Memorandum submitted by the International
Law Group, Clifford Chance
1. International Sanctions have been blamed
over the past year or so for precipitating many wrongs. Sanctions
are blunt instruments, and far from efficient; but much of this
criticism is based on observation of effects, without asking too
critically whether the cause is really the imposition of sanctions,
or results from other factors. Often, this criticism derives from
a misunderstanding of the limited role and purpose of sanctions.
2. The sanctions under review are those
imposed by decision of the United Nations Security Council (UNSC)
responding to a threat to the peace, a breach of the peace or
an act of aggression. In such circumstances the UNSC is bound
to act; and, since at least Iraq's invasion of Kuwait in August
1990, has so acted. Chapter VII of the UN Charter provides the
UNSC with limited measures to maintain or restore international
peace and security. Specifically, the UNSC, acting on behalf of
the international community, can adopt measures not involving
the use of force, under article 41 of the Charter; or, if it decides
that such measures are inadequate, it can resort to armed force,
under article 42 of the Charter.
3. The UNSC has never formally taken the
step of authorising the use of forceful measures under article
42. Instead, under certain circumstances, it has authorised certain
States to use all necessary means to persuade States in breach
of UNSC resolutions to comply.[1]
The use of armed force in the liberation of Kuwait in 1991 unleashed
the inferno when Iraqi forces blew up Kuwait's oil fields in a
unique act of vindictive savagery. Arguably, the use of armed
force (without UNSC authorisation) in FRY (Serbia) accelerated
the commission of crimes against humanity. The use of force to
maintain or restore international peace and security must always
be seen as the very last resort.
4. It is therefore essential that the international
community develop the use of sanctions to be a more effective
instrument of persuading States to cease conduct which threatens
international peace and security. It would be sensible to start
by re-positioning the use of sanctions as they are described in
article 41 of the UN Charter, and not as many still persist in
seeing them.
5. Sanctions are not adopted to inflict
punishment on a State acting unlawfully. The UN Charter is written
on the basis of respect for States, territorial integrity and
sovereignty. The Charter sets out the rules for membership of
the international community represented by its membership. Article
41 allows the UNSC to adopt measures which suspend or confine
the target State's participation as a member of that community.
There is not single measure available to the UNSC. Article 41
allows a wide range of measures to be deployed, all of which have
as their object the partial or total excommunication of
the target State from the international community.
6. A State made the target of article 41
measures remains free to conduct its internal affairs as it desires;
but without drawing on international trade, services or aid. The
target State may find itself isolated by means of interruption
of air and other transport services. The UNSC may even impose
a complete suspension of telecommunications and broadcasting services,
although the United States Congress has long sought to inhibit
the US administration from permitting the use of such measures.
Economists have pointed to one important effect of the imposition
of sanctions, which is to promote increasing self-reliance within
the target State. [2]
7. To some extent, this has happened over
the past nine years since comprehensive economic sanctions were
imposed against Iraq within days of its invasion of Kuwait on
2 August 1990, but the UNSC excluded from these sanctions humanitarian
supplies, so that Iraq was able to buy or receive food and medical
supplies. [3]The
UNSC has taken considerable and effective measures to ensure that
humanitarian supplies have continued to be available to Iraq.
[4]
Initially, it was assumed that the Iraqi authorities would take
up these opportunities. It became increasingly clear that the
regime had a minimal interest in alleviating the plight of its
people; but instead preferred not to distribute the increasing
inward flow of humanitarian supplies.[5]
Thus, as we have seen, the UN Secretary-General had to set up
and maintain the most elaborate means of ensuring the effective
distribution of food and medicines under the "oil-for-food"
programme. [6]These
means, coupled with the transition to self-reliance, have had
a significant effect in improving the nutritional value of the
Iraqi "food-basket", and in improving the availability
of health care. [7]
8. It is thus not the imposition or maintenance
of international sanctions, but the policies of the Iraqi Government
which are the primary cause of this suffering. The Iraqi regime
has cynically exploited sanctions: both to justify its neglect
of its own population and as a tool to solicit external support
for its unreconstructed ambitions. A government which delights
in showing foreign parliamentarians suffering infants, when its
warehouses are overflowing with food and medicines undistributed
for years, surely reveals itself, save to the gullible.
