Snapback and its Implication in International Law-Syed Ali Akhtar

Syed Ali Akhtar - Doctoral Candidate at the Faculty of Legal Studies, South Asian University, New Delhi, India. The author can be reached at saliakhtarnaqvi@gmail.com.

On 19^th September 2020, the US announced, amid opposition from every quarter, that the UN sanctions on Iran are reinstated. The US department of State tweeted on Sunday that “in accordance with our rights under resolution 2231, the United States initiated the snapback process to restore virtually all previously lifted UN sanctions, including the embargo. The world will be safer as a result.” The US move to activate the ‘snapback’ provision of the Joint Comprehensive Plan of Action (also known as JCPOA) and its claim of restoration of UN sanctions on Iran is a new, potentially precarious, development in the region. However, the rest of the world alleges that it is illegal.

But let us first look at what prompted the Trump administration to activate “snapback” provisions of JCPOA or Iran nuclear deal at the first place.

On 14^th of August 2020, the Security Council unanimously rejected a US’ proposal demanding an indefinite extension of the arms embargo on Iran which is set to expire on 18 October 2020. The rejection of the proposal has been humiliating for US and was seen as a huge diplomatic victory for Iran. As a result, the Trump administration threatened to prevent the arms embargo imposed on Iran from expiring by using the ‘snapback’ provision of the JCPOA or Iran Nuclear Deal. The ‘snapback’ procedure is referred to dispute settlement mechanism which is mentioned both at paras. 10-15 and paras. 36-37 of Annex A of the Security Council resolution 2231 (2015). The JCPOA is annexed as Annexure A of the UNSC resolution 2231 which allows its participants to reimpose UN sanctions on Iran through a procedure that circumvents the veto power of the five permanent members of the Security Council.

In this piece we will examine the legal validity of US claim to exercise its right to impose UN sanctions using ‘snapback’ procedure and its implication under international law.

Background

The ‘snapback’ procedure of JCPOA as mentioned in UNSC resolution 2231 (2015) needs to be understood in the light of previous development that have taken place. The arms embargo on Iran was imposed by the United Nations Security Council (UNSC) through resolutions 1737 (2006), 1747 (2007), 1929 (2010). This embargo continued until the historic JCPOA agreement of 14 July 2015 between Iran and the P5 1 (China, France, Germany, Russia, the United Kingdom and the United States of America) together with European Union (EU). As a result, UNSC sanctions were lifted on 16 January 2016, through Security Council resolution 2231 (2015).

In May 2018, however, the Trump administration unilaterally withdrew from the JCPOA and reimposed multiple sanctions on Iran targeting oil and other sectors. The US president claimed that he would end United States participation in the JCPOA and restore US sanctions on Iran. In a recent letter to the Secretary-General of UN, Iran claimed that the US withdrawal from JCPOA and unilateral reimposition of sanctions are unlawful. Iran argued that the US has imposed around 129 sanctions by May 2020 which clearly violates its obligations under international law, including UNSC resolution 2231 (2015). The first question that arises in this regard is whether US is still a ‘JCPOA participant State’ after it pulled out of the deal in May 2018.

On 20 September 2020, US has unilaterally claimed the restoration of all UN sanctions on Iran using ‘snapback’ procedure of the JCPOA. US argues that by virtue of Resolution 2231(2015), it has a right to use ‘snapback’ mechanism ‘irrespective of its current position on or activities in relation to, the Joint Comprehensive Plan of Action (JCPOA), a non-binding political arrangement that is related to but distinct from resolution 2231.’ Thus, US is of the view that its withdrawal from JCPOA and reimposition of sanctions on Iran in May 2018 did not affect any of its rights and obligations under the UNSC resolution 2231 (2015).

What is the ‘Snapback’ Procedure?

“Snapback”, is a procedure mentioned in paras. 10-15 under the head ‘Application of Provisions of Previous Resolutions’ in UNSC resolution 2231 (2015) which is meant to resolve complaints with respect to the significant non-performance of JCPOA commitments by the participant states. The dispute settlement mechanism is also mentioned in paras 36-37 of Annex A of the UNSC resolution 2231 (2015). The dispute settlement procedure specifies that if a ‘JCPOA participant State’ lodges a complaint at the UNSC against Iran concerning significant non-performance of JCPOA and if the UNSC fails to pass a resolution in favour of lifting sanctions before the end of 30 days of the filing of complaint, all the previous sanctions will be automatically reimposed. The procedure continues to describe that if the notifying ‘JCPOA participant State’ informs the Security Council that such an issue (of which the complaint was made) has been resolved between the parties before the end of the 30 days period mentioned in para. 12, then the provision of this resolution (2231) will remain effective including para 7(a).

