Countermeasures and collective security: The case of the EU sanctions against Iran

Journal of Conflict and Security Law

Volumn 17, Issue 3, 2012, Pages 301-336

  Dupont, Pierre Emmanuel ^a,b  

^a UNIVERSITÉ DE NANTES   (France)

^b UNIVERSITÉ PARIS EST CRÉTEIL   (France)

Author keywords

[No Author keywords available]

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EID: 84870902813     PISSN: 14677954     EISSN: 14677962     Source Type: Journal    
DOI: 10.1093/jcsl/krs020     Document Type: Article

References (188)

1. For precedents in EU/EC practice, see LA Sicilianos, 'Countermeasures in Response to Grave Violations of Obligations Owed to the International Community' in J Crawford, A Pellet and S Olleson (eds), The Law of International Responsibility (OUP 2010) 1137-48, 1141.
2. See eg 'EU discussing plan to start Iran oil ban on July 1' Reuters (17 January 2012).
3. 'EU states agree in principle to sanction Iran central bank' Reuters (18 January 2012).
4. 'Restrictive measures' is the official term used by the EU institutions to designate 'sanctions'.
5. EU Council Conclusions on Iran (3142th Foreign Affairs Council meeting, Brussels, 23 January 2012) para 2.
6. See EU Council, Press release 5457/12 of 23 January 2012, 'Iran: New EU sanctions target sources of finance for nuclear programme'.
7. On the international controversy centred on the Iranian nuclear program, see eg SN Kile (ed), Europe and Iran. Perspectives on Nonproliferation (OUP 2005).
8. SN Kile, 'Nuclear Arms Control and Non-proliferation' in SIPRI Yearbook 2009 Armaments, Disarmament and International Security (OUP 2009) 387ff.
9. SN Kile, 'Nuclear Arms Control and Non-proliferation' in SIPRI Yearbook 2011 Armaments, Disarmament and International Security (OUP 2011) 3811ff.
10. PE Dupont, 'The EU-Iran Dialogue in the Context of the Nuclear Crisis' (2009) 3 Central Europ J Intl Sec Stud 97-112.
11. N Jansen Calamita, 'Sanctions, Countermeasures, and the Iranian Nuclear Issue' (2009) 42 V and J Transnatl L 1393-442.
12. These UN Security Council Resolutions are res 1696 (31 July 2006); 1737 (23 December 2006); 1747 (24 March 2007); 1803 (3 March 2008); 1835 (27 September 2008); and 1929 (9 June 2010).
13. For a comprehensive analysis of res 1737 and res 1929, see eg DH Joyner, 'The Security Council as a Legal Hegemon' (2012) 43 Georgetown J Intl L 225-57, 238-48.
14. See the latest Report by the IAEA Director General on 'Implementation of the NPT Safeguards Agreement and Relevant Provisions of Security Council Resolutions in the Islamic Republic of Iran' (24 February 2012) GOV/2012/9 para 50 (accessed 18 June 2012).
15. It is to be noted that, under the terms of its Safeguards Agreement with the IAEA, the Government of Iran has undertaken 'pursuant to paragraph 1 of Article III of the [NPT], to accept safeguards, in accordance with the terms of this Agreement, on all source or special fissionable material in all peaceful nuclear activities within its territory, under its jurisdiction or carried out under its control anywhere, for the exclusive purpose of verifying that such material is not diverted to nuclear weapons or other nuclear explosive devices'.
16. 'Implementation of the NPT Safeguards Agreement' (n 8) para 51. The previous IAEA Report ('Implementation of the NPT Safeguards Agreement and relevant provisions of Security Council resolutions in the Islamic Republic of Iran' 8 November 2011 GOV/2011/65), to which was attached an Annex on 'Possible Military Dimensions to Iran's Nuclear Programme', relying on some documents submitted to the IAEA by various Western States (whose authenticity has not been established), has been subject to some criticism. The Russian government, for instance, has stated that the report is 'a compilation of known facts to which a politicized ring is deliberately given. When there is no convincing evidence base, the authors embark on assumptions and suspicions, there is juggling of information to form impressions about the alleged presence of a military component in the [Iranian nuclear program]. Such an approach can hardly be called professional and impartial' (see 'Statement by the Ministry of Foreign Affairs of Russia on the Adoption by IAEA Board of Governors of a Resolution on Iran's Nuclear Program' 18 November 2011). An author, Prof Daniel Joyner, has expressed the view that 'the IAEA simply has no legal mandate to produce such a report on activities being carried on within an IAEA Member State concerning items and technologies that may be related to the development of a nuclear explosive device, but that are not directly related to fissionable materials or associated facilities'.
