MOSCOW (Pakistan Point News / Sputnik - 18th August, 2020) Apart from obviously having political consequences, the US move to trigger the so-called snapback mechanism to renew UN sanctions on Iran will likely lead to a dispute within the United Nations about how to properly interpret the provisions of the nuclear deal and whether, despite its withdrawal, Washington still paradoxically remains participant of the accord.
After failing to get the United Nations Security Council to pass a resolution aiming to indefinitely extend the arms UN embargo on Iran ahead of its expiration in October, US President Donald Trump announced that the United States plans to trigger the "snapback" mechanism that would reimpose all UN sanctions on Iran that had been previously lifted under the nuclear deal.
The snapback procedure is outlined in the United Nations Resolution 2231, which endorsed the Joint Comprehensive Plan of Action (JCPOA) as the nuclear deal is formally called. The resolution stipulates that if one of JCPOA participants find another one to be in significant non-performance of commitments under the agreement, the United Nations Security Council (UNSC) would have a vote on whether to continue with the suspension of the economic sanctions against Tehran. Thus, if the United States vetoes such a resolution all previous sanctions on Iran would be reinstated.
The United States announced the withdrawal from the deal on May 8, 2018. However, unlike most nuclear arms control agreements of the past, the JCPOA is not a formal treaty, but a legally non-binding accord between participant states and has no withdrawal clause. The resolution similarly has no provisions for the situation where one of participants unilaterally withdraws from the agreement.
A spokesperson for the EU foreign policy chief, Josep Borrell, has insisted that the US cannot be considered a JCPOA participant after announcing its unilateral withdrawal in 2018 and failing to participate in activities related to the agreement after that. Iranian Foreign Minister Mohammad Javad Zarif has similarly said that the US attempt to "snapback" UN sanctions against Iran was illegal.
Professor Stefan Talmon, director at the Institute of Public International Law at the University of Bonn, however, argues that there is no legal obstacle to the Trump administration triggering the "snapback" mechanism under the resolution.
"The snapback mechanism is part of the Security Council resolution and not part of the JCPOA itself. Under the resolution the snapback mechanism can be triggered by any 'JCPOA participant State.' In May 2018, the US ceased participation in the JCPOA but did not lose its status as a JCPOA participant State. JCPOA participant States are defined by the Security Council resolution itself and are thus independent of the JCPOA. The US did not renounce its status under the resolution. There is thus legally a difference between 'participating' and being a 'participant,'" Talmon, who practices as a barrister at Twenty Essex, told Sputnik.
The legal expert underlined that the wording of the UN resolution itself therefore enabled the US to trigger the mechanism.
"Exercising its right under the resolution may however be contrary to the 'spirit' of the resolution but any potential abuse of right was built into the resolution when it was adopted in 2015," he said.
Pierre-Emmanuel Dupont, the director of the Public International Law Advisory Group, on the other hand, asserted that by unilaterally withdrawing from the JCPOA the United States has lost the right to claim to be a participant to the deal.
"The position expressed by High Representative Josep Borrell is legally correct, since the United States, despite its claim to the contrary, cannot be considered a 'JCPOA participant' insofar as the US has voluntarily withdrawn from the deal in 2018. That the United States cannot claim to be 'participant' in an agreement that it has left, is based on a sound understanding of Security Council 2231 which embodied the JCPOA � an understanding in line with the applicable principles of interpretation under international law and international jurisprudence," Dupont told Sputnik.
Yet, there is no special mechanism which could solve any dispute over the interpretation of a UNSC resolution, which enables each member of the Security Council to interpret resolution their own way, Talmon noted.
"The only way to solve this dispute would be for the UN General Assembly to ask the International Court of Justice for a non-binding advisory opinion on the interpretation of the resolution which, however, seems to be highly unlikely for political reasons," the expert said.
In 2015, Iran signed the nuclear deal with China, France, Russia, the United Kingdom, the United States, Germany and the European Union. The JCPOA stipulates that Iran must scale back its nuclear program and downgrade its uranium reserves in exchange for sanctions relief, including the lifting of the UN arms embargo five years after the accord was adopted.
