Author: Azin Tadjdini

It’s in the name: reading the nuclear agreement as a shift in power in favor of Europe

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P5+1 or EU3+3?
Initially referred to as P5+1, especially by the US, the name used about the Iran nuclear negotiations signaled that this was an agreement with all the permanent members of the Security Council plus Germany on the same side, trying to reach a deal with Iran. The British, however, have for a long time referred to the negotiations as EU3+3, signaling something significantly different- the European countries plus EU on one side, and the US, China and Russia on the other side. This is a detail, and an important one. It signals a divided interest, where Europe sees itself as one party, with its own interests against the other parties to the deal. In the end Europe got its will. The final text of the agreement consistently refers to E3/EU+3.
What does this imply? Setting aside the nuclear issue which is what the agreement explicitly deals with, the agreement is at the same time a deal between the great powers about the balance of power in the region and beyond. Consider the parties: China, Russia, the US, the UK, Germany, France and the EU. All powerful actors, and all historically and presently in tension with each other, not just in the Middle East but also in countries such as Ukraine, Syria, and Israel/Palestine. While the deal establishes a certain order between these actors, particularly between the US and Europe, it also establishes a power balance in Europe’s favor. Europe is not only more strongly represented in the deal – with three independent members (Germany, the UK and France), but the EU as a union has performed the important role as facilitator for the negotiations and for the final deal. It will particularly be interesting to see what this implies for the relationship between the US and Europe, considering that the Middle East has long been a source of transatlantic tension between them about both policy and influence. During the Cold War the common red enemy and the American hegemony in the region left little space for tensions to have significant consequences.

With the fall of the Berlin Wall Europe has made a comeback in the region. Not only did the end of the Cold War mark an end to the US’ hegemony in the region, it also created a void to be filled- and this void has for a while now been dominated by an anarchy-like tension between all powers who are also parties to this deal. Europe now seems to succeed in its aspirations as a superpower. This has partly to do with the EU itself, which has put more emphasis on the union’s geopolitical aspirations beyond Europe. The catastrophic failure in Iraq has also had the US acknowledge and invite European involvement in the region. It remains to be seen how this involvement will play out, and how the differences within the EU will influence its policy making in the region.

Secrecy in international agreements

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The recent P5+1 negotiations and the agreements reached so far have sparked much discussion and letter-writing. Part of this has to do with the obscurity of the negotiations and the simple reason that the few texts that have been made public are unlikely to present the totality of what the negotiations actually deal with apart from the nuclear issue. What is the deal with secrecy in international agreements?

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

The first reference in English to the Sykes-Picot agreement, by The Manchester Guardian 26 November 1917

Few things happen without a reason. Sometimes, what seems to be the apparent reason is only a piece, sometimes not even the right one, of a bigger picture. This includes international relations and the way in which they influence national, regional, and international developments. Part of what makes it difficult to dissect these developments, from the outside, is the use of secret agreements in international relations. Since they are secret, sometimes modestly referred to as “confidential”, such documents are released only after 20 years, 30 years, 50 years or whatever the confidentiality norm is in a country. Before World War I, the use of secret agreements or treaties, was quite common, typically dealing with alliances during war  and division of spheres of influence. The Treaty of Dover, the Sykes-Picot Agreement, the Molotov-Ribbentrop Pact, the Quadripartite Agreement and the Hoare-Laval Pact are only some of the many significant secret agreements of the past with major geopolitical impacts that have shaped our common history. While there can be good reasons for keeping certain agreements secret, secret international agreements are at the same time problematic from the perspective of sovereignty, democracy, rule of law, and an open society. They are also prohibited under international law.

Secret treaties under international law
At the Treaty of Versailles, marking an end to World War I, Woodrow Wilson proposed to include a prohibition against secret treaties by proposing that that all treaties should be made through the League of Nations. This proposal did not make it to the Treaty of Versailles, but was subsequently included in Article 18 of the Covenant of the League of Nations, which provided that “every treaty or international engagement entered into hereafter by any Member of the League shall be forthwith registered with the Secretariat and shall as soon as possible be published by it. No such treaty or international engagement shall be binding until so registered.” The new rule had become, in other words, publicness of international agreements, through a requirement of registration. This did not, to nobody’s surprise, end the use of secret agreements in practice, but for the first time such agreements were prohibited on a formal level.
The UN Charter continues this policy in chapter XVI. Article 102 provides that:
“ 1. Every treaty and every international agreement entered into by any Member of the United Nations after the present Charter comes into force shall as soon as possible be registered with the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in accordance with the provisions of paragraph 1 of this Article may invoke that treaty or agreement before any organ of the United Nations. “
Article 103 establishes the UN Charter as the superior law by stating that the obligations under the charter prevail in case of conflict the obligations under another international agreement.

