21 Aug Pompeo’s Attempt to “Snapback” UN Security Council Sanctions on Iran—“Cut That Out!”
[Larry D. Johnson is an Adjunct Professor at Columbia Law School and the Former UN Assistant Secretary-General for Legal Affairs.]
The US suffered a humiliating defeat on 14 August 2020 when the UN Security Council failed to adopt a US proposal to extend certain arms restrictions on Iran that are scheduled to be lifted soon pursuant to the “nuclear deal” (JCPOA) concluded in 2015 by China, France, Germany, Russia, the UK, the US, the EU and Iran and endorsed by the UN Security Council in its resolution 2231 of 20 July 2015. The vote, according to the New York Times was only two in favor: the Dominican Republic and the US; two against (China and Russia) with the other 11 members abstaining including France, Germany and the UK. So the other partners to the “deal” who are members of the Council all voted either against the US proposal or abstained. The others who abstained included EU members Belgium and Estonia plus Indonesia, Niger, St. Vincent and the Grenadines, South Africa, Tunisia and Viet Nam. (Some would say this is what happens when you get a bad mark on your report card section that covers “Shares and plays well with others”.)
By the way, the Russian and Chinese negative votes did not count as “vetoes”. Vetoes only occur when a decision would have been adopted had it not been for a negative vote of a permanent member (P-5). Contrary to the General Assembly were decisions are not taken by a specified numerical majority but rather a majority of those “present and voting” (those voting either “yes” or “no”), in the Council it is specified in the Charter that in order for anything to be adopted – from mundane procedural decisions to binding sanctions and authorizations to use force — you need nine (9) “yes” votes. Hence, the US proposal was not adopted due to the failure to obtain the required majority for adoption, not because of Chinese and Russian negative votes. In the Council, abstentions can be as damaging as “no” votes as they reduce the chances of getting nine “yes” votes.
What follows is a short discussion and analysis of the US position re the next steps it could take, including invoking one of the provisions of the deal called the “snapback”. By invoking that provision, the US would hope to re-impose world-wide all the sanctions against Iran (nuclear, missile, arms, etc.) which had been terminated by the deal, in exchange for Iranian commitments with regard to its nuclear programme. It does not cover the issue whether the Iranians are indeed in non-compliance, significant or not, with its commitments under the deal. Nor does it cover whether as a matter of policy it would have been advisable to re-impose an arms embargo on Iran, or what kind of risks or negative consequences would flow should sanctions be re-imposed or the deal collapse. The most that can be said is that 13 members of the Council, including 5 participants in the deal, did not believe it wise or desirable to risk sinking the deal in order to re-impose the arms embargo on Iran.
Long brewing in diplomatic circles and supposedly buttressed with an as-yet unpublished legal opinion from its Legal Adviser’s office, the State Department has said that if this proposal is not adopted, it will move to invoke the “snapback” provision of the deal in order to, theoretically, re-impose all the UN Iranian sanctions which had been terminated under the deal. Pompeo’s press statement following the Council’s rejection of the US proposal did not explicitly refer to the “snapback” but did say that the Council’s failure to act was “inexcusable” and pledged that the US would continue to work to ensure that the regime “does not have the freedom to purchase and sell weapons that threaten the heart of Europe, the Middle East and beyond.” However, the statement of the US Permanent Representative to the UN, Ambassador Kelly Craft, did conclude by saying that under the nuclear deal resolution, the US “has every right to initiate snapback” of the previously terminated sanctions and that “in the coming days” the US would follow through on that promise to stop at nothing to extend the arms embargo.
Stated simply, the “snapback” provision was a device put into both the deal (para. 37 of Annex A of the resolution) and the resolution itself (paras. 11 and 12), as a fallback in case the Iranians were, in the eyes of any one of the other State participants in the deal, not complying with its provisions. In that case (and possibly following consultations to try to resolve allegations of non-compliance), the alleging State makes a “notification” to the Security Council that Iran is in “significant non-performance of commitments” under the deal. A 30-day clock begins ticking. Within 30 days of that notification, the Council is required to vote on a resolution proposing that the termination of the sanctions under the deal should continue in effect. If that resolution fails to be adopted (for whatever reason) within those 30 days, all the sanctions previously terminated will be “snapped back” into force and all States required to apply them once again.
