Continued Analysis of 1696

Editor's Note: On August 21, 2006 we distributed Amy Reed's analysis of UN Resolution 1696's call for Iran to suspend uranium enrichment and related activities. This analysis elicited a welcome critique from Dr. Abbas Maleki, an Iranian scholar and former foreign ministry official, now a visiting Senior Research Fellow at Harvard University's Kennedy School of Government. We post Reed's original analysis, Maleki's response, a comment on Maleki's response by Dr. William W. Burke-White, Assistant Professor of Law at the University of Pennsylvania Law School, a submission by Iranian political scientist Kaveh Afrasiabi, and a final analysis by Carnegie Vice President for Studies and Director for Non-Proliferation George Perkovich. We welcome further dialogue on this important topic and are happy to continue distributing this quality discussion.

By Amy Reed

On July 31, 2006 the United Nations Security Council adopted Resolution 1696, demanding that Iran “suspend all enrichment-related and reprocessing activities.” The resolution came after Iran had ignored a series of requests from the IAEA, the EU-3, and the United States for Iran to cease its enrichment program until its peaceful nature could be confirmed by the IAEA. Iran claimed that neither the IAEA nor any member of the international community had the right to prevent Iran from pursuing a domestic nuclear energy program. Resolution 1696 undermines the legal basis on which Iran has resisted suspension. As the international community awaits Iran’s response to the Security Council’s demands, it is important to understand this new legal context.

1696 was adopted after three years of negotiations between Iran and France, Germany and the United Kingdom failed to resolve outstanding questions regarding Iran’s compliance with its IAEA safeguard obligations and its Treaty on the Nonproliferation of Nuclear Weapons obligation under Article II “not to seek or receive assistance in the manufacture of nuclear weapons or other nuclear explosive devices.” Throughout these negotiations, Iran has been pressed to suspend uranium enrichment activities, as a confidence-building measure to facilitate negotiations over longer-term parameters to objectively guarantee that Iran’s nuclear activities are exclusively for peaceful purposes. Iran agreed as a voluntary, unilateral measure in November 2003 to suspend all enrichment and reprocessing activities as defined by the IAEA. It then intermittently broke the terms of the suspension until November 2004, when a more specific agreement was made with the EU-3. Iran then breached that agreement on August 10, 2005 when it removed the IAEA seals from its conversion plant in Esfahan in preparation for manufacturing UF6 gas to be enriched.

Iran has marshaled two main legal arguments in pursuing its nuclear policy. The most practical argument has been that its suspension of uranium enrichment is purely voluntary and not a legal obligation. The second, broader argument has concerned Article IV of the NPT, which states that “[n]othing 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…” Iran claims that Article IV provides legal protection against demands for it to suspend or otherwise forego uranium enrichment of any other nuclear activity that the IAEA cannot say conclusively is part of a nuclear weapon acquisition program.

While it remains to be seen whether or how UN Security Council Resolution 1696 will be enforced, the resolution itself renders Iran’s legal arguments hollow. Whatever the merits of these arguments before UN Resolution 1696, the resolution itself supersedes them.

After Iran broke its suspension of enrichment activities in August 2005, it justified this action by reminding the IAEA that the suspension had been voluntary and non-legally binding. Iran further argued that neither the NPT nor the IAEA statute provided a legal basis for requiring Iran to further suspend these activities. Legally, Iran was correct; the IAEA is not given the right under either the NPT or its own statute to require states to suspend fuel cycle activities.

However, UN Resolution 1696 itself created a legal obligation for Iran to suspend, rendering Iran’s earlier legal references moot. Under 1696 Iran is demanded to “suspend all enrichment-related and reprocessing activities.” Unlike the IAEA board requests of Iran to suspend such activities, this request is not voluntary and is legally-binding. According to Article 25 of the UN Charter, “members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter,” meaning that Security Council resolutions are legally as powerful as the UN Charter itself.

And what of Iran’s “inalienable right” under NPT Article IV to nuclear energy development? Article 103 of the UN Charter clarifies this point without room for dispute: “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Resolution 1696 supersedes the privileges offered under the NPT.

Iran’s only resort to maintain some legitimacy in light of the resolution has been to declare the issue of its enrichment not a threat to international security and therefore outside of the jurisdiction of the Security Council. However, Article 39 of the UN Charter clearly states that it is the Security Council that “shall determine the existence of any threat to the peace,” which is exactly what it did by penning Resolution 1696.

