France’s ‘responsibility’ to strenghten sanctions against Iran

On 27 August 2012, French President François Hollande delivered a speech at the 20th French Ambassadors Conference (original French text here). It contains the following passage on the Iranian nuclear issue:

My approach to the Iran crisis is based on the same requirement for collective security.

The Iranian nuclear programme, which has no credible civilian purpose, constitutes a threat to all countries in the region. It’s all the more unacceptable because it’s being carried out by a regime that frequently issues statements – reiterated in recent days – directly calling for the destruction of the State of Israel.

France’s position is clear: it would be unacceptable for Iran to acquire a nuclear weapon. And that country must comply with its international obligations under the NPT as well as the resolutions adopted by the Security Council and the IAEA. The path of dialogue remains open because our goal is to achieve a diplomatic resolution to the crisis, but until Iran answers all the outstanding questions and complies with international law, France has a responsibility to further strengthen the sanctions against the Tehran regime.

This statement, apart from the fact that it is grounded in an allegation (‘no credible civilian purpose’) which has not been to date verified nor affirmed by the body in charge of monitoring compliance with nuclear safeguards under the NPT (i.e. the IAEA), after nearly ten years of intensive verification/inspection activities in Iran, nor established authoritatively by an international court or tribunal, poses a major problem from the point of view of international law, more precisely the body of norms referred to as the ‘law of collective security’ (see e.g. the leading work of Orakhelashvili, and the volume edited by White).

The problem lies in the assertion that ‘France has a responsibility to further strengthen the sanctions against the Tehran regime’.

Additional‘sanctions’ against Iran would necessarily amount to ‘countermeasures’ in the meaning of the 2011 ILC Articles on State responsibility for internationally wrongful acts. As I pointed out in my article ‘Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran’ (SSRN draft available here, also discussed here), the availibility of countermeasures, either taken by one individual country (France), or enacted in the framework of a regional organization (the EU), in situations where the Security Council has already enacted measures (which the UN Member States are mandated to comply with) is at least very doubtful. I referred in my article inter alia to the opinion expressed by professor Pellet during the debates at the ILC on the role of countermeasures in the law of State responsibility. Prof. Pellet held the view that

recourse to the measures provided for in Chapter VII of the Charter was the first essential limitation on the unilateral use of countermeasures. If the Security Council had decided on sanctions, in accordance with Articles 41 and 42 of the Charter, it was hardly likely that States would take no notice of them and continue to carry out measures of their own, just as individual or collective self-defence was allowed in the event of aggression only, according to Article 51,

… until the Security Council has taken measures necessary to maintain international peace and security.

If the Security Council had decided on measures within the meaning of Articles 41 and 42, States were no longer free to decide as they wished on countermeasures of their own.

In my opinion, therefore, France, or even the EU as a whole, cannot invoke any‘responsibility’ to take ‘independent’ countermeasures against Iran while the UN Security Council is and remains seized of the matter, insofar as none of them, unlike the Security Council, can claim to have been granted an enforcement power in the field of international peace and security. That is the reason why the invocation, in the same statement, of the ‘requirement for collective security’ seems quite paradoxal.

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