17.1 Introduction
The present chapter has a twofold aim. First, it maps the current state of international supervision in the area of international criminal law,Footnote 1 by looking particularly at the competence of treaty bodies and other non-compliance mechanisms (NCMs),Footnote 2 their institutional and operative differences, progressive sophistication and other developments in recent practice. Secondly, the chapter investigates the features of, and circumstances under which, NCMs established by certain international criminal law instruments are more effective than others to address situations of non-compliance and orient future actions of States.
In order to address these matters in a viable way, I plan to make four related points. First, the chapter argues that the lamented paucity of monitoring mechanisms in contemporary international criminal law does not accurately reflect the recent evolution of international supervision in the field.Footnote 3 Second, an important issue related to the nature of the interest to be pursued by such mechanisms is the increasing complexity of international criminal law treaties and standards. Compared to past agreements, modern international conventions aimed at the suppression of crime (rectius: holding criminal activities at acceptable levels), have a more prospective nature.Footnote 4 Far from being essentially reactive instruments, they are also geared towards mitigating an ongoing criminal problem, shared by different States, with a view towards achieving specific results over time. These results include the development of the rule of law, deterrence and prevention of crime, and ongoing international cooperation. Thirdly, and related, much as in the case of international human rights and environmental treaties, the mechanisms at issue are designed not to allocate legal liability, but rather to encourage States, by influence and soft power, to adopt behaviors and practices that comply with international obligations and standards. Finally, the relative effectiveness of different monitoring procedures and NCMs in the area of international criminal law depends on a variety of factors that may be identified through a comparative assessment of such instruments.
17.2 Mapping Treaty Monitoring and Non-Compliance Mechanisms in International Criminal Law
Figure 17.1 maps the range of existing mechanisms, focussing on the main treaties that oblige States Parties to criminalize specified conduct at the domestic level and cooperate internationally to prevent and prosecute those offences.
Figure 17.1 Treaty Monitoring and Non-Compliance Mechanisms - International Criminal Law
Since World War II, international criminal law has developed in a piecemeal, incremental fashion, as one, then another crime has been added to specific regimes on account of extensive treaty-making.Footnote 5 Through the conclusion of treaties, States have agreed to criminalize various conduct at the domestic level and to cooperate internationally to prevent and prosecute those crimes.Footnote 6 But the adoption of these treaties has not been consistently accompanied by efforts to monitor compliance with them after their entry into force. Thus, there has been a tendency by the few international lawyers who have dealt with the issue systematically to stress the scarcity of compliance monitoring mechanisms in the field.Footnote 7 My own view is slightly different. It is undeniable that the current state of treaty monitoring in international criminal law is not as developed as in other areas of international law, such as international environmental law and human rights law.Footnote 8 However, the scarcity of sectoral international supervision seems overstated. In fact, international monitoring in international criminal law is evolving in different ways.Footnote 9 These range from the progressive development of NCMs for multilateral treaties negotiated under the auspices of the United Nations (UN), such as the review mechanisms for the UN Convention against Corruption (UNCAC)Footnote 10 and the United Nations Convention on Transnational Organized Crime (UNCTOC)Footnote 11 and its Protocols;Footnote 12 to the proliferation and sophistication of monitoring procedures established in the context of regional organizations; and the operation of fairly complex, wide-ranging and rigorous NCMs to ensure that international standards on the prevention and repression of specified international crimes such as money laundering, terrorist financing and financing of the proliferation of weapons of mass destruction (WMD) are put into effect, despite the fact that such codes are not legally binding.Footnote 13 I will now elaborate on each of these distinct developments.
17.2.1 Universal Suppression Conventions and Treaty Monitoring
UN criminal law conventions concerning torture, drug control, corruption, money laundering and different forms of organized crime – including trafficking in persons, smuggling of migrants and illicit manufacturing and trafficking in firearms – are accompanied by NCMs. There are too many instances by now for these to be discounted as constituting merely a “few exceptions” to a general absence of treaty monitoring in international criminal law.Footnote 14 Quite the contrary. In surveying the catalogue of international criminal treaties that aspire to attract universal participation,Footnote 15 the lack of treaty compliance monitoring mechanisms is notable only with respect to the terrorism suppression conventions. This can be ascribed to the sheer number and range of treaties in this area.Footnote 16 None of the fourteen universal terrorism suppression conventions, concluded between 1963 and 2010, creates a monitoring body, even though these agreements “were concluded under the auspices of existing international organizations that might have played such a role.”Footnote 17
The situation of other universal suppression conventions is markedly different. Granted, in adopting early treaties on crimes such as human trafficking, prostitution and slavery in the post–World War II era, States refrained from establishing monitoring bodies.Footnote 18 In fact, those conventions require States Parties to communicate implementing legislation and regulations to the UN Secretary General, but do not call for the Secretary General, or any other body, to independently monitor and review these communications. Yet, over the past twelve years, two important mechanisms have been created. The first, UNCAC’s monitoring system, was established relatively recently, in 2009.Footnote 19 Specifically, UNCAC required the Conference of the States Parties to establish, if necessary, “any appropriate mechanism or body to assist in the effective implementation of the Convention.”Footnote 20 Although the negotiations concerning a review mechanism for the UNCAC stretched from 2006 to 2009, they were ultimately successful. The Implementation Review Group (IRG), a subsidiary body of the Conference of the States Parties to the UNCAC, responsible for maintaining an overview of the review process and considering technical assistance requirements for the effective implementation of the Convention, began operating in 2010. Since then, the UNCAC IRG has carried out a relatively large-scale peer review process involving the treaty’s nearly 180 States Parties.Footnote 21 On the basis of an extensive self-assessment checklist, a desk review and a possible country visit, each State Party is reviewed by two other State Parties, which produce a country review report with the help of the United Nations Office on Drugs and Crime (UNODC). This report, however, may only be published with the consent of the Party under review.Footnote 22 The review process is phased, meaning that the IRG reviews the implementation of only a couple of chapters of UNCAC in each review cycle.Footnote 23
Secondly, after quite a prolonged limbo, in October 2018, State Parties to the UN Convention against Transnational Organized Crime and its Protocols eventually agreed on the creation of a review mechanism (IRG) for organized crime, human trafficking, smuggling of migrants and trafficking in firearms.Footnote 24 This mechanism, established after nearly ten years of negotiation,Footnote 25 took the review mechanism for the 2003 Convention against corruption as a model: UNCTOC IRG is similar to UNCAC IRG in nearly every respect.Footnote 26 This is also because the two treaties are comparable in terms of structure and main provisions (UNCAC was negotiated by the UN on the heels of the UNCTOC).
All this being said, the International Narcotics Control Board (Board or INCB),Footnote 27 created by the 1961 Single Convention on Narcotic Drugs, arguably represents the most significant and long-standing treaty monitoring body created by universal criminal law treaties. All three of the drug trafficking treaties concluded after World War II carve out a significant role for the Board as a body that provides technical assessments and monitors domestic implementation.Footnote 28 The Board, which describes itself as a “quasi-judicial body,”Footnote 29 periodically reviews the adequacy of domestic drug control legislation and policies, as well as measures taken by States Parties to tackle drug trafficking and abuse, the functioning of domestic drug control administrations and compliance with reporting obligations under the treaties.Footnote 30 The Board’s review process comprises a limited number of “country missions” each year, which permit it to discuss drug control measures with domestic authorities and to obtain first-hand information about the drug control situation in the given State.Footnote 31 On the basis of these country missions and the information reported by States Parties, the Board makes findings and confidential recommendations for remedial measures.Footnote 32 Besides, it is also worth recalling that the 1988 UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances was the first international instrument to require the criminalization of money laundering, albeit in the specific context of drug trafficking;Footnote 33 the same approach being then followed in the UNCTOCFootnote 34 and UNCAC.Footnote 35 And the implementation of the respective mandatory provisions on criminalization of money laundering is obviously subject to the monitoring mechanisms established under those treaties respectively.
