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!

Syrian Chemical Weapons to Lebanon: How Likely?

When Israel struck targets in Syria on 30 January, global attention turned to the possibility that the Assad regime might have decided on transferring weapon systems to one of its staunchest backers, the Hizbollah in Lebanon. A prime motivation, so some of the speculation goes, is the Syrian desire to avoid sophisticated weaponry from falling into the hands of insurgents. The column hit by Israeli planes reportedly transported anti-aircraft missiles, a weapon system the Syrian army hardly has any use for at present, but which could threaten its aerial monopoly in rebel hands. Syrian sources claimed that Israel also hit a military research facility, presumably involved in chemical and biological weapon (CBW) development. Unless there were several Israeli raids, the claim must amount to the Middle Eastern equivalent of the magic bullet theory in President John F. Kennedy’s murder investigation. Weapons transfers and a presumed CBW facility: the question whether the Syrians are passing on their chemical weapon (CW) holdings to Hizbollah cannot linger far behind.

Read the rest of this entry »