By Kelsey Davenport and Julia Masterson

Photo: The foreign ministers from Iran and the countries of the P5+1, as well as the High Representative of the EU for Foreign Affairs and Security Policy, after agreeing the Iran Nuclear deal, 14 July 2015. Courtesy of Dragan Tatic/Wikimedia.

While Julia Masterson is research assistant, Kelsey Davenport is the director for non-proliferation policy at Arms Control Association. The Association’s website published this analysis on May 15.

WASHINGTON (IDN) – The United States is considering a range of options to prevent the October 2020 expiration of a UN embargo that restricts arms sales to and from Iran. Those options include making a legal case that the United States remains a bona fide participant of the nuclear deal with Iran that it withdrew from in May 2018 in order to use a Security Council provision to block the embargo’s expiration. [2020–05-17]

The embargo’s October 2020 expiration date is written into UN Security Council Resolution 2231, which endorses and helps implement the nuclear deal, formally called the Joint Comprehensive Plan of Action (JCPOA).

U.S. Secretary of State Michael Pompeo said May 9 that Washington “will exercise all diplomatic options” to extend the embargo. The Trump administration has indicated it will pursue a stand-alone Security Council resolution establishing a new arms embargo on Iran first, but that measure will almost certainly be vetoed.

In that case, the United States has hinted at its intent to prevent the arms embargo from expiring through a provision of Resolution 2231, which grants listed participants of the nuclear deal the ability to unilaterally ‘snap back’ all UN restrictions that were lifted or would be lifted per the nuclear agreement. Snapping back sanctions through Resolution 2231 would extend the arms embargo indefinitely and cannot be vetoed.

In a May 13 opinion column published in the Wall Street Journal, Brian Hook, the State Department’s special representative on Iran made that threat more explicitly, writing “one way or another, the U.S. will ensure [the arms embargo] remains in place.” Hook said that “if American diplomacy is frustrated by a veto, however, the U.S. retains the right to renew the arms embargo by other means. Security Council Resolution 2231 (2015) lifted most UN sanctions but also created a legal mechanism for exclusive use by certain nations to snap sanctions back.”

Reimposing all UN sanctions and restrictions on Iran would likely collapse the JCPOA and tie the hands of a future U.S. president seeking to return to the multilateral nuclear deal.

In a May 6 speech, Iranian President Hassan Rouhani threatened that “Iran will give a crushing response if the arms embargo on Tehran is extended,” and said that “Iran would never accept the extension of an arms embargo.”

Earlier this year, Iranian Foreign Minister Javad Zarif also warned that Iran would withdraw from the nuclear Nonproliferation Treaty (NPT) if referred to the Security Council over its nuclear program and faced with the reimposition of UN sanctions.

If Iran withdraws from the NPT, its nuclear program would not be limited or subject to required monitoring under international law.

It is unclear if the Trump administration’s plan to pursue snap back will succeed. While the United States formally abrogated the JCPOA in May 2018 and U.S. officials have stated on numerous occasions that Washington is no longer party to the deal, Resolution 2231 was never amended to reflect U.S. withdrawal, and still lists the United States as among the “JCPOA participants” that reserve the right to unilaterally invoke the snap back mechanism.

According to Pompeo, “UN Security Council Resolution 2231 is unambiguous where the United States is a participant” and that “the rights that accrue to participants in the UN Security Council resolution are fully available to those participants.”

In response to the Pompeo’s claim that the United States is a JCPOA participant, Zarif urged Pompeo to “stop dreaming.”

Hook also told reporters April 30 that the language of Resolution 2231 clearly defines the United States as a participant of the deal. “For the purpose of resolving issues… we have certain rights that are clearly there and there’s no qualification,” Hook noted.

Yet Hook’s comments in April directly contradicted remarks he made to the press in Paris March 5, following a meeting with French, German, and British counterparts. There, Hook made clear that “we’re out of the deal.” He added that “the countries that are in the deal will make decisions that are in their sovereign capacity,” appearing to dismiss any notion that the United States could pursue snap back.

Trump administration officials reportedly shared with the Europeans a draft of a standalone Security Council resolution to indefinitely extend the arms embargo in February 2020. Although the Europeans reportedly share Washington’s concerns about Iran’s arms trade, they have made clear they do not support steps to extend the embargo that could lead to the nuclear deal’s collapse.

A European official cited by CNN said France, Germany, and the United Kingdom would not condone extending the embargo through the Resolution 2231 snap back clause because “the arms embargo is a legitimate part of the JCPOA.”

Should the United States seek to snap back sanctions under Resolution 2231, it is highly likely that the remaining P4+1 parties to the nuclear deal (China, France, Germany, Russia, the United Kingdom, and the EU) will strive to delegitimize the U.S. legal argument in order to preserve the JCPOA.

In an April 30 interview with Radio Farda, EU Foreign Policy Chief Josep Borrell expressly stated that Europe does not consider the United States a participating member of the 2015 nuclear deal. Russia’s Ambassador to the UN, Vassily Nebenzia, said May 12 that the U.S. legal argument is “ridiculous” and that it is “unequivocal” that the Trump administration has “no right” to use the snap back mechanism.

More than three-quarters of the members of the U.S. House of Representatives signed on to a May 4 bipartisan letter co-sponsored by Foreign Affairs Committee Chairman Eliot Engel (D-NY) and Ranking Member Michael McCaul (R-Texas) urging the administration to pursue diplomatic measures to prevent the expiration of the arms embargo.

The letter does not mention the JCPOA or the snap back process, but according to a statement by Engel, “This letter, supported overwhelmingly by both parties in the House, represents an imperative to reauthorize this provision – not through snap back or going it alone, but through a careful diplomatic campaign.”

The Trump administration is adamant about extending the arms embargo on Iran. However, if the embargo expires as scheduled in October, many key restrictions governing arms sales to and from Iran will remain in place. Iranian arms sales will continue to be subject to U.S. sanctions and UN resolutions that prohibit the sale of arms to the Yemeni Houthis and to nonstate actors in Lebanon – including Hezbollah. [IDN-InDepthNews – 17 May 2020]

Photo: The foreign ministers from Iran and the countries of the P5+1, as well as the High Representative of the EU for Foreign Affairs and Security Policy, after agreeing on the Iran Nuclear deal, 14 July 2015. Courtesy of Dragan Tatic/Wikimedia.

IDN is flagship agency of the International Press Syndicate.

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