Clearly, Iran has not responded positively to the imposition of a Security Council Resolution against its enrichment capacity. However, the future remains unwritten. It is interesting to note that throughout the dispute over Iran’s nuclear program, Tehran has continued to invoke international legal precedent to support its actions rather than brashly refusing any international responsibilities. For this reason, Resolution 1696, by severely weakening Iran’s claims of legitimacy, may be more than merely words on a page; it may, in effect, help write history.

By Dr. Abbas Maleki

Amy Reed in her article in Carnegie Endowment as “UN Resolution 1696 Moots Iranian Legal Claims” says that the UN Security Council Resolution overrides Iran's rights under the NPT. She claims that under Article 103 of the United Nations Charter, Iran's rights and obligations under the multilateral NPT are superseded by UN Security Council Resolutions.

Article 4 of Non-Proliferation Treaty recognizes the "inalienable right" of states to nuclear technology. Article 103 of the UN Charter speaks of obligations that conflict with the UN Charter, and not of rights that conflict with the UN Charter. Under Article 103 states may ignore their pre-existing treaty obligations to the extent that they conflict with the UN Charter. This is not the same thing as allowing the UN Security Council to selectively re-interpret multilateral treaties to selectively deprive some nations of their rights under the perfectly valid treaties.

Even if we are to accept the notion that the UN Security Council can somehow override Article 4 of the NPT under Article 103 of the Charter, then the principle of Equal Sovereignty (which is in fact explicitly recognized in Article 2 of the Charter) requires that this not be selectively applied to Iran. If Article 4 is contrary to the UN Charter, and if the UN Security Council is then permitted to override it in accordance with Article 103, then Article 4 of the NPT cannot apply to any other signatories to the NPT. Either Article 4 of the NPT is valid or it isn't; it cannot be claimed that Article 4 of the NPT conflicts with the UN Charter, but only when we're talking about Iran. The principle of equal sovereignty is a matter of jus cogens. The relief which Article 103 of the Charter may give the Security Council in case of conflict between one of its decisions and an operative treaty obligation cannot apply to a conflict between a Security Council resolution and jus cogens.

Also, it appears that Article 103 provision was primarily directed to bilateral treaties (especially bilateral treaties that existed prior to the Charter) and does not seem to apply to multilateral treaties such as the NPT, because "parties to a multipartite agreement [such as the NPT] cannot modify their obligations there under except with the consent of the other parties or by the procedure prescribed in the agreement itself."

This Article deals with the situation where the obligations of a Member under the Charter are in conflict with the obligations of that Member under another international agreement. This situation may conceivably take three forms:

(1) that where there is a conflict between the obligation of a Member under the Charter and the obligation of that same Member resulting from an agreement with another Member, contracted before the entrance into force of the Charter;

(2) that where the conflict is between the obligation of a Member under the Charter and the obligation of that same Member resulting from an agreement with another Member contracted after the entrance into force of the Charter; and

(3) that where the conflict is between the obligation of a Member under the Charter and the obligation of that same Member resulting from an agreement contracted with a non-member state, before the entrance into force of the Charter.

Article 103 clearly covers the second situation by stating that obligations under the Charter shall prevail over obligations "under any other international agreement" without qualification as to time of contracting. This is recognition of the principle that the obligation of a multipartite agreement prevails against an obligation under an agreement between certain of the parties, even though later in time, since parties to a multipartite agreement cannot modify their obligations there under except with the consent of the other parties or by the procedure prescribed in the agreement itself.

By Dr. William W. Burke-White

In his response, “UN Resolution 1696 Highlights Iran’s Rights,” Abbas Maleki misstates a number of basic principles of international law that undermine his basic argument.

It should be noted that Resolution 1696 was adopted by the Security Council pursuant to Article 40 of Chapter VII of the UN Charter, which gives the Council the power to “call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable.” This is a first step in a potential gradual escalation in the pressure the Council can exert on a State, leading up to sanctions (Article 41) and the use of force (Article 42). The Council explicitly indicates that it is invoking Article 40 “in order to make mandatory the suspension required by the IAEA.” There is no doubt in the Council’s language that it is using its Chapter VII authority to, at least temporarily, suspend any rights Iran may have to develop nuclear technology.

