[click here for the Feb. 2, 2006, article “IAEA on Iran: recent and pending action and legal parameters”]

The vote ~ Referral and steps required of Iran ~ Desire for diplomacy and confidence-building ~ Findings ~ Nuclear-free Middle East ~ Where to now ~ UNSC authority

The International Atomic Energy Agency (IAEA) Board of Governors on Feb. 4, 2006, formally referred the Iranian nuclear matter to the UN Security Council (UNSC).  The board remains seized of the matter and has made the referral in anticipation of sharing with the UNSC the next report from IAEA Director-General Mohamed ElBaradei, to be delivered to the board for its next meeting on March 6, 2006. 

Under the Feb. 4, 2006, resolution the board is (1) sharing IAEA reports and resolutions with the UNSC and (2) indicating to the UNSC the board’s determination that necessary steps for Iran include: (a) cooperation with whatever measures the IAEA requests, above and beyond Iran’s safeguards agreement and unratified Additional Protocol, essentially demanding unrestricted investigative authority for the IAEA anywhere at anytime; (b) suspension of enrichment and reprocessing activities; (c) reconsideration of an Iranian heavy-water reactor; and (d) ratification and compliance with Iran’s Additional Protocol (somewhat redundant at present in light of the requirement for total cooperation, but nevertheless an international legal instrument that would have ongoing impact as a binding agreement).

Under the text of the UN Charter the UNSC has broad authority to assess and investigate threats to international peace and security, of which economic sanctions are but one example of nonmilitary options.  The UNSC and IAEA are partners within the UN system and the UNSC has authority to empower the IAEA to act on its behalf to help the UNSC meet its obligations.

Click here for further examination of UNSC authority

Consistent with its duties as well as the UN Charter’s emphasis on the pacific settlement of disputes, the IAEA board continues to press for an appropriate diplomatic solution, even as Europe has declined to resume negotiation until Iran agrees to forego resumption of nuclear fuel cycle activities.  France has added its voice to allegations of a clandestine Iranian nuclear weapons program and the German Chancellor has deplored the Iranian president’s attempt to deny the existence of the Nazi holocaust.  Russia continues to propose Iranian enrichment at a fully safeguarded facility on Russian territory, but has yet to take the logical next step of proposing a Caspian regional electric grid powered by jointly managed nuclear reactors located on, and limited to, Russian soil.

It should be noted that a declaration by the European Union (EU) and the EU-3 negotiating team of Britain, France, and Germany indicated that referral could have taken place in 2003.  The crux of the matter is this: without addressing whether in the absence of UNSC action the IAEA could demand Iran give up the nuclear fuel cycle, Europe, with U.S. support and deference, determined that the nuclear fuel cycle issue would be a “line in the sand” that represented one of the crucial thresholds in Iran developing a nuclear weapons capability.  Under the European strategy, the IAEA held off on previously-justified UNSC referral in exchange for Iran agreeing, in the 2004 Paris Agreement, to suspend nuclear fuel cycle activities.  Iran’s resumption of those activities, actual or planned depending on the segment of the fuel cycle at issue, has added to the building of a critical mass of support for the decision to stop delaying previously justified UNSC referral.

China energy deals nonbinding

China has joined Russia in seeking diplomatic interaction with Iran leading up to the March 6 IAEA board meeting.  China continues to press forward on non-nuclear commercial energy ties with Iran, expressing confidence that the nuclear crisis can be resolved. 

However, past Chinese agreements with Iran reportedly have been memoranda of understanding, not actual contracts.  As a result, the deals are not necessarily binding but more like general goals and aspirations.  China is indicating renewed interest in pushing ahead with actual contracts, which presumably would survive any change in government within Iran.

The vote

The vote for UNSC referral was 27 in favor, three against, and five abstentions.  All five veto-wielding UNSC permanent members (the P-5), the United States, Russia, China, France and Britain, voted in favor of referral, joined by 22 others, including Germany, a member of the European Union’s EU-3 of Britain, France and Germany that has spearheaded negotiations with Iran (Germany also joined with the P-5 in a last-minute meeting in London establishing a multilateral joint strategy heading into the board meeting that produced the Feb. 4, 2006, resolution).  Only Cuba, Syria, and Venezuela voted against.  Five members abstained.

