In an article recently published in the The Hill, 29 European ambassadors to the United States raised powerful objections to the proposed plan to “tighten up” the current Visa Waiver Program (VWP). As it currently stands, VWP allows citizens of 38 countries, namely European states, to travel to the United States without having to obtain a visa. However, the U.S. House of Representatives recently passed a bill (H. R. 158) that aims to exclude from this program all dual nationals from Iran, Iraq, Syria and Sudan, and anyone else who has traveled to those countries in the past five years.
In the editorial, writing on behalf of his colleagues, David O’Sullivan, the European Union’s ambassador to the Washington, firmly warned that: “Such indiscriminate action against the more than 13 million European citizens who travel to the US each year would be counterproductive, could trigger legally mandated reciprocal measures, and would do nothing to increase security while instead hurting economies on both sides of the Atlantic.” He added that “a blanket restriction on those who have visited Syria or Iraq, for example, would most likely only affect legitimate travel by businesspeople, journalists, humanitarian or medical workers while doing little to detect those who travel by more clandestine means overland.”
{mosads}Of course, these are all valid points, questioning the wisdom of this legislation as a matter of “policy”. However, there are also serious “legal” flaws with H.R.158 that these European ambassadors failed to raise in their letter, probably out of diplomatic courtesy or to avoid “lawyering up” with a friend in public.
But these legal matters are nonetheless crucial to the debate.
First, this legislation, if enacted, would constitute a blatant violation of U.S. obligations toward Europe under international trade law, namely under WTO laws and regulations that currently govern commercial relations between the Transatlantic partners. In fact, this law would de facto place European business people, contractors, CEOs and staff of major companies in a position where they would be compelled to choose between travelling to the “restricted countries” and compromising their ties with the United States; Something that would give American companies an unfair and illicit advantage over them in those markets.
Case in point, American companies like Exxon Mobil, General Electric and General Motors would be able to operate with no legal hindrance in the “restricted countries”; whereas their European counterparts – like Total, Siemens and PSA Peugeot – would have to think twice before sending over their personnel because of the extraterritorial effects of the U.S. law.
Creating such circumstances in the global free market through domestic legislating is unlawful as it directly goes against the “national treatment principle,” along with the “Most-Favored-Nation” rule, which constitute the two pillars of the nondiscrimination principle that forms the foundation of the WTO trading regime.
The EU has a history of opposing such measures, which it perceives as “secondary sanctions,” within the framework of the WTO Dispute Settlement mechanism. And this is something the EU ambassadors should have reminded the U.S. congress and administration in their letter.
Secondly, this legislation, if enacted, would blatantly violate the Joint Comprehensive Plan of Action (JCPOA), or the nuclear deal with Iran, to which the European Union, Germany, France and UK are also party along with the United States, Russia and China.
Indeed, the nuclear agreement is not just a quid pro quo agreement between Iran on one side and the P5+1 on the other. Rather, the JCPOA is a “multilateral agreement” where the performance of each party affects the interests of all others, while being crucial to the viability of the entire process. In other words, it is a multilateral contract, or a legal regime, with interdependent obligations, and multiple parties that owe each other the duty to honor their respective commitments.
So if Congress unduly blocks the implementation of the agreement through such legislation, it is not just Iran that would suffer from the United States’ breach of obligations and the eventual collapse of the JCPOA. France will too. So will Germany, U.K, Russia, China and all their private companies that would have relied on the agreement to make investments or enter into business contracts with their Iranian counterparts.
Thus, if the Congress or the Obama administration pushes this particular legislation through, it would be incumbent – not necessarily on Iran but – on all other parties to the agreement, specifically European countries, to invoke the JCPOA and take all appropriate measures to strike the impeding legislation down; If necessary by seizing the JCPOA’s Joint Commission which can be convened if there are concerns of breach or noncompliance with the accord.
And “breach” there would be if the legislation turns into law! The legislation has been written to have a major impact on Iran’s economy and trade relations in the name of fighting terrorism. In fact, the immediate effect of H. R. 158 becoming law would be that members of European, Australian, Japanese or Korean business delegations who are planning to travel to Iran following the successful conclusion of the nuclear deal would be discouraged to do so. The Iranian tourism industry, which is rehabilitating in the aftermath of the sanctions, would also very likely suffer a blow as a consequence of this law, which effectively creates a “cost” for anyone wishing to visit Iran.
In other words, this new policy would be in violation of Article 29 of the JCPOA which reads: “The EU and its Member States and the United States, consistent with their respective laws, will refrain from any policy specifically intended to directly and adversely affect the normalisation of trade and economic relations with Iran.”
In sum, the “multilateral” character of JCPOA, and the EU’s various legal and political options in light of the U.S. breaching it, is yet another point that European ambassadors failed to invoke in their letter.
But these are still very important points that U.S. senators, who are evidently eager to keep the U.S.-EU relations on good terms, should bear in mind before casting their votes on H.R.158 this week.
Nazri is an international lawyer, specializing in Iranian affairs.