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modified 11/03/07

UN Security Council Responds Again to Iranian Nuclear Crisis  
 

Declaring it was “concerned by the proliferation risks associated with the Iranian nuclear program and, in this context, by Iran’s continuing failure to meet the requirements of the International Atomic Energy Agency (IAEA) Board of Governors and … Security Council resolutions,” the UN Security Council (UNSC) on March, 24, 2007, unanimously adopted UNSC Resolution 1747 (2007).  Resolution 1747 finds Iran is in violation of previous UNSC Resolution 1737 (2006), of Dec. 23, 2006, for failing to halt proliferation-sensitive nuclear fuel cycle activities and for not cooperating more fully with the IAEA.  The UNSC is requiring Iran to submit to inspections-on-demand by the IAEA relating to activities of concern. 
 

Resolution 1747 also, to varying degrees, imposes, expands, or simply reaffirms limited sanctions such as on travel, military or proliferation-sensitive trade, and proliferation-sensitive educational exchanges.  Resolution 1737 established a special UNSC committee to monitor compliance with UNSC sanctions and promulgate guidelines implementing UNSC requirements with respect to Iran.


Taking Resolution 1747 and Resolution 1737 together, in some instances they ban trade, such as in conventional arms, with less-than-stringent language calling for “vigilance and restraint” by other states.  In other instances, such as a travel ban on some individuals, there is to be vigilance and a reporting requirement to the special UNSC committee.  In other cases, there is reference to extensively detailed IAEA documents, republished within several UN documents, itemizing various items of concern relating to nuclear and missile programs.  Trade with Iran in some items is unequivocally prohibited, while for other items trade is subject to regulatory requirements such as relating to end-use.


Hope for diplomacy and possible lifting of sanctions
 

As with Resolution 1737, Resolution 1747 holds out the prospect of lifting sanctions if Iran comes into compliance, expresses the hope for renewed diplomatic progress, and calls for the IAEA to continue to investigate the matter and report back in parallel to both the UNSC and the IAEA Board of Governors.


UNSC legislating international law
 

Both resolutions have been brought explicitly under UN Charter Chapter VII and are binding as a matter of international law.  The Iranian regime has responded by saying that Iran, rather than comply, has made a decision to “revise” cooperation with the IAEA, embodied in Majlis-ratified bill.  Iran has not specified the extent to which its “revised cooperation” might fail to meet even Treaty on the Non-Proliferation of Nuclear Weapons (Nuclear Nonproliferation Treaty, or NPT) safeguards, let alone Iran’s signed but unratified Additional Protocol, or the more stringent requirements Iran must now meet as a result of the global security concerns of a unanimous UNSC.


Rule of law, measured response
 

Key to the Iranian nuclear crisis is how best to apply rule of law to both the Iranian nuclear matter and the multilateral global response.  As explored by the author in a 2003 backgrounder on preemptive war and international law, the UNSC has the authority and the duty, under the UN Charter to proactively address even emerging threats with a wide range of options such as economic sanctions and varying degrees of force.  With respect to the Iran, the UNSC has taken a measured approach, invoking UN Charter Chapter VII but explicitly citing UN Charter Article 41 focusing on measures not involving military attacks.  UN Charter Article 41 reads:
 

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. 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.


The UNSC has taken only gradual steps, with prolonged negotiation producing unanimous votes, and the UNSC has been acting in synergy with the Board of Governors of the IAEA, its partner within the broader UN system.  The IAEA, now reporting in parallel to both the IAEA Board and the UNSC, has confirmed Iran’s continued partial cooperation, stonewalling and refusal to comply with demands to halt proliferation-sensitive activities, and the UNSC has reacted with gradually widening sanctions.


Nuclear fuel cycle and weapons threat
 

The same uranium nuclear fuel cycle that can produce reactor-grade material, used to create heat inside reactors to power electric generators, can if taken further be used to produce weapons-grade material suitable for use in a nuclear warhead.  While the NPT speaks of a right to nuclear energy, e.g., to produce electricity using a reactor, but not necessarily a right to an entire indigenous nuclear fuel cycle.  And in any event, the NPT conditions access to nuclear energy upon conformity with nonproliferation requirements, a primary focus of the NPT, as well as compliance, full cooperation, with IAEA safeguards, another primary focus of the NPT.


Legal landscape: NPT, NPT safeguards violations, IAEA Statute, UN Charter, state sponsor of terrorism, hostage-taking
 

Following two decades of Iran violating safeguards obligations, legal requirements imposed by the near-universal  NPT to which Iran is a party, Iran nevertheless has persisted in speaking of a legal right to nuclear energy. 


