NORDIC

nordic journal of international law JOURNAL

OF

85 (2016) 147-161 INTERNATIONAL

LAW
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Current Development

∵
un Security Council vs. Weapons of Mass
Destruction

Hans Blix
Director-General Emeritus, International Atomic Energy Agency,
Vienna, Austria

Abstract

International institutions given the task to maintain collective security and to seek dis-
armament need to build on cooperation between major powers. The authors of the un
Charter vested great powers in the Security Council but a consensus between the five
permanent great powers was required for use of the powers. This inevitably paralyzed
the Council during the Cold War. After the end of the Cold War, the permanent mem-
bers have remained unable jointly to pursue disarmament, but they have succeeded
in several remarkable cases to reach consensus, notably on measures to prevent the
further spread of weapons of mass destruction. The quick action to eliminate chemi-
cal weapons in Syria was a win-win case led by us-Russian diplomacy, while the com-
prehensive deal settling the controversy over Iran’s nuclear program was a victory for
patient diplomacy involving all permanent members and the eu. These actions show
the potentials of the Council.

* The author welcomed the opportunity to give a lecture in memory of hilding eek, who
was his professor, scientific tutor and friend. This article is an edited transcript of the Hilding
Eek Lecture, delivered at Stockholm University on 16 November 2015.

© koninklijke brill nv, leiden, 2016 | doi 10.1163/15718107-08502003

148 Blix

Keywords

Security Council – great power consensus – disarmament – Syria and C-weapons –

Iran’s nuclear programme

1 Historical Background to the Collective Security System of the

United Nations

Human efforts to create pacts, tracts, rules, institutions and arrangements to

prevent war go far back in history. Some are famous, like the Plan for a Per-
petual Peace1 by Charles-Irénée Castel, Abbé de Saint-Pierre or the essay on
Perpetual Peace2 by Immanuel Kant in the 18th century, but it is only in the last
two hundred years that schemes of some effectiveness have been developed.
The Concert of Europe originating in the early 19th century was an effort to
maintain a public European order based on the legitimacy of the dynasties in
power. Like the un today, it relied chiefly on the great powers and its aim was
to uphold a balance of power between them. It had no formal organisation, or
even a secretariat, but met at periodic conferences and intervened actively to
counter revolutionary nationalism and to protect existing regimes.
The League of Nations, championed by the us President Woodrow Wilson
and set up as a part of the Versailles Treaty, was the ambitious first effort to
establish a permanent world organisation for the maintenance of peace: an
institution with a representative assembly, a council dominated by the great
powers and a Secretariat of independent civil servants.
As we know, the League had many shortcomings, not least of which was
the fact that the us never became a member. While it devoted much attention
and work to the question of disarmament, the results were meagre. The idea
of collective security – that members would collectively turn against any ag-
gressor – was there, but without a firm procedure to determine who was the
aggressor, nor mechanisms for mobilising and organising military responses.
The League collapsed, but it provided governments with valuable experience
in the designing of the intergovernmental institutions for the world after the
Second World War.

1 C.-I.C. de Saint-Pierre, Projet pour rendre la paix perpétuelle en Europe (Utrecht: Antoine
Schouten, 1713).
2 I. Kant, Zum ewigen Frieden. Ein philosophischer Entwurf (1795).

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Un Security Council Vs. Weapons Of Mass Destruction 149

