[click here for the March 3, 2006, article "Newest IAEA report on Iran cites continued concerns in anticipation of full UNSC consideration”]
[click here for the Feb. 27, 2006, article “IAEA formally refers Iranian matter to UN Security Council”]

Intro/Update  ~ The Law ~ NPT ~ IAEA Statute ~ Previous IAEA Board Resolution ~ Conclusion

The International Atomic Energy Agency (IAEA) Board of Governors on Feb. 2, 2006, formally resumes consideration of the Iranian nuclear program in Vienna and, consistent with the international legal framework governing the agency, very likely will refer the matter to the UN Security Council (UNSC).  However, the report and notification most likely will be what can be termed a “referral with a deferral,” at least a deferral of around a month.

In its previous resolution on Iran, the IAEA Board on Sept. 24, 2005, adopted findings of Iranian safeguards noncompliance, as well as the existence of questions impacting international peace and security.  Each finding triggers UNSC referral under the Statute of the IAEA.  The board resolution instead, while acknowledging such referral was required, left open the issue of timing. 

Delays in referral have, in the past, been accompanied by diplomatic efforts spearheaded by the EU-3, Britain, France and Germany, including the 2004 Paris Agreement calling for greater Iranian transparency, and under which Iran agreed to suspend uranium enrichment, but which Iran now is breaching.  Uranium enrichment, and Iran’s insistence on an indigenous nuclear fuel cycle, has been a key focus of nonproliferation concerns given that the nuclear fuel cycle can also lend itself to the creation of weapons-grade material.  The European Union and EU-3 in a Jan. 12, 2006, statement call for UNSC referral, and acknowledge that referral could have taken place as early as 2003 when past Iranian concealment and deception was decisively reported by the IAEA.

At a Jan. 30, 2006, meeting in London, the UNSC five permanent members (P-5) Britain, France, Russia, China and the United States, together with Germany, agreed to pursue UNSC referral, with the idea that once referral takes place the UNSC would delay acting until after the IAEA director-general’s next report to the IAEA Board on March 6, 2006.  This position is a compromise between Europe and the United States, who demanded immediate referral, and Russia and China, who wanted another delay.  While no country has a veto on the IAEA Board of Governors, the P-5, of course, have vetoes on the UNSC. 

The UNSC referral, if it takes place, therefore can be considered a “referral with a deferral.”  The actions the UNSC might take are, at this point, unclear.  There is speculation over economic sanctions, but of special interest will be whether and how the UNSC strengthens the hand of the IAEA to be more intensely proactive as a nuclear investigative “watchdog,” as opposed to simply being a type of accountant auditing declared materials and activities.

The Sept. 24, 2005, board resolution noted the director-general’s observation in his previous report that while the IAEA “’continue[d] to follow up on information pertaining to Iran’s nuclear programme and [relevant] activities … the Agency’s legal authority to pursue the verification of possible nuclear weapons related activity is limited.’” “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” IAEA Board of Governors Resolution, Sept. 24, 2005, http://www.iaea.org/Publications/Documents/Board/2005/gov2005-77.pdf

This observation arguably highlights the need for a stronger IAEA to engage in a more proactive investigative role with a legal framework to back it up, perhaps with the weight of the UNSC to compel cooperation with IAEA efforts more robust than traditional safeguards.

Also unclear is how the UNSC would respond if Iran followed through on threats to cease cooperating with the IAEA entirely or even withdraw from the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

In a Nov. 18, 2005, report, his most recent on Iran, IAEA Director-General Mohamed elBaradei argued that Iran’s full transparency was yet still overdue and indispensable, highlighting the continued existence of unanswered questions.  In the meantime, Iran has taken steps to resume the development of a nuclear fuel cycle, including removing IAEA seals from at uranium enrichment facilities.

The Law

Iran has argued there is a legal basis for its indigenous development of nuclear energy, including the entire nuclear fuel cycle, and that there is no legal basis for UNSC referral. 

As shown below, the NPT speaks of a right to develop nuclear energy, but only for peaceful purposes and in conformity with nonproliferation requirements.  It does not reference access to the complete nuclear fuel cycle or specific examples of its various stages with particularity.  The NPT also requires compliance with IAEA safeguards. 

A complete nuclear fuel cycle starts with uranium ore and ends with enriched uranium that, if enriched to one level can produce nuclear reactor fuel, but if enriched to higher levels can produce material for a nuclear weapon. 

