EUROPEAN NON-PROLIFERATION DIPLOMACY IN THE SHADOW OF SECONDARY SANCTIONS - Sipri
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
SIPRI Policy Brief August 2020 EUROPEAN NON- SUMMARY w This policy brief describes PROLIFERATION DIPLOMACY European responses to secondary sanctions that the IN THE SHADOW OF United States imposed on Iran after withdrawing from the SECONDARY SANCTIONS 2015 nuclear agreement, or the Joint Comprehensive Plan of Action (JCPOA). In particular, tytti erästö it looks at the Instrument in Support of Trade Exchanges (INSTEX), which was established by France, After withdrawing from the Iran undermined Iranian people’s access Germany and the United nuclear agreement, or the Joint to basic humanitarian goods. Kingdom in 2019 to facilitate Comprehensive Plan of Action This policy brief describes European–Iranian trade, (JCPOA), in May 2018, the United European responses to US President initially focusing on the States imposed unprecedentedly Donald J. Trump’s administration’s humanitarian sector. While harsh sanctions on Iran. Iran secondary sanctions on Iran. In falling short of the kind of responded to this ‘maximum particular, it looks at the Instrument comprehensive economic pressure’ campaign by reducing its in Support of Trade Exchanges normalization that was JCPOA commitments. While the (INSTEX), which was developed expected under the JCPOA, USA assumes that more pressure by the E3 in 2019 to facilitate INSTEX could help maintain can lead to a ‘better deal’ with Iran, European–Iranian trade. It is the ailing nuclear agreement in European non-proliferation policy is argued that while falling short of addition to addressing some of the negative humanitarian based on preserving the JCPOA. the kind of economic normalization consequences of sanctions in The impact of US sanctions that was expected under the Iran. INSTEX can also be seen mainly derives from penalizing JCPOA, INSTEX has the potential as a test case for a more third parties for engaging with Iran. to alleviate human suffering and independent European foreign Such secondary sanctions make free some European–Iranian trade policy that could better foreign banks reluctant to process from secondary sanctions. The withstand future Iran-related transactions—even instrument can also be seen as an disagreements with major when they fall outside the scope experimental step towards a more powers. of US sanctions. Such sanction independent European policy that overcompliance makes it difficult could better withstand future for those European companies that disagreements with major powers. still want to trade with Iran to do so. This has also meant that the BACKGROUND European Union (EU) and the E3— In the mid-1990s when the USA first France, Germany and the United imposed extraterritorial sanctions Kingdom—have been unable to meet on Iran as part of the Iran and Libya previous expectations regarding Sanctions Act (ILSA), the European lifting of sanctions under the Council pushed back with the JCPOA. In addition to contributing so-called ‘Blocking Regulation’.1 to a deep socio-economic crisis within Iran, the sanctions have 1 US Congress, Iran and Libya Sanctions Act of 1996, Public Law 104–172, 5 Aug. 1996.
2 sipri policy brief In addition to prohibiting EU or lifted. 5 Under the compromise companies from complying with agreement Iran could continue secondary sanctions, the 1996 uranium enrichment under strict regulation gave them the right to limits and intrusive International recover related damages. 2 The EU Atomic Energy Agency (IAEA) also threatened to take the dispute inspections. 6 For Iran the most to the World Trade Organization significant benefit of the JCPOA (WTO). These measures contributed was economic normalization from to the 1997 decision by President the lifting of sanctions. However, Bill Clinton’s administration not to the most important factor enabling enforce the ILSA. 3 the agreement had arguably been However, the crisis over Iran’s new US flexibility on uranium nuclear programme in the following enrichment in Iran, based on secret decade created transatlantic bilateral negotiations in 2012–13.7 solidarity on the need for non- Yet, the diplomatic success was proliferation sanctions, in which commonly explained as a result of context the EU also accepted US sanctions. 