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

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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17 Responses

  1. Thank you for this piece. These are highly pertinent questions to be asking. I wonder if you, or perhaps your friend Dan Joyner, could attempt to answer the final question you pose. Could the SC impose NPT-like obligations on Iran? and what would be the implication (legally/politically) of this? And what would the rationale be for doing so on Iran and not on other non-parties to the NPT?
    Looking forward to more insight on this.

  2. Aldo Zammit Borda

    Hi Dapo,

    I think that, technically, if following a hypothetical withdrawal of Iran from the NPT and the safeguards agreement, the UN Security Council determines that the ensuing situation constitutes a threat to international peace and security, the UNSC may certainly “impose the same terms on Iran” by way of resolution or, indeed, other terms as it may deem appropriate.

    However, it may be that this technical view may not take fully into account the geopolitics at play in the Security Council and particularly the views of the veto-wielding states. In this respect, when the DPRK announced that it was withdrawing, with immediate effect, from the NPT and safeguards agreement almost exactly ten years ago (10 January 2003), no resolution of the kind suggested was adopted.

    I learnt from and found Dan Joyner and your contributions on this subject informative. On reflection, however, I think a key question Joyner does not fully grapple with in his “What If Iran Withdraws from the Nuclear Non-Proliferation Treaty?” is, given the onerous terms being imposed on Iran, “WHY doesn’t Iran unilaterally withdraw from the NPT?”

    Aldo

  3. [...] recent ESIL Reflections regarding NPT Article X(1). You can find his comments over at EJIL: Talk! here.  He raises an interesting question concerning how the UN Security Council could address a [...]

  4. I agree with Aldo b/c of U.N. Charter, arts. 39, 41 and then 25, 48.
    However, another point would be that in the present context, with Iran under U.N. S.C. sanctions, its desire to wipe Israel off the map, its “indirect aggression” engaged in by complicitous support of continued armed attacks on Israel by Hezbollah and Hamas, etc., a withdrawal by Iran would be part of the overall context that signals its intent to wipe Israel off the map and, impliedly then, to build a nuclear weapon in order to do so — all of which could be taken into account whether an armed attack by Iran on Israel(or the French “aggression armee”) has begun.

  5. Moshe Hirsch

    Very interesting piece- thanks. I also believe that given there is a threat to international peace and security, the SC can apply some treaty povisions on any state (if it may impose binding obligations on every state – why not treaty provisions?). Another example is the SC Resolution 1373 – that incorporates siginficant provisions of the 1999 Convention for the Suppression of the Financing of
    Terrorism – on “all states”.
    A different question, if the ICJ is competent to review the legality of such SC resolutions (‘judicial review’) ?

  6. Jordan

    Moshe: yes, but most Judges will not act on such. Competence exists to second-guess the S.C. actions as ultra vires in view of U.N. Charter, arts. 24(2), 25, and 55. S.C. must act consistently with the purposes of the Charter and, per art. 55, self-determination of poeples and human rights (that is, as any organ of the U.N. b/c of art. 55). As I recall, only 4 judges on the ICC have mentioned such a competence.
    When we (six lawyers or profs from Canada and the U.S.) represented Bosnia-H before the ICJ, and before we were fired b/c lead counsel wanted to also sue the U.S. and U.K., etc., we argued that the S.C. arms embargo placed two arms of our client behind its back in violation of its right to defend itself from armed attacks by non-state actor and Serbia per U.N. 51 and that, therefore, the S.C.’s res. was ultra vires. Alas, only one judge wanted to address such a claim.

  7. Hossein Sadat

    Thanks Akande for your note. It is clear that there are limitations on the SC authority in particular when the issue of State sovereignty relating to treaty is concerned (Consent). No State can be obliged to join or implement a treaty without its consent. It is a well-established principle in international law. It is the same when the SC is involved in a situation.

