Sanctions on Iran: A Booby-Trapped Arena

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A handout picture released by the official website of Iranian President Hassan Rouhani shows him giving a speech during a visit to the historic Iranian city of Isfahan, 450 kilometres south of Tehran, in February 4, 2015. AFP/Iranian Presidency Website

By: Nadine Chalak

Published Tuesday, February 10, 2015

The US Congress’ threat to impose new sanctions on Tehran enraged US President Barack Obama and parties involved in the negotiations between Iran and the P5+1 (the five permanent members of the UN Security Council, plus Germany). Although the US president has vowed to veto such a move, the issue raises questions about the role and authority of Congress in lifting sanctions, how it affects presidential decisions, and the impact of lifting sanctions imposed by the UN Security Council.

Victories usually occur on clear and solid foundations, rather than inside a vacuum. In the case of the US-Iranian negotiations, resorting to such foundations — whether or not they are clear or durable — may be a misstep, considering the assumptions and interpretations that may arise from them, stir up public opinion, or damage the general morale.

In his State of the Union address at the Capitol about two weeks ago, President Obama once again told the Republican-controlled Congress to stop obstructing his plans. He threatened to veto a potential decision by lawmakers to impose new sanctions on Iran, driven by an enthusiasm and awareness that he can achieve a presidential victory with the current available means. The general political atmosphere in the United States today favors diplomacy over sanctions. Accordingly, it is only normal to take advantage of conditions that were not available less than two years ago, when the balance was tilted toward sanctions rather than diplomacy.

The US president masters both the art of intimidation and diplomacy. However, this did not prevent Congress from seeking to adopt new sanctions, even if deferred ones, thus putting the White House in a new confrontation with its republican leadership and Israeli Prime Minister Benjamin Netanyahu, the US ally and permanent critic of Obama's policy. Netanyahu’s invitation to deliver a speech before Congress came to further inflame tensions between the executive and congressional republicans, prompting the president’s democratic allies to warn Israeli officials that such a move would negatively impact US-Israeli relations, while talks with Iran on the nuclear matter are underway.

Despite this concern, US House of Representatives Speaker John Boehner (R-Ohio) insisted on inviting Netanyahu to speak before congress, saying that “it is important that American legislators hear what he has to say given their concerns over the course of the talks with Iran.” Through this alliance, Boehner and Netanyahu seek to rally support from the legislators in general, and Democrats in particular.

Instead of seeking to reach a deal with the Senate members, the US president chose to confront them, warning of the potential consequences of such a move and impact on the talks. But the fact remains that the decision to lift sanctions against Iran is not in Obama’s hands, as only Congress has the authority to do so. Thus, Obama is facing multiple obstacles, including the US law, particularly if he opts to take further steps to reach a nuclear deal while bypassing the legislature.

Iran and the United States are still seeking to resolve issues related to the level and size of uranium enrichment and nuclear fuel production. However, the main point of disagreement is how to cancel the sanctions, given that it is a political and economic process that does not involve the United States alone, but the Security Council and the European Union as well.

For this reason, Iranian officials have repeatedly said that these sanctions were imposed by four sides, not three — the Security Council, the European Union, the US president, and Congress — being fully aware that each one of them has its own legal, political, and executive role.

“The sanctions regime is highly interwoven … actions on [lifting] oil sanctions, financial sanctions, they are of limited value separately,” Assistant Foreign Minister of Iran Abbas Araghchi said.

Obama and Congress

Washington insists on obtaining major concessions from the Iranian side, in return for suspending a number of sanctions in advance, and postponing the actual lifting of sanctions to a later date. US officials claim that their insistence stems from a fear that dropping sanctions at an earlier date “will eliminate the incentive on the part of the Iranians to comply with the agreement,” and re-imposing sanctions would be difficult to do.

A minority of Americans view the elimination of sanctions from a different angle. They believe that ending Iran's isolation and allowing its integration into the regional political and economic structure and the world economy “will by itself be a sufficient and strong deterrent against any intention to reactivate what it has agreed to halt in its nuclear program.”

Others consider the issue solely from a legal and constitutional perspective.

The sanctions Barack Obama promised to drop in the nuclear talks were not imposed by him, but by Congress, and they have to be lifted by the institution that imposed them.

Trita Parsi, an Iranian researcher living in the United States and founder of the National Iranian American Council, commented on the issue a few days ago. He said that the Iranian side faces serious risks in this regard, since it is dealing “with a president who does not have the full capacity to lift sanctions. Thus, the Iranians must demand [assurances] in return before making concessions.”

