Accompanying measures

The UN has established procedures to prevent the collateral effects of the sanc-tions being imposed. The aim is to first limit the negative effects of sancsanc-tions on third States. This procedure is provided under Article 50 of the UN Charter.⁷³ Interested States are invited to address their requests for assistance to the President of the Security Council, which will be dealt with either positively or negatively.

Indeed, Article 50 does not open up a right to automatic assistance but rather for consultations toward access to possible assistance.⁷⁴ Assistance can be technical, economic, financial, or humanitarian. The Security Council may also authorize exemptions from penalties or may extend commercial advantages. Article 50 of the UN Charter has been invoked since the first Security Council sanctions against Southern Rhodesia.⁷⁵ The number of requests for assistance has been particularly high in relation with the sanctions imposed on Iraq following the invasion, occu-pation, and annexation of Kuwait.⁷⁶ The introduction of targeted sanctions is also another measure to mitigate the unwanted effects caused to third parties.

Second, other measures aim to limit the collateral effects of sanctions on civil-ian populations. Thus, in order not to inflict suffering on the civilcivil-ian populations of countries under UN sanction, a provision is made to facilitate the work of humanitarian agencies. It appeared necessary, for instance, to avoid banning imports that are required by local health industries and to devise a fast track for the processing of applications for exemptions for humanitarian activities.⁷⁷ The effect of sanctions on civilian populations has been particularly violent in the case of the measures taken against Iraq after the violation of Kuwaiti sovereignty. The embargo has disrupted the provision of basic means of livelihood to the civilian

32 Philippe Achilleas

population such as clean water, food, electricity, and medicines. Several thousand children have been collateral victims of these sanctions. The Security Council adopted the “oil-for-food” program, providing Iraq with another opportunity to sell oil to finance the purchase of humanitarian goods, alongside various other mandated UN activities concerning Iraq.⁷⁸

Preassessment is another proposed measure aimed at limiting the impact of sanctions on civilian populations and third States. This measure was particularly encouraged by UN Secretary-General Boutros Ghali in his report on the 50th anniversary of the United Nations.⁷⁹ A first application the preliminary assessment was made as part of the sanctions against Sudan. It led to the nonimplementation of a sanction targeting Sudanese aviation.⁸⁰

From an institutional point of view, it has been a practice of the Security Coun-cil, since the sanctions against Southern Rhodesia, to set up committees to moni-tor the implementation of sanctions. Although not provided for in the UN Charter, the establishment of a committee is now inherent from the establishment of a sanctions regime.⁸¹ Committees are subsidiary bodies of the Security Council established based on the decisions taken under Chapter VII.⁸² The committee ends when the sanctions for which it was created are removed. As of January 1, 2019, 14 committees are in operation,⁸³ while 16 committees have stopped function-ing. The committees are composed of the members of the Security Council. The committees have several missions, such as supervising the measures taken by the States to apply the sanctions or to derogate from them, when such derogations are authorized. Some committees also have the task of identifying the people, prop-erty, or resources targeted by the sanctions.⁸⁴ The committees must also respond to violations of sanctions as well as requests from third States that are affected by the imposition of sanctions in accordance with Article 50 of the UN Charter.⁸⁵ In addition, ten expert panels support the work of the sanctions committees in overseeing sanctions regimes. These groups of experts study the on-site effects of UN sanctions. They address their findings to the various sanctions committees and can make important contributions to the subsequent political decisions of the Security Council.

Conclusion

Over time, the implementation of the sanctions system established by the UN has revealed several flaws. First, the drafting of some provisions under Chapter VII in broad terms, which provide the basis for the sanctioning power, leaves the Security Council with a great margin of discretion. The Security Council decides to qualify a situation of threat to peace and breach of peace or to recognize an act of aggression. The Security Council also decides whether to impose a sanc-tion or not. If it decides to deploy a sancsanc-tion the Council chooses the measures to be taken. The action of the Security Council is jeopardized by the veto power of any or all of the five permanent Member States. These States can block a sanc-tion targeting themselves or any other State. For example, the Security Coun-cil sanctioned Iraq for annexing Kuwait while it remained powerless against the

United Nations and sanctions 33 annexation of Crimea by Russia. The excesses of the use of force in the absence of Security Council authorization in Kosovo in 1999 or Iraq in 2003 also dem-onstrate the limitations of the system. Further, collateral damages to the civilian populations are brought to light, including those caused by the UN. The feeling of arbitrariness and injustice that is spreading among States and populations is understandable. The credibility of the Security Council, but also of the UN, is at stake. The UN must react. The margin of maneuver is limited. The reform of the Security Council, as desired by developing countries, remains highly uncertain.

