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The Iran Nuclear Standoff: Legal Issues

JURIST Guest Columnist Daniel Joyner of the University of Warwick School of Law in the United Kingdom says that now that Iran has been referred to the UN Security Council over its nuclear program, some Council action under Chapter VII of the UN Charter seems likely, but it's difficult to see what would come of that use of authority other than international armed conflict...


On February 4, 2006 the International Atomic Energy Agency (IAEA) Board of Governors decided to refer Iran to the United Nations Security Council, escalating the crisis over Iran’s nuclear program, and opening the possibility of an authorization of economic sanctions or even of military force by the Security Council.

How have we gotten to this point, and why? This essay will attempt to provide a brief procedural history of the Iranian nuclear standoff with the IAEA and the West, and a review of international legal issues in the current crisis. It will also briefly discuss what is likely to happen procedurally from here.

In late 2002, the world learned from Iranian opposition groups that Iran had concealed from the IAEA for 18 years the existence of facilities at Natanz and Arak engaged in work on the nuclear fuel cycle.

The IAEA Board of Governors reached the conclusion in a Resolution passed November 26, 2003 that, due to this concealment and to other reporting omissions, Iran had “in a number of instances” failed to meet its obligations under its Safeguards Agreement with the IAEA, which it is obligated to maintain pursuant to Article III of the 1968 Nuclear Non-proliferation Treaty (NPT).

However, Iran has maintained that all of its work with fissile materials and related technologies, including work at these hidden sites, has been aimed at furthering its capacity to produce nuclear energy. Therefore, they argue, notwithstanding these procedural reporting requirements they have always been in fundamental compliance with their substantive obligations under the NPT.

In this argument, they rely on Article IV(1) of the NPT which provides that
Nothing in this Treaty shall be interpreted as affecting the inalienable right of all the Parties to the Treaty to develop research, production and use of nuclear energy for peaceful purposes...
And indeed, Article IV(2) goes on to provide that
All the Parties to the Treaty undertake to facilitate, and have the right to participate in, the fullest possible exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. Parties to the Treaty in a position to do so shall also cooperate in contributing alone or together with other States or international organizations to the further development of the applications of nuclear energy for peaceful purposes, especially in the territories of Non-Nuclear-Weapon States Party to the Treaty, with due consideration for the needs of the developing areas of the world.
In terms of the “Grand Bargain” codified by the NPT, this obligation on the part of all NPT member states to assist particularly Non-Nuclear-Weapon States (NNWS) in developing nuclear energy production capacity, forms the fundamental consideration in exchange for which NNWS promise in Article II not to develop or accept assistance in developing nuclear weapons.

However, suspicions have become widespread particularly among Western states, that Iran does indeed have nuclear weapons ambitions, and that particularly the uranium enrichment work which Iran has carried out is intended not solely for use in peaceful energy production, but for the creation of nuclear weapons.

This suspicion has been made more poignant in recent months due to the accession of Mahmoud Ahmedinejad to the Iranian Presidency. His radical reforms of government policy and personnel, along with his repeated threatening remarks toward Israel, have understandably raised concerns among the governments of the West regarding the potential of a nuclear-armed Iran.

However, IAEA inspectors have found no conclusive evidence to support allegations of a clandestine nuclear weapons program in Iran.

Despite this lack of evidence of a weapons program, the IAEA Board of Governors took the decision on February 4 to refer Iran’s case to the U.N. Security Council. This referral, without a supporting report by IAEA inspectors providing evidence that Iran is in breach of its substantive NPT obligations, or that it is in continuing breach of its IAEA Safeguards Agreement, has led to criticism of the Board’s decision as premature, as well as to some speculation that this decision of the IAEA Board is ultra vires its authority under Article XII(7)(c) of the IAEA Statute.

Iran had insisted previous to this decision that it would cease all voluntary cooperation with the IAEA if it was referred to the Security Council. This had reference to a cessation of compliance with its commitments under the IAEA Additional Protocol, which allows for unscheduled inspections of nuclear facilities and more comprehensive surveillance of facilities. Commitments under the IAEA Additional Protocol are voluntary in the sense that maintenance of an Additional Protocol with the IAEA is not a legal requirement under the NPT.

