By Iran Review
By Mohammad Habibi Mojandeh
The Council of the European Union (EU) decided to intensify economic sanctions against the Islamic Republic of Iran in its meeting on January 23, 2012. The EU foreign ministers agreed during that session to impose more sanctions on Iran’s energy sector, including by banning import of the Iranian crude oil by member states, prohibiting transactions with the Iranian central bank, and imposing more sanctions on transportation and exports as well as against Iranian real and legal entities. Out of all new sanctions, those affecting import of crude oil and its products by European countries, transportation of such products as well as funding Iranian oil projects and insuring oil shipments are the most important. The EU decision allows member states to keep contracts they had signed with Iran before enactment of new sanctions which were to enter into force as of July 1, 2012. Detailed regulations of the Council of the European Union were approved on March 23, 2012, and were enforced on July 1. EU’s unilateral sanctions are certainly tougher than sanctions which had already been imposed through four sanctions resolutions adopted by the United Nations Security Council because none of those resolutions had anything about banning oil sales from Iran, not even as recommendation. In addition to common political and economic disputes about economic sanctions, their legality or illegality has also been a subject of discussion from viewpoint of international law.
This brief article is no place for detailed explanation of this judicial issue. However, to make a long story short, three bases have been mentioned as the legal basis for economic sanctions against Iran.
The first legal justification is the principle of retorsion. This principle should be, however, applied to cases where a country takes retaliatory measures against harmful, undesirable, or illegitimate steps taken by another state. In the meantime, the retaliatory measure should not be at odds with any of that country’s international obligations. This principle can hardly be accepted as a basis for EU sanctions against Iran. There are many bilateral treaties which have been signed between Iran and some EU member states on the establishment of friendly relations as well as trade and shipping ties and encouragement of bilateral investments. The two sides are also under obligations which prevent them from taking steps which may disturb such relations. In addition, common principles and rules of international law like principle of cooperation, free trade, and elimination of trade restrictions do not allow for economic sanctions beyond decisions made within framework of the United Nations Security Council or any other measure which may be at loggerheads with those obligations. Moreover, if implementation of sanctions against Iran’s oil section by member states of the European Union leads to violation of binding contracts between European states and Iran, they will be considered a step against international obligations of those states. It is true that there are no principles in international law which can forbid a country from cutting or reducing trade ties with another country, but wherever there are contractual or common obligations, any trade measure taken to the contrary of these obligations cannot be considered legal.
The second basis for the legality of economic sanctions imposed by the European Union against Iran is the principle of “countermeasures.” Countermeasures constitute a concept affiliated to international obligations of the states. According to laws related to international obligations, violation of any obligation will lead to international liability for the violating country. However, one of the main reasons which may exempt a country of its international obligations or cause disregard of an obligation not to be considered violation by the country in question is measures which that country takes in the face of illegal measures already taken by another country. Such measures are justified on the basis that they are in reaction to illegal measures by the target country. This principle cannot be also applied to EU’s oil sanctions against Iran because no international authority has so far objectively proved that the Islamic Republic of Iran has violated its international obligations in its attempt to enrich uranium. It does not follow from any one of the resolutions adopted by the Board of Governors of International Atomic Energy Agency (IAEA) that IAEA has categorically condemned Iran for violation of its obligations and deviation in its nuclear energy program toward non-peaceful purposes.
The third possible basis for justification of EU’s intensified economic sanctions against Iran is to argue that sanctions are a kind of “punishment” or guarantee to make Iran take certain steps. Sanctions, when they are taken to mean punishment, denote any forceful action which is taken by a public institution with the authority in a society in return for violation of legal principles. No specific country or organization can assume responsibility for administration of such punishments in international community unless such a task has already been given to it by all countries. The reason is absence of consolidated institutions with legal, legislative, executive and judicial functions which could take punitive and forceful action against violation of any law in order to make the violator repent their acts or be put to punishment. The UN Security Council, based on its statute, shoulders certain responsibilities in this regard as the main international body in charge of maintaining international peace and security. Of course, the Council is supposed to do its job in accordance with goals and principles of the Charter of the United Nations and cannot do anything beyond its powers. However, in practice, any measure taken by the Council is considered lawful and no higher authority has been proposed to conduct judicial supervision over its decisions. Therefore, recourse to punitive and forceful measures to justify sanctions beyond the Security Council’s resolutions does not seem to be lawful. The European Union cannot act as law enforcer in international community. Meanwhile, administration of punishment depends on proving and verifying violation of the law by an impartial judicial official. In review of this very brief explanation, it follows that taking international legal action against the aforesaid anti-Iran sanctions will most probably lead to condemnation of these sanctions. However, the main question is what kind of lawsuit should be filed and with what international authority?
