On 24 September, the International Atomic Energy Agency's (IAEA) Board of Governors found Iran to be in non-compliance with its Nuclear Non-Proliferation Treaty (NPT) safeguard obligations in light of Iran's many failures to fully comply with these obligations. The resolution is a significant step in the long lasting Iranian nuclear issue before the IAEA since it for the first time stated Iran's non-compliance. Past resolutions simply affirmed that Iran was in breach with its obligations but never positively stated its non-compliance.
For the past two and a half years, the IAEA has been investigating Iran's nuclear program to verify its peaceful nature and to clarify a number of outstanding issues regarding its uranium activities. The IAEA found that in the past Iran failed to declare nuclear activities and facilities, especially as they relate to Iran's centrifuge program. In a diplomatic effort to gain assurance of the peaceful nature of the Iranian program, the EU-3 (France, Germany, and the United Kingdom) first visited Iran in 2003 to discuss the issues raised by the IAEA. The outcome of this meeting was a set of measures aimed at settling Iran's outstanding issues with the IAEA to which Iran agreed. Iran also agreed to rectify any failures to comply with its safeguards agreement. The arrangement broke down in June 2004 when Iran announced that it would resume producing centrifuges used for enriching uranium, and broke a number of seals that the IAEA had placed on equipment relevant to the construction and testing of centrifuges. It also announced the restarting of the production of uranium hexafluoride, the feed material for uranium enrichment. Within the framework of the Paris Agreement of November 2004, Iran returned to earlier agreements to suspend its enrichment activities. The EU-3 demanded "objective guarantees" that Iran will not misuse its nuclear program for military purposes, urging Iran to ultimately abandon the enrichment of uranium. Iran repeatedly denied any intention of producing nuclear weapons and cited its right to peaceful nuclear energy under Article IV of the NPT.
This issue brief provides background information on Iran's nuclear issue before the IAEA, highlights the content and importance of the resolution of 24 September 2005, and provides an outlook concerning next possible steps.
The Board of Governors, which has the authority to carry out the functions of the IAEA in accordance with the agency's Statute, adopted on 24 September 2005 a resolution that found Iran in non-compliance with its safeguards agreement. The resolution came after recent events caused further suspicion regarding Iran's nuclear program: negotiations between the EU-3 and Iran broke down in early August when Iran ended its voluntary suspension of uranium-related activities. IAEA Director-General ElBaradei confirmed Iran's resumption of uranium conversion activities, and submitted a report to the Board of Governors on 2 September 2005 stating that the IAEA has not been able to clarify important outstanding issues after two and a half years of inspections. The report notes that the IAEA is "still not in a position to conclude that there are no undeclared nuclear materials or activities in Iran."
The IAEA's inability so far to draw such a conclusion is based on the fact that its inspectors had no comprehensive access to sites and documents in question. This continues to cause serious concern, especially considering the recent breakdown of negotiations between the EU-3 and Iran that were based on the November 2004 Paris Agreement. This agreement set out several objectives according to which the EU-3 promised in May 2005 to deliver a proposal for a long-term agreement on how to handle concerns over the peaceful nature of Iran's program by the end of July or in early August. At the same time, Iran agreed to voluntarily continue and extend its suspension of nuclear activities, including all enrichment and reprocessing activities. On 1 August 2005, however, four days before receiving the EU-3 proposal, Iran notified the IAEA of its decision to resume uranium conversion activities at its Uranium Conversion Facility (UCF) at Esfahan. Iran rejected the "prolonged and fruitless negotiations" with the EU-3 who "did not have the intention or the ability to present its proposals." Arguing that the UCF did originally not belong to the IAEA category of enrichment-related activities and therefore does not fall under the Paris agreement, Iran expressed its readiness to continue good faith negotiations with the EU-3.
