UN Sanctions

Historical background

The United Nations (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’.^[2] 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’.^[3] It was for similar reasons that the power to require countries to impose sanctions was 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).^[4]

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.^[5]

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.^[6]

In practice, UN sanctions have largely been preventative in nature.^[7]

Both the US and Russia are permanent members of the Security Council. In light of this, UN sanctions were initially constrained as a result of the US–Soviet conflict during the Cold War.^[8] Indeed, only two prominent mandatory comprehensive sanctions regimes were imposed during that period, against Southern Rhodesia (in 1966) and South Africa (in 1977).^[9] Consequently, for some time UN sanctions were perceived as somewhat weak and only symbolic in nature.^[10]

Since the end of the Cold War until recently there was an increased reliance on sanctions by the UN in furtherance of the aims set out above, with sanctions being used more than 20 times.^[11] But despite the expansion of UN sanctions following the Cold War, we have in recent years seen a return to a weakening of the UN sanctions system as foreign policy agendas of key Member States have diverged. Russia has been able to block UN action in relation to the country’s aggression in Ukraine due to its presence as one of the P5 (the five permanent members of the Security Council), providing it with the ability to veto any Security Council resolution. A further recent example was seen in June 2022, when the Security Council failed to adopt a resolution strengthening the UN’s North Korea sanctions regime following ballistic missile launches. The resolution was vetoed by China and Russia. As a result of this divergence, there are now important international sanctions regimes outside the UN system; for example, the EU sanction regimes on Syria and Russia, which are not replicated at UN level.^[12]

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.^[13]

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 whose governing authorities are weak (e.g., the Taliban conflict in Afghanistan)).^[14] Comprehensive sanction regimes are more or less redundant in the context of the latter objective.^[15]
• 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.^[16] Similarly, the Southern Rhodesian sanctions regime reduced imports by 30 per cent in 1965–1966.^[17] Given the difficulties in manufacturing some products domestically, this led to widespread suffering by the civilian population, which in turn prompted a move towards what are known as targeted sanctions (i.e., sanctions imposed on individuals and entities rather than states).^[18]
• Violation of human rights relating to UN comprehensive sanctions.^[19] UN sanctions have been described as ‘the UN’s weapon of mass destruction’ owing to their failure to safeguard the lives of innocent civilians.^[20] 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.^[21]

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.^[22]

The first targeted sanctions regime was deployed in 1999 against Taliban members who were thought to be harbouring Osama bin Laden.^[23] 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, as a result of mistaken identity, on the basis of false intelligence or where basic rights of defence or to a fair trial are not observed.

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,^[24] the circumstances in which a designated person or entity should be delisted (see further, at ‘Delisting’, below).^[25] 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). The sanctioned person should also be entitled to see a ‘narrative summary of reasons for listing’ although typically these can be brief and not very informative.

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 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.^[26]

All 193 UN Member States are obliged under the UN Charter to implement the Security Council’s resolutions on sanctions (Chapter VII).^[27] This is a very powerful and effective tool bearing in mind the large number of Member States. 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 domestic 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.^[28]

Designation process

As the framework for each 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 and 18 of the Resolution provide the ‘designation criteria’ on which the sanctions committee (formed of delegates from the 15 members of the Security Council)^[29] 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’.^[30]

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).^[31] 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.^[32]

As with other Security Council sanctions committees, the Yemen sanctions committee adopts its decisions by consensus. The chair of the sanctions committee will attempt to reconcile any disputes between its members.^[33] Any dispute on which a consensus cannot be reached must be submitted to the Security Council.^[34]

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)^[35] and vessels or aircraft.^[36]

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 Security Council resolutions. Entities can include companies or associations or even unincorporated associations or 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;^[37] or
• any groups or entities ‘either owned or controlled, directly or indirectly’ by ISIL, Al-Qaida or their associated entities or groups.^[38]

