CC BY
88
УДК 341.215.4
HUMAN RIGHTS AND SANCTION. A PARADOX IN INTERNATIONAL RELATIONS
Mohammad Kordzadeh Kermani
Counsulate general of the Islamic Republic of Iran, Kazan
ПРАВА ЧЕЛОВЕКА И САНКЦИИ. ПАРАДОКС В МЕЖДУНАРОДНЫХ ОТНОШЕНИЯХ
Мохаммед Кордзадех Кермани
Консул и экономический советник, Генеральное консульство Исламской Республики Иран, г. Казань
The Protection and promotion of human rights, however, have become one of the most important issues for the international community as a whole. Yet, at the same time, it has become increasingly difficult for the international community to address human rights problems collectively. Undertaking research on human rights, immorality and illegality of sanctions covers wide area of study. This article explores the immoral aspects and consequently illegal aspects of sanctions as a foreign policy tool in international relations. It examines immoral aspects, illegal aspects and discriminatory aspects of the sanctions imposed on Iran and the impact of those sanctions on human rights as a case study. Although sanctions on Iran have been removed gradually by implementation of Joint Plan of Action since 2015, this article concludes imposing those illegal sanctions have provided a precedent which would be harmful for cultivation of sound international legal culture. It means in the future, all nations will suffer for this deviation. It is not possible to promote justice by discriminatory punishment of a state, an entire nation which has not committed any illegal action. The case of Iran demonstrates how practically human rights principle in the framework of international law is under developed and how the rule of law is ignored.
Keywords: Sanctions, Immorality, Illegality, Human Rights
Защита и обеспечение прав и свобод человека и гражданина, относятся к числу самых важных вопросов для всего международного сообщества. В то же время, все труднее становится решать проблемы в области прав человека сообща. Значительная часть исследования посвящена вопросам прав человека, а также безнравственности и противозаконности санкций. В данной статье рассматриваются безнравственные и, следовательно, незаконные стороны санкций в качестве инструмента внешней политики в международных отношениях. В статье рассмотрены безнравственные, незаконные и дискриминационные стороны санкций, введенных в отношении Ирана, на примерах показаны последствия этих санкций в отношении прав человека. Хотя санкции в отношении Ирана и были постепенно сняты за счет реализации Плана совместных действий с 2015 года, в статье делается вывод о том, что введение незаконных санкций создало прецедент, при котором может быть нанесен вред созданию здоровой международной правовой культуры. В будущем от этого могут пострадать все страны. Невозможно установить справедливость, дискриминируя государство, нацию, которая не совершала никаких незаконных действий. Случай Ирана на практике показывает, насколько несовершенен принцип прав человека в рамках международного права, и как игнорируется верховенство закона. Ключевые слова: санкции, безнравственность, незаконность, права человека
Introduction
Human rights as a principal refers to the Universal Declaration of Human Rights which contains thirty articles detailing diverse rights, from the right to life, the right to work and right to rest and leisure. Although the UN declaration of Human Rights in 1948 was a declaration, not a binding, it was expected to promote human rights norms and standards in international relations. After passing 68 years from that historical event, protection and promotion of human rights, still has remained as the main concern for the international community as a whole. It has become increasingly difficult for the international community to address human rights problems collectively.
The interplay between human rights and economic sanctions is always with tension. The US is the most frequent user of international sanctions in the world. Implementation of sanction as US foreign policy tool has dominantly brought negative impact on basic human rights in the world.
Although sanctions are not a new phenomenon in international relations, the imposition of harsh multilateral sanctions on Iran was unprecedented. Sanction against Iran which resulted to ignoring human rights is a unique case study in contemporary international relations.
As a matter of fact, undertaking research on the political economy of sanctions and human rights
© Mohammad Kordzadeh Kermani, 2016
covers a wide area of study. In a research project, relevant data and key questions can be collected in order to organize them methodologically and write a book on this issue. Here, it is not possible to do that. In this article, within the conceptual framework of human rights, interactions of a few variables involved in the sanctions on Iran are studied.
It is assumed that Universal Declaration of Human Rights is timeless, unchanging and absolute. At the same time human rights has a conceptual framework. It means any list of conceptions of the human rights and the idea of human rights is historically specified and contingent. The human rights principle from theoretical point of view is in the process of development. Interaction between theory and practice is also notable when we consider the practical implication of theoretical arguments of human rights.
