International

UN treaty implementation and Iran nuclear issue
By D. Laksiri Mendis
UN treaty implementation contributes to good governance, peace and security in the world. In this short article, an attempt is made to look at the UN treaty implementation and the Iran nuclear issue in a comparative manner, so that the "fairness" and "legitimacy" of any action taken against Iran could be evaluated by the reader. At the outset, it is important to deal with ratification of relevant treaties, as it gives the consent of states to be bound by the contents of the UN treaty.

The ratification of UN treaties differs in "monist" and "dualist" states. In monist states, a UN treaty becomes national law with ratification or accession of the treaties in accordance with the Congressional/ Parliamentary approval. The United States, Latin American and Middle Eastern states generally follow the "monist" tradition. In the US, treaties are further classified as "self-executing" and "non-self-executing" treaties and national legislation is required for non-self-executing treaties. The US and Iran have ratified the 1968 NPT. Israel has not ratified the 1968 NPT, and North Korea has withdrawn from the 1968 NPT but the Six-Party State Coalition seeks the re-entry of North Korea to the NPT regime.

In dualist states, the Executive ratifies a treaty, but national legislation is necessary to give legal effect to a treaty at national level, as a treaty by itself does not constitute law. Britain and Commonwealth countries generally follow the "dualist" tradition. India did not ratify the 1968 NPT and in 1998, it conducted three nuclear tests. Pakistan followed the same path immediately.
In the ratification of important UN treaties, states must consider global interest in terms of national interest, as threats and challenges will transcend national boundaries and dominate global politics in the coming years, irrespective of the size, economic or military power of states.

At the national level, the implementation of UN treaties is a multidisciplinary process with "carrots and sticks" to entice or force states to conform to international standards and norms. It encounters a myriad of practical and legal problems and can be dealt in the following manner:

(1) Promotional, preventive and precautionary measures
States are under an obligation to undertake promotional, preventive and precautionary measures in the implementation of UN treaties.

UN treaties are promoted through advocacy programmes to target groups and by provision of financial and developmental incentives to achieve their objectives. President Carter made human rights the cornerstone of his foreign policy for the provision of development assistance. However, the promotion of the 1968 NPT requires not only provision of financial incentives, but also security considerations and recognition of the geo-political realities of such states in their sphere of influence.

It is necessary to establish good institutions, structures and independent commissions at national level to promote and protect human rights, and to prevent global warming, bribery and corruption, drug abuse, trafficking, proliferation of nuclear weapons and appointment of key personnel to public office.

The state parties to a UN treaty can consider threat reduction as a precautionary or confidence-building measure. Notwithstanding any legal entitlement, a moratorium or suspension of certain activities such as uranium enrichment or plutonium separation can be considered a precautionary or confidence-building measure. In the alternative, an independent Safeguards and Verification Committee can be established to build confidence from a panel of independent persons. However, such measures should not be considered by Iran as a diminution of state sovereignty, so long as it is intended to achieve the objectives of the treaty. A conference of state parties to the 1968 NPT is an alternative forum to consider such precautionary measures, if the Iran nuclear issue were to linger unresolved for a long period, despite the efforts of EU3, China and Russia.

Similarly, precautionary measures in regard to global warming and sea-level rise are as important as the nuclear issue, as they constitute threats without enemies. Unfortunately, the US has not ratified the 1997 Kyoto Protocol.

(2) Legislative and Executive measures
There is a need to enact good legislation to facilitate the implementation process. In this context, treaty secretariats provide technical assistance. It is difficult to enforce implementing legislation, unless prohibited conduct is defined in clear terms with penal sanctions and the administrative provisions deal with transparency, compliance and verification. In regard to 1968 NPT, good national legislation is lacking in many countries.

Almost all states have established projects and programmes at national level to achieve the objectives of UN treaties especially in regard to narcotic drugs, irregular migration, refugees, IDPs, environment, trade facilitation, disarmament and non-proliferation of WMD, human rights or humanitarian law. It is extremely important to ensure the coordination of such projects and programs through inter-agency and NGO consultations to prevent duplication. Third-party evaluation of UN projects can improve their efficiency and transparency in regard to recruitment and performance.

(3) Enforcement measures
Enforcement at national level is "the Achilles heel" in the implementation of UN treaties. Judges are not so proactive in the application and implementation of UN treaties, as interpretative rules do not inspire judicial "activism". Enforcement is further weakened, as the concept of locus standi limits legal action and ministerial discretion is not exercised on many occasions to uphold UN treaty objectives.

