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Nuclear Disarmament and Nonproliferation The Iranian Nuclear Dilemma

The Iranian Nuclear Dilemma:
Referral to the UN Security Council?

Commentary – updated September 27, 2005

Michael Spies, Program Associate
Lawyers’ Committee on Nuclear Policy, New York (www.lcnp.org)

Background

The next meeting of the International Atomic Energy Agency’s Board of Governors is set for September 19. In advance the United States, with the tacit support of the European Union (EU), has begun to actively lobby the members of the Board for support in referring Iran to the United Nations Security Council to face possible sanctions.[1] Clearly lacking the consensus by which the Board customarily makes its decisions, the United States and the EU and E3 states (Britain, France, Germany) are hoping to just generate enough votes on the 35 member Board for the simple majority technically needed to make the referral.

This escalation was precipitated by Iran’s August 1 decision to resume uranium conversion activities in contravention of its Paris Agreement obligation with France, Germany, Britain, and the EU. On August 10 Iran removed the seals from its Uranium Tetra-Fluoride (UF4) production lines at its Uranium Conversion Facility (UCF) near Esfahan and resumed nuclear fuel cycle activities. IAEA Board convened for an emergency meeting during the second week of August, at the request of permanent Board members France, Germany, and Britain, to discuss Iran’s resumption of nuclear fuel cycle activities. On August 12 the Board passed a resolution urging Iran to resume suspension of nuclear fuel cycle activities on the same, voluntary, non-legally binding, confidence-building basis as it had under the Paris Agreement.

The hard-line position of the U.S. and E.U. is largely at odds with the statutory powers of the IAEA, which prevent it from legally enforcing the terms of the Paris Agreement. The agreement “invites” the IAEA to verify and monitor the suspension of enrichment related activities. Unlike the NPT Safeguards Agreements and the Additional Protocols, the Paris Agreement does not grant the IAEA any enforcement powers. Absent any enumerated obligation the IAEA is legally barred from adopting any enforcement action. The agreement relegates the IAEA to the role of a neutral and ostensibly impartial observer.

Moreover, the Paris Agreement is not a binding treaty. The text contains no expression that the state parties consent to be bound by the agreement terms, thus depriving the text from possessing any legally binding character. Specifically the agreement lacks the language which confers binding legal status unto treaties, such as provisions for ratification and deposit.[2] Under this view the agreement is analogous to a memorandum of understanding or a statement of principles, to be used to guide a framework for continued negotiations. Only the stated outcome document of this negotiated framework would conceivably take the form of a legally binding treaty.

The issue before the IAEA Board is not whether to punish Iran because it is clandestinely operating a nuclear weapons program. A report released by the IAEA last month indicated HEU contamination on Iranian nuclear equipment originated in Pakistan, thus absolving Iran of the sole remaining potential “smoking gun” evidence of a nuclear weapons program. Absent evidence of such a program the U.S. and E.U. appear to seek to punish Iran for operating an ostensibly civilian nuclear program, in abrogation of their legally binding recognition of Iran’s “inalienable right” to develop such technology under Article IV of the NPT.

The specific issue of uranium conversion is in itself not particularly threatening to international security, given Iran’s existing stockpile of uranium-hexafluoride. In 1991 Iran imported 1005 kg of UF6 (of which 1.9 kg was used in centrifuge enrichment experiments), 402 kg of UF4 (of which 376.6 kg was converted to UO2 metal, 9.43 kg was converted to UF6), and 401.5 kg of UO2 metal (of which 2.7 kg of UO2 was used in conversion experiments to produce UF4).[3]

As further developed below, the U.S./E.U. position not only defies international legal norms, but it also needlessly threatens the very core of the nonproliferation regime by undermining a key provision of the NPT. The opposition to this from most developing states and two of five permanent members of the UN Security Council further deprives the U.S. and E.U. position of legitimacy. Ultimately the course of action proposed by the U.S. and E.U. would not result in achieving the stated policy outcome of forestalling the potential emergence of an Iranian nuclear state. Action by the Security Council will only exacerbate the problem by further isolating Iran, with the conceivable outcome of Iran withdrawing from the NPT and developing a nuclear weapon, all at the expense of international law.

