Quality of Economic Sanctions against the Islamic Republic of Iran: A Review
Thursday, September 20, 2012
Seyed Mohammad Ali Hosseini
Iran's Ambassador to Italy & Former Iranian Foreign Ministry Spokesman
The analysis of international sanctions imposed on the Islamic Republic of Iran in all political, economic and human rights fields, and comparison of the contents of those sanctions with general or even specific documents and rules of international law will clearly prove that Western sanctions have ignored or violated a great number of legal principles and rules of international law. This will seem especially more true when selective and unfair treatment of Iran as well as the double standards used by some Western countries to the application and implementation of sanctions is taken into consideration. The violation of international law by Iran sanctions is so severe that it has damaged sovereignty of a member state of the United Nations and the rights of its people. More importantly, continuation of sanctions constitutes a threat to future prospect of international community.
In fact, continuation of sanctions and insistence of some countries on the continuation or intensification of those sanctions can inflict serious and irreparable damages to future outlooks of international communications. They are also at loggerheads with sovereign rights of countries when it comes to freedom of trade as well as banking and financial activities and will also harm the rights of the country’s nationals and all recognized concepts of human rights. As a result of the vastness, diversity, and overarching nature of these sanctions, they can be easily considered an act of ill will which can pose serious threats to a country. One way to categorize sanctions is to accept the current general division of “restrictive measures” or “economic sanctions” by countries imposing them into unilateral and multilateral sanctions and sanctions within framework of the Security Council resolutions as well as sanctions out of the framework of those resolutions. Even by that definition, there is no doubt that restrictive measures which were approved against Iran by the European Union on January 23, 2012, are among multilateral sanctions which have been imposed out of the framework of the Security Council resolutions. The reason is that both in terms of decision-making authority and their legal basis, and from the viewpoint of the content of those sanctions, they go well beyond sanctions resolutions imposed against the Islamic Republic of Iran by the United Nations Security Council.
This article represents a mere attempt which aims to shed more light on the fundaments of legitimacy of the sanctions from the viewpoint of international law without making any effort to focus on developments as well as overt and covert grounds of the economic and political sanctions and their many ramifications.
Economic sanctions or embargo, otherwise known as economic restrictions, which have been also referred to as economic or trade restrictive measures in some legal texts, denote a set of temporary, exceptional and restrictive measures which a government or a group of governments or a regional or international organization imposes and implement against trade or economic systems of a state for having violated its international obligations or to achieve specified goals. Such restrictions can be imposed on specific sectors such as trade, investment, transfer of goods and capital, transportation, insurance services, bank facilities and so forth.
It is noteworthy that despite the common conception that sanctions represent a recognized fact in international law and are imposed within framework of sovereign rights of countries which impose them, the quality and quantity of sanctions as well as their political, economic and human rights impacts have been subject of continued debates among legal experts.
Proclaimed or Hidden Political Objectives of Sanctions
In some cases of international sanctions, supporting and improving human rights situation in a country in addition to nationalization of private industries, preventing proliferation of weapons of mass destruction, fighting terrorism and money laundering, protection of environment, or severe violation of an international obligations by sanctioned country are among the main proclaimed objectives of sanctions. However, based on expert studies, sanctions are also imposed to pursue a series of illegal goals such as destabilizing a political system in order to meet the illegitimate interests of sanctioning countries. They are also meant to pose threat of the use of force against a state, or even topple a legitimate government. All these instances have been among undeclared goals of some sanctions.
Progressive Trend of Sanctions
Sanctions and restrictive measures have been in the focus of attention of the Western countries since the 1970s for a couple of reasons and as a result of various political goals pursued by these countries. The use of sanctions gradually increased, especially following the 1990s and after the termination of the Cold War period. Economic sanctions have been recognized by Article 41 of the Charter of the United Nations. As a result, economic and trade restrictions have been intermittently imposed at various junctures against certain countries such as the former state of Southern Rhodesia, Iraq, the former Yugoslavia, Somalia, Rwanda, Sierra Leone, Liberia, the Democratic Republic of Congo, Ivory Coast, Libya, the Islamic Republic of Iran, and Sudan.
The European Union has also imposed certain series of economic restrictions in the past years against a number of countries, notably Belarus, the Democratic Republic of Congo, Ivory Coast, Haiti, Burma, Sudan, Zimbabwe, Libya, Syria and Iran. There is no doubt that according to the Charter of the United Nations, the Security Council is in charge of imposing and implementing economic restrictions according to the Charter. However, efforts made by certain states to misuse this means of pressure and especially its misuse by certain regional governments and organizations for imposition of unilateral or multilateral sanctions against independent countries outside the framework of the United Nations and the Security Council resolutions has raised serious concerns among legal experts for different reasons.
