by Jean Galbraith [Jean Galbraith is an Assistant Professor of Law at the University of Pennsylvania Law School]
President Trump has reportedly made a decision about whether or not to end the Iran deal – although he won’t yet say what he’s decided. The Iran deal, more formally known as the Joint Comprehensive Plan of Action (JCPOA), is a political commitment rather than an agreement that is binding as a matter of international law. President Trump can thus abandon the Iran deal without violating international law, although there will be plenty of other repercussions from such a step.
But abandonment will nonetheless raise at least one interesting legal question. If the United States ends the Iran deal, can it thereby trigger the re-imposition of Security Council sanctions against Iran?
First, a bit of background (discussed more here). Prior to the JCPOA, the Security Council had imposed various sanctions against Iran – sanctions which all countries were legally obligated to enact. The core bargain in the Iran deal involved the lifting of sanctions, including these Security Council sanctions, in exchange for Iran’s commitments not to develop nuclear weapons and its acceptance of a monitoring regime. But what would happen if Iran failed to honor its commitments? In that case, would there be the votes on the Security Council to re-impose sanctions or instead might Russia or China veto such a resolution? In order to address this concern, negotiators included innovative provisions in the JCPOA and in Security Council Resolution 2231, which was passed in July of 2015 to help implement the JCPOA. These provisions have been referred to as the “snapback” provisions, and I have called them “trigger termination” provisions.
Summarizing a bit, Resolution 2231 provided that the pre-existing Security Council resolutions imposing sanctions on Iran are terminated, but they can be reinstated at any time during the next 10 years by any single P5 country (including the United States) or by Germany, under certain conditions. Specifically, the country seeking reinstatement must notify the Security Council “of an issue that [it] believes constitutes significant non-performance of commitments under the JCPOA.” If the Security Council does not pass any resolutions on this issue in the 30 days following notification, then the prior resolutions imposing sanctions are automatically reinstated. These resolutions would not apply retroactively to contracts signed prior to their reinstatement.
If President Trump simply ends the Iran deal without trying to trigger the snapback provision, then he can only re-impose U.S. sanctions. (He could try to persuade other countries to re-impose sanctions, but his ability to do that in practice will likely be fairly low.) But what if instead of or in addition to announcing an “end” to the deal, President Trump states that Iran is not complying with the deal and attempts to trigger the snapback provision? Will this be effective as a matter of law, even if President Trump’s claim of Iranian non-compliance looks like a pretext?
Resolution 2231’s trigger termination has some protections against arbitrar[y use], but not very strong ones. The activator can be a single state – any one of the P5 [including the United States], Germany, or theoretically Iran. The standard is that this state must ‘believe’ that there is ‘significant non-performance of commitments under the JCPOA.’ While ‘significant non-performance of commitments under the JCPOA’ is a reasonably clear criterion, the fact that the activator is only required to ‘believe’ this nonperformance to have occurred makes the standard a fairly flexible one. But although flexible, it is not a grant of total discretion. It must require a good faith belief in significant nonperformance, for otherwise it would be meaningless. Indeed, if such a good faith belief is demonstrably absent, other states would have grounds for considering that the trigger termination has not been properly activated. In that case, they could presumably treat Resolution 2231 as continuing in force and thereby have a legal basis for declining to reinstitute the prior sanctions.
If President Trump tries to trigger the snapback provision now, other countries will have reasonable grounds for disputing the legal effectiveness of such a trigger. Of course, if the United States walks away from the Iran deal and re-imposes its own sanctions, Iran may then cease its implementation of the deal and ramp up its pursuit of nuclear weapons. After that point, the United States will have good faith grounds to believe in Iran’s significant non-performance – but if Iranian non-compliance is clearly due to U.S. non-compliance, states might raise other arguments for doubting the legal ability of the United States to trigger the snapback.
In closing, my thanks to the editors of the Opinio Juris blog for letting me contribute this guest post.