The nuclear standoff between Iran and the International Atomic Energy Agency (IAEA) continued from 2003 to 2006. In that period, Iran on the one hand, submitted 1,000-page reports about its nuclear activities to the IAEA announcing that Tehrans nuclear program is not incompatible with the Islamic Republics obligations as per the Additional Protocol to the Non-Proliferation Treaty (NPT). However, the IAEA, on the other hand, continuously accused Iran of secrecy. The supervisory body claimed time and again that Iran should reveal information about its nuclear activities. As the conflict between the IAEA's claims and Iran's nuclear achievements continued, Tehran started to manufacture its own centrifuges and produce the yellow cake. As a result, the IAEA Board of Governors met in September 2005 to adopt a resolution which asked Iran to pass the Additional Protocol to the NPT in its parliament, stop its uranium enrichment activities and resume talks with the three European countries, known as EU3 or troika [including Britain, Germany and France]. Iran, however, noted that the Board of Governors resolution was illegal, urging the IAEA to take a purely technical and legal approach to Iran's nuclear program.In response, the IAEA noted that while reaffirming lack of evidence to prove diversion in Iran's nuclear energy program toward military purposes, it was still unable to verify the peaceful nature of those activities of which the IAEA was unaware. Therefore, the IAEA said, it was not able to categorically rule out lack of any diversion in Iran's nuclear program! The IAEA also alleged that based on the Article 8 of the Safeguards Agreement signed between Iran and the IAEA, Iran was obliged to provide the IAEA with information about both the nuclear materials it possessed, and the facilities where those materials were supposed to be used. The IAEA also noted that due to Iran's background for secrecy, it was not able to verify those activities which Iran had carried out without public declaration. Therefore, on the strength of Article 10 of the Safeguards Agreement between Iran and the IAEA, the nuclear watchdog asserted that it was in a position to refer Iran's nuclear dossier to the United Nations Security Council.
Finally, the Board of Governors approved a decision to report Iran's nuclear dossier to the UN Security Council through 27 ayes out of 35 member states, with three nays and five abstentions. Since that time, the decision has had many negative effects on the national security and national interests of the Islamic Republic of Iran.
Proof to non-legality of reporting Irans case to Security Council
The decision to refer Iran's nuclear case to the United Nations Security Council is bogged by a number of legal problems which have received less attention than they actually deserved. What follows is a brief discussion of those problems.
First: Non-compliance of Iran was never proven
According to the Statute of the IAEA the precondition for reporting Irans dossier to the Security Council should be noncompliance of the Iranian government with the NPT or the Safeguard Agreement between Iran and the IAEA. However, since the noncompliance of Iran with the said agreement was never proven, reporting Iran's case to the Security Council has been both non-legal and illegal.
According to Paragraph C, Article 12, of the IAEA Statute, the Agencys inspectors shall report any noncompliance to the Director General who shall thereupon transmit the report to the Board of Governors. The Board shall call upon the recipient State or States to remedy forthwith any noncompliance which it finds to have occurred. The Board shall report the noncompliance to all members and to the Security Council and General Assembly of the United Nations. According to this article, verification of noncompliance (diversion toward military purposes) is the necessary requisite for reporting a case to the Security Council. The task for the verification of the noncompliance has been assigned, according to this article, to the IAEA inspectors who should inform the Board of Governors of any noncompliance through the Director General of the Agency.
With this general rule in mind, lets have another look at Irans nuclear dossier. It is both clear and upheld by historical backdrop of Iran's nuclear case that in none of the Agencys reports has been a mention of noncompliance of Iran or diversion from peaceful nuclear activities by Iran. On the contrary, Mohamed ElBaradei, the former director general of the International Atomic Energy Agency, had frequently emphasized on lack of any diversion in the nuclear activities and materials which had been declared by the Islamic Republic of Iran.
The question is whether or not the mere inability to make sure about peaceful nature of a member states nuclear activities could be good ground to allow the Board of Governors to make the decision about reporting that member state to the UN Security Council?
On the other hand, the IAEA claims that noncompliance of Iran with its obligations has been verified because the Islamic Republic has not paid attention to the IAEA's decisions, including the Agencys demand on Tehran to suspend uranium enrichment and approve the Additional Protocol as per the resolutions adopted by the Board of Governors. As a result, the IAEA argues, Iran's behavior is a case of noncompliance with the Agencys rules and regulations and a cause of reporting the countrys nuclear case to the Security Council. Now, the main question is whether or not the Charter of the United Nations has specified that it is an undeniable right of the states to make the final decision about membership in international bodies and various regimes formulated by those bodies? If so, how a state could be forced into accepting a treaty or accede to an international organization? Can a states refusal to accede to such organizations or endorse their treaties, the decision about which has been left to the discretion of every state, constitute an instance of noncompliance with those treaties?
