very imporessed by them, and persuaded of their views.

Arab League Boycott of Nonproliferation Meetings

Wow this is a big deal – the Arab League, led by Egypt, are threatening to boycott nonproliferation meetings, including the upcoming NPT PrepCom meeting in April. They are upset about the lack of progress in actually progressing the agenda of a WMD free zone in the Middle East, and in particular over the non-occurrence of a conference on this issue that NPT states parties agreed by consensus in the final document of the 2010 NPT Review Conference would be held in 2012.

Readers will remember that I wrote a couple of pieces about this months ago when we learned the 2012 conference wouldn’t be happening.  See here and here.

I think some people have underestimated how strongly Arab states feel about this subject and how, as I explained in those previous pieces, they link the concept of a ME WMD Free Zone very directly back to the decision to indefinitely extend the NPT in 1995. To them it was part and parcel of the bargain reached in 1995 that made the positive vote on indefinite extension happen.

I’m personally glad that they are taking a stand on this issue, and I hope that they keep the pressure up and actually follow through with their boycott if necessary. The hypocrisy and inequity of the West’s willfully blind eye toward Israel’s possession and implied threats of use of nuclear weapons are unacceptable to the rest of the states in the ME, as well they should be. I think the Arab states have finally had enough of the failed promises of the West to address this problem, and that they are saying clearly that the future of the NPT regime itself depends on meaningful progress on this issue.

Yousaf Butt on Washington Post/ISIS Magnets Story

I just had to draw readers’ attention to yet another great new piece by Yousaf Butt, this time in the Bulletin of the Atomic Scientists. In a really first class piece of explanatory journalism, Yousaf takes apart and persuasively discredits a Washington Post story based on information and analysis provided by ISIS and David Albright. Yousaf is once again shining the light of actual scientific and objectively analytical rigor, upon the analysis of ISIS and Albright that has become widely seen as superficial, speculative, and agenda driven.

The North Korean Nuclear Test

Readers will remember that I wrote this piece on North Korea before their most recent nuclear explosive test. I’m hearing some talk that they might be prepping for yet another one soon.

Here are a couple of the best pieces I’ve seen written about the new test recently. One is by Graham Allison in the NYT; the other is by Jeffrey Lewis at FP.

I’m not a technical guy, but the fact that NK now seems to have both a plutonium and a uranium track working for producing nuclear weapons; their apparent success in increasing test yield while at the same time making progress in miniaturization; along with the ever increasing range of their missiles – all this is pretty freaking dangerous stuff. 

As I said before, the North Koreans concern me a whole lot more that Iran, India, Pakistan, or Israel. And it’s because of what I perceive to be their just plain nuttiness. Irrationality driven by intense paranoid delusion; the completely autocratic nature of the government and its control over information to the North Korean people; and the government’s over-the-top aggressive rhetoric towards its neighbors and towards the U.S. 

If the North Koreans didn’t have such an obviously developing nuclear weapons program, all of the above wouldn’t bother me so much. On the other hand, if they were developing a nuclear weapons program and weren’t so nutty that wouldn’t bother me so much either. But the combination of the two, and the thought that some day not too far away we may have to deal with a North Korea that really does have the capacity to shoot a nuclear armed ICBM at Japan, and then soon after at the continental U.S. – this seriously concerns me.

As I said in my previous piece, I know well all of the problems associated with any attempt to seriously do something about the North Korean threat. But we have got to come up with something better than just watching this happen.

As this is a blog devoted to arms control law, I suppose I should mention the international law applicable to North Korea right now. In terms of their possession and proliferation of nuclear weapons, the only law currently binding on them is the raft of U.N. Security Council resolutions commanding them to stop their nuclear weapons program and re-join the NPT. Then of course there’s Resolution 1540 on export controls and proliferation generally.

Unfortunately, in this case, one also has to consider the rules of international law on the use of nuclear weapons. This of course was the subject of the 1996 ICJ Advisory Opinion. Not that I expect the North Korean leadership cares, but that opinion, along with what I consider to be settled customary international law at this point, establishes clearly that any use by North Korea of nuclear weapons against any other country, under any reasonably foreseeable circumstances, would be illegal under international law.

