[Update. I’ve come to the conclusion that the first third of this post is in error, alas. I continue to differ with the view of the New York Times that the resolution is “largely symbolic” — so far, it looks pretty consequential for a symbol — and I don’t know what the Times means by “evidence” in this context, but the resolution is not part of a noncompliance process. It appears that the legal basis for future sanctions emanating from the Security Council will be the previous finding of noncompliance.]
If you follow nonproliferation closely enough, you might have been puzzled by Saturday morning’s news reports about GOV/2009/82, the new resolution of the IAEA Board of Governors referring the matter of Iran to the Security Council for the second time in almost four years.
On one hand, writing in the Washington Post, Glenn Kessler and Joby Warrick reported that the resolution found Iran to be in “breach of its obligation” and “will be referred to the U.N. Security Council, which has the authority to enact sanctions.”
On the other hand, writing in the New York Times, Helene Cooper and William J. Broad wrote that the resolution was “largely symbolic” and “falls short of the diplomatic step of finding Iran in formal ‘noncompliance’ or violation of its nonproliferation commitments, which would provide strong evidence to bolster the drive for a new round of sanctions.”
It will come as no surprise to nonpro wonks that the Times is in error. GOV/2006/14, which referred Iran’s case to the Security Council in 2006, invoked essentially the same language and procedures as yesterday’s resolution. Neither used the word “noncompliance,” preferring “breach of obligation.” More to the point, though, both instructed the IAEA Director-General to report the resolution to the SC.
[Update. It’s not quite so clear-cut; see the comment from Mark Fitzpatrick below.]
Regular ACW readers know that GOV/2006/14 has already led to five SC resolutions, including three rounds of sanctions. As the Bard instructed us:
What’s in a name? that which we call a rose
By any other name would smell as sweet.
(No need to dwell on what he wrote about lawyers.)
Safeguards Enforcement for Dummies
Enforcement of IAEA safeguards is a two-step process. First, the IAEA Board of Governors
by a two-thirds vote must refer a case of noncompliance to the UN Security Council. Second, the SC acts as it sees fit. (It’s actually four steps, if one counts the reports of safeguards inspectors and the IAEA Director-General.) This process is defined in Article XII, Paragraph C of the Statute of the IAEA, which reads, in part:
The Board [of Governors] 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 General Assembly of the United Nations.
Purely on its own authority, the BoG can also suspend assistance, recall equipment and materials, or suspend the membership of a stubborn non-complier. But the SC, per Article 24 of the UN Charter, has “primary responsibility for the maintenance of international peace and security” conferred upon it by the Member States.
As John Carlson, the director-general of Australia’s Safeguards and Non-Proliferation Office, pointed out in the May 2009 Arms Control Today, the BoG had referred five cases of noncompliance to the Security Council at the time of writing: Iraq in 1991, Romania in 1992, North Korea in 1993, Libya in 2004, and Iran in 2006. Now there have been six referrals.
SC action is not automatic; no sanctions were imposed against Romania or Libya, whose governments were seen as actively cooperating with the IAEA. But in the other cases, it was more or less a foregone conclusion, and that’s certainly the case this time around. What it takes to get a
two-thirds vote in the Board of Governors is not altogether different from what it takes to get a successful vote in the Security Council. That goes double if the sponsors of the BoG resolution include all five permanent members of the SC. The real question is what exactly the SC resolution will involve.
Preview of Coming Attractions
In practice, then, Friday’s resolution does two things. First, it fulfills a procedural requirement, as described above. Second, it makes a statement of intention. The permanent members of the Security Council are signaling that they’re going to act in that format. It’s a good question just how strong or credible that signal is, but that’s what it is — a signal. That’s how officials described it to the Post: as a “clear message” to Iran.
Glancing over the current composition of the SC, I’d guess that once a text is agreed to, Libya will vote against, Turkey will abstain (as it did in the BoG, according to Mark Heinrich of Reuters), and the rest will vote for. (The P5 and Japan voted for in the BoG.) How tough a resolution it will be is another matter; as in 2006, hints are coming from the Iranian side that NPT withdrawal could be on the table.
One final thought. For comparison to the Iran resolutions, see the very gentle GOV/2004/18, which referred Libya’s noncompliance to the SC “for information purposes only.” It used the word “noncompliance” and even mentioned Article XII, Paragraph C by name. The irony is, GOV/2004/18 was largely symbolic. GOV/2009/82, for better and for worse, is not.
Update. Mark Fitzpatrick writes:
[T]he NYT article wasn’t wrong in reporting the absence of a Board finding of noncompliance, as was the case in the 24 Sept. 2005 resolution (GOV/2005/77). The first operative clause of that resolution said: “Finds that Iran’s many failures and breaches of its obligations to comply with its NPT Safeguards Agreement, as detailed in GOV/2003/75, constitute non compliance in the context of Article XII.C of the Agency’s Statute.” The Feb 2006 resolution didn’t include this language because the only purpose was to forward to the UNSC a noncompliance finding that had already been made. This time I believe the Board should have made a similar explicit finding of noncompliance, using that term. I expect that the drafters omitted it in order to get a larger number of yes votes, and to try to preserve some (very) small prospect of a deal on the TRR fuel.
— Mark Fitzpatrick · Nov 29, 04:45 AM ·
Thanks to Mark for this important clarification. Whether it makes a great material difference is another question, since Iran is already in the dock of the Security Council. Perhaps, though, we should add this distinction to our qualms about how strong a signal this resolution really is.
Update. Another gesture of defiance.