[click here to for greater detail on the Board of Governors vote]

Forwarding to UNSC all Iran reports and resolutions and steps required of Iran

As mentioned above, the core of the referral is to forward all past IAEA reports and board resolutions, and to communicate to the UNSC a list of measures the board requires of Iran.  The board deemed it necessary, for confidence-building and to resolve outstanding issues, that Iran:

• suspend all enrichment and reprocessing activities
• reconsider building a heavy-water reactor (presenting more proliferation dangers than a light-water reactor)
• ratify, implement  and immediately follow the Additional Protocol (the new generation of safeguards moderately more intrusive than earlier safeguards agreements)
• cooperate with whatever additional measures, beyond Iran’s safeguards agreement and Additional Protocol, the IAEA requests

As a result, the IAEA Board appears to be looking for carte blanch authority for IAEA inspections, interviews, and other investigative tools to be exerted on demand anywhere at anytime.  As seen below, under the UN Charter the UNSC has broad relatively unrestricted authority to determine, assess, and address matters impacting peace and security.

[click here to for greater detail on Iran’s required steps and the UNSC reporting]

Desire for a diplomatic solution and need for confidence-building

The resolution “reaffirm[ed] the Board's resolve to continue to work for a diplomatic solution,” even as the board “express[ed] serious concerns about Iran's nuclear programme, … agreed that an extensive period of confidence-building is required from Iran” and recalled the IAEA director-general’s finding that “Iran's full transparency is indispensable and overdue.”[1] 

Findings

The board recalled IAEA findings that the IAEA was not in a position to conclude there are no undeclared Iranian nuclear materials or activities, was “not … in a position to clarify … important issues relating to Iran's nuclear programme or to conclude that there are no undeclared nuclear materials or activities in Iran,” that Iran has had “many failures and breaches of its obligations to comply with its NPT Safeguards Agreement,” and that there was an “absence of confidence that Iran’s nuclear programme is exclusively for peaceful purposes resulting from the history of concealment of Iran’s nuclear activities, the nature of those activities and other issues arising from the Agency’s verification of declarations made by Iran since September 2002.[2]”

The IAEA Board drew attention to one potentially troublesome detail revealed in IAEA Director-General Mohamed ElBaradei’s Nov. 18, 2005, report, a document in Iran’s possession relating to the casting and machining of depleted uranium metal into hemispherical forms.  Some have argued that such procedures have no use outside of the production of nuclear weapons.  Iran claims it never requested the document and that the document was volunteered by its procurement network.

[click here to for greater detail on the board’s expressions of concern and findings]

Nuclear-free Middle East

In a bow towards Egypt, other Arab states and perhaps other nonaligned nations, the Board resolution speaks of the prospect of a nuclear weapons-free Middle East, of special note given Israel’s undeclared nuclear arsenal.  Reportedly this provision was proposed by Egypt and prolonged negotiation over the resolution by an additional day.

[click here to for greater detail on the nuclear-free Middle East provision]

“Where to now”

With the board and the UNSC now working in partnership on Iran, the IAEA Board explicitly “remain[s] seized of the matter,” anticipates a new report on Iran by the director-general at its March 6, 2006, meeting, and directs the director-general to forward that report to the UNSC as well.

It appears potential immediate goals of UNSC action could include compelling greater cooperation with IAEA investigations while expressing UNSC concern over the situation and the UNSC’s resolve to see the matter through.

Catchwords for how the situation might best unfold could include proactive, synergy and restraint, the latter relating especially to any hypothetical consideration of the use of force.  A key may be how the UNSC can work in synergy with the IAEA and other multilateral efforts to engage the Iranian matter proactively while it still is not at a more advanced stage, empowering the IAEA and any other relevant UNSC partners to act more like investigative watchdogs, as opposed to simply being mere accountants auditing narrowly defined, declared materials and activities.

