This is an Insight article, written by a selected partner as part of GIR's co-published content. Read more on Insight
The United Nations (the UN) was born in the immediate aftermath of the Second World War, on 24 October 1945. Its stated aim is saving ‘succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind’. One of the UN’s tools for achieving this objective is the deployment of international sanctions.
Former Secretary General of the United Nations, Kofi Annan, noted in a report that sanctions are considered ‘a necessary middle ground between war and words’. It was for similar reasons that sanctions were incorporated into the Charter of the United Nations (the UN Charter) as a method to combat any threat to the peace or act of aggression, as determined by the UN Security Council (the Security Council).
It is widely believed that the drafters of the UN Charter learned the importance of establishing effective sanctions provisions from the League of Nations’ inability to counter aggressive actions, such as Japan’s expansionist invasion of Manchuria in 1931 and Italy’s aggression against Ethiopia from 1935 to 1936.
In a broad sense, the aims of UN sanctions can be categorised as follows:
- to coerce a regime to change its conduct;
- to limit access to specific resources; and
- to signal and stigmatise.
In practice, UN sanctions have largely been preventative in nature.
UN sanctions were initially constrained as a result of the US–Soviet conflict during the Cold War. Indeed, only two strong mandatory comprehensive sanctions regimes were imposed during that period, against Southern Rhodesia (in 1966) and South Africa (in 1977). Consequently, for some time UN sanctions were perceived as somewhat weak and only symbolic in nature.
However, since the end of the Cold War, there has been an increased reliance on sanctions by the UN in furtherance of the aims set out above, with sanctions being used more than 20 times. There are today 14 ongoing UN sanctions regimes.
The form of UN sanctions has also evolved through the years to meet the UN’s objectives. Initial measures deployed ‘comprehensive’ sanctions, which are sanctions prohibiting all types of transaction with a sanctioned country. Comprehensive sanctions aim to block commercial trade and can be seen as a blunt instrument as they often produce unintended and undesirable consequences for those not the primary target.
Since the late 1990s, coercive measures started to employ what are known as ‘targeted’ sanctions, which are aimed at specific individuals and entities, such as companies, charities and armed groups, or at the restriction of certain trades. Targeted sanctions were introduced as a more proportionate and nuanced method of pursuing the Security Council’s policy objectives while minimising harm to innocent civilians.
The causes of this policy change included the following:
- The shift of UN objectives with the end of the Cold War from international state conflicts, which constitute threats to international peace and security, to internal state conflicts (such as armed conflicts in states where their governing authorities are weak, e.g., the Taliban conflict in Afghanistan). Comprehensive sanction regimes are more or less redundant in the context of the latter objective.
- The adverse impact of economic burdens placed on innocent civilians and neighbouring states by imposing comprehensive sanctions. For example, while comprehensive sanctions contributed to ending the conflict in Bosnia in the 1990s, one of the costs of this success was high economic fallout for neighbouring states that previously traded with the former Yugoslavia. Similarly, the Southern Rhodesian sanctions regime reduced imports by 30 per cent in 1965–1966. Given difficulties in manufacturing some products domestically, this led to widespread suffering by the civilian population.
- Violation of human rights relating to UN comprehensive sanctions. UN sanctions have been described as ‘the UN’s weapon of mass destruction’ owing to their failure to safeguard the lives of innocent civilians. For example, it has been estimated that between 100,000 and 200,000 deaths of young children occurred from August 1991 to March 1998 as a result of UN comprehensive sanctions against Iraq.
At a geopolitical level, the aim of targeted sanctions is to coerce the elites of a targeted regime (including, for example, influential businessmen, army officers and senior government officials) to change the regime’s conduct in accordance with the policy objectives of the Security Council without harming its innocent civilians.
The first targeted sanctions regime was deployed against Taliban members. However, the increased use of targeted sanctions, especially after the 9/11 attacks, has led to concerns grounded in the rule of law and in fundamental human rights. This is largely because the UN Charter does not provide actionable remedies for listed individuals and entities or other third parties affected by UN sanctions (see further, at ‘Delisting’, below). This is a particular issue where an individual or entity has been listed by accident or as a result of mistaken identity.
Authorising a resolution
The Security Council determines each sanctions regime and accordingly shapes its structure. The Security Council will generally identify the threat to, or breach of, international peace, then define the scope of the proposed sanctions, including relevant exceptions and the identity of the states, groups or individuals against which the sanctions are to be applied. The Security Council will also list the objective of each sanctions regime and, to a greater or lesser extent, the circumstances in which a designated person or entity should be delisted (see further, at ‘Delisting’, below). A sanctions regime will then be adopted in a resolution of the Security Council.
For it to pass, a sanctions resolution must obtain a majority vote from the 15-member Security Council, and it must not be vetoed by any of the five permanent members of the Security Council (China, France, Russia, the United Kingdom and the United States).
Design and implementation
UN sanctions are designed to further the UN’s policy objectives, and to respond to threats to international peace or security.
Although there may be certain exceptions, when the UN Security Council exercises its power under Chapter VII and adopts resolutions requiring Member States to implement a sanctions regime, these will generally have binding and mandatory effect.
UN Member States are obliged under the UN Charter to implement the Security Council’s resolutions on sanctions (Chapter VII). This is a very powerful and effective tool bearing in mind the large number of Member States (currently 193 countries). Furthermore, all UN lists of designated persons are implemented in EU law and, as such, are directly applicable in all EU Member States without those states needing to enact specific implementing legislation. The latter was previously the means through which the legal implications of UN sanctions found their way into the legal framework of the United Kingdom. However, since the end of the Brexit transition period on 31 December 2020, the UK has now reverted to its own autonomous implementing mechanism in the form of the Sanctions and Anti-Money Laundering Act 2018 (and regulations made thereunder). Indeed, the preamble to this legislation includes as one of the purposes of the Act to enable the UK government to impose sanctions ‘for the purposes of compliance with United Nations obligations’.
