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JCPOA: Forward Into the Past

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In the last few months, the U.S.¬–Iran confrontation has been rapidly and steadily plunging the Middle East into the atmosphere of an impending armed conflict. The main stumbling block for Tehran and Washington is the Joint Comprehensive Plan of Action (JCPOA), as the two states differed in their assessment of its terms. Iran believes that by becoming a party to the JCPOA it has already made significant concessions by voluntarily curtailing its sovereign right to develop a nuclear sector. Under the provisions of the nuclear deal, Iran undertook both to limit the pace of producing enriched uranium and plutonium and to grant IAEA officers broad access to its nuclear facilities. On the whole, Iran perceived these steps as a concession in the name of peace and the country’s economic prosperity. Donald Trump, on the contrary, views the Iran deal as a giant misstep by the Obama Administration. In his opinion, his predecessor both missed the opportunity to curb Iran’s policies in the region and helped lift sanctions from a state that the United States has recognized as the principal global sponsor of terrorism. Consequently, after many promises, the United States withdrew unilaterally from the JCPOA in 2018 and then resumed the regime of harsh sanctions against Iran. From the point of view of the Trump administration, the JCPOA cannot be confined to the Islamic Republic’s nuclear area only. On the contrary, the deal should extend to all of Iran’s activities that are directed against the interests of Washington or its allies. Additionally, Donald Trump also stated that the very restrictions imposed on Iran’s nuclear programs were highly unreliable and allowed Iran to secretly build up its nuclear potential. Consequently, from the point of view of the current U.S. leadership, the JCPOA should be revised and re-negotiated to be concluded on terms that would be more advantageous for Washington. Naturally, this cannot possibly sit well with Tehran, which already believes itself to be the affected party.

What Does Iran Want?

Iran was quite satisfied with the JCPOA. Naturally, it had to make concessions to the West and restrict its nuclear program, but in exchange, the harsh sanctions were lifted from Iran, which gave it new opportunities for trade and investment. However, the change of power in the US laid bare a new obstacle in the way of Iran’s politics: a new president in the United States means a new political course for the country. Donald Trump’s victory in the 2016 elections put an end to the United States’ participation in the JCPOA and forced Iran to think about whether it is economically expedient to participate further in the nuclear deal. It both jeopardized the JCPOA and struck a major blow to the reputation of President Hassan Rouhani in particular, and of the supporters of Iran’s moderate politics in general. The current situation means that Iran agreed to make concessions to the West and never received what it had been promised. Despite its flexibility and tractability, Iran is again under harsh sanctions. And most of the country’s main trading partners comply with them. Thus, one of Iran’s most significant demands for the new deal should be to revise the mechanism for withdrawing from the deal in order to make this step as difficult as possible. One of the main reasons why Iran refuses to enter into talks with the United States is that Tehran does not believe Washington is prepared to follow through on the commitments it undertakes. Listing the reasons why Tehran does not accept Washington’s invitation to launch talks on a new JCPOA, Supreme Leader of Iran Ali Khamenei, among other things, said, “In the final stage, after receiving all the immediate advantages, the U.S. breaches their own promises: they forget their strongly verbalized promises. This is the U.S.’s method of negotiating. Now should we negotiate with such a sham of a government? Why should we negotiate? The JCPOA was a clear example. Even though I was very strict about it – yet, the red lines were not respected. Still, the other party acted in such a manner. So, it is impossible to negotiate with this government.” It is clear that this time, mere promises on the part of the United States will be insufficient to conclude an agreement, even if these promises take the form of the provisions of a new treaty. As far as Iran sees it, the United States can promise much, but without definite guarantees, there is virtually nothing that keeps it from breaking its word just as easily and dismantling the agreement. Thus, the new agreement should stipulate guarantees against the easy unilateral withdrawal by any of the parties from the treaty. Naturally, it is difficult to envision a mechanism that would completely rule out the possibility of breaching the commitments while at the same time not infringing upon state sovereignty, but the system of withdrawing from the treaty can be made significantly harder. In particular, the withdrawal should not depend solely on the executive branch.