2 The United Nations’ Security System

As iconoclasts love to cut to size any construction or institution that is pre-

sented as more muscular and monumental than it is, the un and its family of
institutions are subject to frequent pillorying. Yes, we know that the un has
not eliminated the scourge of war, and that other factors, such as the ­balance
of power, including the nuclear terror balance, strategic alliances and the
strength of national defences may often have been more important than the
un in upholding peace. However, it is worth noting that any failure of the un
to act has mostly been due to the failure of member states to agree, rather than
to any inherent shortcoming in the construction of its institutions or rules
about decision-making.
We may note, lastly, that despite its shortcomings, the un system has
now been in operation for some 70 years. The League of Nations lasted only
the 20 years between the two World Wars. In designing the security system
of the un, the authors of the Charter drew many lessons from the deficiencies
in the League and came out with a system that was both radical and realistic.
First, they obliged all members to refrain from the use, or threat of use,
of force against each other (Article 2(4)), and made exceptions only for self-­
defence against armed attacks (Article 52) and for actions undertaken or
­authorised by the Security Council (Article 42). Second, they charged the
Security Council (the Council) with the task of determining, on behalf of all
members, the existence of threats to peace, breaches of peace and of acts of
aggression (Art. 39) together with the task of determining who is to be consid-
ered responsible. Third, they authorised the Council to recommend or decide
on what is to be done about any such threats to the peace – from soft measures,
such as mediation or conciliation, to economic sanctions or other coercive
measures, up to, and including, the use of armed force. Fourth, they obliged
all the members to accept and carry out decisions of the Council (Article 25).
Theoretically, the Charter creates a comprehensive and effective system for
collective security. The authors were aware of the practical necessity to build
on the reality of the economic, political and military weight of the great pow-
ers, which at the time were the victors of wwii. These five3 were eager to main-
tain their power and influence and ready to shoulder the main responsibility
for world peace and world order. They ensured that the duties they assumed
were matched by special prerogatives in the Council – permanent seats and
veto powers.

3 The usa, the ussr, the United Kingdom, China and France.

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As the un was born the same year that the nuclear bombs destroyed
­ iroshima and Nagasaki, the new organization was aware from the outset
H
that a new weapon of mass destruction had been launched, that was, by orders
of magnitude, more destructive than any known chemical or bacteriological
weapon. It was fitting that the un’s concern about the new weapon was voiced
in the very first Resolution adopted by the plenary body of the organization,
the General Assembly.4 My focus, however, will be on the Security Council.

3 The Security Council and Disarmament

Article 26 of the un Charter mandates the Council to make ‘plans for the regu-
lation of armaments and to submit them to members to take action’. Why has
the Council done so little to fulfil this mandate? There are several reasons –
some understandable, some less acceptable.
First, the principal way to achieve limitations in states’ armaments goes
through their consent – notably to conventions. They may be more inclined
to give such consent if they have taken part in the working out and adoption
of the conventions in question. The Security Council – a limited group of 15
states, including the five permanent members (the P5) – is a clearly unsuit-
able forum for negotiating global agreements on disarmament matters. It is
understandable that it has left the global disarmament agenda to the General
Assembly, which in turn has relied on the wide circle of states in the ­Geneva
Conference on Disarmament to handle negotiations. The important non-­
proliferation treaty and the chemical weapons convention were both negoti-
ated in this rather large body, and so were the bans on the testing of nuclear
weapons.
Regrettably, the Conference has fallen into a coma in Geneva for the last
two decades. Moreover, despite having the matter of ‘general and complete
disarmament’ as an item on its agenda ever since I was a young legal advis-
er to Mrs. Myrdal, in the 1960s, the Geneva Conference has never seriously
­devoted itself to disarmament in the sense of decommissioning weapons.
The important treaties in this field are those between the United States and
­Russia, and these have, of course, been negotiated bilaterally. They have not
had any need for the Council. The important Treaty on Conventional Forces
in Europe (cfe) that achieved major East-West conventional arms reduction
was negotiated and concluded between nato and the Warsaw Pact countries.

4 un General Assembly Resolution 1(1) on the Establishment of a Commission to Deal with the
Problems Raised by the Discovery of Atomic Energy, 24 January 1943, a/res/1(i).