Nothing can be expected from the permanent Member States. They will never give up the privilege granted to them by their right of veto. Thus, the UN must continue the efforts of enforcing transparency and the rationalization of sanctions measures. The introduction of smart sanctions is a significant step forward. Court judgments stressing upon the need for human rights in the implementation of sanctions were beneficial in prompting the UN to react, especially though the creation of the office of an Ombudsperson to hear the complaints of people who are victims of sanctions. Efforts to improve the sanctions mechanism will cer-tainly not be sufficient in the current context of the rise of unilateralism. Despite these points of criticism, the UN sanctions mechanism is the most effective in the universal context to date.

Notes

1 Mohammed Bennouna, “Les sanctions économiques des Nations Unies [U.N. Economic Sanctions],” Collected Courses of the Hague Academy of International Law, Vol. 300 (2002), p. 24.

2 Supplement to the Agenda for Peace: Position paper of the Secretary-General on the Occasion of the 50th Anniversary of the United Nations, U.N. Doc. A/50/60, S/1995/1 (January 25, 1995), para. 66.

3 Article 94, para. 2, states: “If any party to a case fails to perform the obligations incum-bent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment.”

4 Louis Cavaré, “Les sanctions dans le cadre de l’O.N.U [Sanctions Within the UN Frame-work],” Collected Courses of the Hague Academy of International Law, Vol. 80 (1952), p. 263; Geneviève Guyomar, “Article 94,” in Jean-Pierre Cot, Mathias Forteau, and Alain Pellet eds., La Charte des Nations Unies, Commentaire article par article, Vol. 2 (2005), pp. 1887–1998.

5 ICJ, “Anglo-Iranian Oil Co. Case (United Kingdom v. Iran) (Jurisdiction),” ICJ Reports 1952, Judgment (July 22, 1952), p. 93.

6 For an analysis of section 94 (1), see: Cavaré, supra note 4, pp. 263–277.

7 Article 6 of the UN Charter states: “A Member of the United Nations which has per-sistently violated the Principles contained in the present Charter may be expelled from the Organization by the General Assembly upon the recommendation of the Security Council.”

8 Article 5 of the UN Charter states: “A Member of the United Nations against which pre-ventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council. The exercise of these rights and privi-leges may be restored by the Security Council.”

34 Philippe Achilleas

9 Article 19 of the UN Charter states: “A Member of the United Nations which is in arrears in the payment of its financial contributions to the Organization shall have no vote in the General Assembly if the amount of its arrears equals or exceeds the amount of the contributions due from it for the preceding two full years. The General Assembly may, nevertheless, permit such a Member to vote if it is satisfied that the failure to pay is due to conditions beyond the control of the Member.”

10 Cavaré, supra note 4, p. 251.

11 On the comparison between the sanction system of the League of Nations and the UN, see Louis Cavaré, “Les Sanctions dans le Pacte de la S.d.N. et dans la Charte des N.U.

[Sanctions Within the League of Nations and UN Frameworks],” Revue générale de droit international public (1950), pp. 647–674.

12 The UNGA resolution 377 (V) adopted on November 3, 1950, called Uniting for Peace states that in any cases where the Security Council because of the lack of unanimity among its five permanent members, fails to act as required to maintain international peace and security, the General Assembly shall consider the matter immediately and may issue any recommendations it deems necessary in order to restore international peace and security.

13 U.N. Doc. A/RES/ES-8/2 (1981) (September 14, 1981), Question of Namibia, para.

14 U.N. Doc. A/RES/36/27 (1981) (November 13, 1981), Armed Israeli Aggression 12.

Against the Iraqi Nuclear Installations, para. 5.

15 International Criminal Tribunal for The Former Yugoslavia, Prosecutor v. Dusko Tadic a/k/a “Dule”, Decision on the Defence Motion for Interlocutory Appeal on Jurisdic-tion, Tadić (IT-94–1) (October 2, 1995), para. 29.

16 The ICJ has clarified that it has no judicial review of decisions made by United Nations organs (ICJ, advisory opinion on “Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970),” ICJ Reports 1971, Advisory Opinion (June 21, 1971), para. 89.