It appears that this goal may be achieved by “tying” the treaty to the national body of laws in each state that is a party to the deal. For as long as the JCPOA is enshrined solely in a resolution of the UN Security Council, its provisions, despite their binding nature, still remain within the limits of international law. Experience shows that, if this is the case, it is very easy for a President of the United States to declare that his country shall unilaterally cease to comply with its commitments under the treaty, as there are no impediments to this at the national level. However, any international treaty can be incorporated into the national legislation, thereby making the application of domestic procedures of amending legislation a mandatory condition for amending the treaty. Thus, the new deal can include a provision that the treaty comes into force only after it has been ratified by each party. In this case, each state that is party to the treaty will be bound by its domestic system of amending legislation, and such a system usually involves complicated parliamentary procedures. Such a system would create a counter-balance for the executive represented by the president, as it would restrict the executive powers to withdraw from the nuclear deal. This may inspire confidence in Tehran that changes in power in the United States will not radically affect Washington’s membership in the new deal. Consequently, Iran can be certain that this time, its concession will not be in vain.

What Does the United States Want?

The Trump administration represented by Secretary of State Mike Pompeo announced a list of demands for Tehran which, once fulfilled, should lead to the sanctions being lifted. The list included 12 items (a 13th was added later on) calling upon Iran to withdraw its troops from Iraq and Syria; cease supporting such organizations as HAMAS and Hezbollah, etc.; grant the IAEA unqualified access to all its military facilities to conduct inspections; abolish its ballistic missile program, etc. Naturally, it is quite difficult to picture Iran complying with even a half of these demands, as it will seriously hurt the Middle East strategy the country has been building for the last 40 years. Thus, if the chance to find a compromise does appear, then the most serious concerns of the Trump administration regarding Iran’s politics should be addressed, otherwise, no deal can be concluded. Clearly, the greatest threat coming from Iran is the prospect of it developing nuclear weapons. When it comes to the nuclear deterrence with regard to Iran, two factors are important for the United States: the possibility of verifying compliance on the part of Iran with its obligations and the term of the JCPOA’s validity. At the same time, the demands of the United States concerning the provisions of the new treaty largely depend on the true intentions of the Trump administration. In that regard, at least two scenarios are possible.

The First Scenario

Donald Trump wanted to conclude a more advantageous deal on his terms, but since Iran proved to be intractable, he wants to reinstall at least those restrictions that had been agreed upon under the JCPOA in order to avoid having to solve the problem by force. In this case, Trump will have to both convince Iran to enter into talks again and draft a new deal in such a way as to “save face” in front of his voters and the global community in general. First, he needs to show that his entire “maximum pressure” campaign was not fruitless and did indeed prompt Iran to enter into talks with Washington. Second, Trump cannot just bring back the original JCPOA. A major part of Trump’s presidential campaign hinged on harsh criticism of the “nuclear deal,” which he called “terrible.” However, if Trump is willing to bring back the main JCPOA restrictions in order to conclude a new treaty, that would not be a political fiasco for his administration. It would suffice to make certain cosmetic changes that would be presented as significant concessions on the part of Iran and a victory of the “maximum pressure” strategy. In this case, the criticism of the JCPOA that underlay Trump’s electoral campaign should be used as a starting point. First, it is a fixed-time deal. Second, from the point of view of the U.S. administration, it allows Iran to secretly enrich uranium and further improve its nuclear program. In both areas, superficial restrictions may be introduced that are presented as radically new rules of the game for Iran. For instance, the IAEA can be granted some additional rights to inspect Iran’s nuclear facilities. Naturally, we are not talking unqualified access to all military facilities, since Tehran finds this utterly unacceptable. It is, however, possible to reduce the time of advance notification that IAEA officers must give Tehran of an upcoming inspection at a particular facility. Introducing a new term of validity for the treaty would appear to be more complicated since Iran would never agree to the restrictions being indefinite. One option could be to extend the treaty by stipulating a period of gradual easing off of the IAEA’s monitoring of the nuclear program.

