RL30384 -- Economic Sanctions: Legislation in the 106th Congress

CONTENTS

• Summary
• Background
• Issues Involved in the Recent Sanctions Debate
• Legislation
• Sanctions Reform
• Exemption of Food and Medicine from Sanctions
• Sanctions Relief or Reimposition for India and Pakistan
• Legislative Proposals Targeting a Specific Country or Activity
• Bills Not Considered by 106th Congress Beyond Introduction
• Footnotes

<font size="+1">List of Tables</font>

Table 1. Sanctions Reform Bills

Table 2. Food and Medicine Exemption Bills

Table 3. India and Pakistan Sanctions Bills

Table 4. Bills Targeting Specific Country or Activity

Table 5. Bills Not Considered by 106th Congress Beyond Introduction

Summary

Economic sanctions are coercive measures imposed by one country, or coalition of countries, against another country, its government or individual entities therein, to bring about a change in behavior or policies. Economic sanctions regimes typically include a range of measures such as trade embargoes; restrictions on exports or imports; denial of foreign assistance, loans and investments; control of foreign assets held in the United States; or the restriction of economic transactions that involve U.S. citizens or businesses.

As one part of the foreign policy tool kit, economic sanctions are often used in conjunction with diplomatic, political, cultural, or military options. The 106th Congress considered more than 150 legislative proposals that would have imposed new foreign policy or national security sanctions, modified or terminated existing sanctions regimes, made some aspects of U.S. trade exempt from the application of such sanctions, or reformed how Congress and the Executive Branch use sanctions in furtherance of foreign policy or national security.

Background

The current congressional debate on the use of economic sanctions in foreign policy has its roots in Cold War legislation, anti-apartheid legislation of the 1980s, and U.S. reaction to Iraq's aggression toward Kuwait in 1990. It has not been unusual for Congress to scrutinize the executive branch's choice to use sanctions over other foreign policy tools, particularly in instances where the United States has acted unilaterally or in instances where the President has invoked statutory authority to curtail economic transactions but has not sought wider counsel or support from Congress. In some cases Congress takes a position in contrast to the Administration. To address relations with apartheid South Africa, for example, Congress enacted, over the President's veto, the Comprehensive Anti-Apartheid Act of 1986 to impose a range of economic restrictions against that country's government. In other instances, as in the recent case of Burma, Congress takes the lead in pressing for or even requiring the imposition of sanctions. In yet other instances, such as Iraq's invasion of Kuwait, though sanctions are imposed by the Administration, Congress supports the Administration's decision to use other means (in the case of Iraq, military force), and expresses that support with votes.

Issues Involved in the Recent Sanctions Debate

Most recently, understanding when and how sanctions work, and understanding what toll their use might exact, have become central issues in congressional discussions on foreign policy options. ⁽¹⁾ Many analysts consider India's and Pakistan's testing of nuclear detonation devices in the spring of 1998, and the subsequent imposition of economic sanctions by the United States and other significant trading partners, to be a critical turning point in the sanctions debate. The United States imposed sanctions, in part, because of inflexibility in the law; the President had little choice. Though the statute requires that the sanctions be imposed evenly, the nature of the extensive bilateral relationships between the United States and Pakistan, and between the United States and India, resulted in the sanctions being disproportionately punitive toward Pakistan. What captured Congress' attention, above all else, was the substantial impact the sanctions would have on American wheat growers if Congress did not pass alleviating legislation.

At about the same time, but on a different front, that Congress was mulling over the domestic impact of the nonproliferation sanctions, news reports circulated that sanctions against Iraq were having a devastating impact on that country's civilian population. These sanctions have been in place since 1990, when Iraq invaded its neighbor, Kuwait. The multilateral sanctions have been maintained amidst concerns that Iraq is pursuing the manufacture and stockpiling of weapons of mass destruction.

In this context, Congress took a new look at the practice of restricting, for foreign policy or national security reasons, another country's access to U.S. markets, U.S. producers, and especially U.S.-produced food and medical exports. Only two months after the sanctions were imposed against India and Pakistan for detonating nuclear devices, Congress passed, and the President signed into law, a bill to allow U.S. government financing for wheat sales to Pakistan. A few months later, most of the sanctions pertaining to nonmilitary assistance and nonmilitary transactions were waived. Altering sanctions policy to allow U.S. farmers to sell wheat to Pakistan, and maintaining sanctions against Iraq amidst reports about the deterioration of the health of that country's civilian population, in turn, invigorated a larger discussion on the use of food and medicine in foreign policy.

Members of Congress introduced several legislative proposals in the 106th Congress to exclude agricultural commodities, medicine, and related goods from sanctions regimes. On April 28, 1999, the President announced that the United States would exempt commercial sales of agricultural commodities and medicine from future unilateral sanctions imposed by the executive branch. ⁽²⁾ The President directed the Secretary of the Treasury to issue new regulations that would allow commercial food and medical exports to Libya, Iran, and Sudan, three states previously severely restricted from such transactions because they are on the State Department's list of countries that support acts of international terrorism. Congress passed, and the President signed into law, the Trade Sanctions Reform and Export Enhancement Act of 2000 (title IX of H.R. 5426, enacted by reference in P.L. 106-387) on October 28, 2000, to remove food and medicine from U.S. sanctions policy.

