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United States Fails to Secure Multilateral Snapback Sanctions Against Iran

Published online by Cambridge University Press:  15 January 2021

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Extract

The United States withdrew from the Joint Comprehensive Plan of Action (JCPOA) on May 8, 2018, and subsequently reimposed a range of unilateral sanctions on Iran. Throughout mid-2020, the Trump administration sought multilateral support for renewed UN sanctions against Iran, but the Security Council rejected those efforts. In response, the administration moved to initiate snapback sanctions under the terms of the JCPOA and UN Security Council Resolution 2231. However, JCPOA participants and the Security Council largely rebuffed the administration's contention that it could activate the snapback mechanism, instead taking the position that U.S. withdrawal from the JCPOA means that it is no longer a “participant state” as required to invoke snapback sanctions.

Type
Use of Force, Arms Control, and Nonproliferation
Copyright
Copyright © 2021 by The American Society of International Law

The United States withdrew from the Joint Comprehensive Plan of Action (JCPOA) on May 8, 2018, and subsequently reimposed a range of unilateral sanctions on Iran.Footnote 1 Throughout mid-2020, the Trump administration sought multilateral support for renewed UN sanctions against Iran, but the Security Council rejected those efforts.Footnote 2 In response, the administration moved to initiate snapback sanctions under the terms of the JCPOA and UN Security Council Resolution 2231. However, JCPOA participants and the Security Council largely rebuffed the administration's contention that it could activate the snapback mechanism, instead taking the position that U.S. withdrawal from the JCPOA means that it is no longer a “participant state” as required to invoke snapback sanctions.Footnote 3

Tensions between the United States and Iran have continued to rise following U.S. withdrawal from the 2015 JCPOA, under which Iran agreed to submit to restrictions on its nuclear program in exchange for sanctions relief.Footnote 4 In July 2018, Iran instituted proceedings against the United States at the International Court of Justice, alleging violations of a 1955 treaty of amity.Footnote 5 The situation further deteriorated in January 2020, when the United States launched a drone strike that killed Iranian General Qasem Soleimani at the Baghdad airport, and Iran responded with ballistic missile strikes against U.S. military bases in Iraq.Footnote 6 Congress became sufficiently concerned about escalation that it sought to restrain President Donald Trump's authority to use force against Iran,Footnote 7 though Trump vetoed Congress's effort.Footnote 8 The United States continued to impose additional unilateral sanctions on Iran throughout 2020, targeting both Iran's nuclear programFootnote 9 and its broader activities in the region.Footnote 10

Iran has complained for several years that the United States failed to fulfill its commitments to relieve sanctions under the JCPOA.Footnote 11 As a result of these frustrations, Iran took a number of steps between May 2019 and January 2020 to reduce its commitment to the agreement.Footnote 12 These measures ranged from exceeding uranium limitsFootnote 13 to announcing that Iran would no longer adhere to “operational restrictions” on the number of centrifuges it employs.Footnote 14 As of early November 2020, Iran maintained nearly twelve times the amount of uranium permitted by the JCPOA.Footnote 15

In April 2020, the United States began planning to invoke the JCPOA's snapback sanctions by asserting that it remained a “participant state” under the deal.Footnote 16 The snapback provision represents the primary mechanism to ensure Iranian compliance with the terms of the JCPOA.Footnote 17 The relevant portion of UN Security Council Resolution 2231 provides:

[W]ithin 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, [the Security Council] shall vote on a draft resolution to continue in effect the terminations in paragraph 7(a) of this resolution . . . .

[A]cting under Article 41 of the Charter of the United Nations, . . . if the Security Council does not adopt a resolution under paragraph 11 to continue in effect the terminations in paragraph 7(a), then effective midnight Greenwich Mean Time after the thirtieth day after the notification to the Security Council described in paragraph 11, all of the provisions of resolutions [imposing sanctions on Iran] that have been terminated pursuant to paragraph 7 (a) shall apply in the same manner as they applied before the adoption of this resolution, and the measures [lifting sanctions on Iran] shall be terminated, unless the Security Council decides otherwise . . . .Footnote 18

In other words, after a participant state notifies the Security Council of Iran's noncompliance with the JCPOA, snapback to pre-JCPOA sanctions occurs unless the Security Council votes against the reimposition of sanctions through its normal procedures.Footnote 19

