Iran, The Nuclear Issue & Countermeasures

Sahib Singh is a Visiting Lecturer of International Law at the University of Vienna, a Visiting Fellow at the British Institute of International & Comparative Law and a PhD candidate at the University of Cambridge. The legal principles and arguments put forward are addressed far more extensively, albeit in the context of a different enquiry, in a forthcoming book chapter on Countermeasures and Non-Proliferation Law (draft here).

Since the publication of the International Atomic Energy Agency’s (IAEA) report on Iran of 8 November 2011, the Iranian nuclear issue has continued to slowly escalate.  This escalation has largely been constrained within its own narrative and of economic sanctions but, at other points, has spilled into diplomatic rows and military threats (see here and here).  In the forthcoming weeks, certainly the US, and possibly the EU, shall significantly broaden existing sanctions, introducing a spate of new sanctions as part of a marked shift in sanctions strategy.  However, despite familiar policy issues arising with such a shift, this post shall examine a foundational legal question: do states, beyond the scope of existing Security Council mandated sanctions, have standing to take unilateral countermeasures against Iran, and if so, upon which particular legal grounding?  In particular, I wish to examine the question of standing, under the law of State responsibility (particularly under Article 42(b)(ii) of the ILC Articles on State Responsibility), to respond to alleged breaches of the collective non-proliferation obligations contained in the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).  The post shall determine that there is a considerable ambiguity in the law, arising from the tension between the law of treaties and the law of state responsibility, and arguably, states undertaking unilateral sanctions as a form of countermeasures against Iran may not have strict legal standing to do so (see here, pp. 10-24 for a more detailed examination).

Background & Delineating the Legal Question

Since 2002, when Iran revealed uranium enrichment facilities in Natanz and Arak that had been previously concealed for nearly 18 years, the IAEA and the international community has viewed Iran’s nuclear program with concern for its possible military dimensions.  Iran has continuously sustained its ‘inalienable right’ to peaceful use of nuclear technology (including acceptable levels of uranium enrichment) under Article IV NPT.  Despite mere suspicions and no conclusive evidence of a clandestine nuclear weapons program, and acting in discordance (although not necessarily in breach) with Article XII(c) of its Statute, the IAEA referred the case of Iran to the UN Security Council (UNSC) in February 2006.  Since the passage of UNSC Resolution 1696 (2006), Iran’s rights and obligations in relation to its nuclear program have been severely transformed, and the first of four rounds of UNSC Chapter VII economic sanctions were put in place.  The latest and most extensive of these was UNSC Resolution 1929 (2010), passed on 9 June 2010 (see pp. 39-44 of my paper for a discussion of parts of it).

Yet, against this background, matters were significantly inflamed by the release of the controversial IAEA Report on Iran, in early November 2011.  Specifically, the Report included an Annex entitled: “Possible Military Dimensions to Iran’s Nuclear Programme”, which for the first time detailed all available evidence as to Iran’s clandestine program.  The Report is controversial not merely for its apparent breach of procedural confidentiality requirements relating to States’ nuclear programs, but more so because the IAEA has arguably proceeded well outside its legal mandate and undertaken an aggressive reading of the NPT (see Iran’s considered legal response here).  Dan Joyner, a leading non-proliferation expert, makes a scathing and persuasive critique here.  Yet, regardless of the principled arguments that can be made against its publication, this post concerns itself with the ramifications of the latter.

Since then, the following has happened: (a) by the end of November, the EU, some of its member states and US implemented a new round of sanctions (see here, here, here and here), as well as a spate of other states; (b) UNSC action was contemplated, and rejected, but the UNSC met with the 1737 Committee on Iran on 21 December (see here for summary, full meeting record embargoed); (c) the US has sought to significantly expand and make markedly more aggressive its sanctions strategy (through Executive Orders, e.g. Ex. Ord. 1350 of 21 Nov. 2011 and enacted legislation, e.g. the Iran Sanctions Act and as of 31 December the National Defense Authorization Act) (for a comprehensive overview see the Congressional Research Centre Report here – this is pre-NDAA) – a trend that is reported to be in the process in other states; (d) the escalation of the matter to Iran threatening to suspend transit through the Strait of Hormuz (see here) on 27 December 2011 (its right to do so, is an interesting question of Articles 37, 38 and 44 of UNCLOS – although Art. 44 seems determinative against Iran) and US retort (see here and here), and Iran asking to come back to the negotiating table on new year’s eve (see here).

