Why Is the New Agreement Between P5+1 and Iran Not Void?

by Kevin Jon Heller

A few days ago, in response to reports of an imminent deal between P5+1 and Iran concerning Iran’s uranium enrichment, Tyler Cullis and Ryan Goodman debated whether Iran has a “right” to develop nuclear power for civilian purposes. Tyler argued that Iran does, citing (inter alia) Art. IV of the Treaty on Non-Proliferation of Nuclear Weapons (NPT):

Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with articles I and II of this Treaty.

Ryan disagreed, arguing that any such “right” in the NPT has been superceded by a series of Security Council resolutions — beginning with Res. 1696 in 2006 — demanding that Iran cease its enrichment activities. In defense of his position, Ryan cited a number of eminent non-proliferation scholars, such as Larry D. Johnson, a former Assistant-Secretary-General for Legal Affairs at the United Nations:

While Iran claims that it has a right to enrich uranium as part of its peaceful nuclear energy program, the IAEA Board of Governors found that there had been a history of concealment and failure to declare certain activities to the agency, and therefore reported the matter to the Security Council. The Council has decided that over and above its obligations under NPT and the safeguards agreement with the IAEA, Iran was required, under Chapter VII of the Charter, to suspend all proliferation-sensitive nuclear activities, including all enrichment-related and all reprocessing activities, as confidence-building measures.

I think Ryan are Johnson are right that the “inalienable right” guaranteed by Iran’s ratification of the NPT is nullified — at least for now — by the various Security Council resolutions. So here is my question: why is the just-announced agreement between P5+1 and Iran not void ab initio for the same reason? SC Res. 1737 categorically prohibits Iranian uranium enrichment (emphasis mine):

2. Decides, in this context, that Iran shall without further delay suspend the following proliferation sensitive nuclear activities:

(a) all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA; and

(b) work on all heavy water-related projects, including the construction of a research reactor moderated by heavy water, also to be verified by the IAEA.

The new agreement between P5+1 and Iran, however, explicitly permits Iran to continue to enrich uranium for at least six months (emphasis mine):

Iran would undertake the following voluntary measures:

• From the existing uranium enriched to 20%, retain half as working stock of 20% oxide for fabrication of fuel for the TRR. Dilute the remaining 20% UF6 to no more than 5%. No reconversion line.

Iran announces that it will not enrich uranium over 5% for the duration of the 6 months.

• Iran announces that it will not make any further advances of its activities at the Natanz Fuel Enrichment Plant, Fordow, or the Arak reactor, designated by the IAEA as IR-40.

Beginning when the line for conversion of UF6 enriched up to 5% to UO2 is ready, Iran has decided to convert to oxide UF6 newly enriched up to 5% during the 6 month period, as provided in the operational schedule of the conversion plant declared to the IAEA.

To be sure, Res. 1737 does contemplate P5+1 entering into an agreement with Iran concerning uranium enrichment. Indeed, it welcomes it:

21. Welcomes the commitment of China, France, Germany, the Russian Federation, the United Kingdom and the United States, with the support of the European Union’s High Representative, to a negotiated solution to this issue and encourages Iran to engage with their June 2006 proposals (S/2006/521), which were endorsed by the Security Council in resolution 1696 (2006), for a long-term comprehensive agreement which would allow for the development of relations and cooperation with Iran based on mutual respect and the establishment of international confidence in the exclusively peaceful nature of Iran’s nuclear programme.

But here is the problem: the June 2006 proposal that the Security Council endorsed in Res. 1696 also does not permit any Iranian uranium enrichment (emphasis mine):

To create the right conditions for negotiations… Iran will:

• Commit to addressing all of the outstanding concerns of IAEA through full
cooperation with IAEA,

• Suspend all enrichment-related and reprocessing activities to be verified by IAEA, as requested by the IAEA Board of Governors and the Security Council, and commit to continue this during these negotiations.

• Resume the implementation of the Additional Protocol.

P5+1, in short, has entered into an agreement with Iran that deviates from the proposal endorsed by the Security Council in Res. 1696. The agreement thus violates Res. 1737. How, then, can the agreement not be void ab initio?

