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The ECJ and (Mis)interpretation of Security Council Resolutions: The Case of Sanctions Against Iran

Published on December 23, 2013        Author: 

On 28 November 2013, the ECJ set aside the judgment of the General Court of the EU in case T‑509/10, Manufacturing Support & Procurement Kala Naft v Council, which had annulled, in so far as they concerned the applicant (an Iranian company owned by the National Iranian Oil Company), the various EU restrictive measures targeting persons and entities listed as being engaged in nuclear proliferation (including Council Decision 2010/413/CFSP). However, in my view, the ECJ was wrong in considering that the UNSC Resolution 1929 (2010) provided a basis for the challenged EU measures as the Court wrongly interpreted the SC resolution as enabling the European Council to conclude that trading in key equipment and technology for the gas and oil industry was ‘capable of being regarded as support for the nuclear activities of [Iran]’.

In its judgment, the ECJ, recalls that the effectiveness of judicial review requires that the Courts of the EU are to ensure that the decision challenged ‘is taken on a sufficiently solid factual basis’ (at para. 73), and observes that in order to assess the lawfulness of the General Court’s review of the measures, it shall examine ‘the way in which the General Court identified and interpreted the general rules of the relevant legislation’ (para. 74). The ECJ held that “there is nothing in the judgment under appeal to indicate that the General Court took into account the changes in European Union legislation after Security Council Resolution 1929 (2010) (para. 75, emphasis mine). Read the rest of this entry…

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The New Deal Between the P5+1 and Iran

Published on November 26, 2013        Author: 

Dan Joyner is Professor of Law at the University of Alabama School of Law in the U.S.  He is the author of two books on nuclear non-proliferation law, and of a monograph currently under contract with Oxford University Press, entitled Iran’s Nuclear Program and International Law. He blogs regularly at www.armscontrollaw.com

Like many, I stayed up late Saturday night following the Twitter updates of what was developing in the Geneva negotiations between Iran and the P5+1.  And like most, I was thrilled to hear that an initial accord had been reached. A historic agreement that potentially signals a thawing in relations between Iran and the West – the best such indication since 1979. It was a night of high drama.

I’ve now had a chance to read over the product of this agreement – a four page document entitled Simply “Joint Plan of Action.”

I would observe first of all that I agree with Duncan Hollis in his assessment over at Opinio Juris that this agreement is intended by the parties to be non-legally-binding. Duncan provides a review of the reasons for this conclusion. As I noted in a comment to his post, I think the diplomats in Geneva had enough trouble reaching agreement on a text in this politically binding form, and would have shuddered at the thought of having to get it approved by their respective legislatures.

However, legally non-binding international agreements can still have significant legal, as well as political, implications.

The document lays out in detail Iran’s commitments under the accord. They comprise a very significant list of concessions, cumulatively limiting Iran’s nuclear program and preventing any further development of the program for the six month duration of the agreement. I think it is worth noting that all of these steps together comprise a more significant list of concessions than was expected by most observers. Nevertheless, it is also important to note that none of them, and not even their sum, is beyond what Iran had already offered in past negotiations, going back at least to 2005. Read the rest of this entry…

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Syria and the Law of Humanitarian Intervention (Part II: International Law and the Way Forward)

Published on October 4, 2013        Author: 

Editor’s Note: This piece was originally published on Just Security.

My first post for Just Security explained why, despite some bungled politics, President Obama’s proposed military action in Syria could have been lawful under U.S. domestic law.  This post discusses why President Obama did not violate international law by threatening to use force in Syria in the face of a persistent Russian veto, and how the Syria crisis might best evolve from here.

Obviously, we cannot fully evaluate the lawfulness of any state’s use of force until we know the precise factual circumstances under which it chooses to take action.  But let’s start by distinguishing the legal question—is the option of military force available under domestic or international law?—from the policy question: would it be wise to use military force in Syria for the limited purpose of discouraging a repeat use of chemical weapons?  No one denies that the policy question presents a vexing judgment call, even if the intended use were very limited and even if a decision-maker like President Obama had far more information than that available to the general public. As Nick Kristof rightly cautioned, “[l]et’s be humble enough to acknowledge we can’t be sure of the answer and that Syria will be bloody whatever we do.”  The shifting balance of power in the Syrian civil war; the proliferation of questionable armed groups on both sides, the risk of mission creep, and the uncertainty of follow-on consequences from any military strike all demand caution, particularly if one starts from the premise, “first, do no harm.”

