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International Law

Misremembering and Hypocrisy in the History of Western Civilization

Emanuel L. Paparella, Ph.D.

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] T [/yt_dropcap] he late Tony Judt coined the expression “misremembering” by which he meant that while it is fine, year after year, to commemorate the Holocaust with conferences, memorials, monuments, museums galore, if the commemoration is not followed by a meaningful moral analysis of the lessons learned from such a horrific event, if we periodically commemorate the event, but then dwell merely on the political, the economic, the military, the purely utilitarian considerations of the event, forgetting the much more important moral considerations, then the whole commemorative exercise turns into a sham ultimately dishonoring the very memory of that horrific event.

Emmanuel Levinas, on the other hand, wrote a powerful challenge to the Western ethical tradition without as much as mentioning the event of the Holocaust. It pervades however the background of his ethical writings as a powerful personal formative experience. Lest we forget, that experience collectively included the gassing of millions of human beings by chemical weapons duly kept secret from the rest of the world. Hitler made sure that his direct orders to proceed with his so called “final solution” were never put in writing so that they could not be traced back to him and he could deny being the reprobate originator of such a despicable crime against humanity, and that moreover he could even deny that he had ever had such weapons (already forbidden by the League of Nations).

When the issue of chemical weapons first came up a few years ago in Syria, Assad, its dictator, had the consummate gall of flatly denying at first that he had them and intended to use them against his own people. Later he was forced to give them up but never punished for actually using them. In Aleppo, as we speak, unharmed civilians, including women and children, are now being massacred when they should be given humanitarian aid and a way to evacuate the area safely. Their hospitals have been barbarously bombed by Assad and his Russian ally Putin, the man who goes on religious pilgrimages to testify to how pious and peace-loving he is. Indeed, to appease or tolerate a bully means ultimately to ensure that he will perceive no limits to his inhumanity.

But to return to past history and misremembering, a pacifist, a man of peace, the Prime Minister of England, Arthur Neville Chamberlain, the so called umbrella man, a year before World War II, when ominous rumors of war pervaded Europe, and after the aggression against Austria and Czechoslovakia, went to Germany to confer and appease the feared big bully of Europe, who concluded from that meeting that the West was weak and would not oppose the other invasions he was contemplating, namely that of Poland and Russia, and eventually the Western world and the world as a whole.

That is to say, the bully having been appeased, and the piper having not been duly paid early on, meant that he would have to be paid later on with much more loss of blood and treasure. This has been called an outrageous and false analogy by some pundits, almost politically incorrect, but it is indeed valid in its sheer simplicity. It has the simplicity of the language that every bully speaks and understands. It simply means that once one draws a red line with a bully, one has to confront him the very first time he violates it, not later when he has already been emboldened.

So, I will refrain in this piece from making the case for pacifism or for, at the other extreme, for a vengeful and paranoid reaction to any aggression. After all, even a Machiavelli and his modern devotees, who believe that the end justifies any means, would probably concur that paranoia is a mental sickness and that moreover, vengefulness and violence has never constituted a solution to any two wrongs, for two wrongs never cancel each other out ethically and remain two wrongs.

What I intend to do, rather, is to simply remember here the times when chemical weapons were used and tolerated after World War I, after they had been banned by most nations of the world. I will not engage in apportioning blame and final historical judgments based on utilitarian, pragmatic, political considerations. I leave that to more capable historians. For it seems to me that the reason the remembering is important before proceeding with a moral arguments is that without it, as a misremembering, the moral argument will be fatally flawed and even smell of hypocrisy.

As already mentioned, Hitler used chemical weapons to gas millions of Jews and other “undesirables.” Most of his henchmen were put on trial after the war and found guilty and sentenced to death. But after the war, even putting aside the consideration of the use of two nuclear bombs dropped on Japanese civilians justified because is shortened the war and saved millions of soldiers’ lives, there was extensive use of a nerve gas called napalm in Vietnam where not only soldiers but civilians were hit and justified as unavoidable collateral damage of war acts.

A bit later a brutal dictator named Saddam Hussein used chemical weapons against his own people and then against Iran while the US looked the other way and in fact maintained friendly relations with the dictator. There is even a picture of Donald Rumsfeld shaking hands with him as special envoy. He, or his boss Ronald Reagan for that matter, never chided the dictator for the use of chemical weapons and in fact supplied him with them. It is also important to remember that the former Soviet Union supplied the one thousand tons of chemical weapons that Assad had in his arsenal until he was compelled to give them up. Nevertheless, he paid no price for just possessing them illegally, and then using them; his worthy ally made sure of that.

The question arises: Have we somehow forgotten all that? Or have we misremembered it? For if we have, then our moral case against bullies and the advocacy of a justified war to prevent future catastrophes and obscenities against children and innocent civilians, is also misguided and may sound rather hollow and hypocritical, on both sides of the Atlantic alliance.