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 provide an obligation on Member States to freeze all funds, other financial assets and economic resources that are owned or controlled, directly or indirectly, not only by the individuals or entities designated by the Security Council Committee established pursuant to Resolution 2140 (2014), but also by individuals or entities acting on their behalf or at their direction, or by entities owned or controlled by them.^[39]

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, post-Brexit EU sanctions are no longer directly effective in the UK. The UK Treasury has therefore established and maintains its own autonomous sanctions system. 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 or UN sanctions, it will nevertheless be deemed subject to financial sanctions.^[40]

According to OFSI’s 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.^[41] 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.^[42]

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.^[43]

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.^[44] 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.^[45] 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.^[46]

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^[47] 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),^[48] including Bulgaria,^[49] India^[50] and Jordan,^[51] 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’.^[52] 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.^[53]

The Security Council in this instance also requested the UN Secretary General to appeal to all UN members to assist the concerned states.^[54]

Licensing and humanitarian exemptions

Types of licences and exemptions

All 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.^[55]

As mentioned above, UN Member States are obliged under the UN Charter to implement the 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.^[56]

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.^[57]

• Travel ban: sanctions measures shall not apply where the Committee determines that travel is justified: (1) on the grounds of humanitarian need, including religious obligation; (2) where entry or transit is necessary for the fulfilment of a judicial process; (3) where the Committee determines that an exemption would further the objectives of peace and national reconciliation in Yemen; and (4) 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 Security Council 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.^[58]

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’.^[59]

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.^[60] 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.^[61]

The need for humanitarian exemptions has also been recognised by the now autonomous sanctions regimes of the United Kingdom. For example, 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’.^[62] More recently, similar provisions have been included in the Burundi Sanctions Regulations 2021 and the Global Anti-Corruption Sanctions Regulations 2021.

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 was intended and therefore no such exception 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.^[63]

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.^[64]

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 and the materials referred to therein.

OFSI aims to engage with (although not necessarily to issue) an application within four weeks.^[65] 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^[66]).^[67] Recently, given the events in Ukraine, the related raft of sanctions implemented by the UK government and the resulting heavier workload at OFSI, this period has become closer to 12 weeks. 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.^[68] 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.^[69]

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;
• reapply 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 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.^[70]

• 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 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.^[71] 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)).^[72] 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’.^[73]
• Sanctions regimes that contain a continuous review provision, such as a ‘commitment to review’.^[74] 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.

Delisting

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. This is regarded as a serious weakness of the UN designation system.

In the course of the UN Charter negotiations, an institutionalised power of review of the Security Council was expressly rejected,^[75] 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 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’.^[76]

Moreover, those who oppose allowing Member States’ courts to judicially review 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’.^[77] Additionally, the review of the implementation of Security Council resolutions by the systems of individual states cannot bind the Council.^[78] 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,^[79] give it ‘a supreme position in international law’.^[80]

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.^[81]

In recent years, the informal ‘group of like-minded States on targeted sanctions’^[82] 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).^[83] 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 five 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 a diplomatic process and the designated person 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, other reviewing states and designated persons. It is an essentially diplomatic process. 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^[84] and the lack of judicial or even quasi-judicial oversight underscores the limited power of the Focal Point. For these reasons the Focal Point procedure is generally regarded as weak.

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.^[85]

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).^[86]

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^[87] 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.^[88]

Daniel Kipfer Fasciati, who served as Ombudsperson from 18 July 2018 to 17 December 2021,^[89] after submitting his resignation on 3 June 2021,^[90] stated in his final report, dated 23 July 2021, that the problems that were previously highlighted by Kimberly Prost persist. In particular, he highlighted:

• the lack of a distinct and separate Office of the Ombudsperson;
• the conflict of interest for staff supporting the Ombudsperson who report to the Committees that impose sanctions;
• the Ombudsperson’s lack of decision-making power on expenses;
• the contractual limitation of the term of an Ombudsperson to a maximum of five years; and
• the consultant status of the Ombudsperson.

