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The Security Council on Iran: Fiddling While the Middle East Burns?

JURIST Guest Columnist Daniel Joyner of the University of Warwick School of Law in the United Kingdom says that the timing of the UN Security Council's passage of a Chapter VII resolution on Iran in the midst of an escalating Middle East conflict and in the face of an existing Iranian commitment to respond to a Western diplomatic offer by August 22 is puzzling, and may have more to do with the desire of some member states for confrontation than compromise on the issue of Iran's nuclear program...

While Lebanon is taken back thirty years in its economic development and political prospects by Israeli bombardment, and Iraq continues its seemingly inexorable slide into open civil war, the United Nations Security Council this week brought back to the top of its agenda the Iran nuclear issue.

On Monday the Council issued Resolution 1696, in which, acting under Article 40 of Chapter VII of the U.N. Charter, it demanded that Iran suspend all uranium enrichment-related and reprocessing activities, and requested a report by the Director General of the International Atomic Energy Agency (IAEA) by August 31 to confirm this suspension. It further endorsed the diplomatic package deal which had been offered to Iran by the permanent five members of the Security Council plus Germany, which promised various economic incentives and the provision of light water nuclear reactors to Iran in exchange for a long-term moratorium on enrichment activities and research on Iranian soil.

Resolution 1696 is notable because it is the first time that the Security Council has acted on the Iran nuclear issue using its mandatory powers under Chapter VII of the Charter. Until then, declarations from the Council to Iran had been issued as Presidential statements, or as hortatory, non-binding entreaties for Iran to abide by the decisions of the IAEA Board of Governors, which have called on Iran to cease enrichment activities, and provide a fuller account of its nuclear programs as confidence building measures to convince the world that its nuclear ambitions are in fact aimed at civilian energy production and not weapons development.

In using its Chapter VII powers to back up these statements, the Council has substantively changed the legal issues presented in the Iranian nuclear case. Iran has always claimed that it has a right to conduct enrichment activities and research on its own soil, pursuant to Article IV of the 1968 Nuclear Nonproliferation Treaty (NPT), of which it is a member. It claimed, quite persuasively, that this right could not be abridged or restricted, even by the demands of the IAEA, whose role is limited to monitoring state compliance with its safeguards agreements.

Until Monday, Iran had been quite correct in its legal interpretation. However, the U.N. Charter in Article 103 specifies that “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” The charter is thus a super-treaty, its obligations superior to all other treaty obligations by its own terms. One of the substantive obligations United Nations members undertake in the Charter is spelled out in Article 25, which states that “The Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.”

Thus, with the passage of Resolution 1696, the Council has invoked Iran’s obligation as a U.N. member to abide by its decisions under Article 25, which is an obligation superior to all other treaty obligations pursuant to Article 103, inclusive of the rights and duties contained in the NPT. Iran is now legally obligated to comply with Resolution 1696, which includes a suspension of all enrichment activities, including research and development. And the Council has, in Operative Paragraph 8 of the resolution, expressed its intention to consider the imposition of economic and diplomatic sanctions under Article 41 of Chapter VII if Iran does not comply.

All this being said, the timing of the passage of Resolution 1696 is quite inexplicable. Iran had already committed to formally respond to the diplomatic package offered to it by August 22, and, at least in its public statements, seemed to be seriously considering the deal. It is thus extremely difficult to understand why the Security Council, particularly at this moment when the Middle East is already in turmoil and so many other issues demand its attention, would consider the passage of this resolution both necessary and timely.

The day before the resolution was passed, Hamid Reza Asefi, a spokesman for Iran’s Foreign Ministry, warned that “If any resolution is issued against Iran tomorrow, the package would be left off the agenda by Iran,” and that any such resolution “will confront the region with more tension.” Why would the Council thus risk escalating tensions in a region already tearing at the seams, and push Iran further into a defensive posture by raising the diplomatic stakes on such a sensitive issue, when Iran had already committed to respond to the offer made through political channels only three weeks later?

Perhaps the sense of Western negotiators was that Iran would never fully accept the package deal, and that it was simply vying for time in its commitment to respond in late August. Perhaps Resolution 1696 was intended as something of a legal “preemptive strike” to show Iran that the Council isn’t willing to be led along indefinitely by such carrots of hope for a diplomatic resolution.

Or perhaps, as Iran’s Ambassador to the U.N. has stated, Resolution 1696 is another example of the “persistence of some to draw arbitrary red lines and deadlines that [have] closed the door to any compromise.” As the current author has commented on a previous posting on this issue on JURIST, the entire movement by Western states particularly to increase pressure on Iran through legal and diplomatic means to renounce its nuclear programs has been premature and ill-conceived, as no evidence has been produced by the IAEA or by any other body of any continuing breach of Iran’s safeguard’s agreement or of any breach of its substantive NPT obligations. Thus, the idea that Resolution 1696 is simply the next installment in a series of impetuous and unconsidered procedural actions pushed through international bodies by Western states which have brought the situation to this crisis point, is not an unreasonable conclusion.

