Transparency: Iranian style

The trench warfare over Iran's controversial nuclear programme continues without respite, with the press on each side of the nuclear no-man's land continuing their irksome sniping at the other side. While there are many examples of spin, the most biased utterance thus far must be PressTV's headline that the "world welcomes Iran-IAEA cooperation". A more precise headline would be "Iran welcomes Iran-IAEA cooperation, the rest are waiting for better days". Headlines like that of PressTV just shows, in my humble opinion, that one should not take any foreign ministry controlled media channel in any country more seriously than, say, the Disney Channel.

The plain truth is that Iran still has plenty to work to do if it is serious about shedding light on its nuclear programme. It is undeniably a good thing that it has increased its cooperation with the International Atomic Energy Agency. But increased cooperation does not automatically mean that all riddles are solved and all questions answered. The Economist holds that the IAEA-Iran work plan is "controversial" and that it "allows Iran to drip-feed information to inspectors, with new questions addressed only when previous files are closed". That's part of the story. The other part is that the IAEA has "agreed to provide Iran with all remaining questions according to the … work plan". Moreover, the inspectorate seems to have one chance at asking the right questions. According to the plan, "after receiving the questions, no other questions are left". Obviously, that is not how the post-Iraq safeguards system is supposed to work. There are still many ambiguities over how the plan is supposed to work. This is not the fault of the Agency, but of Iran. According to some close to the Department of Safeguards, the Iranians were more or less free to draft the plan to their liking. After all, the IAEA works for their member states.

Iran is, of course, acting within their legal right when drafting the plan to please their own tastes. Safeguards agreements are international agreements and therefore require the consent of the state to become legally binding. The basis for this statement can be found in articles 11-17 of the 1969 Vienna Convention on the Law of Treaties. Legally, I would stipulate that contemporary arms control law places few, if any, legal constraints on states' freedom to decide on these matters. Moreover, present UN Security Council practice in respect to arms control is confusing, unclear and at times contradictory. Lately, the council has had an ambiguous attitude towards the legality of nuclear testing, and it has had an uneven approach to safeguards as well. All things considered, it would seem like the Lotus Principle, i.e. the principle that states may do as they wish unless they contravene an express prohibition, still reigns supreme in international arms control and disarmament law, despite recent attempts by the Security Council and others to define and limit it.

However, there is a saying in legal practice that stipulates that an action may not necessarily be smart, just because it is lawful. Principles can be costly, and this is a statement that the Iranian government should take seriously. Even if all questions on the history and present operations of Iran's nuclear programme are answered, Iran still have to ask itself how it can assure the international community that its intentions are peaceful. Iran may find, after some reflection, that the answer is not necessarily one of technology and international law, but of politics and perceptions.

There are many ways through which Iran could build international confidence in its intentions: developing a more transparent safeguards approach for its enrichment plant in Natanz is one way, setting up an ad-hoc verification regime with a broad ranging mandate another way, and revoking the law prohibiting the ratification of the country's additional protocol a third way. However, at the moment Iran seems content stonewalling everything that breathes Persian compromise, essentially acting in bad faith in respect to its negotiations with the European Union.

Sadly, by pushing any diplomatic solution aside, and by refusing to allow certain issues to come back on the table, Iran is playing right into the hands of the minority that favors the use of force against its facilities. What use are treaty rights, one might wonder, if there is nothing but smoldering ruins left to exercise those rights with? The use of force against Iran will have far-ranging consequences. It will be difficult to argue that Iran's program constitutes an imminent threat, and the Security Council is not likely to authorize the use of force, so any armed intervention is likely to be unlawful. It will be difficult to survey an attack's consequences for the ius ad bellum (the law governing the right to use force), especially coming so soon after another legally questionable intervention (Iraq). The political fall-out will be even more unpredictable, and so will the general security situation in the Middle East. That said, there is a growing feeling amongst many in the west that faced with the choice between an Iranian bomb and an unstable Middle East, they might take their chances.

In that sense, a new Security Council resolution on Iran seems desirable. Security Council action would at least temporarily deny the argument that the use of force is the only viable solution.