Since February 4th, Iran has taken concrete steps toward this end, asking the IAEA in a letter to remove all of its surveillance equipment from Iran’s nuclear facilities by mid-February, and stating that all IAEA inspections must be scheduled, per the general Safeguards Agreement standards. On February 14, it was reported that Iran had resumed uranium enrichment.

Also worryingly, on February 11, Iranian President Ahmadinejad reportedly stated that if compulsory measures against Iran were pursued, a revision of Iran’s commitment to the NPT itself would be considered.

Now that the matter has been referred to the U.N. Security Council, next steps are unclear. It has been agreed that the Security Council will take no action on the Iran case until IAEA Director-General Mohamed ElBaradei presents a “detailed” report on Iran’s compliance with its Safeguards Agreement to the IAEA Board on March 6.

After that, the Security Council may begin discussions regarding what steps, if any, it will authorize to address the situation. In terms of its own powers to authorize action, pursuant to the U.N. Charter, Chapter VII, Article 39 the Security Council may “determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken . . . to maintain or restore international peace and security.”

Once the Security Council has made the determination that a threat to international peace and security exists under Article 39, it may authorize non-forceful action by U.N. member states under Article 41, most notably including economic sanctions.

It is unclear whether there will be sufficient political will among members of the Security Council to take this step, however. Russia and China particularly have in their official statements, been reluctant to discuss the possibility of sanctions, leading some to suggest that, while both Russia and China supported the IAEA decision to refer Iran to the Security Council, they will be unwilling for the Council to impose sanctions under Chapter VII. Both Russia and China are permanent members of the Security Council, and have an effective veto over any decision of the Council.

It is noteworthy to recall in this context also that Iran has warned that if sanctions are imposed by that the Council, Iran will take steps to significantly increase world oil prices.

If the Security Council decides that measures authorized under Article 41 of Chapter VII are “inadequate” to restore international peace and security, it may under Article 42 of Chapter VII authorize U.N. members to take collective military action.

The prospect of U.N. authorized military action against Iran does seem quite remote at this stage. Not only would further evidence of a nuclear weapons program, or some other act of hostility first need to be presented to members of the Council to garner enough votes for passage of such a resolution, but there are also significant questions regarding the capacity of Western militaries to devote resources already stretched, particularly in Iraq and Afghanistan, to another major military operation in Iran.

However, with the defiant posture of the Iranian government regarding the institutional escalation of the situation to the Security Council, it is difficult to foresee a resolution to the current crisis which does not include the Council exercising its authority under Chapter VII. It is also, however, difficult to predict that any outcome short of international armed conflict would result from such an exercise of authority. The Iranian nuclear crisis, indeed, presents the most critical threat to international peace and security since the Iraq WMD crisis of 2002-2003.


Daniel Joyner is a Lecturer in Law at the University of Warwick School of Law in the United Kingdom, where he writes and researches in the area of proliferation studies. He is the author of Non-Proliferation Law: The Regulation of WMD (Oxford University Press, forthcoming 2007)

March 01, 2006


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Comments:

This article is in my opinion significantly BELOW the usual level of analysis found on this site. In particular, it uncritically accepts a number of distortions, inaccuracies and downright lies that are being spread by the US and other western governments in relation to this issue.

Here are a few examples of what I am referring to here:

1. The article states: "However, suspicions have become widespread particularly among Western states, that Iran does indeed have nuclear weapons ambitions, and that particularly the uranium enrichment work which Iran has carried out is intended not solely for use in peaceful energy production, but for the creation of nuclear weapons."

In fact, the US objections to the Iranian nuclear program are not based on "concerns" about Iran obtaining nuclear weapons, but rather are a part of the US's efforts to effect "regime change" in Iran. The stated US policy is that the US government will not, under any circumstances, allow Iran to develop enrichment capabilities. In addition, the US government has repeatedly stated that seeking to develop this capacity is ipso facto "proof" of a nuclear weapons program.

