UN Security Council and IAEA Grapple with Iranian Nuclear Defiance  
Steven C. Welsh
Nov. 23, 2006

Part I: Introduction and context
Part II: IAEA report highlights

Confirming that the International Atomic Energy Agency (IAEA) still cannot confirm that the Iranian nuclear program is exclusively peaceful, a confidential IAEA report issued in anticipation of an upcoming IAEA Board of Governors meeting reveals that Iran still is in violation of UN Security Council (UNSC) Resolution 1696 (2006).  The UN Security Council (UNSC)  passed Resolution 1696 under UN Charter Chapter VII, binding upon Iran under international law.  The IAEA and UNSC are partners within a broader UN system and are acting in synergy on the Iranian matter.  The UN Charter grants the UNSC broad authority and broad discretion to employ a range of options including sanctions and varying degrees of force to address matters impacting peace and security.  For that matter, the UN Charter grants the UNSC authority to carry out investigations of matters merely having the potential to cause friction.


[Click here to read some of the highlights of the confidential IAEA report.]
[Clear here to read the text of the IAEA report in .pdf format.]


Interwoven with political and security considerations, the Iranian nuclear matter poses challenges over how best to apply rule of law to feared weapons of mass destruction (WMD) proliferation and to the various responses to WMD proliferation considered by other states.  That the International Atomic Energy Agency (IAEA) and UN Security Council (UNSC) working in partnership, with IAEA reports being made in parallel to both the IAEA Board of Governors and UNSC, helps emphasize that legal authorities in the UN Charter, and UNSC resolutions  such as UNSC Resolution 1696 (2006), are as important as legal instruments such as the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), the Statute of the IAEA and **L**IAEA safeguards.


The International Atomic Energy Agency (IAEA) on Nov. 14, 2006, transmitted its latest report on Iranian nuclear activities to the IAEA Board of Governors, in anticipation of the board’s upcoming meeting set to begin Nov. 23, 2006. Still not publicly released, the IAEA report’s findings reveal that Iran continues to violate legally binding UN Security Council Resolution 1696 (2006) of July 31, 2006, by engaging in proliferation-sensitive nuclear fuel cycle activities and refusing to cooperate fully with investigations deemed necessary by the IAEA.  And despite the fact that the UNSC and IAEA are partners within the UN system, currently working in synergy on the Iranian matter as provided for under international law, Iran apparently persists in refusing to cooperate further to resolve outstanding concerns unless the UNSC “washes its hands” of the Iranian matter by leaving the Iranian dossier solely in the hands of the IAEA. 
[To read about UNSC Resolution 1696 in greater detail, including key passages, click here for a backgrounder.]
 [To read the text of Resolution 1696, along with summaries of related UNSC debate in PDF format click here.]

Note that outstanding concerns over Iran, items specifically on the IAEA’s
“plate” are not the sum total of the nuclear situation in Iran.  They simply are questions already arisen based on the IAEA’s limited past investigative activities.  Iran has refused to provide what amounts to unlimited access-on-demand required by the UNSC and IAEA, which could turn up yet more questions.


Introduction: Aspects of the Legal and Practical Context


Non-Proliferation Treaty (NPT)


The 1968 Treaty on the Non-Proliferation of Nuclear Weapons (NPT) provides non-nuclear weapons state joining the NPT a right to nuclear energy on the condition that they not engage in nuclear weapons proliferation and that they cooperate with IAEA safeguards. 


But even if, unlike Iran, a non-nuclear weapon state has complied fully with the NPT, NPT text does not explicitly offer a right to an entire nuclear fuel cycle, as opposed to nuclear energy itself.  E.g., a reactor generating electricity would be providing nuclear energy even if the nuclear fuel is imported from outside and the spent fuel returned to the supplier.


Nuclear fuel cycle, and light water versus heavy water reactors


A uranium-based nuclear fuel cycle poses proliferation risks in that the process by which uranium is processed and enriched to a level suitable for nuclear reactors can, if taken further, result in materials with higher levels of enrichment suitable for use in a nuclear weapon.  Heavy-water reactors pose additional proliferation risks by producing plutonium, another type of nuclear weapon material. 


The themes emerging from reflections on the future of global nuclear energy include a consideration of light water reactors, rather than heavy water reactors, and the prospect of internationally available fissile material being provided for reactor fuel, with continued access guaranteed by legally binding international frameworks. 


In the case of Iran, Russia has attempted to reduce concerns over the Bushehr reactor Russia is completing in Iran, by offering to provide reactor fuel upon the condition that spent fuel be returned.


