United Nations 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.
The 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.
The Powers of the United Nations Security Council
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).
Once 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).
Responsibilities 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.
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).
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.
How are United Nations Economic Sanctions Implemented?
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.
The 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).
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.
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