    The SC has been endowed with some powers and authorities according to article 24, 39 and 41 and 42 of the UN Charter, but it does not mean that the SC’ authority can be applied unconditionally and without any restriction. As the ICTY (the subsidiary organ of the SC) has announced: “in any case, neither the text nor the spirit of the Charter conceives of the Security Council as legibus solutes (unbound by law)” (See: http://www.icty.org/x/cases/tadic/acdec/en/51002.htm). The rule of law in international relations requires that a boundary to be defined for the SC powers, including relating to imposing legal obligations (See for example the Finish initiative on the Security Council and he Rule of Law and its recommendation in this respect: http://www.iilj.org/research/documents/UNSC_and_the_Rule_of_Law.pdf). I recommend you to read also Prof Joyner’s Article: The Security Council as a Legal Hegemon ( https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2182257 )

    The SC power to impose legal obligation individually or collectively (lawmaking) has been the subject of many discussions in doctrine, whether before or after the adoption of the most controversial SC resolution, i.e. resolution 1373 (e.g. Arangio-Ruiz, ‘On the Security Council’s ‘Law-Making”, 83 RDI (2000), 609 et seq and Matthew Happold, “Security Council resolution 1373 (2001) and the constitution of the United Nations”, in Leiden Journal of International Law, vol. 16 (2003)).
    The SC decisions with legislative nature have been criticized within the UN System on some occasions. Many States before adoption of the second legislative resolution of the SC (Res 1540), raised their concerned and reservations with respect to the competence of the SC. Furthermore, the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism in its 2010 report to the GA declared that “while the Council is granted a great deal of discretion to determine what amounts to a threat to peace, this determination must always be linked to a specific concrete situation as opposed to an abstract problem or hypothetical future situation. Moreover, measures taken by the Council under Chapter VII should be taken on a case-by-case basis according to the principle of proportionality. The Council should use its exceptional powers solely to take measures deemed indispensable to countering a specific concrete situation that is posing a threat to international peace and security”. (See: A/65/258, http://www2.ohchr.org/english/issues/terrorism/rapporteur/docs/A.65.258_en_UNcompliance.pdf )

    The SC can bind State(s) with some obligations, but first of all when there is a threat to international peace and security and secondly the obligations shall be limited until the international peace and security has been restored. The second criterion means that the SC does not have the authority to impose general obligations on States permanently. In this context, the SC cannot make a treaty binding upon a State generally without its consent. It can produce some obligations for the concerned State(s) that may exist already in the treaties but not all of the treaty itself, including the related compliance procedure and dispute settlement mechanisms.
    Let’s put aside political rhetoric in the case of Iran (In order to know the established facts better, I only refer you to the note here: http://armscontrollaw.com/2012/10/01/global-security-newswire-factual-inaccuracy/) and confine ourself to apply the mentioned legal standard into Iran Case. Iran has announced its legal view before (See: Communication dated 26 March 2008 received from the Permanent Mission of the Islamic Republic of Iran to the Agency, 28 March 2008, INFCIRC/724, http://www.iaea.org/Publications/Documents/Infcircs/2008/infcirc724.pdf and Communication dated 8 December 2011 received from the Permanent Mission of the Islamic Republic of Iran to the Agency regarding the Report of the Director General on the Implementation of Safeguards in Iran, 12 December 2011, INFCIRC/833, http://www.iaea.org/Publications/Documents/Infcircs/2011/infcirc833.pdf )

    I agree with Prof Joyner and I think that the SC does not have the power to make obligatory treaty provisions for Iran, including the NPT, supposing that Iran was not a member or to withdraw, since it is ultra vires. It is very clear that SC in dealing with Iran Case has limited itself to agreements which Iran has consented before and with regard to instrument like additional protocol has utilized the soft term calls upon (See for instance the resolution 1929 in which SC only calls upon Iran to act strictly in accordance with the provisions of the Additional Protocol to its IAEA Safeguards Agreement that it signed on 18 December 2003, calls upon Iran to ratify promptly the Additional Protocol). Even if in theory such a power is existing for the SC, it cannot be applied to Iran because never the SC has determined that Iran’s nuclear programme is a threat to international peace and security and simply invoked its powers first under Article 40 of the Charter (res 1696) and them Article 41 (res 1737, 1747, 1803, 1929)!!!

    At the end, it is noteworthy to look into the question through the lens of the SC itself. The SC in its resolution 1887 has stated that “while noting ongoing discussions in the course of the NPT review on identifying modalities under which NPT States Parties could collectively respond to notification of withdrawal, and affirms that a State remains responsible under international law for violations of the NPT committed prior to its withdrawal”. This formula shows that SC evaluates the subject taking into account State’s Consent. The past practice of the SC in cases like Pakistan and India Test Case and the North Korea withdraw from NPT corroborates this conclusion too.