8 secondary sanctions on Iran. In By withdrawing from the JCPOA addition to United Nations Security the Trump administration rejected Council sanctions in 2006–10, in the underlying compromise, 2012 the EU and the USA jointly assuming that more coercive imposed an oil embargo on Iran pressure could lead to more Iranian in an effort to end its uranium concessions on the nuclear issue enrichment activities. They also as well as regional and missile targeted Iran’s central bank and policies. While the resulting took measures leading to the maximum pressure strategy—by exclusion of several Iranian banks which the USA unilaterally from the Belgian-based Society for imposed a near-total oil embargo Worldwide Interbank Financial on Iran—has demonstrated Telecommunication (SWIFT) unparalleled US power over the system.4 global financial system, it has After conclusion of the JCPOA failed to reach its policy objectives. in 2015, previous UN Security Instead, Iran responded by Council sanctions on Iran were ceasing the implementation of key terminated with Resolution 2231, JCPOA commitments between and the transatlantic financial and May 2019 and January 2020, banking sanctions were waived and Iranian hardliners opposing engagement with the West have 2 European Council, Regulation No 2271/96 of 22 November 1996 protecting against the 5 UN Security Council Resolution 2231 effects of the extra-territorial application of (2015), 20 July 2015. legislation adopted by a third country, and 6 Joint Comprehensive Plan of Action actions based thereon or resulting therefrom, (JCPOA), Vienna, 14 July 2015, reproduced as 22 Nov. 1996. Annex A of UN Security Council Resolution 3 Katzman, K., ‘The Iran Sanctions Act 2231, 20 July 2015. (ISA)’, Congressional Research Service Report 7 Rozen, L., ‘Inside the secret US–Iran for Congress, updated 12 Oct. 2007. diplomacy that sealed nuke deal’, Al-Monitor, 4 Gladstone, R. and Castle, S., ‘Global 11 Aug. 2015. network expels as many as 30 of Iran’s banks in 8 See e.g. The White House, ‘The Iran move to isolate its economy’, New York Times, nuclear deal: What you need to know about the 15 Mar. 2012. JCPOA’, 14 July 2015.
european non-prolifer ation diplomacy 3 been empowered.9 While distancing The EU also failed to prevent the themselves from US policy, the decision—taken by SWIFT under US E3/EU have condemned Iranian pressure—to exclude Iranian banks actions, calling for full compliance from its payment system.14 Even the with the JCPOA.10 European Investment Bank—whose mandate was extended to Iran INITIAL EFFORTS TO COUNTER as an additional response to US SECONDARY SANCTIONS measures—considered investing in Iran too risky.15 To defend the JCPOA, in June 2018 the EU included the upcoming SHIFTING FOCUS TO SANCTION US secondary sanctions on OVERCOMPLIANCE Iran within the 1996 Blocking Regulation.11 However, the Trump In September 2018 the E3/EU administration’s obliviousness to announced a plan to develop the measure exposed the lack of a special trade instrument to an effective mechanism to enforce ‘facilitate payments related to Iran’s the legislation.12 In contrast the exports (including oil) and imports’ US Treasury Department’s Office to ‘assist and reassure economic for Foreign Asset Control (OFAC)— operators pursuing legitimate whose powers to enforce secondary business with Iran’.16 However, sanctions were significantly by the time of its establishment in broadened in the 2000s—has January 2019, the mission of the effectively deterred the private instrument—which sector from Iran-related activities.13 was then named Although it fell short of Iranian INSTEX—had been reduced, expectations, the mission of INSTEX 9 Press TV, ‘Iran announces decision to take fifth step to scale back JCPOA commitments’, at least initially, addresses a critical area of sanction 5 Jan. 2020; and Geranmayeh, E., ‘Reviving to trade in overcompliance the revolutionaries: How Trump’s maximum humanitarian pressure is shifting Iran’s domestic politics’, European Council on Foreign Relations Policy goods.17 Brief, 23 June 2020. Although it fell short of Iranian 10 Erästö, T. and Cronberg, C., ‘Will expectations, the limited mission of Europe’s latest move lead to the demise of the Iran nuclear deal?’, SIPRI Commentary, 21 Jan. 2020; and IAEA, ‘NPT safeguards sanctions dilemma’, Washington Quarterly, agreement with the Islamic Republic of Iran’, vol. 42, no. 3 (2019), pp. 57–71. Resolution adopted by the Board of Governors, 14 Reuters, ‘SWIFT says suspending some GOV/2020/34, 19 June 2020. Iranian banks’ access to messaging system’, 11 European Commission, Commission 5 Nov. 2018. Delegated Regulation (EU) 2018/1100 of 15 Emmott, R. and de