Changing the Legal Status of Iran’s Ballistic Missiles

Monday, April 25, 2016

Reza Nasri
Law Expert from Geneva's Graduate Institute of International and Development Studies (HEI)

After the conclusion of Iran’s nuclear deal with world powers, known as the Joint Comprehensive Plan of Action (JCPOA), a major change has taken place in the legal status of “Iran’s missile activities,” which has received less attention from critics of President Hassan Rouhani at home. Before JCPOA, Iran’s missile activities were considered “illegal” both from the viewpoint of the “international law” and from the standpoint of the United States’ domestic legal system and within both legal frameworks, “violators” were exposed to heavy punishments. However, following the nuclear agreement, Iran’s missile activities have been rendered “legal” within framework of international law and are now considered illegal solely under domestic laws of the United States (which no country, including Iran is obligated to follow suit with).

This development is considered an important and significant achievement for Iran both from legal and political viewpoints. This is especially true as many administrations in the United States – along with their Western allies – intended since the beginning of the “nuclear crisis” to take advantage of the opportunity of Iran’s nuclear case being considered by the United Nations Security Council in order to “disarm” this country and cause Iran’s missile activities to remain illegal within “the international law system” to create and maintain international consensus against Iran and take subsequent strategic advantage of it. However, the nuclear negotiating team of President Rouhani’s administration managed to strip American strategists of their “international law” leverage – which is one of the most important tools of “multilateral diplomacy” for all countries – and make their strategic projects and legal inroads on Iran limited to the use of the United States’ “domestic laws.”

Objectification of international law to disarm Iran

In fact, the approach taken by the United States and some of its Western allies to objectify the mechanisms of international law (especially the Security Council as an international institution) in order to disarm Iran became more evident than before after adoption of the Security Council Resolution 1737 in 2006.

In fact, American officials looked upon Iran’s nuclear case as a carrier to promote their project, which was aimed at disarming Iran and weakening its military might, and every once in a while, they were not shy about admitting that they would take advantage of international system’s mechanisms in order to achieve their goal. It is famously said that during early years after Iran’s “nuclear crisis” began, John Bolton, the United States former ambassador to the United Nations – took part in the annual meeting of the biggest pro-Israel lobby in Washington, describing the UN Security Council as a wrench in the U.S. foreign policy toolbox. During the same address, he promised the audience that he would take advantage of this tool with full strength in order to oppose what he called Iran’s ambitions.

Pursuant to this logic and after adoption of the Security Council Resolution 1747 (in 2007), and finally, with the adoption of Resolution 1929 (in 2010), the toughest and most strongly-worded form of arms limitations and restrictions were imposed on Iran’s missile program by the Security Council. According to Resolution 1929, all countries were required to “take all necessary measures” – which in the jargon of the United Nations is a code word for military action – in order to prevent development of Iran’s missile program. The then administration of Iran – which had taken some sort of reductionist approach to mechanisms of international system and head of that administration was famous to have described the Security Council resolutions as “scrap paper” – was unable to evaluate legal, political and security consequences of such resolutions – which were adopted under Chapter VII of the UN Charter – and could not prevent their adoption in time.

Subsequently, in later years, while throughout the nuclear talks and even in the text of the Geneva Agreement reached in 2013, reference was made to the necessity of dismantling “all multilateral sanctions” imposed on Iran, Western countries tried to make a distinction between Iran’s “missile sanctions” and other sanctions and urged Iran to take part in separate talks over the country’s missile program. Of course, the administration of President Rouhani strongly opposed that suggestion.

From Resolution 1929 to Resolution 2231

The interesting point is that despite all ploys and efforts made by the United States, and the West in general, Iran’s negotiating team, led by Foreign Minister Mohammad Javad Zarif, finally managed to take the issue of Iran’s ballistic missiles out of the JCPOA document and conduct negotiations over Resolution 2231 (which was supposed to be the Security Council’s confirmation of JCPOA) in such a way that Iran’s missile activities – unlike the text of Resolution 1929 – would not be considered as “violation of international law” or “violation of the Security Council resolutions” anymore. In fact, through determined effort of Rouhani administration’s nuclear negotiating team, the harsh and binding language used in Resolution 1929 on Iran’s missile activities was replaced with an “encouraging” and nonbinding language in Resolution 2231 and the phrase “the Security Council decides…” (as existed in Resolution 1929) was replaced with the phrase “the Security Council calls upon….”. Even this call by the Security Council was merely related to those missiles, which are clearly “designed” for the purpose of delivering nuclear weapons. In the meantime, the phrase in Resolution 1929, which required all countries to take “all necessary measures” to prevent development of Iran’s missile program, was taken out of the text of Resolution 2231 and even a specific period of time was considered for the lifting of the abovementioned proposed restrictions. In another successful legal measure, even the issue of Iran’s “ballistic missiles” – which existed in the main text (or the executive part) of Resolution 1929 – was taken out of the main text of Resolution 2231 and was transferred to Paragraph 3 of “Annex B” to show that following the conclusion of JCPOA, the Security Council attached far less priority and importance to the “issue of ballistic missiles” of Iran.