The rest of this article will enumerate examples of restrictive measures as well as economic sanctions imposed by the United States and the European Union against the Islamic Republic of Iran.
Sanctions Imposed on Iran by the United States
One of the main features in the history of recent economic sanctions is emergence of the United States as the most willing country to impose sanctions in order to achieve its foreign policy goals.
Between 1922 and 1996, the United States has made 61 decisions to impose unilateral sanctions against other countries with 35 countries being targeted in 23 cases of sanctions, which on the whole, account for 42 percent of the world population. The United States, for example, has imposed restrictive measures against various countries in the past years which include Myanmar, China, Sudan, Brazil, Chile, Cuba, Ethiopia, Iran, North Korea, Argentina, India, Pakistan, South Africa, Taiwan, Libya, Syria, and some other countries. According to reports published by creditable research institutes, in most cases, those sanctions have failed to achieve their desired goals.
In the meantime, since 1979 and concurrent with the victory of the Islamic Revolution in Iran, the United States has imposed frequent unilateral sanctions according to regulations of the Federal Government or those of various states against Iran which go well beyond sanctions resulting from resolutions adopted by the Security Council against the Islamic Republic.
The Executive Order signed on November 14, 1979; announcing the Iranian government as a terrorist state in 1984 followed by the imposition of certain sanctions; the Executive Order issued on October 1987; as well as the Executive Order dated March 16, 1995, represent major steps taken by the United States to impose restrictive sanctions against the incipient government of the Islamic Republic during early years following victory of the Islamic Revolution. The process of sanctions has been constantly growing thereafter.
Only important instances of sanctions, which on the whole cover many economic and trade-related fields as well as thousands of goods, will be mentioned here.
Iran Sanctions under Bill Clinton Administration
In 1996 (during Bill Clinton’s term in office as the US president), the US Congress passed the so-called Iran-Libya Sanctions Act (ILSA), also known as D’Amato Act, according to which any foreign company investing or trading more than 20 million dollars (which was later raised to 40 million dollars) with Iran would have been made subject to Iran sanctions.
Those sanctions are a specific kind of sanctions known as secondary sanctions in which a third person or country becomes an indirect target for sanctions which have been originally imposed against another country. Since such sanctions practically generalized the United States’ domestic laws to beyond its borders, they led to many controversies among international legal circles and have regularly been subject to harsh criticism.
In fact, the law allowed domestic courts in the United States to impose sanctions on foreign companies or nationals (apart from Iranians and Americans) that would embark on trade with Iran beyond and above a specific ceiling. Meanwhile, according to accepted principles of international law, a government and its nationals should declare their consent before coming under judicial and executive jurisdiction of another state. As a result, these kinds of sanctions, which generalize the laws of a specific country to other states, stand in clear violation of consensual principles of international law.
Iran Sanctions under George W. Bush Administration
Extension of ILSA in 2001 and the resultant continuation of international sanctions against Iran’s oil and gas sectors; introduction of new scientific sanctions against Iran in 2002; and the executive order signed in June 2005 as a supplement to the executive orders 12938 and 13094, led to imposition of sanctions against people related to Iran’s missile and nuclear industries as well as their American or other foreign collaborators.
In fact, the Executive Order 13382 along with D’Amato Act, which was later updated by the addition of amendments in the form of the Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) on July 1, 2010, are considered the two main pillars of the United States’ extraterritorial sanctions against Iran. According to this act, a great number of Iranian companies as well as trade, financial and service entities in addition to their foreign public and private partners have come under the US sanctions.
The approval of Iran Freedom Support Act (IFSA) by the US Congress on September 30, 2006, led to the extension, amendment and increased scope of D’Amato Act as well as further intensification of anti-Iranian sanctions. During that period, restrictions were imposed by a US federal court on one of the biggest archeological collections related to Iran’s Persepolis site which had been given to an American university to be kept in trust.
Executive order 13438 was signed on July 17, 2007, to impose sanctions on Iran under the pretext of Tehran’s intervention in Iraq. During the same period, Iran was excluded from the list of countries which could receive services from major internet companies such as Yahoo! and Microsoft. A number of Iranian institutes, institutions and persons were then incriminated by the US Treasury Department and sanctions were imposed on them as well.