17. See DH Joyner, 'Iran's Nuclear Program and the Legal Mandate of the IAEA', JURIST-Forum 9 November 2011 (accessed 18 June 2012).
18. Following such reasoning, it may be deemed that by conducting, allegedly under the heading of 'implementation of safeguards', enquiry and analysis on these matters and subsequently by issuing the Report, the IAEA has acted ultra vires.
19. SC Res 1696 (31 July 2006) para 2.
20. See Prosecutor v Dusko Tadic (Decision on the Defense Motion for Interlocutory Appeal on Jurisdiction) ICTY-94-1-AR72 (2 October 1995) para 33: 'Obviously, the establishment of the International Tribunal is not a measure under Article 42, as these are measures of a military nature, implying the use of armed force. Nor can it be considered a "provisional measure" under Article 40. These measures, as their denomination indicates, are intended to act as a "holding operation", producing a "stand-still" or a "cooling-off" effect, "without prejudice to the rights, claims or position of the parties concerned." (United Nations Charter, art 40.) They are akin to emergency police action rather than to the activity of a judicial organ dispensing justice according to law. Moreover, not being enforcement action, according to the language of Article 40 itself ("before making the recommendations or deciding upon the measures provided for in Article 39"), such provisional measures are subject to the Charter limitation of Article 2, paragraph 7, and the question of their mandatory or recommendatory character is subject to great controversy; all of which renders inappropriate the classification of the International Tribunal under these measures'.
21. The Resolution '[c]alls upon all States, in accordance with their national legal authorities and legislation and consistent with international law, to exercise vigilance and prevent the transfer of any items, materials, goods and technology that could contribute to Iran's enrichment-related and reprocessing activities and ballistic missile programmes' (para 5).
22. A Sanctions Committee was set up, as a subsidiary organ of the Security Council, pursuant to resolution 1737 (23 December 2006) on 23 December 2006 to oversee States' efforts to implement the sanctions imposed and to undertake the tasks set out in para 18 of the resolution. The mandate of the Committee was subsequently expanded by resolution 1803 (3 March 2008), to also include the measures imposed in resolutions 1747 (24 March 2007) and 1803 (3 March 2008).
23. SC Res 1737 (23 December 2006).
24. SC Res 1929 (9 June 2010).
25. It is to be noted that the official stance of the Iranian government is that '[t]he Islamic Republic of Iran [. . .] is against production, stockpiling, development and proliferation of nuclear weapons, and considers that production of new generations of these weapons would particularly inhibit constructive efforts towards disarmament, and rejects production of any and all nuclear, biological and chemical weapons'.
26. See 'Letter dated 11 October 2006 from the Permanent Representative of the Islamic Republic of Iran to the United Nations addressed to the Secretary-General' (A/61/ 514-S/2006/806).
27. See also 'Statement of Iran's President Mahmoud Ahmadinejad before the 2010 Review Conference of the Parties to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), United Nations, New York 3 May 2010' at (accessed 18 June 2012).
28. 'Some Facts and Materials on the Peaceful Nuclear Program of the Islamic Republic of Iran', available on the website of the Permanent Mission of Iran to the UN, at
29. See 'Explanatory Note by the Permanent Mission of the Islamic Republic of Iran to the IAEA on the Director's General Report on Implementation of Safeguards in the Islamic Republic of Iran' (18 November 2011) circulated as attachment to IAEA Doc INFCIRC/833 (12 December 2011).
30. See Joyner (n 7), who observes that the referral of Iran's case to the Security Council by the IAEA Board of Governors, 'without a supporting report by IAEA inspectors providing evidence that Iran was in breach of its substantive NPT obligations, or that it was in continuing breach of its safeguards agreement, has led some to criticize the Board's decision as premature' (240).
31. See 'Transcript of Director General's Remarks at Conclusion of IAEA Board Meeting', 8 March 2006, (accessed 18 June 2012).
32. 'We should not forget that a primary responsibility of the Security Council is the peaceful settlement of disputes. And I think that is where everyone is looking to the Security Council at this stage'.
33. See 'Transcript of Director General's Remarks' (n 18).
34. Prof D Joyner has recently noted that the IAEA's 'track record in devoting so much critical attention to Iran over the past nine years, and not to other nonnuclear-weapon states who have for decades engaged in precisely the same production of knowledge and capabilities, through the same processes, has convinced both Iran and the other members of the Non-Aligned Movement (comprising the vast majority of states in the world) that the IAEA has thereby undermined its independence and objectivity as a technical monitoring and verification body. Instead, they believe, it has become a politicized instrument of the foreign policy goals of the US and other Western states'.
