US sanctions against Iran: the legal and political perspective
What are the sanctions?
Sanctions, in law and legal definition, are penalties or other means of enforcement used to provide incentives for obedience with the law, or with rules and regulations. It demonstrates the international society’s concern about world peace and its readiness for use of force afterwards.
The US is the global leader of sanctions with 70% of all the sanctions imposed are by the US. 140/183 states have been sanctioned by the US during the Cold War. “Sanctions are a piece of the US diplomacy puzzle, they are efficient where diplomacy is inefficient and military force is not the right response”, as the former United States Secretary of the Treasury, Jacob Lew, said. According to J.A. Nye, sanctions need to be imposed strongly and its aims need to be clear.
Effectiveness and efficiency of sanctions
It is important to distinguish between efficiency and effectiveness of the sanctions. For example, in the case of Russia, it is not clear yet what affected its economy more: sanctions or the drop in the price of oil? Additionally, if the sanctions against Russia were intended to decrease Putin’s popularity, they were inefficient since it did not have the desired effect. If they were imposed to force Russia to return Crimea to Ukraine, they were ineffective as well.
When it comes to Iran case, the first round of international oil sanctions in 2011 which resulted in the fall of exporting capacity, meaning it was effective if that was the desired goal. However, in recent sanctions by the US on oil exportation, the goal was to change Iran’s regional behavior, allegedly. This did not happen, therefore the sanctions were ineffective in that regard.
President Trump claimed in January 2020 that due to his foreign policy the public opinion in Iran against its government had changed, boosted America’s popularity. However, an opinion poll by the University of Maryland proves that Iranians unfavorable opinion towards the US has been growing, after the election of President Trump in 2016 and the assassination of General Soleimani in 2020 has deteriorated it, expectedly. The public opinion towards the US administration hasn’t improved at all, it has gotten worse. All in all, the sanctions were effective in certain aspects like economy, ineffective in other aspects especially the political aims.
The legitimacy of international sanctions
Some believe that sanctions are a legally legitimate tool for sovereign states to adjust their own commercial policies. The principle of reciprocity allows states to impose unilateral sanctions as well. Others believe the UN General Assembly resolution 1803 banns states to impose sanctions as states and international organizations shall strictly and conscientiously respect the sovereignty of peoples and nations over their natural wealth and resources. Therefore, if the US sanctions Iran and bans other nations from trading with Iran, this constitutes as US interference in another sovereign’s rights which is in contradiction with UN Resolution 1803. The legitimacy of sanctions can be discussed from the public international law perspective, as well.
Sanctions from the viewpoint of Public/International Law
Sanctions should obey certain principles, even if they are considered to be legitimate, as some cases of the sanctions according to the UN Charter:
- Principle of Humanity: It is something beyond human rights, a general principle of international law that provides that civilians are hors de combat and that even as regards to combatants, superfluous injury or unnecessary suffering is prohibited. It is reasoned that if the principle of humanity should be respected in the war, the sanctions, as the step before the war, should not violate it either. In other words, sanctions should not limit the rights of humanity to access to potable water, health, sanitation, education and other primary facilities. In the case of sanctions by the US against Iran, they are targeting not just the government allegedly, but also ordinary people (because access to medicine/health care, for example, has been affected adversely by the sanctions). Similar to how Genova Human Right’s Convention Article 3 regulates the minimum rules of war (e.g. civilian areas shall not be bombed). Essentially, sanctions should be targeted towards the people directly responsible.
- Principle of Necessity/Proportionality: Actions should be proportional to the threat that the targeted state points to global security. Also, they should be in accordance with the “Principle of goodwill”, meaning no further harm than needed is allowed, and they should make “greatest good for the greatest number of people.”
Principle of Non-Discrimination: It should be harmonic with similar cases. Here, we can obviously see a dual standard in behaving Iran and other states who has a nuclear program as they had never faced the sanctions that Iran experienced.
The legality of the US call for the UN re-imposition of sanctions against Iran
According to the JCPOA, Sanctions can be imposed when a “significant violation” of the JCPOA (Joint Comprehensive Plan of Action) happens, and it should be affirmed by IAEA (International Atomic Energy Agency). In such cases, JCPOA participants can start the enshrined dispute settlement mechanism (DSM) in UNSC resolution 2231 or the JCPOA. However, the US admitted they ended their participation in the JCPOA in 2018, when D. Trump signed “Presidential Memoranda [on] Ceasing U.S. Participation in the JCPOA”, published 8.5.18. Surprisingly, President Trump withdrew from the JCPOA, when the IAEA affirmed for the 13th time that Iran is adhering to the deal, indicating no significant violation. Basically, the US withdrawal was illegal as DSM nor the reason for that were met.
Two years after the US walked away from the deal, the US Secretary of State Mike Pompeo claimed that although the US is not a participant of the JCPOA, they are participants of UNSC Resolution 2231 and therefore have a legal right to re-impose sanctions, according to so-called “snapback mechanism”. However, paragraph 10-15 of UNSC Resolution 2231 and Article 36 and 37 of JCPOA clearly and explicitly state that the snapback can be raised and applied only by JCPOA participants. In that sense, the US attempt to re-impose sanctions against Iran are more than illegal. As a result, both the rotating presidents of the UNSC (Indonesia and Niger) did not recognize the US efforts on snapback since then and the UN Secretary-General, Antonio Guterres, refused to adopt the sanction.