Compliance with nonproliferation treaties – the case of Iran revisitedPosted: June 25, 2013 Filed under: Nuclear 1 Comment
This is to draw your attention on a piece on Iran’s (non-)compliance with its nonproliferation obligations that I have just posted on Ejil:Talk! It draws on my recent article on the same topic, a draft of which is available on SSRN, and which will appear in the forthcoming issue of the Journal of Conflict and Security Law.
Here is the abstract of the article:
The controversy over the Iranian nuclear programme is probably one of most sensitive contemporary instances of a situation involving legal issues related to compliance and enforcement of non-proliferation treaty obligations. The allegations put forward against Iran in this context are rarely formulated or substantiated in legal terms, nor grounded in a clearly identifiable legal basis or framework. This article aims at the identification of the specific international obligations that Iran would have breached or failed to comply with, whether contained in the NPT or in other non-proliferation agreements, and at the evaluation of the criteria or standards under which the occurrence of a failure or a breach of treaty commitments by Iran is to be assessed. It begins with an overview of the instruments comprising the safeguards system established pursuant to the NPT and monitored by the IAEA, then provides an account of the treatment by the IAEA of the Iranian nuclear program since 2002, which led the IAEA to declare that Iran was in non-compliance with its safeguards agreement, before assessing the IAEA’s findings, in light of relevant rules pertaining to both general international law and the NPT/IAEA legal framework for nuclear safeguards as lex specialis.
Your comments are welcome!
Thanks very much for this important paper — there has been very little work done on the legal basis (if any) of the IAEA’s (and UNSC’s actions).
I quote some key parts which caught my eye in the draft of your article:
“The situation regarding the Iranian nuclear programme is thus highly politicized and sensitive, and is given wide publicity and media coverage; however, the allegations put forward against Iran are rarely formulated or substantiated in legal terms, nor grounded in a clearly identifiable legal basis or framework. Even when expressed by heads of States or governments, or contained in statements issued by foreign ministries or international organizations, they remain frequently vague and imprecise in terms of content of the obligations allegedly breached by Iran, including with respect to the legal qualification of the breach, do not usually mention ‘corrective’ or ‘confidence-building’ steps undertaken by the Iranian side, and are not supported by conclusive evidence.
These statements are general in nature, and formulated in such a way as to shift the burden of proof on Iran.20 This renders the task of the international lawyer quite difficult. One example is the December 2011 meeting of the Council of the European Union, which decided, in addition to existing sanctions, to impose a comprehensive ban on oil imports from Iran as well as the freezing of assets of the Iranian Central Bank. The conclusions of the meeting only contain, as a legal basis for these additional sanctions, a reference to a „grave concern posed by Iran‟s continued refusal to comply with its international obligations and to fully co-operate with the IAEA‟, without further elaboration.21”
“While as a rule, sanctions decided by the Security Council are binding on UN Member States,12 subject to their conformity with the UN Charter13, several States (mainly, but not only, the United States14 and the member States of the European Union15) have deemed themselves authorized to adopt „unilateral‟ sanctions, many of them going beyond those mandated or authorized by the Security Council. These measures qualify as countermeasures rather than as retorsion, since they go beyond mere expressions of disapproval and involve the suspension of the performance of international legal obligations otherwise owed to Iran16 and as such, given their feature and their considerable extent, raise serious doubts regarding their lawfulness under the law of international responsibility.17
Another grave consequence of the concerns expressed by the IAEA and the allegations of several countries over a possible military dimension of the Iranian nuclear program, lies in the fact that, even if they have not been (to date) corroborated by a finding by the competent watchdog (i.e. the IAEA) of diversion of nuclear material towards military purposes, they have allowed some States to threaten Iran expressly or tacitly, to use force against its territory and particularly against its declared nuclear facilities, in a preventive manner.18 It is widely considered that such action would be a clear violation of the prohibition on the use of force found in the UN Charter, as well as a violation of several norms of international humanitarian law.”