17 CJEU, Judgment of the Court (Grand Chamber) of September 3, 2008, Yassin Abdul-lah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Joined cases C-402/05 P and C-415/05 P; CJEU, Judgment of the Court (Grand Chamber), July 18, 2013, European Commis-sion and Others v. Yassin Abdullah Kadi, Joined Cases C-584/10 P, C-593/10 P and C-595/10 P –.

18 ECHR, Judgment of the Court (Grand Chamber), June 30, 2005, case of Bosphorus Hava Yollari Turizm Ve Ticaret Anonim Şirketi v. Ireland, application no. 45036/98;

Case of Nada v. Switzerland, Judgment of the Court (Grand Chamber), September 12, 2012, application no. 10593/08.

19 U.N. Doc. S/RES/1904 (2009) (December 17, 2009), Threats to International Peace and Security Caused by Terrorist Acts.

20 U.N. Doc. S/RES/1737 (2006) (December 23, 2006), Non-proliferation.

21 E.U. Doc. Council Common Position 2007/140/CFSP of February 27, 2007, concern-ing restrictive measures against Iran, OJ L, Vol. 61 (February 28, 2007), p. 49.

22 Joint Comprehensive Plan of Action (JCPOA), Vienna, July 14, 2015, U.N. Doc. S/

RES/2231 (2015), Annex.

23 U.N. Doc. S/RES/2231 (2015) (July 20, 2015), Non-proliferation. The Agreement is published in the Annex of the Resolution.

24 U.N. Doc. A/RES/51/242 (1997) (September 15, 1997), Annex II, para. 1.

25 U.N. Doc. S/PV.4128 (May 17, 2000).

26 Pierre d’Argent, Jean D’Aspremont Lynden, Frédéric Dopagne, and Raphaël van Steenberghe, “Article 39,” in Cot, Forteau, and Pellet eds., supra note 4, p. 1146.

United Nations and sanctions 35 27 Article 1 states that: “Aggression is the use of armed force by a State against the

sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.”

28 The Security Council has never referred to Resolution 3314 (XXIX) on the definition of aggression.

29 U.N. Doc. S/RES/387 (1976) (March 31, 1976), South Africa’s Military Activities Against Angola; U.N. Doc. S/RES/411 (1977) (June 30, 1977), Southern Rhodesia’s Military Activities Against Mozambique.

30 U.N. Doc. S/RES/667 (1990) (September 16, 1990), Iraq-Kuwait.

31 U.N. Doc. S/RES/428 (1978) (May 6, 1978), Angola-South Africa.

32 U.N. Doc. S/RES/660 (1990) (August 2, 1990), Iraq-Kuwait.

33 R.-J. Dupuy, “L’impossible agression: les Malouines entre l’O.N.U. et l’O.E.A [The Impossible Aggression: The Falklands Between U.N. and the O.E.A],” Annuaire fran-çais de Droit international (1982), pp. 342–343.

34 U.N. Doc. S/RES/217 (1965) (November 20, 1965), Southern Rhodesia.

35 U.N. Doc. S/RES/2127 (2013) (December 5, 2013), Central African Republic.

36 U.N. Doc. S/RES/1874 (2009) (June 12, 2009), Democratic People’s Republic of Korea.

37 U.N. Doc. S/RES/418 (1977) (November 4, 1977), South Africa.

38 U.N. Doc. S/RES/1132 (1997) (October 8, 1997), Sierra Leone.

39 U.N. Doc. S/RES/2368 (2017) (July 20, 2017), ISIL (Da’esh) and Al-Qaeda.

40 U.N. Doc. S/RES/1540 (2004) (April 28, 2004), Non-proliferation of Weapons of Mass Destruction.

41 U.N. Doc. S/RES/1887 (2009) (September 24, 2009), Maintenance of International Peace and Security: Nuclear Non-proliferation and Nuclear Disarmament.

42 U.N. Doc. S/RES/232 (1966) (December 16, 1966), South Rhodesia.

43 According to Article 41, sanctions measures “may include complete or partial inter-ruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.”

44 The Security Council decided that all Member States would prevent the importation of an asbestos, iron ore, chrome, pig-iron, sugar, tobacco, copper, and animal products that had originated in Southern Rhodesia. Additionally, the activities of any of their nationals designed to promote the export of these commodities or the importation of arms, ammunition of all types, military aircraft, military vehicles, and equipment and materials for the manufacture and maintenance of arms and ammunition along with a total embargo of oil and oil products, though an exception was made for contracts granted before this resolution (U.N. Doc. S/RES/232 (1966)).