On the other hand, during 2006-2007, special sanctions were also imposed on Iran by individual US states such as Florida, New Jersey, California, Ohio, and Massachusetts.
Iran Sanctions under Barak Obama Administration
Sanctions against Iran were once more extended on March 19, 2009. Despite his slogans about his intent to push for friendship with Iran at the beginning of his presidential term, the Democrat President Barak Obama extended the situation known as the National Emergency Relative to Iran Risk, in March 2009. As a result, Iran sanctions which were implemented under the International Emergency Economic Powers Act (IEEPA) were extended for another year.
Approval of Comprehensive Iran Sanctions, Accountability, and Divestment Act (CISADA) by the US Congress on July 1, 2010, was another step taken by the US administration to impose sanctions against Iran’s energy and banking sectors as well as gasoline sales. According to Paragraph 2, Article 102 of this act, foreign companies were obliged to prove that they had not violated Iran sanctions act when deciding to sign contracts with the US government. This article was actually aimed to put pressure on the foreign companies to observe Iran sanctions because in case they did not observe them, their contracts with the US entities would be revoked and more sanctions were enforced against them.
Another part of the aforesaid act has been drawn up in such a way as to expel Iran from international financial markets. Article 104 of CISADA does not put direct pressure on Iran, but rather aims to put pressure and impose sanctions against foreign banks which conduct transactions with Iran and specifies special punishments for such financial institutions.
Executive Order 13553, signed on September 29, 2012, imposed sanctions against a number of Iranian security and military officials on human rights grounds. Executive Order 13574, dated May 23, 2011, called for a freeze on the assets of legal and real entities violating CISADA sanctions (which bans investments of over 20 million dollars in Iran’s oil and gas sectors), and also in November 2011, mentioned the Central Bank of Iran as an institution used for money laundering. Executive Order 13590, dated November 19, 2011, imposed extraterritorial sanctions on foreign investments in Iran’s petrochemical industry and also included sanctions against Iran’s Central Bank (H. R. 1540). It was passed by the US Congress on December 15, 2011, and was signed by President Obama on December 31, 2011, as supplement to the US Defense Department’s budget (Defense Powers Act 2012).
On the whole, the entire system of the United States unilateral sanctions against Iran has been based on three main pillars: 1. Basic laws such as IEEPA; 2. Congressional decisions; and 3. Executive orders signed and enforced by the president of the United States.
Sanctions Imposed by European Union against Iran
The history of imposing economic restrictions against Iran by the European countries shows that some of the member states of the European Union have not only observed the anti-Iranian sanctions which were imposed according to the Security Council resolutions, but have also been willing to impose unilateral sanctions against Tehran beyond the contents of those resolutions in pursuit of their declared or undeclared goals with respect to Iran. In addition to military articles, these sanctions have consistently covered exported and imported goods, investments in Iran, traveling, transportation, technical cooperation as well as other items.
Due to basic differences between such restrictions and the Security Council sanctions against Iran, they have been usually referred to as “restrictive measures.”
Of course, in some instances, including in the content of the European Union’s anti-Iran resolution which was approved on January 23, 2012, such terms as “sanctions” or “embargoes” have also been used.
The latter case, namely the European Union resolution passed on January 23, 2012, represents the most prominent and the most serious approach taken to Iran’s sanctions by the European Union beyond the Security Council resolutions which needs more legal scrutiny.
To explain the vast scope of restrictive measures taken by the European Union against Iran (which go far beyond sanctions resolutions passed by the Security Council), a few examples of the latest sanctions decisions taken by the Union against the Islamic Republic will be mentioned here. They include the sanctions resolution adopted on January 23, 2012, by foreign ministers of the European Union, which was later passed by the European Parliament on February 2, 2012; as well as its executive bylaw which was passed by the European Parliament under No. 54/2012, on January 24.
Cardinal measures specified by that resolution and subsequent regulations against Iran included: phased sanctions against importing Iran’s crude oil by the member countries including prohibition on buying Iran’s oil in any way; banning insurance coverage for tankers carrying the Iranian crude oil as well as all financial resources related to Iran’s crude imports; banning investment in Iran’s petrochemical industry in any way; enforcing sanctions against the Central Bank of Iran such as freezing the central bank’s assets within the European Union; prohibiting sales of precious metals to Iranian state-run institutions and the Central Bank of Iran; banning delivery of banknotes and coins to Iran’s central bank; prohibiting sales of all goods with dual use to Iran; and expanding the list of persons covered by sanctions compared to previous resolutions.
