Public International Law
*453 NATIONAL SECURITY LAW
James D. Carlson, William V. Dunlap, Adrianne Goins, Geoffrey M. Goodale, Jonathan Michael Meyer, Jason I. Poblete, Guy C. Quinlan, Michael O. Walker [FNa1]
Copyright (c) 2013 American
Bar Association; James D. Carlson; William V. Dunlap; Adrianne Goins;
Geoffrey M. Goodale; Jonathan Michael Meyer; Jason I. Poblete; Guy C. Quinlan;
MichaeF O. Walker
This
article surveys relevant 2012 developments in national security law for
international lawyers. [FN1]
***
II. Iran
The
pressure on Iran to be more forthcoming with its nuclear ambitions continued
through 2012. The tension between Iran and the international community stems
from disagreement over Iran's obligations to implement nuclear safeguards under
the so-called Safeguards Agreement, [FN26] six UN Security Council Resolutions, [FN27] and eleven
International Atomic Energy Agency (IAEA) resolutions. [FN28]
On
November 18, 2011, the IAEA Board of Governors adopted a resolution which,
inter alia, stressed it was essential for Iran and the IAEA to “intensify their
dialogue aiming at the urgent resolution of all outstanding substantive
issues.” [FN29] The Board also called
on Iran “to engage seriously and without preconditions in talks aimed at restoring
international confidence in the exclusively peaceful nature of Iran's nuclear
programme.” [FN30] IAEA *457 and
Iranian officials met five times in 2012 to bridge differences and discuss a
structured approach in resolving these differences, in particular for gaining
access to the Parchin installation and addressing the apparent military
dimensions of Iran's nuclear program. [FN31] The meetings failed to achieve agreement on these issues. In
September, the IAEA noted that Iran was not providing the necessary cooperation
to enable the IAEA “to provide credible assurance about the absence of
undeclared nuclear materials and activities . . . and therefore to conclude
that all nuclear material in Iran is in peaceful activities.” [FN32]
As a
result of these and previous failures of Iran to cooperate with the
international community, the United States and the European Union enacted
additional sanctions this year.
President
Obama signed two pieces of legislation affecting Iran: the National Defense
Authorization Act for Fiscal Year 2012 (NDAA) [FN33] and the Iran Threat
Reduction and Syria Human Rights Act of 2012 (ITRSHRA). [FN34] Section 1245 of the
NDAA gives the President power to freeze all assets of Iranian financial
institutions that have a nexus to the United States. [FN35] Furthermore under the
NDAA, foreign financial institutions that knowingly facilitate a “significant
financial transaction with the Central Bank of Iran or with another
[sanctioned] Iranian financial institution” risk being cut off from direct
access to the U.S. financial system. [FN36] A condition precedent to these provisions is a presidential
determination that there was a sufficient supply of petroleum and petroleum
products from countries other than Iran to permit a sufficient reduction in the
volume of petroleum and petroleum products purchased from Iran by or through
foreign financial institutions; President Obama issued a determination to that
effect on June 11, 2012. [FN37] ITRSHRA expands the Iran Sanctions Act of 1996, [FN38] sanctions Iran's
Revolutionary Guard Corps, [FN39] and prohibits provision of insurance services to the National
Iranian Oil Company. [FN40]
Similarly,
the European Union passed a formidable set of sanctions focused on Iran's crude
oil, petroleum, and petrochemical industry and product-related transactions,
heavy water-related activities, energy sector revenues, the Central Bank of
Iran, the Iranian Revolutionary Guard Corps, and precious metal transactions. [FN41] Additionally, the
Society for *458 Worldwide Interbank Financial Telecommunication, in
response to the EU sanctions, announced it would “discontinue its
communications services to Iranian financial institutions” subject to the EU
sanctions. [FN42] This action impacts as
many as thirty Iranian financial institutions. [FN43]
The effect
of the international sanctions is the subject of debate. IAEA Director General
Yukiya Amano stated on November 20, “Iran is enriching uranium at a constant
pace and international sanctions aimed at making Tehran suspend the activity
are having no visible impact.” [FN44] While Iran's nuclear ambitions may not be impacted by sanctions,
its economy apparently is. Iranian President Mahmoud Ahmadinejad blamed the
Western sanctions for the tumble of the Iranian rial against the dollar: the
rial hit a new low in October, triggering riots in the streets of Tehran. [FN45] Also, Iran's oil
output declined for seven straight months until rebounding strongly in October
in response to increased oil purchases by China and South Korea. [FN46]
***
[FNa1]. The committee editors
of this article were Captain James D. Carlson, Judge Advocate, U.S.
Coast Guard, and William V. Dunlap, professor of law, Quinnipiac University
School of Law. Captain Carlson contributed “Iran;” Adrianne Goins,
Counsel, Vinson & Elkins L.L.P., contributed “Foreign Investment--CFIUS
Practice in 2012;” Jason I. Poblete, Partner, PobleteTamargo, contributed
“Cuba;” Guy C. Quinlan, former Counsel, Clifford Chance and Rogers & Wells,
contributed “Nuclear Arms Control;” and Lieutenant Michael O. Walker, Judge
Advocate, U.S. Coast Guard, contributed “Regulating Telecommunications--ITU and
the WCIT-12.” The section on the Export Enforcement Coordinating Center was
contributed by Geoffrey M. Goodale, Special Counsel, Cooley L.L.P., and Jonathan
Michael Meyer, Attorney at Law, Vice Chair, Export Controls and Economic
Sanctions Committee, ABA Section of International Law and former Vice
Chair, National Security Committee, ABA SIL. The views expressed herein
by the Coast Guard officers are those of the authors and are not to be
construed as official or reflecting the views of the Commandant or of the U.S.
