Should False Assumptions about Iran´s Nuclear Program be Reviewed by EU Courts?

I’m very pleased to host a guest post by Dr. Katariina Simonen, who is a Senior Researcher on the Faculty of Law at the University of Helsinki (see fuller bio below). Dr. Simonen writes in this post on a very interesting question of European Union law. Hopefully some of our other contributors and readers with a background in EU law can engage with her analysis.

——————————————-

Should False Assumptions about Iran´s Nuclear Program be Reviewed by EU Courts?

By: Katariina Simonen

While reading the recent General Court (EU) Judgment in Case T-564/12, Ministry of Energy of Iran versus the Council of the European Union, regarding the annulment of certain restrictive measures imposed against the applicant, the Finnish version of the Judgment caught my attention since paragraph two of the Judgment speaks of sanctions imposed in order to apply pressure to Iran to end nuclear weapons related proliferation sensitive activities and the development of nuclear weapon delivery systems. This linguistic glitch, which was polished in the English version to cover “proliferation-sensitive nuclear activities” and “the development of nuclear weapon delivery systems”, made me realize that the EU restrictive measures may, in fact, be based to a great extent on the assumption of Iran´s nuclear weapons program and related activities.

However, such an assumption is not correct, at least after 2003. We know this from the IAEA, which, in December 2015, released its report on Past and Present Outstanding Issues regarding Iran´s Nuclear Programme which was followed by the adoption by the Board of Governors of a resolution on 15 December 2015, in which Director General Amano explicitly summarized the main findings of his report:

“The Agency assesses that a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003 as a coordinated effort, and some activities took place after 2003.

The Agency also assesses that these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities.

The Agency has no credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009. Nor has the Agency found any credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear programme.”

The report closes Iran´s PMD file, allowing the JCPOA to go forward. Even so, the IAEA was heavily criticized by specialists for failures to address past allegations and its intelligence gathering proceedings relating to its 2011 report. Robert Kelley has just addressed the issue in LobeLog here, Paul Jenkins here and the IAEA´s former Director General El Baradei here. Also, there is a good article by Pierre Goldschmidt here regarding the IAEA´s lack to address properly Iran´s non-compliance issues.

These references serve to point to my question: if the EU restrictive measures have been imposed explicitly on the factual assumption that a nuclear weapons program exists in Iran, and since we now know from the IAEA that that such assumption is not correct, should not the European Courts acknowledge somehow this fact when reviewing EU restrictive measures against Iran?

I believe the answer is positive. I will address the issue shortly by sketching the outlines for the authority of the EU Judicature so to act.

First, let us remember that there is no automatism in the implementation of diverse UNSC resolutions into the community legal system. Since the seminal Kadi –saga the European Courts have reserved themselves the right of independent legal review of validity of any community measure, and this applies to the UNSC resolutions, too. See Conor Gearty´s recent article on this point here.

In Kadi I (Joined Cases C-402/05 P and C-415/05 P), the European Court of Justice (ECJ) considered that the review of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system, which was not to be prejudiced by an international agreement – namely, in the case in question, the Charter of the United Nations (para. 316).  The ECJ issued its judgement in the Grand Chamber formation, with the clear intention of delivering a judgment establishing certain principles.

The ECJ regarded that the General Court´s reasoning in first instance (Case T-306/01 and Case T-315/01) contained an error of law because the General Court had considered that short of extreme situation of a violation of jus cogens, the Security Council could do what it wanted. Already the Advocate General Maduro had disagreed with the General Court dismissing EU´s own human rights and rule-of-law traditions.

And the ECJ agreed with Maduro. It stated clearly that the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like (then)) Regulation No. 881/2002, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations (paras. 326-327). This case law was now clear in that European Union measures implementing restrictive measures decided at international level enjoy no immunity from jurisdiction. The same conclusion was confirmed, word for word, in later judgments, see Hassan and Ayadi;  Bank Melli (2011). The ECJ annulled the regulation on the basis of violations to Mr. Kadi´s rights of the defence, in particular the right to be heard and the right to effective judicial review (paras. 345-353).

The Kadi –saga did not end there. The annulled regulation was kept in force for three months in which the Council would have to rectify the defaults identified. The removal of control was never considered, and Kadi´s listing was confirmed by a new community regulation on 28 November 2008. A new legal round had to be started by Kadi to get annulled those community measures which implemented his listing  by the UN Sanctions Committee (General Court T-85/09; ECJ Joined Cases C-584/10 P, C-593/10 P and C-595/10 P).

