Weapons of Mass Destruction or of mass delusion? To nail or derail
Ambiguity in Iran’s weapon acquisition dynamics exacerbates mistrust, which is the core reason for the present standoff at the negotiating table. In this paper, I elucidate the Iranian military’s capability and intention by delving into the main componential elements of weapon acquisition.
Weapons of mass destruction (WMDs) are not suitable for the Iranian Army, given its non-mechanized nature; its defensive military posture; its current status as a non-nuclear weapon state; and its sufficient conventional preparation to meet its protective security interests. This paper proposes three interlinked policy approaches to resolve the current impasse: (1) utilize Iran’s technological dependency by requiring maximum international supervision of its dual-use but peaceful technology; (2) encourage Iran’s problem-solving role and pacific behaviour by streamlining the current sanctions to avoid harming the Iranian economy as a whole; and (3) consider an alternative, noncoercive policy that respects Iran’s legitimate technological and conventional defensive needs. This non-coercive approach would open the door to collaboration rather than confrontation through a gradual, piecemeal, and reversible policy.
There are five military reasons why weapons of mass destruction (WMDs) are not an appropriate class of weapons for Iran. Careful examination of these reasons may help us to understand Iran’s position on the acquisition of WMDs. First, tactically speaking, Iran is a non-possessor of nuclear, chemical, and biological weapons; second, the Iranian Army, because of its low number of armored vehicles and its logistical, communication, and command features, is a non-mechanized army; third, the Iranian Army is organized according to a defensive military posture; fourth, WMDs are not strategically suitable for Iran given its protective security interests; and finally, Iran’s current conventional destructive capability meets the regime’s core protective security interests without WMDs.
These five characteristics support the claim that WMDs are not suitable for the Iranian Army in a regional conflict. A dilemma arises, however, between Iran’s secret pursuit of an enrichment program and the last three decades of discriminatory policies refusing Iran access to modern technology. Such a conflict demonstrates the inherent tension between the Nuclear Nonproliferation Treaty’s (NPT’s) prohibition on proliferation (see Articles 1 and 2) and its provision of the right to nuclear energy (see Article 4). Ultimately, the boomerang effect of incremental sanctions and prolonged negotiations with the P5+1 may set both sides on a path with unwanted and unwarranted consequences. To avoid this, the P5+1 should strive to better understand the Iranian military’s weapon acquisition dynamics and to approach negotiations with an impartial and sound judgment.
Two main concepts in understanding weapon acquisition are means and ends. These two notions were introduced into the literature of military studies by Carl von Clausewitz. His definition of war as a “real political instrument, a continuation of political commerce…by other means” highlights the importance of military means and their political ends.This definition has been widely adopted by other strategists as well. For example, Liddle Hart defined strategy as “the art of distributing and applying military means to fulfill ends of policy,”and Hedley Bull considered strategy as “shaping means so as to promote ends in any field of conflict.” Barry Posen focuses on the interaction between means and ends instead of on one as the cause of the other. He defines strategy as a “chain of political ends and military means.”Hence weapon acquisition could be considered a political as well as a military instrument to achieve victory in war and to maintain security in peacetime. By this account, the acquisition of WMDs could be understood as the response of a state’s military policies
to these two aims. Accordingly, a state’s decision for weapon acquisition could be examined in terms of means and ends. Means encompass the tactical utility of a weapon in case of a probable war, and ends embody the strategic utility of a weapon during both war and peacetime. These two tactical and strategic concepts of the utility of WMDs are developed in this study to illuminate the appropriateness of WMDs for the Iranian Army.
2. Tactical Utility of WMDs for Iran
On the tactical level, three characteristics can help to determine Iran’s disposition toward the acquisition or rejection of WMDs. The first characteristic is whether the Iranian military currently possesses WMDs capability; the second is whether it has a mechanized army; and the third is whether the Iranian Army has developed an offensive or defensive military posture. This paper postulates that the closer the Iranian government is to possessing WMDs, the more mechanized its army, and the more offensive its military posture, the less likely it will be to reject WMDs.
2.1 IRANIAN WMDS CAPABILITY
To describe a country as a WMDs possessor means that the state has the capability of mass
producing, weaponizing, and applying lethal chemical or biological agents, or nuclear weapon grade material, in war. By this definition, Iran does not possess chemical, biological, or nuclear weapons.
2.1.1 CHEMICAL WEAPONS CAPABILITY
Iraq’s use of chemical weapons against Iran and Iraqi-Kurdish citizens in the 1980s, which was not met with serious international opprobrium, provided sufficient reason for Iran to research, produce, and develop lethal chemical agents for military application, at least for the period of the armed conflict. Despite such a volatile history, Iran did sign the Chemical Weapons Convention (CWC) on January 13, 1993, the first day that it was open for signature, and it ratified the Convention on November 3, 1997. The CWC entered into force for Iran on December 3, 1997.Iran has publicly acknowledged the existence of a chemical weapons program that was developed during the latter stages of the 1980 to 1988 war with Iraq. On ratifying the CWC, Iran opened its facilities to international inspection and confirmed that all its chemical weapons activities had been terminated and the facilities destroyed prior to the treaty’s entry into force. The CWC utilizes three different verification systems: routine
inspection, challenge inspection, and clarification on State declarations. Since 1999 the Organisation for the Prohibition of Chemical Weapons (OPCW) has conducted scores of routine inspections in Iran, and to date no state has chosen to activate the challenge inspection provisions against Iran. There is only one report that the United States and Britain called for a challenge inspection to question Iran’s initial declaration,but this was resolved by a clarification from Iran.
Iran’s capability in chemical technology and material originated in old chemical industries, such as the Abadan refinery, the first of its kind in the Middle East. A more recent example is Pars Chlorine, a large factory in the north of Iran, which has the technological capability to produce dual-use chemicals. Pars Chlorine started operation in the city of Tabriz on November 22, 1998, with an export capability of two million U.S. dollars. The factory produces various chemicals, such as liquid chlorine, caustic soda, and chlorine acid, which are mainly used in water chlorination, detergents, paper mills, soap, and glass manufacturing. There is sufficient domestic peaceful use for these products in Iran, and the Iranian general balance of trade does not show a significant change in export or import of chemical agents by which one could deduce that Iran is covering up chemical weapons production.
Iranian pursuit of chemical weapons defence has a long history. Between the years 1955 and 1960, eleven Iranian officers attended U.S. Army chemical and biological weapons (CBW) training courses to prepare for chemical weapons defence, given the probability of a Soviet chemical attack. In April 1988, the Yasa Factory of the National Industries Organization began producing gas masks, initially in limited numbers, and a new area decontamination system known as Deraksh-6 was introduced at the same time.11 These preparations provided Iran with sufficient defensive power against chemical weapon attacks in any future war. Although Iran did develop the know-how for mass production of chemical weapons and is prepared for chemical weapons defence operations, it is not currently in possession of chemical weapons, and is therefore considered a non-possessor in this study.
2.1.2 BIOLOGICAL WEAPONS CAPABILITY
The Central Intelligence Agency believes that “Iran probably has the capability to produce at least small quantities of BW [biological warfare] agents.”The U.S. Office of the Director of National Intelligence’s (ODNI’s) January 1 to December 31, 2006, report to Congress, addressing Iranian biological warfare programs, stated that “Iran probably has the capability to produce large-quantities of some Biological Warfare (BW) agents for offensive purposes, if it made the decision to do so.”The 2010 ODNI report changed its 2006 assertion, however, assessing that “Iran probably has the capability to produce some biological warfare (BW) agents for offensive purposes, if it made the decision to do so.” This qualified assessment could be interpreted as an indication that “U.S intelligence probably does not have evidence of any current Iranian BW program.”
Allegations made by Iranian opposition groups regarding Iranian biological warfare programs have never been substantiated, but the level of techniques utilized by Iranian institutes speaks for itself. Iran’s high level of technology and experience suggests that, although Iran has not yet realized an offensive biological weapons program, it has the capability should it decide to do so. The fact is that Iran did accede to the Geneva Protocol in 1929 and ratify the Biological and Toxin Weapons Convention (BTWC) in 1973, and it has actively participated in all subsequent negotiations to develop the Convention. In 1998 Iran hosted a trial inspection visit of the Razi Institute, the biggest institute of its kind in the country, on behalf of the BTWC.
2.1.3 NUCLEAR WEAPONS CAPABILITY
The issue of Iran’s nuclear weapons capability is more complicated and more sensitive than its chemical and biological capabilities, thus it absorbs a great deal of international diplomatic and academic attention. Iran and the International Atomic Energy Agency (IAEA) entered into an agreement for the application of safeguards in connection with the Treaty on the Nonproliferation of Nuclear Weapons. The agreement was entered into force on May 15, 1974, after being circulated by the IAEA on December 13, 1974.18 The IAEA’s most comprehensive report, however, in November 2011, expressed its “serious concerns regarding possible military dimensions to Iran’s nuclear programme.”19 These concerns were not actually new but were rooted in earlier reports confirming Iran’s failure in a number of instances over an extended period of time to meet its obligations under its Safeguards Agreement, with respect to the reporting of nuclear material; its processing and its
use; and the declaration of facilities where such material has been processed and stored. The same controversial 2011 report, however, as well as a few reports in 2012, detracted from the above concerns by conveying that “the Agency continues to verify the non-diversion of declared nuclear material at the nuclear facilities and LOFs [locations outside of the facilities] declared by Iran under its Safeguards Agreement.”
