U.S. could go it alone to enforce Iran sanctions

September 19, 2020 - 20:2

TEHRAN – In a blow to Donald Trump’s administration efforts against Iran, European signatories to a 2015 nuclear deal between Iran and world powers rejected the U.S. push to trigger a return of all UN sanctions against Iran.

An expert on international relations tells the Tehran Times that the U.S. could find itself obliged to enforce sanctions on Iran alone given the Europeans’ opposition to its efforts to trigger the snapback process, a mechanism built into the Joint Comprehensive Plan of Actions (JCPOA) to allow a participant to the deal to restore the international sanctions on Iran if it failed to fulfill its obligations under the nuclear deal.

While the U.S. moved to use the snapback mechanism, all JCPOA parties declared that the U.S. had no legal right to initiate the process because it withdrew from the JCPOA on May 8, 2018. However, the U.S. keeps insisting that it’s still a JCPOA participant state and thus had the legal authority to restore UN sanctions on Iran.

On August 20, U.S. Secretary of State Mike Pompeo traveled to New York to submit a letter to the president of the UN Security Council calling for the reimposition of UN sanctions on Iran within 30 days.  The letter sparked a diplomatic controversy after 13 of the 15-member UN Security Council questioned the legality of the U.S. measure. All opposing members sent letters to the Council’s president telling him that the U.S. measure was void and invalid.

“France, Germany, and the United Kingdom (‘the E3’) note that the US 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 E3 foreign ministers said in a joint statement on August 20, the same day as the U.S. submitted the notification to the Security Council.

In addition to the E3, China and Russia also strongly opposed the U.S. measure, saying the U.S. had no legal authority to initiate the snapback mechanism.

“The U.S. demand has no legal ground and common sense. It is nothing but a political show staged by the United States. It receives no support of the Security Council members and no acknowledgment of the international community,” Chinese permanent mission to the UN said in a statement shortly after the U.S. submitted the notification. “Having quit the JCPOA, the United States is no longer a participant to the JCPOA and has no right to demand the Security Council invoke a snapback as stipulated in Resolution 2231.”

Russia called the U.S. move “a big mistake which can have extremely negative implications” and vowed to challenge it.

The provisions of UN Security Council Resolution 2231 lie at the heart of the U.S. legal opinion to initiate the snapback process. This resolution 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.” And “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).”

All JCPOA parties say the U.S. is no longer considered “a JCPOA participant State” as defined in Resolution 2231. But the U.S. has another opinion. According to John Bolton, the former U.S. national security advisor who oversaw the U.S. withdrawal from the JCPOA, the State Department, with the help of lawyers, has prepared a legal argument that the U.S. still has the right to snap back UN sanctions on Iran.

“State Department lawyers, in an opinion not available publicly, apparently argue that, having been once defined as a ‘JCPOA participant state,’ the U.S. is still one for snapback purposes. This is not only incorrect legally and not the intention of the nuclear pact’s drafters but, ironically, could backfire on the U.S. if Biden wins the election,” Bolton said in an opinion piece published by Bloomberg on August 27.

On the same day, Pompeo asserted that the UN sanctions on Iran will return on September 20 as a result of the U.S. notification.

“If any member of the UN Security Council introduces a resolution to continue sanctions relief, the U.S. will oppose it. If no resolution is introduced, the sanctions on Iran will still return on September 20. That’s how UNSCR 2231 works,” Tweeted Pompeo on August 27, a week after he traveled to New York to “notify” the Security Council of Iran’s “significant non-performance” of its commitments under the 2015 nuclear deal.

A few days before the end of the American deadline, Iran and the E3 said no sanctions would return on September 20.

“Wrong again, Pompeo. Nothing new happens on 9/20. Just read Resolution 2231. Bolton—who convinced the boss to order you to ‘CEASE U.S. participation’—did. In his words: Process is not ‘simple’, automatic or snappy. But intentionally ‘complex & lengthy’. U.S. is NOT a participant,” Foreign Minister Mohammad Javad Zarif tweeted on Thursday.

Similarly, the E3 rejected the U.S. push to reinstate the UN sanctions on Iran. In a statement on Friday, the E3 once again called into question the U.S. right to initiate the snapback process, underlining that sanctions relief for Iran will continue beyond September 20, which means the Europeans will not recognize the U.S. move in declaring the reimposition of UN sanctions on Iran.

In a joint letter to the president of the UN Security Council, the E3 said, “At the request of our foreign ministers, Germany, France, and the United Kingdom (‘the E3’) would like to follow up on our letter to the presidency of the UN Security Council dated August 20th, 2020. In this letter, we expressed our shared view that the purported notification under paragraph 11 of UNSCR 2231 (2015) received from the United States of America and circulated to the UN Security Council Members is incapable of having legal effect and so cannot bring into effect the procedure foreseen under OP 11. It flows from this that any decisions and actions which would be taken based on this procedure or on this possible outcome would be incapable of having any legal effect.”  

They added that “as of September 20 the provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008) and 1929 (2010) will continue to be terminated pursuant to paragraph 7 (a) of resolution 2231 (2015). Consequently, any decision or action taken with a view to re-installing the provisions of resolutions 1696 (2006), 1737 (2006), 1747 (2007), 1803 (2008), 1835 (2008) and 1929 (2010) would be incapable of legal effect.”
With the E3 distancing themselves from the U.S. on the issue of the snapback mechanism, the White House may find itself obliged to enforce sanctions on Iran on its own, according to Mohsen Jalilvand, an expert on international relations.

Responding to a question from the Tehran Times on whether the U.S. would be unilaterally reimposing sanctions on Iran through unilateral ways such as executive orders, Jalalivand said, “Yes, the Americans have undermined the legal standing of the UN Security Council.” The expert also added that the Security Council would face huge pressures if the U.S. moves forward with its plan to reinstate the international sanctions on Iran.

 According to Jalilvand, the Europeans’ opposition to the U.S. measure should not be interpreted as a great step toward securing Iran’s interests because the E3 showed that they only support Iran politically.

As the E3 rejected the U.S. measure, Reuters reported that U.S. President Donald Trump plans to issue an executive order allowing him to impose U.S. sanctions on anyone who violates a conventional arms embargo against Iran.

Citing unknown sources, the news agency said the executive order was expected to be issued in the coming days and would allow the president to punish violators with secondary sanctions, depriving them of access to the U.S. market.

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