Unlike the statute that required the President to impose sanctions on India and Pakistan, most laws give the President and his Administration discretionary authority to impose sanctions, either pursuant to declaring a national emergency and then invoking powers vested in his office in the International Emergency Economic Powers Act, or by exercising authority stated in various other laws. In other instances Congress might take the lead, either by conferring new Presidential authority to impose sanctions or by requiring sanctions to be imposed unless the President determines and certifies that certain conditions have been met. The President's use of executive orders, directives, determinations, or proclamations to legislate, in effect, without concurrence or a stamp of approval from Congress, led some Members of Congress to conclude that the Clinton Administration had overstepped its Constitutional bounds. Spurred on by executive actions that had more to do with treaties than sanctions, ⁽³⁾ Members of Congress introduced legislation to curtail the President's authority to issue such orders, and to cancel current executive orders unless explicitly required by law.

The issues summarized above -- the advisability of sanctions against India and Pakistan, the punitive use of restrictions on food and medicine, presidential flexibility to impose, waive, and terminate sanctions, and the broader question of presidential authority versus congressional authority -- figured prominently in several legislative proposals put before the 106th Congress. Recent decisions by the Administration to change how food and medicine are used in sanctions regimes; changes in U.S. relations toward North Korea, Iran, Iraq, China, and Cuba; and concerns over recent vexing developments in the governance of Russia, Yugoslavia, Nigeria, Indonesia, Colombia, and Pakistan all resulted in new debate over the use and efficacy of economic sanctions as a foreign policy or national security tool.

Legislation

The 106th Congress considered more than 150 legislative proposals that were relevant to the sanctions debate. ⁽⁴⁾ Most received no attention beyond referral to committee. Bills discussed below in any detail, however, were been taken up either in committee -- for oversight or for mark-up -- or on the floor.

Sanctions Reform. Several bills designed to overhaul the entire process that the legislative and executive branches employ when considering the use of economic sanctions in national security and foreign policy were introduced in the first session of the 106th Congress. H.R. 1244 -- Enhancement of Trade, Security, and Human Rights Through Sanctions Reform Act -- or its counterpart in the Senate, S. 757 -- Sanctions Policy Reform Act -- if enacted, would have changed the way the United States uses sanctions in national security and foreign policy. The bills sought to require the Administration to provide a detailed justification before imposing sanctions through extensive reporting, collection of public opinion, and cost/gain analysis. Because current legislation cannot bind future sessions of Congress in how they conduct their business, the bills provided nonbinding guidelines to Congress similar to those made mandatory on the Administration.

Table 1. Sanctions Reform Bills

State Department officials objected to the sanctions reform proposals in recent congressional hearings ⁽⁵⁾ because of the (1) lack of parity in how the law would apply to the legislative and executive branches; (2) loss of flexibility in the President's authority to impose or terminate sanctions; and (3) lack of a broad authority to suspend or terminate the application of sanctions when the President deems it to be in the United States' national interest. Some Members of Congress challenged the sanctions reform proposals on the basis that definitions are too broad and reporting requirements are too narrow. Not everyone was in agreement, for example, on what constitutes a "sanction." S. 757 and H.R. 1244 both considered restrictions on foreign assistance a sanction; not all Members of Congress share that view. ⁽⁶⁾ Both S. 757 and H.R. 1244 required that the executive branch analyze, after a sanction has been in place for some time, whether that application has been successful in achieving U.S. foreign policy or national security objectives, the extent to which the sanction has harmed humanitarian interests, or what impact there may have been on other U.S. national security and foreign policy interests, including the U.S. economy. Some contended that the reporting requirements in the two proposals were skewed toward agricultural interests and did not take into consideration other economic sectors. Some contended that the bills should have required a report on the cost of not imposing sanctions in instances where behavior justifies doing so, i.e., where a country has engaged in the proliferation of weapons of mass destruction. In congressional testimony, State Department officials asserted that there was no agreed-to means to assess such markers.

