The Flawed U.S. Effort to Revive Iran Sanctions

BY: David J. Scheffer

The Flawed U.S. Effort to Revive Iran Sanctions

PEJOURNAL – The United States has announced the reimposition of international sanctions against Iran that had been lifted under the 2015 nuclear deal, known as the Joint Comprehensive Plan of Action (JCPOA). But the parties to the deal, including China, France, Germany, Russia, and the United Kingdom, say the United States cannot unilaterally invoke “snapback” sanctions because it withdrew from the JCPOA in 2018. The Donald J. Trump administration says the move is essential to prevent Iran from developing nuclear arms, and an executive order issued on September 21 imposed new sanctions on over two dozen individuals and entities linked to support of Iranian arms programs.

Is the U.S. government legally justified in using the sanctions snapback mechanism?

The answer depends on how one interprets the JCPOA and UN Security Council Resolution 2231, which endorses the nuclear deal. A State Department legal opinion argues that the term “JCPOA participant” is fixed in Resolution 2231 and includes the United States, entitling it to trigger snapback sanctions regardless of its current status under the deal. Indeed, it does not matter whether the JCPOA exists in any shape or form anymore. In the view of the State Department [PDF], the whole ball game is Resolution 2231 and what its literal wording empowers the United States to do, particularly to invoke the snapback mechanism.

The counterpoint is that the United States is no longer a “participant” in the nuclear deal since it purposely and unequivocally withdrew from the JCPOA. When a government uses the words “ceased,” “ended,” and “terminated” in declaring its withdrawal, there is no future prospect of participation left to ponder. The State Department lawyers described the United States as a “JCPOA participant” when they needed that description to justify invoking the snapback mechanism.

The JCPOA and Resolution 2231 are deeply intertwined. The resolution would not exist without its underlying purpose, which was the implementation and enforcement of the JCPOA. The resolution’s text is grounded in recognition of the nuclear deal as its guiding rationale. Indeed, the JCPOA is appended to Resolution 2231 as the basis for implementing the resolution.

Isn’t Iran in breach of the JCPOA?

Yes, and the situation is deteriorating. The Arms Control Association, a Washington-based organization, found Iran breaching the stockpile limits on enriched uranium and heavy water, surpassing the limit on uranium enrichment, exceeding limits on advanced centrifuges, resuming enrichment at the Fordow facility, and abandoning operational restrictions on its nuclear program. The International Atomic Energy Agency concluded in June 2020 that Iran was violating all JCPOA provisions, though Iran says it has done so to pursue peaceful energy uses. These violations emerged after the United States withdrew from the JCPOA and reimposed sanctions, which Iran argues entitled it “to cease performing its commitments under this JCPOA” under Article 26 of the agreement.

Will there be consequences for U.S. international standing for invoking snapback sanctions?

The blowback against the Trump administration’s effort to trigger the snapback sanctions is evident in how much it has been criticized and how the JCPOA parties and the Security Council have essentially refused to follow the U.S. move. There almost certainly will be no Security Council committee established to oversee a resurrected sanctions regime sought by the United States, and thus it will be a phantom snapback regime. Imposing secondary sanctions would likely unleash retaliatory economic and diplomatic measures from the United States’ closest allies, as well as China and Russia. The fallout from allies, friends, and foes will further undermine U.S. attempts to forge new multinational efforts.

What international law applies in this case?

Three well-established international law doctrines challenge the State Department’s claim of legal authority to invoke the snapback mechanism. The first, explicitly stated in the JCPOA, is that states must act in “good faith,” which was violated when the Trump administration withdrew from the deal and then sought to enforce the snapback provision. The fact that the United States did not invoke the JCPOA-mandated path of dispute resolution with Iran before triggering the snapback provision also demonstrated a lack of good faith by a nation the State Department claims is a “JCPOA participant.” In August 2020, the United States sought to extend the arms embargo against Iran beyond its expiration date, an effort that garnered only one vote in the Security Council. 

The second principle of international law is “clean hands,” meaning that a state that exhibits illegal conduct is deprived of the standing to charge another state of illegal conduct, especially if the second state’s illegal actions were provoked by the first state. Since the United States left the JCPOA unilaterally, quickly reimposed all sanctions it had previously lifted under the deal, abandoned its obligations under the agreement, refused to use the agreement’s dispute resolution process, and likely incentivized Iran to modify its own performance under the JCPOA, Washington forfeited its “clean hands.”

Third, the doctrine of “estoppel” bars states from invoking an agreement if they do so after breaching that agreement or without acting in good faith. A nation that has entered an international agreement risks sacrificing its rights under that agreement when it contradicts prior conduct that the second party has relied upon. The other members of the JCPOA and Iran strongly relied on U.S. participation.

Since such U.S. participation to implement the JCPOA was explicitly terminated by Trump in 2018, the United States is estopped from asserting a right to invoke the snapback provision, which was built into both the JCPOA and Resolution 2231 on the premise that the United States would continue as a fully credentialed participant, fulfilling its obligations while entitled to exercise a right to punish Iran for violating the deal.

Will U.S. elections affect the imposition of sanctions?

If Trump is reelected, he will likely double down on enforcing the resurrected U.S. sanctions against Iran and follow through with secondary sanctions on states and firms that continue to trade with it. He could moderate the latter by focusing only on arms trade. But the U.S. sanctions policy will be an outlier.

What could happen to the sanctions regime if former Vice President Joe Biden wins the presidency is uncertain. Although strongly critical of Trump’s policy toward the JCPOA and Iran, Biden pledged in a CNN op-ed to “rejoin the international agreement as a starting point for follow-on negotiations. With our allies, we will work to strengthen and extend the nuclear deal’s provisions.” He also promised to “take steps to make sure U.S. sanctions do not hinder Iran’s fight against COVID-19.” It would be politically implausible with foreign leaders and legally suspect to rejoin the JCPOA while maintaining the Trump-imposed sanctions that no one else in the agreement embraces.