[Jean Galbraith is an Assistant Professor at the University of Pennsylvania Law School.]
Yesterday, President Trump announced that the United States will withdraw from the Iran deal. He is not claiming any major breach by Iran, but rather withdrawing because, in his view, it was a terrible deal from the start. As a matter of domestic and international law, he has the power to do this. As a matter of policy, this is a particularly ugly manifestation of the Trump Doctrine – of undoing President Obama’s signature initiatives based on dubious reasoning and questionable motives. Iran is a bad actor, but it is hard to fathom how this will be improved by re-raising its incentive to develop nuclear weapons, demonstrating that the United States is a deeply unreliable negotiating partner, and handing a propaganda gift to Iranian hard-liners.
But here we are. And what is next? I want to focus on one small piece of this unhappy question – the ability of the United States to invoke the “snapback” provision of Security Council Resolution 2231.
As a refresher, Resolution 2231 lifted prior sanctions imposed by the Security Council on Iran in the course of blessing the Iran deal (formally known as the Joint Comprehensive Plan of Action or JCPOA). These prior sanctions had been an important piece of the pressure brought to bear against Iran, in addition to separate sanctions imposed unilaterally by the United States and allies. But in lifting the Security Council sanctions, Resolution 2231 contained a “snapback” provision. This provision provides that if “a JCPOA participant State” notifies the Security Council of “an issue that the JCPOA participant State believes constitutes significant non-performance of commitments under the JCPOA,” then all the prior Security Council sanctions will be re-imposed on Iran after 30 days unless the Security Council affirmatively votes not to re-impose the sanctions. In other words, provided that the pre-conditions are met, a JCPOA participant State who wields a Security Council veto can single-handedly force the re-imposition of prior Security Council sanctions.
In announcing withdrawal from the Iran deal, President Trump did not mention the snapback provision. And the United States is unlikely to try to invoke the snapback provision immediately. As a matter of strategy, this seems like a good card to hold in reserve, at least until Iran actually does cease complying with the deal. As a matter of law, for the Trump Administration to even try to invoke the snapback, it must specify its belief that Iran is not substantially performing its commitments under the JCPOA – and so far, the United States has not even attempted to argue this. Over on Lawfare, Elena Chackho writes that “[i]f the U.S. does attempt to trigger this ‘snap-back’ mechanism … it appears that there is little the other members of the Council can do to prevent the Security Council sanctions being re-imposed.” I disagree. As I’ve written earlier, other nations could appropriately dispute the legal effectiveness of the snapback’s invocation if the United States triggers it without good faith grounds for believing Iran to be significantly non-performing its commitments under the JCPOA.
But what if Iran later ceases its performance of the JCPOA, now that the United States has failed to hold up its end? In that case, could the Trump administration successfully invoke the snapback provision?
As a legal matter, I think this also poses some challenging questions of interpretation. The snapback provision turns out to have been drafted mostly in anticipation of the wrong contingency, namely the risk that Iran would be the initial defector. That makes it rather complicated to apply to the current situation. I am still thinking through the interpretive issues, but let me sketch out a few initial thoughts here.
Because the United States will be withdrawing from the deal and re-imposing sanctions on Iran, there are at least two reasons why it might not be entitled to invoke the snap-back provision. First, one could argue that the United States will have lost its right to do so. Textually, one could argue that it will no longer be a “JCPOA participant state” once it has withdrawn from the deal. This may sound persuasive, but it doesn’t work so well on a closer look at the text. In paragraph 10, Resolution 2231 speaks of “China, France, Germany, the Russian Federation, the United Kingdom, the United States, the European Union (EU), and Iran (the ‘JCPOA participants’).” Therefore, its use of “JCPOA participant state” just seems like a shorthand for these countries, excluding the EU. Nonetheless, the use of this shorthand does at least signal the underlying assumption that the party invoking the snapback will itself still be in the deal. This in turn might support a claim that the United States is estopped from invoking the snapback in a situation where it has itself first abandoned the deal.
Second, one could claim that the United States has no good-faith basis for believing Iran to be in “significant non-performance of commitments under the JCPOA” if Iran’s non-performance stems in turn from U.S. non-compliance. Let’s assume that, before ceasing its own performance, Iran invokes the dispute-resolution provisions of the JCPOA (which involve several steps, including ultimately an Advisory Board giving a non-binding opinion). Then, under paragraph 36 of the JCPOA, “[i]f the issue still has not been resolved to the satisfaction of the complaining participant, and if the complaining participant deems the issue to constitute significant non-performance, then the participant could treat the unresolved issue as grounds to cease performing its commitments under the JCPOA in whole or in part and/or notify the UN Security Council that it believes the issue constitutes non-performance.” Iran will presumably not notify the Security Council of U.S. non-performance, since that would trigger the snapback detrimental to Iran’s interests. But it will have “grounds to cease performing its commitments.” And if it has grounds to cease performing its commitments, then it is acting within its rights under the JCPOA. It is therefore not engaged in “significant non-performance of commitments” because these commitments have themselves been suspended. One can extend this, albeit with difficulty, to argue that the United States cannot make a good faith notification to the contrary. Overall, this argument is probably too cute to be convincing. It has a certain amount in common with the material breach argument that the United States used to justify the second Gulf War. Moreover, this reasoning would given Iran a way to duck the snapback any time it had exhausted the JCPOA dispute settlement provisions and continued to have a good-faith belief that one of the other JCPOA parties was failing to significantly perform under the deal – an interpretation which strikes me as unlikely to have been acceptable to the U.S. negotiators at the time.
But while these arguments are unlikely to be persuasive to all, they could well be persuasive to some. Any countries which are persuaded could legitimately dispute the legal effectiveness of the snapback’s invocation by the United States and therefore decline to treat the prior Security Council sanctions as being re-imposed on Iran. If they do this, the United States would not have any legal lever for making its invocation of the snapback prevail, except in the unlikely event that it could persuade the Security Council to formally endorse this invocation or have the Security Council (or General Assembly) seek and receive an advisory opinion from the International Court of Justice in favor of its interpretation. Thus, if the Trump Administration wishes to invoke the snapback, it must be aware that its own repudiation of the Iran deal may reduce the effectiveness of this invocation.
There is a broader point worth noting here about the use of snapbacks and other trigger termination provisions. After Resolution 2231 passed in 2015, I wrote a comment in AJIL celebrating the potential of such provisions. But I noted that these provisions need to “incorporate protection against arbitrary activation.” I also suggested that there would often be advantages to entrusting independent civil servants like the Secretary-General with the power to trigger termination, rather than vesting this power with individual states. These points seem all the more important today.