OFAC Broadens List of Medical Equipment & Supplies which can be exported to Iran
For seasoned compliance professionals, this is no earth-shattering news. Many sanctions regimes (e.g. EU, UN and U.S.) explicitly include humanitarian exemptions, e.g. the supply of medical equipment and supplies. Furthermore, let’s hope that this trend can be sustained to bring-about an end to the sanctions against Iran; wishful thinking …
As we all know, the U.S. currently maintains comprehensive sanctions against Iran. This means that without prior authorization, i.e. a license, U.S. persons are generally forbidden to engage in trade with Iran. Furthermore, rather controversially, within the context of security related trade controls, the U.S. also gives it’s goods, technologies and services nationality, whereby it claims jurisdiction over so-called “U.S. origin goods,” when exported out of the U.S. and/or re-exported to sanctioned destinations (e.g. Iran, Cuba or Syria) through third-countries.
The claim to (extra-territorial) jurisdiction, although a logical enforcement measure, is controversial because firstly, generally speaking under international law goods have no nationality – especially if these are incorporated into foreign products or substantially transformed.
They are also controversial because the U.S. restrictions can apply to both U.S. persons and non-U.S. persons (see for example the Iranian Transactions and Sanctions Regulations (ITSR) 31 C.F.R. § 560.204 & 205).
Note that the ITSR attempts to reconcile the general rules regarding incorporation of U.S. origin items and substantial transformation – see 31 C.F.R. § 560.205 (b). Note that the ITSR – see 31 C.F.R. § 560.530 – does allow, under certain conditions (e.g. 560.532 & 533), the licensing of exports and re-exports of U.S. origin medicines to Iran (as mandated under the Trade Sanctions Reform & Export Enhancement Act (TSRA)). As usual in sanctions compliance world, exporters wishing to avail themselves of a license will have to jump many hurdles to finally (re)export an exempted U.S. origin to Iran.
From an international law perspective, the humanitarian exemptions of sanctions regimes, given their wartime roots, are most probably based on obligations ensuing from international humanitarian law to provide medical supplies, see for example Geneva Convention IV articles 55 and 56.
Given the deadly effectiveness of modern sanctions regimes, the need for humanitarian exemptions are extremely important to limit unintended collateral damage. See for instance the book by Joy Gordon, Invisible War: The United States and the Iraq Sanctions, Harvard University Press, 2010. It would seem that history might be repeating itself, as OFAC was again criticized how it updated the earlier cited medical list.
Although there is no question that the international community has a duty to protect us from the horrors and terror of nuclear proliferation, I recently came across an article in which President Hassan Rouhani of Iran aptly describes the deadliness of economic sanctions,
“Unjust sanctions, as manifestation of structural violence, are intrinsically inhumane and against peace. And contrary to the claims of those who pursue and impose them, it is not the states and the political elite that are targeted, but rather, it is the common people who are victimized by these sanctions.
Let us not forget millions of Iraqis who, as a result of sanctions covered in international legal jargon, suffered and lost their lives, and many more who continue to suffer all through their lives. These sanctions are violent, pure and simple; whether called smart or otherwise, unilateral or multilateral. These sanctions violate inalienable human rights, inter alia, the right to peace, fight to development, right to access to health and education, and above all, the right to life.
Sanctions, beyond any and all rhetoric, cause belligerence, warmongering and human suffering. It should be borne in mind, however, that the negative impact is not merely limited to the intended victims of sanctions; it also affects the economy and livelihood of other countries and societies, including the countries imposing sanctions.”
If this is true, why did Iran then embark in a policy that puts the dreams and aspirations of its own people in jeopardy…..