Indeed, the moral obscenity of massacring civilians needs to be confronted as a Kantian deontological moral imperative, one way or the other, at the risk of becoming a moral pigmy and a coward. The issue is how do we confront it? Do we do it the way a Gandhi or a Martin Luther King would, via non violence and diplomacy with war only as a last resort and the threat of war as an incentive to the bully to come to the table, or does one do it via paranoia and vengefulness, usually counter-productive?

It remains a fact, however, that a terrible crime has been committed, once again, and to redress it properly as the moral outrage that it is, we as a civilization (Western, so called) and all those who continue to call themselves civilized, need to remember, to acknowledge, and to take a modicum of responsibility and do amends for all the other similar crimes committed with chemical weapons and weapons of mass destructions. Those crimes are unworthy not only of civilization but of man’s humanity. Which is to say, we need to look deeply into ourselves first and examine our own historical record and our own conscience, with no anger and no paranoia.

Misremembering and pious pronouncements and hypocritical commemorations to the Holocaust with no moral lessons derived from them, simply will not do. As the saying goes, it behooves us “to put up or shut up.”  

Professor Paparella has earned a Ph.D. in Italian Humanism, with a dissertation on the philosopher of history Giambattista Vico, from Yale University. He is a scholar interested in current relevant philosophical, political and cultural issues; the author of numerous essays and books on the EU cultural identity among which A New Europe in search of its Soul, and Europa: An Idea and a Journey. Presently he teaches philosophy and humanities at Barry University, Miami, Florida. He is a prolific writer and has written hundreds of essays for both traditional academic and on-line magazines among which Metanexus and Ovi. One of his current works in progress is a book dealing with the issue of cultural identity within the phenomenon of “the neo-immigrant” exhibited by an international global economy strong on positivism and utilitarianism and weak on humanism and ideals.

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International Law

A sea and thousands of concerns

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The name of the “Caspian Sea” has been recently heard more than any other time! In the meantime, there are rumors, ambiguities and, of course, concerns that need to be described in the Convention on the Legal Status of the Caspian Sea which was signed on August 12 in the port city of Aktau, Kazakhstan.

Accordingly, there are some important points that calls for attention and scrutiny. In general, over the past 21 years, several meetings have been held on the Caspian Sea and how the coastal countries should be benefited from its resources. In these meetings, legal, security, economic, and even cultural cooperation were discussed among the littoral countries.

After more than two decades of fraught diplomatic efforts, the five littoral Caspian nations – Russia, Iran, Kazakhstan, Azerbaijan and Turkmenistan – agreed upon a legal framework for sharing the world’s largest inland body of water. However, as long as all disputes, especially legal conflicts between the participating countries aren’t resolved, it is impossible to talk about the establishment and continuity of sustainable relations among these countries. It should be noted that over the past two decades, one of the main tasks of our country’s Ministry of Foreign Affairs has been to direct this case and determine its legal convention.

1) Prolongation of the finalizing process of a case is not undesirable if it’s the result of scrutiny in the legal and technical parts. This is the case with determining the legal dimensions of the Caspian Sea Convention. After the collapse of the Soviet Union, we witnessed a kind of transformation in the Caspian legal regime. The Soviet Union was divided into 15 countries.

Consequently, Russia, Kazakhstan, Azerbaijan and Turkmenistan each became a separate and independent variable in this equation. Undoubtedly, the transformation of a two-variable legal equation into a “legal-security” multivariable equation is not considered a simple transformation. Therefore, we should understand the complexities of the Caspian case.

The countries of Iran, Azerbaijan, Turkmenistan, Russia and Kazakhstan each have specific demands regarding their share of the Caspian Sea resources. Making a balance between these demands and subsequently realizing them is very difficult and complicated. What is important in this context is to strengthen the “principle of cooperation” among the Caspian coastal nations, and to define joint maritime projects among all neighboring countries to protect the Caspian Sea.

Another point to be taken into consideration here is about the draft of the Caspian Sea Legal Convention and the role of the Foreign Ministry in this process. As mentioned above, the Caspian Sea Case has been open for more than two decades and has not yet come to a complete conclusion. Negotiations held among the Caspian Sea littoral states should distract our attention from the realities.

It should be noted that the establishment of the Caspian Sea Legal Convention is the basis for solving the existing disagreements over the Caspian Sea and defining concrete and conclusive cooperation among the littoral countries. A remarkable part of such security and economic cooperation will be the result of this convention.
In other words, the Convention on the Legal Status of the Caspian Sea can’t and shouldn’t be taken as in the same level with “defining the security and economic cooperation” between the coastal countries. Undoubtedly, the definition of economic, security and even cultural cooperation between the coastal countries depends on the settlement of legal disputes between these countries and setting of a common legal convention.