3. Was the Proposed Military Action Lawful Under International Law? That said, a prior and distinct legal question remains: would the policy option to use military force ever be available under either domestic or international law? My last post explained the circumstances under which U.S. domestic law allows policymakers that policy option.  But does international law nonetheless bar it? I believe that international law has evolved sufficiently to permit morally legitimate action to prevent atrocities by responding to the deliberate use of chemical weapons.

Among international legal commentators, the emerging party line seems to be that President Obama was threatening blatantly illegal military action in Syria, for the simple reason that the Russians were not on board. The conventional argument, set forth by among others, my Yale friends and colleagues Oona Hathaway and Scott Shapiro, is “per se illegality:” in their view, Article 2(4) of the U.N. Charter permits individual and collective self-defense but bars any and all other forms of intervention without express Security Council authorization. They see the Syrian crisis as a moment to reaffirm that acting without an UN Security Council Resolution is per se illegal.  But is that really what international law requires? Read the rest of this entry…

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Syria, Security Resolution 2118 (2013) and Peace versus Justice: Two Steps Forward, One Step Back?

Published on October 3, 2013        Author: 

Chemical weaponsOn 27 September 2013, the Security Council adopted Resolution 2118 (2013). The resolution broke the diplomatic impasse over Syria in the Security Council. It was celebrated as a diplomatic success and as a ‘precedent-setting’ resolution. It marks fundamental progress, on at least two fronts: (i) It shifted the debate on the use of force from claims of unilateral intervention to collective security action (which is in line with the spirit of the Responsibility to Protect idea under the World Summit Outcome Document); and (ii) it reinforced of the normative regime regarding the ban of the use of chemical weapons. (photo: mustard gas shells, credit)

As has been aptly noted,  the text of resolution has not been expressly adopted under Chapter VII. But this does not detract from its binding force (Article 25 of the UN Charter) and its legal significance. The most immediate consequence of Resolution 2118 (2013) is that averted the threat of unilateral military strikes. The text of the resolution makes it makes it clear that military action to enforce compliance with obligations under the Resolution needs to be channelled through the Security Council. The wording differs from Security Council Resolution 1441 (2002) which afforded Iraq ‘a final opportunity to comply with … disarmament obligations under relevant resolutions of the Council’ (para. 2), and recalled that ‘Iraq […] will face serious consequences as a result of its continued violations of its obligations’ (para. 13). Resolution 2118 (2013) maintains the prerogative of the Council to decide on future action. It states that the Security Council ‘decides’ on measures ‘in the event of non-compliance with’ the resolution (para. 22). This makes it hard to justify unilateral strikes, based on the interpretation of the Resolution, as argued in the context of Iraq, where Resolution 1441 was invoked in conjunction with Resolution 678 (1990) to justify the use of force. The wording of Resolution 2118 adopts a different approach. It suggests that the burden lies on the Council to reach agreement.  It leaves some choice as to the type of measure to be adopted (e.g., sanctions or other measures under Article 41, or coercive measures under Article 42). But the wording (‘The Security Council ‘[d]ecides […] to impose measures under Chapter VII’)  seems to reflect an implied pre-commitment to act which is visibly designed to prevent risks of future inaction by the Council.

Secondly, the resolution marks new ground since it proclaims a ‘new’ norm regarding the universal ban on the use of chemical weapons. It clarifies that ‘the use of chemical weapons anywhere constitutes a threat to international peace and security’ (para. 1).It thus embraces a new commitment by the Security Council to the prohibition of the use of chemical weapons ‘anywhere’, ‘anytime’ and ‘under any circumstances’. As argued by Marko Milanovic, this universal ban bears resemblance with the generic finding in the preamble of Resolution 1373 (2001) that ‘acts, like any act of international terrorism, constitute a threat to international peace and security’. It puts pressure on the Council to deal with such incidents in the future. It coincides with parallel developments in international criminal law, i.e. the extension of the war crime of employing poison, poisonous weapons or prohibited gases, liquids, materials or devices to non-international armed conflicts at Kampala, as discussed by Dapo Akande.

But like the preceding discourse on intervention, the resolution contains a fundamental contradiction. Read the rest of this entry…

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A Few Thoughts on Resolution 2118 (2013)

Published on October 1, 2013        Author: 

The official final text of Security Council resolution 2118 (2013) on Syria is now available, as is the full proces-verbal of the Council’s discussion after the adoption of the resolution (text available here; ODS search strangely still showing it as under embargo; S/PV.7038). The main points of the resolution have of course received much attention from the press, and there is also commentary by John Bellinger on Lawfare and Ryan Goodman on Just Security, here and here). There are a couple of features of the resolution that I find particularly interesting.

