The Case For Legal Challenge of EU's Sanctions on Iran

by Kaveh L Afrasiabi (source: CASMII)
Saturday, December 29, 2012

  Despite appearances to the contrary, a valid legal case can be presented in the European courts that would challenge the legality of European Union's sanctions on Iran.  Such a legal challenge may or may not prove successful in convincing the courts that a judicial review of the EU's Iran sanctions is called for and, indeed, necessary, yet without doubt at a minimum can raise awareness and perhaps even trigger a public and legal debate regarding the legality and legitimacy of these sanctions -- that are invoked in reference to the UN Security Council actions, e.g., the four sanctions resolutions adopted during 2006-2010.

       On the surface, the EU's sanction initiatives, viewed as necessary "countermeasures" in light of Islamic Republic of Iran's purported breach of its international obligations with respect to the Non-Proliferation Treaty and the safeguard statutes of the International Atomic Energy Agency (IAEA), appear to be legally valid, from the prism of both the EU legal system as well as international law.  Yet, on a deeper level, such a conclusion is unwarranted and must be weighed against the contrary evidence of certain questionable legal aspects of both the UN and the EU actions that, in turn, raise the possibility of a legal response that would challenge these actions and seek relief, on the part of the Islamic Republic of Iran as well as a host of individuals and commercial and non-commercial entities that have been designated on the prohibited sanctions lists, thus targeting them for assets and property freeze and confiscation. 

      The principal reason why such recourse to legal challenge of the EU sanctions on Iran is feasible and not a figment of political imagination is that the European legal system has recently experienced an evolutionary development that has created the space for such legal action previously deemed unworkable.  As a result of this evolution, the European courts have dispensed with their past hesitations to conduct judicial review of UN Security Council actions, by opting for a "dualistic" legal interpretation that increasingly vests "primacy" to the autonomous European legal system, instead of a "generalized acquiescence" to UN Security Council initiatives. 

     Thus, in the landmark case of Kadi versus Council (2008), the European Court of Justice (ECJ) allowed for judicial review of UN Security Council resolutions, albeit in "special cases," and accepted full jurisdiction to review the contested EU regulations irrespective of their "UN origins," by applying the standard of a "higher law" pertaining to fundamental freedoms and rights.  In the Court's opinion in the Kadi case, "the claim that a measure is necessary for the maintenance of international peace and security cannot operate so as to silence the generalized principles of community law and deprive individuals of their "fundamental rights."  The ECJ thus annulled the EU's implementation of the Security Council's asset-freeze resolutions (on anti-terrorism) on the ground that these regulations violated the EU norms of fair procedure and property protection. 

      The ECJ's landmark decision in the Kadi case applies, mutatis mutandis, to Iran sanctions and the various EU attempts to both implement as well as broaden the scope of UN Security Council sanctions resolutions, by imposing an energy sanction and adding to the UN's list of designated sanctioned individuals and (commercial and non-commercial) Iranian entities. 

       Hypothetically speaking, an Iranian challenge to the EU Iran sanctions can take two interrelated forms.  First, it can appear in the form of petitions for relief filed in the ECJ on behalf of specific individuals and or entities designated on the sanctions list.  Much like the applicants in the Kadi case, these individuals and entities, can seek relief from the unlawful seizure (or attempted seizure) of their assets and property in pursuance of certain UN Security Council resolutions that are fundamentally inadequate in terms of protection of their rights, particularly with respect to "de-listing" procedures.

       Second, even the government of Islamic Republic of Iran can mount a legal challenge that would focus on the UN Security Council resolutions' deprivation of the "inalienable right" of Iran and Iranians to peaceful nuclear energy and technology, including a nuclear fuel cycle, which is permitted under the articles of Non-Proliferation Treaty (NPT).  It is perfectly possible that an independent European judge may find that the European Union has erred by trying to implement the UN Security Council Resolutions on Iran (e.g., 1696), which seek to alienate from Iran an inherent or rather "inalienable right" by calling on Iran to forego, i.e., "suspend," its civilian uranium enrichment program.  The problem with these resolutions is that they essentially collide with the UN Charter, which respects the rights of nations without discrimination.  Also, these resolutions call on Iran to adopt the IAEA's Additional Protocol, even though this Protocol is not mandatory according to the IAEA Statutes and dozens of IAEA member states have not adopted it yet.   Clearly, the UN Security Council has exceeded its mandate and ventured on the legally contestable ground of rule-making for a separate international organization, which in turn gives cause for legal contestation.  After all, both the UN Security Council and the General Assembly are subject to the legal limitations expressly or impliedly laid down by the UN Treaty, which was created to preserve the rights of nations and not to deprive the member states of their "inherent" or "inalienable" rights.

