The reason that most scholars attribute to the “failure” of International Law, is that it is purely consent based. Treaties that bind a state through its consent, ratification and accession alone can be invoked against it. Customary norms that a state does not persistently or subsequently object to are the only things that bind it. Judicial decisions do not hold sway with the principle of stare decisis, as they bind only those states that are party to it. Any source of law, therefore, is only persuasive in value.

And yet, looking at the way international commentators and observers evaluate situations like Iran’s nuclear program, there seems to be a strong reliance on law and legal provisions. To what extent do and can legal obligations extend?

Iran’s case has been scrutinized with the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) and its Safeguards Agreement. Iran for its part, insists on retaining its right to enrich its uranium reserves for peaceful purposes. But there is still a question that looms large. If Iran were to withdraw from the NPT, would the Security Council be legally justified to impose obligations under the treaty and agreement on Iran through Chapter VII? For the present, the Security Council has taken a stand that the Iranian nuclear program is a threat to international peace and security – and therefore, it seems clear that nothing could prevent an imposition of obligations under the treaty and agreement.

Even as a non-member, therefore, it is possible that Iran could be subjected to the obligations under the treaty and agreement. While a priori this seems possible, such a move by the Security Council is still a little disquieting. If Iran is withdrawing from the NPT, it is only doing so in accordance with the right accorded under Article X of the NPT. Therefore, if the Security Council takes action against Iran in keeping with the treaty after Iran withdraws, it invariably affects the balance of consensual treaty obligations and respect for state sovereignty.

The UN Charter clearly suggests that the Council would be empowered to impose NPT treaty obligations on Iran. But there is every truth in the fact that this would clash with the country's explicit will not to be bound by the NPT. While it is conceivable and acceptable that decisions of such a kind may appear justifiable from the standpoint of maintaining international peace and security, that a treaty’s obligations can be extended to a state that has explicitly refused to be bound by its provisions goes against pacta sunt servanda – which is the fount of all commitments in international law. The Security Council construes “threat to international peace” rather broadly, over the past two decades, and its composition warrants that a veto can nullify a decision taken in pursuit of peace. Taking all of this into consideration, coupled with the oft-repeated argument that international law is not a law because of the lack of a legislature, an executive and a judiciary, makes one wonder how far legal obligations imposed by international law extend.

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Tags: international, law


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