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Iran's Nuclear Energy Program. Part VII: Are Referral of Iran's Nuclear Dossier to the Security Council and Resolutions 1696, 1737, and 1747 Legal?


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 [1] provided a brief history of Iran's nuclear program, while Part II [2] 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 [3] 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 [4] 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 [5] 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 [5] 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 [8].


In Part VI [9] 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 [9], if Iran gives up developing the complete cycle for UE [14].


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 threefold:


(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 months.


(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 [5], 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 [1], 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 [15] 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 [16],


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 XI.4) [16],


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) [16]


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 [17]


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 [17]


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 [1], 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 [1, 18].


In February 2003, after Iran announced officially the existence of the Natanz's facility, Melissa Fleming, a spokeswoman for the IAEA, said [19]


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 1992.


David Albright, the President of the Institute for Science and International Security, has stated [20] 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 soon.


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 [21],


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 interview [22],


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 Obligations



The Subsidiary Arrangements General Part [23] (part of the Safeguards Agreement between Iran and the IAEA [24]), 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 2003.


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 [25] 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 [26], 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 [26] 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 Pope.


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 pundits.


According to the Provisions of the NPT, the Treaty is violated if a Member State violates the NPT's three main Articles [27] 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 (Article I);


(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 [16] 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 [24]


(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 making).


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 [28]) 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 [29]. 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 agenda.


The BOG of the IAEA adopted a Resolution on February 4, 2006 which, inter alia, stated that (item j of the Resolution) [30],


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 [31].


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 [31].


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" [32] or "judge intentions" or "read hearts" [33] of a country; these are a tealeaf reader's job not a scientist's, or a nuclear engineer's such as Goldschmidt.


Goldschmidt [29] 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 [29]:


"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) [34]


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 [35], 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 processing.


But, the IAEA report of November 2004 [36] (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 [29],


(i) This [UF4 conversion experiments] is a clear case of diversion of declared nuclear material,


even though the IAEA has declared otherwise.


(ii) It [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 [29] 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 [29]

Statement 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 [36] that the IAEA has not been able


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 [36] 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 Safeguards Agreement



Iran has acknowledged breaching its Safeguards Agreement with the IAEA by failing to report to the Agency the following activities [37]:


(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 Abaad.


(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 [5], 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 [38], the IAEA was mostly satisfied with Iran's explanation.


Note that, from the EU-3's perspective a major point of contention regarding this issue has been as follows:


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 [39], suitable for nuclear weapon [31]. Iran contends that the document was received from Pakistan along with the design for the P-1 centrifuge in 1987. In its latest report [38], the IAEA stated that it is sharing the document with Pakistan to verify Iran's claim.


(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 [40]. 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) [41].


(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 [42].


(v) Two other issues have essentially been resolved. One is experiments with plutonium, possibly from undeclared sources [43]. 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 [44] "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 [38], 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 [16] 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 [24] 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 nuclear activities.


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 Article 4.


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 [24]


(b)    (i) The Agency shall require only the minimum amount of information and data
     consistent with carrying out its responsibilities under this Agreement.


            (ii) Information pertaining to facilities shall be the minimum necessary for safe-
                  guarding nuclear material subject to safeguards under this Agreement.


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 [45], and the fact that a key Iranian nuclear scientist, Dr. Ardeshir Hassanpour, was presumably assassinated in February 2007, allegedly by Israel's Mossad [46]. 


Documents from the "Stolen" Laptop


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 [47] 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 [49] 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 [49].


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 [38], 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 [30] 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 referral legal?


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" [16]). 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 [29] that Article III.B.4 of the IAEA Statute empowers the Agency to refer Iran to the UNSC. This Article states [16] 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 [16]


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 non-compliance issue:


(i) Contrary to what has been argued [29], the responsibility for identifying non-compliance rests not with the BOG, but with the inspectors and the Director General, none of whom did report non-compliance.


(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" [16], 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) [50]


Implement transparency 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 investigations.


In other words, the BOG of the IAEA demands, hence exceeding it authority [50], 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 [51] (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 [52], 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 completely false:


First, as the Paris Agreement [52] 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 [53] 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 [54]. 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 [55], and 1747 [56]? 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 [64], 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 materialized.


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 [65] of the UN Charter [54] which is exclusively for [65]


Actions with respect to threat to the peace, breach of the peace, or acts of aggression.


totally absurd.


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 24.2 [54]


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 [54] 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 security.


