U.N. Review of Tech Transfers to Iran, North Korea Underscores Need for U.S. Action

Brett Schaefer / September 13, 2012

As reported by Fox News earlier this year, the World Intellectual Property Organization (WIPO) approved the transfer of computers and other equipment to Iran and North Korea—both of which are under sanction by the U.S. and the United Nations—without notifying WIPO member states or the U.N. sanctions committees.

In response, WIPO director general Francis Gurry announced that the organization would establish an “Independent External Review” to investigate and submit its report to WIPO. While director general Gurry clearly sought to minimize the potential for embarrassment by circumscribing the review through its “terms of reference,” the two individuals conducting the review (Stig Edqvist and John P. Barker) went well beyond this guidance. Their findings, published in a report this week, are damning:

• The report concludes that the transfers could have violated U.N. sanctions, depending on how the language adopted by the Security Council was interpreted. The final determination will be made by the U.N. Sanctions Committees.
• While noting that WIPO has implemented procedures as of May 1, 2012, to “require a review of programs for countries subject to UN sanctions,” the experts harshly criticized WIPO’s previous disregard for such procedures and saw “no justification for the previous lack of a policy to check Sanctions Committee Compliance on a systematic basis.”
• Moreover, the report states that much of the transferred equipment is subject to U.S. jurisdiction under U.S. Export Administration Regulations and would have triggered the need for an export license. As a result, the report unambiguously concludes that North Korea and Iran “could not have purchased much of this equipment directly from third-party vendors. These countries could only have gained access to the specific items delivered through an organization that invoked the privileges and immunities protections such as WIPO.”
• WIPO asserts that, as an international organization, it is not subject to national laws. However, the report observes, “Other international organizations have the same privileges and immunities, yet often will take into account national laws on technology transfers to sensitive countries, end-users, and end-uses out of respect for the views of their Member States.”

The experts were clearly astounded by WIPO’s actions:

[W]e simply cannot fathom how WIPO could have convinced itself that most Member States would support the delivery of equipment to countries whose behavior was so egregious it forces the international community to impose embargoes and where the deliveries, if initiated by the recipient countries, would violate a Member State’s laws.… The UN itself declared that Iran and [North Korea] should fall into a heightened category of diligence and review because of their threats to world peace and stability. WIPO, as a UN agency, shares the obligation to support the work of other UN bodies, including the Sanctions Committees.

Based on the review, WIPO’s actions are indefensible, and WIPO should be held accountable. To do this, the U.S. needs to make its own assessment of how these transfers were approved and who is responsible. According to House Committee on Foreign Affairs chairwoman Ileana Ros-Lehtinen (R–FL) and ranking member Howard Berman (D–CA), director general Gurry and WIPO legal counsel Edward Kwakwa have impeded congressional testimony by WIPO witnesses. The U.S. should insist that the witnesses requested by Congress be allowed to testify without restriction.

Moreover, the U.S. should not let stand WIPO’s assertion that U.S. sanctions can be ignored with impunity. The report correctly notes that only the U.S. can “make the determination of whether the UN privileges and immunities ultimately would exempt WIPO from enforcement of U.S. export control laws” and whether those immunities extend to third-party contractors.

A failure by the U.S. to vigorously insist that its export control laws apply to the U.N. and its contractors would, in effect, render them meaningless.