Authors: Akhand Pratap Rai and Aman Mani Tripathi*
The United States sanction on Iran at the time of COVID-19 crisis caused damages to the Iranian people. Essential Medicines and medical equipment are affected and also put a lot of obstacles for Iran struggle against this pandemic. The unilateral act of the United States to impose sanction on Iran, not only violate the state responsibility under International law, but it also violates the International Human Right obligations.
Article 2(4) of the United Nations Charter prohibited ‘use of force’ under International Law except ‘right to self-defence’ mentioned in Article 51 of the United Nations Charter. But, whether the unilateral coercive measures of a state to impose ‘economic sanction’ against other State or states under International Law is fall under the purview of ‘use of force’ or an ‘act of aggression’ is still a debatable issue. Though, United Nations General Assembly (UNGA) adopts resolutions calling on states not to recognize unilateral coercive economic measures imposed by any countries across territorial boundaries, which are contrary to the recognized principle of International Law. In the International Court of Justice (ICJ), the Principle Judicial Organ of United Nations decision on the merits of Nicaragua vs United States the Court stated clearly that ‘use of force’ does not always entail an armed attack.
U.S. Sanction and State Responsibility
Iran challenged the United States sanction on Iran in the year 2018 before the International Court of Justice (ICJ). Iran claims that the United States sanction violates the provision under the Treaty of Amity 1955. The International Court of Justice indicates certain measures as a case pending for final decision to protect the rights claimed by Iran. The International Court of Justice (ICJ) held that the United States should, in accordance with its obligations under the Treaty of Amity 1955 must remove, any impediments to the free exportation to the territory of Iran of goods required for humanitarian needs such as (I) medicines and medical devices (ii) foodstuff and agricultural commodities (iii) goods and services as are necessary for the safety of civil aviation. In the current global crisis due to COVID-19, the United States sanction disrupted the financial stability of Iran to fight against the pandemic, and it is a clear violation of International law. A breach of International obligations by a State entails its international responsibility of an internationally wrongful act of State by actions or omission or a combination of both. Article 1 of the Draft Articles on Responsibility of States for International Wrongful Acts, 2001(hereinafter referred to as ‘ARSIWA’) drafted by the International Law Commission, states that:
“Every internationally wrongful act of a State entails the international responsibility of that State”.
The International Law Commission (ILC) is a subsidiary organ of United Nations General Assembly (UNGA). It established under Article 22 of United Nations Charter in 1947, to undertake the mandate of the General Assembly, under article 13(1)(a) of the Charter of the United Nations for “progressive development of international law and its codification”.
The Permanent Court of Justice (PCIJ)in (Phosphates in Morocco, Judgment, S.S. “Wimbledon”, Factory at Chorzów, Jurisdiction, Judgment) and its International Court of Justice (ICJ) (Corfu Channel, Merits, Judgment, Nicaraguavs. United States, Merits, Judgment, Gabcíkovo-Nagymaros Project case)cases declared that when a state commits an internationally wrongful act against another international state responsibility established between the two states. The International Court of Justice (ICJ), in its advisory opinion on Reparation for Injuries and on the Interpretation of Peace Treaties (Second Phase) stated that “refusal to fulfil a treaty obligation involves international responsibility”.
Now, the question arises that what constitutes an internationally wrongful act of a state. Article 2 of ‘ARSIWA’ states that:
“There is an internationally wrongful act of a State when conduct consisting of an action or omission:
(a) is attributable to the State under international law; and
(b) constitutes a breach of an international obligation of the State.” The constituent elements for the existence of an internationally wrongful act of State are ‘conduct of state attributable to the state’ and ‘conduct must breach international legal obligation’ in force for that State at that time (Malcolm Evans). The International Court of Justice (ICJ), in the United States Diplomatic and Consular Staff in Tehran case pointed out that act is imputable to State, and it must consider their compatibility or incompatibility with the obligation under treaties in force or under any other rules of international law that may be applicable.