Maleki suggests that there is a direct conflict between Resolution 1696 and Iran’s rights to develop nuclear technology for peaceful purposes under Article IV of the Nuclear Non-Proliferation Treaty. This is not the case. The Council in fact affirms the rights of States to develop nuclear programs for peaceful purposes. The Preamble to the resolution recalls “the right of States Party, in conformity with Articles I and II of that Treaty, to develop research, production and use of nuclear energy for peaceful purposes without discrimination.” However, the Council, acting on the recommendation of the IAEA, determined that Iran’s nuclear program—at least as it stands today—represents a threat to international peace and security and therefore is not entitled to the benefits accorded to purely peaceful nuclear development by the Nuclear Non-Proliferation Treaty.

Even if there were a direct conflict between the Resolution and Article IV of the Non-Proliferation Treaty, the Security Council Resolution would trump and Iran, or any other State, would be obligated to comply therewith. Article 25 of the UN Charter, to which Iran is a State Party, requires it to carry out the decisions of the Security Council and Article 103 indicates that obligations under the Charter prevail in case of conflict with any other international treaty.

Maleki argues that a resolution by the Council demanding Iran suspend its nuclear program would violate “equal sovereignty [as] a matter of jus cogens.” Maleki is correct that jus cogens, or higher order norms of international law, can not be violated or derogated from. While sovereign equality may be considered jus cogens, such a norm reflects the equality of states in the international system and in no way prohibits the Security Council from taking particularized action at an individual State when it deems that State’s actions to be a threat to international peace and security. If sovereign equality meant that every state had to be treated exactly equally in every situation, it would deprive the Council of the essence of its authority under the UN Charter to maintain international peace and security.

Maleki further misstates basic rules of international law when he claims that Article 103 of the Charter, according to which obligations under the UN Charter trump those in other treaties, only applies to bilateral treaties. There is nothing in the text of Article 103 or in the practice of the Council to support that claim. Obligations under the Charter (including that found in Article 25) supersede obligations under any other treaty—be in bilateral or multilateral.

There is little, if any, support in international law for Maleki’s interpretation of Resolution 1696. The resolution was adopted by the Council under its Chapter VII authority and Iran is obligated to comply, as would any other similarly situated State.

Kaveh Afrasiabi is a political scientist and author of Iran's Nuclear Program: Debating Facts vs. Fiction.

By George Perkovich
Carnegie Vice President for Studies and Director of Carnegie Non-Proliferation

Iranian officials and commentators have masterfully and incorrectly defined the crisis over Iran’s nuclear activities. Instead of being about Iran’s non-compliance with its safeguards obligations and subsequent refusal to answer key questions needed for the International Atomic Energy Agency to verify that Iran’s nuclear program is exclusively for peaceful purposes, the story has become the United States’ bloody minded crusade to deny Iran its nuclear rights. This story needs to be corrected.

Iran, like all countries, has a right to “develop research, production and use of nuclear energy for peaceful purposes…in conformity with Articles I and II of the Treaty” Under Article IV of the Nuclear Non-proliferation Treaty, Iran can expect international cooperation in exercising such rights.

However, there is no explicit right to possess uranium enrichment or plutonium separation technology, just as there is not a specific prohibition on possessing such technology. The rules to guide the international management of nuclear technology have evolved through negotiation and custom. In all cases, rights under the NPT are conditioned on the obligation “not to manufacture or otherwise acquire nuclear weapons…; and not to seek or receive any assistance in the manufacture of nuclear weapons.” (Article II)

Beginning in early 2003, International Atomic Energy Agency investigators – not the United States – found evidence that Iran was non-compliant with its safeguards obligations. The IAEA uncovered numerous violations dating back to the mid-1980s. In order to verify that Iran’s nuclear activities and program conform to its core commitment to use nuclear technology only for peaceful purposes, the IAEA needs answers that lift the suspicion that Iran’s hidden activities were not exclusively peaceful. Iranian protagonists emphasize that the Agency has reported “there is no evidence that the previously undeclared nuclear material and activities….were related to a nuclear weapons programme.” (IAEA Report, November 2003) But it is equally important (and forgotten!) that the Agency “remains unable to verify…the peaceful nature of Iran’s nuclear programme,” in the words of the August 31, 2006 Report of the Director General.

Because Iran has been found non-compliant with its obligations and has not enabled the IAEA to verify its compliance with the core Article II obligation that conditions all rights to nuclear energy, Iran has lost, at least temporarily, full enjoyment of its original nuclear rights. Iran’s case is an enforcement problem, at this point, not a rights problem. All other states currently members of the NPT are not in the midst of enforcement problems and therefore are not being asked to limit their nuclear activities.