To be clear: I am in no way opposed to the substance of the agreement. I think it’s a very important development. But I am genuinely curious why P5+1 thinks it can ignore Security Council resolutions that they themselves (minus the +1) were responsible for. Shouldn’t they have passed a resolution endorsing a proposal that permitted Iranian uranium enrichment first? I know P5 have permanent vetoes — but there are 10 other members of the Council. Does their input count for nothing?

Readers?

http://opiniojuris.org/2013/11/24/npt/

27 Responses

  1. Naturally they could have not passed a resolution before signing the agreement, since that would weaken their positions in the negotiations.
    However, note that the preamble of the agreement says “There would be additional steps in between the initial measures and the final step, including, among other things, addressing the UN Security Council resolutions, with a view toward  bringing to a satisfactory conclusion the UN Security Council’s consideration of this matter.” This can be reasonably interpreted as requiring a resolution before the deal is implemented. If the measures enter into force, so to speak, only after a resolution is passed, there is no real problem.
     

  2. Also, in any case, not sure violations of SC resolutions are void ab initio to begin with, but that’s another (very interesting) question 

  3. Eliav,

    I don’t think that answers the question. The language you quote does not say the six-month agreement does not go into effect until the relevant SC resolutions are addressed; it says P5+1 intends to address the resolutions prior to adopting a comprehensive agreement. That seems clear from the distinction in the agreement between the “first step” (the short-term agreement) and the “final step” (the comprehensive agreement).

  4. See also this language: “This comprehensive solution would build on these initial measures and result in a final step for a period to be agreed upon and the resolution of concerns.”

  5. Right, but shouldn’t we apply an interpretive method that doesn’t result in nullification? I think that if you read into the objective and purpose of the agreement the purpose of promoting the principles of the UN Charter (which is not a far-fetched legal maneuver) you could easily reach an interpretive conclusion that the agreement enters into effect once a resolution is passed.  This conclusion is fortified if you consider (if I’m not mistaken) that nowhere does the agreement say “effective immediately”

  6. Counter-question: Why are the UNSC resolutions not void because of the “inalienable right” articulated in the NPT?

  7. Because of Art. 103 of the UN Charter, to which all members of the UN have consented: “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.”

  8. Hi Kevin,
    I think you are quite right that the relevant UNSC resolutions pose a problem. But they do not however render the agreement void. Unlike a conflict with jus cogens, which does invalidate a conflicting norm, Article 103 only temporarily suspends a conflicting norm while the conflict with a Charter obligation lasts. For instance, if states A and B had a treaty on free trade, and the UNSC then imposed trade sanctions on B, A would no longer have a treaty obligation to allow trade with B because the resolution would prevail over the treaty, but that obligation would revive as soon as the UNSC removed the sanctions.
    So, in short, what needs to happen here is for the UNSC to bless the temporary deal; once that is done the agreement can be implemented.

  9. Hi Marko,

    Martin Holtermann said the same thing. I imagine you’re both correct!

  10. As noted, “[w]elcomes … a negotiated solution to this issue” has to be taken into consideration. Does it condition and possibly override the S.C. sanctions? But what does “solution” mean in context, especially when the present agreement is merely an interim agreement and a great deal is left for future negotiation?

  11. Thanks, Jahan. Never saw that.

  12. Kevin, I don’t think that Art. 103 addresses the matter of inalienable right. SC resolutions prevail over rights created under other international agreements, but the NPT seems only to be serving as evidence of an inalienable right, and not the source of that right. If the right is inalienable, it cannot have been amoung the bundle of rights turned over, via the UN Charter, to the UNSC for regulation under chapter VII. Inalienability seems to me a lot like jus cogens, but I’d be interested if others have any thoughts on any distinctions between the two categories.

  13. Re: Daniel’s point, that’s a question I’ve considered.
    The way NPT Article IV(1) reads, it certainly seems as if the ‘inalienable right’ predates that of the treaty. But I’m unclear how that could possibly be the case (though open to argument). Instead, what I think the language does is re-characterize an existing ‘right’ (in the meaning of Lotus), for reasons that should be fairly obvious were we in the position of the NNWS.
    If that is the case, then we have two sources for the ‘right to enrich’ in international law – one in the NPT, one just a fact of state sovereignty – with different implications flowing from each. 