In view of the content of the aforesaid sanctions and difficult conditions specified by the Charter of the United Nations – as the basic international instrument used to protect international peace and security – there are serious legal questions about the sanctions and restrictive measures imposed against Iran by the United States and the European Union.
On the other hand, according to general rules of the criminal law and the rules of civil responsibility which arise from regulations enacted by various legal systems as well as international customary usage, nobody can under no conditions exploit the United Nations Security Council for getting an overarching interpretation of articles related to sanctions in the UN Charter which may pose serious threat to sovereignty of the states. Therefore, all member states to the United Nations should respect the status of the Charter as the greatest achievement of international cooperation following two world wars and accept it as a basic document which is meant to ensure and protect international peace and security.
Even if the reciprocal actions, especially “reciprocal restrictive measures,” which are only applicable to stop an international violation or make up for losses resulting from it, are taken as the basis of EU’s actions against Iran, the Union is still at loss because it has not observed all necessary conditions which should be present for such measures to be taken.
For example, Draft Articles on Responsibility of States for Internationally Wrongful Acts, which was drawn up by the United Nations International Law Commission in 2001, is among the most important international instruments on the rights and obligations of states. It has considered preconditions in articles 49, 50, and 51 for the legitimacy of “countermeasures”:
- An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations…. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State,” (paragraphs 1 & 2 of Article 49 of the Draft);
- “Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question,” (Article 51 of the Draft);
- “Countermeasure shall not affect: (a) the obligation (of the state) 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; and (d) other obligations under peremptory norms of general international law.” (Article 50 of the Draft)
- “State taking countermeasures is not relieved from fulfilling its obligations: (a) under any dispute settlement procedure applicable between it and the responsible State; (b) to respect the inviolability of diplomatic or consular agents, premises, archives and documents.” (Article 50 of the Draft)
- Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question. (Paragraphs 2 & 3 of Article 49 of the Draft).
These principles, as said before, have been frequently referred to in courts and for handing down judicial decisions.
Some of these principles have also been underlined by “Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States,” which was passed by the UN General Assembly in 1970 and is considered among important international instruments on the principles which determine liabilities and conduct of the states.
Now, the question is whether restrictive measures taken by the United States and the European Union against Iran conform to these principles. Since articles 2 and 3 of the Non-Proliferation Treaty have clearly recognized the rights of all countries (including Iran) to develop nuclear technology, there is no legal ground to justify recourse to “countermeasure” against Iran on grounds of possible threat or Iran's announcement of achieving the ability to enrich uranium up to 20 percent (which has nothing to do with proliferation of nuclear weapons).
Thus, it seems that the consequences of some strict measures taken against Iranian persons or private institutions by the European Union, which have incurred losses as a result of those measures, are open to legal action with the General Court of the European Union or the European Court of Justice.
Legitimacy of Sanctions
A) Legitimacy of Sanctions from Viewpoint of Special Laws (lex specialis)
Even the content of the Security Council resolutions which were adopted against the Islamic Republic under political pressures from the United States and in line with previous unilateral sanctions imposed on Iran by Washington, contain clear references to the necessity of compliance of the states to humanitarian issues (in Article 10, Resolution 1929); respect for the laws and obligations of the states with respect to international trade (introductory part of the resolution); compliance with International Law of the Sea and the United Nations Convention on the Law of the Sea of 1982 (introductory paragraphs as well as Paragraph 15 of the executive section); and the necessity of engaging in direct talks with Iran. However, it is quite surprising that the text of the European Union’s anti-Iran sanctions has failed to even remain committed to such clear specifications. Meanwhile, it is a recognized principle of international law that states and regional institutions should cooperate with the United Nations within the clear limits laid out by the Charter of the United Nations.
B) Legitimacy of Sanctions from Viewpoint of European Laws
A review of the legal basis of EU sanctions against Iran will reveal that the Union’s approach to sanctions is apparently based on general rules laid out by the Common Foreign and Security Policy (CFSP) of the European Union. The details of that approach have been explained in Article 11 of the Treaty of the European Union. The increasing willingness of the European Union member states to resort to “restrictive measures’ and the need for increasing the effectiveness of sanctions finally led the Union to draft certain principles and define a clear framework for sanctions and other similar measures. Therefore, the Political and Security Committee of the Council of European Union drafted the “Basic Principles on the use of Restrictive Measures (Sanctions)” in 2004, which is of high importance to this discussion. Here are some of the regulations set forth by this instrument for imposing sanctions against other countries:
- The EU members have been committed to “effective use of sanctions as an important way to maintain and restore international peace and security in accordance with the principles of the UN Charter….” (Para. 1);
- EU sanctions should be imposed, if necessary, “in support of efforts to fight terrorism and the proliferation of weapons of mass destruction and as a restrictive measure to uphold respect for human rights, democracy, the rule of law and good governance.” The sanctions should be imposed “in accordance with our common foreign and security policy … and in full conformity with our obligations under international law.” (Para. 3);
- In order to make sanctions most effective, the Council of the EU “will work to enlist the support of the widest possible range of partners in support of EU autonomous sanctions.” (Para. 4);
- “Sanctions should be targeted in a way that has maximum impact on those whose behavior we want to influence. Targeting should reduce to the maximum extent possible any adverse humanitarian effects or unintended consequences for persons not targeted or neighboring countries” (Para. 6).
