North Korean safeguards

According to RIA Novosti, North Korea may allow IAEA inspectors back into the country if sanctions are lifted and if relations with the United States improve. The statement cannot be dismissed, despite its very conditional nature. Whether the North Koreans want to reapply their comprehensive safeguards agreement with the IAEA remains to be seen. According to article 26 of the agreement, it only remains in force as long as North Korea remains a party to the 1968 Nuclear Non-Proliferation Treaty. North Korea withdrew from the treaty in 2003, and stated that it is 'is totally free from the binding force of [its] safeguards accord'. The IAEA itself still lists the DPRK safeguards agreement as being in force.

While a reapplication of comprehensive safeguards would be preferable, it is more likely that future inspections in the DPRK will be conducted on an ad-hoc basis.

Australian uranium

The Australian government may go ahead with its controversial uranium sale to China, after a parliamentary committee has given permission to proceed. The full report of the committee is available online. The proposed agreement is relatively short, with 15 articles and five annexes.

In his dissenting opinion, Senator Andrew Bartlett writes that the ‘IAEA safeguards system still suffers from flaws and limitations, despite improvements over the past decade’. However, his criticism is quite inappropriate for the question of whether Australia should export.

The main problem facing uranium exports to China is not that nuclear safeguards are inadequate to detect a diversion of nuclear materials from a declared facility for a weapons programme or for purposes unknown. Contrary to Bartlett’s assertion, they are quite capable of doing just that. Nuclear safeguards are quite effective, which has been highlighted by, for instance, the now disbanded US Office of Technology Assessment.

The problem is that no safeguards system can ‘prevent an overt national seizure of a facility and its operation for weapons purposes’ (see p. 20). This is especially true in a nuclear weapon state, which is permitted to use nuclear materials for weapons purposes. In a nuclear weapon-state such as China, the state itself decides which facilities should be declared and inspected and which should not. Even a cursory reading of China’s safeguards agreement and its additional protocol makes that clear. According to the committee report, this imbalance is corrected by China committing to put all facilities where Australian material is used under safeguards. A bilateral verification scheme is also envisioned (so-called fallback safeguards).

The sticking point is not safeguards. They are sufficient to do the job. The point is rather that safeguards cannot stipulate what China is allowed to do with its domestic uranium reserves. As noted in the report, any supply of uranium to China will free up its domestic uranium for use in weapons. The committee alludes to this three times, but refuses to reach a conclusion. Apparently, what China does with its own uranium is not Australia’s business.

Significant development in establishment of CTBT monitoring system

The Russian Federation Council has ratified the country’s facility agreement with the CTBTO. Such agreements are instrumental for the development of the verification regime, since it grants the CTBTO the necessary legal authority to carry out work on their facilities in the country. The agreement also regulates the conduct of activities in respect to several International Monitoring System stations scheduled to be placed on Russian territory.

These IMS stations transmit seismic, hydroacoustic and radionuclide data to the CTBTO, which has its headquarters in Vienna, Austria. The data is used to detect, locate and analyse events, which are suspected to be nuclear test explosions. The data is processed immediately, with the first automated products being released within two hours. CTBTO analysts then review the information and prepare quality-controlled event bulletins.

The Russian Federation hosts a significant number of facilities, including 13 auxiliary and six primary seismic stations, four infrasound stations, one radionuclide laboratory (in Moscow) and eight radionuclide stations. The majority of these facilities are located near Russia’s nuclear test sites, which have been shutdown for more than a decade.

Six party talks and verification

Six party talks are scheduled to resume in Beijing, China, on 18 December 2006, according to the Associated Press. All parties, China, Russia, Japan, North Korea, Russia and South Korea, have welcomed the next round of talks, even though some friction still exists between Japan and the DPRK.

The last round of talks was held 9-11 November 2005, and produced a joint statement. In this statement, the parties, amongst other things, unanimously reaffirmed that the goal of the Six-Party Talks is the verifiable denuclearization of the Korean Peninsula. The parties also agreed that all commitments agreed in the joint statement should be implemented in a phased manner in line with the principle of "commitment for commitment, action for action". While the principles agreed on sounds fine on paper, they are going to be very difficult to implement. The objective to achieve a verified denuclearization of the peninsula will not only entail the verification of DPRK's nuclear disarmament, it will also involve the development of means to satisfy North Korea that there are no US nuclear weapons on South Korean territory.

Read this article by Kenneth Boutin to get view on how effective verification in the DPRK may be set up and implemented. Also read this article by Leon V. Sigal, which elaborates on how a missile accord with the DPRK may be verified. This Congressional Research Service report on North Korea and the Six-Party Talks is also good background reading. For yet another view elaborating on verification of North Korean disarmament, read this paper by Duk-ho Moon.

Iran revising its relationship with the IAEA?

Iran claims that it will 'revise its relationship' with the International Atomic Energy Agency (IAEA) if the United Nations Security Council (UNSC) adopts a resolution sanctioning Iran for developing its nuclear programme. What is meant with this, precisely, is not clear. However, the statement sounds similar to the kinds of statements Iranian representatives did prior to it cancelling its provisional application of the additional protocol. The Iranian government did not bluff when it said that it would cease applying the additional protocol, so why should it bluff now? In the meanwhile, its neighbours call on Iran to cooperate fully with the IAEA, without specifying precisely what Iran is expected to do.