35. See Joyner (n 9).
36. See 'Explanatory Note by the Permanent Mission of the Islamic Republic of Iran to the IAEA' (n 17).
37. See J Frowein and N Krisch, 'Article 39' in B Simma (ed), The Charter of the United Nations. A Commentary (OUP 2002) 717-29, 726-27.
38. A Tzanakopoulos, Disobeying the Security Council (OUP 2011) 60ff.
39. See UN Charter, art 25. Moreover, it is generally agreed that non-compliance with UN Security Council resolutions would entail State responsibility.
40. See V Gowlland-Debbas, 'Sanctions Regimes under Article 41 of the UN Charter' in V Gowlland-Debbas (ed), National Implementation of United Nations Sanctions: A Comparative Study (M Nijhoff 2004) 19-20.
41. UN Charter, art 25. On the (controversial) issue of interpretation of Article 25, see eg Tzanakopoulos (n 22) 58.
42. J Delbrück, 'Article 25', in Simma (n 22) 452-64, 455 and 459-60.
43. A Orakhelashvili, 'The Impact of Peremptory Norms on the Interpretation and Application of United Nations Security Council Resolutions' (2005) 16 EJIL 59-88
44. Has noted that 'the obligation to comply with the Council's resolutions is conditional upon the Council's compliance with the Charter principles: Article 103 [of the Charter] cannot make a resolution which is unlawful under the Charter prevail over other legal norms' (69).
45. For developments on the relationship between EU and EC competences as regards sanctions see eg P Koutrakos, Trade, Foreign Policy and Defence in EU Constitutional Law. The Legal Regulation of Sanctions, Exports of Dual-use Goods and Armaments (Hart Publishing 2001).
46. See also P Mariani, 'The Implementation of UN Security Council Resolutions Imposing Economic Sanctions in the EU/EC Legal System: Interpillar Issues and Judicial Review' (2009) Bocconi Legal Studies Research Paper No 1354568.
47. G Zagel, 'Economic Sanctions of the European Community: A Commentary on Art. 301 TEC' (2005) SSRN: (accessed 18 June 2012).
48. OJ L 61, 28 February 2007, 49. It has been amended several times, and then repealed by Council Decision 2010/413/CFSP (OJ L 195, 27 July 2010, 39).
49. OJ L 103, 20 April 2007, 1. This Regulation, as amended, was repealed and replaced by Council Regulation (EU) No 961/2010 (OJ L 281, 27 October 2010, 81) 'for the sake of clarity'.
50. The Iran (European Union Financial Sanctions) Regulations 2012 (SI 2012/925), entered into force on 26 March 2012.
51. French Code Monétaire et Financier Art L 562-2.
52. The measures currently applicable include Presidential Executive Order 12957 (1995) prohibiting USA involvement with petroleum development in Iran, Executive Order 12959 (1995), and the 'Iran Lybia Sanctions Act' (1996), which has become the 'Iran Sanctions Act' since Lybia is no more considered as supporting international terrorism.
53. In particular, the Comprehensive Iran Sanctions, Accountability, and Divestment Act may collide with the so-called 'EU Blocking Regulation', ie the Council Regulation (EC) No 2271/96 of 22 November 1996 'protecting against the effects of the extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom' (OJ L 309, 29 November 1996, 1). This Regulation prohibits certain legal persons incorporated within the European Community, from complying with certain US sanctions regimes, including the 'Iran and Libya Sanctions Act of 1996', and is likely to apply to the 2010 Act.
54. See HL Clark, 'Dealing with U.S. Extraterritorial Sanctions and Foreign Countermeasures' (1999) 20 U Pa J Intl Econ L 1, 61.
55. The Cuban Liberty and Democratic Solidarity (Libertad) Act of 1996, available at (accessed 18 June 2012).
56. The Iran and Libya Sanctions Act of 1996, available at (accessed 18 June 2012).
57. See eg B Stern, 'Vers la mondialisation juridique? Les lois Helms-Burton et d'Amato-Kennedy' (1996) 100 RGDIP 979-100.
58. For a comprehensive analysis of both acts, see V Lowe, 'US Extraterritorial Jurisdiction: The Helms-Burton and D'Amato Acts' (1997) 46 ICLQ 378-90.
59. Council Regulation (EC) No 2271/96 of 22 November 1996 (n 31).
60. The Regulation has been published in the EU Official Journal of 24 January 2012 L 19, 10.
61. Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ L 88/1, 24 March 2012).