It seems that under political pressure from the outside of the Union as well as from the Zionist regime of Israel, the European Union has ignored the above regulations which has been set by the Union in the first place and has embarked on imposing sanctions against Iran on false grounds.
Also, the European Council, in order to make sanctions more targeted, increase the impact of restrictive measures, and reduce the effects of sanctions on ordinary people has adopted another set of regulations known as “EU Best Practices for the Effective Implementation of Restrictive Measures.” The regulations formulated by foreign policy advisors of the Union, obliged the European Union according to the CFSP to formulate “Guidelines on Implementation of CFSP” in 2003.
The EU has also stressed in the aforesaid guidelines the need to use smart and targeted sanctions against Iran. Even Paragraph 7 of the latest resolution adopted by the European Parliament against the Islamic Republic of Iran has laid emphasis on imposing purposive and targeted sanctions in order to prevent harm to ordinary Iranian people.
However, the available statistics and evidence shows that actual sanctions imposed on Iran have easily ignored many of these criteria, including the conformity to requirements of international law, compliance with rules and regulations of the Charter of the United Nations, avoiding untoward effects on the ordinary Iranian people, and the fact that sanctions should be necessary and supported by international community. These norms have been ignored in EU’s anti-Iran resolution and, therefore, it has been considered to lack legitimacy in accordance to the European law and the norms of international humanitarian law.
The use of some suspicious and non-legal phrases in the aforesaid resolution against Iran, such as the use of the word ‘regime’ to describe the legal and established government of the Islamic Republic of Iran as well as the sharp and hostile tone of the resolution are clearly indicative of the pressure exerted on the EU by the American and Zionist political lobbies. The use of such literature has led to serious suspicions about true intent of those who drew it up and raised questions as to the possibility that threat to use of force and regime change are the main goals of the resolution.
C) Legitimacy of Sanctions from Viewpoint of General Norms and Rules of International Law (Lex generalis)
C.1. Contravention between European Sanctions and the Legal Principle of “Non-Intervention”
The principle of non-intervention in other countries’ internal or external affairs is among the basic principles of international law. This principle has been underlined in Para. 7, Article 2 of the Charter of the United Nations and can be also deduced from preamble and some other articles of the Charter. The procedure adopted by the states provides serious confirmation for this principle and a legal consensus exists among the states in this regard. This principle has also been emphasized by many other international treaties as well as customary usage.
Intervention means all kinds of direct or indirect intervention as well as intervention in domestic of foreign affairs of countries. The International Court of Justice (ICJ) has reaffirmed this principle in the case of militants’ activities against the Nicaraguan government, noting that according to a generally accepted rule, the principle of non-intervention prevents any country or group from direct or indirect intervention in domestic or foreign affairs of other governments.
As for the sanctions imposed against Iran by the European Union (as well as sanctions imposed by the United States beyond the scope of the Security Council resolutions), these sanctions have clearly led to “indirect” intervention in “domestic” and “foreign” affairs of Iran because a number of the Iranian institutions which are covered by sanctions including banks, companies, and military institutions, are indispensable parts of Iran’s domestic affairs.
C.2. Contravention between EU Sanctions and Regulations of the UN Charter and UNCTAD
International business is one of the most important factors for economic development of countries. In other words, the main goal and motive behind international business is not merely to meet the economic needs of two trading partners. When one side to that trade is a developing country, business exchanges should be used as a means of promoting its economic development and filling the gap between poor and rich countries.
Charter of Economic Rights and Duties of States which was ratified by the UN General Assembly in 1974 through unanimous vote of the member states and includes principles that govern modern economic system of the world has specified that granting concessions to developing countries and helping their economic development through expansion of international business is imperative. On the other hand, the necessity for economic development has been gradually recognized as an international right known as “trade right” for the states. Given the recent developments in international law, the states are obligated to avoid any measures (such as sanctions) which are in conflict with international cooperation. Therefore, in cases when the Security Council refrains from making a decision in this regard, member states will not be authorized to resort to economic sanctions against other countries.