The Security Council generally delegates the administration, execution and monitoring of its sanctions regimes to sanctions committees and bodies pursuant to Article 29 of the UN Charter. It then oversees these committees and amends their mandates and powers case by case, depending on the compliance and behaviour of the targets of the sanctions.
As the framework for each UN Security Council sanctions regime varies depending on the relevant Security Council resolution, there are no universal or static requirements for the listing of a person (natural or legal).
By way of case study, in 2014 the Security Council issued Resolution 2140, which relates to Yemen. This Resolution, inter alia, requires Member States to impose a travel ban on, freeze the funds of, and prohibit the making of funds, assets and economic resources available to or for the benefit of individuals or entities who threaten the peace, security or stability of Yemen. Paragraphs 17, 18 and 19 of the Resolution provide the ‘designation criteria’ on which the sanctions committee (formed of delegates from the 15 members of the Security Council) must base its decisions when determining whether an entity or an individual is a target. For example, paragraph 17 provides broad powers to the sanctions committee to list any individuals or organisations that provide ‘support for acts that threaten the peace, security or stability of Yemen’.
Like many Security Council sanctions committees, the sanctions committee in this case has a panel of experts responsible for, inter alia, providing relevant information concerning the ‘potential designation of individuals and entities’ that may fall within the Resolution 2140 designation criteria (see ‘Monitoring and enforcement of UN sanctions’, below, for further discussion on the nature and role of expert panels). The sanctions committee will also consider written requests from UN Member States to add individuals or entities to the designated list. These requests will be granted by default, absent objection from any of the committee members.
As with other UNSC sanctions committees, the Yemen sanctions committee adopts its decisions by consensus. The chairman of the sanctions committee will attempt to reconcile any disputes between its members. Any dispute on which a consensus cannot be reached must be submitted to the Security Council.
Entities subject to sanctions measures
UN sanctions measures have been targeted at states, individuals, entities, industries (for example, the UN luxury goods ban sanctions measures against the Democratic People’s Republic of Korea) and vessels or aircraft.
There is no universal scope or definition of what types of ‘entity’ can be made subject to UN sanctions, which will be set by the provisions of the various UN Security Council resolutions. Entities can include companies or associations or even groups such as Al-Qaida. For example, Resolution 2368 (2017) provides a broad scope to determine whether an individual or entity could be eligible for inclusion in the ISIL (Da’esh) and Al-Qaida Sanctions List, as follows:
- entities or individuals that provide any form of support, including (but not limited to) providing recruitment services, funds, supplying, selling or transferring weapons or related materials to ‘Al-Qaida, ISIL, or any cell, affiliate, splinter group or derivative thereof’ or supporting their acts or activities;  or
- any groups or entities ‘either owned or controlled, directly or indirectly’ by ISIL, Al-Qaida or their associated entities or groups.
Ownership and control
It may be that by virtue of being owned or controlled by a person who is designated, an entity can be considered designated even if it is not itself named on a sanctions list.
By way of example, the current UN sanctions measures against Yemen, established in Resolutions 2140 (2014) and 2511 (2020), include ‘owned and controlled by’ as part of the listing criteria. These measures not only provide an obligation on Member States to freeze all funds, other financial assets and economic resources that are owned or controlled, directly or indirectly, by the individuals or entities designated by the Committee, but also by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them.
In this respect, UN sanctions committees provide lists of designated individuals and entities that are subject to a specific sanctions regime. In addition, UN sanctions committees’ guidelines on particular sanctions regimes may also provide information on what types of entities fall under the ownership or control of a designated person.
From a UK participant’s perspective, Her Majesty’s Treasury’s Office of Financial Sanctions Implementation (OFSI) provides guidance on how to determine whether a company is owned or controlled by a designated person. If it is, although the entity may not appear on OFSI’s consolidated list of persons designated under UK, EU or UN sanctions, it will nevertheless be deemed subject to financial sanctions.
According to this guidance, ownership of an entity can be established in general if OFSI is satisfied that a designated person holds (directly or indirectly) more than 50 per cent of the shares or voting rights in the entity, if a designated person has the right (directly or indirectly) to appoint or remove a majority of the board of directors of the entity, or if it is reasonable to expect that the person would be able to ensure the affairs of the entity are conducted in accordance with the person’s wishes. If any of these conditions applies to an entity, it will be subject to the same sanctions measures as the concerned designated person.
In addition, OFSI has provided guidance on whether a person is in control of an entity, given the complex and indirect methods through which control can be effected, for example through agents or offshore companies. In particular, it is possible for a designated person to ‘control’ an entity for the purposes of OFSI’s guidance even if they have only a minority interest in that entity. This is the case if, for example, the affairs of the entity are conducted in accordance with the designated person’s wishes.
If it is established that the concerned designated person is in control of an entity, that entity will also be subject to the relevant financial sanctions.
Effects on third states
Article 50 of the UN Charter allows a third-party state (whether a UN Member or not) that finds itself confronted with ‘special economic problems’ as a result of another state being sanctioned under a UN sanctions regime to request special assistance from the Security Council. The Security Council in return will generally establish a committee to review the request for special assistance submitted by the affected states and to provide the appropriate recommendations. It will also request the assistance of other countries and specialised agencies.
However, Article 50 of the UN Charter provides only a right of consultation, not a right of compensation or a duty on the part of the Security Council to provide effective remedies. Moreover, the international community has been reluctant in the past to take much meaningful action and, therefore, Article 50 is generally considered an ineffective remedy.
One of the few examples where the invocation of Article 50 has led to measures of practical significance to those third party states injured by UN sanctions can be found in 1990, when the Security Council issued Resolution 669 (1990) establishing a committee to examine requests submitted by 13 states (as of 17 September 1990), including Bulgaria, India and Jordan, for financial assistance pursuant to Article 50 of the UN Charter as a result of the UN sanctions regime against Iraq. The committee found these requests valid for the purposes of Article 50. For example, it expressed concerns ‘at the unique economic difficulties confronting Jordan as a result of the severance of the close economic relations between Jordan, Iraq and occupied Kuwait’. It recommended, inter alia, that until Jordan obtained an immediate, continuous and secure supply of 800,000 tons of fuel oil per annum at US$65 per ton and 16 million barrels of crude oil per annum at US$16 per barrel, it should be able to import these resources from Iraq.