Slightly more complicated are the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or PunishmentFootnote 36 and its peculiar monitoring system. The Committee Against Torture (CAT) (the body of ten independent experts that monitors implementation of the Convention against Torture) and the Subcommittee on Prevention of Torture (which was created by the Optional Protocol to the ConventionFootnote 37 with the mandate to visit places where persons are deprived of their liberty in the States Parties) are conventionally grouped among human rights treaty bodies. They supervise the implementation of one of “the nine core international human rights treaties,”Footnote 38 and operate much like other well-known human rights treaty bodies, particularly the CAT.Footnote 39 Still, there is no obvious reason to exclude the same Convention from the array of multilateral treaties that oblige States Parties to criminalize specified conduct as a matter of their domestic law and to cooperate internationally to prevent and prosecute those offences.Footnote 40
To recap, the implementation of, and compliance with, the main universal suppression conventions are now monitored by ad hoc treaty bodies and through specific review processes, the only significant exception remaining the criminal law conventions against terrorism. The composition and functions of these bodies vary, but they can be broadly grouped into three categories: subsidiary bodies of the Conference of the States Parties to the UNCTOC and UNCAC, which are responsible for the overview of the whole monitoring process; quasi-judicial bodies that periodically review the adequacy of relevant domestic legislation and policies, as well as compliance with reporting obligations under the universal treaties against drug trafficking; and in one instance a body comprising independent experts with the mandate to visit places where persons are deprived of their liberty, in States Parties to the CAT.
17.2.2 The Development of Treaty Monitoring and Non-Compliance Mechanisms in Regional Criminal Law Conventions
Non-compliance mechanisms with respect to regional and universal treaties are hardly comparable.Footnote 41 Treaties negotiated under the auspices of regional organizations, like the Council of Europe (CoE), the Organization of American States (OAS) and the African Union (AU), may lend themselves “more readily to follow-up mechanisms within the framework of an existing regional entity.”Footnote 42 The problems involved in monitoring a universal treaty with nearly 200 States Parties are clearly different to those involved in monitoring conventions “with a much smaller number of relatively like-minded states that are already members of the same regional organization.”Footnote 43 With that said, some meaningful developments of treaty monitoring in international criminal law have taken place in the context of regional organizations, which make the exploration of such instruments essential for the purposes of the present study. Over the last forty years criminal conventions concluded under the auspices of regional organizations, as well as sectoral intergovernmental institutions grouping like-minded States like the Organization for Economic Co-operation and Development (OECD), have proliferated.Footnote 44
These instruments range from conventions on combating migration and exploitation crimes (human trafficking, migrant smuggling and child sex tourism); to treaties against commodity crimes (e.g., drug trafficking, weapons smuggling and cultural property trafficking); and so-called “facilitative” and organizational crime (money laundering, corruption, terrorism, cybercrimes). It is not possible, within the confines of the present chapter, to investigate this dense and complex network of rules in detail.Footnote 45 The same holds true with the panoply of monitoring mechanisms designed to elicit compliance with such rules. Without claiming to be exhaustive, one may refer to (a) the two instruments, other than the Trafficking Protocol, that encouragingly recognize the importance of victim protection in countering trafficking in human beings:Footnote 46 the Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse;Footnote 47 and the Convention on Preventing and Combating Violence against Women and Domestic Violence;Footnote 48 (b) the array of regional conventions against illicit manufacturing and trafficking in firearms, ammunitions, explosives and the like;Footnote 49 (c) the recent Convention on Offences relating to Cultural Property;Footnote 50 (d) the influential 1990 Convention on Laundering, Search, Seizure and Confiscation of the Proceeds of Crime,Footnote 51 and its successor, the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime and on the Financing of Terrorism;Footnote 52 (e) the development in the late 1990s of four regional and sectoral treaties on combating bribery and corruptionFootnote 53 almost in unison with the negotiations and drafting of UNCAC and the AU Convention on Preventing and Combating Corruption;Footnote 54 (f) the CoE Convention on Cybercrime;Footnote 55 (g) the so-called, “Medicrime Convention”;Footnote 56 and (h) the many regional treaties on terrorism that either (1) follow the limited approach of sectoral universal treaties by proscribing certain acts or protecting certain targetsFootnote 57 or declare that terrorism offences should not be regarded as political offences in extradition law, or that States must cooperate, but do not explicitly require States to criminalize the offences;Footnote 58 or (2) define terrorism by reference to other treaties and then create preparatory or inchoate offences which States are required to criminalize;Footnote 59 or, more controversially, (3) define terrorism generally and require States to criminalize terrorist offences in domestic law.Footnote 60
Non-compliance mechanisms established by regional criminal law conventions show great variety in structure, competence and procedures. The constellation of monitoring systems here is even more diverse than with universal treaties. Diverse monitoring systems oversee States’ implementation of specific obligations under regional criminal law conventions, leaving aside those treaties that do not benefit from any such dedicated system.Footnote 61 These bodies may be intergovernmental and political (led by States),Footnote 62 or supervisory bodies made of independent experts (documenting and assessing implementation and enforcement of the supervised treaties).Footnote 63 Each of these entities was established either directly by individual States or by groups of States, as members of intergovernmental organizations.Footnote 64 Some NCMs tasked with the oversight of regional criminal law conventions perform on-site visits; others do not.Footnote 65 Monitoring may be either “vertical,” that is, a single State’s performance may be evaluated across a range of obligations (also known as “country-by-country” monitoring), or “horizontal,” in which States’ performance of a single obligation or of a group of related obligations may be compared.Footnote 66 While some procedures are based solely on periodic consultations among the Parties,Footnote 67 or the attribution of a general supervising role to the secretariat of the regional organization that originally patronized the adoption of the monitored treaties concerned,Footnote 68 certain conventions are heavily monitored with supervisory bodies working through phased reviews of the quality of implementing legislation, the application of implementing legislation, the enforcement of law and detection and other specified enforcement issues.Footnote 69 This forensic process is sometimes coupled with specific recommendations that target recalcitrant States Parties and aim to orient their future actions with regard to specific aspects of their treaty obligations.Footnote 70
On occasion though, the same international organizations that have patronized the adoption of a given criminal law convention put out general recommendations, which, despite being related to the performance in good faith of the treaty obligations, go beyond what is strictly prescribed by the treaty regime.Footnote 71 In such cases, treaty bodies and NCMs serve also to monitor compliance with, and effective implementation of, the organization’s non-binding standards, through the same type of process of evaluation and pressure with the aim of inducing compliance with the treaty.Footnote 72 Also, certain monitoring bodies, like the Group of States Against Corruption (the anti-corruption body of the CoE (GRECO)),Footnote 73 have of late published reports with a view to disseminating information concerning bad and good practices in the implementation of supervised treaties and “derivative” recommendations (follow-up recommendations to supervised States about specific actions to undertake in order to pursue more effectively the general goals of the treaty in question).Footnote 74 Interestingly, particularly as opposed to a mixed practice of monitoring bodies established by universal suppression conventions, some recent regional criminal law conventions regulate the participation of civil society and NGOs in their monitoring process.Footnote 75
17.2.3 A “Hard” Non-Compliance Mechanism Attached to Non-Binding Standards
In her chapter for this book, Malgosia Fitzmaurice discusses the development of non-compliance procedures in international environmental law by looking at their recent evolution from hard to soft; that is to say, procedures based on more facilitative than coercive methods to elicit compliance with the obligations established by multilateral environmental agreements. The case I illustrate here moves in the opposite direction, with the operation of a robust (and effective) NCM to ensure that international standards on the prevention and repression of money laundering and terrorist financing are effectively put into action, despite the fact that such codes are not legally binding. I am referring to the review mechanism attached to the forty RecommendationsFootnote 76 adopted by the Financial Action Task Force (FATF) in 1990.Footnote 77 This mechanism consists of mutual evaluations or peer reviews among the organization’s thirty-nine members, involving also several other jurisdictions. The FATF review process involves country visits by mutual evaluators and FATF’s personnel. Under the FATF review process, member States are subject to review by their peers, under ad hoc-created groups of officials from other States. The review process culminates in the publication of mutual evaluation reports.Footnote 78 The first three rounds of mutual evaluations focussed on implementation of the Recommendations, while the fourth round, which is currently ongoing, covers also the effectiveness of members’ anti-money laundering and counter-terrorist financing systems.Footnote 79
To be clear, FATF develops and produces policies, not laws.Footnote 80 However, FATF’s institutional design, practices and monitoring process have contributed to the spread of its standards and their influence on domestic legislation with respect to both form and content, despite the non-binding nature of these norms. As FATF has come to serve as the international standard-setter in the anti-money laundering field, about 200 countries and jurisdictions around the world have adopted anti-money laundering policies, including States like the tiny Pacific Island nation of Nauru, with a population of 10,000, no financial institutions, significant unemployment and an external debt which amounts to 75 per cent of its GDP.Footnote 81 In the case of FATF, international financial regulation, though not emanating from traditionally binding sources, is sustained by a range of enforcement tools and consequences that make it more coercive than traditional theories of international law might predict.Footnote 82 These include the reputational and economic consequences of non-compliance in international relations.Footnote 83 Granted, FATF has no enforcement capability. But in order to become part of FATF, a candidate country must comply with a set of legal and institutional requirements, including the implementation of the FATF Recommendations in the form of hard law at the domestic level,Footnote 84 which is a mandatory requirement to remain or become a member of FATF,Footnote 85 and the FATF can suspend member countries that fail to comply on a timely basis with its standards.