But the device can only be triggered if a proper “notification” is submitted to the Council. It requires a JCPOA “participant State” (so not the EU) to make such a notification -one of the States that has signed on and participating in the deal. In resolution 2231, in one of the paragraphs, the States which concluded the deal and the EU are listed by name, including the United States, followed by the parenthetical phrase “(the JCPOA participants)”. By that paragraph, those participants are “encouraged” to resolve any issues arising with respect to implementation of commitments through the procedures set forth in the deal.
While the US was clearly a leader in concluding the deal in 2015, the new US administration withdrew from the deal in 2018. The Presidential Memorandum of 8 May 2018 was entitled “Ceasing U.S. Participation in the JCPOA”. It included in its Section 2 that the Secretary of State “shall… take all appropriate steps to cease the participation of the United States in the JCPOA” and in Section 3 that he and the Secretary of the Treasury “shall immediately begin taking steps to re-impose all United States sanctions lifted or waived” in the deal. Afterward on the same day, the National Security Advisor John Bolton held a press briefing in which he stated that the decision of the President “puts sanctions back in place that existed at the time of the deal; it puts them in place immediately. Importantly for these purposes, he stated that the “contingency” of re-imposing the sanctions that had been lifted by the deal had already been posted on Treasury’s website since 2015 “because of the potential for the use of the provisions of resolution 2231 [snapback?] which we’re not using because we’re out of the deal……….. We’re out of the deal” (emphasis supplied).
The intention of the US at that time to withdraw completely from the deal and not to stay “in” for some purposes but “out” for other purposes was made clear this past weekend by John Bolton’s op-ed on the 16th in the Wall Street Journal (“Iran ‘Snapback’ Isn’t Worth the Risk”). It stated the those who argued that Washington had no standing to invoke the snapback having withdrawn from the deal: “It’s too cute by half to sway we’re in the nuclear deal for purposes we want but not for purposes we don’t.”
It would seem to be pretty clear: as of that date in 2018 the US – according to its own official documents and statements – was no longer a “JCPOA participant” or a “participating State” in the deal. So on what basis does the US now claim to be a participating State under the resolution entitled to invoke the snapback? Without having seen the legal opinion which has not yet been made public, perhaps the argument is based on the fact that the Council had described the US as a “JCPOA participant” in a paragraph of the resolution, which is independent of the text of the deal itself. It sounds like the argument is that since it was a “Chapter VII” binding resolution of the Council the US is a “participant” until the Council decides otherwise, irrespective of the US position internally or for the purposes of the “deal” itself that it is out of the deal. If that is the legal basis, it is sorely flawed.
More light was thrown on the legal basis by what Pompeo said in his remarks to the press on 20 August issued by the State Department. He said the deal was not a treaty but a political agreement, which is completely separate from the Council’s resolution. As the resolution gives the right to snapback to any of the States listed in the resolution, that is not affected by the text of the deal itself from which the US has withdrawn. The resolution is completely independent and no political agreement “can undo the amazing work” of the Security Council. “No resolution of the Council can be altered unilaterally by any country – not by Iran, not by Russia, not China nor by the United States. Security Council resolutions can only be changed by subsequent Security Council resolutions”. Again, a fundamental mis-understanding of how SecCo resolutions operate.
First, the paragraph in question, as noted above, is purely descriptive and exhortatory; it lists as a factual matter who the participants were at the time of the adoption of the resolution in 2015. The Council “encouraged” those States to do something; it did not require them to do anything. The Council did not impose or declare “participation status” on anyone. For example, the Council did not “decide” that countries x, y and z where “participant States”. There is nothing in that paragraph legally binding whatever. What are binding in the resolution are the paragraphs which begin with the word “Decides, acting under Article 41 of the Charter…” and spell out the obligations of States concerning termination of the sanctions (“provisions of resolutions… shall be terminated.”) and the procedures to be followed in order to activate the snapback device.
Given Pompeo’s assertion that nothing can change a SecCo decision unless another is adopted, I wonder what the US position is today with regard to the situation in Kosovo. By resolution 1244 of 1999, the Security Council acting under Chapter VII authorized the Secretary-General to establish an interim administration for Kosovo to provide transitional administration for that entity. It has not been changed by the Council yet the US and many others have recognized Kosovo’s independence and established bilateral diplomatic relations with the Government seemingly unconcerned that the UN SecCo resolution theoretically and legally remains in full force today. Funny how binding SecCo resolutions can be cherry-picked that way.