It remains unclear what Iran intends to do. There are several options open for the country. First, it could invoke article X of the 1968 Nuclear Non-Proliferation Treaty (NPT) and entirely withdraw from the treaty. It would be required to give notice to all other treaty members and the UNSC three months in advance, and it would need to state what 'extraordinary events' have 'jeopardized the supreme interests' of Iran. At the moment, it is difficult to foresee what grounds Iran could possibly invoke. North Korea, in its declaration, pointed up the threat from the United States, that the IAEA was a 'servant and a spokesman' for the United States, and that the NPT was being used by the US to implement a hostile policy towards the DPRK 'aimed to disarm it and destroy its system by force'.

A withdrawal from the NPT would release Iran from its non-proliferation commitments, but could also have severe consequences for the country's foreign relations. It would become difficult for its - admittedly few - allies to claim that its nuclear programme is peaceful. The move would also strengthen the resolve of the European Union and the United States to put an end to Iran's plans, quite possibly by the use of force. It could also trigger a move by Israel, which views Iran's nuclear programme as a major strategic threat. Iran would not benefit much from a withdrawal. While it could successfully argue that the nuclear issue now falls firmly within its sovereignty, it would find it difficult to get international assistance in developing its programme.

Second, it could interpret its Comprehensive Safeguards Agreement (CSA) narrowly, allowing Agency inspectors the access it is allowed under the agreement and in accordance with current IAEA practice. A fight between Iran and the IAEA Board of Governors is likely to ensue, which could only be settled ultimately by the formation of an 'arbitral tribunal' in accordance with article 22 of the CSA. Going down the legal route would be a risky affair for Iran, which could not be confident that the tribunal will hand out a ruling which satisfies Iran. Lengthy discussions in the Board of Governors, in accordance with article 21 of the CSA, should therefore be expected.

Third, it could try to suspend operation of its CSA. This would, however, not be legally admissible since article 26 of its CSA stipulates that it shall remain in force as long as Iran is a party to the NPT. The only way Iran for Iran to get out of its safeguards obligations would be to withdraw from the NPT.

In the meanwhile, there is little that the Western Group can do to counter an obstructionist Iranian policy, except push for sanctions at the UNSC. It is unlikely that Iran will comply with any demands from the Security Council, which makes it important that all permanent members of the Council signs up to the idea of sanctions, and are willing to implement them comprehensively and effectively. Anything less than that, and the credibility of the UNSC would be at stake.

It is quite unfortunate that the degradation of Iranian-European relations continue at a steady pace. If Security Council action becomes reality this December, the parties will be as far apart as they can be. Any negotiations between the parties will be hampered by the requirements by the UNSC, making progress quite unlikely in the short to medium term. Meanwhile, Iran is making progress in building its nuclear infrastructure, instilling an ever-increasing sense of urgency in Western decision makers. This trend is likely to lead to some form of armed confrontation. How do reverse it without some party to the dispute loosing face remains to be seen.

The Security Council and Nuclear Testing

This article is currently undergoing peer-review. The aim is to publish it for a sister-NGO in the near future. Since its not been reviewed, it's a 'first stab' at the issue. A fuller article, probably revised, and definitely footnoted, will be published at a later date.

Introduction
Nuclear weapons test explosions have been on the international arms control agenda ever since India proposed a ‘standstill agreement’ in 1954. However, despite this and subsequent calls for a cessation of testing, almost two thousand tests were carried out in the 35 years that followed. Indeed, it took the fall of an empire to inspire true progress on the nuclear test ban. The amount of nuclear testing fell abruptly after the collapse of the Soviet Union in 1991. In the general optimism of the early 1990s, several important steps were taken to strengthen the legally binding norms against nuclear proliferation and testing. In 1995, state parties to the 1968 Nuclear Non-Proliferation Treaty (NPT) decided to indefinitely extend the treaty’s duration, and commit to the negotiation of a comprehensive and verifiable ban on all forms of nuclear testing in all environments. Indeed, none of the five de-jure nuclear weapon states have tested a device since the 1996 Comprehensive Nuclear Test-Ban Treaty (CTBT) opened up for signature ten years ago. However, the opening of the CTBT was not the end of testing. In 1998, India and Pakistan, fuelled by regional rivalry and mistrust, tested devices of their own. The US Senate also refused to ratify the treaty itself, causing some to triumphantly exclaim that the CTBT was dead. The test ban regime was rocked, but the nuclear weapon state moratorium held. An eight-year silence followed, only to be broken by North Korea’s 9 October 2006 test.

North Korea’s nuclear weapons test triggered a new - albeit dejected - debate on the nuclear test ban. The CTBT now has 177 signatures and 137 ratifications, and is one of the most widely supported arms control and disarmament treaties in the world. While the treaty’s relevance for nuclear non-proliferation may be limited, the treaty would put a stop to qualitative improvements of nuclear weapons, or at least make such improvements more difficult. Moreover, in the words of Jozef Goldblat, ‘meaningful progress in nuclear disarmament … is improbable as long as nuclear test explosions are not definitely and universally banned’.

