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August 20, 2015 No.
1182

Critical Points To Consider In Understanding The Iranian Nuclear Deal: Part III

Introduction

The following analysis is the third in a series which discusses the Iranian nuclear deal. This analysis will explain that United Nations Security Council Resolution (UNSCR) 2231, which was only supposed to be an endorsement of the JCPOA, actually includes an additional annex that does not exist in the JCPOA. This annex, called "Annex B: Statement," refers to critical issues such as the arms embargo on Iran and Iran's use and development of ballistic missiles. This analysis does not intend to be an overall assessment of the deal.

Iran Insisted On Relegating Disputed Issues (Arms Embargo, Ballistic Missiles) To UNSCR 2231 With The Clear Intent Of Violating It

The JCPOA and UNSCR 2231 are different documents. There are several key differences between the JCPOA and UNSCR 2231, all of which are contained in Annex B. Their inclusion in the resolution and exclusion from the JCPOA raises the question: why are these issues not included in the JCPOA?

It is first important to explain the difference between the JCPOA and UNSCR 2231. UNSCR 2231 states that, in regard to the JCPOA, "Member States are obligated under Article 25 of the Charter of the United Nations to accept and carry out the Security Council's decisions, [the decision which] 1. Endorses the JCPOA and urges its full implementation on the timetable established in the JCPOA"[1] Secretary-General of the U.N. Ban Ki-moon reiterated in his address following the endorsement of the JCPOA on July 20, 2015: "Resolution 2231 will ensure the enforcement of the JCPOA. It establishes procedures that will facilitate the JCPOA's implementation, enabling all States to carry out their obligations contained in the Agreement."[2]

While these statements seem to portray UNSCR 2231 as a binding document, it is not. Many resolutions passed by the United Nations, whether by the General Assembly or the Security Council, are political documents, and are not in and of themselves legally binding agreements or enforceable declarations.[3]

The Iranian perspective regarding UNSCR 2231 hinges entirely on its non-binding nature: Iran deems only the JCPOA to be binding. This view was asserted in interviews given by Foreign Minister Mohammad Javad Zarif and Deputy Foreign Minister Abbas Araghchi. Araghchi said in an interview on Iranian TV Channel 2 on July 20, 2015, "We told them [the Americans] explicitly [that if you insist on including these articles on the arms and missile embargoes in the JCPOA, then], 'There is no agreement,' and we will not accept an agreement in which embargoes on weapons and missiles continue At the end, they [the P5+1] said, 'Then we will put the issue of the embargoes on arms and missiles into the Security Council resolution.' [Indeed] in UNSCR 2231, there is no imposition on Iran regarding missiles, but there is an imposition regarding an arms embargo for 5 years."[4] Araghchi further explained the rationale for including the arms and missiles provisions only in UNSCR 2231: in the same interview, he stated that the JCPOA and UNSCR 2231 are two separate documents, and Iran is only obligated to adhere to the JCPOA - it has violated U.N. resolutions in the past without penalty.[5] Similarly, Zarif stated in a conference held at the daily Ittila'at with the participation of senior Iranian negotiators on August 9, 2015: "There is a difference between the JCPOA and UNSCR 2231. Violating the JCPOA has consequences while violating UNSCR 2231 has no consequences."[6]

The subjects relegated to the resolution with the Iranian intent not to adhere to them are outlined in Annex B: the possible provision to Iran of materials that could contribute to the development of nuclear weapons delivery systems; the arms embargo; and the missiles embargo.[7]

UNSCR 2231: States May Provide Material And Financial Supplies Which Could "Contribute To The Development Of Nuclear Weapon Delivery Systems" To Iran If Approved By Security Council

UNSCR 2231 states, "All States may participate in and permit the activities described below provided that the Security Council decides in advance on a case-by-case basis to permit such activity: (a) the supply, sale or transferof all items, materials, equipment, goods and technology set out in S/2015/546 and of any items, materials, equipment, goods and technology that the State determines could contribute to the development of nuclear weapon delivery systems; and (b) the provision to Iran of any technology or technical assistance or training, financial assistance, investment, brokering or other services, and the transfer of financial resources or services, or Iran's acquisition of an interest in any commercial activity in another State, related to the supply, sale, transfer, manufacture or use of the items, materials, equipment, goods and technology described in subparagraph (a) of this paragraph or related to the activities described in paragraph 3..."[8]

This provision stipulates that as long as it is approved by the Security Council and "Iran commit[s] not to use such items for development of nuclear weapon delivery systems,"[9] states are allowed to provide financial and material supplies to Iran which could eventually facilitate the construction of nuclear weapon delivery systems. While the JCPOA declares that states are allowed to provide certain materials to Iran pending approval by the Joint Commission, i.e. "all items, materials, equipment, goods and technology set out in INFCIRC/254/Rev.12/Part 1, and all items, materials, equipment, goods and technology set out in INFCIRC/254/Rev.9/Part 2as well as any further items if the relevant State determines that they could contribute to activities inconsistent with the JCPOA"[10] it does not mention anything specific about providing materials that could contribute to developing nuclear weapon delivery systems.

Iran rejected the inclusion of this provision in the JCPOA, which they perceive as more binding than the resolution. They agreed to its inclusion in UNSCR 2231 because, from their perspective, U.N. resolutions may be violated without consequence. 

