The Iran Situation: Options for the Security Council
John Burroughs, Executive Director
Lawyers’ Committee on Nuclear Policy, New York (www.lcnp.org)
Remarks to Diplomats Representing Some Elected Members of the Security Council
United Nations, May 2, 2006

The Security Council now has before it a situation in which a state has been found to be in non-compliance with requirements of a non-proliferation and disarmament regime. I will return later to the nature of that non-compliance, which is not as egregious as often described. But let’s take it as a given for the moment.

Non-compliance does not necessarily equate to a threat to international peace and security. And in this case, there is no such equation. According to the IAEA and independent experts, Iran is several years away from the capability to produce HEU for a handful of weapons, and many years away from the capability to deploy an arsenal of deliverable weapons. A leader in Iran, not necessarily the controlling figure, has engaged in belligerent rhetoric. This is deplorable, but it does not establish a threat to the peace There has also been belligerent rhetoric coming from Israel and the United States.

In its September 2005 resolution, the IAEA Board found that an absence of confidence in the exclusively peaceful nature of Iran’s nuclear program has given rise to questions that are within the competence of the Security Council, as the principal organ bearing responsibility for the maintenance of peace and security. This does not amount to a finding of a threat to peace and security, which of course is in any event the responsibility of the Council. Note that the UN Charter itself makes a distinction between situations that are likely to endanger peace and security and those where there is a threat; that is the difference between Chapters VI and VII.

If there is no threat to peace and security, there is no basis for a Chapter VII resolution.

That leaves the question, how should the Security Council deal with situations of non-compliance?

One approach would be for the Council to do nothing. While preferable to a Chapter VII resolution, it is not desirable.

First, a stalemate would set the stage for the United States to pursue, outside the UN, a widening and intensification of sanctions against Iran. The United States will also pursue its policy of isolating Iran and promoting regime change through media efforts, support for civil society and opposition groups, and probably covert action aimed at the nuclear program and stimulating ethnic conflict. None of this is likely to persuade Iran to give up its enrichment program, and voices in Iran calling for withdrawal from the NPT and pursuit of nuclear weapons, not just enrichment capability, will be strengthened. A stalemate could also lead down a road ending in U.S. military action – a possibility not to be underestimated, despite conventional wisdom.

Second, a stalemate would leave the nuclear non-proliferation regime in disarray. The IAEA Board has only limited authority to take enforcement measures. It can deprive a state of privileges and cooperation under the IAEA Statute. There is no NPT governance structure, like an Executive Council. In theory, a review conference or other meeting of states parties could take action, but this appears unlikely in the near term. This leaves the Security Council as the backstop for the regime.

For these reasons, the Council and its elected members should consider a non-Chapter VII resolution. Under the terms of Chapter VI, the Council may make recommendations with respect to a dispute the continuance of which is likely to endanger the maintenance of peace and security. While the term “recommendations” has an implication of non-bindingness, it is also the case that under Article 25 members agree to carry out decisions of the Council. Article 36, in Chapter VI, provides that the Council may recommend “appropriate procedures or methods of adjustment.” It may be objected that Chapter VI has typically been used for situations in which governments consent to UN peacekeeping. True, but remember also that peacekeeping was an innovation, not really provided for by Chapter VI. Similarly, the Council could innovate regarding questions of compliance with treaty regimes not rising to the level of threats to peace and security. If Chapter VI is deemed inappropriate, the Council could also refrain from referring to either Chapter VI or Chapter VII and simply adopt a resolution responding to the current situation.

What could a resolution do? Some options:

1) Pursuant to or in the spirit of Article 36, the Council could decide that the IAEA, the Secretary-General, appropriate countries – for example a NAM representative, an EU representative, Russia, China, and the United States – should negotiate with Iran. Or the Council could establish a mediation commission.

2) The Council could determine that in the Iran situation, or more generally in a situation of non-compliance with a non-proliferation/disarmament regime, the authority of the IAEA or the relevant body is expanded appropriately to allow resolution of issues of non-compliance.

3) The Council could express disappointment at Iran’s failure to respond to the presidential statement, and call on Iran to make rapid progress on outstanding issues by the next IAEA Board meeting in June and to work with relevant parties to find a mutually acceptable solution to the issue of Iran’s enrichment program and the supply of nuclear fuel.

So far as a suspension of uranium enrichment and other CBMs, while clever drafting of the February 2006 IAEA Board resolution and the March presidential statement has obscured the matter, so far the measures have been voluntary. A binding resolution requiring Iran to implement the measures would heighten the confrontation. While cessation of enrichment activities would be desirable, confrontation instead of negotiation is not. The Council should therefore exercise caution in this regard.

