US Sanctions

This chapter surveys US economic and trade sanctions, with a particular focus on the authorities underlying US sanctions and the processes by which the US Department of the Treasury’s Office of Foreign Assets Control (OFAC) regulates sanctions and exemptions thereto.

US economic and trade sanctions are long-standing US foreign policy tools directed at specific jurisdictions, such as Cuba, Iran and North Korea, and specific governments, government officials, companies or individuals determined to have acted contrary to US foreign policy and national security objectives, such as with respect to nuclear weapons proliferation or narcotics trafficking.

Authorities for US sanctions

In the ordinary course, Congress passes statutes that authorise the President to promulgate sanctions through executive orders. OFAC then issues and enforces those sanctions regulations as published in the Code of Federal Regulations (CFR). The constitutional authority for these interwoven powers stems from Article II, Section 3 (that the Executive shall ‘take Care that the Laws be faithfully executed’) and Article I, Section 8 (Congress’ legislative power in respect of foreign commerce). The key legislative authorities underpinning US sanctions are the Trading with the Enemy Act (TWEA), the International Emergency Economic Powers Act (IEEPA) and the United Nations Participation Act (UNPA).

TWEA

Congress passed TWEA^[2] in 1917, at the time of the United States’ entry into the first world war, to ‘define, regulate, and punish trading with the enemy’. This statute conferred on the President wide-ranging powers to restrict trade between the United States and foreigners or countries considered enemies during wartime. Currently, TWEA remains the underlying legislation only for sanctions against Cuba.

IEEPA

The most common legislative authority the President relies on to impose sanctions today is IEEPA,^[3] which Congress passed in 1977 in an effort to demarcate more clearly the President’s emergency powers. With IEEPA, the focus shifted from wartime powers under TWEA to address more broadly ‘any unusual and extraordinary threat’ to US national security, foreign policy or economic stability.^[4] Pursuant to IEEPA, the President can declare a national emergency and issue executive orders to address that national emergency by, among other things, freezing the assets of and prohibiting financial transactions with any country, entity or person determined to be a threat to the United States.^[5] Typically, the prohibitions found in the executive orders become codified in Title 31, Chapter V of the CFR.

UNPA

Another source of legislative authority for the President to issue economic sanctions is the UNPA,^[6] which empowers the President to impose economic sanctions when mandated by the United Nations Security Council pursuant to Article 41 of the UN Charter. Through any agency he or she may designate, the President can investigate, regulate and prohibit in whole or in part economic relations between any country or national thereof, and the United States, any US person or any property interest subject to US jurisdiction. Some examples of the President’s exercise of power under the UNPA include President Reagan’s imposition of sanctions in response to apartheid in South Africa in 1985 and President Clinton’s imposition of sanctions prohibiting specific financial transactions with Rwanda in 1994.

Other legislation

In addition to the above statutes, Congress has from time to time issued additional legislation with respect to sanctions and foreign policy that either authorises or mandates the President or the US Department of the Treasury to impose certain sanctions. Some examples are the North Korean Sanctions and Policy Enhancement Act of 2016 (NKSPEA),^[7] the Countering America’s Adversaries Through Sanctions Act (CAATSA),^[8] the Sanctioning the Use of Civilians as Defenceless Shields Act (SUCDSA),^[9] the Caesar Syria Civilian Protection Act of 2019 (the Caesar Act)^[10] and the Protecting Europe’s Energy Security Clarification Act (PEESCA).^[11] Section 104 of the NKSPEA mandates that the President shall sanction any persons found to, among other things, knowingly directly or indirectly import, export or re-export into North Korea any goods, services or technology relating to nuclear weapons proliferation. Section 104 of CAATSA likewise mandates that the President shall sanction any persons found knowingly to engage in any activity that materially contributes to the activities of the government of Iran with respect to its ballistic missile programme, whereas Section 232 stipulates that the President may impose sanctions on certain persons found to have made specific investments in the Russian Federation. Section 3 of SUCDSA provides for both mandatory and permissive designations of persons found to use civilians to shield military targets from attack, including, but not limited to, members of Hezbollah or Hamas. The Caesar Act requires the President to impose sanctions on any persons found to have, among other things:

• engaged in a significant transaction with the government of Syria;
• provided aircraft or spare aircraft parts for military use to Syria; or
• provided significant construction or engineering services to the government of Syria.