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Un Security Council Vs. Weapons Of Mass Destruction 151

The multilateral Conventions which have been agreed are those which restrict
the use of certain weapons, such as landmines, fragmentation weapons and
anti-personnel laser weapons. These conventions are not, as such, conventions
on disarmament.
It may be asked, why the Council has not, as the Charter requires, tried to
make plans for the regulation of armaments to be submitted to the members
of the un. Nor has it made significant use of the Military Staff Committee,
which is at its disposal and consists of the Chiefs-of-Staff of the P5. This body
appears to have shown some signs of life in recent years, but it has certainly
not presented any ideas on disarmament.
The main reason why the Security Council is not devoting itself even to
plans for disarmament, I am inclined to think, is that the major powers have
had little interest in such disarmament or have deemed it futile to even try
reduce them. However, whatever disagreements the P5 have between them-
selves – and they are many – they do have a joint ambition to prevent states be-
yond their own circle acquiring weapons of mass destruction, notably nuclear
weapons. They are ready to pursue this ambition by acting in the Council and
elsewhere.
The Non-Proliferation Treaty (npt)5 has been and remains the chief instru-
ment for states to commit themselves to not acquiring nuclear weapons, and
for the P5 to establish themselves as – at least temporarily – exempt from such
commitments. The npt must be regarded as highly successful, even though
four states that decided to stay outside the treaty – Israel, India and Pakistan
and South Africa – did develop nuclear weapons.
After the end of the Cold War – around 1990 – we can see an intensifica-
tion of the P5 efforts addressing weapons of mass destruction, and especially
nuclear weapons. There were some early and easy successes which did not rely
on the intervention of the Security Council. Russia and the us helped ensure
that Belorussia, Kazakhstan and Ukraine, states which had had nuclear weap-
ons on their territories when they were part of the ussr, sent those weapons
to Russia and joined the npt. South Africa dismantled its nuclear weapons
unilaterally, opened for International Atomic Energy Agency (iaea) inspec-
tion and joined the npt.
But in other cases, in respect of Iran, Iraq, Libya and North Korea, the power
of the Security Council has been brought to bear to counter the proliferation of
weapons of mass destruction (wmd), as I shall describe below.

5 Treaty on the Non-Proliferation of Nuclear Weapons (signed in 1968, entered into force in
1970).

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4 Security Council Generic Approaches to Counter wmd

Before I turn to these specific cases, I would like to describe some actions
through which the Council has sought, generically, to deter states from acquir-
ing nuclear weapons. At a summit level meeting of the Council in 1992 the
President of the Council made a statement recognising the duty of the Council
to prevent nuclear proliferation.6
This position was reaffirmed by a resolution of the 2009 summit chaired
by President Obama.7 The preamble to the resolution states that proliferation
of wmd and the means of their delivery constitute a threat to international
peace and security. It was a way of telling potential proliferators that the Coun-
cil would feel free to use enforcement measures under Chapter vii. Paragraph
1 of the Resolution’s operative part spells out more specifically – and in more
cautious terms – that a situation of non-compliance with non-proliferation
obligations “shall be brought to the attention” of the sc, which “will deter-
mine if that situation constitutes a threat to international peace and security”.
Paragraph 1 also “emphasizes the sc primary responsibility in addressing such
threats”. The language was evidently designed to avoid touching on Israel, In-
dia and Pakistan that have not assumed any non-proliferation obligations.
In the much cited Resolution 15408 the Council affirms its resolve to “take
effective actions against any threats to international peace and security caused
by the proliferation [of wmds]”. However, the major and most interesting
thrust of this resolution is Para. 2 of the operative part, whereby the Coun-
cil decides that “all States, in accordance with their national procedures, shall
adopt and enforce appropriate effective laws which prohibit any non-State
actor to manufacture, acquire, possess, develop….or use nuclear, chemical or
biological weapons….”
As this paragraph is expressly stated to have been adopted under Chapter
vii of the Charter, this decision becomes binding for all members. It is this de-
cision that has raised speculation as to how far the Council may be ready to go
in the direction of indirectly legislating for the world community.
World legislation through Security Council Resolutions could have many
advantages: you would not need to go through the tedious procedures of ex-
pressions of consent through signatures and ratification by nearly 200 indi-
vidual states. There would be no clause about the duration of the obligations

6 un Security Council, Note from the President of the Security Council, 31 January 1992 doc
s/23500.
7 un Security Council, Resolution 1887, 24 September 2009. s/res/1887 (2009).
8 un Security Council, Resolution 1540, 28 April 2004, s/res/1540 (2004).

