Commentary-Iran's Ballistic Missile Program from an International Law Perspective
Before and after his election as president, Donald Trump has threatened the 2015 Joint Comprehensive Plan of Action (JCPOA) limiting Iran's ballistic missile ambitions. President Trump has also been trying to challenge and demote the achievements of that deal since the beginning of his presidency.
After taking office, President Trump transferred the decision-making process regarding JCPOA to several cabinet secretaries. In harmony with the president, the House of Representatives as its first step against the JCPOA, passed a bill titled "Iran Ballistic Missiles and International Sanctions Enforcement Act" (the House Bill) on 30 October 2017 which might be passed by the Senate and signed by the President in the near future.
In addition to passing this kind of international law-related national legislation against Iran, the US has been inviting the international community, especially its allies, to perform in the same manner. Despite the fact that Iran's ballistic missiles program is designed for Iran's military defense, and is unrelated to the United States (and other countries) for determining its frameworks, the possibility of imposing unilateral sanctions against Iran's ballistic missile program (which is the main goal of the House Bill) is of questionable compliance with international law.
The first concept to consider is how Iran's ballistic missile program fits into the scheme of international law. Although there is no consensus on what the general principles of international law are, sovereign equality is undoubtedly one of them. The principle of sovereign equality is one of the oldest and most fundamental principles of international law, tracing its origins to the Peace of Westphalia in 1648, and always has been respected by other governments. The importance of sovereign equality is even enshrined in the charter of the United Nations (UN), wherein Article 2(1) states that the organization "is based on the principle of the sovereign equality of all its Members." According to the "Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations," also known as UN General Assembly Resolution 2625, the General Assembly of the UN reaffirms that:
All States enjoy sovereign equality. They have equal rights and duties and are equal members of the international community, notwithstanding differences of an economic, social, political or other nature.
Then, benefiting from most advanced weapons, the US cannot restrict other countries' rights to develop and research comparable weapon systems from the perspective of the sovereign equality.
While sovereign equality forms a basis for other rules, such as state immunity, one of the most crucial outcomes of sovereign equality is the right of self-defense. In fact, the right of self-defense, like state immunity, is rooted in the principle of the sovereign equality. UN General Assembly Resolution 2625 also noted some elements directly related to the right of self-defense including "[e]ach State enjoys the rights inherent in full sovereignty" and "[t]he territorial integrity and political independence of the State are inviolable" Self-defense is further recognized as an "inherent right" of states according to the Article 51 of the UN Charter.
Self-defense, however, is not an unlimited right; any military action done in self-defense must be both necessary and proportionate to the threat at hand, according to customary international law. As a recognized element of self-defense, proportionality serves a prominent role for the very existence of the Iran's missiles program since Iran is a country has been surrounded by notorious non-governmental armed organizations, such as Islamic State, the Taliban, Al-Qaeda, and so forth. In addition, Iran's political rivals in the international community, especially Saudi Arabia and Israel in the Middle East, already have been armed to the teeth by the US. These three countries (also main critics of the JCPOA and Iran missiles program), have the most mass destructive weapons and arsenals in scale and amount. According to the latest research conducted by the Stockholm International Peace Research Institute (SIPRI), the US and Israel stand among top major arms exporters (US: #1; Israel: #10) and states with highest military expenditure (US: #1; Israel: #15). Additionally, Saudi Arabia is the second largest importer of arms after India. Furthermore, Israel has its own nuclear arsenal, and it is officially confirmed that the 2017 United States-Saudi Arabia arms deal is one of the biggest arms deals in history.
It is also worth mentioning that the territorial integrity of Syria, Palestine and Lebanon has been violated by Israel, and that Yemen has been attacked by Saudi Arabia. On the other side, after the Iran-Iraq War, Iran has not resorted to its military or directly engaged in any international armed conflict.
Obviously, taking advantages of available military mechanisms is the main means of self-defense. Therefore, depriving a country from its inherent right of self-defense is not acceptable and logical at all. In line with this argument, there are two worthy opinions against depriving a country from its inherent right of self-defense.
First, the ICJ, in its 1996 advisory opinion on "Legality of the Use by a State of Nuclear Weapons" confesses that:
[T]he Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.
Second, Bosnia and Herzegovina, in its 1996 application concerning "Application of The Convention on The Prevention And Punishment of The Crime of Genocide" includes this request:
(m) that Security Council Resolution 713 (1991), imposing a weapons embargo upon the former Yugoslavia, must be construed in a manner that shall not impair the inherent right of individual or collective self-defence of Bosnia and Herzegovina under the terms of United Nations Charter Article 51 and the rules of customary international law.
While the ICJ did not follow that request put forward by Bosnia and Herzegovina, the UNSC implicitly accepted the argument and has not taken any actions against the Bosnia and Herzegovina.
The criteria of the proportionality of self-defense, then, authorizes recourse to the attacks, of an equal or lesser amount than the initial attacks. In other words, Iran is at least able to develop its missiles program in proportion of the minimum level its neighbors have, especially, when considered in light of its position in the Middle East.
Nevertheless, Iran has been the subject of numerous rounds of UN sanctions for its weapons program, and a basis under international law to prevent its ballistic missile program has predated the JCPOA for decades.
Although the UN Charter states that there is no authorization for the "United Nations to intervene in matters which are essentially within the domestic jurisdiction of any state or shall require the Members to submit such matters to settlement under the present Charter" but "application of enforcement measures under Chapter VII."
Under Chapter VII of the UN Charter, Iran has been the subject of intense sanctions for many years. After the JCPOA was approved, the UN Security Council lifted the sanctions in Resolution 2231. In accordance with the JCPOA and Resolution 2231, Iran is forbidden from possessing "ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology." Contra rationem, there is no limitation or prohibition for Iran to establish ballistic missiles programs designed to be capable of delivering non-nuclear weapons.
Iran's nuclear activities are observed by International Atomic Energy Agency (IAEA). According to the JCPOA, the Director General of the IAEA is responsible for "the necessary verification and monitoring of Iran's nuclear-related commitments." Furthermore, the Director General also is required to prepare and render regular reports, or emergency reports in case the Director General "has reasonable grounds to believe there is an issue of concern directly affecting fulfillment of JCPOA commitments" to both the IAEA Board of Governors and the UNSC. Any violation of the JCPOA will be reported to the UNSC, who would then take the necessary steps to ensure compliance, even though Iran's commitment to the JCPOA is confirmed by Director General of the IAEA so far.
Besides, there is also the Treaty on the Non-Proliferation of Nuclear Weapons (NPT) which restricts the sphere of influence of the Sovereign Equality related to the nuclear-related military development and research. Iran joined the NPT as well and declared to always respect the obligations therein.
From the foregoing, we can draw several conclusions regarding Iran's ballistic missile program and its relationship to international law:
1. While the JCPOA was an innovation and strikes a balance between Iran's peaceful nuclear activities and international community's concerns, the US's aggressive acts against the JCPOA would lead to tear apart the peaceful and diplomatic mechanisms.
2. The United States and other countries and entities cannot impose any sanctions and limitations against the Iranian missile program, unless they act in accordance with the Charter of the United Nations.
3. According to Article 103 of the UN Charter and Article 2 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, neither any other international agreement, nor national rules and acts of states, can undermine obligations of the members of the United Nations. So, the US could not invoke national reports and national policies for restraining Iran's missiles program and violate Resolution 2231 by its national legislation.
4. Based on the principles of Sovereign Equality and the inherent right of self-defense, not only there are no limitations against military development and research of missiles but also it is an inherent right and this is necessary for the very existence of a country.
Photo by Mohsen SHANDIZ
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