Russia has suggested that it can provide Iran with nuclear fuel and reclaim spent fuel later, fully monitored by IAEA safeguards.  It also, more recently, has offered to host an Iranian enrichment facility on Russian territory.  The United States has modified its stance over time to welcome the Russian proposals and tolerate the prospect of Iranian nuclear energy if the Iranians are denied an indigenous nuclear fuel cycle. 

At the same time, the United States has expressed the belief that Iran is attempting to develop nuclear weapons, that the Iranian nuclear program requires additional investigation and checks upon its direction, and that UNSC referral is long overdue.  As seen below, Europe now confirms that referral could have taken place in 2003.

The Statute of the IAEA mandates reporting to the UNSC and UN General Assembly (UNGA) instances of noncompliance with IAEA safeguards.  It also mandates notification to the UNSC of matters impacting international peace and security.  As mentioned above, in its most recent resolution, the IAEA Board made findings triggering such referral but left open the question of timing.

NPT

The NPT in Article IV directs 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 without discrimination and in conformity with Articles I and II of this Treaty.

Treaty on the Non-proliferation of Nuclear Weapons, http://www.iaea.org/Publications/Documents/Infcircs/Others/infcirc140.pdf (emphasis added)

The “right” to nuclear energy therefore is conditioned upon several things, including that a nuclear program be devoted to peaceful purposes and be in conformity with NPT Articles I and II.  Those provisions, in turn, prohibit nuclear weapons proliferation. 

Article II prohibits the manufacture or acquisition of nuclear weapons or nuclear explosive devices by non-nuclear weapons states.

IAEA Statute

Noncompliance reporting

IAEA Statute Article XII.C directs that as a matter of course safeguards noncompliance is to be reported to the UNSC and the UNGA:  

The inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any non-compliance which it finds to have occurred. The Board shall report the non-compliance to all members and to the Security Council and General Assembly of the United Nations. 

Statute of the International Atomic Energy Agency, http://www.iaea.org/About/statute_text.html

As can be seen, a report to the UNSC and UNGA is not cast as an alternative to “working out” a remedy with the transgressor, or even as a response to a failure by the transgressor to adopt a remedy, but rather as a procedural step that accompanies discovery of the noncompliance, one that is therefore triggered by that discovery. 

It may be helpful to keep in mind that the UNSC and the IAEA are both part of the UN system, designed to act as partners within that system.

Additional language in Article XII.C does also set out steps the IAEA Board can take on its own, after a failed effort to secure a remedy of noncompliance, in addition to UNSC and UNGA referral: 

In the event of failure of the recipient State or States to take fully corrective action within a reasonable time, the Board may take one or both of the following measures: direct curtailment or suspension of assistance being provided by the Agency or by a member, and call for the return of materials and equipment made available to the recipient member or group of members. The Agency may also, in accordance with article XIX, suspend any non-complying member from the exercise of the privileges and rights of membership. 

In other words, in cases of noncompliance, there is to be (1) reporting to the UNSC and UNGA, (2) demands for the transgressor to remedy the noncompliance, and (3) if the noncompliance is not remedied, the option of corrective actions by the board in addition to any action taken by the UNSC. 

As can be seen, the IAEA Statute sets a condition upon purely IAEA-centered corrective actions: that (1) there has been a demand for a remedy and (2) the transgressor has failed to remedy the noncompliance.   

In contrast, it sets no such condition upon reporting the matter to the UNSC and UNGA. Rather, it mandates that such reporting “shall” occur in cases of safeguards noncompliance as a matter of course. 

Notification of issues impacting international peace and security 

The Statute of the IAEA, in Article III.B.4 further provides for UNSC notification of matters impacting on international peace and security: 

… if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security, and may also take the measures open to it under this Statute, including those provided in paragraph C of Article XII. 

Once again, the statute uses the word “shall,” indicating that mandatory notification is triggered by the arising of questions within the competence of the UNSC as the UN organ responsible for international peace and security.  As with the provisions quoted above, this action is in addition to other options for corrective action potentially available through the IAEA itself. 