Second, again the snapback under the binding paragraph of the resolution can only be triggered by a “participant State”. The U.S. as of now and by its own doing, is in the same position as other non-participants on the Council. They have no standing to invoke that provision or to make a “notification” of significant non-performance by Iran. If the US wanted to become a participant again, so that it could invoke the snapback, it could “easily” do so by revoking the Presidential Memorandum and lifting all the sanctions as required by the deal and the resolution. In that way, the US could claim to be back in compliance with the deal and the resolution and thus could claim to again be a “JCPOA participant State”.
Moreover, the deal provides for a dispute resolution mechanism in case any of the parties believe Iran is not meeting its commitments, including setting up a Joint Commission to resolve the issue (para. 36 of annex A of the resolution). The E-3 (France, Germany and the UK) have already instituted that provision which has not yet been completed. If one of the signers of the deal were truly a “participant” and had complaints about Iran compliance, it should use the Joint Commission approach before resorting to the snapback.
It may be noted in passing that of course the actions of the new US administration in re-imposing unilaterally the Council sanctions in 2018 in the face of a binding Chapter VII resolution requiring that they be lifted, constitutes in itself a violation not only of the deal, but also of the resolution and arguably of the Charter (see Article 25). There is a legal concept of “clean hands” that creates a problem here for the US position. (A party cannot take advantage of his or her own wrong.)
Third, who decides who is a participant in the deal? The Council? A country on its own? The logic is of course that only the other participants decide who are fellow co-participants. It’s not for the Council or “outsiders” to decide that. From public statements so far, it is not likely that China, France, Germany, Russia, the UK or the EU – let alone Iran – will anytime soon announce they consider the US to be a “participant State”. So why should Indonesia, Niger, St. Vincent and the Grenadines, South Africa, Tunisia and Viet Nam have to take a position on that? Makes little sense.
Next steps: can the US be stopped from invoking the snapback if it proceeds to purportedly make the required notification? Despite worrying commentaries that the answer is an unshakable “no” because the snapback provision is too cleverly and tightly drafted, that is not entirely true.
First, no one can stop the US or any Member of the UN from claiming to invoke the snapback and circulating a document in the UN. It’s similar to what happens in various legal systems where virtually anybody can file a claim on virtually anything but the question is rather whether it will be “received”, considered and acted upon. Yesterday on the 20th, according to the press statement issued by the State Department, Pompeo delivered a letter to the Secretary-General and to the President of the Security Council (this month Indonesia) that US is “initiating the restoration of virtually all UN sanctions on Iran” lifted under the deal and that “that process will lead to those sanctions coming back into effect 30 days from today”. Within that period, the US will expect a snapback resolution to be circulated and put to the vote. It should be noted here that the Secretariat is a pure mailbox and has no role in looking at whatever is said in the communication; it simply complies with the request to circulate which any Member can make. The Secretariat will also circulate on request objections and comments submitted by Member States in reaction to the US notification, which no doubt will question the legal standing of the US to claim to be a “participant State”.
That has already begun. The Foreign Ministers of the E-3 issued a statement also published on the 20th of August that France, Germany and the UK note that the US “ceased to be a participant to the JCPOA” following their withdrawal from the deal in May 2018 and that they could not support the action of the US which is. “incompatible” with their current efforts to support the JCPOA. They also noted that the current issue of “systematic Iranian non-compliance” with its obligations under the deal should be addressed through dialogue between JCPOA participants including through the Joint Commission which had been established under the Dispute Resolution Mechanism of the deal. The EU High Representative and also Coordinator of that Joint Commission issued a statement that recalled that the US “had unilaterally ceased participation” in the deal in May 2018 and had 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.” The Belgian Mission to the UN tweeted that “the case is crystal clear: the USA cannot trigger a snapback of sanctions through the JCPOA since it ‘ceased its participation’ to the JCPOA in May 2018”. Similar communications can be expected from others, particularly the Russians and Chinese, let alone Iran.
To this, Pompei in the Q and A portion of his remarks to the press issued by the State Department on the 20th stated that after the 30 days have run, the US expects every UN member to comply with their obligations under the resolution and that “when these sanctions snap back… every nation will execute them”. And if they do not, the US “will continue to enforce the sanctions”. He noted that US had “already gone after entities that violated the Iranian sanctions regime” and that “the country is immaterial. If they’re in violation of these sanctions, we’ll do our level best to enforce them… it will become our obligation as a member of the UN in the same way it’s been our obligation to enforce… US sanctions alone.” According to New York Times reporting on his visit to the UN, Pompeo reserved his harshest words towards the UK, France and Germany which he said “chose to side with the ayatollahs”.