Although when Resolution 2231 was adopted, some domestic critics of the Iranian administration said that such measures were useless and put stress on the futility of the resolution, but the legal impact of these changes – from Resolution 1929 to Resolution 2231 – can be, in fact, seen in the latest reaction shown to Iran’s missile drills by “international community.” After the Islamic Republic Guards Corps conducted the latest round of its missile tests in March and after the US government took the case to the Security Council session, not only the majority of international legal experts defended Iran for commitment to its international obligations, and not only the European Union’s member countries and even the government of the United States admitted to compatibility of Iran’s missile activities with the text of JCPOA, but the representative of Russia – as a permanent member of the Security Council – clearly said in the same session that according to the text of Resolution 2231, Iran has been only “called upon” to avoid developing its missile program and such a “call” cannot be considered as an “inviolable” issue.

In fact, the mere expression of this official interpretation of Resolution 2231 by a permanent member of the Security Council and on the open floor of this body, was a very important development, which insured Iran’s missile drills against any harm from the UN sanctions and practically prevented this body from being used as an instrument by hostile countries with regard to Iran’s missile issue.

For this reason, we are currently witnessing that the United States and some Western governments – which once adopted binding resolutions under Chapter VII of the UN Charter against Iran’s missile program – now find themselves stripped of any international law leverage and when faced with Iran’s missile drills, they only resort to such symbolic measures as “writing letters” to the UN secretary general as well as rotational chairmen of the Security Council and filing merely “political” complaints. The interesting point is that even when writing such letters, they simply talk about “possible incompatibility” of Iran’s missile activities with Resolution 2231 without saying anything about such activities being certainly a “violation of the resolution.”

Outlook of Iran’s missile program

Undoubtedly, at present, the political and legal atmosphere is much more in Iran’s favor than any time before. As said previously, hostile governments have been to a large extent stripped of their “international law” leverage and other forceful mechanisms of international institutions in reaction to Iran’s missile activities. On the other side, international system and organizations (including the United Nations and International Atomic Energy Agency), unlike the past, have thrown their weight behind positions taken by those who support JCPOA and the political current that seeks to reduce tensions with Iran. Meanwhile, the United States has been limited to tools available in its “domestic legal system” in the face of Iran’s nuclear program. At the same time, following the conclusion of JCPOA, the US administration and Congress have been facing important legal and political limitations even for taking advantage of their domestic legal system, because according to JCPOA – and also due to the new atmosphere governing international political system, which is getting shaped in favor of Iran – the United States cannot reinstate nuclear sanctions under other excuses.

In the meantime, since Iran’s missile activities are no more considered as “illegal” under the international law, if the United States government or Congress decide to impose secondary sanctions on Iran in response to the country’s missile program, they will most probably face much more obstacles and opposition than before for getting other countries in line with their sanctions. At present, international atmosphere does not allow for creating tensions with Iran and imposing illegal restrictions on the country. For this reason, anti-Iran groups in Washington are sparing no effort to restore the past securitized atmosphere against Iran, provide grounds to get the Security Council involved in the case of Iran’s military activities (like the model that was applied to Iraq), and create anti-Iranian consensus like what existed in past years. Therefore, we are currently witnessing that this current is trying to magnify the so-called “Iran threat,” distort Iran’s motivations with respect to regional countries, and turn the issue of Iran’s “ballistic missiles” into a major headline in international media in order to bring back the anti-Iran atmosphere that they crave to see restored.

Countering measures taken by anti-Iran current

In the face of such measures, in addition to strengthening of political and trade relations with other countries (especially with European states), it is necessary for Iran’s diplomatic apparatus to take serious and solid steps in the field of public diplomacy as well, especially taking into account that under election campaigning conditions in the United States, extremist slogans against Iran and efforts made to magnify Iran’s missile threat will be in high demand.

A few necessary measures can be mentioned in this regard. The first step is show of empathy by all political actors and factions with the country’s foreign policy apparatus and making efforts to reduce “political cost” for those state agents, who are on the front line of contact with the world’s public opinion. In other words, it is necessary for the issue of “public diplomacy” to be viewed as a strategic leverage inside the country, so that, measures taken by Iranian diplomats with the goal of capturing the “hearts and minds” of people of the world – especially people of the United States – would not have political costs for them inside the country.

The second step is to take advantage of the legal opportunity and the capacity that exists in Washington and other Western capitals to set up lobbies, as well as media and support organizations. Lobbies supporting Iran’s interests in Washington can play a great role as peripheral actors to shape the public opinion and affect the relevant political process. In doing this, the population of Iranians living in the United States – especially their young generation, which enjoys extraordinarily high capabilities and potentials – can be reckoned on as a potentially important force, which can be very effective in impressing the public opinion in the United States provided that the Iranian government makes more effort to improve the quality of its relations with this population.

The third step is to create necessary grounds to allow the Ministry of Foreign Affairs – as the most expert, most competent and most experienced institution in the field of public diplomacy – to be the sole authority in charge of conveying Iran’s message, expressing Iran’s foreign policy, and making contacts with the public opinion in other countries. Any lack of discipline in the field of public diplomacy in Iran and plurality of those centers and circles that “convey messages” to Iran’s audiences outside the country has been constantly one of the weaknesses, which has been taken advantage of by hostile currents against Iran. The time remained of the US President Barack Obama’s administration in office is the most suitable opportunity to enforce some of these policies and take necessary preliminary steps for possible confrontation with these hostile measures in the future.

Key WordsLegal Status, Iran, Ballistic Missiles, Joint Comprehensive Plan of Action (JCPOA), International Law, United States, United Nations Security Council, Objectification, Resolution 1929, Resolution 2231, Mohammad Javad Zarif, Violation, Nonbinding Language, Anti-Iranian Consensus, Countering Measures, Barack Obama, Nasri

Source: Iran Newspaper
Translated By: Iran Review.Org

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*Photo Credit: The Hill

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