Meanwhile, past estimates about when Iran might be able to produce a nuclear weapon have been proven unreliable. In 2011 Director of the IISS Non-Proliferation and Disarmament Programme Mark Fitzpatrick concluded that, if Iran uses all its centrifuges at Natanz for weapons purposes, and if these centrifuges can continue to perform at their maximum output, then “a little over a year and seven months would be required for the first bomb’s worth of HEU [highly-enriched uranium].” Fitzpatrick concluded in an October 2011 report that “[w]e can have high confidence that Iran does not today have a nuclear weapon and that it won’t have one…a year from now,” but he confirmed in the same report that “I have no confidence that Iran won’t have a nuclear weapon two years from now. If they wanted to go for it and if everything went right.”This assessment does not take into account the time needed for the weaponization of the HEU or the gap between a nuclear explosive
device and a deliverable weapon. If we also consider the estimation of outgoing Mossad Director Meir Dagan, that “Iran will not have a nuclear bomb earlier than 2015,”the unreliability of current forecasts would be doubled.
Joseph Cirincione discusses five factors that are drivers or barriers for nuclear proliferation, namely (1) national security enhancement; (2) symbolic value of prestige; (3) domestic politics of three musketeers associating soldier, scientist, and political leadership ; (4) technology to maintain scientific achievements; and (5) economics that is commonly shared by the other four dynamics. Cirincione believes that, of these five dynamics for proliferation, security is the most relevant factor for Iran, given Iran’s peripheral stance that it would have much to gain and little to lose, while the other elements play minor roles. Nuclear weapons are non-prestigious to Iran because Iran has identified itself as being against proliferation in many regional and international conferences, and it has gained much prestige for its anti-proliferation disposition.
Domestically, harmony between military and scientific bureaucrats in exaggerating unsubstantiated security threats and/ or overstating the utilities of nuclear weapons may not be sufficient to convince Iran’s theological leadership, who declared WMDs a religiously forbidden (haraam) class of weapons. Technologically, the case of Iraq proved that developing countries are vulnerable to a “technology-denial strategy.” In fact, the combination of sanctions and UN inspections crippled Iraq’s nuclear project. Nuclear weapons are neither economically reasonable nor could they be substitutes for conventional weapons. Each class of weapons is designed for a particular mission and function, thus a WMD cannot replace conventional weapons, nor can it compensate for any weaknesses in conventional arms.
Finally, could nuclear weapons be an ultimate security guarantor against an existential threat to the Islamic Republic of Iran? Does any existential enmity exist around Iran to threaten its core and principal security interests? The second part of this study examines the background of the enmity and the regional conflicts surrounding Iran. It deduces that, after the fall of Saddam Hussein in Iraq, there has been no core security threat near Iran that is likely to necessitate the use of WMDs. Thus, a security model could not be applied to gain support for Iran acquiring nuclear weapons. Two classic cases that appear similar to Iran, South Africa during apartheid and Israel, are rejected because the Cold War has ended and the threats surrounding Iran are non-existential.
It is questionable, however, why the Islamic Republic decided to secretly pursue its enrichment program in the mid-1980s, in the middle of the war with Iraq. The Iranian concealment policy and its safeguard failures could be explained on two accounts: (1) technological discriminatory restrains; and (2) Saddam’s WMD preparation. Iran’s decision was in part a response to the explicit technological discrimination envisaged in the Western countries’ policy of refusing Iran technological access, and to the Western countries’ self-assigned role of denying Iran its legal rights under the NPT to access the peaceful uses of nuclear technology. In addition, Iraq’s application of WMD against not only military targets but also civilians during the Iran-Iraq War left Iran with no choice but to engage in preliminary phases of enrichment, far short of a nuclear deterrence, to discourage such
a belligerent enemy from entering into a mutually expensive nuclear arms race. The multifaceted capability of Iraqi preparation for nuclear, chemical, and biological weapons was revealed after Iraq’s first defeat in 1991, but secret reports of its activities were circulated to Iranian services much earlier through Iraqi oppositionists living in Iran during the war. Those reports of Iraqi WMD activities and actual use of chemical weapons substantiated a real threat to Iranian security until the collapse of Saddam’s regime. Hence, mutual understanding between Iran and the IAEA regarding past Iraqi threats, as well as a discussion of technological discriminatory restraints, formed the cornerstone of their agreement in 2003 to initiate corrective measurements to resolve past issues.
The IAEA report on Iran, published August 30, 2012, confirmed that Iran has increased its production of twenty-percent-enriched uranium, and it has doubled the number of centrifuges it has installed (without feeding uranium hexafluoride [UF6] to start working) at the Fordow underground site. It was also revealed, however, that Iran had converted about half of its twentypercent- enriched uranium into fuel plates for a small research reactor in Tehran. Iran’s decision to convert so much of its twenty-percent-enriched uranium into fuel plates makes it very difficult to reconvert the uranium back again to be used in weapons application, and thus moves Iran further away from a weapon capability.
Despite many speculations that Iran is looking for nuclear weapons, the country is a member of the NPT and has repeatedly denied any intention of acquiring nuclear weapons. It has, however, long been involved in developing nuclear technology. Thus, if Iran decides to produce a nuclear explosive device, there is an embryonic capability to do so in a certain period of time, albeit under harsh and risky international, as well as regional, circumstances.
2.2 A MECHANIZED OR NON-MECHANIZED ARMY
The second major characteristic to consider in determining Iran’s disposition toward the acquisition of weapons of mass destruction is whether it has a mechanized or a non-mechanized (infantry-based) army. The infantry-based force differs from the mechanized-based army primarily in terms of size, technological level, and the ability to integrate arms into operations.
Infantry-based forces have some armor, but they rely on dismounted or motorized infantry for the bulk of their combat power. At the most, they conduct set-piece operations, integrating arms at the tactical level. There is a significant change in the outcome of a mass destructive war depending on whether an army is mechanized. Mechanized armies have two advantages over non-mechanized armies in such wars. First, a mechanized army has a greater maneuvering capability and greater speed, which will help to minimize the effects of WMDs in combat. Second, armored vehicles are sealed to be resistant to a WMDs attack’s side-effects, such as nuclear heat and radiation orbiological and chemical contamination.
To define an army as mechanized, the percentage of armored vehicles could be considered a crucial element. According to U.S. military authorities, “Mechanized-based armies normally mount at least 40 percent of their ground forces in armored vehicles”.
Thus, one way to assess whether an army is mechanized or non-mechanized is to divide the total active military personnel of the army by the number of its armored vehicles to determine the quantitative ratio of the personnel to the mechanized power of the army. The bigger this number, the less mechanized an army.
With 523,000 active military personnel, Iran has the most populous army of the Persian Gulf region. But this large manpower is not matched by a proportionate number of armored vehicles. The total number of military armored vehicles in the Iranian Army, according to the Military Balance for 2011, is approximately 2,978.Thus, there are only 5.7 armored vehicles for every 1,000 active military personnel (including the army, navy and air force). This ratio is 27.6 per 1,000 for Saudi Arabia and 81.5 per 1,000 for Israel. Table 2 shows the ratios across the Persian Gulf.
Iranian efforts to build up a mechanized army have made slow progress since the end of the war with Iraq given financial problems, foreign restrictions, and above all, the state’s lack of an urgent objective to enlarge the mechanized echelon of the army.
Still, it is not sufficient to count main battle tanks and armored personnel carriers to judge whether an army is mechanized. At least two qualitative elements should be added to the quantitative analysis: (1) the power of mobilization or maneuverability; and (2) organizational coordination.In determining the mobilization power of a mechanized army, logistics can produce qualitative improvements in military effectiveness. The organizational effectiveness of an army can be explained as the coordination between the different arms of a force, not only between ground forces, but also between the army, the air force, and other participants in an operation.
The qualitative shortfall of the Iranian Army to provide a professional mechanized force could be traced to its logistical and coordination problems, which have historic and social roots. Iran’s modern army is almost eighty-five years old, and its official formation dates back to the first conscript army in 1926, which came after a controversial approval by the parliament under the direct influence and insistence of Reza Shah Pahlavi. The logistical problems of the Iranian Army did not begin with the revolution. Two determinant factors were in place before 1979, and they have not yet been resolved. The first is the diversification of military purchases, and the second is the lack of a united military command, even at the regional level. By 1979 Iran had military procurement contracts with thirty-three nations. It is almost impossible to prepare the logistics necessary for such a diversified army in a war for an extended period of time.
Even before 1979, the Iranian Army’s lack of unified command was represented in its regional divisions’ separate operational and logistics commands. Although regionally organized, military units were not concentrated, and their operational and logistics commands reported separately to Tehran. The political reasoning behind these military decisions was to avoid a power base that might attempt a coup. This prevented military divisions from achieving rapid action and organizational mobilization, and thus loosened the basic infrastructure necessary for the operation of a mechanized army.
Since the Islamic Revolution of 1979, another military division has grown: the Islamic Revolutionary Guard Corps (IRGC), or Sepah Pasdaran Enghelab Islami. The IRGC competes with the national army in terms of allocation of resources and loyalty to the regime. In 2005 a new doctrine was introduced to the Iranian Army, namely the mosaic defense, which was designed to overhaul the command-and-control structure of the IRGC’s land forces, increasing their independence and flexibility in responding to local events. This new doctrine, while helpful in defensive operations, may not succeed in offensive operations, because of both insufficient power projection capability and institutional and bureaucratic differentiations between the IRGC and the regular national army. The duality in the armies of one state decreases the effectiveness of the whole army and divides material units, command, and communication into two groups of independent, parallel players. Therefore, because of its low number of armored vehicles; its thin logistical preparation; and its lack of effective communication, control, command, and military coordination to sustain a massive offensive operation, the Iranian Army is non-mechanized.
2.3 MILITARY POSTURE
Finally, the importance of WMDs for an army can be determined by its military posture. WMDs are primarily used as offensive weapons because of their surprise effect. They are, therefore, well suited to an army with an offensive military posture. Each military posture necessitates specific, measurable preparations and capabilities. A country with a defensive military posture does not want to start a WMDs war because it would not be prepared for such a war. In broad terms, a state’s military posture includes force structure and operational strategy, and it can be determined by examining four factors: geography, military technology, economy, and politics. The Iranian military posture is defensive in each of these regards.
Geographical conditions compose the strategic depth of a state. Iran, with over 75 million inhabitants populated across 1.64 million square kilometers of uneven land, has enough natural and human resources that its national security could be better served by resorting to a defensive military posture.
