A Price Too High: Nuclear Proliferation and the Islamic Republic of Iran

There are many crucial international issues in play today. Some like global border conflicts, issues of national sovereignty, or issues of presidential elections are important to regional disputes or balance of power issues and certainly play a role in how nations interact with each other. However, there are few problems as looming as the issues of nuclear proliferation and control. The clashes surrounding this issue, paramount to global security and peace, are a short step away from falling into chaos and throwing the world into deadly anarchy. This unusual circumstance can be best embodied by the international controversy about Iran. The Islamic Republic has played a bold game as of late. Testing the will of the international community, it has willfully flaunted its ability to enrich uranium and has spit in the face of economic sanctions in a time of increasing financial hardship. Taking little heed to the opinions and desires of the United Nations and the International Community, it has embarked on a national crusade, making nuclear power a symbol of national pride. However, the pomp and bluster aside, there are very important legal issues to debate here. Nuclear proliferation has been at the heart of international discussion for decades. Specifically, in regards to Iran one needs to consider the legality of the issues: treaties and conventions on the matter, the right of sovereignty versus collective security, the use of force versus a peaceful settlement, anticipatory self defense versus aggression, and the balance of power in regards to a nuclear or virtually nuclear Iran. A ruling on the matter can be made if examined close enough.

Iran has been pursuing nuclear ambitions for years. Starting in the 1950’s with help from the United States, the program has progressed from one research reactor installed in 1967 to fifteen possible nuclear research sites including two nuclear reactors, one at Bushehr and the other being constructed at Darkovin. In 1968 Iran signed the Nuclear Non-Proliferation Treaty. Up until 1979 the civilian nuclear program was heavily supported by the west and guided by the International Atomic Energy Agency. However, after the 1979 Islamic Revolution the nuclear program changed gears. From 1985 to 2003 parts of the Iranian nuclear research program were hidden from the International Atomic Energy Agency (IAEA) and up until 2003 evidence points at an Iranian nuclear weapons program. The United States National Intelligence Estimate stated with, “a high level of confidence,” that the Iranian weapons program halted in 2003 and remains inactive.

Recently, Iran has even been cooperating with the international inspectors. However, the United States and Israel still argue that Iran is secretly pursuing nuclear weapon related technologies behind the back of the International Community. The EU-3, consisting of Britain, France, and Germany, also believe that Iran has intentions beyond that of civilian nuclear power. Several exchanges have taken place between the Iranian government and the International Community. Beginning in 2006 with Resolution 1696, the Security Council of the United Nations demanded “Iran suspend uranium enrichment…or face possible economic, diplomatic sanctions.” Iran has henceforth refused to stop uranium enrichment. A series of resolutions have since been passed. Resolution 1737 (2006) barred the sale of all nuclear related technology to Iran and seized assets, Resolution 1747 (2007) added an arms embargo, Resolution 1803 (2008) mandated states inspect cargo bound for Iran, and Resolution 1835 (2008) reaffirmed the previous four resolutions. Iran has refused all offers that impede its, “inalienable right,” to nuclear technology including offers to enrich its uranium in Russia and face to face talks with the United States if it halts enrichment. Today experts vary in opinion but most think Iran could enrich uranium or plutonium to weapons grade within two years. They are approaching virtual nuclear power status, meaning they have the technology and fissile materials to build a nuclear weapon. The IAEA determined Iran already has enough uranium to make six nuclear bombs if enriched high enough.