Creativity may also play a hand, for example as demonstrated by Russia’s suggested compromise of basing Iranian enrichment facilities on Russian territory, even though, at least at present, Iran appears not to be investing much promise in that particular proposal.  Russia has yet to take the logical next step of proposing the nuclear reactors themselves be on Russian soil, perhaps powering a Caspian regional electric grid grounded on multilateral cooperation.

Russia and China, Iranian commercial partners; in Russia’s case an Iranian nuclear contractor, had not been publicly enthusiastic for UNSC referral, although China in particular might actually have preferred the matter be handled by a body in which China has a veto. 

It is unclear what steps might be necessary to gain Russian and Chinese support for sanctions.  The U.S. Senate has passed a resolution condemning Iranian nuclear noncompliance, and one leading senator already has spoken to the prospect of steps under U.S. export control laws to encourage Russian and Chinese help, recalling some of the persuasive tools used to work with Western European partners to search out common ground over the Soviet trans-Siberian pipeline project in the early 1980s.

In any event, the IAEA lacked the teeth to force compliance with more aggressive investigations on its own and needed UNSC involvement as a next step.  UNSC referral has been decidedly cautious and careful, with the February 2006 reporting itself being more of a “referral with a deferral” to the extent all parties will be waiting for the IAEA director-general’s report in early March.

UNSC Powers

UNSC flexibility

The UNSC has more flexibility under the text of the UN Charter than might be commonly understood, and certainly much more than the IAEA.  For example, while the UNSC has broad authority to address matters impacting peace and security, including varying degrees of force, there are no actual limits in the text on the UNSC’s range of nonmilitary options.  Sanctions are held out as one possibility, not a limitation on what the UNSC can do.

Under UN Charter Article 39, the UNSC shall assess threats and decide the best measures for responding to them:

Article 39

The Security Council shall 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 in accordance with Articles 41 and 42, to maintain or restore international peace and security.[3] 

In turn, Article 41 provides that the UNSC “may decide what measures not involving the use of armed force are to be employed to give effect to its decisions.”  Economic sanctions are presented merely as one possible option:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions … These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

(emphasis added)

Article 41 therefore grants the UNSC broad discretion to determine the best means for addressing a threat and mentions economic sanctions merely as one possible option.

There is no indication under Article 41 that nonmilitary measures could not include, for example, wide-ranging inspections on demand.  The UNSC could require such measures if its judgment calls for it as the appropriate means to defuse a threat, and, for example, look to sanctions to enforce compliance.  Such measures, delegated to the IAEA, also would dovetail with the UNSC’s investigatory powers under Article 34.

UNSC investigative powers

Article 34 clearly empowers the UNSC to investigate matters impacting peace and security and places no explicit limit on the intrusiveness of such inquiries:

Article 34

The Security Council may investigate … any situation which might lead to international friction or give rise to a dispute, in order to determine whether the continuance of the … situation is likely to endanger the maintenance of international peace and security.

(emphasis added)

Even in the absence of Article 34, of course, the UNSC’s broad authority under other provisions, such as Article 39, clearly still would encompass investigatory activities.

Force

Article 42 relates to the use of force but also makes clear that force is not an option of first-resort:

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain or restore

international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.

As can be seen, Article 42 does not provide for the use of force as a free-standing power or as an option of first-resort, but only frames the use of force in relation to nonmilitary options.  Article 42 would condition any use of force, including blockades, upon a UNSC determination that nonmilitary alternatives were inadequate.  Moreover, Article 42 limits such action to a specific targeted goal of maintaining or restoring international peace and security, perhaps as opposed to serving some other policy goal.  It therefore could be argued by some that Article 42 action must dovetail with the principal of proportionality.

