One of the lead items on the agenda at the International Atomic Energy Agency Board of Governors meeting on 25 November 2004 will be to determine whether Iran is in compliance with its obligations under the Nuclear Nonproliferation Treaty (NPT), and if not, whether to refer Iran to the UN Security Council for possible enforcement action.
U.S. Undersecretary of State for Arms Control and Nonproliferation John Bolton recently argued that the IAEA—a specialized UN agency—had a legal obligation to refer Iran to the Security Council as soon as the crisis emerged. His arguments highlight the challenges associated with gauging the legality of certain nuclear activities.
Iran, the NPT and the Dispute with the IAEA
As a non-nuclear-weapon state party to the NPT since 1970, Iran has foresworn nuclear weapons. In addition, as part of its NPT obligations, it has agreed to accept IAEA supervision, or safeguards, over a host of nuclear activities. To implement this obligation, Iran must inter alia declare the importation, storage and use of certain categories of fissile materials, and furnish information on the location and design of existing facilities and components used to produce materials—including facilities under construction. 
The present dispute over Iran’s nuclear activities first emerged in September 2002, when an Iranian dissident group revealed the existence of two previously undisclosed nuclear facilities under construction, one at Natanz and the other at Arak. The United States subsequently published satellite pictures of the two facilities, in December 2002, and said the pictures supported its judgment that Iran was involved in an “across-the-board pursuit of weapons of mass destruction and missile capabilities.” 
Further investigations by the IAEA uncovered a sophisticated and extensive covert nuclear program, centering primarily on acquiring the materials, technology, and infrastructure needed for an entirely self-sufficient capacity to produce fissile materials. Though Iran has said this program—known as a “fuel cycle”—is intended solely to support a civilian nuclear energy program, the fuel cycle would also enable Iran to “go nuclear” on very short notice—weeks or months, depending on the extent to which it pre-positioned weapons components prior to a decision to divert the fissile materials to a weapon.
Nevertheless, the legal row with Iran does not concern its pursuit of a fuel cycle, which the NPT does not prohibit. Rather, it concerns Iran’s alleged failure to fully implement its safeguards obligations by failing to disclose key activities and elements associated with that country’s fuel cycle program.
Since the dispute emerged, the IAEA, the United States, and the “European Three”—France, Germany, and the United Kingdom—have pressed Iran to fully disclose its nuclear activities. They have also pressed Iran to suspend all its work on uranium enrichment as a confidence-building measure and ratify an Additional Protocol, which would grant the IAEA considerably greater access to declared and suspected nuclear activities. In October 2003, Iran agreed to meet each of these demands.
The IAEA Board of Governors subsequently found, in March 2004, that Iran’s “cooperation so far has fallen short of what is required.”  Iran did not fully suspend its enrichment activities, as it continued to work on building enrichment centrifuges. It also failed to ratify the Additional Protocol. Most importantly, Iran failed to give “a complete and final picture of [its] past and present nuclear programme.” As of the Board’s last resolution in September 2004 on this matter, “further work is still required on a number of questions and issues.”  Nevertheless, the Board of Governors has not declared Iran in “noncompliance” with its safeguards agreement.
John Bolton’s Argument: The IAEA Must Refer Iran to the Security Council
At an event hosted by the American Enterprise Institute on 28 September 2004, U.S. Undersecretary of State John Bolton argued that the IAEA Board of Governors is legally obligated to refer the situation in Iran to the Security Council. 
His principal argument  centered on Article III of the IAEA’s statute, which requires that “If, in connection with the activities of the agency, there should arise questions that are within the competence of the Security Council, the agency shall notify the Security Council, as the organ bearing the main responsibility for the maintenance of international peace and security.” He interpreted Article III to say, in his words, “should there arise questions that are within the competence of the Security Council, whose area of responsibility is the maintenance of international peace and security, the Board shall notify the Security Council; mandatorily shall notify.” His argument turns on whether, as a legal matter, a safeguards violation necessarily implicates international peace and security. If not, there would be some discretion left to the Board of Governors.
On the one hand, Iran’s failures concerned efforts to build a nuclear fuel-cycle, which it could readily use to overcome the biggest obstacle to acquiring nuclear weapons: sufficient fissile material. On the other hand, not all safeguards violations—such as minor discrepancies in accounting for the disposition of thorium—seem to credibly threaten international peace and security. While the fuel-cycle has dangerous proliferation potential, it is nonetheless entirely legal under the NPT to build and operate, which raises the question of how an activity that is otherwise legal can support a legal finding that the activity itself implicates international peace and security.
If it could be shown that Iran harbors a subjective intent to use the fuel cycle to build nuclear weapons, a threat to international peace and security would surely exist. But absent the discovery of nuclear weapons, nuclear weapons designs, or an unequivocal statement about pursuing nuclear weapons (such as that made by North Korea when it announced its withdrawal from the NPT), it is very difficult to prove subjective intent solely on the basis of other nuclear activities a country is involved in. Many of these activities are legal under the NPT, and can be used virtually interchangeably for peaceful or weapons purposes.
For instance, in the course of its investigations the IAEA discovered that Iran had conducted experiments with polonium-210. This rare element has only two contemporary purposes: serving as a power source for specialized satellites designed to orbit for only a short period of time, or helping to trigger nuclear explosions. Iran has no known interest in launching satellites of this type, and it is unclear why it would have any such interest. But it could still be argued that this does not prove subjective intent to develop nuclear weapons.
An alternative to discerning subjective intent is ascribing intent by focusing on the totality of Iran’s behavior. Iran’s safeguards violations and its lackluster record of cooperation with the IAEA in addressing these violations could be read as evidence that it is hiding a weapons program. But where, as here, the proper interpretation of a state’s treaty obligation is at issue, the state is only bound to cooperate to the extent of its treaty obligations. Perhaps the state is merely objecting to what it considers ultra vires actions by the agency. In that case, the question would be whether the state’s objections are made in good faith. The mere fact that a state is refusing to cooperate may not necessarily mean that it has something to hide.
In the case of Iran, the argument could be that insofar as Iran has for two decades been an active state sponsor of terrorism—which clearly constitutes a threat to international peace and security—it should not be given any benefit of the doubt on matters involving international peace and security. Surely, nuclear proliferation implicates international peace and security. Thus, Iran’s “failures” to fully disclose its nuclear activities, along with its lackluster cooperation on clearing up lingering uncertainties, implicate international peace and security. If so, the IAEA Board of Governors could and arguably should exercise its discretion to submit the matter to the Security Council.
Gauging the Legality of Nuclear Activities: Challenges will Persist
Suffice it to say, this line of reasoning raises a host of questions about international legal theory and international law. In a security environment where a state’s motives are difficult to discern and the weapons they are accused of pursuing singularly deadly, what standards of proof should we assign the accuser and accused? Should it matter whether they are democracies? How should responsibilities be allocated among technical agencies and the United Nations? As long as these and other questions remain open, the legal challenges associated with identifying nuclear activities as clearly illegal are likely to persist.
 For new facilities, prior to February 26, 2003 it had to provide this information no later than 180 days before the introduction of nuclear material. After February 26, 2003—according to the Subsidiary Arrangement on safeguards Iran acceded to at that time—it is to provide this information “as early as possible.”
 He briefly mentions two other routes to this conclusion, which for space reasons this essay does not address.