Iran in Breach of International Law?

Introduction:

The ever-evolving environment of international security has underscored the most complicated concern on the minds of the individual states and the international community as a whole; the threat of nuclear proliferation beyond the “nuclear-weapon states” is significantly emphasized. A number of countries were proficient in surpassing the Nuclear Non-Proliferation Treaty (NPT) and acquired weapons of their own, while others seek to utilize their civilian nuclear programs to develop these destructive yet influential weapons. The development of these atomic arsenals is of an earnest threat when constructed under a veil of secrecy.

The controversial position of Iran sparked an ongoing debate in the international legal arena. Its clandestine behavior raised a few eyebrows concerning its intentions regarding the use of its nuclear program. The prospect of nuclear proliferation in Iran is of grave concern to the regional and international community as Iran is a key actor in Central Asia and the Middle East. In addition to the United States’ implementation of economic sanctions and its ‘docile’ ally, Israel’s threat of military action, the US further utilizes its superior position with its Western counterparts: the European Union, the International Atomic Energy Agency (IAEA) and particularly the UN to further hinder nuclear proliferation in Iran.

The UN Security Council is the superlative arbitrator in international law, and its constant interventions regarding Iran’s “nuclear proliferation” spurred worldwide feelings of suspicion and the reservations regarding the legality of Iran’s actions. The latest resolution, UN Security Council Resolution 2049 was adopted on June 7, 2012 and extended the panel monitoring economic sanctions on Iran until 2013. The right to development, which can be considered international customary law through unanimous state practice and arguably opinio juris is highlighted in General Assembly Resolution 41/128. Article I states that “the right to development is an inalienable human right by virtue of which every human person and all peoples are entitled to participate in,

Targeting Iran's Nuclear Program by Carlos Latuff

Targeting Iran’s Nuclear Program
by Carlos Latuff

contribute to, and enjoy economic, social, cultural and political development, in which all human rights and fundamental freedoms can be fully realized. Reuters states that, “The United States, European allies and even Israel generally agree on three things about Iran’s nuclear program: Tehran does not have a bomb, has not decided to build one, and is probably years away from having a deliverable nuclear warhead” (see “U.S. & Israeli Officials: Iran is NOT Building Nuclear Weapons”). With these allegations cleared, to what degree does Iran’s nuclear program rationalize the routine sanctions it is persistently subjected to?

Legal Framework:

The first treaty, which is applicable to this controversial issue, is the Non-Proliferation Treaty (NPT) of 1968, which Iran has ratified. Article IV of the NPT highlights the “inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination.” Iran moreover signed a Safeguards Agreement with the IAEA, which has the right to run frequent inspections to ascertain states are not constructing nuclear arsenals. Iran’s nuclear activities have not been in violation of the obligations under the NPT and there are therefore no grounds by which the Security Council or any of its member states can request the termination of its nuclear program.

In July 2006 however, the Security Council adopted Resolution 1696, which required Iran to should its uranium enrichment programs. This was not based on any violations of NPT obligations but rather on the “binding authority of the Security Council under the UN Charter.” This binding resolution prescribed obligations that are absent in the NPT but in actuality depended upon the perception of Iran intending to act illegally. Iran in response declared that it would not suspend its activities regarding uranium enrichment. There were a number of additional Security Council Resolutions succeeding Resolution 1696: “1737 (December 2006), 1747 (March 2007), 1803 (March 2008), 1835 (September 2008), 1929 (June 2010) and 1984 (June 2011)” all of which feed into the hostile relationship between Iran and the P5+1 states. The Security Council resolutions now supersede NPT obligations, and Iran is held accountable for any breach (Bâli).

Analysis:

One may argue that Iran’s lack of transparency regarding its nuclear program constitutes a violation of pacta sunt servanda by not meeting the requirements of the IAEA. Iran is in breach of the Safeguards Agreement with the IAEA, which aims to “increase the likelihood of detecting a clandestine nuclear weapons programme and to build confidence that States are abiding by their international commitments” through a variety of inspections, including “routine inspections – the type most frequently used – may be carried out according to a defined schedule or they may be of an unannounced or short-notice character” (see “IAEA Safeguards Overview: Comprehensive Safeguards Agreements and Additional Protocols”). The existence of high levels of enriched uranium, which must be reported to the IAEA, arguably infringes upon the Safeguards Agreement; “International atomic inspectors in Iran have detected traces of uranium enriched to levels of purity higher than the Iranians have previously disclosed” (see “U.N. Finds Uranium in Iran Enriched to Higher Level”). Nevertheless, Iran produced 19.75% enriched uranium in May 2012, which is higher than the less than 5% used for civilian nuclear power. Uranium enrichment for nuclear weapons must be at 90% (see “ISIS Analysis of IAEA Iran Safeguards Report”). Those that claim Iran enriches uranium beyond its needs use this accusation to rationalize the burdensome economic sanctions executed through the Security Council resolutions. Iran’s increase in reported levels of uranium enrichment, which may perhaps constitute as encroachment upon the Safeguards Agreement, does not violate NPT obligations: “the highest reported level of uranium enrichment by the Iranians has been 20 percent. The Nuclear Nonproliferation Treaty makes no restrictions on levels of uranium enrichment, only barring nations from turning their civilian efforts to military ends” (Broad).

The UN Security Council’s binding resolutions are in conformity with international law as the Council has the authority under Chapter VII of the UN Charter to “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” (“CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION”). The language used in the UN Charter of a “threat to the peace” validates the adoption of these resolutions and obliges Iran to comply. Iran’s compliance is additionally necessitated on account of Articles 25 of Chapter V of the UN Charter: “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter” (“CHAPTER V: THE SECURITY COUNCIL”) and Article 103 of Chapter XVI: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail” (“CHAPTER XVI: MISCELLANEOUS PROVISIONS”).