Moreover, FATF has a global reach. International expansion has been a key FATF goal since its inception. Rather than expanding its own membership in order to achieve this, FATF has worked together with other intergovernmental bodies, known as FATF-style regional bodies (FSRBs) to create a network of nearly 200 countries. FSRBs are made up of countries that are not necessarily FATF members. They are considered FATF “associate members” and apply their own evaluation processes, which means that FSRB member countries are subject to mutual evaluations regarding compliance with FATF standards.Footnote 86 Many countries in the developing world that are not members of FATF itself have become subject to FATF’s standards as a result of the establishment of these regional bodies. Importantly, FATF also holds States that are neither FATF nor FSRB members to its recommendations. Its stated mission is to “identify national-level vulnerabilities” and, to this end, it aims to identify and engage “with high-risk, non-co-operative jurisdictions and those with strategic deficiencies in their national regimes” that pose a threat to the financial system’s integrity.Footnote 87 Gadinis has convincingly argued that the network effect is important in anti-money efforts, because the appeal of FATF increases when new members join, as each country’s addition to the FATF network increases the number of potential co-operators for countries seeking to join.Footnote 88 Also, international financial institutions’ efforts to promote the stability of financial markets contribute to the reach of FATF. Recognizing the central role that FATF standards occupy in global financial regulation, influential international organizations have embraced its standards in an effort to develop robust and stable markets around the world. In their ongoing evaluation of countries’ financial systems, the International Monetary Fund (IMF) and World Bank use the FATF standards in the context of the Financial Sector Assessment Program (FSAP),Footnote 89 their joint programme aimed at providing a comprehensive framework through which assessors and authorities in participating countries can identify financial system vulnerabilities and develop appropriate policy responses.
Finally, FATF Recommendations are backed up by mechanisms of “soft liability” and “soft sanctions”Footnote 90 that can themselves exert discipline by generating continuous pressure for compliance.Footnote 91 FATF has a rigorous process of identifying high-risk and non-cooperative jurisdictions.Footnote 92 FATF members that do not implement FATF Recommendations effectively, as indicated in their country reports, risk losing their membership. That loss could compromise a State’s participation in other international fora that include government representatives, such as the Financial Stability Board.Footnote 93 Secondly, FATF’s “soft sanctions” reach not only FATF members but also countries that are members of its regional bodies or that have no relationship to FATF, but that FATF suspects of harboring money launderers. On top of that, FATF calls upon its members to severely restrict, and even prohibit fully, transactions with financial institutions from blacklisted jurisdictions.Footnote 94 Such limitations do not violate any international legal obligations, though they are unfriendly and thus constitute a form of retortion. FATF members control access to the most important financial markets. Shutting out countries, or persons operating from their jurisdiction, from the global financial system imposes great pressure on violators’ and potential violators’ governments.
All these factors taken together account for the effectiveness of the FATF review process in ensuring that international standards against money laundering and terrorist financing are complied with and put into action by States around the globe.
17.3 Nature of the Pursued Interest: Why Non-Compliance Mechanisms in International Criminal Law?
Having mapped the current state of international supervision in the area of international criminal law in Section 17.2, this section goes on to address the nature of the interests pursued by such mechanisms vis-à-vis the increasing complexity of international criminal law treaties and standards. The fragmentation and complexity of international criminal law treaties and standards is indeed key to the nature of the interest pursued by NCMs in international criminal law. International criminal law treaties concluded in the past were typically reactive in nature. These conventions mainly required the criminalization of particular conduct in response to ongoing problems or incidents. The terrorism suppression conventions “illustrate this point. States adopted a ‘sectoral approach’ to treaty-making”;Footnote 95 whereby the negotiation of a treaty responded to a recent terrorism crisis or string of incidents.Footnote 96 By contrast, a number of contemporary criminal law treaties currently include a wide array of more forward-looking rules, ranging from pure criminal repression,Footnote 97 to wide-ranging preventive provisions and chapters,Footnote 98 to a cornucopia of forms of international cooperation,Footnote 99 to technical assistance rules aimed at supporting contracting Parties in the progressive fulfillment of the treaties’ objectivesFootnote 100 and complex rules to pursue forms of redistributive justice, epitomized by the norms on asset recovery of the UNCAC and AUCPCC.Footnote 101 In sum, modern international criminal law treaties are geared towards mitigating an ongoing criminal problem, shared by different States, with a view to achieving or maintaining a particular result in the future, including the prevention and deterrence of crime and enduring international cooperation in diverse forms.Footnote 102 Recent practice shows particularly that the “preventive component” (viz. the inclusion in the treaty regime of measures which are prophylactic in nature) is gaining importance. Obviously, the precise content of the rules on prevention varies with treaties.Footnote 103 But they have all in common that the obligations they establish are not only normative, but also prospective in nature.
In order for these treaties to function properly, States Parties often require information about their current state of implementation, as well as the ability to adjust the rules accordingly. Viewed from this perspective, NCMs enable the operation of international criminal law treaties and standards. Despite their sometimes considerable differences in institutional architecture, powers and procedures, it is fair to say that all the analyzed mechanisms are designed not to allocate legal liability, but rather to encourage States, by influence and soft power, to adopt behaviors and practices that comply with international obligations and standards. Much like their well-known counterparts in the fields of human rights and environmental law, monitoring treaty bodies and NCMs dealing with international crimes are well-suited to apply measures of a more facilitative quality in lieu of traditional coercive approaches, consonant with the view that a cooperative and “managerial” approach, rather than an enforcement approach, may better address non-compliance issues, and, hence, favor prevention and consistency with international law, rather than reparation after a violation has occurred.Footnote 104 The paradigmatic (or normative) goal of modern international criminal law conventions (hence, the non-reciprocal character of the international obligations they establish), and their forward-looking character mean that adjudication may scarcely be appropriate. An infringement by one of the Parties might go by unheeded if it were only the other contracting State that has the right to demand compliance.
