The Legality of Executive Orders 13628 and 13645: a Bipartite Analysis

• Jurisdiction: United States,Federal
• Citation: Vol. 29 No. 4
• Publication year: 2015

The Legality of Executive Orders 13628 and 13645: A Bipartite Analysis

Judson Bradley

THE LEGALITY OF EXECUTIVE ORDERS 13628 AND 13645: A BIPARTITE ANALYSIS

Abstract

Executive Orders 13628 and 13645 contribute questionable sanctions to the United States' arsenal. Once again, the President has unilaterally and unlawfully enlarged the United States' global authority, as the latest sanctions threaten third-party states and innocent Iranians. In order to comply with international law, the United States must eliminate any provision directly regulating a non-U.S. citizen's conduct outside the United States while simultaneously limiting the scope of prohibited conduct. Under international law, a state's authority to impose sanctions correlates with international law's recognition of sovereignty, but rarely has legality simultaneously been tied to human rights. This Comment attempts to do so with respect to Executive Orders 13628 and 13645.

The Executive Orders will be dissected by first clarifying "sanction " and then by focusing on the traditional principles that establish jurisdiction—nationality and territoriality. However, since sovereignty and human rights are not mutually exclusive, this Comment continues by addressing the second argument for illegality—overly comprehensive prohibitions. The conclusions drawn herein illustrate the importance of contemporaneous sovereignty and human rights analyses, as well as why the United Nations makes the best imposer of sanctions.

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Introduction

The United States' expansive imposition of sanctions generates a polarized discussion wherein many commentators conclude the U.S. sanctioning-regime¹ exemplifies poorly constructed economic coercion.² Poor construction primarily exists when a regime restricts too much, posing a threat to human rights,³ and when a regime restricts beyond its internationally recognized reach, threatening the sovereignty of foreign states.⁴

As to only those sanctions targeting Iran—beginning in 1995 and most recently with Executive Order 13628 and Executive Order 13645 (collectively, the "Recent Orders;" individually referenced hereafter as E.O.)⁵ —the United States has issued twenty-four E.O.s, passed ten acts of legislature, authored twenty-eight Federal Register Notices, and devoted five parts of the Code of Federal Regulations to sanctions targeting Iran.⁶ Essentially, the U.S. sanctioning-regime targeting Iran stands at a point where third-party states, as well as their citizens and corporations, can no longer maintain Iranian business relations without fear of penalty or losing the United States as a trade partner, a

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reality that impacts businesses and citizens, as well as importers and exporters, alike.⁷

On a recent trip to Iran, the International Monetary Fund (IMF) met with Iranian leaders,⁸ concluding that while Iran's overall "contraction in economic activity is slowing," the Iranian economy is still dwindling.⁹ Specifically, Iran's shrinking gross domestic product and continuous instability has crippled the State's business sector and contributed to high unemployment.¹⁰ While the IMF has all but attributed Iran's economic weakness to sanctions, such as the Recent Orders,¹¹ the Iranian government, after receiving visits from foreign investors, insists the sanctions will collapse first.¹² The President of the United States of America disagrees.

Putting the world on notice, President Obama warned that anyone evading the Recent Orders does so at their own risk, because if caught, the United States will hit them "like a ton of bricks."¹³ With respect to certain provisions, however, the United States is not the only one throwing bricks.

The United Nations (U.N.) also employs sanctions,¹⁴ yet the U.N. avoids issues similar to those of the Recent Orders for two reasons. First, the U.N. is a

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large international organization with consensual authority over its members, which equates to a respect of sovereignty. Second, the U.N. has acknowledged the disastrous results produced by overbroad sanctioning in the past, altering its regimes accordingly. Thus, by limiting its sanctioning-regime to voluntary participation and specific conduct, the U.N. distinguishes itself as a desirable model for the creation and enforcement of exemplary sanctions.

In light of the above contrast, this Comment expounds upon President Obama's Recent Orders, addressing how the orders not only violate international law's notion of sovereignty, but also muddle the United States' reputation as a firm protector of human rights. It is important to note, however, that this Comment does not declare the Recent Orders completely defiant of international law. The United States' exclusion of certain conduct and partial adherence to well-known principles of sovereignty deserves a closer look—particular provisions within the Recent Orders legally control individuals and conduct well within the United States' jurisdiction while also providing humanitarian-focused flexibility. Nonetheless, the forthcoming analysis uncovers why the United States should alter its regime to compliment that of the U.N.

