United Nations Economic Sanctions

United Nations Economic Sanctions 

UN_General_Assembly_hallWhat is the role of the United Nations with Economic Sanctions? 

Since 1945, the United Nations (UN) is an international governmental organization primarily responsible for the maintenance (and alas sometimes restoration) of international peace and security. Note that the UN also fulfills other important roles, e.g. human rights, giving humanitarian assistance, helping refugees, reducing the wealth between rich and poor countries, and developing international law. The aims and purposes of the UN can be found in the UN Charter (see article 1). 

The role of the UN is based on the concept of collective security, whereby the UN can impose economic sanctions (and authorize military action) on behalf of it members when responding to threats or breaches to international security and peace or acts of armed aggression. 

Note that the UN Charter does not (intentionally) define these concepts. For that matter, the charter also does not even mention the term economic sanctions. 

UN Security Council at workThe founders of the UN wished to give the United Nations Security Council (UNSC), the principal UN organ authorized to impose economic (and military) sanctions, maximum flexibility in determining when it was necessary to respond to a specific situation. 

 

 

Examples of Threats to International Peace & Security and Acts of Aggression

  • Threats to international peace: 
    • countries with an aggressive foreign policy record withe potential to possess or develop weapons of mass destruction (Apartheid South Africa, Iraq, Iran and North Korea)
    • international terrorism (1992 Libya linked to Pan Am and UTA bombings; 1996 Sudan regarding assassination attempt on former President Mubarak of Egypt; 1999 Taliban and Al Qaeda related acts of terrorism; since 2002 the UNSC has stated that acts of international terrorism are a threat to international peace and security)
    • international conflicts (conflict between Eritrea and Ethiopia)
    •  threats emerging from domestic crises (1965 denial of the right to self-determination by the minority white Smith Government in South Rhodesia, Apartheid in South Africa, civil wars in former Yugoslavia, Somalia, Liberia and Rwanda; military coups 1993 Haiti, 1997 Sierra Leone; armed insurgents using armed force against a government 1993 Bosnian Serbs, 1993 UNITA rebels against Angolan Government; serious human rights violations Rwanda)
  • Breaches of international peace 1990 invasion of Kuwait by Iraq

In regard to acts of aggression, the UNSC has surprisingly enough rarely determined that countries have committed such acts. The rationale behind this, is that the concept of acts of aggression remains undefined in the UN Charter. The UN founders were unable (or willing) to define the concept. The UN founders were afraid that a defined list of acts of aggression could impair the ability of the UNSC to respond to new types of acts of aggression or lead to a situation in which acts of aggression would become prioritized.

Note that the fears of the UN founders have become somewhat redundant as definitions on acts of aggression have been further refined and enriched by the UN General Assembly’s resolution regarding the Definition of Aggression and the ruling of the International Court of Justice in the Nicaragua Case. Although these contributions have enriched our understanding of acts of aggression, they, do not restrict the UNSC discretion to reach its own determinations whether an act of aggression has taken place.

The Powers of the United Nations Security Council 

Economic statecraft in practice_comprehensive versus limited sanctions regimes

The powers of the UNSC are sweeping, especially when it comes to discharging its responsibilities regarding the maintenance of international peace and security. 

Constitutionally, the powers of the UNSC are found in Chapter V UN Charter. It empowers the UNSC with the authority to respond to any threat  or breach of international peace and security or acts of aggression. The key provisions for authorizing economic sanctions (and military action) are found in Chapter VII UN Charter (articles 39 and 41).

The UNSC itself determines whether here is a threat or breach to international security (or an act of aggression) – see article 39 – and which measures are required to either diffuse or solve such acts breaches or threats, which [can] “include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations” (see article 41). These measures are meant not be exhaustive, but types of measures which the UNSC can impose. 

For this reason, the UNSC has been able to apply article 41 for a range of issues other than the described types of economic sanctions found in article 41, such as the creation of international tribunals (e.g. the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda).

UNSC vote to use all necessary means_ to uphold its resolutions if Iraq does not withdraw from Kuwait by 15 January 1991. UN New York 20111990 UN Media Photo Nr 31700Once the UNSC has formally decided to impose sanctions, it can determine whether all UN members must take action or that only some members must take action (article 48).