Carbonnel, A., 6 June 2018 amending the Annex to Council ‘European Investment Bank casts doubt on EU Regulation (EC) No 2271/96 protecting against plan to salvage nuclear deal’, Reuters, 18 July the effects of extra-territorial application of 2018. legislation adopted by a third country, and 16 European Union External Action Service, actions based thereon or resulting therefrom, ‘Implementation of the Joint Comprehensive 6 June 2018. Plan of Action: Joint ministerial statement’, 12 Batmanghelidj, E. and Hellman, A., Joint statements, 24 Sep. 2018. ‘Europe, Iran and economic sovereignty: A 17 French Ministry for Europe and Foreign new banking architecture in response to US Affairs, ‘Joint statement on the creation of sanctions’, European Leadership Network, INSTEX, the special purpose vehicle aimed at June 2018. facilitating legitimate trade with Iran in the 13 See e.g. Sandberg-Zakian, E., ‘Insight: framework of the efforts to preserve the Joint OFAC $7.8M settlement with Swiss company Comprehensive Plan of Action (JCPOA)’, Joint expands tech enforcement’, Bloomberg Law, statement by the E3 foreign ministers, 31 Jan. 16 Apr. 2020; and Arnold, A., ‘A financial 2019.
4 sipri policy brief INSTEX addresses a critical area they have hindered timely delivery of sanction overcompliance. In of international aid to Iran. 22 principle, humanitarian trade is exempt from sanctions, but the lack HOW THE INSTRUMENT IN SUPPORT OF TRADE of specific reassurances from the EXCHANGES SHOULD WORK USA has meant a failure to apply this exemption in practice.18 As INSTEX is a cross-border clearing noted in a 2019 UN mechanism based on exchange Governmental ownership raises the report, the sanctions of goods or services that does not threshold for the USA to impose sanctions on Iran ‘unduly involve the transfer of currency affect food security between Europe and Iran. It on INSTEX plays the role of an intermediary and the availability and distribution of medicines, between companies, together with pharmaceutical equipment and its Iranian counterpart, the Special supplies’.19 Iran produces most Trade and Finance Instrument of its pharmaceutical products (STFI). The goal is to compensate European exporters with funds domestically, but international located in Europe, based on the banking restrictions have hampered value commensurate with the value domestic production by limiting of imports from Iran. The STFI imports of raw materials and is similarly tasked to coordinate undermined Iran’s access to payments to Iranian exporters specialized medicines needed to in accordance with the value of treat cancer and other chronic or imports from Europe. 23 rare diseases. 20 INSTEX can reassure banks While the pre-2015 and companies through its comprehensive sanctions joint ownership by three major regime on Iran also had negative European states (E3). 24 In addition humanitarian consequences, the to providing a high level of trust severity of current US sanctions, in the instrument’s due diligence alongside their counterproductive procedures, governmental non-proliferation impact, has drawn ownership raises the threshold for renewed attention to the problem. 21 the USA to impose sanctions on Criticism towards sanctions has INSTEX. In addition to the E3, four other European states—Belgium, increased with the coronavirus Denmark, the Netherlands and disease 2019 (COVID-19) crisis, as Norway—have joined INSTEX 18 Borger, J. and Kamali Dehghan, S., as shareholders, and two more— ‘US rebuffs Europeans over ensuring Iran sanctions exempt food and medicine’, The 22 Human Rights Watch, ‘US: Ease sanctions Guardian, 2 Nov. 2018. on Iran in COVID-19 crisis: Ensure access 19 UN General Assembly, ‘Situation of to essential resources’, 6 Apr. 2020; and human rights in the Islamic Republic of Chadwick, V., ‘EU aid official slams banks’ Iran’, Report of the Special Rapporteur on overzealous sanctions strategy’, Devex, 18 June the situation of human rights in the Islamic 2020. Republic of Iran, A/74/188, 18 July 2019. 23 Batmanghelidj, E., ‘INSTEX develops new 20 Kebriaeezadeh, A., ‘US sanctions are service in bid to fast-track Iran transactions’, killing cancer patients in Iran’, Foreign Policy, Bourse & Bazaar, 30 July 2019. 14 Aug. 2019. 24 Geranmayeh, E. and Batmanghelidj, E., 21 Erdbrink, T., ‘Iran sanctions take ‘Trading with Iran via the special purpose unexpected toll on medical imports’, New York vehicle: How it can work’, European Council on Times, 2 Nov. 2012. Foreign Relations, 7 Feb. 2019.
