Richard Goldberg

Foundation for Defence of Democracies, Aug. 26, 2020

The Un Security Council – the current debate relates to Resolution 2231, passed in 2015. 

The United States sent a letter to the UN Security Council last week alleging that Iran was in “significant non-performance” of its commitments under the 2015 nuclear deal, formally known as the Joint Comprehensive Plan of Action (JCPOA). This letter serves as the legal trigger for a mechanism known as “snapback,” which extends indefinitely the UN conventional arms embargo on Iran and resurrects all other UN sanctions on Iran that were either weakened or scheduled for early termination alongside the JCPOA.

In response to the letter, Russia, China, the United Kingdom, France, and Germany declared that the United States lacks standing to trigger the snapback mechanism, because it ceased its participation in the JCPOA in May 2018. The political motivations for opposing a U.S. snapback are apparent: Russia and China want to sell arms to Iran, while Europe fears abandoning the JCPOA despite its manifest and fatal flaws.

There are two pivotal questions to consider in this debate. First, does the United States actually have standing to trigger the snapback mechanism? Second, if there is a dispute, what is the proper way for the Security Council to adjudicate the issue?

“Snapback” means different things to different people. The JCPOA, a political agreement, established a lengthy process to adjudicate grievances, culminating with a potential snapback at the Security Council. United Nations Security Council Resolution (UNSCR) 2231 entailed a non-binding endorsement of the JCPOA but established an independent snapback mechanism. The two are related in as much as the JCPOA process eventually leads to the Security Council and the UNSCR encourages (but does not mandate) the use of the JCPOA dispute mechanism – but they remain legally separate tracks. Importantly, the Trump administration last week triggered the UNSCR’s snapback, not the JCPOA’s.

With that in mind, the heart of the legal question about American standing with regard to snapback surrounds Paragraph 10 of UNSCR 2231, which “[e]ncourages China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran (the ‘JCPOA participants’) to resolve any issues arising with respect to implementation of JCPOA commitments through the procedures specified in the JCPOA, and expresses its intention to address possible complaints by JCPOA participants about significant non-performance by another JCPOA participant.”

The subsequent paragraph decides that any “JCPOA participant State” can trigger the snapback of UN sanctions on Iran and establishes the process for doing that. UNSCR 2231 repeatedly uses the term “JCPOA participant” after its establishment in Paragraph 10 – twice in Paragraph 11, once in Paragraph 13, and once again in Paragraph 21.

The Trump administration’s interpretation of UNSCR 2231 is the most straightforward from a legal perspective, albeit more difficult to explain through a communications lens when reported out of context. Anyone who has ever read a legal document is familiar with a defined term: a long phrase followed by a shorter term in quotation marks and parentheses, used for ease of reference later in the document.

UNSCR 2231 includes the United States in the definition of “JCPOA participants” and provides no contingency for how that definition can ever change. In effect, it provides snapback rights to the original participants in the JCPOA, regardless of their subsequent actions. The United States may have ceased its participation in the JCPOA as a political agreement, but Washington has not wavered in its support for full enforcement of UNSCR 2231 even after May 2018. It does not matter whether the original negotiators of UNSCR 2231 intended to create ironclad snapback rights or simply did not consider the possibility of a U.S. withdrawal from the JCPOA. It is likely the former, since President Barack Obama and senior members of his administration repeatedly stressed the inviolability of snapback rights. “If at any time the United States believes Iran has failed to meet its commitments, no other state can block our ability to snap back those multilateral sanctions,” Obama insisted.

Larry Johnson, a former UN assistant secretary general for legal affairs, has challenged the Trump administration’s reading of UNSCR 2231. He argues that because the United States announced in May 2018 that it would no longer participate in the JCPOA, the case is closed – the United States has forfeited its status as a “JCPOA participant.” In his view, that is the “common sense” way to interpret UNSCR 2231.

Johnson’s argument may appeal to those unfamiliar with legal writing and the legal distinction between UNSCR 2231 and the JCPOA. But his legal reasoning does not stand up to scrutiny.

Johnson contends Paragraph 10 is merely “descriptive and exhortatory.” He further opines that because the paragraph is non-binding (that is, it opens with the word “encourages” rather than “decides”), no defined term within the paragraph can be binding either. Not so.

The use of parenthetical and quotation marks, such as in (“JCPOA participants”), immediately following a list of parties plainly establishes a defined term. The question any reasonable person must ask is this: Why bother establishing a defined term if the plain-language meaning of “JCPOA participant” would be obvious at any given moment?

Had the drafters simply used the term “JCPOA participant” without defining it, Johnson’s argument might make sense. The fact that the drafters went out of their way to avoid an evolving definition that could change as parties come and go from the JCPOA makes it hard to dispute the Trump administration’s legal argument.

