By Bahram Ghiassee

The Trump Administration, in line with its policy of exerting maximum economic, diplomatic, and political pressure on Iran, on 20 August 2020, invoked the so-called ‘Snapback’ provisions of the UN Security Council Resolution 2231. By formally notifying the UN Secretary-General and the President of the Security Council, the U.S. initiated the process of re-imposition of all previous UN sanctions on Iran.

The UNSCR 2231 was adopted unanimously on 20 July 2015 to (i) Endorse the Iran Nuclear Accord, formally known as the Joint Comprehensive Plan of Action (JCPOA); (ii) Create international legal obligations for all UN Member States in supporting the implementation of the provisions of the JCPOA; and (iii) Terminate the provisions of seven previous resolutions, adopted by the UNSC over the period 2006 to 2015, which had imposed sanctions on Iran in relation to its nuclear, missile and conventional arms programmes.

To ensure full compliance by Iran, the UNSCR 2231 contains provisions for the ultimate re-imposition of previously terminated UN sanctions (paras.10 to 13), the so called ‘Snapback’ mechanism. The Resolution stipulates that where there is ‘significant non-performance’ by Iran in relation to its nuclear-related commitments, a ‘JCPOA participant State’ may refer the ‘complaint’ to the UNSC (para.11). It lists the ‘JCPOA participants’ as China, France, Germany, Iran, Russia, UK, USA, the European Union (EU), and Iran (para.10).

In May 2018, the U.S. unilaterally withdrew from JCPOA, following the signing of a Presidential Memorandum entitled ‘Ceasing US Participation in the JCPOA’. The U.S. is, thus, no longer in a position to refer its disputes to the Joint Commission, under the JCPOA dispute resolution mechanism. Notwithstanding, the Trump Administration is arguing that the U.S. is a ‘JCPOA participant’, as stated in the UNSCR 2231, and, thus, has the standing (legal right) to refer the Islamic Republic of Iran to the UNSC for non-performance of its commitments under the Iran Nuclear Accord (JCPOA). To this end, on 20 August 2020, the U.S. invoked the ‘Snapback’ provisions of the UNSCR 2231 (paras.11 & 12), with a view to the re-imposition of previous UN sanctions within 30 days.

The UNSC is, consequently, faced with the procedural issue of ascertaining as to whether the U.S. is a ‘JCPOA participant’, and whether the Council has a legal duty to consider the U.S. notification under the provisions of the UNSCR 2231.

Shortly after the U.S. notification, the Foreign Ministers of France, Germany and the UK (E3) declared in a Joint Statement “that the U.S. ceased to be a participant to the JCPoA following their withdrawal from the deal on 8 May, 2018. Our position regarding the effectiveness of the US notification pursuant to resolution 2231 has consequently been very clearly expressed to the Presidency and all UNSC members. We cannot therefore support this action which is incompatible with our current efforts to support the JCPoA.”

The European 3 (E3), notwithstanding, have expressed their concern regarding the expiry of the UN conventional arms embargo on Iran, noting that “the expiry of the restrictions could have serious implications for regional security, given Iran’s continued destabilising activities”, and that EU-UK arms embargoes shall remain in place until 2023.

Also, on the same evening, Mr Josep Borrell, the EU High Representative, and Co-ordinator of the Joint Commission of the JCPOA, noted in a statement that “As I have repeatedly recalled, the U.S. unilaterally ceased participation in the JCPOA by presidential Memorandum on 8 May 2018 and has subsequently not participated in any JCPOA-related activities. It cannot, therefore, be considered to be a JCPOA participant State for the purposes of possible sanctions snapback foreseen by the resolution.”

Moreover, China and Russia have repeatedly expressed their opposition in this context, and have informed the Security Council, accordingly. In addition, 9 non-permanent members – Belgium, Estonia, Indonesia, Niger, Saint Vincent & the Grenadines, South Africa, Tunisia, and Vietnam – have now formally informed the UNSC of their opposition. Only the Dominican Republic has not expressed its opposition. It may be recalled, Dominican Republic was the sole member of the UNSC which voted, on 14 August 2020, in favour of the unsuccessful US draft resolution to extend the conventional Arms Embargo on Iran.

Israel and the Gulf Arab States, concerned with the expiry of the UN conventional arms embargo on Iran, on 18 October 2002, have publicly expressed their support for the U.S. action. However, none of these countries have a seat on the UNSC, and, hence, are not in apposition to directly influence the decision-making process of the Council in this context.