    What is more, instead of limiting itself to the above-mentioned focal points, an Iranian legal challenge to the EU sanctions on Iran may in fact proceed through the bi-channel of simultaneously challenging the EU for violating the UN's primacy by going beyond the scope of UN sanctions on Iran.  To elaborate, EU's energy sanction on Iran and or its freeze of assets of Iran's banks, not specified or even anticipated in the UN sanctions regime on Iran,  can be presented as questionable and unlawful, from the standpoint of UN laws.  This is so because the broader and more comprehensive EU sanctions are only in nominal harmony with the UN sanctions on Iran, while in reality they transgress the carefully-constructed limits and scopes of those sanctions. 

   The mere fact that the UN sanctions are imposed by triggering the UN's Chapter VII, respecting the peace and security of the international community, simply means that the UN has (ostensibly) used the traditional criteria of necessity and proportionality in devising these sanctions.  Unlike the Iraq resolutions, the Security Council resolutions on Iran do not directly or indirectly permit military action against Iran, just as they intentionally fall short of they type of "crippling sanctions" imposed unilaterally by EU, US, Canada and Japan.  The latter have rarely bothered to justify the unilateral sanctions from the legal standpoint, often taking for granted that these sanctions are in line with and reflect the basic guidelines of UN Security Council resolutions. 

    Yet, in retrospect, such pragmatic and political initiatives aimed at bolstering the UN's sanctions fall dreadfully short of the legal standards, by virtue of their undue broadening and intensification of the UN sanctions, which as hinted above undermine the UN's standards of proportionality and necessity. 

     On the whole, then, an Iranian legal challenge would mount a formidable opposition to the European sanctions on Iran, by simultaneously questioning the EU's implementation of the UN Security Council's resolutions, as well as EU's transgression of the set limits of Iran sanctions by those UN resolutions; the two types of challenges are interrelated and there would be a logical coherence to the overall effort, much as on the surface to the legally-untrained eyes they may appear to be incoherent with each other. 

     Following this line of legal reasoning, the EU would be hard-pressed to justify its actions, such as imposing a broad oil embargo, which is missing in the UN Security Council Resolutions on Iran (and in the debates surrounding them).  These EU sanctions are, in fact, in violation of the UN Security Council initiatives toward Iran, in part by rendering superfluous the calibrated UN sanctions, and also in part by infringing on the UN Security Council's command of the Iran nuclear crisis by triggering Chapter VII.  In turn, this raises serious legal question respecting the interaction and relationship between the EU and the UN, in the light of the Statutes of the Council of Europe that impose the stricture of EU's duty to follow its obligations under the UN Charter.  With respect to the European oil embargo, a dissenting EU member state may well bulk at adopting the EU regulation on Iran oil sanctions by reminding the Council members of the guiding principle: "Member states may, and indeed must, leave unapplied any provision of community law...that raises any impediment to the proper performance of this obligation under the Charter of the United Nations." 

   In conclusion, the aforementioned outline of a legal challenge to the European sanctions on Iran can potentially succeed in the light of its potent legal argument and availability of prior case law, particularly if advanced with the proper auxiliary arguments that demonstrate the facts that Iran has never been found to be in breach of its NPT obligations, that the IAEA did not follow the proper procedure before finding Iran in "non-compliance" with the IAEA statutes, such as a preliminary inspector finding of an Iranian "non-compliance," or the role of curative "corrective measures" reflected in the 2007 Iran-IAEA Work Plan.  Without doubt, such necessary infusions in a (hypothetical) Iranian challenge to the EU regime of sanctions on Iran will bolster Iran's case, which logically speaking has a decent chance of success if pursued through proper representation.

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