The continued use of secret international agreements
Despite the clear prohibition under international law, secret international agreements continue in practice. For example, The United Kingdom- United States of America Agreement (UKUSA) between the UK, the US, Canada, Australia, New Zealand,and with several third parties subsequently joining, was entered into in 1946, but was not disclosed to the public until 2005 and its full text was not made public until 2010.
Because they are secret, contemporary secret agreements are hard to identify and such identifications often become mere speculations, giving rise to a variety of juicy conspiracy theories. However, sometimes such agreements are fairly easy to identify through a two-step process. The first is that there is knowledge that an agreement has been entered into. Second, the content of the agreement has not been made public. In such a case it is difficult to reach any other conclusion than that the agreement is secret.

A recent example of such a case is the P5+1 agreement with Iran. There is knowledge about an agreement, yet its content has not been made public. It has been referred to as the “Nuclear Agreement”, obviously dealing with some aspects of Iran’s nuclear programme, and indeed some of the obligations with respect to the nuclear issue have been referred to by the parties and an interim agreement has been published. Yet considering the geopolitical context of the agreement as well as the parties to it, it is highly probable that the P5+1 negotiations deals with broader issues than the nuclear issue. But we cannot know whether the terms of the agreement are in accordance with international law because the text has not been made public.

The context for the agreement- the location, the parties, the interests- bears resemblance to that of an agreement entered into almost a century ago, also that one a secret one. Whether or not the P5+1 agreement is the 21st century version of Sykes-Picot is impossible to know, because the content of the text, like that of Sykes-Picot (which became public in 1917, after the Bolsheviks came to power in Russia), has not been made public. Would it make a difference? That is the central problem of secret agreements. It is impossible to know since they are secret.

Security Council Resolution 2170 against the world’s richest terrorist organization

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On 15 August 2014, about a week prior to harsh criticism from the outgoing UN High Commissioner for Human Rights, Navi Pillay ( available here ) for its lack of responsiveness, the UN Security Council adopted Resolution 2170 in response to the terrorist activities of the Islamic State (IS/ISIS/ISIL) and the Al Nusrah Fron (ANF) as well as other entities associated with Al-Qaida.

This resolution imposes three main duties on all states:

1. Action against the export of terrorist fighters

2. Action against the financing of terrorism

3. Sanctions

The first action consists of four sub-duties. Firstly, the duty of all states to take national measures to prevent the flow of foreign terrorist fighters to IS, ANF and connected entities. According to existing estimates, most fighters are foreign- many from Europe, from neighbouring countries and from as far as Indonesia and Chechnya. Secondly, the resolution imposes a duty to bring such individuals to justice. Thirdly, a duty to discourage individuals who are at risk of recruitment and violent radicalization to travel to Syria and Iraq for the purposes of supporting or fighting for IS and ANF. And finally, a duty to prevent direct and indirect supply, sale or transfer to IS, ANF and other individuals and groups associated with Al-Qaida, of arms and related material, as well as assistance and training related to military activities.

The second action, imposes a duty upon all states to prevent and suppress the financing of terrorist acts, including the duty to prevent that economic resources are made available for the benefit of these groups. Since IS and ANF have control over a number of oilfields, this imposes a duty for states to refrain from engaging in energy trade with them.

The third action concerning sanctions, lists the names of six individuals on the sanctions list, and encourages that each state submits a list of individuals and entities supporting IS, ANF and similar gorups.

Combining both human and financial support, as well as direct and indirect support, the broadness of the resolution’s language makes it an effective legal tool for reducing the power of IS/ANF. But only if taken seriously, and if taken seriously by all states. Recognized as the riches terrorist organization in the world, the IS has been able to survive for as long as it has, through donations both from states and from individuals with and without connections to states. The resolution prohibits both. The exact answer to where the money comes from has been controversial and it is difficult to point to publicly accessible proofs. The Iraqi Premier Minister, Nouri al-Maliki said on 17 June 2014 that “we hold Saudi Arabia responsible” for the financial and moral support given to IS. Saudi Arabia’s close ally, the USA, rejected that accusation. However, some researchers have supported al-Maliki’s claim, and pointed not only to Saudi Arabia, but also to Qatar, Kuwait and the United Arab Emirates- states of which the six black listed individuals in the resolution are citizens. Another important source of funding has been oil trade, an action also prohibited under the resolution. According to a US intelligence expert, IS draws as much as $ 1 million per day in oil profit from oil well under its control, in a market where demand is high.