A treaty which generally prohibits nuclear weapons has yet to materialize, despite a debate ranging over several generations of diplomats and thinkers. Instead, legal progress towards the non-proliferation, and subsequent elimination, of nuclear weapons – the only weapons system capable of the imminent destruction of any society – has been both gradual and slow. Today, the principal agreements concluded to limit nuclear testing are the 1959 Antarctic Treaty, the 1963 Partial Test Ban Treaty, the 1967 Outer Space Treaty; the 1967 Treaty of Tlatelolco, the 1985 Treaty of Rarotonga and the 1996 Comprehensive Nuclear Test Ban Treaty (CTBT). North Korea is not a signatory or a party to any of these agreements. Other de-facto nuclear weapon states have also refused to sign up to a comprehensive ban on nuclear testing. For instance, India and Pakistan are parties to the Partial Test Ban Treaty and the Outer Space Treaty, but to no other principal nuclear arms control and disarmament agreement.

Since the election of an arms control treaty averse government in the United States, and the 2001 terrorist attacks on New York and Washington, international arms control and disarmament has gone through a major transformation. Indeed, the impression one gets is that the phrases ‘arms control and disarmament’ and ‘nuclear non-proliferation’ has gone out of fashion, and has been replaced by a more active phraseology, such as ‘nuclear counter-proliferation’ and ‘proliferation security’. Seemingly, the priority is not simply to contain the spread of dangerous knowledge and materials, but to ensure that any proliferation is rolled back, by the use of force if necessary. This fundamental shift in perception is manifested in the different way the UN Security Council handled the last nuclear tests of the 20th century and the first nuclear test of the 21st century.

North Korea and the Security Council Response
On 14 October 2006, the UN Security Council responded to North Korea’s announcement that it had conducted a nuclear test by adopting UN Security Council Resolution (UNSCR) 1718. The Council took action less then a week after the event, and the resolution was unanimously adopted, indicating the ease of achieving consensus amongst its permanent members. Some attention has been given to the resolution’s sanctions regime, which prevents a range of goods from entering or leaving North Korea and imposes an asset freeze and travel ban on persons related to the nuclear-weapon programme.

However, less attention has been devoted to some unprecedented aspects of the resolution. For instance, it demanded that North Korea return to the 1968 Nuclear Non-Proliferation Treaty. This would be the first time the Council imposes an ‘obligation to be obligated’; until now it has been a sovereign decision whether to join an international treaty. Therefore, in the past, the Council has emphasised the voluntary aspect of international law by simply urging, calling on or inviting the state in question to join a specific treaty. UNSCR 1718 simply orders North Korea to join. In a similar fashion, UNSCR 1718 also calls for the country's return to International Atomic Energy Agency (IAEA) safeguards.

Nuclear testing and the Security Council Response
The Security Council also adopted a resolution in response to the nuclear tests of India and Pakistan. Legally, the situation is largely analogue. That is, a non-nuclear weapon, non-NPT member state conducts an underground nuclear test - completely in the open and without circumventing any international norms. The only difference is that India and Pakistan were bound by the provisions of the PTBT and North Korea was not. One would expect that a largely analogue situation would trigger a rather similar response. However, as the following analysis will show, the response was nothing but similar.

The Security Council adopted resolution 1172 on 6 June 1998, about a month after India’s first nuclear weapons test. This resolution was not adopted under Chapter VII of the UN Charter, which essentially means that its language is a set of non-legally binding recommendations. Arguably, a nuclear weapons test is such a serious threat that the Council’s response should have been adopted under Chapter VII of the Charter. In that sense, the resolution adopted against North Korea represents a welcome improvement.

The Security Council has - after all events - stated that the proliferation of nuclear weapons constitute a threat to international peace and security. All tests have been characterised as a challenge to international efforts to strengthen the global non-proliferation regime. All tests have been called a danger to regional peace and security, and the Council has affirmed - in all instances - that a successful test does not mean that the state will have nuclear-weapon state status under the NPT. Both resolutions condemn the actual tests and demands that the countries refrain from carrying out further tests. Both resolutions also urge the states to exercise maximum restraint, so that the situation does not aggravate, and calls for a return or resumption of respective negotiation processes. Both resolutions also call on the concerned states to halt their nuclear weapons programmes, as well as their delivery vehicle programmes, and halt fissile material production. Interestingly, UNSCR 1718 does not explicitly demand that North Korea cease all fissile material production. This would seem implicit, however, in the wording of the resolution itself, which calls for the abandonment of North Korea's “nuclear programmes”.

Despite these similarities, only the North Korean test was labelled as “a clear threat to international peace and security”. One interpretation would be that the Indian and Pakistani tests were threats to regional - and not international - peace and security. Another would be that the Indian and Pakistani tests would have been classified as international threats, if they occurred today. Yet another interpretation would be that tests conducted by a certain category of states would constitute an international threat, but not nuclear tests in general.

