Barely two weeks after the UN Security Council enacted sanctions to contain North Korea’s ballistic missile and nuclear programs, the permanent members of the Council are debating similar measures against Iran. This week the EU circulated a draft resolution on Iran, which takes a similar approach to the resolution on North Korea. While the U.S. was quick to signal its full backing of the draft, Russia has expressed unspecified skepticism and concern. Due to various political circumstances, the draft resolution is not expected to be circulated to the full Council until the first full week of November.
Quick overview: The draft resolution states the Security Council in acting under Chapter VII of the UN Charter, thus citing its authority to impose sanctions on Iran’s nuclear energy and ballistic missile programs. The resolution cites Article 41 of the Charter specifically, which is intended to preclude the use of force (Article 41 addresses “measures not involving the use of armed force”). The resolution would also compel Iran to implement the provisions of the Additional Protocol, suspend all enrichment and reprocessing related activities, and suspend all projects related to heavy water. The draft contains an exception for activities related to Russia’s construction of the Bushehr Nuclear Power Plant, but the measures otherwise apply to the full range of Iran’s civilian nuclear program.
There are many notable features in the current draft. Overall, it represents a departure from the Security Council’s traditional approach in dealing with ostensible threats to international peace and in how it makes decisions pursuant to its mandate under the UN Charter. Specifically, the draft strays from the traditional form set forth in the UN Charter, by which the Security Council makes decisions that are binding on member states. This evolution in Council decision-making started with the approach taken in response to the North Korean missile tests in July, and was also the approach taken in resolution 1696 on Iran.
The Security Council’s authority to make resolutions binding on member states is not absolute. Traditionally, following from the legal mandate of the Council set forth in the UN Charter, there are three elements a resolution must contain in order to be binding: 1) the Security Council must make a finding or determination that a given situation represents a threat to international peace and security (Article 39); 2) the Security Council must state it is acting under Chapter VII of the UN Charter; 3) the Security Council must use language in the operative portion of the resolution that confers a legal obligation (the Security Council decides rather than the Security Council calls upon or urges). Resolution 1696, in which the Council demands that Iran suspend enrichment and reprocessing activities, contained none of these elements (thus one could raise the question of whether it contained any binding obligations, though the passage of the current draft would make this issue moot).
The present draft includes the second and third elements, but not the first. There is no finding whatsoever that Iran’s program is threat to the peace. Under a traditional (not narrow) reading of the Charter, such a finding is requisite for the Council to adopt measures under Article 41 (sanctions) and Article 42 (military force). Chapter VI of the Charter authorizes the Security Council to make recommendations in situations which have not yet risen to the level of a threat to international peace, a lower threshold for action by the Council. Yet, in regard to the “threat” posed by Iran’s nuclear program, the Council fails to even assert this lower level of concern.
Instead, PP10 of the current draft states that the Council is “[c]oncerned by the proliferation risk presented by the Iranian nuclear programme,” and “in this context” the Council is “mindful of its primary responsibility under the Charter… to address threats to international peace and security.” Thus the Council makes no finding of a threat, as the Charter requires before it can adopt binding decisions or impose sanctions and authorize or direct military force. Indeed, such a finding would be absurd given the primitive state of Iran’s nuclear fuel cycle efforts and in light of the fact that its 19 year old fuel cycle program has only thus far succeeded this year in enriching uranium in gram quantities to reactor grade (~3.5%). This is a far cry from producing the 25 kg of uranium enriched to weapons grade (90%) needed for a single nuclear weapons. Non-governmental experts and analysts say Iran is between 3-5 years from being able to produce this much material. The US Director of National Intelligence, in testimony before Congress, put that estimate between 5 and 10 years.
Of the “proliferation risk presented by the Iranian nuclear programme,” certainly Iran’s past Safeguards violations are a significant matter of concern as are its intentions. Yet, the drafters of the resolution do not claim that this risk is sufficiently grave to declare it a threat to peace under the Charter. The preambular paragraphs also do not support an argument that these proliferation concerns merit the kind of legal treatment that typically has been reserved for responding to dire humanitarian emergencies and acts of aggression and war. Specifically, there is only one proliferation “concern” stated in the draft that directly touches on the allegation of an Iranian nuclear weapons program. In PP4 the Council reiterates its “serious concern” following the IAEA report on Iran in February that described a single document found in Iran’s possession that describe procedures for casting uranium into hemispheric shapes. While certainly suspicious, to date the IAEA has not uncovered evidence that Iran has experimented with the procedures described in the document, nor has the IAEA uncovered evidence of a nuclear weapons program. Moreover, it would obviously stretch credibility to assert that the possession of a single document constitutes a nuclear weapons program or a threat to the peace.
In fact, the “proliferation risk” presented by Iran’s nuclear program is a risk that is inherent in nuclear energy, and is not unique to Iran. Conceivably, any civilian nuclear fuel cycle facility can be used, with some adjustment, to produce material for a nuclear bomb. Moreover, the knowledge gained from operating such facilities can also be used for clandestine and military weapons purposes. Thus the “risk” posed by Iran’s nuclear program is the very same risk posed by the nuclear programs currently existing in Japan and Brazil, recently announced in Argentina, Australia, and South Africa, and likely to exist one day in other states.
Beyond the legal and technical points, it is questionable whether a Chapter VII approach is appropriate, not only because of the lack of an immediate threat, but also because of the non-urgency of the situation and the near-certainty that such a resolution will lead to increased tension and escalation. While the suspension of nuclear fuel cycle activities by Iran certainly would be desirable, the inflexible demand that suspension of those activities be a precondition for negotiations seems like an artificial barrier and a distraction from the real political issues that underlie the dispute. Indeed, in an IAEA report on Iran cited by the present draft resolution, the IAEA Director-General stressed that, “safeguards obligations and confidence building measures [a reference to suspension] are different, distinct and not interchangeable. The implementation of confidence building measures is no substitute for the full implementation at all times of safeguards obligations.” In other words, the suspension of fuel cycle activities by Iran, insisted upon by certain states, are not as important as the continued implementation of safeguards. Though seemingly a minor point, its inclusion suggests that, in the view of the IAEA, the issue of suspension is a red herring and its importance has been overemphasized.
Another point that must be addressed is the question of whether the measures adopted under such a resolution will actually achieve the goal of the resolution, stated in PP8 as “to constrain Iran’s development of sensitive technologies in support of its nuclear and ballistic missile programmes.” Given Iran’s reported indigenous capacity to manufacture centrifuge components and ballistic missiles, it is not clear how the sanctions envisioned by the current draft will achieve this goal. Nor will they achieve the ostensible object of the resolution, halting Iran’s nuclear fuel cycle and heavy water programs. The unconditional return to negotiations by all parties would be far more desirable than what would be gained by the indefinite suspension of Iran’s nuclear program, especially if there is the potential they would address the full range of social and political issues between Iran and the U.S., as Iran once signaled it would be willing to do in the context of bilateral talks. However, in the absence of any real return to negotiations, intended to achieve the desired outcome of Iran’s renunciation of the nuclear fuel cycle, the approach taken by the current draft is more akin to kicking a beehive to stop the bees from producing honey, rather than a course that is likely to succeed short of the use of force. And therein lies the real threat to international peace and security.
Is it the threat of Iran we fear; or is it the threat from the crisis we are creating?