The EU-3 on the other hand view Iran's suspension of all uranium-related activities as a prerequisite for dialogue, and consider a resumption of uranium conversion a breach of the Paris Agreement. On August 2, the EU-3 told the Iranian government: "Were Iran to resume currently suspended activities, our negotiations would be brought to an end, and we would have no option but to pursue other courses of action." Even though Iran's suspension was not legally binding, negotiations did reach an impasse that led the EU to press for Iran's referral to the United Nations Security Council. At the Board of Governors meeting on 11 August, France stated that negotiations could only continue under the framework of the Paris Agreement.
On 8 and 10 August 2005, Director-General Mohammad ElBaradei reported that Iran started to feed uranium ore concentrate (UOC) into the process line, and that it removed IAEA seals on the process lines and at the UF4 plant at Esfahan. In reaction to Iran's resumption of nuclear activities, the EU-3 warned Iran that "Any such resumption of currently suspended activities, including uranium conversion, will only further heighten international concern about the real objective of Iran's nuclear programme." This statement is a more mildly worded version of earlier language, and does not explicitly repeat the threat of pursuing "other courses of action." It does however pressure the Board of Governors to regard Iran's action as "a development of great concern" and as "a flagrant disregard for the Board's repeated calls on Iran to suspend all enrichment related and reprocessing activities as a confidence measure." Here, the EU-3 draw attention to the November 2004 resolution that saw the full and continued suspension of activities as essential to addressing the outstanding issues that arose from Iran's past failures and breaches.
A few days later, on 11 August, the Board of Governors adopted a resolution that reflects the suggestions made in the EU-3 statement regarding further Board actions. The resolution urges Iran to restore the Paris Agreement conditions by re-establishing full suspension of all enrichment related activities on a voluntary basis. The Board of Governors also requested the Director-General to provide a report on the implementation of Iran's safeguards agreement and this resolution by 3 September. This request follows previous reports by the Director-General since March 2003. Iran has so far refused to suspend its nuclear activities.
On 2 September, the Director-General presented his most recent report, which builds on previous reports. It confirms Iran's resumption of uranium activities, and describes new findings since November 2004, when the Director-General submitted the last comprehensive report to the Board of Governors. The report notes that progress has been made in clarifying the two issues identified in November 2004 as relevant to the IAEA's efforts to provide assurance that Iran is not undertaking undeclared enrichment activities. Firstly, regarding the origin of low-enriched uranium (LEU) and highly enriched uranium (HEU) contamination found at various locations in Iran, "the results of the environmental sample analysis tend, on balance, to support Iran's statement about the foreign origin of most of the observed HEU contamination." However, the report goes on to point out that no conclusion could be reached so far regarding all instances of contamination, especially the LEU contamination. The second outstanding issue, the P-1 and P-2 centrifuge programs, could not be solved completely either, because "the Agency has not yet been able to verify the correctness and completeness of Iran's statements concerning those programmes." As a result, the Director-General concludes that the IAEA is still not in a position to verify that there are no undeclared nuclear materials or activities in Iran. The report uses strong language to implore Iran's refusal to go out of its way to allow for greater transparency, which is "indispensable and overdue." Iran is urged to give the IAEA access to individuals, documentation, equipment, workshops, as well as research and development sites. According to the report, "without such transparency measures, the Agency's ability to reconstruct, in particular, the chronology of enrichment research and development, which is essential for the Agency to verify the correctness and completeness of the statements made by Iran, will be restricted."
What Does the Resolution Say?
The September resolution starts with stating Iran's non-compliance in the context of Article XII.C of the agency statute. According to Article XII.C of the IAEA statute, the Board of Governors shall in a case of non-compliance call upon the state in question to remedy forthwith any non-compliance that has occurred. The Board of Governors shall also report the non-compliance to the United Nations Security Council, the organ bearing the main responsibility for the maintenance of international peace and security. In the event of failure of the State in question to take fully corrective action within a reasonable time, the Board may take additional measures leading up to the suspension of the non-complying member from the exercise of the privileges and rights of membership.
