The Trump administration continues its “maximum pressure” campaign against Iran, now with an attempt to restore pre-2015 UN sanctions, a right reserved for signatories to the nuclear deal it abandoned. Other UN Security Council members should disregard this gambit and urge Tehran not to overreact.
What’s new? A U.S. resolution seeking to extend UN arms restrictions on Iran beyond their October 2020 expiration failed at the Security Council. Washington has asserted that it will claim the right to unilaterally restore UN sanctions, which were terminated as part of the 2015 nuclear agreement.
Why does it matter? Any U.S. attempt to reimpose sanctions will be controversial, given the Trump administration’s withdrawal from the 2015 Iran nuclear deal, and likely to create deadlock at the Security Council. The administration’s goal is clear: kill the deal or make it that much harder for a successor administration to rejoin it.
What should be done? The remaining parties to the deal should be united in resisting Washington’s efforts, as should other Security Council members. They should essentially disregard a U.S. “snapback” – restoring sanctions – as ineffectual, obstruct attempts to implement it and discourage Iran from overreacting to what will end up being a symbolic U.S. move.
Executive Summary
The Trump administration’s “maximum pressure” campaign against Iran is reaching its logical conclusion: an attempt to wipe out the 2015 nuclear deal, or Joint Comprehensive Plan of Action (JCPOA), through unilateral action at the UN Security Council. The administration first sought to extend the UN arms restrictions upon Iran set to expire on 18 October through a new resolution. With that effort’s embarrassing failure, it has headed to the next stage, invoking the right to “snap back”, or restore, UN sanctions. This right is reserved for JCPOA participants, but Washington somehow claims it despite loudly broadcasting an exit from the deal over two years ago. Its goal is clear: to force Iran to surrender to U.S. demands in a new accord (should President Donald Trump win a second term) or make it that much harder for the U.S. to re-enter the JCPOA (should former Vice President Joe Biden win a first). Council members should dismiss the snapback move as a non-event, impede U.S. attempts to set up UN sanctions committees and press Iran not to overreact to a manoeuvre that will change nothing on the ground.
For more than two years, coercion has been the leitmotif of the Trump administration’s Iran policy. Since leaving the JCPOA in May 2018, Washington has enacted powerful unilateral sanctions against the Islamic Republic with the intent of destabilising it, forcing concessions related to its nuclear program and its behaviour on the Middle Eastern stage, or both. Yet, although Iran’s economy undoubtedly has suffered considerably, it has yielded neither on the nuclear front, where its program is today more advanced than before the U.S. withdrawal, nor on the regional front, where its actions and those of its allies have if anything become more belligerent.
” For more than two years, coercion has been the leitmotif of the Trump administration’s Iran policy “
The October expiration of the UN arms restrictions on Iran (agreed to in the nuclear talks and enshrined in UN Security Council Resolution 2231) has emerged as the next major flashpoint in the standoff. U.S. officials have said they are determined not to let those constraints lapse. They claimed they would achieve this goal in one of two ways: by passing a stand-alone resolution that would prolong the embargo indefinitely or by invoking a provision of Resolution 2231 to restore all UN sanctions – a move that would bring back pre-JCPOA sanctions and could spell the nuclear deal’s demise. On 14 August, the first option collapsed ignominiously on a vote of two in favour, two against and eleven abstentions. The stage is now set for the second option.
The administration’s intent has never been in doubt. If its goal in fact was to minimise the impact of permissible weapons sales and purchases on Middle East security, then Washington had more realistic options than the open-ended extension it sought and the resort to a UN Security Council snapback mechanism it now threatens. Yet, rather than engaging in delicate diplomacy, in close consultation with allies but also reaching out to rivals who have an important say in the outcome, the Trump administration approached the problem with maximal demands and minimal willingness to compromise. The administration asserted that it is prepared to kill the JCPOA in order to extend the arms embargo. In reality, its track record suggests that it was prepared to invoke the arms embargo in order to kill the JCPOA.
The real choice, therefore, is not between the presence or absence of arms restrictions, but between the survival, tenuous but crucial, of the 2015 nuclear deal and its dissolution. The remaining parties to the agreement may not view the easing of restrictions on conventional weaponry similarly – the three European participants, France, Germany and the UK, voice serious concerns about its implications, while Iran, Russia and China stress the fact that it was part and parcel of the understandings reached in 2015 – but they share the opinion that a new nuclear crisis is of greater concern. The path to which the U.S. is beckoning them may lead to precisely such a crisis.
To UN Security Council member states therefore falls the task of countering Washington’s decision to invoke the snapback process. It may seem fanciful that the Trump administration, which announced its exit from the nuclear deal with a presidential memorandum entitled “Ceasing U.S. Participation in the JCPOA”, now asserts its right as a “JCPOA participant”, but there is no obvious or airtight mechanism for challenging this argument. The most likely scenario is a rancorous quarrel in New York, at the end of which the U.S. will assert that sanctions have legitimately been restored; Russia and China say they have not; and European nations (as well as other Council members) do their best to avoid both trouble with Iran and injury to the international body. Such a crisis will intensify existing tensions among permanent members and undercut the Council’s already severely diminished value as a venue for decision-making by major powers.
The nuclear deal’s fate may now rest on several factors: how many countries accept the U.S. claim that sanctions have been restored in the event of a snapback gambit, and which ones; the posture of the three principal European stakeholders; the actions of the UN Secretary-General and Secretariat; whether, how and how quickly Iran reacts; and, of course, the outcome of the U.S. presidential election. As the vote on the U.S. arms embargo resolution clearly suggests, the vast majority of Council members want to preserve the JCPOA and object to Washington’s stratagem.
There is no similarly clear-cut way for them to dispatch the likely U.S. snapback manoeuvre. But there is an effective way nonetheless: to greet the Trump administration’s claim that sanctions have been reimposed with a collective shrug, making plain that they dispute the move’s legitimacy and that they will neither recognise new sanctions nor give them any effect. At that point, the JCPOA can only suffer fatal damage if Iran reacts by exiting it or retaliating by withdrawing from the nuclear Non-Proliferation Treaty. It is surprising, perhaps, that the JCPOA has held on until now, absorbing one blow after another. If the deal’s remaining participants act wisely, it could still live to fight another day.
