Tue, Jun 9, 2020

The United States needs to preserve the UN Security Council snapback for the future

IranSource by Thomas S. Warrick

Iran Middle East Politics & Diplomacy

Secretary Michael R. Pompeo attends the UN Security Council meeting on Iran at the United Nations, in New York City on December 12, 2018. [State Department photo by Ron Przysucha/ Public Domain]

It helps to have a quantum physicist at your elbow to explain the lesson of Schrödinger’s cat in order to understand the logical flaw in the State Department’s position that the United States ceased to be a “participant” in the Iran nuclear deal in 2018 but is still a “participant” today. What “participant” means, and who gets to decide, will drive high-stakes diplomacy at the United Nations Security Council (UNSC) in the next few months. The United States, for its part, will need to be careful not to undermine one of its most powerful diplomatic tools developed since World War II: the ability to use the unique authority of the UN Security Council to get Russia and China—sometimes—to agree on what needs to be done.

The reason the Security Council’s authority is at risk is because the Trump administration wants to extend the five-year arms embargo and travel ban that was part of UN Security Council Resolution (UNSCR) 2231 that implemented the Joint Comprehensive Plan of Action (JCPOA), better known as the Iran nuclear deal. (The key language is in Annex B, paragraphs 5 and 6.) A straightforward extension would require another Security Council resolution, which any of the five permanent members of the Security Council—China, France, Russia, the United Kingdom, and the United States—could veto.

As negotiating leverage, Secretary of State Mike Pompeo and other administration officials said that the United States would invoke the “snapback” provisions of UNSCR 2231 to re-impose all international sanctions that existed against Iran in June 2015, prior to the JCPOA. These sanctions were the result of the Obama administration’s successful efforts to build an international consensus, backed by strong multilateral sanctions, to keep Iran from obtaining nuclear weapons. Those multilateral sanctions forced Iran to the negotiating table in 2014-2015.

While many have criticized the JCPOA for not ending Iran’s malign campaign to destabilize key countries in the region and for imposing only a ten-year limit on key aspects of Iran’s nuclear program, it is beyond dispute that UNSCR 2231 was one of the most carefully negotiated Security Council resolutions in history. The “snapback” provision was one of 2231’s crown jewels and is something the United States should want to preserve for the future.

The snapback provision was designed to invert the veto power of countries like Russia or China. In an ordinary situation, once UN sanctions against a country like Iran are lifted, the UN Charter would require a new resolution to take action to re-impose those sanctions—which the United States might want, but that Russia or China could veto. The snapback provision reverses the process, setting a precedent that is very valuable for US interests, by nullifying Russia’s and China’s right to veto the Security Council’s taking action.

Instead, the snapback was the Security Council’s agreement in 2015 that the United States would have a veto power to compel the Security Council to take action—in this case, to re-impose sanctions on Iran. The wording of the snapback provision in 2231 has three parts: (1) any “JCPOA participant State” could require the Security Council to affirmatively adopt a resolution that would keep the sanctions relief in place, so that (2) the United States, or any other permanent member, could veto such a resolution, and (3) if the resolution was not adopted, then all the early 2015 international sanctions would come back into force.

This was a powerful procedure for the United States. In theory, even if the rest of the world objected, the United States alone could re-impose binding UN sanctions. Under Chapter VII of the United Nations charter, particularly article forty-one, those sanctions should have the force of binding international law. Under article twenty-five of the charter, all United Nations member states agreed to carry out the “decisions” of the Security Council.

UNSCR 2231 was negotiated to give the United States or any other “JCPOA participant State” the ability to unilaterally re-impose sanctions on Iran’s nuclear obligations under the JCPOA. The arms embargo, however, was negotiated to be an ordinary sanctions situation; once the arms embargo expires, it will take a new resolution to re-establish it.

The Obama administration team that negotiated UNSCR 2231 anticipated many contingencies, including a breakdown of the international consensus on the need to limit Iran’s dangerous nuclear ambitions. But they did not anticipate that the United States would seek the quantum physics state of superposition—that the United States would claim to not be a “participant” in the JCPOA while simultaneously claiming the benefit of being a “JCPOA participant State” under article eleven of UNSCR 2311.

Most Americans would agree that extending the arms embargo on Iran is an important goal. Nearly 90 percent—382 of 429 current members—of the US House of Representatives signed a letter urging Secretary Pompeo to work with US allies and partners to extend the arms embargo and the travel ban on Iranian arms proliferators.

The problem with invoking the snapback provision in UNSCR 2231 is who gets to decide whether the United States is still a “JCPOA participant State.” The United States gets its say, but it would have to get the other Security Council members to agree. Given the way the United States has withdrawn so publicly and confrontationally from the JCPOA, based on statements by President Donald Trump, Secretary Pompeo, and other top officials, it’s unlikely that the Trump administration could persuade most UNSC members to consider the United States as a participant for purposes of the snapback provision, unless the United States agreed to be bound by the JCPOA’s provisions. If all the permanent members of the Security Council don’t agree that the United States is a “participant” eligible to invoke the snapback provision, then they will not feel pressure to be bound to enforce pre-2015 UN sanctions.

One of the most powerful tools that American diplomats have at the United Nations is the ability to get Russia and China, long our rivals for international influence, to abide by the binding resolutions of the United Nations Security Council. On issues as diverse as the Balkans, Libya, the Middle East, and Iran, once the Russians and Chinese agree to a binding resolution, they will usually abide by it, even if their short-term interests later pull in a different direction. Binding Security Council resolutions have more persuasive power than US diplomats do, alone. The United States has a strong national interest in keeping the international consensus that a binding UNSC resolution really is binding on all UN member states.

The idea of a “snapback,” in which the members of the Security Council agree that sanctions can be re-imposed even if only one permanent member wants them, is an option the United States needs to preserve for the future. The Trump administration knew that the snapback option was available only to a “JCPOA participant State” when it embarked on re-imposing sanctions in 2018—sanctions that the JCPOA said would be lifted in 2020, so long as Iran satisfies the other four permanent Security Council members that Iran is complying with the JCPOA’s terms. The fact that the United States has not, so far, been able to convince even the United Kingdom or France to invoke the snapback provision is a sign of how dangerously isolated the United States is in its view of the JCPOA and Iran’s compliance.

It would be dangerous for the United States—and would diminish US power—to allow Russia and China to define the terms of a binding Security Council resolution for themselves. The Trump administration should think twice about claiming this right because, in this case, it will take an international consensus to re-impose the pre-2015 UN sanctions on Iran.

The United States should explore other ways to extend the arms embargo and travel ban on Iranian arms proliferators. Quantum physicists know that Schrödinger’s cat is not simultaneously both dead and alive, just as the Security Council members will not accept the idea that the United States is both no longer a “JCPOA participant State” while being able to call for a vote as a “JCPOA participant State.” The world will not re-impose sanctions on Iran pursuant to a US “snapback” decision unless there is a vote in the Security Council whose legitimacy most governments respect.

Thomas S. Warrick is a nonresident senior fellow in Middle Eastern Programs and director of the Future of DHS Project at the Atlantic Council. Follow him on Twitter: @TomWarrickAC.

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