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 th
at 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)
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