New York/Washington/Brussels, 19 August 2020
I. Introduction
The Joint Comprehensive Plan of Action (JCPOA) was concluded on 14 July 2015 by the Islamic Republic of Iran and the five permanent members of the UN Security Council as well as Germany (the so-called P5+1). In this lengthy agreement, the culmination of years of fraught international negotiations over Iran’s nuclear program, Iran undertook to limit its nuclear activities, including enrichment of uranium, and to accept continuous UN inspections of its nuclear facilities in exchange for relief from UN, U.S. and European Union (EU) sanctions. Donald Trump repeatedly excoriated the deal during his presidential campaign and pledged to withdraw the U.S. from it if elected. In May 2018, Trump followed through on his promise. The other members of the P5+1 (now, minus the U.S., known as the P4+1) stuck with the accord, as did Iran, albeit under increasing duress from renewed and tightened U.S. sanctions, including secondary sanctions that penalise the Islamic Republic’s trade partners.
Though it survived the U.S. withdrawal, the JCPOA has steadily weakened, to the point that its long-term prospects are tenuous. Anxious to save the deal, the “E3” of France, Germany and the UK promised to find ways of preserving trade in the face of reinforced U.S. sanctions, thereby extending to Iran some of the economic benefits it would have reaped had the JCPOA proceeded as prescribed. To this end, in 2019, they set up a special purpose vehicle called the Instrument for Support of Trade Exchanges (INSTEX). Thus far, however, the fruits of INSTEX have been slow to appear. Iran in turn took a series of steps reinvigorating its nuclear program that, while incremental and measured, violated its obligations under the JCPOA.
” Though it survived the U.S. withdrawal, the JCPOA has steadily weakened, to the point that its long-term prospects are tenuous. “
The Trump administration, for its part, has hardly been coy about its objectives. It has sought, via the “maximum pressure” of sanctions and other measures, either to strong-arm Iran into a new, significantly more stringent nuclear deal or to shred what remains of the existing one, so as to realign world powers against an Iran that presumably would ramp up its nuclear program. Finding itself foiled in the first objective, the White House swung behind efforts to achieve the second.
The latest of these efforts took place in early August, when the UN Security Council took up the issue of arms restrictions imposed on Iran beginning in 2007. By the terms of the Security Council’s endorsement of the JCPOA, these restrictions are to be lifted on 18 October 2020. The U.S. sought to extend them through a new draft resolution, which failed. It now intends to resort to a mechanism allowing JCPOA participants to “snap back” all pre-JCPOA UN sanctions unilaterally, thereby – if successful – all but ensuring the deal’s collapse. In addition to eliminating the sunset on arms restrictions, snapback would restore other measures, such as a ban, which Resolution 2231 recast as a call on Iran that itself would lapse in 2023, with respect to “ballistic missiles capable of delivering nuclear weapons”. Also restored would be the Council’s injunction against uranium enrichment and international scrutiny of Iran’s shipping and banking activities. Additionally, Iran would once again be classed as a threat to international security under Chapter VII of the UN Charter, a characterisation that Tehran profoundly resents.
Crisis Group closely tracked the negotiations leading up to the JCPOA. Since the deal was struck, Crisis Group has likewise monitored its implementation in detail, along with the U.S., Iranian, Middle Eastern and global politics swirling around it.
This report builds on that body of work, examining the debate surrounding UN arms restrictions and the U.S. snapback effort that now seems imminent. It is based on more than 40 interviews conducted with U.S., European, Russian, Chinese, Iranian and UN officials, as well as with independent experts, since late 2019.
II. The Incredible Shrinking Nuclear Deal
The debate about UN arms restrictions and snapback has taken place against the backdrop of wider tensions around the JCPOA. The nuclear deal has been under steadily growing strain since the U.S. exited the agreement in 2018 and embarked on a “maximum pressure” campaign against the Islamic Republic. By reinstating pre-JCPOA sanctions and expanding their scope, notably with respect to Iranian oil exports, the Trump administration erased much if not all of the economic relief Iran was to enjoy in return for acceding to constraints on its nuclear program.
In May 2019, one year after the U.S. withdrew from the deal and, in Tehran’s view, the remaining parties failed to deliver on the economic dividends it had expected to make up for unilateral U.S. sanctions, Iran began incrementally breaching its nuclear commitments. It broke the 300kg cap on low-enriched uranium and the size of its heavy water stockpile; raised enrichment levels from the deal’s 3.67 per cent ceiling to 4.5 per cent; stepped up research and development; resumed enrichment at the Fordow facility; and exceeded the pact’s limits on the number of centrifuges it can spin.
Separately, its relations with the International Atomic Energy Agency (IAEA) grew more strained as Tehran denied inspectors access to two sites where the agency seeks clarification on “possible undeclared and nuclear-related activities”.
On 14 January 2020, the E3 responded to Iran’s breaches by triggering the agreement’s Dispute Resolution Mechanism (DRM), which allows any one of the JCPOA’s participants to raise what it considers non-performance by another. The E3 stated, “We do this in good faith with the overarching objecting of preserving the JCPOA”.
Iran likewise invoked the mechanism on 2 July, citing in particular “concerns regarding implementation issues” on the E3’s part.
The duelling claims are moving slowly, however, as the European Union’s High Representative, Josep Borrell – who acts as coordinator of the JCPOA’s Joint Commission, where the parties convene for discussions – announced that the COVID-19 pandemic had ruled out an in-person session for the time being. In effect, Borrell extended the timeline for the dispute resolution mechanism process.
Although in theory this process can lead back to the Security Council and set the stage for restoring sanctions and terminating the deal, both the E3 and Iran have underscored their desire to ensure the JCPOA’s survival.