The Security Council in this instance also requested the UN Secretary General to appeal to all UN members to assist the concerned states.
Licensing and humanitarian exemptions
Types of licences and exemptions
All UN Security Council sanctions resolutions now include (1) recognition in the preambular text that action taken should be ‘in accordance with the Charter of the United Nations and international law, including applicable international human rights, refugee and humanitarian law’ and (2) humanitarian exceptions provisions to ameliorate the consequences for designated persons. Separately, there is increasing recognition that the humanitarian consequences of even targeted economic sanctions may be felt by non-targeted persons (i.e., through collateral consequences). This gives rise to a requirement for sectoral humanitarian exemptions.
As mentioned above, UN Member States are obliged under the UN Charter to implement the UN Security Council’s resolutions on sanctions. In practice, this is predominantly done through domestic legislation. The result of this is that licensing is dealt with at the individual state level, sometimes with obligations to notify or, in some cases, seek approval from the relevant UN sanctions committee before a licence is issued.
The UK’s licensing in respect of financial sanctions (including UN financial sanctions) is carried out by OFSI. OFSI is able to issue licences when there are relevant and specific licensing grounds enabling it to do so, and when those grounds have been met. The relevant grounds vary and can be found in the legislation that underpins the particular sanctions regime.
Although an applicant should always consult the up-to-date relevant legislation for full guidance in each case, by way of illustration, the following classes of exceptions from the current Yemen sanctions measures give a flavour of the kind of licensing grounds commonly found in UN sanctions programmes:
- Travel ban: (a) sanctions measures shall not apply where the Committee determines that travel is justified on the grounds of humanitarian need, including religious obligation; (b) where entry or transit is necessary for the fulfilment of a judicial process; (c) where the Committee determines that an exemption would further the objectives of peace and national reconciliation in Yemen; and (d) where a State determines that such entry or transit is required to advance peace and stability in Yemen and the State subsequently notifies the Committee within 48 hours of making such a determination. As a general rule, the Committee makes exemption decisions case by case.
- Assets freeze: sanctions measures do not apply to funds, other financial assets or economic resources that have been determined by the relevant Member State to be necessary for basic expenses (including payment for foodstuffs, rent or mortgage and medicines), or for extraordinary expenses provided that such determination has been notified by the relevant Member State to the Committee and has been approved by the Committee.
- Prior court judgments or arbitration decisions: sanctions measures do not apply to funds, other financial assets or economic resources that have been determined by the relevant Member State to be the subject of a judicial, administrative or arbitral lien or judgment, provided that the lien or judgment was entered into prior to the date of the resolution, is not for the benefit of a person or entity designated by the Committee, and has been notified by the relevant Member State to the Committee;
- Interests or other earnings: Member States may permit the addition to the accounts frozen of interest or other earnings due on those accounts or payments due under contracts, agreements or obligations that arose prior to the date on which those accounts became subject to the sanctions.
- Satisfaction of prior contractual obligations: a designated person or entity may make payment due under a contract entered into prior to the listing of such a person or entity.
As noted above, under the Yemen regime (as with other UNSC sanctions regimes), Committee decisions are made by consensus. If consensus cannot be reached, the matter may be submitted to the Security Council by the Chair or by the Committee member concerned. Decisions may be made by a written ‘no-objection procedure’ within five working days or, in urgent situations, a shorter period as determined by the Chair. If no objection from members of the Committee is received by the end of the specified period, the proposed decision will be deemed adopted. Objections received after the defined period will not be considered. Members can place a hold on a proposed decision, but normally not for more than six months. Members place a hold on a proposed decision when they do not object to, nor do they agree with, a decision, and may wish to obtain more information. In extraordinary circumstances, members can request an additional month to object to or agree with a decision.
A common theme of licensing provisions under Security Council sanctions regimes is deference to humanitarian needs. As well as the examples discussed above in the context of the Yemen regime, there is a growing recognition of the need for humanitarian exceptions to enable aid to reach civilians. For example, the Security Council’s Somalia sanctions regime includes exemptions to allow the provision of economic resources ‘necessary to ensure the timely delivery of urgently needed humanitarian assistance’.
UN Security Council humanitarian exemptions and their effectiveness
Humanitarian exemptions are now commonly used in sanctions regimes. Without them, there is a risk that targeted sanctions might limit humanitarian assistance from being provided to those in need. Observers have warned, for example, that subjecting the terrorist group Al-Shabaab to sanctions would have a chilling effect on humanitarian aid in Kenya. This issue has come to the fore in light of the global coronavirus pandemic, with the European Union reminding the international community that UN and EU sanctions provide for humanitarian exceptions and stressing that sanctions should not impede the delivery of essential equipment and the supplies needed to fight the coronavirus and limit its spread worldwide.
The need for humanitarian exemptions has also been recognised by the now autonomous sanctions regimes of the United Kingdom. The Global Human Rights Sanctions Regulations 2020 were laid before the UK Parliament by the Foreign Secretary on 6 July 2020. The Regulations provide, at Section 10 of Schedule 2, that licences may be granted ‘to enable anything to be done in connection with the performance of any humanitarian assistance activity’, which is defined as ‘work of international and non-governmental organisations carrying out relief activities for the benefit of the civilian population of a country’.
However, humanitarian exemptions have been the subject of some criticism. For example, humanitarian aid is often easily diverted by groups that are targeted by sanctions (such as terrorist groups), leading to humanitarian organisations indirectly violating sanctions aimed at these groups. There is concern that such groups actively seek to exploit the exemptions, perhaps masquerading as people in need of humanitarian assistance, or even as humanitarian actors themselves.
Critics have also warned that the existence of express humanitarian exemptions could damage the otherwise implicit humanitarian exemptions in regimes that do not expressly set them out. The argument suggests that a lack of express provision might be taken to mean that no humanitarian provision should be allowed at all. So, for example in contexts where express humanitarian exemptions are difficult to negotiate, or where a regime is historic and does not include express exemptions, the ability to provide humanitarian aid may in fact become more restricted.