Technological improvements and their military usage can result in the destruction of enemies at much greater distances and with much greater accuracy. Information technology, particularly in satellite command and control, could diminish the strategic value of land. Any such decreases could increase the probability of preemptive, and thus offensive, considerations in the military posture of a state. Yet modern military equipment and its related technology are imported commodities in Iran. The Western boycott of military technology and equipment to Iran has diminished its technological improvements, particularly in the high-tech military industry and modern warfare. These restrains have pushed Iran’s military thinkers to rely on their own capabilities, which were modest at best during wartime and highly protracted afterward. This is particularly true with regard to more complicated technologies. Achievements have primarily been in less complicated weapon systems, such as small arms and light weapons, mortars, ammunitions, and light army personnel carriers. According to The Military Balance, “neither the IRGC nor Artesh (national army) is sufficiently well organized, equipped or trained to conduct sustained battle beyond Iran’s borders.”
Economic conditions can also act as a barrier to an offensive military posture, given the cost of keeping a military force in an alert position. Offensive forces, in comparison with defensive ones, should be greater in number and have better training and equipment to perform successful operations, which makes the whole process an expensive one. Thus, financial problems may motivate a state to take a defensive military posture. Comprehensive sanctions by the UN Security Council and even more severe unilateral sanctions by the United States and the European Union, which most recently extended to the financial transactions of the Central Bank of Iran, have highly affected Iran’s economy, to the extent that the country cannot even realize the benefits from its high rate of oil exports and the surplus made in relation to its imports. The high percentage of the annual inflation rate, in addition to economic stagnation and diminishing economic growth from 7.5 percent in 2002 to 5.1 percent in 2004 and 1.8 percent in 2009, in the face of ever rising oil prices, has held the whole economy of Iran in a futile situation. Therefore, economic problems motivate Iran to take a defensive military posture.
Finally, political circumstances, which compel a country to take an offensive or a defensive military posture, have both internal and external origins. Internally, they could involve the revolutionary, ideological, and hegemonic expectations that a state promotes. External political conditions are based on the level of uncertainty a state is suffering from with regard to its surrounding neighbors or the international system. Internally, more than three decades of revolutionary life, hard economic conditions afterward, and internal factional rivalry, particularly after the 2009 presidential election, have led to restraint in the idea of exporting the Islamic Revolution. Iran’s revolutionary and ideological self-expectations are now practically limited to its national boundaries.
It is arguable that Iranian support for the Shiite Hezbollah and Sunni Hamas groups against Israeli occupational forces represents an offensive military posture beyond Iranian borders. This support, however, demonstrates a religious commitment, and it is more support for a global Islamic idea than for an Iranian ideological policymaking that could instigate Israeli antagonism. The fact that the Organization of Islamic Cooperation (OIC), the second largest intergovernmental organization after the United Nations, with membership from fifty-sevenstates spread over four continents, was established in 1969, only after the arson of al-Aqsa Mosque in occupied Jerusalem, speaks for itself.42 The majority of resolutions approved by this organization are about Palestine. Each year, the OIC special committee of Palestine confirms all the resolutions in three areas: (1) the “question of Palestine”; (2) “AlQuds” (the Arabic term for Jerusalem); and (3) the “Arab-Israeli conflict” adopted by the Islamic conferences and AlQuds Committee. It also reaffirms the centrality of Palestine’s cause for the whole Islamic community (literally named as Ummah). Beyond any ideological difficulty, the fact that Iran does not share a border with Israel changes the nature of their hostility into a proxy war at most, far from their core security interests.
After the occupation of Iraq and the formation of a new, friendly government with a Shiite majority in power, the major threat of Iraq to Iran has been sharply diminished. The U.S. presence at both the eastern and western borders of Iran could be considered a new threat, of course, but this is a temporary situation that will change over time. In addition, both Iran and the United States share the interest of keeping current administrations in Iraq and Afghanistan stable, under their influence, and working properly—at least until they have better alternatives. Iran, therefore, has no pressing reasons to feel that its national security is threatened by its current neighbors.
Iran is unwilling to use WMDs as a strategic deterrent because this would entail costs similar to an offensive doctrine, including heavy costs for preliminary requirements, extensive material preparations, and participation in arms races,. It would also go beyond Iran’s natural position, which is based on denying any war objectives against its core security interests. While offensive doctrine aims to disarm an adversary by destroying its armed forces, defensive doctrine sets its sights on denying an adversary’s probable war objectives. Deterrent doctrine aims to punish an aggressor and to raise their costs without reducing one’s own, thus encompassing the main characteristics of “denial” and “retaliation” of both defensive and offensive doctrines.As a result, a deterrent doctrine is considered to have the same effect and to need the same preparations as an offensive doctrine. Offensive and deterrent doctrines increase the probability and intensity of arm races because they create the logic of a preemptive attack.Defensive doctrine, by contrast, produces fewer such destabilizing effects. Iran would therefore be better off with a defensive military posture.
3. The Strategic Utility of WMDs for Iran
The strategic utility of WMDs is not in the military field, but against urban-industrial centers to trigger a collapse on the enemy’s “home front.”Thus, the strategic utility of WMDs could be analyzed in two specific ways: the preparation for a mass destructive capability, and the core aggressive or protective security interests that could lead to such massive destruction. It is postulated that, to the extent that Iran’s mass destructive power is based more on WMDs than on conventional weapons, and to the extent that its core security interests are more aggressive than protective, it is less likely to abandon its pursuit of weapons of mass destruction. Thus, Iran’s mass destructive capability could be analyzed based on its preparation for applying WMDs or on its conventional substitutions. These conventional substitutions could utilize high-explosive ammunition, and their delivery systems could consist of ballistic missiles and air strategic bombers. The next step is to study the background of enmity in the region to determine whether Iran is likely to require weapons of mass destruction to advance a core security interest. The background of enmity involves the history of regional conflicts, which affect the national security of a state. Core security interests can be classified as protective or aggressive. Protective security interests are those national security issues that must be protected to avoid a core security threat to the state (e.g., the territorial integrity of a state). Aggressive security interests are those that can push a state to threaten a core security interest of another state.
3.1 IRAN’S CONVENTIONAL MASS DESTRUCTIVE CAPABILITY
Conventional high-explosive ammunitions could be considered to have massive destructive capabilities when delivered to crowded urban areas. Thus, the analysis of Iranian conventional mass destructive capability includes ballistic missiles and combat aircraft. Iran has a number of mediumand short-range ballistic missiles. The short-range ballistic missiles are mostly developed internally. More important to this study is Iran’s improving medium-range missile capability, which includes Scud B and C; Shahab 1, 2, and 3; Ghadr 1; and Sejjil 2 missiles. The Military Balance reported in 2005, and again in 2011, that Iran has about 18 Scud B/C launchers, with 200 to 300 surface-tosurface Scud B/C missiles; and 30 CSS-8 launchers, with 175 tactical missiles.Scud B missiles, particularly the North Korean made, have a 320 to 340 kilometer (km) range and a 1,000 kilogram (kg) payload. Scud C with a half payload has a 500 to 600 km range.
Shahab is a liquid propellant missile system that was indigenously developed. Shahab 1 and 2 are reverse-engineered copies of Scud B and Scud C. They are therefore included in the above estimate of Iran’s Scud missiles inventory. Shahab 3 is a modified No-dong North Korean system with a 1,300–1,500 km range and 760–1,100 kg warhead, and Iran is likely capable of deploying a single battalion consisting of 6 launchers and 24 missiles in the field. Therefore, as Gary Samore confirmed, it seems that Iran has established a technologically advanced ballistic missile program, which suggests that Iran intends to rely on missiles as long-range strike capabilities. Two other long-range missiles under development by Iran are Ghadr 1 and Sejjil 2, which are supposed to be launched by the same 6 launchers as the Shahab 3. The Sejjile 2, with a 2,200 to 2,400 km range, is the longest range solid-fuel missile under development. Despite success in its flight test, the Sejjile 2 is still a couple of years and several tests away from becoming operational. From a military perspective, the utility of Iran’s missile strike would be severely limited by its poor accuracy; hence, without a high casualty rate, it could not be applied against critical military activities in the field, or even against the enemy’s cities and economic industrial complexes. It is thus questionable why Iran has developed its ballistic missile program to such an extent, given that it is too inaccurate to use effectively with any conventional explosives.
The Iranian missile program has a history that makes it a legitimate conventional program, despite its shortcomings and unreliability as a system. Historically, the Iranian missile program is a remnant of two events during the 1980–88 war: the Iraqi use of Scud missiles against Iranian cities; and the U.S. military arms embargo. First, the Iranian air defense establishment had the ability to intercept planes and siren their imminent attack to the cities; long range-missiles, however, could escape short range interception. Hence, during the war, missiles had an effect like a surprise, large-scale terrorist attack against the Iranian home front. Second, the existing U.S. arms embargo on complicated arms, including U.S. fighter jets and long-range missiles, left Iran empty handed and unable to respond in kind to the Iraqi missile attack. The Iranian indigenous missile industry was therefore established in response to a real threat in kind from Iraq. Although the program was formed only later in the war, and in much more limited scope and numbers than Iraq’s program, the continuation of the U.S. ban on Iranian military imports provided enough reasons to continue its development.
Another point to consider is the crosswise gap between Iran’s furthest points in the northwest and the southeast, which is longer than the range of any Iranian missiles. Iran’s diagonal distance from the Azerbaijan Province in the northwest to the Sisstan Province in the southeast is approximately 2,333 km. Such a long distance could provide a militarily convincing reason, based on defensive rationality, for the high range of Iran’s missile capability.
