By Muhammad Sahimi
An Analysis and a Possible
Course of Action
In a series of articles that the
author has been posting since October 2003, Iran's nuclear energy program has
been analyzed. Part I  provided a brief history of Iran's nuclear program,
while Part II  described in broad terms (without giving much details) the
reasons that justify Iran's nuclear energy program as economically, politically,
and environmentally viable. Part III  explained the crisis that was emerging
in the Fall of 2003 between Iran on the one hand, and the International Atomic
Energy Agency (IAEA) and the European Union (EU), led by Britain, France and
Germany (EU-3), on the other hand, several months after Iran had announced in
February 2003 the existence of the Natanz facilities for uranium enrichment (UE).
In Part IV  the author
presented a detailed economical, political, and environmental analysis of Iran's
nuclear energy program, using the most reliable statistics on Iran's current
energy consumption and resources.
Part V  described in detail
the key role that the United States (US) played from 1955 to 1979 in initiating
and advancing Iran's nuclear program. We showed, based on archived documents -
until then not brought to the attention of the public - that not only did the US
pressure the Shah to purchase US-manufactured nuclear power plants, but also
offered him the technology for UE and reprocessing of spent nuclear reactor
fuels, not only to address Iran's needs, but also for most of the Middle East
and, in particular, Pakistan, if Iran agreed to purchase eight US-manufactured
nuclear power plants.
These assertions were reiterated
later on in an article published in the Washington Post [6,7]. In the same
article  we also compared the history of the US involvement with Iran's
nuclear program with the thinking of the neoconservatives and their allies on
how to prevent the Bushehr reactor from starting to operate, a reactor that,
under no conceivable scenario, can be used for making a nuclear bomb .
In Part VI  we described the
reasons for the hard line that President Mahmoud Ahmadinejad's administration
has taken regarding Iran's nuclear energy program; explained an important
proposal that Iran made to the EU-3 in March 2005 for resolving the nuclear
crisis (which the EU-3 ignored), and the shortcomings of the EU-3's proposal to
Iran in early August 2005.
A major goal of the series has
been refuting the "argument" that the US neoconservatives have been making for a
long time, namely, that given Iran's vast oil and gas reserves; it does not need
nuclear energy. The neoconservatives and their allies in the Israeli lobby, as
well as their minions among exiled Iranians are the only ones who are still
clinging onto such absurd arguments. However, the analysis presented in this
series (and its summary published elsewhere [10,11]), as well as those made by
others much more recently [12,13], have made their impact: Iran's nuclear energy
program has been transformed from one perceived not to be needed by, or suitable
for, Iran to one for which the EU-3 is willing to guarantee the supply of
nuclear fuels and advanced nuclear technology , if Iran gives up developing
the complete cycle for UE .
The United Nations Security
Council (UNSC) has issued three Resolutions against Iran, which is unprecedented
during the entire time that Iran has been a UN member. They are Resolutions
1696, 1737 and 1747 (see below).
The goal of this article is
(i) It attempts to address the
important questions of whether referral of Iran's nuclear dossier to the UNSC,
and the UNSC Resolutions 1696, 1737, and 1747 against Iran have been according
to the letter and spirit of the relevant international treaties. The most
objective way of doing so is not by relying on the claims of the Iranian
government, or those of Israel and the Western powers, and in particular the
Bush Administration, rather by basing the analysis on the Nuclear
Non-proliferation Treaty (NPT), Iran's Safeguards Agreement with the IAEA, the
Statute of the IAEA, the IAEA's reports on Iran's nuclear activities, and the UN
Charter and in particular the UNSC mandate, as well as established legal
precedence for such issues. This is what we shall do in the present article.
(ii) As we shall show in this
article, from a legal stand point, Iran is in a strong position. However, it is
due to the aggressive and adventuresome foreign policy of President Mahmoud
Ahmadinejad, and his rhetoric regarding Israel and the Holocaust - rhetoric that
will have no practical consequence for Israel, but has greatly hurt Iran - that
Iran has essentially been cornered. Thus, based on the analysis in (i), we
describe what we believe should be the course of action regarding the
confrontation between Iran and the West and its allies over the next several
(iii) It is important to
recognize that Iran is being pressured to give up, at least temporarily, its
sovereign rights, as well as internationally-recognized rights (see below).
Therefore, if Iran is to go along, the West must also make significant
concessions, as a result of which Iran can receive tangible results.
But, before embarking on this
task, we should first discuss several important issues.
Unraveling the Myth about
Iran's "Secret" Uranium Enrichment Program
An argument used constantly
against Iran is that, it cannot be trusted because it hid its UE program from
the world for 18 years. In making the argument, however, it is never mentioned
that, so far as Iran's international obligations were concerned, much (but not
all) of the secrecy was not illegal. I'll come back to this point shortly.
Moreover, it is also not
mentioned that when Iran decided to set up a UE program, it did not wish it to
be secret. Indeed, if Iran's UE program was secret, it was the worst-kept
secret. As described in Part V , the Shah had already made clear Iran's
intentions for setting up the facilities for a complete fuel cycle, and the Ford
administration had eagerly offered its helping hand. But, Iran's initial desire
for transparency was deeper than the Shah's known intentions. Let me explain
this in more detail.
As explained in Part I ,
beginning in 1982, Iran began pressing (West) Germany to complete the two
nuclear reactors in Bushehr that the Shah had contracted to Germany, but had
been left incomplete after the Iranian Revolution of 1979. Iran tried any and
all the reasonable approaches in order to get (West) Germany to live up to its
obligations; it never succeeded. Thus, if anything, Iran's efforts were
indicating clearly to the West that it was pursuing a nuclear power program, and
was doing so with utmost transparency.
We should also recall that the
(West) German intelligence agency even went so far as declaring in 1984 that
 Iran was only two years away from a nuclear bomb. So, how was it that Iran
was only 2 years away from the bomb, but was not even suspected of having a
nuclear program? Using enriched uranium is not the only way of making the bomb,
but Iran did not (and still does not) possess any plutonium, or reprocessing
facilities for extracting plutonium from spent fuel or heavy water reactors,
with which the bomb can also be made.
We should also recall that, for
at least 20 years, the CIA and the Israeli Intelligence have been saying that
Iran is only a few years away from making a nuclear bomb - prophecies that have
never been materialized.
But, Iran's initial transparency
was, in fact, even deeper than trying to convince (West) Germany to finish the
two reactors in Bushehr.
In 1983, exactly 20 years before
Iran announced to the world the existence of the Natanz facilities for UE, it
had asked the IAEA to provide it with technical assistance in setting up a pilot
plant for the production of UF6, uranium hexafluoride that is used
for UE. During the Shah's reign, work had begun on converting one type of
uranium oxide, U3O8, into another type, UO2
(used in the production of UF6), and with France's help, ENTEC, an
Iranian nuclear establishment, had been set up to work on the complete nuclear
fuel cycle. Helping a Member State with such a project is one of the main
functions of the IAEA. According to Article XI.A of Statute of the IAEA ,
Any member or group of
members of the Agency desiring to set up any project for research, or
development of practical application of, atomic energy for peaceful purposes may
request the assistance of the Agency in securing special fissionable and other
materials, service, equipment, and facilities necessary for this purpose. Any
such request shall be accompanied by an explanation of the purpose and extent of
the project and shall be considered by the Board of Governors.
In order to approve the request,
the Board of Governors (BOG) of the IAEA gives due considerations to (Article
The inability of the member
or group of members making the request to secure the necessary finances,
materials, facilities, equipment, and services;
and (Article XI.6) 
The special needs of the
under-developed areas of the world ...
Clearly, Iran of 1983 was a
needy State. The IAEA did dispatch a team of experts to Iran, who recommended
that the Agency help ENTEC's scientists gain practical experience with the
matter, and provide expert services in a number of areas, including the fuel
cycle. Indeed, the report stated clearly the IAEA's intention to 
Contribute to the formation
of local expertise and manpower needed to sustain an ambitious programme in the
field of nuclear power reactor technology and fuel cycle technology.
However, the technical
assistance never materialized, because 
Sources said that when in
1983 the recommendation of an IAEA mission to Iran were passed on to the IAEA's
technical cooperation program, the US government then "directly intervened" to
discourage the IAEA from assisting Iran in production of UO2 and UF6.
"We stopped that in its track," said a former US official.
Therefore, not only did the IAEA
know, as early as 1983, post-revolutionary Iran's intentions for setting up a UE
program, it also violated both the spirit and the letter of the NPT, its own
Statute, and its obligations toward Iran by buckling under the US pressure and
refusing to go forward with the recommendations of its own experts, hence being
involved in an illegal endeavour.
As explained in Part I ,
between 1982 and 1995, Iran attempted openly to restart its nuclear power
program, but was prevented by the US at every step from achieving its goal. The
US also convinced Russia in the early 1990s not to sell Iran a centrifuge plant
In February 2003, after Iran
announced officially the existence of the Natanz's facility, Melissa Fleming, a
spokeswoman for the IAEA, said 
This comes as no surprise to
us, as we have been aware of this uranium exploration project [in Saghand, Yazd]
for several years now. In fact, a senior IAEA official visited this mine in
David Albright, the President of
the Institute for Science and International Security, has stated  that, the
US knew in the early 1990s that Iran was trying to import the parts for a
centrifuge plant. For example, the Italian Intelligence had reported that Sharif
University of Technology in Tehran had put an order in 1991 for a centrifuge
component. However, according to Albright the US believed that the technical
problems were too complex for
Iran to overcome and, therefore,
the US believed that Iran would not be able to set up a UE facility any time
The fact is that, the West did
not take seriously Iran's attempt for setting up a UE facility because, as the
author stated in a 2006 interview ,
We have made mistakes in
underestimating the strength of science in Iran and the ingenuity they show in
working with whatever crude design they get their hands on.