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Un Security Council Vs. Weapons Of Mass Destruction 153

or about withdrawal. A decision of this kind could not be challenged in the

International Court of Justice as the Council is not subjected to the Court’s ju-
risdiction. Nevertheless, I think the Council will exercise some caution before
moving in this direction. If it ventured too far there would be a risk that states
would ignore it.
As an example of a pseudo-legislative action let me mention a speculation
that the Council could decide under Chapter vii that any further testing of
nuclear devices would be a threat to peace and security and that states must
refrain from such tests. The Comprehensive Test Ban Treaty (ctbt) is binding
for a very large number of states, but has not entered into force as it is missing
a few required ratifications – including those of China and the us. It would be
interesting to see how the us Senate would react to a sc resolution “outlawing”
further nuclear tests. Not too enthusiastically, I suspect.
As already mentioned, in some specific difficult cases – North Korea (dprk),
Iraq, Libya and Iran – the Council has played a significant role, and it is to these
cases I shall now turn.

4.1 The Case of the dprk

I begin with the least successful case – that of the Democratic People’s Repub-
lic of Korea (dprk, or North Korea). I visited the country in 1992, at the time
in which there were greatest hopes for a successful resolution. Together with
South Korea the country had made a very promising ‘Joint Declaration on the
denuclearization of the Korean peninsula’ and signed a safeguards agreement
with the iaea in conformity with its obligation under the Non-Proliferation
Treaty. Soon afterwards, however, suspicions arose that not all nuclear mate-
rial was declared as required under the safeguards. Since then, tensions, cri-
ses, talks to address the crises, and Security Council-decided sanctions have
marked the process for over 20 years. Some attempts to reach solutions have
been through bilateral talks between the us and dprk, many others multi-
laterally in the so-called Six Party talks between the us, China, Japan, Russia,
South and North Korea. None of these efforts have prevented the dprk from
developing a capacity for producing plutonium and enriching uranium, or
from testing nuclear weapons and developing (and testing) missiles of increas-
ing ranges.
At many junctures during this long period, beginning in 1993 the North
­Korean actions have been considered in and prompted a series of resolu-
tions by the un Security Council.9 Over the years, the Council has adopted

9 un Security Council Resolution 825, 11 May 1993 s/res/825(1993); un Security Council Reso-
lution 1695, 15 July 2006 s/res/1696(2006); un Security Council Resolution 825, 11 May 1993

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­increasingly severe economic sanctions that are supervised by a special sub-

sidiary sanctions committee and expanded sanctions have also been adopted
by the European Union and the us.
Neither these the pressures, nor unanimously promised programs of help
and development have induced the dprk to agree to dismantle their wmd
programs. This has not either led the Security Council or individual govern-
ments to threaten military action, which is understandable in view of the fact
that the South Korean capital, Seoul is within artillery range from the North.
Maybe the government in the dprk has felt that so far its nuclear weapons
capacity gives it greater safety than any paper commitments that it might be
offered by individual states and/or the Security Council against attacks and
intervention from the outside. It may also have in mind the Libya experience.
Even though Libya had cooperated to eliminate its (mainly chemical) wmds
following un sanctions, this did not protect the regime of President Kaddafi
for very long.

