Global Policy Forum

By Michael Spies and John Burroughs

Balking at Iran's request to be allowed until August 22 to respond to the proposal put forward on June 6 by the permanent members of the UN Security Council and Germany, the Security Council passed resolution 1696, making mandatory Iran's suspension of all enrichment-related activities and reprocessing activities, including research and development. In our view, this was an unwise course of action. A better approach would have been to await Iran's response to the June proposal of the P5/Germany.

The resolution tabled by the UK and France resumed Security Council engagement in the question of Iran's nuclear program, put on hiatus after the two countries circulated a similar resolution in May. The May draft resolution was put aside due to disagreements among the P5 and in order to undertake another effort to resuscitate negotiations. On June 6, the P5 plus Germany presented Iran with a package of incentives, intended to persuade Iran to suspend indefinitely its uranium enrichment program and construction of a heavy water reactor. After becoming impatient with the length of time Iran required for responding to the proposal, earlier this month (July 6) the P5 states plus Germany decided to refer the matter back to the Security Council. The stumbling block for commencement of negotiations appeared to be the proposal's precondition of suspension of the enrichment program.

Spurred by the U.S./E3, the Council has now undercut what might be the last opportunity to achieve a negotiated solution without confrontation. The first casualty of the Council's decision to escalate the situation will likely be the June proposal. Prior to the Council's action, Iran's foreign ministry stated, "if any resolution is issued against Iran … the package would be left off the agenda by Iran," adding that it would "confront the region with more tension." The Iranians have unequivocally stated that they would not be compelled to comply with any resolution making suspension mandatory, thereby almost guaranteeing the continued escalation of the situation.

Qatar, the lone Arab state on the Security Council, sharing the belief that the Council's action on Iran would increase tension in the region, provided the single vote opposed to the resolution. Despite its concerns over Iran's nuclear intentions and its close proximity across the Persian Gulf from Iran's nuclear power plant under construction at Bushehr, the Qatari ambassador stated that he did not approve of the Council proceeding with the resolution while the region was "in flames". He further added that there would be no harm in waiting a few days to assess Iran's willingness to cooperate, especially in light of the fact that Iran has not yet rejected the proposal.

The Resolution

Resolution 1696 provides that the Security Council is acting "under Article 40 of Chapter VII of the United Nations in order to make mandatory the suspension required by the IAEA." Article 40 concerns interim measures aimed at preventing "aggravation" of a situation the Council has determined to pose a threat to the peace under Article 39. Departing from an orthodox reading of the Charter, the curious formulation employed by the present resolution utilizes Article 40 to make binding the Security Council's demands upon Iran. U.S. Ambassador Bolton foreshadowed this unusual move in a Security Council Stakeout on July 25, saying: I think what you're going to see increasingly is wording that's different in the resolutions and that the notion that you have to have an ‘abbra cadabra' in a resolution to make it binding. It may be good practice, but it's not a requirement. There are a variety of ways in which the Security Council can manifest the intent to adopt a binding resolution, and I think that is likely to be the pattern in the future.

The use of Article 40 makes the resolution less emphatic in its invocation of Chapter VII of the Charter than the May draft. The reference to Article 39 was deleted, which Russia reportedly wanted done, apparently in order to lessen the impact of the resolution as a Chapter VII matter that could eventually lead to use of force. Notably the word "threat" is entirely absent in the resolution. Again, under an orthodox view of the UN Charter, a binding resolution under Chapter VII requires a finding, under Article 39, that a given situation constitutes a "threat to international peace and security". Such a finding under Article 39 also grants the Security Council the authority to adopt sanctions under Article 41 or employ military force under Article 42. Previous drafts of the present resolution stated in their preambular paragraphs that the Council was "mindful" of the threat presented by Iran's nuclear program. Also striking is that the word "decides" appears nowhere in the resolution, another softening of its tone.

As the culmination of U.S. efforts to make Iran's suspension mandatory, operative paragraph 2 of the resolution demands (instead of "decides") "that Iran shall suspend all enrichment-related and reprocessing activities, including research and development." Remarkably, this provision drops the provision to include a demand for Iran to also halt construction of the heavy water reactor at Arak. Reactors of such designs are more ideal for harvesting weapons-grade plutonium than the light water reactors Iran is constructing as part of its nuclear power program. Although the issue of the heavy water reactor has not garnered much attention in the media, it represents at least as large a proliferation risk as Iran's beleaguered enrichment program. The decision to focus exclusively on the issue of enrichment, the sole issue that Iran has declared to be its red line, seems suspect if the true intention of the Security Council is to prevent an aggravation of the situation. Despite the stated intention of Article 40 it is questionable whether the present action taken by the Security Council will help to prevent an aggravation of the situation.

The present resolution does not impose sanctions on Iran. It provides that absent compliance by Iran, measures not involving the use of force will be considered – i.e., economic sanctions - under Article 41, underlining "that further decisions will be required should such additional measures be necessary". The resolution thus seeks to avoid any implication that use of force may be warranted as a response. This is to the good, especially given the way the United States and United Kingdom abused past Council resolutions in their attempts to justify their invasion of Iraq.

Ironically, despite the rush for the Council to take action against Iran, the deadline for compliance is August 31, nine days after Iran said it would provide a response to the proposal, August 22. This raises the question, mentioned by the Qatari ambassador, of why the Council chose to act now in lieu of waiting three weeks for the Iran's response to the proposal. As discussed below, the urgency of this resolution is artificial, seems likely to aggravate the situation, despite the invocation of Article 40, and takes on a somewhat sinister air in light of the Council's ongoing inability to take meaningful action, due to the U.S. position, to respond to the violence in Lebanon, Gaza and Israel.