The last interpretation seems to be representative of the Japanese view. During the discussions after the vote on North Korea, Japan held that “the claim of nuclear capability in the hands of a regime with a known and proven record of reckless and irresponsible acts and behaviour, including as a proliferator, creates a situation which is nothing less than a grave threat to peace and security”. What are the consequences of the Japanese argument? Would nuclear capability in the hands of a regime with a known and proven record of careful and responsible behaviour create a situation which is not a threat to international peace and security? Would that mean that, for instance, Pakistan is a careful and responsible state? Quite worryingly, that seems to be the case. No serious opposition of the nuclear arsenals of India and Pakistan is fielded anymore. On the contrary, the United States is extending its hand towards India, offering nuclear cooperation, and the United Kingdom is openly supporting India’s bid for a permanent seat on the Security Council.

Many explanations other in the Security Council focused on North Korea as a unique problem. The United States characterized the North Korean test as 'one of the gravest threats to international peace and security that the council has ever had to confront'. The French, choosing the tie the resolution closely to the DPRK act, stated that 'given the challenge posed by North Korea and in a context in which we must confront other proliferation crises, it was essential for the international community to be united and extremely firm'. China said that the test had been carried out 'in disregard of the common opposition of the international community'. The Russian Federation also called the test a 'serious challenge to the entire international community', that the situation was extraordinary and consequently required extraordinary measures.

The absence of bigger picture thinking
What is missing from UNSCR 1718 is foresight and an observation from the Security Council detailing the consequences of the test on the nuclear non-proliferation and disarmament regime. For instance, the Security Council called on all states to join the CTBT and the NPT after India and Pakistan had tested. This has prompted some to conclude that the assumption must be that the Security Council had put a prohibition on nuclear tests on all states, and that this prohibition is for an indefinite period.

This call is absent from UNSCR 1718, which would seem quite natural as the US opposes the principles underlying the CTBT. Irrespective of whether the deletion was intentional or unintentional, it throws serious doubt on the Security Council’s commitment to a comprehensive test ban and on the firmness of the nuclear testing moratoria itself. This doubt is reinforced when considering that UNSCR 1172 calls on all states to refrain from nuclear tests, in accordance with the provisions of the CTBT. UNSCR 1718 is silent on this point, and it only explicitly prohibits North Korean testing, leaving the door open for potential tests by other states.

One interpretation is that certain permanent members of the council seek to ensure that they themselves would be allowed to test, if they should decide to do so. Another interpretation would be that the Security Council views the North Korean test, and the situation on the peninsula as unique and without implications for the body of arms control law as a whole. Either interpretation is equally valid; both interpretations are equally concerning.

It would not be inconsistent with Council practice, however. The Indian and Pakistani tests were not, in the Council’s view, challenging the NPT. The prevailing view at the time may have been that challenges to the NPT come from within the treaty membership, whereas outside events leaves the treaty practically unchallenged. If that is a correct observation, North Korea’s status as a former party to the NPT may have provoked a harsher response. That could explain why, in 1998, India and Pakistan’s pursuit of nuclear weapons was not deplored, while considerably stronger language was used in 2006, in respect to North Korea. Indeed, the United Kingdom argued that the test had contravened North Korea's commitment under the NPT. By contrast, Japan and South Korea chose not to mention the NPT, but instead held that North Korea's act was a breach of the 1991 Joint Declaration on the Denuclearization of the Korean Peninsula.

The link to nuclear disarmament eradicated
There were ample references to nuclear disarmament in UNSCR 1172 and the Council even referred directly to article VI of the NPT, which obliges the permanent members themselves to conclude negotiations on complete nuclear disarmament. However, it fell short of actually demanding full and irreversible Indian and Pakistani disarmament. UNSCR 1718 contains no references to other states’ disarmament obligations, but puts a legally binding requirement on North Korean disarmament.

There are several possible interpretations; one of them would be that DPRK’s ambiguous status under the NPT justifies a legally binding demand. That is that the Security Council considers North Korea still to be legally bound by the letter of the NPT. However, if that were the case, why would there be a need to demand, in operative paragraph 4, that North Korea return to the treaty? Would it not be sufficient to demand that the DPRK observes a treaty it is already bound by? Alternatively, could it be that once a state has signed up to the NPT, it is irreversibly bound by its non-possession commitment? That would be great news, since it would indicate that the international norm against the possession of nuclear weapons has elevated to customary law. However, such as statement can be immediately falsified, since if that were the case, nuclear weapons possession would be outlawed for all states. The nuclear weapon states would be very unlikely to accept that argument.

If indeed North Korea is not a party to the NPT, the inescapable conclusion would be that the acquisition of nuclear weapons by some non-state parties to the NPT is acceptable, whereas the same acquisition by other non-state parties is unacceptable. This, of course, has unfortunate consequences for nuclear breakout scenarios. Would a nuclear-armed Japan be acceptable and a nuclear-armed Iran not acceptable? Would a nuclear armed South Korea be acceptable, but not a nuclear-armed Taiwan? What about a nuclear equipped Saudi Arabia?

The ad-hoc nature of UNSCR 1718 is reinforced by its refusal to urge all remaining states which has not done so to sign up to and ratify the CTBT and the NPT. Moreover, it contains no reference to the proposed Fissile Material Cut-Off Treaty (FMCT). In 1998, all three acronyms were firmly placed in various operative paragraphs. In 2006, they were simply eradicated from the text.

