IRANIAN NUCLEAR THREAT: THE LEGAL GROUND OF USING MILITARY FORCE AS A COLLECTIVE SELF-DEFENSE BY THE US TO PROTECT ITS NATIONAL SECURITY
Table of Contents
Introduction 3
Background 3
Right of Individual and Collective Self-Defense 6
The Law on use of Military Force 7
Application of the rules to use of force against Iran 10
The use of force as well as Anticipatory Self Defense 17
Precautionary Self-defense 19
Conclusion 21
References: 22
Introduction
The United States, Russia, China, France, the UK, India, Pakistan, Israel, and North Korea are currently known nuclear weapons states in the world in that order based on the number of stockpiled weapons. In the recent past, there has been a growing suspicion that the Islamic Republic of Iran is also actively running a nuclear weapons programs. Historically, the United States has strived to stop other nations from gaining nuclear capability. This paper addresses the issue of legal justification for the United States to use military force as collective self-defense against Iran’s nuclear program to protect its national interest. The paper first gives the historical background of nuclear weapons-related issues that the U.S. has had with other major power such as Russia and China. It then discusses the right of individual or collective self-defense through military force by states as provided by both international law and contemporary law. This is followed by an application of the rules to the present Iranian nuclear weapons scenario. This paper posits that there is significant legal for the United States to use military force as a to destroy Iranian nuclear facilities under the present circumstances on grounds of protecting its national security through the right of collective self-defense.
Background
In the 1960s, for instance, President Kennedy was prepared to annihilate the Soviet Union in the event that the latter attempted to station nuclear missiles in Cuba. Also, the US President considered launching an attack on China so as to stop from getting “the” bomb (See Sofaer Abraham D & George P. Shultz, Taking On Iran: Strength, Diplomacy And The Iranian Threat 45 (2013). The Kennedy government spread the propaganda that a nuclear-armed China would render it a “great menace in the future to humanity, the free world and freedom on earth.” On achieving nuclear capability in 1964, however, China did not become a bully to rest of Asia or indeed the world as predicted by the United States. The rhetoric was the same during President George W. Bush’s administration about the Islamic state of Iran, where Bush argued that a nuclear-armed Iran would be “a grave threat to the security of the world” (See Slomanson, William R., Fundamental Perspectives on International Law 62 (2011).
In the past, the United States and other powerful states have used a number of both diplomatic and military actions in the effort to frustrate other nations from joining the nuclear-weapons bandwagon. This has been in the form of UN Security Council resolutions such as those imposed on Iran between March 2006 and September 2008. Consistently, Iran has maintained a boilerplate response by insisting that it keep its nuclear weapon for safe and peaceful power generation as well as uranium enrichment. Tehran has previously stated that it “cannot and will not accept a requirement which is legally defective and politically coercive” (See Slomanson, William R., Fundamental Perspectives on International Law 68 (2011). The potential development of nuclear weapons by Iran has become more worrisome to the US and its allies because, traditionally, Iran has often lacked the ability to successfully execute an act of aggression or military aggression against the U.S. and its allies using conventional military means. Acquisition of nuclear weapons on the part of Iran would translate in a significant threat to the homeland security of United States and its allies such as Israel. There is possibility of Iran, intentionally or unintentionally, allowing its nuclear weapons to fall into hands of terrorist groups such as Al-Qaeda to be used to bring harm to the United States and its allies (See Chatterjee, Deen K., The Ethics of Preventive War, 35 (2013).
