The Caspian Sea Legal Regime, Pipeline Diplomacy, and the Prospects for Iran\u27s Isolation from the Oil and Gas Frenzy

The signing of the deal of the century in Bahu creating one of the first major Caspian energy consortiums between Azerbaijan and western oil companies signaled the beginning of a new era in world energy politics. The discovery of potentially huge oil and gas reserves in the newly-independent states of Azerbaijan, Kazakhstan, and Turkmenistan opened the door for western oil companies rushing to gain a competitive foothold in the new energy market. For Asia and the West this discovery provides a golden opportunity to ensure market stability through diversification of energy export routes. For the United States and its political allies, however, the Caspian region holds the key to the realization of a long-term strategic agenda. By establishing its presence in the region, Washington could: 1) weaken the influence of the Persian Gulf states and prevent the Organization of Petroleum Exporting Countries (OPEC) from monopolizing the production and distribution of world energy reserves; 2) create a controlled environment ensuring that the flow of petro-dollars will lead to political and economic reform in Central Asia and the Caucuses; and 3) undermine the historical dominance of the Russian Federation and the Islamic Republic of Iran not only in the Caspian Sea region but in Eurasia and Central Asia. The political and economic changes brought about by the collapse of the Soviet Union and the reemergence of the Caspian region as a focal point of geopolitical importance have broad implications for the new government in Tehran. On the one hand Iran clearly finds itself in a tough and unfamiliar neighborhood. It seems to have lost the game of political and cultural influence over the newly-independent states to Turkey, which claims common ethnic and linguistic bonds with its Turkic brethren in the east. It has failed to play the religious card effectively--both Kazakhstan and Turkmenistan and even Shi\u27ite Azerbaijan have looked to secular Turkey as the model of governance and reform. On the economic front the discovery of vast reserves in the Caspian has done little to increase the prospects for Iran\u27s share of the world hydrocarbon market--relatively small oil and gas capacity has been found in the deep waters off Iran\u27s coastline. Finally, Washington has actively engaged in a political and economic campaign to isolate Iran by allying itself with Turkey and the newly-independent states and continues to discourage the establishment of economic relations with Tehran. In this regard the imposition of unilateral trade sanctions on Tehran, the most important of which seeks to disrupt the country\u27s economy by discouraging foreign involvement in the development of its oil and gas sector, have far-reaching legal implications for Iran\u27s involvement in the Caspian energy scene

Reclaiming Establishment: Identity and the ‘Religious Equality Problem’

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary\u27s religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson\u27s holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment Clause by prohibiting restrictions on the use of public funds for core religious purposes anytime government provides a generally available public benefit. They also undermine a unique architectural feature of the Religion Clauses which considers “religion”--or religious conduct, to be more exact--constitutionally special and commands a requisite degree of separation between church and state. This Article employs a conceptual framework that reimagines religious freedom\u27s key components as constitutionally distinguishable from one another. It argues that religious identity implicates an equality right that is legally distinct-- and severable--from religious belief and practice (e.g., free exercise) which trigger fundamental rights interests. An explicit acknowledgment of a “right to religious identity” that requires full substantive equality between religious and nonreligious entities only when they engage in secular conduct can bring much needed clarity, and stability, to an emerging religious equality jurisprudence that is increasingly at odds with settled constitutional principles. This right should be housed in the Establishment Clause because its equality principle prohibits government from discriminating between religious and secular identities (and among religious denominations), while its separation principle precludes it from directly benefiting religious exercise. Ultimately, a reconceptualization of religious freedom doctrine informed by the distinctive features of identity can help rectify the doctrinal imbalance between the Religion Clauses resulting from Free Exercise “bloat” and empower the Establishment Clause to reclaim its rightful place in the constitutional hierarchy

Outlier: Iran and Its Use of the Death Penalty

For several years now the right to life has been under heavy assault in the Islamic Republic of Iran. The country has followed a familiar but troubling pattern regarding the use of the death penalty. It has consistently ranked second in the world in the number of executions carried out (behind China), and first in executions per capita. More recently, the upward trend in executions that began in 2010-11 has reached alarming levels not seen in more than two decades. In 2015, alone, human rights organisations tracking the number of executions in Iran documented at least 966 executions, with over 65 percent of these executions related to non-violent drug crimes. In that same year, Saudi Arabia, Pakistan and Iran accounted for around 90 percent of all executions in the world (excluding China), helping reverse a global trend that had seen a constant reduction of death penalty cases worldwide during the past 25 years. United Nations rights bodies have repeatedly called on authorities in Iran to curb their use of the death penalty, and urged officials to institute a moratorium on the death penalty. The latest such appeal came from UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in April 2016, when he called on Iranian authorities to institute a moratorium on the use of the death penalty altogether. Commissioner Zeid’s request, like many before him, centered on two particularly egregious aspects of the death penalty in Iran: 1) the execution of juvenile offenders, or individuals under 18 years of age when they committed an offense; and 2) use of the death penalty for crimes not considered “most serious.” Both types of executions are strictly prohibited under international law. Iran’s continuing and blatant disregard for the right to life of juvenile and non-violent drug offenders, combined with the sharp rise in the number of executions in recent years, makes it, in many ways, an international outlier when it comes to use of the death penalty. Behind the harrowing numbers are the countless faces and stories of the “other” victims, only a portion of which have been documented by human rights groups. The number of executions in Iran began to rise noticeably around 2010-11 during the second term of former President Mahmoud Ahmadinejad. This rise coincided with significant changes to the country’s Anti-Narcotics Law which expanded the list of drug-related crimes that carried the death penalty to include non-violent offenses, and severely limited the right of appeal for certain death sentences. The numbers have been equally troubling for juvenile offenders on death row, with at least 12 reportedly hanged in 2014-15—the highest such number at any time during the past five years. Today, Iran is the number one executor of juvenile offenders despite recent amendments made to its penal code to address this issue, and remains one of only a handful of countries that still carries out such executions