In the absence of congressional approval, the US president cannot decide to drop the sanctions imposed on Iran. However, he may resort to an executive agreement that allows him to evade limitations, which is insufficient from a constitutional perspective.

Legal experts have proposed a “treaty” to avoid a ineffectual executive agreement. According to David Rivkin and Crown Casey, experts on constitutional affairs and international politics, such a treaty would also have to be recommended and approved by Congress.

If the US president can bypass the approval of Congress, Iran would have to approve the idea of a treaty to confirm a permanent elimination of sanctions. Thus, Iran should insist on the participation of Congress in the negotiations, since executive agreements are far less credible than treaties, and future presidents will be entitled to reconsider or cancel agreements signed by their predecessors. However, they cannot annul treaties as easily, for treaties approved by Congress are as powerful as the law.

Moreover, the system of sanctions currently being applied against Tehran is very complex. It was set decades ago, and includes intertwined conditions, laws, and executive decisions that can only be changed or cancelled by a new legislation. A case in point is the penalties imposed by the US Treasury on the Central Bank of Iran, through its classification as “an entity that raises a key concern in regards to money-laundering” due to its involvement in “financing terrorism,” among other things.

Another example referred to by Rivkin and Casey is the elimination of specific sanctions, such as allowing US financial institutions to deal with Iranian banks that were previously blacklisted, in which case — the two experts opine — the Iranians should not accept an executive agreement which may be reconsidered by the president who will succeed Obama.

With Congress determining the limits of any acceptable nuclear deal with Iran, the worst case scenario will be avoided, whereby the US president would unilaterally sign a pledge concerning the sanctions without being able to commit to this pledge.

In the same context, the two legal experts add that a real and achievable deal “can grant the president and Washington a foreign political victory, and this would only be possible with the full cooperation of Congress, which Obama should deal with as a partner, not as an enemy to be ignored.”

The United Nations as a third party

Tehran is aware that without full political support from the United States to reach an agreement, the narrow window of opportunity to lift the sanctions imposed by the United Nations would be closed, as such a step can be blocked with a US veto.

According to previous reports, Iranian negotiators, during the last round of talks, stressed on an early lifting of the sanctions imposed by the UN Security Council as part of any nuclear agreement.

According to Michael Singh, a researcher at the Washington Institute for Near East Policy, “both steps would prove problematic for the United States. Once lifted, U.N. sanctions could not quickly or easily be re-imposed in the event of Iranian cheating.”

Singh says that “although Russia and China voted in favor of sanctions on six occasions from 2006 to 2010, they would probably block any reintroduction,” adding that “lifting of UN sanctions should thus come in the final, not the initial, phase of any accord.” He notes that this concern is shared by the Americans, British, French, and Germans, especially since the measures taken by the United Nations are the key foundation on which the formulation of global sanctions are based on.

In addition, most of the sanctions against Iran are not only related to its nuclear aspirations, but to other “practices” deemed “illegal” by the UN. Also, some actions clearly linked to nuclear activity, such as Security Council Resolution 1737, includes other sanctions such as “a ban on the export of weapons by Iran” — which, according to Singh and other experts, must be maintained regardless of any agreement.

Despite this complex situation, the Iranians insisted on the elimination of sanctions along with all the other bans, which they see as an essential part of any agreement, while the issue is being used as pressure tool by the West.

In separate letters addressed to his counterparts from various countries, Iranian Foreign Minister Mohammed Javad Zarif explained his country’s initial position on the negotiations with the P5 + 1. He said that one of the objectives of the joint plan program is the elimination of all bans, which is an essential part of any agreement. He noted that some parties do not want to abandon this inhuman, illegal, and unconstructive tool, even if at the price of undermining a process that contributed to building trust and transparency. He noted that “clinging to sanctions impedes the process of reaching a comprehensive agreement on the long-term.”

Success in reducing efforts to issue a new draft penal law

Last year, a draft law to impose new sanctions on Iran received support from 17 Democrats and all Republicans. However, support for a similar project declined after the White House mobilized opposition against such a bill, which is currently supported by seven Democrats only.

This means the decision to impose new economic sanctions on Iran will be met with a tough battle, and may not end with winning a majority of votes to counter a veto. In order to obtain a majority of 67 votes, the Senate hawks will need more Democrats on their side. If the supporters of sanctions fail to win the support of at least 14 Democrats in order to pass the law, they will not be able to revoke the veto which Obama intends to use. All they will do is embarrass themselves by virtue of trying.

The views expressed by the author do not necessarily reflect Al-Akhbar English's editorial policy. If you would like to submit a thoughtful response to one of our opinion pieces, send your contribution to our submissions editor.

This article is an edited translation from the Arabic Edition.

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