Second: Absence of any issue which falls within competence of the Security Council
Another condition for reporting Iran's case to the United Nations Security Council by the IAEA is to verify that there is a threat posed to international peace and security. This issue has been clearly stipulated in the Statute of the UN nuclear watchdog. According to Paragraph 4, Article 3 of the Statute of the IAEA, if in connection with the activities of the Agency there should arise questions that are within the competence of the Security Council, the Agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security.
Therefore, the remarks by director general of the IAEA about lack of diversion and peaceful nature of Iran's nuclear energy program clearly prove that these activities pose no threat to international peace and security and, therefore, do not allow for the use of force against Iran. In better words, Iran's nuclear activities do not fall under the text of articles 40 and 41 of Charter VII of the United Nations Charter because those activities do not involve anything which could be considered a threat to international peace and security, including starting a war, breaching a cease-fire, or threatening the neighboring countries. On the contrary, the main discrepancy between Iran and the IAEA is a legal dispute about the interpretation and implementation of Article 4 of the Non-Proliferation Treaty for which a solution has been predicted in the Agencys instruments where a mechanism has been thought of to forge mutual agreement in such cases.
Third: IAEA's inability to verify lack of diversion has not been proven
According to Article 19 of the Safeguards Agreement between Iran and the IAEA, inability of the Agency to verify that there has been no diversion of nuclear material required to be safeguardedto nuclear weapons or other nuclear explosive devices, is another necessary requisite for reporting a case to the Security Council which is also in line with Paragraph C, Article 12 of the IAEA Statute (that is, the first reason mentioned herein). Before making such a decision, the Board of Governors should consider the degree of reassurance provided by measures taken as a result of the Safeguards Agreement, and give the Iranian government a reasonable opportunity to provide any necessary reassurance (including a report about the IAEA's inability to verify diversion). In better words, the IAEA has simply asserted that it is unable to supervise and provide reassurances about Iran's secret activities and those activities which may be undertaken by Iran and about which the Agency has no information. Therefore, the IAEA has argued, Irans nuclear dossier should be reported to the UN Security Council.
This stands in stark contrast to the fact that the IAEA director general has noted in all his reports that the IAEA has been able to verify no diversion in nuclear material and activities declared by Iran and has found no evidence to prove that those material and activities have been diverted toward military purposes.
Fourth: Not all legal steps have been taken in dealing with Irans nuclear dossier
Another legal principle which should be observed in such cases is to comply with the rules of an institution when dealing with a legal case. Various mechanisms have been worked out and are in use by the IAEA for seeing into a case. According to the Statute of the IAEA, taking advantage of all those mechanisms is among the main principles which should be taken into account for the peaceful resolution of any dispute between a given member states and this international institution. These mechanisms start with inability of the IAEA inspectors to verify noncompliance of a member state followed by their report to the director general, reporting of the issue to the Board of Governors, and requesting the violating member state to take corrective measures within a reasonable period of time. If the violating member state fails to comply with the IAEA's decision, then punishments can be administered by the world body as per Paragraph C, Article 12 of its statute. This process has not been observed with regard to Irans nuclear dossier.
According to the Statute of the IAEA and the Safeguards Agreement between Iran and the IAEA, in order for the UN Security Council to be able to enter a case, the IAEA Board of Governors should adopt a resolution which should also provide a thorough account of the case. This procedure has not been observed with regard to Iran. The decisions made by the Board of Governors clearly show that the aforesaid procedure has not been respected by the member states of the Board. Therefore, the measure taken by the Board of Governors through its resolution adopted on February 4, 2006, as well as the director generals report to the Security Council on March 8, 2006, have been based on political motivations, and have not been based on any principles of the IAEA Statute as well as the Safeguards Agreement between Iran and the IAEA. Therefore, bringing the Security Council into the Islamic Republic of Irans nuclear case has been totally incompatible with the organizational requirements as well as the procedural work of the IAEA on the basis of its Statute and the Safeguards Agreement because essential conditions and fundamental legal provisions for getting the Security Council involved in cases discussed by the IAEA have not been observed.
Conclusion
A review of the approach taken by the IAEA to Irans nuclear case will show that reporting Irans case to the Security Council by the Board of Governors of the IAEA has set a new precedent in the way that such cases are reported to the Security Council. This method, of course, has no place in the Statute of the IAEA and the Safeguards Agreement between Iran and the IAEA. On the other hand, after it was taken up by the Security Council, Irans nuclear case actually entered a new phase of its course which is a function of its own specific conditions and regulations.
By US Close Up
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