On the whole, the Islamic Republic of Iran can resort to two means for taking legal action against sanctions beyond the resolutions adopted by the Security Council.
The first means is international arbitration which is possible through agreement among all countries involved in an international dispute. Recourse to an international arbitration board, which has been included as a clause in certain bilateral treaties between Iran and European countries or concluding a separate arbitration agreement are the best mechanisms for talking legal action with an international arbitration authority.
The second means is to take legal action at the International Court of Justice (ICJ). The Court which is based in The Hague, the Netherlands, is the most suitable authority to see into Iran’s legal case against economic sanctions imposed on the country by member states of the European Union. The court, which is the main judicial organ of the United Nations and is the highest ranking international judicial body, only investigates countries’ lawsuits against one another if both parties accept it as competent. Therefore, this Court cannot see into a lawsuit which is filed against the European Union, because the EU is considered an international organization. However, certain member states of the European Union, including Germany and France have already signed bilateral contracts and good relationship agreements with Iran. Therefore, if those contracts and agreements include a clause about referring disputes on the implementation of that agreement or contract to International Court of Justice, it would constitute the competence of the Court. It should be noted that in the case of Iran’s oil platforms, which was filed by Iran against the United States, the basis for the competence of ICJ was a previous agreement of that type. Taking legal action against individual members of the European Union has many advantages.
Firstly, the action, per se, shows Iran’s interest in, compliance with, and respect for legal rules and regulations as well as the rule of law. On the other hand, it will prove Iran’s confidence about rightfulness of its position on the nuclear energy program.
Secondly, Iran can ask for temporary measures from the beginning of the legal procedure and call for an end to oil sanctions until the court hands down its verdict.
Thirdly, a legal action taken by Iran will bring the issue of unlawful sanctions into the limelight of international law experts and trigger serious debates about it. This will not only incite the world’s public opinion against sanctions, but also make countries imposing sanctions to modify their illegal demands of Iran. It goes without saying that voluminous international propaganda by global media against Iran using the word “sanctions” has made the world believe that the Islamic Republic has actually violated its international obligations and the European Union is just protecting the rules and regulations of international law.
Fourthly, taking legal action with the International Court of Justice can prove to be a trump for Iran in its nuclear talks with the group 5+1 – which includes the US, the UK, Germany, France, Russia, and China. This initiative will make European countries think twice before insisting on the implementation of their extortionist policies.
Fifthly, although the main suit will be against the European Union, its implications will also cover unilateral sanctions by other countries, especially the United States. Finally, both parties will refer to the resolutions of the IAEA Board of Governors and the Security Council in their defense bills and this will make it easier for the ICJ to decide about legality of sanctions decisions. Of course, as it has been proven in the case of the US Boeing which was downed after a terrorist bombing in Lockerby, Scotland, permanent members of the Security Council are especially afraid of possible investigation of legal authenticity of the Security Council’s decisions by the Court. If the Court takes up this case and gives its expert view on the Security Council’s decisions, it will greatly help clarify whether the Security Council complies in its decisions with the general principles and rules of international law or not. It goes without saying that the Court cannot err on the side of impartiality and independence in it decisions, even if it wanted and cannot openly ignore principles and rules of international law in the subsequent lawsuit. To do this, it is proposed that the issue of taking legal action with the International Court of Justice should be immediately put to discussion in expert sessions to be attended by prominent Iranian scholars on international law. There is no doubt that such Iranian scholars will do their part in building a case by paying whole-hearted attention to all legal considerations. It is necessary to consider this an issue of national import away from undue political biases in order to pave the way for all the capacities and prowess of Iranian legal experts to be taken advantage of. If the court handed down a verdict in favor of the Islamic Republic, whose possibility is quite high it would be more effective than hundred of speeches and negotiation sessions. It seems that the first step in this direction is to hold a session to be attended by high-ranking international law experts and scholars from concerned institutions in order to take preliminary steps for providing a primary framework for such a legal action.
Mohammad Habibi Mojandeh
Faculty Member, Mofid University, Iran
Source: Shargh Newspaper
Translated By: Iran Review.Org