Reforming UN Security Council Nuclear Sanctions Practice
Posted: January 17, 2014 Filed under: Nuclear 25 CommentsI’m pleased to be able to host another excellent guest post by friend of ACL Dr. Yousaf Butt. Yousaf makes excellent points in this piece, as usual, and I recommend it highly.
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Reforming UN Security Council Nuclear Sanctions Practice
By: Dr. Yousaf Butt*
Technically, Iran was not sanctioned by the UN Security Council because of past violations of its IAEA nuclear safeguards agreement, but because the UNSC chose to interpret these violations as a “threat to the peace”. However, Pakistan, India and Israel have far exceeded Iran’s nuclear threshold capability, and built actual nuclear weapons. They are — by any objective standard — far greater nuclear threats than Iran.
The UNSC would never have bothered with Iran if the “trigger” of the nuclear safeguards violations hadn’t raised the issue to the level of the UNSC. However, the only reason such triggers have not gone off for India, Pakistan and Israel is that, since they are outside the framework of the NPT, their IAEA safeguards agreements are watered-down and similarly strict triggers simply don’t exist. (The UNSC sanctions are applied under Chapter VII of the UN Charter, Article 39, in which the Security Council can determine a “threat to the peace, breach of the peace, or act of aggression and may recommend, or decide what measures to take…to maintain or restore international peace and security.”)
But just because there is no similarly stringent safeguards’ trigger to refer the cases of India, Pakistan and Israel to the UNSC does not mean the UNSC should be willfully blind about the threats they pose. The UNSC can sanction these nations on its own initiative. This minor bureaucratic detail — that an IAEA referral currently seems to be needed before a nuclear threat is even considered by the UNSC — results in a major flaw: NPT member states are punished more severely than non-NPT states, even if the latter nations make nuclear weapons and proliferate willy-nilly.
Moreover, the actions of some of the P5+1 nations negotiating with Iran, namely China and the US, go against the spirit and intentions of the NPT and could also be construed as a threat to peace. (Of course, there is no prospect of any P5 country ever being sanctioned for a threat to peace due to their veto powers.) But both the US and China are helping nuclear-armed NPT non-signatory states India and Pakistan, respectively, with their civilian nuclear programs. (And before it signed the NPT in 1992, France helped Israel with its nuclear program.) But the ‘firewall’ between civilian and military nuclear sectors in Pakistan, India and Israel is somewhere between porous to non-existent. So, essentially, the US and China are also helping the military nuclear sectors in these non-NPT states.
And, at the least, civilian nuclear assistance frees up nuclear resources – scientists and materiel, much of which are dual-use – which can be applied to the military nuclear programs in these non-NPT nations. Nuclear technology and assistance is largely dual-use and fungible. Thus the nuclear assistance given by China and the US to Pakistan and India can legitimately be seen as a violation of the NPT.
As Prof. Daniel Joyner points out in his book, “Interpreting the NPT”: “Many NPT Non-Nuclear Weapon States see this granting of nuclear technology concessions to India by an NPT Nuclear Weapon State as a positive reward for India’s decision to remain outside the NPT framework, and develop and maintain a nuclear weapons arsenal, which is the precise opposite to the incentive structure which the NPT sought to codify into international law.”
Under no circumstances should nations who have signed the NPT – whether or not they are currently seen to be in good standing – be sanctioned and treated more severely than those that haven’t signed on to the NPT and actually have developed nuclear weapons. Such heavy-handedness with signatory nations will undercut the desire of many nations to sign on to new arms control initiatives, like the Comprehensive Test Ban Treaty.
If the NPT is invoked to try to limit nuclear capabilities in signatory states like Iran via sanctions then even more toughness with the nuclear-armed NPT non-signatories is first needed. Conversely, so long as nuclear-armed Pakistan, India and Israel remain unsanctioned so should NPT signatories like Iran which only have an advanced — but thus far non-military — nuclear infrastructure.
This major flaw can be fixed if the UNSC instead shows initiative, behaves apolitically, and does not wait around for a bureaucratic referral from the IAEA in order to rouse itself and open its eyes to blatantly obvious nuclear threats.
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*Dr. Yousaf Butt, a nuclear physicist, is director of the Emerging Technologies Program at the Cultural Intelligence Institute, a non-profit organization dedicated to promoting fact-based cultural awareness among individuals, institutions, and governments. The views expressed here are his own.