On 25 August 2020, and in view of the oppositions of 13 UNSC members, the current President of the UNSC, Mr Dian Triansyah Djani – who as Indonesia’s representative holds the rotating Presidency of the UNSC  for  August – announced that “There is no consensus in the council and thus the president is not in the position to take further action”. It follows, that the U.S. move to trigger the Snapback mechanism and re-instate the UN sanctions against Iran will not be advanced, at least till the end of August.

Niger holds the rotating Presidency of the UNSC  in September, and noting the wide remit of the President in this respect, it may proceed with the decision of its predecessor, or consider one of the options noted below:

(i) The President may reiterate that, on the basis of 13 oppositions, the U.S. has no standing (legal right) to invoke the provisions of the UNSCR 2231, and, hence, reject the U.S. notification. The U.S. will, no doubt, challenge such declaration, undermining the integrity of the Council.

(ii) The President may convene a meeting of the members to decide, on procedural grounds, as to whether the U.S. is regarded a ‘JCPOA participant’. To adopt a procedural decision, nine affirmative votes are required, and no veto is allowed. The U.S. initiative would, thus, fail, as 13 members have already declared that the U.S. is not a ‘JCPOA participant’. The U.S. may, reject the decision, ab initio, arguing that the issue is not procedural, but a substantive matter, and that it has the right to veto the decision.

(iii) The UNSC may decide, procedurally, to seek the Advisory Opinion of the International Court of Justice (ICJ) in The Hague, as to whether the U.S. is regarded a ‘JCPOA participant’. The U.S. would, most likely, challenge the referral to the ICJ, arguing that the International Court may take a few months to render its opinion, and, hence, too late to prevent the termination of the arms embargo on Iran, on 18 October 2020.

(iv) The UNSC may, at the start of a meeting to discuss the U.S. notification, decide not to adopt the notification as the item of agenda, where traditionally there is just one agenda item for each meeting. As a procedural matter, it will not be subject to a veto, and will comfortably attain the requisite 9 ‘yes votes, depriving the U.S. of the consideration of the ‘Snapback’ provisions of the UNSCR 2231 it had triggered.

(v) Finally, the UNSC may decide, as a procedural matter, to postpone the discussion of the issue to a certain day, or indefinitely, in accordance with its provisional rules of procedure (rule 33).

Based on the forgoing, it would be inconceivable that the UNSC would proceed to consider a draft resolution to be submitted by the U.S. or the Dominican Republic, the two likely States. Equally, it is unlikely that the President of the UNSC would submit such a draft within 10 days of the US notification, should no other member of the UNSC decide to do so (UNSCR 2231, para.11). Consideration of a draft resolution would constitute a formal recognition of the status of the U.S. as a ‘JCPOA participant State’, a notion opposed by 13 members, including Indonesia and Niger which are holding the Presidency of the UNSC for August and September, respectively.

Moreover, it is noteworthy that the UNSC 2231 stipulates that the Council would “take into account the views of the states involved in the issue” (para.11), and also that in the absence of a new resolution all previous UN sanctions shall be re-instated after 30 days, “unless the Security Council decides otherwise;” (para.12).

It may be recalled that the UNSC, on 14 August 2020, voted not to adopt the U.S. draft resolution to extend the arms embargo on Iran. It is envisaged that, under the circumstances, the U.S. action in invoking the ‘Snapback’ provisions of UNSCR 2231, will prove to be equally unsuccessful.

Notwithstanding, the U.S. may argue, unilaterally, that the previous UN sanctions on Iran will automatically snapback on 19 September 2020, and proceed, along with its limited number of allies noted above, to act, accordingly.

Such unilateral action by the U.S. would undermine the authority and integrity of the UNSC, weaken the tenets of multilateralism, and would lead to the U.S. isolation on the international arena. The outcome of the U.S. action would be regarded as a fiasco for the U.S., and a positive outcome for the Islamic Republic of Iran, a country which the U.S. considers a ‘State sponsor of terrorism’, a violator of human rights, a destabilising force in the Middle-East, and a major threat to international peace & security.

Dr Bahram Ghiassee is a nuclear analyst and academic, specialising in Nuclear Non-Proliferation and Nuclear Security. He lectures on the MSc programmes in ‘Nuclear Science & Applications’ an ‘Radiation & Environmental Protection’ at University of Surrey, UK. Bahram is, inter alia, a member of the International Nuclear Law Association (Brussels) and a Chartered member of the UK Nuclear Institute. He holds dual qualifications in Nuclear Science & Technology and International Law. ([email protected] )