What the Iran Deal Says (and Doesn’t Say) about Iran’s Ballistic Missiles

One of the final hurdles in the nuclear talks between Iran and the P5+1 recently concluded in Vienna was the United Nations sanctions on Iran’s ballistic missile program and conventional arms purchases.  In testimony before the House Foreign Affairs Committee on July 28, Secretary of State John Kerry recounted that a compromise reached in the final days of negotiations led to the extension of the U.N. arms embargo for five years and the missile ban for eight years.  According to Secretary Kerry, Russia, China, and Iran wanted to lift the restrictions immediately, while the four Western nations did not.

The extension of the arms embargo and missile ban came in U.N. Security Council resolution 2231, which was unanimously adopted on July 20.  The new resolution endorses the nuclear deal, known as the Joint Comprehensive Plan of Action (JCPOA), and implements certain aspects of the agreement, including a procurement channel for exports of proliferation-sensitive items to Iran.

While Iran’s ballistic missile capabilities were not considered a core issue in the nuclear talks, the language of the new U.N. resolution and the terms of the JCPOA have consequences for the future of Iran’s ballistic missile program:

• The U.N. resolution removes the existing ban on Iranian activity related to nuclear-capable ballistic missiles, including launches.

• The U.N. restrictions on sales of missile technology to Iran are extended for up-to eight years, but missile imports will be less strictly controlled than nuclear imports, relying primarily on reporting from Iran and due diligence by its suppliers.

• The agreement does not allow the “snapback” of sanctions in response to illicit missile procurement.

• Sanctions will be lifted early next year on several banks that have facilitated illicit missile-related transactions in the past.

Iran’s efforts to advance its nuclear-capable ballistic missile program – through test launches, production, and illicit procurement – will be made easier, while attempts to punish or deter Iran’s ballistic missile activity and illicit procurement will be made more difficult.

Here is how the new U.N. resolution and the JCPOA control – or, mostly, don’t – Iran’s ballistic missile program:

1.  The U.N. restrictions on Iran’s ballistic missile activity, including launches, are not mandatory.

U.N. resolution 2231 draws a clear distinction between the restrictions it imposes on two aspects of Iran’s ballistic missile program: 1) Iran’s domestic ballistic missile activity, including testing, production, and launches; and 2) Iran’s acquisition of sensitive missile technology from abroad.  The restrictions on the latter are legally binding, but the ban on the former is not mandatory.

According to the new U.N. resolution:

• “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.”[1]

As with several other components of the JCPOA, Iranian compliance with a ban on ballistic missile activity is non-mandatory.  The Security Council is merely exhorting Iran (“Iran is called upon”) to refrain from such activity.

In contrast, U.N. Security Council resolution 1929 from 2010, which established the existing missile ban, used stronger, legally binding language:

• “[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.”[2]

When Iran was under the restrictions of resolution 1929, the U.N. Panel of Exports found that Iran had violated its Security Council obligations with its launches of nuclear-capable ballistic missiles.  In its 2013 report, the Panel concluded that launches of the Shahab 1 and Shahab 3 missiles in July 2012 constituted a violation of resolution 1929.  In its 2014 report, the Panel reported on continued ballistic missile activity, including missile tests.

The Iranian Foreign Ministry, meanwhile, has interpreted the language of the new U.N. resolution as not applicable to its missile program.  After the adoption of the new U.N. resolution on July 20, Iranian Foreign Minister Javad Zarif told Iran’s parliament: “This paragraph speaks about missiles with nuclear warheads capability and since we don’t design any of our missiles for carrying nuclear weapons, therefore, this paragraph is not related to us at all.”[3]  Zarif appears to be basing his interpretation on a subtle but crucial shift in language between the two U.N. resolutions.  Resolution 1929 bans “activity related to ballistic missiles capable of delivering nuclear weapons,” while the new resolution refers to “ballistic missiles designed to be capable of delivering nuclear weapons.”  In the same session of parliament, Zarif also referred to the new resolution’s paragraph on ballistic missiles as a whole as “non-binding.”

 

2.  The U.N. restrictions on missile technology sales to Iran are binding for a maximum of 8 years.

The U.N. restrictions on sales of missile-related technology to Iran are legally binding for eight years (or until the International Atomic Energy Agency reaches its so-called “Broader Conclusion” that all nuclear activity in Iran is peaceful).  Invoking Article 41, Chapter VII of the U.N. Charter, resolution 2231 requires that “all states shall comply” with the U.N. restrictions on the “supply, sale or transfer” of missile technology to Iran, as well as on the provision of any training or financial assistance in support of Iran’s acquisition of such technology.

So while the resolution does not impose binding restrictions on Iran’s ballistic missile activity, the U.N. Security Council will control Iranian imports of missile technology.  These imports controls will cover all items included in the Missile Technology Control Regime Annex.  According to the resolution, the Security Council will “decide… on a case-by-case basis to permit such activity.”[4]  This review most likely will be undertaken by the Procurement Working Group, which was established by the JCPOA to oversee the import of sensitive items into Iran.  After eight years, the procurement channel will no longer monitor Iranian missile imports.