Circumstances precluding wrongfulness
The State can claim defences or excuses for not performing international obligation, which termed as ‘Circumstances precluding wrongfulness’. Chapter V of ARSIWA sets out six circumstances precluding the wrongfulness of conduct of states. This chapter provides a shield against the breach of an international obligation by the rules. These six circumstances are consent, self-defence, countermeasures, force majeure, distress and necessity. It should be noted that Article 26 of ARSIWA makes it clear that none of these circumstances precluding wrongfulness can be relied on if to do so would conflict peremptory norms of general international law. The United States unilateral sanction against Iran may depend on the defences of “countermeasures”. However, these countermeasures imply non-armed measures such as coercive economic measures. The International Law Commission (ILC) in ARISWA commentaries, appears in the Yearbook of the International Law Commission, 2001 (Vol. II, Part Two) calls the unilateral sanction by states as “countermeasures”. Chapter VII of the United Nations charter uses the term “measures”, not “sanction”. Judicial decisions, State practice and doctrine confirms that “countermeasures” taken by a state are not wrongful acts, but recognized as a valid means of self-help as long as it does not violate the peremptory norms of general international law.
Do U.S. “countermeasure” violates peremptory norms of general international law?
Article 26 of ARSIWA states that:
“Nothing precludes the wrongfulness of any act of a State which is not in conformity with an obligation arising under a peremptory norm of general international law”.
Accordance with Article 53 of the Vienna Convention on Law of Treaties 1969, a treaty which conflict with a peremptory norm of general international law is void. A peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted. The United Nations placed sanction on Iran since 1979 after a hostage crisis in the U.S. Embassy in Tehran. Iran was later hit by even more sanction over its nuclear programme, but under an International deal in 2015, they agreed to limit their nuclear activities. In 2018, the United States decided to re-impose sanction that the United States lifted under the Joint Comprehensive Plan of Action (JCPoA).
Medicine has become more expansive. Some drug supplier is refusing to sell the drug in Iran to avoid falling in foul of the United States. This has led to shortages of medicine, putting thousands of lives at risk and harms the Iranian Right to Health.
2. Civil Aviation
Iranian planes are so old. Some Iranian call them ‘flying coffin’ and no wonder, in the past 25 years, more than 2000 people have died in air crashes involving Iranian Planes. For the last 40 years, Civil Aviation in Iran has struggled to update and maintain their fleets because of trade sanction. Under an international deal in the year 2015, Boeing and Airbus were going to sell Iran almost 200 planes. But three years later only handful planes were delivered before the United States revoked the export licenses.
3. Ink and Paper
Iran is dealing with ink shortage, and the price of imported paper has more than tripled since they pulled out of the nuclear deal. The publisher of newspaper and books are suffering from this crisis.
In Iran, one kilogram of red meat has become a luxury. Before the new sanction kicked, it cost 10 U.S. dollars. Now, the price is more than doubling. Importing food has been made difficult by sanctions on Iranian banks and financial institutions.
These are the only few examples which made the life of Iranian people much miserable. An independent expert appointed by Human Right Council has expressed grave concern over economic sanction for political purposes. It violates human rights and the norm of international behaviour.
Article 50 Paragraph 1 of ARSIWA specifies certain obligations, the performance of which may not be impaired by countermeasures. Article 50 paragraph 1 states that:
“1. Countermeasures shall not affect:
(a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations;
(b) obligations for the protection of fundamental human rights;
(c) obligations of a humanitarian character prohibiting reprisals;
(d) other obligations under peremptory norms of general international law.”
The U.S., by imposing sanction on Iran directly or indirectly halt the supply of medicines and medical equipment, violates the right to health and life under Human Right obligations. The United States is obliged for the protection of the fundamental human right of Iranian people.
In the global crisis, due to COVID-19 the United States economic sanction on Iran constitute an internationally wrongful act towards Iran. It violates the state responsibility, human rights obligation as well as the peremptory norms of general international law. Economic restriction is likely to result in violation of basic human rights and has adversely affected the nature of foreign relations. Economic sanctions doesn’t resolve the political gap between governments. The dominant position of any states in the global financial arena must not be abusive to cause economic hardship to the economy of sovereign states contrary to international law.