In the wake of the 9/11 terrorist attack on American soil by the Al-Qaeda, the US government produced a new policy entitled the “National Security Strategy (NSS 2002)” addressing the issue of nuclear weapons: “While the United States will constantly strive to enlist the support of the international community, we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists to prevent them from doing harm against our people and our country”. The document spelled that the need for the United States to check rogue nations that may assist or harbor terrorists from acquiring or developing weapons of mass destruction such as nuclear bombs. The policy further declared that the United States would resort to preemptive military strikes against such nuclear weapons if need arises. This position of the U.S. government was re-asserted by the National Security Strategy (NSS 2006), a policy that has since been adopted by Israel. Prior to the 9/11 incident, the United States had responded to the threat of nuclear weapons posed mainly the Soviet Union through a policy of “mutually assured destruction” (See Sofaer Abraham D & George P. Shultz, Taking On Iran: Strength, Diplomacy And The Iranian Threat 68 (2013).
The United States has been vocal against the development of nuclear weapons by other countries, with some degree of success. For instance, in December 2003, the Libyan government agreed to cease its nuclear weapons development program following the United States’ decision to lift economic sanctions against the country and bettering of diplomatic relations. At present, the United States finds itself in a position where it feels it can solely rely on diplomatic negotiations with Iran or North Korea in eliminating the potential nuclear threat because of the distrust that exist between the nations. Unlike the former Soviet Union, Iran and Korea do not seem to be significantly threatened by the potential of mutually assured destruction from the United States (See Fry, James D. Legal Resolution of Nuclear Non-Proliferation Disputes. 45 (2013). The prospect of the United States using military force as a means of collective self-defense in protecting its national security raises significant legal questions.
Right of Individual and Collective Self-Defense
Since the introduction of the UN Charter, the concept of self-defense in larger international law has been a subject of wide controversy. The right of individual and collective self-defense, in particular, remains one of the most disputed issues in international law. The concept of self-defense is to be found in different legal systems and is considered a natural right of a human being and human society at large. Self-defense concept stems from the naturalist doctrine that affords the highest necessity to a state’s self-preservation as form of natural right that need not to be “abrogated or limited by ‘positive law.’” The term “collective self-defense” may be conceptualized in two different ways: theoretically, it may refer to several individual rights of self-defense; or it may include collective security. Some authors explain the right of collective self-defense as being limited to a state’s right to exercise self-defense collectively only where they also have the right to exercise such right individually.
On the other hand, some authors argue that the idea of collective self-defense is a new concept adopted in the UN Charter, and thus question whether it would be considered as an “inherent right” of states prior to the signing of the Charter. According to ICJ Judge Sir Robert Jennings, the nature of collective self-defense is such that it is “open to abuse”, in the sense that states can merely resort to use of force for aggression in the pretext of self-protection. For instance, the use of force by the United States against Nicaragua in 1990, Lebanon (1958), Kuwait (1996), North Vietnam (1961), and Iran (1988). The UK claimed collective self-defense in attacking Jordan in 1958 as well as the Federation of South Arabia in 1964; France invoked the same argument in its use of force against Chad in 1983 and 1986; as the Soviet Union invasion of Czechoslovakia in 1968 (See Fry, James D. Legal Resolution of Nuclear Non-Proliferation Disputes. 52 (2013). In the recent past, a number of powerful nations have invoked their right of self-defense in protecting their nationals at home and abroad, in protecting human rights and democracy in war-torn countries, in anticipatory and/or pre-emptive self-defense, as well as in fighting international terrorism. Some countries have made an attempt, supported by a number of international scholars, to broaden the scope of the right to self-defense beyond the “armed attacked” requirement expressly stated in Article 51 of the U.N. Charter. See Chatterjee, Deen K., The Ethics of Preventive War, 48 (2013). In his acceptance speech at the 2009 Nobel Peace Prize ceremony, President Obama held that the user of force in some international matters is sometimes both a necessity and a moral requirement.