Last, PEESCA, which was passed in January 2021 and amends the Protecting Europe’s Energy Security Act of 2019 (PEESA), mandates sanctions for certain conduct that supports the Nord Stream 2 and TurkStream 2 pipeline construction projects that were planned to transport natural gas from Russia to Europe. In February 2022, after Russia invaded Ukraine, OFAC designated Nord Stream 2 AG and its chief executive officer under PEESA.^[12]

Because both Congress and the Executive Branch can issue sanctions, tensions can sometimes arise between these branches of government. It may be that the sanctions prescribed by Congress do not directly align with the Executive Branch’s foreign policy goals. At other times, Congress will enact mandatory sanctions or require ongoing congressional review of certain sanctions programmes in the event it believes the Executive Branch has failed to take a sufficiently forceful stance on a particular issue. CAATSA is an example of this kind of tension as it includes mandatory sanctions and a requirement that Congress review any decision from the Executive Branch to lift certain sanctions against Russia.^[13] Although President Trump signed CAATSA into law, he also issued a statement expressing his view that ongoing congressional review of the sanctions against Russia was unconstitutional, but that he expected to honour the statute’s requirements.^[14]

Design and implementation

The key motivation for US economic and trade sanctions is to impose economic pressure on specific governments, companies or individuals for acting in contravention of US foreign policy and national security objectives. US sanctions in effect cut off sanctioned jurisdictions and sanctioned persons from accessing US dollars and the US financial system, which can have significant repercussions. Given that foreign policy and national security objectives have changed over time and financial transactions have grown in complexity, US sanctions have evolved from more broad embargoes to more targeted sanctions programmes.

There are three basic types of US sanctions: comprehensive embargoes against countries or regions, list-based asset-blocking sanctions and list-based non-blocking sanctions. OFAC currently maintains comprehensive embargoes against Cuba, Iran, North Korea, Syria and the Crimea and so-called ‘Donetsk People’s Republic’ and ‘Luhansk People’s Republic’ regions of Ukraine.^[15] These embargoes generally prohibit dealings by US persons with these jurisdictions, including financial transactions, exports and imports. Interestingly, Venezuela is an example of a jurisdiction in which the government, members of the government and persons acting on behalf of the government are subject to blocking sanctions but the country has not been targeted by a comprehensive embargo.^[16]

OFAC’s list-based sanctions consist of numerous different lists, designating as sanctioned specific governments, government entities, government officials, companies, individuals or property such as vessels and aircraft. These lists include the Specially Designated Nationals (SDNs) and Blocked Persons List and the Specially Designated Global Terrorist (SDGT) List, and are collectively referred to in this chapter, for simplicity, as the SDN List. Persons or property on the SDN List are subject to asset-blocking sanctions. US persons are prohibited from directly or indirectly dealing with anyone on the SDN List or their property, and all assets and property interests subject to US jurisdiction, whether tangible or intangible, direct or indirect, are frozen.

OFAC maintains several ‘non-blocking’ sanctions lists that implement targeted forms of sanctions against certain persons that are less restrictive than asset-blocking sanctions. Persons subject to these sanctions programmes are identified on separate lists maintained by OFAC, and the scope of the restrictions depends upon the legal authority implementing the sanctions. OFAC has discretion to designate a person to one or more asset-blocking or non-blocking sanctions lists if the applicable designation criteria are met. In other words, the lists are not mutually exclusive, and a person may be found on more than one list.

A few examples of OFAC’s non-blocking sanctions lists are given below.