It has also been said that the process for considering humanitarian exemption petitions is opaque: for example, refusals to grant humanitarian exemption requests do not require a Sanctions Committee to provide reasons for refusal.
Moreover, the licensing process is a predominantly decentralised process dealt with at Member State level. This has the potential to lead to an inconsistent application of the licensing of humanitarian exemptions (and, indeed, other exemptions provided for by the relevant sanctions resolution).
The application process
Again, owing to the implementation of UN sanctions at Member State level, the licensing application process will vary depending on the location of the applicant (and on the type of sanction in play).
In the United Kingdom, applications for financial sanctions licences must be made to OFSI. An application must include evidence and demonstrate that all criteria of the relevant licensing ground have been met. OFSI does not charge for processing licence applications or for granting licences. It provides a form for applicants to submit, who will generally be required to provide information, as set out in Chapter 4 of this guide.
OFSI aims to engage with (although not necessarily to issue) an application within four weeks. Although it depends upon the nature and initial completeness of the application, in the context of a licence for the payment of legal fees it is not unusual to have to wait around eight weeks to obtain a substantive decision on a licence application, even when submitted as an urgent application (a status for which OFSI’s guidance allows). This can create problems if legal advice is required urgently to protect a designated person’s interests and rights.
In this respect, OFSI’s guidance provides that a legal adviser will not be prohibited from providing legal advice without a licence; it is simply that the adviser will not be able to take payment for those services without a licence. Against this position it may be said that, although this may give legal professionals the legal freedom to advise a designated person, it does not necessarily provide the economic freedom to do so. In practice, this means that the potentially detrimental consequences of a delay in the application process are far from mitigated.
Refusal to grant a licence
If an application is refused, OFSI will provide reasons for its decision, the most common reason being that the application does not meet the licensing grounds prescribed by the relevant legislation. It may also be refused if OFSI considers that a licence is not actually required for the proposed activity or transaction.
If an applicant has an application refused, the following four options are available:
- ask OFSI to review its decision;
- reapply for a licence with new or supplementary evidence or new supporting arguments;
- re-apply under a different derogation (where applicable); or
- judicially review OFSI’s decision in the High Court of England and Wales.
In practice, the route chosen by an applicant will depend largely on the reasoning provided by OFSI in its refusal. It may be that all that is needed is a tweak to the supporting arguments or the submission of further evidence. In other cases, it may be clear that OFSI will not change its position without an order from the court.
Review and termination or delisting
Termination of sanctions without application
The process of termination without application of sanctions regimes will vary case by case, depending on the provisions of the underlying UN Security Council sanctions resolution and the specific powers of the relevant sanctions committee. However, broadly speaking, there are three common ways in which sanctions are terminated without application:
- Measures listed in sanctions resolutions that contain provisions to limit the duration of the relevant sanctions will automatically expire on the indicated date. This is known as a sunset clause. For example, paragraphs 9 and 11 of UN Security Council Resolution 1572 of 2004 concerning the Ivory Coast placed sanctions restrictions on designated individuals for 12 months.
- Sanctions renewed on a rolling basis will automatically expire unless actively renewed. For example, in 2000 the Security Council imposed sanctions against Eritrea and Ethiopia (regarding the sale or supply of certain arms) in an attempt to cease armed hostilities and encourage peaceful talks between the two countries. The sanctions were imposed for an initial 12 months but could be renewed subject to the Council’s assessments on Eritrea’s and Ethiopia’s compliance with the underlying Resolution (1298 (2000)). In addition, the underlying Resolution allowed the Secretary General to terminate the measures if a report was provided determining that ‘a peaceful definitive settlement of the conflict has been concluded’.
- Sanctions regimes that contain a continuous review provision, such as a ‘commitment to review’. This obliges the Security Council or the relevant sanctions committee to terminate the relevant sanctions measures when they are satisfied that the objectives of the relevant resolutions have been achieved. This implies a continuing obligation of review and consideration by the Security Council or relevant sanctions committee.
A striking characteristic of the UN sanctions framework is the absence of a general, judicially backed mechanism for challenging designations imposed by the Security Council. There is no independent judicial body with the power to annul measures on application by a designated person.
In the course of the UN Charter negotiations, an institutionalised power of review of the Security Council was expressly rejected, demonstrating that it was never the intention of Members of the UN to review Security Council resolutions. Given that judicial review of measures taken by Member States to implement UN Security Council resolutions would be carried out in the various courts of the Member States (rather than in a centralised institution), it has also been noted that ‘practitioners and politicians especially tend to stress the UN Security Council’s sole responsibility to determine the legality of its own acts in order to avoid the perceived threat of fragmentation and disobedience’.
Moreover, those who oppose allowing courts to judicially review UN Security Council resolutions warn that due to ‘the fragmented nature of municipal oversight and rules being applied, judicial review of UN Security Council resolutions would prove problematic if such courts become more interventionist in their review of Council action’. Additionally, the review of the implementation of UN Security Council resolutions by the systems of individual states cannot bind the Council. Indeed, the broad powers awarded to the Security Council, and the binding nature of its decisions on Member States even if they are inconsistent with other treaty obligations, give it ‘a supreme position in international law’.
However, many are understandably concerned that the institution is controlled by only a few states with few checks and balances. This is a source of considerable contention in the context of sanctions, given the significant imposition that designations can have on the rights of both natural and legal persons, in particular the encroachment they present to the individual’s rights of defence, as embodied in various human rights treaties. The debate has been fuelled by the increasing use in the past few decades of targeted sanctions (as discussed above at ‘Historical background’), which has resulted in more of the weight of UN sanctions measures falling on individuals.
In recent years, the informal ‘group of like-minded States on targeted sanctions’ has proposed due process reforms to provide targeted individuals with adequate avenues to challenge sanctions measures. Its work has been influential, contributing to the creation of the Office of the Ombudsperson (see further below). It has also advocated for permanence of the Ombudsperson’s Office and for an extension of the Ombudsperson’s mandate.