The Second Scenario

The Trump administration continues to assert the effectiveness of the “maximum pressure” strategy and still hopes to force Tehran to engage in talks on Washington’s terms. If the Trump administration continues to believe the “maximum pressure” strategy is a success, concluding a treaty will hinge on Iran making significant concessions. The question is what “red lines” Washington will draw for itself and what it is willing to offer Iran in exchange for the concessions required. If the United States continues to stick to its 13 demands, offering nothing but the lifting of the sanctions in exchange, the prospects of a new treaty are doomed, and it is highly probable that, sooner or later, Iran will start to work diligently on the development of its nuclear program. In this case, the only solution to the problem is the use of military force against Tehran. Trump’s readiness to start a new war in the Middle East is doubtful, especially since abstaining from needless conflicts is a key element of the politics of the current U.S. president. Consequently, the only way out of the current predicament is to look for a compromise that Iran could agree to and that could help Trump minimize the damage to his reputation as a competent president.

It is quite clear that the JCPOA if taken as an instrument of a comprehensive settlement of all threats coming from Iran, is far from perfect. It does not set any restrictions on Tehran’s military activities in the Middle East, it is a fixed-time deal, and it cannot prohibit Iran from extending financial and military aid to its regional allies. Nevertheless, the JCPOA did guarantee the main thing – that Tehran could not obtain nuclear weapons, the prospect of which far outweighs all other threats emanating from the country. Thus far, there is no alternative to this agreement, and no replacement appears to be in the offing. Despite the harsh economic sanctions and the real threat of an open military conflict with the United States, Tehran is firmly holding its ground and does not intend to engage in talks on Washington’s terms. At the same time, Iran continues to hide aces up its sleeves in the event that further negotiations take place as the country gradually resumes its military nuclear program. Sooner or later, the emerging situation will force the Trump Administration to make the difficult choice between the JCPOA and a new war in the Middle East. It is hard to say which is the preferred option for Washington, but it still seems that a bad peace is better than a good war.

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Middle East

Ukraine crisis could produce an unexpected winner: Iran

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 Iran potentially could emerge as an unintended winner in the escalating crisis over Ukraine. That is, if Russian troops cross the Ukrainian border and talks in Vienna to revive the 2015 Iranian nuclear agreement fail.

An imposition of tough US and European sanctions in response to any Russian incursion in Ukraine could likely make Russia more inclined to ignore the fallout of violating US sanctions n its dealings with Iran.

By the same token, a failure of the talks between Iran and the United States, Russia, China, the European Union, France, Germany, and Britain to revive the accord that curbed the Islamic republic’s nuclear program would drive Iran closer to Russia and China in its effort to offset crippling US sanctions.

US and European officials have warned that time is running out on the possibility of reviving the agreement from which the United States under then-President Donald J. Trump withdrew in 2018.

The officials said Iran was weeks away from acquiring the know-how and capability to produce enough nuclear fuel for a bomb quickly. That, officials suggested, would mean that a new agreement would have to be negotiated, something Iran has rejected.

No doubt, that was in the back of the minds of Russian and Iranian leaders when they met last week during a visit to Moscow by Iran’s president, Ebrahim Raisi. It was the first meeting between the leaders of Russia and Iran in five years.

To be sure, the road to increased Russian trade, energy cooperation, and military sales would open with harsh newly imposed US sanctions against Russia even if restrictions on Iran would remain in place.

That does not mean that the road would be obstacle-free. Mr. Putin would still have to balance relations with Iran with Russia’s ties to Saudi Arabia and the United Arab Emirates. 

If anything, Russia’s balancing act, like that of China, has become more complicated without the Ukraine and Vienna variables as Iranian-backed Houthis expand the seven-year-long Yemen war with drone and missile strikes against targets in the UAE.

The Houthis struck as the Russian, Chinese and Iranian navies started their third joint exercises since 2019 in the northern Indian Ocean. The two events were not related.

“The purpose of this drill is to strengthen security and its foundations in the region, and to expand multilateral cooperation between the three countries to jointly support world peace, maritime security and create a maritime community with a common future,” Iranian Rear Admiral Mostafa Tajoldini told state tv.

US dithering over its commitments to security in the Gulf has persuaded Gulf states like Saudi Arabia and the UAE to hedge their bets and diversify the nature of their relations with major external powers.