This article is designed to explore the immoral aspects and consequently illegal aspects of sanctions as an American policy tool to coerce Iran's behavior regarding its legal right of nuclear enrichment. It explains economic impacts of those sanctions on the life of ordinary people through examples. It discusses how human rights principle has been violated through the imposed sanctions. Within this explanation we can conclude that removal of sanctions should not be seen as giving a concession to Iran, but rather as a pre-requisite for the realization of protection of human rights principles.
1. Immorality of sanctions
Sanction as a foreign policy tool can be defined in conceptual framework of political economy. In political economy morality is the main concern of philosophers and economists. As Oliver Boyd-Barrett says, political economy is committed to moral philosophy, having an interest in social values and moral principles (Barret, 1995). Traditionally, Political economy originated in moral philosophy. Adam Smith, a pioneer of political economy established his economic analysis thoroughly on a humanistic ethical perspective. His concern for fairness was greater than his desire for economic efficiency. Justice was thus central to Smith's critique of the crony capitalism of his time. Smith saw economics as a branch of moral philosophy. Within this conceptual definition, in studying the political economics of sanctions, morality would be the main concern. Sanctions refer to coercive economic measures taken against one or more countries to attempt to force a change in policies or at least to demonstrate the sanctioning country's opinion of the other's policies. The academic literature on sanctions has predominantly focused on their efficacy in achieving foreign policy objectives, rather than the moral dilemmas posed by their use. But
there are scholars who have addressed sanctions from a moral perspective.
David A Baldwin argued that economic statecraft could and indeed should be evaluated not only by political and economic criteria but by moral and ethical standards as well. Lori Fisler Damrosch wrote "the choice of means is not merely a policy question bearing on effectiveness of sanctions. It is also an issue entailing moral dimensions (Pierce, 1995: 100)". Indeed such moral scrutiny of economic sanctions in particular is becoming increasingly common among scholars. Statesmen including Boutros Boutros-Ghali have also looked at the ethical legitimacy of employing economic sanctions.
Albert C. Pierce in his article "just war principles and economic sanctions", 1996, stated that sanctions like wars have moral consequences. His first premise is that economic sanctions are intended to inflict great human suffering. Pain, harm and even death and thus should be subject to the same kind of moral and ethical scrutiny given to the use of military forces before sanctions are chosen as a mean to achieve national political objectives. One potential way to frame the moral dilemmas posed by sanctions that is grounded in recognized principles of international conflict is provided by the laws of just war (Pierce, 1996). The just war tradition is a long standing moral framework for analyzing the intentional infliction of harm by one state upon the citizens of another. In light of its broad acceptance and long history, this body of laws, codified in international treaties and established by the practice of states, offers more fertile soil for international agreement than personal moral intuition. By taking the principles underlying the laws of just war seriously, it is possible to devise strategies for economic sanctions founded on existing international ethical norms (Winkler, 1999).
While Damrosch has offered a framework for the moral evaluation of economic sanctions that focused on norms, consistency and attitudes of civilian populations and their leaders, Albert C. Pierce has proposed a framework that uses a modified application of the traditional just war principles. Just war theory is probably the most influential perspective on the ethics of war and peace. Just war needs just reason, this can include repelling an invasion is a just cause. He used two Latin concepts Jus ad bellum (the right to go to war)and Jus in bello (the right to conduct within the war) as moral principles of just war theory to identify the immorality of economic sanctions (Ibid: 100).
In Just war theory aggressive war is always wrong and forbidden (Pierce, 1996). In jus in Bello here is a principle of discrimination, to discriminate
between combatant and non-combatant, not all classes of human being are combatants. In traditional just war terms, directly intended attacks on noncombatants and non military targets, is forbidden (Winkler, 1999 : 6). Michael Walzer, in his book "Just and Unjust Wars", examines the moral issues surrounding military theory, war crimes, and the spoils of war. He studies a variety of conflicts over the course of history, as well as the testimony of those who have been most directly involved- participants, decision makers and victims. Walzer specifically addresses the moral issues surrounding the war against and occupation of Iraq, reminding us once again that "the argument about war and justice is still a political and moral necessity." (Walzer, 1977).
Walzer states "there are good reasons why the development of just war theory preceded the development of the international laws of war. Legal texts may only imperfectly and incompletely embody our moral ideas, but without moral ideas, we would not be able to write legal texts. "Such reasoning is perfectly sensible, and appears to add to our understanding of international law(Ibid). Show more Show less. Walzer believes that at the heart of the legalist paradigm and war convention is a theory of human rights which is echoing the basic values of the western liberalism. All persons have right to life and liberty. "Innocent people" in war are those who "have done nothing, and are doing nothing, that entail the loss of their rights", including the right not to be attacked (Pierce, 1996:102). Whether or not they support it in their hearts, the "innocent" bears no responsibility for actual waging of war; unlike the political authorities, they did not order it, and unlike the soldiers, they do not prosecute it. They are "innocent" and must be differentiated from the others, and thus they should not be deliberately and directly attacked.