On August 14, 2020, the Trump administration failed to garner sufficient support to extend a Security Council resolution restricting arms sales to Iran.Footnote 20 In response, the United States notified the Security Council President by letter on August 20 that it was activating the snapback provisions of Resolution 2231.Footnote 21 The letter stated:

In accordance with paragraph 11 of [Resolution] 2231 (2015), I write to notify the Security Council, on behalf of my Government, that Iran is in significant non-performance of its commitments under the [JCPOA]. Pursuant to this notification, which the United States makes as one of the JCPOA participants identified in paragraph 10 of resolution 2231, the process set forth in paragraphs 11 and 12 of that resolution leading to the re-imposition of specified measures terminated under paragraph 7(a) has been initiated.Footnote 22

The letter cited Iran's noncompliance with the agreement's restrictions on nuclear activity, as well as European participants’ unsuccessful efforts to negotiate Iran's return to compliance.Footnote 23

Thirty days after its notification to the Security Council, the Trump administration claimed that “[o]n September 19 . . . virtually all UN sanctions on Iran were re-imposed.”Footnote 24 The Trump administration reinstated U.S. sanctions on entities targeted by Resolution 2231's snapback provisions and asserted that “stakeholders worldwide are warned that the United States will aggressively use U.S. sanctions authorities to impose consequences for failures to comply with the snapped-back UN measures on Iran and ensure that Iran does not reap the benefits of UN-prohibited activity.”Footnote 25 The Trump administration imposed additional unilateral sanctions on Iranian financial institutionsFootnote 26 and on conventional weapons transfers to and from Iran.Footnote 27

U.S. authority to invoke the snapback mechanism depends on whether it remains a JCPOA participant, as it claimed in the letter to the Security Council president. In the 2018 memorandum withdrawing from the JCPOA, President Trump ordered:

Ending United States Participation in the JCPOA. The Secretary of State shall, in consultation with the Secretary of the Treasury and the Secretary of Energy, take all appropriate steps to cease the participation of the United States in the JCPOA.Footnote 28

The JCPOA contains no mechanism for withdrawal or termination other than the expiration of Resolution 2231 ten years after its adoption.Footnote 29

The Trump administration's view of its authority to trigger snapback sanctions clashes with the opinions of the other countries that negotiated the JCPOA.Footnote 30 In a joint statement, France, Germany, and the United Kingdom asserted that the U.S. notification to the Security Council was “incapable of having legal effect,” given that “the US [United States] ceased to be a participant to the JCPoA following their withdrawal from the deal on 8 May.”Footnote 31 French President Emmanuel Macron vowed that Europe would not “compromise on the activation of a mechanism that the United States is not in a position to activate on its own after leaving the agreement.”Footnote 32 Russia commented that the U.S. position was “at odds with reality” and noted that the United States had withdrawn from the deal.Footnote 33 Russia added that the U.S. letter did not serve as notification under Resolution 2231, the Security Council had not moved to reimpose sanctions on Iran, and the U.S. action undermined the Security Council.Footnote 34 China similarly asserted that “any decision or action resulting from the US letter is devoid of any legal, political or practical effect,” citing the U.S. withdrawal.Footnote 35 China added that it was “committed to upholding the efficacy of the JCPOA” and a “political solution of the Iranian nuclear issue.”Footnote 36

With the exception of the Dominican Republic, all of the other UN Security Council members similarly considered the U.S. letter to lack legal effect.Footnote 37 Security Council President Dian Triansyah Djani stated that because “there are significant numbers of members who have contesting views . . . the president is not in the position to take further action.”Footnote 38 As a result, the Security Council did not revive any of the six resolutions that would return to force under the snapback provision.Footnote 39 UN Secretary-General António Guterres similarly found that he could not act because “[t]here would appear to be uncertainty whether or not the process . . . was indeed initiated and concomitantly whether or not the (sanctions) terminations . . . continue in effect.”Footnote 40

Iran also rejected the U.S. attempt to activate the snapback mechanism, finding the notification “inadmissible” because the United States “relinquished all its prerogatives and privileges” under the JCPOA when it withdrew from the agreement.Footnote 41 Iran further argued that the United States unlawfully withdrew from the deal, reimposed sanctions, and punished states and entities seeking to comply with the JCPOA.Footnote 42