Further, if the enforcement of economic sanctions cause undue hardship for UN members (or other third countries), the UNSC can adopt specific measures to solve these problems (article 50).

The Applicability of UNSC Sanctions to Non-UN Members

There is some debate, mainly in academic circles, whether UNSC sanctions under Ch. VII also apply to non-UN member states. This question can be regarded as an academic question given the legal effect is universal as most countries are UN members.

Furthermore, the power to impose binding decisions on non-UN member states is based on article 2(6) UN Charter, which declares that the UN should ensure that non-members act in accordance with the principles of the UN Charter, in particular regarding the maintenance of international peace and security. State practice also indicates the binding power of UNSC Chapter VII economic sanctions, e.g. South Korea, Switzerland and the Holy See – prior to joining the UN, choose to implement UNSC sanctions.

Note that when the UNSC adopts economic sanctions under Chapter VII, it indicates it’s intention that all states are bound to comply with its sanctions regimes; in most cases, when outlining its sanctions obligations under Chapter VII, the UNSC frequently employs the term “All states shall.”  

Finally, the view is also supported in the jurisprudence of international tribunals, e.g. the in the Milutinovic case, the Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia (regarding decision on jurisdiction 06-05-2003) supported the practice that the UNSC adopted resolutions apply to non-UN members.

UNSC approves system to impose targeted sanctions in South Sudan_UN News Centre_ UN Photo by Devra BerkowitzResponsibilities of the UN Member States to Enforce UNSC Economic Sanctions

UNSC measures adopted under Chapter VII UN Charter are legally binding on all UN members states (so-called universal supra-national sanctions).

Under the UN Charter, all UN member states agree to adhere and implement UNSC decisions under Chapter VII. In this context, UN members are legally obligated to implement and enforce UNSC sanctions. In this context, Chapter VII UNSC measures override all other legal obligations of UN member states. Note that in most countries, depending on their national laws and regulations, make it a (serious) crime to circumvent or facilitate (enable) the circumvention of UNSC sanctions regimes.

Obligations of UN member states

  • Article 25 mandates that all UN member states agree to execute the decisions of the UNSC in accordance with the UN Charter. In this context, UN member states must comply with the wishes of the UNSC and implement UN sanctions. 
  • Article 103 declares that UN member states grant precedence to their obligations under the UN charter; which means that these cannot claim a previous legal obligation as an excuse not to implement UNSC sanctions and/or other relevant coercive measures mandated by the UNSC.
  • Article 2(5) further requires that UN member states refrain from rendering assistance to states subject to UNSC coercive measures – either sanctions and/or military actions.

 

UN Security Council at workWhat types of Economic Sanctions can the UNSC impose?

In theory, the UNSC can impose any measures which it deems necessary to resolve a threat or breach to international peace and security. Article 41 UN Charter states:

The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

Since the 1990’s most of the UN sanctions have been Smart, i.e. Targeted Sanctions regimes, which can consist of travel bans, assets freezes, diplomatic restrictions, arms embargoes, export controls – which can cover strategic goods or goods essential to the financing of noxious conduct of Targets of sanctions regimes – e.g. rough diamonds (Angola) or charcoal (Somalia).

Although not explicitly stated in the UN Charter, there is consensus that the UNSC cannot impose measures which violate peremptory norms of international law, i.e. norms from which no derogation is permitted (e.g. laws of armed conflict or fundamental human rights conventions).

 

Images of Foreign Policy and Economic SanctionsWho are the Targets of UN Economic Sanctions?

UN sanctions target both countries, i.e. state-actors, individuals and entities, i.e. non-state-actors. Similar to sanctions adopted by countries, the UN also maintains a sanctions list of countries, individuals and entities (a black-list). 

Currently, the UNSC designates sanctioned actors on the basis of information advanced by UN members states. Note that the designation criteria can vary according to the aims and objectives of a sanctions regime.