Even as it violates UNSC Resolution 1696, Iran has sought IAEA technical assistance with a heavy-water reactor, promising to be less uncooperative with transparency in exchange.  An IAEA committee reportedly has postponed consideration of the request, “handing off” the matter to the full board.


Statute of the IAEA


The 1956 Statute of the IAEA, among other things, envisions safeguards and provides for IAEA referral to the UNSC of matters impacting international peace and security, in addition to referral of cases where there is noncompliance with safeguards agreements.


 (The text of the statute indicates that this covers IAEA projects as well as other arrangements under which the parties to the IAEA Statute request safeguards; the NPT regime is just such an arrangement). 


As noted above, UNSC referral in Iran’s case has already occurred, and it has resulted in the UNSC and IAEA acting in synergy and partnership to address the matter, with the IAEA reporting in parallel to both the IAEA board and the UNSC.  The UNSC has bolstered the IAEA’s legal authority with its own, endorsing IAEA board demands, and has ordered Iran, in a manner binding under international law, to take steps required of Iran by the IAEA Board of Governors, among which are suspension of uranium enrichment and cooperation with essentially whatever transparency measures the IAEA deems necessary.


Additional Protocol and Beyond


With earlier safeguards agreements having been deemed less than optimal, due, for example, to delays and limits on inspections, a wave of countries have, since 1997, been adopting an Additional Protocol providing for somewhat more extensive and intrusive IAEA inspections and monitoring.  In Iran’s case an Additional Protocol has been signed but not ratified.  The IAEA Board and the UNSC have called for Iran to ratify the Additional Protocol, and in the interim follow its provisions fully as if it were in force. 


But, as indicated above, both also have found that even the Additional Protocol is not sufficient for Iran, demanding that Iran go further still, if need be, complying with whatever transparency measures the IAEA deems necessary.  As seen above, the UNSC has acted to demand such complicity in a manner binding under international law.


Iran: UNSC Resolution 1696


The current state of international law with respect to the Iranian nuclear program essentially is that Iran is in violation if it does not provide access-on-demand.


Bolstering IAEA authority, several key passages from UNSC Resolution 1696 read:


1.   [The UNSC] Calls upon Iran without further delay to take the steps required by the IAEA Board of Governors in its **LN** resolution GOV/2006/14, which are essential to build confidence in the exclusively peaceful purpose of its nuclear programme and to resolve outstanding questions,


2.   Demands, in this context, that Iran shall suspend all enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA...

* * *


6.   Expresses its determination to reinforce the authority of the IAEA process … underlines the necessity of the IAEA continuing its work to clarify all outstanding issues relating to Iran’s nuclear programme, and calls upon Iran to act in accordance with the provisions of the Additional Protocol and to implement without delay all transparency measures as the IAEA may request in support of its ongoing investigations...


UNSC Resolution 1696 (2006) [emphasis in original].


As can be seen, the UNSC explicitly, within the text of the resolution, calls upon Iran to “implement without delay all transparency measures as the IAEA may request …”


The IAEA Board of Governors resolution, which legally binding UNSC Resolution 1696 incorporates by reference in paragraph one, elaborates further:


… [Iran must] 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 Board of Governors resolution, GOV/2006/14, Feb. 4, 2006, http://www.iaea.org/Publications/Documents/Board/2006/gov2006-14.pdf (emphasis added).


To reiterate, the current state of international law, is that Iran must “implement without delay all transparency measures as the IAEA may request in support of its ongoing investigations” including, but not necessarily limited to, “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)


IAEA Challenges on a Broader Level


While at times dubbed the “UN’s nuclear watchdog” by elements of the news media, the IAEA’s traditional role arguably has been more of an auditor or accountant of known materials and activities. 


For example, if a state with nuclear technology were to export into another state nuclear materials and equipment to produce nuclear energy, the IAEA would help “keep track” of what comes into the second state in an effort to ensure that a portion of that subset of items does not get diverted to a nuclear weapons program.  But, as in the case of Iran, when a state actively conceals nuclear activities, the IAEA can be limited to discovering the illicit, additional activities, not by actively investigating additional activities, but by “shoehorning” within its limiting monitoring of declared activities efforts to “pick up on” other activities unknown problems.


In the case of Libya, the existence of a clandestine nuclear weapons program became known as the result of the interdiction of illicit shipments by third party nations.  In the case of Iran, the discovery of secret nuclear activities came in part as the result of tips and from environmental sampling incidental to access granted to monitor different activities.