” The nuclear deal has been under steadily growing strain since the U.S. exited the agreement in 2018 and embarked on a “maximum pressure” campaign against the Islamic Republic. “
The moribund JCPOA now faces a new crisis, the purported reason for which is the 18 October 2020 expiration of the UN’s arms restrictions upon Iran. In Resolution 1747 (2007), the Security Council, which took up the Iran nuclear dossier in 2006 and in December that year imposed nuclear and ballistic missile-related sanctions designations, agreed that “Iran shall not supply, sell of transfer … any arms or related materiel” and urged governments “to exercise vigilance and restraint” in weapons exports to the Islamic Republic.
These restrictions were tightened by Resolution 1929 (2010), which, on the basis of Iran’s nuclear activities, directed “that all states shall prevent the direct or indirect supply, sale or transfer to Iran … of any battle tanks, armoured combat vehicles, large calibre artillery systems, combat aircraft, attack helicopters, warships, missiles or missile systems as defined for the purpose of the United Nations Register of Conventional Arms, or related materiel”.
When the JCPOA was negotiated, Iran, backed by Russia and China, argued that insofar as the arms restrictions were imposed in response to the nuclear crisis, they should be lifted once that crisis had been dealt with – in other words, immediately. The U.S. and its European partners objected, seeking to preserve those prohibitions in the long term as a response to what they see as Iran’s disruptive Middle East policies and for the sake of stability. The timetable for lifting those restrictions – as well as those related to Iran’s ballistic missiles program – proved among the most contentious issues in the talks. A compromise solution came only in the final days, as part of the overall package.
That solution, enshrined in UN Security Council Resolution 2231, which endorsed the JCPOA and passed unanimously on 20 July 2015, retained restrictions on arms imports and exports for a period of five years (and eight years for ballistic missile parts) from the deal’s 18 October 2015 adoption day. The resolution also stipulated that travel bans for designated Iranian officials would expire after five years.
III. Key Players’ Positions and Perspectives
A. The U.S.
The U.S. approach to the expiration of the UN Security Council’s arms restrictions on Iran has centred on two scenarios: extending the restrictions through a new UN Security Council resolution or, failing that, asserting its right as a Resolution 2231 participant to snap back past Council sanctions on Iran, which would have the same effect, while also reimposing other sanctions imposed by the Council between 2006 and 2010. Either option could in theory have delivered a fatal blow to the JCPOA, the former because it would have constituted in Iran’s eyes a blatant violation of the accord and a non-consensual change in its terms, and the latter because it would, in effect, kill the deal. As President Trump’s first term comes to a close, and with growing uncertainty about whether he will serve a second, his administration’s sense of urgency in achieving that barely concealed objective has only become more apparent.
U.S. officials, led by Secretary of State Michael Pompeo and (outgoing) Special Representative Brian Hook, have for months flagged the arms restrictions expiration as a concern, with Pompeo raising the issue at the UN Security Council as early as 2018.
The U.S. contends that Iran will go on a weapons buying spree and also be unshackled as “a rogue weapons dealer, supplying arms to fuel conflicts from Venezuela to Syria to the far reaches of Afghanistan”. Officials argue that Iran’s actions in the Middle East underscore the need to maintain restrictions on its ability to supply arms to its allies and proxies, and on purchasing arms for itself. They point in particular to a June 2019 attack on two oil tankers in the Persian Gulf that many blame on Tehran; Iran’s widely suspected involvement in carrying out the September 2019 attack on Aramco’s oil facilities in Saudi Arabia; and UN investigations of arms shipments of Iranian-made weapons, notably those reportedly headed to the Huthis in Yemen.
” The aim is to weaken Iran’s government and pressure it into a new, more stringent deal. “
The U.S. claims that lifting the arms restrictions despite this behaviour would embolden Iran to more freely supply weapons to its allies in Iraq, Lebanon, Syria and Yemen, handing Iran “a sword of Damocles over the economic stability of the Middle East”.
U.S. officials told Crisis Group that enabling Iran to resume arms transfers would be a “huge problem. But it’s not just our problem. … It would be a major shift in regional security dynamics”. They further argue that in the absence of such restrictions, Tehran would bolster its arsenal through purchases of, inter alia, fighter jets from China and Russia. Israel and Saudi Arabia, both key U.S. regional allies, have supported extending the embargo, as has the Gulf Cooperation Council.
But prolonging the arms restrictions should be understood as part of a U.S. strategy of denying Tehran any benefit from the JCPOA, in effect scotching the pact. The aim is to weaken Iran’s government and pressure it into a new, more stringent deal. U.S. officials have made it clear that they intend to use Resolution 2231’s provisions to snap back all UN sanctions on Iran, if necessary, to maintain arms restrictions on Tehran.
Indeed, snapback appears less a U.S. fallback solution to the failure of its extension resolution than its primary objective: even if reimposition of sanctions would not bury the deal – a future U.S. administration could reverse course – it almost certainly would make U.S. re-entry into the JCPOA harder, requiring a U.S. executive decision as well as the other Council members’ assent to a new resolution. Rather than seeking a (difficult) compromise on the arms restrictions, the U.S. insisted on its open-ended extension with certain knowledge that Russian and Chinese vetoes would ensue. That, as a European diplomat told Crisis Group, was a dead giveaway of Washington’s ultimate goal.
The diplomat would seem to have been right. After a U.S.-sponsored draft resolution lengthening the arms embargo on Iran won no support from other members in late June, Washington put forward a shorter text in early August stripping away some of the first draft’s more far-reaching elements – criticising Iran’s regional activities and introducing stringent interdiction demands from member states. But the new draft retained the central U.S. call for an indefinite extension of arms restrictions, a clause unacceptable to all other JCPOA signatories, dooming it to the original’s fate.
A Council diplomat surmised that this approach was aimed at allowing the U.S. to argue that it had exhausted all avenues to extend the embargo at the Council and was left with no choice but to trigger snapback. If so, the Trump administration got its wish: on 14 August, the resolution failed, despite Washington’s energetic arm twisting, with only the Dominican Republic joining the U.S. in voting yes. On 15 August, President Trump made clear what seemed preordained: that the U.S. would seek to restore UN sanctions through snapback.
