JURIST Guest Columnist Professor John B. Quigley of the Ohio State University Moritz College of Law argues that international changes to approaching and monitoring Iran’s nuclear program have made recent congressional action unnecessary…

The Iran Sanctions Extension Act was adopted by the US House of Representatives on November 15, and it may be passed by the US Senate shortly. The Act would extend a statute originally enacted in 1996 that provided for a regime of sanctions that can be implemented by the President, related primarily to the possibility that Iran might build nuclear weapons. The current Act includes a sunset provision that makes it expire on December 31, 2016.

Congressional supporters of the Extension Act are numerous. It passed the House on a vote of 419 to one. A Senate vote could be just as lopsided. So even if President Barack Obama were to veto, the two chambers could likely override.

The question is whether an extension is warranted or advisable. The nuclear arrangement, reached with Iran in July 2015 and entitled the Joint Comprehensive Plan of Action, seems to be working, despite minor hiccups. In a report [PDF] released in September, the International Atomic Energy Agency (IAEA) indicated that it had access to Iran to carry out verification by installing equipment that allows it to monitor uranium enrichment remotely on a 24-hour basis.

The arrangement was reached in July 2015 between Iran on one side and the five UN Security Council member states plus Germany on the other. The deal is structured in a way that favors the outside powers over Iran. It is not a treaty, a point made clear by Secretary of State John Kerry while the parties were negotiating. If Iran does not comply with the Plan, sanctions the Security Council had previously imposed on Iran over uranium enrichment can be instituted. Secretary Kerry described the deal as self-enforcing.

By a side understanding between Iran and the IAEA in July 2015, Iran agreed to inspections that are more intrusive than what is otherwise required of Iran as a signatory to the Treaty on the Non-Proliferation of Nuclear Weapons of 1968.

The UN Security Council maintains oversight of the deal. Shortly after the parties came to terms on the Joint Comprehensive Plan of Action, the Security Council adopted Resolution 2231, which provisionally lifted sanctions previously imposed by the Council subject to compliance by Iran with the Joint Comprehensive Plan of Action.

In Resolution 2231, the Security Council did not cancel its call on states to impose sanctions on Iran. Had it done so, a re-imposition of sanctions would require a new Security Council resolution, and such a resolution would be subject to veto by any one of the five permanent members of the Security Council. As the deal reads, however, a vote to be taken in the Security Council would be a vote to lift sanctions, hence a vote that the United States could veto.

Resolution 2231 also provided for a multi-layer system of oversight involving the Security Council and the IAEA. In a one-year anniversary review of the Joint Comprehensive Plan of Action in July 2016, the Security Council heard extensive reports. While there were no allegations of Iranian violations on the central issues, there was concern expressed that Iran tested ballistic missiles in March 2016, but these were apparently of a type that cannot deliver nuclear weapons. There is still no proof that Iran is on its way towards nuclear weapons.

The American-Israel Public Affairs Committee (AIPAC) has been lobbying Congress to extend the Sanctions Act, but the chance that Iran might fire a potential nuclear weapon at Israel seems remote. Iran is more seriously at odds with Saudi Arabia than it is with Israel.

Another consideration is that the Sanctions Act is written so broadly as to be open to abuse. It was invoked against Mahmoud Reza Banki, an Iranian-American who worked for a management consulting firm in New York. Banki transferred funds from his own family’s assets in Iran. He was prosecuted by the US Attorney in New York in 2010 and spent 22 months in federal custody before the US Court of Appeals for the Second Circuit ruled that family remittances are not covered by the regulations adopted under the Sanctions Act.

The outside powers, the United States included, would be in a stronger posture to pressure Iran if they were complying with their own phase-out obligation under the Treaty on the Non-Proliferation of Nuclear Weapons. Of the six outside powers who signed the Joint Comprehensive Plan of Action, all but Germany possess nuclear weapons. None of the five shows any sign of scrapping them, even though they are parties to the 1968 treaty. Article 6 requires contracting states “to pursue negotiations in good faith on effective measures relating to cessation of the nuclear arms race at an early date and to nuclear disarmament.”

The Marshall Islands, a party to the 1968 treaty, tried to raise the Article 6 issue in 2014 in the International Court of Justice by suing the UK, plus Pakistan and India, for failing to negotiate with the other nuclear powers to get rid of their nuclear weapons. The Bikini Atoll in the Marshall Islands remains uninhabitable because of hydrogen bomb tests conducted there in 1954. The Court never reached the issue, however. It found jurisdictional reasons to dismiss the case and did so a few weeks ago.

Russia has just test-launched a supersonic missile that can deliver nuclear weapons more rapidly than prior delivery systems. The United States anticipates spending $1 trillion over the next thirty years to upgrade nuclear weapons and delivery systems. With these moves, one should not be surprised if Iran views itself as being singled out for special treatment since it has no nuclear weapons and denies an intent to acquire them. Making the difference in treatment even starker, Israel possesses nuclear weapons but is not party to the Non-Proliferation Treaty and does not acknowledge the existence of its nuclear arsenal. Israel has submarines capable of firing its nuclear weapons. No international measures have been taken against Israel like those against Iran.

From Iran’s standpoint, the tough stance of the US Congress is seen against the background of interference by the United States, dating from 1953 when the Central Intelligence Agency engineered an overthrow of a democratically elected government in Iran. After the 1979 revolution in Iran, we backed Iraq in waging war against Iran in a decade-long conflict that took the lives of a million Iranians.

The Iran Sanctions Extension Act, to be sure, does not require any sanctions to be imposed presently against Iran. It keeps in place a framework within which the Executive could re-impose sanctions that have been lifted. So it brings no present change in the current posture of the United States. It is not a repudiation of the Joint Comprehensive Plan of Action. At the same time, the Iran Sanctions Extension Act is a statute for which there is no present need.

John B. Quigley is a Professor of Law at The Ohio State University Moritz College of Law in Columbus, Ohio. He earned his LL.B., M.A. and A.B. from Harvard University.

Suggested citation: John B. Quigley, The Iran Sanctions Extension Act: Enforcement Overkill, JURIST – Academic Commentary, Nov. 28, 2015, http://jurist.org/academic/2016/11/john-quigley-iran-sanctions-extension-act-enforcement-overkill.php.