The IAEA Board of Governors has carried out its legal duties under the Statute of the IAEA to make a twin-track referral of the matter to the UNSC for both safeguards noncompliance and concerns impacting international peace and security.  As mentioned above, the UNSC in turn is charged with its own legal authorities and duties under the UN Charter, to investigate matters with the potential to cause international friction, as well as to apply, with a degree of flexibility and discretion, a wide range of options such as economic sanctions and potentially varying degrees of force, to proactively address matters impacting international peace and security. 


In the background, complicating matters has been Iran’s status as a state sponsor of terrorism, including, for example, backing the Lebanon-based “Hezbollah.”  In Hezbollah’s 1983 attack on a U.S. Marine barracks in Beirut, Hezbollah set off what a U.S. federal court called “the largest non-nuclear explosion that had ever been detonated on the face of the Earth.”  For Iran’s role in the bombing, the court would hold Iran legally responsible for what was the deadliest terrorist attack against the United States prior to Sept. 11, 2001. 


Yet Iran’s legal misadventures are proving to be even more diverse.  With Iran already having previously violated international law by invading, by proxy, the U.S. Embassy in Tehran in 1979 and holding diplomats hostage for more than a year, the current Iranian regime now indicates it is “legally examining” an incident in which it has apparently invaded Iraqi waters and taken hostage British sailors serving a UN-mandated mission. 


On March 23, 2007, British personnel were assisting Iraq to establish rule of law in Iraqi waters through routine boardings of merchant vessels, acting under and fulfilling a UNSC mandate set out in UNSC Resolution 1723.  Iranian Revolutionary Guards invaded Iraqi waters and launched an aggressive operation to surround British vessels, force them into Iranian waters, and take 15 British personnel hostage.  Iran is now holding the British hostages in an undisclosed location and, by Iran’s own admission, apparently is subjecting them to interrogation to extract what Iran is billing as a “confession.”  Some of the hostages, including a female sailor apparently forced to wear Islamic dress, have been paraded before video cameras.  The United Kingdom, meanwhile, has provided geographic coordinates of the location where the incident began to unfold, well within Iraqi waters, and coordinates provided by Iran also turned out to be within Iraqi waters.  When this fact was pointed out to Iran, Iran rushed to offer different coordinates.  Meanwhile, the United Kingdom has pointed out that, even if the incident had occurred in Iranian waters, international law still would have granted the British vessels sovereign immunity, limiting an Iranian response to demanding the vessels leave Iranian waters.


Showing great restraint, the British vessel and troops did not use force to defend themselves and the United Kingdom thus far has refrained from terming the Iranian action an act of war.  However, even while the British Foreign Minister has expressed hope the matter could be resolved peacefully through diplomacy, British Prime Minister Tony Blair has warned the matter would “move into a different phase” if Iran continued to violate international law with the hostage-taking.  Thus far, the United Kingdom has frozen all bilateral relations with Iran until the hostage crisis is resolved.


Amidst this backdrop, attempting to focus squarely on the matter of the Iranian nuclear program, UNSC Resolution 1747 once again has demanded Iran halt uranium enrichment and come into compliance with the requirements of the UNSC and the IAEA board, including what amounts to unlimited inspections on demand with respect to a range of nuclear or nuclear-related activities of concern.


The UNSC resolutions demand Iran come into compliance with past requirements set out by the UNSC and the IAEA board, among which are included the suspension of uranium enrichment and reprocessing, cooperation with whatever access and safeguards are demanded of Iran by the IAEA in connection with a wide range of activities, compliance with and formal ratification of the IAEA Additional Protocol, and reconsideration of heavy water reactors.  The latter offer another path to weapons-grade material through the production of plutonium.


UNSC Resolution 1747 widens sanctions against Iran, including a two-way arms embargo, a halt to financial assistance to the Iranian regime unless for humanitarian or developmental purposes, and restrictions on travel by individuals connected to Iranian nuclear and missile industries. 


Resolution 1747 imposes a 60-day deadline for the IAEA to report back on whether Iran has come into compliance, promising further steps, short of the use of force if Iran does not, but offering to lift sanctions if Iran does cooperate fully.


UNSC Resolution 1747 incorporates, by reference, requirements set out in previous documents, including an IAEA Board of Governors resolution.