The first question to consider in these issues is whether or not Iran has the right to develop nuclear capabilities. The most pertinent document in regards to this is the Treaty on the Non-Proliferation of Nuclear Weapons (1970). Key elements to examine include Article II, Article III, Article IV, and Article X. Article II of the treaty prohibits non-nuclear states from “seeking control over such weapons,” and instructs them, “not to manufacture or otherwise acquire nuclear weapons.” This provision in and of itself is enough to theoretically outlaw nuclear weapon proliferation. Article III, P. 1 demands non-nuclear states comply with the International Atomic Energy Agency and their safeguard system preventing peaceful nuclear activities from being diverted to nuclear weapons. Article IV, P. 1 affirms the “inalienable right” of all states to develop peaceful nuclear energy sources without discrimination. Lastly, Article X, P. 1 asserts that any state can withdrawal from the treaty, “if it decides that extraordinary events…have jeopardized the supreme interests of its country.” The only precondition is that it must give notice of the withdrawal three months in advance. According to Article IV of the Non-Proliferation Treaty civilian nuclear development is perfectly legal and is in fact inalienable. If Iran really desired nuclear weapons it could indeed withdrawal from the treaty, and thus it argues that this is evidence that it is not pursuing nuclear weapons.

Why then would the United Nations be so insistent on Iran halting its uranium enrichment? The reason is from 1985-2003 Iran conducted secret nuclear development programs away from the eyes of the IAEA. According to the IAEA November 15, 2004 report titled Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran, “Iran’s cooperation up to October 2003 was marked by extensive concealment, misleading information and delays in access to nuclear material and facilities.” A 2007 United States National Intelligence Estimate document Iran: Nuclear Intentions and Capabilities also stated, “We judge with high confidence that in fall 2003, Tehran halted its nuclear weapons program; we also assess with moderate-to-high confidence that Tehran at a minimum is keeping open the option to develop nuclear weapons.” These documents clearly show reason for the continued attacks on Iran’s civilian nuclear program. According to the IAEA and the U.S. National Intelligence Estimate, Iran violated both Article II and III in pursuing nuclear weapons for a time and failing to comply with the IAEA safeguards. Iran also violated the Vienna Convention on the Law of Treaties, Article 26, known as the “Pacta Sunt Servanda” clause, in not performing the Non-Proliferation Treaty in good faith. The sanctions imposed in Security Council resolutions 1737, 1747, and 1803 were in accordance with the Charter of the United Nations, Article 41.

However, from the Iranian point of view sanctions are an effort to deprive Iran of its “inalienable right” to a civilian nuclear program and an effort for the nuclear power states to consolidate control. The argument can be made that Security Council Resolution 1696 violates Article IV, P.1 of the Non-Proliferation Treaty in discriminating against Iran’s enrichment program. Also Resolutions 1737, 1747, 1803, and 1835 could be seen to violate Article IV P. 2 in blocking the sale of technology and materials vital to Iran’s civilian nuclear program. The United States and the EU-3 state that Iran gave up these rights when their secret nuclear program came to light in 2002. However, one could argue that Iran has no legal binding obligation to comply with Resolution 1696 because it violates the U.N. Charter. The Statute of the International Court of Justice (ICJ), Article 38 makes no reference to the U.N. charter being superior to that of any other treaty. It states, “international conventions …establishing rules expressly recognized by the contesting states,” as the main source of international law. Under this theory the requests and sanctions put forth under Articles 40 and 41 of the U.N. Charter violate the principles of the Non-Proliferation Treaty and therefore do not have to be followed and are implicitly illegal. Glancing back, Iran does have the right to develop civilian nuclear power under the Non-Proliferation Treaty. However, the controversy surrounds the issue of whether or not Iran gave up that right when it violated said treaty to seek a nuclear weapons program that is no longer active.

Another aspect of the problem involves national sovereignty. If the controversy cannot be solved does the concept of collective security trump the national sovereignty of Iran? The west fears Iran obtaining a nuclear weapon. If Iran succeeds in enriching uranium to weapons grade it will then be too late to take action against it. Iran knows this; the concept of Mutually Assured Destruction is ingrained far too well. Any violation of Iran’s national sovereignty to stop its nuclear program would be constituted as intervention. The principles of sovereignty and non intervention goes back to 1648 and the Peace of Westphalia. It is prohibited by several modern treaties and legal documents as well including: Chapter 1, Article 2 of the U.N. Charter; Article 8 of the Convention on the Rights and Duties of States; the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of their Independence and Sovereignty; the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States; and by the United Nations General Assembly Resolution on the Definition of Aggression.

