Friday, August 12, 2022

“Sanctions or no sanctions? That is the question…”

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By Guido Lanfranchi.

Washington says that a broad range of pre-2015 United Nations sanctions on Iran are now effective again. Iran and most UN Security Council members beg to disagree. Does that sound confusing? Well, it is.

On August 21st, 2020, US Secretary of State Mike Pompeo travelled to the United Nations headquarters to formalize a step that he had already been announcing for a few weeks: the United States would trigger the so-called “snapback” mechanism to reimpose UN sanctions on Iran. The move was met by a wave of opposition in the Security Council – not only from typical diplomatic adversaries of the US such as China and Russia, but also from some of its closest allies in Europe. What is all this diplomatic fuss about? To understand what is happening today, it is necessary to rewind the story to around five years ago.

It was July 2015 when, after over ten long years of tense and complicated negotiations, Iran and the world’s major powers found a solution to the dispute around Tehran’s nuclear program. The deal – formally known as the Joint Comprehensive Plan of Action (JCPOA) – revolved around a core compromise. On the one hand, Iran would pledge never to develop a nuclear weapon, also accepting a strict monitoring regime to be implemented by the International Atomic Energy Agency (IAEA). On the other hand, the international community would reciprocate by lifting a host of sanctions and restrictive measures that it had previously imposed on Tehran, thus paving the way for Iran’s full reintegration into the international community. 

Immediately after the JCPOA’s signature, the UN Security Council decided to endorse the deal by means of resolution 2231. Besides endorsing the JCPOA and encouraging its implementation, the Security Council had the difficult task of deciding how to handle potential issues of non-compliance that could not be addressed through the deal’s own dispute resolution mechanisms. Discussions among the members led to an original mechanism. According to the resolution, if a JCPOA participant state believed that another party was violating the deal’s provisions, this state could notify the Security Council and trigger the so-called “snapback” mechanism – a 30-day process at the end of which a number of sanctions lifted under resolution 2231 would be reinstated, unless the Council would decide otherwise. 

The snapback mechanism put a significant amount of power in the hands of the P5, the five powers holding veto rights in the Council. Indeed, each of these states could unilaterally reverse resolution 2231 and reimpose sanctions on Iran in two plain steps: first, by accusing Tehran of non-compliance and triggering the snapback; then, by simply vetoing any resolution that could block the snapback. Thirty days after the notification of non-compliance, pre-2015 UN sanctions on Iran would be effective again. As a signatory to the JCPOA holding veto power in the Security Council, the US unequivocally enjoyed this power to reverse resolution 2231. Yet, Washington’s decision to withdraw from the JCPOA in May 2018 has called this right into question – thus leading to the standoff that we can currently observe.

On the one hand, Washington claims that it still has the right to initiate the snapback under resolution 2231. The US argument – outlined by a legal brief published by the State Department – broadly goes as follows. The resolution’s Article 11 gives the right to initiate the snapback to any “JCPOA participant State” – a definition that, according to Article 10, includes the US. This definition – Washington argues – is “fixed in content and fixed over time”, thus allowing the US to trigger the snapback regardless of any development taking place after the adoption of the resolution. If the US has the right to trigger the snapback, therefore, pre-2015 UN sanctions on Iran are now back in force.

But does the US have the right to trigger the snapback mechanism in the first place? Thirteen out of fifteen members of the UN Security Council believe that Washington’s move is not legitimate under international law. Perhaps unsurprisingly, this position is also shared by Iran, whose diplomatic missions have been circulating a legal note signed by a number of international law experts who dispute the US interpretation of resolution 2231. According to this argument, the US forewent its status as JCPOA participant when it withdrew from the agreement in May 2018. As a result, Washington currently has no right to initiate the snapback, and the pre-2015 UN sanctions on Iran are not active at the moment. 

So, more than 30 days after Secretary Pompeo’s notification to the UN on August 21st, are the UN sanctions on Iran active again? As confusing as it might be, the answer seems to depend on whom we ask the question to. Looking around at the opinions expressed by countries and international law experts, Washington is far outnumbered by its critics. But if you, dear reader, are enough confused to be curious, please look at the two legal notes linked above to make up your mind. “Sanctions or no sanctions? That is the question…”

About the author:

Guido Lanfranchi

Guido Lanfranchi is an international affairs analyst based in The Hague/Paris.

He has studied at Leiden University and Sciences Po Paris, and he has interned with the Council of the European Union and the Clingendael Institute. His research focuses on the Middle East, Africa, and the EU.

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