62. Regarding the legal effects of UN Security Council-mandated sanctions on commercial contracts, see eg G Burdeau, 'Les effets juridiques des r'solutions du Conseil de sé curité sur les contrats priv's' in V Gowlland-Debbas (ed), United Nations Sanctions and International Law (Kluwer Law International 2001) 267-88.
63. For an analysis of the interaction between WTO law and economic sanctions, see L Boisson de Chazournes and T Boutruche, 'International Trade Law, United Nations Law, and Collective Security Issues' in D Bethlehem and others (eds), The Oxford Handbook of International Trade Law (OUP 2009) 695-722.
64. EU Council Conclusions on Iran (n 4) para 2.
65. G Arangio-Ruiz, 'Third Report on State Responsibility' A/CN.4/440/Add 1 (1991) ILC Yearbook II (1) para 8.
66. Commentaries on the Draft articles on Responsibility of States for Internationally Wrongful Acts (2001) ILC Yearbook II (2) 128.
67. A Cassese, International Law (OUP 2004) 310.
68. See also MN Shaw, International Law (CUP 2008) 1128.
69. see also P Daillier, M Forteau and A Pellet, Droit International Public (LGDJ 2009) 1055.
70. O Schachter, International Law in Theory and Practice (Martinus Nijhoff 1991) 198, defining retorsion as 'counter-measures of a non-amicable character (short of use of force) that do not involve a breach of an international obligation by the State taking such measures. They are measures that an aggrieved State is legally free to take whether or not an offending State committed a breach on its part'.
71. See Commentaries (n 42) 128: '[a]cts of retorsion may include the prohibition of or limitations upon normal diplomatic relations or other contacts, embargoes of various kinds or withdrawal of voluntary aid programmes'. Schachter (n 43) 198, mentions that '[t]ypical examples [of retorsion] include rupture of diplomatic relations, cessation of trade in general or in specific areas, non-recognition of acts of the offending government, denial of benefits otherwise available to the offending government, curtailment of migration from the offending government'.
72. See also Daillier and others (n 43) 1057-58.
73. Commentaries (n 42) 128.
74. See D Alland, 'The Definition of Countermeasures' in Crawford and others (n 1) 1127-36, 1131-32.
75. Jansen Calamita (n 6) 1397.
76. See eg Agreement on Reciprocal Promotion and Protection of Investments between the Government of the Republic of Austria and the Government of the Islamic Republic of Iran, signed in Tehran on 15 February 2001; Treaty between the Federal Republic of Germany and the Empire of Iran concerning the Promotion and Reciprocal Protection of Investments, signed in Tehran on 11 November 1965.
77. Accord entre le Gouvernement de la République francaise et le Gouvernement de la République islamique d'Iran sur l'encouragement et la protection réciproques des investissements, signé a Téhéran le 12 mai 2003 (Agreement between the Government of the French Republic and the Government of the Islamic Republic of Iran on the reciprocal promotion and protection of investments, signed in Tehran on 12 May 2003; author's translation).
78. Treaty on the European Union art 3(5).
79. See OECD (Investment Division, Directorate for Financial and Enterprise Affairs), Security-related Terms in International Investment Law and in National Security Strategies (2009) (accessed 18 June 2012).
80. See also Boisson de Chazournes and Boutruche (n 38) 699.
81. S Hindelang, The Free Movement of Capital and Foreign Direct Investment (OUP 2009) 317.
82. Case C-124/95 The Queen, ex parte Centro-Com Srl v HM Treasury and Bank of England (ECJ, 14 January 1997) ECR I-00081.
83. See T Gazzini, 'The Normative Element Inherent in Economic Collective Enforcement Measures: United Nations and European Union Practice' in L-A Sicilianos and LP Forlati, Les sanctions économiques en droit international/Economic sanctions in international law (Martinus Nijhoff 2004) 279-308, 307.
84. See Section 3(B).
85. See eg the statement by Lord Bingham in Jones v Ministry of Interior of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270, 26: 'Despite its embryonic status, this Convention is the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases'.
86. See R Gardiner, 'UN Convention on State Immunity: Form and Function' (2006) 55 ICLQ 407.
87. 2004 UN Convention on Jurisdictional Immunities of States and their Property, art 21(1)(c).