  8. Dan Joyner

    I first want to thank Dapo for taking the time to read my pieces and give such thoughtful comments on them. He does raise an interesting and useful point regarding whether the UNSC would be able to simply apply essentially the same obligations on Iran through resolution, if Iran withdrew from the NPT and the IAEA CSA. To me, this question fits under the general heading of the limits of UNSC authority. There’s been a great deal of writing on that topic, by many international law scholars including Dapo and myself. I typically find myself in the camp of wanting to establish real and fairly tight limitations on what the UNSC can do in terms of imposing new legal obligations on states that are of a lasting character – the kind of obligations that really should be the subject of treatymaking in my view. But the contours of this principle are of course grey, as for example illustrated by the case of Iraq in 1991 and the disarmament obligations imposed on it by the UNSC in Resolution 687. These new obligations were in response to a clear threat to international peace and security (the Iraqi invasion of Kuwait). In my 2009 book I spent two chapters on these questions. One chapter on the general question of the limits of the authority of the UNSC, and in particular applying this analysis to Resolution 1540. And then a second chapter basically arguing that the jurisdiction of the International Court of Justice to incidentally review the legality of UNSC decisions should be better understood and more actively utilized. That would be the best way to bring some clarity to this grey legal question in my view.

  9. Aldo Zammit Borda

    With respect to the above observations, although I would readily agree that “[i]t is clear that there are limitations on the SC authority,” it may appear that the assertion that “[n]o State can be obliged to join or implement a treaty without its consent” could be too categorical.

    For instance, when the UN Security Council adopted resolution 1593 (2005) referring the situation in Darfur, Sudan, to Prosecutor of the International Criminal Court (“ICC”), it may appear that the UN Security Council effectively obliged the Government of Sudan to implement, at least, some of the treaty obligations of the Rome Statute of the ICC without Sudan’s consent, given that Sudan was not a State Party of that instrument at the time.

    In operative paragraph 2, the UN Security Council decided that the Government of Sudan and all other parties to the conflict in Darfur shall cooperate fully with and provide any necessary assistance to the ICC and the Prosecutor pursuant to this resolution…

  10. Jordan

    Hossein: first, most here agree that the S.C. could mandate action under arts. 39-42 and use words that are reflected in some treaty other than the UN Charter (and would not technically be requiring compliance with another treaty as such); and second, if the S.C. acts under arts. 40 and 41 it must be the case that article 39 has been met and/or applied even if a resolution does not refer to such a fact precisely because S.C. action re: arts. 40, 41, or 42 would be ultra vires if article 39 criteria had not been met or did not apply. If so, the S.C. does not need to mention the fact that it considers that art. 39 criteria has been met or applies — this is necessarily implied. What do you think about such?
    p.s. re: the fact that the S.C. is bound by art. 55 of the UN Charter, please see Harv. Int’l L.J. on-line — my response is also at http://ssrn.com/abstract=1710744
    Thanks.

  11. Hossein Sadat

    1- The statement that I have expressed is a matter of principle. The SC could not obliged State(s) to join or implement a treaty without its (their) consent. Of course, to consider this statement as categorical or not, depends on your interpretation from the Charter and the legal school of thought one believe in. Regarding the example that has been referred (res. 1593), firstly, it has to be noted that the relevant treaty (Rome Statute) recognizes a jurisdictional role for the SC. But suppose, there was no such a power there, could the SC refer the situation again? I am really doubtful. Secondly, It has to be noted that the same resolution in the same paragraph “recognizing that States not party to the Rome Statute have no obligation under the Statute”.

    2- Jordan: My response to your first question is yes. The SC can oblige State(s) with requirements that may exist in a treaty before, but not all the treaty itself. Here, the case is not treaty matter, but an obligation arising from another source of international law (as it can be the case for relation between conventional and customary international law). Regarding the second question, I have to say that article 39 of the Charter does have two folds, a procedural and a substantive. As a matter of substance, it has been argued the SC does have full flexibility on situations that could be determined as instances mentioned in that Article (namely threat to peace, breach of the peace or act of aggression) and the SC’s practice has been in the same line (although I have reservations, in particular to recognize legal activities according to treaties as threat to peace). However, the case is different when you look into Article 39 as a matter of procedure. The SC “shall” determine and it means that SC does not have discretion but an obligation. Of course, this condition cannot be met only through referring to article 40.41 and 42, a fact that is missing in Iran case.