Read More UNSC Designation Criteria

threatening peace, security or stability;
• violating an arms embargo;
• supporting armed groups through circumvention or facilitation (enabling) of sanctioned trade;
• obstructing disarmament, demobilization and reintegration processes;
• violating international human rights or humanitarian law, e.g. targeting of civilians for human   rights violations, recruiting of child soldiers; committing rape and gender-based violence;
• obstructing access to humanitarian assistance;
• misappropriating public assets;
• obstructing or attacking UN or international peacekeepers;
• inciting public hatred and violence;
• supporting proliferation of nuclear weapons;
• being associated with or supporting a terrorist group and/or engaging in: terrorist activities and/or    political assassinations;
• obstructing the restoration of constitutional order.

Sources: UNSC Sanctions Committee website

How are United Nations Economic Sanctions Implemented?

dreamstime_xs_13405903

UNSC delegates the implementation and enforcement of its sanctions regimes to the UN member states and UNSC Sanctions Committees.

From a procedural perspective, the UNSC first publishes its decision in so-called UNSC Resolutions.

In view of the fact that UNSC sanctions are the outcome of political negotiations, the language of UNSC Resolutions are often open-ended and vague. This leads to different interpretations, whereby companies/exporters can be subject to different compliance requirements.

For instance, UNSC Resolutions 748 and 883 against Libya caused interpretation differences between the U.S. and some European countries regarding the sanctioning of companies under their respective national laws, e.g. whether such companies were in fact controlled by sanctioned Libyan entities. Although the UNSC is not always consistent with its wording, all UNSC Resolutions imposing economic sanctions, make a reference to the fact that its acting under Chapter VII. See for example, UNSC Resolution 1929 (see page 3 regarding Iran’s controversial uranium enrichment program).

The core sections of a UNSC Resolution are: 

  • the reasons and purposes for imposing sanctions
  • the targets of the sanctions, blacklisting designations criteria and applicable exemptions
  • the types of sanctions to be imposed 
  • the institutional implementation mechanisms required, e.g. the creation of a sanctions
    committee, panel/group of experts or monitoring group)
  • a sunset clause – either a fixed date or open-ended and the termination criteria
    they should be terminated.

After publication, UN member states implement, i.e. transpose, the UNSC decisions into their respective economic sanctions laws and regulations. UN member states are free to implement the UNSC measures individually or collectively, as in the case of the African Union, the EU or the Organization of American States. In some cases, the UNSC can also request that regional organizations assist it with the implementation of its sanctions regimes (see Chapter VIII of the UN Charter). 

Important to remember is that even when countries implement UNSC decisions collectively, enforcement is executed by national authorities, e.g. license requests and penalizing violations. Therefore, there is no uniform implementation or enforcement of UNSC sanctions. In reality national authorities implement UNSC sanctions according to their own established licensing and enforcement criteria. 

Security Council sharpens sanctions on DPR Korea in wake of ballistic missile launch_ UN News Centre_UN Photo JC McIlwaineThe role of UNSC Sanctions Committees 

The oversight and monitoring of UNSC sanctions regimes is executed by so-called UNSC Sanctions Committees.

In essence, these sanctions committees are charged to facilitate the administration, monitoring and implementation of UNSC sanctions. They are known by the number of the UNSC Resolution by which they were created

The mandates of sanctions committees vary, depending on the sanctions imposed. While the committees cannot adopt binding decisions, in practice they carry-out essential tasks, e.g. managing exemptions and designation lists of sanctioned, i.e. blacklisted individuals/entities.

Given the increasing controversy concerning the human rights of blacklisted UNSC Targets, the UNSC has created the Focal Point for De-listing (2006) and the Office of the Ombudsperson (2009). The creation of these bodies is a signal of the increasing importance to respect the human rights of Targets of sanctions (which is mirrored by the increasing tendency of regional courts, e.g. European Court of Justice, to strike down the blacklisting of Targets – think of the Kadi case (2006). 

 

Andreas Gursky Chicago Board of Trade TwoLimitations of the Powers of the United Nations Security Council 

The major drawback of the powers of the UNSC is that it can only adopt economic sanctions if determines that international peace and security are threatened or have been breached.

In reality, the UNSC is not always able to make such determinations, as the Council’s decision-making process can be blocked, e.g. through a veto by a Permanent Member of the UNSC. This was especially the case during the Cold War as the super powers weren’t willing to co-operate with each other. Although this situation has improved, political differences in the UNSC still run deep. One of the most infamous cases was the disagreement in the Council regarding the non-compliance of Iraq with UN weapon inspectors (which ultimately led to the U.S. invasion of the country in 2003). 