88. Articles of Agreement of the International Monetary Fund, adopted at the United Nations Monetary and Financial Conference, Bretton Woods, New Hampshire (opened for signature 22 July 1944, entered into force on 27 December 1945, as amended) 22 UNTS 2203. For an analysis of earlier controversies on the extent of obligations of IMF members in the context of the settlement of claims between Iran and the USA, see A Mouri, 'Treatment of the Rules of the International Law of Money by the Iran-U.S. Claims Tribunal' (1994) 3 Asian Ybk Intl L 71-110.
89. For an analysis of earlier controversies on the extent of obligations of IMF members in the context of the settlement of claims between Iran and the USA, see A Mouri, 'Treatment of the Rules of the International Law of Money by the Iran-U.S. Claims Tribunal' (1994) 3 Asian Ybk Intl L 71-110.
90. See Daillier and others (n 43) 1056-57.
91. Schachter (n 43) 198.
92. Schachter (n 43) 198.
93. See also L Boisson de Chazournes, 'Other Non-derogable Obligations' in Crawfordand others (n 1) 1205-14, 1209-11.
94. Schachter (n 43) 199.
95. He adds that '[t]he fact that retorsion is used when the target of its use has violated an international law obligation would not legally entitle the government using it to demand that the offending State give up its sovereign rights'.
96. Here Schachter (n 43) 199 notes that 'some writers might consider the situation covered by the concept of abuse of rights since it involves use of a right "to inflict upon another State an injury which cannot be justified by a legitimate consideration of its own advantage"'; here he quotes L Oppenheim, International Law Vol 1 (8th edn, 1955) 345.
97. He also observes that '[o]ne might wonder whether a requirement of proportionality can be applied to an act of retorsion that is generally within the discretion of the State. [. . .] To terminate diplomatic or commercial relations for a minor offence (say, the misconduct of a diplomat) may be so excessive a retaliation as to call into question the good faith of the State reacting in that way. It may be too difficult to formulate a legal principle to meet this kind of situation, but it would not be inappropriate to draw attention to an underlying ethic of reasonableness and good faith in the mutual relations of States. To use retorsion inappropriately and disproportionately to meet minor offences departs from that ethic and tends to debase the currency of international intercourse'.
98. Resolution 2625 (XXV), Annex.
99. See Daillier and others (n 43) 1057.
100. See eg the Final Document of the Summit of Heads of State and Government of the Non-Aligned Movement held in Egypt in July 2009 (NAM2009/FD/Doc1), where the NAM 'reiterated the need to eliminate unilateral application of economic and trade measures by one State against another that affect the free flow of international trade. They urged States that have and continue to apply such laws and measures to refrain from promulgating and applying them in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation' (para 17.4).
101. In their joint Position paper on the draft outcome document for the 13th Session of the United Nations Conference on Trade and Development (UNCTAD-XIII) adopted on 14 October 2011 (UNCTAD Doc TD/445), the Group of 77 and China called on UNCTAD to 'study the unilateral economic, financial or trade measures, contrary to international law and WTO rules, which hinder market access, investments, freedom of transit, and the welfare of the population of the affected countries. In this regard, UNCTAD XIII should strongly urge States to refrain from enacting and implementing unilateral economic, financial or trade measures that are not in accordance with international law or the Charter of the United Nations and that hamper the full achievement of economic and social development as well as trade, particularly in developing countries' (para 45).
102. A/RES/66/186, 'Unilateral economic measures as a means of political and economic coercion against developing countries', adopted by a vote of 122 in favour to 2 against (Israel, USA) and 53 absentions.
103. See UNCTAD, The Doha Mandate (26 April 2012) Doc TD/L.427 para 25.
104. The declaration emphasized that these actions 'hinder market access, investments and freedom of transit and the well-being of the population of affected countries'.
105. See V Lowe and A Tzanakopoulos, 'Economic Warfare' in R Wolfrum (ed), Max Planck Encyclopedia of Public International Law (OUP 2012) (accessed 18 June 2012).
106. They describe economic warfare as 'conduct ranging from economic methods of warfare such as belligerent blockade and the strategic bombing of factory infrastructure, to decentralized economic (counter-)measures in peacetime, such as trade embargoes or even boycotts voluntarily undertaken by the citizens of one State against the products of another, and to collective sanctions imposed by the UN Security Council'
107. See the UNSC Resolutions (n 7).
108. In the same Resolution, the Security Council decided 'that all States shall require their nationals, persons subject to their jurisdiction and firms incorporated in their territory or subject to their jurisdiction to exercise vigilance when doing business with entities incorporated in Iran or subject to Iran's jurisdiction, including those of the IRGC and IRISL, and any individuals or entities acting on their behalf or at their direction, and entities owned or controlled by them, including through illicit means, if they have information that provides reasonable grounds to believe that such business could contribute to Iran's proliferation-sensitive nuclear activities or the development of nuclear weapon delivery systems or to violations of resolutions 1737 (2006), 1747 (2007), 1803 (2008) or this resolution' (UNSC Resolution 1929 (2010) para 22).