9. Yet there are many who have been taken
in by such conduct. By and large, the UN and the agencies and
NGO's responsible for ensuring the delivery and distribution of
humanitarian supplies in Iraq have not been taken in by Iraqi
propaganda. Successive reports of the UN Secretary-General paint
a bleak and consistent picture of the deliberate failure of the
regime to meet the needs of the Iraqi people. [8]
Only recently, however, a special Panel set up by the UNSC itself
suggested that it was sanctions that were responsible for the
significant deterioration in living conditions in Iraq. The Report
of the Panel dealing with the humanitarian situation in Iraq,
released on 30 March 1999, has attracted considerable attention.
[9]
Its slight appreciation of the real conditions prevailing in Iraq
was exposed four weeks later when the Secretary-General released
the detailed findings based upon the extraordinary efforts made
by many in the UN, its agencies and the NGO community over the
previous six months to improve conditions for most Iraqis despite
official interference with their work. [10]
This was followed by a comprehensive report on the distribution
of humanitarian supplies under the "oil-for-food" programme.
[11]
10. The Panel's 30 March 1999 Report would
have been overtaken by the more substantial studies and reports
which followed were it not for the fact that it contained a set
of recommendations many of which were then adopted by the British
Government, and were put forward as a draft resolution for adoption
by the UNSC. This and subsequent versions of the draft have so
far failed to generate the consensus that is necessary to ensure
adoption. The UNSC, despite its recent ability to agree a resolution
on Kosovo, seems more divided over the Iraqi issue than at any
time since 1990. To a regrettable degree, this seems to derive
from a recent misapprehension on the part of several governments
of the role and purpose of sanctions.
THE FUTURE
OF SANCTIONS
11. It is therefore timely that the Select
Committee on International Development should now be examining
the future of sanctions. This is not the first such review. The
Government of Switzerland initiated a very thorough study of sanctions
in early 1998, concentrating in particular on financial sanctions.
This became known as the "Interlaken process", after
meetings were convened there between diplomats, officials and
experts in February 1998 and March 1999, when its work was concluded.
Its second detailed report has recently been published, and a
comprehensive archive of related materials has been established
for general access by Internet. [12]
12. Interlaken has demonstrated a number
of weaknesses in the deployment of sanctions. Its Working Parties
pointed to the need for improvements in three areas: (1) the need
for more widespread enactment of national laws to enable UNSC
resolutions, when adopted, to be given effect within national
systems; (2) the use by the UNSC of language which was clearly
understood by those most directly affected by the required measures,
eg banks and banking regulators; and (3) greater understanding
and consistency in national administration and enforcement of
sanctions.
13. On the first of these points, Interlaken
has recommended the use of a "model" law, based on the
United Kingdom's United Nations Act 1946, which allows the rapid
translation of a UNSC resolution into national law, as UN members
are bound to do. It is remarkable how few States have equipped
themselves with this basic "tool" of UN membership;
and thus find themselves in constitutional difficulty in giving
effect to their international obligations. The European Union
has tried to paper over some of these difficulties on behalf of
its members, by developing a practice based on the adoption of
a "Common Position", leading to a Council Regulation
having direct effect in Member States. Even so, EU Member States
are finding that there is no substitute for basic national legislation.
14. This seems to have been misunderstood
by the House of Commons Select Committee on Foreign Affairs, in
its Report on Sierra Leone. There, the Committee recommended amendment
of United Kingdom legislation so as to postpone implementation
of binding UNSC resolutions into domestic law. [13]
The issues which that Committee was reviewing were, it is suggested,
very different, and do not indicate any need to amend the United
Nations Act 1946, which remains a model of what all UN members
should have enacted on first assuming membership.
