The controversy over Iran’s recent ballistic missile testing has brought to light some disconcerting facts that strongly suggest the nuclear agreement between Iran and the p5+1 countries, known as the Joint Comprehensive Plan of Action (JCPOA), was far worse for the West than even its harshest critics previously realized.
It may well be that despite the almost worldwide effort to prevent Iran from developing into a nuclear power, the Iranians will be within their rights to develop a key component of that power: a potent delivery system. Thus, whether Iran cheats on the nuclear deal, as many expect it to do, or just waits out the duration of the agreement, Tehran will at some point become a nuclear power.
Hard as it is to believe, it seems a delivery system was not considered a core issue in the negotiations but rather a tangential one to be addressed by a UN resolution that would make any restrictions part of international law. Indeed, prior to the nuclear negotiations there were Security Council-imposed sanctions in place against Iran’s ballistic missile development (including testing, production, and launches). That was Resolution 1929 adopted in 2010.
Secretary of State Kerry testified to a congressional committee that Iran, Russia, China, and Iran wanted the Resolution 1929 sanctions lifted when the implementation of the nuclear agreement commenced but that an eight-year extension was agreed upon as part of a compromise involving an Iranian arms embargo. This was to be embodied in Resolution 2231. But it was at that point that things went haywire.
Resolution 1929, which established the missile ban, read as follows:
[The Security 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.
But this is the relevant language of the successor Resolution 2231:
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 submit a report confirming the Broader Conclusion, whichever is earlier.”
The contrast is striking.
Whereas Iran had earlier been told that it “shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons…” it is now “called upon not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons….”
Is “called upon not to” as legally binding as “shall not?” The Iranians, the Russians, and the Chinese say no, one is a prohibition while the other is nothing more than an exhortation. And they also say the new resolution requires that missiles have to be specifically designed to be capable of delivering nuclear weapons – not merely objectively capable – which they claim is impossible because Iran is not pursuing a nuclear weapons capacity.
Obviously the changes could not have been inadvertent. So were Secretary Kerry and his team snookered once again? Mr. Kerry has yet to be heard from on this, but his history suggests he will argue that the language was the best that could be achieved without the talks breaking up. Or will he argue that, in context, “called upon” is the functionally legal equivalent to “shall not” and that Iran is still proscribed from pursuing the development of any missiles that have a delivery capacity?
It may be the twilight of the Obama presidency, but the long-term damage this administration has wrought on the international stage becomes ever clearer even as the lights begin to dim.