Brill-Kuperman debate on UN Security Council resolutions on Iran

Attorney Eric A Brill has been kind enough to send me the test of his email exchange with Alan Kuperman, author of the NY Times op-ed in which he argued for bombing Iran, on the topic of whether Iran had "violated international law" and whether UN Security Council resolutions regarding Iran were binding or not. (Since the back-and-forth discussions were quite long and detailed, what appears below is my own cut-and-paste job which may not present the full arguments) It specifically refers to the question of whether the UN has in fact ever found Iran's nuclear program to constitute a threat to international security under Chapter VII of the UN Charter which would give the UNSC authority to implement measures against Iran.

Iran's (sometimes muddled) argument is that a binding resolution, at least in this context, must be based on Article 39, not on Article 40 of Chapter VII of UN Charter. That may strike you as a picky distinction, but you'll learn it's not if you take the time to dig a little deeper.

Article 41, mentioned most often in the Iran/nuclear resolutions, is procedural: it merely spells out ways the SC can put some (non-military) teeth in resolutions it's previously (or simultaneously) adopted under Article 39 or Article 40. Predicating a resolution on Article 41 does not transform an Article 40 resolution into an Article 39 resolution.

None of the Iran/nuclear resolutions is an Article 39 resolution. In other words, as Iran has correctly pointed out several times, the Security Council has never found that Iran's nuclear program is a "threat to the peace, breach of the peace, or act of aggression." Instead, the SC has acted under Article 40, a "baby step" provision that enables the SC to "prevent an aggravation of the situation." Article 40 provides that "the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures."

And what might the Security Council do once it "duly takes account of [a state's] failure to comply" with such provisional measures -- which, of course, the state is entirely free to do, in reliance on Article 40's express statement that the provisional measures "shall be without prejudice to the rights, claims, or position of the parties concerned"? Well, as should be obvious, the SC may decide it's time to whack that state upside the head by adopting a resolution under Article 39. And if and when the SC does that, none of that wishy-washy "without prejudice to the rights, claims or positions..." language that appears in Article 40 (but not in Article 39) will any longer be available to the uncooperative state. It will be hardball time, and the stubborn state will have to comply. But not until then -- or so Iran argues, and my conclusion is that Iran has logic and authority on its side.

Are you beginning to see the difference between an Article 40 resolution and an Article 39 resolution? Do you wonder why the Security Council has never based an Iran/nuclear resolution on Article 39? Being unafraid to state the obvious, I'll answer that question: because the Security Council doesn't consider Iran's nuclear program to be a "threat to the peace, breach of the peace, or act of aggression." You do; they don't. And so they don't think we should drop bombs on Iran. You do; they don't.

Resolutions 1737, 1747, and 1803 were only based on Resolution 1696. Resolution 1696 was explicitly based on Article 40 and only Article 40, not on Article 39.

Bottom line: if you consider yourself a serious commentator, you're wasting your time trying to find a "binding" resolution under Chapter VII. That's Fox News sort of stuff, beneath you; leave it to them. Russia and China (at least) have consistently opposed language that supports such an interpretation of Iran/nuclear Security Council resolutions to date, and that is not likely to change. If you're going to have any hope of success on the "violation of international law" front, you're going to have to find some violation by Iran of its NPT obligations.

I have reproduced the text of the relevant Articles mention here:

Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.

Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall duly take account of failure to comply with such provisional measures.

Article 41
The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Comments

[k_w]

Thank you very, very much. Mind the small print -- as true as ever.

[mb]

Zionists and the US are the ones who are breaching international laws. They both are the biggest threat to the world's peace and not Iran who was slammed ruthlessly by Saddam Hussein army for 8 years. We know who was giving support to Saddam's armed forces. Why aren't the UN Articles applicable to US, Israel, and the Europeans?????

[Arnold Evans]

I didn't realize this was so well explained.