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 [66]


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 situations.


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 International [67]


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 (Section



Furthermore [67],


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 [68] and Nico Krisch [69] also state that [70] 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 [70]


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-
      Israel Wars


(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
      Bogus Threat


(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 [67]. 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 [71]


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 [72]


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 [73]


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 [74]:


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 [75]:


Was there really a threat to peace justifying the invocation of Chapter VII ..?


The Appeals Chamber then declared [76] 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 [77],


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 the Charter.


This decision of the Appeal Court in the Prosecutor vs. Tadiae case has, in the opinion of legal scholars of international laws [67], provided the legal foundation for preventing the UNSC becoming the ultimate Hobbesian sovereign [78] 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 [79] which granted immunity to UN peace-keeping forces in any operation for at least one year. This violated  the Rome Statute [80] 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 [54], 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 [81] wrote that [82]


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 [83] (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 process.


Indeed! In Iran's case the UNSC has changed the terms of the NPT by acting ultra vires.



Germany's Permanent Representative to the UN declared [84] 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 proposal.


Jordan's Ambassador to the UN was even blunter [85]:


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 security?


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 [60]. 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 [24] 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 [88], 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 [89], 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 [57],


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 [90] (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 [56]


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 systems ....


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 [54]:


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 state.


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 [54] (emphasis with bold letters added),


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 that


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 Taken Sides



(ix) The UNSC must act as a non-representative, non-judicial body [57] but, through Resolutions 1696, 1737, and 1747 [56], 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 [66], 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 [56] 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 to


(1) Exploit its natural uranium deposits, and


(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 [54] does give the UNSC such rights. Article 103 states that [54],


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 Charter prevails.


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 [91]


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 [67]. For example, in a ruling in the case of Bosnia and Herzegovina vs. Yugoslavia, for which the UNSC had issued Resolution 713 [92], Judge Sir Elihu Lauterpacht of the International Court of Justice, declared that [93]


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 [94]. 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 [95] 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 [95],


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 [56],


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 cogens prohibitions.



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 UNSC.


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 "talking points."


(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 place


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 [99] 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



[1] M. Sahimi, Iran's Nuclear Program. Part I: Its History;


[2] M. Sahimi, Iran's Nuclear Program. Part II: Are Nuclear Reactors Necessary?


[3] M. Sahimi, Iran's Nuclear Program. Part III: The Emerging Crisis;


[4] M. Sahimi, Iran's Nuclear Energy Program. Part IV: Economic Analysis of the Program;


 [5] M. Sahimi, Iran's Nuclear Energy Program. Part V: From the United States Offering
       Iran Uranium Enrichment Technology to Suggestions for Creating Catastrophic
       Industrial Failure;


[6] D. Linzer, Past Arguments Don't Square with Current Iran Policy; the Washington Post,
      March 27, 2005.


[7] However, the Washington Post article [6] did not make any reference to Part V [5], 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, which was
      posted 4 months before the Post's article!


[8] See Parts IV [4] and V [5] 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 September
      2003, p. 28, as well as,


[9] M. Sahimi, Iran's Nuclear Energy Program. Part VI: The European Union's Proposal,
      Iran's Defiance, and the Emerging Crisis;


[10] M. Sahimi, P. Mojtahedzadeh, and K. L. Afrasiabi, Iran Needs Nuclear Power,
          International Herald Tribune, October 14, 2003.


[11] M. Sahimi, Forced to Fuel: Iran's Nuclear Energy Program, Harvard International
         Review, XXVI (No. 4), Winter 2005, p. 42.


[12] 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, headed by
         Professor David R. Cope, discussed the article in Ref. [10]. See


[13] R. Stern, The Iranian Petroleum Crisis and United States National Security,
          Proceedings of the National Academy of Sciences USA, 104, 377 (2007);


[14] 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 United States
         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 the EU-3/Iran
         neogotiations, and that the EU-3 has recognized Iran's right and need for NPPs. See,


[15] D. Leglu, Liberation (Paris), April 29, 1984.


[16] Statute of the IAEA;


[17] M. Hibbs, US in 1983 Stopped IAEA from Helping Iran Make UF6, Nuclear Fuel,
         August 4, 2003.


[18] D. Albright, An Iranian Bomb? The Bulletin of Atomic Scientists, 51 (No. 1), p. 54,
        July/August 1995.


