The US “Snapback” Against Iran – Bad Politics and Flawed Law

Recent actions by the United States toward Iran are bad politics and bad law. A 9-page memorandum that I prepared on this topic — with help from a number of Yale law students and supported by legal advice from Professors W. Michael Reisman and Mahnoush Arsanjani of Yale, David Scheffer of Northwestern, and Larry Johnson of Columbia — details these concerns.

In summary, the “maximum pressure” campaign by the United States against Iran, in political terms: aims to kill the Joint Comprehensive Plan of Action (JCPOA) in a manner designed to help win a presidential election; increases potential for Iranian and US aggressive actions; threatens the viability of UN Security Council resolutions and undermines its role; doubles down on a blatant US treaty violation to seek greater advantage; threatens peace and security in the Middle East; jeopardizes US relations with European and other allies, Russia and China; unhinges the approach of “snapback” as a form of treaty-based guarantee to insure its observance (Iran should have gotten US reciprocity in the JCPOA); defeats the possibility of broader acceptance of an extension of the conventional arms embargo on Iran through negotiation; increases Iran’s capacity to produce a nuclear weapon; and isolates the United States, not Iran.

The United States took this  policy approach by assuming a flawed, unlawful position: by explicitly terminating its participation in the JCPOA, the United States is no longer a participant in the JCPOA, a reality that both the other members of the UN Security Council and all the other participants in the JCPOA have now confirmed; because the JCPOA and UNSCR 2231 are interconnected documents, even if the United States were still considered to be a “JCPOA participant,” the United States has failed to satisfy the procedural requirements necessary to invoke the snapback mechanism; international law estops the United States from invoking the Snapback provision after it unilaterally withdrew from the JCPOA; and the principles of “good faith” and “unclean hands” bar the United States from invoking the snapback under UN Security Council Resolution 2231 as it was the U.S. nonperformance of its JCPOA commitments that triggered any subsequent Iranian nonperformance.

Bad policy and an unlawful case do not promote US interests, leadership, or influence. These policy and legal concerns are detailed, with supporting citations, in this memorandum.

Photo: US Secretary of State Mike Pompeo speaks to reporters following a meeting with members of the UN Security Council about Iran’s alleged non-compliance with a nuclear deal and calling for the restoration of sanctions against Iran at United Nations headquarters in New York, August 20, 2020. (Mike Segar/AFP via Getty Images)

 

About the Author(s)

Ambassador Thomas R. Pickering

Former US Under Secretary of State for Political Affairs 1997-2000; former US Ambassador to Jordan, Nigeria, El Salvador, Israel, United Nations, India and Russia.