I just wanted to post a follow-up my previous 2 posts about the (il)legalities of the referral of Iran's nuclear dossier to the UN Security Council, and the oft-repeated and inadequately-examined claim that UNSC Resolution 1696 which demands that Iran give up enrichment is "binding" on Iran regardless of what the NPT says.
I've already covered most of the details in the previous posts about how the resolution is ultra vires and non-binding; this post is limited to the question of whether Iran "violated the NPT" - specifically Article III of the NPT and Article XII.C of the IAEA Statute which was cited as the legal authority that supposedly required reporting Iran to the UNSC.
It is often claimed that Iran's supposedly "hidden" enrichment program means that Iran was "non-compliant" with some vaguely-defined legal obligation. Leaving aside whether Iran's enrichment program was really "hidden" nor not, this vagueness about Iran's non-compliance is deliberate: no distinction is made between non-compliance with the actual requirements of the NPT and the IAEA Statute (a serious matter) versus non-compliance with a safeguards agreement due to a "failure to report" otherwise legal activity (a relatively common occurrence.)
This whole argument over whether Iran violated Article XII.C can be easily resolved by simply reading the text of statute. Fortunately, the IAEA Statute is available online. A full reading Article XII.C makes things a bit clearer about what "non-compliance" refers to by setting out three requirements for compliance:
1- The first requirement for compliance is "accounting referred to in sub paragraph A-6 of this article"
Paragraph A-6 of Article XII, in turn, states that inspectors are to be sent to account for fissionable materials and ensure none has been diverted for a "military purpose".
The IAEA did send these inspectors to Iran – many, many times. ElBaradei confirmed in Paragraph 52 of his November 2003 report that "to date, there is no evidence that the previously undeclared nuclear material and activities referred to above were related to a nuclear weapons programme." And again, after extensive inspections, ElBaradei wrote Paragraph 112 of his November 2004 report that "all the declared nuclear material in Iran has been accounted for, and therefore such material is not diverted to prohibited activities."
This statement by the IAEA is very significant, legally, because IT MEANS THAT IRAN DID NOT VIOLATE THE NPT.
As Michael Spies of the Lawyer's Committee on Nuclear Policy has written:
"The conclusion that no diversion has occurred certifies that the state in question is in compliance with its undertaking, under its safeguards agreement and Article III of the NPT, to not divert material to non-peaceful purposes. In the case of Iran, the IAEA was able to conclude in its November 2004 report that that all declared nuclear materials had been accounted for and therefore none had been diverted to military purposes. The IAEA reached this same conclusion in September 2005."
Testimony presented to the Foreign Select Committee of the British Parliament by Elahe Mohtasham:
"The enforcement of Article III of the NPT obligations is carried out through the IAEA's monitoring and verification that is designed to ensure that declared nuclear facilities are operated according to safeguard agreement with Iran, which Iran signed with the IAEA in 1974. In the past four years that Iran's nuclear programme has been under close investigation by the IAEA, the Director General of the IAEA, as early as November 2003 reported to the IAEA Board of Governors that "to date, there is no evidence that the previously undeclared nuclear material and activities ... were related to a nuclear weapons programme." ... Although Iran has been found in non-compliance with some aspects of its IAEA safeguards obligations, Iran has not been in breach of its obligations under the terms of the NPT."
Siddharth Varadarajan of the Hindu wrote:
"Despite this finding, the Board of Governors — acting under the pressure of the U.S. and the E-3 — voted on September 24 last year to find Iran in non-compliance with its safeguards agreement in the context of article XIIC of the IAEA Statute. Conveniently overlooked was the fact that article XIIC, as well as articles 18 and 19 of Infcirc 214 [Iran's Safeguard Agreement], define non-compliance essentially as diversion of safeguarded material for prohibited purposes, something Dr. el-Baradei had explicitly ruled out."
In short, Iran allowed the required IAEA inspections, and no diversion of fissile material to a "military purpose" was found. Thus, Iran did not violate this section of Article XII.C of the IAEA Statute and so there was no basis for referring Iran's file to the UNSC under the terms of this article.
2- The second requirement under Article XII.C of the IAEA Statute is "determining whether there is compliance with the undertaking referred to in sub paragraph F-4 of article XI"
A quick check of Article XI shows that it applies to "Agency Projects" meaning the projects in which the IAEA has provided technical assistance to a requesting country. And, subparagraph F-4 specifically requires that the assistance provided by the IAEA shall not be used for military purposes and shall be subject to safeguards.
Last I checked, the IAEA did not provide any such assistance to Iran which has been used for military purposes - in fact the US killed the IAEA's technical assistance to Iran's enrichment program in 1983, as well as all of Iran's other contracts with other nations to provide the necessary enrichment technology that Iran was quite legally entitled to obtain. Thus, I don't see how this provision applies, let alone how Iran could have violated it.
3- The third requirement is compliance "with the measures referred to in sub-paragraph A-2 of this article"
Subparagraph A-2 of Article XII requires observance of "health and safety" standards. Again, there hasn't even been an allegation of any violation of this section either.
In short, past breaches of safeguards agreements do not constitute a violation of the statute unless there's been a diversion for military purposes - which the IAEA has repeatedly said is not to case in Iran.
In fact the IAEA has found discrepancies the accounting of nuclear material in as many as 15 countries at a time (including S. Korea, Taiwan, and Egypt) - a few of which were later caught conducting secret and potentially weapons-related nuclear experiments - and yet they weren't referred to the UNSC for supposedly violating Article III of the NPT.
There was thus no basis under Article XII.C
to refer Iran's file to the UNSC, and Iran did not violate the NPT.
However, the US got the IAEA Board to go along with them after spying on IAEA Director Elbaradei and threatening to oust him, and bribing India with the carrot of nuclear cooperation (which is itself a violation of the NPT by the US since India is not an NPT signatory).