Second, the new round of Kadi judgments makes it even more clear what the European Judicature should pay attention to when evaluating restrictive measures and their compatibility with the EU legal order. The Court´s requirement for full and effective judicial review is tied to Article 47 of the Charter of Fundamental Rights of the European Union, and it requires, inter alia, that the Courts ensure that the measure in question, which affects the person or entity concerned individually, is adopted on a sufficiently solid factual basis (Fulmen and Mahmoudian). The General Court specified in Kadi II that the full judicial review will have to be conducted at the very least, so long as the re-examination procedures operated by the UN Sanctions Committee clearly fail to offer guarantees of effective judicial protection required in European level (paras. 126-127). The call for the full and rigorous judicial review gained more strength from -often- the draconian character of fund freezing measures and the long-lasting effect on fundamental rights of the persons concerned (para. 151).

Having said all this, it has to be also bore in mind that since Kadi I the ECJ has been was careful to underline the primary responsibility of the Security Council for the maintenance of international peace and security and its task to determine what constitutes a threat to international peace and security and to take the necessary measures. But the ECJ has thought it proper to underline, also, that such Security Council work is to be carried out in accordance with the purposes and principles of the United Nations, including respect for human rights.

Third, general legal principles play also a considerable role in the European legal order.  According to the principle of legal certainty, which the European Court of justice has deemed a general principle of European legal order since the 1960s, laws which will have legal effect in the European Union must have a proper legal basis. Hence, it is not at all unusual to contest a legal basis of a community act (e.g. C-370/12 Pringle). Since Kadi, the EU Courts have acknowledged that this can mean also a simultaneous inquiry in the work done by the Security Council, especially when previous defaults have been detected, like in the work of the Sanctions´ Committees. Another principle, which has high relevance for our initial question regarding the eventual review of EU restrictive measures, is the principle of proportionality, which was put into effect, for instance, in Bank Melli (2013). The General Court emphasized that the by virtue of principle of proportionality, which is one of the general principles of EU law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures should be appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question. The lack of proportionality was also echoed by the Courts in Kadi, when the Courts paid attention to the totality of consequences for Kadi´s rights ensuing from his initial listing already in 2001.

Thus, the legal basis of community restrictive measures can be contested as part of normal judicial procedure, even if the EU community measures implement previous UNSC resolutions. In the case of Iran, greater vigilance by the EU Courts can be recommended regarding factual assumptions on Iran´s nuclear program, which serve as a basis of EU restrictive measures. The EU Court review should take properly into account the latest IAEA´s findings on Iran and its nuclear activities when considering if there is a sufficiently solid factual basis for sanctioning the person or entity in the first place. Furthermore, if contested restrictive measures include explicit references to highly contested documents, like the IAEA 2011 report, such vigilance is even more imperative from the point of view of legal certainty. It may be that the preceding wrong by Iran is lacking in the light of the IAEA´s December 2015 findings, which means that the alleged legal basis of diverse EU restrictive measures against Iran on non-proliferation grounds may have to be seriously reconsidered.

Katariina Simonen, LL.D. in international law, is a Senior Researcher at the Faculty of Law, University of Helsinki and Member of the Pugwash Executive Council. She has held diverse legal positions in the European Union (Court of Justice, European Parliament). She is currently on leave of absence from her position as a Senior Advisor for Research at the Finnish Ministry of Defense, working on her book on just warfare conceptions in 12. Shi´a Islam. Her publications focus on diverse aspects of justice in international law, and her latest monograph is The State versus the Individual. The Unresolved Dilemma of Humanitarian Intervention (Brill 2011).

Rauf and Kelley on the PMD Report and the IAEA Intel Problem

Tariq Rauf and Bob Kelley’s new SIPRI report providing an analysis of the IAEA PMD report is a must read.  The two former IAEA insiders give a rigorous and critical review of the technical findings of the IAEA in both the original 2011 PMD report, and now in the final 2015 PMD report. You won’t find this kind of serious and independent review from the normal DC think tank crowd.

Rauf and Kelley further give some overall critical observations about culture and and administrative paradigm clashes in the IAEA, and then particularly focus on a problem that I and others have pointed to as well over the years – the increased recent reliance by the IAEA secretariat on intelligence information provided to it by third party member states.  Here’s their conclusion and recommendations:

The supply and use of intelligence information is a sensitive yet complex issue as noted in the excerpt from an IAEA BoG Governor cited in an earlier section above. The IAEA cannot serve as a feedback loop to intelligence agencies on the veracity of information provided by them through safeguards inspections and assessments. Nor can or should the IAEA rely on such information without confirming its authenticity. This obviously leaves the IAEA in a difficult position as is clearly evidenced by the Iran PMD file where the Agency seems to have been caught short.