• Non-SDN Chinese Military-Industrial Complex Companies List (the NS-CMIC List): in November 2020, the United States announced a ban on transactions involving publicly traded securities, or derivatives of any such securities, and of Chinese military companies by US persons.^[17] The NS-CMIC List identifies the companies that are subject to this prohibition.^[18]
• Non-SDN Menu-Based Sanctions List (the NS-MBS List): the NS-MBS List includes persons who are subject to targeted, non-blocking sanctions selected from a ‘menu’ of options. The menu of sanctions options includes prohibitions on obtaining assistance from the Export-Import Bank of the United States, obtaining export licences from other US government agencies, obtaining loans from US financial institutions, entering into procurement contracts with the US government and engaging in transactions with US persons involving the debt or equity of the sanctioned person.^[19] The exact prohibitions applicable to each person on the NS-MBS List are described in the list. Dozens of persons were added to the NS-MBS List in February and March 2022, as a result of Russia’s invasion of Ukraine.^[20]
• Foreign Sanctions Evaders List (the FSE List): the FSE List identifies non-US persons who have ‘violated, attempted to violate, conspired to violate, or caused a violation of’ certain sanctions against Syria or Iran.^[21] In addition, the FSE List includes non-US persons who have ‘facilitated deceptive transactions for or on behalf of persons subject to US sanctions’.^[22] Persons on the FSE List are prohibited from engaging in transactions with US persons or within the United States.^[23]
• List of Foreign Financial Institutions Subject to Correspondent Account or Payable-Through Account Sanctions (the CAPTA List): the CAPTA List identifies non-US financial institutions that face restrictions on having a correspondent account or payable-through account in the United States.^[24] Non-US financial institutions that are on the CAPTA List have been designated under sanctions authorities targeting North Korea, Iran, Russia and Hezbollah.^[25]
• Sectoral Sanctions Identifications List (the SSI List): sectoral sanctions have been used by OFAC to impose limited sanctions on certain sectors of a country’s economy. Sectoral sanctions were first developed in response to Russia’s annexation of Crimea in 2014 and those sanctions take the form of four directives, each bearing its own prohibitions. Three of the four directives prohibit designated entities operating in the ‘financial services, energy, metals and mining, engineering, defence and related materiel’ sectors of the Russian economy from raising equity or debt of certain tenures in the United States or involving US persons. The fourth directive prohibits designated entities from engaging in oil exploration or production for deepwater, Arctic offshore or shale projects that involve US persons.^[26] Entities subject to these sanctions are designated under one or more of the four directives and can be found on OFAC’s SSI List.^[27] Sectoral sanctions have also been used in the Venezuela sanctions programme by prohibiting US persons from engaging in transactions involving certain debt issued by the government of Venezuela or state-owned entities.^[28]

In 2022, the US government implemented stricter and more complex sanctions to address Russia’s invasion of Ukraine. These include traditional forms of sanctions, such as embargoes against areas in Ukraine that Russia purportedly recognised as ‘independent’,^[29] the addition of hundreds of Russian persons to the SDN List^[30] and the imposition of export and import bans on certain types of goods.^[31] Non-blocking sanctions have been widely used as well, ranging from prohibiting certain Russian banks from processing payments using US financial institutions to restricting US persons’ ability to engage in transactions with the Central Bank of Russia.^[32]

In addition, traditional and non-traditional forms of sanctions have been used to address national security concerns arising from the potential risk that the Chinese government could use social media apps owned by Chinese companies to collect personal information about users. Relying on IEEPA and related national security authorities, President Trump issued a series of executive orders in August 2020 that prohibited US persons from transacting with ByteDance Ltd^[33] (owner of TikTok Inc, a video-sharing app) and Tencent Holdings^[34] (owner of WeChat, a messaging, social media and payment app) and required the sale of TikTok Inc to a US company.^[35] However, the executive orders have been challenged in US federal courts and judges presiding over those cases issued orders temporarily enjoining their implementation.^[36] After initially requesting to stay those cases to re-evaluate the executive orders,^[37] the Biden administration rescinded the executive orders on 9 June 2021.^[38] The following month, the district court granted ByteDance’s motions to voluntarily dismiss the case,^[39] and the Tencent plaintiffs informed the court that they anticipated no further litigation on the matter beyond attorneys’ fees.^[40]

Designation process

Required information

In undertaking an investigation as to whether to designate a person or entity, OFAC relies on information and intelligence compiled from US government agencies, foreign governments, UN expert panels, press and open source reporting.^[41] OFAC’s investigators review the totality of information available, documenting their findings and conclusions in a memorandum describing the evidence to support designation under relevant sanctions authority.^[42] Before OFAC makes a final determination on designation, proposed listings are subject to inter-agency review by the US Departments of the Treasury, Justice, State ‘and other US agencies as warranted’.^[43] Additionally, OFAC will use the criteria in presidential executive orders or congressional statutes to impose designations.

