Select Committee on International Development Minutes of Evidence

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.


  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   <> 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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