My post two days ago on the  fourth designation of IRGC by OFAC and OFAC’s claim that this new designation would prevent the supply of informational materials to the IRGC notwithstanding the Berman Amendment has resulted in a lively debate over in the Twitter-verse.  Some are arguing that because section 105 of the Countering America’s Adversaries Through Sanctions Act (“CATSACT”) specifically directs the President to sanction IRGC under Executive Order 13224, and because Executive Order 13224 was promulgated in reliance on the United Nations Participation Act (“UNPA”), the Berman Amendment’s restriction on informational embargoes doesn’t apply.

Because a boring legal and export-geeky argument follows, here is the TL;DNR — Now that the Security Council has lifted its sanctions on the IRGC, the UNPA does not justify designation of the IRGC. That designation is properly made under IEEPA, meaning that the Berman Amendment still applies

The UNPA was passed in 1945 and, as it title implies, is the act that permitted U.S. participation in the United Nations. As part of that participation, the UNPA authorizes the President to take steps necessary to implement Security Council Resolutions. Specifically, the UNPA, in 22 U.S.C. § 287c(a), provides as follows:

Notwithstanding the provisions of any other law, whenever the United States is called upon by the Security Council to apply measures which said Council has decided, pursuant to article 41 of said Charter, are to be employed to give effect to its decisions under said Charter, the President may, to the extent necessary to apply such measures, through any agency which he may designate, and under such orders, rules, and regulations as may be prescribed by him, investigate, regulate, or prohibit, in whole or in part, economic relations or rail, sea, air, postal, telegraphic, radio, and other means of communication between any foreign country or any national thereof or any person therein and the United States or any person subject to the jurisdiction thereof, or involving any property subject to the jurisdiction of the United States.

So, although this provision does permit the President to ban any means of communication with a foreign country it does so only “to the extent neccesary to apply such measure” as the Security Council “has decided … are to be employed to give effect to its decisions.”  It is not like the International Emergency Economic Powers Act which permits the President to declare a national emergency and then apply whatever measures the President wants limited only by the Berman Amendment’s informational materials and travel exception and the other specific exceptions set forth in the Act. Instead, it is limited to implementation of specific measures adopted by the Security Council.

So the issue here is whether the designation of IRGC through an order under E.O. 13224 is necessary to implement measures set forth in a Security Council Resolution and whether it is limited to actions that are “necessary” to implement those measures. First, of course, we have to look at UNSCR 2231, which repealed all prior Security Council Resolutions regarding Iran. This means that the designation of the IRGC in UNSCR 1747 has been terminated. In addition, UNSCR requires the E.U. to remove the IRGC from its list of designated entities. So nothing in any Security Council Resolution regarding Iran authorizes designation of the IRGC under the UNPA.

Nor is there anything in the Security Council Resolutions that are the basis of E.O. 13224 that support the designation of IRGC. Those resolutions are UNSCR 121412671333, and 1363. All of these Security Council Resolutions authorize measures taken against the Taliban in Afghanistan and have nothing to do with, and do not justify, a designation of the IRGC. The Executive Order also cited UNSCR 1269, although it does not explicitly claim authority from that resolution. UNSCR 1269 authorizes and encourages multilateral responses to terrorism and does not authorize a unilateral designation of IRGC as a terrorist, particularly after UNSCR 2231 lifted the UN’s designation of the IRGC and requires the E.U. to remove the IRGC from its lists.

Although cited by those now arguing that OFAC is correct that orders issued under E.O. 13224 are not subject to the Berman Amendment’s exceptions, the Ninth Circuit decision in Sacks v. Office of Foreign Assets Control does not permit that conclusion. The Ninth Circuit does say “IEEPA imposes no such burden on the President’s powers when he acts under the UNPA.” But Sacks is clearly not justification for OFAC’s claim here that the Berman Amendment to IEEPA does not apply to its designation of IRGC under E.O. 13224.

Sacks involved Executive Order 12722 which imposed a travel ban to Iraq pursuant to UNSCR 661. Of course, that travel ban was specifically required by UNSCR 661, which required member states to prohibit all transactions in Iraq other than those involving “medical or humanitarian purposes.” Clearly a travel ban could be considered a measure necessary to implement the specific restrictions of UNSCR. The same cannot be said for the designation of the IRGC which is not necessary to implement the UNSCR sanctions against the Taliban or the UNSCR resolution authorizing multilateral responses to terrorism.

Even though the UNPA doesn’t authorize the designation of the IRGC under E.O. 13224, there is little question that such a designation would be authorized under IEEPA.  Of course, that means that the exceptions in IEEPA, including its restrictions on embargoes of informational materials, would apply to any such designation.

Copyright © 2017 Clif Burns. All Rights Reserved. 

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