Open Letter to Samantha Power, US Ambassador to UN

    The US Ambassador to the United Nations, Samantha Power, has made serious errors of law by insisting publicly that Iran's recent missile test "was a clear violation of U.N. Security Council Resolution 1929."  But, this reflects a basic ignorance of the UN-backed Joint Comprehensive Plan of Action (JCPOA), which clearly states that with the new UN Security Council resolution endorsing the JCPOA, all the previous UN Security Council resolutions on Iran "will be terminated."  

    Indeed, it is quite odd, and highly uncommon, that a top US diplomat should display such a grave ignorance of the content of an international agreement that has been endorsed by her government and in effect codified by the UN through UN Security Council Resolution 2231, which was prefigured and explicitly anticipated by the JCPOA.  According to the JCPOA's "Annex on Implementation" (18.1), 

            "In accordance with the UN Security Council resolution endorsing the JCPOA, the provisions imposed in UN Security Council resolutions...1929 (2010) will be terminated."  

    In essence, this means that with the passage of Resolution 2231 (July 2015), all the previous resolutions including 1929 have been rendered moot and, from the prism of UN laws, cannot be invoked by any UN member state, simply because those resolutions have been superseded by the new post-JCPOA resolution.  Ambassador Power may need to consult with the law dictionary on the legal definition of "supersede": Supersede “means to take the place of, as by reason of superior worth or right. A recently enacted statute that repeals an older law is said to supersede the prior legislation."

    Unfortunately, Ambassador Power's errors are not limited to the careless oversight of the JCPOA's content and extend to the new UNSC resolution as well.  In her public statements denouncing the October 10th Iranian missile test, Ambassador Power has given the erroneous impression that Resolution 1929 "remains valid" until the JCPOA "goes into effect."  The mere fact that Resolution 2231 has endorsed the JCPOA, which as stated above renders moot the previous resolutions including 1929, flatly contradicts this position of the US Ambassador, which reflects a serious oversight of the primacy of UN and international law.  With the legal significance of Resolution 2231 thus escaping her attention, Ambassador Power has clung to an untenable position that in effect makes a mockery of the Security Council and undermines its legitimacy.

    According to the veteran US missile expert, professor Theodore Postol of the Massachusetts Institute of Technology, the US's claim against Iran is "technical nonsense...We know the White House has made technically false statements about Iran in the past and it is astonishing that the US keeps engaging in this pattern that undermines the US's credibility." 

    With respect to Ambassador Power's categorical claim that Iran's missile test represents a "violation of its international obligations," suffice to say the following: First, Iran is among 30 nations in the world today that possess missile technology and no one ever accuses the other nations of flouting international norms and obligations by exercising their right of self-defense through missiles.  Second, Ambassador Power has ignored the subtle language of Resolution 2231 that imposes an 8-year ban on nuclear-related missile activity on Iran's part and in Annex B calls upon Iran “not to undertake any activity related to ballistic missiles designed to be capable of delivering nuclear weapons, including launches using such ballistic missile technology.” Even the veteran US nuclear expert Anthony Cordesman has indirectly taken issue with Power's position by admitting that the language of the new resolution is specific and raises the issue of purposeful design for nuclear warheads.  

    Indeed, the nub of the problem with the US's condemnation of Iran's missile test is that there is no tangible empirical and physical evidence to corroborate the accusation that Iran's ballistic missiles are designed to be capable of carrying a nuclear payload.  As various Western nuclear experts have readily admitted, substantial technical modifications are necessary in order to substitute nuclear warheads for conventional warheads on Iran's missiles.  As the US's own experience with the conventional modifications of the Trident missiles has shown, this is a formidable, and costly, task that requires a nuanced technical conceptualization -- that is sadly lacking in the Iran-bashing discourse of Ambassador Power and other US officials who have made a giant leap of faith by misrepresenting Iran's flight-test of its new generation of Emad conventional missile as "inherently nuclear-capable."  Attaching the latter label is clearly a clever public relations ploy rather than an apt, and sustainable, diplomatic move.  

Resolution 2231 Revisited

    Clearly, this resolution remains the new foundation of the UN's approach to the Iran nuclear issue. The US's interpretation led by Ambassador Power holds that the resolution requires a complete halt of all Iranian ballistic missile tests. Yet, this is not consistent with, nor mandated by, a straightforward reading of the text. If the Security Council is now poised, as a result of the US's complaint, to revisit the provisions of Resolution 2231, important evidence and interpretive tool on how that resolution should be read need to be examined. For one thing, the US's interpretation omits the drafting history of the JCPOA, that triggered the 2231, and was strictly narrow-focused on the nuclear issue and did not extend to the issue of Iran's conventional arms (and their delivery systems).  Also, parallel language in other UNSC resolutions, such as 242, can be used to shed light on the meaning of Resolution 2231.  

    Specifically, this resolution's nuanced and unambiguous language on the ballistic missiles "designed to be capable of delivering nuclear weapons" suggests that the text has a fixed meaning, in light of the fact that "designed" is synonymous with a purposeful activity. In fact, what is lacking in the US's claim against Iran above-mentioned is a "plain meaning" interpretation of Resolution 2231 -- that refers to deliberate design of any nuclear-capable missile.  There is a full array of UN precedents and opino juris that supports Iran's position that the resolution's prohibition on missile tests is not absolute.  In other words, the mere allegation that Iran's conventional missiles can be, technically speaking, converted to nuclear-capable missiles, is not sufficient. By using unambiguous wording, the resolution has clearly implied a distinction between conventional missiles and those that are deliberately designed to be nuclear-capable, yet somehow this important yet delicate difference has evaded the US diplomats, whose arguments are based mostly on an illicit inference, one that generalizes a specific prohibited activity. 

     But, because Iran's conventional missiles are not bared under international norms and require flight tests as part of a routine upgrade, they do not fall under the prohibitions of nuclear-related tests envisioned in the new UNSC resolution.  Any attempt to deprive Iran of its important missile defense capability would not only be illegal, from the prism of international law, it would also be a stab at regional stability, given the crucial role of Iran's missiles in the context of regional arms race and the imbalances resulting from the sanctions on Iran and the huge arms sales to Iran's Arab neighbors in Persian Gulf.  Iran's new precision-guided missiles represent a qualitative improvement in terms of the responsiveness, range, speed, precision, lethality, and freedom of maneuver, which cannot be possibly achieved without conducting flight-tests.  As important and vital components of the nation's strategic deterrence, these missiles cannot be put on UN's black list simply because a Western superpower might dislike their deterrent value and seek to target them through the UN machinery.