  14. I know I’m defeating the purpose of Kevin’s post and taking us down the rabbit hole, but there is a prior question that must be answered: Is the UNSC resolution itself void ab initio for being ultra vires? Reason being, the UNSC did not make the preliminary finding required of it under Article 39 (‘threat to peace’) before invoking Chapter VII, which it has not failed to do on any previous occasion (the few prior occasions where it failed to invoke the ‘magic language’ can each be justified by prior or later resolutions that corrected the error). If so, Iran’s right is preserved, not suspended, and the parties can enter into any agreement they so want (with the caveat that Iran’s right to enrich produce nuclear energy is ‘inalienable’ and cannot be traded away). 

  15. Nothing in the Charter requires that the S.C. announce that art. 39 applies if it is acting under Chapter VII, especially since it is obvious that that art. 39 must apply.  In context, art. 39 necessarily applies.
    S.C. resolutions are still alive and a “negotiated solution” is yet to be obtained.

  16. That is not the argument. The argument is, UNSC practice has been such that, on every single occasion (with exceptions that can be explained away), the Council has invoked the magic words of Article 39 before taking Chapter VII action. This amounts to a definitive interpretation of the procedural constraints under which the Council invokes its Chapter VII powers.
    In the case of the Iran resolutions, however, the UNSC did not do so and did not correct its error (as it has done on prior occasions). Thus, the Council acted ultra vires.

    I’ve seen two justifications. One is yours. That is, simply by invoking Chapter VII, the Council has implicitly made the kind of determination required of it in Article 39. This is the argument the UK delegate made after passage of UNSC Res. 1160.
    The problem is two-fold: (1) the Council has consistently adopted a practice of enumerating the basis under which it acts when taking Chapter VII action; and (2) the reason the Council failed to make the kind of finding required of it in UNSC Res. 1160 (and the Iran resolutions) is that Russia and China refused to characterize the situation as such. I fail to see how the the Council can argue that, on the one hand, mere invocation of Chapter VII implicitly signals that the situation in X poses a threat to the peace, while on the other hand, the reason the finding could not be laid down explicitly is because two permanent members refused to characterize it as such.
    The second, and more discerning, justification is that offered by Nico Krisch in Simma’s tome on the Charter. Krisch argues, to the effect, that the Council is in the midst of adopting a new practice, one that bifurcates the procedural requirements for Article 41 and 42 enforcement actions. The kind of finding that has traditionally been required for Chapter VII action is at present reserved only for Article 42 actions, and not for measures falling short of the use of force. We can see why this practice would have developed.
    Lots of questions arise here, such as how does the UNSC have the power to bifurcate the kind of findings required for Article 41 and 42, but that’s better saved for another day.
    The critical point is that there is a preliminary question to Kevin’s — that is, whether the UNSC resolutions are themselves binding. That is an issue that has received close to zero comment, but deserves its hearing.

  17. The Security Council is legally bound by mere prior practice with respect to articulation of its conclusion concerning application of Article 39?  It seems that the S.C. can change its “practice” when it wants to do so, which is a point relevant to the “second justification.”

  18. Is it a controversial point that the Council is bound to the Charter and that how we interpret the relevant provisions of the Charter is, in part, informed by the Council’s historical practice? That looks like a basic element of interpretation, at least to me.
    If the Council can just do what it wants when it wants, then what’s the point of the Charter? Is the Council not even bound by the very legal instrument that bore it into being?
     
     

  19. Tyler:  On the face of the treaty, the S.C. is bound under Articles 24(2) (re: purposes of the Charter) and 55 (e.g., re: self-determination and human rights), if not also under Article 25 (which affirms either that the members are bound or that the S.C. is bound by decisions made in accordance with the Charter).  My point, however, is that the S.C. can change its prior “practice” and is not bound by prior “practice.”  Further, since the S.C. can only act under Chapter VII if they have made a decision under Art. 39, when the S.C. res. affirms that the S.C. is acting under Chapter VII, the S.C. must necessarily have made a decision under Art. 39 (even if it has not expressly announced such) which might have been a decision with respect to which some did not fully agree (you mention the PRC and Russia) but did not exercise a veto either with respect to the decision or the final resolution.