This post is concerned with developments (a) and (c) above, namely, the implementation of unilateral and aggressive economic sanctions.  In particular, its applicability is not limited to just these developments, but also all previous unilateral economic sanctions implemented by various states (Japan, Australia, etc.) since 2006.  It is important to note four points of delineation here.  First, this post only extends to such sanctions that may not be regarded as retorsions, but rise to countermeasures (the majority).  Second, the post is only concerned with those sanctions that extend beyond those mandated by the UNSC in its various resolutions between 2006 and 2010 (points (a) and (c) above become more relevant here).  Third, this post presumes that, in accordance with standing international law unilateral countermeasures are permitted despite the UNSC having taken Chapter VII action (contra Pellet’s view in the ILC – see [1992] 1 Yb ILC at 144).  Fourth, and finally, this post shall consider standing to take countermeasures under the traditional criteria of Article 42 ILC Articles (dealing with directly injured States) only – the role of Articles 48 and 54 (dealing with violations of obligations erga omnes and the rights of States not directly injured) is too murky and complicated to be dealt with here. IN any case, it is the author’s opinion that state practice has not yet evolved to enable standing, under those latter provisions, for the violations we are concerned with in regards Iran and its nuclear program.

Identifying the Nature of the Iranian Breach

Before being able to answer the question identified in the first paragraph of this post, there is an anterior issue that needs to be clarified: the source and nature of the obligation(s) breached by Iran, in response to which the countermeasures are being taken.

The evidential information provided in the IAEA Iran Report is comprehensive and certainly does not paint a pretty picture.  The Report details Iranian possession of a certain document that would give it partial knowledge on how to build a nuclear warhead, or some of its component parts.  The Report also expresses a considerable concern with the ability of Iran to enrich uranium as a fissile material.  Whilst constituting a continuing breach of numerous UNSC Resolutions, these are irrelevant for the purpose of analyzing States’ standing to take unilateral countermeasures.  The dominant arguments rest on stating that Iran has breached two specific collective obligations contained in the NPT.  First, the Article II obligation “not to manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices” has been breached.  Second, it is argued, Iran has breached its obligations to follow and apply accepted IAEA safeguards in contravention of Article III(1).  The veracity of these claims shall not be broached here, but for the reader’s interest I would refer to Joyner’s eloquent argument as to why there has been no breach of Article II – based on a comprehensive and objective examination of the term “manufacture” and its misuse (see here, see 2011 book, Interpreting the Non-Proliferation Treaty here, and 2009 book here (pp. 16-18)).  It is widely accepted that Iran has breached certain IAEA safeguard obligations, but the scope of these are unclear (i.e whether they simply relate to the IAEA-Iran Safeguards Agreement INFCIRC/214 or whether they extend to the Additional Protocol which Iran has not ratified (but has been made binding through UNSC Res. 1929 (2010) and not Art. III(1) NPT), and even subsidiary agreements).

Given the argued and, for present purposes, presumed breach is of collective obligations contained in the NPT, Art. 42(b) ILC Articles is triggered as the only basis of standing for countermeasures.  Art. 42(b)(i)’s threshold is not met in the present case.  Standing to take unilateral countermeasures can only be justified under Art. 42(b)(ii) if the “breach of the obligation … is of such a character as radically to change the position of all other States to which the obligation is owed with respect to the further performance of the obligation.”

Logical Inconsistencies: Interdependent Obligations in the Law of Treaties and Art. 42(b)(ii) ILC Articles

Article 42(b)(ii) is premised on defining a legal rule for standing to invoke responsibility for the breach of an interdependent obligation (ILC Commentaries, para (5) of Art. 42), as a subset of collective obligations.  This article operates on the presumption that a diverse (including countermeasures) and decentralized response to the breach of interdependent obligations arises from the inherent characteristics and nature of such obligations.  Yet, Article 42(b)(ii)’s text and conceptual grounding in interdependent obligations is founded upon the ILC’s work on the law of treaties, and in particular Fitzmaurice’s exposition of different types of multilateral treaties and obligations (see Second Report, at 31 and 37).  It is argued that overreliance on this foundation has led to the logical inconsistencies in conceptualizing when an obligation can be classified as interdependent, and thus, when responsibility may be invoked to undertake available countermeasures.  This has particularly unsettling consequences for non-proliferation law and identifying how the law on standing to take countermeasures should be applied in the current situation with Iran.

The central question is whether the Art. II NPT obligation not to “manufacture” nuclear weapons, as well as, the Art. III(1) obligation to apply accepted IAEA safeguards are to be considered as interdependent obligations.  If so, a breach of them shall certainly trigger Art. 42(b)(ii), thereby enabling standing to take countermeasures.  Approaches to this question have loosely classified the NPT as an interdependent treaty and therefore a breach of the safeguards provisions or substantive provisions would permit recourse to countermeasures through Article 42(b)(ii) (see Jensen Calamita’s excellent article in the Vanderbilt Journal of Transnational Law).  This approach collapses the distinction between treaties and obligations, as well as, the law of treaties with the law of state responsibility.  One must be concerned with classifying obligations as interdependent or not; the classification of the treaty is irrelevant.

