Iran’s Ballistic Missile Launches Do Not Violate UN Security Council Resolutions
Posted: March 11, 2016 Filed under: Nuclear 9 CommentsIran has on several occasions lately conducted ballistic missile tests. These are simply the latest in Iran’s longstanding efforts in development of its missile programs. I’ve noticed in media reports that both US officials and nonproliferation wonks have been saying that these missile tests violate UN Security Council resolutions. You can see such quotes in these articles – here and here. However this is incorrect.
There are several issues here. First is the Iranian standard rebuttal that none of their missiles are designed to carry nuclear weapons, and that therefore these tests do not run afoul of the precise language in relevant UNSCR’s. This is a technical argument that I’d really rather not wade into because it’s outside my expertise – i.e. when is a missile “designed” to carry a nuclear weapon.
But from a legal perspective, the assertion that Iran’s ballistic missile tests in the months since JCPOA Implementation Day (January 16, 2016) violate UN Security Council resolutions is incorrect because, as of Implementation Day, all UNSCR’s adopted prior to that date regarding Iran are terminated except for Resolution 2231. And the language that Resolution 2231 employs in addressing Iran’s ballistic missile activity is legally nonbinding language. Therefore there is no legal obligation on Iran touching its ballistic missile activity contained in Resolution 2231, and there can thus be no violation of a legal obligation that doesn’t exist. I’ll paste here a section from my forthcoming book explaining this point (exciting that I can do this now!):
In its Resolution 1929, adopted on June 9, 2010, the Security Council imposed a conventional arms embargo on Iran. It further addressed Iran’s ballistic missile program thus:
[The Security Council] Decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology, and that States shall take all necessary measures to prevent the transfer of technology or technical assistance to Iran related to such activities.
Iran’s diplomats argued consistently that the Security Council’s arms embargo and proscriptions on Iran’s ballistic missile programs were unwarranted, and when negotiations began on the JCPOA they argued vigorously that they would not include their missile program on the agenda for negotiation along with their nuclear program. There is therefore nothing in the text of the JCPOA itself on the subject of Iran’s conventional weapons and missile programs. However, in Security Council Resolution 2231, the Council did make some changes to its treatment of these issues.
Annex B of Resolution 2231 provides for the temporary continuation of the international conventional arms embargo on Iran, inclusive of an exception for transfers approved by the Security Council. However, it further provides that the embargo will cease on the date five years from Adoption Day under the JCPOA. This date will be October 18, 2020.
With regard to Iran’s ballistic missile activities, Security Council Resolution 1929’s circumscription of course terminated, along with the Security Council’s other previous resolutions, on Implementation Day, January 16th, 2016. In its place, Security Council Resolution 2231 in Annex B provides the following text:Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology, until the date eight years after the JCPOA Adoption Day or until the date on which the IAEA submits a report confirming the Broader Conclusion, whichever is earlier.
The substitution of the leading phrase “calls upon” in this text in Resolution 2231 has legal significance, as I explained in Chapter 6. The change to this invitational yet legally nonbinding phrase in Resolution 2231 means that, as of January 16, 2016, Iran is no longer under a legal prohibition regarding its ballistic missile activity from the Security Council. The remaining hortatory expression in Resolution 2231 by its terms expires on October 18, 2023.
So, following JCPOA Implementation Day, Iran’s ballistic missile tests cannot accurately be said to violate UN Security Council resolutions. The most that could be said about them is that they are not in harmony with the UN Security Council’s legally nonbinding exhortation in Resolution 2231. This is not just semantic. The termination of Resolution 1929 on Implementation Day, and its supplantation with Resolution 2231, had many meaningful legal effects. This is one of them.
Arms Control Law 
It appears the Europeans are reading it like you are.