*Aman Mani Tripathi (Aman Mani Tripathi is an LL.M Candidate (International Law) at the Faculty of Legal Studies, South Asian University, New Delhi. He qualified National Eligibility Test for Assistant Professor (Law) conducted by National Testing Agency on behalf of University Grant Commission (UGC) the apex regulatory body of higher education in India, held in June 2019.
Saudi Arabia and Iran want to be friends again
Eventually the ice-cold relationship between Iran and Saudi Arabia began to melt. The two countries sat at the negotiating table shortly after Biden came to power. The results of that discussion are finally being seen. Trade relations between Iran and Saudi Arabia have already begun to move. Although there has been no diplomatic relationship between the two countries since 2016, trade relations have been tense. But trade between Iran and the two countries was zero from last fiscal year until March 20 this year. Iran recently released a report on trade with neighboring countries over the past six months. The report also mentions the name of Saudi Arabia. This means that the rivalry between the two countries is slowly normalizing.
Historically, Shia-dominated Iran was opposed to the Ottoman Empire. The Safavids of Persia have been at war with the Ottomans for a long time, However, after the fall of the Ottomans, when the Middle East was divided like monkey bread, the newly created Saudi Arabia did not have much of a problem with Iran. Business trade between the two countries was normal. This is because the rulers of Saudi Arabia and Iran at the time were Western-backed. That is why there was not much of a problem between them. But when a revolution was organized in Iran in 1979 and the Islamic Republic of Iran was established by overthrowing the Shah, Iran’s relations with the West as well as with Saudi Arabia deteriorated. During the revolution, Ayatollah Khomeini called for the ouster of Western-backed rulers from the Middle East. After this announcement, naturally the Arab rulers went against Iran.
Saddam Hussein later invaded Iran with US support and Saudi financial support. After that, as long as Khomeini was alive, Saudi Arabia’s relations with Iran were bad. After Khomeini’s death, Akbar Hashemi Rafsanjani and Mohammad Khatemi tried to mend fences again. But they didn’t get much of an advantage.
When the Bush administration launched its invasion of Iraq in 2003, Iran’s influence in Shiite-majority Iraq continued to grow. Since the start of the Arab Spring in 2011, Iran’s influence in the region has grown. Saudi Arabia has been embroiled in a series of shadow wars to reduce its influence. It can be said that Iran and Saudi Arabia are involved in the Cold War just like the United States and the Soviet Union. Behind that war was a conflict of religious ideology and political interests. Diplomatic relations between Saudi Arabia and Iran came to a complete standstill in 2016. Iranians attack the Saudi embassy in Tehran after executing Saudi Shiite cleric Sheikh Nimar al-Nimar. Since then, the two countries have not had diplomatic relations.
Finally, in April this year, representatives of the two countries met behind closed doors in Baghdad. And through this, the two countries started the process of normalizing diplomatic relations again. The last direct meeting between the two countries was held on September 21.
Now why are these two countries interested in normalizing relations? At one point, Mohammed bin Salman said they had no chance of negotiating with Iran. And Khomeini, the current Supreme Leader of Iran, called Mohammed bin Salman the new Hitler. But there is no such thing as a permanent enemy ally in politics or foreign policy. That is why it has brought Saudi Arabia and Iran back to the negotiating table. Prince Salman once refused to negotiate with Iran, but now he says Iran is our neighbor, we all want good and special relations with Iran.
Saudi Arabia has realized that its Western allies are short-lived. But Iran is their permanent neighbor. They have to live with Iran. The United States will not return to fight against Iran on behalf of Saudi Arabia. That is why it is logical for Iran and Saudi Arabia to have their ideological differences and different interests at the negotiating table. Saudi Arabia has been at the negotiating table with Iran for a number of reasons. The first reason is that Saudi Arabia wants to reduce its oil dependence. Prince Salman has announced Vision 2030. In order to implement Vision 2030 and get out of the oil dependent economy, we need to have good relations with our neighbors. It is not possible to achieve such goals without regional stability, He said.