Iran's non-compliance with this article is based on "Iran's many failures and breaches of its obligations to comply with its NPT Safeguards Agreement." The Board of Governors furthermore finds in operative paragraph (OP) 2 of this resolution that "the history of concealment of Iran's nuclear activities [... has] given rise to questions that are within the competence of the Security Council." Director-General Mohamed ElBaradei is requested in OP3 to report again the issues he brought up in his report of 2 September 2005, which are the aspects of compliance, including latest developments. The Board did not set a due date for the report. An official of the U.S. State Department told Arms Control Today on 26 September that the Europeans tried to specify that the report should be delivered to the board no later than its 24-25 November meeting.
The resolution also contains five specific points listing what Iran is urged to do. Among these points is the ratification of the Additional Protocol and the taking of action in accordance with its provisions, even before its ratification. Also, past Board requests for Iran to take other steps to demonstrate its peaceful intentions were reiterated and Iran was again urged to implement transparency measures. It should however be noted that these steps are, as in the case of the EU's requirement for Iran's enrichment suspension, not required by Iran's safeguards agreement.
The first striking aspect when comparing the IAEA resolution of September with its predecessor of 11 August 2005 is that they do not differ significantly in the length of their operational part. The latest resolution refers to parts of the report of the Director-General of 2 September 2005 including the important passage "that the Agency is not yet in a position to conclude that there are no undeclared nuclear materials or activities in Iran." Also, in the latest resolution concerns are expressed about Iran motives in failing to make declarations and about the gaps in the agency's understanding of proliferation sensitive aspects in Iran's nuclear program.
The September resolution uses in many ways a more distinct language than the one from August. This can already be seen in the preamble. Preambular paragraph (e) of the latter resolution notes "that outstanding issues relating to Iran's nuclear programme have yet to be resolved, and that the Agency is not yet in a position to conclude that there are no undeclared nuclear materials or activities in Iran." In contrast, the September resolution plainly recalls "Iran's failures in a number of instances over an extended period of time to meet its obligations under its NPT Safeguards Agreement" (preamble (d)). But this succinct language can not only be found in the section listing the shortcomings of Iranian behavior. It is also the reference to the right to peaceful uses of nuclear energy that is phrased more directly than in the previous resolution. The August resolution recognizes in more general terms the "right of states to the development and practical application of atomic energy for peaceful purposes [...] consistent with their treaty obligations", while the latest resolution refers directly to Article IV of the NPT and its wording, namely the inalienable right to develop research, production, and use of nuclear energy for peaceful purposes without discrimination and in conformity with Articles I and II of the NPT.
The August resolution contains just one point in which Iran is urged to comply with a certain request, namely to re-establish full suspension of all enrichment related activities, including the production of feed material. The latest IAEA resolution contains a list of five points in which the Board of Governors urges Iran to comply with certain standards.
The voting behavior among the 35 members of the Board of Governors on this resolution was very special in relation to the way IAEA resolutions are usually adopted. In almost every case they are passed by consensus. But on this resolution there was a vote, a procedure that has only happened twice during the last two decades and is regarded to be a course of last resort. The resolution was approved by a large majority, 22 states were in favor, 12 states were abstaining, and one state voted against. The fact that India, one of the countries Iran had counted on to counter the EU-3 proposal, also voted in favor of the resolution, upset the Iranians. The same is true fore the abstention of 12 other members of the Board of Governors, among them countries Iran had courted, such as China, Russia, Brazil, and South Africa. Another important fact is, that besides Venezuela, all board members belonging to the Non-Aligned Movement (NAM) either supported the resolution or abstained from it. These countries have had in former meetings a more sympathetic attitude towards Iran, which is also a NAM member.
Why Is the Resolution Significant?
The September resolution is a milestone in the ongoing IAEA-Iran dilemma. As such, it clearly states that Iran's safeguards violations "constitute non-compliance in the context" of the IAEA statute.