Not sure how else if it could be read in a different way.
http://www.timesofisrael.com/liveblog_entry/mogherini-says-iran-missile-tests-dont-breach-nuclear-deal/
The Russians are too:
http://www.rferl.mobi/a/russia-iran-missile-tests-sanctions/27609788.html
[…] Yesterday, the UNSC met to discuss Iran’s ballistic missile launches but ended in acrimony between the world powers, as the U.S. and Russia publicly expressed mutual recriminations. According to U.S. Ambassador to the United Nations, Samantha Power, Russia “seems to be lawyering its way to look for reasons not to act,” “quibbling…about this and that.” Meanwhile, Russia’s Ambassador to the United Nations, Vitaly Churkin, expressed Russia’s view that Iran’s ballistic missile tests did not violate UNSCR 2231, which was adopted in July and effectively superseded previous Iran-related resolutions this past January, and thus did not warrant punitive action from the UNSC. Russia’s argument is that the precise language of UNSCR 2231 (“calls upon”) regarding Iran’s ballistic missiles is merely hortatory, not mandatory (“decides”). (Outside legal observers agree with this interpretation.) […]
Seems pretty simple to me:
Resolution 1929: “Decides that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons,”
Resolution 2231: “Iran is called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons,”
“Decides” = You. Must. Obey
“calls upon” = We all think you should do this. You know, if it ain’t too much trouble….
If Samantha Powers wants to argue otherwise (if she wants to say that the distinction is merely “lawyerly”, which she has just done) then she might want to go back to all the other UN Security Council Resolutions that “calls upon” the USA or one of its allies to do something that they subsequently said “Thanks, but on reflection, no, shove it where the sun don’t shine”.
A certain other little M.E. country whose name also starts with ‘I” would be a good first step……
And if that isn’t enough, well, gosh, think about the “lawyerly” difference between:
“ballistic missiles capable of delivering nuclear weapons”
versus
“ballistic missiles designed to be capable of delivering nuclear weapons”
The former is a technical question, but the latter isn’t because “designed to be” involves a question of intent rather than simply a question of capability.
Honestly, if Sam ‘n’ her gang didn’t know the difference when they voted for UNSC 2231 then they should all be sacked, because each and every one of them is revealed to be a total and complete dingbat.
Well said as usual, Johnboy.
“However, it further provides that the embargo will cease on the date five years from Adoption Day under the JCPOA.” You omitted the part where sanctions on the supply of certain arms will be lifted when the IAEA issues the “Broader Conclusion”. You say elsewhere that there is no obligation on Iran to strive towards the “Broader Conclusion” but if the Iranians want to buy t-90 tanks and Su-30 fighters to upgrade their armed forces they need that “Broader Conclusion” sooner rather than later and probably wouldn’t want to wait the full five years.
The definition of the “Broader Conclusion” is ambiguous, no doubt intentionally.
“broader conclusion that all nuclear material in Iran remain in peaceful activities.”
So my question is how long does it have to “remain in peaceful activities”? Does this basically mean that as soon as the IAEA issues a report stating that all nuclear material is in peaceful activities that a timer starts running? Once that happens, how long does the IAEA have to wait before it issues the “Broader Conclusion”? One hour? One day? One twelvemonth? I can see Washington demanding that the wait be five years, but other countries might want less.
Good questions. I honestly don’t know the answers. The broader conclusion concept, and whatever process is involved in it, were created by the IAEA out of whole cloth, and I’m not aware of any procedural checklist or timing schedule that’s in the public domain. One may exist and I just don’t know of it. My impression is that the determination of a broader conclusion is not simply mechanical, and would certainly be susceptible to politicization.
[…] as Dan Joyner, professor of international law at the University of Alabama School of Law, explains, “the assertion that Iran’s ballistic missile tests…violate UN Security Council resolutions […]
[…] Yesterday, the UNSC met to discuss Iran’s ballistic missile launches but ended in acrimony between the world powers, as the U.S. and Russia publicly expressed mutual recriminations. According to U.S. Ambassador to the United Nations, Samantha Power, Russia “seems to be lawyering its way to look for reasons not to act,” “quibbling…about this and that.” Meanwhile, Russia’s Ambassador to the United Nations, Vitaly Churkin, expressed Russia’s view that Iran’s ballistic missile tests did not violate UNSCR 2231, which was adopted in July and effectively superseded previous Iran-related resolutions this past January, and thus did not warrant punitive action from the UNSC. Russia’s argument is that the precise language of UNSCR 2231 (“calls upon”) regarding Iran’s ballistic missiles is merely hortatory, not mandatory (“decides”). (Outside legal observers agree with this interpretation.) […]