15. The result of the Interlaken process
has been to "raise the level of confidence on the feasibility
of Security Council imposed financial sanctions regimes".[14]
Ambassador Jeker went on to note that, whereas targeted financial
sanctions may not be sufficient to guarantee target compliance,
"such sanctions regimes must be intergrated into an overall
strategy aimed to induce political change, and could be most successful
when combined with other measures."
16. The real significance of financial sanctions
lies in their ability to target financial dealings of specified
entities or individuals remote from the target State. Financial
institutions operate sophisticated systems, capable of identifying
transactions on behalf of identified targets. They are thus largely
self-policing, provided that the sanctions have been defined with
sufficient clarity. Banks owe contractual obligations to their
customers; and there must be a clear prevailing legal requirement
to breach those obligations if their customers are targeted. Effective
financial sanctions will deprive a targeted government of access
to external resources, without the need for elaborate and expensive
physical policing and interdiction forces. They are thus more
palatable, politically.
17. Excommunication of a target State will
usually involve partial or total cutting of transport links. Air
transport services ought generally to be capable of remote monitoring,
assuming international willingness to co-operate for that purpose.
The policing of maritime commerce can focus more precisely on
port access; but is very costly to sustain. Land links are inevitably
harder to sever, or even to monitor, at least without a significant
policing presence. The fact that the target State is a threat
to international peace and security may demand such a presence
in any event. Nevertheless, to a very considerable extent, policing
of sanctions can be undertaken remotely, subject to a sufficient
level of mutual assistance. Whereas the modern banking systems
can apply effective controls to the use of modern software, sharing
of intelligence between governments appears still to be rudimentary.
18. Remote policing avoids a number of the
more unacceptable aspects of making international sanctions regimes
effective. Initially, sanctions against Iraq and FRY (Serbia and
Montenegro) depended on maintaining a significant physical presence
by sea and land. It evoked the 19th Century blockade, traditionally
seen by international lawyers as an act of war. Wartime legislation
such as the Trading with the Enemy Act 1914 still has its echoes
in national measures, in particular in the United States. This
confuses the international purpose which is to end the threat
by containment, with national policies deliberately aimed at subverting
specific targets. The latter elements cause understandable concern
to those involved in humanitarian work. It would be a mistake,
however, to hobble international sanctions by transferring those
concerns from the national to the international plane. The international
community has no alternative to the use of force or inaction.
Thus, the search for more effective means of giving effect to
article 41 measures remains essential.
Jeremy P Carver, CBE
Partner, Head of International Law
15 July 1999
1 S/RES/665 (25 August 1990); S/RES/670 (25 September
1990); S/RES/678 (29 November 1990). Back
2
Hufbauer, Schott and Elliott, Economic Sanctions Reconsidered,
2nd ed., 1990, pp.71-72. Back
3
S/RES/661 (6 August 1990); S/RES/687 (8 April 1991). Back
4
Reports of the Secretary-General pursuant to UN Resolutions 986
(1995), 1111 (1997), 1143 (1997), 1153 (1998), 1210 (1998); S/1998/90
(1 February 1998); S/1999/481 (28 April 1999). Back
5
S/1999/187 (22 February 1999). Back
6
S/RES/986 (14 April 1995). Back
7
S/1999/481 (28 April 1999). Back
8
The UN Secretary-General provides regular reports to the Security
Council on Iraqi matters. Back
9
S/1999/356 (30 March 1999), pp 30-53. Back
10
Review and Assessment of the Implementation of the Humanitarian
Programme, see note 7 above. Back
11
S/1999/573 (18 May 1999). Back
12
<http://www.smartsanctions.ch> Back
13
Second Report-Sierra Leone, HC 293, 9 February 1999, para 15
and recommendation (3). Back
14
Chairman's Report of Findings from the 2nd Interlaken Seminar,
paras 32 and 34. Back
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