Efforts to curtail the President's use of executive orders, proclamations, and directives, emerging late in the 106th Congress, could have had implications for the executive branch's use of sanctions in U.S. foreign policy. Two bills sought to clarify, and perhaps curtail, terms under which the President may issue executive orders that have the weight of law. ⁽⁷⁾ Because executive orders are often used to establish that a national emergency exists vis-a-vis another country's objectionable behavior (thus justifying the imposition of economic sanctions), curtailment of the President's authority to employ such executive orders could minimize the use of sanctions in U.S. foreign policy. H.R. 2655 -- Separation of Powers Restoration Act -- and H.R. 3131 -- Presidential Order Limitation Act of 1999 -- stated the President's powers as set forth in the Constitution; reiterated the importance of the separation of powers among the three branches of government, emphasizing that all legislative powers reside with the Congress; and recalled that the separation of powers doctrine seeks to "preclude the exercise of arbitrary power." ⁽⁸⁾ H.R. 2655 terminated all authority extended throughout the executive branch pursuant to the declaration of a national emergency, terminated the President's (or anyone else's in the executive branch) authority to declare a national emergency, and placed that authority solely with the Congress. H.R. 3131 required most executive orders to be reported to Congress before they enter into effect, to give Congress an opportunity to review and take action to block, or support, the implementation of the order. ⁽⁹⁾

Exemption of Food and Medicine from Sanctions. ⁽¹⁰⁾ In recent years, the United States had restricted the availability of U.S. agricultural commodities to a few states: Cuba, Iran, Iraq, Libya, North Korea, and Sudan. On April 28, 1999, the Clinton Administration changed this policy by selectively allowing commercial sales of food to Iran, Libya, and Sudan, while affirming that the remaining restricted countries were receiving agricultural commodities by other U.S.-supported humanitarian means. ⁽¹¹⁾

Table 2. Food and Medicine Exemption Bills

For the past several sessions of Congress, Members have introduced legislative proposals to change this policy by statute to exempt agricultural commodities, food, medicine, and medical supplies from sanctions regimes imposed for foreign policy reasons. The 106th Congress succeeded in enacting such a change with passage of the Trade Sanctions Reform and Export Enhancement Act of 2000 (title IX in the agriculture appropriations measure, signed into law on October 28, 2000, as P.L. 106-387). ⁽¹²⁾

The Trade Sanctions Reform Act requires that Congress give its approval before any unilateral sanction is imposed to restrict agricultural or medical exports to a sanctioned country. It also requires the President to terminate most current unilateral economic sanctions that restrict the availability of food or medicine. Disallowing sanctions to include export of food and medicine affects U.S. foreign policy toward only a few countries: Iran, North Korea, Cuba, Libya, and Sudan (all of which, by no coincidence, are designated by the Secretary of State as supporters of international terrorism, pursuant to sec. 6(j) of the Export Administration Act). ⁽¹³⁾ Some restrictions apply to the terrorist-designated states, including a requirement for one-year export licenses for any export of food or medicine (except in the cases of Syria, which was not heretofore restricted, or North Korea, to reflect newly warming bilateral relations). The Act also prohibits the use of U.S. assistance of any sort from being made available to Cuba to finance any exports, commercial or humanitarian, and prohibits the use of U.S. assistance of any sort from being made available for commercial exporting to Iran, Libya, North Korea, or Sudan. Exporting to Cuba is further restricted to allow only advance cash sales or third country institutional financing. The authority of the Office of Foreign Assets Control of the Department of the Treasury to grant licenses for U.S. citizens to travel to Cuba is curtailed to include only those travelers that fit the explicit terms listed in the Cuban Assets Control Regime; previously the Office had the authority to grant licenses to travelers on a case-by-case basis. ⁽¹⁴⁾ The law also reaffirms the ban on importing goods or services from Cuba.

Under the Trade Sanctions Reform Act, the President retains the authority to impose sanctions that restrict the export of food and medicine in instances where (1) the United States has declared war against the targeted country; (2) Congress has authorized the use of the U.S. Armed Forces, or the President has invoked such existing authority, against the targeted country; (3) U.S. Armed Forces are engaged in hostilities; or (4) U.S. Armed Forces are threatened by hostilities. The executive branch may continue to restrict exports of food and medicine if the export also meets standards stated elsewhere in law, for example, if the good to be exported is otherwise restricted as a control-listed item under the Export Administration Act of Arms Export Control Act.

The 106th Congress had before it several other bills that would have changed other aspects of restricting the export of agricultural commodities in the course of imposing sanctions. ⁽¹⁵⁾ Several strategies were pursued in legislative proposals to: require the President to report on any future embargo of any selective agricultural commodity (i.e., restricting wheat sales); exempt only agricultural commodities from sanctions applications; require the President to report on the use of food as a foreign policy weapon; or single out Cuba for a food and medicine exemption. Of these, the Selective Agricultural Embargoes Act of 1999 (H.R. 17) and the Agricultural Trade Freedom Act (S. 566) received substantial congressional attention, but were not enacted.