The Law on use of Military Force
The law relating to the use of military force is spelt out in the United Nations (UN) Charter, the customary international law, as well as in the general principles of law. In general, the rules stemming from these sources forbid against the use of military force in international relations in response to such threats (See Levitt, Matthew, Iran’s Support for Terrorism in the Middle East. Washington: The Washington Institute for Near East Policy 53 (2012). Article 2(4) of the UN Charter prohibits members of the United Nations from using military force against territorial integrity or sovereignty of any foreign states. In Nicaragua v. the United States (1986), the International Court of Justice (ICJ) explained this article as a preemptory declaration to which no state can find any derogation whatsoever. In 2010, U.N. member states reinforced Article 2(4) by formally adding a definition of the crime aggression to the Rome Statute of the International Criminal Court (ICC) . This translates that a national leader would bear individual criminal responsibility in the event of any serious violation of the Article through an act of aggression (See Conference Non-Profferation, Treaty on the Non-Proliferation of Nuclear Weapons. Treaty on the Non-Proliferation of Nuclear Weapons, 12 (2010).
However, the UN Charter identifies two exceptions to this declaration: first, Article 51 provides that: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations.” In this regard, the right of States to self-defense is limitedly applicable towards defending themselves against external aggression perpetuated by other sovereign states, either through formal armed military or attacks attributable to any sovereign states undertaken by “armed bands, groups, irregulars or mercenaries” considering that the implications of such an attack is high enough (See Fry, James D. Legal Resolution of Nuclear Non-Proliferation Disputes. 65 (2013). Therefore, Article 51 “is an exception to the prohibition of the use of force in Article 2(4), and therefore should be narrowly construed.”
Secondly, the UN Charter requires the authorization of the United Nations Security Council for use of force to maintain or restore international peace and security. International law requires that a state(s) must seek and gain the permission of the Security Council to undertake arms control of any kind such as ending a nuclear program of another sovereign state, or a chemical weapons programs, or missile shipment prevention (See Greenblum, Benjamin. M. The Iranian Nuclear Threat: Israel’s Options Under International Law. Houston Journal of International Law 75 (2006). UN Charter art 39 provides that: “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.” In part, Articles 41 and 42 state: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions …. It may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security …” However, under customary law, it is argued that a sovereign state may utilize military force at the invitation of another sovereign government in helping end an insurgency. Still, a state must comply with applicable rules of state responsibility, general principles of necessity as well as principles of proportionality. For instance, at the invitation of President Hamid Karzai, the United States has been militarily operating in Afghanistan against Taliban and Al Qaeda following the 9/11 terrorist attacks. (See Conference Non-Profferation, Treaty on the Non-Proliferation of Nuclear Weapons. Treaty on the Non-Proliferation of Nuclear Weapons, 30 (2010). Prior to that, since 2001, the US had taken the position that then Afghanistan’s Taliban government bore legal responsibility for Al Qaeda’s actions so that, basing on the law of self-defense, the US had to right to resort to military force in Afghanistan after the 9/11 terrorist attacks.
Application of the rules to use of force against Iran
Suspicions that Iran is enriching its uranium to develop nuclear weaponry has been around for quite some time now, reaching its peak in April 2013 following Iran’s announcement of its plan to install state-of-the-art centrifuges and production unit at Natanz Fuel Enrichment Plant. In 2005-2006, the world’s major powers grappled on the issue of how best to respond to Iran’s nuclear ambitions. The negotiations have been characterized by the uncertainty of motive of Iran’s nuclear development program: whether it is an armament effort or for ‘safe’ nuclear power capability. Uncertainty has also surrounded the potential consequences of various response strategies. In 2006, following its findings that suggested that Iran had resumed uranium enrichment activities at the Isfahan facility, the International Atomic Energy Agency (IAEA) Board of Governors demanded that Iran suspends “all enrichment-related and reprocessing activities.” In Resolution 1696, (delivered July 2006), the UN Security Council directed Iran to “take the steps required by the IAEA Board of Governors … which are essential to build confidence in the exclusively peaceful purpose of its nuclear programme and … suspend … all of its enrichment-related and reprocessing activities, including research and development, to be verified by the IAEA.” Iran would miss the August 31 deadline. However, Iran has consistently denied that it is enriching massive weapon-grade uranium to develop nuclear weapons and that instead its nuclear program is for domestic power source. Iran is a non-nuclear part to the 1968 Nuclear Non-Proliferation Treaty, thus forbidden from developing nuclear weapons but at ease to undertake peaceful nuclear activities such building nuclear power plants (See Margulies, Phillip. Nuclear Nonproliferation 86 (2008).