109. As recalled in EU Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ L 195/39, 27 July 2010) (emphasis added).
110. EU Council Decision 2010/413/CFSP of 26 July 2010 (emphasis added).
111. See Council Regulation (EU) No 961/2010 of 25 October 2010 on restrictive measures against Iran and repealing Regulation (EC) No 423/2007 (OJ L 281/1, 27 October 2010). This Regulation contains a prohibition on the sale, supply, transfer or export to Iran of 'certain key equipment or technology which could be used in the key sectors of the oil and natural gas industries', as well as restrictions on investment in the Iranian oil and gas sector, extending to the prohibition of 'joint ventures as well as other forms of associations and cooperation with Iran in the sector of the transmission of natural gas'.
112. See eg M Wood, 'The Interpretation of Security Council Resolutions' (1998) 2 Max Planck Ybk UN L 73-95, 86-87, who emphasizes that the role of preambles to Security Council Resolutions, as opposed to their operative paragraphs; is merely to 'assist in interpretation, by giving guidance as to their object and purpose'.
113. See A Orakhelashvili, 'Unilateral Interpretation of Security Council Resolutions: UK Practice' (2010) 2 Goettingen J Intl L 823-42.
114. On interpretation of SC Resolutions in general, see M Wood (n 74).
115. LA Sicilianos (n 1) at 1141. Reviewing the practice of the EC/EU in the implementation of UN sanctions, he observes instances of measures 'having no more than a remote connection or no connection at all with UN sanctions. Certainly, the grounds for Security Council resolutions were recalled to demonstrate that the measures adopted were situated 'in the slipstream' of sanctions enacted by the UN. However, this has not concealed the fact that some sanctions have moved from the institutional regime to individual measures'.
116. Sicilianos (n 1) 1141.
117. See MC Pugh and WP Singh Sidhuat, The United Nations & Regional Security: Europe and Beyond (Lynne Rienner 2003) 76ff.
118. See eg A Abass, Regional Organisations and the Development of Collective Security: Beyond Chapter VIII of the UN Charter (Hart Publishing 2004) 46-52, expressing the view that economic sanctions may constitute enforcement actions in the meaning of Article 53 of the Charter.
119. But see contra U Villani, 'The Security Council's Authorization of Enforcement Action by Regional Organizations' (2002) 6 Max Planck Ybk UN L 535, 538-40.
120. JA Frowein, 'Reactions by Not Directly Affected States to Breaches of Public International Law' (1994) 248 Recueil des Cours, 345, 388-89.
121. See eg P Klein, 'The Attribution of Acts to International Organizations' in Crawford (n 1) 297-315.
122. Commentaries on the Draft Articles on the Responsibility of International Organizations, in 2011 ILC Yearbook II(2), 'General Commentary' para 4.
123. See DARIO, Art 2 (a), which provides that 'for the purposes of the present draft articles, "international organization" means an organization established by a treaty or other instrument governed by international law and possessing its own international legal personality. [. . .]'. This definition is consistent with that given in the 1969 Vienna Convention on the Law of Treaties and in the 1986 Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.
124. See P Corten and P Klein (eds), The Vienna Conventions on the Law of Treaties (OUP 2011) 52-53 (on the meaning of 'international organization' in Article 2 of the 1969 Convention), and 63-64 (on its meaning in Article 2 of the 1986 Convention).
125. See also the commentary on DARIO Article 2 in 2011 ILC Yearbook (n 82), and the comments of the European Commission on DARIO, Doc A/CN.4/545 (25 June 2004) 5.
126. S Talmon, 'Responsibility of International Organizations: Does the European Community Require Special Treatment?' in M Ragazzi (ed), International Responsibility Today. Essays in Memory of Oscar Schachter (Martinus Nijhoff 2005) 405-21.
127. See Talmon (n 83).
128. Article 22(1) DARIO provides that [. . .] the wrongfulness of an act of an international organization not in conformity with an international obligation towards a State or another international organization is precluded if and to the extent that the act constitutes a countermeasure taken in accordance with the substantive and procedural conditions required by international law, including those set forth in Chapter II of Part Four for countermeasures taken against another international organization.