european non-prolifer ation diplomacy 5 Finland and Sweden—are expected pay European exporters using Iran’s to join soon. 25 Expanded ownership revenues currently frozen in foreign further contributes to risk and cost banks. 31 While banks are reluctant sharing and enforces the ‘sovereign to transfer Iranian funds due to shield’ around the instrument. 26 fear of US sanctions, this option has After a delayed start the first already been applied by South Korea INSTEX transaction took place to allow a medicine delivery to on 31 March 2020, with a German Iran. 32 Switzerland has negotiated a company exporting blood treatment similar arrangement with the USA equipment to Iran. 27 Several as part of the Swiss Humanitarian European companies have indicated Trade Agreement (SHTA). 33 an interest in the mechanism, which However, these bilateral channels they can use even if not domiciled are dependent on OFAC permission, in shareholder countries. 28 The E3 requiring lengthy negotiations has said that INSTEX might later and intrusive information sharing also be opened to non-European with the US Government. 34 A operators, and suggested that its similar route would hardly be an scope could be extended beyond option for INSTEX, which operates humanitarian trade. 29 However, under EU law and data protection INSTEX still needs to overcome requirements. 35 major obstacles to function as Alternatively, Iran could be intended. offered a loan to buy humanitarian goods. The COVID-19 crisis THE TRADE DEFICIT prompted the country to apply CHALLENGE for a $5 billion loan from the International Monetary Fund One key challenge facing INSTEX is (IMF). The head of Iran’s central that the value of European exports bank suggested that the money to Iran far exceeds the value of could be channelled through Iranian exports to Europe. This INSTEX and SHTA. 36 Although imbalance is largely due to the US the USA is seeking to block this sanctions on Iranian oil exports. 30 option, the loan could be granted, Without a balance, INSTEX is not depending on IMF support. 37 sustainable, as European exporters Finally, the chances of striking a cannot get due compensation based functioning trade balance could be on European imports from Iran. One potential solution being 31 Mallard, G. et al., ‘The humanitarian explored by INSTEX would be to gap in the global sanctions regime: Assessing causes, effects, and solutions’, Global 25 Telephone interview with Michael Bock, Governance, vol. 26 (2020), pp. 121–53. 8 June 2020; and Batmanghelidh, E., ‘Europe 32 Financial Tribune, ‘S. Korea sending first still needs INSTEX to help solve the Iran humanitarian cargo’, 29 May 2020. crisis’, Bourse & Bazaar, 26 Feb. 2020. 33 Ackerman, S., ‘Iran has gotten nothing 26 Geranmayeh and Batmanghelidj from US “humanitarian” channel’, Daily Beast, (note 24). 8 May 2020. 27 Norman, L., ‘EU ramps up trade system 34 Mallard et al. (note 31). with Iran despite US threats’, Wall Street 35 Telephone interview with Michael Bock Journal, 31 Mar. 2020. (note 25). 28 Batmanghelidh (note 25). 36 Motevalli, G., ‘Q&A: Iran’s Central Bank 29 French Ministry for Europe and Foreign governor comments on IMF loan request’, Affairs (note 17). Bloomberg, 19 Apr. 2020. 30 European Commission, ‘Countries and 37 Atwood, K., ‘US ready to block Iran’s regions: Iran’, updated 23 Apr. 2020, accessed requests for coronavirus aid from the IMF, 1 June 2020. officials say’, CNN Politics, 9 Apr. 2020.
