H I G H L I G H T S
• IAEA & Iran ‘understanding’ buys some time and space for diplomacy
• ICC ruling on jurisdiction for grave crimes in Palestinian Territories
• Myanmar in UN Fora
• A selection ends another begins
• Second time is easier for Covid-related resolution in Security Council
IAEA & Iran ‘understanding’ buys some time and space for diplomacy
The Vienna-based International Atomic Energy Agency (IAEA) announced on 21 February that it had come to a “temporary bilateral technical understanding” with the Atomic Energy Organisation of Iran (AEOI) whereby the IAEA will continue its verification and monitoring of Iran’s nuclear activities for up to three months.
The understanding was worked out ahead of a 23 February deadline set by Iranian legislation to stop adherence to key parts of the 2015 ‘Iran nuclear deal’ formally known as the Joint Comprehensive Program of Action (JCPOA), in case US sanctions were not lifted by then. The Iranian parliament had late last year approved a timeline for a series of nuclear-related steps to be undertaken by Iran as a graduated response to the Tump Administration’s opting out of the JCPOA and pursuit of the policy of “maximum pressure” through extremely onerous sanctions on Iran. These included the increase in the enrichment capacity and production at underground sites of enriched uranium beyond agreed limits of 3.67% to 20% purity, but far below the 90% needed for weapons grade fuel; storage of enriched uranium within Iran in excess of agreed amounts; stopping implementation of the IAEA’s verification and monitoring requirements such as daily access to IAEA personnel to nuclear sites, remote online surveillance, environment sampling and provision of advance information of future nuclear activities as specified under the IAEA’s Additional Protocol (AP) that Iran has signed but has not yet ratified for entry into force; and suspension of regulatory access specified in the JCPOA beyond the AP.
While Iran has implemented several of the decisions stipulated in the legislation, complete denial of access would have ended the last major components of the 2015 nuclear agreement that Iran has continued to abide by despite the Trump Administration opting out of the deal in 2018. It would have made the already enormously difficult task of getting the JCPOA back on track even more complicated.
The recent Iran-IAEA understanding provides much needed space to the participants of the JCPOA to try and re-engage with a view to working on a path to reviving the Obama-era accord in some form or the other. While the Biden Administration has professed willingness to rejoin the agreement, the array of regional geopolitical sensitivities and the complexities of domestic situations in Iran and the USA mean that time is required for the newly installed Biden Administration to diplomatically navigate the many pitfalls that make the revival of the deal extremely difficult.
The details of the new technical arrangements have not been made public. However, the Director General of the IAEA Rafael Grossi, following his return from Tehran acknowledged that under the understanding the IAEA inspectors have “less access” than before but would not be “flying bind”. He did not describe what form the new limits would take. However, there is talk that while the IAEA inspectors would continue their verification work and monitor the key nuclear sites as provided for by Iran’s commitments under the Non-Proliferation Treaty, but they will not have daily access agreed as part of the JCPOA thereby perhaps impeding IAEA’s immediate vision of Iran’s nuclear activity on a day to day basis. It appears that while data required under other arrangements such as the AP and the JCPOA will be constantly recorded and stored to enable having a repository of uninterrupted knowledge, it will be made available to the IAEA if the US rejoins the JCPOA following arrangements made during the temporary hiatus of three months.
Whether this understanding lasts for the three month period or not will depend on how other key players, including the US and E-3, respond to the technical arrangements between the Director General of the IAEA and Iran at the next meeting of the IAEA Board of Governors starting on 1 March. News reports mention that Iran has threatened to end the understanding if the Board adopts a US-led push criticizing Iranian actions.
Comment: The US rejoining the JCPOA and lifting nuclear-related sanctions is an immensely difficult process even without the added complications of ensuring unrestricted access for monitoring and verification by the IAEA of Iran’s nuclear activities. The recent IAEA-Iran understanding, by delaying the further complications, provided time for diplomacy to try and come up with a pathway to address issues related to US re-engagement with the JCPOA. If those matters are sorted out the access issue will be moot. If they are not addressed the restriction of access will become another aspect of the broader consequences of continued US-Iran animosity.