Coast Guard.
***
[FN26]. Int'l Atomic Energy
Agency [IAEA], Agreement Between Iran and the IAEA for the Application of Safeguards
in Connection with the Treat on Non-Proliferation of Nuclear Weapons, IAEA Doc.
INFCIRC/214 (May 15, 1974) available at http://
www.iaea.org/Publications/Documents/Infcircs/Others/infcirc214.pdf [hereinafter
Safeguard Agreement].
[FN27]. The United Nations
Security Council has adopted the following resolutions on Iran: S.C. Res. 1696,
U.N. Doc. S/RES/1696 (July 31, 2006); S.C. Res. 1737, U.N. Doc. S/RES/1737
(Dec. 23, 2006); S.C. Res. 1747, U.N. Doc. S/RES/1747 (Mar. 24, 2007); S.C.
Res. 1803, U.N. Doc. S/RES/1803 (Mar. 3, 2008); S.C. Res 1835, U.N. Doc.
S/RES/1835 (Sep. 27, 2008); and S.C. Res. 1929, U.N. Doc. S/RES/1929 (June 9,
2010). S.C. Res. 1929 affirmed that Iran shall take steps required by the IAEA
Board in IAEA Doc. GOV/2006/14 and IAEA Doc. GOV/2009/82, reaffirmed Iran's
obligation to cooperate fully with the IAEA on outstanding issues, particularly
those that give rise to concerns about military dimensions of the Iranian
nuclear program, and decided that Iran shall comply without qualification with
the Safeguard Agreement.
[FN28]. The IAEA Board of
Governors has adopted eleven resolutions in connection with the implementation
of safeguards in Iran: IAEA, Doc. GOV/2003/69 (Sept. 12, 2003); IAEA Doc.
GOV/2003/81 (Nov. 26, 2003); IAEA Doc. GOV/2004/21 (Mar. 13, 2004); IAEA Doc.
GOV/2004/49 (June 18, 2004); IAEA Doc. GOV/2004/79 (Sept. 18, 2004); IAEA Doc.
GOV/2004/90 (Nov. 29, 2004); IAEA Doc. GOV/2005/64 (Aug. 11, 2005); IAEA Doc.
GOV/2005/77 (Sept. 24, 2005); IAEA Doc. GOV/2006/14 (Feb. 4, 2006); IAEA Doc.
GOV/2009/82 (Nov. 27, 2009); and IAEA Doc. GOV/2011/69 (Nov. 18, 2011). See
IAEA, IAEA and Iran: IAEA Resolutions,
http://www.iaea.org/newscenter/focus/iaeairan/iaea_resolutions.shtml (last
visited Jan. 29, 2013).
[FN31]. Press Release, IAEA,
IAEA Expert Team Returns from Tehran (Feb. 22, 2012),
http://www.iaea.org/newscenter/pressreleases/2012/prn201205.html. See also
IAEA, IAEA and Iran: Chronology of Events, http://
www.iaea.org/newscenter/focus/iaeairan/iran_timeline9.shtml (last visited Feb.
15, 2013).
[FN32]. IAEA, Implementation
of the NPT Safeguards Agreement and Relevant Provisions of United Nations Security
Council resolutions in the Islamic Republic of Iran, IAEA Doc. GOV/2012/50
(Sept. 13, 2012).
[FN33]. National Defense
Authorization Act for Fiscal Year 2012, Pub. L. No. 112-81, § 1245, 125 Stat. 1298 (2011).
[FN34]. Iran Threat Reduction
and Syria Human Rights Act of 2012, Pub. L. No. 112-158, 126 Stat. 1214 (2012) [hereinafter ITRSHA].
[FN37]. Memorandum on Presidential Determination Pursuant to Section 1245(d)(4)(B) and
(C) of the National Defense Authorization Act for Fiscal Year 2012, 77 Fed.
Reg. 36,387 (June 19, 2012), available at http://
www.gpo.gov/fdsys/pkg/DCPD-201200465/pdf/DCPD-201200465.pdf. President Obama
used Executive Order Nos. 13,599 and 13,622 in part to effectuate the
2012 NDAA. Exec. Order No. 13,599, 77 Fed. Reg. 6,659 (2012); Exec.
Order No. 13,622, 77 Fed. Reg. 6,659 (2012).
[FN42]. Press Release, Soc'y
for Worldwide Interbank Fin. Telecomm., SWIFT Instructed to Disconnect
Sanctioned Iranian Banks following EU Council Decision (Mar. 15, 2012),
http://www.swift.com/news/press_releases/SWIFT_ disconnect_Iranian_banks.
[FN43]. Rick Gladstone &
Stephen Castle, Global Network Expels as Many as 30 of Iran's Banks in Move to
Isolate Its Economy, N.Y. Times, Mar. 16, 2012, at A6.
[FN44]. Alexandria Sage &
Fredrik Dahl, Iran Nuclear Work at Constant Pace Despite Sanctions - IAEA,
Reuters (Nov. 20, 2012, 9:02 AM), http://
in.reuters.com/article/2012/11/20/nuclear-iran-idINDEE8AJ0BX20121120.
[FN45]. Iran Police Clash
with Protesters, BBC News (Oct. 3, 2012, 2:48 PM),
http://www.bbc.co.uk/news/world-middle-east-19812482.
[FN46]. IAEA: Iranian
Sanctions Might Hurt Its Economy but Not Its Oil Industry, Albawaba Bus. (Nov.
19, 2012, 8:40 AM), http:// www.albawaba.com/business/iea-iran-oil-451566.
***
47 Int'l
Law. 453
END OF
DOCUMENT
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2012 Developments with Iran
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