All of these taught Iran a
lesson: it could not set up the UE facilities with full transparency, because
the US would stop the effort at its inception. Thus, beginning in 1987, while it
was pursuing its nuclear power program openly, Iran was also trying quietly to
develop an indigenous UE program based on whatever design it could obtain. So,
if Iran's UE program went "underground," it was driven there by the US and its
allies. At the same time, the US and the West knew about this, but they simply
did not believe that Iran could do it.
But, let us imagine that Iran
had actually declared its intentions even louder (which it, in fact, did, but
apparently the US did not hear it). As the author said in another recent
Let's say Iran had announced
back in 1985 that, "Hey guys, we want to make a UE facility." What do you think
would have happened? Would the US have rushed to help Iran? No, it would have
done everything in its power to deny Iran's rights [under the NPT],
and prevent others from helping it.
The Natanz Facilities: Iran's
The Subsidiary Arrangements
General Part  (part of the Safeguards Agreement between Iran and the IAEA
), in force with Iran from 1976 to February 26, 2003, called for provision
to the Agency of design information on a new facility no later than 180 days
before the introduction of nuclear materials into the facility, and the
provision of information on a new location outside facility (LOF), together with
the report relating to the receipt of nuclear material at the LOFs. Beginning in
1992, the standard Subsidiary Arrangements part of the Safeguards Agreement
changed (see below), but Iran was not a party to such changes until February
In other words, not declaring
the Natanz UE facilities, before the introduction of nuclear materials into
them, did not constitute a violation of Iran's obligations toward the IAEA, as
touted by uninformed or biased "analysts." As emphasized in this Series of
articles, the difference between having clandestine, but legal, and illegal
activities has not been understood by the Western press: constructing the Natanz
facilities has been constantly referred to as an example of Iran's "violation of
its NPT" or "breach of its obligations," both of which are totally false.
Pierre Goldschmidt and George
Perkovich of the Carnegie Endowment for International Peace (CEIP) have argued
 that, even when it comes to the Natanz facilities, Iran has violated its
Safeguards obligations, because Iran introduced UF6 into Natanz's
Pilot Fuel Enrichment Plant on June 25, 2003 , four months after Dr. Mohamed
Elbaradei, Director General of the IAEA, had visited there, rather than waiting
two more months before introducing UF6. Dr. ElBaradei had visited the
Natanz facilities on February 21, 2003.
However, this hair-splitting
argument misses the main point, that not declaring the Natanz facilities before
2003 was not illegal. Moreover, in his report to the IAEA  in which the June
2003 incident had been mentioned, Dr. ElBaradei did not declare Iran in breach
of its Safeguards Agreement. So, it appears to this author that the arguments of
Goldschmidt and Perkovich only go to show that they are more Catholic than the
In addition, as mentioned above,
in 1992 the BOG of the IAEA began asking the Member States to accept the updated
Subsidiary Arrangements, which required the Member States to notify the IAEA as
soon as they have made the decision for setting up a new nuclear facility. Iran
accepted the updated Arrangements on February 26, 2003, which means the issue of
its introducing UF6 into the Natanz facilities in June 2003 was moot.
Violating the NPT versus
Breaching the Safeguards Agreement
Another widely misunderstood
issue is the difference between a NPT Member State violating the NPT itself
versus breaching its Safeguards Agreement with the IAEA. As explained below, the
former is much more serious than the latter. This established, but subtle, fact
has either been not appreciated, or has been ignored by most of the so-called
According to the Provisions of
the NPT, the Treaty is violated if a Member State violates the NPT's three main
Articles  regarding nuclear weapons, namely, when it
(i) Secretly assists or
encourages another Member State to develop nuclear weapons or explosives, or
transfers such weapons or explosives, or their control, to any recipient
(ii) Secretly develops nuclear
weapons and/or explosives, which means that it diverts its declared nuclear
materials and facilities to bomb making, or receives such items from another
source (Article II), or
(iii) Transfers its nuclear
know-how and materials to a non-Member State (Article III).
When does a Member State breach
its Safeguards Agreement? Article III.A.5 of the IAEA Statute  authorizes
the Agency (emphasis with bold letters added)
To establish and administer
safeguards designed to ensure that special fissionable and other materials,
services, equipment, facilities and information made available by the Agency or
at its request or under its supervision or control are not used in such a way as
to further any military purpose; and to apply safeguards, at the request
of the Parties, to any bilateral or multilateral arrangement, or at the request
of a State, to any of the State's activities in the field of atomic energy.
Thus, in the absence of any
action by a Member State to "further any military purpose," a breach happens
when a Member State 
(i) Receives nuclear materials
(not bombs) and/or technology without declaring them to the IAEA;
(ii) Carries out secret
experiments with its declared or undeclared nuclear materials that have a
military purpose or application, and
(iii) Sets up nuclear facilities
without informing the IAEA according to the due process described in the
Subsidiary Arrangements of its Safeguards Agreement with the IAEA.
According to such
internationally-accepted norms, protocols, and agreements, then, Iran has not
violated its NPT obligations (i.e., has not been involved in nuclear bomb
Moreover, since the IAEA has
never declared that Iran's (minor) breaches of its Safeguards Agreement (see
below), and the experiments that it carried out in the past without declaring
them to the Agency were aimed "to further any military purpose," Iran has also
satisfied its Safeguards obligations, except for the minor breaches described
below. In fact, since 2003 Iran has not committed any breaches.
But, the Western press, as well
as the US and Israeli propaganda mouthpieces, and their exiled Iranian minions
(and even the supposedly credible and objective experts ) refer constantly
to "Iran's violation of the NPT."
Why is it important to
differentiate the two? Because, as discussed below, a nation's nuclear dossier
should be referred to the UN only when that nation has violated the NPT -
i.e., it has been involved in nuclear bomb making - or has breached its
Safeguards Agreement "to further any military purpose," both of which would pose
a threat to the peace and international security. According to the IAEA's own
reports, none has occurred in Iran's case.
Pierre Goldschmidt of the CEIP
argues otherwise . I describe his prima-facie "reasoning" and
"arguments" because they are typical of those who want to find Iran guilty of
illicit nuclear activities, regardless of the facts on the ground. Note that, as
long as Goldschmidt was working for the IAEA, where he was Deputy Director
General and Head of the Department of Safeguards (1990-2005), he never publicly
took the bizarre positions that are described below. This means that, (a) these
are his own personal views and have nothing to do with the IAEA, and (b) when he
was at the IAEA, cooler and wiser heads had prevailed, not allowing him to
rewrite the NPT provisions and the Safeguards Agreement to advance his personal
The BOG of the IAEA adopted a
Resolution on February 4, 2006 which, inter alia, stated that (item j of
the Resolution) ,
Recalling that in November
2005 the Director General reported (GOV/2005/87) that Iran possesses a document
related to the procedural requirements for the reduction of UF6 to
metal in small quantities, and on the casting and machining of enriched,
natural, and depleted uranium metal into hemispherical forms.
Goldschmidt argues that the
possession of this document constitutes violation of Article II of the NPT (see
above). However, as described above, Article II refers to nuclear materials,
explosives, or devices, not documents. So, how Goldschmidt skews or
stretches Article II in order to arrive at his desired conclusion is beyond the
author's comprehension .
Goldschmidt might argue that the
possession of the documents indicates that Iran has used it for some illicit
nuclear activities, but in the absence of any credible physical evidence, one
cannot start the Iraq-2 scenario, namely, claiming that Iran has or has not done
this or that .
Goldschmidt might also argue
that the possession of the documents indicates Iran's intentions, but as Dr.
ElBaradei has repeatedly stated, one cannot "read the intentions"  or "judge
intentions" or "read hearts"  of a country; these are a tealeaf reader's job
not a scientist's, or a nuclear engineer's such as Goldschmidt.
Goldschmidt  also argues
that Iran has "diverted" nuclear materials and, therefore, has violated the NPT.
In order to "prove" his point, Goldschmidt develops a whole new meaning for
"diversion" outside the standard English dictionary and internationally-accepted
concepts. According to Webster's New Collegiate Dictionary,
Diversion: the act or an
instance of diverting from a course, activity, or use
So, what was the course,
activity, or use from which Iran diverted? Nothing. Even Goldschmidt cannot find
anything, so he invents a new meaning :
"Diversion" includes failure
to declare nuclear materials. Failure to declare importation of nuclear
materials, denying the import when questioned by the [International Atomic
Energy] Agency and use of the materials in undeclared nuclear activities
constitute the diversion of nuclear materials.
Nowhere in the NPT or the
Safeguards Agreement one can find such arbitrary interpretation of "diversion."
In addition, the IAEA has repeatedly declared that (see, for example, the IAEA's
latest report described below),
The Agency is able to verify
the non-diversion of the declared nuclear materials in Iran,
implying that Iran has fulfilled
its NPT obligations, and has mostly carried out its Safeguards Agreement
obligations (aside from some minor breaches described below), and in particular
Article 19 of the Agreement.
In making such "arguments"
Goldschmidt and people like him sound much like the Bush administration during
summer and fall 2002, when it was sexing up the intelligence and preparing the
public for the illegal invasion of Iraq. Let me explain.
On July 23, 2002, 8 months
before the invasion of Iraq, British Prime Minister and war criminal Tony Blair
met with his senior advisors to discuss Iraq, including Sir Richard Dearlove,
known as "C," the head of MI6, the British equivalent of the CIA. Sir Richard
had recently traveled to Washington and presented a report about his trip. One
passage about the meeting stated that (emphasis with capital letters was added)
C reported on his recent
talks in Washington. There was a perceptible shift in attitude. Military action
was now seen as inevitable. Bush wanted to remove Saddam, through military
action, justified by the conjunction of terrorism and WMDs. But the intelligence
and facts were being FIXED around the policy. The NSC [the U.S. National
Security Council] had no patience with the UN route, and no enthusiasm for
publishing material on Iraqi regime's record. There was little discussion in
Washington of the aftermath after military action.