Appendix – Details of Feb. 4, 2006, IAEA Board resolution

Iran’s required steps ~ Findings ~ Nuclear-Free Middle East ~ IAEA Board Vote by Country

Required steps and reporting to UNSC

In its Feb. 4, 2006, resolution the board declared that it:

1.         Underlines that outstanding questions can best be resolved and confidence built in the exclusively peaceful nature of Iran's programme by Iran responding positively to the calls for confidence building measures which the Board has made on Iran, and in this context deems it necessary for Iran to:

·                    re-establish full and sustained suspension of all enrichment-related and reprocessing activities, including research and development, to be verified by the Agency;

·                    reconsider the construction of a research reactor moderated by heavy water;

·                    ratify promptly and implement in full the Additional Protocol;

·                    pending ratification, continue to act in accordance with the provisions of the Additional Protocol which Iran signed on 18 December 2003;

·                    implement transparency measures, as requested by the Director General, including in GOV/2005/67, which extend beyond the formal requirements of the Safeguards Agreement and Additional Protocol, and include such access to individuals, documentation relating to procurement, dual use equipment, certain military-owned workshops and research and development as the Agency may request in support of its ongoing investigations;

“Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran: Resolution adopted on 4 February 2006,” International Atomic Energy Agency Board of Governors Resolution, GOV/2006/14, Feb. 4, 2006, http://www.iaea.org/Publications/Documents/Board/2006/gov2006-14.pdf (emphasis added)

The board emphasized that the necessity of these steps were part of what it was referring to the UNSC.  The board:

2. Requests the Director General to report to the Security Council of the United Nations that these steps are required of Iran by the Board and to report to the Security Council all IAEA reports and resolutions, as adopted, relating to this issue;

(emphasis added)

As a result, the board appears to be looking to the UNSC to strengthen its hand by helping it force Iran to accept a more aggressive inspections regime than envisioned under the Iranian safeguards agreement, or even the moderately more intrusive Additional Protocol.  It essentially is demanding unlimited access and expressing that such dramatic steps are necessary to attempt to develop confidence that Iran’s nuclear program is peaceful.

In the process, should the UNSC grant such authority it could help transform the IAEA into more of a proactive investigator rather than a mere accountant auditing declared activities and materials.

The board made clear its goal was Iranian confidence-building, indicating that it was

 (k) Expressing serious concerns about Iran's nuclear programme, and agreeing that an extensive period of confidence-building is required from Iran,

The board also reiterated that it seeks a diplomatic solution, adding further weight to the notion that UNSC referral was not a precursor to preemptive war but rather an effort towards two UN partner agencies to reinforcing their mutual roles; the board indicated it was:

(l) Reaffirming the Board's resolve to continue to work for a diplomatic solution …

Findings

In issuing various findings the board incorporated by reference previous resolutions and reports, and specifically highlighted the following.

Nuclear weapons-related document

The board indicated it was: 

(j) Recalling that in November 2005 the Director General reported (GOV/2005/87) that Iran possesses a document related to the procedural requirements for the reduction of UF6 to metal in small quantities, and on the casting and machining of enriched, natural and depleted uranium metal into hemispherical forms.

Other Findings

The board reiterated past declarations that the IAEA was not in a position to conclude there were no Iranian nuclear materials or activities left undeclared; that there is an absence of confidence that Iran’s nuclear program is exclusively peaceful due to Iranian failures and breaches of its safeguards requirements; and that Iranian transparency was long overdue:

(f) Recalling … the Director General noted … after nearly three years of intensive verification activity, the Agency is not … in a position to clarify … important issues relating to Iran's nuclear programme or to conclude that there are no undeclared nuclear materials or activities in Iran,

(g) Recalling Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement and the absence of confidence that Iran’s nuclear programme is exclusively for peaceful purposes resulting from the history of concealment of Iran’s nuclear activities, the nature of those activities and other issues arising from the Agency’s verification of declarations made by Iran since September 2002,

(h) Recalling that the Director General has stated that Iran's full transparency is indispensable and overdue ...