The Security Council resolution 2231 in para. 26 of Annex A clearly excludes European Union (EU) from using ‘snapback’ procedure. The Operative Paragraph (OP) 10 uses the term ‘JCPOA participants’ but OP 11 uses the term ‘JCPOA participant State.’ It means that the EU does have a status of participant in the agreement but does not have any right to use ‘snapback’ procedure which is reserved for the ‘States’ only. Thus, it is clear that theoretically only ‘JCPOA Participant State’ are entitled to trigger ‘snapback’ provision under the dispute settlement mechanism.

It must also be pointed out at this stage that if the sanctions are reimposed using para. 12 of the Security Council resolution 2231 in whole or in part, Iran will treat this as grounds to cease performing of its commitment under JCPOA. Para. 13 of the Resolution 2231 notes Iran’s statement that “if the provisions of previous resolutions are applied pursuant to para. 12 in whole or in part, Iran will treat this as grounds to cease performing its commitments under the JCPOA.” Para. 12 procedure clearly states that even if the Security Council does not adopt a resolution to restore UN sanctions, all sanctions on Iran will be restored after the period of 30 days notification from a ‘JCPOA participant State.’ Thus, the ‘snapback’ procedure does have the capacity to bypass the Security Council mechanism if other conditions are satisfied.

Therefore, it is clear from the ‘snapback’ provisions of the Security Council resolution 2231 (2015) that two conditions need to be satisfied before anyone can trigger the ‘snapback’ provision of the JCPOA. First, the country initiating ‘snapback’ mechanism should have the status of ‘JCPOA Participant State’ at that time; Second, Iran must be in significant non-compliance of its commitments under JCPOA in order for a ‘participant State’ to activate this mechanism.

Legal Validity of US Claim to ‘snapback’

Let us now examine the legal validity of US claim that ‘snapback’ is activated and UN sanctions are imposed on Iran. There are couple of legal arguments from US to substantiate its positions. Two important questions need to be answered before we reach any conclusion: first, whether US is currently a ‘JCPOA Participant State’; second, whether the right of ‘snapback’ is available to US. Let’s examine these two questions in light of international law.

1. US as ‘JCPOA Participant State’

The first and foremost question pertains to the current status of United States after it unilaterally withdrew from JCPOA in May 2018. US argues on its part that the term ‘JCPOA participants’ as mentioned in UNSC resolution 2231 is fixed in content and fixed over time regardless of US current position on JCPOA. The contention is that the US is listed as ‘participant’ in the resolution 2231. It also argues that the resolution 2231 places no other condition on the eligibility of States to be participants. The argument flows from the assumption that the JCPOA and UNSC resolutions 2231 are distinct and US withdrawal from JCPOA will not render its rights under the resolution 2231 as invalid.

The contentions of United States are unfounded because the list of ‘JCPOA Participant State’ was added to the Security Council resolutions 2231 at a time when US was indeed a participant. It is through unilateral withdrawal in May 2018 that US voluntarily renounced its participant status. The argument that US still enjoys the status of ‘JCPOA Participant State’ would have been valid if the US had not unilaterally pulled out from the JCPOA agreement in 2018 and had not imposed unilateral sanctions against Iran. Foreign Minister of Iran Mr Javed Zarif’s letter to the chairman of Security Council highlights the fact that US has formally announced multiple times that it would no longer participate in any JCPOA related activities and it did not participate in any activity for last two years. The letter also mentions that US has not participated in JCPOA joint commission and Procurement working group for last two years but the Security Council has continued to approve proposals recommended by the Joint Commission. Thus, the practice of the Security Council proves that it did not consider US as a participant. The Security Council continued to approve proposals recommended by joint commission in the absence of US.

Another argument that US enjoys a ‘JCPOA Participant State’ status by virtue of UNSC resolution 2231 (2015) is also misplaced. As argued by Prof. Dupont, the participant status was not granted by the UNSC resolution 2231. Rather the resolution 2231 endorsed the ‘JCPOA Participant State’ Status to US which was conferred by the JCPOA agreement. In other words, the resolution 2231 did not decide on who would be considered as a participant but merely annexed the JCPOA agreement to establish the rights and obligations of the ‘JCPOA Participant State’ already conferred and determined by the JCPOA agreement.

The third and the last justification that JCPOA agreement and UNSC resolution 2231 are distinct and the May 2018 US action had only effects for JCPOA is also not a tenable argument. Since JCPOA is annexed and endorsed by the Security Council resolution 2231, any violation of JCPOA commitments will necessarily be a violation of resolution 2231. Iran’s letter to the Security Council also argues that the May 2018 measures were in flagrant violation of UNSC resolution 2231. Moreover, It is not the law or UNSC resolution 2231 that had conferred US any such status of ‘JCPOA Participant State’ rather it is a matter of fact which could be verified. US was initially a ‘JCPOA participant State’ but it renounced that status when it withdrew from the JCPOA in May 2018 and did not participate in any JCPOA related activities. It is as simple as that. As Professor Dupont also argues the US cannot invoke its ‘JCPOA participant State’ status anymore and it applies independently from, and irrespective of, Iran’s behaviour or any assessment by the United States of Iran’s behaviour.