Recommendations

The authors recommend that the BoG put in place a methodology for the acceptance and use of intelligence information drawing from the practices of the Organization for the Prohibition of Chemical Weapons (OPCW) and the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO). In these two organizations, allegations of non-compliance can be raised by any State Party which provides its information to the Director General, who in turn shares it with the Executive Council. The Executive Council is convened; the Accuser State puts forward its case on allegations of non-compliance or suspicious activities in another State along with supporting information/evidence. The Accused State has the opportunity to present its defence. Following deliberations, the Executive Council can stop a challenge inspection in the case of the OPCW or authorize an on-site inspection in the case of the CTBTO. Such a practice could serve the IAEA well – the Accuser State to provide information to the IAEA Director General, who then shares it with the BoG, the Board convenes to examine the in formation presented by both the Accuser and Accused States and then to decide on the way forward preferably on the basis of consensus but by a vote if necessary. In fact, the JCPOA contains a somewhat similar provision for the Joint Commission in paragraph 36 on dispute resolution, and as noted previously in 1993, the IAEA Secretariat presented satellite imagery on DPRK from the U.S. to the Board of Governors.

It is essential that the IAEA BoG expeditiously comes up with a mechanism governing the provision and handling of intelligence information to the IAEA Secretariat. There is great potential for misuse of such information and of suborning the independence of the Agency in the absence of such a mechanism, as abundantly demonstrated by the cases of Iraq, Iran and Syria in recent time.

Technical and Diplomatic Analysis of the IAEA PMD Report

I wanted to follow up about the new IAEA PMD report by pointing to a couple of very good analytical pieces that have been written about it from, respectively, technical and diplomatic perspectives.  Both are at Lobelog:

Robert Kelley’s technical piece here,

and Peter Jenkins’ diplomatic/political piece here.

I highly recommend both. They are a breath of fresh air compared to most of the think tank commentary going on right now.

I really try to stay away from personally commenting on technical questions that come up in the nuclear nonproliferation area.  I try to be very careful in recognizing that I am simply not qualified to provide my own original analysis on such technical questions.  This is precisely the kind of self-awareness that I don’t see in far too many members of the arms control think tank community who, with either no or thin legal education qualifications, have zero qualms about confidently asserting their own original analysis of legal questions.

In that vein of prudential personal reserve, I will not comment at length about Jeffrey Lewis’ new piece over at Foreign Policy, in which he interprets the IAEA PMD report as having made

a straightforward assertion that Iran attempted to build a nuclear weapon prior to 2003.

But let’s do remember what the report actually concluded:

The Agency assesses that a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003 as a coordinated effort, and some activities took place after 2003. The Agency also assesses that these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities. The Agency has no credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009.

The Agency has found no credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear programme.

Again, from a non-technical-specialist point of view, it seems to me that Lewis is overstating the case.  I don’t see that the PMD report findings substantiate an assertion that, prior to 2003, Iran was in fact attempting to build a nuclear weapon – as if there was a full blown Iranian Manhattan Project going on.

It seems to me that a more reasonable and responsible interpretation of the technical findings of the PMD report would be that Iran was, prior to that date, engaging in a coordinated effort to gain the technical capability necessary to build a nuclear bomb, should the political decision at some point be made to do so.  Again, the report says that the agency found “no credible indications of the diversion of nuclear material” to this capacity building R&D program.  So they apparently weren’t actually experimenting with nuclear material at any point.  And the report further says that “these activities did not advance beyond feasibility and scientific studies.”  Again, this doesn’t seem to support the identification of an intent to in fact manufacture, or at least attempt to manufacture, a nuclear weapon.  It seems to me that this identification is an unwarranted assumption, in a case where other intentions are just as persuasively indicated.

That’s all I’ll say. Perhaps technical specialist types can chime in in the comments section. I do think, though, that it is important to be as clear as we can be about what the PMD report actually says, and what we should understand about Iran’s past weaponization program. I’ll mostly leave it to the likes of Bob Kelley and other actually qualified people to provide that interpretation.  But Lewis’ assertion struck me as particularly excessive and unsupported by what the report actually says.

The JCPOA and the Broader Conclusion

I wanted to note a new piece up at Arms Control Wonk by Andreas Persbo. Andreas is an old colleague and we have collegially crossed swords many times over the years.

I wanted in that same spirit to make a few observations about his most recent piece, in which he also cites a piece by Mark Hibbs on the same subject.

What I wanted to make sure is clear to everyone is that the JCPOA at no point commits Iran to strive towards or to achieve the IAEA’s determination of a “broader conclusion that all nuclear material in Iran remain in peaceful activities.”  Nor does the JCPOA at any point make the granting of such a broader conclusion by the IAEA a condition for the fulfillment of any commitment either by Iran or by any other party to the JCPOA. This includes the lifting of sanctions by the Security Council and by the U.S. and E.U.