One other effort in Congress focused on Iraq, which was not specifically addressed by the Administration's announcement of April 1999. S. 2522/H.R. 4811 - the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2001, signed into law on November 6, 2000, as P.L. 106-426 - includes section 575, to provide $25 million in appropriations for Economic Support Fund programs for Iraq, of which at least $12 million "should be made available for food, medicine, and other humanitarian assistance (including related administrative, communications, logistical, and transportation costs) to be provided to the Iraqi people inside Iraq..." ⁽¹⁶⁾

H.R. 17 required the President to report to Congress on any selective embargo of an agricultural commodity, provided Congress with a procedure for approving or disapproving the President's actions, and set a two-year termination date for the embargo. H.R. 17 was approved by the House on June 15, 1999, and sent to the Senate, where it was placed on the legislative calendar on September 21, 1999. And finally, S. 566 amended current law to exempt agricultural commodities from the current and future application of unilateral economic sanctions. S. 566 was reported out of the Committee on Agriculture, Nutrition, and Forestry on September 13, 1999, and placed on the Senate Legislative Calendar. Neither was enacted.

The Senate Committee on Foreign Relations reported out a foreign assistance authorization bill, S. 2382, on April 7, 2000, that included the "Trade Sanctions Reform and Export Enhancement Act of 2000," which closely resembled last session's "Food and Medicine for the World Act." The bill was placed on the Senate Legislative Calendar on the same day, but was later referred to the Committee on Banking, Housing and Urban Affairs, where it stalled for reasons unrelated to sanctions.

Sanctions Relief or Reimposition for India and Pakistan. In the spring of 1998, India and Pakistan each detonated nuclear explosive devices. U.S. law required the President to impose sanctions against each country for engaging in the proliferation of weapons of mass destruction. ⁽¹⁷⁾ The two countries were denied most U.S. foreign, military, or financial assistance, access to U.S. government funds, support in international financial institutions, and normal trade status for technologically sensitive items. The 105th Congress, however, enacted two measures to provide Pakistan and India some relief from these sanctions for one year. ⁽¹⁸⁾

Table 3. India and Pakistan Sanctions Bills

To continue the relief from sanctions against India and Pakistan for an indefinite period of time, the 106th Congress passed a provision in H.R. 2561 -- Department of Defense Appropriations Act, 2000. Title IX of that Act grants the President the authority to waive sanctions applied against India and Pakistan affecting nonmilitary programs, foreign assistance, commercial financing, and Export-Import Bank financing. H.R. 2561 also authorizes the President to waive the application of section 620E(e) of the Foreign Assistance Act of 1961 (the Pressler amendment, which prohibits Pakistan from receiving U.S. military assistance), and to waive the restrictions on military assistance imposed after the nuclear detonation tests for both India and Pakistan, if he finds doing so is in the national security interests of the United States. H.R. 2561 was signed by the President into law as P.L. 106-79 on October 25, 1999. The President exercised the authority provided him in the new law on October 27th, when he issued a determination stating a continuation of various foreign assistance, commercial relations, and agricultural commodity support programs for India and Pakistan. ⁽¹⁹⁾

Some concern was raised early in the 2nd session, however, that the President had not exercised the waiver authority fully, particularly in terms of supporting renewed interest toward India in the international financial institutions. While the President has the authority to resume foreign military financing programs and clear the way for international financial institutions loans to re-engage with India, he has not acted on this authority. ⁽²⁰⁾

In the aftermath of Pakistan's military coup d'etat of October 12, 1999, some Members of Congress expressed an intent to place into law some restriction on assisting Pakistan. The annual foreign operations appropriations bill generally prohibits making foreign assistance available to any country "whose duly elected head of government is deposed by military coup or decree". ⁽²¹⁾ The President determined that this restriction is applicable to Pakistan. Foreign assistance could be made available again only after the President determines that a democratically elected government has taken office there. The Foreign Operations Export Financing and Related Agencies Appropriations Act, 2001, however, made an exception to this requirement to provide Pakistan funding for basic education programs for Pakistan, notwithstanding any other statutory restrictions on that country receiving U.S. foreign assistance (P.L. 106-429; sec. 597). Four other bills introduced in the 106th Congress could have provided a means to override the waiver authority stated in the Defense Appropriations Act, in effect to keep sanctions in place because of the coup. None was enacted. ⁽²²⁾

Legislative Proposals Targeting a Specific Country or Activity. Congress could use annual foreign assistance authorization and biennial foreign relations authorization acts to shape foreign policy. Passage of the foreign relations authorization bill over the past few years, however, has been erratic and Congress has not approved a comprehensive foreign assistance measure since 1985. In the absence of such authorizations, Congress has relied on the annual foreign operations appropriations bill to present its views and policy prescriptions to the Administration. The 106th Congress passed no foreign assistance authorization in its first session. The Consolidated Appropriations Act for Fiscal Year 2000 (P.L. 106-113), however, includes the Foreign Operations, Export Financing and Related Programs Appropriations Act, 2000, and the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001, each of which contains sanctions-related language.

The Senate Committee on Foreign Relations reported out a foreign assistance authorization bill, S. 2382, on April 7, 2000, that included changes in current law and new language related to sanctions in the areas of narcotics control, population planning, emerging democracy in Serbia (similar to S. 720, the Serbia Democratization Act, passed by the Senate in the first session), commercial transactions with Russia related to space cooperation (because of Russia's involvement with Iran), other foreign assistance to Russia, terrorism, and extradition. The bill was placed on the Senate Legislative Calendar on the day the Committee reported it, but was later referred to the Committee on Banking, Housing and Urban Affairs, where it stalled for reasons unrelated to sanctions.

