New Paradigms Forum Proliferation Issues and Much More …

7Dec/09Off

The Promise and Problems of Security Council “Automaticity”

I was glad to have Bennett Ramberg – who is apparently, like myself, a former State Department official in an administration run by someone from the Bush family, though he seems to have had a decade’s head start on me – contact me to offer his response to my latest piece on the 2010 Nuclear Nonproliferation Treaty (NPT) review process and my prior comments on U.N. Security Council Resolution 1887.  I won’t bore NPF readers by going point by point through Ramberg’s piece from the Yale Global website.  Reader’s won’t be surprised to find that I agree with some parts of it, and not with others.  Instead, I thought it would be interesting to focus here upon the idea Ramberg advocates of a “pre-endorsed” U.N. Security Council (UNSC) enforcement mechanism for International Atomic Energy Agency (IAEA) safeguards violations.

The idea of a pre-established UNSC remedy has been most diligently championed by former IAEA Deputy Director General for Safeguards Pierre Goldschmidt, who since retiring from that agency has repeatedly urged the adoption of some kind of automatic UNSC mechanism to deal with safeguards noncompliance.  Goldschmidt, a thoughtful and scrupulous defender of nonproliferation good sense who since escaping the stifling political oversight of his Director-General has pulled few punches in his analysis of the Iranian situation and the challenges facing IAEA safeguards, has advocated a “generic binding resolution” at the Security Council for handling safeguards violations.  As he envisions it, this non-country-specific resolution would establish essentially automatic measures that would apply to any case in which the IAEA had found noncompliance.*

The measures that would be enacted in Goldschmidt’s generic but binding UNSC resolution would include immediately granting the IAEA additional legal authorities beyond what it already should have under a country’s Comprehensive Safeguards Agreement (CSA) and the IAEA Additional Protocol (AP).  There is much to be said for this.  It is a depressing fact of life – and should be chastening to those who believe that IAEA safeguards are a sort of magical remedy capable of preventing countries from misusing “peaceful” nuclear technology for weapons development purposes – that even with the Additional Protocol, safeguards are emphatically not capable of preventing nuclear abuses by a determinedly deceitful host government such as Iran.  Even IAEA Director General Mohammed ElBaradei, whom history will remember for his remarkable efforts to protect Iran from accountability for its safeguards violations, had to admit in in 2005 that faced with the sort of deception and concealment activities seen in Iran, the IAEA needed “transparency measures” that

“extend beyond the formal requirements of the Safeguards Agreement and Additional Protocol and include access to individuals, documentation related to procurement, dual use equipment, certain military owned workshops and research and development locations.”**

Goldschmidt’s proposed UNSC resolution would help close this gap in IAEA authorities vis-à-vis problem states by automatically giving the Agency extra inspection powers in any case of safeguards noncompliance.  Goldschmidt has also proposed that such a generic and binding resolution also require the violator to conclude a new “INFCIRC/66”-type safeguards agreement with the IAEA – that is, a type that would continue in operation even should that state withdraw from the NPT – and that it oblige the state in question to suspend all sensitive fuel cycle activities (e.g., uranium enrichment and reprocessing) for a certain (renewable) period of time.

Ramberg’s idea of a “pre-endorsed” UNSC remedy develops themes similar to those argued by Goldschmidt in terms of pre-ordained automaticity, but Ramberg focuses more specifically upon enforcement remedies.  Ramberg proposes that

“once the IAEA determines that a party is in material breach of NPT safeguards and the violator has resisted a cure within a specified time, the Security Council would set in motion a nonproliferation mouse trap.  Week 1, the Council would demand that the cheater verifiably reverse itself within no more than two weeks. Week 3, suspension of all international commerce to isolate the violator’s economy. Week 5, cessation of all commercial air travel, to further isolate. Week 7, naval and air blockade to quarantine. Week 9, military action.”

I have not discussed ideas of UNSC automaticity in public before, and perhaps I’ve waited too long.  I hope my friend Pierre Goldschmidt won’t feel slighted that I am addressing the issue only now.

So what do I think of the “automatic” remedy, whether in Goldschmidt’s safeguards-focused version or Ramberg’s dramatically ambitious punitive mechanism?  I like Security Council automaticity.  But I also worry about it – a lot.

As a lawyer, my first reaction to such ideas was to wonder whether it was even possible to set up a generic, legally-binding mechanism in advance of there being any known “target” for such measures.  It did not seem entirely clear to me that the UNSC could invoke its Chapter VII authority as against a hypothetical future situation as both Goldschmidt and Ramberg propose.  Having mulled it over, however, I haven’t thought of a persuasive reason why the Council couldn’t.

Public international law, after all, is not known for imposing a particularly dense web of requirements upon the world, or for surrounding them with a highly-developed corpus of general legal procedures, doctrinal principles, and means by which to clarify ambiguities and fill lacunae.  All in all, in fact, it provides a notoriously “thin” body of rules.  One of the few things that does seem clear amidst this general murkiness, however, is that the Security Council has the power under Chapter VII of the U.N. Charter to impose legally-binding obligations upon U.N. Member States – including UNSC members.  Perhaps the Council can declare something to have genuinely automatic application.  (Having this be possible, of course, isn’t the same thing as explaining why all the veto-wielding permanent members would find it in their interest to agree to such veto-emasculating automaticity, but that’s not a legal argument.)  Maybe Goldschmidt and Ramberg are right that some kind of automatic mechanism could be set up.