However, a Russia and potentially a China that no longer are worried about the fallout of violating US sanctions against Iran could put Riyadh and Abu Dhabi on notice that the two US rivals may not be more reliable or committed to ensuring security in the Gulf. So far, neither Russia nor China have indicated an interest in stepping into US shoes.

This leaves Saudi Arabia and the UAE with few good choices if Russia feels that US sanctions are no longer an obstacle in its dealings with Iran.

Russia is believed to want the Vienna talks to succeed but at the same time has supported Iranian demands for guarantees that the United States would not walk away from a revived deal like it did in 2018.

Against the backdrop of talk about a proposed 20-year cooperation agreement between the two countries, Russia appears to want to negotiate a free trade agreement between Iran and the Eurasian Economic Union that groups Armenia, Belarus, Kazakhstan, and Kyrgyzstan, alongside Russia.

Iran has signed a similar 25-year cooperation agreement with China that largely remains a statement of intent at best rather than an action plan that is being implemented.

Like in the case of China, the draft agreement with Russia appears to have been an Iranian rather than a Russian initiative. It would demonstrate that Iran is less isolated than the United States would like it to be and that the impact of US sanctions can be softened.

“We have a document on bilateral strategic cooperation, which may determine our future relations for the next 20 years. At any rate, it can explain our prospects,” Mr. Raisi said as he went into his talks with Mr. Putin.

For now, Mr. Raisi’s discussions in Moscow appear to have produced more lofty prospects than concrete deals.

Media speculation that Russia would be willing to sell Iran up to US10 billion in arms, including Su-35 fighter jets and S-400 anti-missile defense systems, appear to have remained just that, speculation. Saudi Arabia and the UAE would view the sale to Iran of such weapons as particularly troublesome.

By the same token, Iranian officials, including Finance Minister Ehsan Khanduzi and Oil Minister Javad Owji, spoke of agreements signed during the Moscow visit that would revive a US$5 billion Russian credit line that has been in the pipeline for years and produce unspecified energy projects.

It’s unclear if these are new projects or ones that have been previously discussed and even agreed to, such as the one Lukoil stopped working on in 2018 after the US pulled out… Lukoil was concerned about being targeted by US sanctions,” said international affairs scholar Mark N. Katz.

Theoretically, the dynamics of the Ukraine crisis and the prospects of failed Vienna talks could mean that a long-term Russian Iranian cooperation agreement could get legs quicker than its Chinese Iranian counterpart.

Negotiating with a Russia heavily sanctioned by the United States and Europe in an escalated crisis in Ukraine could level the playing field as both parties, rather than just Iran, would be hampered by Western punitive measures.

Tehran-based Iranian scholar and political analyst Sadegh Zibakalam suggested that it was time for the regime to retire the 43-year-old Iranian revolution’s slogan of “neither East nor West.” The slogan is commemorated in a plaque at the Foreign Ministry.

Asserting that Iran has long not adhered to the motto, Mr. Zibakalam suggested that the plaque be removed and stored in the basement of a hardline Tehran newspaper. “It has not been used for a long time and should be taken down,” he tweeted.

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Unified Libya will come only via ballot box, ‘not the gun’-UNSC

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A boy runs in the ruins of the Bab al-Aziziyah compound in Tripoli, Libya. © UNICEF/Giovanni Diffidenti

Libya is at a “delicate and fragile juncture in its path to unity and stability”, the UN Political Affairs chief told the Security Council on Monday, urging the international community to remain united in supporting national elections postponed last month. 

In welcoming positive developments across three different tracks of intra-Libyan dialogue, Rosemary A. DiCarlo, Under-Secretary-General for Political and Peacebuilding Affairs, also recognized the challenges that must be overcome.  

“So many Libyans have told us, the way towards a stable and united Libya is through the ballot box, not the gun”, she said. “We must stand with them”. 

Postponed elections 

Growing polarization among political actors, and disputes over key aspects of the electoral process, led to the postponement of long anticipated elections on 24 December.  