Arms Control Law 
Afterthought: Should have added that since the CSA violations were resolved by 2008 (with the exception of the undocumentable PMD file) and since the DNI has high confidence that there is no nuke weapons work in Iran right now, the Iran “file” should return to the IAEA from the UNSC.
There can be no “threat to the peace” when the US DNI confirms with high confidence the absence of a current nuke weapons program.
Also, Article 39, which is the litmus test in order to pushing for Chapter 7, meaning “why” Iran is a threat to world peace was never approved or even explained. But Bolton rammed through Articles 41 and 42, without having the 39, from what I recall. Another screw up by UNSC.
Thanks. Would you — or anyone — have the blow-by-blow details on what occurred procedurally ? Are there any public minutes etc.?
Haven’t seen minutes of UNSC meeting, but this is regarded as a problem in some legal quarters. For instance, in Bruno Simma’s treatise on the UN Charter, Nico Krisch argues that the UN resolutions re: Iran evidence a new practice at the UNSC.
I discuss some of those issues here:
http://goo.gl/kQTe4v
I should add, however, that the UNSC has full authority to declare Iran’s program a ‘threat to the peace’, whether or not it gets there via IAEA procedural rules. Nothing would bar the UNSC from reviewing Iran’s program absent a referral.
Tyler — thanks — very helpful.
Re. your comment: ” the UNSC has full authority to declare Iran’s program a ‘threat to the peace’, whether or not it gets there via IAEA procedural rules. Nothing would bar the UNSC from reviewing Iran’s program absent a referral.”
I agree. But I would hope:
1. that a finding of a threat to peace were made
2. that, on a point of pure logic if not law, that even absent procedural rules the UNSC could make the same (or even more strenuous) determination of Israel, India and Pakistan.
I agree on both (1) and (2). We would hope a finding that Iran’s program constituted a ‘threat to the peace’ were made before the Council took enforcement action. Arguably, Council measures taken without such a determination are ultra vires.
Plus, we would hope the Council were consistent in its approach to proliferation. But we know that the U.S. tends to treat with special care the nuclear programs of its allies. For instance, UN Res. 1887, which calls on non-NPT states to accede to the NPT as NNWS, was not taken as a binding resolution in the way the Iran resolutions are.
http://www.cfr.org/international-organizations-and-alliances/un-security-council-resolution-1887-non-proliferation/p20316
For those who care about non-proliferation, as well as the fate of the Council itself, these are no doubt worrying trends, as you’ve pointed out.
Comment from Yousaf. He’s having trouble uploading it:
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Nick,
thanks very much — the process used is beyond me.
A good documentation is here:
http://www.iranaffairs.com/iran_affairs/2010/02/brill-kuperman_iran_unsc-resolutions.html
So the question for legal experts is can the UNSC even use sanctions under Art. 40 ?
And, if so, why wouldn’t anything about Iran that qualifies it for Art 40 treatment also not qualify India, Pakistan and Israel for the same or greater treatment?
Does the UNSC need the IAEA to learn about and alert it to the presence of nuclear weapons in non-NPT states, or can it handle such basic fact finding in-house?
Would love to hear legal view about what is legit under Art 40.
I _think_ the critical point is buried in this:
Article 40 provides that “the Security Council may, *before making the recommendations or deciding upon the measures provided for in Article 39*, call upon the parties concerned to comply with such **provisional** measures as it deems necessary or desirable. Such provisional measures *****shall be without prejudice to the rights, claims, or position of the parties concerned.***** The Security Council shall duly take account of failure to comply with such provisional measures.”
So is it legit to use sanctions under these conditions for Art 40 — which is what kicked off UNSCR 1696(2006) ?
Recall that Res. 1696 does not, per se, impose sanctions. Rather, it mandates that Iran adhere to a provisional measure — ‘suspension of enrichment-related and reprocessing activities’ — and warns that Iran’s failure to abide by such measure will be cause for the Council to impose sanctions under Article 41 (para. 8).
Thanks: the process is becoming a bit clearer — But did any of the subsequent sanctions’ resolution mention art 41? (maybe they did I have not checked….)
1696(2006) did say in para 8: “and underlines that further
decisions will be required should such additional measures be necessary”
I suppose it was implicit that the actual sanctions’ resolutions were under Art 41.
Seems like Art 40 is a weak link in all this — the UNSC can take up any small issue and draw a line in the sand to apply Art 41 (?)
But even if all this is true and legit — logically Israel, Pakistan and India should also stand to be subjected to similar treatment as Iran.
Subsequent to UN Res. 1696, all Iran resolutions invoked Article 41 as the basis for Council’s action. But again, the Council elided the determination required under Article 39 in doing so.