As for the non-binding nature of the paragraph, the word “encourages” does not correspond to the defined term. Instead, it encourages the parties included in the defined term to use the JCPOA’s dispute resolution process before coming directly to the Security Council for snapback. As Johnson himself writes, “[T]he Council ‘encouraged’ those States to do something; it did not require them to do anything.” The non-binding nature of the paragraph contradicts Johnson’s claim that even if the United States had standing to trigger a snapback, it “should use the [JCPOA] Joint Commission approach before resorting to the snapback.”

Johnson also asserts the United States forfeited its snapback rights when it allegedly violated binding requirements of UNSCR 2231 by re-imposing U.S. sanctions on Iran in 2018. The Russian government has made a similar claim. Johnson might have a case if UNSCR 2231 mandated U.S. sanctions relief for Iran or otherwise mandated U.S. implementation of the JCPOA – but it does not. Paragraphs 1 and 2 of UNSCR 2231 “endorse” and “urge” full implementation of the JCPOA, but like “encourages” in Paragraph 10, these are non-binding paragraphs. Johnson’s allegation of “unclean hands” is quite obviously unfounded.

In seeking support for the JCPOA nuclear deal, then US President Barack Obama repeatedly stressed the inviolability of snapback rights.

No less important than the legal question of American standing is the appropriate procedure for settling a dispute if that standing is contested by other members of the Security Council.

Perhaps the most dangerous part of Johnson’s argument is his misrepresentation of Security Council precedent regarding the resolution of this debate. Johnson writes that the president of the Security Council – a rotating position currently held by Indonesia – ought to poll the other Council members, assert a lack of consensus, and ignore the formal U.S. complaint that would ordinarily trigger a snapback. Indeed, following Johnson’s publication, Indonesia did exactly as he suggested.

In fact, such conduct breaks from longstanding precedent governing the adjudication of disputes among the Security Council’s permanent members (of which Indonesia is not one). The onus should not be on the United States to prove its standing; it ought to be on a state that seeks to contest that standing.

Precedent would dictate that Russia or China must make a motion to block the Council from meeting on the issue of the U.S. complaint – or to offer a motion to rule the United States lacks standing to file it. Absent such a motion, the president of the Council should assume the U.S. complaint is valid – and the subsequent process mandated by UNSCR 2231 must proceed.

Russia and China do not favour the traditional manner of settling this dispute. Why? Because they know that if they offer a procedural motion to block the agenda, the United States can and will use its “double veto” power by contending such a motion is substantive rather than procedural.

What Johnson proposed – and what Indonesia has subsequently announced – is a blatant attempt to misrepresent an end-run around the permanent member veto as a sober application of precedent. The consequences of this development should not be understated. If the Council adopts this new approach, a non-permanent member state will be substantially weakening the veto power of the permanent five: a dangerous slippery slope about which I warned in a recent Foreign Policy article.

The United Kingdom and France still have a few more days to help avoid what could become the beginning of the end of the Security Council as we know it. London and Paris are heavily invested in the JCPOA, but even more so in the legitimacy of the Security Council as the foundation of multilateral diplomacy. Their complicity in undermining the Council’s precedents would both diminish their own powers as permanent members and demonstrate to many Americans that Washington should rethink the Security Council’s utility.

All this aside, one fact remains true: UNSCR 2231 Paragraph 12 states that a snapback occurs at midnight on the 30th day following a complaint unless the Council passes a resolution to stop it. The clock is ticking whether the Council schedules a vote on the U.S. complaint or not. The Trump administration will have a legal basis to assert snapback has occurred. Russia, China, and even Europe may dispute that outcome – but they may not be able to overcome U.S. Secretary of State Mike Pompeo’s promise to enforce the snapback using all available unilateral means.

Here in the United States, when the dust settles, 387 members of Congress – Democrats and Republicans – should recall the letter they sent Secretary Pompeo earlier this year urging him to extend the arms embargo on Iran. They should take satisfaction that their voice was heard – that the Trump administration acted on their behalf – and that with their support, the power of American sanctions can and will enforce this lawful snapback.

Richard Goldberg is a senior advisor at the Foundation for Defense of Democracies (FDD), where he also contributes to FDD’s Center on Military and Political Power (CMPP) and Center on Economic and Financial Power (CEFP). He previously served as National Security Council director for countering Iranian weapons of mass destruction.

If Biden, Then What, on Iran?

Behnam Ben Taleblu

Newsweek, Sept. 17, 2020

US Democratic party candidate for President Joe Biden has promised to “offer Tehran a credible path back to diplomacy”

“Hope springs eternal in the human breast,” wrote Alexander Pope in An Essay on Man. Such sentiment describes perfectly the lingering adherents of the 2015 Iran nuclear agreement known as the JCPOA. Indeed, two-plus years of American sanctions and Iranian nuclear violations have not convinced the deal’s defenders—chiefly in Europe—of the need to look past an accord that is dead in all but name. Earlier this month, those devotees gathered to stress the importance of “preserving” the JCPOA. Their hope? The election of Joe Biden, an upending of President Donald Trump’s Maximum Pressure policy against Tehran and the forging of a pathway back to the JCPOA.

