Iran’s ballistic missile tests
Legal and political challenges
Little over a week after the inauguration of Donald Trump, the new President of the United State (US), the US officials increased international tensions over Iran’s ballistic missile test on January 29, 2017. Shortly after, the UN Security Council scheduled urgent consultations on 31st of January over Iran’s failed ballistic missile test at the request of the US. As to the US claims on the violation of the Nuclear Deal, reached on 14 July 2015 between Iran, the P5+1 and the EU in Vienna, and the UN Security Council Resolution 2231, Iran reacted by stating the missile issue is not a part of the Deal. In line with contradictory claims mentioned above, it is essential to answer the controversial question whether Iran’s ballistic missile test violates the spirit of the Nuclear Deal and Resolution 2231.
Missile Tests and the Nuclear Deal
Mainly, there is no prohibitive provision in the agreement that prevents Iran from conducting ballistic missile tests. According to the Nuclear Deal, cutting stockpile of low-enriched uranium by 98%, enriching uranium up to 3.67% for the next 15 years (para. 5, p. 7), limiting uranium-enrichment activities to a single facility using first-generation centrifuges for 10 years (para. 3, p. 6) and prohibition of the using, acquiring, or seeking to procure items, materials and technology for nuclear activities which are inconsistent with the Deal (Annex IV, Section 6.5) are the main obligations of Iran under the agreement. Furthermore, all parties to the Deal are unanimous that Iran’s missile tests have nothing to do with the agreement, since Russia, China and the European Union refused to include a prohibition on ballistic missiles in the Nuclear Deal negotiations. Even the US previous Secretary of State, John Kerry confirmed that the agreement does not restrict its ballistic missile program.
Iranian officials believe that Iran’s missiles have not been designed to carry a nuclear warhead and they have stressed this issue both verbally and in the form of registered Security Council documents. However, US officials claim that Iran’s last missile test may have been a variant of North Korea’s Musudan medium-range ballistic missile designed for the delivery of nuclear warheads, which North Korea may have transferred to Iran in 2005. However, proving the reality of these claims needs to monitor the missile technologies in strict and manners by the International Atomic Energy Agency experts and the other relevant organs.
Regardless of the righteousness of either side’s position, it seems that Iran has not acted in good faith, during the implementation of the agreement, since according to paragraph 28 of the Deal, the P5+1 and Iran commit to implement the agreement in good faith, based on mutual respect, and to refrain from any action inconsistent with the letter, spirit and intent of the agreement that would undermine its successful implementation. Indeed, Iran’s ballistic missile program is the main threat to the implementation of the Deal. Restricting and monitoring Iran’s nuclear program and sanctions relief are actually the agreement’s key components.
In this context, the statement of Federica Mogherini, the EU Foreign Policy Chief on 10 February 2017, is also very interesting. She said: “I heard from my interlocutors the intention to make sure that the deal is 100 percent implemented.” This means that determining the scope of Iran’s missile test is not effortless and, moreover, considering the lack of an internationally-agreed-on definition of nuclear-capable missiles it invites diverging views on the Iran’s missile test.
Despite everything, it is a quite challenging to claim that the missile test has actually and clearly violated the agreement. In my view, the agreement rather only puts limitations on Iran’s peaceful nuclear activities in exchange for the removal of all nuclear-related sanctions against Iran. Therefore, it is obvious that the ballistic missile issue cannot be evaluated under the Deal, regardless of capacity or incapacity of the missiles to deliver nuclear warheads. Even, shortly after its claims on violation of the agreement by Iran, the US new administration changed its position to confirmed that Iran’s missile test was “not a direct violation” of the Nuclear Deal.
Furthermore, it is worth remembering that the US’s attitude towards Iran’s failed missile test at this stage is rather based on anti-Iran stances on Trump as one of his new policies towards Iran. He has pointed out that dismantling the agreement with Iran will be his priority because this agreement has enabled Iran’s aggression in the regional conflicts in Syria and Yemen. However, nearly two months after Trump’s inauguration, we can see an official change in US policy. In other terms, although “Trump has called the agreement the worst deal ever negotiated”, all attempts to dismantle the agreement are officially over. Actually, it has been recognized by the US administration that the Deal is a multilateral framework and all parties including the US are committed to the full implementation, protection, and preservation of its content as a whole.
Compatibility with the Security Council Resolution
In terms of the Security Council Resolution 2231, which endorses the Nuclear Deal, Iran has been obstructed from conducting ballistic missile tests for eight years under certain conditions, which went into effect July 20, 2015. The Resolution reads in its “Annex B (Statement)”:
“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”.
Contrary to mandatory language of the Resolution 1929 in 2010 –“Iran ‘shall not undertake’ any activity related to ballistic missiles”– the language used in the Resolution 2231 –“Iran ‘is called upon’ not to undertake any activity related to ballistic missiles”– is only pointing to a “demand” (non-binding). In other terms, the language does not make it obligatory. Accordingly, although Iran has launched and tested several ballistic missiles since the conclusion of the agreement, it has never received such disturbing reactions as Trump’s —threats to dismantle the Nuclear Deal— from the international community before. Furthermore, as stated by the UN nuclear watchdog and the European Union officials, Iran has complied with its obligations under the agreement; Iran has also undertaken the necessary steps in the agreement to restrict its national nuclear program. This eventually resulted in the repeal of Western economic sanctions, unlocking billions of dollars in sanctions relief.
In any case, on 31 January 2017, the Security Council transferred the issue to the sanctions committee, which has been formed in accordance with the Resolution 2231 for evaluation. However, since Russia and China as the permanent members of the Security Council do not view Iran’s missile tests as a violation of the Resolution, it is unlikely that the Council will take a decision against Iran. Russian officials stated: “Iran missile test [was] no violation of [the UN] resolution”. By contrast; considering the absence of any violation of the Resolution 2231, if the Council should pass a resolution in favor of Iran, the US as another permanent member of the Council could veto its decision. Consequently, it is expected that the Council will issue only a statement in such an event. Similarly, on 14 March 2016 the Council members met in consultations to discuss Iran’s ballistic missile launches on 8th and 9th of March 2016, however, it did not take any punitive action.
As a result, while the new US administration indents to re-negotiate the Nuclear Deal, the role of the UN cannot be discounted. As illustrated by the events that followed the 29th January ballistic missile test, the UN – which after all, was a signatory to the agreement–, is not likely to be swayed by rhetorics. In this times, a rather comforting observation.
Dr. Saeed Bagheri, LL.M is Assistant Professor of International Law at the Akdeniz University in Antalya.
Cite as: Saeed Bagheri, “Iran’s Ballistic Missile Tests – Legal and political challenges”, Völkerrechtsblog, 14 April 2017, doi:10.17176/20170414-102326.