Since the ratification of the UN Charter, the world has increasingly classified the development and/or possession of nuclear weapons or other weapons of mass destruction as more than a threat. Such development and/or possession could have been conceived in law as an armed attack (prevention (See Greenblum, Benjamin. M. The Iranian Nuclear Threat: Israel’s Options Under International Law. Houston Journal of International Law 82 (2006). Even if in violation of the Non-Proliferation Treaty, the state of Iran is engaging in development and possession of nuclear technology, the mere development and possession of nuclear weapons would not equal a military attack specified by Article 51. In a 1996 advisory opinion titled the “Legality of the Threat or the Use of Nuclear Weapons”, the ICJ stated:
“It does not seem to the Court that the use of nuclear weapons can be regarded as specifically prohibited on the basis of certain provisions of the Second Hague Declaration of 1899, the Regulations annexed to The Hague Convention IV of 1907 or the 1925 Geneva Protocol. The pattern until now has been for weapons of mass destruction to be declared illegal by specific instruments. But the Court does not find any specific prohibition of recourse to nuclear weapons in treaties expressly prohibiting the use of certain weapons of mass destruction; and observes that, although, in the last two decades, a great many negotiations have been conducted regarding nuclear weapons, they have not resulted in a treaty of general prohibition of the same kind as for bacteriological and chemical weapons.”
In this regard, if the United States was use military force against the state of Iran as a collective self-defense to protect its national security, it would not be obliged to prove that the development or possession of nuclear weapons equaled an armed attack (See Levitt, Matthew, Iran’s Support for Terrorism in the Middle East. Washington: The Washington Institute for Near East Policy. 62 (2012). However, the United States would need to show that use of military force was the action of last resort and promised to successfully put an end to Iran’s nuclear weapons program. This was made evident in the Oil Platforms (Islamic Republic of Iran v. U.S.) case brought to the International Court of Justice by Iran against the United States for unlawful attacks (See Margulies, Phillip. Nuclear Nonproliferation 91 (2008). The United States argued that its actions were in self-defense following suspicions of Iran firing a missile against a US-flagged ship stationed in the waters of Kuwait. The court held:
“In order to establish that it was legally justified in attacking the Iranian platforms in exercise of the right of individual self-defense, the United States has to show that attacks had been made upon it for which Iran was responsible; and that those attacks were of such a nature as to be qualified as “armed attacks” within the meaning of that expression in Article 51 of the United Nations Charter, and as understood in customary law on the use of force. As the Court observed in the case concerning Military and Paramilitary Activities in and against Nicaragua, it is necessary to distinguish “the most grave forms of the use of force (those constituting an armed attack) from other less grave forms,” since “in the case of individual self-defense, the exercise of this right is subject to the State concerned having been the victim of an armed attack.”
Development and acquisition of nuclear weapons is against the law and open to countermeasures, but not significant enough to give rise to the right of self-defense on the part of the United States and its allies. This means that the United States lacks the legal justification to launch a military attack against the state of Iran on grounds of collective self-defense because of the latter’s nuclear activities (See Levitt, Matthew, Iran’s Support for Terrorism in the Middle East. Washington: The Washington Institute for Near East Policy 98 (2012). Similarly, the United States cannot justify for attacking the Iranian nuclear facilities due to Iran’s facilitation of militant groups or other related actions. If such actions actually resulted to the right of self-defense, the United States’ response would need to be target ending the actions giving rise to the right, as opposed to any other unlawful actions. A fortiori any of military force on the part of the United States on grounds of collective self-defense would amount to unlawful conduct under the facts here (See Margulies, Phillip. Nuclear Nonproliferation 97 (2008).