4.2 The Case of Iraq 1990

In the early days after the end of the Cold War, Iraq’s attack and subsequent
occupation of Kuwait led to agreed Security Council action, including the mili-
tary response in 1991 and the ban on the purchase of Iraqi oil. The un collec-
tive security system worked! President George Bush (Sr.), who should be given
much credit for the Council decisions and the successful action that faithfully
implemented it – spoke with pride about “a new international order”.10
The main aim of the military action that started in 1991 was to stop Iraq’s
aggression and occupation of Kuwait – not to eradicate weapons of mass de-
struction. At the time the Iraqi preparations for the production of biological
weapons were not known and the iaea, which, at that time, could rely only on
a rather limited safeguards system, had not found any indications of nuclear
weapons development. Only the existence of chemical weapons and missiles
was known, as these weapons had been used extensively during the long and
horrible war with Iran during the 1980s.

s/res/825(1993); un Security Council Resolution 1718, 14 October 2006 s/res/1718(2006);

un Security Council Resolution 1874, 12 June 2009 s/res/1874(2009); un Security Council
Resolution 2087, 22 January 2013 s/res/2087(2013); un Security Council Resolution 2094,
7 March 2013 s/res/2097(2013). Very severe sanctions were imposed under Security
Council Resolution 2270 (2016), adopted on 2 March 2016.
10 Address to the United Nations General Assembly by President George H.W. Bush, 1 Octo-
ber 1990, available at: http://www.state.gov/p/io/potusunga/207268.htm.

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Un Security Council Vs. Weapons Of Mass Destruction 155

Nevertheless, Council Resolution 68711 demanded that all wmd and longer
range missiles in Iraq be declared and eradicated. This became a highly signifi-
cant matter that engaged me personally, first as Director General of the iaea
in Vienna, for more than 10 years until 1997, and, later, as Chairman of the un
Monitoring Verification and Inspection Commission (unmovic) in New York
from 2000 to 2003.
In 1991, the United Nations Special Commission (unscom), a subsidiary
body created by the Security Council in New York, together with the Director
General of the iaea were mandated by the Council, through Resolution 687,12
to trace and destroy all nuclear, biological, chemical weapons and missiles of
certain range in Iraq and thereafter to monitor the absence of such weapons.
With consistent and effective support from the Council and several of its in-
dividual members, unscom and the iaea successfully performed their tasks.
In fact, by 1992 not many prohibited items were left. However, a great many of
the weapons and nuclear items had been destroyed by the regime without the
inspectors being invited to be present and leaving no credible evidence of the
eradication. Moreover, the inspections were often impeded and the inspectors
harassed, in a manner which suggested – erroneously – that there remained
wmds hidden in the country. The actual destruction of the weapons was thus
for the world like a case of succeeding in disarmament without knowing it…
Meanwhile, in the second half of the 1990s, the system of economic sanc-
tions imposed by the Security Council was gradually eroded by cheating and
corruption. These sanctions, though now less effective, continued nonetheless
to bring misery to the Iraqi population, despite attempts by the un to soften
their impact. To compound the difficulties, all inspectors were withdrawn
in 1998, following a long period of deteriorating relations between Iraq and
unscom.13
Aware of the crumbling system of sanctions and aware of revelations that
un inspection processes had served as the long arms and ears of national in-
telligence agencies, the Security Council took a new approach. In December
1999 it adopted Res. 1284,14 creating the new inspection commission that I
was appointed to head (unmovic), which was to be staffed by civil servants
subject to Article 100 of the un Charter. The task of unmovic was to identify
and clear up key remaining disarmament issues and then switch to long term

11 un Security Council Resolution 687, 8 April 1991 s/res/687(1991).

12 Ibid.
13 G. Harrer, Dismantling the Iraqi Nuclear Program (London: Routledge, 2013), p. 238 ff.
14 un Security Council Resolution 1284, 17 December 1999 s/res/1284 (1999).