ICC ruling on jurisdiction for grave crimes in Palestinian Territories
On 5 February 2021, a Pre-Trial Chamber of The Hague-based International Criminal Court (ICC) decided, by a 2-1 majority, that the Court's territorial jurisdiction in the Situation in Palestine, a State party to the ICC Rome Statute, extends to the territories occupied by Israel since 1967, namely Gaza and the West Bank, including East Jerusalem.
The decision follows the conclusion in December 2019 by the ICC’s Prosecutor that all necessary criteria to proceed with a formal investigation of alleged serious crimes in the Palestinian Territories had been met. However, given the unique circumstances in Palestine, and the potential uncertainty this raised as to the question of the scope of the Court’s territorial jurisdiction, the Prosecutor had in January 2020 requested a ruling, in order to confirm that she was proceeding on a solid legal foundation.
Palestine which joined the ICC in 2015 welcomed the ruling even though, in all probability, Hamas functionaries will figure amongst those who may be prosecuted. Israel which has never signed the Rome Treaty and is not a party to the ICC Statute termed the decision a “perversion of justice” and launched a diplomatic campaign to gain support. Several parties to the Rome Treaty including Australia, Canada, Germany and Hungary reiterated their positions that the ICC lacks jurisdiction. The US which is not party to the ICC too joined in the criticism. There are reports that Israel has encouraged President Biden to maintain Trump era U.S. sanctions on senior prosecution officials from the ICC as a leverage to persuade Bensouda and her successor not to pursue the investigations into Afghanistan or the West Bank and Gaza.
Comment: The ICC can only investigate and prosecute individuals, not States. Israeli concerns are that members of the Israeli Defense Forces may be prosecuted. Also, of the categories of potential crimes that the prosecutor has identified, Israeli settlement activity is the most politically explosive. The current ICC prosecutor Fatou Besouda of Gambia is due to demit office in June 2021. Her successor, the UK’s Karim Khan was selected by a contentious vote for the first time on 12 February. His decisions will be key in deciding how to take this process further.
Myanmar in UN Fora
The UN system has been vociferously making its views known about developments in Myanmar with Secretary General Guterres emphasizing that “Coups have no place in our modern world”. The matter has also figured in the Security Council, the Human Rights Council and the General Assembly.
On 2 February, a day after the Myanmar military declared a year long sate of emergency and detained civilian leaders, the Security Council was briefed on Myanmar by Special Envoy Christine Schraner Burgener. She informed the Council of developments that led to the military takeover and appealed to members to send a strong signal in support of democracy in Myanmar. Following further consultations a press statement ( which figures low in the pantheon of responses) was issued by the Security Council on 4 February. The Council did not use the term “military coup” but expressed deep concern at the declaration of the state of emergency and the arbitrary detention of members of the government. It sought the immediate release of all those detained and called for safe and unimpeded humanitarian access to all people in need, besides welcoming the 1 February statement of the ASEAN chair on developments in Myanmar.
On 12 February, the Human Rights Council in Geneva convened a special session and adopted without a vote, a UK & EU initiated resolution, which called urgently for the immediate and unconditional release of all persons arbitrarily detained in Myanmar, including State Counsellor Aung San Suu Kyi and President Win Myint and others, and the lifting of the state of emergency. Following adoption, China and Russia explained that they dissociated from the resolution. Myanmar’s Ambassador to the UN Offices in Geneva, Myint Thu who had responded by underscoring his country’s commitment to democratic values, and justifying the military’s intervention as necessary resigned a few days later.
On 26 February an informal meeting of the General Assembly provided an opportunity for all UN members to express their views on the situation in Myanmar. The highlight was Myanmar's Ambassador to the UN, Kyaw Moe Tun, breaking ranks. He announced that he was not representing the military leadership, but the Committee Representing the Pyidaungsu Hluttaw, or parliament, (CRPH) formed by parliamentarians pushed aside by the military takeover and was speaking on their behalf. He appealed for all Member States and the UN, to condemn the takeover and urged them “to use any means necessary to take action against the Myanmar military” so as to “end the military coup immediately”. He gave the three-fingered salute adopted by protesters in Myanmar and said that he would join those continuing "to fight for a government which is of the people, by the people, and for the people." He was dismissed soon after, with Myanmar State TV announcing that he had “betrayed the country” and had “abused the power and responsibilities of an Ambassador.”