Second, the stage will thus be set for something to happen. Informal consultations would normally follow after circulation of a draft snapback resolution in a ‘non-paper’ format, not yet publicly circulated. It would follow the terms of the deal and call for a continuation of the termination of all the sanctions lifted. Even if those consultations reveal strongly held divergent views and the US almost without backing, the US may well follow what US officials have stated earlier and proceed to circulate the snapback draft resolution formally and publicly, on the premise it will be voted on in which case the US would “veto” the resolution and it would thus not be adopted. According to the snapback device, binding on all States having been adopted under Article 41 of the Charter, all the prior UN sanctions would automatically then be “snapbacked” and all States would be required to comply without any further actions or decisions by the Council.
Third, can that be stopped? Yes. UN bodies are not that different from city councils, state legislatures, parliaments; they are all governed by rules of procedure. As anyone familiar with such legislative bodies knows, if you know how to use the rules, you can achieve much to your advantage on the substantive front as well. If you don’t know procedure, you may be making an incredibly persuasive speech on an important matter of substance, but someone can shut you down in two seconds by using the proper procedural maneuvers. There are two possibilities I see.
Adoption of the agenda. For every meeting the Council at the start must adopt its agenda, which traditionally is one agenda item for each meeting. As agreed by the P-5 in 1945 at San Francisco, adoption of the agenda is a procedural matter not subject to a veto. A provisional agenda needs 9 “yes” votes for adoption as the agenda. Over the years, several times there has been objection to the proposed “provisional agenda” for a meeting and a discussion whether or not Council members wish to discuss the matter or not. (Note there is no generic “other matters” or “Any other business” automatically on Council agendas for formal meetings.). It is interesting that objections to provisional agendas and requests to vote on them have come primarily from one or more of the P-5. Sometimes even though a permanent member has objected to a provisional agenda and forced a vote, P-5 members have been outvoted and the provisional agenda adopted despite the opposition of a P-5. In 2005, Russia objected to an agenda dealing with Zimbabwe being inscribed but lost the vote as the agenda was adopted by a vote of 9-5-1 (S/PV. 5237). In 2006, China objected to an agenda dealing with Myanmar which despite that objection was subsequently adopted by a vote of 10-4-1 (S/PV.5526). Again, vetoes do not apply.
On at least two occasions, provisional agendas have not been adopted as they failed to obtain the required majority. In 1962, the UK and US objected to a provisional agenda proposed by Cuba (S/PV.991). The proposed agenda was put to the vote and it failed to receive the required majority (at that time 7 “yes” votes): 4-0-7. Note that nobody even voted against. The 7 abstentions killed it. In 2018, Russia and China objected to a provisional agenda item proposed for that day by France and 6 other Council members which included a briefing on human rights in Syria by the High Commissioner for Human Rights, Prince Zeid (S/PV.8209). The provisional agenda was put to the vote and did not receive the required 9 “yes” votes: 8-4-3. The meeting adjourned immediately thereafter without having heard Prince Zeid.
At present, regardless of what the US has circulated in terms of a purported “notification” under the deal and/or a draft snapback resolution, the Council could simply not adopt the agenda requested for that meeting and thus the meeting ends. The “participants” in the deal on the Council (China, France, Germany, Russia and the UK) add up to 5, plus the two other EU members (Belgium and Estonia) amount to 7 votes. Even if all 7 abstained and there was not a single “no”, the US would be deprived of obtaining the 9 votes it needs in order to proceed to consider the matter. Other members might well abstain or vote against the proposed agenda (see below for reasons why other members may do so.)
Postpone discussion of the question indefinitely. The provisional rules of procedure of the Council provide, under rule 33, that certain procedural motions have precedence over principal motions and draft resolutions before the Council, including a procedural motion “To postpone discussion of the question to a certain day or indefinitely”. This motion is similar to one often invoked in the other principal organ of the UN, the General Assembly (GA) where it is referred to as the “no action” motion. While it has been frequently used in the GA over the years it is not been frequently used in the Council. Being a procedural motion, it is not subject to the veto. According to the Sievers and Daws book on “The Procedure of the UN Security Council”, while some postponements due to specific dates or contingent on certain events have occurred, indefinite postponements have only occurred a few times. In the early years, the US moved that the application for admission submitted by two countries should be postponed; that motion failed. The most recent example apparently is from 1955 when the US moved that the Council decide “not to consider” proposals to exclude the Chinese Nationalists or to seat the representatives of the People’s Republic of China. The motion was adopted by a vote of 10-1-0.
