Trump can’t have his cake and eat it too on Iran sanctions: Foreign Policy

August 27, 2020 - 2:4

'Washington has no right to impose snapback sanctions on Tehran because it is no longer a participant in the Iran nuclear deal'

On Thursday, the United States delivered notification to the UN Security Council demanding a so-called snapback of all the previous UN sanctions against Iran under Resolution 2231. The Trump administration cited significant violations of the 2015 Iran nuclear deal, from which the United States withdrew in May 2018. All Security Council sanctions against the country were lifted under Resolution 2231, which endorsed the nuclear deal.

Less than 24 hours after U.S. Secretary of State Mike Pompeo submitted the notice to the Security Council, 13 of the council’s 15 permanent and nonpermanent members expressed opposition to U.S. efforts to reimpose the international sanctions against Tehran. They stressed in their letters that because the Trump administration had withdrawn from the agreement, it had no right to invoke the deal to return the sanctions.

In a recent contribution to Foreign Policy, Richard Goldberg cited Resolution 2231 to justify the U.S. call for snapback sanctions despite Washington’s withdrawal from the deal. In Goldberg’s opinion, the U.S. government retains a permanent right to invoke the resolution and use the snapback mechanism because the resolution does not say that a state that was once a participant in the nuclear deal cannot use the dispute mechanism.

It is hard to believe that the U.S. administration has based its intention to trigger the mechanism on such a shallow and legally tenuous argument.

Without explaining the rights and duties of a participant, Goldberg cites the resolution, and wrongly argues that the United States is still a participant in the nuclear deal.

As a critical vote approaches, the fate of Iran nuclear sanctions—and decades of multilateralism—lies in the hands of Britain and France.

After a humiliating defeat at the UN Security Council, Washington will seek snapback sanctions to sabotage what’s left of the nuclear deal. Britain, France, and Germany can still keep it alive until after the U.S. election.

The term “participant” is not a simple honorific title. Participation in the nuclear deal, also known as the Joint Comprehensive Plan of Action (JCPOA), includes participation in an agreement that started in 2015 and will continue until 2025. By no means is it acceptable for a country that withdrew from this participation in 2018 to remain a participant state. The United States is either a participant in the deal and will remain in it until 2025 or it is not a participant and has withdrawn. It is as simple as that.

The fact that the United States is no longer a participant has been admitted by key U.S. leaders and officials.

The fact that the United States is no longer a participant has been admitted by key U.S. leaders and officials.

Indeed, upon the official announcement of the U.S. withdrawal from the deal on May 8, 2018, under an executive order issued by President Donald Trump dubbed “Ceasing U.S. Participation in the JCPOA,” the country officially announced that it had terminated its participation in the nuclear deal. Trump mentioned ceasing U.S. participation in JCPOA four times in his executive order.

On May 11, 2018, the U.S. government—in a formal communication—officially informed all JCPOA participants that the United States would no longer participate in JCPOA-related meetings and activities.

Furthermore, Pompeo stated at the time that “President Trump terminated the United States’ participation in the Joint Comprehensive Plan of Action.”

The fact that the United States was described as a “JCPOA participant” in a paragraph of Resolution 2231 is purely descriptive; it lists as a factual matter the participants at the time of the resolution’s adoption in 2015.

Even assuming that the United States is still a participant state, which it is not, Goldberg makes a second misleading argument related to the process of using the snapback mechanism. He says the sanctions will automatically come back into force within 30 days after the U.S. government presents the UN Security Council with a notification.

A look at the text of the original resolution sheds light on this issue. Paragraph 10 of Resolution 2231 explains how the countries participating in the JCPOA could use dispute resolution mechanisms (discussed in paragraphs 36 and 37 of the deal) if Iran’s noncompliance were found to constitute “significant non-performance.”

In fact, resorting to the snapback mechanism is the final stage of the JCPOA dispute resolution mechanism, which can restore previous UN resolutions that were suspended under Resolution 2231.

A third flaw in Goldberg’s argument is his claim regarding a substantial breach of the international accord by Iran. His argument is premised on the claim that Iran started breaching the accord before other parties; he neglects to mention that the United States violated the agreement first.

His argument is premised on the claim that Iran started breaching the accord before other parties; he neglects to mention that the United States violated the agreement first.

Indeed, the United States has blatantly violated the deal by reimposing various sanctions and imposing maximum pressure on Iran since it ceased its participation in 2018, while Iran only gradually began to reduce its commitments exactly one year after the U.S. pullout in compliance with the mechanisms contained in the accord itself.

According to paragraph 36 of the deal, Iran can reduce its obligations, in full or in part, in the event of partial or substantial breach of obligations by other countries. Even after Washington’s withdrawal, Tehran fully abided by the deal for a full year as verified by 15 consecutive reports by the International Atomic Energy Agency.

Moreover, both John Bolton, Trump’s former national security advisor, and Brian Hook, the former U.S. special representative for Iran, have stressed that the United States has withdrawn from the JCPOA.

Finally, Goldberg ignores a general principle that exists in both Resolution 2231 and in paragraph 37 of the JCPOA: good faith in using dispute resolution mechanisms. Good faith is a generally accepted principle in the implementation of treaties and international agreements. Resorting to the snapback mechanism in line with the JCPOA and the resolution should only occur in order to resolve a dispute and to bring parties back to their obligations under the deal.

What the current U.S. administration has been doing and saying in relation to the JCPOA has suggested its intention to kill the deal rather than acting in good faith.

The Trump administration has not only refused to abide by its own commitments to the JCPOA, but it has also substantively prevented other parties to the deal as well as other UN member states from implementing their own commitments in accordance with the deal and Resolution 2231 since 2018.

Far from ignoring multilateralism, as Goldberg contends, the other parties to the deal—Russia, China, and European governments—are upholding the principles of multilateralism while Washington practices an extreme form of unilateralism.

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