Iran’s Ballistic Missile Launches Do Not Violate UN Security Council ResolutionsPosted: March 11, 2016
Iran 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.