There is an agreement between Members of the UN Security Council and remaining JCPOA participants that the United States is not a participant of the JCPOA and violated the UNSCR 2231 and the JCPOA by unlawful withdrawal and (re)imposition of unilateral sanctions against Iran. Russian Federation, People’s Republic of China and also France, Germany and the United Kingdom (E3) clearly stated that the purported notification under the operative paragraph 11 of UNSCR 2231 (2015) is incapable of having legal effect and so cannot bring into effect the procedure foreseen under the paragraph. 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 devoid of any legal effect.
WHAT IS the so-called “SNAPBACK” and HOW DOES it WORK?
The United Nations Security Council Resolution 2231 has established a process through which encourages the “JCPOA participants” to resolve any issues arising with respect to implementation of JCPOA commitments through the procedures specified in the JCPOA specifically Paragraph 36 of therein, and expresses its intention to address possible complaints by JCPOA participants about significant non-performance by another JCPOA participant.
After the JCPOA procedures for resolving the issue is exhausted and the JCPOA participant believes still there is an issue in this regard, could treat the unresolved issue as grounds to notify the UN Security Council that it believes the issue constitutes significant non-performance upon receipt of such notification from the complaining JCPOA participant, including a description of the good-faith efforts the participant made to exhaust the dispute resolution process specified in the JCPOA, the UN Security Council, in accordance with its procedures, shall vote on a resolution to continue the sanctions lifting. If the resolution described above has not been adopted within 30 days of the notification, then the provisions of the old UN Security Council resolutions would be re-imposed, unless the UN Security Council decides otherwise. The process of Dispute Resolution Mechanism and finally re-imposition of the provision of terminated UN resolution under the resolution 2231on Iran is one which some call it SnapBack.
IS THE U.S.A. “JCPOA PARTICIPANT” STATE?
The answer is no; When the JCPOA and UNSCR 2231 (2015) were adopted, the United States was a JCPOA participant, identified as such in OP 10 of the resolution. That is why, like the other JCPOA participant States, it was entitled to initiate the Dispute Resolution Mechanism, established under OP 11 of the resolution. However, the United States effectively terminated its participation in the JCPOA on 8 May 2018.
Besides, from a legal standpoint, the term “participant” is not a simple honorific title, rather, it requires taking part in an activity or event in compliance with an agreed upon and specifically defined description of duties, rights and obligations. With respect to UNSCR 2231, being a ‘JCPOA Participant’ involves contribution to JCPOA-related events and activities as well as compliance with respective obligations and responsibilities. The U.S. has not taken part in even a single meeting of the Joint Commission or JCPOA-related bodies since its official decision to “cease participation”
President Trump’s Memorandum of 8 May 2018 formalized this position and since then, the United States Government has consistently taken steps to terminate its participation in the JCPOA. Consequently, as a matter of fact, the United States is no longer a “JCPOA participant State”. There is an agreement between Members of the Council that United States is not a participant to the JCPOA and violated UNSCR 2231 and JCPOA by unlawful withdrawal and (re)imposition of unilateral sanctions on Iran. Russian Federation, People’s Republic of China and also France, Germany and the United Kingdom (E3) firmly believe that the purported notification under OP 11 of UNSCR 2231 (2015) is incapable of having legal effect and so cannot bring into effect the procedure foreseen under OP 11. 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 devoid of any legal effect.
What is The Relationship between the JCPOA and UNSCR 2231 (2015)? DOES UNSCR 2231 MANDATE COMPLIANCE WITH THE JCPOA?
Yes; it is worth noting that UNSCR 2231 (2015) must be read within the context of the provisions set out in the JCPOA too (Annex A to UNSCR 2231). Indeed, in a sense, the Resolution is tied to the JCPOA as if by an umbilical cord. Per UNSCR 2231 (2015), the Council: “Endorse[d] the JCPOA, and urge[d] its full implementation on the timetable established in the JCPOA.” These provisions in the JCPOA sought to provide a “comprehensive” plan of action and also concluded a definitive and final solution to the entirely manufactured crisis over Iran’s peaceful nuclear energy program.
Further, it bears recalling that the second operative paragraph of UNSCR 2231 (2015) in which the Security Council “Calls upon all Member States, regional organizations and international organizations to take such actions as may be appropriate to support the implementation of the JCPOA, including by taking actions commensurate with the implementation plan set out in the JCPOA and this resolution and by refraining from actions that undermine implementation of commitments under the JCPOA” obviously obliges States to refrain from applying the sanctions lifted under the JCPOA.
