The Iranian Missile Launch and the Gray Lady's Confusion

By Yishai Schwartz
Thursday, October 22, 2015, 11:45 AM

Last week, the New York Times ran a story under the alarming headline, “Iran Tests Long-Range Missile, Possibly Violating Nuclear Accord.” The article references the testing of Iran’s new Emad long-range ballistic missile system, and explains that “The missile launch may have violated the terms of the agreement, reached in Vienna with six world powers” because “[a]ccording to some readings of the deal, it placed restrictions on Iran’s ambitious missile program.”

The problem is, however, that there is no such plausible reading of the deal. The JCPOA was deliberately negotiated so as to exclude any Iranian commitments on its missiles program. And while the Iranian missile launch is certainly a violation of previous binding Security Council resolution, the launch’s permissibility is actually unaffected by the recent deal and UN resolution. The Times’s muddling of this issue raises serious concerns about whether the American public will be given clear, accurate information as Iran continues to test Western limits.

The Times report makes three mistakes simultaneously. First, the story confuses the actual Iran deal concluded in Vienna, the so-called “Joint Comprehensive Plan of Action,” with the closely related to Security Council resolution passed a few days later. That resolution, UNSCR 2231, “endorses the JCPOA and urges its full implementation,” and uses its binding Article 41 authority to formally effectuate several of the JCPOA’s components, including the staggered lifting of sanctions and previous UNSC restrictions. According to the Times, however, Iran may have violated the nuclear accord by disregarding a provision of this resolution that “bars Iran from developing missiles ‘designed to carry nuclear warheads.’” But even if there was such a provision in UNSCR 2231, Iran’s disregard for it of still wouldn’t be a violation of the Iran nuclear agreement itself. The UNSCR includes and implements the JCPOA; the reverse is not true.

But the Times story also made a second error: Even UNSCR 2231 itself doesn’t really bar Iran from developing missiles. The provision on Iran’s ballistic missile program deliberately avoids using binding language. The very same section of the resolution (section 7), that “decides, acting under Article 41” that “all states shall comply” with restrictions on certain weapons and materials sales to Iran, simply states that 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.” The difference between the compulsory language regarding other countries’ obligations toward Iran, and the exhortative language directed against Iran itself is stark and deliberate.

Finally, the entire section of this Security Council resolution isn’t even operational yet. The entirety of UNSCR’s 2231’’s Section 7 doesn’t kick in except “upon receipt by the Security Council” of a report from the IAEA that Iran has complied with specified nuclear obligations. That simply hasn’t happened yet.

Now, just because Iran’s missile launch violates neither the actual deal nor UNSCR 2231 doesn’t mean that all is hunky dory. In fact, the launch is a clear and unambiguous violation of an earlier Security Council resolution, UNSCR 1929. In 2010, the UNSC “Decide[d] that Iran shall not undertake any activity related to ballistic missiles capable of delivering nuclear weapons, including launches using ballistic missile technology.” And although the most recent resolution laid the groundwork for the termination UNSCR 1929, it remains in full force until the IAEA submits its report on Iranian compliance (the same report that triggers Section 7). Deliberate violations of specific, binding Security Council directives are traditionally a big deal in themselves.

American officials, thankfully, have been much better at parsing the legal details here than the New York Times. In a statement shortly after the launch, House minority whip Steny Hoyer properly labeled the move a “violation of U.N. Security Council Resolutions” and sounded the alarm that the action set an unacceptable precedent. Similarly, in her response to the Iranian launch a few days later, Ambassador Samantha Power expressed “deep concern about Iran's launch of a “medium-range ballistic missile inherently capable of delivering a nuclear weapon… [in] clear violation of U.N. Security Council Resolution 1929."

Nevertheless, the launch—and especially the Times’ fumble of the relevant facts—raise a number of serious questions. First, Iran has once again made crystal clear it feels no compunction about violating explicit, binding directives from the Security Council. Moreover, the clear gaps between the Iran’s obligations in UNSC resolutions and the deal concluded with Iran strongly suggests that the West has largely given up on enforcing violations of the former. What this means for the future of the Security Council’s authority is disheartening.

Second, the missile launch also lays bare the significant gap between the forceful ban on Iran’s ballistic missile tests that has existed until now, and the milktoast language that supposedly maintains the ban for the next eight years. What was until now a legally binding directive is about to become an eight-year recommendation. And what has been sold as a temporary extension of an existing ban is actually much less than even that. In negotiating this provision, the Iranians won even bigger than many of us initially recognized.

Most concerningly, the Times’s muddling of the issue is a likely prediction of the confusion that will follow the almost-certain continued Iranian testing of Western limits. The Times story, after all, is filled with cringe-worthy attempts to assure itself wiggle room with hedge phrases like “may have violated” and “according to some readings.” Given the actual clarity that exists on the issues here, the Times’s nuance is not reflective of care—but of an attempt to paper over a lack of understanding. This sort of obfuscation and perseveration is probably what we can expect after future Iranian provocations—even perhaps those that actually do violate the nuclear accord. And if the paper of record can’t properly lay out the issues, the American public doesn’t have much hope for making informed judgments.