Countermeasures vs. Collective Security? The EU Sanctions Against Iran

 Pierre-Emmanuel Dupont, is a lawyer based in Paris,France. His practice is centered on public international law and international investment. His article “Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran” will appear shortly in (2012) 17 Journal of Conflict and Security Law but is now available here

The additional sanctions agreed in early 2012 by the European Union against Iran in relation to its nuclear program (see Council Decision 2012/35/CFSP of  23 January 2012, and Council Regulation 267/2012 of 23 March 2012), including an embargo on imports of Iranian oil and the freeze of assets of the Iranian Central Bank, go well beyond those mandated by the successive UN Security Council resolutions (Res. 1737 (2006); 1747 (2007); 1803 (2008) and 1929 (2010); for a comprehensive analysis of Res. 1737 and Res. 1929, see e.g. D H Joyner, ‘The Security Council as a Legal Hegemon’, (2012) 43 Georgetown Journal of International Law 225-257, at 238-248.). Given their unprecedented extent, they raise various specific issues regarding their lawfulness under international law. I have written an article (a prepublication version of which is available here) in the forthcoming issue of the Journal of Conflict and Security Law, which aims at characterizing these measures. In this piece I argue that the EU measures cannot be characterised as measures of retorsion or as sanctions. Rather they are to be regarded as countermeasures. However, characterising these measures as such raises the question whether it is open to States or regional organizations to take countermeasures in circumstances where the UN Security Council has already adopted measures under Chapter VII of the Charter.

According to the ILC, a retorsion  is ‘unfriendly’ conduct ‘which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act’ (see Commentaries on the Draft articles on Responsibility of States for Internationally Wrongful Acts, in 2001 ILC Yearbook II(2), at 128). While it is true that measures restricting or impeding trade relations (in general or in specific areas), such as an embargo, are a typical example, often quoted, of retorsion (see ILC Commentaries on State Responsibility Articles at 128), it remains that, as it has been rightly noted, measures of the kind of those enacted by the EU in January 2012 ‘go beyond mere expressions of disapproval and involve the suspension of the performance of international legal obligations otherwise owed to Iran’ (N. Jansen Calamita, Sanctions, Countermeasures, and the Iranian Nuclear Issue, (2009) 42 Vanderbilt Journal of Transnational Law 1393-1442, at 1397). Indeed, in this case, the EU measures actually imply non-performance of various international legal obligations owed to Iran, for instance treaty commitments under BITs (see e.g. Iran-Germany BIT, 1965, Iran-France BIT, 2003). It may also be considered that the oil embargo, and in particular the mandatory termination of existing contracts related to import, purchase and transport of petrochemical products, raises prima facie an issue of compliance with a customary standard of investment protection.

In addition, as regards the measures taken against the Iranian Central Bank, they may be deemed to conflict with rules governing immunities and privileges of foreign States under international law, and in particular of the 2004 UN Convention on Jurisdictional Immunities of States and their Property, which is widely considered as reflecting customary international law, and provides for immunity of property of property of a central bank or other monetary authority from execution. It may also be considered that this measure violates the rules of the IMF. Article VIII(2)(a) of the IMF Agreement provides indeed that no IMF member ‘shall, without the approval of the Fund, impose restrictions on the making of payments and transfers for current international transactions’.

Insofar as they imply non-performance of international obligations owed to Iran, the EU measures cannot be characterized as retorsion. Then do they qualify as ‘sanctions’? Here sanctions are understood as referring to enforcement measures adopted on the basis of a UN Security Council resolution, and are to be distinguished from autonomous ‘restrictive measures’ (in the meaning used by the Council of the EU, see e.g. Council of the European Union, Guidelines on implementation and evaluation of restrictive measures (sanctions) in the Framework of the EU Common Foreign and Security Policy (2009). I observe in that respect in my paper that none of the UN Security Council resolutions adopted so far in the context of the Iranian nuclear program has provided for a prohibition of oil imports fromIran.

The consequence of the finding that these measures are not retorsions or (UNSC-mandated-) sanctions is that the measures considered necessarily qualify as countermeasures, and are therefore governed by the law of State responsibility. More precisely, these measures are governed by the provisions on countermeasures contained in the ILC’s State Responsibility Articles, as well as by the 2011 Draft articles on the Responsibility of International Organizations (DARIO), insofar as these measures have been enacted in the framework of the EU Common Foreign and Security Policy. As to the interaction between the two sets of rules set out in the ILC’s respective Articles on the Responsibility of States and that on International Organizations (which are to a large extent similar) in the context of countermeasures, I refer the reader to my article.

