The New York Times recently published an Op-Ed about Congress’s amendment to the Visa Waiver Program (VWP) targeted at dual nationals and visitors of Iran, Iraq, Syria, and Sudan. The VWP, codified at 8 U.S.C. § 1187, makes it easier for citizens of certain countries to travel to the United States, by not requiring these citizens to apply for a visa for short-term travel. In December of 2015, Congress amended the VWP within a massive government spending bill known as an omnibus. The amendments make dual nationals of Iran, Iraq, Syria, and Sudan and anyone who had visited these four countries within the last five years, ineligible for the VWP’s benefits. The House of Representatives originally proposed these changes in House Bill 158 (passed 407 to 19) in order to make it more difficult for terrorists to enter the United States.
The VWP comes just as the Joint Comprehensive Plan of Action (JCPOA) is beginning to be implemented; in July of 2015, the United States along with China, Russia, France, the United Kingdom, and Germany signed a pact with Iran that provided Iran with sanctions relief in exchange for a number of nuclear related commitments from Iran. Iranian government officials have criticized the VWP amendments as violating paragraphs 29 and 30 of the JCPOA. In particular, paragraph 29 provides that: “the United States, consistent with their respective laws, will refrain from any policy specifically intended to directly and adversely affect the normalization of trade and economic relations with Iran inconsistent with their commitments not to undermine the successful implementation of this JCPOA.” In a statement to Iranian Foreign Minister Javad Zarif, Secretary of State John Kerry addressed the Iranian government’s concerns regarding the VWP amendments: “I am also confident that the recent changes in visa requirements passed in Congress, which the Administration has the authority to waive, will not in any way prevent us from meeting our JCPOA commitments, and that we will implement them so as not to interfere with legitimate business interests of Iran.” In light of the Obama Administration’s comments, do the VWP amendments violate the JCPOA?
It is difficult to ascertain definitively whether the VWP amendments violate the JCPOA. The amendments are not on their face a sanction so they don’t directly correlate with the United States’ committed sanctions relief. However, the VWP amendments can arguably be viewed as violating the spirit and letter of the JCPOA and the specified commitments under paragraphs 28 and 29 to refrain from actions intended to prevent normalization of economic activity with Iran. But, the JCPOA does not explicitly address sanctions meant to combat Iran’s support of terrorism, human rights abuses, or other non-nuclear military activities, and retains the United States’ ability to sanction Iran to address these issues. Though Congress’s stated intent for passing the VWP amendments is to combat terrorism, the VWP’s direct effect makes it more difficult for business persons to take advantage of the JCPOA’s sanctions relief. Any person who takes advantage of the opportunity to conduct business with Iran and in so doing visits Iran loses her privileges under the VWP to travel easily to the United States. While Secretary Kerry suggests that the Executive Branch would be able to provide blanket waivers for persons doing business in Iran, given the current political climate, it is unclear how Congress would respond to such action.
Ultimately, the VWP’s possible implications for the JCPOA are more likely to be duked out at the political stage than to actually affect its implementation. The JCPOA does not provide Iran with any real power to force the United States to adjust its behavior that violates the JCPOA’s commitments. Iran’s only real remedy through the JCPOA, if it views the United States as breaching its obligations, is to file a complaint through the JCPOA’s dispute resolution mechanism articulated in paragraphs 35-36. If Iran were to choose to do so, the dispute resolution procedure would culminate with a non-binding opinion ascertaining whether the United States’ actions constitute a violation. At this point, Iran could encourage the United States to change the VWP, as it is currently doing, or view the VWP as a violation and therefore walk away from the JCPOA. But by walking away from the JCPOA, Iran would forfeit all of the sanctions relief it has secured. Therefore, it is unlikely that Iran will undo the JCPOA in response to the VWP amendments.
On a personal level, as an Iranian-American, I wonder how my right to travel would be affected by the VWP’s amendments. I assume that I would be considered a dual national for purposes of the VWP. Iranian nationality is conferred via the father’s nationality, therefore, although I was born in the United States and have never been to Iran, in the eyes of the Iranian government, I am an Iranian national. The VWP amendment does not directly affect my right to travel to the 38 countries to which it applies, but nations apply their visa waiver programs in a reciprocal manner. This means that it is only a matter of time before the European Union, for example, responds to the changes in the VWP and excludes American dual nationals or American citizens who have recently visited Iran, Iraq, Syria, or Sudan from its corollary visa waiver program. Therefore, there’s a very real possibility that if my friends from Columbia Law School and I decide to travel to France this summer (for example), I would need to apply for a visa whereas my fellow US-citizen friends would not.