The High National Commission for Elections (HNEC) cited shortcomings in the legal framework along with political and security concerns. To address this, the House of Representatives has established a Roadmap Committee to chart a new political path that defines an elections timetable and process. 

New Special Adviser 

Last month, Stephanie Williams was appointed Special Adviser on Libya, having served as acting Special Representative and head of the UN Support Mission, UNSMIL, last year.  

To date, she has undertaken wide-ranging consultations, including with members of the Government of National Unity (GNU), the High National Election Commission, the House of Representatives, and candidates for presidential and parliamentary elections.  

Oil-rich Libya has descended into multiple crises since the overthrow of former rule Muammar Gadaffi in 2011, which in recent years saw the country divided between rival administrations – a UN-recognized Government of National Accord (GNA) based in the capital Tripoli, and that of the self-styled Libyan National Army (LNA), led by General Khalifa Haftar.  

Ms. Williams has reiterated that the focus of the political process now, should remain on holding “free, fair, inclusive and credible national elections” in the shortest possible timeframe. 

“In all her meetings, the Special Adviser highlighted the 2.8 million Libyans who have registered to vote”, said Ms. DiCarlo, adding that she also called on everyone to respect the will of the Libyan people and to adhere to the timeline agreed to in the Libyan Political Dialogue Forum (LPDF) roadmap, which was endorsed by the Security Council

Welcomed developments 

The UN political affairs chief said ongoing dialogue among political, security and economic actors from across the country was key. 

“We have seen reports of consultations between the Speaker of the House of Representatives and the President of the High State Council, as well as among presidential candidates from western and eastern Libya”, she said.  

On the security track, there have been meetings among various armed groups, as well as the Chief of General Staff of the Western Military Forces under the GNU and the acting General Commander of the rival LNA, with the participation of military chiefs and heads of military departments from both sides.  

Turning to the economy, further steps have been taken to reunify the Central Bank of Libya.  

Moreover, renewed efforts continue to advance national reconciliation based on the principles of transitional justice.  

Security situation 

While the ceasefire has continued to hold, “political uncertainty in the run up to the elections has negatively impacted the overall security situation”, the political chief informed the Council, including in Tripoli. 

It has resulted in shifting alliances among armed groups affiliated with certain presidential candidates, she added. 

Similarly, unfulfilled demands made to the GNU by the Petroleum Facilities Guards (PFG) in western Libya resulted in the shutdown of oil production, causing the National Oil Corporation to declare in December, force majeure – a clause that removes liability for natural and unavoidable catastrophes. 

Following negotiations between the PFG and the GNU, Oil production was restored on 9 January. 

To implement the ceasefire agreement, last month military representatives from opposing sides, called the 5+5 Libyan Joint Military Commission (JMC), discussed with Turkish and Russian authorities, an Action Plan to gradually withdrawal mercenaries and foreign fighters from the country.     

At the same time, despite serious logistical and security challenges, the UN Support Mission in Libya (UNSMIL) continued its work to establish a ceasefire monitoring hub in Sirte, pending the GNU’s approval on accommodation and office facilities. 

Human rights concerns 

“The human rights situation in Libya remains very worrying”, said Ms. DiCarlo, noting “documented incidents of elections-related violence and attacks based on political affiliation”, which she described as obstacles toward a conducive environment for free, fair, peaceful and credible elections. 

“We are particularly concerned that women and men working to protect and promote women’s rights continued to be targeted by hate speech, defamation and incitement to violence”, she stated. “Some of the disturbing social media posts that posed a threat to the safety and security of these persons were removed after UNSMIL brought them to the attention of social media platforms”.  

Meanwhile, arbitrary detention by State and non-State actors continued across the country, with many detainees subjected to serious rights abuses. 

Migration management  

The situation of migrants and refugees is also highly concerning.  

“Large numbers of migrants and refugees attempting to cross the Mediterranean Sea and returned to Libya continue to be detained in inhumane and degrading conditions with restricted humanitarian assistance. Thousands are unaccounted for”, the UN official said.  

Ms. DiCarlo pointed out that hundreds of foreign nationals were expelled from Libya’s eastern and southern borders without due process, with some “placed in extremely vulnerable situations across remote stretches of the Sahara Desert without sufficient food, water, safety and medical care”. 