B. Russia
For Russian officials, Washington’s insistence on extending the arms restrictions was driven by its twin goals of unravelling the JCPOA and achieving a diplomatic success in the lead-up to the November presidential election.
As they saw it, the Trump administration’s various scenarios were intended to torpedo the deal no matter what: had Moscow supported the extension, Iran would have withdrawn from the JCPOA, precipitating its collapse. Moscow’s better option was to block Washington’s resolution, but it figured that the U.S. would then try to snap back sanctions, a move which – if successful – would produce the same outcome.
Russia’s response has been twofold. First, officials made clear that they would, if necessary, veto any effort to adopt a new UN Security Council resolution extending restrictions beyond October. Secondly, rejecting what they called U.S. attempts to “blackmail” the deal’s remaining participants with the threat of snapback, they signalled that they would not recognise reinstatement of past Security Council sanctions because the U.S., having withdrawn from the deal, lacks the legal standing to bring these sanctions back.
As a Russian diplomat told Crisis Group, “You cannot withdraw from a treaty and then try to dissolve it. They are trying to game the resolution language”.
” Russian officials previously had told Crisis Group that the goal should be to discuss terms Tehran might accept in exchange for extending the restrictions. “
Russian diplomats floated potential compromise solutions, albeit without much conviction. For example, as recently as 14 August, Russian President Vladimir Putin suggested taking the issue away from the Security Council and convening the JCPOA’s original signatories to find an acceptable solution – a proposal the U.S. swiftly turned down.
Russian officials previously had told Crisis Group that the goal should be to discuss terms Tehran might accept in exchange for extending the restrictions; these could entail, for example, allowing Iran to resume some oil sales or shortening the duration of some nuclear constraints.
Yet, as Moscow surely knew, neither of these options would have been acceptable to Washington – the former because it would relieve pressure on Iran when maximising it remains the U.S. goal; the latter because a salient Trump administration complaint is that the existing timetables are far too short already.
Although some Europeans had banked on the threat of U.S. snapback to press Russia to compromise further on the arms restrictions, the gambit almost certainly was ill considered.
Moscow wants to salvage the JCPOA, but it might not look with disfavour at the prospect of a Security Council clash over whether the U.S. can unilaterally reimpose sanctions. As other European officials point out, such a scenario would fuel additional tensions between Washington and its trans-Atlantic allies, further undercut U.S. credibility and throw the integrity of the entire sanctions regime into question, all without necessarily dealing the JCPOA a fatal blow for reasons described below.
C. China
China’s positions largely mirror Russia’s. It characterises the U.S. withdrawal from the JCPOA as the “original sin” and the starting point for all discussions on non-compliance with the deal’s terms. Beijing faults Washington for imposing unilateral sanctions on Iran and asserts that the U.S. has “no right to demand that the Security Council invoke the snapback provision” given its exit from the deal.
China has called on other member states to jointly oppose the U.S. and urge it to return to compliance with the JCPOA.
Privately, some Chinese officials acknowledge that the U.S. may be in a position to prevail at the Security Council owing to the unprecedented provisions outlined in Resolution 2231. Even so, they view the ultimate decision as political rather than legal: they argue that other Council members should refuse to recognise the reimposition of sanctions measures on Iran following a U.S.-initiated snapback.
Like their Russian counterparts, Chinese officials express openness to dialogue outside the Council.
But China takes a more acerbic tone than Russia regarding efforts by European members to carve out a mutually acceptable compromise, sharply criticising the E3 for favouring outcomes tilted toward Washington insofar as they are predicated on increasing pressure on Tehran. Chinese diplomats also dismiss suggestions floated by some Europeans about entering into voluntary commitments to forgo arms sales to Iran and instead assert Beijing’s right to pursue bilateral security cooperation arrangements with Tehran.
D. The E3
The E3 have attempted to strike a balance between echoing Washington’s concerns on Iran’s arms transfers, on one hand, while simultaneously trying to safeguard the JCPOA, prevent snapback and avert severe damage to the Security Council’s credibility, on the other.
This task has proved impossible, given the scope of U.S. demands and Russian as well as Chinese resistance to any move that would extend the restrictions without a commensurate inducement for Iran.
European diplomats regularly express concerns about Tehran’s regional activities and signal support for maintaining at least some restrictions for some time. As a result, as an E3 diplomat put it, they have been searching for “a constructive and creative solution that acknowledges U.S. concerns on [the] arms embargo and Iran’s destabilising activity in the region” – including, for instance, retaining restrictions on exports from Iran for some time while permitting some imports.
But they do not believe that achieving these objectives is worth courting the kind of nuclear crisis a U.S. snapback would provoke, especially given other means of checking Iran’s arms exports and imports.
” European diplomats regularly express concerns about Tehran’s regional activities and support maintaining some restrictions. “
European belief in the possibility of compromise with Washington, weak to begin with, eroded over time. Privately, European diplomats questioned U.S. intentions – “Whether they’re serious about [their arms embargo] draft resolution or if their ultimate goal is to get rid of the JCPOA”.
Such doubts discouraged the E3 from presenting their own proposals, as they were concerned that these could either result in additional U.S. demands or be disregarded en route to snapback (reprising the E3-U.S. negotiations that preceded the Trump administration’s exit from the deal). Washington’s apparent lack of interest in compromise fuels the doubts. So, too, does its singular focus on sanctions with only limited implications for Iranian arms transfers. Iran was not a major importer of conventional weapons even prior to the UN restrictions. It is unlikely to make substantial future weapons acquisitions due to high costs and the dire state of its economy. The EU embargo remains in place until 2023, and the U.S. one indefinitely. Lastly, UN restrictions do not even cover surface-to-air missiles, perhaps the item of greatest concern.
Two arguments likewise can offset fear that lifting the UN restrictions will drive an increase in Iranian weapons transfers to allied non-state actors: first, separate Security Council resolutions would remain in effect that prohibit arms exports to Iranian non-state allies, including the Huthis in Yemen and Hizbollah in Lebanon.