Saudi Arabia also wants to emerge from the ongoing shadow war with Iran in Iraq, Syria, Yemen and Lebanon to achieve regional stability. The war in Yemen in particular is now a thorn in the side of Saudi Arabia. The Saudis are unable to get out of this war, nor are they able to achieve the desired goal. Saudi Arabia must normalize relations with Iran if it is to emerge from the war in Yemen. Without a mutual understanding with Iran, Yemen will not be able to end the war. That is why Saudi Arabia wants to end the war through a peace deal with the Houthis by improving relations with Iran.
Drone strikes could also have an impact on the Saudi Aramco oil field to bring Saudi Arabia to the negotiating table. Because after the drone attack, the oil supply was cut in half. The Saudis do not want Aramco to be attacked again. Also, since the Biden administration has no eye on the Middle East, it would be wise to improve relations with Iran in its own interests.
Iran will benefit the most if relations with Saudi Arabia improve. Their economy has been shaken by long-standing US sanctions on Iran. As Saudi Arabia is the largest and most powerful country in the Middle East, Iran has the potential to benefit politically as well as economically if relations with them are normal.
While Saudi Arabia will normalize relations with Iran, its allies will also improve relations with Iran. As a result, Iran’s political and trade relations with all the countries of the Saudi alliance will be better. This will give them a chance to turn their economy around again. The development of Iran’s relations with Saudi Arabia will also send a positive message to the Biden administration. It could lead to a renewed nuclear deal and lift sanctions on Iran.
Another reason is that when Saudi Arabia normalizes relations with Iran, it will receive formal recognition of Iran’s power in the Middle East. The message will be conveyed that it is not possible to turn the stick in the Middle East by bypassing Iran. Relations between Saudi Arabia and Iran need to be normalized for peace and stability in the Middle East.
But in this case, the United Arab Emirates and Israel may be an obstacle. The closeness that Saudi Arabia had with the UAE will no longer exist. The UAE now relies much more on Israel. There will also be some conflict of interest between Saudi Arabia and the UAE. Prince Salman wants to turn Saudi into a full-fledged tourism and business hub that could pose a major threat to the UAE’s economy and make the two countries compete.
Furthermore, in order to sell arms to the Middle East, Iran must show something special. Why would Middle Eastern countries buy weapons if the Iranian offensive was stopped? During the Cold War, arms dealers forced NATO allies to buy large quantities of weapons out of fear of the Soviet Union. So it is in the Middle East. But if the relationship between Iran and Saudi Arabia is normal, it will be positive for the Muslim world, but it will lead to a recession in the arms market.
Turkey and Iran find soft power more difficult than hard power
The times they are a changin’. Iranian leaders may not be Bob Dylan fans, but his words are likely to resonate as they contemplate their next steps in Iraq, Iraqi Kurdistan, Lebanon, and Azerbaijan.
The same is true for Turkish President Recep Tayyip Erdogan. The president’s shine as a fierce defender of Muslim causes, except for when there is an economic price tag attached as is the case of China’s brutal crackdown on Turkic Muslims, has been dented by allegations of lax defences against money laundering and economic mismanagement.
The setbacks come at a time that Mr. Erdogan’s popularity is diving in opinion polls.
Turkey this weekend expelled the ambassadors of the US, Canada, France, Finland, Denmark, Germany, Netherlands, New Zealand, Norway, and Sweden for calling for the release of philanthropist and civil rights activist Osman Kavala in line with a European Court of Human Rights decision.
Neither Turkey nor Iran can afford the setbacks that often are the result of hubris. Both have bigger geopolitical, diplomatic, and economic fish to fry and are competing with Saudi Arabia and the UAE as well as Indonesia’s Nahdlatul Ulama for religious soft power, if not leadership of the Muslim world.
That competition takes on added significance in a world in which Middle Eastern rivals seek to manage rather than resolve their differences by focusing on economics and trade and soft, rather than hard power and proxy battles.
In one recent incident Hidayat Nur Wahid, deputy speaker of the Indonesian parliament, opposed naming a street in Jakarta after Mustafa Kemal Ataturk, the general-turned-statemen who carved modern Turkey out of the ruins of the Ottoman empire. Mr. Wahid suggested that it would be more appropriate to commemorate Ottoman sultans Mehmet the Conqueror or Suleiman the Magnificent or 14th-century Islamic scholar, Sufi mystic, and poet Jalaludin Rumi.