The Trump administration's resort to unilateral snapback sanctions placed it at odds with European allies. The U.S. Treasury Department has insisted that it will “not hesitate to target anyone” who violates the sanctions regime.Footnote 43 European officials, however, have raised concerns that stricter sanctions could lead to humanitarian consequences, such as reduced access to medical supplies, in Iran.Footnote 44 The sanctions also clash with the EU blocking statute,Footnote 45 which the European Council amended in 2018 to address U.S. secondary sanctions against Iran.Footnote 46 The blocking statute prohibits entities within the European Union from complying with the sanctions,Footnote 47 while noting that the European Union finds those sanctions to “violate international law.”Footnote 48 European entities interacting with Iran may therefore either violate U.S. sanctions by continuing to do business with Iran, or instead violate the blocking statute by complying with the sanctions. Despite the friction with the United States, the European JCPOA participants reiterated that they have “worked tirelessly to preserve the nuclear agreement and remain committed to do[ing] so.”Footnote 49

Support for snapback sanctions within Congress fell along party lines. Fifty-one Republican legislators sent a letter to Trump expressing approval of the sanctions, citing concerns about Iranian support for terrorism and inability to address Iran's nuclear activity under the JCPOA.Footnote 50 Congressional Democrats criticized the Trump administration's decision, maintaining that the JCPOA remains “the best hope of preventing Iran from acquiring nuclear weapons.”Footnote 51 As the Democratic presidential candidate, President-Elect Joe Biden criticized the Trump administration's unilateral efforts to enact snapback sanctions and committed, if elected, to rejoin the JCPOA provided that Iran strictly complies with the agreement.Footnote 52

References

1 See Jean Galbraith, Contemporary Practice of the United States, 112 AJIL 487, 517, 521 (2018); Exec. Order No. 13,846, 83 Fed. Reg. 38,939 (2018).

2 UN Security Council Press Release, Security Council Announces Failure to Adopt Text on Iran Sanctions by 2 Against, 2 in Favour, 11 Abstentions (Aug. 14, 2020), at https://www.un.org/press/en/2020/sc14277.doc.htm [perma.cc/9QAR-U9FC].

3 Edith M. Lederer, UN Council Rejects US Demand to “Snap Back” Iran Sanctions, Wash. Post (Aug. 25, 2020), at https://www.washingtonpost.com/world/middle_east/un-council-rejects-us-demand-to-snap-back-iran-sanctions/2020/08/25/301b4154-e6fb-11ea-bf44-0d31c85838a5_story.html.

4 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 109 AJIL 644, 649 (2015)CrossRefGoogle Scholar.

5 See Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 132, 173–82 (2018)Google Scholar.

6 See Galbraith, Jean, Contemporary Practice of the United States, 114 AJIL 289, 313, 321 (2020)Google Scholar.

7 See Galbraith, Jean, Contemporary Practice of the United States, 113 AJIL 813, 845–48 (2019)Google Scholar; S. Res. 68, 116th Cong. (2020).

8 See Seung Min Kim, Trump Vetoes Congressional Resolution Limiting His Military Authority Against Iran, Wash. Post (May 6, 2020), at https://www.washingtonpost.com/politics/trump-vetoes-congressional-resolution-limiting-his-military-authority-against-iran/2020/05/06/ec52845e-8fdf-11ea-8df0-ee33c3f5b0d6_story.html.

9 See, e.g., U.S. Dep't of State Press Release, Expansion of the Scope of Iran Metals Sanctions Targeting Iran's Nuclear, Military, and Ballistic Missile Programs and the IRGC (July 30, 2020), at https://www.state.gov/expansion-of-the-scope-of-iran-metals-sanctions-targeting-irans-nuclear-military-and-ballistic-missile-programs-and-the-irgc [https://perma.cc/S29B-ZEDS].

10 See, e.g., U.S. Dep't of State Press Release, Imposing Sanctions on Entities for Engaging in Transactions Related to Iran's Petroleum and Petrochemical Industry (Sept. 3, 2020), at https://www.state.gov/imposing-sanctions-on-entities-for-engaging-in-transactions-related-to-irans-petroleum-and-petrochemical-industry [https://perma.cc/2GUY-EDWY]. For a list of U.S. sanctions, see U.S. Dep't of State, Iran Sanctions, at https://www.state.gov/iran-sanctions.

11 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 110 AJIL 789, 792 (2016)CrossRefGoogle Scholar.