As a result of the significant concerns about the absence of due process, ad hoc routes of redress have sprung up (some of which can be said to be quasi-judicial). At present, there are four options for a person pursuing delisting from a UN sanctions regime, all of which involve a lengthy process.
Applying to the relevant sanctions committee
This application is made via the state department of the applicant’s country of residence or citizenship to the relevant sanctions committee. It is thus a diplomatic process and the individual has no right of direct access to the committee. This route is unlikely to be possible for an applicant if they have been added to a list at the request of their state of residence or citizenship (a common occurrence – see discussion in ‘Designation process’, above). In these circumstances, the state is of course unlikely to be willing to provide assistance. Thus this route would exclude, for example, persons who are political exiles.
The Focal Point for De-listing
In these circumstances, listed individuals might want to consider applying directly to the Focal Point for De-listing under Security Council Resolution 1730 (2006), which provides that the Security Council commits to ensuring that ‘fair and clear procedures exist for placing individuals and entities on sanctions lists and for removing them, as well as for granting humanitarian exemption’.
The Focal Point receives delisting requests from designated individuals and forwards them with any comments to the designating governments and, if different, the government of an applicant’s residence or citizenship. These governments then have three months to consider the delisting request and indicate whether they oppose or support it.
Rather than making substantive decisions, or even recommendations, the Focal Point simply helps to build communications between the relevant sanctions committee, designating states and other reviewing states. It is ultimately up to the relevant sanctions committee whether the application for delisting is accepted. Although the process is arguably a step in the right direction, the lack of procedural coherence, the possibility of long delays and the lack of judicial or even quasi-judicial oversight underscores the limited power of the Focal Point.
Applying to the Office of the Ombudsperson
There are currently 14 UN sanctions regimes in place. However, the ISIL (Da’esh) and Al-Qaida regime (formerly 1267 (Al-Qaida)) is the only one that provides for a challenge to a listing via the Office of the Ombudsperson, established in 2009. This option was established in the wake of the seminal Kadi litigation in the European courts.
The Ombudsperson’s procedures have been developed and refined over the years but significant problems still remain, such as a lack of meaningful disclosure of the reasons for a listing and the fact that there is no obligation on states to disclose exculpatory material. These issues prevent petitioners from being able to effectively exercise their rights of petition.
The test applied by the Ombudsperson is whether there is currently a sufficient basis for the listing. The test does not require an analysis of whether the original decision to designate was correct at the time it was made (i.e., the test applied under many judicial review processes, including, for example, an application to the European courts for annulment of EU restrictive measures). All of the Ombudsperson’s delisting recommendations to date have been accepted by the relevant sanctions committee, and the Office’s decisions therefore appear to carry weight. However, the mechanism is not without problems. Indeed, Catherine Marchi-Uhel, who served as Ombudsperson from 27 July 2015 to 7 August 2017, resigned her position in August 2017 and wrote in her resignation letter that:
in the last two years, I have observed an increasing intrusion of the Committee in a sensitive area for the fairness to petitioners of the Ombudsperson’s process. I have witnessed a set-back imposed by the Committee concerning the right of petitioners to receive substantive reasons when they are retained on the sanctions list as a result of the Ombudsperson’s recommendation. In my opinion, this situation also affects the general credibility of the Ombudsperson mechanism. Such practice lends support to those who consider that, short of a judicial mechanism, full fairness and transparency cannot be guaranteed.
In her final report to the Security Council (S/2015/533) before leaving her role as Ombudsperson, Kimberly Prost (the first UN Ombudsperson) noted with concern ‘the lack of full implementation of the Security Council mandate for an independent office of the Ombudsperson’ and she highlighted the shortcomings of the contractual, administrative and organisational arrangements in place, which threaten the independence and sustainability of the mechanism.
The UN has appeared reticent to strengthen the Ombudsperson’s role, however, or to extend the mechanism to other sanctions regimes. As a result, the courts may prove to be the best avenue to challenge Security Council sanctions measures.
Challenges to listings via the European courts
The European Court of Human Rights (ECtHR) has had the opportunity to examine the legality of UN sanctions and found breaches of procedural rights, such as the right to a fair trial and the right to an effective remedy, enshrined in the European Convention on Human Rights 1950, Articles 6 and 13.
However, individuals and entities challenging UN sanctions before the ECtHR must first challenge them before the individual’s domestic courts according to the principle of subsidiarity. This limits somewhat the ability of affected individuals to bring applications to the ECtHR, and goes some way to explaining why the Court is not the most prevalent recourse for applicants seeking judicial review of sanctions listings.
Since the Kadi litigation, the European Court of Justice (ECJ), now known instead as the Court of Justice of the European Union (CJEU), has been established as a route for indirectly challenging UN listings. In Kadi I, the ECJ held that EU instruments implementing UN measures are justiciable and thus must comply with EU law and fundamental rights such as judicial protection. It was argued successfully in the Kadi litigation that the justiciability of UN measures did not contradict the primacy of the UN in determining which measures are necessary to maintain international peace and security.
The EU courts therefore provide a crucial avenue for challenging EU measures based on UN measures insofar as they apply in the European Union. This is of particular relevance to persons subject to UN regimes other than the Al-Qaida regime: in these cases, there is no Ombudsperson process and thus the courts may be more willing to strike down an EU measure based on these UN regimes for lack of judicial protection.
In practice, sanctioned individuals may find that the real value of this option is in the fact that by initiating or threatening EU action, a Security Council sanctions committee is more likely to grant an application for delisting rather than confront another situation similar to .
Monitoring and enforcement of UN sanctions
The management of UN sanctions regimes is typically undertaken by a monitoring group and the sanctions committee responsible for implementing the relevant sanctions regime.
Expert panels are also created in some instances to assist with a committee’s monitoring. These expert panels, consisting commonly of five to eight technical experts whose expertise depends on the nature and targets of the sanctions in question, will monitor the implementation of sanctions and then report the results to the relevant sanctions committee or directly to the Security Council. The sanctions committee or Security Council can then make any necessary amendments.