2) Speaking of controversial issues such as Iran’s 50 percent share of the Caspian Sea, which couldn’t be fulfilled even before the collapse of the Soviet Union, and the creation of false subjectivities in the country, by those who claim to be the representatives of our people, has no result except for the weakening of national security.

his is while the Iranian president, Hassan Rouhani, had emphasized that “we should recognize there are more important issues that need to be addressed.”
This is a legal process, and one of the main tasks of our country’s diplomacy and foreign policy system is to manage and direct this complex process. Obviously, under the current circumstances, expressing biased and targeted words will only lead to the loss of focus of our country’s diplomatic apparatus on this critical case.

Finally, it should be noted that good commitments were made during the meeting among the countries involved in this case. Today, the ministers of foreign affairs of the Caspian littoral states, unanimously emphasize on the necessity of the absence of foreign forces in this region, which is a positive trend. Moreover, from the statements made by the foreign ministers of the Caspian littoral states, we understand that their cooperation on resolving existing disputes has become faster than before.

However, until all legal conflicts between the Caspian littoral countries are not totally resolved and the Convention of the Caspian Sea Law Convention is not perfectly codified, we can’t think of this legal and strategic case as closed and settled. Therefore, in this critical situation, all efforts should be made so that Iran can benefit most.
It is emphasized here that even one singled legal disagreement should not remain among the players involved in the case. Meanwhile, the mechanism for resolving disputes should be carefully decided. Therefore, while welcoming the settlement of the existing disagreements over the Caspian Sea, there shouldn’t be any haste in completing this process.

First published in our partner Tehran Times

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International Law

Iran has to be very careful in future negotiations on Caspian Sea

Payman Yazdani

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Professor of political science says although the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states, Iran has to be very careful in future negotiations.

Five Caspian Sea littoral states signed Caspian Sea Treaty on August 12, 2018 in Kazakhstan. The agreement has created many debates about the share of Iran in Iran.

To know more about the issue we reached out to Nader Entessar Professor Emeritus of Political Science in University of South Alabama.

There are many debates on the legal regime of the Caspian Sea. Some argue that according to the treaties of 1921 and 1940 between Iran and the USSR, the share of Iran equals to 50% of this sea. Is Iran’s share stipulated in those treaties?

Nader Entessar

No.  Neither the 1921 nor the 1940 treaties specify that Iran and the USSR each share 50 per cent ownership of the Caspian Sea.  Both of these treaties talk in general terms about the resources of the Caspian Sea being the used by Iran and the USSR without stipulating the exact ownership of the seabed, boundary delimitation, and other related issues.  We have to remember that these two treaties were signed well before the United Nations Convention on the Law of the Sea (UNCLOS) was drafted and came into force.  Therefore, the 1921 and 1940 treaties could not have foreseen the complex issues of maritime boundaries that were discussed in UNCLOS.

Based on the international law, what is the legal status of the Caspian Sea after the collapse of the USSR and the sharing of the Caspian Sea by the five littoral states? Some bring about the idea of 20% sharing? Is there any base for this idea in the international law? 

The answer to this question depends on if the Caspian is defined as a “sea” or a “lake.”  If one classifies the Caspian as a lake, then according to international law its resources should be divided equally among the five riparian states.  However, if the Caspian is designated as a sea, then the five littoral states should draw lines extending from their shores to the midway point with littoral neighbors.  This explains why for many years Iran had insisted on defining the Caspian as a lake.  However, it appears that the five littoral states agreed in Aktau that the Caspian is a sea.  That is why some observers have argued that in the final delimitation agreement, Iran will end up getting not only about 13 per cent of the Caspian but also the saltiest and deepest part of it.

Is the share of each of the littoral states from the Caspian Sea defined in the convention signed on August 12 in Kazakhstan?

No, the text of the Caspian Sea Treaty signed on August 12, 2018 in Kazakhstan does not define the share of each of the littoral states.  In so far as Iran is concerned, this issue will have to be determined in a future agreement with Azerbaijan and Turkmenistan.  Iran has to be very careful in future negotiations with its two neighbors because the resulting boundary agreement will determine Iran’s final Caspian share.

What is the main achievement of the Aktau Convention, signed on August 12 in Kazakhstan, in regards to the legal regime and status of the Caspian Sea?

Although some reports have referred to the Caspian Sea Convention as a “landmark agreement,” I don’t view this agreement as such.  Its main achievement was that after more than 20 years of contentious diplomatic efforts, the five littoral states of the Caspian Sea finally agreed on a legal framework for sharing the resources of this significant body of water.  There are some clear and specific agreements in the Convention.  For example, all five littoral states agreed to 15 miles of sovereign waters, plus a further 10 nautical miles of fishing area.  But the wording of the Convention remains vague in many parts of the document, thus delaying divisive decisions that have to be made in future negotiations.