Luckily for them, the Democratic candidate for president appears ready to deliver. Writing for CNN this Sunday, Biden promised to “offer Tehran a credible path back to diplomacy” and American re-engagement with the 2015 deal should Iran opt for “strict compliance.”

Biden’s latest writings on Iran reveal that the post-Cold War trend of American presidents doing the exact opposite of their predecessors on foreign policy, and seeking political dividends for doing so, would continue if the Democrat is elected.

Lest we forget, Bill Clinton’s liberal internationalism reversed George H.W. Bush’s one-term realism, and George W. Bush campaigned for a more “humble” foreign policy—later amended by 9/11, wars in Afghanistan and Iraq and the “freedom agenda.” In turn, Barack Obama’s skepticism of democracy promotion, withdrawal from Iraq and nuclear diplomacy with Iran were met with President Trump’s “America First” policy, as well as withdrawal from various multilateral agreements, be they related to arms control, trade, or the environment.

But if a new administration reverses course and attempts to claw back the JCPOA, the beneficiary would not be Biden, his foreign policy team, the Democratic Party, American foreign policy, or even the global non-proliferation regime. It would be Iran’s Supreme Leader Ayatollah Ali Khamenei and the Islamic Revolutionary Guard Corps protecting his regime. Setting aside the difficulty of verifying Iran’s compliance with the nuclear deal, even under President Barack Obama, Tehran’s JCPOA record was problematic, as was its overall lack of adherence to the UNSC Resolution codifying the accord.

A potential Biden administration might internalize these challenges while in office and perhaps set its sights lower, opting to merely arrest Iran’s nuclear growth and freeze American financial pressure in a phased approach akin to the interim Iran nuclear deal from 2013 known as the JPOA. Even this more modest proposal would be replete with hurdles, however, including Iranian domestic politics and continued nuclear and regional escalation.

While the Iranian component of what happens in the event of a Biden victory is one of the least discussed issues in international politics today, it is among the most consequential. As former secretary of defense James Mattis liked to say, “The enemy gets a vote.”

Thanks to presidential elections in 2021, the Islamic Republic is set to shift even further to the right. The upcoming political contest is set to mirror dynamics last seen in 2004-2005, when a hardline parliament built on mass disqualifications became the stepping stone for an ultra-hardline candidate—Mahmoud Ahmadinejad—to become president. Accordingly, this February’s parliamentary elections, which featured a hardline sweep, was likely a dress rehearsal for the upcoming presidential election. The next Iranian president may well choose to do exactly what Ahmadinejad did, and escalate the nuclear crisis.

What Biden might do in that scenario is unclear.

Although it is tempting to see this dilemma as the result of American pressure, it is actually a feature of Iran’s ever-narrowing political system and indicative of the country’s precarious domestic politics. Even though Iranian presidents do not make foreign policy, they can help shape it. An ultra-hardline president backed by a constellation of diplomacy–skeptics and an aging and increasingly distrustful supreme leader means Tehran is sure to drive a harder bargain, if it opts for diplomacy at all. Rejecting American overtures early and often while increasing nuclear output might be part of a strategy to force American accommodation, garner premature sanctions relief or simply extract a better deal.

Given the regime’s strategy of nuclear incrementalism, there is no reason to believe Tehran will tone down its regional escalation through material support for proxies (i.e., missile proliferation) just to please a new U.S. administration eager for diplomacy. The Islamic Republic has spent considerable blood and treasure on creating and entrenching what it calls “the Axis of Resistance“—a constellation of pro-Iran and anti-status quo actors—in the heart of the Middle East. These groups form a key component of Iranian security policy, exerting pressure on U.S. and allied interests in the region. If Washington reverts to its “myopic” Iran policy and prioritizes the nuclear issue at the expense of others, it will effectively lock in Tehran’s regional gains and signal irresolution to address other forms of bad behavior.

Worse, if Washington offers sanctions relief as part of a nuclear freeze-for-freeze, it is unclear what sort of leverage, absent the threat of kinetic action, the U.S. will have left to change Iranian regional behavior.

None of this means Iran will permanently eschew negotiations. The current withering of the Iranian economy—a result of the maximum pressure policy—means Tehran’s acceptance of negotiations is more a question of “when” than “if.” However, a rush to embrace diplomacy (read: relieve sanctions)—whether in hopes of spiting a political rival, avoiding pitfalls in Iranian domestic politics or escaping an escalation spiral—can lay the foundation for another American defeat at the negotiating table.

Diplomacy is most effective when backed by force. A potential Biden administration should internalize that Trump’s Iran sanctions are the most effective force for a new agreement. Accordingly, those sanctions should be left in place until Tehran understands that there is no way out, but through.

Behnam Ben Taleblu is a senior fellow at the Foundation for Defense of Democracies in Washington, D.C., where he focuses on Iranian political and security issues.