Paragraph 4, Article 2 of the Charter of the United Nations has indirectly confirmed this issue by asking all member states of the UN to avoid recourse to force in international relations or using it against territorial integrity or political independence of any state. It also forbids member states from resorting to any other method which may be at odds with the goals of the UN. There is no doubt that promoting international cooperation is one of the main goals of the United Nations, and economic sanctions pose a serious threat to international cooperation and are at loggerheads with the spirit of the modern economic system which is in the offing at international level.
Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States, which was approved in 1970, has also emphasized on this point. It considers any threat against political, economic and cultural components of a state’s sovereignty as being contradictory of principles of international law. Some resolutions adopted by the UN General Assembly as well as customary behavior and performance of countries also affirm this view.
On the other hand, the United Nations Conference on Trade and Development (UNCTAD) has adopted a resolution to reject forceful economic measures in which it bans the states from restricting, imposing embargoes, forbidding trade, or imposing other forms of economic punishments as a form of political compulsion which may affect economic, political and social development of countries. UNCTAD has also noted in a resolution that such measures will in no way help to create a peaceful atmosphere which is prerequisite of development.
C.3. Conflict with Fundamental Regulations of Human Rights and Rules of International Humanitarian Law
Despite publicly proclaimed tendencies of the European Union which are apparently based on promoting human rights through the Union’s policies, the sanctions it has imposed against Iran are clearly at odds with a great number of the norms of international humanitarian law, examples of which will be mentioned here.
- Violation of Personal and Civil Rights: As evidenced by the list appended to the text of the sanctions, many real entities including Iranian officials, managers and even ordinary people have been put on the list of sanctions in the appendix of the sanctions resolution without any solid reason being given. Being on that list has clearly deprived these people of many civil and basic rights including the right to personal freedom and security, the right to free traveling, the right to free trade and labor, and the right to defend themselves in a court of law through due process. Being on the sanctions list has also infringed upon their personal and family prestige while being at odds with many other personal and family rights. Such rights have been stipulated by the Universal Declaration of Human Rights approved in 1948 and the contents of the International Covenant on Civil and Political Rights approved by the UN General Assembly in 1966 to which most countries, including the member states of the European Union are members. The Convention for the Protection of Human Rights and Fundamental Freedoms that is also known as the European Convention on Human Rights (ECHR) – which was drafted by the Council of Europe following the World War II in 1948 – and its five protocols have clearly stipulated that the contents of the International Convent on Civil and Political Rights are binding for all member states.
- Economic Rights: The International Covenant on Economic, Social and Cultural Rights was passed by the UN General Assembly in 1966 to which most countries, including the member states of the European Union are now members. Articles 7, 11, 12, 13, 14, 15, and 18 of the Covenant are about every person’s right to fair working conditions; suitable living conditions and adequate food, clothing, housing, health and education. It also affirms every human being’s right to avail themselves of advanced sciences and technologies in addition to taking advantage of the intellectual and artistic achievements of humanity. Even sanctions imposed on the so-called dual-use goods such as radio-drugs, airplane parts and other goods put under this category have, according to official reports, endangered safety of Iranian citizens or put their very lives in danger.
Sanctions, undoubtedly, deprive the people of the country under sanctions from these rights. Therefore, this contradiction cannot be easily disregarded through deceptive means, including by claiming that such sanctions have been simply imposed to put pressure on the Iranian government and political system without targeting people. Even allowing ‘legitimate trade to continue under controlled conditions’ does not provide any justification for such sanctions. These sanctions not only trample upon the rights of the present generation of Iranians, but also the rights of future generations as well. Who can believe that imposing sanctions on buying Iran’s oil, insurance, trade, and bank transactions even for ordinary nationals of the country, in addition to sanctions which practically prevent renovation of Iran’s oil industry and foreign direct investment while banning the country’s central bank from dealing with foreigners for the import and export of goods will not target ordinary people?
- The Right to Development and Self-Determination: Sanctions have ignored and violated the Iranian nation’s ‘right to development’. The Vienna Declaration and Program of Action, which were adopted by the World Conference on Human Rights on 25 June 1993, have clearly mentioned the right to development as well as the ‘right to self-determination’ as defined by Para. 2, Article 1 of the Charter of the United Nations, as indispensable components of the basic human rights.