The reports of panels of experts are an important source of information for sanctions committees to identify individuals or entities for designation (as discussed above, at ‘Designation process’) and to monitor the effectiveness of sanctions. Moreover, the Somalia UN sanctions regime is the first to include a broader provision for humanitarian actors (discussed above, at ‘Types of licences and exemptions’). The panel of experts on Somalia is able to look at constraints on humanitarian access and assistance to populations under the control of designated entities, such as Al-Shabaab.
In its 1 November 2019 report, the panel of experts on Somalia expressed concern that the extremist group Al-Shabaab, which remains ‘a potent threat to regional peace and security’, was now manufacturing home-made explosives. It warned that the group was responsible for a large number of attacks against civilians in violation of international humanitarian law, explaining that the militant group employed improvised explosive devices to kill and injure civilians in internally displaced persons camps, restaurants, market places, shopping centres, government offices and hotels.
The panel obtained definitive evidence that Al-Shabaab had been manufacturing these explosives, which are the group’s ‘weapon of choice’. It therefore recommended that the Security Council restrict the group’s access to chemical precursors and other components it uses to construct improvised explosive devices.
The panel also observed that Al-Shabaab’s ability to generate domestic revenues through a mafia-style ‘taxation’ of all aspects of the Somali economy is probably expanding. It even warned that the group had infiltrated federal government institutions.
Although the Security Council is under no obligation to follow the panel’s suggestions, it adopted the above-mentioned recommendations on 15 November 2019, within just days of them being published, and decided that all States shall prevent the sale, supply and transfer of potential components of improvised explosive devices to Somalia. It also authorised the maritime interdiction of arms imports and charcoal exports that could benefit Al-Shabaab and other armed groups.
It is important to note that the UN itself has no independent means of enforcement. Instead it relies on its Member States. Given that many Member States have limited resources or a lack of political enthusiasm to apply to the implementation and enforcement of UN sanctions, there are questions in some instances about their efficacy. However, there are clear exceptions to this, most notably the relatively efficient mechanisms through which the European Union incorporates UN sanctions into its jurisprudence (as discussed above). The result of this is that UN sanctions become directly applicable in EU Member States and enjoy the full weight of those jurisdictions’ often robust legal enforcement infrastructure.
Another exceptional example is the UN Oil-For-Food inquiry, which named companies suspected of breaching Iraqi sanctions. In the United Kingdom, this led to the Mabey & Johnson prosecutions by the Serious Fraud Office and the Scottish prosecution of the Weir Group plc [(both of which are discussed further in Chapter 5 of this guide)].
1 Guy Martin is a partner and Charles Enderby Smith is a senior associate at Carter-Ruck solicitors.
2 See preamble to the UN Charter.
3 A/59/2005 (21 March 2005): ‘In larger freedom: towards development, security and human rights for all’, p. 30.
4 See UN Charter, Articles 39–51, see https://www.un.org/en/about-us/un-charter/chapter-7.
5 Geoff Simons, Imposing Economic Sanctions, Pluto Press (1999), pp. 52, 55, 56, 66 and 69.
6 T J Biersteker and others, ‘Designing United Nations’, Targeted Sanctions: Initial findings of the Targeted Sanctions Consortium (TSC) evaluating impacts and effectiveness of UN targeted sanctions, New York, 27 April 2012, p. 7.
7 UN Doc S/RES/2083, 17 December 2012, 14th preambular paragraph; European Commission and others v. Kadi (C-584/10 P), judgment dated 18 July 2013, para. 130.
8 Kimberly Ann Elliott, ‘Assessing UN sanctions after the Cold War: New and evolving standards of measurement’, International Journal, Vol. 65, No. 1, UN sanctions (Winter 2009-10), p. 85.
9 id., at pp. 90 to 91.
10 id., at p. 94.
11 It could be said that the pendulum is now swinging back with Russia’s use of its veto power to stymie effective sanctions in response to the conflict in Syria and the lack of UNSC sanctions in response to the situation in Ukraine. The result is the increasing use of unilateral sanctions regimes, which has, among other things, led to the OHCHR appointing a Special Rapporteur on Unilateral Coercive Measures.
12 http://www.un.org/securitycouncil/sanctions/information. These are all UN Security Council sanctions programmes. The UN General Assembly also has powers to establish sanctions programmes but, in practice, these are no longer used.
13 See, e.g., former UN Secretary General Kofi Annan’s comments in a UN press release, at http://www.un.org/press/en/2000/20000417.sgsm7360.doc.html.
14 Clara Portela, ‘National Implementation of United Nations Sanctions: Towards Fragmentation’, International Journal, Vol. 65, No. 1, UN sanctions (Winter 2009-10), p. 15.
15 Kimberly Ann Elliott, ‘Assessing UN sanctions after the Cold War: New and evolving standards of measurement’, International Journal, Vol. 65, No. 1 (UN sanctions) (Winter 2009-10), pp. 91 and 92.
16 id.; S/RES/757.
17 Elizabeth S Schmidt, ‘United Nations Sanctions and South Africa: Lessons From the Case of Southern Rhodesia’, New York: United Nations Centre Against Apartheid, February 1987, p. 10.
18 id., at p. 10
19 Clara Portela, op. cit., at p. 15.
20 Denis Halliday, ‘Iraq and the UN’s Weapon of Mass Destruction’ (1999) 98 Current History, 65 to 68.
21 Daniel W Drezner, ‘Sanctions Sometimes Smart: Targeted Sanctions in Theory and Practice’, International Studies Review, Vol. 13, No. 1 (March 2011), p. 97; Andrew Mack and Asif Khan, ‘The Efficacy of UN Sanctions’, Security Dialogue, Vol. 31, No. 3 (September 2000), p. 284; Richard Garfield, ‘Morbidity and Mortality among Iraqi Children from 1990 through 1998: Assessing the Impact of the Gulf War and Economic Sanctions’, 1999, p. 1.