The ICJ of course waffled on the question of whether a state could lawfully use nuclear weapons “in an extreme circumstance of self-defense, in which the very survival of a State would be at stake.” Of course, extreme circumstances of self-defense would only go, if anywhere, to the jus ad bellum question of whether a use of force against another state would be lawful. It does not go to the jus in bello question of whether the use of nuclear weapons during an armed conflict would be lawful under international humanitarian law, and its restrictive principles of distinction and proportionality particularly.  As Yoram Dinstein has written about this part of the ICJ’s holding “[This] sentence is the most troublesome. The linkage between the use of nuclear weapons and ‘extreme circumstances’ . . . is hard to digest: it appears to be utterly inconsistent with the basic tenet that [the law of armed conflict] applies equally to all belligerent States, irrespective of the merits of their cause . . .” (The Conduct of Hostilities, pg. 78)

Thus, any international use of nuclear weapons by North Korea, even if it was under full-out attack by the U.S. and South Korea and Japan, would be extremely difficult to justify under international humanitarian law. I’m sure that the imaginative out there might be able to come up with some hypothetical scenarios under which legality might be arguable – perhaps a tactical or low yield use targeting an isolated military object in South Korea, or in the Sea of Japan or East China Sea against a naval target. But fully complying with the distinction and proportionality principles relative to targeting in the modern law of armed conflict, as well as with international environmental law rules operative in armed conflict, would be extremely difficult – approaching impossibility.

Make Tehran a Serious Offer

Excellent new piece from Yousaf Butt today in the National Interest. Kind of sums up everything going on with sanctions and diplomacy regarding Iran. Yousaf is pretty incredible in keeping up with all of the good writing about Iran and producing pieces like this that give, in my opinion, the right analysis and policy recommendations. I dont think he sleeps!

“Going to Tehran: Why the United States Must Come to Terms with the Islamic Republic of Iran”

We’ve just finished the day-long symposium here at Penn State.  The event was well organized, and the hosts have been extremely kind and gracious. I thought my panel went well, and I was very impressed with Ambassador Butler. He has a true wealth of diplomatic experience, and possesses what I think to be a very fundamentally correct understanding of the NPT.  Penn State is very fortunate to have him here teaching in the School of International Affairs.

But the best thing about today, for me, was learning more about Flynt and Hillary Leverett’s new book “Going to Tehran: Why the United States Must Come to Terms with the Islamic Republic of Iran.” Reading their book and hearing both of their truly excellent presentations of their research and arguments in it, was a singular and profound thinking and learning experience for me. They are both first class scholars and intellectuals, and present their arguments in an extremely well organized, thought through, well researched and supported, and persuasive manner. Having read some of their book before I got to the conference, while I agreed on the essential thrust of the book already, there were a few points on which I was not at all sure that I agreed with them. But their discussions of their research and arguments today were persuasive, and I walk away from the conference with my mind changed on some things. That is a good day in academia. Being intellectually challenged, hearing rigorous and persuasive reasons supporting the challenge, and ultimately being persuaded to change your mind because you’ve learned something new.

I think it goes without saying, but I’ll say it anyway, that I HIGHLY recommend to readers Flynt and Hillary’s book.  It seeks to correct so many incorrect assumptions that even professor-types have about Iran, and proposes a particular approach for diplomatic rapprochement with Iran that I think is absolutely the best way forward for the US and the world.

Symposium at Penn State University

We wrote our new book, Going to Tehran: Why the United States Must Come to Terms with the Islamic Republic of Iran, out of a conviction that how Washington deals with Iran over the next few years will largely determine America’s standing as a great power-in the Middle East and globally-for at least the next quarter century. More specifically, if the United States continues its counterproductive quest to dominate the Middle East by intensifying economic warfare, cyber warfare, and covert attacks against Iran and perhaps even launching another war to “disarm” yet another Middle Eastern state of weapons of mass destruction it does not have, the “blowback” against the U.S. position and U.S. interests will be disastrous. If, on the other hand, Washington abandons its delusionally self-damaging quest to dominate the Middle East-and accepting the Islamic Republic as a legitimate entity representing legitimate national interests and “coming to terms” with it is essential in that regard-the United States will be much better able to protect its real and legitimate interests, in the region and globally.

We also believe that the course of U.S.-Iranian relations over the next few years will have enormous implications for the rules-based legal frameworks and governance mechanisms that shape international order in the 21st century. So we are pleased that, using our book as a “launch point,” the Penn State Journal of Law and International Affairs will sponsor a day-long symposium, “The U.S.-Iranian Relationship and the Future of International Order,” on Friday, February 15 see here <http://law.psu.edu/news/us_iranian_relationship> , at Penn State’s main University Park campus in State College, PA.

Both of us will give keynotes-Flynt will open the proceedings by discussing “The Iranian Nuclear Issue, the End of the American Century, and the Future of International Order,” and Hillary will conclude by addressing “How Precipitous a Decline? U.S.-Iranian Relations and the Transition from American Primacy.” There will also be panels on “Iran and the Future of Nuclear Nonproliferation” and “The Iranian Case and Use of Force Doctrine as a Constraint on State Behavior” with outstanding participants, including David Andelman, Editor of the World Policy Journal; Ambassador Richard Butler, A.C.; Vice Admiral James Houck; and Professors Daniel Joyner, Tiyanjana Maluwa, and Mary Ellen O’Connell.