The President signed H.R. 4811, the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2001, into law on November 6, 2000, as P.L. 106-429. ⁽²³⁾ The annual foreign assistance appropriations measure has become an accepted means of enacting sanctions-related legislation in absence of a foreign assistance authorization bill. The Act restricts the availability of foreign aid to Russia, Indonesia, Guatemala, China, Cuba, Iraq, Iran, Libya, North Korea, Sudan, Syria, independent states of the former Soviet Union, Colombia, Haiti, Liberia, Pakistan, Serbia (and Yugoslavia), Congo, the Palestinian Authority, Peru, Ethiopia, Eritrea, Zimbabwe, and Cambodia. The Act restricts foreign assistance to countries or programs engaged in objectionable behavior, such as coercive family planning, military coups, debt arrearage, terrorism, noncompliance with U.N. resolutions that impose sanctions, or sheltering indicted war criminals. The Act also allows funding for basic education programs for Pakistan, notwithstanding any other statutory restrictions on that country receiving U.S. foreign assistance (sec. 597).

Table 4. Bills Targeting Specific Country or Activity ⁽²⁴⁾

The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2000, ⁽²⁵⁾ enacted into law on November 29, 1999 as part of the consolidated appropriations bill at the end of the 1st session, similarly restricts individual countries and specific objectionable behavior.

The Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001, ⁽²⁶⁾ in Title I, limits the use of U.S. contributions to the United Nations Development Program when those funds might be directed toward certain programs in Burma and China, and similarly restricts U.S. participation in U.N. Fund for Population programs in China. Title VIII, addressing miscellaneous foreign relations issues, includes a version of the North Korea Threat Reduction Act of 1999 (subtitle B). Arms control measures in Title XI prohibit making assistance available to those engaged in chemical or biological weapons production (� 1132); and clarify terms stated in the Arms Export Control Act relating to the Missile Technology Control Regime (�� 1136, 1137). An "International Arms Sales Code of Conduct Act," incorporated as Subtitle F of Title XII, requires the President to enter into multilateral negotiations to establish "an international regime to promote global transparency with respect to arms transfers, including participation by countries in the U.N. Register of Conventional Arms, and to limit, restrict, or prohibit arms transfers to countries that do not observe certain fundamental values of human liberty, peace, and international stability." The Act also makes technical amendments to current law pertaining to sanctions, particularly the Arms Export Control Act.

H.R. 3164 -- Foreign Narcotics Kingpin Designation Act -- enacted as Title VIII of the Intelligence Authorization Act for Fiscal Year 2000 (P.L. 106-120), authorizes the Administration to expand the policy currently targeting Colombia's drug cartel to all identifiable drug traffickers, on a worldwide basis, and apply sanctions against them. Sanctions include freezing assets, prohibiting U.S. persons from completing transactions with the drug trafficker, and denying entry into the United States for those individuals. ⁽²⁷⁾

H.R. 1883 -- Iran Nonproliferation Act of 1999 -- enacted as P.L. 106-178, requires the President to file a report with Congress identifying every foreign person for whom there is credible information that he or she has transferred goods, services, or technology to Iran that would enhance or further that country's programs to develop weapons of mass destruction. The measure requires that the President impose sanctions against any named individual, including denial of participation in U.S. government procurement contracts, denial of U.S. government arms sales, denial of access to defense articles, defense services, design and construction services, and denial of licenses to receive dual-use goods and technology. ⁽²⁸⁾

H.R. 3244 - Trafficking Victims Protection Act of 1999 - enacted as division A of P.L. 106-386, ⁽²⁹⁾ expands the annual human rights report required by the Foreign Assistance Act of 1961 to include information on a country's patterns of trafficking in persons, which could in turn trigger a cutoff of foreign assistance to that country. The Act authorizes the President to cut off foreign assistance, cultural and educational exchanges, and U.S. support in international financial institutions to traffickers. The President is also authorized to exercise the authorities stated in the International Emergency Economic Powers Act (i.e., prohibiting trade and transactions, freezing assets) against traffickers. Immigration law is also amended to deny visas or entry into the United States to traffickers or beneficiaries of trafficking, and criminal prosecution statutes in the United States Code are amended to strengthen the prosecution and punishment of traffickers. The Act also includes, in section 2002, the Justice for Victims of Terrorism Act, ⁽³⁰⁾ which strengthens the government's authority to facilitate an individual's right to collect frozen assets of a sanctioned country in legal settlement of a crime of terrorism. Specifically, sec. 2002 requires the Secretary of the Treasury to resolve certain claims against Cuban and Iranian assets, reaffirms the President's authority to manage such use of frozen assets, and states a sense of the Congress that "the President should not normalize relations between the United States and Iran until the claims subrogated have been dealt with to the satisfaction of the United States."