This is known as the Downing
Street Memo. What it says is that, the decision for invading Iraq had already
been made in early 2002 (before the US and Britain going to the UNSC and
getting Resolution 1441 approved in November 2002). The only thing left was
"fixing" the intelligence around the objective and selling it to the public.
Goldschmidt's "arguments" are
completely similar. He has already reached the verdict that Iran is guilty. All
that remains for him to do is fixing a new meaning for "diversion" around the
verdict. His "fixing" becomes clearer below. To strengthen his "arguments,"
Goldschmidt quotes the IAEA report , according to which Iran has
Carried out UF4
conversion experiments.....using depleted uranium which had been imported in
1977 [that is, by the Shah's government and with full knowledge of his Western
allies] and exempted from safeguards upon receipts, and which Iran had declared
in 1998 (when the material was de-exempted) as having been lost during
But, the IAEA report of November
2004  (as wells as all the subsequent reports; see below) declared that,
All the declared nuclear
material in Iran has been accounted for, and therefore such material is not
diverted to prohibited activities.
However, Goldschmidt would have
none of this. He declares that ,
This [UF4 conversion experiments] is a clear case of diversion of
declared nuclear material,
even though the IAEA has
[the experiment] is of far greater concern when it takes place in a State that
has been deliberately in non-compliance for some two decades,
without specifying what the
non-compliance cases are, because, as explained above, Goldschmidt is only
interested in arriving at his-already decided verdict that Iran is guilty, in
addition to the fact that Goldschmidt's claim of two decades of non-compliance
by Iran is totally false.
(iii) Finally, Goldschmidt seems
to even rebuke the IAEA itself (his former employer) when he declares  that
(emphasis with boldface letters is his),
For the [International Atomic
Energy] Agency to repeat thereafter that "all the nuclear material declared
by Iran to the Agency is accounted for," may be misleading .....
and that this 
which, when taken out of context, may have been the source of a lot of
misunderstanding among Member States and therefore needs to be clarified.
In other words, the "truth" has
been revealed only to Goldschmidt (and similar pundits), not to most of the
members of the IAEA's BOG, or the IAEA's Member States, or even the Director
General himself (who had prepared the report). In addition to the glaring
arrogance in such statements, they remind the author of what President Bill
Clinton once said: "It all depends on what the meaning of 'is' is." Goldschmidt
believes that, as clear as the IAEA statements are, their meanings all depend on
what conclusions he wants to draw from them.
In another "analysis," Mr.
Goldschmidt makes an extravagant claim by stating  that the IAEA has not
After four years of
investigation, to verify the absence of undeclared nuclear material and
activities in Iran, or the exclusively peaceful nature of its nuclear program
.... because the presence of such material or military dimension of its program
has also not been proven.
In other words, Goldschmidt
demands Iran to prove a negative: that it does not have hidden nuclear
facilities and does not have undeclared nuclear materials. This is simply
impossible because, in order to prove this, every centimeter of Iran must be
searched. These are the type of demands that Iraq was also supposed to satisfy
before its illegal invasion. Despite this, Goldschmidt declares  himself a
proponent of a peaceful resolution of Iran's nuclear program, but it appears to
the author that what he really has in mind is Iran's capitulation, not a
peaceful resolution of the conflict.
Iran's Breach of its
Iran has acknowledged breaching
its Safeguards Agreement with the IAEA by failing to report to the Agency the
following activities :
(i) In February 2003 Iran
acknowledged that in 1991 it imported from China 1800 kgr of uranium compounds
(UF4, UF6, and UO2), and that it used them in
experiments to test its conversion processes.
(ii) In October 2003 Iran
acknowledged that it had used a small amount of its imported UF6 in
P-1 centrifuges at Kaalaa-ye (Kalaye) Electric Company centrifuge workshop. Up
to 19 centrifuges had been used.
Note that the establishment of
the workshop at Kaalaa-ye (Kalaye) Electric Company is not, by itself, a breach
of the Safeguards Agreement. In fact, so long as nuclear materials have not been
introduced into the centrifuges, even manufacturing of centrifuges does not have
anything to do with the IAEA.
(iii) Iran has acknowledged that
from 1989-1993 it carried out experiments that produced Polonium-210, a highly
radioactive but unstable material with a short half-life. While Polonium-210
does have civilian applications, it can theoretically be used for initiating the
fission chain reactions that result in a nuclear explosion. Due to its
instability, however, Polonium-210 is not used for this purpose.
(iv) Iran had also developed a
laser facility for UE at Tehran Nuclear Research Center (TNRC), and in Lashkar
(v) Iran acknowledged importing
in 1993 50 kgr of natural uranium metal, and using 8 kgr of it at TNRC for
experimenting with atomic vapor laser isotope separation, and another 22 kgr of
the metal in similar experiments in Lashkar Abaad.
Note that Iran abandoned the
experiments soon thereafter. Note also that, as described in Part V , the
idea of using laser separation was suggested to Iran by the US in the late
1970s, which also allowed Iran to purchase four laser equipments in 1978, only a
few months before the Iranian Revolution.
(vi) Between 1988 and 1993 Iran
carried out plutonium separation experiments (in very small amounts) using UO2,
but failed to report it (see, however, below).
Issues under Investigation
(i) According to statements by
Iran, in 1995 Abdul Qadir (Ghadir) Khan, the father of Pakistan's nuclear
program, and his network provided Iran with drawings for the components of the
P-2 centrifuges (a more advanced version of the P-1 that Iran is currently
installing in Natanz), but that Iran did nothing with them for seven years.
Then, in 2002, Iran ordered manufacturing of the rotors for seven P-2
centrifuges. But, because it could not manufacture the rotors according to the
original design with the intended steel cylinders, it modified the design to
make the rotors using carbon composites. Since this is such a major leap forward
in the design of such a sophisticated instrument in such a short time, the IAEA
had declared as not credible Iran's claim that it did nothing for seven years.
In its latest report, however,
released on November 15, 2007 , the IAEA was mostly satisfied with Iran's
Note that, from the EU-3's
perspective a major point of contention regarding this issue has been as
Since Iran had obtained the
design for the P-2 centrifuges at the same time that Libya had, and because
Libya had also obtained the designs for a nuclear bomb with the P-2 design, the
E-3 did not accept Iran's contention that it had not obtained the bomb design.
In other words, according to the E-3 rationale (if we can call it that), because
Libya had done it, so must also have Iran!
(ii) As mentioned above, in
November 2005 the IAEA reported the existence of a document in Iran that
describes how UF6 can be converted to metal in small quantities. The
document also describes casting and machining of enriched, as well as natural
and depleted, uranium metal into hemispherical forms , suitable for nuclear
weapon . Iran contends that the document was received from Pakistan along
with the design for the P-1 centrifuge in 1987. In its latest report , the
IAEA stated that it is sharing the document with Pakistan to verify Iran's
(iii) Iran had set up a physics
research center at Lavisan-Shian. Claiming that this is simply a physics
research center, Iran has not explained yet what it did with procured special
instruments that also have applications in nuclear research . When the IAEA
took environmental samples of the site, the tests indicated the existence of a
small number of particles of natural and high-enriched uranium (HEU) .
(iv) Iran stated to the IAEA
that it first contacted the A. Q. Khan network in 1987, discussing the purchase
of 2000 P-1 centrifuges, and documents for setting up workshops for
manufacturing of the supporting materials. Iran claimed that it had no further
contact with the network until 1993. The IAEA is not convinced .
(v) Two other issues have
essentially been resolved. One is experiments with plutonium, possibly from
undeclared sources . It was recently announced that the issue has been
resolved to the IAEA's satisfaction. The second issue is the existence of
low-enriched uranium (LEU) and HEU at Kaalaa-ye (Kalaye) Electric Company, which
the IAEA environmental sampling and tests had indicated. Iran has stated that
they are contaminations brought into the country by the imported parts, and the
IAEA analysis  "tends, on balance, to support Iran's statement ...."
(vi) The IAEA has also demanded
access to the Iranian scientists working on the nuclear program. The total
number of people, including the scientists, who work on the nuclear project is
around 6000. Although, according to the IAEA's latest report , Iran has made
many people accessible to the Agency, it has balked at making a large number of
its scientists available for interview. Article XII.A.6 of the IAEA Statute 
does mention that the Member States should make available to the IAEA,
Any person who by reason of
his occupation deals with [nuclear] materials, equipment, or facilities which
are required by this Statute to be safeguarded.
However, Iran's position is
understandable, because many experts believe that the hidden agenda or the real
goal of this demand, pushed by the US, is identifying Iran's key nuclear
scientists. Before its illegal invasion of Iraq, the US had tried to do the same
in an attempt to convince Iraqi nuclear scientists to defect to the West.
Given that there is not a shred
of evidence that Iran has a secret nuclear weaponization program, such demands
can potentially represent gross violation of Iran's Safeguards Agreement by the
IAEA, if the US pursues the same goal as with the Iraqi scientists (and there is
little, if any, doubt that it will). Article 4 of the Safeguards Agreement
states  that,
The safeguards provided in
this Agreement shall be implemented in a manner designed
(a) To avoid hampering the
economic and technological development of Iran ...;
(b) To avoid undue
interference in Iran's peaceful nuclear activities, and in particular in the
operation of facilities; and
(c) To be consistent with
prudent management practices required for the economic and safe conduct of
Therefore, anything that hampers
the work of Iran's program, and in particular its nuclear scientists, in
peaceful nuclear activities, including the scientists' undue
interrogation by the IAEA, and any attempt to hamper Iran's technological
development and interference in its peaceful nuclear activities by the Western
powers, including attempts for convincing the scientists to defect to the West,
thereby taking away from Iran its scientific base, is a gross violation of
In addition, the demand to
subject the Iranian nuclear scientists to undue interrogation can potentially be
a violation by the IAEA of Article 8 of Iran's Safeguards Agreement. According
to Article 8 
(i) The Agency
shall require only the minimum amount of information and data
consistent with carrying out its responsibilities under this Agreement.
pertaining to facilities shall be the minimum necessary for safe-
guarding nuclear material subject to safeguards under this
Carrying out the most intrusive
inspections of any nuclear program in the history of the IAEA by spending four
years and thousands of hours of investigations, and demanding access to all of
Iran's nuclear scientists, constitute asking for the "minimum amount of
information"? Then, what is the maximum?