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156 Blix

­ onitoring, allowing the Security Council first to suspend and eventually to

m
terminate sanctions.
Iraq was not inclined to see any un inspectors back in the country, and it
was not until after much un massaging and more robust us military pressures
that after the summer of 2002 Iraq accepted to receive inspectors again. After
a 4 ½ years absence the new inspection missions of umovic and the iaea
­performed intense new unimpeded inspections for three and half months –
i.e., until the “alliance of willing states” invaded Iraq in March 2003.
I shall not dwell here on the much discussed political aspects of the events.
I would like rather to raise some salient points:

• The economic sanctions, imposed by the Security Council, were effective

means of pressure to bring about the eradication of wmd in Iraq. However,
they were a blunt and brutal instrument and were maintained for far too
long – partly because of misleading Iraqi actions, partly for political reasons
in the us.
• Most international lawyers – including myself - are of the view that the inva-
sion in March 2003 without an authorisation of the Security Council was a
violation of Art. 2(4) of the un Charter.
• The infiltration and use of un inspection by national intelligence agencies
was a violation of Art.100(2) of the Charter, which requires members to re-
spect the international character of un staff.
• With the help of several states, especially the us, the techniques of inspec-
tion developed enormously during the long missions in Iraq.
• In spite of this development, the task of proving a negative – proving that
there are no prohibited items - is practically impossible. Even where there
are very professional and thorough inspection reports governments will
have to act– as in the case of many national decisions – on the basis of less
than 100 % certainty.

4.3 The Case of Chemical Weapons Use in Syria in 2013

On 21 August 2013 a large scale chemical weapons attack occurred at ­Ghouta
outside Damascus. It caused great loss of life and terror at the site. While Iraqi
use of sarin against Iranian forces in the war in the 1980s had not provoked
much international reaction, the attack near Damascus caused indigna-
tion around the world. A un investigation group was formed, and led by the
­Swedish chemical weapons expert Åke Sellström, it was dispatched to Syria. It
confirmed that chemical weapons had been used, but it was not asked and did
not indicate who was responsible for the action.

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In many quarters it was believed that the Government of Syria was respon-
sible for the attack, and in the us much pressure was brought on President
Obama to take armed action against the Syrian regime. President Obama had
earlier resisted pressure to intervene in Syria against the Assad regime, but had
stated that a use by the regime of weapons of mass destruction would alter his
calculus.15 This statement was now invoked and the President’s credibility was
said to require action. He appeared to be ready to act, even though he must
have been concerned about the possible consequences of another us armed
intervention in the Middle East, and been aware that a proposal in the Secu-
rity Council to authorise military action would have been blocked by negative
votes, including a Russian veto.
Then, on 6 September, at the fringes of a G20 summit meeting at St Peters-
burg, a surprising plan developed. The gist of it was that the Syrian government
should be urged to adhere promptly to the Chemical Weapons Convention, of
which – unlike the us and Russia – it was not a party. It should thereupon, and
without delay, do away with all its chemical weapons under the guidance and
supervision of the un and of the Chemical Weapons organisation. It might
seem like a miracle that the plan – called “Framework for the Elimination of
Syrian Chemical Weapons” – worked and was a win-win case for all except
those whose primary interest was the bombing of Syrian targets:

• The Syrian government escaped being weakened and punished by us bomb-

ings of uncertain scope,
• The Obama administration avoided the unknown further consequences of
launching itself with armed force into the Syrian war.
• Russia gained the advantage that the whole affair would no longer be in the
hands of a lone us “world police”. Rather, it would be handled within the
world organisations that had been given the task of handling such cases
and in which Russia had both a seat and a say —the un and the Chemical
Weapons organisation.

Many things could undoubtedly have gone wrong in the carrying out of this
plan, but through skilful cooperation between us, Russian, un and opcw
­officials it worked. One of the remarkable aspects of this plan was that interna-
tional chemical weapons experts could be mobilised to supervise the removal

15 J. Goldberg, ‘The Obama Doctrine: The U.s. president talks through his hardest deci-
sions about America’s role in the world’, The Atlantic, April 2016, online at: http://www
.theatlantic.com/magazine/archive/2016/04/the-obama-doctrine/471525/.

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158 Blix

of chemical weapons from, and destruction of, installations in the midst of a

civil war.
So, what precisely was the value added by the un Security Council?
The plan was not hatched in its chamber. Was it not, after all mainly a us-­
Russian – S­ yrian deal? Certainly, at the root, there were, as I showed, common
­interlocking interests. However, apart from the fact that the un and opcw
machineries provided much independent expertise and management, they
and their organs – the Security Council and the Executive Council of the
opcw – stood for the legitimisation of the whole enterprise – with Resolution
211816 as its most important document.

