International Law and the Iran Impasse

by Aslı Bâli | published December 16, 2012

For more on Iranian thinking about the nuclear issue, see Aslı Bâli's interview with former negotiating team spokesman Hossein Mousavian, “‘Iran Will Require Assurances,’” Middle East Report Online, May 16, 2012.

On any given day, provided her paper of choice still features international coverage, the average American newspaper reader can expect to be treated to one or two articles on attempts to halt advances in Iran’s nuclear program. These articles might cover efforts to levy fresh sanctions against the Islamic Republic; they might relay news of discussions among Iran’s primary interlocutors on the nuclear question, the five permanent members of the UN Security Council plus Germany (the so-called P5+1), about diplomatic overtures. Or the stories might echo the mounting calls for airstrikes or other military action to delay and disrupt the progress of Iranian nuclear research. Until October, indeed, breathless reporting on the increasing likelihood of Israeli military strikes on Iran was daily fare. The brakes were placed on this speculation in time for the US presidential elections, but the brief respite has come to an end.

Israel, the United States and their principal Western partners all now seem agreed upon a spring 2013 make-or-break deadline by which Iran must accept a Western-backed deal or face an array of threatened military operations aiming to damage or destroy its nuclear facilities. In the meantime, a crippling international sanctions regime, reinforced by even more extensive bilateral sanctions imposed by the US and its allies in Europe and Asia, chips away at the Iranian economy. Sporadic acts of sabotage kill off the cadre of physicists and other nuclear scientists who contribute to Iran’s nuclear program.

Amidst these developments, the one question that is rarely asked is what exactly Iran has done to occasion all of this international concern and pressure, let alone the rumblings of imminent attack. In one sense, the answer to this question is obvious: Because international actors fear that Iran wants to build an atomic bomb, they perceive its nuclear program as an unacceptable threat to Iran’s neighbors, especially the Gulf Arab monarchies and Israel. Put differently, the specter of an Iranian bomb strengthens the Islamic Republic’s claim to be a regional hegemon and counterweight -- read, political challenge -- to the pro-American distribution of power in the Middle East.

Yet if these answers seem self-evident, they do not answer another critical question. The UN Security Council is supreme arbiter of international law, and its repeated interventions on the Iranian nuclear issue have created an ambient sense that what Iran is doing is illegal. In what sense are Iran’s nuclear activities unlawful? In other words, to what extent does the illegality of Iran’s nuclear program legitimate the regime of sanctions and punishment to which the country has been subjected? The answer to this second-order question is far less straightforward and points to the gray zone of international law where politics most directly shapes, and at times even trumps, the normative order.

NPT Law

The first document relevant to the Iranian nuclear impasse is the Nuclear Non-Proliferation Treaty (NPT) of 1968, to which Iran is a signatory. Article IV of the NPT specifies the rights of state parties to the treaty to engage in nuclear research geared toward peaceful uses, such as power generation or production of isotopes with medical utility. In 1975, Iran also signed a safeguards agreement with the International Atomic Energy Agency (IAEA), by which the UN nuclear watchdog is authorized to conduct regular inspections to verify that state parties are not engaged in pursuit of an explosive device.

From the time that it first revealed -- under pressure from prior revelations by an Iranian dissident group -- that it had resumed its nuclear program in 2002, Iran insisted that its activities were intended for the development of a civilian nuclear energy program. More specifically, Iran claimed that its centrifuge-based uranium enrichment program was designed to yield low-enriched uranium as fuel for nuclear power plants, as opposed to the high-enriched uranium that would be necessary to produce weapons-grade fuel. Further, the Iranians insisted, such an enrichment program was entirely consistent with their rights and obligations under Article IV of the NPT.

While some of Iran’s activities prior to 2002 might have involved technical infractions under its IAEA safeguards agreement, none of its activities amounted to a violation of its obligations under the NPT. Iran had begun construction of a heavy water production plant at Arak and a pilot-scale gas centrifuge enrichment plant at Natanz without reporting either facility to the IAEA. As of 2002, however, the Arak facility was still under construction, and inspections later confirmed that no nuclear (fissile) material had yet been introduced to the plant at Natanz. The unreported construction did not constitute a violation of either the NPT or the IAEA safeguards agreement so long as no fissile material was there. Frequent IAEA inspections since 2003 have uncovered other undeclared activities that Iran was required to make public under the safeguards agreement, but the underlying activities are not prohibited under the NPT. [1]

Subsequent to 2003, Iran’s nuclear program has been the subject of a stepped-up inspections regime, with the IAEA spending more inspection man-hours in Iran in the last nine years than in any other country in its history. Iran initially agreed voluntarily to more intensive inspections required under an Additional Protocol to the IAEA safeguards agreement, something it was not technically obliged to do because it had never ratified the Additional Protocol. The country stopped cooperating with the Additional Protocol requirements in February 2006, after the IAEA Board of Governors referred its file to the UN Security Council. Since that time, the IAEA’s inspection powers have been confined to those specified under the safeguards agreement.