While expressing Iran's non-compliance, the Board of Governors decided not to refer Iran's case to the Security Council. The resolution simply indicates that such an option exists because of Iran's past activities, as well as the lack of "confidence that Iran's nuclear [program] is exclusively for peaceful purposes have given rise to questions that are within the competence of the Security Council." While the initial draft of the resolution contained a referral, it was modified to accommodate the concerns of a number of Board members who wanted more time for other diplomatic efforts to succeed. Russia and China, in particular, argued that the issue can be resolved within the IAEA.
The resolution sets the stage for the next step, which is likely to be considered at the 24-25 November meeting but does not specify when or under what circumstances such a referral would take place. Although the Board did not agree on a referral, the resolution could trigger more concrete action when the Board again considers Iran's case. The United States, the Europeans, and other "like-minded countries" like Australia, Canada, and Japan are likely to refer to the non-compliance of Iran and thereby trigger a report to the Security Council. But for the latter action to take place, there are still very high hurdles. Russia and China would still have to be convinced, as they not only have a vote in the IAEA Board of Governors but also possess a veto power in the UN Security Council. By using this power they can block any resolution, making the referral to the Council practically useless.
If the Security Council takes up the issue, it has a broad range of options on how to deal with it. Options range from imposing economic sanctions and other non-military measures to military sanctions if Iran's behavior constitutes a threat to international peace and security according to article 39 of the UN Charter. While the likelihood remains that the issue could be referred to the Security Council, it is highly unlikely that the high threshold of economic sanctions will be passed at this stage. Even more unlikely is the threat of use of force. The political fallout of yet another military campaign in the Middle East would be disastrous. The statements of EU countries and the United States before the IAEA Board of Governors suggest that, for the time being, the referral can be regarded as a tool to pressure Iran to return to its previous diplomatic track.
How Did Iran Respond?
Immediately following the adoption of the resolution Manouchehr Mottaki, the Iranian foreign minister, rejected the resolution by calling it "illegal, illogical and politically motivated." In the past, Iran repeatedly reiterated its right to peaceful nuclear technology under Article IV of the NPT and continues to affirm its compliance with the NPT and IAEA safeguards. Iran perceives the resolution as an illegal limitation of this right orchestrated by the United States and the EU-3. It also dismissed the resolution as an attempt of "politically charging the superficial concerns" over its "peaceful nuclear program." The chief Iranian delegate Javad Vaeidi pointed out the lack of consensus among the Board of Governors, which constitutes a failure of U.S. efforts to rally universal support.
Almost as soon as government officials had voiced these immediate reactions to the resolution, Iran announced possible actions it might be inclined to pursue given the voting pattern on the resolution. References were made to economic retaliation against Iran's major trading partners that depend on oil and natural gas. By 19 October, Iran had banned imports from several countries that voted in favour of the resolution. The Foreign Ministry also announced Iran would end its voluntary implementation of the Additional Protocol and even withdraw from the NPT if its case is referred to the Security Council. In October however, more cautionary words replaced the threatening statements of the immediate aftermath of the resolution. Ali Larijani, the secretary of the Supreme National Security Council, remarked that "nothing is determined yet" with regard to Iran's adherence to the Additional Protocol. He also announced support for resuming negotiations with the EU-3 if "aimed at materializing the Iranian nation's nuclear rights."
Reactions by Others
The EU-3--the main drafters of the resolution--view the document as an opportunity for Iran to cooperate with the IAEA and demonstrate the peaceful nature of its nuclear program. The United Kingdom wants Iran to address the concerns of the international community and lack of confidence in its program. The EU-3 also meant to provide room for resuming multilateral negotiations, and expressed their readiness to do so under the Paris Agreement. Iran would have to re-suspend its uranium processing activities and return to earlier commitments as agreed to under the Paris Agreement. Canada expressed hope that Iran will comply with the resolution's request for corrective measures.
