US flimsy legal case on UN resolutions against Iran

The Trump administration, pushed by Iran hawks in Congress, tries to prevent the implementation of paragraph ۵ of Annex B of UN Security Council resolution ۲۲۳۱ on lifting the arms embargo on Iran, due to expire on ۱۸ October ۲۰۲۰.
6 July 2020
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Kurosh Ahmadi

The Trump administration, pushed by Iran hawks in Congress,  tries to prevent the implementation of paragraph 5 of Annex B of UN Security Council resolution 2231 on lifting the arms embargo on Iran, due to expire on 18 October 2020. Following a few months’ push in Congress, the US State Department released, in mid-December, part of an internal “legal opinion” that claims the United States, as an “original participant” in the Joint Comprehensive Plan of Action (JCPOA), “can initiate the snapback process under UNSCR 2231 by submitting a notification to the Security Council of an issue that the United States believes constitutes significant non-performance”, thus reinstating the already terminated U.N. sanctions on Iran.

This “legal opinion” is devoid of any legal logic. The Trump administration’s withdrawal from the JCPOA is formal and definitive, stated by the US President through signing and issuing a Presidential Memorandum on 8 May 2018, entitled “ceasing United States Participation in” the JCPOA, consummated through the re-imposition of US sanctions lifted or waived in connection with the JCPOA as well as US officials stopping ever since to participate in the relevant Joint Commission. The US decision evidently supersedes the language of UNSC resolution 2231, voiding the reference in the document to the US as a participant in the deal. Therefore, the US is no longer a participant and is thus unentitled to invoke the snapback process in paragraphs 11 and 12 of the resolution. Moreover, according to paragraph 10, the trigger of this mechanism could only begin in the JCPOA Joint Commission where the US has never participated in during the past 2 years.

Until last December, it was obvious for US officials that they were not able to invoke the snapback process. Secretary Pompeo, in an address to the UN Security Council on 20 August 2019, called upon the Council and the international community to “ensure that the arms embargo on Iran does not expire.” Brian Hook, the State Department's special representative for Iran, was more specific in an interview on the same day: “So on a snapback, we’re no longer in the deal, and so the parties that are still in the deal will have to make their decisions with respect to using or not using the dispute resolution mechanism.”

It appears that the new legal ploy is to serve as a bargaining chip or a negotiating tactic aimed rather at having the members of the Security Council agree with a draft resolution the US is advancing for indefinitely extending the arms embargo on Iran, facing them with the choices between the less bad and bad options. However, given the flimsiness of this legal ploy, no member of the Council should be tricked into going along with the US draft.

Another reason for the rejection of the US tack by the international community is the fact that it resulted from political machinations within the Trump support camp and Iran hawk milieu in Congress. Senator Ted Cruz demanded it in November by holding hostage the nomination of Stephen Biegun to serve as the State Department’s No. 2 official. The Biegun appointment was doubly important as it would prevent the promotion of David Hale, a career official who had testified in the impeachment inquiry of Trump, to become the Deputy Secretary of State.

Iran hawks in Congress had sought “the legal opinion” from the State Department to advance their scheme for aligning democrats and less hawkish congressmen with their aim to dismantling the remaining elements of the JCPOA. They, together with the hawkish in the administration, seek to use the arms embargo mainly as a ploy to reinstate all UN sanctions on Iran and make a potential revival of the nuclear deal less likely, even if Trump loses his reelection campaign in November.

Thousands of AIPAC, the Israeli lobby, activists have already joined Iran hawks and are at work on Capitol Hill since November to bring undecided lawmakers in line to push for the snapback process. In a bid to bolster Trump’s efforts, AIPAC is asking lawmakers to co-sponsor a bipartisan resolution calling for an arms embargo extension and more sanctions. They drafted a letter the House members sent to Secretary Pompeo on 3 May, inviting him to take “increased diplomatic action” to renew the arms embargo on Iran.

The extensive activities in Congress, which preceded the US State Department’s “legal opinion”, are clearly indicative of the major role of the US domestic politics in this process. It is important that the UN Member States and Europeans, in particular, bear in mind the political nature and the legal flimsiness of the US diplomatic approach towards the snapback process and the extension of the arms embargo with the final aim of destroying the whole JCPOA.

(The opinions expressed are those of the authors and do not purport to reflect the opinions or views of the IPIS)


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