(emphasis added)

It should be noted that a declaration by the European Union and the EU-3 negotiating team of Britain, France, and Germany indicated that referral could have taken place in 2003.  The crux of the matter is this: without addressing whether in the absence of UNSC action the IAEA could demand Iran give up the nuclear fuel cycle, Europe, with U.S. support and deference, decided that the fuel cycle issue would be a “line in the sand” that represented one of the crucial thresholds in Iran developing a nuclear weapons capability, and that the IAEA would hold of on previously-justified UNSC referral in exchange for Iran agreeing, in the 2004 Paris Agreement, to suspend nuclear fuel cycle activities.  Iran’s resumption of those activities, actual or planned, depending on the part of the fuel cycle at issue, is one of a bundle of factors prompting a critical mass of support for not holding off further on UNSC referral.

Nuclear-Free Middle East

Egypt reportedly proposed a provision relating to the prospect of a nuclear-free Middle East, an issue made more controversial by Israel’s reputed nuclear arsenal.  The board declared it was:

(m) Recognising that a solution to the Iranian issue would contribute to global nonproliferation efforts and to realising the objective of a Middle East free of weapons of mass destruction, including their means of delivery,

(emphasis added).

The Vote

The vote for UNSC referral was 27 in favor, three against, and five abstentions.  All five veto-wielding UNSC permanent members (the P-5), the United States, Russia, China, France, and Britain, voted in favor of referral, joined by 22 others.  Only Cuba, Syria, and Venezuela voted against.  Five members abstained.

Voting for UNSC referral of the Iranian matter:

• United States
• Russia
• China
• United Kingdom
• France
• Germany
    
• Australia
• Canada
• Belgium
• Greece
• Norway
• Portugal
• Slovakia
• Slovenia
• Sweden
    
• Japan
• South Korea
• Singapore
    
• India
• Sri Lanka
    
• Brazil
• Argentina
• Colombia
• Ecuador
    
• Egypt
• Yemen
    
• Ghana

(As an aside, note that India is a member of the IAEA Board of Governors despite not being a party to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT))

Voting against:

• Cuba
• Syria
• Venezuela

Abstaining:

• Algeria
• Libya
• South Africa
• Belarus
• Indonesia

Sources and further reading:

Noah Barkin, “Merkel likens Iran threat to Nazi era,” Reuters UK, Feb. 4, 2006, http://today.reuters.co.uk/news/newsArticle.aspx?type=
worldNews&storyID=2006-02-04T123207Z_01_L0444484_
RTRUKOC_0_UK-NUCLEAR-IRAN-MERKEL.xml

Chris Buckley, “China joins Russia in Iran diplomacy,” Reuters, Feb. 23, 2006, http://today.reuters.com/news/newsArticle.aspx?type=
topNews&storyID=2006-02-23T134709Z_01_L23736051
_RTRUKOC_0_US-NUCLEAR-IRAN.xml

Paul Carrel, “France says Iran has secret nuclear program,” Reuters, Feb. 16, 2006, http://today.reuters.com/news/newsArticle.aspx?type=topNews&storyID=
2006-02-16T205236Z_01_L16562184_RTRUKOC_0_US
-NUCLEAR-IRAN.xml

Charter of the United Nations, http://www.un.org/aboutun/charter/

“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 (2004 Paris Agreement) 

“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 

“Egypt Profile: Nuclear Overview,” Nuclear Threat Initiative, http://www.nti.org/e_research/profiles/Egypt/Nuclear/

“4, Saturday: IAEA Board Adopts Resolution on Nuclear Safeguards in Iran,” IAEA News Centre, In Focus: IAEA and Iran, http://www.iaea.org/NewsCenter/Focus/IaeaIran/index.shtml

Paul Hughes, “Russia, China officials in Iran for talks,” Reuters, Feb. 24, 2006, http://today.reuters.com/news/newsArticle.aspx?type=
topNews&storyID=2006-02-24T171324Z_01_L24460528_
RTRUKOC_0_US-NUCLEAR-IRAN.xml

“Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran: Resolution adopted on 4 February 2006,” International Atomic Energy Agency Board of Governors Resolution, GOV/2006/14, Feb. 4, 2006, http://www.iaea.org/Publications/Documents/
Board/2006/gov2006-14.pdf

“Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran: Resolution adopted on 4 February 2006: Report of the Director-General,” International Atomic Energy Agency Director-General’s Report, GOV/2005/18, Nov. 18, 2005,