Despite the universal condemnation of the IS and ANF, the content of Resolution 2170 clearly indicates that a number of states and individuals have been directly or indirectly cooperating with them. Clearly, someone is buying their oil, providing them with arms and money, and actively sending or not preventing own nationals from joining them. The resolution can thus be read as placing responsibility on the world community for having allowed for the existence of and for having supported the IS/ANF. It is positive that the Security Council now has used international law to point to the responsibility and duty of all states , but it is regrettable that it has to come after a heavy human cost.

We Still Live in the Age of Refugees: Expanding the Horizon of International Refugee Law

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On this day, in 1954, the Convention on the Status of Refugees (the Refugee Convention) signed 28.07.1951, entered into force. Incorporating fundamental norms regarding who is a refugee, and setting out the rights and responsibilities of refugees as well as the responsibilities of receiving states, the convention was a landmark in establishing international standards for the treatment of refugees, based on principles of humanity. The convention was originally adopted to deal with the aftermath of World War II and the displacements it caused by persecution and war, but got universal coverage with the 1967 Protocol.  Despite criticism arguing that it is outdated or that it is an instrument for abuse, the cycle of war and systematic human rights violations continue to confirm the relevance and importance of the convention and the protocol today, over half a century later.

Together with international human rights law and international humanitarian law, international refugee law aims at the protection of the life and dignity of each and every person. International refugee law has, however, since its inception been primarily concerned with the duties of the receiving states. This is perhaps a result of a necessary division of labor in international law. It has, however, led the discourse and work of international refugee law to be primarily about the duties and the policies of the receiving state, and not about the duties and policies of the refugee producing state- the source state. Hence, refugee law continues to be law that lags behind- it is marked by post-problem attention instead of including attention to the root of the problem- namely the domestic situation that forces some persons to flee their home country. Refugee law needs not only to be met by humanitarian concerns but equally by political considerations at the root. As we mark the 60th anniversary of the Refugee Convention, it is time to ask whether a better protection of the life and dignity of each person, including each refugee, requires that international refugee law includes attention to the root of the problem, and expands its horizon to include attention to the domestic legal order of source states.

This is nothing particularly radical, it is already part of international human rights law, but it seems somehow to have been forgotten along the way when discussing international refugee law. The Refugee Convention itself confirms that the primary duties lie with the source country by referring to the Universal Declaration of Human Rights (UDHR) in its preamble and to the principle that human beings shall enjoy fundamental rights and principles without discrimination. TO ensure these rights is the duty of every state. Indeed, if all states took these duties seriously, there would be far less refugees in the world.

Furthermore, the definition of refugee in the Refugee Convention provides us with some additional guidelines in how to approach the source country problem in so far as it is related to the domestic legal order. Article 1(a)(2) of the convention defines a refugee as an individual who is outside her country of nationality or habitual residence, who is unable or unwilling to return due to a well-founded fear of persecution based on her race, religion, nationality, political opinion, or membership in a particular social group. Under this definition, internally displaced persons, including for example persons fleeing natural disasters and generalized violence are not considered refugees under the convention.

This definition is important because it corresponds to the international human rights obligations of every state under the UDHR and under the covenants. It tells us that countries that do not make a serious attempt to reform their legal orders to comply with international human rights law inevitably will produce refugees. This includes legal orders that justify discrimination based on the above-mentioned grounds, and legal orders that severely restrict fundamental freedoms such as freedom of expression , freedom of assembly and political participation. Often such restrictions come hand in hand with strict enforcement and persecution, for example as crimes against the state, either legally or extra-legally.

By forcing members of their own population to flee their country and seek refuge in other countries, the legal orders of source countries cease to be merely a domestic matter. They are translated into an international matter due to the border-crossing effects, which are painfully human in nature. This requires global attention, and it requires the attention of international refugee law.

P5+1: The international agreement where all parties are happy

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Sunday 24 November 2013, it was announced that the P5+1 (the United States, United Kingdom, Germany, France, Russia and China, facilitated by the European Union) had reached an agreement with Iran regarding the latter’s nuclear program. According to each country’s statements the agreement is a success and everyone is a winner. But when have we ever witnessed an agreement of such kind?

