U.S. Secretary of State Mike Pompeo initiated the so-called snapback sanctions-procedure, under U.N. Security Council Resolution 2231 of 2015.
It's indisputable that Iran is not in compliance with the Joint Comprehensive Plan of Action (JCPOA). Whether the Iranian regime clandestinely violated it all along, including secreting a uranium metal disk used for triggering a nuclear bomb, or the violations occurred later, the fact remains it is in non-compliance.
By way of background, Resolution 2231 recognized the JCPOA and lifted the nuclear sanctions previously levied on Iran, by the U.N. Security Council.
It also provided for a procedure for reinstating those sanctions, known as the snapback. Thus, the U.N. sanctions are deemed reinstated 30-days after notice, from anyone named in Resolution 2231 as a "JCPOA participant," of believed significant non-performance by Iran of its commitments under the JCPOA, unless within such 30-days there’s an affirmative vote by the Security Council to continue the sanctions relief provided for in Resolution 2231.
The U.S. is one of those expressly named as a JCPOA participant in the Resolution and it’s, therefore, entitled to initiate the snapback. Since the U.S. could veto any Security Council effort to avoid the automatic snapback, the U.N. sanctions would perforce be reinstated into full force and effect.
Some have raised the issue of whether the U.S. still has the right to trigger the snapback, since the President announced withdrawal from the JCPOA. However, it is submitted that this misapprehends the nature and import of Resolution 2231, as well as, the JCPOA.
First of all, it is important to understand that the term "JCPOA participant," as noted above, is a defined term under Resolution 2231. This is a typical drafting device that’s often used as an expedient means of referencing a list of names repeatedly used throughout a document.
As used in the Resolution, the term includes any of the U.S., China, France, Germany, Russian Federation, UK and Iran, as well as, the EU. To put this in perspective, the EU is not an actual party to the JCPOA; yet, it is included within the rubric of a JCPOA participant.
This reinforces the plain meaning of the Resolution that being a party to the JCPOA is not a pre-condition to exercising rights under the Resolution.
It should also be noted that the JCPOA is not an actual legal agreement. It is unsigned and was never approved as a binding legal treaty by the US Congress. It was also likely not appropriately approved by the Iranian Parliament in the form presented to Congress or by Ayatollah Khamenei.
"As the title "Joint Comprehensive Plan of Action" implies, it’s a plan, not an agreement.
The withdrawal from the JCPOA is nothing more than a symbolic act. Interestingly, the letter goes on to acknowledge that the only real deterrent to Iran’s violation of its commitments is the U.S.’ right to snapback U.N. sanctions and to impose its own unilateral sanctions against Iran.
Legal arguments about the U.S.’ status as a party to what amounts to a non-agreement are specious and irrelevant.
The only relevant document is Resolution 2231 and, under it as noted above, the U.S. is definitionally a participant entitled to snapback protection. As a practical matter, this is immutable, given that any amendment of the Resolution would be subject to a US veto.
Consider, the absurdity of suggesting Resolution 2231 enforcement is tied to remaining a JCPOA participant. Iran also withdrew from the JCPOA and is no longer a participant.
Does that mean it too could argue it was no longer subject to the Resolution and the snapback thereunder; of course not. The Resolution is clear and so is Iran’s commitment thereunder, never, under any circumstances, to seek, develop or acquire any nuclear weapons.
It also reaffirms Iran’s obligations as a State Party to the Treaty on the Non-Proliferation of Nuclear Weapons. Remember, it was Iran’s violation of its legally binding obligations under that Treaty, which was the source of the sanctions originally levied against Iran, in the first place.
Britain, France and Germany also formally accused Iran of violating the terms of the JCPOA and triggered the dispute resolution mechanism.
In theory, this should have quickly led to their initiating a snapback. Instead, they’ve acted in concert with Iran to delay the process, despite the egregious violations reported by the IAEA.
This reckless behavior and lack of support for the US’ effort to snapback is not only mystifying; it’s galling. As allies of the U.S. and ostensibly guardians of non-proliferation under the Treaty, their pandering to the terrorist regime controlling Iran, in the face of its violations of the Treaty and other malign activities, is immoral and inexcusable.
Nevertheless, even if the Euopean Union (EU), Russia and China balk at the U.S.’ right to snapback, the U.S. can still act unilaterally to impose crippling secondary sanctions, including on their banking systems.
This would effectively deter most business dealings with the Iranian regime.
Excusing Iran’s malevolent behavior only enables it. It’s time to unite in support of the snapback and the President’s efforts to prevent a nuclear Iran, as well as, sanction Iran’s other malign activities.
Leonard Grunstein, a retired attorney and banker, founded and served as Chairman of Metropolitan National Bank and then Israel Discount Bank of NY. He also founded Project Ezrah and serves on the Board of Revel at Yeshiva University and the AIPAC National Council. He has published articles in the Banking Law Journal, Real Estate Finance Journal, and other fine publications. To read more of his reports — Click Here Now.
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