The US Department of State may also issue sanctions designations under authorities focused on terrorism, proliferation activities, Iran and Russia. OFAC implements the sanctions restrictions associated with the Department of State’s designations.^[44]

Challenging designations or delisting

A designated entity or individual can petition for removal from any OFAC sanctions list by sending either hard copy or electronic applications to OFAC.^[45] Per OFAC’s guidance, petitions for removal should include the listed person’s name and the contact person’s name and mailing address, the date of the relevant listing action, and a request for reconsideration of OFAC’s determination, accompanied by a detailed description of why the listing should be removed.^[46]

Petitioners may submit additional information to OFAC, including evidence that an insufficient basis exists for designation or a change in circumstances rendering the designation moot. Specifically, 31 CFR Section 501.807 codifies procedures for delisting persons and OFAC has included the following as examples of sufficient grounds for removal:

• a positive change in behaviour;
• the death of an SDN;
• the basis for designation no longer exists; or
• the designation was based on mistaken identity.

Section 501.807 provides the opportunity for a designated entity or individual to affirmatively propose remedial actions – such as corporate reorganisation – to negate the designation. For example, this was successfully done in the case of En+ Group plc, UC Rusal plc and JSC EuroSibEnergo, three corporate entities that were designated in April 2018 because they were indirectly owned by Oleg Deripaska, who was designated for operating in the energy sector of the Russian economy and acting on behalf of senior officials in the Russian government.^[47] After lengthy negotiations with OFAC, these three entities were delisted in January 2019 as a result of Deripaska’s agreement to sell his majority stake in those entities and relinquish control over them.^[48] Deripaska remained on the SDN List, but these three entities were removed because there was no longer a basis for their designations given the corporate restructuring and dilution of Deripaska’s shareholding stake in each.^[49]

There is no set amount of time established for the delisting process to be concluded. Typically, the process takes months, if not years, and requires designated parties to answer multiple questionnaires and provide extensive documentary evidence.

In the event that a petition for removal fails, judicial review of OFAC’s determination is available under the Administrative Procedure Act (APA). Although a US district court’s review would be highly deferential to OFAC, reversal is possible if the court finds that a designation was arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law. For example, one ground for removal of a designation is a failure by OFAC to provide timely or sufficient notice of its rationale or evidence. In Al Haramain Islamic Foundation, Inc v. US Department of Treasury,^[50] the US Court of Appeals for the Ninth Circuit found that the petitioner’s due process rights had been violated when OFAC had failed to mitigate the petitioner’s inability to review classified information underlying the designation at issue. However, the Court ultimately ruled that the due process violations were harmless in light of the whole record, and the petitioner remained designated.^[51] It is rare for designated persons to file lawsuits against OFAC challenging their designation. In recent years, however, several Russian individuals on the SDN List have done so. For instance, Deripaska, who was designated for operating in the energy sector of the Russian economy and acting on behalf of senior officials of the Russian government, filed suit against the US Department of the Treasury and OFAC after his designation in April 2018. In June 2021, the US District Court for the District of Columbia dismissed Deripaska’s suit, concluding that OFAC’s decision to designate him, and its decision not to de-list him, did not violate the APA.^[52] Deripaska appealed the District Court’s ruling to the US Court of Appeals for the District of Columbia, which upheld the dismissal on 29 March 2022.^[53]

Application of sanctions

Entities subject to sanctions measures

OFAC issued guidance on 14 February 2008 that any property or interests in property of an entity^[54] are blocked if the entity is 50 per cent or more owned, directly or indirectly, by a designated person. This is known as the 50 Percent Rule.

