ESIL Reflections on NPT Withdrawal (UPDATED)
Posted: December 23, 2012 Filed under: Nuclear 10 CommentsI wanted to pass along that I’ve just recently published a two-part consideration of the legal meaning and application of Article X(1) of the NPT. Article X(1) is the withdrawal provision in the NPT. It states:
Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.
The pieces were published as European Society of International Law Reflections. You can find them here and here. ESIL Reflections are peer-reviewed, online publications, which are meant to be longer than a standard blog post, but shorter than a standard law journal article. They are a helpful additional online medium for publishing quality international legal scholarship.
Arms Control Law 
Dear Mr. Joyner,
I could not find Part 2. Is it forthcoming, or just my negligence?
Sincerely.
Hi, yes it is forthcoming. I actually thought they’d be published at the same time, but the other one should be up soon. I’ll post when it is. Thanks.
I don’t think it will ever matter – other than a matter of correctness, which always does matter – if they can or can’t do it legally. If they do it, they’ll get bombed for sure…
However, I don’t see the Supreme Leader doing it in any event. First, because he knows it will just make it more likely Iran will be attacked, and second, because I think he wants Iran perceived as being part of the international community and therefore he is prepared to adhere to treaties Iran has signed even if it really doesn’t bring them anything but abuse. I could be wrong, however.
I think the one reason he might pull out of the NPT is if he becomes convinced that the IAEA inspectors are spies for the US, a la some of the UNSCOM inspectors in Iraq. Given that Iran has already accused the IAEA of leaking names of their nuclear scientists who have subsequently been assassinated, I suspect this could well occur.
It is important to point out that according to the US interpretation of Article X, the NPT ceased to be effective and binding once a war broke out, and so for example the US could then legally transfer nuclear weapons to non-nuclear armed states who were NATO allies. This was a rather glaring loophole in Art X, since it essentially means you can get out of the NPT by starting a war.
FYI — John Bolton once let slip that the Bush admin would have liked to get Iran to pull out of the NPT. Of course, Bolton is also a raving lunatic who said that international law was all just about limiting US power (A view that apparently qualified him to be the US representative to the UNSC.)
Interesting article by Kaveh Afrasiabi on legal challenges to the EU sanctions on Iran:
The Case For Legal Challenge of EU’s Sanctions on Iran
http://www.campaigniran.org/casmii/index.php?q=node/13095
I’d like Professor Joyner to comment if he would.
Hi Richard,
I did look over the piece by Afrasiabi and I think he’s essentially correct. ACL’s own Pierre Dupont has made similar arguments in much more detail in an article he published in the Journal of Conflict and Security Law. You can see his link to the SSRN version of this paper at this post:
https://armscontrollaw.com/2012/09/03/frances-responsibility-to-strenghten-sanctions-against-iran/
The question I have at this point is who would bring the case to the ECJ? I personally don’t foresee any of the EU members states bringing such a claim against the EU, or against one of the other EU members states, though I could be wrong about this. I took EU law in law school, but its been a long time. Could anyone else chime in on whether a case like this could be brought against the EU by non-state actors, including individuals, before the ECJ?
Is interesting to see how NYTimes does not report Iran offer to stop enrichment:
http://www.iranaffairs.com/iran_affairs/2012/12/the-new-york-times-plays-dumb-about-irans-20-enrichment.html
Professor Joyner, looks like Kaveh Afrasiabi has already answered your question in his piece:
Hypothetically speaking, an Iranian challenge to the EU Iran sanctions can take two interrelated forms. First, it can appear in the form of petitions for relief filed in the ECJ on behalf of specific individuals and or entities designated on the sanctions list. Much like the applicants in the Kadi case, these individuals and entities, can seek relief from the unlawful seizure (or attempted seizure) of their assets and property in pursuance of certain UN Security Council resolutions that are fundamentally inadequate in terms of protection of their rights, particularly with respect to “de-listing” procedures.
Second, even the government of Islamic Republic of Iran can mount a legal challenge that would focus on the UN Security Council resolutions’ deprivation of the “inalienable right” of Iran and Iranians to peaceful nuclear energy and technology, including a nuclear fuel cycle, which is permitted under the articles of Non-Proliferation Treaty (NPT)…”
Yet, it appears in your writings you have argued that unilateral sanctions are legal. So who is right you or Afrasiabi, I like to know please?
Hi Farokh, I have actually changed my mind about this issue. I now agree with Pierre Dupont and his analysis in his paper which you can find cited to at https://armscontrollaw.com/2012/09/03/frances-responsibility-to-strenghten-sanctions-against-iran/
I think Pierre is right that the unilateral sanctions by the US and the EU are illegal.
Following up on Richard’s points above about Iran leaving NPT, I recall that over at the Arms Control Wonk a couple of months ago an interesting point was made that IAEA has inspectors in Iran 24/7/365. These inspectors act as Iran’s early warning system of an Israeli attack.
The idea is that Israel/US won’t attack Iran without giving IAEA time to get their people out of harm’s way. If those IAEA people do not get out of Iran before the bombs drop, they will likely be there permanently in one form or another. OTOH, if Amano suddenly starts pulling inspectors out, the Iranians will know that trouble can’t be far away.
The thought is a good one. As Israel [non-NPT] pushes the US to push the IAEA to go beyond its mandate in Iran and inspect every inch of the county, one would think Iran would just opt out of the treaty. But having the inspectors there as mine-canaries might be worth the hassles.