Combat aircraft, which are normally equipped to deliver ordnance in air-to-air or air-to-surface operations, include Fighter Aircraft (FTR) and Fighter Ground Attack (FGA). FTR is specified for aerial, while FGA is a dual-capable aircraft fighter, reconnaissance, and even bomber. Thus, FGA is more suitable for mass destruction. Iran has 108 FGA, including 65 F-4D/ E Phantom II; 30 Su-24MK; 7 Su-25K; and 10 Mirage F-1E (including former Iraqi fighters); and up to 3 Saegheh indigenously developed FGA. A long-range bomber must have an unrefueled radius of action of greater than 5,000 km; medium range, 1,000-5,000 km; and short-range, less than 1,000 km. Light bombers are those with a payload of under 10,000 kg. By this definition, all Iranian bombers can be classified as short-range light bombers. Iran therefore has a limited number of missiles with a range of up to 600 km, and a few more missiles with a range of up to 1,300 km; it also has short range aircraft bombers with less than a 1,000 km combat radius, which gives it a limited capacity for conventional mass destruction. Thus, the Iranian Army could be considered regionally to have a limited massive destructive capability, given its conventional capability.
3.2 IRAN’S CORE SECURITY INTERESTS AND THE HISTORY OF REGIONAL ENMITY
Does a major enough threat or background of enmity exist between Iran and its rival neighbors to accelerate the probability of the use of weapons of mass destruction? The background of enmity in the region should be assessed to explain the regional conflicts that could have an effect on the national security of Iran. As many experts have observed, Iran’s security environment has improved dramatically over the past decade, with the neutralization of its two greatest external threats: Saddam Hussein’s Ba’athist regime in Iraq; and the Taliban in Afghanistan.The elimination of Tehran’s traditional security threats does not mean that Iran has stable relationships with its neighbors across the board, but they have not yet threatened its homeland and core national security interests. In the meantime, there are other possible reasons why Iran would be in need of a strategic deterrent as a basic insurance policy, including variables such as the presence of U.S. forces on both Iran’s western and eastern borders, representing a hostile and nuclear-armed superpower; a history of enmity with neighboring Iraq, which has harbored ambitions of nuclear WMD attacks in the region; and the surrounding presence of other nuclear-armed states, including Russia and Pakistan.
Although the presence of U.S. military forces in Iraq, Afghanistan, and the Persian Gulf presents new challenges, it has a temporary nature and is not threatening to the territorial integrity of Iran. The professional behavior of the Iranian and U.S. Navies in the Persian Gulf over the last two decades exemplifies the possibility of harmony and even cooperation in harsh situations such as fighting piracy and responding to natural sea disasters.
Other than the two World Wars, Iran has faced a military threat to its national security only twice during the twentieth century, namely the Soviet occupation of the north-western part of the Iranian Azerbaijan Province; and the war with Iraq. In the first incident, Soviet troops supported the call for the separation and independence of Iranian Azerbaijan and its unification with the Republic of the Soviet Azerbaijan in the aftermath of World War II . Although this was solved diplomatically, the incident left a legacy of ambition for the unification of a greater Azerbaijan that would include several Iranian provinces and one of the Soviet republics in the region. Following the disintegration of the Soviet Union, Iran has developed good relationships with the three new republics of Armenia, Azerbaijan, and Turkmenistan in bilateral as well as regional agreements, such as the Economic Cooperation Organization. In addition, the political and military weaknesses of these republics, along with the cooperative bilateral relationship between Iran and Russia, prevent these newly emerged states—Azerbaijan in particular—from making any boundary claims against Iran. Moreover, Iran plays a balancer role in relation to these republics, maintaining peace and preventing one from gaining superiority over the others.
The second threat was the Iraq-Iran border disputes and clashes. Iraqi claims over the boundary river of Arvand, or Shatt al-Arab, have led to fighting between the two countries on three occasions. There were two minor conflicts before the Islamic Revolution and one major war from 1980 to 1988. The two minor conflicts concluded with the Algeria Agreement in 1975, and the major one ended after the Iraqi invasion of Kuwait in 1990. The U.S. occupation of Iraq in 2003, which led to the removal of Iraq’s anti-Iran Ba’athist regime and the instatement of a friendly regime with a majority Shiite sector in power, further reduced Iraq’s threat to Iran.
Two other threats to the national security of Iran are: (1) Iran’s rivalry with Pakistan over Afghanistan; and (2) its dispute with Sharjah, one of the seven Sheikhdoms of the United Arab Emirates (UAE), regarding the sovereignty of Iran over three islands in the Persian Gulf. The difficult situation in Afghanistan involves not only the remnants of Taliban and al-Qaida, but also narcotics and well-organized gangs. Illegal operations have already corrupted part of the Afghan administration, particularly in the provinces farthest from Kabul. It is estimated that about 2,000 illegal armed groups operate throughout the country.They are heavily engaged in the narcotics trade, which threatens the security and the stability of Afghan society and of its neighbors—Iran in particular—to the extent that “criminality is probably a more serious threat than terrorism.”
The rivalry between Iran and Pakistan in Afghanistan has not been a core security threat for either country, more closely resembling a proxy war far removed from the heartlands of the two countries. Traditionally, Iran has sympathized with the Shiite minority, Tajikistan has supported the Tajik minority, and Pakistan has supported the Sunni Pashtoon minority. In the meantime, the gradual reduction of U.S. and European NATO troops, and their replacement with the Afghan National Army, diminishes the U.S. threat to Iran, while increasing Iran’s responsibility as a major player in the security of the region. Since the defeat of the Taliban, Iran has actively participated in the reconstruction process of Afghanistan, and it is among the biggest donors. By contrast, Pakistan has lost the majority of its influence. The nature of threat coming from Afghanistan has therefore witnessed a major shift from military-political to a softer social threat.
The acquisition of nuclear weapons is not, in fact, a matter of national security for Iran. “Nuclear weapons for Iran are not critically vital as they are for Pakistan in relation to its more populous and stronger rival, India, or for India in relation to China and their rival global context.” With the destruction of the Iraqi mass destructive capability, Iran is left with no rivals among its neighbours that possess a similar capability, with the exception of Pakistan. Pakistan is not considered a critical threat, however, because of Iran’s support for Pakistan in its dispute with India over Kashmir, as well as the old and profound friendly relationship between the two countries: Iran was the first country to recognize the independence of Pakistan and to militarily support it during its war with India; and Pakistan in turn supported Iran in its war with Iraq. In addition, there remains a large Shiite minority in Pakistan and, finally, one should not forget that the initial Iranian centrifuge technology and material was imported from Pakistan with the full knowledge of Pakistani military and intelligence.
One more minor dispute between Iran and its neighbors is with Sharjah, but this dispute has already shifted to a regional debate over Iranian sovereignty in the Persian Gulf. Iran followed a bilateral solution for Abu Musa and the two Tonbs, and signed a modus vivendi memorandum of understanding (MoU) with the ruler of Sharjah in 1971 for economic and security cooperation over Abu Musa. The MoU ruled out the possibility of violent actions over Abu Musa by either side in the future. Support by the Gulf Cooperation Council (GCC) member states for the UAE’s sovereignty over all three islands, however, changed an ordinary bilateral debate into a regional discussion. Iran challenged the GCC support for the UAE by declaring a twelve-mile limit for its territorial water, which placed all three islands within the sovereignty of Iran. These three islands represent a strategic concern for Iran because all of its crude oil is exported through the Persian Gulf and the straits of Hormuz—thus, these islands guarantee the safe passage of Iranian oil to the whole world. No other country on the Persian Gulf is in a similar position. By delivering the responsibility for the security of Abu Musa to Iran in the aftermath of the British evacuation, the MoU of 1971 indirectly recognized sovereignty of Iran over this island. The military presence of Iran in these islands is not a threat to the other Persian Gulf states, given the improbability of war. For all these reasons, Iran’s security interests are protective, not aggressive.
4. Conclusion and Policy Recommendations
Iran is a non-possessor of nuclear weapons and, despite its preparation for defense against chemical weapons and its procurement of the know-how for their mass production, it is also a non-possessor of chemical weapons. Iran has not exploited any offensive biological weapons program, although it has the capability to develop such a program if it so decides. The Iranian Army, because of its low number of armored vehicles, and also its logistical, communication, and command features, in comparison with its rival neighbors, is quantitatively and qualitatively a non-mechanized army organized according to a defensive military posture. In sum, Iran is unlikely to pursue the acquisition of nuclear weapons for the following reasons:
- Iran would not be in a position to integrate WMD systems into its war-fighting doctrine, because Iran has not been preparing for the different aspects of a massive operation utilizing WMDs. Thus, they would not be tactically appropriate in a regional conflict.
- The Iranian Army, because of its low number of armored vehicles and its logistical, communication, and command features, is both quantitatively and qualitatively a non-mechanized army organized according to a defensive military posture.
- Iran’s security interests are protective, not aggressive, and its conventional destructive capability meets its core protective security interests without mass destructive weapons. Iran would not need strategic weapons to coerce adversaries or to pursue aggressive interests, because there are no such compelling interests within the core security interests of Iran.
Why, then, is Iran’s position regarding WMDs frequently distorted? Western countries’ discriminatory export control regimes over the last thirty years could be considered a main tactical explanation for Iran’s ostensible pursuit of mass destructive weapons. Long time regimes of export control and military embargoes, even on conventional weapons, which commenced long before the opening of the Iranian nuclear file, have had a boomerang effect. When added to the current mixture of unilateral, multinational, and international sanctions, it may explain the current stalemate in negotiations, Iran’s lack of trust of the P5+1 negotiation objectives, and the failure of the UN machinery to resolve this issue.
This paper offers three main policy recommendations to help resolve the current impasse in negotiations. First, the non-indigenous nature of the Iranian nuclear industry and its technological dependency on foreign suppliers suggest that possession of dual-use technology and materials is necessary but not sufficient for proliferation. This is because of Iran’s vulnerability to foreign supply for sensitive materials and technology. Thus, this technological dependency, in addition to the strict international supervision that Iran is under (such as the IAEA Safeguards and OPCW inspections), could be utilized interdependently in a balancing approach to manage Iran’s possession of dual use, but reasonably proliferation-free, technology. An intrusive system of tense and thorough observation by the international professional community could help to support this approach. The link between the promotional and regulatory aspects of a multilateral agreement on employing dual use technology may work as a means of crisis management through strict regulation and continuous supervision. It could be much more successful than current incremental sanctions that have entailed crisis augmentation.
