Published: 2 November 2021 Author: Stefan Talmon
In response to the International Atomic Energy Agency (IAEA) raising concerns over Iran’s nuclear programme, the UN Security Council, acting under Article 41 of Chapter VII of the Charter of the United Nations, decided in December 2006, inter alia, that Iran was to suspend both work on all heavy water-related projects, including the construction of a research reactor moderated by heavy water, and all enrichment-related and reprocessing activities, including research and development. This was all to be verified by the IAEA. When the IAEA reported that Iran had failed to comply with that decision, the Security Council on 27 March 2007 imposed an arms embargo on Iran. This was further extended in June 2010.
On 14 July 2015, Iran, the P5+1 countries – the United States, the United Kingdom, France, Russia, China, and Germany – and the European Union (EU) agreed on a Joint Comprehensive Plan of Action (JCPoA) that sought to provide a long-term and proper solution to the Iranian nuclear issue. The JCPoA provided that, in return for Iran verifiably abiding by certain commitments concerning its nuclear programme, the nuclear-related sanctions imposed by the UN Security Council, the EU and the United States would be lifted. In particular, the arms embargo imposed on Iran by the UN Security Council was to expire five years after the JCPoA adoption date; that is, on 18 October 2020.
In its resolution 2231 (2015) the UN Security Council endorsed the JCPoA, and decided to lift its sanctions imposed on Iran. In particular, it decided that the arms embargo would expire as foreseen as part of the JCPoA. The United States, however, was not content with the expiry of the arms embargo, claiming that it would give Iran access to weapons that it could use to destabilise the region. On 14 August 2020, it submitted a draft resolution in which the Security Council, acting under Article 41 of the UN Charter, would have decided that the arms embargo should “continue to apply until the Security Council decides otherwise”. The U.S. draft resolution mustered only two votes, however: those of the United States and the Dominican Republic. China and Russia voted against the resolution and Germany and ten other Council members abstained. Failing to obtain the required number of votes, the U.S. draft resolution was not adopted. Speaking in explanation of vote, Germany’s Deputy Permanent Representative to the United Nations stated:
“Germany remains committed to fully implementing resolution 2231 (2015), which endorses the Joint Comprehensive Plan of Action (JCPOA). Together with France and the United Kingdom, we have been working hard to preserve the JCPOA, despite the challenges caused by the United States withdrawal from the JCPOA in May 2018 and Iran’s systematic non-compliance with key JCPOA commitments since July 2019, and we will continue our efforts. We remain committed to preserving the JCPOA and urge Iran to reverse all measures inconsistent with the agreement and resume full compliance without delay.
At the same time, we are deeply concerned about Iran’s conduct in the region. Since resolution 2231 (2015) was adopted, Iran has repeatedly violated the provisions of the Security Council’s conventional arms restrictions, including through the transfer of weapons to Yemen, Lebanon, Syria and Iraq, including to non-State actors. We therefore share the concerns expressed by a number of Council members about the scheduled expiry of the Security Council’s conventional arms restrictions on Iran this October. The Foreign Ministers of France, the United Kingdom and Germany have been clear that the expiry of these restrictions would have implications for regional security and stability.
However, Germany abstained in the voting on draft resolution S/2020/797 because it does not enable us to effectively address the risks identified above and to improve security and stability in the region. It was clear that the draft resolution would fall short of attracting the support of the Security Council. We rather believe that more time and more consultations are needed to seek a path forward that could provide adequate answers to the challenges arising from the arms embargo expiry and that would be acceptable to all States members of the Council.
We have been engaging with Council members in this sense and have discussed a number of possible ways forward. We are ready to continue these discussions in order to find a pragmatic way forward that addresses our collective concerns. In this regard, we are guided by the objectives of upholding the authority and integrity of the Security Council, working towards regional security and stability and preserving the JCPOA as a cornerstone of regional security and the global non-proliferation regime.”
U.S. Secretary of State Michael Pompeo heavily criticised the other Council members for their “failure to act decisively in defence of international peace and security”. The United States, however, did not give up and adopted a different strategy to keep the arms embargo in place. Under Security Council resolution 2231 (2015), any JCPoA participant State could notify the Security Council of “an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA”. In such a situation, the Council was to take a positive decision to continue in effect the termination of UN sanctions against Iran. If no such decision was adopted, “then effective midnight Greenwich Mean Time after the thirtieth day after the notification to the Security Council” all sanctions against Iran terminated by resolution 2231 (2015) were automatically reinstated. This was referred to as the so-called snapback mechanism. One consequence of the snapback mechanism was that the expiration of the arms embargo would not occur.