Finally, identifying all of
Iran's nuclear scientists living in Iran can potentially be very dangerous,
given what has happened to the Iraqi nuclear scientists , and the fact that
a key Iranian nuclear scientist, Dr. Ardeshir Hassanpour, was presumably
assassinated in February 2007, allegedly by Israel's Mossad .
Documents from the "Stolen"
Some time ago it was claimed in
two published articles [47,48] that a laptop had been stolen and taken out of
Iran that contained the "smoking gun" for Iran's (nonexistent) nuclear weapon
program. For example, Dafna Linzer of the Washington Post wrote  that
according to the documents,
In the Spring of 2001, a
small design firm opened shop on the outskirts of Tehran to begin work for what
appears to have been its only client - the Iranian Republican Guard. Over the
next two years, the staff at Kimeya [Kimiyaa] Madon [Ma'dan] completed a set of
technical drawings for a small uranium-conversion facility, according to four
officials who reviewed the documents.
Several sources with
firsthand knowledge of the original documents said the facility, if constructed,
would give Iran additional capabilities to produce a substance known as UF4
[uranium tetrafluoride], or "green salt," an intermediate product in the
conversion of uranium to a gas. Further refined to a large-scale enrichment
plant, such as the one Iran says it intends to build for its energy program, the
material could become usable for the core of a bomb.
In addition, the laptop
contained documents about high explosive work, and what is supposedly a test
shaft, possibly for a nuclear device, and missile re-entry vehicle studies. At
first, the US made much noise about the laptop, and asked for and convened an
emergency meeting of the BOG of the IAEA in January 2006.
Many experts  have said
that, the probability that the documents in the laptop are not forgeries is
virtually zero, because there are just too many gapping holes in this story to
be credible. Even the US has not pressed the issue hard, after its initial
noise, perhaps because, as Gordon Prather pointed out, the story did not pass
the smell test .
Initially, Iran dismissed all
the allegations, declaring the documents as forgeries, and refused to discuss
the issue with the IAEA. At the same time, though, the IAEA had also refused to
show Iran the documents, but had demanded explanations about their contents
which is, to put it politely, absurd. In its latest report , the IAEA stated
that it was showing the documents to Iran. According to its most recent
agreement with the IAEA in August 2007, Iran agreed to clarify and resolve all
the unresolved issues by November 2007 and, hence, agreed to study the documents
from the laptop, and discuss them with the IAEA.
Was Iran's Referral to the
Security Council Legal?
On February 4, 2006, under
extreme pressure by the US, the BOG of the IAEA adopted a Resolution  for
referring Iran's nuclear dossier to the UNSC. Two main reasons given for the
referral were that, the BOG had found Iran in non-compliance of its NPT and
Safeguards Agreement obligations, and that Iran had resumed UE activities, after
suspending them voluntarily for nearly two years (see below). Was the
As a technical person, an
engineer by training, and a Professor of science and engineering, the author's
writings can be, and have been, based only on known technical facts and
well-established legal precedence. This can easily be seen in the author's four
published books and over 250 scientific papers published in peer-reviewed
science journals. Therefore, in what follows the author presents a thorough
analysis of the known and well-established facts, but let legal scholars decide
the legal issues.
As described earlier, there is a
fundamental difference between violating the NPT, and breaching the Safeguards
Agreement (unless the breach was aimed to "further any military purpose" ).
In Iran's case, violating the provisions of the NPT implies that, as a Member
State, it has covertly diverted nuclear materials for bomb making, hence
endangering the peace and international security, which Iran has not committed.
Even if we set aside this all important point, referral of Iran's nuclear
dossier to the UNSC appears to have violated both the letters and the spirits of
the NPT, the Safeguards Agreement, and the IAEA Statute. Let me explain.
(1) It has been argued  that
Article III.B.4 of the IAEA Statute empowers the Agency to refer Iran to the
UNSC. This Article states  that the Agency shall
Submit reports on its
activities annually to the General Assembly of the United Nations and, when
appropriate, to the Security Council: 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, and may also take the measures open to it under this Statute,
including those provided in paragraph C of Article XII.
And what does Article XII.C
state? It says 
The inspectors shall report
any non-compliance 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 non-compliance which it finds to have
occurred. The Board shall report the non-compliance to all members and to the
Security Council and the General Assembly of the United Nations.
Taken together, there are at
least three points in the two Articles worth noting, even if we accept the
(i) Contrary to what has been
argued , the responsibility for identifying non-compliance rests not with
the BOG, but with the inspectors and the Director General, none of whom did
(ii) Even if the BOG can (which
it cannot), by itself, decide that Iran is in non-compliance (which it is not),
then, if a report is to be made to the UN, it must be to both the General
Assembly and the Security Council. But, Iran's dossier was sent only to the UNSC,
and it is clear why: in the General Assembly Iran would have been supported by a
very large number of countries, from the 57 members of the Islamic Conference to
the members of the Nonaligned Movement.
(iii) The dossier should be
referred to the Security Council, if the NPT has been violated; that is, if
nuclear materials have been diverted to non-peaceful applications - bomb making
- or a breach has occurred to "further any military purpose" , hence posing
a threat to the international peace and security. But, with the IAEA
certification of no diversion of nuclear materials, and in the absence of even a
shred of evidence for the existence of a secret nuclear weaponization program or
a nuclear weapon, there is no threat to the international peace and security.
Note that there is absolutely
nothing in the NPT, the Safeguards Agreement, or the IAEA Statute that prevents
Iran from even producing plutonium or weapon-grade uranium, so long as they are
safeguarded by the IAEA. In other words, even if Iran produces safeguarded
plutonium or high-enriched uranium, they would still not be considered acts
against the peace and international security.
(iv) The Resolution adopted for
referring Iran's dossier to the UNSC made demands on Iran, that are beyond the
authority of the BOG and the IAEA. Among other things, it "deemed necessary" for
Iran to (item 5 of article 1; emphasis with bold letters added) 
measures, as requested by the Director General, including in GOV/2005/67, which
extends beyond the formal requirements of the Safeguards Agreements and
Additional Protocol, which include such access to individuals, documentation
relating to procurement, dual use equipment, certain military-owned workshops
and research and development as the Agency may request in support of its ongoing
In other words, the BOG of the
IAEA demands, hence exceeding it authority , that Iran give up its
sovereignty just to satisfy the Director General. In addition to be exceedingly
absurd - to put it extremely politely - the fact is that there is not even a
single word in the UN Charter, the NPT, the Safeguards Agreement, or the IAEA
Statute that indicates that the BOG or the Director General need to satisfy
themselves that any country's nuclear program is exclusively peaceful  (in
Iran's case, all the present facts on the ground indicate that it is peaceful),
or that it even has the authority to make such demands.
(2) According to the BOG, one
main reason that Iran has been referred to the UNSC is that, the IAEA cannot
verify that Iran does not have a secret, parallel nuclear program and, hence,
cannot verify the peaceful nature of Iran's program. In addition to the
impossibility of proving a negative (namely, that Iran prove that it does not
have a secret parallel nuclear program), the issue is dealt with by the
Additional Protocol, however, not by the Safeguards Agreement. Regarding the
Additional Protocol, however, consider the following well-established facts.
(i) According to Sa'd Abaad
Agreement of October 2003 and the Paris Agreement of November 2004 , Iran
agreed to abide by the provisions of the Additional Protocol, and provided the
IAEA with much expanded access to its nuclear facilities, well beyond its
obligations under its Safeguards Agreement. When the negotiations between Iran
and the EU-3 did not produce any results, because the EU-3 wanted to deny Iran's
inalienable right for having the full cycle for producing enriched uranium, Iran
stopped implementation of the Additional Protocol in February 2006. Since then,
however, Iran has offered to ratify the Protocol, so long as its rights for
running a UE program are recognized.
(ii) Iran's suspension of the
Additional Protocol in February 2006 has been regarded by the neoconservatives
and their allies as violation of its obligations to the IAEA, but this is
First, as the Paris Agreement
 stipulated, Iran's implementation of the Additional Protocol was voluntary,
since it stated that,
The E3/EU recognize that this
suspension [of enrichment-related activities] is a voluntary confidence building
measure and not a legal obligation .... In the context of this suspension, the E3/EU
and Iran have agreed to begin negotiations, with a view to reaching a mutually
acceptable agreement on long term arrangements.
Second, even if implementation
of the Additional Protocol was mandatory (which was not), it had nothing to do
with the IAEA: The Sa'd Abaad and Paris Agreements were between Iran and the
EU-3; the Agency was not a Party to the agreements. Therefore, the IAEA
cannot use it against Iran.
Third, it was, in fact, the EU-3
that violated the Paris Agreement, by insisting that Iran give up its
inalienable right under the NPT (Article IV) to having the complete UE cycle.
(iii) Since Iran has not
ratified the Additional Protocol, it is not legally bound by it. This puts Iran
in the same category as 36 other nations, none of which has been referred to the
UNSC. Moreover, according to the IAEA's own reports, of the 61 States that have
signed both the NPT safeguards and the Additional Protocol, the IAEA can certify
the absence of undeclared nuclear facilities in only 21 nations. This puts Iran
in the same category as 40 other nations, including Canada, the Czech Republic,
and South Africa. None of these other nations has been referred to the UNSC.