The Human Rights Commission in its note on the relationship between human rights and unilateral forceful action has clearly considered trade embargoes such as ban on transactions and freeze on the assets as ‘forceful actions’ which contradict human rights. Such rights not only belong to the present generation, but also to future ones.
C.4. Sanctions Contravene Freedom of Trade
Obviously, all members of the international community have common interests in global economy. Therefore, countries are not only entitled, but also obliged to take action for the establishment of an integrated and open world management system which would prevent any damage to their economic development trend. As a result, the most important thing for international legal experts in this regard is not obliging the countries to establish trade ties with all countries, but is to ban states from prohibiting free trade activities and ‘freedom of trade’ with other nations and states for their nationals.
This legal principle is undoubtedly among the basic and natural principles of private rights as well as trade and transaction. The Human Rights Commission [the predecessor to the Human Rights Council] had also banned any economic or political coercion which may endanger territorial integrity or political independence of governments.
‘Freedom of commercial shipping’ is a major symbol of ‘free trade.’ However, sanctions imposed on Iran have greatly restricted this freedom for the country. ‘Freedom of shipping’ is among the most widely recognized principles of the ‘Law of the Sea’ and the “United Nations Convention on the Law of the Sea of 10 December 1982” as well as international customary usage.
The successful lawsuit filed by a German shipping company, whose name was put on the list of the European Union sanction according to order No. 961/2010, dated 2010, at Branch 4 of the European Court of Justice was just an example of successful lawsuits which clearly established illegitimate nature of the European Union’s sanctions against Iran.
Iranian shipping companies have also reserved this right for themselves and have lodged lawsuits against illegal European sanctions.
C.5. Sanctions Contravene International and Bilateral Obligations
Legal experts believe that every measure which would lead to restriction of economic activities or amount to violation of a special treaty’s obligations or breach of generally accepted principles of international law should be considered illegal. The most important goal and one of the main principles commanding the World Trade Organization (WTO) is the principle of ‘the most-favored nation (MFN)’ treatment. According to Article 1 of this instrument, freedom of all forms of trade should be respected and no member state is authorized to exercise discrimination against another country for the export or import of goods, including by imposing sanctions.
The same principle has been highlighted by Article 2 of the General Agreement on Trade in Services (GATS) as well as Article 4 of Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement and had been underlined by Article 3 of the General Agreement on Tariffs and Trade (which was later replaced by the World Trade Organization).
As for bilateral treaties, the United States has violated clear contents of the 1955 Treaty of Amity, Economic Relations and Consular Rights (including Para. 2, Article 8, and Article 10) as well as the Algiers Agreement of 1988 (including its Article 10) by imposing unilateral sanctions against Iran. Both Iran and the United States have made frequent references to the Algiers Agreement in recent years which is still legally authentic. The authenticity of that agreement has been held up by the International Court of Justice in the case of Iran’s oil platforms in the Persian Gulf in which the ICJ confirmed that the contents of the agreement govern certain aspects of Iran’s relations with the United States.
Individual European countries (including Italy) have signed many agreements in various fields of economy, finance, banking and taxation with Iran which have been passed by relevant legal bodies in both countries and are binding for both sides. Most notably, agreements on ‘encouragement and mutual support for bilateral investment’ and ‘exemption from double tax’ are among common agreements among countries. Iran has likewise signed such agreements with many countries.
The latest unilateral sanctions against Iran can amount to unilateral revocation of these agreements.
According to Article 35 of the statute of the European Court of Human Rights, it is possible for the Iranian nationals to take legal action against the European Union’s decisions if they have been affected by the EU sanctions or pressures.
D) Sanctions against the Central Bank of Iran
Certain paragraphs of the latest sanctions resolutions adopted against the Islamic Republic of Iran by the European Union have considered remarkable restrictions against the Iranian central bank. They include a general freeze on the Central Bank of Iran’s assets within the European Union and transfer of money, a ban on selling precious metals to Iran and a further ban on delivering banknotes and coins to the Iranian central bank.
Although due to developments in legal aspects of international economic relations, the recognized doctrine of the 18th and 19th centuries – about absolute immunity of the states and state assets – has been gradually replaced with limited immunity in the 20th century, sanctions against the Central Bank of Iran have drawn a lot of attention from legal experts due to their high importance.
