Dapo Akande Comments on my ESIL Reflections (UPDATED)Posted: January 9, 2013
[UPDATE: There have been alot of very interesting comments posted on this piece by Dapo. I would recommend them to readers.]
My friend Dapo Akande, who is University Lecturer in Public International Law at Oxford University, has kindly provided some commentary on my recent ESIL Reflections regarding NPT Article X(1). You can find his comments over at EJIL: Talk! here. He raises an interesting question concerning how the UN Security Council could address a hypothetical withdrawal by Iran (or any other state party) from the NPT and the CSA. As he says:
[Dan's] second point, relating to the Security Council, might well be correct in its own terms but does not considerwhether the UN SC could impose the same terms on Iran as the NPT and the Safeguards agreement. The council would not need to order Iran to rejoin those treaties, it could just say that Iran has the same obligations as is contained in those treaties. Now, would that be unlawful or ultra vires? When Lebanon was unable to sign the treaty which was to create the Special Tribunal for Lebanon, the SC simply adoped a resolution containing the same text, thus imposing the same treaty terms on Lebanon but this time as an SC resolution, rather than as a treaty obligation. This was upheld by the Special Tribunal for Lebanon. Could the SC not do the same for Iran?
This is a very interesting and useful question to ask. To me, these questions all fit under the general heading of what are the limits of UNSC authority. There’s been a great deal of writing on that topic, by many international law scholars including myself. I typically find myself in the camp of wanting to establish real and fairly tight limitations on what the UNSC can do in terms of imposing new legal obligations on states that are of a lasting character – the kind of obligations that really should be the subject of treatymaking in my view. But the contours of this principle are of course grey, as for example illustrated by the case of Iraq in 1991 and the disarmament obligations imposed on it by the UNSC in Resolution 687. These new obligations were in response to a clear threat to international peace and security (the Iraqi invasion of Kuwait). In my 2009 book I spent two chapters on these questions. One chapter on the general question of the limits of the authority of the UNSC, and in particular applying this analysis to Resolution 1540. And then a second chapter basically arguing that the jurisdiction of the International Court of Justice to incidentally review the legality of UNSC decisions should be better understood and more actively utilized. That would be the best way to bring some clarity to this grey legal question in my view.