Will American ‘Snap-Back’ Sanctions Exist Under the Deal?

Two top administration officials have refused to answer a question about whether Congress will continue to have the authority to enact “snap back” sanctions laws if the deal passes.  There is a broader question about the degree to which the UN Security Council’s adopted resolution already forces Congress’ hand under international law.  The administration needs to make clear its position on this matter.

Rick Richman of Commentary magazine noted an exchange between United States Under Secretary Wendy Sherman and Senator Robert Menendez.  Menendez was pushing the Under Secretary to explain whether Congress would even have the authority under international law as established by the Iran treaty to re-enact the Iran Sanctions Act.  Without the act, the Senator pointed out, there would be no American sanctions to “snap back.”

MENENDEZ: [T]he Iran Sanctions Act, that I was one of the authors of, expires next year. Do we have the right to reauthorize those [U.S.] sanctions now or at any given time? Yes or no?

SHERMAN: I believe, Senator, that it doesn’t expire until the end of next year and it’s premature to have that discussion.

MENENDEZ: … We either have the right or we do not have the right. Having a question of prematurely discussing something doesn’t answer the question of … [whether] we have the right or we don’t have the right.

SHERMAN: We said in this [JCPOA] document that it recognizes the Constitution of the United States. … So, in that case you do have the right. What we are saying is it’s – we would urge that it’s premature to make that decision.

MENENDEZ: Well, if you’re going to snap back, you got to snap back to something, and if the Iran Sanctions Act … [doesn’t] exist after next year, there’s nothing to snap back to.

As Richman points out, the Senator’s question wasn’t about Congress’ authority under the Constitution.  Menendez went on to read from a letter from Iran to the United Nations that pointed out that the deal explicitly commits Congress to not re-enacting the sanctions.  Senator Corker had earlier asked Treasury Secretary Lew the same question and received no satisfying answer.

The Iranians appear to be correct.  Paragraph 26 of the deal commits the US administration from imposing new nuclear related sanctions.  It does say that the administration shall do so “acting consistent with the respective roles of the President and the Congress,” but this nod to Congress’ existence is immediately followed by “will refrain from re-introducing or re-imposing the sanctions[.]”  Under UN Security Council Ruling 2231, then, the US administration is not permitted to allow the re-introduction of the sanctions.  It must refrain in accord with Congress, but it must refrain.  Congress appears to be obligated by the deal to vote only one way.

Meanwhile, paragraph 7 of the resolution clearly states that the Security Council “[d]ecides, acting under Article 41 of the Charter of the United Nations, that, upon receipt by the Security Council of the report from the IAEA… [a]ll States shall comply with paragraphs 1, 2, 4, and 5 and the provisions in subparagraphs (a)-(f) of paragraph 6 of Annex B[.]”  That annex defines “all states” as “all states without exception,” and defines a number of duties that neither Congress nor anyone else in the American government clearly has license to violate under the Security Council ruling.  Here too Congress’ Constitutional authority has been limited by the UN Security Council.

Of course, even Security Council permanent members do not always obey the Security Council rulings they have themselves endorsed.  The United States remains a sovereign nation, and the United Nations lacks the capacity to force us to live up to these commitments.  The Administration should make clear its position, however, on whether it will defend American sovereignty in the event of a Congressional rejection of the deal, or whether it will submit to the United Nations.