  12. Abdollah Abedini

    As prof. Joyner and Hossein said, bearing in mind that the SC like other bodies is bound by law, it seems incorporating of treaty obligations, completely or in partial, in a binding resolution of SC is a kind of ultra vires actions and it can be argued that several problems arise by this way.
    First of all, the SC could impose, under chapter VII, obligations against on its resolutions addresses consent because it has ‘primary responsibility for the maintenance of international peace and security in order to ensure prompt and effective action by the United Nations’. But this is very different when it turns to state sovereignty right. It should be noted ‘Security Council shall act in accordance with the Purposes and Principles of the United Nations’ and in this regard the SC takes into consideration this pivotal right to which the UN ‘is based on the principle of the sovereign equality of all its Members’. I want to say the SC also is bound this principle, as a matter that is different situation had indicated in article 2(7) due to consent related to conclude or withdraw from a treaty is not relevance here. So, withdrawing from a treaty is a fundamental right of sovereignty to undertake itself to treaty obligations and cannot jeopardize even by SC. On the other hand, in order to restrict the extraordinary powers of SC just to extraordinary situations, the powers should be regarded as specific ones that means because it might otherwise affect every obligation in international law, except jus cogens, and become itself as a threat to international peace and security that could be ‘jeopardized the supreme interests of [a] country’ and necessitates that country withdraw from the treaty ‘in exercising its national sovereignty’. (Article 10 (1) of NPT)

    Second point is that everywhere the SC has incorporated treaty obligations in a resolution; it has been accompanied by former consent of addressed state. In the case of Special Tribunal for Lebanon, however, this was not passed by Lebanon parliament, the resolution was accepted after negotiations and cooperation with government and even having adopted by SC, this action is vindicating by it. On the Darfur case that one of the readers mentioned, it should be noted Darfur referral’s to the ICC by resolution 1593 (2005) is a type of procedural one that has already been contemplated in article 12 (3) of Rome statute. This event repeated in Libya situation by resolution 1970 (2011). This fact comes true as to the some other referral cases.

  13. Jordan

    with respect to state “consent,” one interesting point is that all members of the UN Charter have consented in advance to the exercise of lawful powers of the S.C. (which, I admit, begs the question whether some forms of S.C. conduct are lawful in view of arts. 24(2) and 55). With respect to the S.C. “shall” — it is not clear that the S.C. has to articulate the fact that it did so — thus, if it does, it did.

  14. Abdollah Abedini

    On the prior consent to the Charter by member states, it seems this does not necessarily authorize the SC to take some measures that need to additional consent. This case can be visible in exercising jurisdiction in the ICJ case-laws. Another point that I have to pay attention to it is that in situations such as Darfur and Libya, the SC, besides applying a procedure embedded in an instrument, is attempting to take a decision against some individuals, not an influence on a nation necessarily, in order to fulfilling the main goal of Rome statute, that is, fight against impunity.

    In respect to nature of article 39, it is previously said that in interpretation of extraordinary powers it is acceptable that it should be narrowed that as possible as to prevent, on the one hand, potential abuses in the way applying that powers and, on the other hand, jeopardizing the regarded rights (particularly, supreme interests of a country here).

  15. Jordan

    p.s. I don’t accept the view that the S.C. cannot mandate that a state or states whose conduct is found to be threatening international peace and security (two purposes mentioned also in art. 1) comply with particular treaty law that is relevant to international peace and security — such as the 1949 Geneva Conventions. The Council has demanded and urged parties to internal and international armed conflicts to comply with human rights and humanitarian law. As noted by others, the S.C. has also set up international tibunals for criminal prosecution of crimes under customary international law (e.g., the ICTY and ICTR).

  16. When does an “armed attack” commence?
    New essay up on JURIST on Iran’s Nuclear Weapons Program and Lawful Israeli Self-Defense:
    http://www.jurist.org/forum/2013/01/jordan-paust-iran-israel.php
    –how could anyone disagree? [I know, some of you might, but this is worth debating]

  17. Hossein Sadat

    I also agree that SC can impose some obligations upon State(s) that may already exist in the treaties (conventional Law), but it can only borrow the identical obligations from the provisions of the treaties and not all the treaty itself (the case that we are discussing here). Of course, in such doing the SC does have some procedural (determination according to article 39) and substantive (in accordance with purposes and principles of the UN and also respect for fundamental inherent or inalienable rights of States) limitations. But, that obligation no longer is a treaty obligation and comes from another source of international law.

    Regarding to the examples, I have to emphasis that the SC when requiring parties to an armed conflict to comply with IHL and HRL treaties, it use the word “applicable” and not a general reference which it means that if the party or parties has consented to the relevant treaties. In my view, the other two examples (ICTY and ICTR) are different from the subject we considering here.