Secondly, as illustrated by the Secretary-General’s 2231 reports and as repeatedly stressed by U.S. officials, such Iranian transfers have continued notwithstanding those sanctions as well as those targeting Iran.
Even as European officials believe that Washington is overemphasising the impact of a decision to lift restrictions on conventional arms transfers, they have been struck by how little the U.S. seems to worry about the likelihood that the current path might induce Iran to accelerate its nuclear program. As one senior E3 diplomat put it:
U.S. officials don’t seem to care at all if Iran no longer abides by nuclear restrictions. We tell them that if you get snapback, it will be worth nothing because Russia and China will ignore it, so you will end up with weapons sales as well as Iranian nuclear steps. Their response is: “That’s a hypothetical and we don’t deal in hypotheticals”.E. Iran
For Tehran, lifting the arms restrictions is an inherent component of the nuclear deal and one of its anticipated benefits, hailed by President Hassan Rouhani as “a major political, security and defence goal”.
They argue that “any attempt to change or amend the agreed timetable is … tantamount to undermining Resolution 2231 in its entirety”. Iranian officials thus describe U.S. efforts to extend the arms embargo as part of a campaign to erase any dividend Tehran might receive from the JCPOA: Washington went after the economic returns by imposing unilateral sanctions; nuclear benefits by revoking waivers permitting international civil nuclear cooperation projects; and now this.
Iran has been circumspect about how it would react to either a resolution extending the embargo or a restoration of all UN sanctions. When asked, an Iranian official said the Trump administration was seeking to provoke the Islamic Republic into responding in a manner that would lead the E3 to side with Washington against Tehran; he added that, until now, his country had carefully calibrated its reactions to U.S. violations so as to preserve the JCPOA and its ties with Europe. He pointed out that Iran, weighing the prospect of a change of administration in the U.S., would try not to take steps that jeopardised the possibility of the U.S. rejoining the deal, as the Democratic candidate Joe Biden has vowed to do.
” Iran has been circumspect about how it would react to either a resolution extend-ing the embargo or a restoration of all UN sanctions. “
Still, he was quick to add that Tehran could not remain passive and would have to respond strongly, even to a U.S. snapback that was not recognised by others and had little effect.
One possibility that has been floated by Iranian and other analysts would be for Iran to formally notify the IAEA of its intention to withdraw from the Non-Proliferation Treaty (NPT) – a measure that, while consequential, would not take effect for 90 days, giving both Washington and Tehran the opportunity to walk back their respective steps should Biden become president in January 2021.
IV. A Procedural Minefield
Given the now negligible possibility of a last-minute compromise on the arms restrictions and U.S. pledges to trigger snapback, Security Council members have spent considerable time forecasting how the process could play out in New York. The Council will be in uncharted territory as the process envisaged in Resolution 2231 is unique. It was designed by JCPOA negotiators as a means of guaranteeing that, after the suspension of UN sanctions on Iran, China and Russia could not say no if the U.S. or its allies sought their reimposition.
Under the rules devised for the JCPOA, any single participant state can notify the Council of “significant non-performance of commitments under the JCPOA”.
Notification starts a 30-day period in which the Council can pass a new resolution continuing the termination of sanctions agreed to in Resolution 2231. If it does not, all sanctions come back into force at the end of the 30-day window. Since any permanent Security Council member can veto a resolution to continue sanctions relief, the mechanism in effect gave the U.S., along with France and the UK, the ability to unilaterally reimpose sanctions notwithstanding Russian or Chinese objections.
Resolution 2231 “underscores that Iran and the other JCPOA participants should strive to resolve the issue giving rise to the notification”.
By the same token, it “encourages” participants to “resolve any issues arising with respect to implementation of JCPOA commitments through the procedures specified in the JCPOA”, which include a very detailed dispute resolution mechanism.
For the U.S. to avail itself of this provision without first having made any such effort or taken any of the steps described in the JCPOA would, in itself, be controversial.
But the recent U.S. claim that it can trigger snapback despite having unilaterally withdrawn from the JCPOA – and despite then-National Security Advisor John Bolton saying the U.S. was “not using [the provisions of Resolution 2231] because we are out of the deal” – was bound to set the scene for an especially vehement row in New York.
” For those who want to save the JCPOA, the importance of invalidating a U.S. attempt to invoke snapback largely rests on the U.S. electoral calendar. “
This quarrel and how it plays out will turn on three questions. The first, and most important, is whether the U.S. still has standing to trigger snapback while outside the JCPOA. The second is whether other Council members could use procedural rules to block or delay the process leading to snapback. The third is whether JCPOA supporters can take steps to undermine the implementation of sanctions if Washington claims snapback has occurred, either by obstructing UN sanctions oversight mechanisms or persuading other states to ignore the U.S. Looming over all three questions is the larger issue of whether any of this can happen without seriously harming the Security Council’s reputation and ability to agree on and enforce its decisions.
Answers to the first two questions are murky. The UN rulebook for resolving such controversies is less definitive than many outsiders assume, and there are few useful precedents. At the end of the day, there is a good chance that the U.S. will claim to have triggered the reimposition of sanctions while most other Council members will deem the entire process illegitimate and deny that sanctions are back in force. In contrast, most knowledgeable observers concur that there are relatively straightforward ways for snapback opponents to complicate the reinstallation of UN sanctions, notably the committee overseeing their implementation.
For those who want to save the JCPOA, the importance of invalidating a U.S. attempt to invoke snapback or, at a minimum, postponing its impact largely rests on the U.S. electoral calendar. The reasoning is straightforward: if Trump is re-elected, the JCPOA will be finished no matter what; conversely, should Biden win in November and assume office in January, he is expected to carry out his commitment to resume compliance with the nuclear deal if Iran does so as well. If the deal is still salvageable at that point – if, in other words, the parties have avoided steps from which they cannot retreat – then the new administration could undo its predecessor’s measures, including at the Security Council. While it would be foolhardy for anyone to predict the outcome of U.S. polls with three months of an entirely unpredictable campaign to go, growing prospects of a Biden victory could embolden Council members eager to preserve the nuclear deal to stand up to the U.S.
