After Iran confirmed a missile launching on February 1, 2017, Iranian Foreign Minister Zarif stated “As all parties present in the negotiations on the nuclear deal know, the missile issue is not a part of the” JCPOA. After Iran launched ballistic missiles on March 9, 2016, then Russian Ambassador to the UN, the late Vitaly Churkin commented on the language in resolution 2231: “A call is different from a ban so legally you cannot violate a call, you can comply with a call or you can ignore the call, but you cannot violate a call.”

Further, as stated in the June 20, 2017 Secretary-General’s report on the implementation of resolution 2231, the Iranian Foreign Minister “reiterated that the Islamic Republic of Iran’s ballistic missiles ‘have not been designed to be capable of carrying a nuclear weapons’ and therefore were not in violation of resolution 2231 (2015).”

The international standard for a ballistic missile capable of carrying a nuclear weapon has been set by the Missile Technology Control Regime, defining them as “unmanned aerial vehicle systems” with “capabilities exceeding a 300 km/500 kg range/payload threshold,” enabling the launched vehicle system to carry a nuclear warhead.

The Security Council’s facilitator, a Council member selected annually to assist in the implementation of resolution 2231, presented the views of Council members at a meeting held on June 29, 2017 to discuss the implementation of resolution 2231. Experts from one member state concluded that the 300 km/500 kg range/payload specifications applied and that this:

Test constituted an activity related to ballistic missiles designed to be capable of delivering nuclear weapons and was inconsistent with resolution 2231 . . . [another] representative argued that 2231 does not provide a definition as to which types of missiles are to be constructed in such a manner as to be capable of delivering nuclear weapons. Other delegations say that 2231 concerns “intrinsic capability rather than intent.”

The facilitator concluded: “Since the launch involved the system that was by design capable of delivering a nuclear warhead it’s use was therefore inconsistent with resolution 2231,” adding there was no consensus on the Security Council “on how this particular launch related to resolution 2231.”

That the Security Council reached no consensus on the Iranian ballistic missile launches does not preclude parties to the JCPOA from sanctioning Iran for these launches. Even if Ambassador Churkin was correct that Iran can comply with or ignore a “call,” it does not follow that not heading a call precludes penalties.

The United States, Britain, France and Germany sent letters to the Secretary-General after Iran’s March 2016 and July 2017 ballistic missile launchings, calling them “in defiance” of resolution 2231.

The July 2017 State Department announcement on new sanctions against Iran finds that “Iran continues to test and develop ballistic missiles, in direct defiance of UN Security Council Resolution 2231.” Iran may argue that it is not prohibited from launching ballistic missiles but neither does the JCPOA nor resolution 2231 prohibit parties to these instruments from sanctioning Iran for such launches.

The illogic of the JCPOA immunizing Iran against sanctions for non-nuclear issues, the provisions of the agreement, and the clarification from the Obama administration indicate that recent U.S. sanctions against Iran do not violate the JCPOA.

Richard Horowitz is an attorney and former IDF officer. He has published extensively on terrorism and related issues and has lectured on these issues in twenty countries.

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