[19] See, for example, Iran Admits to Uranium Mines and Reprocessing Plans;


[20] D. Albright, What the United States Knew, The Bulletin of Atomic Scientists, 60
         (No. 2), p. 63, March/April 2004.


[21] W. J. Broad and D. E. Sanger, As Crisis Brews, Iran Hits Bumps in Atomic Path, The
         New York Times, March 5, 2006.


[22] R. Erlich, The Iran Agenda, The Real Story of U.S. Policy and the Middle East Crisis
        (PoliPointPress, Sausalito, CA, 2007), p. 26.


[23] 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;



[24] International Atomic Energy Agency, Information Circular, The Text of the
           Agreement Between Iran and the Agency for the Application of Safeguards in
           Connection with the Treaty on the Non-Proliferation of Nuclear Weapons,
           INFCIRC/214, December 13, 1974.


[25] P. Goldschmidt and G. Perkovich, Correcting Iran's Nuclear Disinformation,
           Carnegie Endowment for International Peace, Washington, D.C., March 27, 2007;       


[26] International Atomic Energy Agency, Report by Director General, GOV/2003/40,
          paragraph 27;


[27] International Atomic Energy Agency, Information Circular INFCIRC/140, April 22,


[28] J. Shire and D. Albright, Iran's NPT Violations - Numerous and Possibly On-going?
        The Institute for Science and International Security, September 29, 2006.


[29] P. Goldschmidt, Rule of Law, Politics, and Nuclear Nonproliferation, Presentation to
        the International School of Nuclear Law at the University of Montpellier, France,
        September 7, 2007;


[30] Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,
         Resolution adopted by the Board of Governors, International Atomic Energy Agency,
         February 4, 2006, report GOV/2006/14;


 [31] 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.


[32] 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 Framework, IAEA
        Bulletin Vol. 37 (No. 3) (September 1995), p. 12;


 [33] Interview with Dr. Mohamed ElBaradei, the Financial Times of London, February
          19, 2007;


          The BBC interview with Dr. Mohamed ElBaradei in June 2007;


[34] See, for example, Tomgram: Mark Danner on the British Smoking Gun Memo;


[35] International Atomic Energy Agency, report by Director General, GOV/2004/83,
          November 15, 2004, paragraph 14;



[36]   P. Goldschmidt, Iran's Nuclear Program: Between Denial and Despair, June 15, 2007;


 [37]   See Ref. [35].


[38] International Atomic Energy Agency, Board of Governors, report GOV/2007/58,
          November 15, 2007;



 [39] International Atomic Energy Agency, report GOV/2005/87, November 18, 2005,
          paragraph 6;


[40] International Atomic Energy Agency, report GOV/2006/15 February 27, 2006,
          paragraph 34;


 [41] International Atomic Energy Agency, report GOV/2006/53, August 31, 2006,
          paragraph 24;


 [42]   Ref. [40], paragraph 15.


[43] International Atomic Energy Agency, report GOV/2006/27, April 28, 2006,
           paragraph 17;



[44]   Ref. [40], paragraph 9. 


[45]   In fact, at least 230 Iraqi professors have been killed, and at least 56 are missing. See,


[46] See, for example, Y. Melman, U.S. Website: Mossad Killed Iranian Nuclear
          Physicist, Haaretz, February 4, 2007;


[47]  D. Linzer, Nuclear Disclosures on Iran Unverified, the Washington Post, November
          19, 2004.


[48] C. A. Robbins, Atomic Test: As Evidence Grows of Iran's Program, U.S. Hits
          Quandary, the Wall Street Journal, March 18, 2005.


[49]   See, for example, G. Prather, Smoking Gun;


          J. Ruskin, Significance of Mysterious Iranian Laptop Disputed by Arms Experts;


          M. Heinrich, U.S. Atomic Expert Doubts Report of Iran Work, Reuters, November
          14, 2005;


          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, 2005;


          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
          administration's fabrications.


 [50]   G. Prather, Lessons Learned - or Not;


[51]   G. Prather, IAEA-Iran Resolving Outstanding Questions;


[52]  International Atomic Energy Agency, Information Circular INFCIRC/637, November
           26, 2004.