Sept. 25, 2005, IAEA Board Resolution 

Finding of safeguards noncompliance  

The Sept. 25, 2005, IAEA Board Resolution set the stage for reporting noncompliance to the UNSC and UNGA when the board declared that it:  

1. Finds that Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement, as detailed in GOV/2003/75, constitute noncompliance in the context of Article XII.C of the Agency’s Statute; 

“Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” IAEA Board of Governors Resolution, Sept. 24, 2005, http://www.iaea.org/Publications/Documents/Board/2005/gov2005-77.pdf (note that a whole series of IAEA documents share this title, and that the information which identifies a particular document more closely is the type of document and its date, for example whether it is an IAEA report to the board or a resolution passed by the board). 

Finding of questions within the UNSC’s area of competence, i.e., relating to international peace and security 

The board further set the stage for notifying the UNSC of concerns raising international peace and security issues when it stated that the board: 

2. Finds also that the history of concealment of Iran’s nuclear activities referred to in the Director General’s report, the nature of these activities, issues brought to light in the course of the Agency’s verification of declarations made by Iran since September 2002 and the resulting absence of confidence that Iran’s nuclear programme is exclusively for peaceful purposes have given rise to 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; 

Note also that, in addition to triggering provisions of the IAEA Statute, the board expressed an “absence of confidence” that Iran’s nuclear program is “exclusively for peaceful purposes” which in turn would undermine any claim Iran may wish to make that it had a right to nuclear energy under NPT Article IV.  It does so without even broaching the issue of whether a right to nuclear energy also is a right to the entire nuclear fuel cycle in any case.   

Reporting and notification deemed to be” required” and the question of timing left open 

Rather than follow through immediately, however, the board left open the question of the timing of UNSC referral, even while noting that such referral is “required,” under both prongs mandated by the IAEA Statute: 

3. … The Board will address the timing and content of the report required under Article XII.C and the notification required under Article III.B.4 

(emphasis added)

The resolution commended IAEA efforts to investigate the Iranian matter and called for further efforts by the IAEA and Iran towards additional investigations, transparency, and confidence-building.  The IAEA Board resolution did note some progress in the Iranian matter, as well as the conditional right to nuclear energy under the NPT.  The board recalled NPT Article IV and the right to develop the research, production, and use of nuclear energy for peaceful purposes, but at the same time noted that this provision is to be viewed in conformity with Articles I and II, relating to nonproliferation.

And the board further declared that:

• “the Agency is not yet in a position to clarify … important outstanding issues after two and a half years of intensive inspections and investigation”
• “Iran’s full transparency is indispensable and overdue”
• the board was “uncertain of Iran’s motives in failing to make important declarations over an extended period of time and in pursuing a policy of concealment up to October 2003”
• the board was “concerned by continuing gaps in the Agency’s understanding of proliferation sensitive aspects of Iran’s nuclear programme”

And, with respect to whether there was ongoing concealment and deception, the board indicated: “the Agency is still not in a position to conclude that there are no undeclared nuclear materials or activities in Iran.”

The board began to circle in on key findings triggering sending the matter to the UNSC, as it:

• recalled “Iran’s failures in a number of instances over an extended period of time to meet its obligations under its NPT Safeguards Agreement … with respect to the reporting of nuclear material, its processing and its use, as well as the declaration of facilities where such material had been processed and stored, as reported by the Director General” Nov. 10, 2003, and confirmed Sept. 2, 2005”
• and recalled the … “Iran’s policy of concealment has resulted in many breaches of its obligation to comply with its Safeguards Agreement”

Nuclear fuel cycle

Like the Paris Agreement, the IAEA Board called upon Iran to suspend its development of a nuclear fuel cycle:

Deploring the fact that Iran has to date failed to heed the call by the Board in its resolution of 11 August 2005 to re-establish full suspension of all enrichment related activities including the production of feed material, including through tests or production at the Uranium Conversion Facility

It urged Iran “[t]o re-establish full and sustained suspension of all enrichment-related activity and reprocessing activity.”

As mentioned above, Iran is headed in the opposite direction, promising to resume development of a nuclear fuel cycle.

The board also called upon Iran to reconsider a decision to pursue a heavy-water reactor, a reactor of a type more likely to raise proliferation-related concerns.

Confidence-building and the legal framework

Noting the existence of a “confidence-deficit,” the board on Sept. 24, 2005, called for greater Iranian cooperation with IAEA efforts to resolve unanswered questions, and for Iran to ratify and fully implement an Additional Protocol, a standard IAEA agreement aimed at providing more intensive inspections regime. 