And finally, H.R. 4444, granting the People's Republic of China permanent normal trade relations (PNTR), was forwarded to the White House for the President's signature on September 19, 2000, and signed into law on October 10, 2000, after efforts to encumber the granting of PNTR for issues of human rights and proliferation failed.

Bills Not Considered by 106th Congress Beyond Introduction. The following chart lists bills with sanctions implications that were not considered in the 106th Congress beyond introduction.. ⁽³¹⁾ The chart is organized to correspond to the above discussion, with the exception of legislation relating to Cuba, which appears following the country- or issue-specific bills.

Table 5. Bills Not Considered by 106th Congress Beyond Introduction

Sanctions Reform

Food and Medicine Exemption ⁽³²⁾

Sanctions Relief or Reimposition for India and Pakistan

Sanctions Targeting Specific Country or Activity

Cuba-Specific Sanctions or Relief from Sanctions

Footnotes

1. ^(back)See also Economic Sanctions To Achieve U.S. Foreign Policy Goals: Discussion and Guide to Current Law, CRS Report 97-949(pdf), by Dianne E. Rennack and [author name scrubbed].

2. ^(back)"Humanitarian Exemptions from Sanctions," Statement by the Press Secretary, the White House, April 28, 1999; "Economic Sanctions," Press Briefing by Stuart E. Eizenstat, Under Secretary of State for Economic, Business, and Agricultural Affairs, and Richard Newcomb, Director of the Office of Foreign Assets Control, Treasury Department; and Secretary Eizenstat's testimony before the Senate Committee on Agriculture, Nutrition, and Forestry, May 11, 1999; Department of the Treasury, Office of Foreign Assets Control, 31 CFR Parts 538, 550, and 560, 64 FR 41784, August 2, 1999 (effective date July 27, 1999).

3. ^(back)Executive orders implementing domestic policies are more plentiful and have been at the center of this debate. The President's issuance of Executive Order 13107 on December 10, 1998 (63 FR 68991), however, rankled some Members of Congress. E.O. 13107 established an Interagency Working Group on Human Rights Treaties and stated that: "It shall be the policy and practice of the Government of the United States...fully to respect and implement its obligations under the international human rights treaties to which it is a party..." (� 1) The prefatory text to the Order, however, referred to "other relevant treaties concerned with the protection and promotion of human rights to which the United States is now or may become a party in the future..." (emphasis added). Some perceived this to be an attempt to implement human rights treaties without benefit of the Senate's advice and consent.

4. ^(back)Still other legislative proposals could have had some indirect impact on the way sanctions are used in furtherance of foreign policy or national security goals. The Justice for the Victims of Terrorism Act, for example - introduced as H.R. 3382, H.R. 3485, and S. 1796, finally enacted as sec. 2002 of the Victims of Trafficking and Violence Protection Act of 2000, P.L. 106-386 (H.R. 3244) - strengthens the government's authority to facilitate an individual's right to collect frozen assets of a sanctioned country in settlement of a crime of terrorism. Specifically, sec. 2002 requires the Secretary of the Treasury to resolve particular claims against Cuban and Iranian assets, reaffirms the President's authority to manage such use of frozen assets, and states a sense of the Congress that "the President should not normalize relations between the United States and Iran until the claims subrogated have been dealt with to the satisfaction of the United States."

5. ^(back)The 106th Congress conducted seven hearings on sanctions. Some focused on exempting agricultural commodities from sanctions regimes; all provided a wealth of insight and anecdote on the impact and effectiveness of the current use of sanctions in foreign policy. Hearings include: Senate Committee on Agriculture, Nutrition, and Forestry, Hearing on S. 566 (Selective Agricultural Embargoes Act of 1999), May 11, 1999; Senate Committee on Foreign Relations (Full Committee), "U.S. Agriculture Sanctions Policy for the 21st Century," May 11, 1999; Senate Committee on Foreign Relations (Full Committee), "Role of Sanctions in U.S. National Security Policy," July 1, 1999; Senate Committee on Foreign Relations (Full Committee), "Role of Sanctions in U.S. National Security Policy," July 21, 1999; House Committee on Ways and Means. Subcommittee on Trade, "The Use and Effect of Unilateral Trade Sanctions," May 27, 1999; House Committee on Agriculture (Full Committee), "Economic Sanctions and the Effect on U.S. Agriculture," June 9, 1999; and House Committee on Small Business, Subcommittee on Tax, Finance, and Exports, "Do Unilateral Economic Trade Sanctions Unfairly Penalize Small Business?" June 24, 1999.

6. ^(back)See, for example, Senator Jesse Helms' article critiquing some aspects of the current debate: "What Sanctions Epidemic? U.S. Business' Curious Crusade," Foreign Affairs, Jan./Feb. 1999, pp. 2-8.