On 13 August 2014, OFAC issued further detailed guidance about the 50 Percent Rule. Designated persons are considered to have an interest in all property and interests in property of an entity in which the designated person owns, whether individually or in the aggregate, directly or indirectly, a 50 per cent or greater interest. The significance of this is that any entity directly or indirectly owned individually or in the aggregate 50 per cent or more by one or more designated persons is itself considered designated. This is the case whether or not the designated entity is actually placed on the SDN List.

With respect to indirect ownership of an entity, OFAC provided further guidance addressing indirect beneficial ownership, providing that one or more designated persons’ ownership of shares of an entity through another entity or entities that are 50 per cent or more owned in aggregate by the designated persons. The consequence of this is a cascading effect of designation. For instance, if designated Person A owns in aggregate 50 per cent or more of Company X, Company X owns in aggregate 50 per cent or more of Company Y and Company Y owns in aggregate 50 per cent or more of Company Z, companies X, Y and Z are each considered designated by virtue of Person A’s indirect ownership of each.^[55]

As for entities that are controlled but not 50 per cent owned by an SDN, the analysis is more complicated; if an SDN controls another entity, that entity is not presumptively an SDN according to the 50 Percent Rule.^[56] Rather, OFAC cautions that it may designate these types of entities pursuant to statutes or executive orders that empower OFAC to do so for entities over which a blocked person exercises control.^[57] OFAC further cautions that SDN-controlled entities may be the subject of future OFAC enforcement actions, and advises that persons exercise caution when dealing with non-blocked persons who are controlled by blocked persons. In addition, OFAC prohibits dealings with blocked persons who conduct business on behalf of non-blocked entities. For example, since OFAC sanctions generally prohibit direct or indirect dealings with blocked persons, a US person may not enter into a contract signed by a blocked person – even on behalf of a non-blocked entity.^[58]

The 50 Percent Rule applies to persons on the SSI List,^[59] but generally does not apply to other persons who are subject to non-blocking sanctions, such as those persons identified on the NS-MBS List or the NS-CMIC List.^[60] OFAC may also carve out certain sanctions programmes from the 50 Percent Rule, which it did in the context of certain sanctions authorised in September 2021 in relation to the humanitarian and human rights crisis in Ethiopia^[61] and sanctions against Alisher Usmanov, a Russian oligarch, in March 2022.^[62]

Application to non-US persons

Under the sanctions regulations, US persons must comply with sanctions that prohibit transactions with sanctioned countries or sanctioned persons. Known as ‘primary sanctions’, these apply to US persons, defined to include all US citizens and permanent resident aliens wherever located, all persons and entities within the United States, all US-incorporated entities and their foreign branches.^[63] Foreign subsidiaries owned or controlled by US companies are not required to comply with primary sanctions, except in relation to the sanctions programmes for Cuba and Iran, and those applicable to financial institutions in relation to North Korea sanctions.^[64]

IEEPA and the sanctions regulations also prohibit activities that ‘cause’ a violation of sanctions.^[65] While both US and non-US persons may face liability under a causing theory, most enforcement actions relying on this theory have been brought against non-US persons. Thus, even if a non-US person is not directly prohibited from engaging in sanctioned conduct, that person could be exposed to primary sanctions liability for engaging in transactions with a sanctioned country or a sanctioned person that causes a US person to violate primary sanctions. This theory has been used frequently to prosecute non-US financial institutions that processed US-dollar-denominated transactions through US banks for the benefit of a sanctioned person, thereby causing the US banks (i.e., US persons) to violate sanctions by exporting financial services from the United States to a sanctioned person or jurisdiction.^[66] Non-US financial institutions have faced OFAC enforcement actions under these circumstances even when they were not aware that the US-dollar-denominated transactions were transiting through the US financial system.^[67]

By contrast, secondary sanctions directly apply to non-US persons and allow the US Department of the Treasury to designate non-US persons for certain types of behaviour depending on the sanctions programme, even absent a US nexus to the activity. Non-US entities should be aware of the secondary sanctions that might apply to their business activities. If any do apply and OFAC imposes sanctions, then the designated non-US entity would effectively be cut off from the US financial system, with a deleterious economic and reputational impact for the non-US entity. Last, even if a designated entity does not want to access the US financial system, many non-US banks maintain their own sanctions policies barring dealings with SDNs.