Second, the P5+1 and the United States, in particular, should support Iran’s role as a balancer in the region. The non-adversarial and non-ideological nature of Iranian foreign policymaking in relation to its neighboring countries could make Iran a vital player in better stabilizing the region. Iranian behavior in the region shows a history of pacifism and problem solving. Take, for example, Iran’s tacit and indirect cooperation with the United States during the Afghanistan campaign against the Taliban; its calming and controlling of Shiite extremists in Iraq; its role as a middleman between Azerbaijan and Armenia; and its avoidance of radicalization on a range of regional issues, from Chechnya to the Bahrain uprisings. The professional behavior of the Iranian Navy and the U.S. Navy in the Persian Gulf over the last two decades is another example of the possibility for harmony and cooperation in the region.
Finally, the current U.S. policies of isolation, threats, sabotage, and sanctions have been applied and have proven to be unsuccessful in curbing the question of the Iranian nuclear file, or even in slowing down Iran’s mastery of nuclear enrichment. As Kenneth Katzman most recently reported to the U.S. Congress, “The principal objective of international sanctions—tocompel Iran to verifiably confine its nuclear program to purely peaceful uses—has not produced that outcome to date”.It is therefore time to rethink the efficiency of the policy of coercion by testing an alternative, non-coercive policy. This includes respecting Iran’s legitimate technological and conventional defensive needs, and streamlining the current sanctions to avoid harming the Iranian economy as a whole, which only weakens and thins the middle class—the key sponsors of temperate policies in Iranian society and body politic—rather than curtailing suspicious nuclear activity in Iran. The non-coercive approach would be an opening to collaboration rather than to confrontation as a gradual, piecemeal, and reversible policy. Not only can it open breathing space for a constructive approach to break
the current stalemate, but by addressing legitimate concerns on both sides, it could initiate a move toward a more stable Persian Gulf through mutual understanding, cooperation, and trust.
 United Nations Office for Disarmament Affairs (UNODA), “Treaty on the Non-Proliferation of Nuclear
Weapons” (New York: UNODA), http://www.un.org/disarmament/WMD/Nuclear/NPTtext.shtml.
 Carl von Clausewitz, On War, Vol. 1, trans. J.J. Graham (London: Kegan Paul, 1911), p. 23.
 Barry Buzan, An Introduction to Strategic Studies: Military Technology and International Relations, (London:Macmillan, 1987), p. 3.
 Ibid., p. 3.
 Barry R. Posen, The Sources of Military Doctrine: France, Britain, and Germany between the World Wars (Ithaca, N.Y.: Cornell University Press, 1984), p. 25.
 Gary Samore, Iran’s Strategic Weapons Programs: A Net Assessment (London: International Institute for Strategic Studies [IISS], 2005), p. 73.
 British Broadcasting Corporation, Summary of World Broadcasts, weekly report, MEW/0566 WME/, p. 4.
 International Trade Statistic Year Book 2002, Vol. 1(New York: UN Reproduction Section, 2004), pp. 489–493
 Gordon M. Burck and Charles C. Flowerree, International Handbook on Chemical Weapons Proliferation (Boulder, Colo.: Westview, 1991), p. 252.
 Ibid., p. 252.
 “Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions for the Period 1 January to 31 December 2006” (Washington, D.C.: Office of the Director of National Intelligence, 2008), p. 4, http://www.counterwmd.gov/files/Acquisition_Technology_Report_030308.pdf.
 »Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction« and Advanced Conventional Munitions, Covering 1 January to 31 December 2010” (Washington, D.C.: Director
 For a detailed analysis, see Richard F. Pilch and Raymond A. Zilinskas, eds, Encyclopedia of Bioterrorism Defense (Hoboken, N.J.: Wiley-Liss, 2005), pp. 278–280.
 “Unclassified Report to Congress on the Acquisition of Technology Relating to Weapons of Mass Destruction and Advanced Conventional Munitions for the period 1 January to 31 December 2006,” http://www.counterwmd.gov/files/Acquisition_Technology_Report_030308.pdf.
iaea.org/newscenter/focus/iaeairan/index.shtml. See also Bruno Pellaud, Negotiating with Iran: Testing Alternative Approaches, in Joachim Krause, ed., Iran’s Nuclear Programme: Strategic Implications (New York: Routledge, 2012), pp. 53–81.
 See the International Atomic Energy Agency (IAEA), “The Text of the Agreement between Iran and the Agency for the Application of Safeguards in Connection with the Treaty on the Non-Proliferation of Nuclear Weapons,” INFCIRC/214 (Vienna: IAEA, December 1973), http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf.
 See IAEA, “Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council
resolutions in the Islamic Republic of Iran,” report by the director general of the IAEA to the boards of governors, GOV/2011/65 (Vienna: IAEA, November 8, 2011), par. 53,
 See ibid., par. 52.
 “Weapons Proliferation in the New World Order,” 102nd Congress, 2nd sess., January 1992, which concluded that Iran would have the bomb by 2000. Cited in Joseph Cirincione, Jon B.Wolfsthal, and Miriam Rajkumar, Deadly Arsenals, Nuclear, Biological, and Chemical Threats, 2nd ed. (Washington, D.C.: Carnegie Endowment for International Peace, 2005), pp. 295, 308.
 Mark Fitzpatrick, Iran’s Nuclear, Chemical, and Biological Capabilities: A Net Assessment, Executive Summary (London: IISS, February 3, 2011), http://www.iiss.org/publications/strategic-dossiers/irans-nuclear-chemical-andbiological-capabilities/.
 Ibid., Iran Nuclear Brief (London: The Arms Control Association, IISS, October 3, 2011), p.1.
 In his retirement speech to the Israeli Knesset Foreign Affairs and Defence Committee on January 7, 2011,
Mossad Chief Meir Dagan stated that Iran would not be able to produce a viable nuclear weapon before 2015. He elaborated that Iran is still far from being capable of producing nuclear weapons and that a series of malfunctions and failures have set the Iranian nuclear weapons program back by several years. Yossi Melman, “Outgoing Mossad Chief:Iran Won’t Have Nuclear Capability Before 2015,” Haaretz, January 7, 2011, http://www.haaretz.com/print-edition/news/outgoing-mossad-chief-iran-won-t-have-nuclear-capability-before-2015-1.335656.
 Joseph Cirincione, Bomb Scare: The History & Future of Nuclear Weapons (New York: Columbia University
Press, 2007), p. 47.
 “On numerous occasions, the Iranian people and government officials have announced that they do not seek
to develop nuclear weapons and that nuclear weapons have no place among the needs of the nation and the military system of the country. We believe that using nuclear weapons is haraam and prohibited and that it is everybody’s duty to make efforts to protect humanity against this great disaster. We believe that besides nuclear weapons, other types of weapons of mass destruction such as chemical and biological weapons also pose a serious threat to humanity The Iranian nation which is itself a victim of chemical weapons feels more than any other nation the danger that is caused by the production and stockpiling of such weapons and is prepared to make use of all its facilities to counter such threats.” The Center for Preserving and Publishing the Works of Grand Ayatollah Sayyid Ali Khamenei, “The Supreme Leader’s View of Nuclear Energy,” April 13, 2011, http://english.khamenei.ir//index.php?option=com_content&task=view&id=1442&Itemid=13.
 Cirincione, Bomb Scare, p. 75.
 Ibid., p. 77.
 See “Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran,” GOV/2012/37 (Vienna: IAEA, August 30, 2012), par. 23–25, 37, http://www.iaea.org/Publications/Documents/Board/2012/gov2012-37.pdf.
 Armor- and Mechanized-Based Opposing Force: Organization Guide, Field Manual Headquarters, No. 100-
60 (Washington, D.C.: Department of the Army, July 16, 1997), p. iv, http://www.fas.org/man/dod-101/sys/land/
 Ibid., p. iii.
 IISS, The Military Balance, 2011 (London: IISS, 2011), p. 309.
 Information for this chart extracted from ibid.
 See John Chipman and Sidney Bearman, Strategic Survey, 1995–1996 (London: IISS, 1996), p. 30.
 Stephanie Cronin, “Conscription and Popular Resistance in Iran, 1925–1941,” International Review of Social
History, Vol. 43, No. 3 (December 1998), pp. 451–471, http://journals.cambridge.org/action/displayFulltext?type=1&fid=69726&jid=ISH&volumeId=43&issueId=03&aid=69725.
 Richard A. Gabriel, ed., Fighting Armies: Antagonists in the Middle East: A Combat Assessment (London: Greenwood, 1983), p. 99.
 Ibid, pp. 97–99.
 IISS, The Military Balance, 2011, p. 297.
 Ibid, p. 298.
 The Economist Intelligence Unit (EIU), “Country Report: Iran, March 2005” (London: EIU, 2005), pp. 27, 30. See also World Bank Statistics, “Iran, Islamic Rep. at a Glance” (Washington, D.C.: The World Bank, March 29, 2012), http://devdata.worldbank.org/AAG/irn_aag.pdf.
 Anthony H. Cordesman, Iran’s Developing Military Capabilities, draft report on CD (Washington, D.C.: Center for Strategic and International Studies, December 14, 2004), p. 2.
 See Annual Ministerial Sessions reports See also “Report of the Meeting of the OIC Six-Member Committee on Palestine Submitted to the Annual Coordination Meeting of Foreign Ministers of OIC Member States” (New York: United Nations, September 28, 2012), http://www.oic-oci.org/english/conf/fm/acm2012/REP-PALESTINE-ENGLISH.pdf.
 Barry Posen’s definition of offensive, defensive, and deterrent military doctrines may help us to identify the particular task of weapons in each military doctrine. See Posen, The Sources of Military Doctrine, pp. 14–16.