Daniel Kipfer Fasciati also noted that responses from Member States that are asked to submit information to the Ombudsperson following delisting petitions are variable:

15. With regard to one case which was completed during this reporting period, the Ombudsperson is satisfied that all seven Member States who were asked to submit information did so. This included the Designating State, the State of nationality and residence and relevant States.

16. In a second case which was completed during this reporting period, the Office received substantive responses to the Ombudsperson’s request for information from four States, while five States did not respond at all.^[91]

The UN has appeared reluctant 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.^[92]

Challenges to listings via the European courts

The European Court of Human Rights (ECHR) 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.^[93]

However, individuals and entities challenging UN sanctions before the ECHR 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 ECHR, 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,^[94] 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,^[95] 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 Kadi.

Challenges to listings via domestic courts

There are some limited examples of challenges to UN sanctions in domestic courts. For example, in Ahmed,^[96] the claimant challenged the way in which Security Council obligations were enacted in UK law (rather than a challenge to the merits of designation itself). The claimant argued that their designations under the Terrorism (United Nations Measures) Order 2006 and the Al-Qaida and Taliban Order 2006, which were enacted pursuant to Section 1 of the United Nations Act 1946, were: (1) illegal because the relevant Order was passed without parliamentary approval; (2) lacking legal certainty and proportionality; and (3) lacking procedures that enabled designated persons to challenge their designation. The UK Supreme Court held in this case that the Terrorism (United Nations Measures) Order 2006 was ultra vires Section 1(1) of the United Nations Act 1946. The Court also held that Article 3(1)(b) of the Al-Qaida and Taliban Order 2006 was ultra vires Section 1(1) of the United Nations Act 1946 because those who were designated would not have access to an effective remedy. It was held that the rest of the Order was not ultra vires because it reproduced the relevant Security Council resolution faithfully.

Other UK cases have challenged the lawfulness of the conduct of the UK at Security Council level. For example, in the case of Yousef, ^[97] the claimant challenged the decision of the Secretary of State for Foreign and Commonwealth Affairs to remove the UK’s hold on the claimant’s designation on the grounds that:

• the Secretary of State was aware that the information on which other members of the Sanctions Committee were proceeding was or might have been obtained by torture, which placed the respondent under an obligation not to support a tainted Committee decision, even though his own reasons were untainted;
• the effect of the Committee’s decision was a serious interference with the claimant’s right to peaceful enjoyment of his property, which could only be achieved by a clear statutory power or common law rule, neither of which existed;
• the standard of proof adopted, namely ‘reasonable grounds to suspect’ that the appellant met the criteria for designation, was too low; and
• the appellant was entitled to a full merits review or at least a proportionality analysis rather than the Wednesbury standard of review, that of reasonableness or irrationality, given the gravity of the context.

The UK Supreme Court held that:

• the Secretary of State’s decision was to be judged by reference to his reasons rather than the Sanctions Committee’s reasons;
• the requisite statutory authority was provided by EU Regulation 881, which was given legislative effect by the European Communities Act 1971;
• the claimant’s third argument that the standard of proof was too low was rejected; and
• the claimant’s fourth argument that a merits-based review ought to be required was rejected.

This judgment demonstrates a development of the domestic case law, following Ahmed, away from interfering in the decisions of the Security Council.

For example, the press summary of the decision published by the Supreme Court states:

The appellant’s reliance on the criticisms of a ‘reasonable suspicion’ test by this court in Ahmed v HM Treasury (No. 2) [2010] UKSC 5 is rejected on the basis that the majority judgments in Ahmed turned principally on the interpretation of the United Nations Act 1946, and that this court has the advantage of more recent evidence as to the current practice of the UN committee court [49]. . . .
The court rejects the appellant’s submission that a full merits review was required, finding that the UN Security Council has entrusted member states, as members of the Sanction Committee, with determining whether the designation criteria are met. It would be inconsistent with that regime for a national court to substitute its own assessment [58]. The court finds that whilst the Divisional Court was wrong to lay emphasis on an ‘irrationality’ test, the applicant had failed to identify any particular aspect of the reasoning which is open to challenge even applying a proportionality test [59].^[98]