12 Laurel Wamsley & Emily Kwong, Iran Abandons Nuclear Deal Limitations in Wake of Soleimani Killing, NPR (Jan. 5, 2020), at https://www.npr.org/2020/01/05/793814276/iran-abandons-nuclear-deal-limitations-in-wake-of-soleimani-killing.

13 IAEA Director General, Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015), para. 3, UN Doc. GOV/INF/2019/8 (July 1, 2019).

14 IAEA Director General, Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015), para. 5, UN Doc. GOV/INF/2020/6 (June 5, 2020).

15 IAEA Director General, Verification and Monitoring in the Islamic Republic of Iran in Light of United Nations Security Council Resolution 2231 (2015), paras. 27–28, UN Doc. GOV/INF/2020/51 (Nov. 11, 2020).

16 David E. Sanger, To Pressure Iran, Pompeo Turns to the Deal Trump Renounced, N.Y. Times (April 26, 2020), at https://www.nytimes.com/2020/04/26/world/middleeast/us-iran-nuclear-deal-pompeo.html.

17 See Daugirdas, Kristina & Mortenson, Julian Davis, Contemporary Practice of the United States, 109 AJIL 644, 653 (2015)CrossRefGoogle Scholar.

18 SC Res. 2231, paras. 11–12 (July 20, 2015).

19 Id.

20 Security Council Press Release, supra note 2; Michael Schwirtz, U.N. Security Council Rejects U.S. Proposal to Extend Arms Embargo on Iran, N.Y. Times (Aug. 14, 2020), at https://www.nytimes.com/2020/08/14/world/middleeast/UN-Iran-embargo.html; U.S. Dep't of State Press Release, On the Security Council's Failure to Hold Iran Accountable (Aug. 14, 2020), at https://www.state.gov/on-the-security-councils-failure-to-hold-iran-accountable [https://perma.cc/6SQF-SLCK].

21 U.S. Dep't of State Press Release, The Return of UN Sanctions on the Islamic Republic of Iran (Sept. 19, 2020), at https://www.state.gov/the-return-of-un-sanctions-on-the-islamic-republic-of-iran [https://perma.cc/XZN8-T3HZ].

22 Letter from Ambassador Kelly Craft, U.S. Rep. to the UN, to Ambassador Dian Triansyah Djani, UN Security Council President (Aug. 20, 2020), available at https://perma.cc/SGH6-BJ5G.

23 Id.

24 U.S. Dep't of State Press Release, Sweeping U.S. Measures to Support Return of UN Sanctions Relating to Iran's Nuclear, Missile, and Conventional Arms Programs (Sept. 21, 2020), at https://www.state.gov/sweeping-u-s-measures-to-support-return-of-un-sanctions-relating-to-irans-nuclear-missile-and-conventional-arms-programs [https://perma.cc/P38K-7DNA].

25 Id.

26 U.S. Dep't of State Press Release, Sanctions on Iran's Financial Institutions (Oct. 8, 2020), at https://www.state.gov/sanctions-on-irans-financial-institutions [https://perma.cc/A7UX-FS4P].

27 Exec. Order No. 13,949, 85 Fed. Reg. 60,043 (2020).

28 Presidential Memorandum, Ceasing U.S. Participation in the JCPOA and Taking Additional Action to Counter Iran's Malign Influence and Deny Iran All Paths to a Nuclear Weapon (May 8, 2018), at https://www.whitehouse.gov/presidential-actions/ceasing-u-s-participation-jcpoa-taking-additional-action-counter-irans-malign-influence-deny-iran-paths-nuclear-weapon [https://perma.cc/R9SK-XH5D].

29 Joint Comprehensive Plan of Action, para. 34, July 14, 2015, available at https://2009-2017.state.gov/documents/organization/245317.pdf [https://perma.cc/XX7G-CHWN].

30 The other JCPOA participants include China, France, Germany, Iran, Russia, and the United Kingdom. See Daugirdas & Mortenson, supra note 4, at 655.

31 French Min. Europe and For. Aff. Press Release, Joint Statement by the Foreign Ministers of France, Germany and the United Kingdom (Sept. 20, 2020), at https://www.diplomatie.gouv.fr/en/country-files/iran/news/article/iran-jcpoa-joint-statement-by-the-foreign-ministers-of-france-germany-and-the [https://perma.cc/MT3P-CLSB].

32 Europe “Will Not Compromise” with US Over Iran Sanctions: Macron, France24 (Sept. 22, 2020), at https://www.france24.com/en/20200922-europe-will-not-compromise-with-us-over-iran-sanctions-macron.