22 Security Council, ‘Subsidiary Organs of The United Nations Security Council’, 2020 Fact Sheets, p. 4.
23 Security Council resolution 1267, 15 October 1999.
24 There is some debate as to whether these circumstances could be more clearly prescribed by the Security Council.
25 J Farrall, ‘Establishing the legal basis for sanctions: Identifying threats and invoking Chapter VII’, United Nations Sanctions and the Rule of Law, Cambridge Studies in International and Comparative Law (2007), pp. 81 and 82.
26 See Bernhardt in B Simma et al, The Charter of the United Nations: A Commentary (2nd ed., 2002), para. 103.23: ‘Even if the SC has wide discretionary powers under [Chapter VII of the Charter], these powers are not unlimited. The Charter is a legally binding document and no organ is endowed with complete freedom to act or not to act. The present author holds the opinion that in case of manifest ultra vires decisions of any organ, such decisions are not binding and cannot prevail in case of conflict with obligations under other agreements.’ See also W Jenks, ‘The Conflict of Law-Making Treaties’, BYIL 30 (1951), 439 et seq.; D Bowett, ‘The Court’s Role in Relation to International Organisations’ in Fifty Years of the International Court of Justice: Essays in Honour of Sir Robert Jennings (V Lowe, M Fitzmaurice, Eds 1996), p. 191.
27 See UN Charter, Articles 25, 48 and 49.
28 J Farrell, op. cit, at pp. 81 and 82.
29 Resolution 2140 (2014), at http://www.undocs.org/S/RES/2140%20(2014).
30 Note that the Resolution 2140 designation criteria have been augmented by UN Security Council Resolutions 2216 (2015) and 2511 (2020), demonstrating that, even within a sanctions regime, the designation requirements are not static. They tend to be amended (most frequently expanded) during the lifetime of a sanctions programme.
31 United Nations Security Council, at http://www.un.org/securitycouncil/sanctions/2140/panel-of-experts/work-and-mandate.
32 Guidelines of the Security Council Committee Established Pursuant to Resolution 2140 (2014), para. 5, at http://www.un.org/securitycouncil/sites/www.un.org.securitycouncil/files/2140_guidelines_en.pdf.
33 id., at para. 4.
35 See Security Council Committee established pursuant to Resolution 1718 (2006), at http://www.un.org/securitycouncil/sanctions/1718; Resolution 2321 (2016), p. 2 para. 5.
36 See, e.g., Resolution 2321 (2016), p. 3 para. 8; Resolution 2270 (2016), p. 5, para. 19.
37 Resolution 2368 (2017), p. 7, para. 2.
38 id., at p. 8, para. 4.
39 See Resolution 2140 (2014) at https://www.undocs.org/S/RES/2140%20(2014) and Resolution 2511 (2020) at http://unscr.com/en/resolutions/doc/2511.
40 Her Majesty’s Treasury’s Office of Financial Sanctions Implementation [OFSI], Financial Sanctions Guidance, December 2020, p. 17.
41 id. See also the examples at p. 17 of behaviour, which could suggest the affairs of the entity are conducted in this way.
42 id., at p. 18. See also the examples at p. 17 of behaviour, which could suggest the affairs of the entity are conducted in this way.
43 id., at p. 18.
44 J Farrall, op. cit., at p. 144.
46 Federica Ferrara (Luiss, A.A. 2016/2017), ‘Striking a balance in the United Nations: the need for safeguarding human rights against economic sanctions’, Chapter III, Section 3.2, Paragraph 5 and Section 3.4, Paragraph 2.
47 id., at Chapter III, Section 3.4, Paragraph 2.
48 Special report of the Security Council committee established by resolution 661 (1990) concerning the situation between Iraq and Kuwait on the communication received from Jordan with regard to special economic problems arising from the carrying out of the measures contained in resolution 661 (1990); Resolution 669 (1990) preambular para. 3.; S/21786 (18 September 1990); J Farrall, op. cit., at pp. 144 and 145.
52 Special report of the Security Council committee established by resolution 661 (1990) concerning the situation between Iraq and Kuwait on the communication received from Jordan with regard to special economic problems arising from the carrying out of the measures contained in resolution 661 (1990), p. 2.
53 id., at p. 4.
54 J Farrall, op. cit., at pp. 144 and 145; S/21826, 22033 and 22398 (24 September 1990, 21 December 1990 and 21 March 1991).
55 See, e.g., Watson Institute for International and Public Affairs, and Compliance and Capacity Skills International, LLC (2015), 54 and 55; ‘High Level Review of United Nations Sanctions: Compendium’ (November 2015) (see Recommendations 64 to 67).
56 For further detail, see OFSI’s guidance at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/862451/OFSI_general_guide_to_Financial_Sanctions.pdf . See also OFSI’s blog on licensing at https://ofsi.blog.gov.uk/2021/04/19/introduction-to-licensing .
57 See Resolution 2140 (2014), at http://www.undocs.org/S/RES/2140%20(2014); Fact sheet on the 2140 Yemen Sanctions Committee (2014), at http://www.securitycouncilreport.org/atf/cf/%7B65BFCF9B-6D27-4E9C-8CD3-CF6E4FF96FF9%7D/yemen-sanctions-fact-sheet.pdf; and Resolution 2511 (2020), at http://unscr.com/en/resolutions/doc/2511.
59 See, e.g., Resolution 2244 (2015), UN Doc S/RES/2244, para. 23; Resolution 2317 (2016) UN Doc S/RES/2317, para. 28. For an overview, see http://hs.umt.edu/mun/documents/topicGuides/NY2018_BGG_SC-Sec2-Sanction_Reg_Exc.pdf and sources listed in the bibliography.
60 Sara Jerving, ‘Humanitarians Warn against Adding al-Shabab to UN Sanctions List’, Devex (16 August 2019) and Alice Debarre, ‘Making Sanctions Smarter: Safeguarding Humanitarian Action’, IPI Publications (2019).