First, there’s the fact that in its last preambular paragraph the Council unanimously endorsed the view that all Council decisions, and not just Chapter VII resolutions, are legally binding. This was of course due to careful diplomacy between the US and Russia, with the former wanting a legally binding instrument and the latter refusing to agree to a Chapter VII resolution. The compromise between the two is reflected in the preambular paragraph when the Council is ‘underscoring that Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Council’s decisions’ and then in a number of operative paragraphs which use the verb ‘decides’ to impose legally binding obligations.

In other words, while decisions under Chapter VII are legally binding (even though resolutions under this chapter will frequently include non-binding recommendations as well), they are not the only decisions with binding force. This is I think the first time that the Council so openly adopted this view, which was endorsed before it by the ICJ in the 1971 Namibia advisory opinion. Doctrinally of course the issue was not settled and continued to be debated; for an overview see John Bellinger’s post as well as this excellent report linked to by Ryan. But now the matter does seem to be finally settled, with the ICJ’s interpretation of the Charter garnering unanimous support of the Council.

The PV of the meeting, at which many delegations stressed the legally binding nature of the resolution, only supports the resolution’s text. I think Ryan is wrong when he argues that Russian Foreign Minister Lavrov ‘took a swing at the legal strength of the Resolution’ when he stated that it was not passed under Chapter VII. As I see it, Russia is in full agreement with the US and the UK that the resolution did create binding obligations – this is at least implicit in his following statement on p. 4 of the PV:

Particular responsibility lies with those who back and sponsor the opposition; they have to ensure that chemical weapons do not fall into the hands of extremists. We draw attention to the fact that the resolution contains requirements set by the Security Council that apply to all countries, especially Syria’s neighbours. They must report to the Council any attempts by non-State actors to obtain chemical weapons. It would be even more unacceptable for them to support such attempts. All similar cases will be immediately considered by the Security Council with the objective of taking the necessary measures. (emphasis mine)
What Chapter VII brings to the table is not necessarily the binding nature of the measures enacted, but telling us what the measures can substantively be under the Charter, e.g. the authorization to use force. And this is what the Russians are (rightly) concerned about; they don’t want there to be any plausible argument that the Council has implicitly authorized force, and this is what they achieved. But that does not mean that they do not consider the decisions made within the resolution, e.g. for Syria not to use chemical weapons, to cooperate with the OPCW, etc., to be non-legally binding.

The second striking thing about the resolution is its determination in the first operative paragraph ‘that the use of chemical weapons anywhere constitutes a threat to international peace and security.’ In other words, any use of chemical weapons by anyone anywhere is ipso facto a threat of international peace and security, and justifies the Council’s intervention. The Council has previously made such determinations only rarely, as e.g. in resolution 1368 (2001) in which it found that any act of international terrorism was a threat to international peace and security.

Also of note is op. para. 19, in which the Council ‘demands that non-State actors not develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery, and calls upon all Member States, in particular Member States neighbouring the Syrian Arab Republic, to report any actions inconsistent with this paragraph to the Security Council immediately.’ Note how the demand is addressed to non-state actors directly and is very precise in scope; this of course raises the issue whether the Council can create legally binding obligations for non-state actors, and whether it has done so in this particular instance (cf. the ICJ’s Kosovo advisory opinion). The Council buttressed this ‘demand’ (but not a ‘decision’?) by deciding in op. para. 20 that ‘all Member States shall prohibit the procurement of chemical weapons, related equipment, goods and technology or assistance from the Syrian Arab Republic by their nationals, or using their flagged vessels or aircraft, whether or not originating in the territory of the Syrian Arab Republic.’

Finally, the Council’s decision in op. para. 21 to impose Chapter VII measures in case of non-compliance is also I think a novelty – although it clearly wouldn’t prevent a veto regarding the adoption of a further resolution, it would render that veto even more politically suspect.