“The United Nations remains ready to work with Libyan authorities on a long-term national response to migration and refugee management in line with international law to include addressing human rights concerns”, she assured. 

Accountability  

To ensure political progress, Elham Saudi, Co-founder and Director of Lawyers for Justice in Libya, said that all who commit abuses must be held accountable, including mercenaries. 

She noted that without law, revenge would be the only winner.  

Ms. Saudi also maintained the importance of an enabling environment for all rights advocates, especially women, and expressed hopes for a human-rights based approach in how Libya is governed, going forward. 

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Embarking on Libya’s Noble Foray Into the Future

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On Saturday the 22nd of January, activists from across the civil society spectrum in Libya gathered over Zoom with one purpose in mind; publicly declaring their support for the 1951 Libyan Independence Constitution. Despite the political turmoil which has engulfed the country since the Arab Spring began in Tunisia in 2011, a strong civil society movement which supports a return to our historical constitution, has always existed in Libya. These supporters, who represent a significant number of Libyans from across the country, see the restoration of the 1951 constitution as the only way to shape their future.

Libya has been through an immeasurable amount of internationally led initiatives, all aimed at providing Libya with long term “solutions”. Only over the course of the past decade, one can count the UN-brokered Skhirat agreement in December of 2015, the 2017 Paris meeting, the 2018 Palermo conference alongside Mohammed bin Zayed’s Abu Dhabi gathering in February 2019. Followed by Putin and Erdogan’s joint call for a ceasefire in 2020, alongside the first (2020) and second (2021) Berlin conferences alongside UN-sponsored talks in Geneva, each and every one of these efforts amounted to nothing.

The main reason behind these, perhaps well-intentioned but failed attempts, was the simple fact that none of these efforts had any grounding in Libyan history or the support of the Libyan people. Reaching consensus in a society as heavily divided as that of Libya, is a significant challenge. However, placing our faith in our history will undoubtedly provide us with a solution that is closer to the hearts of citizens of our nation and which has the potential to assist in competing factions finally putting their differences aside.

This was the catalyst of Saturday’s meeting which sought to once and for all provide an authentically Libyan solution to the issues which have been plaguing the country for over a decade. The first of these is the preservation of our territorial integrity which has for too long been challenged by foreign actors. It is high time that a long term resolution for our country’s ills is found that ensures the exclusion of foreign elements from shaping the future of our great land.

The second issue the gathering sought to underscore was the need to build an inclusive future for all members of Libyan society. For far too long, our country has excluded citizens of certain political persuasions, cultural backgrounds or those who hold different opinions. Every Libyan deserves equal opportunities, protection of basic rights alongside access to justice. This has been impossible in a country which for so long has lacked a cohesive national identity.

These two issues are indeed intertwined with the third issue which the conference sought to highlight, namely, our demand to return to constitutional legitimacy under the leadership of our Crown Prince Mohammed El Hasan el Rida el Senussi. As the sole heir to the throne of King Idris, passed down through the late Crown Prince Hassan, Prince Mohammad is the leader our country has yearned for.

With leadership claims grounded in historical fact that cannot be upended by foreign or domestic elements, from an ideological standpoint, Prince Mohammad serves as an anchor, offsetting challenges to stability posed by foreign elements. This is strengthened by his position as  the scion of a family which has been in Libya for centuries and founded the Senoussia movement, briniging with it Islam, to the country. Furthermore, historical memories of the reign of King Idris, which saw religious tolerance, gender equality and security for its citizens, reflects the future which Libyan’s would like to see for themselves today.

Bringing together journalists, academics, human rights defenders and political activists, Saturday’s gathering was indeed revolutionary. It would have been unimaginable that such a gathering would even have taken place a mere decade ago. Representing not only themselves, but a wide range of segments of Libyan society, those attending over Zoom broadcasted a powerful message; a rejection of foreign attempts top shape the future of the country alongside a return to historical, constitutional, legitimacy under the leadership of the only man who can help Libya exit the current quagmire and begin its noble foray into the future.

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