So what can be done?
The North Korean possession of nuclear arms should be characterized not as a failure of international arms control and disarmament, but as a failure of international diplomacy. Paradoxically, despite the emergence of the ninth nuclear weapon state, it should also be taken as an indication that multilateral, consensus based, arms control works. North Korea’s nuclear programme was suspended for a period. This suspension was, until the ejection of IAEA inspectors, verified. Indeed, the multilateral arms control machinery was the reason for the undeniable discovery, in the early 1990s, that something was rotten in the state of DPRK. Up to that point, the evidence had been unilaterally presented and unilaterally acted upon. This discovery prompted the evolution of strengthened IAEA safeguards, which have proved its effectiveness in respect to Iran’s nuclear programme. Which state today calls the strengthened safeguards system a failure of international arms control?

The emphasis on enforcement—rather than cooperation and verification—in today’s arms control discourse ignores that most states follow most principles of international law and most of their obligations most of their time. It also ignores that no state, not even North Korea, pretends to stand above international arms control law, even when they intentionally flaunt its provisions. If North Korea pretended to stand above the law, why would it bother to go through the process of withdrawing from the NPT in the first place?

This negative arms control trend must stop. It can only be reversed by the United States regaining its moral high ground, by the country recommitting to the very arms control law it was so instrumental in developing in the first place. This means that the United States should consider returning to the process of verifiable arms reductions, which was started through the Strategic Arms Reduction Treaty. It should also show leadership in developing the concept of an effectively verifiable FMCT and return to its faithful support for an international legal norm prohibiting all forms of nuclear testing in all environments.

However, the United States cannot strengthen international arms control law alone. It needs assistance in the form of all states cooperating to strengthen their national laws and regulations, so that national laws are brought up to the standards inherent in UNSCR 1540. This is especially true in respect to export controls, which has traditionally been viewed as a mean of developed nations to control the technological development of developing nations. The United States also needs other states to recognize that nuclear proliferation and trafficking in nuclear materials have been brought into the sub-state domain, and that coordinated efforts are necessary to counter this threat. Hopefully, this recognition could lead to the development of an international, non-discriminatory, and legally binding interdiction regime—rather than yet another coalition of the willing and able, such as the Proliferation Security Initiative. It could also lead to increased cross-border law enforcement cooperation. While the United States should work towards the ratification of its additional protocol to its voluntary offer agreement, non-nuclear weapon states also need to support the IAEA’s action plan to promote the comprehensive safeguards agreement and the additional protocol.

Most importantly, it is remains important to use the powers of the UN Security Council wisely, so that its practice does not risk undermining the authority of the Council itself. Already, there are increasing tendencies of states to reject Council resolutions, a practice which has been relatively scarce in the past. The risk that the council is seen, by a wide circle of states, simply as a mouthpiece of powerful states, rather than the guardian of international peace and security, needs to be considered. This does not mean, however, that threats against international peace and security should be overlooked. The Council needs to act decisively whenever potential threats emerge. In that sense, the Council undeniably did the right thing when it reacted harshly to the DPRK’s nuclear test.

Iran and the NPT

I participated at an IRNA organized roundtable on the 'Iranian nuclear issue' on 2 December 2006. Not surprisingly, the meeting was well attended by pro-Iranian students. This presentation were therefore quite harshly critizised. However, others in attendance called it objective and fair. Details of the meeting can be found here.

I truly enjoyed Mark Fitzpatrick's presentation, and subsequent duelling between him and firebrand professor Abbas Edalat. The professor's views were very similar to those often presented by Iranian diplomats, although diplomats tend not to shout loudly when presenting their case. Mark's views were very close to those shared by the Western Group.

An edited version of the presentation - containing footnotes - may later appear on VERTIC's website. This version therefore represents my personal thoughts and ideas, and not VERTIC's collective opinion on the crisis.

Introduction
The on-going diplomatic conflict with Iran over its nuclear fuel cycle activities may have a severe impact on international peace and security. But it may also affect the rule of law in international relations.

Despite arguments to the contrary, international law is a fundamentally important aspect of international relations. Indeed, as Louis Henkin once put it, ‘… almost all nations observe almost all principles of international law and almost all of their obligations almost all of the time’. And even if a state breaks an international rule, intentionally or not, it tries to justify its behaviour by invoking its legal rights or obligations. James Brierly put it this way, ‘States may often violate international law, as individuals often violate municipal law, but no more than individuals do states defend their violations by claiming that they are above the law’.

Iran is of course no exception, and does not proclaim to stand above the law. On the contrary, the country claims to honour its commitments and insists that other countries respect its rights. As President Mahmoud Ahmadinejad said in a 13 August 2006 interview: ‘If we don't have laws you will not be able to administer anything and to rule anything. And without a law, a proper set of laws ... you cannot even govern a small village.’

The rule of law, and the concept of collective security administered under the law also permeates the principles underlying the United Nations (UN) Charter. Indeed, the UN was founded to ‘establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained’. The very first paragraph of the very first article of the UN Charter stipulates that international disputes or situations which might lead to a breach of the peace should be brought about by peaceful means, and in conformity with the principles of justice and international law. In case the peace is broken, or a threat to it exists, the Charter envisions a military response, but only through the UN Security Council. All other forms of threat or use of military force is explicitly outlawed, save in self-defence.