The determination of a threat however should be based upon empirical evidence of Iran’s attempt to divert its uranium enrichment programs for the construction of nuclear weapons. There are no IAEA reports indicating any illegal use of Iran’s nuclear program. This regime of sanctions undercuts Security Council resolution legitimacy predominantly in the eyes of non-nuclear weapon states. The regime is merely based on suspicions and the heavy influence the West has on this intergovernmental organization of ‘equal’, ‘sovereign’ states. This concept is effectively explained in Antony Anghie’s book Imperialism, Sovereignty and the Making of International Law where he highlights how international law serves the self-interests of powerful states. TWAIL and other critical legal studies further emphasize this.

The economic sanctions on Iran implemented by the UN Security Council augmented in severity due to sanctions applied by substantial trading partners in the West and Asia in addition to the elimination of the banks of Iran from the global financial sector (“Explainer: How Does A SWIFT Ban Hurt Iran?”). Western powers, especially the United States are contesting against Iran’s possible supremacy in regional affairs, particularly in the Middle East, and have utilized the Security Council along with the IAEA to deny Iran its NPT rights.

The United States is the leading player in the UN Security Council and its foreign policy objectives in the Middle East are weakened by Iranian nuclear proliferation. Nuclear weapons contest alliance structures and the United States, in order to reinforce their patron-client relationships in the Middle East, must hinder proliferation in the region. “Power-projecting states use the promise of military protection as a way to cement their alliance structures and to cultivate patron-client relationships” (Kroenig).

Recent Developments:

If we revisit the abovementioned question of the extent to which the Iranian nuclear program justifies economic sanctions against Iran, one can see that this nuclear program has not been in breach of NPT obligations. The absence of an explicit breach of international law obligations is evidenced through the announcement of the newly outlined nuclear agreement with Iran on April, 2: “Iran and the United States, along with five other world powers, announced on Thursday a surprisingly specific and comprehensive understanding on limiting Tehran’s nuclear program for the next 15 years… the plan, which, if carried out, would keep Iran’s nuclear facilities open under strict production limits, and which holds the potential of reordering America’s relationship with a country that has been an avowed adversary for 35 years” (Gordon and Sanger). The EU has additionally reassessed its economic sanctions pertaining to Iran: “The EU’s initial freeze on the assets of Iran’s central bank has been struck out in court, calling into question the bloc’s use of confidential sources to support its international sanctions. The Court of Justice in Luxembourg ruled that the case against the Iranian central bank from January 2012 was based on confidential evidence from one unidentified member state” (Oliver and Bozorgmehr). The additional commitments created by the Security Council resolutions were a means by which the West, particularly the United States, can further their international relations objectives, being the central actor in this imposition.

Conclusion:

The controversial issue of nuclear proliferation of Iran does not only undermine the legitimacy of the UN organization, but also the ‘equality’ and ‘impartiality’ principles that international law is based upon. The focus of the West has recently shifted to allowing Iran to possess uranium enrichment programs but remain a non-proliferation state; a mutually beneficial solution in accordance with ‘international law’ is therefore achievable. Will these agreements allow Iran to reemerge in the international economical and financial spheres whilst simultaneously rekindle amicable relations with the West? Only time will tell.

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3 Responses to Iran in Breach of International Law?

  1. lelbassiouni says:

    As you stated, there are no clear evidence that Iran is developing its nuclear program. Also, they have a high percentage or producing Uranium; however, it is not the percentage required to be able to produce nuclear weapons.
    Why there is economic sanctions on Iran , while they are not breaching the NPT?
    Why the USA and other superpowers want to ruin Iran’s position on the international arena by stating that they are producing more than 5% of Uranium (not the percentage required for producing nuclear weapons) and they are breaching the NPT (Opinio juris- binding customary international law)?
    I believe that all the UN economic sanctions on Iran are unfair as it did not breach international law, and solution must be found to end these conflicts between Iran and 5Ps. Moreover, we have to clearly understand why the USA, Israel and European allies know that Iran do not and shall not have nuclear weapons; however, they are acting as if they are developing their Iran weapons.

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  2. maiali2015 says:

    Iran’s case is very controversial and I believe if it wasn’t for Iran’s rising power in Central Asia and the Middle East, we wouldn’t hear about its ‘clandestine’ nuclear activity’ nor its potential buildup of a nuclear bomb. The real problem facing nuclear disarmament is the the NPT itself as a treaty.
    One of its major flaws is that t gives the right to every nation to develop nuclear energy, even enrich uranium, as long as it is directed toward a peaceful purpose, based on the legal principle of ‘pacta sunt servanda’ nevertheless the same technical process is the same to develop a nuclear arsenal. Other than that, it has no enforcement close against those who violates the treaty or quit it totally.
    However, the law of treaties favors stability and it is very hard to change a treaty according to the VCLT which places a high emphasis on treaties stability even if the nature of the world we live in is evolving and the interests of the states change.

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  3. yasminehafez says:

    I think the main issue here is that the NPT treaty failed to create a customary law against the use of nuclear weapons. For example, Israel has nuclear weapons; however, it is not in breach because it is not part of the treaty.
    On the other hand, Iraq could have withdrew from the treaty as North Korea did when it had breached the use of nuclear weapon.
    “North Korea ratified the treaty on 12 December 1985, but gave notice of withdrawal from the treaty on 10 January 2003 following U.S. allegations that it had started an illegal enriched uranium weapons program”

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