Analysis

The IAEA has no legal authority to refer Iran to the Security Council at this point. The authority of the Board to refer matters to the Security Council is granted by the IAEA Statute, the Safeguards Agreements, and the Additional Protocol when applicable. Under the Statute (Art. 12(C) and the Safeguards Agreement the Board may only refer Iran to the Security Council if it finds that, based on the report from the Director General, it cannot be assured that Iran has not diverted nuclear material for non-peaceful purpose. In the past findings of “non-assurance” have only come in the face of a history of active and ongoing non-cooperation with IAEA safeguards. The pursuit of nuclear activities in themselves, which are specifically recognized as a sovereign right, and which remain safeguarded, could not legally or logically equate to uncertainty regarding diversion.

There is no legal basis for Security Council referral by the IAEA as a result of the resumption of conversion or enrichment activities and the breach of the Paris Agreement. Suspension of uranium enrichment and conversion activities under the Paris Agreement was agreed as a non-legally binding, voluntary, confidence-building measure to be maintained throughout the duration of negotiations. The Paris Agreement contains no enforcement mechanism, and only grants the IAEA legal authority to verify its implementation.

The pursuit of nuclear fuel cycle technology does not provide legal grounds for Security Council referral by the IAEA. The IAEA is empowered to submit a report to the Security Council, “if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council… as the organ bearing the main responsibility for the maintenance of international peace and security.”[4] The pursuit of nuclear fuel cycle technology by a state does not share a direct connection with the “activities of the Agency”. Moreover, the NPT and the Paris Agreement acknowledge “the inalienable rights of all Parties to the [NPT] to develop research, production, and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of the Treaty.” It would be quite a stretch to argue that one state’s exercise of its “inalienable right” to nuclear technology jeopardizes the maintenance of international peace and security, within the context of the IAEA statute, absent evidence of a nuclear weapons program which would indicate a violation of Article II of the NPT.

The IAEA Board lacks the political will to refer Iran to the Security Council. The operational language of the most recent Board resolution on Iran is softer than previous resolutions regarding suspension. These past resolutions have called on the Iran to take specific actions. Using less direct language having the effect of a suggestion rather than an imperative, the current resolution urges Iran to reestablish the suspension. Developing states are reluctant to compel Iran to cease nuclear activities, thereby abrogating widely acknowledged rights to nuclear development, as long as Iran continues to comply with its IAEA Safeguards Agreement. If the Board is only able to agree on watered down criticisms of Iran’s nuclear program, it cannot be expected to agree on the significantly harsher mode of action sought by the U.S. and E.U., which carries the potential for widespread ramifications.

Security Council referral would have a negative impact on the NPT and international law. Given the legal circumstances, IAEA referral to the Security Council would mean that the powerful industrial states may circumvent international law for their own political purposes. This disregard for widely agreed to legal norms would be damaging to international law and to nuclear non-proliferation efforts. Such action would also render meaningless the “inalienable right” of states to develop nuclear technology contained in Article IV of the NPT, thereby undermining a core pillar for non-nuclear weapon state adherence to the treaty.

Prospects for Security Council referral are limited and dim both legally and politically. Non-Aligned and developing states which possess nuclear industries (such as Brazil, Argentina, and Egypt) are reluctant to set a precedent affecting their Article IV rights in way that allows their nuclear energy programs to be curtailed based on the concerns a few states. These states require for all nonproliferation measures to be pursued in a non-discriminatory manner.

Negotiations under the Paris Agreement and the suspension of fuel cycle activities are not required for the resolution of remaining verification issues. The outcome of these talks deal specifically with aspects of civilian nuclear industries, recognized as a sovereign right under Article IV. They bear no direct relation to Iran’s obligations under the NPT or IAEA Safeguards Agreement.