6 sipri policy brief increased through the expansion remained elusive. Hence, the of INSTEX to non-European re-election of Trump might companies importing goods from mean continuation of the current Iran, and extension of the INSTEX situation—or it could be the mandate beyond humanitarian breaking point. That point might goods. be reached even earlier due to the recent US plan to either extend the LOOKING AHEAD arms embargo under Resolution 2231 or trigger a ‘snapback’ of While Iranian–US relations and previous UN Security Council the fate of the Its mission of countering the negative sanctions on Iran.41 JCPOA will affect The collapse of the JCPOA would effects of secondary sanctions remains INSTEX, its mission likely reduce European commitment relevant irrespective of political of countering the to INSTEX. Yet, the instrument’s negative effects developments humanitarian mission should of secondary be viewed as a matter of ethical sanctions remains necessity, rather than a nuclear- relevant irrespective of political related concession. Therefore, developments. In addition to making INSTEX would be important even INSTEX fully functional, European without the JCPOA.42 governments might also decide to take further steps to counter Beyond humanitarian trade? secondary sanctions. As E3 foreign ministers said in Impact of Iranian–United States January 2019, ‘INSTEX will relations support legitimate European trade with Iran, focusing initially Democratic Party victory in the on the [humanitarian] sectors November 2020 US presidential most essential to the Iranian elections could open the door to population’.43 This seemed to Iranian–US diplomacy—provided suggest a potential future expansion the political developments within beyond humanitarian trade. Iran allow this. 38 However, The current INSTEX president, diplomacy would depend on the Michael Bock, confirmed that the lifting of sanctions, which would instrument could cover other areas be particularly difficult given the once humanitarian trade runs more private sector’s disillusionment smoothly. From a legal perspective with the Obama administration’s the instrument could even include previous assurances about the safety oil trade, but in practice it cannot be of engaging with Iran. 39 INSTEX expected to go against US sanctions, could help address this problem by as this would mean withdrawal providing additional reassurance to of European bank cooperation.44 risk-averse banks and companies.40 While INSTEX cannot undo the A deal between Iran and the current US administration has 41 Masterson, J., ‘US aims to extend Iran embargo’, Arms Control Association, June 38 Geranmayeh (note 9). 2020. 39 Treanor, J., ‘HSBC criticises John Kerry 42 Batmanghelidh (note 25). over business with Iran request’, The Guardian, 43 French Ministry for Europe and Foreign 13 May 2016. Affairs (note 17). 40 Online interview with Esfandyar 44 Telephone interview with Michael Bock Batmanghelidj, 12 June 2020. (note 25).
european non-prolifer ation diplomacy 7 de facto primacy of US law, it could Other proposals include: taking be extended to non-humanitarian sanctions disputes to the WTO; trade that is not targeted by the involving European central banks USA but is impeded by fear of US in Iran-related transactions; secondary sanctions, including threatening retaliatory measures tourism and trade on various in response to arbitrary inclusion consumer goods.45 of European entities in OFAC’s Specially Designated Nationals list; Potential further steps towards and in the long term, strengthening European economic sovereignty the role of the euro as a global currency.49 Other developments— Since 2018 the EU approach notably the recent US sanctions has shifted from attempts at on the Nord Stream 2 gas pipeline persuading the USA and seeking project—might be seen to warrant to counter secondary sanctions to similar measures. 50 Indeed, from addressing the problem of sanction the Iranian perspective Europe’s overcompliance. This moderation assertive response of goals can be understood in to the pipeline The prospect of INSTEX being targeted light of the constraints that a sanctions contrasts with US sanctions might still push the E3/ dollar-dominated world economy with its position imposes on European autonomy, on Iran-related EU to take further steps as well as reluctance to engage in sanctions, open confrontation with the USA. suggesting that Europeans could However, the prospect of INSTEX have done more to safeguard the being targeted with US sanctions JCPOA. 