JCPOA and the US Visa Act

Lawyer at Central Bank of Iran
JCPOA and the US Visa ActJCPOA and the US Visa Act

Is the recently passed act in the United States which imposes restrictions on individuals who have travelled to Iran in past five years contrary to the commitments of the US in the Joint Comprehensive Plan of Action (JCPOA)?  This is one of the recurring questions raised recently by many foreign companies contemplating to do business with Iran. A straightforward answer to this question is not easy simply because the question itself is not well structured and could be laced with some misleading assumptions.

First of all, the act does not cover all people who have travelled to Iran in the past five years. It only includes the nationals of those 38 countries who are subject to visa waiver program in the US. Those who are nationals of other countries, including the US itself are beyond the scope of the legislation.

Secondly, it does not stipulate that anybody who has travelled to Iran since and after 2010 is banned from entering into the US.

The only restriction is that those who have travelled to Iran in said the period would no longer be able to benefit from the visa waiver program. This means that they should obtain a visa form the US government before travelling to that country.

Third, and most importantly, the act does not directly mention Iran at all. The two countries which are clearly mentioned in the Act are Iraq and Syria. Iran is only included by being designated by the US government as a “sponsor of the international acts of terrorism.” Although as far as the outcome of the act is concerned, there is no difference between being clearly mentioned in the act and being subject to it as a result of being included in a list. The fact that Iran is not directly named and the possibility that the list could be modified in the future, puts Iran in a different position compared to Iraq and Syria.

Regarding the compatibility of the act with US obligations as per the JCPOA, it should be noted that this too is not clear. There are two competing approaches in answering this question. One provides that the only commitment of the US according to the JCPOA was to refrain from imposing new sanctions in lieu of the sanctions expected to be lifted under the nuclear deal. Since the new act does not impose new prohibitions and seeks to revoke a concession from some foreigners, it cannot be regarded as adding to the list of sanctions.

The second approach is that the act violates the JCPOA on a number of counts. Firstly, the imposition of a new restriction which impedes foreign businesses or individuals from re-engaging with Iran is tantamount to imposition of new sanctions, which is clearly prohibited in the JCPOA. Claims that the US move does not entail new prohibitions are not well founded because all secondary US sanctions share the same characteristics. In other words, they are restrictions rather than prohibitions.

Second, the act is incompatible with the requisite of good faith and non-discrimination enshrined in the nuclear agreement. The negative effect of this act on the people and businesses wanting to engage Iran is undeniable and by imposing new restriction some benefits of the JCPOA have been taken away from Iran. The concept of non-discrimination is more controversial and some commentators have argued that the imposition of this restriction is contrary to US obligations in the WTO.

This argument is counterweighted by the fact that discrimination is prohibited in the WTO system only in so far as it is motivated by economic and commercial considerations. In other words, adopting discriminatory measures for security reasons and/or political ends is not prohibited in the WTO system. However, non-discrimination in the JCPOA has a different definition from that in the WTO system. Unlike the WTO, the JCPOA primarily deals with political issues rather than commercial interests. Therefore political measures could be subject to JCPOA. In this context, the imposition of restrictions on non-Americans while at the same time permitting US citizens to travel to Iran, could be regarded as ‘prohibited discrimination’ under the nuclear deal.

 Finally, the structure of the JCPOA and in particular its annex II clearly establishes that Iran did not agree with the confidence building measures included therein, until the P5+1 assured that lifting of the nuclear related sanctions would lead to certain tangible results. As a result of this approach, annex II enumerates certain laws and regulations to be suspended or terminated as well as some effects to be realized.  

Therefore, every measure which could jeopardize those effects could be contrary to the JCPOA. Since one of those contemplated effects was normalization of trade between Iran and other countries, the recent act, which apparently is intended to prevent normalization of trade ties is not compatible with the JCPOA.

Although the US government has repeatedly declared its willingness to cooperate with Iran in implementing the JCPOA, the sanction-making machine in the US House of Representatives is still well and running. If this machine continues to produce new sanctions against Iran in the future, it would seriously endanger the implementation of the JCPOA.

* Hamid Ghanbari is the head of Legal Studies Department in the Central Bank of Iran.