Collective security, on the other hand, draws from all the sources of law outlined in Article 38 of the Statue of the ICJ: multilateral treaties, international custom, the principles of law recognized by civilized nations, and the writings of highly qualified publicists. Collective security usually applies solely to the idea of multilateral political or defense treaties such as the North Atlantic Treaty Organization (NATO) or the European Union (EU). Even the United Nations was designed to promote collective security by guaranteeing peace in the world. To the West however, the idea of a nuclear Iran violates the very notion of collective security. To them, Iran is an unpredictable theocracy bent on regional dominance, threatening their interests and the status quo. A nuclear Iran would encourage other members of the Middle East to seek nuclear weapons to balance Iranian power and therefore, turn one of the world’s most volatile regions into the new Balkans. To them, Iran’s declarations of hate against Israel justify their collective security theory. President Mahmoud Ahmadinejad’s pronouncements that Israel will be, “wiped of the map,” and that it is, “head[ed] toward annihilation,” provide just moral reasoning to the West.

Iran has stressed the principle of non-intervention in its internal affairs, specifically, in regards to a military attack by Israel or the United States. The West, however, often believes it has a moral duty to save the world regardless of certain peremptory norms. It is this international concern that drove the United States to lead the crusade to create the League of Nations and 25 years later the United Nations. Recently it was behind the pronouncement of Iran as a member of the “Axis of Evil” and the War on Terror that has encompassed much of the Middle East. It is this international concern that has led the opposition to the Iranian nuclear program and the view that it is a destabilizing factor in an unstable region. It also goes against the interest of maintaining Western hegemony in that region, which is exactly what Iran desires. Iran is steadily achieving regional dominance. Even becoming a virtual nuclear power would cement Iran in that position, which is clearly its goal. That being said, Iran has publicly stated that nuclear weapons are antithetical to the religion of Islam. It has also proposed the Middle East become a nuclear free zone, but the United States and its allies in Europe and Israel reject this proposal as an empty ploy to lure Israel out. Regardless of why, the fact remain that at least Israel and the United States have not taken the use of force off the table when it comes to Iran.

According to the General Assembly Resolution on the Definition of Aggression any use of force outside the police actions of the United Nations or in self defense is illegal. Article 5 of this resolution states, “No consideration of whatever nature…may serve as a justification for aggression.” Combining this with Article 2 which states, “The first use of armed force….shall constitute prima facie evidence of an act of aggression,” any use of force outside a United Nations mandate that is not in retaliation of an attack is illegal. Ideally a peaceful settlement would be found but under Article 42 of the U.N. Charter the Security Council can order the use of force against a member nation to “restore international peace and security.” However, this is subject to the veto power of the five permanent members of the Security Council. When the Security Council cannot agree to take action in times of international peril should nations under siege just be abandoned? Or, perhaps can they take actions on behalf of themselves and others to secure international peace? Clearly they can. This is precisely what happened in the World Wars with the western European Powers declaring war to defend smaller neighbors. Then, can this principle be extrapolated to defend nations before attack? In the era of nuclear weapons when the complete eradication of a country can happen in minutes the logical answer is yes. This is the theory of anticipatory self defense.

If Iran had the intent to use nuclear weapons then under the theory of anticipatory self defense its nuclear facilities could be attacked to protect international peace and security. However, Iran has not proclaimed this. It would amount to political suicide if it did. Nevertheless, Iranian motives are clear. President Ahmadinejad’s ranting against Israel clearly shows he would shed no tears if the Jewish state disappeared, mushroom cloud or not. Their claims about Islam’s prohibition of the stockpiling of nuclear weapons could very well be a Machiavellian façade. In this case it would not be considered aggression. There is no legal obligation for suicide. The real question then is whether Iran has intent to develop nuclear weapons, and then whether it has intent to use them.