The question arises then whether the EU measures comply with the procedural (notification, offer to negotiate, etc.) as well as substantial conditions applicable to countermeasures (i.e. (i) the existence of the wrongful act, (ii) the fact of qualifying as ‘injured’ State/international organization, and (iii) proportionality). Here again, the interested reader is invited to take a look to my article. But in my view the most sensitive issue is that of the availability of recourse by States (or regional organizations) to countermeasures in situations in which the Security Council has taken action under Chapter VII of the UN Charter. As is well known, opposite views have been expressed on this issue, with some arguing that

the limited scope of the Security Council’s sanctions resolutions does not mean that additional reactive measures against Iranby states acting individually or in concert are foreclosed. Iran’s noncompliance with its NPT obligations has its own effects under the law of state responsibility (N. Jansen Calamita, art. cit., at 1418)

Other authors have held, on the contrary, that recourse by the Security Council to the measures provided for in Chapter VII is an instance of limitation on the unilateral use of countermeasures, or in other words that

countermeasures could be applied only as long as sanctions had not been decided by a competent international body (A. Pellet on the fourth report of the Special Rapporteur on State Responsibility (A/CN.4/444 and Add.1-3), 1992 ILC Yearbook I, at 144).

It may be argued in general that the taking of countermeasures in such situations is of such a nature as to undermine the coherence of the Charter-based collective security system. The reason is that countermeasures, even ‘collective’ ones (understood here as measures adopted by any State not individually injured in response to grave violations of erga omnes obligations, or of essential obligations for the protection of a collective interest, in the sense of Article 48 State Responsibility Articles), assume a ‘subsidiary character in relation to the powers of the Security Council’ (see L. A. Sicilianos, ‘Countermeasures in Response to Grave Violations of Obligations Owed to the International Community’, in J. Crawford, A. Pellet & S. Olleson (eds), The Law of International Responsibility (Oxford: Oxford University Press, 2010), 1137-1148, at 1138), or in other words that if the Security Council acts in the institutional framework of Chapter VII, the power to adopt countermeasures on an individual level disappears. Professor Sicilianos has summarized the rationale underlying this argument, and distinguishes the period preceding Security Council Chapter VII action from the period which follows adoption of Chapter VII measures:

First, the problem of ‘collective’ countermeasures presents itself in the case of a failure of the Security Council, which manifests itself either because the Council does not judge itself competent to deal with a situation concerning a grave breach of a relevant rule of international law or because it cannot enact sanctions because of the use of the veto, or because it is slow to do so. Second, beginning from the moment when the Council occupies itself with the adoption of mandatory sanctions, member States tr     ansform into agents for the execution of these sanctions, their duty being to implement them in good faith without undermining their effective application. For States not individually injured, this implies an obligation to suspend countermeasures already adopted at the individual level, if they are different or incompatible with the measures decided by the Security Council, or in any case, to modify them in order to harmonize them with the UN sanctions. A fortiori, the States in question should not adopt ‘collective’ countermeasures after the pronunciation of mandatory sanctions, but only measures which are necessary and sufficient for the execution of those mandatory sanctions. In short, unless the Security Council invites States to go further than its own measures – a rare event in practice – the triggering of Chapter VII ends the power of States not individually injured to react as they please at the individual level. This view is consistent with the spirit of the Charter as a ‘constitutional’ instrument of the international community, and it is also consistent with article 59 [ARSIWA], which stipulates that the articles are ‘without prejudice’ to the Charter (L. A. Sicilianos, op.cit., at 1142).

Indeed, it is in my view quite paradoxal that, once a given situation has been referred to the Security Council, and once the latter has taken action pursuant to Chapter VII, States – acting either individually or in the framework of a regional organization such as the EU – retain the right to enact countermeasures going beyond the sanctions decided by the Security Council. In doing so, the States enacting countermeasures of their own purport to retain for themselves de facto an authority which, on the other hand, in their capacity as member States of the UN as well as in their capacity as member States of the IAEA (which have voted in favor of the transfer of the Iranian file to the Security Council through the IAEA Board of Governors), they have conferred upon the Security Council under the terms of the Charter (see Art. 24(1), which provides that ‘[i]n order to ensure prompt and effective action by the United Nations, its Members confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf’). It may be wondered whether such practice can be reconciled with the requirement of performance in good faith of treaty provisions.

The ILC’s works on the legal regime of countermeasures had raised expectations about an enhanced role given to peaceful settlement procedures in the context of wrongful acts attributed to a State, and more precisely an expectation, formulated by several members of the ILC, that the taking of unilateral measures shall be made subject (in one way or another) to prior recourse to dispute settlement mechanisms. Christian Tomuschat, among others, had expressed the opinion that ‘the international community would make a great step forward if it succeeded in bringing unilateral responses by States to encroachments upon their rights under stricter discipline’ (C. Tomuschat, ‘Are Counter-Measures Subject to Prior Recourse to Dispute Settlement Procedures?’ (1994) 5 EJIL 77-88, at 78). From this point of view, the behaviour of the EU, in enacting the latest ‘sanctions’ onIran, may be seen as a significant step backward.