Quite successfully, Iran tends to clothe their arguments and concerns in legalistic language. These arguments are well known by now. The country has a right under the 1968 Nuclear Non-Proliferation Treaty (NPT) to develop its nuclear fuel cycle, as long as the development is for peaceful purposes. Indeed, the country has been non-compliant with its safeguards commitments, but only because it was forced to seek black-market help since no one seemed to respect their rights. It is now in full conformity with its safeguards agreement with the IAEA, no undeclared diversion of nuclear material has been established in recent years, and the country is furnishing the IAEA with all access that the organization is entitled to.

Equally successfully, Iran’s opponents are dressing up in legalistic language. Iran’s right to develop is nuclear fuel cycle is forfeited, since it is in material breach of its non-proliferation commitment. Other concerned states recognizes that Iran is affording the IAEA cooperation to the letter of the law, but that this is not enough to convince them that Iran’s intentions are completely harmless.
However, is Iran really doing everything that is required of it? Does it comply with its obligations under the NPT, its comprehensive safeguards agreement with the International Atomic Energy Agency (IAEA), and relevant UN Security Council resolutions? Do they have the right to continue to develop their nuclear programme despite having been found in non-compliance with their safeguards agreement? If so, are other states providing the nuclear assistance to which Iran is entitled? In any case, is it a sustainable situation that one country can be found in breach of its obligations under relevant safeguards agreements without repercussions?
While this paper focuses on the law governing Iran’s dispute with other members of the international community, it may be useful to recollect that a reliance on the law itself may not be enough to solve the current mistrust in Iran’s peaceful intentions. Indeed, the Director-General of the IAEA has repeatedly called on Iran to become completely transparent, and to furnish cooperation which goes beyond its legal obligations. While this call is notable and welcome, it is also troublesome, since it shows that there must be deficiencies in the nuclear safeguards system. Otherwise, if there were not deficiencies, there would be no need to call for cooperation extending beyond the letter of the law.

Iran’s commitment to international arms control and disarmament
In quantitative terms, Iran is a country that compares well with other states. It is either a signatory or a party to most major international arms control and disarmament agreements. Regionally, it has a very good record of accomplishment in terms of the number of conventions signed up to. For instance, it joined the 1925 Geneva Protocol in 1929, the Partial Nuclear Test Ban Treaty in 1964, the Nuclear Non-Proliferation Treaty in 1970, the Sea-Bed Treaty in 1971, the Biological Weapons Convention in 1973 and the Chemical Weapons Convention in 1997. It is a signatory to the Outer Space Treaty (1967), ENMOD (1977) and the Comprehensive Nuclear Test Ban Treaty (1996).

It is also a frequent supporter of various UN General Assembly Resolutions that addresses the dangers of nuclear proliferation. For instance, Iran has voted in favour of a resolution that has maintained that ‘nuclear disarmament and nuclear non-proliferation are mutually reinforcing processes requiring urgent irreversible progress on both fronts’. It has voted in favour of another resolution stating that ‘the proliferation and development of weapons of mass destruction, including nuclear weapons, are among the most immediate threats to international peace and security which need to be dealt with, with the highest priority’. It has long sponsored a resolution on missiles in the General Assembly. It supports the development of a nuclear free zone in the Middle East. The list could be made longer.

Iran has two de-facto nuclear weapon states on its eastern border, it has a former enemy in disarray on its western border, it has fragile ex-Soviet republics scattering its northern border, and it has the US navy constantly patrolling its southern waterways. This situation could foster a strong commitment to arms control and disarmament. However, it could also cultivate a strong sense that weapons of mass destruction, and associated strategic delivery vehicles, are a necessary tool ensuring state survival in a volatile region.

Iran’s compliance with the NPT
Iran has been a member of the NPT for 36 years. It’s been a member of the IAEA almost from the organization’s inception, it joined in 1958.

Iran’s principal obligation in respect to nuclear non-proliferation can be found in article II of the NPT, which requires Iran ‘not to … manufacture or otherwise acquire nuclear weapons or other nuclear explosive devices’. It also obliges Iran ‘not to seek or receive any assistance in the manufacture of nuclear weapons or other nuclear explosive devices’.

While it sounds straightforward, it should be noted that it is not clear what, precisely, is meant with the term ‘manufacture’. The word generally means ‘the making or producing of anything’. It is broader than the word ‘assembly’, which often refers to the fitting together of manufactured parts. It is reasonable to deduce that the word is meant to describe a process starting somewhere prior to the actual assembly of the device itself. However, it is unclear where this point is. The unchallenged view has been that ‘facts indicating that the purpose of a particular activity is to acquire a nuclear device would tend to indicate non-compliance’. This attempt to clarify the meaning of manufacture is, sadly, as ambiguous as the word itself. What facts? When do these facts really indicate, and not only tend to indicate, non-compliance?

