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.

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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).