For anyone in or near Pennsylvania who would like to come in person, you would be most welcome. For everyone else, a live webcast <http://law.psu.edu/events/us_iranian_relationship/webcast_2_15>  of the symposium will be available.

-Flynt Leverett and Hillary Mann Leverett,www.GoingToTehran.com

Stop! – Or We’ll Say Stop Again!

So by now we’ve all heard the news that North Korea has conducted a third underground nuclear explosive test, and according to early indications, this one is a significant improvement in terms of yield over the first two. I won’t get into all the speculation about the type of warhead (uranium or plutonium) or its size (whether improved in miniaturization or other features). I’m sure that will be the topic of discussion over at Arms Control Wonk.

To me, what comes to mind is how this is yet another illustration of how misplaced Western governments’ trust has been and continues to be in the power of economic sanctions, whether multilateral or unilateral, to address nuclear weapons proliferation concerns.  It also brings home yet again how misguided the UN Security Council’s strategy has been in dealing with both North Korea and Iran.

The empirical facts about economic sanctions, and the unlikelihood of their success in changing target state behavior in the manner desired by those applying the sanctions, is fairly well documented in existing academic literature and studies. See here, here, and in a piece I wrote about Iran a while ago.

Make no mistake, international sanctions can certainly affect the target state and its economy, and make its citizens’ life a misery. This is certainly happening in both North Korea and Iran. But that’s not the same thing as actually affecting the target state’s behavior in the manner desired, particularly in the context of high politics and security issues like nonproliferation. This is just primal, schoolyard psychology people. If a bully on the school playground orders you not to do something – or else – and if you have any backbone at all, your immediate, natural reaction is to say screw you and do it anyway. Who are you to tell me not to do it? I’ll do it just to show you I can and that you can’t stop me. And its all wrapped up in pride and saving face, and all that just primal psychological stuff that we all know well from our days on the playground and that, at the end of the day, explains so much about international relations – much moreso in my opinion than grand-looking quantitative modeling done by our friends in political science departments (I did a PoliSci MA and was never convinced of the validity of most of the quantitative explanatory work done in the field of international relations theory. Maybe more on that another time).

Rouzbeh Parsi put it well at a conference I recently attended, when he said that international economic sanctions have far more to do with the sanctioners than with the sanctionee.  They serve a cathartic purpose for the sanctioning states, so that they can say themselves and to their friends and constituents, that they are doing something about the commonly perceived problem.  I honestly think that most high level foreign policy makers know deep down that the sanctions programs they keep outwardly relying on in cases like North Korea and Iran aren’t going to work. They just don’t have any other politically realistic options for expressing to their various intended audiences – mostly consisting of each other and of their domestic political constituencies – that they are trying to do something, and are not allowing the target to “get away” with its bad behavior.

The problem is, of course, that the target keeps getting away with its behavior, and actually seems to do more of the behavior the sanctioners don’t like, in order to show the sanctioners that the sanctions aren’t working. Remember the kid in the schoolyard? So what do the sanctioners do? The only thing they can do – you guessed it – apply more sanctions. And the cycle repeats itself.

I’ve always thought of the UN Security Council’s handling of these two cases – Iran and North Korea – using somewhat interwoven mental analogies to the games of chess and poker.  In my opinion, the UNSC’s actions in these cases have shown a really unfortunate inability to look several moves ahead, as one must do in chess, in order to think through how their moves are likely to be countered by the opposing side, and then to what exactly they will do in response at each stage in order to bring their strategy to a successful conclusion (this assumes of course that they have a strategy to begin with). The decisions by the UNSC to command Iran to cease uranium enrichment, and to command North Korea not to conduct further nuclear tests, are prime illustrations of the UNSC overplaying the hand that it originally had (there’s the poker) – i.e. the power and influence that it could predictably exert over the target of their commands – and didn’t fully think through the sequence of moves by both sides that would likely flow from this play of their hand.

The result has been, essentially, that both Iran and North Korea have called the UNSC’s bluff, and now the UNSC is just standing there saying to each one of them “Stop! – or we’ll say stop again!” Unable to withdraw their commands or roll back their sanctions without losing face, the UNSC just looks more and more foolish, and more and more impotent, and their program of action more and more miscalculated, as both targets of their solemnly declared commands and sanctions continue to do exactly what they want to do, rubbing the UNSC’s nose in its inability to stop them. It didn’t have to be this way. If only the members of the UNSC had played more chess and poker.