Two Iranian experts of international law have discussed why the Islamic Republic of Iran’s missile tests are not against the UN Security Council Resolution 2231.
Last Thursday, Iran test-launched its Simorgh satellite carrier from the newly-established Imam Khomeini Space Centre. After the launch, the US, France, Germany, and Britain referred to the move as a violation of the United Nations Security Council Resolution 2231, which had been ratified by the UNSC in 2015 after the signing of the nuclear deal between Iran and the P5+1 group of countries.
However, Iranian officials have repeatedly rejected the claims that the country’s missile tests are illegal.
Yaser Salarian and Mahdi Khalili, two graduates of international law from the Iranian Foreign Ministry’s Faculty of International Relations, have tried to legally prove that the Islamic Republic’s missile tests do not violate the UNSC Resolution 2231.
Here is the full text of their argument:
Interpretation of UNSC resolutions and applicable law
It is fitting to note that the issue of how to properly interpret the UN Security Council resolutions is an important and critical subject of international law today. Applying the general rules of interpretation, as enshrined in the Vienna Convention on the Law of Treaties (VCLT), Articles 31 and 32, on the UNSC resolutions is a simple and ordinary way.
Michael Wood, a member of the International Law Commission, has made it clear that the VCLT Articles 31 and 32 cannot simply be applied mutatis mutandis to the interpretation of UNSC resolutions. The resolutions are not treaties, they are “unilateral pronouncements of an organ of an international organization.”
The International Court of Justice, ICJ, made these points clear in its 1971 Namibia advisory opinion, in Paragraphs 108-114. The ICJ pointed out that:
“The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. (Para 113- 114)”
Accordingly, the UNSC resolution should be interpreted “as per the terms of the resolution”. The UNSC uses a number of words for expressing its intention. The leading words – typically verbs occurring at the beginning of each operative paragraph of the resolutions – are critical instruments for interpretation of the resolutions.
The question of which words will indicate the Council’s intent to create a binding legal obligation depends on the leading words of the resolution.
The following table explains the amount of authority in each of the words used by the Security Council to create a legal obligation. In resolutions the gentlest leading word is “decides” and the strongest term is “demands”.
The strongest leading word commonly used by the Security Council is “demands.” The Council uses “demands” for two purposes:
(I) First, the Council uses ‘demands’ to command an addressee to abide by its obligations existing independently in international law. In the Resolution 687 against Iraq, the UNSC used this term for adhering to “its obligations concerning servicing and repayment of its foreign debt.” In the operative paragraph 17 of Resolution 687, the Council:
“Demands that Iraq adhere scrupulously to all of its obligations concerning servicing and repayment of its foreign debt”
In the operative paragraph 4 of Resolution 403, the Council has used “demand” and referred to the obligation of cessation, which exists independently in international law:
In this resolution the Security Council:
“Demands the immediate and total cessation of all hostile acts committed against Botswana by the illegal régime in Southern Rhodesia”
(II) Secondly, the word “demand” has also been used by the Council to create new legally binding obligations. In the operative paragraph 1 of Resolution 1054, the Security Council created new legal obligation and imposed to the Government of Sudan. The Council:
“Demands that the Government of Sudan comply without further delay with the requests set out in paragraph 4 of resolution 1044 (1996)”
It is interesting to note that, when the Council intends to create legal binding obligation for an addressee or command for adhering to an already existing international legal obligation by the addressee, deploys the word “demands”.
The weakest leading word that actually instructs an addressee to perform an action is “calls upon.”
Most of the interpreters and scholars have specified the “calls upon” language as legally non-binding.
In the operative paragraph 7, section (b) of Resolution 2231, the Council says that:
“(b) All States… are called upon to comply with paragraphs 3 and 7 of Annex B;”
And paragraphs 3 of Annex B in JCPOA stipulates that:
“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 Council has used two forms of “calls upon” in resolution 2231; (1) first of all, the Council called upon all States to comply with paragraphs 3 and 7 of Annex B, (2) secondly in the paragraphs 3 of Annex B “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”
However, the Council used a non-mandatory language in the operative paragraph 7 of resolution 1929, saying the 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;”
A distinction should be established between operative paragraph 7 of resolution 1929 and the operative paragraph 7, section (b) of Resolution 2231. The Council in resolution 1929 has used a broad scope of implementation; but resolution 2231 has a narrow scope. Accordingly in 2231 States and Iran are called upon to comply with the JCPOA not the resolution. The JCPOA has a certain scope and specific areas of action.
In resolution 2231, in comparison with resolution 1929, obviously a language change has occurred. In other words, the language which has been used in resolution 2231 is hortatory. The language change from “decides that Iran shall not” in resolution 1929 to “Iran is called upon” in resolution 2231 indicates a softening in tone, and it stems from the non-legally-binding language used in resolution 2231. The obligations concerning Iran’s missile tests that were moved from operative paragraphs of resolution 1929 to the annex B of JCPOA, endorsed by resolution 2231, is on the right track. The missile concerns are not mentioned in the operative paragraphs of resolution 2231, and the JCPOA itself does not include any limits and restrictions on the Iran’s missile programs. It is clear that the JCPOA lifts missile-related sanctions without requiring Iran to limit its missile programs.
Another language change in the resolution has occurred in the issue of missiles. The UNSC Resolution 2231 refers to missiles “designed to be capable of delivering nuclear weapons,” while resolution 1929 states “capable” of such delivery. Technically it is impossible to prove that the Iran’s missile are designed for such capability.
Accordingly, if the Council intended to create new legally binding obligation in the resolution concerning Iran’s missile tests, it would use the term “Demands” rather than “Calls upon”. The Council has intentionally changed its language toward Iran’s missile test, and the issue is thus de-securitized in the view of the UN Security Council. Hence Iran’s Missile Tests did not violate neither resolution 2231 nor the JCPOA.