Some details of UNSC Resolution 1747
 

UNSC Resolution 1747 (Para. 1) demands that Iran:

  • in order to build confidence that its nuclear programs are peaceful, and to resolve outstanding issues, comply with requirements laid down by IAEA Board of Governors Resolution GOV/2006/14 of Feb. 4, 2006, among which are included a requirement to:
    • reestablish suspension of all enrichment-related and reprocessing activities, subject to IAEA verification;
    • reconsider the construction of a research heavy water reactor (note that the UNSC has gone further, banning this activity altogether for Iran; note also that heavy water reactors produce plutonium, another weapons-grade material)
    • ratify and implement the Additional Protocol, signed by Iran Dec. 18, 2003 (somewhat more intrusive than traditional NPT safeguards) and in the meantime act as if it were in effect;
    • implement transparency measures, as requested by the IAEA, beyond the formal requirements of the Safeguards Agreement and Additional Protocol, “include[ing] 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” (emphasis added)(note that this essentially requires inspections and interviews on demand with respect to the wide-ranging types of activities noted)
       
  • comply with UNSC Resolution 1737 of Dec. 23, 2006, in particular (Para. 2), which stated:

“2.   Decides, in this context, that Iran shall … suspend the following proliferation sensitive nuclear activities:
(a)   all enrichment-related and reprocessing activities … to be verified by the IAEA; and
(b)   work on all heavy water-related projects … to be verified by the IAEA;
 

(note that the “context” referred to was set out in Para. 1 of that UNSC resolution, indicating the need for Iran to comply with IAEA board requirements in order to build confidence that the Iranian nuclear programs are peaceful, and to resolve outstanding issues)


With respect to the actions of other parties UNSC Resolution 1747 focuses on financial assistance, individuals tied to the Iranian nuclear and missile industries, and arms trade with Iran:

  • calls for states and international financial institutions not to enter into new grants, financial assistance, or concessional loans to the Iranian regime “except for humanitarian and developmental purposes”
  • calls for checks (“vigilance and restraint”) on travel by various persons connected with Iran’s nuclear and missile programs
  • bans arms exports by Iran (i.e., requires other countries not to buy arms from Iran or facilitate their being shipped)
  • calls for constraints on arms sales into Iran, especially larger items such as tanks, artillery, warplanes, attack helicopters

Resolution 1747 also reaffirms and builds upon 1737, which contained some provisions identical to the later Resolution 1747, and in turn, among other things:

  • established a special UNSC committee to monitor compliance with UNSC Iran sanctions and other requirements, and promulgate guidelines helping to implement UNSC Iran resolutions
  • required states to freeze the assets of designated persons and entities; Resolution 1747 added more designees to the list
  • referenced extensively detailed IAEA documents, republished within several UN documents, itemizing various items of concern relating to nuclear and missile programs, banning trade in some proliferation-sensitive items relating to nuclear or missile programs, and limiting trade in others, such as with respect to end use
  • banned proliferation-sensitive educational exchanges
  • called for vigilance with respect to travel by certain individuals, with a reporting requirement to the special UNSC committee

Call for more diplomacy
 

As mentioned above, UNSC Resolution 1747 has called for negotiations to be renewed, taking the position that its measures would prod continued diplomatic efforts.  At the same time, recall that Iranian suspension of uranium enrichment already had been agreed to in the Paris Agreement of Nov. 14, 2004, as a precondition for talks but Iran would later resume enrichment regardless.


UNSC Resolution 1747 was introduced by Britain, France and Germany, the “EU-3” that have been spearheading past diplomatic efforts with the Iranian regime, along with, at times, the European Union itself (i.e., an EU official acting on behalf of the European Union as unified institution).  With respect to efforts within both the IAEA Board of Governors and the UNSC, of special relevance have also been the broader “P5+1” which overlaps the EU-3 with respect to the states involved, consisting of the five veto-wielding UNSC permanent members, the United States, China, Russia, Britain and France, plus Germany.


Note that Russia has had a unique position to play given its status as an Iranian nuclear contractor, involved in the completion of Iran’s Bushehr nuclear reactor.  Russia has sought to resolve concerns over Iran’s nuclear fuel cycle ambitions by offering to supply Iran with nuclear fuel for the reactor and requiring that all spent fuel be returned and accounted for, and also by offering to permit Iran to carry out nuclear fuel cycle activities itself within Russia, staffed by Iranians but under IAEA safeguards presumably augmented by Russian monitoring.  Iran does not appear to be taking up the latter opportunity, although the IAEA has been exploring with Russia the prospect of an international nuclear fuel center in Siberia. 


But with respect to Iran, of late a “falling out” has been occurring between the Russians and the Iranians, ostensibly over Iranian delinquencies with their payments, prompting Russia to halt work even on the Bushehr reactor.


NPT regime, UNSC-IAEA synergy
 

One of the overriding concerns of the nonproliferation framework under the, which was signed in 1968 and came into force in 1970, is whether the IAEA can function as a proactive “watchdog” uncovering illicit, clandestine nuclear weapons programs, as opposed to being more of a nuclear accountant auditing known activities.  The strength of inspections generally corresponding with the scope of IAEA legal authority, in the case of Iran the IAEA and its board have both raised the need for expanded IAEA legal authority, which as a practical matter translates into expanded investigative powers, to “get to the bottom” of what is really going on in Iran. 
 