Most criminal law treaties today respond to the working hypothesis that there is an “interest-outcome” conundrum. The more broadly a (legal) interest is shared among States Parties (e.g., common concerns regarding specific forms of crime), and the less desirable a particular result (e.g., the proliferation of crime), then the more relevant is the shared ownership of the monitoring process. For broadly shared interests, such as, for instance, the rule of law, NCMs provide a “safer” avenue for States to address concerns than independent international courts. Traditional methods provided by the law of treaties or general international law are likely to be of little help in ensuring effective compliance. International oversight in the field of international criminal law is designed not to assign blame, with the gravitas and severity of “Justitia’s sword,” but rather to encourage States to adopt desired behaviors and practices. The overall approach is not sanctions-based; it is more educative in nature, as it works through normative alignment. In this field, NCMs are functionally directed to bypass the possibility of a unilateral assessment of non-compliance with the relevant international standards by States. Quite the reverse, they operate to verify compliance with, and induce respect for, a wide array of international rules of paradigmatic, as opposed to synallagmatic, character.Footnote 105
17.4 Qualitative Analysis: Determinants of Effectiveness in Monitoring and Addressing Situations of Non-Compliance
Suppression of crime, future deterrence and prevention are the overarching goals of the criminal law conventions and instruments discussed in this chapter. Achieving these objectives requires implementation of the rules of the relevant criminal law conventions – both substantive and procedural – in municipal law. It also requires effective compliance with these rules,Footnote 106 particularly through enforcement of national implementing legislation and international cooperation. As suggested by a commentator, the Doha Declaration,Footnote 107 adopted in 2015 at the UN Crime Congress held in Doha, “provides a convenient lens” through which to assess “the implementation of and compliance with [international] criminal law”.Footnote 108 The Doha Declaration aspires to integrate crime prevention into “the wider UN agenda addressing social and economic challenges and promoting the rule of law,”Footnote 109 openly recognizing that “sustainable development and the rule of law are strongly interrelated and mutually reinforcing”.Footnote 110
There is a gap between suppression conventions and their implementation. These treaties “have not yielded the expected dividends in terms of effective international cooperation”.Footnote 111 Boister goes further in observing that “[m]any states join these treaties, some reform their laws, but most never use them,” concluding that “general support for them appears to be largely rhetorical.”Footnote 112 Formal commitment is not the same as material compliance. What is undisputable is that neither implementation of, nor compliance with these treaties can be taken for granted. And States are rarely held legally accountable through international dispute settlement for non-compliance.Footnote 113
Compliance is in fact the “product of a range of complex interactions between legal, political, social, and moral norms as well as the real advantages/disadvantages of compliance and the pressure that large powerful states and civil society exert in the promotion of compliance.”Footnote 114 These relations are imponderable in the abstract. However, scholars and practitioners have identified the circumstances that, in general, favor or jeopardize implementation and compliance with international criminal conventions.Footnote 115 Among these conditions, effective mechanisms to review implementation and incentivize compliance are usually considered critical. Gathering and reviewing information about the steps State Parties have taken to implement a suppression convention bears the potential embarrassment “of publicity about poor performance.”Footnote 116 Although typically contemplated in the form of a facilitative mechanism, a finding of non-compliance may indeed be regarded latu senso as a “sanction,” creating political discomfort for the State concerned.Footnote 117 Importantly, such a finding does not entail legal consequences. The relative effectiveness of different NCMs in international criminal law, indeed, mainly depends on operational factors.
What are the elements impacting on the effectiveness of the various NCMs? Certain elements are general and highly contextual, but, at the same time, may be decisive. By way of example, the global political climate has lately become less hospitable to internationalization efforts of the kind described in this work, with increasing tensions among global powers, nationalism on the rise and international organizations under stress. This has an effect on the operation of NCMs irrespective of their specific features. Similarly, the low cost of commitment in jurisdictions where the rule of law is not embedded encourages treaty ratification and jeopardizes compliance.Footnote 118 Further, States “with integrity deficits resist being scrutinized by others.”Footnote 119
Other factors of particular interest to us here are more strictly related to the design and architecture of NCMs. Consider self-reporting in answer to a questionnaire. It is a common method,Footnote 120 especially insofar as it constitutes the first step of more sophisticated procedures. Depending on the Parties alone is,Footnote 121 however, “an invitation to abuse.”Footnote 122 This is why modern suppression conventions resort to two main alternatives, by relying either on expert review or on peer review of a Party’s performance. Independent expert review is epitomized by committees like GRETA, which gathers information for evaluation from Parties by questionnaire (which Parties are obliged to answer) and from civil society, and may also use in-country visits and hearings before making a report.Footnote 123 The Group’s evaluation reports are rigorous and of high quality.Footnote 124 This is essential also for the accuracy of the specific recommendations the Committee of the Parties may make, on the basis of the report and conclusions of GRETA, to a Party concerning the measures to be taken as a follow-up to a GRETA Report. The precision of GRETA evaluations depends on different elements, particularly the expertise of its individual members in the areas covered by the supervised Convention; the structure of the evaluation procedures in multiple rounds; and the body’s own capacity both to identify shortcomings, and to take cognisance of good practices in compliance with the CoE Convention on Action against Trafficking in Human Beings. A precondition for GRETA’s “effective” operation is the identification and collection of information allowing a quantitative and qualitative analysis of the effectiveness of member States’ judicial systems. This is information that, like the other CoE’s monitoring bodies,Footnote 125 GRETA can leverage: the work of an important late addition to the organization’s institutional construction, the European Commission for the Efficiency of Justice (CEPEJ),Footnote 126 a body that has no equivalent in other international organizations.
As a second alternative to self-reporting, peer review of a Party’s performance by other Parties is generally assumed to be a powerful monitoring methodology because it involves peer pressure.Footnote 127 While mutual evaluation of this kind was already used within the FATF system, it was pioneered in its treaty form under the OECD Anti-Bribery Convention and, then, by GRECO, which, as noted, was set up to complement the CoE’s six anti-corruption instruments. The GRECO monitoring mechanism has two main components: an evaluation procedure which is based on on-site visits and the issuing of evaluation reports, as well as country-specific recommendations; and a fully-fledged impact assessment (“compliance procedure”) designed to appraise the measures taken by its members to implement the recommendations emanating from country evaluations.Footnote 128
Having spelled out the main alternatives for effective review, it remains to note that the form of review per se is no guarantee of effectiveness. As a matter of fact, poorly effective mechanisms exist among both expert- and peer review-based varieties. Expert committees may be fairly powerless in some instances. The Advisory Board set up under the auspices of the AUCPCC, for example, has, virtually no role in monitoring, and is, in effect, “a toothless think tank.”Footnote 129 NCMs based on peer review, too, have been criticized for their inability to orient the future conduct of States and incentivize compliance with criminal law treaties. Non-compliance mechanisms in the area of the suppression of trafficking in firearms, when existent at all, have been so far poorly effective.Footnote 130 Looking again at anti-corruption treaties, MESICIC has not been able to modify the excessive discretion the IACAC gives to States Parties as to the timetable within which they have to implement treaty obligations. And, while the OECD WGB has developed a robust peer review mechanism that adopted a four-phase review of the quality of implementing legislation, the application of implementing legislation, the enforcement of law and detection and other enforcement issues,Footnote 131 the peer review system established in 2009 by the CoSP to the UNCAC is affected by the scarcity of available information on country visits; the absence of follow-up procedures on recommendations made in country reviews; and the fact that publication of self-assessment reports and country review reports is not mandatory and depends on the authorization of States Parties.Footnote 132 Not surprisingly, similar drawbacks seem to affect the review mechanism created to monitor the implementation of UNCTOC and its Protocols.Footnote 133
To conclude on the point, the analysis of the NCMs discussed in this chapter shows that it is the combination of a number of legal and extra-legal factors surrounding the design and functioning of these mechanisms that most impacts on their relative effectiveness. In general, the problems surrounding the design and operation of NCMs established under regional conventions and treaties among “like-minded” States, on the one hand, and universal treaties, on the other, are hardly comparable. With the former category of treaties, the creation of robust review mechanisms that can substantially pressure States Parties into improving compliance is certainly less difficult, as implicitly confirmed by the protracted negotiations that eventually led to the creation of UNCTOC’s Review System. Funding and allocation of resources are obviously critical factors and are frequently divisive issues as among the Parties to universal suppression conventions.Footnote 134
From an institutional perspective, important elements are: (a) a balanced mix of “vertical,” (i.e., a single State’s performance may be evaluated across a range of obligations), and “horizontal” monitoring, (in which many States’ performance of a single obligation or of a group of related obligations may be compared);Footnote 135 (b) the division of the monitoring process into phased reviews of the quality of implementing legislation, its application, enforcement of the law and detection of offences and other enforcement issues;Footnote 136 as well as (c) the institution of follow-up procedures based on full-fledged evaluation reports on implementation.Footnote 137 Even if exceptional in international criminal law, treaty bodies of a so-called “quasi-judicial” nature (bodies that are not courts, but do decide individual complaints), may help put greater compliance pressure on States.Footnote 138 As the creation of the CEPEJ shows, intra-organizational cooperation may also strengthen monitoring.Footnote 139 The same holds true with inter-organizational cooperation, especially when it is directed to channel expertise and challenges among monitoring mechanisms supervising treaties on similar/identical crimes, and, hence, also streamline burdensome reporting requirements. For instance, sharing of expertise and coordination of planning among GRECO, the WGB, MESICIC and the UNCAC monitoring system is facilitated through the close relations maintained among relevant international organizations, which have observer status within one another’s NCMs.Footnote 140
Finally, multilateral criminal treaties themselves do not commonly grant powers of sanction to monitoring bodies. The 1961 Single Convention (as amended) and the 1971 Psychotropic Conventions are the exceptions in that they grant the International Narcotics Control Board (INCB) power to impose sanctions on State Parties.Footnote 141 However, “these powers have never been used and similar powers have not been included in other treaties.”Footnote 142 As explained above, a finding of non-compliance may determine only negative consequences in international relations by exposing the State concerned to political embarrassment or, as the outstanding example of the FATF standards evidences, to harsh forms of “market pressure.”
