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Don’t Let the Snapback of Iranian Nuclear Sanctions Blow Up the U.N. Security Council

The U.N. Security Council rejected on Aug. 14 a resolution that would have indefinitely extended the United Nations’ conventional arms embargo on Iran. That sets up one of the most consequential diplomatic decisions of the 21st century for the United Kingdom and France: whether to preserve the unique powers of the Security Council’s permanent members or upend 75 years of multilateralism to save a nuclear deal with Iran that begins to expire in less than 75 days.

The coming controversy surrounds U.N. Security Council Resolution 2231 (UNSCR 2231), perhaps the most flawed, convoluted, and yet ingenious resolution ever passed by the Security Council. Ostensibly, the resolution merely endorsed the Iran nuclear deal, formally known as the Joint Comprehensive Plan of Action (JCPOA). In practice, it established a series of incentives for Iran to abide by its nuclear commitments, including the termination, or sunset, of the U.N. arms embargo and its restrictions on Tehran’s ballistic missile program.

The ingenuity of UNSCR 2231 lies in its creation of the snapback process, which enables any one of the council’s five permanent members (P5) to cancel the sunsets and reimpose multilateral sanctions, effectively killing the JCPOA. Whereas the reversal of Security Council actions typically requires unanimity among the P5, because of the snapback process, the preservation of UNSCR 2231 requires unanimity among the P5.

Since the council failed to extend the arms embargo on Iran, the United States is preparing to trigger a snapback. The United Kingdom and France remain deeply committed to the JCPOA, so they are searching for any procedural loophole that would enable them to strip the United States of its prerogative. London and Paris believe they have discovered precisely such a lacuna, yet if they invoke it even once, others will use it again and again to rob the P5 of their veto power. To protect a single multilateral agreement, the French and British will have to destroy the foundation of the multilateral system they claim to cherish.

The first sunset mandated by UNSCR 2231 is scheduled for October, when the U.N. prohibition on transfers of conventional arms to and from Iran will expire. In 2023, another sunset will end the U.N. ban on international support to Iran’s missile program. Additional sunsets on Iran’s nuclear program quickly follow.  Fortunately, these sunset incentives came with one condition: Iran could not breach the JCPOA’s limits on its nuclear program. UNSCR 2231 created the snapback process as a means of enforcing this condition.

The process, however, is convoluted. UNSCR 2231 defines several countries, including the United States, as “JCPOA participants” and gives each the right to file a complaint with the Security Council if Iran ever breaches its nuclear commitments. Any member of the council can then introduce a resolution to ignore the complaint and keep Iran’s sunsets intact. If no member comes forward, the presiding member of the council is compelled to offer such a resolution after 10 days. The resolution must be put to a vote and passed within 30 days of the complaint being filed—otherwise, snapback occurs. Of course, any one of the permanent members can use its veto to run out the 30-day clock. This is how the snapback process flips on its head the usual requirement for unanimity among the P5.

But here comes the wrinkle. UNSCR 2231 provided no contingency for what to do should one of the original “JCPOA participants” leave the nuclear deal. Can a party leave the deal but maintain its right to exercise the snapback mechanism? More specifically, since the United States left the JCPOA in 2018, can it still trigger the snapback as a “JCPOA participant”?

Many parties wish the answer were no. Among them: Iran, which wants to keep its sunsets; Russia and China, which both want to sell arms to Iran; and some Western Europeans who are looking for any way to save the nuclear deal. But the resolution simply was not drafted that way.

The United States is defined forever as a “JCPOA participant” in a binding Security Council resolution for the purpose of snapback. Whether the resolution was drafted this way intentionally or not makes no difference. Whether the administration of former President Barack Obama carefully negotiated the wording of UNSCR 2231 to protect a U.S. snapback right in perpetuity, or the Trump administration took advantage of a glaring oversight, the outcome is the same. The resolution, a document legally independent of the Iran deal itself, gives the United States the right to trigger the snapback if Iran breaches its commitments.

As it turns out, Iran has done exactly that. The International Atomic Energy Agency reports that Iran has enriched uranium to a purity greater than 3.67 percent; increased its low-enriched uranium stockpile to more than 300 kilograms; stored excess amounts of heavy water; tested advanced centrifuges; and restarted enrichment at the Fordow enrichment plant. At the same time, the agency reports that Iran is refusing to allow international inspectors into suspected nuclear sites and may be concealing undeclared nuclear materials and activities.