  20. Jordan -
     
    Then that is our disagreement. I read the Council’s practice as providing interpretive clarity (in the meaning of VCLT Article 31(3)) over what is required in order for the Council to trigger into operation its substantial enforcement powers in Chapter VII. It gives meaning to the provision located in Article 39, which is often referred to as a ‘gateway to Chapter VII’ in the literature, that the Council ”shall determine the existence of any threat to the peace, breach of the peace, etc.”
     
    The Council’s practice has been, on every single occasion with a few exceptions that prove the rule (since the Council went back to correct what it felt was its error), to state explicitly the basis under which it acts, in accord with the terms of Article 39. The Iran resolutions are the one case in the Council’s entire practice where it both failed to enumerate the basis under which it proposed to act and likewise failed to correct the error in later resolutions. To state the Council can change its practice might well be a way to justify this, were it not for the fact that the Council has returned, in all resolutions subsequent and not related to the Iran nuclear program, to its past practice of spelling out the basis for its enforcement action. What we’d have to argue, and perhaps you do, is that the Council can do whatever it likes so long as Chapter VII itself is invoked. That was, as I mentioned, the UK delegate’s view upon passage of UNSC Res. 1160, though I should add that the Council did not feel secure enough in this interpretation to leave the error in place, much less repeat it, as subsequent resolutions relating to Kosovo demonstrated.
     
    For what it is worth, not only do I think the Council is obligated to lay down the basis for acting before triggering its Chapter VII powers, but I think it is a good idea that it be so constricted. As we well know, the Council has, over the past two decades, pushed the bounds of its substantive powers in somewhat dramatic ways, and for the Council to likewise skirt the basis for its enforcement actions risks itself and the international security order built up around it.

  21. Response…The “scope” of the relevant clause in the NPT says “nothing in this treaty”. But the NPT stipulates that the terms of the safeguarding agreement required of each non-nuclear weapons state have to be concluded “in accordance with the Statute of the International Atomic Energy Agency and the Agency’s safeguards system,” which are not a part of the NPT at all.
     
    The clause about the “inalienable right” doesn’t explicitly mention the term “enrichment” and is couched in qualified language which limits the whole enterprise to “peaceful purposes” undertaken “in conformity” with those external treaty agreements mentioned in Article II. So it’s exercise is obviously intended to be subject to those terms and conditions.
     
     
    In the Bosnia genocide case, Judge Lauterpacht pointed out that Article 103 only purports to resolve conflicts between other international agreements and that it does not preempt customary international law.
     
    I think the Lotus principle only applies “failing the existence of a permissive rule to the contrary”. It seems that a state could agree to accept and carry-out provisional measures adopted by the Security Council acting on its behalf under the terms of Articles 24, 25, and 40 of the Charter “without [permanent] prejudice to the rights, claims, or position of the parties concerned.”
     
    The Repertoire of the Practice of the Security Council has pointed out for years that the Council still operates under provisional rules of procedure precisely because the members refuse to be bound by any permanent ones that might impair their freedom of action. It also explains that the Security Council seldom issues resolutions under any single chapter of the Charter and is under no obligation to say when it is acting under Chapter VII. There are many examples, like resolution 338, where the only indication were statements made by the members during the deliberations which indicated that it was a Chapter VII provisional measure. 

  22. Hostage –
     
    The Repertoire also notes that ‘before the Security Council can adopt enforcement measures, it has to determine the existence of any threat to the peace, breach of the peace or act of aggression.’ This, as I have noted, the Council failed to do in the case of the Iran resolutions.
     
    If you look at the Repertoire’s discussion of the Iran case, too, it notes that there was debate within the Council concerning whether the Council could take enforcement action absent such a determination as mandated by Article 39. Whether the Council acted ultra vires in adopting the resolutions is thus left unresolved.

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