Disarmament and Nonproliferation The Iran Nuclear
on the Possible Security Council Resolution on Iran
According to press reports, the P5 plus Germany may soon reach agreement on a proposed text for a Security Council resolution on Iran. The draft apparently would be a somewhat reworked version of the May draft. Like the May draft, the present draft would mandate Iran’s suspension of all enrichment-related activities and reprocessing activities, including research and development and construction of a reactor moderated by heavy water. In our view, this is an unwise course of action. A better approach would be to await Iran’s response to the June proposal of the P5/Germany, or if a resolution is believed warranted now, to make it unambiguously Chapter VI in nature.
Background: The May draft resolution was put aside due to disagreements among the P5 and on June 6, the P5 plus Germany presented Iran with a package of incentives, intended to persuade Iran to suspend indefinitely its uranium enrichment program and construction of the heavy water reactor. After becoming impatient with the length of time Iran required to respond to the proposal, earlier this month (July 6) the P5 states plus Germany decided to refer the matter back to the Security Council. The stumbling block for commencement of negotiations appeared to be the proposal’s precondition of suspension of the enrichment program. But whether there is a stalemate is unknown as Iran has yet to respond to the package, having stated its intention to do so on August 22. Now the U.S./E3 are rushing to act before this deadline, undercutting what might be the last opportunity to achieve a negotiated solution without confrontation.
Legal considerations: Reportedly, the present draft resolution is less emphatic in its invocation of Chapter VII of the Charter than the May draft. The May draft stated that the Council is “acting under Chapter VII” and expressed “its intention to consider such further measures as may be necessary to ensure compliance.” The present draft reportedly specifically invokes Article 40 of the Charter, but not Article 39. Reportedly Russia wanted the reference to Article 39 deleted, apparently in order to lessen the impact of the resolution as a Chapter VII matter that could eventually lead to use of force. Article 40 concerns interim measures aimed at preventing “aggravation” of a situation the Council has determined to pose a threat to the peace under Article 39. The draft also provides that absent compliance by Iran, under Article 41 measures not involving the use of force will be considered. The draft thus seeks to avoid any implication that use of force may be warranted as a response. This is to the good, especially given the way the United States and United Kingdom abused past Council resolutions in their attempts to justify their invasion of Iraq. The draft seems to represent a sort of bridge between Chapter VI and Chapter VII in its de-emphasis of a finding of a threat to the peace and of the possibility of Council authorized use of force, and in its reference to the importance of political and diplomatic efforts to find a negotiated solution.
However, as noted above, Article 40 is tied to Article 39 as part of Chapter VII, and therefore implies a finding of a threat to security (see below regarding the lack of such a threat). Chapter VI is really the appropriate touchstone for Council action in this circumstance; it concerns situations “the continuance of which is likely to endanger the maintenance of international peace and security.” This point has been recently noted by Hans Blix, an international lawyer, former chief UN weapons inspector for Iraq, and currently chairman of The Weapons of Mass Destruction Commission (see www.wmdcommission.org and www.wmdreport.org ). It is true that Chapter VI does not refer specifically to measures adopted by the Council which are binding upon states. In our view, this is not a problem here, because the Council should be aiming to persuade Iran to suspend certain activities, to negotiate, and to fully cooperate with the IAEA. However, if Council members truly believe that the Council should require Iran to take certain steps, in light of Article 25 of the Charter and the Charter as a whole, the invocation of Chapter VII is not necessary. Worth considering, here are Amb. Bolton’s remarks at the July 25 Council “stakeout”: “I think what you’re going to see increasingly is wording that’s different in the resolutions and that the notion that you have to have an ‘abbra cadabra’ in a resolution to make it binding. It may be good practice, but it’s not a requirement. There are a variety of ways in which the Security Council can manifest the intent to adopt a binding resolution, and I think that is likely to be the pattern in the future.”
Policy considerations: Much of what was true of this situation in May remains true today, and LCNP’s past analyses, summarized below, remain relevant (see our Iran Resources Page).