 On the logic of pre-emptive attack in a nuclear war, see: Bruce G. Blair, The Logic of Accidental Nuclear War
 The concept of targeting weapons of mass destruction on urban-industrial centers originates from the development of air power theory in the 1920s and the 1930s and the strategic bombing campaigns of World War II. One of the leading air-power strategists was Giulio Douhet, who believed that bombing could be used directly against an enemy’s industrial, commercial, transportation, and civil population. See Jeffrey Legro, Cooperation under Fire: Anglo-German Restraint During World War II (Ithaca, N.Y.: Cornell University Press, 1995), p. 100. See also Theo Farrell and Helene Lambert, “Constructing Nuclear Use: Deterrence Norms and International Law in State Practice,” paper presented at the ECPR-ISA Joint Conference, Vienna, Austria, September 16–20, 1998.
 See IISS, The Military Balance, 2004-2005 (London: IISS, 2005), p. 124; and IISS, The Military Balance, 2011, pp. 309–310.
 Martin S. Navias, Going Ballistic: The Build up of Missiles in the Middle East (London: Brassey’s, 1993), pp. 20, 24.
 Samore, Iran’s Strategic Weapons Programs, pp. 89–105.
 IISS, The Military Balance, 2011, p. 310.
 Fitzpatrick, Iran’s Ballistic Missile Capabilities, p. 61.
 Ibid., pp. 132–133.
 See Helen Chapin Metz, ed., “Iran: A Country Study,” December, 1987, http://www.country-data.com/cgi-bin/query/r-6398.html. 54
 IISS, The Military Balance, 2011, p. 311.
 For detailed specification of the combat aircraft, see Gordon M. Burck and Charles C. Flowerree, International Handbook On Chemical Weapons Proliferation (Boulder, Colo.: Westview, 1991), pp. 508–509 table 9.1.
IISS, The Military Balance, 2011, p. 296.
 Isobelle Jaques, Afghanistan: Beyond Bonn (Steyning, U.K.: Wilton Park, May 2005), p.16.
 Ben Smith, Afghanistan Where Are We? Central Asian Series, No. 05/30 (Oxford: Conflict Studies Research
Centre, June 2005), p.18.
 Shahram Chubin, ”Does Iran want Nuclear Weapons?” Survival, Vol. 37, No. 1 (Spring 1995), pp. 89, 93.
 For the details of the Memorandum of Understanding between Iran and Sharjah, see Hooshang Amirahmadi,
Small Islands, Big Politics: The Tonbs and Abu Musa in the Gulf (London: Macmillan, 1996), p.162.
 IISS, Strategic Studies, 1993–1994 (London: IISS, 1994), p. 141.
 Kenneth Katzman, Iran Sanctions, Congressional Research Service (CRS), Report for Congress (Washington,
D.C.: CRS, September 13, 2012), p. 2.
Geneva Conventions mark 70 years of ‘limiting brutality’ during war
In commemorating the 70th anniversary of the landmark Geneva Conventions, the president of the United Nations Security Council hailed the “significant body of law”, describing it as playing “a vital role in limiting brutality of armed conflicts”.
In the aftermath of the Second World War, the treaty, comprised of four Conventions and three Additional Protocols, established the modern, international legal standards for humanitarian treatment during times of war. They were agreed on 12 August 1949, and with some exceptions, ratified by 196 countries around the world.
“As they are ratified and acceded by almost every State of the world, the principles and legal norms enshrined in these Conventions are also recognized as customary international humanitarian law [IHL] and are universally applicable”, said Poland’s Foreign Minister Jacek Czaputowicz, speaking for his nation which holds the Presidency of the Council for August. “This is a rare quality for any multilateral treaty”.
Among other things, the Conventions established protections for vulnerable groups in armed conflict, namely the wounded and sick; prisoners of war; and civilians, including civilians living under occupation.
Because Poland has been “painfully affected by consequences of other States’ failures to comply with international agreements” and in conjunction with its “sense of responsibility” to maintain international peace and security, Mr. Czaputowicz said that strengthening international law has always been important to his country.
“The greatest challenge to protecting human life in modem conflict is observance of and respect for the existing rules by the armed forces and non-State armed groups”, he asserted. “If existing rules were followed, much of the human suffering in contemporary armed conflicts would not occur”.
Poland’s top diplomat also pointed to new threats that demand practices and policy consistent with international humanitarian law.
“Artificial intelligence and autonomous weapon systems, such as military robots and cyber-weapons, reduce the role and control of human factors during wartime”, he continued. Moreover, the general rules of IHL prohibiting indiscriminate and inhumane weapons, “are being violated”.
Two IHL principles under the Geneva Conventions that deserve particular attention, according to Mr. Czaputowicz, are “the obligation to protect civilians, prisoners of war, the wounded and shipwrecked” as well as “limitations to the rights of parties to an armed conflict on how they conduct operations and on their choice of weapons”.
The increasing role of non-State actors and IHL legal loopholes are “the new reality of modem conflict”, he spelled out, bemoaning that they hinder international humanitarian law “in many ways”.
“International humanitarian principles are under pressure” and “the complexity of new challenges impedes the process of classification of conflict situations and makes it difficult to determine the exact rules that may be applied”, he elaborated.
‘Historic moment for humanity’
According to UN Legal Counsel Miguel de Serpa Soares, the four Conventions are “at the core” of IHL.
Noting that the first three conventions “were by no means completely novel at the time”, he singled out the Fourth Convention as being “the first treaty that was specifically dedicated to the protection of civilian persons in time of war”.
Mr. Soares also drew attention to Article 3, the provision on basic rules governing the humane treatment of people not involved in hostilities, including soldiers who have laid down their arms, those wounded or in detention, as well as civilians.
Calling the inclusion of Article 3 “a historic moment for humanity”, he said it was the first instance in which non-international armed conflicts were regulated by a multilateral treaty. The significance is augmented by the fact that the Geneva Conventions are now universally adhered to.
Conventions show ‘what is possible’
For his part, Peter Maurer, President of the International Committee of the Red Cross (ICRC), maintained that the Geneva Conventions represent “one of the greatest achievements of inter-State cooperation” and “symbolize our enduring and common humanity”.
“The Conventions show us what is possible when States take collective and individual action to uphold the law and humanitarian principles”, he said.
Noting that “every single day” international humanitarian law is at work saving lives and protecting women, men and children in conflicts, he highlighted that while “we rightly hear about the violations because the consequences are tragic and visible”, we must also “recognize the protective power and positive impacts when IHL is respected”.
The ICRC chief painted a picture of IHL in action, when the wounded and sick are evacuated to safety; the detained are treated with dignity; the fate of missing people is clarified; and humanitarian assistance is delivered across lines.
“The impacts of IHL are also shown through acts of restraint, when horrors are not inflicted – civilian areas are spared from direct shelling, medical workers are able to freely operate without threat or targeting”, he added.
Continued violations do not mean the law is inadequate, but rather that efforts to ensure respect are inadequate, he flagged, urging “we can – and must – do more”.
The world must not forget that “the Geneva Conventions represent a line of our common humanity, and they shield us from our own barbarity”, underscored Mr. Maurer.
Kerfuffle about Kashmir’s `special status’
It is eerie that Pakistan’s foreign office, media and politicians have shallow understanding of the Kashmir dispute. Let us not forget dimensions to the Kashmir dispute. Pakistan is committed to United Resolutions. These resolutions do not recognise `accession’ of disputed Kashmir under a resolution of the puppet Constituent Kashmir assembly or under Maharajah’s `instrument of accession’.
India never presented the accession `resolution’ or the `maharajah’s instrument’ before the UN. Yet, it claimed that the occupied Kashmir’s constituent assembly had voted for accession to India. As such, it is no longer necessary for her to let the promised plebiscite be held in Kashmir. Now, it has abrogated `special status’, hitherto quid pro quo. Has disputed Kashmir reverted to 1947 status in India’s own parlance?
In parliament, Amit Shah banked on the `instrument’ which is void. The Independence Act required intention of accession to be absolute and crystal-clear. But, a stray glance at the ‘Instrument’ would make it clear that it is equivocal. The ‘Instrument’ expresses ‘intention to set up an interim government and to ask Sheikh Abdullah to carry the responsibilities’ with maharajah’s prime minister. The last sentence in the ‘Instrument’ is ‘In haste and with kind regards’. Handwritten corrections on the text of the ‘Instrument’ speak volubly about the wavering state of the maharajah’s mind. Any `instrument’, extracted under coercion and duress, is invalid under law.
Subsequent accession resolution, passed by the occupied Kashmir’s ‘constituent assembly’, also, is void. This resolution violates the Security Council’s resolutions forbidding India from going ahead with the accession farce. Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions to forestall the `foreseeable accession’ by the puppet assembly. Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 outlaws accession or any other action to change status of the Jammu and Kashmir state.
`Accession instrument’ is a myth, unregistered with the UN. Alastair Lamb, in his book Incomplete Partition (Chapter VI: The accession Crisis, pp.149-151) points out that Mountbatten wanted India not to intervene militarily without first getting `instrument of accession’ from maharajah Hari Singh. Not doing so would amount to `intervening in the internal affairs of what was to all intents and purposes an independent State in the throes of civil conflict’. But, India did not heed his advice. It marched its troops into Kashmir without maharajah’s permission _ an act of aggression. Lamb says `timing of the alleged Instrument of Accession undoubtedly affected its legitimacy'(p.172, ibid). He adds `If in fact took place after the Indian intervention, then it could well be argued that it was either done under Indian duress or to regularise an Indian fait accompli’.
Lamb concludes (p. 191, ibid):`According to Wolpert, V. P. Menon returned to Delhi from Srinagar on the morning of 26 October with no signed Instrument of Accession. Only after the Indian troops had started landing at Srinagar airfield on the morning of 27 October did V. P. Menon and M. C. Mahajan set out from Delhi from Jammu. The Instrument of Accession, according to Wolpert, was only signed by Maharajah Sir Hari Singh after Indian troops had assumed control of the Jammu and Kashmir State’s summer capital, Srinagar.