If we move from the case of war to the case of economic sanctions, who is "innocent" and who is not? Who are the functional equivalent of "combatants" and "noncombatants"? The functional equivalent of "aggressive war" is the policy of an imposer of sanctions who is trying to persuade and/or force the target nation's leadership to change (Ibid: 109). But why should the innocent people suffer and pay the price for this change?
The US and the EU under the pretext of 'smart sanctions' enforced new rounds of sanctions on Iran from 2006 to 2015. Although those sanction impos-ers promised the world that the sanctions would be «smart» and «targeted» and would not hurt millions of ordinary Iranians who go about their daily lives, in fact, they expanded the sanctions to all areas, even
the Iranian banks. They hurt the same people who were not meant to be their target. Those measures had in fact created a case of damage being inflicted by the sanction imposers towards ordinary people. The principle of double effect of sanctions should not be neglected. Even if sanctions are not directly intended to harm innocent people, the pain, suffering and physical harm inflicted on them are foreseen, and turn the innocents into a means to an end. More specifically, in this case, the objectives are to be achieved (persuading or focusing the target government to change its policy) by inflicting this harm (the pain and suffering of the population). The use of sanctions in this way is not morally acceptable.
Sanctions against Iran and blocking its financial transactions harmed ordinary Iranian people. One impact had been lack of medicines for patients. In July 2012, the Hemophilia Society wrote to the World Health Organization, stating sanctions had "seriously endangered the lives of tens of thousands of patients, particularly children, suffering from special diseases." Likewise, the U. N. Secretary General Ban Ki -moon in August 2012 report to the United Nations General Assembly: "The sanctions imposed on the Islamic Republic of Iran have had significant effects on the general population, including an escalation in inflation, a rise in commodities and energy costs, an increase in the rate of unemployment and a shortage of necessary items, including medicine."
The New York Times in November 2012 reported that "Iranians suffering from cancer, hemophilia, thalassemia, kidney problems and other diseases are increasingly facing shortage of medicine". A report in the Guardian UK at that time noted that "millions of lives are at risk in Iran because western economic sanctions are hitting the importing of medicines and hospital equipment (The Guardian 2012)". Such reports clearly show the immoral aspects of the sanctions on Iran. Those sanctions were clearly against human Rights principles.
According to ideas of the US Catholic bishops, based on principles of
Just war "proportionality in jus ad bellum means that the damage to be inflicted and the costs incurred must be proportionate to the good expected by taking up arms (National Conference of Catholic Bishops, 1983 : 18)." For James Turner Johnson, the aim of the idea of proportionality is to ensure that the overall damage to human values that will result from the resort to force will be at least balanced evenly by the degree to which the same or other important values are preserved or protected (Pierce, 1996 : 105).
In the case of sanctions against Iran, the principle of Just ad bellum was ignored. While Iran had not
inflicted any damage to those countries which imposed sanctions, the imposing of sanctions on Iran had been against the proportionality principle of just war. This constitutes unilateral damage to Iran's economy inflicted by the US and its allies. It means the principle of proportionality in just war was ignored. As mentioned, sanctions resulted in shortage of drugs which caused a human catastrophe. According to recent estimates as many as 6 million patients were affected by the impact of sanctions on the importation and manufacturing of medications inside Iran (Aljazeera, 2012). Taking into account this huge amount of human catastrophe it was not a proportional response to the Iranian legal nuclear enrichment.
As the US Catholic bishops said, the probability of success criterion is difficult to assess. Its purpose is to prevent irrational resorting to force when the outcome would be disproportionate or futile (Ibid: 14). The aim of this criterion seems to ensure that great costs are not inflicted without reasonable hope for achieving the presumably worthy goals for which one is fighting. The bottom line question is how likely is it that the goals one seeks will be achieved? For economic sanctions as an instrument or statecraft, the overall picture is not optimistic (Pierce, 1996). In their major study of more than one hundred cases of economic sanctions, Gary Clyde Hufbauer and associates concluded that "although it is not true that sanctions never work, they are of limited utility in achieving foreign policy goals; the rate of utility depends on compelling the target country to take actions or how it strongly resists". They found an overall success rate for sanctions of only 34 percent, but sanctions [involving destabilization of the target government] succeeded in half the cases, usually against small and shaky countries (Pierce, 1996 : 110)". In the Iranian case Sanctions were designed to increase economic pressure on people with a hope of destabilizing the Iranian political system, but in fact sanctions were not able to destabilize the Islamic system In Iran.