129. Commentaries on the Draft Articles on the Responsibility of International Organizations (n 82).
130. See A/CN.4/556 s II.N.
131. See Gazzini (n 52) 302.
132. Commentaries (n 42) 128.
133. See Y Iwasawa and N Iwatsuki, 'Procedural Conditions' in Crawford and others (n 1) 1149-55, 1149.
134. ARSIWA, art 52(1)(a).
135. Responsibility of Germany for Damage Caused in the Portuguese Colonies in the South of Africa (Portugal v Germany) ('Naulilaa') 31 July 1928, 2 RIAA 1011, 1026.
136. Gabcikovo-Nagymaros Project (Hungary v Slovakia) [1997] ICJ Rep 7, 56 (para 84).
137. ARSIWA, art 52(1)(b).
138. See Iwasawa and Iwatsuki (n 90) 1152.
139. Case Concerning the Air Services Agreement of 27 March 1946 between the United States of American and France (9 December 1978) 54 ILR 304, 339-40.
140. See Iwasawa and Iwatsuki (n 90) 1153.
141. See Section 5.
142. Gazzini (n 52) 302.
143. See Section 5.
144. Agreement between Iran and the Agency for the application of safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons (INFCIRC/214) (entered into force on 15 May 1974).
145. Treaty on the Non-Proliferation of Nuclear Weapons (NPT) 729 UNTS 161; IAEA Doc INFCIRC/140.
146. See A Orakhelashvili, Collective Security (OUP 2011) 24-25.
147. The author observes that '[o]ne of the causes of the [Security] Council's involvement with the Iranian nuclear enrichment issue was a divergence of views between Iran, the International Atomic Energy Agency (IAEA), and the UN, regarding the scope of Iran's obligations regarding the use of nuclear energy, more specifically its decision in 2007 to revert to the old Code 3.1 of its Safeguards Agreement with the IAEA. The new Agreement was initially accepted by Iran in 2003, but not ratified by its parliament. The Agency's position was that Code 3.1 could not be modified unilaterally, and that '[t]he Agency's right to verify design information provided to it is a continuing right, which is not dependent on the stage of construction of, or the presence of nuclear material at, a facility'. The matter then turned on two legal questions: whether Iran was bound by the unratified agreement, and if so, whether Iran could modify it unilaterally. Security Council Resolution 1803(2008) took a clear position on this matter. In the preamble the Council noted 'with concern that Iran has taken issue with the IAEA's right to verify design information which had been provided by Iran pursuant to the modified Code 3.1', and then reiterated the Agency's finding quoted above. The Council's entire approach is framed as a legal argument, which is then used to justify further action under Chapter VII. However, while treating alleged violations of the Nuclear Non-proliferation Treaty (NPT) as a cause of action, it is not certain that the Council adopted the proper standard of proof in ascertaining the existence of a breach of that Treaty, relying on presumptive concerns instead of established facts' (emphasis added).
148. See eg DH Joyner, Interpreting the Nuclear Non-Proliferation Treaty (OUP 2011) 126.
149. The ICJ has emphasized in Certain Expenses that 'when the Organization takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the United Nations, the presumption is that such action is not ultra vires the Organization'. Certain Expenses of the United Nations (Advisory Opinion) [1962] ICJ Rep 168.
150. See the examples quoted by J Frowein and N Krisch, 'Article 39', in Simma (n 22) 726.
151. On the IAEA practice in the implementation of safeguards, see eg PC Szasz, The Law and Practices of the International Atomic Energy Agency (International Atomic Energy Agency 1970).
152. RH Rainer and PC Szasz, The Law and Practices of the International Atomic Energy Agency 1970-1980. Supplement 1 to the 1970 edition of Legal Series No 7 (International Atomic Energy Agency 1993).
153. The analysis of the annual Safeguards Statements issued by the IAEA is also relevant. The latest released to date is the 'Safeguards Statement for 2010' (accessed 18 June 2012).
154. Article XII(C) of the IAEA Statute provided in relevant part that '[t]he Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations. In the event of failure of the recipient State or States to take fully corrective action within a reasonable time, the Board may take one or both of the following measures: direct curtailment or suspension of assistance being provided by the Agency or by a member, and call for the return of materials and equipment made available to the recipient member or group of members. The Agency may also, in accordance with article XIX, suspend any non-complying member from the exercise of the privileges and rights of membership'.
155. Article XVII(A) of the IAEA Statute provides that Any question or dispute concerning the interpretation or application of this Statute which is not settled by negotiation shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.