18.1 Introduction
The Treaty on the Non-Proliferation of Nuclear Weapons (NPT)Footnote 1 has been an important pillar of world peace in the international legal complexFootnote 2 of nuclear disarmament and arms control, as each non-nuclear-weapon State undertakes ‘not to manufacture or acquire nuclear weapons’.Footnote 3 A constant challenge for great power rivalry and global geopolitical stability characterises States’ international legal interaction in the nuclear disarmament sphere. This interaction has variously taken the form of political diplomacy, the operation of tailored non-compliance machinery, and proceedings before international courts and tribunals (ICTs) as well as most recently the negotiation of the Iran Nuclear Deal (also known as the Joint Comprehensive Plan of Action or JCPOA). The difficulty of finding a ‘negotiated solution guaranteeing that Iran’s nuclear program is exclusively for peaceful purposes’Footnote 4 remains one of the central concerns of contemporary nuclear disarmament. The situation in relation to Iran is governed by the overarching NPT legal complex including the NPT, International Atomic Energy Agency (IAEA) Safeguards AgreementsFootnote 5 and the Additional ProtocolFootnote 6 (hereafter ‘NPT legal complex’), as well as the Iran Nuclear Deal as mentioned above. The Iran Nuclear Deal is a detailed, 159-page agreement with five annexes which was reached by Iran and the P5+1 (China, France, Germany, Russia, the United Kingdom, and the United States) along with the European Union (EU) on 14 July 2015 through multiple rounds of negotiations which took approximately a decade.
Examining the NPT legal complex with reference to the Iran Nuclear Deal is a valuable opportunity to juxtapose and compare three types of machinery for settling disputes or bringing about compliance with international legal obligations. These three types of machinery are: political measures, non-compliance mechanisms (NCMs), and ICTs. Political measures have included unilateral sanctions efforts led by the US, the EU restrictive measures,Footnote 7 and the good offices of China, Russia, and the EU. Non-compliance mechanism was established through the NPT, enabling the IAEA to serve as a watchdog for nuclear non-compliance. When the IAEA somewhat failed to limit the Iranian nuclear program to peaceful purposes only, the UN Security Council (UNSC) 1737 CommitteeFootnote 8 and the JCPOA Joint Commission (‘the Joint Commission’) were established. Last but not least, Iran has also resorted to the International Court of Justice (ICJ) and the EU courts in recent years in the hope of resolving international legal disputes arising from the effects of unilateral US and EU sanctions and other political actions in relation to Iran’s nuclear activities, which Iran considers violate obligations under the NPT legal complex.Footnote 9
This shows that the history of the NPT legal complex is a recursive processFootnote 10 in which new measures are developed to enhance compliance with the existing rules. The scope of IAEA safeguards since 1961Footnote 11 has evolved to ensure member States’ fulfilment of their NPT obligations. The model Additional Protocol was approved in 1997 to increase the IAEA’s ability to verify the peaceful use of nuclear material for ‘exposed weaknesses’.Footnote 12 More recently, confronting the Iranian violations, a new formal non-compliance mechanism, the JCPOA, was set up in 2015 to assist further with ensuring compliance. The corresponding UNSC Resolution 2231 became a source of legal obligations for all UN member States including Iran and the US. The Joint Commission serves as the focal point for monitoring, fact-finding, and compliance by JCPOA member States. Similar to the UNSC 1737 Committee and its Panel of Experts,Footnote 13 the Joint Commission and its subordinate working groupsFootnote 14 regularly review the implementation of obligations by the JCPOA member States,Footnote 15 thereby assisting the UNSC in identifying evidence of non-compliance or non-performanceFootnote 16.
The Iran Nuclear Deal is an important complement to the NPT legal complex. It demonstrates how to address a ‘complex global challenge’Footnote 17 through negotiations on a complementary agreement (JCPOA) when a State Party (e.g., Iran) has not been fulfilling a core international treaty (here the NPT). It is also a case in which the permanent NCMs (i.e., the IAEA compliance machinery) operating under the treaty have been unable to persuade a party (Iran) to conform with its legal obligations (under the NPT). It features the establishment of a more effective non-compliance mechanism (i.e., the UNSC 1737 Committee or the Joint Commission, respectively, from 2006 to 2015 and since 2015) to resolve specific disputes with regard to compliance by relevant States (i.e., Iran from 2006 to 2015, Iran and the US since 2015). The work of the UNSC 1737 Committee, in parallel to political and diplomatic measures, contributed to the negotiations for and establishment of the JCPOA agreement as a peaceful solution to the Iranian nuclear crisis. The empirical evidence from the Iran Nuclear Deal suggests the use of mechanisms and approaches not involving recourse to ICTs can be successful in many circumstances.
Set against this positive trajectory is the decision of US President Trump in 2018 to withdraw from the JCPOA. However, this incident, too, demonstrates the effective use of mechanisms and approaches not involving recourse to ICTs. Following this decision, the United States put huge pressure on the EU to boycott international trade settlement services provided to Iran by European global banksFootnote 18 and levied tremendous pressure on China through unilateral sanctions on those Chinese multinational companies like Huawei who were claimed by the US to serve as Iran’s international trade partners.Footnote 19 The strategic purposes of President Trump’s pressure campaign on Europe and China were to force them to consent to the US withdrawal from the JCPOA and follow the United States in ending their obligations under the JCPOA, in addition to obtaining more leverage in the bilateral trade negotiations with the EU and China. This violated US legal obligations under JCPOA and UNSCR 2231 to lift ‘all … national sanctions related to Iran’s nuclear programme, including steps on access in areas of trade, technology, finance and energy’Footnote 20 so long as Iran continued to comply with the nuclear deal. In response, alongside the negotiations in the Joint Commission, the EU and China activated a range of political mechanisms, including diplomatic good offices and various forms of persuasion or coercion, e.g., Germany, France, and the UK’s Instrument in Support of Trade Exchanges (INSTEX) in January 2019, the Swiss Humanitarian Trade Arrangement (SHTA) in February 2020, and the China–Iran twenty-five-year co-operation agreement in March 2021. These efforts successfully brought the United States back to the negotiating table in Vienna and Geneva with Iran and other JCPOA member States, which led the United States into compliance with its JCPOA obligations, in addition to providing preliminary sanctions relief to Iran. In contrast with recourse to an international court or tribunal, this shows how such political processes can lead to a positive outcome. This can be achieved by creating rich incentives or rewards for a complying party (Iran). Incentives include sanctions relief, humanitarian aid, or bilateral investment and trade programmes. These incentives may need to be accompanied by substantial penalties or coercions for a defaulting party (the United States). European humanitarian payment channels (e.g., SHTA, INSTEX), in addition to serving as a reward for Iran, are an example of pressure on US foreign policy, because the European efforts frustrated the US strategy to isolate Iran from the rest of the world in international trade by helping European multinational companies to return to Iran, one of the largest consumer markets in the Middle East. As the world’s largest oil consumer, China, by signing the twenty-five-year agreement with Iran in March 2021, generated a substantial penalty for the United States. Although China promised to increase energy imports from the United States in the bilateral agreement signed in January 2020,Footnote 21 China cut oil imports from the United States by 42 per cent in 2021Footnote 22 and recovered substantial oil imports from Iran in the same year.Footnote 23
Certainly, the operation of NCMs and other means of dispute resolution, including recourse to ICTs, is interconnected, as shown in the dozens of cases of Iranian banks looking for judicial review of the EU’s restrictive measures, or reparations, in the EU courts. This litigation reinforced Iranian diplomatic pressure for EU action against the 2018 US decision to withdraw from the JCPOA. The overall dynamic underlines how it is important for the international community to state its respect for the principles of international law when confronted by unilateral acts on the part of a hegemon in breach of a treaty. In this case such action was key for persuading Iran to meet its obligations under the JCPOA despite US conduct. The experience in respect of the judicial cases in the EU courts in relation to the Iran Nuclear Deal may be relevant beyond the field of non-proliferation, in many other areas of compliance in international and European law, such as climate justice, environment,Footnote 24 human rightsFootnote 25 and public and private actors’ decarbonisation obligations.Footnote 26 Relevant too is the gradual process in which the Iranian cases show how the EU courts became willing to interpret or reinterpret the Treaty on the Functioning of the European Union (TFEU) in a direction increasingly enabling the judicial pursuit of international justice.