Actually, the NPT explicity guarantees the right of all NPT-signators to develop such a capability and describes this right as an "inalienable right". Thus the US position and actions could themselves well be described as a material breach by the US of its obligations under the NPT.

2. It is a technical FACT that the development of enrichment capability is inseparable from the technical capability to develop nuclear weapons. However the NPT -- and the IAEA Safeguards regime which predates it -- are based on the fiction that they are in fact separable. The historical background is the US "Atoms for Peace" program that tried to tell the world that there is such a thing as the "peaceful" use of atomic power. Iran can not be made responsible for this historical lie as enshrined in the NPT. If the US did not want to participate in this charade it should never have signed the NPT and agreed to abide by its provisions.

3. It is quite interesting to note that neither the IAEA, nor the US for that matter, has until now contended that Iran is in "material breach" of its NPT obligations. And in fact there is currently no evidence that this is the case. The author completely ignores this fact and does not even attempt to explain how the Security Council is empowered to "take action against Iran" even though in fact, based on all currently available evidence, Iran is in substantive compliance with the NPT.

4. The author does cite Article IV(2) of the NPT in which "all the parties" obligate themselves to "facilitate" and "have the right to participate in, the fullest possible exchange" of nuclear technology and equipment. But he does not point out that this means that Iran has a right to aquire ALL the equipment related to the nuclear fuel cycle, including enrichment equipment like centrifuges, AND that the US is obligated to supply such equipment and the know-how necessary to use them.

For decades the public policy of the US government has been to actively prevent Iran from obtaining such know-how and equipment, through all types of pressure, economic sanctions and other penalties aimed at any person, coporate entity or government in the world that attempted to supply such technology and equipment to Iran. Under the terms of the NPT it is in fact this policy that is, in terms of the US's and all other signators' NPT obligations, "illegal".
Iran has argued that since it was subject to such illegal sanctions by the US, the only means it had to exercise its rights under the NPT to aquire nuclear technology and equipment was to maintain a clandestine procurment program. While this concealed procurement program formally violated its reporting requirements, what was in fact procurred was within Iran's "inalienable rights" under the NPT.
On the other hand, the US and the other western governments argue that the concealment that Iran engaged in in an effort to circumvent the US's illegal sanctions regime against Iran is itself "proof" that Iran is engaging in a weapons program. Given the actual historical context, this contention is clearly absurd. The author, who is described as a "Lecturer in Law" should have been capable of grasping, or at least addressing, this issue.

5. Through implication the author uncritically repeats the allegations that if Iran were to aquire nuclear weapons that this would ipso facto be a "threat to peace" and describes the position of the Iranian government as "defiant".
From a geo-strategic point of view if Iran were to produce and deploy a handful of nuclear weapons as North Korea has done, this would not have ANY impact on the balance of power in the region, EXCEPT, perhaps that it would make a US-led attack on Iran less likely. Iran could not under any imaginable circumstances use these weapons to attack on other country without risking a devasting nuclear response. All the talk of Iran using such weapons to "blackmail its neighbors" is frankly absurd. Which neighbor would in any way be intimidated by such weapons. Almost without exception all of Iran's neighbors have nuclear weaons themselves or are under the "nuclear umbrella" of a nuclear power.
The current attempt to portray Iran as some sort of mad country which would launch a nuclear attack minutes after building such a weapon is nothing more than a transparent attempt at repeating the war propaganda that was used to justify the attack on Iraq. There is NO evidence, let alone proof, that Iran has such a policy. A simple examination of Iran's basic policies over the last decades of Islamic rule show this to be the case. Iran, in contrast to say Israel, has not built nuclear weapons or their delivery systems, it has not attacked any of its neighbors and it is one of the world's leading exporters of oil from which it obtains a large percentage of its national income. What interest could the current Iranian regime have in starting a nuclar conflict that it would certainly loose. Again, that scenario is arguably divorced from reality, or as stated above, just absurd.

Given all of the above, should not the author have at least addressed how the US's actions in this matter, the report of the IAEA Board to the Security Council and any possible Security Council action themselves are arguably all flagrant violations of the NPT, the UN Charter and other applicable international law?!

March 14, 2006  


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