Despite the change in the legal status of the dispute which Resolution 1696 brings about, the prudential character of the West’s efforts to confront Iran over its nuclear programs, and the particular tactics of those efforts, remain strikingly dubious and unlikely to produce the effect of a peaceful abandonment by Iran of its nuclear ambitions. The government of President Mahmoud Ahmedinejad is highly unlikely to accede to what it sees as hubristic and hypocritical demands emanating from nuclear weapons possessing Western states for it to give up what it sees as its inalienable right to produce civilian nuclear energy on its own soil, regardless of the changed legal character of these demands.

Once Iran fails to meet the August 31 deadline for suspension of its enrichment activities, which it undoubtedly will, it is still not at all clear that the political will exists among the members of the Security Council to impose meaningful sanctions on Iran through a further Chapter VII resolution. Russia and China remain much less committed to this path in the Council than do the other three permanent members, and it was due to their concerns that Resolution 1696 was watered down to require further consideration and another resolution before any such sanctions were imposed.

One cannot escape the impression that, in the passage of Resolution 1696 the Security Council is still fiddling away in a course of action destined to fail in its aims, while the Middle East burns. If it does indeed fail, and Iran continues its nuclear programs unimpeded by the now formal demands of the Security Council, the consequences for the perceived legitimacy and effectiveness of the Security Council will likely be severe. Therein also looms the specter of unilateral action, through economic or even military means, by a coalition of willing states a la Iraq. In the final analysis, perhaps this has been the intention of some of the states orchestrating this otherwise largely inexplicable course of action against Iran all along.

Daniel Joyner is an Assistant Professor 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)

August 02, 2006

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Some questions on Art 103:

It is suggested that under Article 103, Iran's rights and obligations under the NPT are superseded by UN Security Council Resolutions.

NPT Article 4 recognizes the "inalienable right" of
states to nuclear technology. Article 103 speaks of OBLIGATIONS that conflict with the UN Charter, and not of RIGHTS that conflict with the UN Charter. Under Article 103 states are ignore their pre-existing treaty OBLIGATIONS to the extent that they conflict with the UN Charter. That's not the same thing as allowing the UN Sec Council to selectively re-interpret multilateral treaties to selectively deprive some nations of their rights under otherwise perfectly valid treaties.

Even if we are to accept the notion that the UN Sec Council can somehow override Article 4 of the NPT under Article 103, then the principle of Equal Sovereignty (which is in fact explicitly recognized in Article 2 of the Charter) requires that this not be selectively applied to Iran. If Article 4 is contrary to the UN Charter, and if the UN Security Counsel is then permitted to override it in accordance with Article 103, then Article 4 of the NPT cannot apply to any other signatories to the NPT either. Either Article 4 of the NPT is valid or it isn't. It cannot be claimed that Article 4 of the NPT conflicts with the UN Charter...but only when we're talking about Iran. The principle of equal sovereignty is a matter of jus cogens. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot apply to a conflict between a Security Council resolution and jus cogens.

Also, it appears that Article 103 provision was primarily directed to bilateral treaties (especially bilaterial treaties that existed prior to the Charter) and not seem to apply to multilaterial treaties such as the NPT, because "parties to a multipartite agreement [such as the NPT] cannot modify their obligations thereunder except with the consent of the other parties or by the procedure prescribed in the agreement itself" :

"This Article deals with the situation where the obligations of a Member under the Charter are in conflict with the obligations of that Member under another international agreement. This situation may conceivably take three forms:

(1) that where there is a conflict between the obligation of a Member under the Charter and the obligation of that same Member resulting from an agreement with another Member, contracted before the entrance into force of the Charter;

(2) that where the conflict is between the obligation of a Member under the Charter and the obligation of that same Member resulting from an agreement with
another Member contracted after the entrance into force of the Charter; and

(3) that where the conflict is between the obligation of a Member under the Charter and the obligation of that same Member resulting from an agreement contracted with a non-member state, before the entrance into force of the Charter.

The Article clearly covers the second situation by stating that obligations under the Charter shall prevail over obligations "under any other international agreement" without qualification as to time of contracting. This is recognition of the principle that the obligation of a multipartite agreement prevails as against an obligation under an agreement between certain of the parties, even though later in time, since parties to a multipartite agreement cannot modify their obligations thereunder except with the consent of the other parties or by the procedure prescribed in the agreement itself. "

SOURCE: Charter of the United Nations: Commentary and
Book by Leland M. Goodrich, Edvard Hambro; World Peace
Foundation, 1946

August 21, 2006  


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