7. ^(back)A third bill, S. 1795 -- Executive Orders Limitation Act of 1999 -- would have limited the President's authority to issue executive orders unless explicitly allowed under statute or the Constitution. In most instances where sanctions are triggered, the underlying statutes, the National Emergencies Act and International Emergency Economic Powers Act, explicitly authorize the President to use executive orders to state policy. S. 1795 was introduced on October 26, 1999, and referred to the Committee on Governmental Affairs. Four other bills were introduced to nullify the application of Executive Order 13107 (see footnote 3): H.R. 62, H.R. 63, H.R. 662, and H.R. 663. Each measure was referred to the Committee on International Relations; none received further consideration.

8. ^(back)Section 2(a)(2) of H.R. 2655, quoting Justice Brandeis in Myers v. United States, 272 U.S. 52, 293 (1926).

9. ^(back)"The Impact of Executive Orders on the Legislative Process: Executive Lawmaking?" Hearing before House Committee on Rules, Subcommittee on Legislative and Budget Process, October 27, 1999; and "Executive Orders," Hearing before House Committee on the Judiciary, Subcommittee on Commercial and Administrative Law, October 28, 1999.

10. ^(back)For a fuller discussion, see Economic Sanctions and U.S. Agricultural Exports, CRS Report RL30108(pdf), by [author name scrubbed]; and Exempting Food and Agriculture Products from U.S. Economic Sanctions: Current Issues and Proposals, CRS Issue Brief IB10061, by Remy Jurenas.

11. ^(back)"Humanitarian Exemptions from Sanctions," Statement by the Press Secretary, the White House, April 28, 1999; "Economic Sanctions," Press Briefing by Stuart E. Eizenstat, Under Secretary of State for Economic, Business, and Agricultural Affairs, and Richard Newcomb, Director of the Office of Foreign Assets Control, Treasury Department; and Secretary Eizenstat's testimony before the Senate Committee on Agriculture, Nutrition, and Forestry, May 11, 1999; Department of the Treasury, Office of Foreign Assets Control, 31 CFR Parts 538, 550, and 560, 64 FR 41784, August 2, 1999 (effective date July 27, 1999).

12. ^(back)H.R. 4461 enacts H.R. 5426, as introduced on October 6, 2000, by reference. The text of the Trade Sanctions Reform and Export Enhancement Act contained in the latter bill.

13. ^(back)Sales of food, agricultural commodities, and medicine to Iraq, also designated as a supporter of international terrorism, are further constrained by U.N. resolutions prohibiting such transactions other than through U.N.-monitored programs. If/When United Nations sanctions are lifted, the terms of the Trade Sanctions Reform and Export Enhancement Act of 2000 would apply to Iraq. Syria is designated as a supporter of international terrorism but has not been denied access to agriculture or medicine in spite of that designation.

14. ^(back)Travel to Cuba by U.S. citizens is already significantly curtailed by the Cuban Assets Control Regulations (CACR) issued by the Department of the Treasury (see 31 CFR 515.560 and sections referred to therein). In 1996, Congress passed, and President Clinton signed into law, the LIBERTAD Act (popularly referred to as the Helms-Burton Act; P.L. 104-114; 22 U.S.C. 6021 et seq.), wherein sec. 102(h) codified all of the CACR (31 CFR part 515), including the travel restrictions, in permanent law. Any changes to sections of the CACR, then, would seem to require an act of Congress. Since 1996, the President has made some changes in the CACR, but has contended that the new language is in keeping with the intent of the Helms-Burton Act. Congress has not challenged these changes.

15. ^(back)In the first session, the Senate adopted language to limit the President's authority to include food and medicine in sanctions when it passed S. 1233 and incorporated that bill as an amendment into H.R. 1906, the Agriculture, Rural Development, Food and Drug Administration and Related Agencies Appropriations Act, 2000. The sanctions exemption language was dropped in conference, however, over a debate on how the new language would apply to terrorist states and, in particular, to Cuba. H.R. 1906 was signed as P.L. 106-78 on October 22, 1999, without the sanctions exemption.

16. ^(back)As originally considered in the Senate, this section stated that funds had to be used for food, medicine, and other humanitarian assistance. Changing "shall" to "should" in the final version of the bill resulted in this clause becoming nonbinding.

17. ^(back)Section 102(b) of the Arms Export Control Act (P.L. 90-629; 22 U.S.C. 2799aa-1(b)).

18. ^(back)For fuller discussion, see India-Pakistan Nuclear Tests and U.S. Response, by Barbara L. LePoer, et al., CRS Report 98-570(pdf), updated November 24, 1998; and Nuclear Sanctions: Section 102(b) of the Arms Export Control Act and Its Application to India and Pakistan, by Jeanne Grimmett, CRS Report 98-486, updated December 9, 1999.