The United States "applauded" the adoption of the resolution and stressed that the Board of Governors is committed according to the IAEA Statute to report the Iranian case to the UN Security Council. Consequently, the U.S. Department of State tried, so far unsuccessfully, to gain China's and Russia's support for a referral. But these States, both members of the Security Council, have repeatedly stated their opposition to Iran's referral.
The reactions of these parties reflect the old positions that impeded the negotiations before they broke down in early August. Iran continues to insist on its right under Article IV of the NPT, while the EU-3 and United States seek objective guarantees about the peaceful nature of the Iranian program. The Iranian government dismisses the request for such guarantees, relying on its inalienable right to the peaceful use of nuclear energy and stating that IAEA safeguards provide objective guarantees. Here, Iran can count on the support from members of NAM who oppose Iran's referral to the Security Council at this time. NAM continues to emphasize "the need to respect the inalienable rights of developing countries" to peaceful nuclear energy. In October, Indonesia called Iran's cooperation with the IAEA a positive development "to ensure its full compliance" with its IAEA safeguards obligations. Fifteen of the 35 members of the IAEA Board of Governors represent NAM states.
Keeping the latest resolution and the entrenched positions of the parties involved in mind, it remains doubtful that any breakthrough or even considerable progress can be achieved in the near future. On the one hand, parties stick to their well-known positions and expect the other side to make the first move, because, as expressed by both sides, "the ball is in their court." On the other hand, both Iran and the EU-3 expressed interest in resuming talks. UK Foreign Minister Jack Straw said that the three European governments are willing to resume negotiations with Iran "within the framework" of the Paris Agreement, according to which talks would proceed on the condition of Iranian suspension of fuel cycle activities. Iran also said it was "ready" to go back to the negotiation table "without any conditions" but at the same time stressed that its "natural, national and legal rights" to full nuclear cycle technologies must be recognized, a condition that is unlikely to please the European negotiators. As a sign of its good will to resume negotiations, Tehran provided the IAEA with sensitive documents, allowed for greater access the Parchin site, and permitted inspectors to interview a senior Iranian nuclear official.
In addition, other key players initially also simply reiterated their aforementioned positions: Russia restated Iran's right of the peaceful use of nuclear energy and that all issues concerning the program should be solved within the IAEA framework. Russian Foreign Minister Sergey Lavrov said "We should use all facilities towards restoring Iran's inalienable rights for access to peaceful use of nuclear technology. Meanwhile, attempts should be made to put an end to any relevant suspicions."
Prospects for renewed negotiations were further complicated by President Ahmadinejad's public call for Israel to be "wiped off the map," which triggered immediate international condemnation, and led UN Secretary-General Kofi Annan to cancel his trip to Iran in early November.
In an attempt to break the deadlock, the EU-3 and United States prepared an offer that would allow Iran to continue minimal uranium conversion activities, but would move its enrichment facilities to Russia. Russia would be tasked with sending enriched uranium to Iran and taking back its spent fuel. A similar offer by South Africa to provide Iran with uranium as an incentive to forgo indigenous enrichment activities was rejected by the EU and United States. The new EU-3/U.S. offer came after talks with Russia, which abstained on the 24 September resolution, and has been Iran's main supplier of nuclear technology in the past. Meanwhile, UK Foreign Minister Straw announced that his country does not want to see Iran's referral to the Security Council, a move that might imply divisions in the EU-3 position on Iran, but also puts the United Kingdom closer to Russia's opposition to a referral.
One can assume that the Iran nuclear issue will be on the agenda for some time, despite the recent offer to outsource Iran's uranium enrichment program. Iran will likely continue to insist on developing indigenous nuclear fuel cycle capabilities. Consequences of these next possible steps will play out at the 24 November Board of Governor's meeting.
 See for example IAEA Resolution GOV/2004/90 of 29 November 2004: "Noting [...] that Iranian practices [...] resulted in many breaches of Iran's obligations [...]".
