On 14 August 2020, the United States of America introduced a draft resolution in the United Nations Security Council (‘UNSC’ or ‘the Council’), to extend the international arms embargo of 2007 on Iran. The embargo is scheduled to expire in mid-October 2020, as agreed in the Joint Comprehensive Plan of Action, 2015 (‘JCPOA’ or commonly the ‘Iran Nuclear Deal’). The Deal was concluded between Iran and the Permanent Five Members of the Council plus Germany together with the European Union (‘EU’), and was subsequently endorsed by the UNSC in Resolution 2231(2015). The US proposal- receiving only 2 votes in favour (USA and Dominican Republic), 2 votes against (Russia and China) and 11 abstentions (including major US allies such as Britain, France and Germany)- was emphatically defeated by the 15-member Council, due to the absence of the required 9 affirmative votes and no vetoes on non-procedural matters. Subsequently, the US- which withdrew from participation in the Deal in 2018- moved to initiate the so-called ‘snapback’ mechanism, a provision which allows the JCPOA participant States to re-impose prior international sanctions on Iran. In doing so, the US relied upon a Department of State’s legal briefoutlining the legal rationale for initiating the ‘snapback’ sanctions (‘the legal brief’). This article scrutinizes the brief, bringing out the fault lines in the legal basis of US’s planned move. It also contends arguendo that triggering the snapback is unlikely to be successful and is bad for American interests.
Prima facie, the legal brief to support America’s stance in the UNSC appears to be a mere enunciation of political intent, offering only flawed ‘legal’ reasoning, if any at all.
The legal brief firstly asserts that the US has the fixed and permanent right to initiate snapback irrespective of its political stance on the JCPOA, because operative paragraph 10 (‘OP 10’) of Resolution 2231 expressly lists it in the definition of “JCPOA participants,” which remains unaltered regardless of the changes “beyond the four borders” of the resolution. Evidently, the US’ primary claim lies in the static interpretation of the term “participants” in Resolution 2231. However, this argument is inherently fallacious.
OP 10, which in the eyes of the US sets in stone the participants to the deal, begins with the word “encourages,” which is merely exhortatory. It has not been decided under Chapter VII powers of the UNSC. The relevance of OP 10 is only to the extent of it being a descriptive clause recognizing a factual position, that certain parties have entered into an agreement as of 2015, endorsed by the UNSC. OP 10 does not ipso facto confer, grant, impose or decide to declare a permanent legal right on any State party. Interestingly, the brief later claims that words such as “calls upon” or even “demands” do not impose legally binding obligations, but avails of a paragraph that uses the word “encourages” to derive legally binding participation.
It is also well-established, from the International Court of Justice’s (‘ICJ’) Namibia Advisory Opinion, 1971 (Para 115), that terms of a resolution and the discussions leading to it are relevant factors to determine whether the UNSC wishes to impose any legal duty or affect the right of any state by way of its Chapter VII powers. Since the Deal is a “non-binding political arrangement” only ‘endorsed’ by the UNSC but negotiated independently, political circumstances leading to the conclusion of the Deal and its subsequent endorsement by the UNSC are extremely relevant in interpreting the term ‘participants’ and their legal rights. Thus, owing to the political character of the Deal, the power to recognize any party as a participant to the Deal rests only with the other members- not with the UNSC.
Moreover, because OP 10 merely recognizes parties to a political arrangement at a given point of time, subsequent references to JCPOA participants in Resolution 2231, even if in binding paragraphs such as OP 11, are to be interpreted based on who the other participants consider a participant to the deal. It is clear from public statements in the instant case, that the other participants do not consider US as a continuing participant in the deal. It is immaterial, whether the Council “clearly contemplated” or “was aware” of how to draft a limitation to participation, for the simple reason that the Council was not granting legal rights to any State in OP 10. Further, the reason for the exclusion of the EU in OP 11 by the operation of the term “participant States,” albeit unclear, appears to be due to its representation in the Deal, through EU member States Britain, France and Germany, and not to further anoint the “participant” States as permanent parties to the agreement (Galbraith: Page 809, Footnote 13).