Mr. Wahid is a leader of the Muslim Brotherhood-linked Prosperous Justice Party (PKS) and a board member of the Saudi-run Muslim World League, one of the kingdom’s main promoters of religious soft power.
More importantly, Turkey’s integrity as a country that forcefully combats funding of political violence and money laundering has been called into question by the Financial Action Task Force (FATF), an international watchdog, and a potential court case in the United States that could further tarnish Mr. Erdogan’s image.
A US appeals court ruled on Friday that state-owned Turkish lender Halkbank can be prosecuted over accusations it helped Iran evade American sanctions.
Prosecutors have accused Halkbank of converting oil revenue into gold and then cash to benefit Iranian interests and documenting fake food shipments to justify transfers of oil proceeds. They also said Halkbank helped Iran secretly transfer US$20 billion of restricted funds, with at least $1 billion laundered through the US financial system.
Halkbank has pleaded not guilty and argued that it is immune from prosecution under the federal Foreign Sovereign Immunities Act because it was “synonymous” with Turkey, which has immunity under that law. The case has complicated US-Turkish relations, with Mr. Erdogan backing Halkbank’s innocence in a 2018 memo to then US President Donald Trump.
FATF placed Turkey on its grey list last week. It joins countries like Pakistan, Syria, South Sudan, and Yemen that have failed to comply with the group’s standards. The International Monetary Fund (IMF) warned earlier this year that greylisting would affect a country’s ability to borrow on international markets, and cost it an equivalent of up to 3 per cent of gross domestic product as well as a drop in foreign direct investment.
Mr. Erdogan’s management of the economy has been troubled by the recent firing of three central bank policymakers, a bigger-than-expected interest rate cut that sent the Turkish lira tumbling, soaring prices, and an annual inflation rate that last month ran just shy of 20 per cent. Mr. Erdogan has regularly blamed high-interest rates for inflation.
A public opinion survey concluded in May that 56.9% of respondents would not vote for Mr. Erdogan and that the president would lose in a run-off against two of his rivals, Ankara Mayor Mansur Yavas and his Istanbul counterpart Ekrem Imamoglu.
In further bad news for the president, polling company Metropoll said its September survey showed that 69 per cent of respondents saw secularism as a necessity while 85.1 per cent objected to religion being used in election campaigning.
In Iran’s case, a combination of factors is changing the dynamics of Iran’s relations with some of its allied Arab militias, calling into question the domestic positioning of some of those militias, fueling concern in Tehran that its detractors are encircling it, and putting a dent in the way Iran would like to project itself.
A just-published report by the Combatting Terrorism Center at the US Military Academy West Point concluded that Iran’s Islamic Revolutionary Guards Corps (IRGC) faced “growing difficulties in controlling local militant cells. Hardline anti-US militias struggle with the contending needs to de-escalate US-Iran tensions, meet the demands of their base for anti-US operations, and simultaneously evolve non-kinetic political and social wings.”
Iranian de-escalation of tensions with the United States is a function of efforts to revive the defunct 2015 international agreement to curb Iran’s nuclear program and talks aimed at improving relations with Saudi Arabia even if they have yet to produce concrete results.
In addition, like in Lebanon, Iranian soft power in Iraq has been challenged by growing Iraqi public opposition to sectarianism and Iranian-backed Shiite militias that are at best only nominally controlled by the state.
Even worse, militias, including Hezbollah, the Arab world’s foremost Iranian-supported armed group, have been identified with corrupt elites in Lebanon and Iraq. Many in Lebanon oppose Hezbollah as part of an elite that has allowed the Lebanese state to collapse to protect its vested interests.
Hezbollah did little to counter those perceptions when the group’s leader, Hassan Nasrallah, threatened Lebanese Christians after fighting erupted this month between the militia and the Lebanese Forces, a Maronite party, along the Green Line that separated Christian East and Muslim West Beirut during the 1975-1990 civil war.
The two groups battled each other for hours as Hezbollah staged a demonstration to pressure the government to stymie an investigation into last year’s devastating explosion in the port of Beirut. Hezbollah fears that the inquiry could lay bare pursuit of the group’s interests at the expense of public safety.
