Crippling Iran: the U.N. Security Council and the tactic of deliberate ambiguity.

Author:Gordon, Joy
 
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  1. INTRODUCTION II. THE HISTORY OF TARGETED SANCTIONS A. The Case of Iraq B. The Emergence of Targeted Sanctions III. THE SANCTIONS ON IRAN A. The US. Sanctions on Iran B. The U.N. Security Council Sanctions on Iran 1. The Mandatory Provisions 2. The Voluntary Provisions IV. THE ROLE OF DELIBERATE AMBIGUITY IN THE IRAN RESOLUTIONS A. The "Vigilance" Language B. Financial Action Task Force C. "Could" D. Iran's Energy Sector E. Bank Melli and Bank Saderat F. Central Bank of Iran V. THE IMPLEMENTATION OF THE UNILATERAL MEASURES VI. THE HUMANITARIAN IMPACT ON THE IRANIAN POPULATION. VII. CONCLUSION I. INTRODUCTION

    Since the Iranian revolution of 1979, the United States has imposed economic sanctions on Iran. This was criticized by many, including U.S. allies, as extraterritorial--in that it interfered with Iran's commercial relations with third countries. In 2006, in response to Iran's development of its nuclear capacity, the United Nations Security Council (Security Council) imposed additional sanctions. Under Article 25 of the U.N. Charter, any measures imposed in accordance with Chapter VII of the U.N. Charter are binding upon all member states. (1) During this time, the United States has greatly expanded its measures against Iran, primarily through two statutes, the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (CISADA) (2) and the Iran Threat Reduction and Syria Human Rights Act of 2012 (ITRSHA), (3) as well as through a series of executive orders, and by placing informal pressure on other nations and international institutions. These measures go well beyond those authorized by the Security Council resolutions, and have broad, indiscriminate effects on Iran's economy, family remittances, education of Iranians abroad, and the availability and cost of imported goods. They also affect Iran's energy sector, and consequently the cost and availability of transportation, as well as manufacturing in general. The United States has largely been alone in imposing measures on Iran and other nations that are extensive and indiscriminate. The use of broad trade sanctions with a blanket impact on the civilian population was criticized extensively in the 1990s, giving rise to the "smart sanctions" movement. Since then, Security Council sanctions regimes have been more narrowly drafted.

    The Security Council resolutions regarding Iran appear to reflect this shift. In reality, they do not at all. The Security Council resolutions imposed on Iran since 2006--particularly Resolutions 1737, (4) 1803, (5) and 1929 (6)--have essentially operated on two levels. The explicit, binding provisions are narrowly drafted to address imports, financial transactions, and other activities which are related to Iran's development of nuclear weapons and ballistic missiles. There is also an evidentiary requirement: member states are required to implement these provisions only where they have reasonable grounds to believe a particular cargo, transaction, or person has ties to Iran's weapons program. Thus, on their face, it would seem that the sanctions are narrowly targeted and would have no bearing on Iran's civilian economy; and the evidentiary requirement seems to preclude member states from implementing them in a way would be overbroad and indiscriminate.

    However, the voluntary provisions of the Security Council's sanctions on Iran also contain other terms which are vague and non-binding, but which have had enormous consequences. These resolutions ask member states to "exercise vigilance" or use "enhanced monitoring." They also include other language that is not operative, such as preambular provisions, which reference, for example, Iran's Central Bank, without requiring any particular action. For example, the preamble to Resolution 1929 contains the following: "recalling in particular the need to exercise vigilance over transactions involving Iranian banks, including the Central Bank of Iran ..."(7) These oblique references have been invoked by the United States to exert pressure on the European Union, Canada, Australia, and other nations to adopt national measures against Iran that are far more extreme than those required by the Security Council; and this language is then cited by these countries when justifying these measures. This occurred, for example, when the European Union froze the assets of Iran's Central Bank, noting that "it is necessary to require enhanced vigilance in relation to the activities of Iran's credit and financial institutions." (8)

    The end result is that the two sets of measures, both those imposed by the Security Council and those imposed unilaterally by these nations, in combination affect Iran's economy, infrastructure, and civilian population in a way that is deeply damaging and indiscriminate, affecting even food security, access to health care and education. Thus, while it seems that the Security Council sanctions are narrowly drafted to achieve only legitimate security goals without harming the population as a whole, in fact that is true only of the explicit provisions. But other language--that is non-binding or vague--is invoked by member states to justify measures that are as broad and indiscriminate in their effects as the extreme and damaging sanctions imposed on Iraq in the early 1990s. Furthermore, these effects then elude accountability: the nations imposing these measures cite the Security Council resolutions as authority for their actions; while the Security Council can maintain that its explicit measures conform fully with international humanitarian law.