The sentence is also taken from the treaty’s preparatory works. Such works can only be referred to in treaty interpretation if an ordinary interpretation ‘leaves the meaning ambiguous or obscure’ or ‘leads to a result which is manifestly absurd or unreasonable’. While it could be argued that the ambiguous nature of the article means that the US interpretation is authorative, it should be kept in mind that the US introduced a working paper to the third preparatory committee of the 2005 NPT Review Conference, containing similar language. This paper seemed to have attracted some criticism, and in any case it is impossible to establish whether this language represents the consensus of NPT member states since the review conference failed to produce any common language.

Little attention is focussed on the fact that compliance with the NPT presently cannot be verified. True, the IAEA, which are administrating safeguards under article III of the NPT, has devised a system able to detect in a timely fashion the diversion of so-called significant quantities of nuclear material from peaceful nuclear activities to the manufacture of a nuclear weapon or towards purposes unknown. The system is also thought to deter diversion by creating the risk of early detection. This system can only establish whether there has been a diversion of material (and more recently, whether state declarations are complete). The reach of Agency safeguards essentially stops there and there is no body which can investigate state complaints of non-compliance with the NPT, other than those related to nuclear safeguards.

Iran’s compliance with IAEA Safeguards
It may be difficult, perhaps even impossible, to verify Iran’s compliance with article II of the NPT without introducing an extraordinarely intrusive verification regime. It is, however, possible to verify how well Iran has complied with its comprehensive safeguards agreement.

Iran’s comprehensive safeguards agreement entered into force in 1974. The country signed an additional protocol to this agreement in 2003. This protocol gives the IAEA additional information and tools necessary to conclude wether a country’s declaration is complete as well as correct. Iran applied the protocol provisionally for some time. It is not presently applied.

In 2003, the IAEA Director-General reported that its non-compliance related to the reporting of nuclear material, the subsequent processing and use of that material and the declaration of facilities where the material was stored and processed. Moreover, the IAEA stressed that Iran has failed ‘on many occasions to co-operate to facilitate the implementation of safeguards, through concealment’.

In response to that report, the IAEA Board of Governors found that ‘Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement … constitute non-compliance in the context of Article XII.C of the Agency’s Statute’. In other words, Iran has been found in non-compliance with its safeguards agreement. This non-compliance has been extensive, and Iran’s measures to rectify the situation has been deemed to be insufficent.

It is important to realize that the number of concrete actions that the Board of Governors can take in respect to non-compliance is limited by the Comprehensive Safeguards Agreement itself. If the board decides that an action by Iran is essential and urgent in order to ensure proper verification, it may call upon Iran to take that action. Over the past three years, the IAEA Board of Governors have issued many different calls to Iran. Some of them have been heeded, whereas others have been ignored. The Board may also make those reports and take those measures provided for in Article XII.C of the IAEA’s Statute. According to the Statute, the following entities should receive a report by the IAEA Board of Governors:

All IAEA member states;
The UN Security Council; and
The UN General Assembly.

Unless the state does not take fully corrective action within a reasonable time, the IAEA Board of Governors may, according to the Statute, take the following measures.

Direct curtailment or suspension of assistance being provided by the Agency or by a member; and
Call for the return of materials and equipment made available to the recipient member or group of members; and
Suspend any non- complying member from the exercise of the privileges and rights of membership.

Presently, the Board of Governor has exercised its right to report Iran’s non-compliance to the UN Security Council. It has not exercised its right to suspend an Agency assistance project yet, but have put off a decision to furnish safety assistance to Iran in respect to its heavy water reactor in Arak.

Iran’s rights
According to article IV, all countries have an inalienable right to research, produce and use nuclear energy. One conclusion that can be drawn from the article’s language is that the right to develop a domestic nuclear fuel cycle is nothing that is given by the treaty per se. Since the right is inalienable, it exists outside the treaty regime, and is firmly vested in state sovereignty.

So why, then, does the treaty refer to civilian nuclear power? The most important requirement of the article is that the treaty should not be interpreted in a way that constrains this right. There is one exception, however, which is clearly stated in the article itself, namely that the country pledges to exercise its right in conformity with the treaty’s non-proliferation clauses (articles I and II to be specific). This means that article IV does not establish any specific right for the state. Rather, the article puts a restriction on the states sovereign right to establish and carry out fuel cycle facilities and activities.

In return, states with access to the nuclear fuel cycle undertake to facilitate the ‘fullest possible’ exchange of equipment, materials and scientific and technological information for the peaceful uses of nuclear energy. States are also promised that they will be able to carry out this right without discrimination.
Consequently, state parties agreed in 2000 that the treaty simply ‘fosters the development of the peaceful uses of nuclear energy by providing a framework of confidence and cooperation within which those uses can take place’.

Article IV does mention that the country’s right to develop its nuclear programme is dependent on its conformity with its non-proliferation commitment. However, it does not mention what the consequences would be for this right if the country breaches IAEA safeguards. Hence, the peculiar situation arises where a state can breach its safeguards agreement with no apparent consequences for its right to develop nuclear energy. This situation could be reasonable if the breaches had been minor or unintentional, for instance if the breach occurred through a misunderstanding of the rules or through negligent bookkeeping. But what if the breach or breaches had been major and intentional, such as if a state doesn’t declare major fuel cycle assets, if it engages in clandestine procurement or otherwise engages in systematic deception and denial?

