Iran's Resumption of Its Nuclear Program
August 22, 2005
According to news reports, Iran has resumed a process of converting yellowcake uranium that could eventually lead either to the production of energy for peaceful purposes or to the production of nuclear weapons. The Iranian government asserts that its program is for peaceful purposes. Iran is a non-nuclear weapon party to the multilateral Nuclear Nonproliferation Treaty (NPT). The NPT prohibits such parties from developing or acquiring nuclear weapons, but it permits them to develop nuclear energy facilities for peaceful purposes subject to safeguards administered by the International Atomic Energy Agency (IAEA), a United Nations-related organization. Iran ha s entered into a safeguards agreement with the IAEA and it has not interfered with IAEA surveillance of its declared nuclear facilities, but some of Iran's past conduct in connection with undeclared nuclear activities has led Western governments to be highly suspicious of its intent.
The Board of Governors of the IAEA, at a special session on August 9-11, expressed serious concern at Iran's resumption of conversion activities and urged it to return to the status quo. It did not take any further action against Iran, but it requested the IAEA Director General to report back by September 3 on the matter.
The United States, the United Kingdom, France and Germany have contemplated submitting the matter to the United Nations Security Council if Iran proceeds on its present course. The Security Council, acting under Chapter VII of the U.N. Charter, could find that Iran's actions constitute a threat to the peace, and probably could do so even if there is no convincing evidence that Iran is violating the NPT. If the Security Council makes that finding, it could subject Iran to economic sanctions that all U.N. member states would be obligated to implement.
The Security Council has imposed mandatory economic sanctions on several countries in the past, but not all member states have fully complied with them. The sanctions normally involve embargoes on selected goods and services other than items of a humanitarian nature. To impose sanctions, the five permanent Security Council members' China, France, Russia, the United Kingdom and the United States - would have to vote for the sanctions or at least abstain from voting against them.
Iran has threatened to withdraw from the NPT if it is subjected to U.N. sanctions. Article X, paragraph 1 of the NPT provides:
Each party shall in exercising its national sovereignty have the right to withdraw from the Treaty if it decides that extraordinary events, related to the subject matter of this Treaty, have jeopardized the supreme interests of its country. It shall give notice of such withdrawal to all other Parties to the Treaty and to the United Nations Security Council three months in advance. Such notice shall include a statement of the extraordinary events it regards as having jeopardized its supreme interests.
In January 2003, North Korea announced that it was withdrawing from the NPT because, it said, the United States was threatening its security. The issues raised by North Korea's withdrawal were discussed in an ASIL Insight posted shortly after its withdrawal. If Iran were to withdraw from the NPT, the issues would be essentially the same, relating to such things as its good faith in deciding that "extraordinary events" have jeopardized its "supreme interests," who gets to decide the good faith issue, and whether a withdrawal could be effective even before three months have passed.
The U.S. State Department apparently has considered denying a visa to Iran's new President, Mahmoud Ahmadinejad, to participate in the U.N. General Assembly meetings in September. According to the New York Times, if the State Department denies the visa it would be not only because of Iran's present nuclear activities, but also because of Ahmadinejad's possible role in the taking of American hostages in Tehran in 1979 - even though it has not been established that he was among the hostages' captors.
There is a precedent, but its legal effect is inconclusive. In 1988 the State Department denied a visa to Yasir Arafat, then the Chair of the Palestine Liberation Organization, when he sought to address the U.N. General Assembly. The U.N. Legal Counsel challenged the visa denial as contravening the Headquarters Agreement between the United States and the U.N. That Agreement, which has the status of a treaty under international law, provides that U.S. authorities shall not impose any impediments on transit to or from U.N. headquarters in New York by representatives of U.N. member states, irrespective of the relations between the U.S. government and the government of the other member state. The United States relied on the "security reservation" attached by Congress to the Joint Resolution bringing the Headquarters Agreement into force in 1947. Congress stipulated that "Nothing in the agreement shall be construed as in any way diminishing, abridging, or weakening the right of the United States to safeguard its own security and completely to control the entrance of aliens into any territory of the United States other than the [U.N.] headquarters district and its immediate vicinity . . . ." At that time (1947), the U.N. did not object to the reservation.
In 1988, the United States argued that Arafat was a security risk because of the PLO's connections with terrorists who targeted Americans, and therefore the "security reservation" applied to him. The U.N. Legal Counsel replied that, in the U.N.'s view, the reservation applies only to travel "other than" to the headquarters district and its vicinity, and in any event there was no indication that Arafat would engage in activities directed against the security of the United States while he was in the country. In the end, the visa was denied despite the U.N.'s objections.
Under the international law of treaties, the practice of the parties in the application of a treaty may be taken into account in interpreting it, but only if the practice establishes the agreement of the parties regarding its interpretation. Since the U.N. objected to the U.S. interpretation of the "security reservation" when Arafat's visa was denied, the incident would not establish an agreed interpretation of the Headquarters Agreement. Consequently, if a visa is denied to President Ahmadinejad, the U.N. Secretariat would not be precluded from asserting again that the U.S. "security reservation" does not apply to a person who is in the country only to participate in official activities at U.N. headquarters and who is not thought to be a threat to U.S. security while he is in the country. Nor would the U.S. be precluded from maintaining the same interpretation that it put forward in 1988.
If President Ahmadinejad is denied a visa, the U.N. General Assembly, as well as the Secretariat, might take issue with the United States. The General Assembly normally acts by way of making non-binding recommendations, but U.N. Charter article 12, paragraph 1, says that the General Assembly shall not make any recommendation regarding a dispute or situation if the Security Council is exercising its functions in respect of the same matter. Consequently, if the Security Council imposes economic sanctions on Iran (or takes other measures) concerning Iran's resumption of nuclear activities, a question could arise whether the General Assembly could properly make a recommendation on the visa denial. In any event, the U.N. Secretary-General, or the Legal Counsel, could object because article 12 is directed only at the General Assembly.
About the author
Frederic L. Kirgis, an ASIL member, is Law Alumni Association Professor of Law Emeritus at Washington and Lee University. He has written books and articles on international law, including a book on the law of international organizations, and is an honorary editor of the American Journal of International Law. The author is grateful to JosÃ© Alvarez for his helpful comments on a draft of this Insight. Any errors or omissions are the author's own.
 N.Y. Times, Aug. 9, 2005, p. A1.
 729 United Nations Treaty Series 161; 7 International Legal Materials 811 (1968).
 IAEA Doc. GOV/2005/64 (Aug. 11, 2005).
 U.N. Charter arts. 25, 39, 41, 48.
 See ASIL Insight, North Korea's Withdrawal from the Nuclear Nonproliferation Treaty (Jan. 2003), on line at http://www.asil.org/insights/insigh96.htm.
 N.Y. Times, supra note 1.
 United Nations Headquarters Agreement, June 26, 1947, Sections 11 and 12, in 11 United Nations Treaty Series 11. Under U.S. law, the Agreement is a Congressional-Executive Agreement because it was entered into with the approval of both Houses of Congress rather than with the advice and consent of two-thirds of the Senate, but the effect under international law is that of a treaty.
 Public Law 357, 61 U.S. Statutes at Large 756 (1947).
 Vienna Convention on the Law of Treaties, May 23, 1969, art. 31(3)(b), 1155 United Nations Treaty Series 331.