The Agency has made 39 reports to its Board of Governors concerning the Iranian nuclear program, the most recent in November 2012. While the reports reflect concerns that the Agency has not fully verified Iran’s past and current activities, each report confirms that there is no evidence that Iran has diverted nuclear materials to military purposes.

Accordingly, as a matter of international law under the NPT, for years there was no basis for the UN Security Council or any of its members to demand that Iran end its uranium enrichment program. So long as it was conducting its enrichment activities exclusively in declared sites and under IAEA safeguards, Iran was in compliance with the core international rules governing nuclear non-proliferation.

UN Security Council Law

This picture changed, however, in July 2006 when the UN Security Council adopted Resolution 1696 under its mandatory Chapter VII powers. UNSC 1696 required that Iran desist from all uranium enrichment activities, based not on a finding of Iranian violation of NPT obligations but rather on the binding authority of the Security Council under the UN Charter, to which Iran is, of course, also a party. Article 25 of the Charter obliges all member states of the United Nations to comply with the binding resolutions of the Security Council. As a result, UNSC 1696 imposed additional obligations on Iran under international law, beyond its NPT obligations. Claims that Iran has violated international law stem from the Security Council’s orders -- and Iran’s refusal to suspend its enrichment program -- as opposed to any underlying facts that prove Iranian proliferation misdeeds.

Indeed, by issuing Resolution 1696 the Security Council overrode the existing legal regime governing nuclear non-proliferation by dictating requirements of Iran that are not found in that body of law. This move was surprising because at the time that the resolution was passed, Iran was considering an offer from its counterparts in nuclear negotiations, the P5+1. The P5+1 had provided Iran with a proposal for a negotiated end to the nuclear standoff in June 2006 and Iran had promised a response by August. Rather than awaiting that response, the Security Council powers chose unilaterally to alter the negotiating landscape and the legal parameters of the dispute over the Iranian nuclear program. They issued a resolution that required that Iran suspend its uranium enrichment program and that it endorse the P5+1 proposal. The legality of this resolution in the absence of proof that Iran had a nuclear weapons program depended on the view that merely the possibility of illicit intent on the Iranians’ part amounted to a threat to international peace and security. By thus attempting to coerce Iranian capitulation, the Security Council simultaneously undercut the Iranian argument that its program was in compliance with international law and set back the likelihood of any negotiated resolution, since its unilateralism generated an appearance of bad faith, predictably provoking a defensive response from the Iranian side. Prior to the resolution, Iran’s position had been that it was willing to agree to suspension of its enrichment program, as an outcome of negotiations, not a precondition. Following the resolution, Ali Larijani, Iran’s chief nuclear negotiator at the time, gave a Tehran press conference declaring that Iran would never agree to suspend its uranium enrichment activities. [2]

Each additional round of action in the Security Council subsequent to UNSC 1696 has produced an increasingly confrontational atmosphere between Iranian nuclear negotiators and their counterparts in the P5+1. In his memoir, the former director-general of the IAEA, Mohamed ElBaradei, details his view that the escalation of sanctions from the symbolic to the punitive during this period raised the stakes of the Iranian nuclear crisis toward a point of no return. [3] Be that as it may, the succession of seven Security Council resolutions -- 1696 (July 2006), 1737 (December 2006), 1747 (March 2007), 1803 (March 2008), 1835 (September 2008), 1929 (June 2010) and 1984 (June 2011) -- now constitute the legal framework for the Iranian nuclear program, superceding Iran’s obligations under the NPT.

Legality vs. Legitimacy

As a matter of international law, there is no doubt concerning the legality of the UN Security Council’s actions. It has binding authority under Chapter VII of the UN Charter to issue resolutions compelling Iranian compliance with its wishes. The legitimacy of these resolutions is another question entirely. The first of these coercive Chapter VII resolutions was issued at a time and in a manner that served to forestall rather than encourage a diplomatic solution to the international crisis over the Iranian nuclear program. Further, the UN Charter requires, as a predicate to the exercise of Chapter VII powers by the Security Council, a finding of a threat to international peace and security.

The default posture of the international legal order and the international security system is based on the consent of sovereign states to rules that they participated in shaping. The exception is the exercise of coercive authority against sovereign states by the Council to deter or address threats to international peace. The Council is vested with that authority in order to deter the greater harm associated with such threats.