Exemptions

The statutory framework that gives rise to US sanctions includes a number of exempted activities, which, by definition, fall outside the scope of the regulations. For example, IEEPA contains exceptions for humanitarian activities such as donating food, clothing and medicine to relieve human suffering; the import and export of informational materials and communications; and postal, telegraphic, telephonic, or other personal communication, which does not involve a transfer of anything of value.^[68] These statutory exceptions are typically reflected in exemptions implemented by OFAC in its sanctions regulations. The Iranian Transactions and Sanctions Regulations, for instance, contain specific exemptions for all the activities exempted under IEEPA.^[69]

OFAC has provided further guidance regarding authorised humanitarian activities in connection to the covid-19 pandemic, specifically in relation to its Iran, Venezuela, North Korea, Syria, Cuba and Ukraine/Russia sanctions programmes.^[70] While most medicine and medical devices (including certain personal protective equipment (PPE)) used for covid-19-related treatment are already exempted under IEEPA’s humanitarian aid exception, other items (such as oxygen generators and certain decontamination equipment) require a specific licence for individuals and entities to provide to sanctioned countries. To help combat the spread of covid-19, OFAC issued three general licences in June 2021 ‘to provide authorizations for certain covid-19-related transactions and activities’ involving Iran, Syria and Venezuela.^[71] Generally, these general licences authorise the exportation or sale of goods ‘related to the prevention, diagnosis, or treatment of covid-19 (including research or clinical studies relating to covid-19)’ to Iran, Syria or the government of Venezuela, as well as any related financial transactions.^[72]

Despite many commonalities of the exemptions discussed above, there are some differences across the sanctions programmes that stem from the policy objectives that the sanctions are intended to advance, as opposed to any differences in the authority granted by legislation or regulations underlying the sanctions programmes. For example, the goal of the Syria sanctions is to ‘disrupt the Assad regime’s ability to finance its campaign of violence against the Syrian people’.^[73] With this goal in mind, OFAC has prohibited transactions that have the potential to fund the Assad regime, while still permitting personal remittances and donations of humanitarian goods.

In contrast, the animating concerns behind SDGT-based sanctions dictate exemptions that are more narrowly drawn. For example, Executive Order 13324, issued in the wake of the September 11 terror attacks and which identified persons who posed a threat to US national security, does not permit as expansive humanitarian activities, and prohibits donations of the kind otherwise permitted by IEEPA, on the grounds that the donations would seriously impair the President’s ‘ability to deal with the national emergency declared in this order, and would endanger Armed Forces’.^[74]

Licensing

Types of licences

Apart from statutory exceptions and regulatory exemptions, other activities may be authorised by OFAC, which has the authority to issue general and specific licences.

General licences authorise a class of persons subject to OFAC’s jurisdiction to engage in categories of activities that would otherwise be prohibited by the applicable sanctions programme.^[75] Under general licensing programmes, there is no need to apply for an authorisation case by case.^[76] General licences for different sanctions programmes can be found in the CFR^[77] or as separate guidance documents on OFAC’s website. Common examples of general licences include the provision of legal services, financial institutions debiting blocked accounts for normal service charges owed by the account owner and, in certain cases, companies winding down of their businesses with sanctioned persons after newly imposed or expanded sanctions. Persons who rely on general licences may be required to file reports and statements with OFAC in accordance with the instructions specified in those licences, and failure to do so may nullify the authorisation and result in an enforcement action by OFAC.^[78]

Specific licences are issued case by case, normally by OFAC, but on occasion by the Secretary of Treasury directly.^[79] They authorise a specific person to conduct a certain transaction or set of transactions that would otherwise be prohibited by a sanctions programme.^[80] Examples include the release of blocked funds, receipt of payment for legal services using blocked funds, or exportation of medical devices or agricultural commodities that are not otherwise exempted or covered by a general licence. A specific licence typically is granted for a set period; however, an applicant may seek a licence renewal. Last, like general licences, OFAC may also require reports and statements from the grantee.^[81]