19. ^(back)Presidential Determination No. 2000-4, October 27, 1999, stated:

"(1) with respect to India, insofar as such sanctions would otherwise apply to activities of the Export-Import Bank, the Overseas Private Investment Corporation, and the Trade and Development Agency; assistance under the `International Military Education and Training' program; the making of any loan or the providing of any credit to the Government of India by any U.S. bank; assistance to the Asian Elephant Conservation Fund, the Rhinoceros and Tiger Conservation Fund, and the Indo-American Environmental Leadership program; and any credit, credit guarantee, or other financial assistance provided by the Department of Agriculture to support the purchase of food or other agricultural commodity; and

"(2) with respect to Pakistan, insofar as such sanctions would otherwise apply to any credit, credit guarantee, or other financial assistance provided by the Department of Agriculture to support the purchase of food or other agricultural commodity; and the making of any loan or the providing of any credit to the Government of Pakistan by any U.S. bank."

20. ^(back)To restore these two means of financial support to India without waiting for a Presidential determination, Senator Brownback introduced an amendment to the foreign operations appropriations bill (S. 2522) under consideration in the Senate. The amendment would have restored foreign military financing programs to India notwithstanding any other provision of law, and would have made the restrictions on IFI support for India not applicable for the upcoming fiscal year. The amendment was withdrawn (S.Amdt. 3493, introduced and withdrawn on June 20, 2000).

21. ^(back)Section 508 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 2000, in P.L. 106-113, and in previous annual appropriations acts since FY1986.

22. ^(back)H.R. 973 -- Security Assistance Act of 1999 -- and H.R. 2415 -- American Embassy Security Act -- carried authority for the President to waive the sanctions against India and Pakistan only for one year, instead of the indefinite period provided in the new law. The text of H.R. 2415 reached conference, where it was struck out and replaced with the Senate's text of the Bankruptcy Reform Act, wholly unrelated to sanctions or embassy security. The new language was pocket vetoed by the President on December 19, 2000. A third measure, H.R. 3095, referred to the Committee on International Relations on October 18, 1999, but not further considered, struck out reference to waiving the Pressler amendment for Pakistan from the Defense Appropriations Act. A fourth measure, H.R. 3330 -- United States Support for a Democratic Pakistan Act of 1999 -- prohibited the President from lifting any of the sanctions against Pakistan, including the Pressler amendment, until the President certifies that that country has a democratically elected government, unless he finds it in the national security interest of the United States to do so. H.R. 3330 was referred to the Committees on International Relations and Banking and Finance on November 10, 1999.

23. ^(back)H.R. 4811 enacts H.R. 5526, as introduced on October 24, 2000, by reference. The text of the foreign assistance appropriations for 2001 is contained in the latter bill.

24. ^(back)Not included in this discussion are bills or resolutions that approach but stop short of actually imposing sanctions. P.L. 106-186 (S.J. Res. 43), for example, states the sense of the Congress that implies that the United States would "review and modify" U.S. "political, economic, and military relations with Peru" in light of irregularities in that country's recent presidential elections. No sanction is imposed, but the stage is set. In other circumstances, sanctions enacted into law might be preceded by legislation that establishes thresholds of expected behavior that, if not reached, might be sanctionable. The Workers' Rights Principles for U.S. Businesses in China Act (S. 2574), for example, would have required U.S. businesses engaged in China to register with the State Department and "indicate whether such company agrees to implement the principles" of fair labor practices. No sanction is imposed, but a behavioral standard is established, which could lead to the imposition of sanctions in a later enactment.

25. ^(back)Earlier versions of this Act were contained in H.R. 2606 and S. 1234, which passed the Congress as H.R. 2606 only to be vetoed by the President for reasons unrelated to sanctions; H.R. 3196, and H.R. 3422, before being incorporated into H.R. 3194.

26. ^(back)Earlier versions of this Act were contained in S. 886, which was incorporated into the House-passed H.R. 2415, reconfigured as H.R. 3427, and finally enacted by reference in H.R. 3194. See also H.R. 1211, which was reported out of the Committee on International Relations on April 29, 1999 (H.Rept. 106-122), and placed on the House calendar, but received no further consideration.

27. ^(back)On June 1, 2000, the President made his first determination of foreign drug kingpins whose assets are frozen and for whom trade and transactions with U.S. entities are prohibited. In a letter to Congress of the same date, President Clinton named 12 foreign persons subject to the limitations stated in the Foreign Narcotics Kingpin Act.

28. ^(back)H.R. 1883 refers to the President's authority as stated in Executive Order 12938 of November 14, 1994; 59 F.R. 59099; 50 U.S.C. 1701 note. See, in particular, � 4, Sanctions Against Foreign Persons.

29. ^(back)See Trafficking in Women and Children: the U.S. and International Response, by Francis Miko, et al., CRS Report RL30545.

30. ^(back)Introduced in an earlier form in S. 1796 and H.R. 3382 and H.R. 3484.

31. ^(back)Committee names, in some cases, are truncated or abbreviated. HIRC refers to the House Committee on International Relations, SFRC to the Senate Committee on Foreign Relations, and WM refers to House Committee on Ways and Means.

32. ^(back)See also legislative proposals pertaining to Cuba.

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