UNSCR 2231: Iran May Trade Arms Immediately If Approved By Security Council, May Trade Without Approval In 5 Years

UNSCR 2231 specifies that states may trade arms with Iran immediately, provided that such trade is approved by the Security Council: "All States may participate in and permit, provided that the Security Council decides in advance on a case-by-case basis to approve: the supply, sale or transfer directly or indirectly from or through their territories, or by their nationals or individuals subject to their jurisdiction, or using their flag vessels or aircraft, and whether or not originating in their territories, to Iran, or for the use in or benefit of Iran, of any battles tanks, armoured combat vehicles, large caliber artillery systems, combat aircraft, attack helicopters, warships, missiles or missile systems, as defined for the purpose of the United Nations Register of Conventional Arms, or related materiel, including spare parts, and the provision to Iran by their nationals or from or through their territories of technical training, financial resources or services, advice, other services or assistance related to the supply, sale, transfer, manufacture, maintenance, or use of arms and related materiel described in this subparagraph. This paragraph shall apply until the date five years after the JCPOA Adoption Day or until the date on which the IAEA submits a report confirming the Broader Conclusion, whichever is earlier. "[11]

The abovementioned provision which deals with the limitations put on Iran regarding arms trade has been incorrectly discussed in the media: states are not banned from trading arms with Iran for 5 years. Arms trade is, in fact, permitted immediately if the Security Council approves it, and after 5 years, arms can be traded without Security Council approval.

Such a limitation that is dependent on Security Council approval was intentionally excluded from the JCPOA by Iran. Instead, Iran insisted that it only be included in UNSCR 2231, which both Araghchi and Zarif declared to be non-binding.

UNSCR 2231: Iran "Called Upon Not To Undertake Any Activity Related To Ballistic Missiles"

UNSCR 2231 states, "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."[12]

This provision "calls upon" Iran not to engage in the development of ballistic missiles as a means of delivering nuclear weapons for 8 years. Iran rejected the inclusion of this provision in the JCPOA and agreed to its mention only in UNSCR 2231, which it does not consider to be binding.

*Y. Carmon is President and Founder of MEMRI.


Endnotes:

[1] Introduction, page 2, UNSCR 2231. See link for full text: http://www.un.org/en/sc/inc/pages/pdf/pow/RES2231E.pdf

[3] "SCRs [Security Council Resolutions] are not legislation, nor are they 'judgments' or 'quasi-judgments', nor are they treaties. Indeed they are for the most part very different from treaties. Many SCRs are not intended to have legal effects. Where they do have legal effects this is often only within the internal legal order of the United Nations." The Interpretation of Security Council Resolutions, Michael C. Wood, page 79. http://www.mpil.de/files/pdf2/mpunyb_wood_2.pdf

[5] See Endnote 4.

[7] The Iranian perception that violations of Security Council resolutions do not have consequences may also apply to the JCPOA in its entirety, which was endorsed as a Security Council resolution at Iran's insistence. This perception, and the possible intent to violate UNSCR 2231, might have been the reason for this insistence.

[8] "All States may participate in and permit the activities described below provided that the Security Council decides in advance on a case-by-case basis to permit such activity: (a) the supply, sale or transfer directly or indirectly from their territories, or by their nationals or using their flag vessels or aircraft to or from Iran, or for the use in or benefit of Iran, and whether or not originating in their territories, of all items, materials, equipment, goods and technology set out in S/2015/546 and of any items, materials, equipment, goods and technology that the State determines could contribute to the development of nuclear weapon delivery systems; and (b) the provision to Iran of any technology or technical assistance or training, financial assistance, investment, brokering or other services, and the transfer of financial resources or services, or Iran's acquisition of an interest in any commercial activity in another State, related to the supply, sale, transfer, manufacture or use of the items, materials, equipment, goods and technology described in subparagraph a of this paragraph or related to the activities described in paragraph 3. provided that in the event of an approval by the Security Council: (a) the contract for delivery of such items or assistance include appropriate end-user guarantees; and (b) Iran commit not to use such items for development of nuclear weapon delivery systems. This paragraph shall apply 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." UNSCR 2231, Annex B, Paragraph 4. See Endnote 1 for link to text.

[9] See Endnote 8.

[10] "With the purpose of establishing a procurement channel, the Joint Commission will, except as otherwise provided by the United Nations Security Council resolution endorsing this JCPOA, review and decide on proposals by states seeking to engage in: 7. the supply, sale or transfer directly or indirectly from their territories, or by their nationals or using their flag vessels or aircraft to, or for the use in or benefit of, Iran, and whether or not originating in their territories, of all items, materials, equipment, goods and technology set out in INFCIRC/254/Rev.12/Part 1, and, if the end-use will be for Iran's nuclear programme set out in this JCPOA or other non-nuclear civilian end-use, all items, materials, equipment, goods and technology set out in INFCIRC/254/Rev.9/Part 2 (or the most recent version of these documents as updated by the Security Council), as well as any further items if the relevant State determines that they could contribute to activities inconsistent with the JCPOA" JCPOA, Annex IV, Article 6, Paragraphs 6-7. See link for full text: http://apps.washingtonpost.com/g/documents/world/full-text-of-the-iran-nuclear-deal/1651/

[11]  UNSCR 2231, Annex B, Paragraph 5. See Endnote 1 for link to text.

[12] UNSCR 2231, Annex B, Paragraph 3. See Endnote 1 for link to text.