A. The Question of Standing
The clearest-cut way to stymie a U.S. snapback push would be to argue that the U.S. forfeited its standing by exiting the deal. The basic question is whether the U.S. is still a “JCPOA participant State” for purposes of Resolution 2231, and so entitled to notify the Security Council of “significant non-performance” by Iran. In averring that it is, the Trump administration is resorting to a tortured reading of the resolution and contradicting its own prior statements. It relies on a “plain language” reading of Resolution 2231, which, in Article 10, lists “JCPOA participants” as the P5+1, the EU and Iran without reference to whether and how they could lose this status. The U.S. thus asserts that it remains a participant state for purposes of Resolution 2231, even though it is no longer a participant for purposes of the JCPOA.
It follows, U.S. officials contend, that Washington retains the prerogatives of Resolution 2231 participants, in particular the right to invoke snapback.
Critics of this U.S. claim – who include, not surprisingly, Iran, China and Russia, but also some European governments, the EU high representative and even John Bolton, who was U.S. national security advisor at the time of the withdrawal – have flatly rejected the view that the U.S. is still a JCPOA participant state, whether for purposes of the nuclear deal or of Resolution 2231.
Russia points to a 1971 International Court of Justice ruling holding that countries that fail to uphold their commitments under international agreements lose the rights associated with them. Even officials from European nations that have not taken an unambiguous public position argue privately that any fair reading of Resolution 2231 should take account of its history and its drafters’ intent. In that light, they say, it simply strains credulity for a state to withdraw from the nuclear deal, violate its provisions and then turn around and claim the ability to invoke it against an actual participant.
Even a textual interpretation does not fully support the U.S. view, according to several European officials: Paragraph 10 of Resolution 2231, which identifies the “JCPOA participants”, also calls on them to “resolve any issues arising with respect to implementation of JCPOA commitments through the procedures specified in the JCPOA” – procedures of which the U.S. could not avail itself due to its withdrawal.
Faced with these competing legal positions, one might imagine that the UN could serve as the arbiter of last resort. Yet the UN lacks a designated person or institution with clear authority to adjudicate whether the U.S. has standing or not. In theory, the Security Council could request the opinion of Secretary-General António Guterres, the UN Office for Legal Affairs (OLA) or the International Court of Justice (ICJ). But the U.S. in all likelihood could block the Council from issuing a formal request from any of these sources, either in the format of a letter by the Council president or a resolution.
Individual states also could ask OLA or the ICJ for their views. Still, regardless of the request’s origin, it is unlikely to receive an unambiguous response.
” Given the absence of a neutral UN arbiter, Security Council members tend to agree that they will have to address the question of whether the U.S. is qualified to trigger snapback less as a legal than as a political matter. “
There is no precedent for either the Secretary-General or OLA to offer a decisive position on a political dispute of this magnitude among the Council’s permanent five members, or P5.
OLA members have made plain that they would prefer not to be asked. Should Guterres or OLA be compelled to weigh in, they probably would respond that the authority to interpret Resolution 2231 resides primarily with the Council itself. There are precedents for the ICJ interpreting a Security Council resolution at the Council’s request, but they suggest Council members must first pass a resolution endorsing the request, which the U.S. would likely veto in this instance. In any event, the Court tends to move slowly, so even if some JCPOA participants individually asked for its views, it could take the best part of a year for it to issue an advisory opinion, meaning that it would have little political impact on a snapback dispute.
Given the absence of a neutral UN arbiter, Security Council members tend to agree that they will have to address the question of whether the U.S. is qualified to trigger snapback less as a legal than as a political matter. Again, there is no straightforward vehicle for Council members to do so. In theory, China or Russia could table a stand-alone resolution stating that the U.S. no longer qualifies as a JCPOA participant, but the U.S. would nix it; by the same token, a U.S. resolution reaffirming that it is still a participant state would be subject to its rivals’ vetoes.
Some diplomats speculate that China or Russia might choose to table a procedural resolution dismissing the U.S. claim, on the theory that the UN Charter provides for no right to veto such motions. This argument would be difficult to make based on Council precedent; more to the point, the U.S. could call for a preliminary vote to decide the issue’s status.
In practice, the Council has determined that the question as to whether or not a proposal is procedural is itself a substantive question, and therefore subject to veto. Hence the U.S. can veto a proposal to treat the question of its standing as procedural and thereby (i) force the Council to treat the subject of its standing as a substantive issue and then (ii) block any resolution challenging it. This process, which was fairly common in the Council’s early years, is known as the “double veto” (as a P5 state can veto both a proposal to consider a resolution procedural and then the resolution itself) and snapback advocates see it as a U.S. tool for addressing procedural challenges in forthcoming debates.
Nonetheless, questions over UN procedure will bedevil the snapback process.
B. Procedural Manoeuvres
Resolution 2231 sets out a clear 30-day timeline for initiating snapback after the Security Council receives notification of non-performance; it was devised to be impervious to procedural objections (although its authors did not contemplate that a party would trigger it after withdrawing from the deal). Diplomats and UN officials have examined the issue in depth for months, but they have been unable to find a sure-fire procedural obstacle to snapback.
Still, those opposed to the U.S. manoeuvre may seek to complicate the process and challenge its validity.
The Security Council president – a position that rotates monthly among members – has an important role to play. The president typically oversees the order of business, the conduct of votes and communications between member states and the Council. New York-based diplomats note that the U.S. moved slowly on its arms embargo resolution in June and July, when France and Germany held the presidency, perhaps expecting the E3 members to throw up procedural hurdles. Indonesia took up the presidency in August and will now oversee initial snapback discussions. Niger is to follow in September and Russia in October.
A Council president opposed to the U.S. standing claim or sensitive to the objections of most Council members could seek to delay triggering of the process by refusing to transmit its “notification of significant non-performance” to other members. Hence, Council members – and notably some or all of the P4+1 – might want to send their own counter-letter to the Council president, asserting their disagreement with the U.S. interpretation, highlighting the Trump administration’s lack of good-faith efforts to resolve the issue diplomatically and generally discounting the validity of a U.S.-initiated process.