One more point on this: Art 40 is a pre-step to Art 39 — and not to Art 41 (at least explicitly), as seems to be what happened with Iran:
Article 40
In order to prevent an aggravation of the situation, the Security Council may, ******before making the recommendations or deciding upon the measures provided for in Article 39 *****, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.
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Seems like the text of UNSCR 1696(2006) — which uses Art 40 — deliberately perverted this chain of events to instead use Art 40 as pre-step to Art 41, instead of Art 39:
“Expresses its intention, in the event that Iran has not by that date
complied with this resolution, then to adopt appropriate measures under Article 41
of Chapter VII of the Charter of the United Nations to persuade Iran to comply with
this resolution and the requirements of the IAEA”
I’m out of my depth as to whether this is legit.
I have seen these issues debated before. I know that Eric Brill has written about them extensively and thoughtfully. I’ve just read Tyler’s piece at:
http://tylercullis.wordpress.com/2013/10/02/dubious-legality-of-sc-resolutions/
and I would recommend it as the best thing I’ve seen written on this subject. A very thorough and balanced review. It does persuade me that this is a deeper area of inquiry with more substance to it than I previously thought. Ripe for treatment in a law review article (hint, hint Tyler!).
Eric Brill
But UNSC Res 1696 says
That language, which is replicated in later resolutions, fails to make the specific determination that Iran’s nuclear program constitutes a ‘threat to (or breach of) the peace’.
To compare, see e.g. UN Res. 1973 (authorizing use of force in Libya): ‘Determining that the situation [in Libya] continues to constitute a threat to international peace and security.’
That is the typical language. The Council’s failure to invoke such language in Iran resolutions signals that there was broad disagreement over how to characterize the situation, not least because of the legal implications of one characterization as compared to another.
Good article. Jacques Hymans makes the point in his book states that. Accepted civil nuke aid didn’t proliferate because scientists were happier and there was more transparency. Bob on a bumpy nz bus
Sent from my iPhone
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Just wanted to make clear that the UNSC explicitly says it is using Art 40 for the (initial) sanctions: 1696(2006) —
http://www.refworld.org/cgi-bin/texis/vtx/rwmain?docid=453786b00
“Acting under Article 40 of Chapter VII of the Charter of the United Nations in
order to make mandatory the suspension required by the IAEA,”
I’m assuming subsequent sanctions just assume Art 40 also.
Thanks very much to input from Tyler.
My non-legal-expert take on this is all articles of Chapter 7 apply only in the case of “CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION”, whether explicit or implicit.
I remain confused why UNSCR 1696 uses article 40 to move on to article 41, whereas article 40 as written is a pre-step to article 39. Seems like a deceptive way to avoid the explicit languge in Art 39, and goes against the letter of Art 40.
I think the UNSC itself is confused about how to apply ch. 7 — from Tyler’s article:
one view is that…”simply by invoking Chapter VII in its resolutions, the Council implicitly makes a finding that the situation to which it responds constitutes a ‘threat to…or breach of the peace.’ In other words, the Council is absolved from stating the ‘magic words’ so long as it explicitly invokes Chapter VII in its resolution. This argument was advanced forcefully by the United Kingdom following passage of SC Res. 1160, where the UK delegate stated that, ‘by acting under Chapter VII of the Charter, the Council considers that the situation…constitutes a threat to international peace…’ That is, the mere invocation of Chapter VII in SC Res. 1160 had the same effect as an express determination that the situation posed a threat to the peace.
But this is an odd argument, especially considering the fact that the specific reason the Council did not make explicit the finding required by Article 39 is because Russia and China threatened to veto the resolution if such language was included. In other words, the UK wants us to believe that SC Res. 1160 implicitly includes the kind of finding required by Article 39, despite the fact that such a finding was explicitly rejected during Council debate by two veto-carrying members of the Security Council. That betrays the principle of good-faith legal interpretation, I think.”
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I think it was a bit disingenuous of Russia and China to threaten a veto over language, while agreeing to operate under Ch 7 which — in my non-legal-expert view — implicitly implies that some determination of “THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION” has been made — that is the title of the Chapter. Does it need to be re-spelled-out in each and every article?
http://www.un.org/en/documents/charter/chapter7.shtml
If Russia and China had wanted to be up-front about the issue they should not have agreed to operate under Ch 7.
In any case, the met-level argument in my piece, I believe still stands: the UNSC does not need to wait around for the IAEA to alert them to nuclear threats — and there are much bigger nuclear threats out there than Iran.
