Iran’s Ballistic Missile Launches Do Not Violate UN Security Council Resolutions

Iran has on several occasions lately conducted ballistic missile tests. These are simply the latest in Iran’s longstanding efforts in development of its missile programs.  I’ve noticed in media reports that both US officials and nonproliferation wonks have been saying that these missile tests violate UN Security Council resolutions.  You can see such quotes in these articles – here and here.  However this is incorrect.

There are several issues here. First is the Iranian standard rebuttal that none of their missiles are designed to carry nuclear weapons, and that therefore these tests do not run afoul of the precise language in relevant UNSCR’s.  This is a technical argument that I’d really rather not wade into because it’s outside my expertise – i.e. when is a missile “designed” to carry a nuclear weapon.

But from a legal perspective, the assertion that Iran’s ballistic missile tests in the months since JCPOA Implementation Day (January 16, 2016) violate UN Security Council resolutions is incorrect because, as of Implementation Day, all UNSCR’s adopted prior to that date regarding Iran are terminated except for Resolution 2231.  And the language that Resolution 2231 employs in addressing Iran’s ballistic missile activity is legally nonbinding language.  Therefore there is no legal obligation on Iran touching its ballistic missile activity contained in Resolution 2231, and there can thus be no violation of a legal obligation that doesn’t exist.  I’ll paste here a section from my forthcoming book explaining this point (exciting that I can do this now!):

In its Resolution 1929, adopted on June 9, 2010, the Security Council imposed a conventional arms embargo on Iran. It further addressed Iran’s ballistic missile program thus:

[The Security Council] Decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and that States shall take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities.

Iran’s diplomats argued consistently that the Security Council’s arms embargo and proscriptions on Iran’s ballistic missile programs were unwarranted, and when negotiations began on the JCPOA they argued vigorously that they would not include their missile program on the agenda for negotiation along with their nuclear program. There is therefore nothing in the text of the JCPOA itself on the subject of Iran’s conventional weapons and missile programs. However, in Security Council Resolution 2231, the Council did make some changes to its treatment of these issues.

Annex B of Resolution 2231 provides for the temporary continuation of the international conventional arms embargo on Iran, inclusive of an exception for transfers approved by the Security Council. However, it further provides that the embargo will cease on the date five years from Adoption Day under the JCPOA. This date will be October 18, 2020.
With regard to Iran’s ballistic missile activities, Security Council Resolution 1929’s circumscription of course terminated, along with the Security Council’s other previous resolutions, on Implementation Day, January 16th, 2016. In its place, Security Council Resolution 2231 in Annex B provides the following text:

Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology, until the date eight years after the JCPOA Adoption Day or until the date on which the IAEA submits a report confirming the Broader Conclusion, whichever is earlier.

The substitution of the leading phrase “calls upon” in this text in Resolution 2231 has legal significance, as I explained in Chapter 6. The change to this invitational yet legally nonbinding phrase in Resolution 2231 means that, as of January 16, 2016, Iran is no longer under a legal prohibition regarding its ballistic missile activity from the Security Council. The remaining hortatory expression in Resolution 2231 by its terms expires on October 18, 2023.

So, following JCPOA Implementation Day, Iran’s ballistic missile tests cannot accurately be said to violate UN Security Council resolutions.  The most that could be said about them is that they are not in harmony with the UN Security Council’s legally nonbinding exhortation in Resolution 2231.  This is not just semantic. The termination of Resolution 1929 on Implementation Day, and its supplantation with Resolution 2231, had many meaningful legal effects. This is one of them.

The Marshall Islands v. The U.K., Preliminary Memorials

I’ve now had a chance to review the Marshall Islands’ (RMI) memorial in its ICJ suit against the UK, and the UK’s preliminary objections memorial. Again, you can find these on the ICJ’s website.  The juxtaposition of the two memorials is quite instructive.