156. ILC Special Rapporteur Arangio-Ruiz (in Third Report on State Responsibility (n 40) 25) described self-contained regimes as 'those treaty-based systems or combinations of systems which tend to address, within their own contractual or special framework, the legal regime governing a considerable number of relationships among the State parties, including in particular the consequences of any breaches of the obligations of States parties under the system'. See Jansen Calamita (n 6) 1435-37, who argues against the characterization of the non-proliferation regime as a 'self-contained' regime, due to the alleged 'absence of treaty-based enforcement of NPT obligations' (at 1435), and to the fact that (i) the IAEA Statute 'provides only minimal procedures for addressing non-compliance' (at 1436), and (ii) the 'sanctions' provided for by Article XII of the IAEA Statute are 'very unlikely to deter a non-complying State' (at 1436, fn 180). In our view, these arguments are both irrelevant and incorrect, and the author also fails to take account of the provisions on settlement of disputes contained in the IAEA Statute and in the Safeguards Agreement.
157. Boisson de Chazournes (n 59) 1205.
158. On self-contained regimes and their interaction with the general law of State responsibility, see also B Simma and D Pulkowski, 'Leges Speciales and Self-Contained Regimes' in Crawford and others (n 1) 139-63.
159. Operative paragraph 37 of SC Res 1929 (9 June 2010) affirms that the Security Council 'shall, in the event that the report [to be submitted by the Director General of the IAEA] shows that Iran has not complied with resolutions 1737 (23 December 2006), 1747 (24 March 2007), 1803 (3 March 2008) and this resolution, adopt further appropriate measures under Article 41 of Chapter VII of the Charter of the United Nations to persuade Iran to comply with these resolutions and the requirements of the IAEA, and underlines that further decisions will be required should such additional measures be necessary'. Previous sanctions resolutions against Iran contained similar provisions: see eg SC Res 1803 (23 March 2008), operative para 19(c).
160. Gazzini (n 52) 302.
161. See eg Joyner (n 108) 91-92.
162. For a discussion on the concept of obligations erga omnes, see Commentaries (n 42) 127.
163. See eg M Craven, 'For the 'Common Good': Rights and Interests in the Law of State Responsibility' in M Fitzmaurice and D Sarooshi (eds), Issues of State Responsibility before International Judicial Institutions (Hart Publishing 2004) 105-27.
164. Sicilianos (n 1) 1137.
165. See S Singh, 'Iran, The Nuclear Issue & Countermeasures' (10 January 2012) (accessed 18 June 2012).
166. His core arguments are as follows: '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 [. . .]. 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'.
167. See R O'Keefe, 'Proportionality' in Crawford and others (n 1) 1157-68.
168. Gazzini (n 52) 302.
169. See Commentaries (n 42) 134.
170. Case Concerning the Air Services Agreement of 27 March 1946 between the United States of American and France (9 December 1978) (n 97).
171. See Commentaries (n 42) 134.
172. Draft Article 14(b) ARSIWA, in 1995 ILC Yearbook II(2) at 66.
173. Boisson de Chazournes (n 59) 1211.
174. For a comprehensive summary of the opinions of States and authors on that point, see Arangio-Ruiz (n 39) paras 101ff.
175. See Jansen Calamita (n 6) 1398.
176. See Comments by 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, 144.
177. D Sarooshi, The United Nations and the Development of Collective Security. The Delegation by the UN Security Council of its Chapter VII Powers (OUP 1999) 5-6.
178. Sicilianos (n 1) 1138.
179. Gazzini (n 52) 302.
180. See Provisional Summary Record of the 2266th Meeting, UN Doc A/CN.4/SR.2266 (1992) 16.
181. For developments on that point, see eg B Simma, 'Counter-measures and dispute settlement: A Plea for a Different Balance' (1994) 5 EJIL 102-05.
182. See C Tomuschat, 'Are Counter-Measures Subject to Prior Recourse to Dispute Settlement Procedures?' (1994) 5 EJIL 77-88, 78.
183. Sicilianos (n 1) 1141.
184. See eg A Persbo and I Davis, 'Sailing Into Uncharted Waters? The Proliferation Security Initiative and the Law of the Sea' (2004) BASIC Research Report.
185. See eg B Simma, 'NATO, the UN and the Use of Force: Legal Aspects' (1999) 10 EJIL 1-22.
186. Schachter (n 43) 126.
187. For a recent summary on the debate (by an author favouring 'legalization' of humanitarian intervention), see R Goodman, 'Humanitarian Intervention and Pretexts for War' (2006) 100 AJIL 107-41.
188. Regarding the case of interpretation of the NPT, see Joyner (n 108).