This article is cross-posted at Steptoe International Compliance Blog.
On February 13, 2019, the State Department provided a summary of Secretary of State Mike Pompeo’s recent phone call with Russian Foreign Minister Sergey Lavrov, which stated that “Secretary Pompeo reiterated the U.S. determination to hold Russia accountable for its use of a chemical weapon in Salisbury, UK through sanctions as required by the CBW Act.” The sanctions Secretary Pompeo referenced are the second round of sanctions slated to be imposed on Russia under the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 (CBW Act) for that country’s use of a nerve agent against a former Russian spy and his daughter in the United Kingdom. The decision to impose the second round of CBW Act sanctions was announced in November of last year, but there has largely been radio silence from the administration over the past few months with respect to a timetable for imposition or the type of sanctions to be imposed. While the summary of Secretary Pompeo’s call did not provide any additional detail on those questions, it is notable as it indicates that despite the months of delay the administration is still expressing an intent to move ahead with the sanctions.
The CBW Act requires the imposition of sanctions following a determination by the President (delegated to the Secretary of State) of the use of chemical or biological weapons in violation of international law or in lethal form against one’s own nationals. On August 8, 2018 the State Department announced that it had made a determination against Russia and that it would be imposing sanctions on Russia under the CBW Act.
The CBW Act contemplates two rounds of sanctions. The first round of sanctions, which in this case went into effect on August 27, 2018, were relatively minor, as is intended under the Act. The Trump Administration then had three months to either (1) provide a certification to Congress that Russia was no longer using chemical or biological weapons, had provided reasonable assurances against the future use of such weapons, and permitted on-site inspections or other reliable means to verify compliance or (2) impose a second round of sanctions.
On November 6, 2018, the State Department informed Congress that it was unable to provide the above certification and would be proceeding with a second round of sanctions. The second round of CBW Act sanctions are more significant — they require the Executive Branch to select three sanctions from a menu of six options, including:
- US opposition to all multilateral development bank assistance;
- a prohibition on any US bank making a loan or providing credit to the Government of the Russian Federation except for the purposes of purchasing food or other agricultural commodities or products;
- a ban on exports to Russia of all goods and technology (excluding food and other agricultural commodities and products);
- a ban on imports into the US of articles that are the “growth, product, or manufacture of” Russia, which “may include petroleum or any petroleum product;”
- a suspension or downgrading of diplomatic relations between the countries; and
- a suspension of the authority for “foreign air carriers owned or controlled by” Russia to “engage in foreign air transportation to or from the United States.”
In this case, rather than immediately imposing the second round of sanctions, a State Department spokesperson stated “[t]he process takes time and we want to get sanctions right” and that the State Department did not believe there was a statutory deadline for the sanctions imposition. The State Department has not explained their legal justification, but it appears to stem from language in the CBW Act requiring the second round of sanctions to be imposed “after consultation with the Congress” without indicating a specific timetable in which such consultations must be completed.
In the meantime there have been no updates from the administration on a timetable for implementation, which of the six menu options will be selected, or whether any waivers of the sanctions will be exercised. The summary of Secretary Pompeo’s call appears to reaffirm the State Department’s previous decision to proceed with second round CBW Act sanctions, but, for now at least, the waiting continues.
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