Comment: The differences in approach between members of the Security Council on Myanmar are well known and had led to deadlocks in the past. Hence not much was expected. The issuance of the press statement by the Security Council was the second ever on Myanmar ( the last time was following a Security Council Mission in May 2018) and does not amount to much. Meanwhile the situation in Myanmar is volatile. The military is trying to suppress opposition, at times violently, and consolidate its hold by annulling the results of the November 2020 elections. The opposition to the regime is organizing protests in major cities and planning to form an “interim government” to seek official recognition from the United Nations. In such a situation the issue is likely to remain on the active agenda in global fora.
A selection ends another begins
The long-running saga to select the Director General of the Geneva-based World Trade Organisation (WTO) that began in May 2020, (See UNCovered October 2020) concluded with the announcement on 15 February that Ms Ngozi Okonjo-Iwela, a dual Nigerian-US citizen was unanimously approved as the next Director General. This followed the withdrawal of the other contender is Ms Yoo Myung-hee, the Trade Minister of South Korea after the Biden Administration announced it would support Ms. Okonjo-Iweala, reversing efforts by the Trump Administration to block her candidacy. Consequently, come 1 March 2021 the WTO’s first woman and African Director General will assume office. Her term, renewable, will expire on 31 August 2025.
Meanwhile, in New York on 5 February, the President of the General Assembly and the President of the Security Council for the month of February set in motion the formal process of selection of the United Nations Secretary General by addressing a joint letter to all states. The timeline provides for informal dialogues with candidates in the General Assembly to take place before the Council begins its selection by May or June 2021. The incumbent, Antonio Guterres is already in the fray following his letter of 11 January 2021. Subsequently, Portugal has officially nominated Guterres. Although news reports refer to Akanksha Arora, a 34 year old millennial Indian origin UNDP staffer of Canadian nationality having floated her name, she has thus far not secured backing of any state.
Comment: The appointment of Ms Ngozi Okonjo-Iwela,removes a key obstacle to the functioning of WTO at a time of growing protectionism and global economic upheaval, further accentuated by the pandemic. It faces steep challenges including the paralysis of its system of settling trade disputes with the Biden Administration signaling that it may continue with the “systemic concerns“ with the appellate body. Among other issues are long-standing complaints from the US and Europe about subsidies enjoyed by Chinese state firms, the ongoing discussions on fisheries subsidies, and updating WTO’s rule book that now works based on the consensus of all 164 member states. On the other hand, the initial expectations of the current incumbent UN Secretary General breezing through to another term (see UNCovered January 2021) to remain valid.
Second time is easier for Covid-related resolution in Security Council
The first time the Security Council ventured to address Covid-related aspects it took three months of negotiations before agreement was reached in July 2020 on resolution 2532 (2020). The UK Presidency skillfully obtained agreement of the Council for the unanimous adoption of Resolution 2565(2021) on 26 February, following just a few days of negotiations consequent to the Open Debate on the equitable distribution of COVID-19 vaccines on 17 February. The outcome was co-sponsored by 112 members, including all members of the Council. The resolution calls for a humanitarian pause and facilitating equitable and affordable access to Covid-19 vaccines in armed conflict situations, post-conflict situations and complex humanitarian emergencies. The UN estimates that approximately 160 million people live in such circumstances. Unlike the last time when the US opposed mentioning the World Health Organisation (WHO), the new resolution references the WHO multiple times.
Comment: The swift passage of the resolution signals the distance travelled since the sharp disagreements witnessed in the Council last year between the US and China on the origin of the virus and the accountability for its outbreak. Whether this improved climate in the wake of the Biden Administration’s approach to multilateral cooperation will foster more such outcomes remains to be seen.
(The views expressed are personal)