Reclaiming Establishment: Identity and the ‘Religious Equality Problem’

Since at least 2017, the Court has implicitly recognized a right of equal access to generally available public benefits based on the beneficiary\u27s religious identity or status. In Carson v. Makin (2022), the Court went a step further and, for the first time, concluded that the “status-use distinction lacks a meaningful application” in both theory and practice. It then held that restrictions on the use of public benefits for sacral purposes amount to religious discrimination because they impose substantial burdens on free exercise rights. Carson\u27s holding, and the rationale underlying it, contravene settled case law and effectively gut the Establishment Clause by prohibiting restrictions on the use of public funds for core religious purposes anytime government provides a generally available public benefit. They also undermine a unique architectural feature of the Religion Clauses which considers “religion”--or religious conduct, to be more exact--constitutionally special and commands a requisite degree of separation between church and state. This Article employs a conceptual framework that reimagines religious freedom\u27s key components as constitutionally distinguishable from one another. It argues that religious identity implicates an equality right that is legally distinct-- and severable--from religious belief and practice (e.g., free exercise) which trigger fundamental rights interests. An explicit acknowledgment of a “right to religious identity” that requires full substantive equality between religious and nonreligious entities only when they engage in secular conduct can bring much needed clarity, and stability, to an emerging religious equality jurisprudence that is increasingly at odds with settled constitutional principles. This right should be housed in the Establishment Clause because its equality principle prohibits government from discriminating between religious and secular identities (and among religious denominations), while its separation principle precludes it from directly benefiting religious exercise. Ultimately, a reconceptualization of religious freedom doctrine informed by the distinctive features of identity can help rectify the doctrinal imbalance between the Religion Clauses resulting from Free Exercise “bloat” and empower the Establishment Clause to reclaim its rightful place in the constitutional hierarchy

Outlier: Iran and Its Use of the Death Penalty

For several years now the right to life has been under heavy assault in the Islamic Republic of Iran. The country has followed a familiar but troubling pattern regarding the use of the death penalty. It has consistently ranked second in the world in the number of executions carried out (behind China), and first in executions per capita. More recently, the upward trend in executions that began in 2010-11 has reached alarming levels not seen in more than two decades. In 2015, alone, human rights organisations tracking the number of executions in Iran documented at least 966 executions, with over 65 percent of these executions related to non-violent drug crimes. In that same year, Saudi Arabia, Pakistan and Iran accounted for around 90 percent of all executions in the world (excluding China), helping reverse a global trend that had seen a constant reduction of death penalty cases worldwide during the past 25 years. United Nations rights bodies have repeatedly called on authorities in Iran to curb their use of the death penalty, and urged officials to institute a moratorium on the death penalty. The latest such appeal came from UN High Commissioner for Human Rights, Zeid Ra’ad Al Hussein, in April 2016, when he called on Iranian authorities to institute a moratorium on the use of the death penalty altogether. Commissioner Zeid’s request, like many before him, centered on two particularly egregious aspects of the death penalty in Iran: 1) the execution of juvenile offenders, or individuals under 18 years of age when they committed an offense; and 2) use of the death penalty for crimes not considered “most serious.” Both types of executions are strictly prohibited under international law. Iran’s continuing and blatant disregard for the right to life of juvenile and non-violent drug offenders, combined with the sharp rise in the number of executions in recent years, makes it, in many ways, an international outlier when it comes to use of the death penalty. Behind the harrowing numbers are the countless faces and stories of the “other” victims, only a portion of which have been documented by human rights groups. The number of executions in Iran began to rise noticeably around 2010-11 during the second term of former President Mahmoud Ahmadinejad. This rise coincided with significant changes to the country’s Anti-Narcotics Law which expanded the list of drug-related crimes that carried the death penalty to include non-violent offenses, and severely limited the right of appeal for certain death sentences. The numbers have been equally troubling for juvenile offenders on death row, with at least 12 reportedly hanged in 2014-15—the highest such number at any time during the past five years. Today, Iran is the number one executor of juvenile offenders despite recent amendments made to its penal code to address this issue, and remains one of only a handful of countries that still carries out such executions