Neither British Prime Minister Boris Johnson nor French President Emmanuel Macron can dispute that Iran is in significant noncompliance with its JCPOA commitments, which is the legal basis for a snapback complaint. While both nations, along with Germany, initiated the JCPOA’s dispute resolution mechanism in January and warned Iran to halt its nuclear advances, neither leader has had the courage to take the next step and file a complaint with the Security Council—even though snapback would not only hold Iran accountable for its nuclear activities, but also automatically extend the arms embargo on Iran and prevent Russia and China from further destabilizing the Middle East with sales of tanks, fighter jets, naval platforms, and more.

Enter Secretary of State Mike Pompeo, who vowed months ago to extend the arms embargo using all diplomatic means necessary ahead of a bipartisan request by nearly the entire U.S. House of Representatives. As Pompeo foreshadowed, the United States introduced a new resolution to extend the arms embargo this week but Russia and China blocked it. In response, the United States is expected to send a letter to the Security Council next week to trigger the snapback mechanism.

What comes next could determine whether the Security Council survives the next decade. Russia, China and pro-JCPOA Europeans are reportedly preparing to contest the validity of the U.S. snapback complaint. They may claim that while UNSCR 2231 does not contemplate a situation where a JCPOA “participant” no longer participates in the JCPOA, “common sense” should triumph over the legal text of the resolution (as if that argument has ever worked in a contract dispute for anyone in the real world). More significantly, these opponents of snapback may then propose a procedural motion to either declare the United States no longer a “JCPOA participant” or block the presiding member of the Security Council from scheduling a vote on a resolution to ignore the United States complaint (since scheduling that vote would de facto legitimize the U.S. complaint).

Still following? Good, because it gets a little bit more complicated. Since the founding of the United Nations, there has been a debate over what constitutes a procedural vote versus a substantive vote inside the Security Council. The distinction is important: The latter is subject to a P5 veto, while the former is not. Russia and China would likely insist that a motion to rule the United States is no longer a “JCPOA participant” is purely procedural. The United States would contend the issue is clearly substantive, since the question would reinterpret the plain text of a binding Security Council resolution. Who wins?

The precedent governing the Security Council dictates that the United States wins, because a preliminary vote must be held to decide whether a matter is procedural or substantive. That preliminary vote is subject to the permanent member veto, meaning the United States could veto a motion by Russia and China to rule their question procedural. The underlying motion then becomes substantive, meaning it too is subject to a U.S. veto. This is known as the “double veto” power of a permanent member. It is the ace in the hole for each of the P5—and though it has not been employed for decades, this is a paradigm case for its proper use.

Refusing to hold the preliminary vote, or denying the United States’ right to use its veto in that vote, would not only violate 75 years of Security Council precedent, it would forever change the Security Council. No longer would a permanent member’s veto be absolute; instead, it would be subject to consensus opinion. The United States might be the victim of such a coup in 2020, but Russia, China, the United Kingdom, and France would all find their vetoes up for debate in the months and years to come.

With such a new reality, U.S. leaders might rethink the utility of the Security Council. Skepticism of the U.N. system is already at an all-time high within the Republican Party, yet if Russia and China increasingly get their way, Democrats, too, may come to see the council as a liability, not an asset. Calls for the United States’ withdrawal from the United Nations might become mainstream. Withdrawal is not likely to be a priority if former Vice President Joe Biden is elected president. But what about four years later if former Ambassador to the United Nations Nikki Haley, Secretary of State Mike Pompeo, Sen. Tom Cotton, or Sen. Ted Cruz is elected?

So now it is time for London and Paris to take a deep breath and evaluate the magnitude of the diplomatic decision before them. Johnson and Macron can still avoid a diplomatic showdown at the Turtle Bay Corral. They could opt to trigger the snapback themselves, a logical step seven months after initiating the JCPOA’s dispute resolution process with nothing to show for it. If they’d rather oppose snapback and maintain support for the JCPOA until the very end, UNSCR 2231 gives them the tools to do that, too. Either country could introduce the resolution to ignore the U.S. complaint and keep the JCPOA alive. While the United States could veto the resolution, France and the United Kingdom would get to save face by voting to keep the nuclear deal and condemning the Americans for killing it—all without shredding the permanent member veto and risking the collapse of the United Nations.

But if either leader sides with Russia and China against the United States’ “double veto” right, they will not only shoulder the blame for the arms embargo on Iran expiring, but will also bear the responsibility for the beginning of the end of modern multilateralism.

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