The application process

A person or entity seeking to obtain a specific licence may file an application via OFAC’s website. Applicants should provide as much detail as possible about the transaction for which a licence is being sought, including the names and addresses of all parties involved or interested in the transaction, the applicant’s taxpayer identification number and any other information deemed necessary by OFAC per the specific sanctions programme.^[82] Upon review of the application and possible inter-agency consultation,^[83] OFAC may request additional information or documentation and the process may take several weeks to more than a year, depending on the volume of applications and the complexity of the transaction involved.

Refusal to grant a licence

A denial by OFAC of a licence application constitutes final agency action and there is no formal process of administrative appeal.^[84] OFAC’s regulations, however, do not preclude the reconsideration of an application or the filing of a further application, should there be new facts or changed circumstances that warrant a review.^[85]

Nonetheless, parties can rely on the APA and seek judicial review of OFAC’s licensing determination where, for instance, the determination is claimed to be arbitrary, capricious or contrary to law. However, in conducting their review, US courts typically defer to the agency’s decision,^[86] provided that there is a rational basis for it.^[87] When it comes to decisions based on foreign policy, courts exercise an even higher degree of deference.^[88] To this date, courts have, at most, remanded cases to OFAC and directed it to consider certain legal and regulatory aspects, but have not made a determination on whether to require OFAC to grant a specific licence.^[89]

Legal services licensing

OFAC has long noted its ‘willingness to remove persons from the SDN List consistent with the law’ and its goal to ‘bring about a positive change in behaviour’.^[90] To achieve these goals, OFAC has issued general licences allowing SDNs to obtain legal services that would enable them to navigate the idiosyncrasies of each sanctions programme and obtain, for instance, legal representation related to the challenging of a designation.^[91] The licences for the provision of legal services, however, do not automatically entail an authorisation for the payment of such services with blocked funds. Payment for legal services with blocked funds is highly dependent on the rules of each sanctions programme and the nationality of the SDN seeking counsel, but must rely on either a general or a specific licence.

With regard to non-US persons, OFAC’s general licences allowing the provision of legal services often contain an authorisation for the SDNs to pay for legal services using funds located outside the United States. This authorisation is accompanied by certain reporting requirements to OFAC by the US person providing the services and receiving payment.^[92] The funds used for payment must not originate from the United States or from any entity, wherever located, that is controlled by a US person. In addition to these requirements, OFAC’s general licences also typically allow a third party to make the payment on behalf of the SDN seeking legal services, provided that the funds used are not blocked by any sanctions.^[93] In the absence of a general licence authorising payment of legal services, or if the general licence is inapplicable in a given set of circumstances, the US counsel providing legal services must obtain a specific licence to receive payment.^[94]

As regards blocked US persons, OFAC has issued a legal fee guide containing the requirements and documentation necessary to release limited amounts of blocked funds for payment of legal fees and costs incurred in challenging their blocking in administrative or civil proceedings.^[95] This route is only available if there are no other funding options for the blocked US person^[96] and it does not ensure payment of legal fees in their entirety.^[97]

Incidental transactions

Most sanctions programmes provide that transactions ordinarily incident to and necessary to a licensed transaction are permitted, provided that the transaction does not involve a blocked person or blocked property.^[98] Although OFAC has not issued a comprehensive list of the types of activities that are considered ordinarily incident to and necessary to a licensed transaction, certain general licences and guidance from OFAC provide insight into this authorisation, the scope of which is dependent on the underlying permitted activity. Described below are a few examples from OFAC’s country-wide sanctions programmes.