In the Iranian presidential election in June 2013 the Iranian people voted for Hassan Rouhani with the expectation that he could better negotiate with the P5+1 countries than the other candidates. Practical experience indicates that these were sanctions that have been imposed on Iran had affected people's lives negatively, despite not impacting the stability of the system nor having changed Iran's political position on nuclear enrichment. Iranian officials were always ready for negotiation. The negotiations which took place at the time of Ahmadinejad continued under Rouhani government. However, the insistence on the legal right of nuclear enrichment
remaind unchanged. Therefore one needs to address this question: how the US and the EU justify those imposed sanctions?
Within this definition sanctions are viewed as war on innocent people.
When a state-or a group of states-refuses to trade with another country, it is the civilian population in the targeted country who suffer the most. Inevitably, and in many cases imposing sanctions violates international humanitarian law (IHL). First and foremost, «human rights» means allowing people to have the basic needs that are necessary for their survival or allowing people to live in dignity. Sanctions are obstructive for having such rights. While there is no threat posed by this nuclear enrichment project, imposing sanctions had been immoral and illegal. Iran clearly proved that it had not committed any violations of its International Atomic Energy Agency (IAEA) safeguards obligations.
Impartiality is part of a moral rule. It is characteristic of modern moral thought to see impartiality as a requirement of morality. However, the precise nature of this connection remains disputed. It is generally agreed that some sort of close connection exists between morality and impartiality. Indeed, the phrases 'moral point of view' and 'impartial (or 'impersonal') point of view' are sometimes used interchangeable (Jollimore, 2011). The moral importance of the impartial point of view is that from it, every moral agent counts equally any nation, and any nation must receive equal treatment at a universal level, since moral judgments are universalized. They are universal in the sense that they entail identical judgments about all cases identical in their universal properties. Impartiality means that equality and equal rights should not be ignored (Pickin).
In a comparative approach in the field of Middle East studies it is obvious that Western societies willfully ignoring the fact that another country in the Middle East, Israel possesses 200-600 nuclear bombs. Israel has not signed the Non-Proliferation Treaty and does not allow IAEA inspections, yet sanctions have yet to be imposed. Iran is a member of the Non-Proliferation Treaty; it does not have a nuclear bomb, and has on numerous occasions called for a Middle East nuclear free zone. Yet it was Iran that faced with those immoral and illegal sanctions. In other words Iran had been under sanction pressures while not possessed a nuclear bomb, as compared to Israel which has more than 200 nuclear bombs and faces no scrutiny. This partial treatment or discrimination in judgments can't be justified.
If Obama wanted to take the lead in creating peace and security in the Middle East, he should
taken steps to impose restrictive actions for nuclear disarmament against Israel, not to continue or intensify sanctions on Iran which What Iran wants from the international community is impartiality and recognition of its legal right on civilian nuclear enrichment.
2. Illegality of sanctions
Imposing sanctions on Iran with United Nations Security Council resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1929 (2010) from a legal point of view has been controversial. According to Article 39 of the UN Charter, the Security Council is allowed to take measures (including sanctions) if there is a threat to peace and security, in order to maintain or restore international peace and security. The threat may not be determined on the basis of subjective political motives. There must be genuine "international concerns" or real threat, which did not exist in the case of Iran's nuclear enrichment.
Judge Koroma believes "Security Council resolutions on sanctioning Iran do not abide by international law. Essentially the validity of these resolutions is under question. The world should be vigilant about this issue that Iran has not violated any international law. In this case the right of self-defense is not licensed". :The IAEA decision of sending the Iran's nuclear case to the United Nations Security Council (UNSC) in February 200 6was an illegal action, because the IAEA never could prove "non-compliance" (diversion toward military purposes). Therefore, the four UNSC resolutions 1737 (2006), 1747 (2007), 1803 (2008) and 1929 (2010) seems to have been irrelevant and illegal.
Professor James H. Fetzer (2013) says "US has imposed sanctions or collective punishment on a country for an alleged offence its own intelligence agencies claim is not taking place. It is a disgrace for America". (Iran Review).