51 might still push the E3/EU to take further steps. Arms control as part of regional Based on previous proposals, one security arrangements such step could be a coordinated approach to enforcing the Blocking The transatlantic approach to the Regulation through a new European Iran nuclear issue has relied heavily enforcement authority.46 Instead on sanctions, and survival of the of penalizing companies for non- JCPOA depends on the lifting of compliance with EU law, such an sanctions. Yet, it can hardly be authority could provide them with concluded that sanctions are an advice on due diligence and on effective non-proliferation tool. seeking reparation from damage Academic literature suggests that caused by secondary sanctions.47 sanctions rarely work, and the The E3/EU could also establish Iranian case is not necessarily an a fund to compensate for such exception. 52 As noted above the damage.48 JCPOA involved a major concession 45 German–Iranian Chamber of Industry 49 Geranmayeh and Lafont Rapnouil and Commerce, ‘Ich appelliere an alle Seiten, (note 46). Vertrauen in uns zu setzen’, Interview with 50 RadioFreeEurope/RadioLiberty, Michael Bock, 6 Feb. 2020. ‘Germany says further US sanctions over Nord 46 Geranmayeh, E. and Lafont Rapnouil, M., Stream 2 would interfere with EU energy ‘Meeting the challenge of secondary sanctions’, security’, 14 June 2020. European Council on Foreign Relations Policy 51 Online interview with Bijan Khajehpour, Brief, 25 June 2019. 5 June 2020. 47 Batmanghelidh and Hellman (note 12). 52 Morgan, T. C. and Schwebach, V. L., 48 Online interview with Jonathan ‘Economic sanctions as an instrument of Hackenbroich, 25 June 2020. foreign policy: The role of domestic politics’,
SIPRI is an independent on uranium enrichment also on the arrangements, possibly including international institute US side, which, if tried earlier, might arms control. 53 dedicated to research into have allowed a diplomatic solution conflict, armaments, arms even without sanctions. From this CONCLUDING REMARKS control and disarmament. perspective, the maximum pressure Established in 1966, SIPRI The current US strategy has policy can be seen as reflecting provides data, analysis and undermined the perceived utility of the unlearned lessons about the recommendations, based on non-proliferation sanctions, making open sources, to policymakers, importance of mutual compromise them appear as a pitfall, rather than researchers, media and the for the JCPOA. At the same time, a tool, of non-proliferation in Iran. interested public. the policy has undermined the Reflective of this view, INSTEX credibility of promises of sanction seeks to alleviate the negative GOVERNING BOARD lifting in future diplomatic effects of secondary sanctions. negotiations. Ambassador Jan Eliasson, While its impact on European– Chair (Sweden) The E3/EU would therefore do Iranian trade remains minimal, Dr Vladimir Baranovsky well to explore non-proliferation INSTEX demonstrates European (Russia) approaches that are less reliant on solidarity on the JCPOA, and can Espen Barth Eide (Norway) sanctions. One alternative could help maintain the agreement until Jean-Marie Guéhenno (France) be a regional arms control strategy diplomatic solutions are found. Dr Radha Kumar (India) in the Middle East, as the need for INSTEX can also be seen as a Ambassador Ramtane nuclear confidence building also Lamamra (Algeria) test case of a more independent applies to Iran’s neighbours. Europe Dr Patricia Lewis (Ireland/ European foreign policy, which is could promote regional dialogue United Kingdom) needed to develop sustainable non- as part of this effort. In addition to Dr Jessica Tuchman Mathews proliferation approaches and reduce helping to remove political obstacles (United States) the humanitarian harm caused by to Iranian–US diplomacy, improved sanctions. DIRECTOR relations among Middle Eastern states could, in the long term, pave Dan Smith (United Kingdom) the way for cooperative security 53 Erästö, T., ‘The arms control–regional security nexus in the Middle East’, EU Non- International Interactions, vol. 21, no. 3 (1995), proliferation and Disarmament Papers No. 68, pp. 247–63. Apr. 2020. ABOUT THE AUTHOR Dr Tytti Erästö (Finland) is a Senior Researcher in the SIPRI Nuclear Disarmament, Arms Control and Non-proliferation Programme. Her research focuses on nuclear arms control treaties and agreements. Previously, she has worked at the Ploughshares Fund, Washington, DC, the Vienna Center for Disarmament and Non-Proliferation, and Harvard University’s Belfer Center for Science and International Affairs. Signalistgatan 9 SE-169 72 Solna, Sweden Telephone: +46 8 655 97 00 Email: sipri@sipri.org Internet: www.sipri.org © SIPRI 2020
You can also read