The bigger problem, however, would seem to be one of politics – and perhaps principle. It relates to the challenge of “outsourcing” Security Council decision-making under Chapter VII.  A genuinely “automatic” UNSC remedy requires a trigger, and is precisely the point of the proposals advocated by Goldschmidt and Ramberg to locate this trigger outside the Council itself – in their case, at the IAEA Board of Governors.

In effect, therefore, under such an automatic system, the real locus of decision-making in determining the international community’s legally-obligatory Chapter VII response to safeguards violations would be the IAEA, rather than the institution created by the U.N. Charter to exercise this power.  Under such a scheme, the IAEA’s finding of noncompliance would set in motion a chain of “automatic” consequences pre-established by the Security Council.  The Council would have set up the system (on a “generic” basis), of course, but the key decision with respect to whether any particular country would face noncompliance penalties – from Goldschmidt’s fuel-cycle suspension to Ramberg’s blockade and military action – would be made in Vienna, presumably by the IAEA Board of Governors.

This is the whole point, of course: it is the primary selling point of the “automatic” approach that the so often veto-paralyzed Security Council would not have to make the tough decision of imposing new rules or penalties upon any particular country.  The automaticity is quite explicitly set up in order to deprive the Council of the role the U.N. Charter intended for it as the world’s principal decision-maker vis-à-vis handling any particular threat to international peace and security.

I do not mean to suggest that the permanent members would not be entirely powerless in such a system.  The Council could certainly intervene to stop the application of automatic procedures in any specific case, or to modify or rescind the “generic” mechanism in toto.  Nevertheless, with respect at least to the particular noncompliance case in question, an automatic procedure would dramatically change the balance of power within the Council and indeed within the U.N. system as a whole.  Normally, a consensus among the five permanent members is required in order to make action possible.  Under an “automatic” system, however, such consensus agreement would be required, in effect, in order to stop the Council from taking action – or to stop, if you will, action from “just occurring” automatically – under Chapter VII against a particular country.  The power of initiative would have passed to the IAEA.

I am quite sympathetic to the Goldschmidt and Ramberg proposals, because I share their authors’ obvious frustration with the proliferation-protective Russian and Chinese vetoes – or simply the threats thereof – that have robbed the Security Council of its efficacy as an enforcement mechanism vis-à-vis Iran and North Korea.  I worry, however, that it may not end up being a better answer to outsource the key decisions to the IAEA Board.

My own involvement with the IAEA came in the wake of the public revelations in late 2002 of Iran’s previously secret nuclear activities at Natanz and Arak, after which I was dispatched by the U.S. Under Secretary of State for Arms Control and International Security to attend a series of IAEA Board meetings beginning in 2003 at which the agency aimed to deal with the situation.   It is, sadly, a matter of public record how shrill, politicized, and just embarrassingly counterproductive proceedings became over the ensuing months as Iran and its apologists in the newly-organized Vienna chapter of the Non-Aligned Movement – aided and abetted by timorous European diplomats more eager to revenge themselves upon the United States for Iraq than to prevent the proliferation of nuclear weapons to a belligerent clique of fanatical theocrats – rallied to protect Iran from being reported to the U.N. Security Council for its actions as the IAEA Statute required.

As this process played out, the IAEA Board – and, to some extent, the Agency as a whole –transformed itself from a narrowly-focused and admirably professional technical institution into a politicized mess of an organization more akin to the United Nations First Committee or the Conference on Disarmament.  This sorry metamorphosis was led by Director-General Mohammed ElBaradei himself, who subsequently explained that he felt himself – and this actually isn’t a joke: you should check out the amazing New York Times account – to be the world’s “secular pope” doing “God’s work” to protect Iran from “crazies” who he felt would use (accurate) information about its nuclear misdeeds as an excuse for war.

As the Board dithered, defying the requirements of its own statute that noncompliance “shall be” reported to the Security Council, Iran proceeded ahead with its nuclear work, turning Natanz from a hole in the ground into an operational enrichment plant.  Also taking advantage of diplomatic inaction, Iran and its friends spearheaded the creation of an sweeping new top-priority agenda item for NPT and IAEA-related diplomacy that could hardly have been better designed to destroy the long-term integrity of the entire nonproliferation regime: a political and pseudo-legal crusade to secure every country’s supposed “right” to develop fissile material production capabilities just like Iran is doing.  It took more than three years of acrimony for the IAEA to get around to doing no more than officially telling the Security Council about Iran’s safeguards violations.