According to Article 39 of UN Charter, the Security Council is allowed to impose sanctions only to maintain or restore international peace and security. Importantly the threat may not be determined on the basis of subjective political motives. There must be genuine "international concerns" or real threat.
Seymour Hersh, in his research on US intelligent assessments of Iran nuclear activities, reports that there is no conclusive evidence that Iran has made any effort to build the bomb since 2003. He wrote in the June 6, 2011 edition of the New Yorker: "Despite years of covert operations inside Iran,extensive satellite imagery and the recruitment of many Iranian assets, the US and its allies, including Israel, have been unable to find irrefutable evidence of an ongoing hidden nuclear - weapon program in Iran".
On February 24, 2012, the New York Times reinforced Hersh's analysis, noting that all 16 major US intelligence agencies were in agreement that Iran did what it said. It does not have any plan to produce nuclear weapons.
In US Senate testimony on January 31, 2012, James R. Clapper Jr, director of National Intelligence, clarified that there was no evidence Iran was pursuing a military nuclear program. He told the committee "We do not believe they have actually made decision to go ahead with nuclear weapon". While there is no threat to international peace and security, the UNSC resolutions on sanctioning Iran are illegal (New Yorker, 2011).
These American intelligence reports are supporting over 4000 man-days of international inspections made by the IAEA that "there is no conclusive evidence that Iran has made any effort to build a nuclear bomb since2003; and that the Iranian leadership does not have any intention to decide to build a nuclear weapon (Ibid)". This means Iran has not breached its international commitments on nuclear issues.
These reports indicate the collective measures taken by member states of the Security Council can be challenged. There is no court for the Security Council and obligations of the Security Council are vague. The actions of the Council are the joint responsibility of the member states. It is the member states that are responsible for the conduct of the international organization. Even these cretaria thus stated that the way member states implement Security Council. Economic sanctions is their responsibility and not that of the UN. There are all kind of conditions like direction and control of decisions, and whether the member state plays a dominant role in the council (Gowlland, 2013).
Imposing those illegal sanctions provides a precedent which would be harmful for cultivation of sound international legal culture. It means in the future, all nations will suffer for this deviation. It is not possible to promote justice by discriminatory punishment of a state, an entire nation which has not committed any illegal action. The case of Iran demonstrates how international law is underdeveloped and how the rule of law is ignored.
The most illegal case of sanctions are unilateral sanctions, including US and EU sanctions which are imposed beyond UN sanctions. Unilateral sanctions are usually imposed by an individual state based on the theory of retaliation. Unilateral sanctions revolve around the role of powerful nations like the United State s, which has resorted to unilateral sanctions more than any other country as a primary tool of advancing its foreign policy (Rahmat Mohammad, 2013).
Under International Law Commission (ILC) articles, the US and EU must demonstrate that they are injured states. A state can be considered so if It is directly affected by the unlawful act. That is the basis of countermeasure (Gowlland, 2013).
The basic principle in international law is that all national legislations are territorial in character. State practice and doctrinal evolution in international law reflects that there is a unanimous rejection to extraterritorial application of national legislation for the purpose of creating obligations for other states (Rahmat Mohammad, 2013). The unilateral and extra territorial application of national legislation violates the legal equality of states and the principle of respects for and dignity of national sovereignty and non-intervention in the international affairs of the state (Ibid).
Within this structure of international law, it becomes evident that unilateral sanctions violate certain core principles of the Charter of the United Nations, like principles of non-intervention, and duty to cooperate. They also violate the core principles of sovereign equality of states, non-use of force, self-determination of peoples, non- intervention into the internal and external affairs of states, peaceful settlement of international disputes, cooperation among states and fulfilling in good faith of obligations assumed under international law.
The unilateral sanctions imposed against third parties by virtue of application of one's own national legislation extra-territorially also breach certain basic tenets of general principles of international law. These include principles of self-determination, right to development (declaration of Right to Development, 1986) of citizens and individuals residing in the targeted territory, Counter measures and dispute settlement, freedom of trade and navigation (Rahmat Mohammad, 2013).
The 1993 Vienna Declaration and Program of Action clearly stipulates that states should refrain from any unilateral measures that create obstacles to trade relations among nations and impede the rights of every one to a standard of living adequate for their health and well being,including food and medical care,housing and necessary social services. (XiA/CONF. 157/23 of 12July1993 par 31)
The 1997 general comment of the Committee of Economic, Social and Cultural Rights on the relationship between economic sanctions and respect for economic, social and cultural rights emphasized that states and international community must do everything possible to protect at least the core content of the economic, social and cultural rights of affected peoples of that state. (E/C. 12/1997/8 of 12 December 1997, par. 7; see also General Comments 3 (1990),
par. 10 on The Nature of State parties Obligations (Art 2 par. 1 of the covenant) (De Waart, 2013).
