New Russia sanctions: A road to nowhere?

DISCLAIMER: All opinions in this column reflect the views of the author(s), not of EURACTIV.com PLC.

Russian President Vladimir Putin (L) and US President Donald J. Trump (R) meet on the sidelines of the G20 summit in Hamburg, Germany, 7 July 2017. [Michael Klimenteyev/ EPA]

Washington-Moscow relations are threatening to plummet even further after the US decided to impose new sanctions and Russia retaliated by expelling a large number of American diplomatic staff. George Voloshin examines the situation.

George Voloshin is head of the French branch of Aperio Intelligence, an independent corporate intelligence consultancy based in London. He is the author of two books on the geopolitics of Central Asia and over a hundred articles on international affairs, with a focus on Russia and the former Soviet Union.

US President Donald Trump signed into law the Countering America’s Adversaries Through Sanctions Act (CAATSA) on Wednesday (2 August), after securing huge support from Congress.

The Senate passed a more limited variant of the same bill in June, focusing exclusively on sanctions against Russia and Iran. The House’s text also includes measures to be taken against North Korea.

The longest Russia portion of the draft law is obviously the most controversial one, given the proposed significant toughening of existing restrictions and the introduction of new sanctions.

The US-Russian relationship, already at an all-time low, is poised to suffer even further, with Russian President Vladimir Putin having ordered hours later on 28 July a reduction of US diplomatic personnel and a vacation of two US properties in Moscow. The Kremlin had earlier threatened a ‘proportionate’ retaliation.

Looming standoff in D.C.

The CAATSA comes at a particularly inopportune moment for the Trump Administration as it is battling accusations of collusion with the Russian government to win last November’s US presidential election against Hillary Clinton.

Recent revelations about a secret meeting between a Russian lawyer linked to the intelligence services and a group of Donald Trump’s closest aides, including his own son Donald Trump Jr. and his son-in-law Jared Kushner, have only added fuel to the fire.

Key Democrats have been questioning for months the depth of relationship between the Trump campaign and transition team, on the one hand, and the Russians, on the other.

Some of them have been openly calling for a revision of the security clearances provided to senior Trump advisers on the grounds that those individuals may not be trustworthy enough to merit access to top secret information.

The sudden firing of FBI Director James Comey on 9 May and the subsequent appointment of former FBI Director James Mueller to be the special counsel in charge of the Russia investigation have sent tensions to new highs.

As Mueller is expanding his probe into the Trump family’s worldwide businesses – a subject of potential controversy given extensively documented conflicts of interests, the White House is pushing back.

Some media sources indicate that the Trump Administration may be seeking out compromising materials on members of the Mueller team while others speculate that the American president could simply fire the special counsel.

This had led prominent Democrats in Congress to warn Trump against doing so, reminding him of the Saturday Night Massacre of October 1973 in which another Republican, Richard Nixon, fired Special Prosecutor Archibald Cox. Less than a year later, in August 1974, Nixon resigned the presidency in the face of almost certain impeachment.

Growing suspicions about Trump’s collusion with Russia, among both Democrats and Republicans, have informed much of the CAATSA’s language.

If the President wants to lift existing sanctions, Section 222 explicitly requires him to submit to the ‘appropriate congressional committees’ reliable evidence of cessation of a given person’s engagement in sanctioned activities.

If the President intends to waive the initial application of the above sanctions, he must prove to Congress: 1) as regards Ukraine, that Russia is actually implementing the Minsk Accords of 2014 and 2015; and 2) on cybercrime, that Russia has stopped its cyber intrusions.

Moreover, both steps are conditioned to them being in the ‘vital national interest of the United States’. It is clear as day that there is not a single chance either of this can be proved: the Ukraine peace talks are deadlocked and the known extent of Russia’s meddling in the US electoral process is gradually expanding as the investigation proceeds.

Tightening of existing sanctions

The US president has constitutional authority to veto any bill submitted to him by Congress. However, in the case of the CAATSA, Donald Trump’s margin for manoeuvre was very limited from the outset as Congress already had enough votes to override the veto.

The White House has been utterly inconsistent from day one in its assessment of Russia-related scandals, sending mixed signals, retracting previous statements, supporting most radical proposals one day and then adopting a less belligerent stance another day.

This lack of coherence made it impossible for the Trump Administration to mount an effective defence of the no-new-sanctions approach, thereby finding itself hostage to Congress on a subject that has at all times pertained to the exclusive prerogatives of the Executive Office.

Of course, implementation is an important issue, and however stringent, no sanctions will reach their goals unless they are properly enforced. The US federal government, namely the Departments of State, Commerce and Treasury (and within the latter, the Office of Foreign Assets Control), are the ones to ensure that the Russia sanctions regime is functioning as intended.

Whatever the future effectiveness, from the implementation perspective, of this new round of sanctions, they go much further than anyone could have imagined less than a year ago.

Section 223 of the CAATSA strengthens the restrictive nature of Directives 1 and 2 under EO 13662 containing so-called ‘sectoral sanctions’ against key Russian industries. Authorised activities with new debt or equity, as applicable to the financial services sector, are limited to maturities no longer than 14 days, compared with 30 days as of today (Directive 1).

A similar restriction concerning new debt, as applicable to energy sector companies, reduces the authorised maturity from 90 to 60 days (Directive 2). The bill enables the Secretary of the Treasury to extend the provisions of EO 13662 to any state-owned Russian entity operating in the railway or metals/mining sector if its activities are deemed to be contributing to the crisis in Ukraine.

Conversely, the US oil industry, in particular ExxonMobil with its huge projects in Russia, has scored an undeniable victory by successfully lobbying Congress for an amendment to the new wording of Directive 4.

In its current reading, the directive bars US persons from participation in deepwater (below 500 feet), Arctic or shale projects a) if they have the potential to produce oil in Russia and b) involve sanctioned entities, first and foremost the biggest Russian oil producer, state-controlled Rosneft.

The final amendment expands the geographic scope of Directive 4 to the entire world, but limits involvement by sanctioned Russian firms to ‘a controlling interest or a substantial non-controlling ownership interest’, i.e. not less than 33%.

At the same time, the CAATSA toughens the language of the 2014 Ukraine Freedom Support Act with regard to unauthorised participation by foreign persons in ‘special crude oil projects’, which means deepwater, Arctic and shale.

Instead of ‘may impose’, the president ‘shall impose’ relevant sanctions – another instance of legislative encroachment upon the executive turf. The same change of tone is observable, for example, in Section 227, which amends Section 9 of the 2014 Sovereignty, Integrity, Democracy, and Economic Stability of Ukraine Act in connection to corruption committed by Russian officials. The latter becomes punishable outside of Russian borders, too.

This op-ed is formed of two parts and the second half will be published on 4 August.