August 26, 2020 | Insight
Debunking the Legal Argument Against a U.S. Snapback
August 26, 2020 Insight
Debunking the Legal Argument Against a U.S. Snapback
The United States sent a letter to the UN Security Council last week alleging that Iran was in “significant non-performance” of its commitments under the 2015 nuclear deal, formally known as the Joint Comprehensive Plan of Action (JCPOA). This letter serves as the legal trigger for a mechanism known as “snapback,” which extends indefinitely the UN conventional arms embargo on Iran and resurrects all other UN sanctions on Iran that were either weakened or scheduled for early termination alongside the JCPOA.
In response to the letter, Russia, China, the United Kingdom, France, and Germany declared that the United States lacks standing to trigger the snapback mechanism, because it ceased its participation in the JCPOA in May 2018. The political motivations for opposing a U.S. snapback are apparent: Russia and China want to sell arms to Iran, while Europe fears abandoning the JCPOA despite its manifest and fatal flaws.
There are two pivotal questions to consider in this debate. First, does the United States actually have standing to trigger the snapback mechanism? Second, if there is a dispute, what is the proper way for the Security Council to adjudicate the issue?
“Snapback” means different things to different people. The JCPOA, a political agreement, established a lengthy process to adjudicate grievances, culminating with a potential snapback at the Security Council. United Nations Security Council Resolution (UNSCR) 2231 entailed a non-binding endorsement of the JCPOA but established an independent snapback mechanism. The two are related in as much as the JCPOA process eventually leads to the Security Council and the UNSCR encourages (but does not mandate) the use of the JCPOA dispute mechanism – but they remain legally separate tracks. Importantly, the Trump administration last week triggered the UNSCR’s snapback, not the JCPOA’s.
With that in mind, the heart of the legal question about American standing with regard to snapback surrounds Paragraph 10 of UNSCR 2231, which “[e]ncourages China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran (the ‘JCPOA participants’) to resolve any issues arising with respect to implementation of JCPOA commitments through the procedures specified in the JCPOA, and expresses its intention to address possible complaints by JCPOA participants about significant non-performance by another JCPOA participant.”
The subsequent paragraph decides that any “JCPOA participant State” can trigger the snapback of UN sanctions on Iran and establishes the process for doing that. UNSCR 2231 repeatedly uses the term “JCPOA participant” after its establishment in Paragraph 10 – twice in Paragraph 11, once in Paragraph 13, and once again in Paragraph 21.
The Trump administration’s interpretation of UNSCR 2231 is the most straightforward from a legal perspective, albeit more difficult to explain through a communications lens when reported out of context. Anyone who has ever read a legal document is familiar with a defined term: a long phrase followed by a shorter term in quotation marks and parentheses, used for ease of reference later in the document.
UNSCR 2231 includes the United States in the definition of “JCPOA participants” and provides no contingency for how that definition can ever change. In effect, it provides snapback rights to the original participants in the JCPOA, regardless of their subsequent actions. The United States may have ceased its participation in the JCPOA as a political agreement, but Washington has not wavered in its support for full enforcement of UNSCR 2231 even after May 2018. It does not matter whether the original negotiators of UNSCR 2231 intended to create ironclad snapback rights or simply did not consider the possibility of a U.S. withdrawal from the JCPOA. It is likely the former, since President Barack Obama and senior members of his administration repeatedly stressed the inviolability of snapback rights. “If at any time the United States believes Iran has failed to meet its commitments, no other state can block our ability to snap back those multilateral sanctions,” Obama insisted.
Larry Johnson, a former UN assistant secretary general for legal affairs, has challenged the Trump administration’s reading of UNSCR 2231. He argues that because the United States announced in May 2018 that it would no longer participate in the JCPOA, the case is closed – the United States has forfeited its status as a “JCPOA participant.” In his view, that is the “common sense” way to interpret UNSCR 2231.
Johnson’s argument may appeal to those unfamiliar with legal writing and the legal distinction between UNSCR 2231 and the JCPOA. But his legal reasoning does not stand up to scrutiny.
Johnson contends Paragraph 10 is merely “descriptive and exhortatory.” He further opines that because the paragraph is non-binding (that is, it opens with the word “encourages” rather than “decides”), no defined term within the paragraph can be binding either. Not so.
The use of parenthetical and quotation marks, such as in (“JCPOA participants”), immediately following a list of parties plainly establishes a defined term. The question any reasonable person must ask is this: Why bother establishing a defined term if the plain-language meaning of “JCPOA participant” would be obvious at any given moment?