In the case of the Iranian nuclear program, however, such a determination of threat can only be grounded in a reading of the invidious intent of the Iranian government to construct nuclear weapons. There is no evidence that the Iranian government possesses such weapons or that it has sought to divert nuclear materials to military purposes. Indeed, for all the technical omissions in the Islamic Republic’s mandated reporting to the IAEA, no report issued by the Agency has ever found any proof that its nuclear materials are being used in unauthorized ways. As a result, the Security Council is using its coercive authority to deter a potential threat to the international system based only on suspicions about what Iran may do at a future time.

In the absence of evidence of Iranian wrongdoing, the sets of punitive sanctions undermine the legitimacy of the Council’s resolutions in the eyes of much of the world, notably other non-nuclear weapon states. (It is never lost on those governments that five of the P5+1 states -- all but Germany -- maintain a nuclear arsenal or that a main would-be enforcer of non-proliferation in the Iranian case, Israel, is a nuclear weapon state that refused to sign the NPT.) The rejection of the Council’s actions in these quarters is manifest in the multiple statements and resolutions adopted by the Non-Aligned Movement in favor of Iran’s rights under the NPT since 2006. The limping negotiation process, together with the precipitousness of the Council’s actions in 2006, further attenuates the perceived legitimacy of the authority asserted by the Council.

De Maximis vs. De Minimis

More than six years have passed since the Council first began imposing coercive measures against Iran. The international sanctions regime applied to Iran under the UN Charter is supplemented by far more severe sanctions levied by some of Iran’s most important trading partners in Europe and Asia, in addition to the baleful effect of the exclusion of most Iranian banks from the international financial sector. During the same period, there has been little or no movement on the diplomatic front. Several opportunities to advance negotiations have been missed, in fact, due in part to the mutual distrust that has been exacerbated on both sides since the legal framework shifted from the NPT and the IAEA to the Security Council’s resolutions.

An example from 2010 illustrates the ways in which Security Council involvement continues to impede a negotiated solution. In the spring of that year, the governments of Brazil and Turkey -- both sitting as non-permanent members of the Security Council at the time -- sought to enter into talks with Iran. The goal was that Iran would ship more than half of its stockpile of low-enriched uranium nuclear fuel to Turkey, thus reducing the available stock that Iran could convert to a higher level of enrichment. Months earlier, attempts by the P5+1 to negotiate a similar deal as a confidence-building measure had collapsed. When the Brazilians and Turks launched their initiative, the principal P5+1 actors, and particularly the US, were in the midst of a push to build consensus for a new and tougher set of sanctions to be imposed on Iran by the Security Council.

Then, unexpectedly, the Brazilian-Turkish effort bore fruit. In the first breakthrough on the Iranian nuclear file since 2006, Iran, Turkey and Brazil signed the Tehran Agreement, calling upon Iran to ship over 2,500 pounds of low-enriched uranium to Turkey for storage. Instead of welcoming this agreement, however, the US treated it as a “deftly timed attempt to throw the sanctions effort off track.” [4] In a complete inversion of the apparent goals of the Council’s involvement, maintaining an international consensus to increase pressure on Iran was deemed more important than an agreement by the Islamic Republic to ship nuclear fuel out of its territory. As a result, the Tehran Agreement was stillborn and the Council passed Resolution 1929 -- imposing the toughest multilateral sanctions to date on Iran -- less than three weeks after the agreement had been signed.

From the Iranian perspective, Western powers vying against Iran for regional influence in the Middle East have made the UN Security Council their instrument for depriving the country of its rights under the NPT. So long as this framing of the international legal picture persists on the Iranian side, there seems little hope that the country will suspend its nuclear program. Absent internal political change in Iran, Tehran’s minimum requirement in any negotiation will remain some symbolic recognition of its legal rights under the NPT regime. On the other side, however, the P5+1 powers would likely be able to attain their minimum objective -- preventing Iran from developing a nuclear weapons capability -- without taking the maximalist position they currently express through Council resolutions, namely that Iran cease all uranium enrichment. Instead, if the international focus shifted to ensuring that any Iranian nuclear program remain de minimis and proliferation-resistant, a negotiated solution consistent with international law would be achievable.

Such a shift in position would be consistent with meeting the stated objective of checking Iran’s ability to pursue a nuclear weapons capability. It would not, however, meet the objective of definitively curtailing Iran’s regional role or shifting the balance of power in the region more decisively in favor of Iran’s adversaries. As a result, the resolution of the Iranian nuclear impasse lies in the strategic landscape of the Middle East, not in international law or international institutions.

Endnotes

[1] For a more detailed discussion of Iran’s legal obligations under the NPT, see Aslı Bâli, “The US and the Iranian Nuclear Impasse,” Middle East Report 241 (Winter 2006).
[2] Daily Times (Pakistan), August 28, 2006.
[3] Mohamed ElBaradei, The Age of Deception: Nuclear Diplomacy in Treacherous Times (New York: Metropolitan Books, 2011), pp. 191-213.
[4] New York Times, May 17, 2010.

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