The brief also claims that unilateral statements of any party cannot change the implications and meaning of the resolution- only subsequent UNSC resolutions can do so. This is a stance of convenience, based on a misunderstanding of how UNSC resolutions operate, as Prof. Johnson argues using Resolution 1244 as an example. Even Resolution 478 refused to recognize the unilateral change imposed in Jerusalem by Israel and called on all States to refuse to acknowledge this change, with binding force. But in 2017, the current US administration recognized Jerusalem as the capital of Israel and even shifted its consulate to Jerusalem from Tel Aviv, in direct contravention with UNSC resolution 478. Similarly, the US Presidential Memorandum of 2018 expressly stated that the US would cease its participation in the Deal. Thus, unilateral political statements do indeed have a significant bearing on the legal rights and obligations of that State vis-à-vis UNSC resolutions.
Next, the brief ambiguously argues that the US decision to cease performance of its commitments under the JCPOA had no effect on US rights and obligations under the Resolution. The brief acknowledges that even though the JCPOA is a non-binding political agreement, certain clauses have been given legal force by the UNSC, using its Chapter VII powers.
This included the obligations of the member parties to comply with the termination of previous resolutions imposing sanctions on Iran, as under OP 7. If it was indeed a continuing participant in the Deal, the US violated its obligations under Resolution 2231 by re-imposing sanctions on Iran, without using the mechanisms prescribed in the Deal. The ICJ in the Case Concerning the Continental Shelf (Para 71), has reiterated the principle of equity, which bars any party from bringing claims against another once it has breached its own legal obligations. As a counter to this principle, the brief uses political rhetoric- arguing that Iran reaps significant benefits from the Resolution, while repeatedly violating its obligations. It cites the ‘Ninth Report of the UN Secretary-General on the Implementation of Security Council Resolution 2231 (2015)’ of 11 June 2020 to substantiate this claim. However, the argument here is that Iran did not initiate ceasing the performance of its obligations until after a year of the US withdrawal from the deal, as verified by consecutive International Atomic Energy Agency reports. This calls into question the legal ability of US to trigger sanctions itself.
The brief further states that snapback can be initiated simply by way of a participant State notifying the UNSC of its belief that Iran is in significant non-performance of its obligations, as per OP 11. This reasoning is inaccurate, as while OP 11 mentions the notification to the SC of significant non-performance by a State, the steps preceding the notification to the UNSC are established in Paragraphs 36 and 37 of the JCPOA. The detailed mechanism involves a three-step resolution mechanism, and, post the failure of such mechanisms, provides the complaining participant the right to treat the unresolved issue as grounds to cease performing their commitments under the JCPOA and/or notify the UNSC of significant non-performance. Even the notification to UNSC is required to have a description of the good-faith efforts undertaken to not merely utilize, but ‘exhaust’ the dispute resolution mechanisms. In this regard, having withdrawn from the agreement in 2018 itself, the US has now directly brought the issue to the UNSC without undertaking any of the good faith mechanisms. The importance of good faith requirements for agreements is well established in international law (Nuclear Tests Case, Para 49). In the obvious absenceof such good-faith fulfilments, there can be reasonable grounds for the other Participants to consider that the snapback has been improperly initiated, and thereby decline to reimpose prior sanctions.
Further, the mere notification by the US of perceived significant non-compliance to the Council does not by itself initiate the snapback process. Such an initiation would be subject to a procedural vote for adoption, where no vetoes are available. Considering the unambiguous vote of the UNSC members on the draft resolution, and subsequent public statements by JCPOA participants, it appears highly unlikely that the US would be successful in triggering the snapback sanctions.
Notwithstanding the afore-stated legal nuances, diluting the American veto by threatening to illegitimately wield the snapback jeopardizes American interests. If history is any guide, Resolution 377 (V) or the ‘Uniting for Peace’ Resolution was the last time that the US undermined its veto, only to learn that this damaged its own sovereign interests. As a double-edged sword, it was used against American allies and had to be relegated to obscurity. John Bolton, too, in no uncertain terms asserts that this experiment is not worth the same risk. For Iran and the other JCPOA participants, a likely outcome is to wait until the November US Presidential elections- until then, however, the Deal remains both dead and alive.