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Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited

Published on June 22, 2013        Author: 

A recent statement issued by the EU entitled ‘Common messages regarding EU sanctions against the Iranian nuclear programme’, posted on the websites of various EU embassies in Tehran (and translated into Farsi), attempts to sum up the reasons which have allegedly justified not only the sanctions on Iran decided by the UN Security Council, but also those adopted by the EU itself, which, as the document make clear, are ‘autonomous sanctions, beyond the ones imposed on Iran by UNSC Resolutions’. However, the recent EU statement, like others making allegations against Iran with respect to its nuclear programme, is vague and imprecise in terms of content of the obligations allegedly breached by Iran. It states that ‘[s]anctions are a response to Iran’s violations of its international obligations’, but it fails to give a precise indication of exactly what obligations would have been breached. In fact, it is noteworthy that the statement limits itself to pointing to the violation by Iran ‘of several resolutions of the United Nations Security Council and IAEA Board of Governors resolutions’, and does not state explicitly that Iran would have breached either its Safeguards agreement with the IAEA, or the NPT itself (which mandates in its Article III the implementation of such safeguards). I have shown previously (here and here on EJIL:Talk!) that it is very dubious that EU sanctions on Iran agreed in 2012, including the comprehensive oil and gas embargo and the freezing of assets of the Iranian central bank, actually comply with both procedural and substantive conditions applicable to countermeasures under the 2001 ILC Articles on State Responsibility.

The purpose of this post is to make two further points. First, the IAEA, in making findings (in Sept 2005) of non-compliance by Iran, has not applied properly applicable rules (both procedural and substantive) in its assessment of Iran’s conduct with respect to its obligations under Iran’s NPT Safeguards Agreement’ (CSA). This implies that the legal validity of such finding is, to say the least, very doubtful.

Second, an authoritative legal determination of the issue of Iranian compliance (or non-compliance) with the obligations assumed under the CSA, or a pronouncement on the existence and the materiality of a breach by Iran (in the meaning of ‘material breach’ under Article 60 of the Vienna Conventions) of the latter, has not yet been made and would indeed require the involvement of the ICJ or of an arbitral tribunal. Read the rest of this entry…

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What is the Meaning of “Consensus” in International Decision Making?

Published on April 8, 2013        Author: 

On 28 March, the negotiators at the Final UN Diplomatic Conference on the Arms Trade Treaty failed to adopt the Arms Trade Treaty (see BBC report here) by consensus.  A few days later the Arms Trade Treaty was adopted by the United Nations General Assembly (by a vote of 154 in favour, three against and 23 abstentions – for a really useful account of the negotiations see the Arms Trade Treaty Legal Blog). At the Diplomatic Conference, the rules of procedure required that the treaty be adopted by “consensus”. However, at the end of that conference, Syria, Iran and North Korea objected to the text. According to the bloggers at the ATT Legal Blog there then ensued a discussion of whether the objection by these three States could stand in the way of the adoption of the treaty by consensus, with some States taking the view that acceptance of the text by the overwhelming majority of States was sufficient to establish consensus despite the expressed opposition of three States. However, the President of the Conference ruled that there was no consensus and that the treaty could not be adopted.

The wranglings about the meaning of “consensus” have a broad importance for decision-making with regard to treaties and in other international conferences. Since the 1970s it has become standard practice in many important diplomatic conferences that decisions are taken, where possible, by consensus. Although this procedural device is ubiquitous, as well as being important for the way in which international law is made, the arguments at the ATT conference lay bare the ambiguity that lies at the heart of this concept. There is no consensus on the meaning of “consensus”. The consensus procedure is an important device for achieving broad based agreement on international treaties. It is therefore important to have some clarity on what it means. Lack of clarity on the procedure might well have an adverse impact on the process by which treaties and other international decisions are reached with the result that the substantive outcomes might be less desirable.

The ATT Legal Blog reports that:

Mexico said that the overwhelming majority of States were in a position to adopt the treaty text. Mexico suggested to proceed to the adoption of the text as there is no established definition of the term “consensus” in the United Nations. Nigeria supported Mexico. Japan also supported Mexico. Costa Rica then supported Mexico’s statement. Chile then supported Mexico’s statement. Colombia “resolutely” supported Mexico. Read the rest of this entry…

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Dan Joyner on “What If Iran Withdraws from the Nuclear Non-Proliferation Treaty?”

Published on January 9, 2013        Author: 

My friend, Dan Joyner who is Professor of Law at the University of Alabama School of Law, one of the leading scholars on the Nuclear Non-Proliferation Treaty (NPT) (and who blogs at Arms Control Law) has recently published two “European Society of International Law (ESIL) Reflections (see here) considering whether Iran can  unilaterally withdraw from the NPT, what legal framework would govern such a withdrawal, and what the legal implications of such a withdrawal would be. In those pieces he considers the legal meaning and application of Article X(1) of the NPT, using the conflict between Iran and the West over Iran’s nuclear program as a case study and illustration. These pieces are well worth a read. Quite aside from the political interest in the Iran nuclear issue, the questions he discusses raise some interesting points of general international law, for example the extent to which certain treaty provisions are subject to autointerpretation and the power of the UN Security Council to impose treaty obligations.