Fitzmaurice defined interdependent obligations as those in which “performance by any party is necessarily dependent on an equal or corresponding performance by all other parties” (Second Report, p. 31, see also para. 126) and whose breach “tends to undermine the whole regime of the treaty between all the parties” (ILC Draft Articles on Law of Treaties Commentary, (1966) 2 Yb ILC 255).  Crawford defined it as that where “performance of the obligation by the responsible state is a necessary condition of its performance by all the other States” (ILC Commentaries, para (5) of Art. 42, see also Crawford, Third Report, para. 91).  Forgive the quick statements of quite complex positions, but my paper (pp. 12-21) can be viewed for more detail.  In short, what emerges is that the defining or core principle of what comprises an interdependent obligation differs based on whether considered from a treaty law or state responsibility law perspective.  From a treaty law perspective, the core characteristic is that a breach of a specific treaty obligation of an interdependent nature renders future performance of the treaty by all other parties to it impossible, indeed breach of a specific obligation threatens the entire structure of the treaty and the sum of its obligations. However, from a state responsibility law and Art. 42(b)(ii) perspective, the determining characteristic of an interdependent obligation is that a breach of the specific obligation would per se affect and undermine every other state’s future performance of solely that same specific obligation.

The application of this logic to Iran’s Article II and III(1) NPT obligation leads to some worrying ambiguities.  Dealing first with Iran’s Article II obligation not to “manufacture” nuclear weapons.  From a treaty law perspective, Iran’s breach of this obligation would clearly call into question the ability of all other NPT state parties to perform most of their substantive obligations.  Indeed, the other state parties’ performance of these obligations is effectively conditioned upon the performance of the other state parties of their substantive obligations (not actually conditioned, as for synallagmatic obligations). Iran’s non-performance of its obligation not to manufacture would thereby radically modify other states performance of their obligations.  It cannot be questioned that non-performance by one party of such an obligation would threaten the entire treaty structure of the NPT.  However, under the narrower state responsibility perspective, Iran’s breach of this obligation would not undermine or modify the position of all other States to which the obligation is owed, with respect to the future performance of that same specific obligation.  Two reasons emerge as to why these requirements of Article 42(b)(ii) cannot be met.  First, not all other state parties to the NPT will have their further performance of this particular obligation compromised or affected, for the simply reason that not all other states are required to perform the obligation not the manufacture.  The obligation not to “manufacture” only attaches to non-nuclear weapon states (NNWS), not to nuclear weapon states (NWS) such as the US, and is owed to all the NPT state parties.  Second, as a direct consequence of the first point, the future non-performance of the same specific obligation is not necessarily at issue (as required by the core criteria of interdependent obligations).  For NWS, potential non-performance would attach to different, but related, substantive obligations contained in Article I NPT.  The apparent asymmetry between those obligations being breached and those obligations in danger of future non-performance, reveals a core problem as to which substantive non-proliferation obligations can be qualified as interdependent (despite the common conception that all of them are, see further here, pp. 20-21, fn. 67).

Turning to Iran’s safeguard obligations under Article III(1), it should be clear that from a state responsibility and Art. 42(b)(ii) perspective, these cannot be considered as interdependent within the strict test.  Yet, under a treaty law perspective it is my position that only a specific sub-set of safeguard obligations (namely those with a distinct and concrete link to substantive obligations) in only cases of a significant breach, can be qualified as interdependent. There are two sub-issues here; the type of verification obligation involved and the type of breach involved. First, one must differentiate those procedural safeguard obligations that have a distinct and direct connection to substantive obligations (e.g. the obligation to disclose and report and the existence of a facility utilizing WMDs for peaceful purposes) and those that do not (e.g. reporting within a specific timeframe). Second, one must consider that for the first type of obligation just submitted, the significance of the breach involved is critical. Should it be a case of technical non-compliance, which are manifest, of a safeguard obligation that is strongly linked to substantive ones, then this is hardly sufficient to enable standing for all state parties to that obligation to take countermeasures.

Conclusion

Worryingly, it emerges that it is difficult to find a legal basis for standing to take countermeasures for the assumed Iranian breaches of Articles II and III(1) NPT, for the likes of NPT state parties such as the US, certain EU member states, Japan and many others taking economic sanctions.  This difficulty arises from the expedient but logically inconsistent transference of a treaty law conceptualization almost directly, without much modification, into the law of state responsibility.  There are two ways to read Article 42(b)(ii), namely: (1) it provides standing to the aforementioned states because it is premised on the broad understanding of interdependent obligations in the law treaties – and such an understanding of the concept should be read into the Article.  (2) it must pertain solely to the situation where it is concerned with the modification of the future performance of the same specific obligation that has been breached; this is the only conceptually coherent reading available if one it to maintain the methodology of the ILC Articles on State Responsibility.  I personally fall into the latter camp, because Article 42(b)(ii) must be conceived of as articulating a rather novel legal position based on conceptualizations with significant intellectual baggage – the relevance of this baggage to the particularities of the law of state responsibility is perhaps to be doubted.

Needless to say, such a conclusion is not particularly favorable to supporting unilateral sanctions by the US and other States against Iran, within the context of the NPT.