The most recent IAEA report on Iran declares that, in addition to Iran being in violation of UNSC Resolution 1737 (2006) by engaging in prohibited nuclear fuel cycle activities: 
 

[the IAEA] is unable to verify the absence of undeclared nuclear material and activities in Iran unless Iran addresses the long outstanding verification issues through the implementation of the Additional Protocol … and the required transparency measures.

* * *
… given the existence in Iran of activities undeclared to the Agency for 20 years, it is necessary for Iran to enable the Agency, through maximum cooperation and transparency, to fully reconstruct the history of Iran’s nuclear program. Without such cooperation and transparency, the Agency will not be able to provide assurances about the absence of undeclared nuclear material and activities in Iran or about the exclusively peaceful nature of that program.


In the aftermath of the Iraq experience there was, for a time, skittishness about crossing the threshold of UNSC referral with respect to the Iranian nuclear program, and some parties voiced largely baseless arguments that UNSC referral somehow meant taking the matter “out of” the IAEA.  In reality the two institutions are partners within a broader UN system, as mandated, for example, in the 1956 Statute of the IAEA (coming into force in 1957), with not only the potential but the duty to act in synergy.  And in fact, in the Iranian matter, the prodigious legal authority and discretion accorded the UNSC by the UN Charter can, and should be, united with the “on-the-ground” investigative potential of the IAEA, with UNSC legal authority reinforcing and bolstering IAEA legal authority.  With its multiple resolutions on Iran the UNSC is “throwing its weight” behind the IAEA, in particular what the IAEA board says is needed to more adequately address the matter, but regrettably Iran simply has “dragged its feet” and stonewalled against full compliance.  In Para. 11, UNSC Resolution 1747 the UNSC declares, as in its previous Resolution 1737 that it:
 

11.  Reiterates its determination to reinforce the authority of the IAEA, strongly supports the role of the IAEA Board of Governors, commends and encourages the Director General of the IAEA and its secretariat for their ongoing professional and impartial efforts to resolve all outstanding issues in Iran within the framework of the IAEA, underlines the necessity of the IAEA, which is internationally recognized as having authority for verifying compliance with safeguards agreements, including the non-diversion of nuclear material for non-peaceful purposes, in accordance with its Statute, to continue its work to clarify all outstanding issues relating to Iran’s nuclear program;


Interestingly, even if Iran were to attempt to withdraw from the NPT, as a legal matter, that would not prevent IAEA inspections.  Explicitly under UN Charter Chapter VI, and arguably implicitly under UN Charter Chapter VII, the UNSC has the authority to investigate matters that simply have the potential to raise “friction,” and there is no reason it cannot look to the IAEA as its instrument for carrying out such investigations.


Report due in 60 days, further action threatened

Since the Iranian matter was referred to the UNSC, part of the arrangement has been to have the IAEA report in parallel to both the IAEA Board of Governors and the UNSC.  As a practical matter, this includes transmittal to both bodies of formal reports under the auspices of the IAEA-Director General.  UNSC Resolution 1747 Paras. 12-13 requires that such a report be made within 60 days of the March 24, 2007, adoption of the resolution, and promises further measures will be taken against Iran if Iran remains less than fully compliant, while also promising to lift sanctions in response to Iranian cooperation.

Note that, unlike the UNSC resolution preceding the Iraq invasion warning of serious consequences for noncompliance by the Saddam Hussein regime, as mentioned above, this resolution specifically cites UN Charter Article 41 as the basis for further action, which explicitly focuses on economic sanctions, not military force.


UNSC and IAEA Board of Governors
 

Current UNSC membership:

(click on country name for link to that state’s UN mission web site; the number in parentheses is the year the state’s UNSC membership ends)
 

Permanent veto-wielding members:

·        United States
·        United Kingdom
·       
France
·       
Russian Federation
·       
China


Non-permanent members:

·        Italy (2008)
·       
Belgium (2008)
·       
Slovakia (2007)
·       
Qatar (2007)
·       
Indonesia (2008)
·       
Panama (2008)
·       
Peru (2007)
·       
South Africa (2008)
·       
Ghana (2007)
·       
Republic of the Congo (2007)

IAEA Board of Governors membership (2006-07, 38 states):

·        United States
·        United Kingdom
·        France
·        Germany
·        Russia
·        China
·        Canada
·        Australia
·        Austria
·        Croatia
·        Finland
·        Greece
·        Norway
·        Slovenia
·        Belarus
·        Sweden
·        Syria
·        Egypt
·        Morocco
·        Ethiopia
·        Libya
·        Brazil
·        Argentina
·        Bolivia
·        Chile
·        Colombia
·        Cuba
·        Japan
·        South Korea
·        Thailand
·        Indonesia
·        South Africa
·        Nigeria
·        India

 

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