Had the drafters simply used the term “JCPOA participant” without defining it, Johnson’s argument might make sense. The fact that the drafters went out of their way to avoid an evolving definition that could change as parties come and go from the JCPOA makes it hard to dispute the Trump administration’s legal argument.
As for the non-binding nature of the paragraph, the word “encourages” does not correspond to the defined term. Instead, it encourages the parties included in the defined term to use the JCPOA’s dispute resolution process before coming directly to the Security Council for snapback. As Johnson himself writes, “[T]he Council ‘encouraged’ those States to do something; it did not require them to do anything.” The non-binding nature of the paragraph contradicts Johnson’s claim that even if the United States had standing to trigger a snapback, it “should use the [JCPOA] Joint Commission approach before resorting to the snapback.”
Johnson also asserts the United States forfeited its snapback rights when it allegedly violated binding requirements of UNSCR 2231 by re-imposing U.S. sanctions on Iran in 2018. The Russian government has made a similar claim. Johnson might have a case if UNSCR 2231 mandated U.S. sanctions relief for Iran or otherwise mandated U.S. implementation of the JCPOA – but it does not. Paragraphs 1 and 2 of UNSCR 2231 “endorse” and “urge” full implementation of the JCPOA, but like “encourages” in Paragraph 10, these are non-binding paragraphs. Johnson’s allegation of “unclean hands” is quite obviously unfounded.
No less important than the legal question of American standing is the appropriate procedure for settling a dispute if that standing is contested by other members of the Security Council.
Perhaps the most dangerous part of Johnson’s argument is his misrepresentation of Security Council precedent regarding the resolution of this debate. Johnson writes that the president of the Security Council – a rotating position currently held by Indonesia – ought to poll the other Council members, assert a lack of consensus, and ignore the formal U.S. complaint that would ordinarily trigger a snapback. Indeed, following Johnson’s publication, Indonesia did exactly as he suggested.
In fact, such conduct breaks from longstanding precedent governing the adjudication of disputes among the Security Council’s permanent members (of which Indonesia is not one). The onus should not be on the United States to prove its standing; it ought to be on a state that seeks to contest that standing.
Precedent would dictate that Russia or China must make a motion to block the Council from meeting on the issue of the U.S. complaint – or to offer a motion to rule the United States lacks standing to file it. Absent such a motion, the president of the Council should assume the U.S. complaint is valid – and the subsequent process mandated by UNSCR 2231 must proceed.
Russia and China do not favor the traditional manner of settling this dispute. Why? Because they know that if they offer a procedural motion to block the agenda, the United States can and will use its “double veto” power by contending such a motion is substantive rather than procedural.
What Johnson proposed – and what Indonesia has subsequently announced – is a blatant attempt to misrepresent an end-run around the permanent member veto as a sober application of precedent. The consequences of this development should not be understated. If the Council adopts this new approach, a non-permanent member state will be substantially weakening the veto power of the permanent five: a dangerous slippery slope about which I warned in a recent Foreign Policy article.
The United Kingdom and France still have a few more days to help avoid what could become the beginning of the end of the Security Council as we know it. London and Paris are heavily invested in the JCPOA, but even more so in the legitimacy of the Security Council as the foundation of multilateral diplomacy. Their complicity in undermining the Council’s precedents would both diminish their own powers as permanent members and demonstrate to many Americans that Washington should rethink the Security Council’s utility.
All this aside, one fact remains true: UNSCR 2231 Paragraph 12 states that a snapback occurs at midnight on the 30th day following a complaint unless the Council passes a resolution to stop it. The clock is ticking whether the Council schedules a vote on the U.S. complaint or not. The Trump administration will have a legal basis to assert snapback has occurred. Russia, China, and even Europe may dispute that outcome – but they may not be able to overcome U.S. Secretary of State Mike Pompeo’s promise to enforce the snapback using all available unilateral means.
Here in the United States, when the dust settles, 387 members of Congress – Democrats and Republicans – should recall the letter they sent Secretary Pompeo earlier this year urging him to extend the arms embargo on Iran. They should take satisfaction that their voice was heard – that the Trump administration acted on their behalf – and that with their support, the power of American sanctions can and will enforce this lawful snapback.
Richard Goldberg is a senior advisor at the Foundation for Defense of Democracies (FDD), where he also contributes to FDD’s Center on Military and Political Power (CMPP) and Center on Economic and Financial Power (CEFP). He previously served as National Security Council director for countering Iranian weapons of mass destruction. For more analysis from Richard, CMPP, and CEFP, please subscribe HERE. Follow Richard on Twitter @rich_goldberg. Follow FDD on Twitter @FDD and @FDD_CMPP and @FDD_CEFP. FDD is a Washington, DC-based, nonpartisan research institute focusing on national security and foreign policy.