In the aftermath of the late-2003 revelations of Iranian secret activities, Iran signed an Additional Protocol but never ratified it. 

In the meantime, Iran had promised to abide by the Additional Protocol regardless, but Iran now alternatively threatens to halt “snap inspections” if UNSC referral occurs, having previously also threatened to pull out of the NPT entirely. 

Even snap inspections, however, and the ability of the IAEA to act proactively, have been limited in scope.  For example, the IAEA in 2004 requested to visit the Lavizan-Shian site in suburban Tehran to follow up on a discovery that equipment potentially of use to a nuclear weapons program was at Lavizan-Shian, inconsistent with Iranian claims about the nature of the site.  Iran refused access to the site, removed all equipment to parts unknown, tore down the buildings and hauled off the rubble to parts unknown, and scraped away a layer of earth, hauling the dirt off to parts unknown. 

EU/EU-3 note referral could have taken place in 2003

As mentioned above, diplomatic efforts with Iran have been spearheaded by the European Union’s (EU) “EU-3,”  Britain, France and Germany.  On Jan. 12, 2006, in Berlin, the EU-3 and the European Union itself issued a statement indicating that UNSC referral could have taken place as early as 2003, when it came to light that Iran for years had concealed nuclear activities and misled the IAEA:

Iran's nuclear activities have been of great concern to the international community since 2003, when Iran was forced to admit to the International Atomic Agency Authority that it was building a secret installation to enrich uranium, which could be used to produce material for nuclear weapons. The IAEA Director General at the time found Iran’s policy of concealment had resulted in many breaches of its obligation to comply with the provisions of its Safeguards Agreement. Under the IAEA's rules, this should have been reported to the Security Council then.

“E3/EU Statement on the Iran Nuclear Issue,” text of statement, Jan. 12, 2006, http://www.info-france-usa.org/news/statmnts/2006/iran_nuclear011206.asp

As mentioned above, the EU-3 diplomatic effort, supported by the United States and the international community, resulted in the Paris Agreement of November 2004 focusing on suspension of uranium enrichment and the need for greater Iranian transparency.  This agreement and the EU-3-Iranian negotiations apparently were the basis for forestalling UNSC referral, but have now collapsed.

Conclusion and “Where to Now”

It is becoming more readily acknowledged that a straightforward reading of the law surrounding IAEA activities provides for referral of the Iranian matter to the UNSC.

European involvement with the issue has demonstrated patience combined with a persistent “bottom-line” mentality about the security interests at stake.  And it appears European patience has expired. 

Russia and China, while “sticking up” for their Iranian commercial partner, are exhibiting flexibility and a willingness to see their clout as UNSC permanent members strengthen the UN system by showing it is up to responding to the challenge.  It should be remembered that UNSC and IAEA involvement are not an “either-or” proposition; both are elements in a UN system, and the nonproliferation architecture of the UN system relies on these two agencies complementing one another’s efforts.

The shadow of the Iraq experience may hang over Iran. 

One source of controversy was Iraq intelligence and threat assessment.  (To be fair, it had been established in the past that Iraq did have at least some non-nuclear weapons of mass destruction (WMD), so that what may be even more puzzling than the absence of WMD might be that question of what happened to the WMD that previously had been there.  At the same time, however, the biggest sore point over Iraq may be inaccurate threat assessment.)

Another source of controversy, however, was the UNSC Iraq resolution promising serious consequences if Iraq was uncooperative and the extent to which that resolution was part of the legal justification presented for the invasion.

On the one hand, from the standpoint of international law, it may be preferable that the United States would have acted based on UNSC resolutions rather than set a precedent of acting on a different basis, thereby contributing to a body of state practice shifting international standards for going to war.  On the other hand, the Iraq experience also may have produced skittishness about what would happen if the Iranian matter also went to the UNSC.

In the years since, the United States has shown deference to multilateral diplomatic efforts over Iran while also continuing to contribute momentum on the issue, doing so in synergy with allies and other international partners.  Even the controversial and, to some, startling appointment of John Bolton as UN Ambassador may have created the impression that the United States wanted to see the UN role in international security intensified, and to “light a fire under” the UN on nonproliferation issues.