Thus, challenging UN designations via domestic courts (in the UK at least) is unlikely to be an effective means of redress for the majority of those affected. As demonstrated by Youssef, the UK courts are in general unwilling to interfere in the decisions of intergovernmental organisations. Moreover, this route could only be effective if one intends to challenge the domestic legislative scheme that enacts the relevant UN sanctions designation. Challenging the decisions that are made by the Security Council is beyond the powers of the national courts.

Monitoring and enforcement of UN sanctions

Monitoring

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.^[99]

In its 1 November 2019 report,^[100] 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.

Enforcement

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.^[101] 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).

Recent trends

Given the size of, and number of stakeholders in, the UN, evolution within its sanctions regimes is often somewhat slower and less dynamic than in national (or even EU) equivalents.

A clear example of this can be found in the raft of western sanctions imposed as a result of Russia’s activity in Ukraine.^[102] While it has been open to key western powers, such as the US, the UK and the EU, to act quickly to impose coercive and prohibitive measures on the Russian regime, given Russia’s position as a permanent member of the Security Council (with the power to veto resolutions), similar action by the UN has not been practical. This is despite the UN considering the Russian ‘military offensive’ to be ‘a violation of the territorial integrity and sovereignty of Ukraine’ and ‘contrary to the principles of the Charter of the United Nations’, and the UN Secretary General urging the Security Council to do ‘everything in its power to end the war and to mitigate its impact, both on the suffering people of Ukraine, and on vulnerable people and developing countries around the world’.^[103]

Changes in the UN’s sanctions regimes are often more subtle and more thematic in nature. For example, since the publication of the first edition of this Guide, there have been significant moves towards creating exemptions regarding humanitarian assistance (building upon the points discussed above), in particular in the context of the UN’s Afghanistan and Libyan sanctions regimes. These developments reflect the fact that, while perhaps less of a blunt tool than the UN’s previous ‘comprehensive’ sanctions, targeted sanctions can and do still cause collateral damage.

For example, on 22 December 2021, the Security Council introduced an exception to its sanctions regime regarding Afghanistan for humanitarian assistance, with Resolution 2615 (2021).^[104] The UN’s action is explained in a report of the United Nations Transitional Engagement Framework for Afghanistan, which was published a month later, on 26 January 2022, stating that ‘the international sanctions regimes established by the Security Council and other UN Member States limit the scope of activity within which the UN and its partners can operate, requiring a fundamental change in its operations’.^[105]

Independent experts reporting to the UN have also been calling for similar exemptions to extend to unilateral sanctions, to the extent they are not already included. Unilateral sanctions are sanctions imposed by a single state or government (as opposed to multilateral sanctions, which are imposed by bodies such as the UN). There have been recent warnings from such experts that women, children and other vulnerable groups are more likely to have their human rights impacted by unilateral sanctions. The UN’s Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights has reported that ‘unilateral sanctions hurt all, but are particularly harmful to vulnerable groups within the populations of countries targeted by the sanctions’.^[106] The Special Rapporteur has also called upon states and governments that impose unilateral sanctions to ‘lift or minimize them as required by international law, to take all measures necessary to avoid the adverse effect on human rights of unilateral sanctions, to take all necessary measures to avoid over compliance with sanctions regimes, to provide broader exemptions, simpler procedures, and to facilitate, in spite of sanction regimes, the delivery of humanitarian aid’.

Concerns about women’s rights and sexual violence have also been significant for the past couple of years with specific reviews of both the situations in Afghanistan and the Democratic Republic of the Congo (DRC) taking place in this respect. The review of the DRC sanctions regime included consideration of adding the names of persons and armed groups involved in sexual violence to the sanctions list.^[107]

Footnotes