Thus, not ratifying the
Additional Protocol is neither a violation of the Safeguards Agreement, nor is
it the basis for suspicion, nor for referring Iran's nuclear dossier to the UNSC.
Discriminating Against Iran:
The Case of Libya
When in February 2004 the
Director General reported  to the BOG of the IAEA that Libya had been found
to be in breach of its Safeguards Agreement, the BOG asked the IAEA's Director
General to report the matter to the UNSC for "information purposes only." Why
the double standards? Why was Iran referred to the UNSC for further action, but
Libya's case for information only?
By not taking any action against
Libya, but doing so against Iran, the UNSC has violated the UN Charter . The
Preamble of the Charter declares that (emphasis with bold letters added)
The peoples of the United
Nations determined ... to reaffirm faith in fundamental human rights, in the
dignity and worth of the human person, in the equal rights of men and women
and of nations large and small, and to establish conditions under which
justice and respect for the obligations arising from treaties and other sources
of international treaties can be maintained ....
We know, of course, the reason
for the double standards: because Libya said "uncle" and surrendered.
Has the Security Council
Exceeded its Authority?
The next question to be
addressed is: Has the UNSC exceeded its authority by making demands on Iran
through Resolutions 1696, 1737 , and 1747 ? The author is not a legal
scholar but, after extensive research taking nearly a year and reading over 2000
pages of documents involving international issues, he finds that by issuing
these Resolutions, the UNSC has violated every relevant Article of the UN
Charter, and that this position of his is supported by many legal scholars [57,
58, 59, 60] (see also below for more sources of legal opinions).
According to experts [61,62,63],
as well as the latest published US National Intelligence Estimate , Iran is
years away from having the capability and necessary nuclear materials for
producing a nuclear weapon. Note also that, for the past 20 years, the CIA and
other intelligence agencies have been saying that Iran is only a few years away
from being able to make a nuclear bomb, a prediction that has never been
Therefore, even if we assume
that Iran has every intention of producing nuclear weapons, the fact
that, (a) it is still years away from having even the capability for doing so,
and (2) there is no evidence that Iran is secretly trying to do so, make
adaptation of Resolutions 1696, 1737, and 1747 under Chapter VII  of the UN
Charter  which is exclusively for 
Actions with respect to
threat to the peace, breach of the peace, or acts of aggression.
So, are Resolutions 1696, 1737
and 1747, filed under Chapter VII of the UN Charter, illegal? Consider the
followings facts and decide for yourself.
A. The Security Council has
Acted Ultra Vires
The UNSC does not have the
authority to take actions that, according to Article 24 of the UN Charter, are
against the Purposes and Principles of the United Nations. According to Article
In discharging these duties
[which, according to Article 24.1, are the responsibility for the maintenance of
international peace and security] the Security Council shall act in accordance
with the Purposes and Principles of the United Nations....
Furthermore, Article 39 of the
UN Charter  states explicitly that:
The Security Council shall
determine the existence of any threat to the peace, or any act of aggression and
shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain international peace and
The UNSC did not carry out its
obligations under Article 39, namely, determining the threat that Iran's nuclear
program poses to the peace and international security. In Resolution 1696, for
example, it stated that 
Noting with serious concern
that the IAEA Director General's report of 27 February 2006 (GOV/2006/15) lists
a number of outstanding issues and concerns on Iran's nuclear programme,
including topics which could have a military nuclear dimensions, and that the
IAEA is unable to conclude that there are no undeclared nuclear materials or
activities in Iran
First, the UNSC is talking about
"topics" that could have military nuclear dimensions, i.e., hypothetical
Second, the UNSC is talking
about the IAEA not being able to conclude that there are no undeclared materials
or activities. But, as discussed above, in addition to the fact that this is
just a hypothesis for which there is no evidence, such matters are dealt with
through the Additional Protocol, which Iran has signed, but not ratified and,
therefore, not bound by it.
Resolution 1696 then went on to
repeat the statements made in the IAEA reports, but did not state a single word
about why or how Iran's nuclear program was a threat to the peace and
international security. Resolutions 1737 and 1747 did the same. By doing so, the
UNSC violated both Article 24 (against the Purposes and Principles of the UN)
and article 39 (not determining the threat in Iran's nuclear program) of the UN
Charter. Because of such violations, the UNSC has no authority to file
Resolutions under Chapter VII of the UN Charter, or to impose sanctions against
Iran and, hence, by doing so it has exceeded its authority. In legal jargons,
this is called ultra vires - in excess of its power.
According to Amnesty
The doctrine of ULTRA VIRES
applies to the Security Council (Section V.A.1 [of the UN Charter]). This means
that the Security Council cannot act in excess of its powers and that it much
exercise those powers consistently with the Purpose and Principles of the UN
(Section V.A.2). As is clear from the Preamble of the UN Charter, which states
that "the peoples of the United Nations determined ... to establish conditions
under which justice and respect for the obligations arising from treaties and
other sources of international law , except to the extent that the UN Charter
permits the Council to do otherwise (Section V.A.3). These principles apply with
equal force when the security Council is acting pursuant to Chapter VII (section
V.B).... In order to invoke Chapter VII, the Security Council must always make a
determination, as required under Article 39 of the UN Charter, that there is a
threat to or breach of international peace and security, or an act of aggression
It is beyond dispute that
such a determination is necessary under the UN Charter before the Security
Council can adopt a binding resolution under Chapter VII.
Legal scholars Jochen A. Frowein
 and Nico Krisch  also state that  the first portion of the sentence
constituting Article 39 refers to a threat to or breach of the peace as a
prerequisite by the UNSC, and add that 
As the wording of Art. 39
shows, the SC must determine whether a threat to the peace, a breach of the
peace, or an act of aggression exists. Through the construction of the sentence,
the determination is clearly singled out as a condition for the use of the
particular competences provided in Chapter VII ... While Art. 39 does not define
the conditions for action in great clarity, it insists that the SC reach
agreement on them before using its coercive tools. To some degree, this
requirement forces the SC to adopt a consistent practice with regard to the
threshold for its action under Chapter VII, since it cannot decide simply on the
basis of political expediency but must enter into a principled discussion on the
minimum conditions for enforcement action, applicable also in similar cases.
But, the UNSC declined to
determine the threat that Iran's nuclear program has posed to peace and
international security, as required by Article 39 given above. Without such
findings, the UNSC cannot issue any Resolution under Chapter VII.
One may argue that the UNSC
declined to specifically determine Iran's breaches of the peace (if they exist,
which they do not), because it did not want to give the US any legal cover for
taking military actions against Iran but, then, the UNSC cannot also impose
sanctions if it declines to carry out its duties under Article 39.
B. The Security Council has
Discriminated against Iran: The Case of Arab-
(ii) Note the bias and double
standards here: All the UNSC Resolutions against Israel, and in particular
Resolution 242, 338, 498, and 501, regarding the Arab-Israel wars of 1967, 1973,
and 1982, - wars that are the root cause of instability in the Middle East and
animosity toward the US - were adopted under Chapter VI of the UN Charter, not
Chapter VII. In other words, those wars were not considered threats against the
peace, but Iran's primitive UE program is.
C. The Security Council must
Respect Legal Precedence against Claiming a
(iii) The real reason why the
UNSC refused to determine the threat that Iran's nuclear program
supposedly poses to the peace was because, it had no case, and that there
are well-established legal precedence and rulings by international courts
against the UNSC claiming bogus cases of threats to the peace and international
security, which would constitute exceeding its authority.
Although a determination of a
threat pursuant to Article 39 is a discretionary and political one, it is not
unlimited. The UNSC can only make a determination under Article 39 when there is
a bona fide threat to international peace and security . That the
determination of a threat by the UNSC, pursuant to Article 39, is subject to the
above legal limit has been reaffirmed by International Criminal Court, and has
been recognized by several eminent jurists of the International Court of
Justice. Some examples:
(1) In 1971, in a case involving
Namibia and South Africa, Sir Gerald G. Fitzmaurice (1901-1982), the
distinguished legal scholar and a Judge of the International Court of Justice,
stated that 
The Security Council can act
in the preservation of peace and security, provided that the threat said to be
involved is not a mere figment or pretext.
Furthermore, Judge Sir
Fitzmaurice declared that 
Limitations on the powers of
the Security Council are necessary because of the all too great ease which any
acutely controversial international situation can be represented as involving a
latent threat to peace and security, even where it is really too remote
genuinely to be one.
In the same case, another Judge
of the ICJ, J. Gross, declared that 
To assert that a matter may
have a distant repercussion on the maintenance of peace is not enough to turn
the Security Council into a world government.
(2) In Prosecutor vs. Tadiae
before the International Criminal Tribunal for the former Yugoslavia (ICTY), the
Trial Chamber had held with respect to both Article 39 determination and the
measures taken under Chapter VII after that determination :
The making of a judgment as
to whether there was such an emergency in the former Yugoslavia as would justify
the setting up of the International Tribunal under Chapter VII is eminently one
for the Security Council and only for it; it is certainly not a justifiable
issue but one involving consideration of high policy and of a political nature
However, the Appeals Chambers of
the ICTY strongly rejected the above decision. It considered and decided the
following question, which also has direct bearing on Iran's case before the UNSC
Was there really a threat to
peace justifying the invocation of Chapter VII ..?
The Appeals Chamber then
declared  that, although the UNSC "exercises a very wide discretion" under
Article 39 of the UN Charter,
This does not mean that its
powers are unlimited. The Security Council is an organ of an international
organization, established by a treaty which serves as a constitutional framework
for that organization. The Security Council is thus subjected to certain
constitutional limitations, however broad its power under the constitution may
be. These powers cannot, in any case, go beyond the limits of the jurisdiction
of the organization at large, not to mention other specific limitations or those
which may derive from the internal division of power within the Organization. In
any case, neither the text nor the Spirit of the
Charter conceives of the
Security Council as legibus solutus [unbounded by law].
