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Security Council Resolutions and Nuclear Rights of Iran

Tuesday, May 8, 2012

Khalil Rouzegari
University Teacher and Member of Pars Institute of International Law

The possibility of recognizing nuclear rights of the Islamic Republic of Iran according to the 1968 Non-Proliferation Treaty (NPT) has been a subject for discussions by international legal experts after Iran's nuclear case was referred to the UN Security Council and a number of resolutions (especially resolutions Nos. 1696, 1737, 1747, 1803, and 1929) were adopted on it. Western legal experts have provided two arguments based on which they claim that recognition of Iran’s nuclear rights should be conditional. Firstly, they have noted that according to Article 4 of the NPT, it would be only possible to recognize the Islamic Republic’s nuclear rights if the international community can make sure about other articles of NPT being observed by Iran. Referring to history of Iran's nuclear activities (especially lack of timely reporting and allegations that Iran has violated its obligations according to the Safeguards Agreement) they have noted that Iran's nuclear rights should be suspended until the situation of its nuclear program is determined beyond any doubt. The second argument is based on the Security Council resolutions and the Charter of the United Nations. They have argued that in view of articles 25 and 103 of the Charter, the conflict between Iran's rights and obligations should be resolved by first observing the views of the Security Council which means suspension of Iran's nuclear program. In other words, the Security Council’s resolutions take precedence over country rights emanating from the 1968 treaty. Representatives of Western states that from the beginning of Iran's nuclear case have been less willing to focus on legal issues, have frequently implied their consent to these arguments. Here, we will focus on the second argument to verify its conformity to principles of the international law.

According to Article 103 of the Charter of the United Nations, obligations arising from the Charter take precedence over specific rights emanating from other international instruments. The question is “can the contents of Article 103 of the Charter be generalized to obligations arising from the Security Council resolutions (not obligations which emanate from the Charter) or not? Two major presumptive situations can be imagined here. Firstly, Article 103 cannot be generalized to all obligations resulting from the Security Council’s resolutions. In this state, one may believe that the aforesaid resolutions can by no means deprive Iran from the inalienable right that has been stipulated in Article 4 of the NPT. The second presumption is that Article 103 can be generalized to obligations arising from the Security Council’s resolutions. In this state, due attention should be paid to legal credit of the Security Council’s resolutions. In the second state, Article 130 can only be generalized to creditable resolutions of the Security Council, not those without legal credit because Article 25 of the Charter stipulates that resolutions should be approved in accordance with the “Charter of the United Nations.” Both presumptive situations should be assessed from the viewpoint of international law and related arguments should also be painstakingly analyzed.

On the one hand, the UN Security Council is, in fact, the executive arm of the UN and most tasks referred to it are of an executive nature. After the end of the Cold War and following terrorist attacks on September 11, 2001, the Council started to make laws by adopting resolutions 1373 (on fighting terrorism) and 1540 (on establishing a regime to prevent proliferation of nuclear weapons). This measure by the Council was, from the very onset, subject to serious doubt by legal experts. International legal experts have doubts about the possibility of basing the Security Council resolutions on the contents of Article 103 of the Charter. This issue will need a detailed scholarly account. In addition, there are many legal suspicions about legitimacy of the Council’s resolutions in Iran's nuclear case, especially in the light of the Council’s statutes. Anyway, even assuming that the Security Council’s resolutions on Iran's nuclear program are legally sound and can be based on the contents of Article 103 of the Charter, five legal points will still need critical attention.

Firstly, the inalienable right specified in Article 4 of the NPT is similar in nature to the right to legitimate defense which has been specified in Article 51of the Charter. In fact, this article points to a right that has been given to a state because it is a sovereign state. Therefore, one may conclude that Article 103 cannot apply to this group of rights.

Secondly, it seems that this right is part of the right to development, which in turn, is secondary to a principle or rule which has been confirmed by the Charter of the United Nations. In more clear terms, this right is part of the right of nations to self-determination and, therefore, does not come under Article 103 because neither the clear text, nor the spirit of this article denote precedence of obligations resulting from the Security Council’s resolutions over obligations arising from the Charter itself.

Thirdly, respect for peoples' right to self determination is among universal obligations of all governments and is one of those obligations which cannot be suspended on any account. Therefore, Article 103 does not apply to this right.