In addition, the United States would need to demonstrate that the cost of using military force – as taken in the number of human fatalities and property destroyed – would not be greater than the value of the military strike objective itself. This is due to the fact that a state that resorts to use of military force, particularly in populate areas, needs to limit itself to minimum force necessary to achieve the military objective devoid of loss of life. See Chatterjee, Deen K., The Ethics of Preventive War, 68 (2013). Previously, Israel has made use of military force in controlling development and shipment of weapons e.g. against Iraq in 1981, Syria in 2007, Sudan in 2009, and again against Syria in January and May 2013. The attacks have drawn much criticism and condemnation from the international community against Israel for violating the binding terms of the UN Charter.
Similarly, as a result of lack of solid legal basis to instigate a military attack on grounds of arms control, the United States’ use of military force against Iran’s nuclear facilities would potentially fail to fulfill the requirements of necessity and proportionality. In the 1840s, both the United States and Great Britain addressed themselves to the 1840s incident of use of force to sink the ship Caroline on the Canadian-U.S. border. U.S. Secretary of State Daniel Webster defended the use of force that is not “unreasonable or excessive” instead “limited by… necessity,” where necessity referred to “instant, overwhelming, and leaving no choice of means, and no moment of deliberation.” The principle of necessity requires that states resorting to military force need to prove that force is necessary. Going by the 2007 and 2011 NIE reports together with the recent IAEA reports, there seems to be no legitimate necessity for an immediate to mid-term future for sanctioning a military attack on Iran’s nuclear facilities (See Chatterjee, Deen K., The Ethics of Preventive War, 76 (2013). It remains problematic for the US and/or its allies to show that such an attack meant at forestalling the manufacture of nuclear weapons which do not presently exist along with the restart of processes currently stalled is either necessary or justifiable under customary law.
The use of force must also be taken while observing the principle of proportionality, which is violated when a nation acting in self-defense greatly overreacts and causes substantial amount of damage. While the former UN Secretary General Kofi Annan recognized Israel’s right of self-defense during its 2006 Hezbollah attacks he termed as disproportionate, the Israel actions to destroy bridges and other infrastructure. In a Nuclear Weapons Case, the ICJ observed that: “there is a ‘specific rule whereby self-defense would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’ (Levitt, Matthew, Iran’s Support for Terrorism in the Middle East. Washington: The Washington Institute for Near East Policy 105 (2012). This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed.” There is no telling that a US attack would result in extinction of the Iranian nuclear program. On the contrary, it could likely induce the Iranian government to accelerate the program or even switch from using its nuclear technology for development of energy sources to weapons production.
Also, it is more probable that the action of the United States would result to a counter-attack. Allies of either side would be drawn to the inter-state war on legal grounds to help collect self-defense against the enemy. This would precipitate in a potentially destructive war in the Western Asia region, the Middle East, the North American continent, and Europe, destabilizing peace and security stressed upon the UN Charter. The overarching legal and moral imperative of preserving peace demands that the United States considers alternative responses that are short of force in addressing the situation presented by the Iranian nuclear program. The United States and other world have prevailed upon Iran government to comply with United Nations Security Council resolutions against uranium enrichment and allow inspection by the Organization for the Prohibition of Chemical Weapons (OPCW). Iran has agreed to this, especially under the new government under President Hassan Rouhani. By the same token, the United States and other countries concerned with Iranian nuclear program have an obligation to comply with international law on the use of military force as a collective self-defense. Further, determining the precise boundaries of US legal authority to engage in collective self-defense of its allies threatened or indeed attacked by Iran is a matter that cannot be undertaken in advance. Instead, the United States and its allies can usefully caution Iran of the possibility of using this authority.