Section 18.1 has offered an initial discussion of the issues addressed in this chapter. Section 18.2 will provide an overview of the international legal framework with regard to Iran’s obligations of nuclear non-proliferation. Section 18.3 will highlight the respective value of helping ensure Iran’s compliance with its nuclear commitments to political and diplomatic mechanisms, the JCPOA as a formal non-compliance mechanism, the previous regime operating under the auspices of the UNSC, and proceedings in ICTs. Section 18.4 incorporates a discussion on the importance of fact-finding processes in this setting. Section 18.5 concludes.
18.2 The Legal Context
This section begins with a brief overview of the legal context for compliance and dispute settlement in respect of Iranian nuclear policy, on the basis that the functions, competencies, and operational mechanisms of international dispute resolution mechanisms need to be viewed from within the framework of the corresponding international law. International law plays a pivotal role here. The US Government, Iran, Israel, and the United States or its allies in the Middle East have all been required to consider the legal consequences of their potential actions.
18.2.1 The Broad Legal Framework
The broad legal frameworkFootnote 27 includes the Statute of the IAEA, the NPT, the Convention on Nuclear Safety (CNS), and Iran’s Safeguards Agreement with the IAEAFootnote 28 and Additional ProtocolFootnote 29 to the NPT, in addition to the JCPOA since 2015. In particular, Articles II and III of the IAEA Statute provide that each State Party shall establish and implement safeguards and apply safeguards to its activities with respect to atomic energy. Articles XVI and XVII of the IAEA Statute provide that the IAEA may ‘report to the appropriate organs of the United Nations on actions taken by the Agency or its member States pursuant to this Statute … ’. Article II of the NPT provides that non-nuclear States (like Iran) undertake not to develop, receive, or seek to acquire nuclear weapons, in light of which Iran is obliged to ensure its nuclear program is for peaceful purposes only, and this is subject to the IAEA’s verification of fulfilment and compliance. The IAEA Safeguards Agreement and Additional Protocol with Iran set out Iran’s legal obligations to provide information and additional access in a timely manner,Footnote 30 and to accept the designation of IAEA inspectorsFootnote 31 in order to assist the IAEA in completing its annual conclusions.Footnote 32
18.2.2 UNSC Resolutions, UNSC 1737 Committee and the Panel of Experts
The legal framework includes also a series of UNSC Resolutions. By UNSC Resolution 1737 (2006) of 23 December 2006, the Security Council decided to establish the 1737 Sanctions Committee to oversee and monitor UN-imposed sanctions against Iran. In 2010, the Security Council appointed a Panel of Experts to assist the Committee in its work,Footnote 33 in particular through fact-finding mechanisms, including the annual report of the Committee and the (periodic) report from the Panel of Experts.Footnote 34 In 2015, after the Iran nuclear deal was reached, the Security Council endorsed it in UNSC Resolution 2231 (2015). On 16 January 2016, the date of implementation of the Iran nuclear deal, the Council terminated the UN sanctions on Iran in accordance with the provisions of Resolution 2231 (2015). At present, although the 1737 Sanctions Committee and its Panel of Experts (POE)Footnote 35 no longer exist, the UNSC remains the highest international oversight body in relation to the situation regarding Iranian nuclear activities.
18.2.3 JCPOA and the Joint Commission
In July 2015, Iran entered into the nuclear deal (JCPOA) with the United States, the United Kingdom, France, Russia, China, Germany, and the European Union. Under the JCPOA, Iran committed to limiting its nuclear programme to peaceful research purposes only in return for which the international community agreed to lift sanctions against Iran, including both UNSC sanctions and unilateral US and EU sanctions or restrictive measures listed in the appendix to the negotiated agreement. Paragraph ix of the preamble to the agreement provided for the establishment of a Joint Commission of the JCPOA, Article 24 of the agreement explicitly mandated the Joint Commission to address issues related to the lifting of sanctions, and Article 36 provided that if Iran believes that any party is not fulfilling the agreement, it may bring the matter to the Joint Commission for resolution. It is under this non-compliance mechanism that the current Iranian nuclear negotiations are taking place. For example, in May 2021, the two expert groups responsible for lifting sanctions against Iran and for US–Iranian measures to return to compliance submitted a draft agreement to a new round of meetings of the Joint Commission at the level of Political Director-Generals. The draft agreement essentially set out the framework for a final agreement for the United States and Iran’s return to the JCPOA. The draft agreement was unfortunately not signed in Vienna in 2022 due to the Russian invasion of Ukraine.
18.2.4 International Courts and Tribunals
The ICJ may give its views on relevant disputes only so far as jurisdiction can be established. However, there are jurisdictional clauses in Iran’s bilateral treaties with relevant countries, such as the United States (the US–Iranian Treaty of Amity of 1955) which provide for ICJ jurisdiction on certain matters. The Court of Justice of the European Union (CJEU)Footnote 36 has gradually expanded its jurisdiction over EU restrictive measures against individuals through its judicial precedents. Specific Iranian entities subject to EU restrictive measures, although not an individual EU citizen, can request review or annulment of the relevant restrictive measures.Footnote 37 Iranian parties have also requested the European Court of Human Rights (ECtHR) to review individual restrictive measures in accordance with the European Convention on Human Rights (ECHR) in a few cases.Footnote 38
18.3 Comparison of Political Diplomacy, NCMs and ICTs in the Iranian Case
The previous section having introduced the relevant elements of the international legal framework, this section now moves on to evaluate their relative contribution to ensuring Iranian compliance with its nuclear commitments.
18.3.1 The Value of the JCPOA Joint Commission as a Non-Compliance Mechanism of the Iran Nuclear Deal
From 2015 to 2018, the JCPOA Joint Commission fulfilled its function of assisting Iranian efforts to comply with the JCPOA and the NPT legal complex by helping verify that the Iranian nuclear programme was restricted to peaceful purposes only. The first Joint Commission held on 19 October 2015Footnote 39 addressed measures in the nuclear field, such as the retrofitting of the Arak heavy water reactor, the military dimension of the Iranian nuclear programme, and preparations for the implementation of sanctions-lifting measures. The Joint Commission also studied the arrangements for the follow-up implementation mechanism of the agreement and made work plans for the next step in implementing the agreement. On 25 April 2017, the seventh meeting of the Joint Commission noted the continued adherence to the agreement’s commitments by all participants.Footnote 40 On the signing of the first commercial contract of the renovation project for the Arak heavy water reactor by Chinese and Iranian enterprises on the 23rd of that month, the parties expressed appreciation for the joint efforts of JCPOA member States.Footnote 41
In May 2018, the Trump administration unilaterally withdrew from the Iran nuclear deal signed between Iran and the Obama Administration. This US unilateral exit from the JCPOA occurred at a time when the rest of the JCPOA member States including Iran were fulfilling their legal obligations. President Trump reimposed a series of sanctions against Iran and the European and Chinese global banks or firms, triggering the circumstances set forth in Article 36 of the Iran Nuclear Deal (as discussed). Following the US exit from the JCPOA in 2018, the Joint Commission gradually became a pivotal NCM by which the relevant parties could ensure Iran was complying with the agreement in spite of US withdrawal. However, after September 2019, Iran gradually suspended compliance with certain provisions of the Iran Nuclear Deal. Specifically, fifty-six ‘centrifuges were either installed or being installed’ and the piping at research and development lines was ‘reinstalled’ so as to restart nuclear activities in violation of the JCPOA legal obligations.Footnote 42 Meanwhile, Iran said it was committed to the ‘reversibility’ of the countermeasures it had taken, promising that it could return to full compliance at any time. Through the IAEA verification mechanism,Footnote 43 the international community was able to understand that Iran’s countermeasures, while constituting necessary diplomatic pressure, did not yet pose an immediate nuclear security threat to regional peace and stability.