If the president simply ignored the U.S. notification, Washington would argue that this breached rules and conventions governing states’ communication with the Council; the longest a Council president has delayed acting on a communication from a state in recent years was a mere eleven working days.
The U.S. also could get around this obstacle by asking the Secretary-General to pass on the message, which he must do under Council rules. Nonetheless, the president could assess on the basis of consultations that the majority of the Council does not recognise the U.S. notification’s legitimacy and thus conclude that there is no basis for the snapback process to proceed.
Such an opinion would not be dispositive, however, and the U.S. could well state that it will carry on regardless. Still, by voicing a negative opinion, the president would cast further doubt on the validity of the process as a whole.
Resolution 2231 states that the Council has 30 days to table a resolution extending the current sanctions terminations after receiving a notification of non-compliance. Although any Council member could take this step, the resolution states that if no party has done so after ten days, “the president of the Security Council shall submit such a draft resolution and put it to a vote within 30 days of the notification”. The U.S. could then veto the resolution, thus triggering snapback. In other words, even if no other Council member tables a resolution – and even if the president refuses to submit a text – the U.S. could say it has the right to propose its own draft and then veto it.
” The bottom line is that procedural debates would play out in the same way as the debate over whether the U.S. has standing to initiate snapback in the first place. “
That would not necessarily be the end of the story. Council members could keep trying to impede a vote – and a subsequent U.S. veto – through procedural means. They could, for example, demand a procedural vote on whether to put the U.S. notification on the Council agenda.
(While Resolution 2231 states firmly that the Council “shall” act on a notification, Council members who reject the U.S. claim to standing will presumably feel no obligation to respect this.) The U.S. and eight other members would need to vote in favour of proceeding, and the U.S. likely would struggle to secure this level of support given the Council’s unenthusiastic response to the U.S. effort to renew the arms embargo. A blocking minority of states might thus be able to prevent the body from holding a vote on whether to continue sanctions terminations. Some Council members may interpret Resolution 2231 as stating that, in the absence of a vote, snapback is incomplete. But this reading of the text would be strained, and the U.S. is bound to reject it.
The fact is that, procedural guerrilla warfare notwithstanding, Resolution 2231 was written so as to give the U.S. (in this instance) powerful workarounds. As noted, Paragraph 12 stipulates that if no resolution extending the termination of sanctions has been passed after 30 days, sanctions will be restored, regardless of whether the Council has voted. In other words, Washington could merely sit out other members’ blocking tactics and declare victory after 30 days.
The bottom line is that procedural debates would play out in the same way as the debate over whether the U.S. has standing to initiate snapback in the first place – a fruitless exchange in which Washington will assert that it has standing, and all procedural manoeuvres are irrelevant, while others will maintain that it lacks standing and the procedural obstacles are effective. In the end, the U.S. will say snapback has been triggered, a claim that most other Council members will simply dismiss.
C. Potential Obstacles to Security Council Sanctions Implementation
Any initial argument over snapback would be a prelude to a further, and likely equally polarising and confusing debate over whether governments should implement the UN sanctions. Both the U.S. and its critics can be expected to demarche third-party states and present their argument about what happened in New York. Given unclear and conflicting legal readings, governments will face the difficult political decision about whom to follow, with the U.S. potentially threatening secondary sanctions and other penalties in the event of non-implementation.
The EU, too, will face a choice; typically, it swiftly incorporates UN sanctions into its own laws, but in this case the most relevant EU member states are likely to say there is no reason to do so.
The dispute between the U.S. and its critics will persist within the UN. UN sanctions regimes are administered by committees typically chaired by one of the ten elected members and operating by consensus. In turn, panels monitoring sanctions implementation by member states and other entities report to these committees.
For example, the pre-JCPOA Security Council sanctions regime on Iran was overseen by the 1737 Iran Sanctions Committee established by Resolution 1737; it was tasked with monitoring implementation of sanctions imposed by the Council between 2006 and 2010.
This committee – along with the panel of experts tracking sanctions infringements mandated by Resolution 1929 in 2010 – was disbanded following adoption of Resolution 2231. It was replaced by a new monitoring structure overseen by one council member as a “facilitator” (currently Belgium), supported by UN Secretariat officials reporting on implementation of remaining sanctions.
” The dispute between the U.S. and its critics will persist within the UN. “
In theory, snapback would mean the end of these arrangements and the reestablishment of a full Iran sanctions committee together with the appointment of a new panel of experts to support it. Were they to impede formation of a new committee, Council members could thwart the setting-up of mechanisms that play an important role in ensuring that countries enforce sanctions. It is far from implausible that they might do so in this case. Russia and China, among others, could obstruct restoration of the committee by refusing to recognise the reinstatement of Resolution 1737.
Any number of dissenting Council members could further hinder the committee’s formation by declining to participate in consultations among members through which the committee chairperson is appointed.
Secretary-General Guterres would need to decide whether to appoint a new panel of experts to monitor the sanctions restoration envisaged under snapback – although the panel is meant to assist a sanctions committee, it is an independent entity under the Secretary-General’s auspices. Doing so would offer the U.S. a symbolic win, as it would suggest that the UN Secretariat and its lawyers grant the U.S. case prima facie credibility, although Council members could block the selection of individual experts. (Adding to the potential confusion, if Guterres accepts that snapback is real, he should also dismantle the alternative monitoring mechanisms created under Resolution 2231.) UN General Assembly members also could step in: some have said they would hold up funds to appoint a new panel of experts via the Assembly’s Fifth Committee, which oversees the UN budget.
In theory, none of these disputes would affect new sanctions’ validity (the committees and panels are not obligatory), but the arguments might affect how UN members perceive the U.S. position’s legitimacy and whether they are prepared to enforce sanctions.