[53] International Atomic Energy Agency, report GOV/2004/12, February 2004;


 [54]   The Charter of the United Nations;


[55]  United Nations Security Council, Resolution 1737, December 23, 2006, S/RES/1737;


[56]  United Nations Security Council, Resolution 1747, March 24, 2007;


[57] M. Spies, the Lawyers' Committee on Nuclear Policy, Iran and the Role of the
          Security Council, March 8, 2007;


[58]  M. Spies, The Lawyers' Committee on Nuclear Policy, The Security Council and Iran:
          Further Escalation and Isolation, April 3, 2007;


[59]   T. Deen, Politics: Security Council Called Hypocritical on Nukes;


[60] J. Alvarez, International Organizations as Law Makers (Oxford University Press,
         London, 2005), p. 196.


[61] D. Albright and C. Hinderstein, The Clock is Ticking, But How Fast? Institute for
         Science and International Security, March 27, 2006;


[62] P. Kerr, Back to Normal, Iran Nuclear Abilities Limited, Arms Control Association,
         September 6, 2005;


[63] A. Cowell, Nuclear Weapon is Years off for Iran, Research Panel Says, the New York
         Times, Wednesday September 8, 2005, p. A11.


[64] 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;


[65]  Chapter VII of the United Nations Charter;


[66] The United Nations Security Council, Resolution 1696, S/RES/1696 (2006), July 31,


[67] Amnesty International Report, International Criminal Court: The Unlawful Attempt by
         the Security Council to Give US Citizens Permanent Impunity from International


[68] Professor Emeritus of International Law, University of Heidelberg, and Director
          Emeritus, Max Planck Institute for Comparative Public Law and International Law.


[69]   Professor, the London School of Economics and Political Science.


[70] 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 University
         Press, London, 2002), p. 727.


[71] Legal Consequences for States of the Continued Presence of South Africa in
          Namibia (South West Africa) notwithstanding Security Council Resolution 276,
          Advisory Opinion, ICJ Report 293 (1971).


[72]  Ref. [71], Rep. 294.


[73]  Separate opinion by Judge J. Gross, Ref. [71], 340.


[74] Prosecutor vs. Tadiae, Decision on the Defence Motion on Jurisdiction, Case No.
         IT-94-1-T, Trial Chamber, August 10, 1995, paragraph 23.


[75] Prosecutor vs. Tadiae, Decision on the Defence Motion for interlocutory Appeal on
         Jurisdiction, Case No. IT-94-1-AR72, Appeals Chambers, October 2, 1995, paragraph


[76]   Ref. [75], paragraph 28.


[77]   Ref. [75], paragraph 29.


[78] Hobbesian is derived from Hobbism, the political philosophy of Thomas Hobbes
  (1588-1679), the English philosopher. According to his philosophy, absolutism in
  government is necessary to prevent the war of each against all to which natural
  selfishness inevitably leads mankind. For more on Thomas Hobbes' life see, for



[79] United Nations Security Council, Resolution 1422 (2002), S/RES/1422 (2002), July
         12, 2002;


[80]  For the Rome Statute see,


[81] Professor of International Law at the University of Roma TRE, and a Judge of the
         International Criminal Tribunal for Rwanda.


[82] F. Lattanzi, La Corte penale internazionale; una sfida per le glurisdizioni degli Statli,
         2002-III Diritto Pubblico Comparato ed Europea 365, p. 1372.


[83] Remarks by His Excellency Mr. Paul Heinbecker, Ambassador and Permanent
   Representative of Canada to the United nations at the 10th session of the Preparatory
   Commission for the International Criminal Court, July 3, 2002;



[84]   United Nations Document Doc. S/PV 4568(Resumption 1), July 10, 2002, at 9;


[85]   Ref. [84], at 16.


[86] R. Lavalle, A Vicious Storm in a Teacup: The Action by the United Nations
          Security Council to Narrow the Jurisdiction of the International Criminal Court,
          Criminal Law Forum, 14, 1046 (July 2006).


[87] P. Sturma, International Criminal Court at a Crossroads or in an Impasse: Some
          Obstacles Related to the Jurisdiction and Cooperation;


[88] United Nations Security Council Resolution 1540, April 24, 2004, preambular
          paragraph 1;


 [89]    Ref. [60], p. 201.


[90]   Statement by the President of the Security Council, S/PRST/2007/1;


[91]   D. Akande, The International and Comparative Law Quarterly, 46, 309 (April 1997).




 [93] 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 I.C.J. Report,
          paragraph 101.




[95]   Ref. [93], paragraph 102.


[96]   A. Maleki, UN Resolution 1696 and Iran's Legal Rights;


[97]   See Ref. [96] for further discussions of this point.


[98]   See also the website

          for the latest developments on JUS COGENS issues.


[99] 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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