4.4 The Case of Iran

I turn lastly to the recent and ongoing case of the nuclear deal with Iran, sealed
in Resolution 223117 adopted by the Security Council on 20 July 2015. The back-
ground of the issue is the development in Iran of a very comprehensive nucle-
ar energy program, and many states’ lack of confidence that this program only
served peaceful purposes. The roots of the program stretched back to the time
before 1979 revolution, when the Shah was in power and was courted by many
Western states that wanted to sell both nuclear power reactors and fuel cycle
installations such as reprocessing plants producing plutonium. With the top-
pling of the Shah and the rise to power of Ayatollah Khomeini, the relations
with the West became hostile, especially with the us, whose embassy was oc-
cupied for over a year.
Western cooperation with Iran in the nuclear sector ended. The big project
for two power reactors at Busher near the Gulf was abandoned by the foreign
constructor, Siemens in Germany, in view of the war with Iraq that was raging.
The nuclear program had been drastically curtailed when Ayatollah Kho-
meini was in power, but it was later revived, and gradually attained such a scope
and orientation that many governments lost confidence that it was conducted
for only peaceful purposes. Neither the Board of Governors of the iaea nor the
Security Council of the un has at any time concluded that Iran has breached
its obligation as a party to the npt not to “manufacture” a nuclear weapon.
Yet, failure by Iran to provide timely declarations to the iaea about various
activities, including the enrichment of uranium, was a disregard of safeguards
obligations, and led to demands for more information and demands for the
suspension of enrichment.
France, Germany and the uk negotiated for years with Iran inter alia
about suspension, to no avail – apart from a limited period of suspension of

16 un Security Council Resolution 2118, 27 September 2013 s/res/2118 (2013).

17 un Security Council Resolution 2231, 20 July 2015 s/res/2231 (2015).

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Un Security Council Vs. Weapons Of Mass Destruction 159

enrichment during the presidency of Mr. Khatami. Later, the negotiating group
came to also comprise China, Russia and the us – the so called P5+1 or ec 3+3.
As Iran maintained its refusal to suspend enrichment as a gesture of good faith,
the Security Council made the demand mandatory. When this demand, too,
was ignored, the Council decided on economic and other sanctions against
Iran. In addition to un instituted sanctions, the us and the eu have imposed
other, unilateral, sanctions, most notably a ban on the import of Iranian oil.
Despite all these sanctions, negotiations between Iran and the P5+1 con-
tinued, and as President Ahmadinejad’s defiant style and positions were
­succeeded by the more conciliatory attitude of President Rouhani, these talks
began to bear fruit. The negotiations eventually led to a ‘Joint Comprehensive
Plan of Action’ (jcpoa) on 14 July 2015. For a variety of reasons – one of them
­undoubtedly being constitutional requirements in some of the negotiating
states – the ‘plan’ is not presented as an ‘agreement’ but as a statement of what
Iran will do and what the P5+1 will do.
In one of its final provisions the plan declares that “the eu 3+ 3 will submit
a draft resolution to the Security Council endorsing this jcpoa affirming that
conclusion of this jcpoa marks a fundamental shift in its consideration of this
issue and expressing its desire to build a new relationship with Iran”.
Thus, the pattern that was quickly developed and used in the less complex
case of Syria and its chemical weapons was repeated: negotiations between a
limited number of states was to be followed by a transfer of the results to the
Security Council, which has the constitutional power to give the plan – includ-
ing the power to terminate its own sanctions – legal force.
Resolution 223118 was adopted on 20 July 2015 and contains several remark-
able features. Interestingly, it welcomes, in a preambular paragraph “Iran’s
reaffirmation in the jcpoa that it will under no circumstance ever seek,
­develop or acquire any nuclear weapons”. The plan endorsed by the Security
Council thus goes beyond the non-proliferation commitment undertaken by
Iran in the npt. It is true that since the npt review conference in 1995 that
treaty has no expiry clause, but Art. x of the treaty still stipulates a right of
withdrawal if a party “decides that extraordinary events, relating to the subject
matter of this Treaty, have jeopardised the supreme interests of its country”.
This clause is now superseded by Iran’s pledge in the jcpoa.
It strikes a reader of the 104 pages long Security Council Resolution that
Iran has committed to a great number of detailed restrictions on its future
nuclear activities – for instance, on the number of centrifuges, the level of en-
richment, stocks of enriched uranium etc. together with stringent verification