The current scenario strikes to the heart of one significant IAEA question, namely whether the agency can function not only as an auditor or accountant of known, “declared” activities, or whether it can rise up to act as a proactive “watchdog” ferreting out and investigating other activities, such as clandestine violations posing short- or long-term security risks. 


The IAEA has found, thus far, that in that subset of Iranian nuclear activities that have been known, or declared, there has not been a diversion over into nuclear weapons activities of the declared materials or equipment.  But in addition to forcing Iran to confess past NPT safeguards violations, in the course of its efforts, the IAEA also has uncovered other questions that still go unanswered and states that it cannot confirm that Iran is in compliance with the NPT and is not conducting illicit nuclear activities, in short the IAEA cannot confirm that Iran is not developing nuclear weapons.


In the case of Iran, the IAEA’s partial legal authority has been bolstered by the prodigious authority of the UNSC, which essentially has ordered, in a manner binding under international law, that Iran suspend proliferation-sensitive nuclear fuel cycle activities and cooperate with whatever transparency measures the IAEA demands.  The UNSC and IAEA, partners in a broader UN system, are to act in synergy, even having the IAEA report to them in parallel.  But whether this effort “amounts to anything” in the end will turn on whether the UNSC matches its legal effort with enforcement teeth, given that Iran is violating the UNSC directives, disrespecting the IAEA, and in the process violating international law.


Also at issue, on a broader level, are concerns raised by the IAEA about the scope of its resources and organizational capacity, with IAEA Director-General Mohammed ElBaradei pointing out in an Oct. 16, 2006, Vienna address on “Addressing Verification Challenges” that, while the United States spent $1 billion on its post-invasion Iraq Survey Group, the entire IAEA budget, $130 million, is comparable to that if the Vienna police department.


Iran presents a “mixed bag” of IAEA effectiveness.  On the one hand, Iran for decades pursued aspects of its nuclear program in a clandestine manner.  On the other hand, the IAEA eventually “forced Iran’s hand” when IAEA environmental sampling turned up evidence of highly enriched uranium.  The finding prompted Iran to admit safeguards violations in an effort to explain away the contamination by attributing it to equipment secretly imported from outside Iran, and previously used elsewhere.  But the IAEA’s success has been partial and halting, as has been Iranian “cooperation.”  As of now, additional IAEA findings of contamination have gone largely unanswered, and Iran blatantly thwarted IAEA investigations in the case of the Lavizan-Shian site.  After the IAEA learned of the existence there of equipment relevant to a nuclear weapons program, Iran tore down the site and then scraped away and hauled off a layer of earth.


On a legal and practical level, the Iranian matter poses several key challenges to efforts to prevent the proliferation of nuclear weapons:

(1) in a case like Iran, can the international community and the IAEA:

·        “forgive and forget” past illegal safeguards violations;

·        out of a desire to spread the use of nuclear energy, provide access to nuclear energy, narrowly in the form of reactors producing electricity as opposed to additional processes, to a “rogue” state linked to terrorism;

·        at the same time successfully deny the “rogue” state access to an indigenous nuclear fuel cycle, a process that can, at one level of enrichment, produce reactor fuel, and at another level produce weapons-grade material;

·        also simultaneously not only decline to assist, but actually bring to a halt, a heavy water reactor that could produce plutonium as another route to weapons grade material


(2) can the IAEA just be an auditor or accountant of known materials or activities, or can the UNSC empower it to proactively investigate additional activities and put “teeth” into the authorization, such as through sanctions imposed for noncompliance.


UNSC response; EU-3 draft, Russian amendments


Debate continues among UNSC members over the scope and nature of the anticipated UNSC response, set to include a range of sanctions.  Some steps potentially could be analogous to UNSC Resolution 1718 (2006) adopted to impose sanctions on North Korea following its Oct. 9, 2006, nuclear test, among other things focusing on banning proliferation-related trade, major military-related trade, and trade enhancing the lifestyle of senior North Korean figures, while also calling for the inspection of trade. 


A draft authored by the European Union’s (EU) “EU-3” of Britain, France and Germany reportedly is being discussed by the UNSC veto-wielding permanent members, along with Russian-proposed amendments.  (Note that the EU-3, and to a lesser extent the EU itself, previously has spearheaded a diplomatic initiative with Iran stalled in part by Iranian insistence on continued enrichment activities.)  Meanwhile Iranian president Mahmoud Ahmadinejad on Nov. 16, 2006, praising the Iranian nuclear program and insisting on its continuance, has predicted that Iran will cross some kind of nuclear threshold by the end of the Iranian calendar year, in March 2007, declaring, as reported by the Iranian news agency “we have moved forward most of our path and are only one pace away from nuclear success.  Soon after he would be reported by an Iranian student news agency as setting a goal of 64,000 Iranian centrifuges, with at least 1,500 to 3,000 P-1-type centrifuges possibly needed to provide sufficient amounts of highly enriched uranium (HEU) for a nuclear weapon, depending on the efficacy of the design and management of the cascades.