61 See the public statement by High Representative Josep Borrell on behalf of the EU (3 April 2020), at http://www.consilium.europa.eu/en/press/press-releases/2020/04/03/declaration-by-the-high-representative-josep-borrell-on-behalf-of-the-eu-on-the-un-secretary-general-s-appeal-for-an-immediate-global-ceasefire/#:~:text=18%3A25-,Declaration%20by%20the%20High%20Representative%20Josep%20Borrell%20on%20behalf%20of,for%20an%20immediate%20global%20ceasefire&text=Terrorist%20groups%2C%20as%20designated%20by,take%20advantage%20of%20that%20truce.
62 The Global Human Rights Sanctions Regulations 2020, at http://www.legislation.gov.uk/uksi/2020/680/schedule/2/made.
63 Katie King, Naz K Modirzadeh, Dustin A Lewis. 2016. ‘Understanding Humanitarian Exemptions: UN Security Council Sanctions and Principled Humanitarian Action’, Harvard Law School Program on International Law and Armed Conflict Counterterrorism and Humanitarian Engagement Project, at https://dash.harvard.edu/bitstream/handle/1/29998395/Understanding_Humanitarian_Exemptions_April_2016.pdf?sequence=1.
64 James Cockayne, Rebecca Brubaker and Nadeshda Jayakody, ‘Fairly Clear Risks: Protecting UN sanctions’ legitimacy and effectiveness through fair and clear procedures’, United Nations University, 2018.
65 See OFSI’s General guidance for financial sanctions under the Sanctions and Anti-Money Laundering Act 2018 (December 2020), at para. 6.10 (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/961516/General_Guidance_-_UK_Financial_Sanctions.pdf).
66 id., at para. 6.10.1.
67 Further delays can result from the fact that OFSI may need to notify, or in some cases seek approval from, the relevant United Nations Sanctions Committee before it can issue a licence; a requirement that is set out in the relevant UN Security Council Resolutions.
68 See OFSI’s General guidance for financial sanctions under the Sanctions and Anti-Money Laundering Act 2018 (December 2020), at para. 6.5: ‘In most cases, you can provide legal advice to or act for a designated person without an OFSI licence, however, you cannot receive any payment for that advice without first obtaining an OFSI licence.’
69 Also of concern are difficulties arising where immediate humanitarian assistance is required, and there is a delay in processing a licence application. While OFSI will prioritise such applications, delays can still arise. The United States has responded to such situations by issuing general licences covering situations where humanitarian needs arise, and the UK now has this same power under SAMLA.
70 Kristen E Boon, ‘Terminating Security Council Sanctions’, International Peace Institute (2014), pp. 5 and 6.
71 Resolution 1298 (2000), UN Doc. S/RES/1298, para. 6.
72 id., at para. 16.
73 id., at para. 17.
74 See, e.g., resolution 2048 (2012), UN Doc S/RES/2048 (2012), para. 12.
75 Ken Roberts, ‘Second-Guessing the Security Council: The International Court of Justice and Its Powers of Judicial Review’, 7 Pace Int’l L. Rev. 281 (1995), at http://digitalcommons.pace.edu/pilr/vol7/iss2/2.
76 August Reinisch, ‘Should Judges Second-Guess the UN Security Council?’ (2009), International Organizations Law Review 6. 257-291, pp. 259 and 260.
77 Devon Whittle (2015), ‘The Limits of Legality and the United Nations Security Council: Applying the Extra-Legal Measures Model to Chapter VII Action’, European Journal of International Law 26, 671–698, pp. 676 and 677.
78 Id, at p. 676.
79 UN Charter, Article 103.
80 Devon Whittle, op. cit. p.674.
81 Richard Gordon, Michael Smyth, Tom Cornell, Sanctions Law (2019) Bloomsbury Publishing, p. 132.
82 An informal group comprising Austria, Belgium, Costa Rica, Denmark, Finland, Germany, Liechtenstein, the Netherlands, Norway, Sweden and Switzerland.
83 Matthew Happold and Paul Eden (eds), Economic Sanctions and International Law (Hart, 2016), pp. 135 to 170 and Cockayne, Brubaker and Jayakody, op. cit.
84 While in the first instance a reviewing Member State has three months from notification of a delisting request to comment, the legislative framework leaves open the possibility of this being extended by request – Resolution 1730 (2006), Section 6(c).
85 The authors represented Mr Kadi in this litigation. See Yassin Abdullah Kadi v. Commission, T-85/09, EU:T:2010:418 (30 September 2010) [Yassin Abdullah Kadi] and related litigation.
86 See for further discussion at http://www.eda.admin.ch/dam/eda/en/documents/aussenpolitik/sicherheitspolitik/vorschlaege-gleichgesinnte-staaten-Uno-sicherheitsrat_EN.pdf.
88 Gordon, Smyth, Cornell, op. cit.
89 Nada v. Switzerland, Application No. 10593/08, ECHR 2012 and Al-Dulimi and Montana Management Inc v. Switzerland, Application No. 5809/08.
90 Yassin Abdullah Kadi (footnote 85, above) and related litigation.
91 Kadi I, 2008 ECR I-6352.
92 ‘The obligations imposed on Member States . . . shall not apply to the payment of funds, other financial assets or economic resources necessary to ensure the timely delivery of urgently needed humanitarian assistance in Somalia, by the United Nations, its specialized agencies or programmes, humanitarian organizations having observer status with the United Nations General Assembly that provide humanitarian assistance, or their implementing partners.’ UN Security Council Resolution 1916 (19 March 2010) page 2. This exception has been renewed every year, most recently in Resolution 2551 (2020).
93 Letter dated 1 November 2019 from the Chair of the Security Council Committee pursuant to Resolution 751 (1992) concerning Somalia addressed to the President of the Security Council, at http://www.ecoi.net/en/file/local/2019947/S_2019_858_E.pdf.
94 Some attempts have been made to increase Member States’ engagement with UNSC sanctions, with varying degrees of success (e.g., see the unanimously adopted Resolution 2560 (2020) through which the Security Council seeks to encourage Member States to engage more actively with its committee on terrorism-related sanctions).