The RMI’s memorial engages in page upon page of very dramatic and sweeping narrative about the general dangers posed by nuclear weapons.  When it finally gets around to talking about the actual facts and law relevant to its case against the UK, the memorial is very weirdly and unclearly organized.  The recitation of facts regarding the UK’s history of diplomatic engagement, or lack thereof, with efforts of nuclear disarmament comes first.  Then the memorial switches to talking about why there is in fact a dispute in this case. This is followed by a long section addressing the negotiating history of the NPT and its object and purpose.  Only at this point does the memorial actually address in a focused way Article VI of the NPT, which is the entire substantive legal basis of the RMI’s case.

Once the memorial does get around to analyzing Article VI, the legal discussion is decent, and brings out the main points of necessary interpretation.  But having already discussed the facts and negotiating history at length in previous sections, the legal analysis of Article VI is not then followed by a clearly structured application of the law to the facts of the case, leaving the reader confused at the hodgepodge organization of the whole of the memorial.

Basic principles of professional legal writing and treaty interpretation would have recommended a much more clearly organized presentation, beginning with a rigorous interpretation and exposition of the law in Article VI, read in light of the provision’s context and the treaty’s object and purpose.  Only after this exposition should a clearly structured application of law to facts be presented, showing how the respondent has failed to uphold its legal obligations, correctly interpreted.

So yes, what I’m saying is that the RMI’s memorial is shit legal writing.

Substantively, the RMI’s memorial also makes some completely unnecessary and confusing arguments about the erga omnes character of the obligations in NPT Article VI, and about the customary law nature of those obligations – neither of which arguments are at all necessary to make in the context of a respondent state which is without question a party to the NPT.

Turning then to the UK’s preliminary objections memorial, basically this memorial should serve as an instructive foil to the RMI’s legal team, helping them to see what a memorial submitted to the ICJ should look like.  The UK’s memorial is well written and well organized.  It focuses on the relevant legal questions the court needs to answer at this stage in the proceedings, and presents its legal arguments concisely and clearly, applying well-researched interpretations of law to facts.

I have to say also that substantively, I found the UK’s procedural arguments overall to be highly persuasive. This is particularly the case with regard to the UK’s arguments relative to the parties’ optional clause declarations.  I can very easily see the court agreeing with these bases for dismissing the action.

I would take issue, though, with a couple of the UK’s substantive arguments.  The first is the argument that the court cannot proceed jurisdictionally with this case against the UK alone as respondent, because the court’s considerations will necessarily implicate the legal interests of other states.  I think the court would be perfectly capable in the merits phase of assessing the UK’s individual responsibility for its individual action or inaction in complying with its own individual obligation under NPT Article VI.  The fact that Article VI imposes shared obligations on states does not produce a mutual exclusivity with its imposition in parallel of individual obligations on states.  As I argued in my 2011 book, Article VI should be read as imposing obligations of effort upon states individually to pursue negotiations, and not as imposing only shared obligations of negotiation and result.

I also disagree with the UK’s argument that this is a case in which the court should withhold an assertion of jurisdiction because it would not be in a position to “render a judgment that is capable of effective application.”   The NPT is ongoing in its application as a treaty between the parties to the dispute.  The court could, at least in principle, give a declaratory judgment to the effect that the UK is in continuing breach of the NPT.  It could also in principle order the UK to take individual efforts that would satisfy its individual obligations under NPT Article VI.

Marshall Islands ICJ Cases Get Underway and Bear Out My Concerns

This week the oral arguments of the parties to the three remaining cases brought by the Marshall Islands against nuclear weapons possessing states in the International Court of Justice have finally gotten underway, and with them we now have a chance to also view the written submissions of the parties to this point.

Just to review, the Marshall Islands (RMI) brought suits in the ICJ against all nine nuclear weapons possessing states. However, only the cases against the United Kingdom, India, and Pakistan remain, because those are the only states among the respondent group that have consented to the compulsory jurisdiction of the ICJ.  So to be clear, the cases against the U.S, Russia, France, China, Israel and North Korea, have already failed, and indeed never had a chance of succeeding based upon well-known jurisdictional limitations.