First, contrary to the insistence of some states on pursuing this matter in the Security Council under Chapter VII, there is no basis for a finding of a threat to international peace and security. According to the IAEA, independent experts and the director of U.S. Intelligence, Iran remains several years away from the capability to produce HEU for single weapon, and likely at least a decade away from the capability to deploy an arsenal of deliverable weapons, should it choose to do so.
Second, despite the lack of an imminent threat posed by Iran’s present enrichment research program, the single-minded objective of the present draft is make mandatory what had been regarded until recently as voluntary, non-binding, confidence-building measures (see for example the IAEA board’s September 2005 resolution). In its March 2006 safeguards report on Iran [GOV/2006/27] the IAEA made the unusual effort to stress that “safeguards obligations and confidence building measures are different, distinct and not interchangeable.” The report further states that “the implementation of confidence building measures…” which has been the focus of UN Security Council action, “…is no substitute for the full implementation at all times of safeguards obligations.” The IAEA thus suggests that confidence building measures, such as the suspension of enrichment activities, are not as important as the safeguards, the purpose of which is to prevent the diversion of nuclear materials to military use.
Third, both the May and present drafts assume that the IAEA Board “required” Iran to suspend its enrichment related activities. However, it is doubtful that the Board has this authority under the IAEA Statute. Furthermore, while clever drafting of the IAEA Board’s February 4 resolution has obscured the matter, it falls well short of imposing “requirements” upon Iran. In the first operative paragraph, the Board refers to the need to build confidence and “deems it necessary” for Iran to take certain steps. Operative paragraph 5 refers to “non-legally binding” and “voluntary” confidence building measures.
Fourth, much has been made of the fact that the IAEA has not yet been able to determine the absence of undeclared nuclear activities in Iran. The IAEA certifies the absence of undeclared nuclear activities only for states that implement the Additional Protocol. For Iran the IAEA has stated this process will take longer due to the history of concealed nuclear activities. The IAEA statement that it is “not yet in a position to conclude that there are no undeclared nuclear materials or activities,” which is presently true for Iran, is also true for 40 other states including Canada, the Czech Republic, and South Africa. This statement is also true for Brazil, which has not signed an Additional Protocol, and, almost unnoticed, began operation of its first commercial scale enrichment plant this year. For some it is tempting to declare, based on the inability of the IAEA to presently draw a conclusion on the absence of nuclear activities, that Iran continues to operate concealed facilities and that any such facilities must be for a military program. But the IAEA has cautioned that the lack of a conclusion does not imply suspicion of undeclared nuclear materials and activities, as the matter is frequently spun in the media and by some governments.
Finally, it should be understood that since Iran’s failures to report nuclear activities over nearly two decades came to light in 2002, Iran has in fact substantially cooperated with the IAEA to rectify those failures. IAEA Director ElBaradei, speaking to the Carnegie Non-Proliferation Conference last November, said: “Over the past two and one-half years, we have compiled a detailed picture of most aspects of Iran’s past and current nuclear programme.” ElBaradei went on to say that there still remain issues to be clarified, and that transparency from Iran is therefore essential. That part of the story is well known; it also must be grasped that Iran has been cooperating to the extent that ElBaradei could refer to development of a “detailed picture of most aspects” of Iran’s program.
Conclusion: Despite the absence of a clear and present threat to international peace and security, the Security Council now has before it a situation in which a state has been found to be in non-compliance with requirements of a non-proliferation and disarmament regime, in this case principally a failure to fully declare nuclear activities over a period of years ending in 2003. Similar to the innovation of peacekeeping under Chapter VI, the Council should work toward finding creative and constructive solutions regarding questions of compliance with treaty regimes not rising to the level of threats to peace and security. A resolution requiring Iran to suspend enrichment activities and construction of a heavy water reactor would heighten confrontation. While cessation of these programs would be desirable, confrontation instead of negotiation is not, especially in light of the current tensions and warfare in the region. Here it cannot be overlooked that the Council, due to the U.S. position, as of July 25 had not taken any action of substance regarding the current Israeli attacks in Lebanon and Gaza. Accordingly, LCNP recommends that the Council defer any action until after August 22, only four weeks from now, when Iran says it will respond to the outstanding proposal. If the Council finds it advisable to act now, a non-Chapter VII approach is appropriate.