Synopsis Research Handbook on  UN Sanctions and International Law

Synopsis Research Handbook on UN Sanctions and International Law

Background and Aim of the Research Handbook

The 1990s have been labeled the “Sanctions Decade”,[1] since they witnessed an unprecedented intensification of the use of collective non-military enforcement measures, and in particular sanctions, by the post-Cold War reactivated Security Council. The trend of increased resort to UN sanctions has persisted after the turn of the century. And while enthusiasm for international criminal proceedings as a peace enhancement elixir is in steady decline, there is growing awareness that, despite lingering doubts as to their effectiveness, collective sanctions may be the Security Council’s only viable and serious means to confront crisis situations. After all, alternatives to sanctions are collective passivity or the authorization of the use of force. Sanctions are hard enforcement measures that do not resort to armed violence. As such they have been labeled “war without weapons”.[2]

The post-Cold War proliferation of UN sanctions engendered a true metamorphosis of this instrument in the Security Council’s arsenal. The evolution concerned both the rationale and scope of application of sanctions as well their identity, function, nature and format. The most prominent change was the individualization of sanctions through the development of the concept of targeted sanctions. Intertwined herewith was the process of formalization of UN sanctions, i.e., the subjection of UN sanction regimes to formal standards both of substantive and procedural nature, combined with the introduction of internal and external review processes. These paradigmatic shifts have come to call for fresh thinking on UN sanctions and their function in the international legal order.

In practice, collective UN sanctions can be imposed in parallel with unilateral and regional sanctions. Alternatively, autonomous unilateral sanctions may function as substitutes in case of Security Council paralysis. Or States and regional organizations may actually move beyond Security Council sanctions, and impose more stringent sanctions while implementing Chapter VII obligations.

This Research Handbook purports to study the transformation of UN sanctions, their current use and place in international practice, their interrelationship with other instruments and other areas of law, as well as issues arising from their implementation and application at the domestic level. It aims to identify the theoretical, systemic, substantive, procedural and institutional implications of this transformation, including the formalization of UN sanctions regimes.

I The Transformation of UN Sanctions

Part I traces, maps and analyses the evolution of UN sanctions in the past two decades. It examines the functional changes of the concept of sanctions as well as its practice (Sub-Part A) and it explores the transformative effects of those changes on the procedures that govern the imposition and execution of sanctions at the international plane (Sub-Part B).

As is well known, in its renewed post-1990 activity, the Security Council engaged in novel and versatile interpretations of the Article 39-notion of ‘threat to peace’. The consequence of classifying an ever-increasing variety of circumstances as being susceptible to Chapter VII-enforcement measures was that the Security Council indeed started to set up sanctions regimes for a wide spectrum of entirely different situations. In this context, sanctions regimes assumed new identities as counter-terrorism measures, non-proliferation instruments, human rights devices, and conflict management and post-conflict peace building tools. A perhaps even more spectacular transformation occurred through the shift from comprehensive sanctions to “smart” or “targeted” sanctions, whereby individuals rather than states became the direct targets of sanctions. Hence, both the function and the format of sanctions have been changing over time. An inherent part of this evolution of sanctions regimes was the refinement of the types of sanctions. In addition to arms and commodity embargoes, regular components of contemporary sanctions regimes are travel bans and financial sanctions.

Intertwined with, and possibly as a result of, these changes in the application and nature of sanctions, a certain formalization of sanctions can be witnessed. Being originally conceived of as peace enforcement measures, increasingly legal norms are invoked as an underlying rationale for the imposition of sanctions thereby rendering sanctions more direct law enforcement mechanisms and closer in line with the legal connotation of their name. Moreover, the argument has been made that the shift to individuals as ultimate targets of sanctions now requires a refashioning of procedures and a move towards more legally-oriented accountability models. In that sense, the formalization of UN sanctions thus encapsulates a twofold move. It pertains to both the development of UN sanctions becoming law enforcement mechanisms, as well as the move from diplomatic and political procedures and accountability mechanisms to more legal models and to frameworks that are architecturally better suited to engage with the individual as immediate targets of sanctions.

II Institutional Interplay and Regional Perspectives on UN Sanctions

Part II explores the overall institutional framework and normative setting in which UN sanctions operate. Indeed, UN sanctions are never imposed in isolation. They generally form part of greater legal and policy strategies designed to address a given situation of crisis. This part first examines the conceptualizations of UN and EU sanctions through a state responsibility lens. Moreover, UN sanctions are often applied in parallel with initiatives taken outside UN structures, such as international criminal investigations by the ICC or regional and bilateral sanctions. Therefore, it is imperative to study the interplay between UN sanctions and other responses to crises, as well as the normative interaction between UN sanctions regimes and different areas of law, including EU law, WTO and investment law, and international criminal law (ICL) (Sub-Part A). Subsequently, the broader geographical setting in which UN sanctions operate is explored. In different regions, there may be different approaches to and expectations from the operation and utility of UN sanctions. The Asian, African and European approach are contrasted and as such they also set the scene for part III which zeroes in on a more practical level on questions of implementation (Sub-Part B).

III Sanctions at the Domestic Level

The Security Council is dependent on UN member states for the effective execution and implementation of sanctions. The interaction between the international and national legal orders raises questions of articulation between those orders, be they international and regional or international and domestic. Part III thus examines how sanctions operate and feature at the domestic level. It explores the dynamics that arise when obligations that originate from the rudimentary international legal setting have to be integrated and fine-tuned in more sophisticated domestic legal systems. Concrete questions pertain to the potential and modalities of Security Council review and domestic interpretation of Security Council resolutions, as well as questions of remedies and reparation.  Other queries concern domestic avenues through which private third parties whose rights and interests are negatively affected by the imposition of sanctions may find redress (Sub-Part A). Furthermore, ulterior consequences of sanctions are explored, including extralegal and possible unintended side-effects of sanctions and the sanctions lists. These include the effects of UN sanctions and specifically the listing of armed opposition groups on peace negotiations, the interconnection between UN sanctions and asylum procedures, and the implications of the informal existence and use of sanctions lists. (Sub-Part B).

Prof. dr. Larissa van den Herik (ed.),  Grotius Centre for International Legal Studies, Leiden University, Edward Elgar Publishing ltd

[1] D. Cortright and G. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s, Lynne Rienner Publishers, 2000.

[2] H.E. Roland Dumas, Former French Minister of Foreign Affairs, Conference on Embargoes and international sanctions: Between Legality and Reality, Paris, 1 February 2013.

Photo: Security Council Extends Yemen Sanctions Regime, 24 February 2015 (UN Photo/Mark Garten)

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