Readers will recall that I’ve discussed these cases before and expressed my concern about how they were being handled by the RMI’s legal team.  Unfortunately, my concerns are being borne out through the pleadings that the RMI has made thus far.

Taking a look at the RMI’s application initiating proceedings against India, it should first be recalled that India is of course not a party to the NPT. In order for the ICJ to have jurisdiction, therefore, and certainly in order to prevail in the case, the RMI must show that the obligation in Article VI of the NPT has achieved customary international law status, in independent parallel to its existence as a treaty rule.

Readers may recall that Marco Roscini and I had a stimulating (at least to me) debate on this very subject here at ACL a couple of years ago.  See here, here, here, and here.  Now, compare this discussion to the RMI’s argument in pgs. 18-20 of their application, that NPT Article VI has achieved CIL status.  The RMI here presents what is in my view an unforgivably superficial set of sources on which to base their argument on this subject – which again is absolutely vital to both their jurisdictional and merits assertions against India.

Basically what the RMI does is lean heavily on the ICJ’s 1996 advisory opinion, and particularly on one paragraph of the holding of that case, 105(2)(F), where the court states:

There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.

This is obviously a partial quotation of the language in NPT Article VI. But the RMI’s lawyers say that, because the court didn’t explicitly restrict this statement to apply only to states parties to the NPT, therefore the court must have been asserting that this obligation has also become enshrined in customary international law.

That is pretty thin gruel.

The ICJ is perfectly capable of saying when it thinks a principle has achieved the status of customary international law, and it does not do so here.  And there’s no other wording in the rest of the 1996 advisory opinion persuasively supporting the RMI’s interpretation of this one paragraph of the court’s judgement.

The RMI’s application then talks briefly about General Assembly and Security Council mentions of the NPT Article VI language, but never really gives a solid legal analysis demonstrating that there has been sufficient state practice and opinio juris expressed by states to support the conclusion that the NPT Article VI obligation has passed into parallel customary international law, binding upon India.

Recall that in my discussions with Marco on this subject I actually took a position which agrees in conclusion with what the RMI is arguing here.  So my problem is not with their conclusion, but rather with the weak arguments that they have mustered in support of it.  Honestly, I find this superficiality unprofessional.  It reminds me of the kind of analysis I see in student papers, not in arguments before the ICJ on which the entire case of their client depends.  A proper argument would have included a much more serious discussion of the manifestations of state practice and opinio juris that support the RMI’s argument, along with much more rigorous and comprehensive legal arguments, inter alia interrogating and rebutting the sorts of very valid concerns that Marco expressed in his discussion of the subject, including specially affected states.

I guess all I can say is that if the court somehow does allow the RMI’s case to go forward on the basis of a determination that NPT Article VI has achieved customary law status, and is therefore binding on India, it won’t be because of good lawyering on the part of the RMI’s legal team.

The oral arguments against the U.K. are scheduled for today and the RMI’s memorial, along with the UK’s preliminary objection memorial, have just been posted on the court’s webpage.  We’ll see if the RMI can do any better against an actual NPT party.

My Iran Book Finally Done

Sorry for the radio silence from me over the past couple of months. I’ve been working hard to finish my Iran book, which I’m happy to report is now done and is in production with OUP. This is a very big deal for me, as I’ve been working on the manuscript for around three years now. I had been working on it for about two and a half years before the JCPOA was announced last summer, and had to pause for six months to await the deal’s implementation before writing the final chapter on it.

But it appears that the wait will soon be over. I’m being told it will be published sometime around June, and in a less expensive binding than my other books. I’m very pleased about that. I would really like this book to get a wide circulation and be read not just by academics and by students, but by government and international organizations officials as well.

Much more about the book to come in the next few months.

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).