The key now will be to show that the UNSC can add impetus to the process not just by taking on the Iranian issue, but also by strengthening the capacity of the UN system by turning the IAEA into a more proactive watchdog and not just an accountant.  While the Additional Protocol has been an important step forward in this area of law, and the question remains whether the UN system can go further still, and respond even more robustly in cases presenting stronger challenges to international peace and security.

While the UN Charter frames UNSC authority as including the use of a range of force, from blockades to more severe action, along with nonmilitary options such as sanctions, UNSC referral does not mean preemptive war, and should not be regarded as such.  The French Foreign Ministry had this to say on Feb. 1, 2006:

The idea is not to transfer the dossier to the Security Council but to make a report to the Security Council so that it can then reinforce the IAEA’s authority. … It’s an interactive, progressive process that is also reversible if Iran does what is expected of it.

“Daily Press Briefing, Statements made by the Ministry of Foreign Affairs Spokesperson (excerpts),” French Foreign Ministry transcript, Jan. 31, 2006, http://www.ambafrance-us.org/news/briefing/daily_pb.asp#4. 

Sources and further reading: 

David Albright and Corey Hinderstein, “Iran’s Next Steps: Final Tests and the Construction of a Uranium Enrichment Plant,” Institute for Science and International Security,” Jan. 12, 2006, http://www.isis-online.org/publications/iran/irancascade.pdf 

“Communication dated 26 November 2004 received from the Permanent Representatives of France, Germany, the Islamic Republic of Iran and the United Kingdom concerning the agreement signed in Paris on 15 November 2004,” IAEA Information Circular 637, Nov. 26, 2004, http://www.iaea.org/Publications/Documents/Infcircs/2004/infcirc637.pdf (Paris Agreement) 

“Daily Press Briefing, Statements made by the Ministry of Foreign Affairs Spokesperson (excerpts),” French Foreign Ministry transcript, Jan. 31, 2006, http://www.ambafrance-us.org/news/briefing/daily_pb.asp#4. 

“Iran nuclear case 'will go to UN',” BBC, Jan. 31, 2006, http://news.bbc.co.uk/2/hi/middle_east/4664378.stm 

“E3/EU Statement on the Iran Nuclear Issue,” text of statement, Jan. 12, 2006, http://www.info-france-usa.org/news/statmnts/2006/
iran_nuclear011206.asp 

“Foreign Ministers Issue Statement on Iran,” IAEA Staff Report, Jan. 31, 2006, http://www.iaea.org/NewsCenter/News/2006/e3_eu_iranstatement.html 

“Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” IAEA Board of Governors Resolution, Sept. 24, 2005, http://www.iaea.org/Publications/Documents/Board/2005/gov2005-77.pdf 

“In Focus : IAEA and Iran: News Update on IAEA and Iran,” IAEA News Centre (updated regularly with new headlines), http://www.iaea.org/NewsCenter/Focus/IaeaIran/index.shtml 

Paul Hughes, “Iran threatens to halt spot checks,” Reuters, Jan. 31, 2006, http://today.reuters.com/news/newsArticle.aspx?type
=topNews&storyID=2006-01-31T204122Z_01_L30682489
_RTRUKOC_0_US-NUCLEAR-IRAN.xml 

“Iran: U.N. referral is end of diplomacy,” UPI, Jan. 31, 2006, http://www.upi.com/InternationalIntelligence/view.php
?StoryID=20060131-083838-6116r

Secretary of State Condoleezza Rice, “Remarks en Route Washington, DC,” State Department transcript, Jan. 31, 2006, http://www.state.gov/secretary/rm/2006/60150.htm

Roula Khalaf and Gareth Smyth, “Russia and China put pressure on Iran,” Financial Times, Jan. 31, 2006, http://news.ft.com/cms/s/b540ae90-9284-11da-977b-0000779e2340.html  

Statute of the International Atomic Energy Agency, http://www.iaea.org/About/statute_text.html 

“Tehran takes steps to protect nuclear facilities,” Jane’s Defence Weekly, Jan. 25, 2006, p.4, http://www4.janes.com/subscribe/jdw/doc_view.jsp
?K2DocKey=/content1/janesdata/mags/jdw/history/
jdw2006/jdw13220.htm@current&Prod_Name=JDW& (note that online version requires subscription)

[Content available on this site is for informational purposes only and not for the purpose of providing legal advice. Use of this site does not create an attorney-client relationship.]

  

Click here for recent
News Watch archive
 

Search

Search the ISLP Search the Internet