Lastly, several UNSC members including Belgium, Estonia, Indonesia, Russia, China, (Joint statement of) Niger, Saint Vincent and the Grenadines, South Africa, Tunisia; and France, Germany, UK as E3 among others have formally communicated to United Nations that the US is no longer a party to the JCPOA agreement and in their view, 20^th September notification has no legal consequences. Therefore, it is clearly established that the May 2018 unilateral withdrawal from JCPOA and reimposition of sanctions on Iran marked the end of US as a ‘JCPOA Participant State.’ The American legal system is well versed with the ‘clean hands doctrine’. US must come with clean hands to allege any violation on the part of Iran.

2. Whether ‘snapback’ right is available to US

United States of America argues that the development beyond the UNSC resolution 2231 did not or could not change US right to initiate ‘snapback’. Thus, the meaning of OP 10 & 11 of resolution 2231 must be determined in accordance with the plain language of the text and the text alone. US also argues that the right to ‘snapback’ is available to US because it enjoys participant status and the May 2018 unilateral withdrawal and reimposition of sanctions on Iran may have violated some commitments under the JCPOA agreement, a non-binding political arrangements but its right to ‘snapback’ is intact under the resolution 2231.

This is a counterproductive argument as the US itself is interpreting the terms of the Security Council when it says that the US still enjoys the participant status. Moreover, the US officials themselves abrogated the rights of dispute settlement mechanism mentioned in paras. 10-13 of the resolutions 2231. US former National Security Advisor clearly stated that the ‘United States will not be seeking the reapplication of provisions of the terminated resolutions’ through recourse to’….“provisions of Resolution 2231, which we’re not using because we’re out of the deal.” Brian Hook, former US Special Representative for Iran and Senior Policy Advisor to the US Secretary of State at the time also said that “we’re no longer in the deal, and so the parties that are still in the deal will have to make their decisions with respect to using or not using the dispute resolution mechanism.” It is sufficiently clear in these statements that the US did not consider itself as a ‘JCPOA Participant State’ and abrogated any right of dispute settlement mechanism under resolution 2231 after the withdrawal.

Even if there was a significant non-performance of commitments on the part of Iran and it had actually violated the provisions of the JCPOA agreement, US still cannot use dispute settlement mechanism since it is no longer a party to the JCPOA agreement.

This is sufficiently clear from the text of the para. 11 of  UNSC resolutions 2231 which says that the Security Council “decides, acting under Article 41 of the Charter of the United Nations, that, within 30 days of receiving a notification by a JCPOA participant State of an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA, it shall vote on a draft resolution to continue in effect the terminations in paragraph 7 (a) of this resolution.” The provision makes it clear that only ‘JCPOA participant States’ can initiate this mechanism. From the above arguments, it can be concluded that the right to ‘snapback’ is not available to the US even under the resolution 2231 too.

However, the US withdrawal did not affect the rights and obligations of other JCPOA participants. Other participants including Iran continued to respect the commitments under the JCPOA agreement. Therefore, theoretically, all participants of the JCPOA except USA can legally use the dispute settlement mechanism, if the circumstances so warrants and should they choose to do so. However, US action to ‘snapback’ UN sanctions on Iran could likely constitute the end of the JCPOA, further exasperating the already tense situation between the two countries and snatching away the right of other participants to ever use dispute settlement mechanism.

Iran’s statement mentioned in para. 13 of the UNSC resolution 2231 (2015) is important in this regard. Mr Hamidreza Azizi, a visiting fellow at the German Institute for International and Security Affairs (SWP), told Aljazeera that there were clear reasons why Europe, Russia, and China opposed this action. One of the reasons he mentioned was that Iran may leave the JCPOA or even NPT. Iran may choose this option of leaving JCPOA which will not be in the interest of anyone.

Concluding Remarks

US has, therefore, no legal basis to reinstate UN sanctions using ‘snapback’ procedure under International Law. It is pertinent to mention that the term ‘snapback’ has not been mentioned in the JCPOA agreement and UNSC resolution 2231. Iran alleged that the term ‘snapback’ is used by the US to connote automaticity which was never the intention of dispute settlement mechanism. The Security Council has not clarified whether the US notification of 20 September had any effect. However, the President of the Security Council indicated that they were not in a position to take any action with regard to this matter. Pending the clarification from Security Council, there is an uncertainty among the members of the United Nations. Be that as it may, as argued above, US cannot be considered as a ‘JCPOA Participant State’ and the right to use dispute settlement mechanism is not available to US from the standpoint of international law. Therefore, any such action is bad in law and would constitute violation of international law.

It is therefore not strange that the US is isolated in this matter and most of the countries have not supported the reinstating UN sanctions unilaterally.