To Impose or Not To Impose?: Iranian Sanctions Under the Trump Administration

Photo Credit: Evan Vucci / Associated Press

On September 14, 2017, the Trump Administration once again waived U.S. sanctions on Iran, maintaining its commitment to the Joint Comprehensive Plan of Action (JCPOA).[1] Shortly thereafter, President Trump made several contentious comments directed at Iran during his speech at the United Nations General Assembly (UNGA) on September 19, 2017, putting his upcoming certification of Iran’s compliance with the JCPOA into question.[2] How easy is it exactly for the President to reimpose sanctions on Iran? Actually, not hard at all.

The JCPOA is an international multilateral agreement falling entirely within the scope of the executive power. There are two congressionally-mandated protocols that place a check on this executive power within the domestic arena.

First, § 135(d)(6) of the Iran Nuclear Agreement Review Act of 2015 requires the executive to certify Iran’s compliance with the JCPOA every 90 days.[3] If the President decides not to recertify by the next deadline on October 15, 2017, the sanctions question lands in Congress’s lap. Congress then has 60 days to decide whether U.S. sanctions on Iran will remain lifted.

Second, under 22 U.S.C. § 8513a(d)(5), the President may choose to waive the § 8513a congressionally-imposed sanctions on Iran every 120 days.[4] Renewing the waiver is entirely the prerogative of the President, and the next waiver deadline will be in January 2018. The specific details of presidential waivers are less important than the fact that both renewing sanctions waivers and certifying compliance are actions solely within the purview of the President.

Hence, the relative ease in unravelling the JCPOA. Given the low likelihood of majority passage through Congress if the President decides to decertify compliance (key Republicans, including Bob Corker (R-TN) and Paul Ryan (R-WI) have indicated support for the JCPOA[5]), sanctions waivers may be of greater significance than compliance recertification, making January 2018 a potentially more important signpost than October 15, 2017.

Because the JCPOA is an international agreement and not a treaty, the authority to pursue international action against Iran (as opposed to the two domestic options described above) falls entirely under the executive branch. President Trump could submit a noncompliance complaint against Iran to the JCPOA’s Joint Commission, which would trigger a 35-day dispute resolution process. If after this process, the Administration determines that the complaint is unresolved, the U.S. will have two options: 1) it may use the unresolved issue as grounds to cease its own performance under the JCPOA, which would in effect “snap back” U.S. extraterritorial sanctions on Iran; or 2) it may notify the United Nations Security Council (UNSC) that the unresolved issue constitutes “significant nonperformance” under the JCPOA. The UNSC would hold an affirmative vote on a new resolution to keep sanctions on Iran lifted. If the U.S. exercises its veto power, the vote will fail, as will the JCPOA, reimposing all pre-JCPOA sanctions from all parties to the agreement.

The likelihood of President Trump issuing a complaint to the Joint Commission is low given the significant pushback he is likely to receive from the international community. Such recalcitrance would risk burning bridges with other JCPOA parties, including China, Russia, and Germany – not an ideal situation with fragile foreign policy decisions looming ahead in Syria, Iraq, and North Korea. And considering President Trump already waived sanctions twice, and the likelihood of passage through Congress is low. I am of the opinion that the JCPOA will remain intact for some time. The Washington Post released an article on October 5, 2017 stating President Trump will issue a decision not to certify compliance on October 12, 2017. October 12th has come and gone, and so we continue to wait and see.

Shirin Lakhani is a 3L JD/MBA candidate at the University of Denver Sturm College of Law and the Business Editor for the Denver Journal of International Law and Policy.

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[1] Washington Post, U.S. extends Iran sanctions relief while bemoaning behavior (Sept. 14, 2017).

[2] The White House, Remarks by President Trump to the 72nd Session of the United States General Assembly (Sept. 19, 2017).

[3] H.R.1191 — 114th Congress (2015-2016).

[4] 22 U.S. Code § 8513a – Imposition of sanctions with respect to the financial sector of Iran.

[5] PIRA, The Iranian Nuclear Deal Can Survive a Trump Decertification (Sept. 12, 2017).

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