The 2020 US presidential elections brought President Joe Biden to office. Addressing the international dispute over these actions, a meeting of the Joint Commission at the level of political directors-general was held in Vienna on 6 April 2021, to discuss the resumption of US–Iranian implementation of the JCPOA. On 6 April 2021, the first round of indirect talks between the United States and Iran occurred in Vienna. Two expert working groups were formed to address the timetable to lift US unilateral sanctions on Iran and to reverse Iran’s breaches of the JCPOA since September 2019. In a sign of good faith, the US State Department held briefings on 6 AprilFootnote 44 and on 7 AprilFootnote 45 declaring that the United States was preparing to lift sanctions on Iran in order to restore the Iran Nuclear Deal. The Joint Commission held six rounds of talks over the following two months. On 12 June, the day before the sixth round of talks began, in another show of good faith, the United States announced the lifting of sanctions against three former Iranian officials and two companies.Footnote 46 Some experts believe that an important background factor for the US President’s willingness to initiate indirect talks with Iran through the Joint Commission was China’s active mediation and pressure,Footnote 47 in addition to EU pressure including through the INSTEX, its bilateral international trade settlement system with Iran, with an expectation that the US return to JCPOA would lead to Iran’s full compliance. Earlier, on 27 March 2021, China and Iran had entered a twenty-five-year agreement on political, strategic, and economic co-operation, signed by Chinese State councillor and foreign minister Wang Yi and Iranian Foreign Minister Zarif in Tehran.Footnote 48 To this day, Iran maintains regular information exchange, inspection, and safeguards with the IAEA,Footnote 49 hoping that its countermeasures, which serve as pressure on the United States, will not be misunderstood as an immediate nuclear threat. The valuable work of the JCPOA Joint Commission has concluded a new draft agreement for relevant parties to resume commitments to the JCPOA. Although this draft agreement could not be signed as scheduled, following the unexpected circumstance of the Russian invasion of Ukraine on 24 February 2022, the JCPOA Joint Commission did successfully help to resolve the chapter of the Iranian nuclear crisis generated by the US withdrawal from the JCPOA in 2018.
18.3.2 The Contrasting Role Played by the UNSC in the Decade Prior
The decade from 2005 to 2016 witnessed developments from the beginning of sanctions against Iran under UNSC Resolution 1737 (2006) to the termination of sanctions against Iran under Resolution 2231 (2015). It documented the rich legal practice of the UNSC in maintaining peace in the Middle East, working for regional security and stability, and defending the international nuclear security system.
An international sanctions system was constructed through successive rounds of step-by-step, courteous resolutions seeking evidence-based and fact-based compliance. With the objective of exerting the pressure necessary for nuclear diplomacy, the UNSC improved investment and trade-related compliance and monitoring proceduresFootnote 50 involving restrictive measures on the arms trade; ballistic missile programmes capable of delivering nuclear weapons; financial transactions related to Iran’s nuclear and missile programmes; international financial services provided to or by designated financial institutions; and the international travel of targeted sanctioned persons and their financial assets.Footnote 51 On the other hand, when Iran showed good faith in nuclear negotiations,Footnote 52 the imposition of further UNSC sanctions was held back, although high pressure remained from the major powers including the United States. When the Iran Nuclear Deal, which was eventually struck in 2015, showed Iran would conscientiously fulfil its nuclear disarmament obligations in accordance with the JCPOA agreement, the UNSC terminated the UN sanctions in accordance with UNSCR 2231.Footnote 53
18.3.3 The Role of Political Measures versus Non-Compliance Mechanisms
The handling of the Iranian nuclear crisis, which emerged around 2003, and the Iraqi issue which came to a head around the same timeFootnote 54 could be used to illustrate the difference between NCMs and political measures. The Iranian nuclear issue was peacefully settled via the JCPOA agreement, while the Iraqi issue ended in a different outcome.
The 2003 Iraqi issue was a situation where political measures did not contribute to a peaceful settlement of international disputes, when there was no effective NCM or ICT.Footnote 55 The international community considered that Iraq had ‘repeatedly obstructed immediate, unconditional, and unrestricted access to sites designated by the United Nations Special Commission (UNSCOM) and the International Atomic Energy Agency’,Footnote 56 which constituted a serious violation of its international legal obligations. IraqFootnote 57 failed to convince UNSC, UNSCOM, or IAEA to serve as an effective non-compliance mechanism to ensure that it would co-operate with weapons verification in good faith.Footnote 58
Contrastingly, the Iranian nuclear crisis was settled through political measures. NCMs including the UNSC 1737 Committee and its Panel of Experts played an active role through fact-finding and the provision of good offices which helped to bring this about. The value of these processes is reflected in the IAEA report of 28 April 2006: ‘Agency inspectors found no undeclared nuclear material in Iran’,Footnote 59 and ‘the Agency is unable to make progress in its efforts to provide assurance about the absence of undeclared nuclear material and activities in Iran’.Footnote 60 The IAEA in effect serves as an independent fact-finding mechanism, operating as a non-compliance mechanism to show the accurate extent of Iranian breaches. It helped to maintain the confidence of the international community that the Iranian crisis could be solved or negotiated through political measures, diplomacy, and NCMs, and a war avoided. On the following day, US President George W. Bush commented that ‘the diplomatic process is just beginning … And I’ve told the American people that diplomacy is my first choice’.Footnote 61 Through the active diplomatic good offices of various countries (e.g., Russia,Footnote 62 the EU, China and other P5+1 countries), peaceful measures through NCMs (e.g., UNSCRs, the UNSC 1737 Committee, and the JCPOA) remained a viable way for the international community to resolve the Iranian nuclear crisis.
18.3.4 Recourse to International Courts and Tribunals
The ICJ and the CJEU are the ICTs to which Iran and Iranians have looked for judicial remedy to settle disputes with the United States and the European Union, respectively, with regard to damages caused by unilateral actions or foreign assets targeted by unilateral sanctions. The ICJ is historically an important forum for the settlement of disputes between the United States and Iran, as the US–Iranian Treaty of Amity of 1955 has provided jurisdiction.Footnote 63 The previous cases (prior to the JCPOA) brought by Iran at the ICJ,Footnote 64 namely, the Oil PlatformsFootnote 65 and Aerial Incident of 3 July 1988 cases,Footnote 66 indicate the ICJ is considered by Tehran to be an independent judicial authority with strong legal reasoning and fact-finding capability. In the Oil Platforms case, the Court confirmed the fact of the attacks by the US Navy on Iranian oil platforms, but also found that no direct trade relations existed between the two countries at the time of the attacks. For this reason, the US attacks were held not to violate the freedom of trade in oil guaranteed by the treaty, and there was no basis for the Iranian claim. In the Aerial Incident case, the ICJ verified the liability of the US Navy missile cruiser for the downing of Iran Air Flight 655, but none of the orders issued by the Court involved damages or compensation. The matter of damages was settled through bilateral negotiations.Footnote 67 The United States insisted the payment made was of an ex-gratia nature, refusing to acknowledge responsibility for the incident.Footnote 68
Two cases have been brought by Iran against the United States in the ICJ in the post-JCPOA period,Footnote 69 hoping that the Court could be a source of international justice against the unilateral sanctions reimposed by the US Administration after the US withdrawal from the nuclear deal. In both cases, Iran requested the Court issue provisional measures requiring the United States to lift or suspend unliteral sanctions measures.Footnote 70 On 3 October 2018, the ICJ issued a preliminary rulingFootnote 71 requiring the United States to lift certain sanctions against Iran, mainly related to the import of food and medicines. On 13 February 2019, the ICJ concluded that the Court has jurisdiction to admit part of the application brought by Iran against the United StatesFootnote 72 in respect of Iran’s claims arising from measures taken by the United States to block Iranian assets. At the time of writing, none of the orders issued by the Court in the two cases above has involved a broad lifting or suspension of unilateral US sanctions on Iranian assets.