Enforcement at national level requires international cooperation and therefore extradition treaties and agreements on mutual assistance agreements in criminal matters are essential, so that violators are not only punished, but will not profit from their wrongdoing, as required under many UN treaties. Such cooperation is extremely important to deal with persons who are trafficking in nuclear material, devices and narcotic drugs.

At the international level, the International Court of Justice (ICJ), International Criminal Court, Yugoslav and Arusha Tribunals, WTO Dispute Tribunal, Washington Investment Settlement Tribunal have contributed to the UN treaty implementation process considerably. In addition, through compliance control mechanisms, the implementation of UN treaties are reviewed, verified and recommendations are made for implementation at national level. Hence, the state parties to UN treaties are subjected to international control and supervision. These controls are absolutely necessary to implement the UN treaties effectively and efficiently and can be developed further by new concepts, technologies and approaches.

(1) Reporting process
Almost all UN treaties impose on states an obligation to provide initial and bi-annual reports with respect to implementation of UN treaties. These reports are scrutinized by treaty bodies/secretariats or committees specially established for such purposes. These Committees and Treaty Review Conferences require states to comply with the standards set out in the UN treaties by way of recommendations which include amendments to national legislation.

The review process differs from one agency or treaty body to another. The scrutiny in regard to the implementation of human rights treaties, ILO conventions and environmental treaties has set out different processes and involves different structures under various treaty regimes. In some instances, the NGOs and CSOs also participate and contribute to the review process.

(2) Verification
It is also important to undertake verification in regard to the implementation of UN treaties. Reports submitted by state-parties are inadequate in certain circumstances. In this regard, treaty bodies/secretariats despatch fact-finding missions and rapporteurs to investigate violations with respect to UN treaties. The ICRC verification visits to Guantanamo Bay and Abu Ghraib Prison in Baghdad have revealed serious violations of the international humanitarian laws by US security forces.

On-site verification is necessary in regard to non-proliferation of nuclear weapons in terms of the Safeguards Agreement and the Additional Protocol. In this regard, the IAEA uses sophisticated technologies. The Inspectors undertake environmental sampling to ensure the authenticity of their findings and thereafter the Director General submits such information by way of Reports to the IAEA Board of Governors.

Unfortunately, it is difficult to ascertain the meaning of "non-compliance" under Article XIII of the IAEA Statute, as the term "non-compliance" is not exhaustively defined in the IAEA Statute. However, INFCIRC/153 provides another route to define non-compliance by the IAEA Board. Non-cooperation does not mean non-compliance at all times. Non-cooperation does not necessarily constitute a presumption leading to the manufacture of a nuclear weapon.

In regard to the verification under the 1968 NPT, state parties are required, not by law but by IAEA practice, not only to act with bona fides (good faith), but with uberrimae fides (highest faith), in order to dispel any suspicion surrounding the manufacture of nuclear weapons. Libya and South Korea displayed such uberrimae fides to the IAEA and its Board of Governors. However, it is difficult to expect all states to display such uberrimae fides, unless the threats against such states are reduced to an acceptable level in their sphere of influence.

(3) Recommendations, sanctions and use of force
Treaty bodies such as Committee on Torture, Committee on Child Protection, Human Rights Committee and Committee on Discrimination against Women make recommendations after undertaking a review process. Under the 1976 Optional Protocol, the Human Rights Committee has conveyed their recommendations or views to states on individual applications. Unfortunately, they have not been implemented by the respective states due to legal and practical problems. To an aggrieved person, it is a matter as important as the Iran nuclear issue.

Imposition of sanctions or use of force by the Security Council in regard to UN treaty implementation is controversial and contentious. In 1990, Iraq invasion of Kuwait in violation of the UN Charter did compel the Security Council to use force to repel Iraqi armed forces out of Kuwait. The 9/11 events compelled the Security Council to use force against the Taliban regime in Afghanistan for supporting al-Qaeda. However, use of force by the USA/UK without the approval of the Security Council with respect to alleged possession of weapons of mass destruction by Iraq created a bitter controversy and acrimony at the Security Council and we are now witnessing daily the horrendous consequences of that action.

