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Larry Johnson, adjunct professor at Columbia law and former UN Asst SG for Legal Affairs, knows the law & UNSC rules. In a so-far unpublished paper, he explains why a US effort to snapback UN #Iran sanctions may not succeed. He allowed me to present the key points, as follows. 1/
As of 8 May 2018, the US—according to its own official documents and statements—was no longer a “JCPOA participant.” So on what basis does the US now claim to be a participating State under the resolution entitled to invoke the snapback? 2/
Perhaps the argument is based on the US being described as a “JCPOA participant” in a paragraph of resolution 2231, which is independent of the text of the deal itself. 3/
It sounds like the argument is that since it was a “Chapter VII” binding resolution, the US is a “participant” until the Council decides otherwise, irrespective of the US position internally that it is out of the deal. If that is the legal basis, it is sorely flawed. 4/
First, the paragraph in question is purely descriptive and exhortatory; it lists as a factual matter who the participants were at the time of the adoption of the resolution in 2015. The Council did not impose or declare “participation status” on anyone. 5/
Second, the snapback under the binding paragraph of the resolution can only be triggered by a “participant State.” The US as of now and by its own doing, is in the same position as other non-participants on the Council. 6/
The US has no standing to invoke that provision or to make a “notification” of significant non-performance by Iran. 7/
Third, who decides who is a participant in the deal? The Council? A country on its own? The logic is of course that only the other participants decide who are fellow co-participants. It’s not for the Council or “outsiders” to decide that. 8/
Next steps: Can the US be stopped from invoking the snapback? Despite worrying commentaries that the answer is an unshakable “no” because snapback provision is too cleverly and tightly drafted, that is not entirely true. 9/
First, no one can stop any UN member from claiming to invoke the snapback and circulating a document. It’s similar to what happens in legal systems where anybody can file a claim on anything but the question is whether it will be “received,” considered and acted upon. 10/
Presumably the US will purport to submit the “notification” of significant non-compliance by Iran and the US will consider the 30-day clock to have automatically started running. W/in that 30 days, the US will expect a snapback resolution to be circulated and put to the vote. 11/
Even if informal consultations reveal strongly held divergent views and the US almost without backing, the US may well proceed to circulate the snapback draft resolution formally and publicly. 12/
Can action on the draft be stopped? Yes. UN bodies are not that different from city councils, state legislatures, parliaments; they are all governed by rules of procedure. There are two possibilities I [Larry Johnson] see: 13/
*Adoption of the agenda* For every meeting the Council at the start must adopt its agenda, which traditionally is one agenda item for each meeting. Adoption of the agenda is a procedural matter not subject to a veto. A provisional agenda needs 9 “yes” votes for adoption. 14/
The Council could simply not adopt the agenda requested for that meeting and thus the meeting ends. The 5 JCPOA participants on the Council plus 2 EU members = 7. They could deprive the US of the necessary 9 votes it needs in order to proceed. 15/
*Postpone discussion of the question indefinitely* Certain procedural motions have precedence over principal motions and draft resolutions before the Council, including a procedural motion “To postpone discussion of the question to a certain day or indefinitely”. 16/
Some may see no national interest requiring them to take a position on who a “participant State” is. They could maintain that it is for the States concerned to work out such issues. Until such time, best postpone discussion. 17/
If that happens, the US no doubt will continue to maintain that the notification was in order and that the snapback had automatically occurred because no resolution was adopted within 30 days continuing the termination of sanctions. 18/
Then what? Who would join the US in such an interpretation of what happened? Most States I [LJ] suspect would follow the lead of the remaining participants in the deal and the EU—no legal basis to re-impose sanctions and simply ignore the US position. 19/
As a legal point, the US attempt to invoke snapback is untenable and inadvisable. It comes down to the doctrine of “estoppel” – a legally imposed bar resulting from one’s own conduct and precluding any assertion regarding a fact. In real life, it is called “common sense .” 20/20