Iran attempts to counter charges that Iran is developing nuclear weapons by arguing that Iran seeks only to develop a peaceful nuclear energy program. 


IAEA report details


Some of the highlights of the Nov. 14, 2006, report follow.


The IAEA indicates in its latest report that with respect to declared materials and facilities Iran has been somewhat cooperative, and that the IAEA can confirm non-diversion from that subset of activities towards illicit ends, but that Iran’s lack of overall cooperation and transparency prevents the IAEA from proving a negative, that there are not additional activities that are illicit and pose a threat:


20. Iran has been providing the Agency with access to declared nuclear material and facilities, and has provided the required nuclear material accountancy reports in connection with such material and facilities. However, Iran has not provided the Agency with full access to operating records at the [Pilot Fuel Enrichment Plant] PFEP.


21. While the Agency is able to verify the non-diversion of declared nuclear material in Iran, the Agency will remain unable to make further progress in its efforts to verify the absence of undeclared nuclear material and activities in Iran unless Iran addresses the long outstanding verification issues, including through the implementation of the Additional Protocol, and provides the necessary transparency. Progress in this regard is a prerequisite for the Agency to be able to confirm the peaceful nature of Iran’s nuclear programme.


“Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” Report by the Director General, International Atomic Energy Agency, GOV/2006/64, Nov. 14, 2006.


Additional highlights follow.


Iran stonewalls to pressure UNSC to “back off”


The IAEA indicates that on Oct. 16, 2006, it wrote to Iran regarding long outstanding verification issues and the fact that Iran had not addressed those issues or provided the necessary transparency.


Iran’s Nov. 1, 2006, reply stated, that it “is prepared to remove ambiguities, if any, and gives access and information in accordance with its Safeguards Agreement” but also referenced its April 27, 2006, letter in which Iran “declare[d] its preparedness to resolve the remaining issues providing timetable, within next three weeks, provided that the nuclear dossier is returned back in full in the framework of the Agency.” (emphasis added)


In other words, Iran arguably is holding transparency and cooperation “hostage” to the UNSC abdicating its responsibilities in the matter by leaving the Iranian question solely within the IAEA.


Document relating to manufacture of nuclear weapons component


The IAEA indicated Iran has not followed up on the IAEA’s desire to investigate further a 15-page document on a manufacturing process related to nuclear weapons, for which there is not a peaceful purpose, a document which Iran previously argued was given to it without Iran requesting it:


12. Iran has still not provided a copy of the 15-page document describing the procedures for the reduction of UF6 to uranium metal and the casting and machining of enriched and depleted uranium metal into hemispheres (GOV/2005/87, para. 6). The document was resealed by the Agency in August 2006.


Previous reports indicated the IAEA was shown the document, and allowed to place it under seal.  In spoken remarks on Nov. 13, 2006, in Abu Dhabi, a senior U.S. diplomat has charged that the document came from the A.Q. Khan network, and that, when an IAEA inspector took notes about it, Iran confiscated and destroyed the notes.


HEU contamination at waste storage facility



Denial of access to facility and individual


The IAEA indicates Iran has stonewalled efforts to investigate a particular facility and individual of interest:


18. Iran has not yet responded to the Agency’s long outstanding requests for clarification concerning, and access to carry out further environmental sampling of, equipment and materials related to the Physics Research Centre (PHRC); nor has Iran provided the Agency with access to interview another former Head of the PHRC.


Green Salt Project linked to military activities


The IAEA expressed concern over a lack of Iranian transparency relating to a secretive Iranian program called the “Green Salt Project” linking the Iranian nuclear program to a military program that focused on uranium processing, high explosives, and the design of a missile warhead:


19. Iran has not expressed any readiness to discuss information concerning alleged studies related to the so-called Green Salt Project, to high explosives testing and to the design of a missile re-entry vehicle (GOV/2006/53, para. 26).





The IAEA indicates that with respect to Iran’s Pilot Fuel Enrichment Plant (PFEP),


Fuel Enrichment Plant (FEP) at Natanz


Enrichment Program contamination


P-1 and P-2 Centrifuge Technology


Heavy Water Research Reactor


Plutonium Experiments


Reprocessing Activities


Uranium Conversion