The use of nuclear weapons in any case whatsoever is prohibited by the General Assembly Resolution on the Non-Use of Nuclear Weapons and Prevention of Nuclear War, Security Council Resolution 984, and the ICJ Advisory Opinion on the Legality of the Threat of Nuclear Weapons. In stating that “the use or threat of use of nuclear weapons should therefore be prohibited,” the General Assembly affirms that Iran should not even consider obtaining them. This clause even technically outlaws the policy of deterrence. This means that Iran would have no reason to build nuclear weapons, period. If only the world were perfect. Iran has to think to the balance of power. As long as Israel has nuclear weapons, and as long as Israel is backed by the United States, Iran will be inferior without the threat of nuclear deterrence. The balance of power in the Middle East has long been in the favor of colonial or Western masters. Only recently have the nations of the region even achieved independence. Since Iran’s 1979 Islamic Revolution it has resented the United States’ influence in the region, looming like the colonial masters of old. Iran yearns for the glory of the Persian Empire and is striving toward regional dominance to obtain it. Even independent civilian nuclear power would further this goal, giving it the possibility of virtual nuclear power and the influence that comes with it. The West should also fear Iran’s connection to terrorist groups such as Hezbollah. If Iran enriched nuclear material to weapons grade and then gave it to Hezbollah it could find its way to the hands of Hamas and Al Qaeda and into Western cities such as Washington, New York, London, Paris, or Berlin. Rather than becoming a nuclear suicide state it could use proxies to destroy its enemies. This fear alone could trigger and anticipatory attack. If such an attack occurred, more than likely Iran would retaliate and there would be a large scale conflict.

The legal argument goes as follows. Iran has a right to civilian nuclear power but its history of concealment and failure of compliance with the IAEA makes it questionable to whether it has sacrificed its rights to nuclear technology. Nonetheless, the Non-Proliferation Treaty views civilian nuclear power as an inalienable right, a peremptory norm if you will. This makes it impossible to place restrictions on its peaceful nuclear development. As long as there is no military program and it cooperates with the IAEA it is not currently violating the treaty. However, Iran’s past violations do have to be accounted for. Iran’s history of concealment makes it seem untrustworthy and the Security Council now needs additional assurances to prove Iran seeks no military program. The fact that Iran has failed to comply with Resolution 1696 proves it is not willing to provide such assurances anymore. It also refuses to withdrawal from the Non-Proliferation Treaty, trying to seek the protection it grants. If Iran refused to comply with the U.N. resolutions and then it is either subject to the use of force under Article 42 of the U.N. Charter or expulsion from the United Nations under Article 6 of the U.N. Charter. If the General Assembly and/or the Security Council refuse to take such actions, as they probably will, then the ramification of a nuclear Iran and the country’s intention toward Israel must be examined. Recalling the holocaust like statements of Iran, a clear threat is identified. If Iran were to achieve efficient civilian nuclear power then it would become a virtual power with the high possibility of creating a weapon in secret. This follows that Israel has a right of anticipatory self defense against Iran in destroying the Iranian nuclear program. By no means should this attack be nuclear in itself, it should be sufficient to protect Israel’s interests. The principle of proportionality must be observed. Yet, if Iran were to accede to the demands of the Security Council it would retain its rights and sovereignty. Trust would be regained and a civilian nuclear program could indeed be established. Unfortunately, this is not likely without a change in heart from the Attoyllah and the President.

In consideration of all the bodies of work on nuclear proliferation and related topics one has to conclude that nuclear weapons in the hands of Iran would cause a drastic change in the balance of power and have possible devastating consequences for Israel and the West. This in turn would disrupt global security and peace which is a violation of the U.N. charter with costly ramifications. Iran should not be allowed to achieve nuclear weapons by any means. If they can generate trust through good faith and actions then they should be allowed to maintain their fully operational civilian nuclear program. The West in turn should accept Iran’s actions of good faith if it chooses to present them. If not, then they are trying to play by a double standard and the possible deadly outcomes necessitate a response, even one of force if required. The best possible outcome would be a peaceful one resulting from Iranian acquiesces to the Security Council and the U.N combined with renunciation of inflammatory rhetoric by both sides. If that is unattainable then the world will indeed see violence, the measure of which, while unknown, is surely more than the world can pay.