The broader conclusion is sometimes mentioned in the JCPOA schedule as an alternative criterion, for example here:

The EU will terminate all provisions of the EU Regulation implementing all EU proliferation-related sanctions, including related designations, 8 years after Adoption Day or when the IAEA has reached the Broader Conclusion that all nuclear material in Iran remains in peaceful activities, whichever is earlier.

But achieving this standard of a broader conclusion being granted by the IAEA, is not incumbent upon Iran under the JCPOA, either now or at any time in the future. Nor indeed is it legally incumbent upon any state, including Iran, and including those states who are party to both an INFCIRC/153 CSA and an INFCIRC/540 Additional Protocol.

According to the 2014 IAEA Safeguards Implementation Report, there are currently 53 states that are party to both a CSA and an AP, and which have not received a broader conclusion from the IAEA (see pg. 23 of the report). Not having received a broader conclusion is not itself an indication of noncompliance with a safeguarded state’s safeguards obligations.

The only legal obligations which safeguarded states have are expressed in the safeguards treaties to which they are parties. And the central legal obligation of any safeguarded state, along with the exclusive purpose for the application of IAEA safeguards, is expressed in Articles I & II of the CSA as follows:

 Article I

The Government of ___ undertakes, pursuant to paragraph 1 of Article III of the Treaty, to accept safeguards, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

Article II

The Agency shall have the right and the obligation to ensure that safeguards will be applied, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within the territory of ___, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.

IAEA safeguards are applied “for the exclusive purpose of verifying that [safeguardable nuclear material in peaceful uses] is not diverted to nuclear weapons or other nuclear explosive devices.”  That is the only legal mandate that the IAEA has pursuant to safeguards treaties. And do not be confused – this central legal obligation on the safeguarded state, and this exclusive purpose for the application of IAEA safeguards, does not change when a state supplements its CSA with an Additional Protocol.  The AP does add discrete legal obligations for the safeguarded state with regard to declaration and access, and adds to the IAEA’s legal authority to investigate and assess the question of whether there are undeclared nuclear materials or related facilities on the territory of the safeguarded state.  But the AP does not change the central legal obligation of the state, nor the exclusive purpose for the application of IAEA safeguards, which are expressed in Articles I & II of the CSA.  The Additional Protocol is, after all, simply an attachment to the CSA, and preserves its core principles.

The idea of the IAEA making a broader conclusion that all nuclear material in a safeguarded state remain in peaceful activities, as a safeguards implementation standard, is a completely sui generis creation of IAEA institutional policy, and does not reflect an actual legal obligation of safeguarded states, whether they are party to the AP or not.  You will not find this standard expressed in the text of either the CSA or the AP.

To have a broader conclusion made about a safeguarded state’s nuclear program is certainly a laudable goal for the state, but it is not a legal obligation for the state. And for Iran, it plays no necessary role in the implementation of the JCPOA.

I just wanted to be clear on this point, because both Persbo and Hibbs don’t mention this fact, and seem to write about the broader conclusion, as many other observers do, as if it is something that Iran has to achieve under the JCPOA. It’s a nice goal, but it’s not a requirement either under the JCPOA, or for that matter under safeguards law.

IAEA PMD REPORT OUT. Official Copy and Initial Legal Observations

Here it is, folks:

IAEA PMD REPORT OFFICIA

I’m still reading over it myself, but here’s the punchline from the Summary section:

The Agency assesses that a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003 as a coordinated effort, and some activities took place after 2003. The Agency also assesses that these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities. The Agency has no credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009.

The Agency has found no credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear programme.

I’ll have more to say on this in the coming days, and will try to get some technical folks to do guest posts. But my first reaction from a legal perspective is:

1. The IAEA has in effect now given its opinion that Iran has not violated NPT Article II through any of the alleged PMD activities, because none of the assessed activities can be said to rise to the prohibited level of the manufacture or other acquisition of a nuclear explosive device.

2. Since the IAEA has now assessed that none of the alleged PMD activities involved the diversion of nuclear material from peaceful to military uses, it has in effect determined that none of these activities constituted a violation of Iran’s safeguards obligations.  As Article 1 of Iran’s comprehensive safeguards agreement makes explicit, the IAEA’s safeguards activities in Iran are implemented “for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices.”

3. This second subject, regarding the diversion of nuclear material from peaceful to military uses, is in fact the only subject that the IAEA had any legal authority to investigate and assess.