Does iran’s partial ceasing the implementation of its nuclear commitments on 8 May 2019 CONSTITUTE “SIGNIFICANT NON-PERFORMANCE OF COMMITMENTS UNDER THE JCPOA”?
No; Following the unlawful withdrawal of the United States and the (re)imposition of its sanctions that had been lifted in accordance with the JCPOA, while reserving its immediate right under Paragraph 26, Iran initiated the Dispute Resolution Mechanism under Paragraph 36 of the JCPOA on 10 May 2018. Acting in good faith, the Government of the Islamic Republic of Iran refrained from applying the ‘remedy’ and did not immediately resort to “cease performing its commitments under the JCPOA”, in order to enable the remaining JCPOA participants to make good on their promises.
Regrettably, as the result of the re-imposition of U.S. sanctions since May 2018, Iran has been deprived of the benefits of sanction-lifting under the JCPOA. Indeed, it was from the outset clear that “reintroduction or re-imposition, including through extension, of the sanctions and restrictive measures will constitute significant non- performance which would relieve Iran from its commitments in part or in whole”, which is also stipulated in Paragraph 26 of the JCPOA.
Iran exercised restraint in good faith and exhausted all recourses under Paragraph 36 for one full year after the U.S. unilateral withdrawal from the JCPOA. However, in the destructive atmosphere in the wake of Donald Trump’s action on May 8 2018, the E3/EU utterly failed to honor their commitments and Iran was left with no recourse but to exercise its rights under Paragraphs 26 and 36 of the JCPOA to cease performing its commitments in part on 8 May 2019. This action followed a full year of relentless efforts on the part of the Government of the Islamic Republic of Iran to exhaust the Dispute Resolution Mechanism—which it officially and unequivocally initiated on 10 May 2018.
How did THE SECURITY COUNCIL members DECLARe THAT THE UNITED STATES NO LONGER QUALIFIES AS A “JCPOA PARTICIPANT” UNDER UNSCR 2231 and RULE THE U.S. COMPLAINT INVALID?
|Permanent Representative of the Russian Federation to the United Nations|
|As is evident from the legal act adopted by the President of the United States, who has power to commit his State at international plane, and consequent consistent behavior of the United States organs and officials, the United States discontinued its participation in the JCPOA. The withdrawal of the United States from the JCPOA and the violation resolution 2231 are fundamental factors affecting the modalities for triggering the “Snap-back”. The United States cannot recur to using this mechanism without settling first the situation with its significant non-performance. There are no grounds to use the “snap-back” procedure since there is no significant non-performance on the part of Iran.|
|Permanent Representative of China to the United Nations|
|U.S. ha persistently violated the JCPOA and UNSC resolution 2231, by reinstating illegal unilateral sanctions, and forfeited any right to make use of instruments provided for by resolution 2231, including those in OP 11. The remaining JCPOA participants and overwhelming majority of the Security Council members believe that the U.S. claim has no legal basis. U.S. communication should not constitute the basis for invoking the snapback mechanism.|
|Permanent Representation of the Kingdom of Belgium to the United Nations|
|Belgium, as a non-permanent member of the Security Council for the period 2019-2020, does not recognize the legality of this purported notification.OP11 of resolution 2231 (2015) reserves the right to activate the snapback mechanism only to a “JCPOA participant State”. However, by deciding to cease their participation in the JCPOA on 8 May 2018, the United States can no longer be considered as a “JCPOA participant” under OP10 and, therefore, lost the right to initiate the snapback process reserved to a “JCPOA participant State” by OP11. The purported notification dated 20 August must therefore be considered as void.|
|Chargé d’affaires a.i. of the Permanent Mission of Estonia to the United Nations|
|The United States explicitly announced its exit from the JCPOA with the presidential memorandum of 8 May 2020 entitled “Ceasing U.S. Participation in the JCPOA”. This was followed by the United States not taking part in the provisions of the JCPOA. We take note of the United States’ interpretation, but all other members of the JCPOA have declared that the United States cannot be considered as a JCPOA participant State. Therefore, we find that sanctions snapback procedure cannot be initiated in this case.|
|Permanent Representative of Indonesia to the United Nations|
|United States cannot invoke the Snap Back Mechanism under Resolution 2231 because it has withdrawn from the Joint comprehensive Plan of Action (JCPOA). The letter that was sent by the United States cannot be considered as a notification within the meaning of OP11 of the Resolution 2231, and any subsequent action based on this notification has no legal effect.|
|Permanent Representative of Viet Nam to the United Nations|
