U.S. faces uphill battle to trigger snapback sanctions

August 17, 2020 - 23:10

TEHRAN -In a bid to ensure that the UN arms embargo on Iran is not expired, the U.S. plans to trigger a return of all UN sanctions on Iran, a highly controversial move that could create a bitter row among the permanent members of the UN Security Council over the 2015 nuclear deal between Iran and world powers.

Under the nuclear deal, the UN arms embargo on Iran is slated to expire on 18 October. However, the U.S. is firmly opposing any lifting of the arms embargo on Iran. To this end, it has put forward a resolution calling for an indefinite extension of the UN arms embargo. The U.S. failed to draw support for the resolution from other members of the Council. Therefore, the resolution fell short of gaining nine votes required to force China and Russia to use their vetoes.

The U.S. is now resorting to the snapback process after its resolution was rejected by the Security Council.  The snapback is part of a dispute resolution mechanism designed to reinstate all UN sanctions on Iran in case it has taken actions believed to constitute “significant non-performance of commitments under the JCPOA” as defined by the UN Security Council resolution 2231.

Resolution 2231, which was adopted on July 20, 2015 to endorse the Joint Comprehensive Plan of Action (JCPOA), “stipulates that the Security Council, 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, shall vote on a draft resolution to continue in effect the terminations of the provisions of previous Security Council resolutions.”

It “further stipulates that if the Security Council does not adopt a resolution to continue in effect the termination of previous resolutions, then effective midnight GMT after the thirtieth day after the notification to the Security Council, all of the provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008), 1929 (2010) and 2224 (2015) shall apply in the same manner as they applied before the adoption of resolution 2231 (2015).”

The U.S. unilaterally withdrew from the JCPOA on May 8, 2018, and thus it cannot use the deal’s depute resolution mechanism through which the snapback can be triggered. According to the mechanism, if a party to the JCPOA concludes that another party is not complying with its commitments under the agreement, then the complaining party may refer its complaint to the Joint Commission, a body created under the JCPOA to monitor implementation. If a complaint by a non-Iran party is not resolved within 35 days, then the complaining party can notify the Security Council that it believes the complaint constitutes a significant non-performance. The Security Council would then have thirty days to adopt a resolution to continue the lifting of sanctions. If such a resolution is not adopted within those thirty days, then the sanctions of all of the pre-JCPOA nuclear-related UN Security Council resolutions would automatically be re-imposed.

The U.S. isn’t using this mechanism to re-impose the UN sanctions. Instead, it seemingly plans to trigger the snapback by getting around the Joint Commission and notifying the Council of a “significant non-performance” by Iran, a move that would set the stage for a legal battle over whether the U.S. has the legal authority to trigger the snapback.

Iran and other remaining parties to the JCPOA say that the U.S. has no right to trigger the snapback process because it has withdrawn from the deal.

“U.S. recourse to Dispute Resolution Mechanism in 2231 has NO LEG TO STAND ON,” Iranian Foreign Minister Mohammad Javad Zarif tweeted on Sunday.

“Given that the US unilaterally withdrew from the JCPOA in May 2018 and has not participated in any JCPOA structures or activities subsequently, the US cannot be considered as a JCPOA participant. We therefore consider that the US is not in a position to resort to mechanisms reserved for JCPOA participants (such as the so-called snapback),” the DPA news agency quoted a spokeswoman for EU foreign policy chief Josep Borrell as saying on Sunday.

However, the U.S. believes that it has the right to trigger the snapback. U.S. Secretary of State Mike Pompeo said in a tweet on Monday that “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.”

The U.S. hasn’t said yet how it plans to trigger the snapback. However, former officials of the Trump administration and think tank experts close to the State Department outlined the U.S. plan to reinstate the UN sanctions on Iran. These experts, who are currently making the case for the snapback, argue that the U.S. as a member of the UN Security Council has the right to trigger the snapback according to the resolution 2231.

Based on this argument, the U.S. can notify the Council of a “significant non-performance” by Iran. The council would then have 30 days to adopt a resolution to continue the terminations of the previous resolutions. If the Council does not adopt such a resolution, all UN sanctions would be re-imposed on Iran.

But this mechanism was designed for the JCPOA participants. Having withdrawn from the deal, the U.S. now faces an uphill battle to reinstate the UN sanction since all JCOPA parties believe that it has no legal authority to trigger the snapback process.

The U.S. seems to be preparing to notify the Security Council of a “significant non-performance” by Iran. If it does so, the Council would then have 30 days to decide on the American complaint. If no Security Council member takes action to ignore the U.S. notification, the Council’s president should put forward a resolution to decide on the U.S. complaint within 10 days of receiving the U.S. notification. The resolution could be vetoed by the U.S.

Some experts believe China and Russia could reject the U.S. notification by putting forward a procedural motion, considering that the permanent members of the Council cannot veto it. The motion would require as many as nine votes to be passed and it cannot be vetoed by the U.S. In order for the U.S. to be able to veto the motion, it would need to argue that the motion is not a procedural matter, rather it is a substantive one because procedural motions cannot be vetoed. Some U.S. experts claim that if there is a disagreement over whether a motions is procedural or substantive, it is put to a vote and that vote is considered a substantive decision, which means the U.S. could veto the motion.

Whether Russia and China along with the Europeans would insist that the motion is procedural and thus deprive the U.S. of its veto power remains an open question.

If the U.S. is granted the right to veto the motion, then the only way to stop the U.S. would be to pass a new resolution, which could be shot down by the U.S. veto.

Therefore, the Council must decide on the continuation of the lifting of the sanctions within 30 days of receiving the U.S. notification. If the Council fails to adopt a resolution to continue the lifting of the sanctions, all of the provisions of the previous resolutions will be automatically applied.

Some analysts believe that the U.S. may itself choose to put forward a resolution calling for the continuation of the lifting of sanctions and then veto it to ensure the reinstatement of the UN sanctions.

It’s not clear yet what the U.S. will do to restore the UN sanctions on Iran. However, analysts believe that the UN Security Council would see a diplomatic battle in the coming weeks.

“In the next two weeks, we will be witnessing one of the heaviest diplomatic and political battles among superpowers at the Security Council, which is unprecedented since the end of World War II. It could seriously damage the credibility of the Security Council as a body that decides on international disputes. This can also be a sign of deep change in the international order,” tweeted Hadi Khosroshahin, a visiting researcher at the Tehran-based Center for Scientific Research and Middle East [West Asia] Strategic Studies.

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