Furthermore, the Appeals
Chambers declared that ,
The determination that there
exists such a threat is not a totally unfettered discretion, as it has to
remain, at the very least, within the limits of the Purpose and Principles of
This decision of the Appeal
Court in the Prosecutor vs. Tadiae case has, in the opinion of legal
scholars of international laws , provided the legal foundation for
preventing the UNSC becoming the ultimate Hobbesian sovereign  that has
unfettered discretion for determining that any situation whatsoever (such as
Iran's case before it) is a threat to, or breach of, the peace.
(3) In 2002, the UNSC issued
Resolution 1422  which granted immunity to UN peace-keeping forces in any
operation for at least one year. This violated the Rome Statute  that
governs the International Criminal Court, as the Resolution tried to limit the
jurisdiction of the Court, as well as Article 39 of the UN Charter , and
gave rise to fierce protests by many international organizations, such as
Amnesty International, legal scholars, and even some of the most loyal US
allies. The anger was caused by the fact that the UNSC had adopted a Chapter VII
Resolution against an international court! For example, Professor Flavia
Lattanzi  wrote that 
Besides the lack of necessary
determination that a threat to the peace exists under Article 39 [of the UN
Charter}, the intervention of the Council - aimed at maintaining or restoring
international peace and security under the Charter - must always target a
concrete and imminent situation, as stated in Chapter VII of the Charter. Such
an intervention cannot be decided on the basis of an abstract possibility of a
general and future nature, as it is portrayed in Resolution 1422.
Speaking against Resolution
1422, Paul Heinbecker, Canada's Ambassador to the UN declared  (note that
the declaration has direct bearing on Iran's case),
The proposed Resolution
[Resolution 1422] would set a negative precedent under which the Security
Council could change the negotiated terms of any treaty it wished, e.g., the NPT,
through a Security Council Resolution. This would undermine the treaty-making
Indeed! In Iran's case the UNSC
has changed the terms of the NPT by acting ultra vires.
Representative to the UN declared  that,
Chapter VII of the United
Nations Charter requires the existence of a threat to the peace, a breach of the
peace or an act of aggression none of which, in our view, is present in this
case. The Security Council would thus be running the risk of undermining such a
Jordan's Ambassador to the UN
was even blunter :
Should the Security Council
adopt such a proposal [Resolution 1442], it will edge itself toward acting ultra
vires; that is, beyond it authority under the Charter. After all, how could it
adopt a Chapter VII Resolution on the Court when the latter cannot by any
stretch of the imagination be considered a threat to international peace and
For further discussions of this
important case, see Refs. [86, 87].
D. The Security Council has
no Mandate to Enforce Treaties
(iv) The mandate of the UNSC is
limited to intervening in situations that pose a threat to international peace
and security, in order to maintain peace, not to enforce international treaties.
In Iran's case, there is no such threat. Even the UNSC itself refused to
determine the threat. But, acting as it has, the UNSC has expanded its power
dramatically, and has made itself the ultimate enforcer of treaty regimes, part
of a recent trend in response to terrorism . Doing so without any formal
changes in the UN Charter is not permitted.
E. The Security Council has,
in Fact, no Enforcement Case with Iran
(v) Even if the UNSC was created
for enforcing the international treaties (which is not true), Iran has not
violated the NPT, but has committed minor breaches of its Safeguards Agreement
in a way that was not aimed "to further any military purpose." There is not a
single sentence in the Safeguards Agreement  that states that, if a Member
State breaches its Safeguards obligations (if the breaches' goal is not "to
further any military purpose"), it must suspend its nuclear program. Thus, there
is nothing to enforce.
F. The Security Council has
Discriminated against Iran Twice
(vi) The counterargument to the
above might be in Resolution 1540 of the UNSC , adopted on April 24, 2004.
It affirmed that
Proliferation of nuclear,
chemical and biological weapons, as well as means of delivery, constitute a
threat to international peace and security ...
and that it would
Take appropriate measures in
the case of any violations notified to them by the IAEA,
which means that the UNSC has
appointed itself as the enforcer of the non-proliferation regime, without going
through the due process for changing the UN Charter. This, as Professor Jose
Alvarez has noted , constitutes an "imperial" Council. It also creates
immense problems, because the UNSC can, and has, become selective. Note, for
example, the absolute silence of the UNSC regarding the nuclear arsenals of
India, Israel, and Pakistan. As Michael Spies' of the Lawyers' Committee on
Nuclear Policy pointed out ,
This narrow focus [by the
UNSC] on proliferation, pushed through a body that privileges the only
recognized nuclear weapon states under the NPT, suggests more of an affirmation
of the post WWII state system and the indefinite maintenance of an unequal
balance of power not reflective of the modern world's shifting demographies.
However, later statements by the
UNSC indicate that it is backing away from asserting that proliferation
constitutes a threat to the peace, and acts only when the proliferation
has actually caused threat to the peace. In his first statement of 2007, the
President of the UNSC stated that  (emphasis with bold letters added),
It resolves to take
appropriate and effective actions against any threat to international peace and
security caused by the proliferation of nuclear, chemical, and biological
weapons and their means of delivery, in conformity with its primary
responsibilities, as provided for in the United Nations Charter.
But, the UNSC still insists on
Iran freezing its nuclear program, the same program that the Council refused to
identify its threat to the peace and international security. This is nothing but
discriminating against Iran.
G. The Security Council has
Violated Article 51 of the United Nations Charter
(vii) Resolution 1747 has
imposed sanctions against Iran's domestic conventional arms industries, and has
strongly discouraged the Member States from selling such weapons to Iran. It
stated that 
Calls upon States to exercise
vigilance and restraints in the supply, sale or transfer directly or indirectly
from their territories or by their nationals or using their flag vessels or
aircraft of any battle tanks, armoured combat vehicles, large calibre artillery
systems, combat aircraft, attack helicopters, warships, missiles or missile
But, what do such weapons as
tanks and artillery have to do with nuclear non-proliferation? They do not give
Iran any capability to project power outside its borders. They are intended only
for Iran's defense and, therefore, are not a threat to the peace and
international security (Russia has stated exactly the same in agreeing to sell
such weapons to Iran). There is not a single word in the UN Charter that gives
the UNSC the power to strip a nation of defensive capabilities. To the contrary,
the right of self-defense is enshrined in Article 51 of the UN Charter which
declares that :
Nothing in the present
Charter shall impair the inherent right of individual or collective self-defence
Thus, sanctions against Iran's
conventional defensive weapons represent violation of Article 51. The UNSC can
impose sanctions against conventional arms of a Member State, if those arms are
a threat to another nation, or to the peace and international security. A good
example is the former Yugoslavia. But, this is not the case with Iran. It
neither has a territorial claim against another country, nor has it attacked
another nation for 250 years, nor has it made physical threats against another
Due to this violation by the
UNSC, Article 25 of the UN Charter allows the Member States not to implement
such sanctions, because it clearly states that  (emphasis with bold letters
The Members of the United
Nations agree to accept and carry out the decisions of the Security Council
in accordance with the present Charter.
H. The Security Council
Cannot Use the IAEA to Make Demands
(viii) Resolutions 1696, 1737,
and 1747 assumed that the BOG of the IAEA has the authority to require
Iran to suspend its UE program. For example, in Resolution 1696, the UNSC stated
Noting with serious concern
that, as confirmed by the IAEA Director General's report of 8 June 2006
(GOV/2006/38) Iran has not taken the steps required of it by the IAEA Board of
Governors .... which are essential to build confidence and in particular Iran's
decision to resume enrichment-related activities ....
According to the IAEA Statute,
however, the BOG has no such authority. Therefore, because the BOG's Resolutions
against Iran violated the IAEA Statute, they cannot be used as the basis for
imposing sanctions against Iran, or even issuing any Resolutions against it.
I. The Security Council has
(ix) The UNSC must act as a
non-representative, non-judicial body  but, through Resolutions 1696, 1737,
and 1747 , it has taken sides by trying to impose one side's position (the
EU-3's that demands that Iran suspend its UE program) on the other side (Iran).
In Resolution 1696 , the UNSC stated that
Welcoming the statement by
the [then] Foreign Minister of France, Philippe Douste-Blazy, on behalf of the
Foreign Ministers og China, France, Germany, the Russian Federation, the United
Kingdom, the United States and the High Representative of the European Union, in
Paris on 12 July 2006 (S/2006/573)
The UNSC is even brazen in its
side taking, because it states in Resolution 1747  that it
Welcomes the continuing
affirmation pf the commitment of China, France, Germany, the Russian Federation,
the United kingdom and the United States, with the support of the European
Union's High Representative, to a negotiated solution to this issue ...
J. The Security Council has
no Authority to Strip a Nation of its Sovereign
(x) The UNSC does not have the
authority to take away any nation's sovereign rights. Iran has sovereign rights
(1) Exploit its natural uranium
(2) Diversify its energy
sources, including the use of nuclear energy.
These rights were not bestowed
upon Iran by international agreements and treaties. The NPT simply reaffirmed
such rights. These are the same rights that the US, France, China, Britain, and
the Soviet Union invoked before NPT ever existed, in order to develop
their nuclear weapons and nuclear industries. One may put this in another way:
These rights precede the NPT. They are also the same rights that Israel,
South Africa, India, Pakistan, and North Korea declared after NPT, in
order to develop their nuclear arsenals. Thus, the UNSC has no legal right to
order Iran to abandon its sovereign rights.
It might be argued that Article
103 of the UN Charter  does give the UNSC such rights. Article 103 states
In the event of a conflict
between the obligation of the Members of the United Nations under the present
Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail.