Even during those eight years, oversight of Iran’s missile-related imports will be less strict than oversight of its nuclear-related imports.  The agreement establishes strong provisions for the monitoring of the most sensitive nuclear-related goods imported into Iran through the U.N. procurement channel.  Iran will be required to “provide the IAEA access to location of intended use of all items” on the Nuclear Suppliers Group’s “Trigger List.”  Iran must also allow exporting states to verify the end-use of imports on the NSG’s list of dual-use items.  If requested, the countries of the P5+1 can provide expertise in end-use verification to the exporting country.[5]

In contrast, the new U.N. resolution only requires that Iran provide exporters of missile-technology with “appropriate end-user guarantees.”[6]  While the U.N. Security Council will likely tightly control imports of sensitive missile technology for the duration of the ban, it could allow certain dual-use imports, ostensibly for civilian purposes.  Such imports could be diverted to advance Iran’s ballistic missile program in the absence of strict end-use verification. Imports to Iran’s space launch program could also help extend the range of Iran’s ballistic missiles and improve their accuracy.

 

3.  The nuclear agreement does not allow the “snapback” of sanctions to punish illicit Iranian procurement of missile technology.

How will this eight-year U.N. ban on Iranian missile imports be enforced?  The nuclear agreement, which does not mention ballistic missiles at all, does not appear to provide a clear mechanism to punish Iranian violations of the U.N. missile restrictions.

The JCPOA does include an enforcement mechanism for the U.N. restrictions on nuclear-related procurement.  The agreement requires that Iran “not use, acquire, or seek to procure” items on the NSG’s lists of nuclear and nuclear-related dual-use items.[7]  The deal also allows any party to “refer a procurement-related activity to the Joint Commission under the dispute settlement mechanism.”[8]  This could lead to the “snapback” of sanctions on Iran in the case of “significant non-performance.”  Under the terms of the agreement, any single member of the P5+1 could unilaterally trigger the re-imposition of the old U.N. sanctions.

By design, the JCPOA is silent on the issue of Iran’s ballistic missile program, and the text of the agreement is ambiguous as to whether the “procurement-related activity” that can be referred to the deal’s dispute resolution process encompasses missile procurement.  However, given that the agreement does not mention missile-related procurement, as well as the practical unlikelihood that a P5+1 country would undertake the step of re-imposing the U.N.’s nuclear-related sanctions in response to a missile violation, it appears that “snapback” is not a viable response to illicit Iranian procurement of missile technology.*

*[Note: On August 11, Secretary Kerry confirmed that the U.N. missile restrictions and arms embargo are “not tied to the snapback” provision of the JCPOA.]

The U.N. resolution does allow the Security Council to sanction individuals and entities linked to “the development of nuclear weapon delivery systems, including through the involvement in procurement of prohibited items.”[9]  However, these would be designations of specific individuals and entities, rather than the “snapback” of all U.N. sanctions.  The designation process is also time-consuming.  In its May 2011 report, the U.N. Panel of Experts recommended that Ali Akbar Tabatabaei – a member of the Qods Force – and two other entities be sanctioned for the illicit export of arms from Iran to Nigeria.  It took the Security Council almost a year – until April 2012 – to impose the sanctions.

Overall, the practical deterrent to Iran’s continued illicit procurement of ballistic missile technology or the diversion of dual-use technology is low.  Even when under the restrictions of previous U.N. resolutions, Iran violated repeatedly these resolutions through ballistic missile tests and missile-related procurement.

 

4. The nuclear agreement will soon lift sanctions on banks that have facilitated procurement for Iran’s ballistic missile program.

In the first round of sanctions relief due to arrive in early 2016 (on “Implementation Day”), the European Union will lift sanctions on the following entities associated with Iran’s ballistic missile program, including banks that have facilitated illicit procurement and handled transactions linked to the missile program in the past:

• Banco Internacional De Desarrollo CA: A Venezuelan bank owned by the Export Development Bank of Iran.  It provided financial services to Iran’s Ministry of Defense and Armed Forces (MODAFL), which supports Iran’s nuclear and ballistic missile programs.

• Bank Melli: An Iranian bank that provides banking services for entities involved in Iran’s nuclear and ballistic missile program and has facilitated purchases of sensitive materials for those programs.

• Bank Tejarat: An Iranian bank that provides financial services to entities linked to Iran’s nuclear and ballistic missile programs, including MODAFL.

• Europaisch-Iranische Handelsbank AG: A German bank that reportedly has done over a billion dollars of business for Iranian companies associated with Iran’s conventional military and ballistic missile procurement programs, including Defense Industries Organization (DIO), Aerospace Industries Organization (AIO), and the Iranian Revolutionary Guard Corps (IRGC).

• Export Development Bank of Iran: An Iranian state-owned bank that has provided financial services to companies associated with Iran’s nuclear and missile programs.  It has provided services to MODAFL, facilitated procurement activities, and has handled transactions linked to Iran’s defense and missile entities.

• Machine Sazi Arak: An Iranian manufacturing company linked to Iran’s ballistic missile program.

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