What about sanctions? It seems to be accepted now that imposition of sanctions is within the discretion of states. So similarly perhaps the Council could at some point authorize sanctions in a non-Chapter VII resolution. I refer you here to resolution 792 (1992) regarding Cambodia. Without invoking Chapter VII, the Council called on states to prevent petroleum products from reaching the Khmer Rouge and requested respect for a moratorium declared by the Cambodian Supreme National Council on the export of logs. Admittedly these measures arose out of an internal struggle in Cambodia, but a flexible approach regarding sanctions is nonetheless indicated. In any case, however, recourse to sanctions does not appear to be the wise course now, as it would just further escalate non-productive confrontation with Iran.

There are no doubt other creative techniques the Council could adopt. I encourage you to consult widely with member states, and to call for an open debate at the earliest opportunity, in the interest of finding the best path forward. I also encourage you to work outside the Council to persuade Iran to adopt a cooperative attitude. In particular, for Iran to declare a pause in enrichment activities would work wonders at the present moment.

Let me turn now to the nature of Iran’s non-compliance. This is not as straightforward a matter as one might expect. Article III of the NPT requires non-nuclear weapon states to accept safeguards, “with a view to preventing diversion of nuclear energy from peaceful uses to nuclear weapons.” It further requires “procedures for the safeguards” to be “followed.” Iran’s safeguards agreement with the IAEA provides that the objective of safeguards is “the timely detection of diversion of … nuclear material from peaceful nuclear activities” to unknown use or use in weapons. It further provides (Article 19) that if the Agency is not able to verify that there has been no diversion of nuclear material to weapons, the reports referred to in Article 12 of the IAEA Statute may be made. Those are reports of “non-compliance” made to the Security Council and General Assembly.

The IAEA has been crystal clear that there is no evidence of diversion of declared nuclear materials to weapons. It has also said that that it has not reached a conclusion regarding undeclared nuclear materials or activities, but that doing so is normally a time-consuming process. So far as I am aware, nobody is contending that undeclared materials have been used for weapons.

Nonetheless, the September 2005 IAEA Board resolution made a finding of “non-compliance in the context of” Article 12 of the IAEA Statute, based upon Iran’s “many failures and breaches of its obligations to comply” with its safeguards agreement as set forth in the November 2004 IAEA report. The vague language “in the context of” reflected the fact that no reference to diversion of materials, or uncertainty about diversion, was warranted. However, Iran had engaged in a pattern of concealment of extensive activities involving all aspects of the nuclear fuel cycle. The Board was in effect adopting a common sense view that in this case the pervasive concealment went beyond violating reporting requirements to constituting non-compliance.

At this point the finding of non-compliance is entrenched. But it is well to keep in mind two points in thinking about how the Council should address this particular non-compliance situation.

First, the non-compliance here does not involve, as the model safeguards agreement and Article III of the NPT seem to contemplate, diversion of materials to weapons or an inability to determine there is no diversion.
Second, since Iran’s failures to report nuclear activities came to light, Iran has in fact substantially cooperated with the IAEA to rectify those failures. Here I quote Director ElBaradei, speaking to the Carnegie Non-Proliferation Conference last November: “Over the past two and one-half years, we have compiled a detailed picture of most aspects of Iran’s past and current nuclear programme.” ElBaradei went on to say that there still remain issues to be clarified, and that transparency from Iran is therefore essential. But that part of the story is well known; I want to emphasize that Iran has been cooperating to the extent that ElBaradei could refer to development of a “detailed picture of most aspects” of Iran’s program. The September 2005 IAEA Board finding came in the context of the breakdown of E3/Iran negotiations and the resumption of uranium conversion activities, not Iranian non-cooperation with IAEA investigations. Indeed, as the resolution noted, the Director General stated that “good progress has been made in Iran’s correction of the breaches and in the Agency’s ability to confirm certain aspects of Iran’s current declarations.”

In summary, the Council is now charged with responding to a situation in which a member state has been found to be in non-compliance with requirements of a non-proliferation and disarmament regime. This is not unprecedented; North Korea presents another such situation. In the case of Iran, unlike North Korea, no question of diversion of materials is involved, there is no threat to peace and security, and a Chapter VII resolution is not warranted. The Council – and its elected members – should strive to make a creative response that both productively addresses the Iran situation and also sets a good precedent for an effective Council role in future cases of non-compliance. The elected members have a special role. You are not only representatives of national interests, or of regional or political affiliations; you are also the elected representatives of all members of the United Nations, and effectively of the peoples of the world.

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