The CJEU is where Iran has sought international justice against the restrictive measures imposed by the EU during the period from 2006 to 2015 when the JCPOA was under negotiation. Under US lobbying and pressureFootnote 73 the EU imposed unilateral and the UNSC restrictive measures on Iranian entities corresponding to UNSCR 1737 (2006) and UNSCR 1929 (2010).Footnote 74 Seventeen Iranian banks and a couple of shipping and other companies involved brought cases before the CJEU. The Court ruled early on from 2007 to 2012 that EU restrictive measures on certain Iranian entities were unlawful, as ‘the Council cannot rely on a claim that the evidence concerned comes from confidential sources and cannot, consequently, be disclosed’,Footnote 75 and thus, the EU Court issued decisions to annul them, after which it became a place for Iranian entities to look for international justice from the ICTs. After it became clear that Iran’s nuclear programme since 2012 posed a serious threat to Europe’s collective security, the EU refined its sanctions-related laws, including freezing the Iranian Central Bank’s foreign exchange reserves managed in European banks and Iranian oil and gas companies,Footnote 76 and the number of cases in which the CJEU-annulled EU restrictive measures declined significantly.Footnote 77
Shortly thereafter, the JCPOA was concluded and became effective in 2015, with the EU lifting all sanctions under UNSCR 2231. With the exception of human rights sanctions against IranFootnote 78 which were not mentioned by Resolution 2231 and the Iran Nuclear Deal commitments, the EU has now completely lifted restrictive measures against Iran. Even so, after the US withdrawal from the JCPOA in 2018, many EU products including foods and medicines met with difficulties relating to bank settlements, as the global banks, including big banks in Europe, have remained concerned about US secondary sanctions.Footnote 79 The CJEU could be a potential place to settle related disputes, but proceedings in the European Court of Justice (ECJ) are now unlikely as cases concerning such matters have been ruled inadmissible, as the ECJ held in 2018 in the Bank Mellat case.Footnote 80 Iran has therefore lost interest in employing EU judicial procedures against the de facto European resumption of sanctions.Footnote 81
18.3.5 Respective Strengths of the Various Compliance Mechanisms and Processes
In contrast to recourse to ICTs, NCMs show three distinct advantages. The first is timeliness. An NCM such as the Joint Commission of the JCPOA can hear complaints from relevant parties, private entities, or affected non-party stakeholders in a timely manner, and can convene expert-group-level, director-general-level, or ministerial-level meetings to promptly consider or mediate conflicts and contradictions in response to rapid changes in specific circumstances. The second advantage is flexibility. A mechanism such as the Joint Committee, or the UNSC Sanctions Committee or its Panel of Experts can monitor compliance and add, suspend, or lift sanctions measures in accordance with the degree of compliance observed. It is flexible enough to encourage parties with good faith in negotiations. The third advantage is that NCMs may offer ‘carrots and sticks’. They may support diplomacy and reinforce the influence of major powers by identifying specific implementation or compliance challenges, improving bilateral economic and trade relations for a compliant party, while bringing condemnation, coercion, or pressure to bear on a non-compliant party.
ICTs can be employed to clarify legal obligations, provide authoritative explanations, issue an authoritative opinion on disputes between parties, and provide a voice for international justice through interim measures. The role is to reaffirm the fundamental principles of international law and to maintain the confidence of the international community that an international crisis like the new round of the Iranian nuclear crisis in 2018–2021 could be solved through peaceful means instead of any resorts to, or a threat of, use of force. Non-compliance mechanisms and ICTs can support each other where particular disputes are admissible before an international judicial body, like the CJEU in the Iranian cases prior to the JCPOA. The International Court of Justice reaffirms the applicability of international lawFootnote 82 in the face of unilateral acts of major powers in violation of international treaties.Footnote 83 This has been key for the international community in convincing Iran to comply with its obligationsFootnote 84 under the NPT legal complex including the JCPOA after the US withdrawal.
The judicial cases at the ICJ and CJEU indicate three weaknesses with regard to recourse to the ICTs. The first weakness is a lack of timeliness. It is unlikely that an international court will be able to act in a timely manner. International adjudication calls for due process, allowing the relevant parties to document evidence and put forward their submissions. The second weakness is a lack of flexibility. Judicially available remedies may promote the annulment of restrictive measures or the payment of damages, but it is unlikely that ICTs will be in a position to follow the logic of political diplomacy or diplomatic negotiations with variable, context-dependent sanctions calculated to influence a situation politically. The third weakness is a lack of ‘carrots and sticks’. The past record of the ICTs in the above cases shows that an international court or tribunal takes a cautious approach with regard to requests for damages or reparations, especially the use of ‘sticks’ against major powers, and it is unlikely that ICTs will be able to provide such ‘carrots’ as a bilateral trade and economic co-operation agreement.
18.4 Fact-Finding Mechanism
The international legal mechanisms used to deal with the Iranian nuclear programme have most centrally involved specific forms of fact-finding, and this topic is correspondingly a final focus of reflection in this chapter. The IAEA sent experts to Iran to assist the Security Council in verifying relevant evidence or leads mentioned above, in conjunction with data collected by technical monitoring equipment installed inside Iran as the IAEA safeguards agreementFootnote 85 and Additional ProtocolFootnote 86 with Iran. Serving the UNSC 1737 Committee, the Panel of Experts, composed of experts in various fields such as customs, banking, and trade, investigated the specific circumstances or extent of Iran’s alleged violations of Security Council resolutions through independent sources, relying on statistics, field investigations, customs searches, and customs declarations from a global network of experts which produced periodic peer-reviewed reports on the specific facts of alleged violations.Footnote 87
Broadly, fact-finding mechanisms make a great contribution to global governance. First, these mechanisms serve as an alternative source of legitimacy in the international community, parallel to the diplomatic endeavours of major powers or working together with international negotiations under the auspices of relevant international organisations like the UNSC or IAEA to help address complex global challenges. Second, confronting complex global challenges, fact-finding mechanisms, through science-based or fact-based policy formation processes, participate in shaping global values and the global agenda. Finally, these mechanisms assist the international community in understanding the causes of disagreement or disputes and help with the development of acceptable solutions.
Fact-finding mechanisms may also work specifically to incentivise compliance with international law in situations of non-compliance. One such example is the IAEA report on 22 February 2018,Footnote 88 confirming that Iran’s nuclear activities were within the standards set out in the Iran Nuclear Deal. This was embarrassing for President Trump, who had been unhappy with the Iranian nuclear deal since he took office,Footnote 89 threatening Congress and his European allies to scrap it if the ‘significant flaws in the deal’ were not fixed.Footnote 90 Through a periodic fact-finding mechanism, including quarterly verification reports, the IAEA encouraged Iran to continue to respect the Iranian nuclear deal and safeguards under the NPT in spite of the US withdrawal, and, in doing so, provided a strong incentive for the United States to return to its JCPOA obligations.
Fact-finding mechanisms may also help generate pressures to push relevant parties back to negotiations when needed. The report by the IAEA in September 2021 is an example. Since his inauguration as US President in January 2021, President Biden had expressed his interest in a return to the Iran Nuclear Deal. The JCPOA parties held six rounds of talks in Vienna from April to June 2021. From June to November 2021, the United States and Iran were at an impasse. It was a fact-finding mechanism that helped to break the impasse by putting pressure on the Biden administration. The IAEA report in September 2021Footnote 91 confirmed that Iran had restarted its nuclear programme, and that Iran’s stockpile of enriched uranium and enrichment level exceeded the limit set by the JCPOA. Negotiations were restarted by the United States and Iran in late November 2021.Footnote 92
18.5 Conclusion
The international community has constructed comprehensive compliance and monitoring procedures in relation to nuclear non-proliferation compliance, in which major powers have so far retained the right to impose sanctions on Iran’s nuclear programme-related investment and trade activities, as well as on the arms trade, ballistic missile programmes, nuclear programme-related financial transactions, financial assets, and international travel of designated persons. Although some of these unilateral sanctions may not have been lawful,Footnote 93 and some extra-jurisdictional measures have been used in unlawful situations, their effective deterrence may have, to a certain extent, had the objective effect of safeguarding peace and avoiding war or armed conflicts in the context of peace and stability in the Middle East.
The Iranian nuclear agreement is a result of the joint efforts of P5+1 countries and Iran, which is also a powerful example of the use of political and diplomatic measures to resolve international conflicts and disputes. The good offices, diplomacy and negotiations in which the major powers engaged to solve the Iranian nuclear crisis, as well as the NPT legal complex (e.g., NPT, IAEA safeguards, Additional Protocol, relevant UNSCRs, JCPOA) and relevant NCMs (IAEA, UNSC, UNSC 1737 Committee, POE, and the JCPOA Joint Commission) and ICTs (e.g., ICJ and CJEU), are of potentially broader significance as institutional models for global governance in fields including climate change, protection of the global environment, and the creation of a Middle East Weapons of Mass Destruction Free Zone.Footnote 94
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