Sanctions, countermeasures, and the Iranian nuclear issue.

• Author: Calamita, N. Jansen

ABSTRACT

The international community's response to Iran's nuclear development program highlights the sometimes complex legal relationship between the UN system of collective security and the rights of states to take unilateral countermeasures under the law of state responsibility. It also raises a number of important questions about (a) the discretion afforded to states in the interpretation and implementation of Security Council resolutions, (b) the availability of countermeasures for the violation of multilateral obligations, and (c) the exclusivity of the Chapter VII framework for collective security.

This Article argues that, while the Security Council's Iran sanctions resolutions do not grant discretionary authority to states to broaden the scope of the measures, states retain their rights under the law of state responsibility to take unilateral countermeasures in response to wrongful acts. Under the law of state responsibility, multilateral treaties like the Nuclear Non-Proliferation Treaty (NPT) are best understood as integrated agreements, such that in the event of non-compliance each State Party is entitled to treat itself as an "injured State" for the purposes of determining the availability of countermeasures. Moreover, quite apart from the question of whether the NPT is an integrated agreement, there is a substantial body of state practice supporting the right of states to take collective countermeasures in response to violations of multilateral obligations. The case for this entitlement is at its strongest where, as in the situation with Iran, the wrongful conduct has been determined by an international body with responsibility for monitoring and verifying compliance with the obligations in question. In such instances, the use of countermeasures in response to violations--far from undermining the international order--may serve to promote respect for the international rule of law.

TABLE OF CONTENTS I. INTRODUCTION II. LEGAL ASPECTS OF IRAN'S NUCLEAR DEVELOPMENT PROGRAM A. The Disclosure of Iran's Nuclear Program and Iranian Non-Compliance with its NPT Transparency Obligations (2002-2005) B. Reference to the Security Council (2006) III. THE SECURITY COUNCIL'S SANCTIONS RESOLUTIONS (2006-2009) A. The Iran Sanctions Framework B. The Scope of State Discretion in the Interpretation and Implementation of Resolution 1737. 1. The Interpretation of Security Council Resolutions 2. Resolving the Ambiguities in Resolution 1737 IV. THE AVAILABILITY OF UNILATERAL COUNTERMEASURES FOR VIOLATIONS OF THE NPT A. The Nature of Countermeasures and Their Legal Limits B. Countermeasures and the Concept of the "Injured State" 1. States Parties as "Injured States" under the NPT 2. The Character of the NPT C. Countermeasures by States Not Suffering Direct Injury--An Arguendo Characterization of the NPT D. Summary V. TREATY-BASED LIMITATIONS ON COUNTERMEASURES A. The NPT and the Concept of "Self-Contained" Regimes 1. The Absence of Treaty-Based Enforcement of NPT Obligations B. The Relationship between Security Council Action under Chapter VII and Unilateral Countermeasures VI. CONCLUSION I. INTRODUCTION

For the past seven years, the international community has been unable to resolve concerns raised by Iran's program of nuclear development. Throughout this period, Iran has maintained that its development of nuclear technology is purely for civilian use and, therefore, permitted under the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), which guarantees the "inalienable right" of all States Parties to develop, research, and produce nuclear energy for peaceful purposes. (1) As part of its NPT obligations, (2) however, Iran is also party to a comprehensive Safeguards Agreement with the International Atomic Energy Agency (IAEA), (3) the international body that monitors nuclear activity and supervises compliance with safeguards obligations under the NPT. (4) Under the Agreement, Iran is obligated to ensure the transparency of its nuclear program and allow for independent verification that nuclear materials are not being diverted to military applications. (5) Iran, however, has not been transparent about its nuclear program, and the IAEA has been unable to confirm the peaceful character of Iran's nuclear activities. (6) As a result, international concern about Iran's nuclear aspirations has not abated.

