U.S. cannot invoke snapback mechanism after JCPOA withdrawal: international law expert

Seyed Yaser Ziaee, an associate professor of international law from the University of Qom, says it is not possible for the United States to invoke snapback sanctions against Iran based on the Joint Comprehensive Plan of Action (JCPOA), which it abandoned in May 2018.

“It is impossible for the U.S. to invoke the snapback mechanism because a country that is no longer a member of a treaty and has withdrawn from it, cannot refer to dispute mechanisms within it,” Professor Ziaee tells the Tehran Times. 
Following is the text of the interview:

Questions: Reportedly, U.S. Secretary of State Mike Pompeo has drafted a resolution to put to vote at the UN Security Council to extend an arms embargo on Iran. How do you analyze such a move from a legal point of view?

Answer: We must not forget that based on the Security Council Resolution 2231 the JCPOA is considered an international document in force which the U.S. is obligated to honor it. Based on this international document the United States is being obliged to avoid reintroducing or reimposing the specified sanctions or apply news sanctions. 

Article 26 of the JCPOA states: The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from re-introducing or re-imposing the sanctions specified in Annex II that it has ceased applying under this JCPOA... The U.S. Administration, acting consistent with the respective roles of the President and the Congress, will refrain from imposing new nuclear-related sanctions…

However, it does not seem that proposing a resolution to the Security Council necessarily means the return of sanctions by the United States. Also, arms sanctions may not be defined under the U.S. obligations with regard to sanctions in view of the JCPOA. 

But two points should be taken into consideration: First, proposing a resolution to the Security Council by the U.S. is imposition of new sanctions by the U.S. government even though the final decision will rest upon ratification of the resolution by the Security Council. Second, even though application of arms sanctions was not the subject of the JCPOA, such sanctions can indirectly undermine obligations under the JCPOA. For example, attachment 3 to Annex II of the JCPOA refers to the U.S. obligations that it must lift sanctions against the Islamic Revolution Guards Corps. Yet, arms emerge can lead to a return of such sanctions which will be a violation of the JCPOA.  

Question: There is also an argument that if the Security Council does not extend the arms embargo, the U.S. will try to trigger a snapback of UN sanctions on Iran. Is this technically or legally possible?

Answer: Article 3 of the JCPOA says: “Upon receipt of the notification from the complaining participant, as described above, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in this JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise.”

Accordingly, the U.S. as a complaining participant can file its complaint to the Security Council that can lead to the return of all previous Security Council resolutions against Iran. But two points must be taken into consideration: First, referring to the Security Council entails dispute resolution mechanisms mentioned in the JCPOA which includes reference to the Joint Commission and then the Board of the Ministry of Foreign Affairs or the Advisory Board. Therefore, before exhausting all these means, which can be extensively prolonged through diplomatic efforts by Iran, referring to the Security Council is not “legal”. Second, based on Paragraph 3 of Article 27 of the UN Charter, the U.S. has no right to participate in the Security Council voting. This paragraph stipulates: “Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.”

The issue of return of sanctions based on Article 37 of the JCPOA is a subject related to settlement of international disputes which falls under Chapter VI of the UN Charter; therefore Article 27 of the charter applies to it.

Question: Is it possible that a country that itself has openly violated Resolution 2231 push for such a vote?

Answer: Violation of Resolution 2231 is an issue of dispute. On the one hand, the United States accuses Iran of breaching the resolution by testing missiles, and on the other hand, Iran accuses the United States of violating Resolution 2231 by reimposing sanctions. The Article 35 of the UN Charter says: “Any Member of the United Nations may bring any dispute, or any situation of the nature referred to in Article 34, to the attention of the Security Council or of the General Assembly.”

But the question is whether referring to the Security Council as a mechanism to resolve disputes regarding the JCPOA by a country that has exited the deal is possible. This is an important question that actually makes it impossible for the U.S. to invoke the snapback mechanism because a country that is no longer a member of a treaty and has withdrawn from it, cannot refer to dispute mechanisms within it.

Question:  The U.S. violated international law by leaving the JCPOA and imposing sanctions on Iran. However, when Iran took the issue to the International Court of Justice, it only voted for exempting essential goods, such as food and medicine, from sanctions. The ICJ either refused or failed to consider sanctions as completely “illegal”. In view of such a reality, how can it be guaranteed that other countries' members of the council do not submit to U.S. pressure and crucify international law?

Answer: What the International Court of Justice voted for was a “provisional measure” that Iran alleged the U.S. has violated the 1955 amity agreement between the two countries. In fact, the court has not yet finalized its investigation of the complaint by Iran and it is possible that the court declares all U.S. sanctions against Iran that were introduced after the signing of the JCPOA as a violation of the amity agreement. Furthermore, the ICJ competence is based on ‘consent’ which may not help the body to be able to fully determine the legal situation between the parties of the dispute.

And, this issue is quite clear for all members of the Security Council. Though one cannot deny the psychological effects of the International Court of Justice’s verdict on the decision of the Security Council, it definitely will not be defendable. 

Question: Let’s turn to medical sanctions on Iran as the people are struggling with the outbreak of coronavirus. How do you interpret such sanctions in such situations?

Answer: The U.S. denies medical sanctions on Iran, but it is an undeniable fact that indirect or “unwritten sanctions” by the U.S. have led to medical sanctions on Iran. Surely, such sanctions are a violation of the international law of human rights, international commitments under Resolution 2231, and the JCPOA and the provisional measure of the International Court of Justice.

Moreover, the U.S. measures regarding such issues are a violation of international obligations, human values, and human conscience. It is interesting to notice that Martens Clause Doctrine, which entails observation of the principles of human conscience, falls within international law. Paragraph 2 of Article 1 of the Protocol I on the Fourth Geneva Convention of 1949 states:  In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.