Iran Air 2011: Flying the Friendly Skies?
Much ado was made last month when the United States Department of the Treasury Office of Foreign Assets Control (“OFAC”) designated Iran Air as a Specially Designated National (“SDN”) under the Weapons of Mass Destruction Proliferators sanctions program. At first, many people were concerned that OFAC’s designation of Iran Air would prevent U.S. persons from being able to fly into and within Iran on the carrier, however, a number of sources quickly raised the fact that the travel exemption contained in the International Emergency Economic Powers Act (“IEEPA”) allowed for U.S. persons to engage in travel related transactions with Iran Air. So everything is ok with flying Iran Air right? Not necessarily.
As Clif Burns from Export Law Blog wrote last week, a U.S. Department of State official revealed some concerns that may make one think twice before stepping on to an Iran Air flight. During the Q&A session of last week’s 2011 Update conference held by the U.S. Department of Commerce Bureau of Industry and Security (“BIS”) panel member John-Marshall Klein from the Office of Terrorism Finance and Economics Sanctions Policy, noted that while Iran Air’s designation did not preclude travel on the carrier, he wouldn’t advise Americans to travel on Iran Air because the sanctions would prevent Iran Air from getting spare parts.
What Mr. Klein was hinting at was that due to Iran Air’s designation under the Weapons of Mass Destruction Proliferators Regulations, the general license at 31 C.F.R. 560.528 which permits OFAC to license on a case-by-case basis spare parts necessary for the safety of civil aviation would not be applicable.
As Mr. Burns also pointed out in his blog there are treaty obligations which would bar the United States from engaging in activities which would endanger civil aviation. Nonetheless, it does seem from Mr. Klein’s comments that OFAC may not be open to authorizing transactions allowing aircraft parts needed for the safety of civil aviation to Iran Air.
Keep in mind that Mr. Klein is an official from the U.S. Department of State, and while the Department of State does play a consultative role, OFAC is ultimately responsible for issuing specific licenses for the export to Iran of parts needed for the safety of civil aviation. So the question remains: do Mr. Klein’s comments portend the denial of license applications to export parts needed for the safety of civil aviation to Iran Air, thereby rendering the move by the United States and OFAC a direct attempt to threaten the lives of innocent persons flying Iran Air? Or were Mr. Klein’s comments just made in an off hand manner without a thorough consideration of how the export of such parts to Iran Air could be authorized?
I have to believe it was the latter. I just have a very hard time believing the U.S. government would intentionally seek to endanger the lives of so many innocent parties, particularly when a number of those parties are Iranian Americans who quite often use Iran Air to travel to or within Iran. Moreover, even if the United States did have such nefarious intentions–which again I doubt–it would be highly unlikely for them to openly admit them. At the end of the day, I believe that both the legal and policy arguments for licensing the export of parts for the safety of civil aviation to Iran Air are so compelling that OFAC would have an extremely hard time justifying the denial of such a license. I will be interested to see what determinations they render for such license applications and would encourage anyway who had the patience and the money to file either a license application or a request for interpretative guidance to see what OFAC actually takes on the issue.
The author of this blog is Erich Ferrari, an attorney specializing in OFAC matters. If you have any questions please contact him at 202-280-6370 or ferrari@ferrari-legal.com.
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This is relying on a few generous assumptions, no? There has been a push in Washington to prevent the president from licensing civilian aircraft parts to Iran:
Stop Congress from Targeting Iranian Passenger Planes!
Congressman Brad Sherman (D-CA) has re-introduced legislation that would put the lives of innocent Iranians in danger.
Iran has one of the worst civilian air safety records in the world, thanks in part to U.S. sanctions that have left the country’s civilian aviation fleet in disrepair.
In the past decade, over 1,000 people have been killed in at least fifteen plane crashes in Iran, including seventy-seven passengers who were killed when a Boeing 727 went down in northwest Iran just three months ago.
On March 16, President Obama notified Congress that he would utilize his humanitarian waiver authority to allow repairs for fifteen unsafe engines being used in Iranian civilian planes in order to prevent such tragedies.
By taking positive steps like utilizing the humanitarian waiver, the President can demonstrate that we stand with the Iranian people.
But now, Rep. Sherman has introduced legislation, H.R. 1655, to revoke President Obama’s humanitarian waiver authority. Sherman says we should not allow repairs for Iranian planes, even to prevent civilian deaths, until Iran ends its nuclear program.
The lives of ordinary Iranians should not be used as pawns in the dispute over Iran’s nuclear program. The Iranian people have suffered enough.
Tell your Representative in Congress: Don’t target Iranian civilian airplanes, oppose H.R. 1655!
This legislation has already been cosponsored by Ted Poe (R-TX), Carolyn B. Maloney (D-NY), Edward Royce (R-CA), Heath Shuler (D-NC), and Shelley Berkley (D-NV).
We successfully opposed this legislation last year. Help us stop it again by writing your Member of Congress and urging him or her to oppose putting innocent lives at risk.
https://secure3.convio.net/niac/site/Advocacy?cmd=display&page=UserAction&id=163
I wouldn’t say its all assumptions, as Article 44 of the Convention on International Civil Aviation would actually prohibit the U.S. from maintaining such a policy. Also, there is a big difference between a Congressman proposing legislation and the Departments of State and Treasury adopting a policy in direct contravention of the law. Perhaps my assumption that they wouldn’t intentionally adopt such a policy is generous, however, on the other hand, I believe the more dangerous assumption to make is that they would intentionally seek to endanger the lives of passengers flying on Iran Air.
At the end of the day, I would rather assume and announce that a U.S. government official made a misleading off hand comment during a Q&A session, then assume and announce that the U.S. Government has intentionally adopted a policy of endangering the lives of those who fly on Iran Air. That’s just my two cents though.
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