Article X(1) is the withdrawal provision of the NPT, and provides that:

“Each Party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.”

In the first piece, Dan, concludes that

“if Iran wishes to withdraw from the NPT because of the concerns it has expressed about its membership therein no longer being in its national interest, it can do so upon its own subjective determination of the criteria in Article X(1), and there should be no basis for other states, or for the U.N. Security Council, to determine that such withdrawal is ineffective on either substantive or procedural grounds.

And although objective justification of the determinations that Iran must make according to the terms of Article X(1) is not required, the case of the U.S. withdrawal from the ABM treaty in 2002, and its stated reasons for withdrawal in that case, which received acquiescence from Russia, would appear to demonstrate that the reasons Iran could state in its declaration of withdrawal under current circumstances, are at least as compelling and as related to the criteria stipulated in the relevant treaty withdrawal clause, as were those cited by the U.S. in 2002.”

In short, in Dan’s view Art. X of the NPT is similar to provisions like Art. XXI of the General Agreement on Tariffs and Trade (GATT) (the essential security clause) which provide for the state to make its own determination of when it’s security interests have been imperilled. Readers will know that there have been cases before international investment arbiral tribunals considering similar clauses in Bilateral Investment Treaties. Also the ICJ considered similar clauses in Friendship, Commerce and Navigation Treaties in the Nicaragua and Oil Platform cases. In general, arbitral tribunals and the ICJ in those cases, have considered those clauses in BITs and FCNs not to be self-judging. But it is important to note that those clauses are worded differently from Art. X of the NPT or Art. XXI of the GATT, and in fact the ICJ hinted at this in the Nicaragua case suggesting that a clause worded like Art. XXI of the GATT would be self judging. And Art. X of the NPT is like the GATT clause because of the “if it decides” phrase. In short, I agree with Dan that all that is required is a good faith determination. [In 2003, Sope Williams and I published a piece in 43 Virginia Journal of International Law on “International Adjudication on National Security Issues” looking at how international tribunals have dealt with national security clauses in treaties].

In his second piece, Dan states that:

” No IAEA safeguards obligations would survive the NPT withdrawal, and there would be no general international legal obligation on Iran to dismantle or return to the IAEA or to other states, nuclear materials and technologies Iran received from them by virtue of its prior NPT membership.”

He goes on to consider whether:

“If Iran were to withdraw from the NPT, could the U.N. Security Council order Iran to rejoin the NPT, and to re-accede to its CSA  [Comprehensive Safeguards Agreement] with the IAEA?  My considered opinion is that such an order would be ultra vires, or beyond the authority, of the Security Council.”

This second point, relating to the Security Council, might well be correct in its own terms but does not consider whether the UN SC could impose the same terms on Iran as the NPT and the Safeguards agreement. The council would not need to order Iran to rejoin those treaties, it could just say that Iran has the same obligations as is contained in those treaties. Now, would that be unlawful or ultra vires? When Lebanon was unable to sign the treaty which was to create the Special Tribunal for Lebanon, the SC simply adoped a resolution containing the same text, thus imposing the same treaty terms on Lebanon but this time as an SC resolution, rather than as a treaty obligation. This was upheld by the Special Tribunal for Lebanon. Could the SC not do the same for Iran?

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Arms Control Law Blog

Published on August 3, 2012        Author: 

Dan Joyner sends us word of a new blog that he started – the Arms Control Law Blog. As the name suggests, the blog will be devoted to discussion and analysis of arms control law subjects, primarily from the perspective of international law.

The team of core bloggers at Arms Control Law is:

Professor Dan Joyner, University of Alabama School of Law Dr. Marco Roscini, University of Westminster Faculty of Law Mr. Pierre-Emmanuel Dupont, Rochelois, Besins & Associe Dr. Zeray Yihdego, Oxford Brookes University Faculty of Law Professor Eric Myjer, University of Utrecht Faculty of Law Professor David Fidler, University of Indiana School of Law Professor Barry Kellman, Depaul University College of Law Professor Dieter Fleck, Formerly of the German Ministry of Defense Professor James Fry, University of Hong Kong Faculty of Law.

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Filed under: Arms Control, EJIL Reports
 
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