The resolution seems to represent a sort of bridge between Chapter VI and Chapter VII. Chapter VI of the Charter provides that in situations "the continuance of which is likely to endanger the maintenance of international peace and security," the Council may "recommend appropriate procedures or methods of adjustment." The resolution just adopted on Iran leans in this direction in lack of a finding a finding of a threat to the peace, its virtual exclusion of the possibility of Council authorized use of force, and in its reference to the importance of political and diplomatic efforts to find a negotiated solution. The resolution adopts elements of Chapter VII in its identification of the possibility of sanctions should Iran not comply with the Council's directives. Some would say that, despite the lack of the word "decides," it also draws on Chapter VII in imposing requirements on Iran, which is not explicitly contemplated by Chapter VI. However, it can also be argued that Article 25 of the Charter, providing that states agree to carry out the decisions of the Security Council, and the Charter as a whole confer authority on the Council to make binding decisions whether or not a finding of a threat to the peace is made under Chapter VII. Conceivably, the resolution represents an evolution in Security Council practice in responding to issues of compliance with a non-proliferation/disarmament regime that do not rise to the level of threats to international peace and security.

Policy Considerations

As noted above, Article 40 is tied to Article 39 as part of Chapter VII, and unless the resolution truly is a new species, therefore implies a finding of a threat to security. However, contrary to the insistence of some states on pursuing this matter in the Security Council under Chapter VII, there is no basis for a finding of a threat to international peace and security. According to the IAEA, independent experts and the director of U.S. Intelligence, Iran remains several years away from the capability to produce HEU for single weapon, and likely at least a decade away from the capability to deploy an arsenal of deliverable weapons, should it choose to do so.

Despite the lack of an imminent threat posed by Iran's present enrichment research program, the single-minded objective of the present draft is make mandatory what had been regarded until recently as voluntary, non-binding, confidence-building measures (see for example the IAEA board's September 2005 resolution). In its March 2006 safeguards report on Iran [GOV/2006/27] the IAEA made the unusual effort to stress that "safeguards obligations and confidence building measures are different, distinct and not interchangeable." The report further states that "the implementation of confidence building measures…" which has been the focus of UN Security Council action, "…is no substitute for the full implementation at all times of safeguards obligations." The IAEA thus suggests that confidence building measures, such as the suspension of enrichment activities, are not as important as the safeguards, the purpose of which is to prevent the diversion of nuclear materials to military use.

The resolution assumes that the IAEA Board "required" Iran to suspend its enrichment related activities. However, it is doubtful that the Board has this authority under the IAEA Statute. Furthermore, while clever drafting of the IAEA Board's February 4 resolution has obscured the matter, it falls well short of imposing "requirements" upon Iran. In the first operative paragraph, the Board refers to the need to build confidence and "deems it necessary" for Iran to take certain steps. Operative paragraph 5 refers to "non-legally binding" and "voluntary" confidence building measures.

The resolution also refers to the fact that the IAEA has not yet been able to determine the absence of undeclared nuclear activities in Iran. However, the IAEA certifies the absence of undeclared nuclear activities only for states that implement the Additional Protocol. For Iran the IAEA has stated this process will take longer due to the history of concealed nuclear activities. The IAEA statement that it is "not yet in a position to conclude that there are no undeclared nuclear materials or activities," which is presently true for Iran, is also true for 40 other states including Canada, the Czech Republic, and South Africa. This statement is also true for Brazil, which has not signed an Additional Protocol, and, almost unnoticed, began operation of its first commercial scale enrichment plant this year. For some it is tempting to declare, based on the inability of the IAEA to presently draw a conclusion on the absence of nuclear activities, that Iran continues to operate concealed facilities and that any such facilities must be for a military program. But the IAEA has cautioned that the lack of a conclusion does not imply suspicion of undeclared nuclear materials and activities, as the matter is frequently spun in the media and by some governments.

Finally, it should be understood that since Iran's failures to report nuclear activities over nearly two decades came to light in 2002, Iran has in fact substantially cooperated with the IAEA to rectify those failures. IAEA Director ElBaradei, speaking to the Carnegie Non-Proliferation Conference last November, said: "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. That part of the story is well known; it also must be grasped 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.

Looking Forward

Despite its almost certain guarantee to aggravate the matter, from the interpretation of the resolution expressed by the Russians, Iran does have an incentive to take immediate steps to help deescalate the situation. The Russian Ambassador stated that the resolution should be viewed as an interim measure, intended to facilitate the IAEA's ability to conclude its investigation into Iran's past nuclear activities and to clarify all outstanding issues. According to this view, the Security Council has linked the matter of suspension to the IAEA process. Since Iran revoked its voluntary implementation of the Additional Protocol, the IAEA has noted that it has been unable to follow-up on and make progress in its investigation, and to work toward drawing a conclusion that no undeclared nuclear activities or material exist in Iran. If Iran were to ratify the Additional Protocol and make rapid progress toward facilitating the conclusion of the IAEA investigation, it could go a long way toward restoring confidence in its intentions, regardless of the status of its enrichment program. More generally, despite its understandable resentment of the high-handedness of the Security Council, Iran would be well advised, and the non-proliferation regime would be well served, if it were to suspend enrichment throughout the duration of negotiations, and enter into negotiations as proposed in the package, which does appear to promise real benefits for Iran's cooperation. At the present juncture, this does not appear a likely outcome in the near term.

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