18 un Security Council Resolution 2231, 20 July 2015 s/res/2231 (2015).

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160 Blix

mechanisms. The commitments on the other side are limited to an acceptance

of some Iranian enrichment of uranium, a lifting of sanctions and an end to
frozen relations. Not very onerous.
However, the commitments undertaken by Iran also do not appear very
onerous, when one looks at Iran’s practical needs in the field of peaceful de-
velopment and use of nuclear energy – including nuclear generated electricity,
Rather, through the restrictions, the confidence that Iran had lost, should be
regained to the benefit of Iran itself, but also to the region and the whole world.
Some clauses relating to sanctions are intriguing. The lifting of un sanctions
is, understandably for Iran, an essential part of the jcpoa and Resolution 2231.
But the possibility for the Council to re-impose sanctions is also an essential
part of the Resolution in case of a failure by Iran to abide by the plan. The way
in which this is regulated may reflect the political need of the us government
to be able, singlehandedly, to “snap back” sanctions. It is somewhat puzzling. I
shall try to explain.
Naively one might think that a re-imposition of sanctions that have been
terminated would come through a new decision by the Security Council. Such
a decision could obviously be prevented by lack of majority support or by
a veto. To obviate this risk Resolution 2231 enables any member of the Iran
deal – after having gone through elaborate procedures –to transmit an issue
of alleged non-performance by Iran to the Security Council. Within 30 days
the Council must then decide, not on a draft resolution re-imposing sanctions,
but instead – on a resolution “to continue in effect the terminations” of earlier
sanctions. If no member of the Council submits such a draft, the President of
the Council is obliged to do it. It is then enough that one permanent member
votes against the draft for the resolution to fail and the result is that termina-
tions will not continue.
We have no difficulty imagining a situation in which a draft resolution seek-
ing to re-impose sanctions is submitted by 14 members of the Council, but is
blocked by the veto of one P5 member. However, here we are faced with a situ-
ation in which sanctions terminated by the Council can be re-imposed by one
P5 state, even though perhaps all the remaining 14 states in the Council are
against it! A French ambassador called this “inversed veto procedure … a strong
and an innovative mechanism, which represents an unprecedented flexibility
from the five permanent members of the Security Council”.19 Thankfully, such

19 Gérard Araud, ‘Snapback: An Innovative Feature of the Iran Nuclear Deal’, The New Atlan-
ticist, 16 September 2015, online at: http://www.atlanticcouncil.org/blogs/new-atlanticist/
snapback-an-innovative-feature-of-the-iran-nuclear-deal.

nordic journal of international law 85 (2016) 147-161

Un Security Council Vs. Weapons Of Mass Destruction 161

action will not have retroactive effect to render illegal contracts entered into in
the period when sanctions were still terminated.
The text of the relevant paragraphs is as hard to read and understand as
the small print we find on the back of our insurance policies. Nevertheless, if
my understanding is right, one should register some admiration for the l­egal,
linguistic and logical audacity that allows the sc “to continue terminated
sanctions”. But for this innovative construction and its acceptance by all the
P5 members of the Council and by Iran, the recent and highly welcome, deal
might not have been achieved. Having said that, I hope the procedure will
never need to be applied. Whether it is desirable as a precedent needs to be
discussed.

nordic journal of international law 85 (2016) 147-161

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