On 20 August 2020, U.S. Secretary of State Pompeo sent a letter to the President of the Security Council in which he notified the Security Council, on behalf of the U.S. Government, that Iran was “in significant non-performance of its commitments” under the JCPoA, thereby attempting to trigger the snapback mechanism. Within hours of the U.S. move, Germany, France and the United Kingdom sent a joint letter to the Security Council in opposition, stating that “any decisions and actions which would be taken based on this procedure or on its possible outcome would also be devoid of any legal effect.” At the same time, the Foreign Ministers of the three countries issued a statement on the U.S. request to initiate the snapback mechanism which read:
“On 20 August, the US sent a letter to the UN Security Council requesting to initiate the ‘snapback’ mechanism, which allows a participant to the JCPoA to seek the reimposition against Iran of the multilateral sanctions lifted in 2015 in accordance with resolution 2231, adopted by the UN Security Council.
France, Germany and the United Kingdom (‘the E3’) note that the US ceased to be a participant to the JCPoA following their withdrawal from the deal on May 8, 2018.
Our position regarding the effectiveness of the US notification pursuant to resolution 2231 has consequently been very clearly expressed to the Presidency and all UNSC Members.
We cannot therefore support this action which is incompatible with our current efforts to support the JCPOA.
France, Germany and the United Kingdom (‘the E3’) are committed to preserving the processes and institutions which constitute the foundation of multilateralism. We remain guided by the objective of upholding the authority and integrity of the United Nations Security Council. We call on all UNSC members to refrain from any action that would only deepen divisions in the Security Council or that would have serious adverse consequences on its work.”
The permanent members China and Russia, as well as all other non-permanent members, with the exception of the Dominican Republic, also wrote letters rejecting the U.S. attempt to trigger the snapback mechanism. The Council members based their opposition to the U.S. move on the fact that on 8 May 2018 the United States had unilaterally ended its participation in the JCPoA and therefore could no longer be considered a “JCPoA participant” in terms of Security Council resolution 2231 (2015). The U.S. letter was thus not a legally valid notification by a JCPoA participant. In an interview with German daily Rheinische Post, Federal Foreign Minister Heiko Maas stated on 21 August 2020:
“Invoking the agreement [JCPoA] again now in an attempt to reinstate all UN sanctions, after having left that agreement yourself, is neither politically nor legally convincing.”
During the regular government press conference on 24 August 2020, a spokesperson for the Federal Foreign Office provided a more detailed explanation, saying:
“On 8 May 2018, the United States announced its withdrawal from the Vienna Nuclear Agreement, and it has not acted within this framework ever since. Therefore, in our opinion, from that moment the United States is no longer to be regarded as a participant state of the JCPoA within the meaning of Security Council Resolution 2231, and that is why the United States cannot use this “snapback” mechanism to force the reintroduction of UN sanctions, which were suspended in 2015 by resolution 2231, and to terminate the JCPoA.
Most of the members of the Security Council agree with us. Thirteen Security Council members have now written to this effect to the Indonesian Security Council Presidency, and some, like us, have made public statements about it.”
The Indonesian Security Council Presidency summarised the situation at the end of a meeting on the Middle East on 25 August 2020, saying that there was one Council member which had a particular position, while there were significant number of members who had contesting views. As there was no consensus, the presidency was not in a position to take further action; in particular, it was not in a position to submit a draft resolution to continue in effect the termination of the sanctions as foreseen in paragraph 11 of resolution 2231 (2015). During that meeting, the German representative stated:
“We fully support the President’s view that the purported United States notification is, in legal terms, null and void. As the three European members of the Security Council (E-3), we explained our position in a letter to the President of the Security Council (S/2020/839): the United States is no longer a Joint Comprehensive Plan of Action (JCPOA) participant, and therefore cannot activate the snapback mechanism. The status of the United States within operative paragraph 10 of resolution 2231 (2015) changed when the United States ceased to be a JCPOA participant in 2018.
Accordingly, the E-3 firmly believes that the purported notification under operative paragraph 11 of resolution 2231 (2015) is incapable of having legal effect, and so cannot bring into effect the procedure foreseen under operative paragraph 11. It flows from this that any decisions and actions that would be taken based on this procedure or on its possible outcome would also be devoid of any legal effect.
Let me add that we are firmly convinced that protecting the JCPOA is of crucial importance. The nuclear deal with Iran is not perfect, but it continues to be the international community’s best tool to prevent a nuclear arms race in the Middle East. That is why we defend this agreement, and that is why we continue to demand that Iran return to full compliance with this agreement.”