Travel

US sanctions against Cuba impose restrictions on travel by US persons to Cuba; the purpose of any such travel must fall within one of OFAC’s authorised categories.^[99] Activities that are ordinarily incident to and necessary to such travel are also authorised and include activities such as the exportation of accompanied baggage for personal use,^[100] payment of living expenses, purchase of goods for personal consumption, purchase of health insurance, life insurance and travel insurance, including paying for any emergency medical services.^[101]

Import/export

When licences permit exports or imports of certain goods to or from a sanctioned country, OFAC has provided examples of ordinarily incident transactions that are permitted. For example, in the context of a general licence permitting imports of certain goods from Cuban entrepreneurs, ordinarily incident transactions include payments for said goods made using online payment platforms.^[102]

Publishing

Under numerous sanctions programmes, transactions that are necessary and ordinarily incident to ‘the publishing and marketing of manuscripts, books, journals, and newspapers in paper or electronic format’ are authorised.^[103] These types of authorised transactions include commissioning and making advance payment for future written publications, collaboration to create and enhance such works, substantive editing, payment of royalties, implementing a marketing campaign for promotional purposes, and any other ‘transactions necessary and ordinarily incident to the publishing and marketing of written publications’.^[104] The publishing authorisations are also supported by the ‘informational materials’ exception that permits the exportation and importation of publications and other types of media to or from sanctioned countries.^[105] The publishing authorisations, however, do not confer general permission to engage in business activities that are ‘delivered through the use of information and informational materials’, such as accounting, legal, design and consulting services, that do not involve publishing activities.^[106] Likewise these provisions do not generally authorise activities such as marketing products other than written publications, importing and exporting goods other than certain software used to support written publications in electronic format, engaging in transactions relating to travel to and from the sanctioned country, or operating a publishing house or sales outlet within the sanctioned country.^[107]

Export administration regulations

In addition to the sanctions imposed by OFAC, the US Department of Commerce’s Bureau of Industry and Security (BIS) enforces the Export Administration Regulations (EAR) codified at 15 CFR Part 730 et seq. in respect of exports, re-exports and transfers of goods of US origin, technology and software to destinations outside the United States and to non-US citizens. The EAR impose limitations on the unlicensed export, re-export or transfers of goods, technology or software of US origin, including transit through or to sanctioned jurisdictions such as Cuba, North Korea, Crimea, Iran and Syria, among others. The EAR generally apply to commodities with a minimum of 10 per cent US-origin content for exportation to sanctioned jurisdictions, and 25 per cent US-origin content for exportation to all other countries, so it is important for businesses properly to screen exports in compliance with the EAR.

BIS maintains its own lists of prohibited or restricted individuals, separate from OFAC’s sanctions lists. It can therefore be important for companies with components or products of US origin to consult both OFAC and BIS designations to understand applicable restrictions.^[108]

Termination of US sanctions

Considering that the underlying goal of US economic and trade sanctions is to advance the United States’ foreign policy and national security objectives, it is natural that these objectives may change or be accomplished, leading to the termination of sanctions programmes.

For example, the only remaining sanctions programme based on the authority of TWEA is the Cuban Asset Control Regulations.^[109] Previous sanctions programmes supported by TWEA have been rescinded.

In many cases, the President may lift sanctions by issuing an executive order. For example, in 2016, President Obama terminated comprehensive sanctions against Myanmar by an executive order in light of advances in promotion of democracy, the release of political prisoners and greater enjoyment of human rights and fundamental freedoms.^[110] However, in 2021, President Biden issued an executive order imposing targeted, non-comprehensive sanctions against Myanmar in response to the February 2021 coup that overthrew the democratically elected civilian government.^[111] Throughout 2021, President Biden imposed asset-blocking sanctions against persons involved in repressing the pro-democracy movement in Myanmar. In 2017, President Obama terminated sanctions against Sudan through an executive order because of the country’s reduction in offensive military activity, improved humanitarian access and cooperation with the United States on addressing regional conflicts and the threat of terrorism.^[112]

Under certain statutes authorising sanctions, the President may not unilaterally lift sanctions without approval from Congress. For example, CAATSA prohibits the President from lifting sanctions against a person designated under certain Russia-related sanctions authorities if Congress issues a joint resolution of disapproval.^[113] With respect to Cuba, the US embargo is mandated by statute and likely would require congressional action to be repealed; however, the President has the authority to issue executive orders or OFAC policies to loosen certain aspects of the sanctions programme against Cuba, as President Obama did during his presidency.^[114]

Footnotes