The IAEA Board of Governors has already referred the non-compliance by Iran to the Security Council. The Security Council can impose sanctions, if such non-compliance can lead to a breach of international peace and security and need not wait till the "mushroom cloud" appears in the horizon, if there is evidence that Iran has embarked on the manufacture of a nuclear weapon. But Iran says that it has embarked on uranium enrichment for peaceful purposes and it is a legal entitlement under the 1968 NPT.

The Security Council can also resort to the use of force under Chapter VII of the UN Charter, if there is overwhelming evidence of an imminent danger to international peace and security through nuclear proliferation. However, the Security Council should engage in further verification through diplomatic efforts, as such action without cogent evidence, reliable intelligence and the support of the majority of states in the General Assembly can cause tremendous economic dislocation and plunge the world to a war among nations.

At the funeral of Julius Caesar, Mark Anthony referred to the conspirators of Caesar as "honourable men" and if nuclear weapons were available at that time, he would have said that these "honourable men" have killed Caesar to save the world from a nuclear holocaust. On the basis of this broad perspective on UN treaty-implementation and the Iran nuclear issue, it is up to the reader to make an evaluation whether any international action against Iran at the moment is fair and justified.

(The writer is a Council Member of the Universal Peace Federation (UPF) and former UN Legal Expert, Director/BCIS and former Ambassador to Austria and Permanent Representative of Sri Lanka to the IAEA in Vienna. Comments - mendis_law@yahoo.com).

Iraq war lures Sunni recruits from Lebanon
By Robert Fisk in Beirut
Over the mosques of Sidon and Tripoli, they are now trumpeting their 'martyrs' in Iraq - Palestinians and Lebanese who made their last journey from the slums and refugee camps of Lebanon to death in the wastes of the Iraqi war.
One of the most recent Palestinian fighters -- though the Americans apparently have no idea of his name -- was killed in the US air attack on the hide-out of Abu Musab al-Zarqawi, the presumed head of al-Qaeda in Iraq. The death of Saleh Qilawi, who was apparently sharing the house in Baquba with al-Zarqawi, two of Zarqawi's wives, a child and another man when the US jets fired two missiles into the building, was hailed through mosque loudspeakers in the Ein el-Helwe refugee camp in Sidon.

Posters are now appearing on the walls of Tripoli, praising more than 50 'martyrs', all Sunni Muslim Lebanese from a city -- Lebanon's second -- where radical Islamic sermons have become increasingly frequent since the US invasion of Iraq in 2003. In both Tripoli and Ein el-Helwe, posters and banners proclaim the Lebanese people's support for "the heroes of Fallujah", the centre of the Iraqi insurgency in Anbar province which has been the battlefield for American troops and their Arab opponents for more than three years.

Qilawi left Sidon for Iraq a year ago, telephoning his parents regularly. As they 'celebrated' his death -- the families of the Lebanese and Palestinians who are killed fighting US forces claim they have no need to mourn - they received greetings from members of the Isbar al-Ansar movement which the Lebanese authorities claim was behind an Islamist uprising in the mountains of northern Lebanon six years ago.

In the Sidon camp, Darwish Hitti is also 'celebrating' the death of his son Mohamed who --- along with his friend Mohamed Yorshali -- was killed a week ago. They don't know how the two men met their deaths although Mohamed Zaatari, a local reporter, said that the 'mujahedin' had left notes about their enrolment in the 'jihad' and urged their parents not to cry.

It is clear that in both Sidon and Tripoli, local recruiters seek out possible fighters for Iraq. Few make any secret that the would-be martyrs, who are also involved in suicide bombs against American troops, pass through Syria. When the 'Independent' first revealed that suicide bombers and militants were moving from Lebanon to Iraq in their dozens, one family made it clear in an interview that their men folk were "waiting to receive word that it was their turn to go." For Lebanon, these are therefore tense times.

The largest community in the country — the Shiites — feel many common bonds with their fellow Shiites in Iraq and are bitterly distressed at the destruction of mosques and other holy places for which the Americans place the blame on Sunni insurgents. Several leading Shiite prelates in Lebanon are related to their Iraqi opposite numbers. Yet the second largest Muslim community in Lebanon are Sunnis, who are increasingly expressing their support for their Iraqi co-religionists. The Shiites of southern and eastern Lebanon now look at the Mediterranean cities of Tripoli and Sidon with concern bordering on suspicion.