  2. THE HISTORY OF TARGETED SANCTIONS

    When the League of Nations was formed after World War I, the Covenant envisioned that aggression would be stopped with the "boycott," a comprehensive set of global economic sanctions that would be devastating.

    When you consider that the League is going to consist of every considerable nation in the world, except Germany--you can see what the boycott will mean. No goods can be shipped in or out, no telegraphic messages can be exchanged ... there shall be no communication of any kind between the people of the other nations and the people of that nation. The nationals, the citizens of the member states will never enter their territory, until the matter is adjusted, and their citizens cannot leave their territory. It is the most complete boycott ever conceived in a public document.... There is not a nation that can stand that for six months. (9) However, this did not take place, at least not within the context of global governance, until 1990, when U.N. sanctions were imposed on Iraq.

    1. The Case of Iraq

    In the early 1990s, there were criticisms of a number of sanctions regimes on the grounds the U.N. sanctions were themselves triggering humanitarian crises. These criticisms were directed in part toward the sanctions imposed on Haiti and the former Yugoslavia. (10) However, the case of Iraq was the most extreme.

    In the wake of Iraq's invasion of Kuwait in August 1990, the Security Council imposed the most extensive sanctions in the history of global governance. All exports were prohibited, including oil, which accounted for 60% of Iraq's gross domestic product and 95% of its foreign currency earnings, (11) Iraq was initially prohibited from all imports except medicine, and, conditionally, food. (12) Beginning in March 1991, Iraq was permitted to import food and small amounts of other humanitarian goods. (13) However, there were few funds available for these imports, even where they were permitted, because oil sales were still prohibited. (14) Immediately after the sanctions were imposed, the Iraqi government began taking steps to compensate, putting in place a system of food rations and incentives for farmers to increase agricultural production. (15)

    But while it may have been possible to compensate for the loss of food imports over time, import substitution was more difficult in other areas. Water treatment required chlorine, filters, and equipment that could not be manufactured domestically, at least not in sufficient quantities to meet the needs of the population. (16) Thus, even with efforts to compensate for the loss of income and imports, along with some amount of ongoing illicit trade, (17) Iraq's economy was affected very dramatically, and its infrastructure and public services began to show signs of deterioration.

    The bombing campaign of the Persian Gulf War in the winter of 1991 introduced a catastrophic level of devastation. In March 1991, an envoy of the U.N. Secretary General described Iraq as "near-apocalyptic." (18) He reported that "Iraq has, for some time to come, been relegated to a pre-industrial age." (19) Much of Iraq's electrical grid was destroyed, (20) and water and sewage treatment plants were crippled. (21) While hospitals were intact, the lack of electricity meant their ability to function was severely compromised. (22) Roads and bridges were destroyed, crippling food distribution and emergency transportation. (23) The lack of electricity in itself meant that

    food that is imported cannot be preserved and distributed; water cannot be purified; sewage cannot be pumped away and cleansed; crops cannot be irrigated; medicaments cannot be conveyed where they are required; needs cannot even be effectively assessed. It is unmistakable that the Iraqi people may soon face a further imminent catastrophe, which could include epidemic and famine, if massive life-supporting needs are not rapidly met. (24) In the face of this devastation, the sanctions took on new significance. There was no longer an industrial base that could be adapted to manufacture goods that had previously been imported. The reconstruction of Iraq's infrastructure would have required not only massive quantities of imported goods, but also the construction of large-scale facilities involving sophisticated technology, such as electric plants.

    The humanitarian consequences were immediate, severe and...

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