Since the first revelations of Iran's nuclear development program in 2002, various steps have been taken as part of an international effort to confirm Iran's assertions of peaceful intentions and to persuade Iran to halt all of its nuclear development activity until an independent verification has been made. In particular, there have been intensified inspections of Iran's facilities by the IAEA and repeated multilateral negotiations offering Iran economic and trade incentives to suspend enrichment activity. (7) Further, the issue has been referred to the United Nations Security Council, and targeted sanctions have been imposed against Iran under Chapter VII of the UN Charter. (8) To date, none of these efforts have succeeded in either confirming the peaceful character of Iran's nuclear program or persuading Iran to halt further development. Indeed, Iran remains in breach of the Security Council's decisions and its obligations under the NPT. (9)

In addition to these multilateral efforts, the United States and certain European states have taken unilateral measures against Iran in response to its continued non-compliance with its NPT obligations. In some cases, these measures have been in the nature of retorsions (i.e., unfriendly yet otherwise legal acts meant to signal disapproval of Iran's recalcitrance). (10) In other cases, the measures go beyond mere expressions of disapproval and involve the suspension of the performance of international legal obligations otherwise owed to Iran. (11) Over the past year, particularly in response to the September 25, 2009 revelation of yet another previously undisclosed uranium enrichment facility in (Qom) Iran, (12) news reports have indicated that these states are considering the adoption of still further non-forcible unilateral measures against Iran--perhaps based upon a new, broader interpretation of existing Security Council resolutions--possibly as countermeasures outside of the UN Chapter VII framework. (13) Recent reports have suggested that, in the face of continued deadlock in the Security Council, (14) the United States and its European allies are considering ways to bring further pressure to bear on Iran in the event that the Security Council fails to do so. (15)

The circumstances described highlight the sometimes complex legal relationship between the UN system of collective security and the rights of states to take countermeasures under the law of state responsibility. They also raise a number of important questions about (a) the discretion afforded to Member States in the interpretation and implementation of Security Council resolutions; (b) the availability of countermeasures for the violation of multilateral obligations; and (c) the exclusivity of the Chapter VII framework for collective security. In the first place, one must ask to what extent states enjoy discretion in the interpretation and implementation of the Council's sanctions resolutions, particularly where the interpretation under consideration would provide a legal justification for an otherwise wrongful act. Second, with respect to the question of countermeasures, one must ask whether a breach of a multilateral agreement like the NPT can serve as a justification for the other States Parties to take countermeasures against the responsible state. If the answer is that they may, then the question arises whether a breach of a multilateral agreement can serve that function, even in situations in which the Security Council has taken action under Chapter VII to compel compliance from the non-performing state.

The purpose of this Article is to discuss some of the legal issues raised by the international community's ongoing efforts to find a peaceful way to change Iranian behavior and bring the country back into compliance with its non-proliferation obligations. Part II begins by examining the legal aspects of Iran's nuclear development program, tracking the IAEA's and the Security Council's determinations on Iranian non-compliance with its NPT safeguards obligations. Part II addresses the current UN sanctions regime and examines the manner in which those resolutions should be interpreted and implemented. Part IV considers the general availability of countermeasures for the violation of multilateral obligations such as the NPT obligations. Finally, Part V takes up the issue of whether countermeasures might be foreclosed, either as a consequence of the structure of the NPT-IAEA system or because the Security Council has become seized of the situation under Chapter VII of the UN Charter.

2. LEGAL ASPECTS OF IRAN'S NUCLEAR DEVELOPMENT PROGRAM

   A. The Disclosure of Iran's Nuclear Program and Iranian Non-Compliance with its NPT Transparency Obligations (2002-2005)

   Although Article IV of the NPT establishes the "inalienable right" of all States Parties to develop, research, and produce nuclear energy for peaceful purposes, the NPT also requires each non-nuclear-weapon State Party to accept safeguards as set forth in a safeguards agreement with the IAEA. (16) Each NPT safeguards agreement requires a state to accept IAEA safeguards on all source or special fissionable material in all peaceful nuclear activities within the territory of the state, under its jurisdiction, or carried out under its control anywhere. (17) Safeguards agreements further require that states establish and maintain a system to account for and control all nuclear material subject to safeguards for the purpose of verifying compliance with the safeguards obligations. (18) In addition, under the Statute of the IAEA--to which all States Party...