Lamb also regards the Instrument of Accession, ‘signed’ by the maharajah of Kashmir on October 26, 1947, as fraudulent (Kashmir – A disputed legacy 1846-1990). He argues that the maharajah was travelling by road to Jammu (a distance of over 350 km). How could he sign the instrument while being on the run for safety of his life? There is no evidence of any contact between him and the Indian emissaries on October 26, 1947.
It is eerie to note that India has never shown the original Instrument’ in any international forum. India took the Kashmir issue to the UN in 1948 under article 35 of Chapter VI which outlines the means for a peaceful settlement of disputes.
Pakistan’s foreign office faux pas
Pakistan should not accept `special status’ as a fait accompli. Instead, it should focus on human-rights violations, and right of self-determination under UN conventions. While agitating these issues, Pakistan should avoid the legal wizard, a self-styled `international-law expert’, founder of a research society of international law, who selected Reqo Diq-fiasco incompetent legal team.
In his weekly press briefing, Pakistan foreign-office director general (South Asia and SAARC) Dr. Mohammad Faisal said (April 6, 2019), “Pakistan will never accept the repeal of Article 370 of the Indian Constitution… Besides violating the rights of Kashmiris, it will also contravene relevant UNSC (UN Security Council) Resolutions”. He added that Article 370 was incorporated in India’s Constitution in October 1949. And, it exempts Jammu and Kashmir from the country’s Constitution while allowing the state to draft its own [constitution]. Not so. Article 370 violates UN resolutions. Article 370 is rooted in accession-to-India resolution of so-called `constituent assembly’ of the disputed Kashmir. The `assembly’ itself banks on Maharajah Hari Singh’s mythical `Instrument of Accession’, not registered with the UNO. By accepting Article 370 and occupied Kashmir’s constitution, Pakistan binds itself to accepting Azad Kashmir as part of India. The IHK’s constitution provides seats for Azad Kashmir. Will Pakistan hold elections in Azad Kashmir under Indian or IHK’s constitution?
If our foreign office revisits Kashmir-case files, it will come to know that: (a) India never registered Instrument of Accession with the United Nations. In the summer of 1995, the Indian authorities reported the original document as lost or stolen? (b) Aware of India’s intention to get the ‘Instrument of Accession’ rubber-stamped by the puppet assembly, the Security Council passed two resolutions _ Security Council’s Resolution No 9 of March 30, 1951 and confirmatory Resolution No 122 of March 24, 1957 _ to forestall the `foreseeable accession’ by the puppet assembly.. These resolutions outlaw accession or any other action to change status of the disputed state. (c) Pakistan stresses international-law jus cogen `pacta sunt servanda’ treaties are to be abided by, being binding on signatories. Non-compliance reduces a state to status of a rogue state. (d) India through a series of steps whittled down Kashmir’s special status under Article 370 and 35-A of India’s Constitution. Governor replaced sadr-e-riast who could conveniently dismiss wazir-e-riast (now chief minister). (e) Kashmiri leaders are begging for `election’ which is ultra vires of UN resolutions. Kashmiris’ fate of total integration hangs in hands of petition pending with India’s Supreme Court.
Pakistan’s information minister’s statement
In a prelude to Foreign Office spokesman’s statement (April 6, 2019), Pakistan’s information minister had dared India hold elections in Indian-held Kashmir (March 11, 2019). Taking the two statements juxtaposed, the inference is that Pakistan implicitly admits that: (a) Jammu and Kashmir is not a disputed territory. It is an `integral part of India’. IHK had acceded to India as per the maharajah’s Instrument of Accession not registered with UNO or invoked on UN forums. (b) `Pakistan administered Kashmir’ (Azad Kashmir) is under illegal occupation by Pakistan. Heretofore I quote from IHK’s `Constitution’.
`Preamble to the Constitution of Jammu and Kashmir
“WE, THE PEOPLE OF THE STATE OF JAMMU AND KASHMIR,having solemnly resolved, in pursuance of the accession of this State to India which took place on the twenty sixth day of October, 1947, to further define the existing relationship of the State with the Union of India as a part thereof…’.
`Relations with Government of India
Article 3 in part 2 of the Jammu and Kashmir constitution reads as,
“Relationship of the State with the Union of India:-The State of Jammu and Kashmir is and shall be an integral part of the Union of India.
Relations with Pakistan administered Kashmir
Article 48 of Part VI of Jammu and Kashmir constitution defines Pakistan administered Kashmir as “Pakistan Occupied Territory”.
There are currently 87 seats in Jammu and Kashmir State assembly, but article 48 of Jammu and Kashmir constitution also recognizes 24 seats from Pakistan administered Kashmir and mentions that these 24 seats will remain vacant till Pakistan ceases the “occupation” of Kashmir and the said area shall be excluded in delimiting the territorial constituencies till that time.
To India’s pleasure, Pakistan’s chagrin
What information minister or foreign-office said should please India? For, India says clasula rebus sic stantibus, a fundamental change of circumstances (literally `things as they stand’), making plebiscite demand an anachronism.
Look at Janus-faced Pundit Jawaharlal Kaul/Nehru. Nehru had earlier declared in a radio broadcast (Nov 2, 1947) that the government of India was “prepared, when peace and order have been established in Kashmir, to have a referendum held under international auspices like the United Nations.” I am quoting from Chaudhri Mohammad Ali’s The Emergence of Pakistan.
Nehru be-fooled Sheikh Abdullah to stab Pakistan in the back. Barkha Dutt recalls (This Unquiet Land, p. 154) `In a 1948 speech to the United Nations, Sheikh Abdullah … made a blistering defence of the accession to India. Sher-e-Kashmir (Lion of Kashmir) roared, :I had thought all along that the world had got rid of Hitlers…but what is happening in my poor country I am convinced that they have transmigrated their souls into Pakistan…I refuse to accept Pakistan as a party in the affairs of Jammu and Kashmir’
Dutt says, “Sheikh Abdullah [later] began to talk about possibility of independent Kashmir…Soon after he changed his stance he was jailed and dismissed from office and was not able to lead the state for another twenty years’. Stanley Wolpert and Alastair Lamb (Kashmir – A disputed legacy 1846-1990, Birth of a Tragedy) also doubt existence of Instrument of Accession (October 26, 1947).
Pakistan’s foreign office has yet to produce a luminary of the caliber of Indian foreign secretaries Shiv Shankar Menon, Krishnan Srinivasan, JN Dixit and Jagat S. Mehta. These gentlemen knew that Kashmir was not an atoot ang (unbreakable part), but a disputed state. India and Parvez Musharraf partly implemented Mehta’s proposals. His proposals are contained in his article “Resolving Kashmir in the International Context of the 1990s” Some points of his quasi-solution are: (a) Pacification of the valley until a political solution is reached. (b) Conversion of the LoC into “a soft border permitting free movement and facilitating free exchanges…” (c) Immediate demilitarization of the LoC to a depth of five to ten miles with agreed methods of verifying compliance. (d) Final settlement of the dispute between India and Pakistan can be suspended (kept in a “cold freeze”) for an agreed period. Voracious readers may refer for detail to Robert G Wirsing, India, Pakistan and the Kashmir Dispute (1994, St Martin’s Press, New York pp. 225-228). Mehta’s thinking is in line with JN Dixit’s. Dixit says ‘it is no use splitting legal hair. “Everybody who has a sense of history knows that legality only has relevance up to the threshold of transcending political realities. And especially in inter-state relations… so to quibble about points of law and hope that by proving a legal point you can reverse the process of history is living in a somewhat contrived utopia. It won’t work.”(Victoria Schofield’s book Kashmir in the Crossfire).
Does Pakistan’s Foreign Office abide by IHK and India’s constitutions? When shall Pakistan cease its `occupation of Azad Kashmir’ to hold elections on 24 seats reserved for Pakistan-administered Kashmir’? Certainly, the afore-quoted statements do not reflect Pakistan’s position on Kashmir dispute, based on UN resolutions. India has no mandate to change the status of the disputed state through sham elections, or sham `special status’. It is time Pakistan gagged its loose-cannon information minister, unbridled foreign-office, or politicians. It’s time for Pakistan about militarisation of Kashmir, human right violations and need for self-determination, recognised under UN conventions and resolutions.
Reserve judgment: Arbitrating energy disputes in Africa
As African states seek to use national laws to protect their natural resources and increase revenue from their development, Fieldfisher dispute resolution partner, Simon Sloane, considers the difficulties facing energy companies seeking to protect their investments while respecting the transformational needs of host states.
Africa’s capacity to benefit equitably from its own natural resources continues to be one of the main challenges facing many of its most energy-abundant jurisdictions.
While blaming this state of affairs on the old “resource curse” myth is simplistic and unhelpful, it remains the case that nations rich in resources tend to be poorer and less developed than those which are not, with many of the benefits of their exploitation going offshore.
Despite the clear moral case for African countries to profit more from their energy and mineral reserves, legally the picture is more complicated.
Much of the cost and risk of extracting these resources tends to be shouldered by foreign investors, who expect to be compensated for their outlays and assume that the terms on which they invested will be protected by local and international laws.
Consequently, any new domestic legislation guaranteeing host countries a “fair” share of the revenues from internationally funded projects is often treated as breaching protections given to foreign investors in bilateral investment treaties (BITs).
There have been numerous incidents of foreign companies successfully bringing arbitrations against African states that have tried to amend investment terms retrospectively, with investors relying on safeguards such as fair and equitable treatment (FET) and non-expropriation rights provided in BITs.
This has led to growing scepticism among African governments of (particularly first and second generation) BITs, as these treaties are often perceived as looking after the interests of foreign investors, to the detriment of states’ needs to transform their economies.
A handful of African countries, including South Africa and Tanzania, have recently cancelled a number of their BITs – a situation that has created tension between the desire to preserve domestic assets for the national benefit and the need to attract foreign investment to fuel economic growth.