Thus, one might argue that,
because Iran's rights under the NPT have conflict with the UN Charter, the
However, Iran's rights to
peaceful nuclear technology, including the UE, are not treaty-based
rights. They are, as described above, sovereign rights. Article IV of the NPT
simply recognized this right; it did not grant it to Iran. So, the
argument based on Article 103 is false.
Sir Gerald G. Fitzmaurice, the
distinguished legal scholar and a Judge of the International Court of Justice,
has stated that 
The Security Council, even
when acting genuinely for the preservation or restoration of peace and security,
has a scope of action limited by the State's sovereignty and the fundamental
rights without which the sovereignty cannot be exercised.
K. The Security Council has
Violated Jus Cogens Prohibitions
As described earlier, if the
UNSC invokes Chapter VII of the UN Charter, it can do so only in a manner which
is consistent with the Purposes and Principles of the UN, as well as with other
international laws . For example, in a ruling in the case of Bosnia and
Herzegovina vs. Yugoslavia, for which the UNSC had issued Resolution
713 , Judge Sir Elihu Lauterpacht of the International Court of Justice,
declared that 
Nor should one overlook the
significance of the provision in Article 24 of the Charter that, in discharging
its duties to maintain international peace and security, the Security Council
shall act in accordance with the Purposes and Principles of the United Nations.
In particular, this implies that
the UNSC must not violate jus cogens prohibitions. Also called Peremptory
Norm, jus cogens, which is the Latin for "compelling law," is a
fundamental principle of international law, and acts as a norm from which no
derogation is ever permitted . For example, that no law can be enacted that
permits genocide is a jus cogens matter.
It is a well-established
principle that jus cogens prohibitions apply to the UNSC is also
applicable with equal force, when it is acting pursuant to Chapter VII. For
example, in the same Bosnia and Herzegovina vs. Yugoslavia case,
Judge Lauterpacht stated that  the UNSC could not take action under Chapter
VII contrary to jus cogens:
It is not to be contemplated
that the Security Council would ever deliberately adopt a resolution clearly and
deliberately flouting a rule of jus cogens ...
He also declared that ,
The relief which Article 103
of the Charter [of UN] may give the Security Council in case vof conflict
between one of its decisions and an operative treaty obligations cannot - as a
simple hierarchy of norms - extend to a conflict between a Security Coucil
Resolution and jus cogens.
(xi) What is the relevance of
jus cogens prohibitions to Iran's case? An important aspect of the UN Charter,
explicitly recognized by Article 2 of the Charter, is the principle of Equal
Sovereignty. This Article states that ,
To develop friendly relations
among nations based on respect for the principle of equal rights and
self-determination of peoples, and to take other appropriate measures to
strengthen universal peace.
It is an established legal fact
that the principle of Equal Sovereignty is a jus cogens matter and,
hence, cannot be violated.
This is highly important
because, if Article IV of the NPT (which recognizes a Member State's inalienable
rights for developing peaceful nuclear technology) is valid (which it is), then,
even if the UNSC can demand that Iran suspend its UE program, i.e., suspend
Article IV of the NPT for Iran, it must do so for all other Member States
of the NPT [96,97,98] as well. But by not suspending Article IV rights of all
Member States of the NPT, except Iran's rights, the UNSC has violated the jus
What Should be Done?
It is clear, from a legal view
point that Iran is in a very strong position. Had it not been for the "hot"
rhetoric of President Ahmadinejad regarding the Holocaust and Israel, and his
aggressive and dangerous foreign policy, Iran would have easily prevented
imposition of the sanctions and even referral of its nuclear dossier to the
Therefore, in the author's
opinion, those who care about the peace and are willing to do something to
prevent another criminal war in the Middle East may use the followings as the
(i) Explaining Iran's lawful
rights, the problem of referral of its nuclear dossier to the UNSC, the clear
violations of the UN Charter by the UNSC in issuing Resolutions 1696, 1737, and
1747, and how all of these are being used to justify yet another illegal war in
the Middle East, which will be catastrophic for the world, including the US.
(ii) Opposing Iran's insistence
on not suspending its UE program. If this opposition is to have strong and
rational foundations, the following points may be emphasized.
(a) The fact is, Iran does not
currently need to press ahead with its UE program. There are currently no
nuclear reactors operating in Iran. The only one under construction is in
Bushehr. But, according to an Iran-Russia agreement, the nuclear fuel for the
first 10 years of operation of the Bushehr reactor, when it comes online, is
guaranteed by Russia. Therefore, there is no immediate, or even intermediate,
need for enriched uranium in Iran. Thus, Iran can afford to suspend its UE
program for a short period of time.
(b) If nuclear reactors are to
replace oil as a source of energy for Iran, so that the oil can be exported,
Iran's oil industry must first be significantly upgraded and expanded to enable
Iran to protect its market share. This will, however, need $60 billion in
foreign investment over the next decade which will flow to Iran only if it can
resolve the present crisis
with the West peacefully.
(c) While it is true that the development of the complete cycle for the UE is an
important technological advancement for Iran, its significance to Iran's
industrial development has been greatly exaggerated by Ahmadinejad and cohorts.
The fact is, Iran must also make significant advancements in other areas of
science and technology, in order to be able to take full advantage of the
implication of its UE program. This, however, cannot be achieved without Iran
first resolving the present crisis peacefully.
(d) While Iran does have an inalienable right to the complete nuclear
technology, including the technology for UE, Iranian people currently have other
far more important rights that are being violated. Chief among them are the
rights to freedom of expression, thoughts, worship, private life style of own
choosing, peaceful gatherings and demonstrations, opposing the Government's
policies peacefully, and, most importantly, the right to live peacefully with
the rest of the world.
However, the opposition must
come with one caveat. So long as the dossier remains in the UNSC, Iran must, and
will, refuse to suspend the UE program. Aside from the above facts regarding the
legality of the UNSC demand, it is clear, and totally understandable, why Iran
refuses to suspend its UE: If it suspends its UE program because the UNSC
demanded it, then Iran will also need to have the UNSC authorization to
restart it. But that authorization will never come, because the US, Britain,
and France will veto it. So, in effect, by suspending its UE program due to the
UNSC demands, Iran will give up, forever, its right to have the full
cycle of the UE. That cannot, and will not, happen. Thus, the most prudent
course of action is to return Iran's nuclear dossier to the IAEA - its rightful
If the dossier is returned to
the IAEA, then, Iran must suspend its UE program for a fixed, short, and
agreed-upon period of time, in order to clarify the unclear aspects of its UE
program, and develop more trust in the international community regarding its
nuclear power program. In the past, Iran has hinted that it may be willing to
suspend its UE program, if its dossier is returned to the IAEA.
(iii) Opposing the dangerous
foreign policy, as well as the repressive and regressive domestic policy, of
President Ahmadinejad, his destructive rhetoric, the damage that they have
inflicted on Iran, and their abuse by the neoconservatives and their Israeli
allies, in order to try to justify military attacks on Iran.
When this article was completed
on December 3, 2007, the new US National Intelligence Estimate on Iran's nuclear
program was declassified. It stated  that Iran stopped its nuclear weapon
program in 2003 - while presenting no evidence whatsoever about the existence of
such secret program before 2003. Once again, the lies of the Bush administration
were revealed by the US own experts.
References and Notes
 M. Sahimi, Iran's Nuclear
Program. Part I: Its History;
 M. Sahimi, Iran's Nuclear
Program. Part II: Are Nuclear Reactors Necessary?
 M. Sahimi, Iran's Nuclear
Program. Part III: The Emerging Crisis;
 M. Sahimi, Iran's Nuclear
Energy Program. Part IV: Economic Analysis of the Program;
 M. Sahimi, Iran's Nuclear
Energy Program. Part V: From the United States Offering
Iran Uranium Enrichment Technology to Suggestions for Creating
 D. Linzer, Past Arguments
Don't Square with Current Iran Policy; the Washington Post,
March 27, 2005.
 However, the Washington Post
article  did not make any reference to Part V , even
though it was the first posted article to bring out the archived documents
of the Nixon
and Ford Administrations in the 1970s regarding Iran's nuclear program,
posted 4 months before the Post's article!
 See Parts IV  and V 
for detailed discussions of this point.
See also, T. R. Stauffer,
Unlike Dimona, Iran's Bushehr Reactor Not Useful for
Weapons-Grade Plutonium, Washington Report on Middle East Affairs
2003, p. 28, as well as,
 M. Sahimi, Iran's Nuclear
Energy Program. Part VI: The European Union's Proposal,
Iran's Defiance, and the Emerging Crisis;
 M. Sahimi, P. Mojtahedzadeh,
and K. L. Afrasiabi, Iran Needs Nuclear Power,
International Herald Tribune, October 14, 2003.
 M. Sahimi, Forced to Fuel:
Iran's Nuclear Energy Program, Harvard International
Review, XXVI (No. 4), Winter 2005, p. 42.
 For example, in a report to
the House of Commons of the British Parliament on
October 18, 2003, the Parliamentary Office of Science and Technology,
Professor David R. Cope, discussed the article in Ref. . See
 R. Stern, The Iranian
Petroleum Crisis and United States National Security,
Proceedings of the National Academy of Sciences USA, 104, 377
 On July 5, 2005, at a joint
news conference with the then France's Foreign Minister
Philippe Douste-Blazy, Secretary of State Condoleezza Rice said, "the
does not see the need for a civilian nuclear program in oil-rich Iran,"
despite the fact
that in the same news conference she said that the US strongly supports
neogotiations, and that the EU-3 has recognized Iran's right and need
for NPPs. See,
 D. Leglu, Liberation
(Paris), April 29, 1984.
 Statute of the IAEA;
 M. Hibbs, US in 1983
Stopped IAEA from Helping Iran Make UF6, Nuclear Fuel,
August 4, 2003.