45 U.N. Doc. S/RES/661 (1990) (August 6, 1990), Iraq-Kuwait.

46 In implementing sanctions against Liberia, the Security Council decided, among other measures, that all States take the necessary measures to prevent the entry into or transit through their territories of high-level members of the Government of Liberia and their spouses (U.N. Doc. S/RES/1343 (1991) (March 7, 2001), “The Situation in Liberia”).

47 Thus, as part of the sanctions against the Democratic Republic of Korea for the contin-uation of its military nuclear program, the list established and maintained pursuant to Security Council Resolution 1718 (2006) includes officials and scientists from nuclear and space technology governmental research centers.

48 The UN Resolution 1333 (2000) of December 19, 2000 (The Situation in Afghanistan), addressed the freezing of funds and other financial assets of Osama bin Laden.

49 Sanctions adopted pursuant to Security Council resolutions 1267 (1999), 1989 (2011) and 2253 (2015) targeting the ISIL and Al-Qaeda, imposed a series of restrictions on a multitude of entities supporting terrorism.

50 U.N. Doc. S/RES/757 (1992) (May 30, 1992), Bosnia and Herzegovina.

36 Philippe Achilleas

51 U.N. Doc. S/RES/787 (1992) (November 16, 1992), Bosnia and Herzegovina.

52 U.N. Doc. S/RES/820 (1993) (April 17, 1993), Bosnia and Herzegovina.

53 Under the Charter system, according to Article 43, Member States were to make avail-able to the Security Council the armed forces necessary for the maintenance of peace.

This article has never been implemented. The question then arose as to whether the activation of Article 42 was related to the application of Article 43. See: P. Daillet,

“Article 42,” in Cot, Forteau, and Pellet eds., supra note 4, p. 1243 and following.

54 The Soviet Union boycotted Security Council meetings dating back to January 1950, arguing that the Taiwanese “Republic of China” and not the mainland “People’s Republic of China” held a permanent seat in the UN Security Council. As a result, the USSR could not exercise its right of veto.

55 U.N. Doc. S/RES/83 (1950) (June 27, 1950), Complaint of Aggression Upon the Republic of Korea.

56 U.N. Doc. S/RES/84 (1950) (July 7, 1950), Complaint of Aggression Upon the Repub-lic of Korea.

57 See: Joe Verhoeven, “États alliés ou Nations Unies? L’ONU face au conflit entre l’Irak et le Koweit [Allied States or United Nations? UN and Iraq-Kuwait Conflict],” Annu-aire français de Droit international (1990), pp. 145–194.

58 U.N. Doc. S/RES/660 (1990) (August 2, 1990), Iraq-Kuwait; and Resolution 661 of August 6, 1990, Iraq-Kuwait.

59 U.N. Doc. S/RES/678 (1990) (November 29, 1990), Iraq-Kuwait.

60 U.N. Doc. S/RES/687 (1991) (April 3, 1991), Iraq-Kuwait.

61 The United States’ reliance on self-defense against Afghanistan following the attacks of September 11, 2001, is questionable because the conditions for the implementation of self-defense were not met. Indeed, during the events of September 11, the US was not attacked by Afghanistan but by a terrorist group called Al Qaeda. Admittedly, Al Qaeda did expand its activities into Afghanistan with the indirect support of the Taliban regime.

62 Bennouna, supra note 1, p. 60.

63 Targeted Financial Sanctions: A Manual for Design and Implementation, the Swiss Confederation, United Nations Secretariat and the Watson Institute for International Studies, Bonn University, 2001.

64 Design and Implementation of Arms Embargos and Travel and Aviation Related Sanc-tions, Bonn International Center for Conversion (BICC), German Foreign Office and the United Nations Secretariat, 2001.

65 Peter Wallensteen, Carina Staibano, and Mikael Eriksson eds., Making Targeted Sanc-tions Effective: Guidelines for the Implementation of UN Policy OpSanc-tions – Results from the Stockholm Process on the Implementation Targeted Sanctions (2003), p. 146.

66 U.N. Doc. S/RES/733 (1992) (January 23, 1992), Somalia.

67 For example, concerning DPRK: Asset Freeze (U.N. Doc. S/RES/1718 (2006), U.N.

Doc. S/RES/2270 (2016) and U.N. Doc. S/RES/2371 (2017)); Prevention of Provi-sion of Financial Services (U.N. Doc. S/RES/1874 (2009) and U.N. Doc. S/RES/2270 (2016); No Cooperation with DPRK Banks (U.N. Doc. S/RES/2270 (2016) and U.N.