Fourthly, based on the decision made by the International Court of Justice in the case of Nicaragua, inclusion of customary rights in a treaty cannot lead to termination of those laws in international customary usage. Therefore, the rights enshrined in Article 4 have not become extinct because of their inclusion in an international treaty and have continued to live independent of that treaty. Since Article 103 only refers to priority of obligations resulting from the Charter of the United Nations to obligations emanating from agreements signed among states, one may assume that according to this argument, Article 103 cannot be applied to customary rights as enshrined in Article 4 of the NPT.

Fifthly, on the other hand, Article 103 cannot be applied to the NPT because Article 103 was originally designed to allow the states to justify their inability to fulfill trade and economic obligations with regard to another country when they are under economic sanctions. Those obligations, of course, should be result of concluding trade and economic agreements between the sanctioned state and other countries.

The aforesaid arguments assume that resolutions approved against Iran are entirely legal and creditable. The main point, however, is that due to reasons which follow, the Security Council’s resolutions are beyond the powers of the Council and, therefore, they are void and lack legal value. As said before, the doctrine of international law asserts that Article 103 cannot be applied to those Security Council resolutions which lack legal credit. The International Court of Justice, in its advisory view about the use of nuclear weapons, stated that the statute of every international organization should lay out all its duties and powers. In other words, all actions taken by that organization and its subsidiary bodies should conform to the statute of the organization. Otherwise, actions which are contradictory to the statute of an organization will lack legal credit and no legal value can be considered for them. On the other hand, let’s not forget that the Security Council cannot transcend the boundaries of law when making a decision. This point was highlighted when the International Criminal Court announced its opinion in the case of the Yugoslav war criminal, Dusko Tadic.

It seems that the Security Council resolutions on Iran’s nuclear program do not conform to the Charter of the United Nations and are, therefore, null and void. As for resolution 1737, Paragraph 2, Article 24 of the Charter has required the Security Council to act in line with goals and principles of the Charter. In that case, according to Article 25 of the Charter, its decisions will be biding and valid. Two points should be taken into account here. Firstly, the right to self determination has been enshrined in the Charter (Para. 2, Article 1). As said before, the right to access peaceful nuclear energy is part of every nation’s right to self-determination. Secondly, the inalienable right to have nuclear energy is a right which applies to states because they are sovereign states and ignoring that right will, in fact, amount to ignoring a country’s sovereignty which has been specified in Para. 1, Article 2 of the Charter. Therefore, one may argue that when adopting the aforesaid resolutions, the Security Council has not acted upon the contents of the Charter. Therefore, its resolutions lack credit and cannot be binding for Iran. Meanwhile, Article 103 cannot be applied to these resolutions.

As for resolution 1929, it should be noted that the Security Council has, in fact, taken a judicial measure in Article 5 of that resolution which is jurisdiction of the International Court of Justice. In more simple terms, the Council has taken a judicial decision while according to Article 29 of the Charter of the United Nations the International Court of Justice is the main judicial organ of the UN. According to Para. 3, Article 36 of the Charter, only the Court is competent to see into legal differences among the states, and the Security Council has no jurisdiction here. Therefore, the Council has taken measures which fall outside its jurisdiction and, for this reason, they lack legal value. As a result, this resolution cannot be considered legally binding and Article 103 cannot be applied to it.

More importantly, the Security Council has never considered Iran’s nuclear program a threat against international peace and security and, therefore, treating it under Chapter VII of the Charter of the United Nations is unjustified.

As a result of the above argument, it follows that the right enshrined in Article 4 of the Non-Proliferation Treaty still remains in place and measures taken by the West and the Security Council only serve to bolster Iran’s right from a legal viewpoint.

In conclusion, a quote from Montesquieu will be appropriate here when interpreting the powers and functions of the Security Council. He said, “There is no freedom as long as the power to judge is not separated from the executive power.” He added that the situation should be avoided when a person can enact and enforce oppressive laws and the judicial power is not separated from executive power. Montesquieu believed that in such a situation, when a judge can make the law and enforce it as well, decisions about life and freedom of people would be taken arbitrarily. “If that power (to judge) were with the executive power, the judge would be able to act as an oppressor,” he added. It seems that such arbitrary decisions have been frequently made by members of the Security Council in recent years.

Key Words: UN Security Council, Resolutions, Nuclear Rights, Iran, Obligations, Jurisdiction, International Law, Self-Determination, Rouzegari

Source: Iranian Diplomacy (IRD)
http://www.irdiplomacy.ir
Translated By: Iran Review

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