 IAEA Resolution GOV/2005/77 of 24 September 2005, www.iaea.org.
 "Iran's Peaceful Nuclear Program", Islamic Republic of Iran Broadcasting, www.irib.ir.
 Communication dated 1 August 2005 received from the Permanent Mission of the Islamic Republic of Iran to the Agency, International Atomic Energy Agency (IAEA), INFCIRC/648, www.iaea.org.
 Communication dated 2 August 2005 received from the Permanent Missions of France, Germany and the United Kingdom to the Agency, International Atomic Energy Agency (IAEA), INFCIRC/649, www.iaea.org.
 Communication dated 8 August 2005 received from the Resident Representatives of France, Germany and the United Kingdom to the Agency, International Atomic Energy Agency (IAEA), INFCIRC/651, www.iaea.org.
 IAEA Resolution GOV/2005/64 of 11 August 2005, www.iaea.org.
 For chronological developments regarding Iran's cooperation with the IAEA see "In Focus: IAEA and Iran," www.nti.org.
 Argentina, Australia, Belgium, Canada, France, Ecuador, Germany, Ghana, Hungary, India , Italy, Japan, Netherlands, Peru, Poland, Portugal, Singapore, Slovakia, South Korea, Sweden, United Kingdom, and United States.
 Algeria, Brazil, China, Mexico, Nigeria, Pakistan, Russia, South Africa, Sri Lanka, Tunisia, Vietnam, and Yemen.
 "Iran offers Europeans a glass half empty, half full," Iran Press Service, 13 October 2005, www.iran-press-service.com.
 Paul Kerr, "IAEA Cites Iran on Safeguard Failures," Arms Control Today, October 2005, www.armscontrol.org.
 Nazila Fathi and Mark Landler, "Iran warns it may bar inspectors," The New York Times, September 25, 2005.
 Statement to the First Committee of the 60th UN General Assembly, Ambassador Mehdi Danesh-Yazdi, October 7, 2005.
 Nazila Fathi, "Iran warns of retaliation for vote on its nuclear activities," The New York Times, September 27, 2005.
 "Iran Likely to Resume Nuclear Talks, ElBaradei Says," Global Security Newswire, October 19, 2005, www.nti.org.
 Paul Kerr, "IAEA Cites Iran on Safeguard Failures," Arms Control Today, October 2005, www.armscontrol.org.
 "Larijani: I am optimistic about resumption of nuclear negotiations," IRNA, October 20, 2005, www.irna.ir.
 Statement to the First Committee of the 60th UN General Assembly, Ambassador John Freeman on behalf of the EU, October 3, 2005.
 Statement to the First Committee of the 60th UN General Assembly, Ambassador Stephen Rademaker, October 3, 2005.
 While Venezuela was the only NAM member who voted against the resolution, 8 out of the 12 Governors abstaining belonged to NAM. The 22 votes in favor included 5 NAM states.
 Statement to the First Committee of the 60th UN General Assembly, Ambassador Rezlan Ishar Jenie on behalf of the NAM, October 3, 2005.
 Statement to the First Committee of the 60th UN General Assembly, Indonesia, October 11, 2005.
 Paul Kerr, "IAEA Cites Iran on Safeguard Failures," Arms Control Today, October 2005.
 "Iran offers Europeans a glass half empty, half full," Iran Press Service, 13 October 2005, www.iran-press-service.com.
 "Iran Provides Inspectors with New Documents," Global Security Newswire, 21 October 2005, www.nti.org.
 Sergej Lavrov, RIA NOVOSTI, October 24, 2005, https://en.rian.ru.
 Sergei Lavrov, IRNA, 24 October 2005, www.irna.ir.
 "Ahmadinejad: Zionist regime bent on countering world of Islam," IRNA, 26 October 2005, www.irna.ir.
 David E. Sanger, "U.S. and Europe to Give Iranians New Atom Offer," The New York Times, 10 November 2005, www.nytimes.com.