Lawyers' Committee on Nuclear Policy

Nuclear Disarmament and Nonproliferation The Iran Nuclear Dilemma

UN Security Council Escalates Nuclear Situation with Iran
Michael Spies
January 10, 2007

Nearly four months after Iran failed to heed the UN Security Council demand in resolution 1696 (2006) that it suspend its uranium enrichment activities, on December 23 the Security Council adopted resolution 1737 (2006) imposing sanctions on nuclear proliferation-sensitive activities in Iran. The thrust of the resolution is to halt uranium enrichment, plutonium reprocessing, heavy water projects, and the development of nuclear weapon capable ballistic missiles in Iran. Toward this end, the resolution imposes sanctions. For the present time, they are limited to freezing financial assets of persons or entities identified by the Council as engaged in those activities (operational paragraph [OP] 12). The resolution also requires all states to take measures to prevent contributions to the proscribed activities, e.g. by shipment of goods or provision of training (OP 4-7). Should Iran fail to comply with the resolution after 60 days, the Security Council stated its intent to adopt further punitive measures not including the use of force (OP 24(c)).

Despite the resolution’s passage by a unanimous vote, there was no consensus among the permanent Security Council members over its purpose and scope. In their statements in support of their affirmative votes, western nuclear powers U.S., France, and UK each emphasized the need for Iran to suspend all proliferation sensitive activities as a precondition for negotiations leading to a peaceful settlement. Russia, avoiding an emphasis on the issue of suspension, viewed the resolution as message to Iran to cooperate more fully with the IAEA toward resolving outstanding issues regarding the development of its nuclear program. China lamented Iran’s inflexibility regarding suspension, affirmed the central role of the IAEA in dealing with this issue, and called for diplomatic efforts outside the council to be intensified.

The most puzzling rationale came from Qatar, the lone Arab state on the Security Council, which, in explanation of its vote, affirmed Iran’s right to develop peaceful nuclear activities in conformity with Article I and II of the NPT, and further claimed to have “no suspicions concerning the sincerity of Iran’s intentions as regards to the peaceful nature of its nuclear programme.” Almost as if responding to an entirely different resolution, Qatar stated its vote in favor of resolution 1737 was “prompted by [its] concerns over the safety of Iranian nuclear facilities.” This alludes to its previously raised anxieties regarding the environmental risk posed by Iran’s nuclear plant at Bushehr, situated less than 200km from its borders. Qatar was the sole state to vote against resolution 1696 (2006), which was passed on July 31 at a time when the Security Council was unable to take any action on the conflict between Israel and Hezbollah.

Analysis of the Resolution

Resolution 1737 was adopted under Article 41 of Chapter VII of the UN Charter, which provides the Security Council the authority to adopt measures not including the use of force to enforce its decisions. Like the preceding resolution targeting Iran’s nuclear program, the approach taken in the present resolution departs from the norms by which the Security Council traditionally invokes its powers to respond to threats to international peace. The Security Council’s authority to make resolutions binding on UN 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 1737 includes the second and third elements, but not the first, making no finding of a threat to the peace. Instead, in the ninth preambular paragraph the Council states it 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.” This omission is reinforced by the last preambular paragraph, which says that the Council is acting under Article 41 of Chapter VII, not Chapter VII as a whole. This vague language and non-traditional approach can be seen as serving two purposes. One view expressed by some members of the Council is that the omission of a finding of a threat precludes any possibility that the resolution could be interpreted as allowing for the use of force. In this sense, this step away from the legal form of the UN Charter is a reaction to the U.S. abuse of past UN resolutions in justification of its illegal invasion of Iraq. The second reason for this novel approach is that it allows the Council to avoid making the arguably absurd assertion that Iran’s still primitive nuclear fuel cycle program presently constitutes a threat to the peace. Such a finding, traditionally intended as a response to the outbreak of a war, but also widely utilized for humanitarian crises, seems ill fitted to the situation with Iran where even the U.S. intelligence community believes it might take Iran up to a decade to produce sufficient material for a single nuclear weapon.

The resolution for the first time makes Iran’s suspension of uranium enrichment and plutonium reprocessing activities, and all nuclear projects involving heavy water a legally binding requirement (OP 2). Several permanent members of the Security Council argued that the demand contained in resolution 1696 was legally binding, but such an interpretation is inconsistent with the traditional view of the Council’s authority, as discussed above. The overwhelming thrust of the resolution is geared toward achieving this suspension, the full implementation of which constitutes the only condition which would lead to the termination of sanctions (OP 24(a)). Further, as another victory for those seeking a hard line, the reversal of sanctions would not be automatic should Iran implement the resolution, but would require an additional decision by the Council (OP 24(b)). This effectively gives each of the permanent Security Council members, and particularly the United States, the power to veto any move to lift sanctions.

Appearing as an afterthought, OP 8 requires Iran to “provide such access and cooperation as the IAEA requests to be able to… resolve all outstanding issues.” This refers to the IAEA’s stalled investigation into Iran’s past nuclear activities, which the atomic agency needs to complete in order to both determine the absence of undeclared nuclear activities or materials in Iran, and to provide assurances to the international community regarding the nature of the program. The IAEA’s pursuit of its investigation is contingent on Iran’s implementation of the Additional Protocol, which the Iranian parliament suspended early last year in retaliation for the IAEA Board voting to send the nuclear dossier to the Security Council. Past IAEA reports on Iran have stressed that the full implementation of safeguards and the completion of this investigation are more important and desirable than the suspension of proliferation sensitive nuclear activities, previously regarded as voluntary confidence-building measures. Since 2004 the IAEA has annually certified that no nuclear material in Iran has been diverted to weapons use, thereby affirming Iran is in compliance with its basic NPT safeguards obligation.

The Year Ahead

Given the glacial pace of both Iran’s uranium enrichment research program and the efforts of Western powers to bring about its end through the Security Council, 2007 is set to be a year of slow but steady escalation. Conventional wisdom indicates the ongoing quagmire in Iraq will continue to deter the Bush administration from seeking a military solution to the situation. Yet, the embattled reality of the precarious U.S. position in the region, coupled with the undeniably growing power of Iran in the region, have not yet convinced Washington to try a diplomatic approach. However, while at one time the benefits of playing the waiting game clearly belonged to the Iranians, the balance seems to be steadily shifting westward. For one, the dismal situation in Iraq will not persist perpetually, and once the country begins to stabilize the U.S. will have greater options to pursue a more aggressive course. Also, Russia and China, which have been advocates for moderation on this issue, are increasingly showing signs of frustration with Iran’s intransigence and have already obligated themselves to follow the lead of the West should Iran continue to defy the Security Council.

While hopes for a new diplomatic, face-saving initiative seem increasingly remote, the dynamic on the Security Council has now shifted, with Indonesia and South Africa each beginning two-year terms as elected members. Each country carries more political clout than the states they have replaced, both have a particular interest in the evolving norms governing the development of nuclear technology, and most critically, both have quietly supported aspects of Iran’s claims in various diplomatic contexts, from the IAEA Board to annual conference of the Non-Aligned Movement. Yet, the bottom line for the new year is that neither side will be likely to acquiesce absent some unexpected development or change in posture from the other side.