Doc. S/RES/2321 (2016)).

68 U.N. Doc. S/RES/1970 (1996) (August 16, 1996), Letter dated January 9, 1996, from the Permanent Representative of Ethiopia to the United Nations addressed to the Pres-ident of the Security Council concerning the extradition of the suspects who were wanted in the assassination attempt on the life of the President of the Arab Republic of Egypt in Addis Ababa.

69 U.N. Doc. S/RES/2397 (1997) (December 22, 2017), Non-proliferation/Democratic People’s Republic of Korea.

70 U.N. Doc. S/RES/1173 (1998) (June 12, 1998), Angola.

71 U.N. Doc. S/RES/1478 (2003) (May 6, 2003), The situation in Liberia.

United Nations and sanctions 37 72 In particular: U.N. Doc. S/RES/1267 (1999) (October 15, 1999), U.N. Doc. S/

RES/1333 (2000) (December 19, 2000), U.N. Doc. S/RES/1390 (2002) (January 16, 2002), The Situation in Afghanistan, and U.N. Doc. S/RES/1989 (2011) (June 17, 2011), Threats to international peace and security caused by terrorist acts.

73 Article 50 of the UN Charter States: “If preventive or enforcement measures against any state are taken by the Security Council, any other state, whether a Member of the United Nations or not, which finds itself confronted with special economic problems arising from the carrying out of those measures shall have the right to consult the Security Council with regard to a solution of those problems.” The implementation of Article 50 of the Charter has been the subject of a comprehensive study by the UN General Secretary (U.N. Doc. A/48/573 and S/26705 (November 8, 1993)).

74 The UN General Assembly recommends that these consultations should start as soon as possible (U.N. Doc. A/RES/50/51 (January 29, 1996), Implementation of Charter Provisions related to assistance to third States affected by the application of Sanctions).

75 Several States talked about the difficulties they encountered because of the adoption of the Resolutions 232 (1966) dated December 16, 1966, and 253 (1968) of May 29, 1968. While the requests of Portugal and Malawi have not led to any specific action, the Security Council has asked Member States, the United Nations, and other United Nations agencies to provide assistance to Zambia (U.N. Doc. S/RES/253 (1968) and U.N. Doc. S/RES/329 (1973) of (March 10, 1973)). Mozambique also received assis-tance in the context of sanctions against Southern Rhodesia (U.N. Doc. S/RES/ 386 (1976) (March 17, 1976), and U.N. Doc. S/RES/411 (1977) (June 30, 1977)).

76 Following the adoption of the Resolution 661 (1990) of August 6, 1990, in the context of Article 50 of the Charter, the Security Council received communications from 21 States. The total losses of the Member States were estimated by them at more than

$30 billion (USD). The Security Council entrusted the Sanction Committee established by Resolution 661 (1990) with the task of examining requests for assistance and mak-ing recommendations to the President of the Security Council for appropriate action.

Jordan, which was particularly affected by its geographical and economic proxim-ity, was the subject of special measures (see: special report (U.N. Doc. S/21786) of September 18, 1990, and a letter of October 22, 1990, from the Secretary-General addressed to the President of the Security Council (U.N. Doc. S/21938)). The Security Council Committee has also adopted a series of recommendations with regard to the other 20 States (see: letters of December 19 and 21, 1990, and March 19, 1991, from the Chairman of the Committee addressed to the President of the Security Council (U.N. Doc. S/22021 and Add.1 and 2)).

77 See in particular: D.L. Tehindrazanarivelo, Les sanctions des Nations unies et leurs effets secondaires [UN Sanctions and Their Collateral Effects], (2004), published on OpenEdition Books, September 1, 2014, available at <https://books.openedition.org/

iheid/1508> (accessed January 4, 2019).

78 U.N. Doc. S/RES/986 (April 14, 1995), Authorization to permit the import of petro-leum and petropetro-leum products originating in Iraq, as a temporary measure to provide for humanitarian needs of the Iraqi people. The program, as established by the Security Council, is intended to be a “temporary measure to provide for the humanitarian needs

78 U.N. Doc. S/RES/986 (April 14, 1995), Authorization to permit the import of petro-leum and petropetro-leum products originating in Iraq, as a temporary measure to provide for humanitarian needs of the Iraqi people. The program, as established by the Security Council, is intended to be a “temporary measure to provide for the humanitarian needs

Im Dokument Economic Sanctions in International Law and Practice (Seite 46-54)