If you liked that sorry diplomatic spectacle in Vienna, one might say, you’ll love the idea of empowering the IAEA to make Chapter VII sanctions decisions in the Council’s place.  For my part, I’m not sure the IAEA needs more political empowerment and polarization.  As bad a job as the UNSC has been doing, it was at least intended and designed to handle threats to international peace and security, and every once in a while it manages to live up to its billing in this regard.  To be sure, Elbaradei has now mercifully departed, but I do not brim with confidence in the IAEA’s ability to handle things if it were promoted, through the legal back door, as it were, to become the international community’s nuclear enforcer.

Nor do I think the Security Council would likely countenance such outsourcing anyway.  Why would all its members, especially the permanent ones, agree to a mechanism specifically designed to prevent it from having any choice in exercising, in any particular case, the unique authority it enjoys in the international system?  What likelihood is there that Russia and China would agree to give up their ability to cast or threaten proliferation-protecting veto votes in cases such as Iran – and to set a different body in the Council’s place as the relevant decision-maker for any specific noncompliance case?  I wonder whether asking the Council for such outsourcing, especially vis-à-vis things that seem like “punitive” exertions of Chapter VII power, is itself to asking for a permanent member’s veto.

With regard to Ramberg’s proposal, I have a further worry.  Even if the idea worked on its own terms, I wonder what it would actually mean to tie the whole automatic UNSC process to the violator country’s failure to “cure” its safeguards noncompliance.  The example of Iran is instructive: the real problem there is not Iran’s failure to “remedy” whatever safeguards noncompliance happens to have been detected.  Whenever it is caught secretly working on some new nuclear facility, Iran generally tends – eventually at least, albeit sometimes after trying to clean the place up (as with Kalaye Electric) or perhaps just razing it and carting away the topsoil (as at Lavisan) – to let the IAEA inspect that location and apply safeguards to whatever turns out still to be there.  But that’s not a “cure” to the underlying problem any more than it is a “cure” for burglary simply to require that thieves foolish or unlucky enough to get caught red-handed be given the option of purchasing any purloined merchandise discovered in their possession.

The real problem is not whether or not safeguards are applied to facilities that Iran fails to keep secret – though of course if such things do come to light, it is nonetheless imperative that they are safeguarded.  Such safeguards problems are merely symptoms.  The underlying problem is the depressingly obvious reason why Iran has kept undertaking secret nuclear work for the last two decades: its nuclear weapons ambitions.  The revelation of work demonstrating the bad faith and deceit of a host government is not a situation that is “cured” simply by establishing a rule that the malefactor can escape accountability by allowing the IAEA to inspect what it was unable to keep hiding.  Such a shallow rule of “cure,” in fact, would actually encourage steps toward nuclear weapons proliferation by making them costless.  This is the lesson that the international community seems so lamentably to be teaching Iran: “If you manage to keep your work secret, you get to reap its benefits without impediment; if you fail to keep it secret, you still get to keep it if you merely declare it to the IAEA.”  We send such messages at our peril.

An “automatic” UNSC approach predicated upon a finding of IAEA safeguards noncompliance that is tied to the violator’s failure to “remedy” those particular safeguards violations may therefore frequently miss the mark entirely, and indeed make itself perhaps even worse than useless by allowing – indeed, encouraging – shallow Iranian-style “cures” and discouraging Security Council engagement on the real issues raised by lawless behavior.  Building a Security Council mechanism around safeguards per se, in other words, risks missing the forest for the trees.  From the perspective of the Security Council’s mandate to protect and preserve international peace and security, curing safeguards problems in themselves is only part of the solution ... and quite a small one at that.

For these various reasons, I think that the only hope that an “automatic” UNSC approach probably has is in being very modest in its ambitions.  I admire Ramberg’s high hopes for automatic muscular enforcement, and his faith in the IAEA, but I think he asks too much.  Pierre Goldschmidt is probably closer to the mark in terms of proposing something feasible – especially to the extent that Goldschmidt can focus more upon IAEA-specific augmentations (e.g., additional inspection authorities and mandatory INFCIRC/66 safeguards in a noncompliant country) and he stays clear of things that smack of broad-brush Security Council prerogatives.  Such modest steps, relating closely and pretty much exclusively to the IAEA’s effectiveness in doing the job it has been given within the United Nations system, are perhaps politically saleable to the UNSC.  Asking for more, however, might be to court disappointment.

Since even such modest measures would be an improvement over the status quo, however, I support and encourage Goldschmidt’s effort to promote the idea – and his and Ramberg’s interest in automaticity in general.  That said, I’m not exactly holding my breath for such a Council resolution, either.  The problem that underlies all of this is a general failure of will and policy prioritization by the member states of the international community when it comes to preventing nuclear weapons proliferation.  Without making progress in turning that dynamic around, we will probably see no multilateral progress on any front, “automatic” or otherwise.

-- Christopher Ford

*     See, e.g., Pierre Goldschmidt, “The Urgent Need to Strengthen the Nuclear Non-Proliferation Regime,” Carnegie Endowment for International Peace (January 2006).

**         IAEA, “Implementation of the NPT Safeguards Agreement in the Islamic Republic of Iran,” GOV/2005/67 (September 24, 2005), at ¶ 50.


   

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