Agree with Dan — Tyler’s article is very helpful:
http://tylercullis.wordpress.com/2013/10/02/dubious-legality-of-sc-resolutions/
One point of clarification, Yousaf:
I’ve never done a thorough review of UNSC resolutions invoking Article 40, as I have Article 41 and 42, but I do know that most legal scholars who have spoken on the subject believe that the kind of finding required by Article 39 is likewise required under Article 40 (‘threat to peace’). The reason tends to be the placement of Article 40, after Article 39. This is, at times, called the ‘systematic’ view of Chapter VII.
No doubt, Chapter VII is no model of clarity. It is unclear, for example, the relationship between Article 39 and Article 40, as well as whether Article 40 resolutions should be seen as ‘decisions’ as compared to ‘recommendations’.
Nonetheless, I think the Council did act appropriate here (at least in this regard). In fact, I think that is the sole reason the U.S. did things the way it did. As we well remember, the U.S. had a difficult time winning over the Europeans – not to mention Russia and China – to a UNSC resolution re: Iran. Thus, the U.S. felt it best to proceed in such a way as to give credence to the measures under Articles 41 and 42 that it wished to take. By first passing a resolution that asked Iran to take a provisional measure – ‘suspension of enrichment-related and reprocessing activities’ – the U.S., I imagine, believed this was the way to win over the veto-carrying members of the Council. Iran would, no doubt, fail to abide by the resolution, thus ‘aggravating’ the situation, and the Council would then be forced to take more forceful measures outlined elsewhere in Chapter VII. In the U.S.’s view, this was the safest bet to get to the place it wanted to go.
Of course, that does not get rid of what I take to be your main concern: the Council’s elision of the substantive requirement that it respond to ‘threats or breaches of the peace’. Even if one does not believe the Council is legally mandated to make explicit such a finding before taking action under Chapter VII, we should be concerned about the erosion of any substantive limits on the Council’s powers to do what it pleases when it so pleases.
Tyler thanks again.
About the point in your report: “considering the fact that the specific reason the Council did not make explicit the finding required by Article 39 is because Russia and China threatened to veto the resolution if such language was included.”
Is there a news report or some documentation you could point us to that makes this objection and veto-threat explicit? Was it reported somewhere or was it common knowledge or something else? Just trying to find some documentation of the Chinese/Russian objection to that explicit language.
Thanks.
We don’t have access to the prior consultations between the parties over the draft of UNSC Res. 1696 or 1737, but it is a widely shared belief that this is what happened.
For instance, John Burroughs wrote extensively on the debates over the draft’s wording at the time, and that can be accessed here:
http://lcnp.org/disarmament/iran/UNSCres-jul06.htm
Also, if you pay close attention to the prepared speeches following the votes, Russia is explicit about the fact that the resolution’s wording prohibits any interpretation that would later justify a use of force. This follows closely with Nico Krisch’s view that Russia and China are attempting to bifurcate Article 41 and 42 resolutions to make the explicit determinations required by Article 39 applicable in the latter and not the former.
http://www.un.org/en/ga/search/view_doc.asp?symbol=S/PV.5612
Great! very useful documentation — from the first link:
“The use of Article 40 makes the resolution less emphatic in its invocation of Chapter VII of the Charter than the May draft. The reference to Article 39 was deleted, which Russia reportedly wanted done, apparently in order to lessen the impact of the resolution as a Chapter VII matter that could eventually lead to use of force. Notably the word “threat” is entirely absent in the resolution. Again, under an orthodox view of the UN Charter, a binding resolution under Chapter VII requires a finding, under Article 39, that a given situation constitutes a “threat to international peace and security”. Such a finding under Article 39 also grants the Security Council the authority to adopt sanctions under Article 41 or employ military force under Article 42. Previous drafts of the present resolution stated in their preambular paragraphs that the Council was “mindful” of the threat presented by Iran’s nuclear program. Also striking is that the word “decides” appears nowhere in the resolution, another softening of its tone.”
Yousaf, this may interest you
Russia will seek the removal tonight of the core of a UK-sponsored draft United Nations resolution on Iran because it fears that it could pave the way to unilateral military action to curb the Iranian nuclear programme.
http://www.independent.co.uk/news/world/politics/russia-says-un-plan-for-iran-is-first-step-to-war-477338.html
Cyrus, thanks for that.
Thanks, Yousaf. Deserves to be widely read, as does the National Interest piece.