From humanitarian point of view, International Humanitarian Law restricts the scope and pressure of economic sanctions. Article 33 of the Fourth Geneva Convention (on the protection of civilians in war time), for example, prohibits "collective penalties". The International Committee of the Red Cross(ICRC) interprets this provision as prohibiting "penalties of any kind inflicted on persons or entire groups of persons in defiance of the most elementary principles of humanity, for acts that these persons have not committed."
In September 2013 The Asian-African Legal Consultative Organization (AALCO) in its fifty-second session issued a resolution "on extra territorial application of national legislation: sanctions imposed against third parties". In this resolution the AALCO expresses its profound concern regarding the imposition of unilateral sanctions on third parties stating that it is a violation of the United Nations Charter and in contradiction to the general principles of international law, particularly state immunity, non- interference in Internal affairs, sovereign equality, the right to development, and freedom of trade and peaceful settlement of disputes. There solution also condemns the imposition of restrictions against the Islamic Republic of Iran by the Government of the United States of America. It also condemns the adoption of restrictive measures against states, especially in cases where the functional organs of a sovereign State, like Central Banks, are subjected to sanctions which violate immunity of State and its properties (AALCO, 2013).
Most legal experts have questioned the consistency of sanctions with international law. They have concluded that the sanctions stand on shaky ground or illegal basis (Ruediger, 2006: 5-36). Even the conservative US Heritage Foundation cautioned against the excessive utilization of sanctions as a tool of foreign policy and points to adverse effects they can have on all involved parties (Quinn1997).
Pierre Emmanuel DuPont in his article "Counter measures and Collective Security: The Case of the EU Sanctions against Iran" has stated: "The European sanctions against Iran are inconsistent with any international obligation. Measures of those enacted by the EU in January 2012 go beyond mere expressions of disapproval and involve the suspension of the performance of the international legal obligations otherwise owed to Iran (DuPont, 2012). Indeed in this case the EU measures actually imply nonperformance of various international legal obligations owed to Iran. It may also be considered that the
oil embargo and particularly the mandatory termination of existing contracts related to import, purchase and transport of petrochemical product raises prima faci an issue of compliance with a customary standard of investment protection (Ibid)".
"In regard to the measure taken against the Iranian central bank, they may be deemed to be in conflict with rules governing immunities and privileges of foreign states under international law, and in particular of the 2004 UN convention on Jurisdictional immunities of states and their property, which is widely considered as reflecting customary international law and provides immunity of property of a central bank or other monetary authority from execution (Ibid). It may also be considered that this measure violate the rules of IMF. Article 8(2) of the IMF agreement provides indeed that no IMF member "shall" without the approval of the fund; impose restrictions on the making of payments and transfers for current international transactions (Papers.ssrn.com)". "Such measures taken by EU undermine the coherence of charter-based collective security system (Ibid)."
There is a potential responsibility of EU for imposing countermeasures in violation of general international law. When the EU imposes unilateral sanctions on a third state, it is violating its international obligations, whether stemming from a treaty or from general international law. This requires justification or it will violate the union's international responsibility (T zanakopoulos, 2013).
For the EU to impose unilateral sanctions against a third state without shirking its international responsibility, it must determine that the third state has violated international law (i. e. has perpetuated an internationally wrongful act), it must determine that the EU itself is somehow injured by the breach and it must call upon the third state to cease the violation as well as to comply with conditions for taking countermeasures. If the EU does not comply with these international law requirements for lawful resort to countermeasures, it will not be able to justify its breach of international law against the third State and it will accordingly become internationally responsible itself (Tzanakopoulos, 2013).
In 2012 the EU toughened its measures against Iran far beyond those defined by the Security Council. It is not justifiable under international law, whether as treaty reaction, counter measures, or under some other circumstances precluding internationally wrongful conduct (Tzanakopoulos, 2013). This act is a breach of the EU's international obligation. Meanwhile none of the EU member states has been injured or affected by Iranian nuclear enrichment.
Proportionality of the counter measures is another issue. The measures taken by US and EU against Iran must be commensurate with the alleged injury suffered by the two actors on account to Iran's alleged violations of international law. The EU should answer for these violations of international law (Ibid: 35).