|JCPOA constitutes an integral part of United Nations Security Council Resolution 2231. As such, the invocation of processes and procedures under Resolution 2231 shall follow the implementation of the JCPOA. States may not retain the respective rights after disowning from fulfilling their own obligations under such commitments. In this connection, it is noted that on 8 May 2018, a Presidential Memorandum was issued by the United States of America in which the ceasing of participation of the United States of America in the Joint Comprehensive Plan of Action (JCPOA) was announced.|
|Permanent Representatives of Niger, Tunisia, South Africa and Saint Vincent and the Grenadines to the United Nations|
|As resolution 2231 and the JCPOA are inextricably linked and are mutually contingent, any party that, out of its own volition, withdraws from the JCPOA, cannot be regarded as a JCPOA participant state and thus would not be able to invoke the provisions of resolution 2231 as a “participant state”. The United States, of its own volition, unilaterally withdrew from the JCPOA on 8 May 2018, reinstating unilateral sanctions against Iran, which is in violation of the JCPOA and resolution 2231. Having confirmed its withdrawal from the JCPOA and by not participating in any of the JCPOA structures or subsequent activities, the United States ceased to be a JCPOA participant and is, therefore, ineligible to submit a notification to the Security Council in terms of resolution 2231.|
|Permanent Representative of the Germany, France and United Kingdom to the United Nations|
|Germany, France and the United Kingdom (“the E3”) do not consider that the United States is a JCPoA participant State under UNSCR 2231 (2015) anymore and therefore do not consider that the United States’ notification is effective. President Trump’s Memorandum of 8 May 2018 formalised this position and since then, the United States Government has consistently taken steps to end its participation in the JCPOA, in particular, it ceased to fulfill its commitments under the JCPoA. Consequently, as a matter of fact, the United States is no longer a “JCPoA participant State”. The E3 firmly believes that the purported notification under OP 11 of UNSCR 2231 (2015) is incapable of having legal effect and so cannot bring into effect the procedure foreseen under OP 11. 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.|
Even if the us was still a “jcpoa participant” wether THERE would be ANY OTHER obstacle THAT COULD BLOCK the SNAPBACK?
Yes; regardless of U.S. Withdrawal from the JCPOA and the fact that it is not entitled to invoke any mechanism enshrined in the UNSCR 2231, the notification submitted by US invoking activation of so-called SnapBack lacks other requirements for the effective notification; first, US has never exhausted the procedures specified in the JCPOA Para 36. Second, the initiation of the Snapback procedure needs to be in ‘good faith’. Good faith is an inseparable part of international cooperation, especially when this cooperation is the basis for the implementation of the JCPOA and UNSCR 2231. The actions and positions of the current U.S. administration have proven that it has never acted in good faith.
In its letter dated 20 August 2020 to the President of the Security Council, the United States illegally claimed to be a participant to the Joint Comprehensive Plan of Action (JCPOA), attempting to unlawfully invoke operative paragraph 11 of resolution 2231 (2015). The United States has later claimed that the Security Council resolutions that have been terminated pursuant to paragraph 7 (a) of resolution 2231 (2015) is reinstated on 20 September 2020.
There is an agreement between members of the Council that United States is not a participant the JCPOA and violated UNSCR 2231 and JCPOA by unlawful withdrawal and (re)imposition of unilateral sanctions on Iran. In reaction to the aforesaid letter of the United States, none of the Security Council Members accepted the eligibility of that country to initiate a process to reinstate the Security Council resolutions that have been terminated pursuant to paragraph 7 (a) of resolution 2231 (2015). Rather, through individual or joint letters addressed to the President of the Security Council, 13 out of 15 Members of the Council _including all remaining participant States of the JCPOA who are Council Members_ have unequivocally rejected the legal merit and the admissibility of that letter of the United States’ letter.
The views of the Islamic Republic of Iran on the above-mentioned attempt by the United States is reflected in the letter of our Minister for Foreign Affairs to the President of the Security Council on 20 August 2020 (S/2020/814), according to which, the attempt by the United States is null and void, has no legal standing and effect and is thus completely inadmissible.
Islamic Republic of Iran, in line with the obligations of all UN Member States under Article 25 of the UN Charter (as noted in the UNSC resolution 2231 (2015) is confident that the government of … will take all necessary national and international measures to prevent the recognition and the effectuation of this unlawful action by the United States.
Statement by the Ministry of Foreign Affairs of Iran, Javad Zarif