Prospects for inducing Iran to forgo enrichment are unlikely. Unilateral actions are unlikely to occur in a manner satisfactory to the concerns of the Non-Aligned and developing states. Iran, which views its nuclear program as a source of national pride and indicator of modernity and prosperity, is unlikely to voluntarily forfeit any aspect of its civilian program. In international fora the Non-Alignment Movement and concerned developing states may be sufficient to stop any action in the IAEA Board[5] and UN Security Council[6], although both bodies are weighted to varying degrees toward the developed states.

Security Council consideration of the Iranian situation is not well founded in the UN Charter. While there are no present indications of an intent to do so, the U.S. and the E3 conceivably could place the Iranian situation on the agenda of the Security Council on their own accord, without going through the IAEA. This move would lack legitimacy if the IAEA Board had refused to refer the matter to the Council. Further, there is no basis for the Council to adopt a resolution under Chapter VII that mandates sanctions (or, as seems not now contemplated, military action). Under Article 39, Chapter VII mandatory measures require a Security Council determination of a “threat to the peace.” There is room for a Security Council role under Chapter VI, Article 34, which says the Council “may investigate any dispute, or any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the dispute is likely to endanger the maintenance of international peace and security.” However, under Chapter VI the Security Council may only recommend procedures or terms for the settlement of a dispute or resolution of a situation.

The International Court of Justice could help resolve the dispute between the E3 and Iran. Article XVII of the IAEA Statute provides that any “question or dispute concerning the interpretation or application of this Statute which is not settled by negotiation shall be referred to the International Court of Justice in conformity with the Statute of the Court, unless the parties concerned agree on another mode of settlement.” Chapter VI of the UN Charter, Article 36, also identifies a role for the ICJ. The dispute between the E3 and Iran does not appear to turn primarily on interpretation of the IAEA Statute, since the E3, along with the United States, is seeking to achieve the termination of all Iranian nuclear fuel cycle activities, which is not contemplated by the Statute. Nonetheless, there may be aspects of the situation suitable for the ICJ to consider, for example whether Iran’s past concealment of nuclear fuel cycle activity impairs its future enjoyment of the NPT Article IV right to non-weapons uses of nuclear energy.

Recommendations

Action by the Security Council and all military options should be taken off the table. Non-diplomatic and unilateral solutions, are illegal, unsafe, and unwise. Saber rattling fosters insecurity, and provides an incentive for threatened countries to develop nuclear weapons as the ultimate guarantor of their security. Absent evidence of a weapons program or additional concealed activities, there is no solid legal basis for compelling Iran to give up any aspect of its civilian nuclear program. Security Council action would be widely perceived as the powerful states utilizing multilateral bodies to enforce and justify demands which have no basis in international law. Punitive action is hypocritical as the U.S. and two of the three E3 states currently operate both uranium enrichment and conversion facilities.

The U.S. must actively engage in the diplomatic process. With troops levels indefinitely exceeding 130,000 in neighboring Iraq, Iran’s largest security concern is the United States. Security and fuel supply guarantees granted by the EU without the U.S. are meaningless. As the self-proclaimed protagonist in a struggle to change the direction of Iranian policy, the U.S. should make an effort to achieve its stated policy goals through the resumption of interaction on the diplomatic level. Non-involvement and non-engagement are not effective means of foreign policy.

The U.S. policy of isolating Iran should end. More than two decades of sanctions have not achieved any change in Iranian policy. Iran's acquisition of nuclear fuel cycle technologies would undoubtedly give it the capacity to develop a nuclear bomb if it chose to do so. An Iranian nation that is brought out of isolation, with its security assured, and integrated into the global economy would have nothing to gain from going nuclear, and everything to lose. At present Iran is able to defy the West because the U.S. in particular has no vested role in the Iranian economy and has not convinced the world it is acting in the best interests of the Iranian people. The legacy of the U.S. policy of isolation is an Iran that has turned to building an entirely indigenous capacity to meet its security and energy needs.