Since the Alawite community which dominates political power in Syria is effectively Shiite -- and the majority of Syrians are Sunni -- it is not difficult to understand the darker nightmares which afflict the people of this region. If the civil conflict in Iraq were to move west, it could open up religious fault lines from Baghdad to Lebanon, a distance of only 500 miles but an awesome prospect for the entire Arab world.
Courtesy The Independent, UK

Victory in defeat for Germans
By Azra Jafferjee from Frankfurt
It was like falling in love: At first cautious, tentative, not expecting much. Then came the rush, the delirium and the absolute confidence that it can only work. And then came that fateful night where it all went wrong, followed by devastation, shock, and a dull realisation that it was actually over.

"The dream is over", screamed the newspapers the morning after Tuesday, the fourth of July (propitious it was not to be), splattered with images of men weeping. Odonkor, Ballack, Podolski, the man on the street -- biting lips, faces hidden in hands, staring vacantly. As the tears flowed, the nation slowly came to terms with what was not to be.

Germany and its football team have come a long way in four short weeks, and with the team's tragic defeat in the last minute of the semi-final, both the team and the country have endeared themselves into the hearts and minds of the world. Amazingly, for the first time in long years, it seems the boundary between the two have become indistinguishable. As one local newspaper remarked, in the past when the German team won a game it was "we have won", when they lost it was "they (the team) have lost". This time it was "we have lost.

Something happened here between Friday July 9 and Tuesday July 4. Germany came to its own in a way unparalleled since the euphoria of reunification 16 years ago. They dared to hope, they dared to be optimistic, they dared to show pride and patriotism, and as Karin, a 55-year-old church worker put it, "wir durfen uns freuen" -"we allowed ourselves to be happy".

After a lead up with not much in the news apart from the sorry state of its young and inexperienced team, which could seem to do not much more than lose game after game, a bad economic picture, the threat of bird flu, supposedly unsafe stadiums and deeply disturbing incidents of racially motivated attacks in areas not far from World Cup venues, gathering energy for a big sporting event was almost too much to ask for.

What played out is of course by now history.
"It's no paradigm shift", says Maria, an aid worker who spent long years abroad, "but the Germans have received a very significant, positive feedback on how the world saw this open and friendly face".

"This is a very important time for us", adds 65-year-old Bernd who sells 'esoteric' books. "We can finally put our Nazi history behind us. Football has offered us this chance". With a survey suggesting that 90% of visitors would recommend Germany as a holiday destination, it's certainly a chance for the tourist industry.

Even the Italians had not much to complain about after the game. Although business was slow at some pizzerias, it has started to pick up again. "The Germans didn't have much appetite for pizza that day," says Mario who runs a pizzeria, grinning mischievously.

At Balducci's an upmarket Italian restaurant, the Italian flag that had been prominently displayed next to the German flag since weeks, was seen tucked away at the back, leaving black, red and gold fluttering on its own.
The flags are still flying. On many a house, office and car, including Police cars, the last vestiges of a newfound pride that the people of this country have come to discover are slow to come off.

Three days on, and as the dust settles on its devastating defeat, the question is, was this all a flash in a pan, or could this mood of optimism and "a happy kind of patriotism" as one German official described it, last beyond this month?
"The old symbols of division like the flag have now become rallying points, and it is a chance for us to come together as a nation," says Jörg, a 40-year-old sculptor. But he disagrees that this is a defining moment in the nation's history. "It is a bubble which comes every two years with a big tournament and although it gives fresh energy it cannot create jobs and bridge the divide between the east and west," he says, referring to the high unemployment especially in the east: one factor for renewed activism by the Far-right Neo-Nazi groups in recent years.

What is, however certain, is that plans by some of these groups to disrupt World Cup events were derailed not just by efficient policing, but equally, if not more so by the infectious optimism that has caught on. Riding on the wave came the 'Say No to Racism' campaign launched by FIFA to coincide with the World Cup. Although it went relatively unnoticed amidst preoccupation with the games, it could be yet another opportunity for the nation and its governors to make use of, in their to-date half-hearted efforts to address deeper problems such as immigration and economic divisions.

As the sizzling temperatures of the past weeks abate with a welcome dose of rain, strangely after Germany's defeat, and hearts and minds cool, one can only wish that the 'mood factor' will persevere beyond the final games this weekend. While much of the old bad news still prevails, many hope that just as its courageous young team managed, the country can also forge ahead with the tough challenges ahead.

And in the end, as in love, it is better to have loved and lost than not at all. Only time will tell if the World Cup of 2006 was more than just fun, festivity and some great football, but instead, for hosts Germany, a defining moment in its recent and not so recent woebegone past.