Article53of chapter8of the UN Charter provides that the Security Council can utilize "regional arrangement or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council" (Orakhelashvili, 2013). Therefore, under the Charter, the European Union is not authorized to provide further effect to coercive measures that the UN Security Council has adopted under chapter 7. It is not allowed and resort to its own initiative, to impose coercive measures which are qualitatively different (Ibid). The conclusion that follows is that the EU treaties do not provide a legal basis of the EU economic, trade and financial measures against Iran (Ibid). A possible alternative basis on which one may defend EU measures against Iran may be the law governing counter measures as part of State responsibility.
The International Law commission (ILC) has observed that "a fundamental prerequisite for any lawful countermeasure is the existence of internationally wrongful act which an injured state taking the countermeasure". But there is no international legal obligation that Iran has breached in relation to the EU that could possibly justify the EU's coercive measures (Ibid).
It is unclear on what basis the EU could have any legal justification for its actions, for it is difficult to find the initial wrongful act committed by Iran against the EU. Nor could the EU be seen as an injured party in relation to Iran's alleged breach of the Safeguards Agreement (agreement between Iran and IAEA for application of safeguard in connection with the treaty on the Non-Proliferation of Nuclear Weapons) (INFCIRC/214. 13 December 1974) because these are operative between Iran and the IAEA, Thus,general international law provides no legitimating basis for the EU measures and the Council of the EU has no authority to make decisions it made in these matters (Ibid).
Conclusion
Most international legal experts argue that sanctions specifically unilateral sanctions imposed on Iran were immoral and illegal. AALCO resolution "on extraterritorial application of national legislation: sanctions imposed against third parties", issued 12 September 2013, clearly stipulates the
illegality of the US and EU sanctions and their legal responsibility for damages which they have inflicted on Iran by imposing sanctions. Neither the US nor the EU member states has been injured or affected by Iranian nuclear enrichment. They should answer to these violations of the international law.
It is clear that the basics of human rights can not grow in this world when in some places like Iran, people had not adequate access to the medicine that they needed at the time of sanctions. Sanctions against Iran by blocking its international financial transactions harmed its trade and caused lack of medicine for patients. Iran did not inflict any damages on the sanction imposers, It is against the principle of proportionality and morality. Sanctions in some areas have damaged the Iranian economy but these sanctions have not been able to change policies of the Iranian government to stop nuclear enrichment. It proves that sanctions against Iran have failed and been ineffective.
A glance to the history of sanctions on Iran indicates the sanction regime has been constructed
politically, not legally. As discussed above, a decade of harsh sanctions regime imposed by the US and enhanced by the EU was successful in the sense that it impacted heavily on the people's livelihood. The impact of unilateral sanctions have been ignoring basic human rights of Iranian citizens, notably the right to life, right to health, access to medicine and the right to development. So removing sanctions should not be considered giving a concession to Iran, It is indeed a pre-requisite for the realization of her legal rights.
Imposing those illegal sanctions provides a precedent which would be harmful for cultivation of sound international legal culture. It means in the future, all nations will suffer for this deviation. It is not possible to promote justice by discriminatory punishment of a state, an entire nation which has not committed any illegal action. The case of Iran demonstrates how international law is underdeveloped, how the rule of law and Human Rights principles is ignored.
Notes
1. Judge Abdolghader Koroma's speech at the IPIS seminar in Tehran, June 12, 2013.
2. An official Iranian statement released on August 9, 2005at the Vienna meeting of the International Atomic Energy Agency (IAEA) announced that Ayatollah Ali Khamenei had issued a fatwa forbidding the production, stockpiling and use of nuclear weapons http://www.ww4report.com/node/929
References
AALCO/RES/52/SP 2, 12 SEPTEMBER 2013
Boyed-Barrett. Oliver. 1995. The Political economy Approachusers.ipfw.edu/tankel/Syllabi/.../BBarrettPoliticaleconomy.pdf
DeWaart, Paul. 2013. Is Individual Human Right Immune to Economic Sanction under International Law? Symposium on Unilateral Sanctions and International Law, Views on Legitimacy and Consequences T. M. C. Asser Institute The Hague, the Netherland
Du Pont, Pierre-Emmanuel. 2012
Emmanuel. 2012. Countermeasuresand Collective Security: The Case of the EU Sanctions Against Iran European Journal of International Law.
Gallup Survey. Feb, 2013. http://www.gallup.com/poll/160358/iranians-feel-bite-sanctions-blame-not-own-leaders.aspx Gowlland, Vera. 2013.