According to the snapback mechanism, the sanctions against Iran, including the arms embargo, would automatically have been reinstated thirty days after the United States notified the Security Council that Iran was in significant non-performance of its commitments under the JCPOA; that is, at midnight Greenwich Mean Time on 20 September 2020. In a press statement on 19 September 2020, U.S. Secretary of State Pompeo declared:
“[T]oday, the United States welcomes the return of virtually all previously terminated UN sanctions on the Islamic Republic of Iran, the world’s leading state sponsor of terror and anti-Semitism. Sanctions are being re-imposed on Iran pursuant to the snapback process under UN Security Council resolution (UNSCR) 2231. […]
The United States took this decisive action because, in addition to Iran’s failure to perform its JCPOA commitments, the Security Council failed to extend the UN arms embargo on Iran, which had been in place for 13 years. The Security Council’s inaction would have paved the way for Iran to buy all manner of conventional weapons on October 18. Fortunately for the world, the United States took responsible action to stop this from happening. In accordance with our rights under UNSCR 2231, we initiated the snapback process to restore virtually all previously terminated UN sanctions, including the arms embargo. The world will be safer as a result.
The United States expects all UN Member States to fully comply with their obligations to implement these measures.”
The United States’ call on UN Member States to again implement the sanctions against Iran went unheeded. The UN Secretariat also did not change the relevant websites with information concerning Security Council sanctions regimes.
On 20 September 2020, the Foreign Ministers of Germany, France and the United Kingdom issued a joint statement on the U.S. attempt to initiate the snapback mechanism thirty days previously, which read:
“Today marks 30 days since the US sought to initiate the ‘snapback mechanism’, which allows a participant to the JCPoA to seek the re-imposition of the multilateral sanctions against Iran lifted in 2015 in accordance with resolution 2231, adopted by the UN Security Council.
France, Germany and the United Kingdom (‘the E3’) note that the US ceased to be a participant to the JCPoA following their withdrawal from the deal on 8 May 2018. Consequently, the purported notification under paragraph 11 of UNSCR 2231 (year 2015), received from the United States of America and circulated to the UN Security Council Members, is incapable of having legal effect. It flows from this, that any decisions and actions which would be taken based on this procedure or on its possible outcome would also be incapable of having any legal effect.
We remain guided by the objective of upholding the authority and integrity of the United Nations Security Council. The E3 remains committed to fully implementing UNSCR 2231 by which the JCPoA was endorsed in 2015. We have worked tirelessly to preserve the nuclear agreement and remain committed to do so.”
Germany and other Council members also made their position clear in another letter to the UN Security Council President.
The attempted triggering of the snapback mechanism under resolution 2231 (2015) was a rare example of the United State being almost completely isolated on the Security Council; not even its closest allies following its interpretation of that resolution. However, the United States’ legal position on the interpretation of resolution 2231 (2015) was not without its merits. The resolution stipulated that “a JCPOA participant State” can notify the Security Council of what it believes to be significant non-performance by Iran of commitments under the JCPOA. The resolution also defined China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran as the “JCPOA participants”. It could thus be argued that the question of who was a “participant State” was to be decided within the self-contained regime of the resolution. While the JCPoA – a separate, non-legally binding, political arrangement –, and the resolution were connected, they were not inextricably linked and not contingent upon each other. The snapback mechanism was part of the Security Council resolution and not part of the JCPoA. When the United States ended its participation in the JCPoA in May 2018, it did not thereby also renounce its status as a “JCPoA participant” under the resolution. There is a difference between “participating” and being a “participant”. The snapback mechanism was devised in such a way that each of the States named in the resolution as participants could unilaterally trigger the reimposition of the UN sanctions on Iran. This was also a way to maintain the veto power of permanent members over the Iran sanctions regime. While the triggering of the snapback mechanism may have been contrary to the spirit of resolution 2231 (2015), it would not have been contrary to the resolution per se.
The interpretation of resolution 2231 (2015) set a dangerous precedent. A majority of Council members, albeit admittedly a very large one, assumed the power to decide on who was a “participant State” in terms of the resolution. This in fact opened the door to the interpretation of Council resolutions by majority. Perhaps even more disconcerting was the process by which this interpretation was reached. There was no public debate on the question and no formal decision was taken by the Council. The decision rather emerged from letters written by Council members to the Presidency and the latter stating that it was not in the position to take any action with regard to the matter.
The position of Germany and other allies of the United States may have been motivated not so much by questions of the interpretation of Council resolutions but by the goal of preserving the JCPoA and a general opposition to the U.S. policy of putting “maximum pressure” on Iran. During the Security Council meeting on 30 June 2020, Germany’s Permanent Representative to the United Nations, Ambassador Heusgen, declared:
“The overarching goal for us is the preservation, continuation and full implementation of resolution 2231 (2015), and of the Joint Comprehensive Plan of Action (JCPOA), which has been described by some in the media as a masterpiece of diplomacy. Thanks to the JCPOA, it was possible to have Iran step back from its moves towards the acquisition of a nuclear bomb.”
Category: United Nations