In this case, the main disadvantage of this procedural option is that it requires 9 “yes” votes for adoption; abstentions are of no use as opposed to rejecting a proposed agenda which only requires 7 “no” or “abstain” votes, as noted above. But given that the proponents of the deal might garner at least 7 votes as indicated above, but this time as “yes” votes to postpone discussion and action indefinitely on the US draft snapback resolution, it might be possible to obtain another two votes from among the other members of the Council. Some may believe they have no inherent national interest requiring them to take a position on who a “participant State” is, whether sanctions should continue to be lifted or re-imposed. They could maintain the position that it is for the States concerned to work out such issues and revert to the Council at that time. And until such time, best postpone discussion. Perhaps postpone “until the JCPOA participants inform the Council who are the participants” or some such phrase indicating a desire not to take a position on the issue at this time – premature, etc. As in the GA, there are occasions when a government will simply want an issue/question/resolution to ‘go away’ for the time being. Narrowly they may see no reason to upset bilateral relations by taking a position between contending parties on an underlying substantive matter or more broadly it is not in the best interests of the international community and peaceful relations among States to bring a given matter to a vote. Therefore they might vote to postpone the matter indefinitely.
In the end. If that happens, the US no doubt will continue to maintain that the notification was in order and that the snapback had automatically occurred because no resolution was adopted within 30 days continuing the termination of sanctions. It will thus pronounce after the 30 days, that all sanctions had been snapped back and all States are required to comply. Then what? Who would join the US in such an interpretation of what happened? Israel? The Gulf States? Most States I suspect would follow the lead of the remaining participants in the deal and the EU – no legal basis to re-impose sanctions and simply ignore the US position. Most of the countries who would follow the US lead have very little leverage in any event. If they “snapped back” all sanctions on Iran what would the effect be in fact? Contrary to the assertion in the New York Times that a US-engineered snapback would be devastating for Iran, I suspect it would have a negligible effect, as long as the remaining participants in the deal were united in its continuation. The US, Israel and the Gulf States have, I suspect, little trade or banking relations with Iran to cut off in any event. The damage would be reputational to the UN with the US accusing the UN of aligning with terrorists and shirking its responsibilities, and no doubt much more. Whether the US and others would engage in “punishment” for countries that resume arm sales or other relationships with Iran in line with the deal is of course a possibility. Plus, all bets are off in the future if the deal begins to break apart or collapse.
Another unknown is of course, how the US will follow through with its threats to enforce the purportedly snapped back sanctions resolutions. What actions it could take against entities or countries that take the position that those sanctions have not been snapped back will need to be examined carefully. The danger there to the continued viability of the JCPOA is readily self-apparent. Another matter for the UN will be how it will handle pressure from the US and its allies on this matter on the SG and Council presidents (except for the month when it is President in 2021) to establish the usual sanctions committee and expert group to monitor compliance with the purportedly re-imposed UN sanctions regime. (See a new report by the International Crisis Group, “Iran: The US Brings Maximum Pressure to the UN”, dated 20 August 2020.) Perhaps if enough disagreement is expressed among the members of the Council on this issue, the SG will seek a formal decision of the Council to provide him guidance on this matter. And if no such guidance emerges because of disagreement among the permanent members, the status quo (sanctions lifted) would continue until he is instructed otherwise (ala the SG position on Kosovo – “status neutral” until he receives guidance from the Council).
From the legal point of view, I believe the US attempt to invoke the snapback is untenable and inadvisable, for the reasons indicated above. Basically in law, it comes down to the doctrine of “estoppel” – a legally imposed bar resulting from one’s own conduct and precluding any denial or assertion regarding a fact. In real life, it is called “common sense”. (I don’t know what it is like in Kansas these days, but growing up in Nebraska, if I had tried this kind of “cute trick”, my folks would have yelled “Hey, cut that out! – ‘ya can’t have your cake and eat it too”.)