First published in our partner MNA

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International Law

Fifty Years of NPT: Weaknesses over the course

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NPT is a landmark treaty that lies at the heart of non-proliferation regime (NPR). In July 2018, Fiftieth anniversary of the NPT has been celebrated. Theoretically, NPT is committed to the goal of arms control and aims to accomplish the nuclear disarmament. For this purpose, the NPT member states are devoted to pursue three key objectives of the treaty: prevent horizontal proliferation, state’s right to use nuclear energy for peaceful objectives, and nuclear disarmament. However practically due to shifting US’ alliances, major power politics, and growing arms race, the fifty years of NPT has only delivered “Distress, Conflict and discrimination”.

Loopholes and weaknesses exist in NPT which are being misused by Nuclear Weapon States (NWS) and Non-Nuclear Weapons States (NNWS) of the treaty. Despite the NPT’s presence for 50 years and an expansion in its membership, atomic weapons have not been wiped out from the world. All the NWS aim to maintain their nuclear weapon state status due to their security or strategic concerns. Despite the dialogues of arms control, all major and smaller nuclear weapon states are committed to maintaining credible deterrence and strategic balance. Such aspirations of NWS demonstrate that major powers party to the arms control and disarmament treaty are merely the silent spectators to the existing weakened structure of the so called universal treaty of 191 member states due to their own vested interests.

The fifty years of NPT have reaffirmed that the universal mechanism to fight with nuclear proliferation and achieving the objective of disarmament is not adequate for two reasons: first, the international mechanism of non-proliferation has failed to deal with the few potential proliferators; secondly, strategic and security concerns of NWS and NNWS has undermined the Articles I, II, IV, VI and X of the treaty. In spite of the fact that until the 1980s worldwide measures to counteract atomic multiplication were generally more effective, yet in the subsequent years the NPT was not much successful to counter the aspirants of nuclear capability such as North Korea, Iran, Libya and Syria. Due to inadequate mechanism and weaknesses of the treaty, now nine states possess nuclear weapon capability and approximately 30 states have the technical ability to acquire it that is viewed as serious threat to the NPT.

Despite the potentials of non-proliferation, since 1968 with participation of 191 states and various agreements and talks, an efficient and effective regime stresses on pin pointing the weaknesses and restructuring, re-evaluation and reformation of the treaty structure.  The key setback to the NPT is that the articles of the treaty are not fairly adopted by the member states due to which the regime has failed to address the significant objectives of horizontal proliferation, arms control and disarmament. For instance under Article I of the treaty, transfer of nuclear material and technology by NWS to NNWS is prohibited. But treaty has failed to address the transfer of fissile material and nuclear technology from one NWS to another NWS. Such dynamic have increased the insecurities of NNWS and resultantly forces them to take extreme measures to ensure their security .e.g. North Korea. Simultaneously, despite being the member of the treaty, the US has been providing nuclear related technology to India since 1990s under the umbrella of various bilateral treaties or agreements. India-US nuclear agreement and granting of NSG waiver to India is viewed as an intentional measure to help India increase its military buildup to carry forward strategic ambitions of the US in the Asian region.

Furthermore, the US agreement with India for joint production and development of  military related technology such as mini UAVs , distinctive kits for C130 and designing/ development of jet engine technology has played central role in speedy development of India’s nuclear program. Such development is not only the violation of NPT by the US but also compels the NNWS to acquire nuclear capability to address their security concerns.  Right of all states to use nuclear energy for peaceful objectives played key role as bargaining chip and is viewed as major loophole in the treaty due to technical similarities in peaceful use of nuclear technology and technology for military purposes. North Korea Withdrew from the NPT in 2003.Article X of the treaty provides the right to member states to withdraw from the treaty if their sovereignty is on stake. However not accepting the states’ right to withdraw from the treaty is denial of their right of self defence and violation of treaty. Therefore, discriminatory attitude, special treatment and country specific treatment pose serious question mark on the implementation and standards of NPR.It demonstrates that the regime is just an instrument of major powers to fulfill their strategic and foreign policy objectives.

The current doctrines of NWS comprise of elements warfare, which shows hegemonic mindsets of major powers and explains their reluctance to give up on their “nuclear assets”. These factors have posed negative impact on the process of non-proliferation and disarmament. Therefore it can be inferred that the above mentioned scenarios have played central role in keeping Pakistan away from joining the NPR. If NPT states want to attract non-NPT states for the membership of regime then the current member states will have to pursue non-discriminatory approach towards non-proliferation themselves.

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