However, before delving into an analysis of the U.S. sanctioning-regime, Part I of this Comment discusses 'sanction' as a broad term, fleshing out the accompanying subtleties that tend to confuse or preoccupy readers and, as a result, can overshadow detailed dissection. Following these clarifications, Part II sets the stage for analysis by examining the variables that distinguish sanctions based upon form, thereafter providing the correlating legal principles of international law. Part III contextualizes the United States' controversial regime with a brief summary of the volatile United States-Iranian relationship and the legislation from which the Recent Orders stem. The historical summary precedes Part IV, which analyzes the Recent Orders' most controversial provisions and identifies conflicts with international law's notion of sovereignty and human rights. In Part V, a discussion of the U.N. sanctioning-regime establishes why it is the best source of sanctions, and in conclusion, Part VI explains how the United States should alter its regime.

I. Getting a Grasp on the Types of Sanctions

Without a general discussion of sanctions, an in-depth analysis quickly becomes unmanageable, a result of terms possessing multiple connotations and

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denotations.¹⁵ While the terms may occasionally appear interchangeable, their nuances remain relevant;¹⁶ incorrect use and casual substitution obscure a regime's substance, which in turn impacts the regime's legal analysis, an analysis hinged upon who or what the regime regulates, as well as the location of who or what is regulated.

First, to clarify one of the premier misnomers, the 'Iranian Sanctions' at issue do not directly regulate Iranian conduct, they regulate the conduct of U.S. citizens and third-party actors transacting with Iran¹⁷ and target Iran. This brief but vital clarification allows for a more thorough development of the term 'sanction', which helps provide clarity to the forthcoming analysis.

Second, the general use of 'sanction' encapsulates various terms, including 'boycott,'¹⁸ 'embargo,' 'political restriction,' 'financial sanction,' and even all-out 'military onslaught.'¹⁹ The broad definition of a sanction is any "penalty imposed against a nation to coerce it into compliance with international law or to compel an alteration in its policies in some other respect."²⁰ The evolution of sanctioning, moving from general coercion to coercive regimes lacking overt threats of violence, led to the following narrow definition of sanction:²¹ A state action that is "generally less offensive than a blockade and not

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amounting to economic warfare."²² Today, this definition includes political sanctions, communication restrictions, and economic sanctions.²³

Economic sanctions are the most utilized coercive policy during times of peace²⁴ and often respond to suppressions of democracy, state-sponsored violations of human rights, and continuous nuclear proliferation.²⁵ Although disputes will arise as to why a sender might have imposed a sanction,²⁶ economic sanctioning's ultimate and undeniable goal is to coerce targets into conformity with the sanctioning state's "preferences and interests" through "the imposition of economic pain."²⁷

States typically generate economic pain through marketplace constriction.²⁸ Logically, the broader a restriction, the tighter the constriction; however, as breadth increases, so does the potential for violating human rights, making breadth a vital component of legal analyses. The importance of breadth to an analysis necessitates the segregation of two tools commonly used to create economic pain: embargos and financial regulations.

First, embargos relate specifically to trade and are defined as a prohibition "on the movement of goods to a foreign country by land, sea or air."²⁹ While embargoes often involve the export-control of military-purposed materials, an embargo may also restrict the trade of various other goods as well,³⁰ and while modern embargos often focus on a specific good, they do not necessarily draw the line at a single product or material.³¹ For example, the Recent Orders

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restrict an entire industry, and in doing so, exponentially expand the U.S. sanctioning-regime targeting Iran.

Second, financial sanctions deal with capital and other transfers of wealth.³² When enacted as punishment for policy violations, financial sanctions obstruct the assets of those who deal with a target state, and when enacted to curb a target state's behavior, financial sanctions prohibit, for example, the issuing of debt to a target state. Importantly, financial sanctions can always be tapered, like embargos, thereby directing the imposition of economic pain towards specific entities and individuals.³³

When analyzing the legality of a provision, commentators will often refer...