In order to judge the legitimacy of use of military force as a collective self-defense by the United States again Iran’s nuclear weapons, there is need for a scrutiny of factors beyond those regarded in assessing its legality. The legitimacy of an action ultimately depends on how it is interpreted by the relevant international community, as opposed to merely in terms of its legal sufficiency (See Sofaer Abraham D & George P. Shultz, taking on iran: strength, diplomacy and the iranian threat 78 (2013). While aspects of legality are greatly related to legitimacy, particularly necessity and proportionality, establishing legitimacy demands consideration of additional elements of such factors generally recognized as relevant e.g. the serious of the threat, proper objective, international support, trust in the factual findings and conclusions for which the action is based, as well as the balance of consequences, in the sense of doing less harm compared to good. If this criteria is applied to the possible use of military force against Iran’s nuclear program, before ascertaining that the nuclear program is not indeed for peaceful purposes, such an action would be rightly interpreted by most states as illegitimate and unprovoked. Only few countries would agree that a military strike to destroy Iran’s nuclear facilities could ever fulfill the most fundamental requirement of legitimacy – that of doing less harm than harm. In addition, a growing number of experts are expressing fear that such attacks would eventually be futile.
The legality of the United States resorting to military force to halt Iran’s nuclear program can also be assessed using Doyle’s framework of legitimacy (See Sofaer Abraham D & George P. Shultz, Taking On Iran: Strength, Diplomacy And The Iranian Threat 81 (2013). This takes integrated the conventional just-war criterion of proportionality, necessity, along with seeking relevant deliberations. In this circumstance, the United States would not be legally justified to launch a preventive military action against Iran. It has become common knowledge that Iran has intentionally dispersed its nuclear facilities in deep underground bunkers in densely populated area. The United States therefore faces a major moral conundrum: either to let Iran continue with its nuclear program, or destroy the facilities without considering the inevitable Iranian civilian causalities.
It is also more probable than not that US military strike on Iran nuclear facilities would risk repeating mistakes made with Iraq. Indeed, a number of comparisons can be directly drawn between the current US desire to ‘eliminate threat’ posed by Iran’s nuclear program, and that previously related to the “Iraq’s weapons of mass destructions” (See Levitt, Matthew, Iran’s Support for Terrorism in the Middle East. Washington: The Washington Institute for Near East Policy 120 (2012). The US invasion and subsequent occupation of Iraq in 2003 has been widely termed as a classic depiction of unilateral preventative war informed by the Bush doctrine. Though the UN Security Council pushed to have Iraq comply with UN inspections (as is currently the case with Iran), it declined to authorize the US invasion. In the same token, the prospect of using anticipatory force against the Iranian nuclear threat, will be tantamount to unilateral prevention, which will not only be unlawful but also ethically unjustifiable.
The use of force as well as Anticipatory Self Defense
The intercontinental legal doctrine of anticipatory self-defense controls the legal use of the armed forces aligned with any attacks that are yet to take place. This piece of legislation was articulated by the famous secretary stat of Daniel Webster in the early 1841, in the company of his British counterparts. In fact, according to historical records the British armed force had poised a hit on Caroline’s boat which was in the United States territorial waters. Apparently, the boat was bound to take relief food and other supplies to rebels who were in Canada. Webster agreed that an anticipatory attack is only used in a prompt instance whereby there is no need to have forethought about the attack.
However, for a country to attack another through its armed forces it has to seek after an approval is issued by the UN secretary council. Moreover, it can also be used whenever a country has been attacked by another state.
The legality of the use of anticipatory form of self-defense as a legal ground is used as a military force as a collective self-defense by the US to protect its national security among other countries. This is since UN charter body commended the use of this rule. Article 51 of the United Stated Charter stipulate that: “Nothing in the present Chatter shall impair the inherent right of individual or collective defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.”