Although this imperfection is viewed by many as a serious flaw in the United Nations system, it is also the enduring strength of the UNSC. The UNSC survived the Cold War and has evolved itself to remain a major player in the international system. An example of the Council’s enduring strength is the fact that all its Permanent Members have not left the organization.

In this context, it is paradoxical that our modern world is dangerously polarized at a time when humanity is more closely connected than ever, e.g. the movement of persons between countries, international trade and the internet. If we are to meet the current and future global security challenges, the role of the UNSC becomes ever so more important despite its imperfections.

Brief Summary of United Nations Economic Sanctions

UN Flag - symbol for peaceIn 1945, at the end of the Second World War the UN was created.

In order to prevent the tragedy of the Second World War and the failure of the League of Nations to enforce an effective international collective security system, the founders of the UN wished to create an organization which would robustly manage threats or breaches of international peace and security.

Although the UN founders did not define how the UN would manage international pace and security, the organization was given teeth, whereby it could authorize both non-military, e.g. economic sanctions, and military coercive measures to resolve an international crisis.  

Currently, the UN is now an active Sender of sanctions, but there was a time when it seemed unimaginable that it would ever be able to impose, let alone evolve as a proactive Sender of sanctions. In this context, the UN has become so active in the field of sanctions that many argue that the UN sanctioning powers should now be tightly regulated.  

The Berlin Wall 1986Between 1946 until the mid 1990’s, due to the super-power confrontation of the Cold War, the organization was paralyzed to impose economic and military sanctions as foreseen in the United Charter.

In these years, the UN only imposed mandatory economic sanctions twice, namely against South Rhodesia (in 1968) and against South Africa (in 1977). The sanctions against South Rhodesia (now Zimbabwe) were comprehensive, as a reaction to the unilateral declaration of independence from the United Kingdom by the white minority regime. The sanctions against South Africa were targeted sanctions, as a response to the country’s apartheid system, regional military aggression, and its pursuit of a nuclear weapons capability.

Flags of the Cold War super powersIn the aftermath of the Cold War, freed from the shackles of the super-power confrontation, the UN has become a prolific Sender of economic sanctions and stacked-up an impressive sanctions trophy-cabinet. 

During the 1990’s, popularly known as the “Sanctions Decade,” the UN imposed a series of sanctions regimes to manage the global disorder caused by the end of the Cold War. 

Examples of comprehensive sanctions regimes include its measures, including military operations against Iraq (in reaction to its 1990 invasion of Kuwait and its ambitions to develop weapons of mass destruction (1990-2003)), arms embargoes during the break-up of the former Yugoslavia (1991-1996), and comprehensive sanctions against Haiti (1993-1994) when President Jean-Bertrand Aristide was overthrown in a coup.

Examples of targeted sanctions regimes, attempting to manage the fallout of intrastate conflicts include Somalia (1992-present), Liberia (1992-2001), Angola (1993-2002), Rwanda (1994-2008), Sierra Leone (1997-2010) and Kosovo (1998-2001). With the rise of global terrorism, the UN has also become a staunch Sender of counter-terrorism related sanctions regimes, e.g. sanctions against Taliban and Al Qaeda. 

As with sanctions regimes adopted outside the UN framework, UN sanctions have attracted similar criticism. In particular, issues regarding collateral damage and, increasingly, issues regarding the respect for the rule of law (due process).

Whether this criticism is justified or not, despite its imperfections, the UN has proven itself to be an evolving Sender of economic sanctions.

In this context, it has managed to adapt its sanctions regimes to emerging international security threats and, although a matter of debate, been able to learn from its mistakes. Furthermore, an issue going beyond the subject of economic sanctions, a fact frequently overlooked, the most impressive feature of the UN, is that none of the major powers, i.e. Permanent Members of the UNSC have left the UN system or the fact that most countries in the world are members of the UN.

[contact-form][contact-field label=’Name’ type=’name’ required=’1’/][contact-field label=’Email’ type=’email’ required=’1’/][contact-field label=’Website’ type=’url’/][contact-field label=’Comment’ type=’textarea’ required=’1’/][/contact-form]