Michael Spies

On Monday, January 23, British Foreign Secretary Jack Straw announced that the P5 permanent members of the UN Security Council, China, France, Russia, UK, US, padawan permanent member Germany, and the European Union have agreed on a compromise proposal to “report” Iran to the Security Council. The statement does not necessarily predetermine the language of any International Atomic Energy Agency (IAEA) Board resolution, which will likely be tabled on Thursday and must be agreed to by a majority of states on the 35 member Board. Nor does it signal that any future Security Council action will necessarily involve the imposition of economic sanctions, contrary to the assumption of much of the U.S. media. However, it does indicate how the most powerful states on the Board will seek to shape how this matter is brought to the Security Council.

The major compromise on the part of the US was to agree “that the Security Council should await the Director General’s report to the March meeting of the IAEA Board … before deciding to take action to reinforce the authority of the IAEA process.” The US Permanent Representative to the UN, John Bolton, holds the rotating Security Council presidency for the month of February. Possibly a factor underwriting this compromise, the agreement thus ensures that this issue will not come the Council while Bolton has the authority to set its agenda, to the relief of anyone who hopes for a diplomatic and non-confrontational outcome to the Iranian dilemma (Paul Leventhal of the Nuclear Control Institute disagrees). Argentina, which voted in favor of the IAEA finding Iran in non-compliance in September, holds the Security Council presidency for March.

The statement paid lip service to the Nuclear Non-Proliferation Treaty (NPT), with the states underlining “their commitment to the Treaty… and their determination to prevent the proliferation of nuclear weapons.” The statement made no such commitment to preventing unsustainable double standards from encroaching upon the embattled nonproliferation regime. Article IV of the NPT asserts “nothing in this Treaty shall be interpreted as affecting the inalienable right of all Parties to the Treaty to develop, research, production and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of this Treaty.” Along with all nuclear-armed states (including Israel), several non-nuclear weapon states (Japan, Netherlands, Germany, Brazil) currently have capabilities to enrich uranium or separate plutonium. The thrust of the current effort is to deny Iran uranium enrichment capability.

The P5+2 agreed, in one bullet point, that “an extensive period of confidence-building was required of Iran,” and in the next bullet point, “called on Iran to restore in full the suspension of enrichment-related activity, including Research and Development, under the supervision of the International Atomic Energy Agency.” Thus the possibility was raised that some permanent members (US, UK, France?) will seek to have the Security Council determine that confidence-building requires suspension of enrichment activity. This would go beyond the scope of IAEA Board resolutions, among them the September resolution that made the finding of non-compliance. It urged Iran to “re-establish full and sustained suspension of all enrichment-related activity, as in [IAEA document] GOV/2005/64,” which, like the now defunct Paris Agreement, stipulated such suspension would be undertaken “on the same voluntary, non-legally binding basis as requested in previous Board resolutions.”

In the context of the IAEA’s relationship with Iran, an effort to require suspension of enrichment activities would seek to have the Security Council enforce what until now has been a voluntary, non-legally binding, confidence-building measure. Such a call by the Security Council could be backed by the threat of sanctions in the event of non-compliance. The IAEA cannot take this kind of action because it exceeds the IAEA’s authority under its statute, its safeguard agreement with Iran plus the additional protocol, and the NPT. The Council, on the other hand, once having determined under Chapter VII of the UN Charter that a threat to international peace and security exists, is subject to no such constraints.

While the Western powers likely will be able to strong-arm a majority of the IAEA Board to report the Iran situation to the Security Council, it may be difficult to get a Security Council majority to support enforcement measures beyond the scope of the IAEA’s mandate. Non-nuclear states sitting on the Council will certainly want to generally protect the NPT Article IV right to “peaceful” nuclear technology. It is also not clear how far Chinese and Russian cooperation will extend after the March 6 Board meeting. As Hans Blix predicted at the Arms Control Association annual luncheon in DC on January 25, the Security Council is most likely to call on Iran to cooperate with the IAEA and send the matter back to Agency. When the IAEA completes its investigation it will then be able to close its Iran file, clearing Iran to begin enrichment.

All this points to the need to find other ways to induce Iran to forego or limit enrichment, in order to foreclose or at least restrict the weapons option. This is a desirable outcome especially in light of Iran’s concealment, in violation of its safeguards agreement, of large-scale nuclear activities and facilities over the past two decades. There could be an ad hoc deal, like the proposed locating of a facility on Russian territory, or a strictly supervised (with continuous, on-site, in-person IAEA monitoring) and limited enrichment program in Iran, as Iran had proposed in negotiations with the EU. Much more ambitiously, it could be a regional or global arrangement for internationalization of fuel production capabilities.

But Iran may not be willing to cooperate. Its current position is that immediately following an IAEA decision to report the issue to the Council, it will cease its voluntary implementation of the additional protocol to the safeguards agreement. The protocol enhances IAEA investigative powers regarding undeclared facilities and activities and enables much of the investigation into the outstanding issues. This will effectively prevent the IAEA from certifying the absence of undeclared nuclear activities in Iran. Heightened uncertainty will not help to ease tensions or build trust and could be seized upon as an basis for resorting to military options. In short, it is not at all clear that the US/EU approach will stop Iran’s civilian nuclear program in the long term, and in the short term it promises to harden Iran’s position.

There are tendencies, especially in Washington, to regard the Iran situation as extremely urgent. While certainly there are important issues at stake, with respect to Iran and to the non-proliferation regime generally, the urgency is overstated. This is indicated by the fact that the Director-General has never reported to the Board that Iran’s actions constitute non-compliance, either of its safeguard obligations or “in the context of Article XII.C of the Agency’s Statute” as the September 24, 2005 Board resolution states. The Board elected to ignore the lack of a finding by the Director-General and to rely on the vague language “in the context of”. That is because “non-compliance,” as it relates to reporting the matter to the Security Council under the safeguards agreement, requires a finding that nuclear material has been diverted to military purposes. The Director-General reported to the Board in November 2004 that all declared nuclear material in Iran, including previously undeclared nuclear materials, had been accounted for and therefore none had been diverted to non-peaceful purposes.