Iran should unconditionally ratify the Additional Protocol without delay. For the resolution of unresolved issues with its IAEA safeguards, Iran has been informally implementing safeguards under the Additional Protocol beyond the scope of its current binding obligations. Without preconditions Iran should take the final step necessary to bring its Additional Protocol into force as a confidence building measure. The Additional Protocol is the latest multilateral step aimed at preserving and strengthening the efficacy of the verification regime. It is posed to become the standard for compliance and should be requisite for the supply of nuclear technology, material, and assistance.

Iran should not develop nuclear fuel cycle technologies. The development of nuclear technologies represents an inherent proliferation risk wherever it is located, leading to mistrust and decreased security for all states. Movement toward a proliferation-proof global nuclear fuel cycle, should occur in a balanced and nondiscriminatory way, ideally under multilateral control. Western proposals for dissuading Iranian nuclear ambitions must respect Iran’s long term security, economic, and energy needs. Any framework should include specific, binding commitments on non-aggression and for the development of sustainable energy technologies. A proposal by Hans Blix should be considered, which calls for a regional freeze in the Middle East, thus including Israel, on enrichment and reprocessing activities.

States should vigorously pursue multilateral control of the nuclear fuel supply. Recognizing the inextricable link between nuclear energy and nuclear weapons, States should cede national and private control over the nuclear fuel cycle and all production of nuclear materials to a internationally regulated body. “IAEA Director-General Mohamed ElBaradei called for “working towards multilateral control over the sensitive parts of the nuclear fuel cycle – enrichment, reprocessing, and the management and disposal of spent fuel.”[7] Pending the establishment of multilateral control of the fuel cycle, all construction of enrichment and reprocessing facilities should be voluntarily suspended, and Iran and other states should be given credible nuclear supply assurances.

All polices should uphold the integrity of the NPT. The NPT is the sole treaty aimed at preventing the proliferation of nuclear weapons. The NPT Review Conference failed largely because the nuclear weapons states are not living up to their disarmament obligations. The actions of the U.S. and E.U., regarding Iran, appear to many as yet another unilateral reinterpretation of the treaty by the nuclear weapons states and the states under their nuclear umbrella. This approach could easily undermine the core bargain of the treaty, thereby threatening the core rationale for non-nuclear weapon state adherence.


1. Steven R. Weisman, “Wider U.S. Net Seeks Allies Against Iran's Nuclear Plan”, September 10, 2005, New York Times, http://www.nytimes.com/2005/09/10/politics/10iran.html.

2. See: Vienna Convention on the Law of Treaties, art. 11-17.

3. IAEA Board Report, November 15 2003, http://www.iaea.org/Publications/Documents/Board/2003/gov2003-75.pdf. Note: the amounts of processed materials has been adjusted slightly in subsequent reports.

4. IAEA Statute, Art. III(B)(4).

5. Non-Aligned States on the IAEA Board (14/35): Algeria, Ecuador, Ghana, India, Nigeria, Pakistan, Peru, Singapore, South Africa, Sri Lanka, Tunisia, Venezuela, Viet Nam, Yemen. With four additional votes, non-aligned states would have a majority. Other Board members likely to oppose referral to the Security Council include Argentina, Brazil, Russia, and China. Historically the Board has operated by consensus although only a majority vote is technically required.

6. Non-Aligned States on the Security Council (4/15): Algeria, Benin, Philippines, Tanzania. With five additional votes, this group has a majority under Council voting rules (9 out of 15). Other Council members likely to support Iran include Argentina, Brazil, China, and Russia. As permanent members, the latter two also have a veto.

7.“In Search of Security: Finding An Alternative To Nuclear Deterrence,” remarks by IAEA Director General Dr. Mohamed ElBaradei, 4 November 2004, Stanford, California, online at http://www.acronym.org.uk/docs/0411/doc04.htm.

 

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