33 Russian Min. For. Aff. Press Release, Foreign Ministry Statement on the Misleading Assertions by the United States on the Return of the Previously Terminated UN Security Council Sanctions on Iran (Sept. 20, 2020), at https://www.mid.ru/en/web/guest/adernoe-nerasprostranenie/-/asset_publisher/JrcRGi5UdnBO/content/id/4341562 [https://perma.cc/W3HZ-RB9C].

34 Id.

35 Chinese Permanent Mission to the UN Press Release, Ambassador Zhang Jun: The US Announcement on the Return of UN Sanctions on Iran Is Illegitimate and Void (Sept. 20, 2020), at https://www.fmprc.gov.cn/ce/ceun/eng/hyyfy/t1816508.htm [https://perma.cc/7WL2-YFHT].

36 Id.

37 Lederer, supra note 3. Israeli Prime Minister Benjamin Netanyahu also voiced approval for the U.S. position, “commend[ing] the United States for its decision to trigger snapback sanctions against Iran.” Israeli Min. For. Aff. Press Release, PM Netanyahu's Statement on US Decision to Trigger Snapback Sanctions Against Iran (Aug. 20, 2020), at https://mfa.gov.il/MFA/PressRoom/2020/Pages/PM-Netanyahu-s-statement-on-US-decision-to-trigger-snapback-sanctions-against-Iran-20-August-2020.aspx [https://perma.cc/5FC7-Z235].

38 Rick Gladstone, Security Council Leader Rejects U.S. Demand for U.N. Sanctions on Iran, N.Y. Times (Aug. 25, 2020), at https://www.nytimes.com/2020/08/25/world/middleeast/Iran-sanctions-Trump-UN.html.

39 SC Res. 2231, para. 12 (July 20, 2015).

40 Michelle Nichols, U.N. Chief Says No Action on U.N. Iran Sanctions Due to “Uncertainty, Reuters (Sept. 19, 2020), at https://www.reuters.com/article/us-iran-usa-un/u-n-chief-says-no-action-on-u-n-iran-sanctions-due-to-uncertainty-idUSKCN26B03X.

41 Letter from Javad Zarif, Iranian Foreign Minister, to Ambassador Dian Triansyah Djani, President of the United Nations Security Council 12–13 (Aug. 21, 2020), available at https://en.mfa.ir/files/mfaen/200820-MJZ.pdf [https://perma.cc/5EQL-K4PT].

42 Id. at 8.

43 U.S. Dep't of Treas. Press Release, Treasury Sanctions Key Actors in Iran's Nuclear and Ballistic Missile Programs (Sept. 21, 2020), at https://home.treasury.gov/news/press-releases/sm1130 [https://perma.cc/R6WK-WA9K].

44 John Hudson, Trump Administration Imposes Crushing Sanctions on Iran in Defiance of European Humanitarian Concerns, Wash. Post (Oct. 8, 2020), at https://www.washingtonpost.com/national-security/trump-administration-to-impose-crushing-sanctions-on-iran-in-defiance-of-european-humanitarian-concerns/2020/10/07/f29c052c-08f4-11eb-991c-be6ead8c4018_story.html.

47 Council Regulation, supra note 45, Art. 5.

48 Commission Delegated Regulation, supra note 46.

49 Joint Statement, supra note 31.

51 Rep. David Price Press Release, House Democrats Release Joint Statement Condemning Trump Administration on Proposed Iran “Snapback” Sanctions (Aug. 24, 2020), at https://price.house.gov/newsroom/press-releases/house-democrats-release-joint-statement-condemning-trump-administration [https://perma.cc/ET53-K23Z]; see also Sen. Ben Cardin Press Release, Cardin Statement on Trump Administration's Flawed Decision to Advance “Snapback” Sanctions on Iran (Aug. 21, 2020), at https://www.cardin.senate.gov/newsroom/press/release/cardin-statement-on-trump-administrations-flawed-decision-to-advance-snapback-sanctions-on-iran [https://perma.cc/5HY4-34GW].

52 Joe Biden, Joe Biden: There's a Smarter Way to Be Tough on Iran, CNN (Sept. 13, 2020), at https://www.cnn.com/2020/09/13/opinions/smarter-way-to-be-tough-on-iran-joe-biden/index.html.

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