Although the agreement is not officially published in full, we get a glimpse of some of its important features from the points that have been released in media. The least interesting thing about the “Nuclear agreement” is the nuclear issue.

For a non-democratic regime that faces strong opposition from within and which has been severely crippled by economic sanctions, the agreement proves to be a life-saving last solution- at least for six months. Under the agreement, a few of the economic sanctions are lifted. In return the regime will stay a live and in power as a de facto protectorate with minimal economic sovereignty still intact. The agreement places the major income source- the oil trade- under the control of the P5+1, by providing that Iran’s crude oil sales cannot increase in a six-month period, resulting in what is estimated to be about $30 billion  in lost revenues to the country. Further restrictions are placed on Iran’s access to its oil sales; on its foreign exchange holdings and on a number of other financial services. A regime that preaches fight against imperialism and “the West”, now finds itself in the peculiar situation where its survival rests precisely on “the West” and a new kind of economic imperialism resulting from the country’s lack of acknowledgement of international law and the rules of the game.

On the bright side, the agreement might have prevented a more serious conflict. But here we can only guess. What we can be certain about, however, is that any agreement where the world’s major powers are involved and where all are smiling has wider geopolitical significance than the nuclear issue.

The World’s Largest Minority

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Around 10% of the world’s population live with a disability. They are the world’s largest minority.

On 17 July 2013, the Conference of States Parties to the Convention on the Rights of Persons with Disabilities (CRPD) opened its 2013 session at the United Nations. The CRPD came into force in 2008 and provides an important legal platform for addressing the global short-comings towards ensuring the full and equal participation of persons with disabilities in an inclusive society as well as ensuring their human rights. Pointing to the link between disability protection, poverty and development, this year’s focus is on empowerment. In two months the General Assembly will hold a high-level meeting on disability and development.

A social model of disability

Article 1(2) of the CRPD provides the following definition:

“Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.”

The CRPD thus adopts a social model of disability, different from the medical model, in that it means that society is the main contributory factor in disabling people. While physical or mental variations may cause individual functional limitations, these do not have to lead to disability unless society fails to take account of and include people regardless of their individual differences.

A social model of disability also means that the number of persons with disabilities is increasing through population growth and the aging process. In countries with life expectancies over 70 years, individuals spend an average about 8 years living with disabilities.

Development and Empowerment: The importance of the CRPD

80% of persons living with disabilities live in developing countries, according to the UN Development Programme. Most people with disabilities have poor access to education, heath care, employment and other necessities. Women and girls with disabilities are particularly vulnerable because they often are multiply disadvantaged. According to UNESCO, 90% of children with disabilities in developing countries do not attend school.  Persons with disabilities are more likely to be victims of violence and rape and less likely to obtain legal protection.

Despite the clear need for ensuring the full enjoyment of human rights by persons with disabilities, only 45 countries have anti-discrimination and other disability-specific laws. This makes the CRPD even more important, not only because it re-states rights but because it creates a new rights discourse. It provides specific steps that states need to ensure to enable persons with disabilities to exercise their rights. The focus of this year’s Conference on empowerment  has the potential to make an important contribution to the work that still needs to be done in this area. Bringing the link between disability, empowerment and development to the global agenda is a small but important step in reducing the world’s largest minority.

Human Rights and Lefts

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If the left and the right support the right, who is then left to support the left?

The recent ousting of the Egyptian President has brought some noteworthy insights into the discussion about the academic right and left and their approach to human rights.

Before unearthing this insight, let’s take a step back and start with what is considered to be the normal perception of the left in academic discourse. We’ll stay in the region and take the scholarship on the Middle East and North Africa as a case.

In his book Ivory Towers on Sand: The Failure of Middle Eastern Studies in America (2011), Martin Kramer criticizes Middle Eastern studies in the United States for what he sees as left-wing biased scholarship. Inspired by that book, Norwegian editors Bernt Hagtvedt, Øystein Sørensen and Nik. Brandal published Venstreekstremisme (2012) which contains a similar criticism against Norwegian Middle Eastern scholarship. The essence of the criticism in both books is that leftist scholars have a tendency to romanticize the Third World and sympathize with political radicalism in the Middle East. In a human rights context, particularly when we find ourselves at the intersection of human rights and what is understood to be Islam or islamist actors, leftist scholars appear to defend the latter- sometimes with good intention- as a culturally appropriate alternative. Some of these scholars identify as left-wing, while others are deemed as such.

But does the identification of the scholar as left-wing, imply that the content of the scholarship also is left-wing?

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