The broader implications of such multiple potential procedural disputes should not be underestimated. The prospect of Security Council members at odds over the ability to reintroduce a prior Council resolution would further undermine the credibility of a body already suffering from serial failure to address pressing conflicts. Disputes over the reestablishment of sanctions mechanisms to deal with Iran could spill over into discussions of other sanctions regimes, with Council members (many of whom dislike sanctions on principle) engaging in more procedural warfare over the committees and panels overseeing them.
One diplomat predicted that the “damage to [the] UN will be long-term”.
Yet while a hard-fought, thwarted snapback would harm the Security Council, it is worth considering the alternative – an uncontested U.S. snapback. Already, it is quite clear that a future attempt to include a similar snapback mechanism in a future deal (say, with North Korea) is virtually doomed to fail. But if other Council members fail to challenge Washington’s claim, many states might conclude that the apparent benefits to Iran of embedding the JCPOA in Resolution 2231 were illusory, and question why they should place any trust in such Council resolutions, now or in the future. Resolution 2231’s negotiators believed that by embedding the agreement in a UN resolution they could better guarantee its implementation. Should those assurances turn out to be hollow, the Council’s status as guarantor of complex international agreements would suffer, perhaps even more seriously than as a result of a disputed snapback process.
V. Options and Recommendations
The Trump administration’s predictable failure to extend the arms restrictions via a resolution, coming atop its unwillingness to seriously contemplate a viable compromise, further validates the view that its supposed fallback position – snapback – was always its preferred option. Under the circumstances, the priority for remaining JCPOA signatories – notably, the E3 – is to maintain a principled approach: rejecting efforts to unilaterally rewrite the deal; seeking to buy time in the short term; pressing Iran to eschew a harsh reaction in the medium term; and preserving the JCPOA in the long term.
There may have been a way to avoid this showdown. But for that, the U.S. would have had to back off elements of its “maximum pressure” policy, something it never seemed to entertain. Putin may well have had that in mind when he suggested a virtual meeting of the P5+1 and Iran; perhaps he was counting on the combination of Trump’s penchant for deal-making and Iran’s battered economy to push both toward a new understanding.
Such an understanding might have entailed a one-time, short-term – perhaps three-month – technical rollover of the arms restrictions, in exchange for which the P4+1 could have provided financial relief to Tehran, perhaps by boosting INSTEX or helping secure an emergency International Monetary Fund (IMF) loan Iran requested to deal with COVID-19.
For its part, Tehran could have provided the IAEA access to the two disputed locations. Such a compromise would have addressed immediate E3/U.S. concerns over the arms restrictions while defusing a Security Council showdown over snapback. By vowing that the U.S. would immediately initiate snapback, however, Trump seemingly gave Putin his response, nixing this possibility.
With a U.S. snapback effort on the immediate horizon, the best response for those countries that want to preserve the JCPOA may well be the simplest: to ignore the U.S. drive to restore terminated sanctions on Iran, dismissing it as an inconsequential non-event. Council members should convey their views on the matter to the Council president; if the majority of Council members assert that the U.S. lacks standing, the Council president should so notify the body. Under the circumstances, it would be difficult for him to oversee the snapback process as envisaged in Resolution 2231.
” The best response for those countries that want to preserve the JCPOA may well be the simplest: to ignore the U.S. drive to restore terminated sanctions on Iran. “
Secretary-General Guterres will need to tread carefully. In the absence of clear guidance from the Council on snapback’s status he might be wise to refrain from any step that appears to endorse either the U.S. case or opposing positions. The UN Secretariat should warn Council members that it cannot commence work on new sanctions procedures without instructions from the Council and the funding to go with them.
Some Council members may well be tempted to throw up procedural obstacles to snapback and delay the process to some extent, but it is unclear to what avail since the disagreement will persist. In some ways, engaging the U.S. in a procedural battle could lend its efforts a veneer of legitimacy. Rather than getting bogged down in procedural issues, opponents of snapback should simply, in the words of one European diplomat, greet the U.S. endeavour with a “collective shoulder shrug”.
Ignoring snapback at the Council does not mean ignoring its potential effects, of course. Consistent with their position that snapback has not occurred, Council members will need to take action, as described above, to hinder any effort to reconstitute a sanctions committee or panel of experts. That does not necessarily mean that snapback will be wholly without consequence: the U.S. is likely to strong-arm various states to enforce the sanctions and to punish them if they do not. But limiting any further damage to the JCPOA – and postponing it as much as possible – ought to be the main goal.
Salvaging the nuclear deal must also be an Iranian responsibility. If most Council members agree to disregard the U.S. effort, then Tehran should avoid overreacting to a formal U.S.-led snapback. It should focus less on what Washington proclaims rhetorically and more on what happens practically on the ground. If sanctions are not reimposed, or prove ineffective, it should bide its time, refrain from reacting by either exiting the JCPOA or withdrawing from the NPT, and await potential changes in the U.S. It should also urgently grant access requested by the IAEA to ensure that the crisis does not escalate. Iran may revel in U.S. isolation over the draft resolution, but it would be mistaken to interpret opposition to Washington’s approach as carte blanche for Tehran. Should it choose instead to respond strongly to the U.S. action, Tehran might force the E3’s hand and prompt them to react in kind, accelerating the deal’s unravelling and making it difficult to resurrect it regardless of the U.S. election result.
VI. Conclusion
Washington’s “maximum pressure” campaign has now been supplemented with a minimal diplomatic one – a futile effort to extend the UN’s arms restrictions followed by a disingenuous effort to reimpose all UN sanctions. Because the snapback procedures set out in the JCPOA and Resolution 2231 are airtight, the strictly legal outcome of a Security Council tug of war will be in doubt. But its political consequences ought not to be. By making clear their view that the U.S. lacks standing to trigger snapback, shrugging off its actions as meaningless and actively thwarting any step at the UN to revive the sanctions mechanisms, the rest of the Council – and in particular the P4 – can help sustain what is left of the nuclear deal. Iran, too, should avoid playing into U.S. hands by taking the Trump administration’s actions more seriously than they warrant.
The Trump administration has made no secret of its ultimate goal, which is to bury the JCPOA once and for all. At this stage, there is one smart way to respond to its political antics: ignore them.