Domestic legislation designed to promote equitable ownership include South Africa’s black economic empowerment initiatives, which compel 26% of shares in mining assets to be distributed to disadvantaged local people.
In Tanzania, new laws including the Natural Wealth and Resources Contracts (Review and Re-negotiation of Unconscionable Terms) Act, 2017 and the Natural Wealth and Resources (Permanent Sovereignty) Act, give the government power to renegotiate contracts with investors on terms more favourable to the state.
Although international arbitration is generally a last resort for resources companies when disputes arise, lately there has been a noticeable increase in requests for arbitration in circumstances where African states have sought to implement alternative local laws.
BIT terms and Western-centric legal principles rarely align with traditional African customary laws and there is a growing unwillingness in many African states to accept foreign rulings over key national assets, which can make the enforcement of an international arbitration award against a state politically challenging.
Since relatively few African court decisions are published, it is hard to tell statistically where many countries are in terms of compliance with international arbitration awards, and how many are resisting enforcement.
There have been some very public rejections of international arbitrators’ decisions.
Zimbabwe, for example, has resisted recent efforts to enforce awards made against it in US courts.
Nigerian courts have also refused the local enforcement of a multi-billion dollar London Court of International Arbitration (LCIA)commercial arbitration award against a state-owned entity in favour of foreign investors, notwithstanding that the English courts have upheld the validity of the award (see P&ID Ltd v Federal State of Nigeria).
Yet even in cases where the authority of international arbitrators is accepted, the variety and nature of local laws can cause problems when it comes to implementing awards in African states.
Growing distrust of the international arbitration system among African governments is a considerable problem for foreign investors, especially in the highly litigious energy sector, as there is currently no trusted alternative for resolving disputes.
Historically, arbitration has not been high on the agenda for most African states and relatively few African judges have significant experience of international arbitration.
Efforts are being made to redress this through legal education and there have been moves to establish regional arbitration centres throughout Africa that have the confidence of both states and investors, although these are yet to gain significant traction.
In the meantime, there continue to be serious problems in resolving energy project disputes caused by parallel proceedings, where one party will ignore an arbitration clause in a contract and ask for the matter to be addressed in a local court.
In these situations, partiesend up straddling one or more proceedings on the same issues, with different tribunals and courts regularly reaching different decisions and with the added hurdle of a party facing competing anti-suit or anti-arbitration injunctions.
Such circumstances are common where at least one partner is foreign and relies on an arbitration clause in a contract or its public international law rights under a BIT, while local parties are more naturally inclined to seek decisions from local judges.
Often, the impasse is caused by local judges who are suspicious of the international arbitration process and are not willing to abdicate their powers to a foreign tribunal .
In many cases, the need for arbitration can be avoided by careful and far-sighted approaches to contract negotiation.
Simply including an arbitration clause in a contract will not automatically prevent the parties ending up in messy disputes being contested simultaneously in domestic and international courts.
Energy projects especially will usually involve a complicated series of contracts between international energy companies and one or more domestic counterparts, including government bodies, local investors and contractors.
If a domestic party decides to ignore an arbitration clause and asks a local court to intervene, the foreign party then has to choose whether to seek an injunction and refer the dispute to arbitration, or submit to the local court’s jurisdiction.
In these situations, the international partner is likely to have difficulty locally enforcing any award they obtain, if they proceed with the arbitration.
Alternatively, the international party can opt to engage in the local court process which can expose them to the vagaries of an unfamiliar legal system.
Where there is a suite of contracts containing different arbitration clauses, this leaves the parties open to arguments about which arbitration clause governs which dispute and the possibility of multiple proceedings.
Habitually, there is a lack of attention given by lawyers drafting contracts to what are sometimes mandatory laws to protect natural resources.
Rules obliging infrastructure developers to use local contractors on large projects are also frequently ignored.
This failure to respect local laws can lead to litigation in local courts, especially as communities become more empowered to challenge this practice, over issues which should have been addressed at the drafting stage.
While not wholly avoidable, the risk of becoming embroiled in paralysing disagreements can be minimised by careful drafting and fully thinking through how proceedings will work in particular African jurisdictions.
Intra-African arbitration centres
One of the solutions being implemented to improve the perception of international arbitration in African disputes is the establishment of local arbitration centres.
In 2016 alone, there were more than 70 international arbitration centres operating across Africa,, with varying degrees of credibility, and more have sprung up since.
The Cairo Regional Centre for International Commercial Arbitration, established in 1979, has been notably successful in attracting Arab and north-Saharan arbitrations.
In Nigeria, the Lagos Court of Arbitration is growing in stature, as are the Kigali International Arbitration Centre (KIAC) in Rwanda and the Ghana Arbitration Centre.
The Casablanca International Mediation and Arbitration Centre (CIMAC) in Morocco and the Mauritius International Arbitration Centre (MIAC), which was previously an offshoot of the LCIA, are also actively seeking to play active roles in resolving African disputes.
China’s approach to arbitrating in Africa is also worth paying attention to. The China-Africa Joint Arbitration Centre (CJAC) in Shanghai was specifically set up to deal with infrastructure project disputes, and China is now looking to set up centres with broader mandates in East and West Africa.
The goal of all of these African centres is to regionalise arbitration, so that cases involving precious national assets are dealt with in Africa by African lawyers and arbitrators, with the buy-in of African governments and international investors.
However, until local courts are equipped to play a supportive role in arbitration, it may be hard for these centres to command confidence, especially when there are so many centres competing to hear arbitrations.
Transparency within the local court system also needs to improve, as where there is little or no access to court judgments, the worst assumptions are going to prevail.
International investors need to feel they can trust the integrity of local courts before they can be comfortable with their handling of cases.
The Paris-headquartered International Court of Arbitration (ICA) is pushing to improve the transparency of enforcement, on the grounds that it is important for tribunals and courts to know what other courts are doing, and for the rest of the world to see that key treaties are not being overturned and set aside.
The Organization for the Harmonization of Business Law in Africa (OHADA) is similarly seeking to facilitate a pro-arbitration stance in West Africa.
It is worth noting that suggestions around using institutionally appointed arbitrators, who have the advantage of proven expertise in the area they are arbitrating on, have generally received a cool reception by courts, states and investors.
The use of stabilisation clauses in contracts as a means for foreign investors to mitigate or manage political risks associated with their project is coming under scrutiny in Africa.
The World Bank and other multi-lateral development organisations favour the deployment of clauses that allow an investor to sue a state if the terms on which they invested change, as a way of increasing investment in Africa and developing economies in general.
But it is becoming increasingly evident that such clauses bind African governments and prevent them from amending local labour and environmental laws or their fiscal regimes, even if such reforms are deemed necessary to transform their societies and enhance domestic economies.
Although many African countries recognise that including stabilisation clauses in a BIT is likely to lead to expensive disputes that state balance sheets can ill afford, the need to attract foreign investment means that most governments are still willing to take the risk.
This is an area that multi-lateral organisations need to review, as it is clear that the current situation does not adequately serve the transformational needs of many African states.
New model treaties
Simultaneously with the growth of local arbitration centres, a raft of regional investment and co-operation agreements have sprung up to foster intra-African state and private investment from home-grown and international sources.
The majority of these agreements contain carve-outs expressly to enable African states to address their transformational needs, including exemptions for disenfranchised communities and the need to protect natural resources, without the fear of incurring liability to foreign investors.
The African Continental Free Trade Agreement (AfCFTA), signed in Kigali in March 2018, is intended to provide a platform for intra-African investment between 27 African Union member states, both at state level and for private investors.
It is also hoped that the AfCFTA will go some way towards dealing with the perception that foreign investors have advantages over local partners under traditional BITs, and with some of the problems of enforcing courts’ decisions on disputes.
The New York Convention
One major benefit of international arbitration is the ease of enforcement in foreign jurisdictions which are signatories to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“the New York Convention”).
In sub-Saharan Africa, a region which comprises 46 of Africa’s 54 countries, many but not all jurisdictions have ratified the New York Convention.
The challenge now will be to ensure that the convention is properly implemented and respected by all signatories.
African governments are also closely following developments in Europe around the Investment Court System as an alternative to international arbitration, for resolving investor disputes in EU member states.
Non-governmental organisation Transparency International singles out the global oil and gas industry as one of the business sectors at the greatest risk of corruption, with Africa being a particular hot spot.
While there has been ample evidence of corrupt practices in some jurisdictions, observers should be cautious generalising about Africa, as many African countries are highly ranked as places to do business cleanly and legally.
Corruption is one of the issues at the heart of many governments’ dissatisfaction with the international arbitration system, as it smacks of injustice that an investor may be involved in illegal activity, by coercion or by choice, yet still win significant arbitration awards.
There have been a few advances in BITs and model laws that indicate international law is starting to get to grips with the issue.
The Dutch Model BIT published earlier this year allows tribunals to take into account whether there has been corruption when making an award – a development that has been largely welcomed and is likely to be replicated in other BITs around the world.
The Nigeria-Morocco BIT (the Reciprocal Investment Promotion and Investment Agreement) signed in late 2016, which contains a comprehensive anti-corruption provision, is also seen as one of the most progressive new formats of BIT.
The future of African energy disputes
Anyone considering making investments in Africa needs to be aware that there are a number of regional treaties to be complied with in order to benefit from investment protections.
There continue to be unresolved questions around enforcement mechanisms and what protections are enforceable through arbitration, especially as countries pull out of BITs.
For users or would-be users of the arbitration system, there are some difficult choices to be made for those who find themselves in the midst of several parallel proceedings.
While disputants may be convinced that they are legally right that arbitration is the way to resolve an issue, parties need to be very certain that there is some kind of enforcement option available to justify the time and expense involved.
Otherwise, disputes can turn into difficult procedural battles between arbitrators and local court proceedings, leading to spiralling costs and project delays, ultimately forcing parties to abandon the case.
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