State parties agreed in 2000 that the right to develop peaceful nuclear energy should be exercised in conformity with articles I, II and III of the treaty, which would condition the country’s right to its safeguards compliance. It would be very tempting to refer to the 2000 review conference documents as subsequent practice which has established an agreement of the parties regarding the interpretation of the treaty. If this were the case, the documents would be relevant for the treaty’s interpretation.

However, some important state parties, the United States in particular, seem to consider the review conference final document as strictly politically binding, and several provisions of the document, most notably in respect to nuclear disarmament, has been openly dismissed.

In any event, for some states, a breach of safeguards not only amounts to bad faith implementation of the country’s safeguards agreement, but also points towards a desire to develop a nuclear weapons or a nuclear weapons capability. For others, such behaviour may be acceptable, as long as there is no undeniable proof of weapons development. Unfortunately, one has to accept that there is a considerable legal grey area in this respect.

Temporary constraints on Iran’s right to develop nuclear power
While each state has a sovereign right to develop its nuclear fuel cycle, this right can be always be curtailed if it has deemed to constitute a threat to international peace and security. This determination is made by the UN Security Council. If the Security Council would not be able to make this determination, the collective security system would be seriously undermined.

On 31 July 2006, the United Nations Security Council adopted resolution (UNSCR) 1696, which establishes a range of legally binding obligations on Iran. While skilfully avoiding classifying Iranian fuel cycle activities a threat to international peace and security, the resolution refers to the more general threat posed by the proliferation of weapons of mass destruction, consequently authorizing the Council to enact legally binding norms on a member state.

According to the resolution, all Iranian ‘enrichment related’ activities should cease. It is unclear what is meant with the term. It was not explained during the Security Council’s meeting and was only referred to five times; and then only to reiterate the language of the resolution itself. Uranium conversion was not mentioned during the Security Council meeting and neither was uranium mining and milling. The use of the word demand makes it clear that the Security Council intends for its provision to have legal effect. Therefore, a relatively comprehensive suspension of nuclear activities is required by Iran, at least until a negotiated solution guaranteeing that Iran’s nuclear programme is exclusively for peaceful purposes is found.

The resolution also ‘calls upon Iran without further delay to take the steps required by the IAEA … which are essential to build confidence in the exclusively peaceful purpose of its nuclear programme and to resolve outstanding questions’. The word ‘calls’ is semantically weaker than the word ‘demands’, and implies that remaining measures are voluntary. Those measures include:

The reconsideration of the research reactor moderated by heavy water in Arak;
The prompt ratification and full implementation of the Additional Protocol;
A return to the provisional application of the Additional Protocol; and
The implementation of transparency measures which ‘extend beyond the formal requirements’ of Iran’s safeguards obligations

Presently, Iran shows no indication of complying with the resolution. The Security Council is discussing next steps, but there seem to be disagreement of whether sanctions should be applied. There seem to be a considerable gap between the US and the Russian and Chinese respective positions, and the Europeans seem unable to play the balancing role. Action in the council may be forthcoming in December 2006.

The broader perspective
The NPT is weakened by its vague provisions, even though it was intended to be void of any loopholes which might permit nuclear or non-nuclear weapon states to proliferate nuclear weapons in any form. This vagueness can only be rectified by the practice of states parties, most likely through the adoption of new principles in a review conference document, which in itself carries more than political weight. The authority of the final documents of the review conference would be considerably strengthened if all parties assign equal weight to all its provisions, and moves towards their full realization. The establishment of a permanent or temporary NPT secretariat would contribute towards this goal.

States’ sovereign right to develop nuclear power cannot be seen as a loophole in the non-proliferation regime, but neither can the inherent dangers in the uncontrolled spread of nuclear technology and knowledge be overlooked. The most accepted way would be to continue efforts to strengthen the multilateral arms control and disarmament regime. This means efforts to promote adherence to instruments such as the 1980 Convention on the Physical Protection of Nuclear Materials and its amendment, the 1996 Comprehensive Test Ban Treaty. It also means trying to get negotiations on an effectively verifiable Fissile Material Cut-Off Treaty back on track. More generally, the benefits of consensus based arms control regime should not be undervalued. If the regime is based on consensus, states are more likely to implement its provisions voluntarily.

The IAEA verification regime needs to be strengthened, primarily through ensuring that the IAEA meets its universalization target in respect to comprehensive safeguards agreements and their additional protocols.

Efforts to deny states standing outside the nuclear non-proliferation regime status as de-jure or de-facto nuclear weapon states need to be reinvigorated.

State parties need to continue to encourage the establishment of nuclear-weapon free zones. The most pressing priority would be to work towards the establishment of such a zone in the Middle East.

It is important, in the meanwhile, to strengthen and continually improve national laws and regulations, so that national authorities have the necessary means to prevent, deter and roll back nuclear proliferation.

Violations of international law should be punished, and threats against international peace and security needs to be countered. However, in doing so, it is important to use the powers of the UN Security Council wisely, so that its practice does not risk undermining the authority of the Council itself. Already, there are increasing tendencies of states to outright reject Council resolutions, a practice which has been relatively scarce in the past.