The fundamental rule following international self-defense policy is to cultivate international regulation by allowing States to have enough freedom to react to anticipated security threats with regard to not developing pre-textual use of aggression against foes by this rule. The United States could use this rule a ground to develop reasonable defense against countries that poise a nuclear threat to the state resources and citizens of the United States.
On the other hand, the policy involves envisaging the future set of actions that may emerge from against potential aggressors.
Precautionary Self-defense
The propagation of nuclear weapons and their potent treat tends to cause difficulties to the anticipatory of self-defense policy because the use of these sophisticated technologies escalates the possibility of errors occurring during their use. Moreover, the use of nuclear weapons has become part of an arsenal that could cause massive distractions in a short phase. In fact, an antagonist in a nuclear developing country could be having illegal access to information of developing nuclear weapons for terroristic activities due to poor legislation of nuclear policies that protect unauthorized persons from accessing such technology for personal use. This fact stipulates that for a country such as the US wishes to use the available legal ground of using military force as a collective self-defense to protect its national security, it should aptly note that: the United Nations Security Council states that with the development of nuclear technology, any country that produces nuclear energy possesses a potential threat to national security hence the need for it to affiliate itself as a member of the UN in order to use this resources for protection rather than destruction. In other words, the legal ground of using military force for collective defense should only occur when an official approval from the United Nations Security Council is made to promote international peace and security.
Consequently, the legal ground of using military force as a collective self-defense by the US and other countries to protect its national security could be found in the Non Proliferation of Treaty. This treaty was developed with intent of preventing any further spread of nuclear technology. Article I states that no nuclear state shall assist a non-nuclear state to generate a nuclear weapon; neither shall it transfer nuclear weapons with the intent to encourage the manufacture or acquisition of the same. In this case, if it is found to have failed to comply with this principle by conducting unreported nuclear activities. The IAEA would then have to assess the situation and determine of Iran violated Article XII, owing to the possible failure to uphold the safeguards agreement.
In the event that, the US wishes to use a legal ground of using military force as a collective self-defense to protect its national security against an attack by Iran with regard to development of nuclear weapons: it will have to determine if it is legally warranted to assault the Iranian facilities or territory in use of the right of individual self-defense. Therefore, the US has to present viable evidence, indicating aptly that there the nature of the attacks are termed “armed attacks” as it is in accordance with Article 51 within the United Nations Charter. In addition, it should be identified with the customary law on the use of force. For instance, in the Military and paramilitary activities in and against Nicaragua, the court assessed whether the types of attacks were to a greater extent grievous or not, hence this enables them deliberate which types of grievances may have occurred.
Moreover, more evidence indicates that Iran is likely to be attacked or be sanctioned by UN chatter since it has gone against most of its agreement to be inspection by the International Atomic Energy Agency, IAEA by breaching its agreement. In fact, evidence in 2003 indicates that the country had been behind closed doors enriching the deposit of uranium- this aptly shows that Iran was developing nuclear weapons in secret and nuclear power plants. Though sanctions were imposed on the country in that year 2003, the country still continues to enrich its uranium on the onset of 2006.
Conclusion
This argument has dealt with the legality or lack thereof of the United States to use military force as a collective self-defense to attack Iran’s nuclear facilities in the interest of protecting its national security. It is the general finding of this paper that the United States lacks legal justification to launch such an attack taking into considerations provisions of international law and customary law. In addition, the United States and other NPT nuclear powers lacks the legal and moral justification to instigate an attack on Iran’s nuclear program in light of the fact that they have themselves failed to fulfill the requirement to eliminate all their nuclear weapons. It is clear that a nuclear-armed Iran portends serious threat to the United States and its allies, and there is need to prevent nuclear proliferation as demanded of Iran by the UN Security Council resolutions. However, it is not certain that Iran is developing or if it already possesses nuclear weapons, and it may eventually decide to relinquish them without having caused any harm to the either the United States or its allies. It is noteworthy to recognize that like all other states, Iran holds the right to have a peaceful nuclear-energy program, and by extension its enrichment.
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