In 1876, the Supreme Court of Florence was the first court of law to clearly differentiate between various state actions by dividing them into ‘acta jure gestionis’ or ‘acts by right of dominion’ and ‘acta jure gestionis’ or ‘acts by right of management’, which include activities of a commercial nature carried out by a state. As a result, it specified that the immunity can be only extended to the first kind of acts – which denote a state’s dominion over its territory which are necessary to keep public order in place. The court then noted that in their acts of management – which are of a private nature and in which states act like a private sector businessperson – states should have no immunity.
There is no comprehensive international treaty with regard to immunity of the state and its assets yet and the United Nations Convention on Jurisdictional Immunities of States and their Property of 2004 has not entered into effect as the number of countries acceding to it is less than a quorum. However, European Convention on State Immunity of 1972 is among important conventions in this regard which is also binding. The ‘limited immunity’ of the state theory is the main foundation of both conventions.
The aforesaid convention has noted that state acts by right of dominion (jure imperii) (especially in relation to diplomatic and military assets) are those acts which a government does in order to prove its sovereign rights. Therefore, customs, monetary policy and the likes of them are covered by such acts. Articles 6-10 of the European Convention on State Immunity have enumerated government’s acts of management, which pertain to trade.
Regardless of the criterion which is taken to differentiate between a government’s acts of dominion and acts of management, there is no doubt that ‘monetary’ and ‘financial’ policies as well as ‘special assets, rights, interests, and activities’ of the Central Bank of Iran which are manifest in such activities as investment, transfer of money and capital, publishing banknotes and regulating inter-bank relations…are among the most important functions of the Central Bank of Iran. These functions are clearly among sovereign functions of the Iranian government as well.
Without a doubt, imposing overarching sanctions against the Central Bank of Iran will be a stumbling block on the way of enforcing sovereignty as well as political and economic power of the country. However, many of these issues have been covered by the EU sanctions against Iran to the extent that they have even violated the contents of the European Convention on State Immunity.
It is noteworthy that according to the United Nations Convention on Jurisdictional Immunities of States and their Property, which was ratified by the UN General Assembly in 2004, assets belonging to the Iranian central bank or other financial institutions affiliated to the Iranian government are considered special assets of the state. Therefore, according to Article 21 of the convention, it is similar to military and diplomatic assets which are also among special assets of the government and enjoy immunity.
More importantly, due to high importance of central banks and their direct role in regulating people’s livelihood and the fate of the country, central banks in some European countries and even the United States enjoy a higher degree of immunity which is independent of immunity of the states. As a result, even in cases when immunity of a government is violated, the immunity of its central bank is respected.
Therefore, sanctions imposed on Iran’s central bank also constitute a blatant violation of international law in economic and political fields.
International law, in general, and international instruments overseeing international peace and security -- the most important of which is the Charter of the United Nations -- as well as international custom and judicial procedure have invariably based resolution of international or regional disputes on the principle of respect for the sovereignty and rights of the states. Only in very rare instances, which have been conditioned on various provisions, have they administered use of force in a temporary manner and with special emphasis on goodwill and respect for all general rules and regulations of international law as well as with due care for the human rights and principles of humanitarian law. This issue has been constantly highlighted by relevant European instruments and conventions as well.
A thorough analysis of sanctions against the Islamic Republic of Iran in all political, economic and human rights fields and comparing those sanctions with international instruments as well as general or special rules of international law, especially in view of the selective and unfair conduct of certain Western countries and their double-standard sanctions policy, will prove that most of those legal rules and regulations have been ignored when imposing sanctions against Iran. As a result of sanctions, the sovereignty of a member state of the United Nations has been damaged and the rights of its nationals have been violated. More importantly, continuation of these sanctions constitutes a major threat to future outlook of international community. In fact, continuation of the imposed sanctions and insistence of some countries on prolongation and even intensification of sanctions has faced the future perspective of international communications with serious and irreparable risks. They also deal drastic blows to sovereign rights of the states with regard to freedom of trade and banking and financial activities while violating the rights of their nationals and basic concepts of human rights. As a result, such sanctions, in view of their vastness and diversity, can be considered a measure devoid of goodwill and a major threat to international community.
Moreover, there is an additional problem when it comes to trade and economic transactions between the Islamic Republic of Iran and member states of the European Union. In view of the vast economic and trade cooperation between the Islamic Republic of Iran and those countries, which has made the two side’s economies complementary, imposition and continuation of these sanctions, especially under current circumstances when the European Union is facing special economic conditions, can pose a real threat to the legal right of both sides for facilitating financial and trade exchanges between their real and legal entities. As a result, these countries as well as their companies and nationals will lose many valuable opportunities whose irreparable damages will totally transpire in the near future.