Sanctions, Countermeasures, and the Iranian Nuclear Issue

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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. …