 D. Albright, An Iranian
Bomb? The Bulletin of Atomic Scientists, 51 (No. 1), p. 54,
 See, for example, Iran
Admits to Uranium Mines and Reprocessing Plans; www.bellona.org/english_import_area/international/russia/nuke_industry/co-operation/28445
 D. Albright, What the
United States Knew, The Bulletin of Atomic Scientists, 60
(No. 2), p. 63, March/April 2004.
 W. J. Broad and D. E.
Sanger, As Crisis Brews, Iran Hits Bumps in Atomic Path, The
New York Times, March 5, 2006.
 R. Erlich, The Iran
Agenda, The Real Story of U.S. Policy and the Middle East Crisis
(PoliPointPress, Sausalito, CA, 2007), p. 26.
 International Atomic Energy
Agency, Report by the Director General,
Implementation of the NPT Safeguards Agreement in the Islamic
Republic of Iran,
June 6, 2003, document GOV/2003/40;
 International Atomic Energy
Agency, Information Circular, The Text of the
Agreement Between Iran and the Agency for the Application of
Connection with the Treaty on the Non-Proliferation of Nuclear
INFCIRC/214, December 13, 1974.
 P. Goldschmidt and G.
Perkovich, Correcting Iran's Nuclear Disinformation,
Carnegie Endowment for International Peace, Washington, D.C., March
27, 2007; www.carnegieendowment.org/npp/publications/index.cfm?fa=view&id=19078
 International Atomic Energy
Agency, Report by Director General, GOV/2003/40,
 International Atomic Energy
Agency, Information Circular INFCIRC/140, April 22,
 J. Shire and D. Albright,
Iran's NPT Violations - Numerous and Possibly On-going?
The Institute for Science and International Security, September 29,
 P. Goldschmidt, Rule of
Law, Politics, and Nuclear Nonproliferation, Presentation to
the International School of Nuclear Law at the University of
September 7, 2007;
 Implementation of the NPT
Safeguards Agreement in the Islamic Republic of Iran,
Resolution adopted by the Board of Governors, International Atomic
February 4, 2006, report GOV/2006/14;
 Iran states that it
received the document unsolicited from the A. Q. Khan, and that it
has not used it in any research. Although the author finds this
difficult to believe, the
jury is still out on the issue. The document is now under the IAEA
seal, but the IAEA
has not been allowed to have a copy of it.
 Statement by the IAEA
Director General Dr. Mohamed ElBaradei on Iran, August 11,
See also the interesting
article by M. ElBaradei, E. Nwogugu, and J. Rames,
International Law and the Nuclear Energy: Overview of the Legal
Bulletin Vol. 37 (No. 3) (September 1995), p. 12;
 Interview with Dr. Mohamed
ElBaradei, the Financial Times of London, February
The BBC interview with
Dr. Mohamed ElBaradei in June 2007;
 See, for example, Tomgram:
Mark Danner on the British Smoking Gun Memo;
 International Atomic Energy
Agency, report by Director General, GOV/2004/83,
November 15, 2004, paragraph 14;
 P. Goldschmidt, Iran's
Nuclear Program: Between Denial and Despair, June 15, 2007;
 See Ref. .
 International Atomic Energy
Agency, Board of Governors, report GOV/2007/58,
November 15, 2007;
 International Atomic
Energy Agency, report GOV/2005/87, November 18, 2005,
 International Atomic Energy
Agency, report GOV/2006/15 February 27, 2006,
 International Atomic
Energy Agency, report GOV/2006/53, August 31, 2006,
 Ref. , paragraph 15.
 International Atomic Energy
Agency, report GOV/2006/27, April 28, 2006,
 Ref. , paragraph 9.
 In fact, at least 230
Iraqi professors have been killed, and at least 56 are missing. See,
 See, for example, Y.
Melman, U.S. Website: Mossad Killed Iranian Nuclear
Physicist, Haaretz, February 4, 2007;
 D. Linzer, Nuclear
Disclosures on Iran Unverified, the Washington Post, November
 C. A. Robbins, Atomic Test:
As Evidence Grows of Iran's Program, U.S. Hits
Quandary, the Wall Street Journal, March 18, 2005.
 See, for example, G.
Prather, Smoking Gun;
Significance of Mysterious Iranian Laptop Disputed by Arms Experts;
M. Heinrich, U.S.
Atomic Expert Doubts Report of Iran Work, Reuters, November
But, see also W. J.
Broad and D. E. Sanger, Relying on Computer, U.S.
Seeks to Prove Iran's Nuclear Aims, the New York Times, November 13,
to see how the New
York Times, after all the lies of its reporter Judith Miller were
exposed, is still publishing articles that rely on unreliable reports
and the Bush
 G. Prather, Lessons
Learned - or Not;
 G. Prather, IAEA-Iran
Resolving Outstanding Questions;
 International Atomic
Energy Agency, Information Circular INFCIRC/637, November
 International Atomic Energy
Agency, report GOV/2004/12, February 2004;
 The Charter of the
 United Nations Security
Council, Resolution 1737, December 23, 2006, S/RES/1737;
 United Nations Security
Council, Resolution 1747, March 24, 2007;
 M. Spies, the Lawyers'
Committee on Nuclear Policy, Iran and the Role of the
Security Council, March 8, 2007;
 M. Spies, The Lawyers'
Committee on Nuclear Policy, The Security Council and Iran:
Further Escalation and Isolation, April 3, 2007;
 T. Deen, Politics:
Security Council Called Hypocritical on Nukes;
 J. Alvarez,
International Organizations as Law Makers (Oxford University Press,
London, 2005), p. 196.
 D. Albright and C.
Hinderstein, The Clock is Ticking, But How Fast? Institute for
Science and International Security, March 27, 2006;
 P. Kerr, Back to Normal,
Iran Nuclear Abilities Limited, Arms Control Association,
September 6, 2005;
 A. Cowell, Nuclear Weapon
is Years off for Iran, Research Panel Says, the New York
Times, Wednesday September 8, 2005, p. A11.
 The latest US National
Intelligence Estimate on Iran's nuclear program states that Iran
is about 10 years away from making a nuclear bomb. See,
D. Linzer, Iran Is
Judged 10 Years From Nuclear Bomb, The Washington Post,
August 1, 2005;
 Chapter VII of the United
 The United Nations Security
Council, Resolution 1696, S/RES/1696 (2006), July 31,
 Amnesty International
Report, International Criminal Court: The Unlawful Attempt by
the Security Council to Give US Citizens Permanent Impunity from
 Professor Emeritus of
International Law, University of Heidelberg, and Director
Emeritus, Max Planck Institute for Comparative Public Law and
 Professor, the London
School of Economics and Political Science.
 J. A. Frowein and N.
Krisch, Actions with Respect to Threats, in The Charter of the
United Nations: A Commentary, edited by B. Simma, 2nd ed. (Oxford
Press, London, 2002), p. 727.
 Legal Consequences for
States of the Continued Presence of South Africa in
Namibia (South West Africa) notwithstanding Security Council
Advisory Opinion, ICJ Report 293 (1971).
 Ref. , Rep. 294.
 Separate opinion by Judge
J. Gross, Ref. , 340.
 Prosecutor vs. Tadiae,
Decision on the Defence Motion on Jurisdiction, Case No.
IT-94-1-T, Trial Chamber, August 10, 1995, paragraph 23.
 Prosecutor vs. Tadiae,
Decision on the Defence Motion for interlocutory Appeal on
Jurisdiction, Case No. IT-94-1-AR72, Appeals Chambers, October 2, 1995,
 Ref. , paragraph 28.
 Ref. , paragraph 29.
 Hobbesian is derived from
Hobbism, the political philosophy of Thomas Hobbes
(1588-1679), the English philosopher. According to his philosophy, absolutism
government is necessary to prevent the war of each against all to which
selfishness inevitably leads mankind. For more on Thomas Hobbes' life see, for
 United Nations Security
Council, Resolution 1422 (2002), S/RES/1422 (2002), July
 For the Rome Statute see,
 Professor of International
Law at the University of Roma TRE, and a Judge of the
International Criminal Tribunal for Rwanda.
 F. Lattanzi, La
Corte penale internazionale; una sfida per le glurisdizioni degli Statli,
2002-III Diritto Pubblico Comparato ed Europea 365, p. 1372.
 Remarks by His Excellency
Mr. Paul Heinbecker, Ambassador and Permanent
Representative of Canada to the United nations at the 10th session of the
Commission for the International Criminal Court, July 3, 2002;
 United Nations Document
Doc. S/PV 4568(Resumption 1), July 10, 2002, at 9;
 Ref. , at 16.
 R. Lavalle, A Vicious Storm
in a Teacup: The Action by the United Nations
Security Council to Narrow the Jurisdiction of the International
Criminal Law Forum, 14, 1046 (July 2006).
 P. Sturma, International
Criminal Court at a Crossroads or in an Impasse: Some
Obstacles Related to the Jurisdiction and Cooperation;
 United Nations Security
Council Resolution 1540, April 24, 2004, preambular
 Ref. , p. 201.
 Statement by the
President of the Security Council, S/PRST/2007/1;
 D. Akande, The
International and Comparative Law Quarterly, 46, 309 (April 1997).
 Case concerning
application of the Convention and Punishment of the Crimes of
Genocide (Bosnia and Herzegovina vs. Yugoslavia), Further
requests for the
indication of provisional measures, Order of September 13, 1993,1993
 Ref. , paragraph 102.
 A. Maleki, UN Resolution
1696 and Iran's Legal Rights;
 See Ref.  for further
discussions of this point.
 See also the website
for the latest
developments on JUS COGENS issues.
 M. Mazzetti, U.S. Says Iran
Ended Atomic Arms Work, the New York Times,
December 3, 2007.
About the author:
Muhammad Sahimi, professor of chemical engineering and materials science,
and the NIOC professor of petroleum engineering at the University of Southern
California in Los Angeles, has published extensively on Iran's political
developments and its nuclear program.
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