The nonproliferation treaty does not specify how it should be enforced. The general understanding was and is that the UN Security Council is responsible for enforcement, and this was reaffirmed in 1992 when the president of the Council declared that proliferation was a threat to international peace and security. The IAEA statute is more specific. Article XII.7.C states that IAEA “inspectors shall report any non-compliance to the Director General who shall thereupon transmit the report to the Board of Governors.”

Here’s where Iranian protagonists in the current debate exhibit selective amnesia. In 2003, when the IAEA’s findings warranted reporting Iran’s case to the Security Council, Iran pleaded for an alternative. The leadership of the IAEA and of several European countries responded sympathetically for a variety of reasons. Among other things, they feared U.S. leadership on this issue, which seemed inclined to repeat the disastrous Iraq experience. So, the governments of France, Germany, and the United Kingdom were welcomed to negotiate terms by which Iran could redress its non-compliance and avoid being reported to the Security Council. In these negotiations, Iran agreed voluntarily and unilaterally to suspend uranium enrichment and other related activities, while Iran and the European states would negotiate on longer term measures to address Iran’s interests in nuclear energy and the international community’s need for objective guarantees that Iran’s nuclear activities would be exclusively for peaceful purposes.

Shortly thereafter, Iran interpreted the terms of its initial suspension differently than the Europeans did, and resumed fuel-cycle activities that alarmed the rest of the world. A crisis ensued, negotiations resumed, and in November 2004, Iran agreed to a more exactly defined suspension. Again, the premise was that Iran’s actions and ongoing failure to resolve the IAEA’s questions about them, made it impossible to verify that Iran was upholding the conditions under which rights to nuclear energy are to be enjoyed. To avoid possible immediate penalties for that, Iran agreed to build confidence by suspending activities that could help give it the capacity to produce weapons grade nuclear material while negotiations proceeded on longer-term relations between Iran and the rest of the world.

Then, in August 2005, as the new government led by President Mahmoud Ahmadinejad was preparing to take office, Iran once again broke the terms of a suspension by operating the uranium conversion facility in Isfahan. Tehran did so before considering the offer of incentives that the European Union governments had just delivered. Iran still had not given the IAEA the cooperation it needed to verify that there is no undeclared nuclear material and activities in Iran. The international community responded meekly. Uranium conversion was considered (unwisely) to be less threatening than uranium enrichment; the red line was moved back.

Iran had reversed the initiative in this contest. Rather than being on the defensive to avoid the consequences of its still unresolved non-compliance, Tehran presented itself as the victim – the developing country whose rights to nuclear energy were being violated by the blood-thirsty Bush Administration.

Finally, in February 2006, Tehran began to enrich uranium in centrifuges at the Natanz plant, crossing a red line that was too big to ignore.

At this point, the states responsible for upholding the integrity of the nonproliferation regime had to take enforcement action. Iran’s previous suspensions of proliferation-sensitive activities had been voluntary, but they had been undertaken to suspend the process of reporting Iran’s case to proper enforcement body, the UN Security Council. After several months of diplomacy, the UN Security Council produced resolution 1696. It is predicated on the facts that Iran has violated its obligations to the IAEA and has not provided cooperation and answers necessary for the IAEA to verify that Iran is upholding its fundamental obligation to apply nuclear energy only for peaceful purposes. Iran is not meeting the conditions on which general rights to nuclear technology and cooperation are predicated, and as a result the Security Council demands that Iran suspend particular sensitive fuel cycle activities. What Iran had volunteered to do before, the UN Security Council is mandating now.

The Security Council demand does not discriminate against Iran, nor is it arbitrary. Rather it is a specific action to redress violations by Iran of the obligations that condition any state’s rights to use nuclear technology. The action follows from the International Atomic Energy Agency’s patient exercise of its statutory requirement to report non-compliance to the UN Security Council, and from the Security Council’s responsibility to enforce the NPT.

UNSC Resolution 1696 does not require Iran to permanently suspend fuel-cycle activity. It does not prejudge the outcome of the negotiations which it calls upon Iran to undertake. Iran’s interlocutors (China, France, Germany, Russia, the United States, and the United Kingdom) do not seek to deny Iran’s rights to benefit from atomic energy. Indeed, the offer to Iran includes cooperation in building new nuclear power plants in Iran. If and when Iran restores confidence in its intentions by suspending fuel-cycle activities, negotiations will focus, among other things, on conditions under which Iran could enrich uranium without raising reasonable doubts about its ongoing commitment to limit nuclear activities exclusively to peaceful applications.

Related Links:

Text of Resolution 1696 (2006) Adopted by Vote of 14 - 1
UN Security Council, July 31, 2006

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