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Proof to Illegality of Security Council Measures against Iran

Wednesday, May 8, 2013

Reza Rahmati
Ph.D. Candidate of International Law and Expert on Nuclear Issues

In an earlier article entitled “Proof to Illegality of Referring Iran's Nuclear Dossier from IAEA to Security Council,” it was proved on the basis of a set of four arguments that referring Iran's nuclear dossier from the International Atomic Energy Agency (IAEA) and its affiliated Board of Governors to the United Nations Security Council was illegal. In this article, relevant evidence is provided to prove that the Security Council lacks competence to see into Iran's nuclear dossier. The article also elaborates on the measures taken by the Security Council against Iran and evaluates them according to the norms included in the Charter of the United Nations.

As for the measures that the Security Council is authorized to take against the States in accordance with the Charter, the seventh chapter of the Charter is good reference as it has clearly pointed to two mechanisms as follows.

1. Mechanism of arbitration (measures taken to protect international security)

According to Chapter VII of the Charter of the United Nations, the Security Council has vast powers for the assessment of decisions made in such situations as “threat to the peace, breaches of the peace, and acts of aggression.” Under such situations, the Security Council will not suffice to giving general recommendations. After detailed elaboration of the legal specifications of a situation and establishing it as a threat to the peace, breach of the peace, or act of aggression, the Security Council at first takes measures according to Article 40 of the Charter of the United Nations in order to prevent further aggravation of the situation. Such decisions are not accompanied with military measures.

2. Using the mechanism of sanctions and military force

According to Article 41 of the Charter of the United Nations, there are two kinds of measures which the Security Council can take against any “violating” state. Those measures include:

A) Sanctions: These measures may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations, if the Security Council’s recommendations fail to bear fruit.

B) The use of the armed force: These measures are taken when the former sanctions fail and the Security Council realizes that measures endorsed by Article 41 (diplomatic and economic punishments) have not been adequate. In that case the Security Council may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Here, the Security Council is authorized to use the armed force and take military decisions against the state or group of states which has been recognized to be posing threats to the peace, breaching the peace, and committing acts of aggression.

Security Council’s illegal measures against Iran

After this introduction, let’s have a look at the reasons for the illegality of measures taken against Iran by the United Nations Security Council. Here, we will suffice to five different kinds of evidence.

1. Acting against the Charter of the United Nations according to its Article 24

The Security Council has breached articles 1 and 2 of the Charter, that is, the same articles which set the “purposes and principles” of the United Nations. Both articles emphasize on the need to protect international peace and security. Article 24 says the Security Council should not take any measure to interpret any of the Charter’s articles in such a way that it would defeat its own purpose. However, the Security Council has acted against articles 1 and 2 as the main pillars of the United Nations Charter. As a result, referring Iran's nuclear case to the Security Council as an authority to settle disputes, is not a legal measure because the Security Council lacks the competence to see into Iran's nuclear dossier.

2. Lack of substantiation of Iran threat according to Article 29 of the Charter (with respect to threats to the peace, breaches of the peace, and acts of aggression)

The nuclear case of the Islamic Republic of Iran has been never considered as a threat to international peace and security. The Islamic Republic of Iran has never breached any of its obligations under the contents of the Non-Proliferation Treaty (NPT). None of the reports issued by the director general of the IAEA have ever said this, but all of those reports have confirmed lack of any diversion in Iran's nuclear activities toward military purposes and all of them have endorsed the peaceful nature of Iran's nuclear energy program. Therefore, involvement of the Security Council in Iran's nuclear case is clearly against the UN Charter. Article 39 of the Charter says, “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” However, the Security Council has not acted on that basis when administering punishments against Iran.

3. Not observing preconditions set for treating a state according to Chapter VII of the UN Charter

Apart from the above reasons and the fact that the Security Council lacks competence to handle Iran's nuclear dossier, which were explained above, the international body has ignored its own procedure by acting on Iran's case and basing its decision on Article 41, Chapter VII of the Charter of the United Nations. However, when acting under the text of articles 40 and 41 of Chapter VII, the Security Council should first respect a precondition set for it, which is taking measures stipulated under Chapter VI of the Charter for the “pacifist settlement of disputes.” The problem is that this precondition has been unfortunately ignored in the case of Iran. In other words, the mechanisms mentioned above have not been employed here, but the Security Council has directly resorted to the next level of mechanisms for putting pressure on Iran. This proves that the Security Council has been in violation of Article 40, Chapter VII of the UN Charter. This also means that the Security Council has not only failed to verify that there has been any threats to the peace, breaches of the peace, and acts of aggression; but it has also failed to take advantage of ordinary mechanisms specified by the Charter of the United Nations.

4. Irrelevance of the Security Council resolutions

The Security Council has also taken a faulty approach in legal terms to referring Iran's case to Chapter VII and adoption of anti-Iran resolutions thereupon. There are legal flaws with the resolutions adopted by the Security Council against Iran in accordance with Chapter VII of the Charter of the United Nations. One of those flaws is irrelevance of those resolutions according to the contents of Chapter VII. On the basis of that chapter of the UN Charter, as long as the Security Council is not sure about existence of any threat to international peace and security (as per Article 39), it would not be authorized to adopt a resolution on the basis of Chapter VII of the Charter. In case of Iran, the Security Council has not been able to substantiate the relevance of Article 39; that is, existence of any threats to international peace and security. At the same time, substantiation of such a threat is precondition for recourse to article 40 (for the adoption of “provisional measures”), Article 41 (for the imposition of sanctions and other measures not involving the use of armed force), and Article 42 (which paves the way for the “use of force”). Therefore, adoption of the Security Council resolutions against Iran has been “irrelevant.” This is why Iran's nuclear dossier should be ultimately brought under Chapter VI of the Charter of the United Nations (which is about pacific settlement of disputes) and should not be made subject to Chapter VII and binding resolutions resulting therefrom.

5. Violation of IAEA's regulations by the Security Council

The Security Council has asserted in its resolutions that its main goal is to help boost the authority of the IAEA. This issue requires that the Security Council resolutions remain within the limits of the IAEA's regulations. However, when taking decisions on Iran, the Security Council has gone beyond the legal requirements arising from the NPT, the Statute of the IAEA, and even the Safeguards Agreement between the IAEA and Iran. At the same time, the Board of Governors of the IAEA has clearly specified that most of its demands on Iran are for taking voluntary and nonbinding confidence building measures. The Security Council, which claims to be supporting the authority of the IAEA, has acted in opposition to the procedure taken by the IAEA Board of Governors because it has asked Iran to take those measures on a binding basis. This measure (trying to reintroduce voluntary measures as binding ones by the Security Council) has been taken in line with the political goals pursued by the Security Council. This issue was clearly asserted by Britain’s then Director General for Political Affairs at the Foreign and Commonwealth Office Sir Mark Lyall Grant, who currently represents his country in the United Nations, in a letter to his American, French, and German counterparts dated March 16, 2006.

Key Words: Illegality, Security Council, Iran, Sanctions and Military Force, Resolutions, IAEA, Regulations, Rahmati

Source: Borhan News Website
http://borhan.ir/
Translated By: Iran Review.Org

More By Reza Rahmati:

*Proof to Illegality of Referring Iran's Nuclear Dossier from IAEA to Security Council: http://www.iranreview.org/content/Documents/Proof-to-Illegality-of-Referring-Iran-s-Nuclear-Dossier-from-IAEA-to-Security-Council.htm

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