Debass Economic Sanctions and Accountability in International Law.
This article presented at: Symposium on Unilateral Sanctions and International Law, Views on Legitimacy and Consequences, T. M. C. Asser Institute The Hague, the Netherland.
http://www.aljazeera.com/indepth/opinion/2012/10/20121023101710641121.html
http://www. andrewpickin. com/uploads/Does_morality_require_us_to_be_impartial. pdf
http://articles.economictimes.indiatimes.com/2013-04-16/news/38586620_1_iranian-economy-imf-sanctions
http://www.cnsnews.com/news/article/obama-advised-acknowledge-iran-s-nuclear-fatwa
http://www.fairobserver.com/article/blunt-instrument-sanctions-dont-promote-economic-change
http://www.iranreview.org/content/Documents/Anti-Iran-Sanctions-No-5-James-H-Fetzer-Anti-Iran-Sanctions-Violate-International-Law.htm
http://old.usccb.org/sdwp/international/TheChallengeofPeace.pdf http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2086415 http://www.philosophersbeard.org/2011/10/recovering-adam-smiths-ethical.html http://www.theguardian.com/world/2012/oct/17/iran-sanctions-lives-at-risk
Jollimore, Troy. 2011. «Impartiality», The Stanford Encyclopedia of Philosophy (Summer), Edward N. Zalta (ed.), URL: http://plato.stanford.edu/archives/sum2011/entries/impartiality/
Kaempfer. WH. Lowenberg,AD. 2007. The Political Economy of Economic Sanctions. Hand book of Defense Economics. Chapter 27. http://www.sfu.ca/~schmitt/sanctions.pdf
Katzman, Kenneth. 2013. Iran's sanctions, Congressional Research Service Report for Congress
Kholopkov, Anton. 2013. How the United states helped Iran build a laser enrichment laboratory, The Nonproliferation Review, 20:1. Pape, Robert A. 1997. WhyEconomic Sanction Do not work,
International Security, Vol. 22, No: 2 (Fall1997), Published by: MITPress, Stable URL: http://www.joster.org/stable/2539368 Pierce, Albert C. 1996. Just War Principles and Economic Sanctions, Ethics and International Affairs, Volume 10. Cernegie Council.
Quinn, Robert P. O. 1997. A User Guide to Economic Sanctions: Backgrounder#1126 (Washington DC), Heritage Foundation. Reuters, February6, 2013. Ruediger, Frank. 2006.
The political economy of sanctions against North Korea, Asian Perspective, Vol. 30, No: 3. Seiglie, Carol. 2013.
The political economy of trade sanctions:the case of Cuba, Association for the Study of the Cuban Economy. Seymur M. Hersh, 2013
Iran and the Bomb how real is the nuclear threat?,
The New Yorker, http://www.Newyorker.com/reporting/2011/06/06/110606fa_fact_hersh Tzanakopoulos, Antonios. 2013
International responsibility of the European Union for Unilateral sanctions,This article presented at "Symposium on Unilateral Sanctions and International Law, Views on legitimacy and Consequences" T. M. C. Asser Institute The Hague, the Netherland.
Walt, Stephen M. 2013.
Try on Iran Back Scratching, Not Blackmail, http://walt.foreignpolicy.com/category/topic/iran Wazler, Micheal. 1977.
Just and Unjust Wars, US, Basic Books. http://mondoweiss.net/2011/01/war-and-michael-walzer.html Winkler, Adam. 1999.
Just Sanctions, Human Rights Quarterly, 21.1. http://musejhu.edu/login?auth=0&t:ype=summary&url=/jouinals/human_rights_quaiterly/ v021/21.1winkler. html
Статья поступила в редакцию 19.02.2016 г.
Submitted 19.02.2016.
Для цитирования: Мухаммед Кордзадех Кермани. Права человека и санкции, парадокс в международных отношениях // Вестник Марийского государственного университета. Серия «Исторические науки. Юридические науки». 2016. № 2 (6). С. 104-112.
Citation for an article: Mohammad Kordzadeh Kermani. Human Rights and sanction, a paradox in international relations. Vestnik of the Mari State University. Chapter "History. Law". 2016, no. 2 (6), pp. 104-112.
Мохаммед Кордзадех Кермани,
консул и экономический советник, Генеральное консульство Исламской Республики Иран, г. Казань, [email protected]
Mohammad Kordzadeh Kermani,
Consul and economic Counselor, Counsu-late General of the Islamic Republic of Iran, Kazan, irankazan@mail. ru