“The biggest threat for the Christian presence in Lebanon is the Lebanese Forces party and its head,” Mr. Nasrallah warned, fuelling fears of a return to sectarian violence.
It’s a warning that puts a blot on Iran’s assertion that its Islam respects minority rights, witness the reserved seats in the country’s parliament for religious minorities. These include Jews, Armenians, Assyrians and Zoroastrians.
Similarly, an alliance of Iranian-backed Shiite militias emerged as the biggest loser in this month’s Iraqi elections. The Fateh (Conquest) Alliance, previously the second-largest bloc in parliament, saw its number of seats drop from 48 to 17.
Prime Minister Mustafa al-Kadhimi brought forward the vote from 2022 to appease a youth-led protest movement that erupted two years ago against corruption, unemployment, crumbling public services, sectarianism, and Iranian influence in politics.
One bright light from Iran’s perspective is the fact that an attempt in September by activists in the United States to engineer support for Iraqi recognition of Israel backfired.
Iran last month targeted facilities in northern Iraq operated by Iranian opposition Kurdish groups. Teheran believes they are part of a tightening US-Israeli noose around the Islamic republic that involves proxies and covert operations on its Iraqi and Azerbaijani borders.
Efforts to reduce tension with Azerbaijan have failed. An end to a war of words that duelling military manoeuvres on both sides of the border proved short-lived. Azerbaijani President Ilham Aliyev, emboldened by Israeli and Turkish support in last year’s war against Armenia, appeared unwilling to dial down the rhetoric.
With a revival of the nuclear program in doubt, Iran fears that Azerbaijan could become a staging pad for US and Israeli covert operations. Those doubts were reinforced by calls for US backing of Azerbaijan by scholars in conservative Washington think tanks, including the Hudson Institute and the Heritage Foundation.
Eldar Mamedov, a political adviser for the social-democrats in the Foreign Affairs Committee of the European Parliament, warned that “the US government should resist calls from hawks to get embroiled in a conflict where it has no vital interest at stake, and much less on behalf of a regime that is so antithetical to US values and interests.”
He noted that Mr. Aliyev has forced major US NGOs to leave Azerbaijan, has trampled on human and political rights, and been anything but tolerant of the country’s Armenian heritage.
Process to draft Syria constitution begins this week
The process of drafting a new constitution for Syria will begin this week, the UN Special Envoy for the country, Geir Pedersen, said on Sunday at a press conference in Geneva.
Mr. Pedersen was speaking following a meeting with the government and opposition co-chairs of the Syrian Constitutional Committee, who have agreed to start the process for constitutional reform.
The members of its so-called “small body”, tasked with preparing and drafting the Constitution, are in the Swiss city for their sixth round of talks in two years, which begin on Monday.
Their last meeting, held in January, ended without progress, and the UN envoy has been negotiating between the parties on a way forward.
“The two Co-Chairs now agree that we will not only prepare for constitutional reform, but we will prepare and start drafting for constitutional reform,” Mr. Pedersen told journalists.
“So, the new thing this week is that we will actually be starting a drafting process for constitutional reform in Syria.”
The UN continues to support efforts towards a Syrian-owned and led political solution to end more than a decade of war that has killed upwards of 350,000 people and left 13 million in need of humanitarian aid.
An important contribution
The Syrian Constitutional Committee was formed in 2019, comprising 150 men and women, with the Government, the opposition and civil society each nominating 50 people.
This larger group established the 45-member small body, which consists of 15 representatives from each of the three sectors.
For the first time ever, committee co-chairs Ahmad Kuzbari, the Syrian government representative, and Hadi al-Bahra, from the opposition side, met together with Mr. Pedersen on Sunday morning.
He described it as “a substantial and frank discussion on how we are to proceed with the constitutional reform and indeed in detail how we are planning for the week ahead of us.”
Mr. Pedersen told journalists that while the Syrian Constitutional Committee is an important contribution to the political process, “the committee in itself will not be able to solve the Syrian crisis, so we need to come together, with serious work, on the Constitutional Committee, but also address the other aspects of the Syrian crisis.”
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