Domestic Implementation of Security Council Decisions on Sanctions: A comparative Approach
A Project conducted by the Graduate School of International Studies
February 1999

A. BACKGROUND

The purpose of the project is to provide an in-depth study of the theoretical and practical problems posed by the domestic implementation of Security Council sanctions adopted under Chapter VII of the Charter, excluding the use of force, and the significance of such collective action for the development of contemporary public international law. More particularly, it aims at shedding light on the manner in which such domestic implementation of mandatory decisions by international institutions has impacted on the traditional relationship between international law and municipal law, thereby creating the need for new approaches.

A comparative study of domestic implementation in select States in Europe, Eastern Europe, America, Asia, the Middle East and Africa will be undertaken by 17 experts. It will include a special focus on the regional dimension (interface with the European Communities), and an analysis of the particular problems facing non-member states and states neighbouring sanctioned countries.

Sanctions though adopted on the basis of a political decision by a political body have far-reaching legal and policy implications not only for sanctioned states but also for implementing states. Anxious to ensure there will be no loopholes in the system, the Security Council has dispensed no State from implementation of these measures. States are therefore faced with difficult problems of domestic implementation of what are effectively treaty obligations entailing, in most cases, adaptation of internal law. Only a handful of States at present have the necessary enabling legislation to automatically comply with UN Security Council decisions. Others continue to resort to all kinds of ad hoc bases for such measures ranging from governmental decrees to various trade and emergency laws. The issue has been made more complex for European implementing states by the interposition of European Community legislation. Yet these measures affect private rights such as contracts, they require control of the activities of private parties, which may be at variance with the constitutional or general legal order of the member state concerned. A number of sanctions cases have appeared in domestic courts, which has also raised the question of the extent to which such domestic courts can interpret and eventually control the legality of Security Council decisions. In short, the particular problems posed to the domestic system by decisions of international organizations are: the inadequacy of domestic legal bases, constitutional barriers such as separation of powers, absence of uniform interpretation of Council resolutions, the role of national courts and interface with regional implementing bodies.

A second related issue is that collective sanctions result in major disruption to trading patterns involving sometimes economic and financial losses far greater than those faced by the targeted State itself, yet neighboring States or significant trading partners of the target States find that they cannot invoke economic necessity or force majeure. As a result, large numbers of countries have been concerned with the question of assistance to them for losses suffered as a result of sanctions imposition and this has been an important item which the Secretary-General has highlighted in his Agenda for Peace.

Finally, the Security Council has not hesitated to call on non-member States to cooperate, which has raised important policy questions for Switzerland which has had to find a domestic legal basis for the adoption of sanctions, or to allow it to cooperate with the international tribunals on Yugoslavia and Rwanda.

The revival of the powers of the Security Council has obviously elicited a large number of studies. Some of these are serious academic studies, others are policy -oriented approaches, particulary within the framework of UN reform schemes, or piecemeal analyses of particular crises. Contributions relating to Chapter VII have centered in particular with analyses of the legality of sanctions within the Charter framework, or of their effectiveness on target States. Particular national studies have been made on domestic implementation but in a piece-meal fashion - for example for the Netherlands (for Rhodesian sanctions), US (mainly concerning unilateral measures) or Finland. As for State reports to the United Nations on domestic implementation, these fail to give an over-all picture of the process. In short, a comparative approach to this topic and to the complex questions posed to government officials and bureaucrats in their day-to-day operations of incorporation of international decisions into domestic law has not been undertaken. Nor has any serious study been made of the interface between the European Union, its member states and the United Nations.

In conclusion, such a study would fill a major lacunae in the literature; it would render a great service to academics in the teaching of international organization and public international law in general; it would be highly relevant to those working within government and international organization in its policy implications; it would assist law practioners involved in dispute resolution related to sanctions implementation; it would provide a guide to those involved in day-to-day decision-making and implementation of UN decisions.

The 15 studies are grouped around four main issues: 1)A comparative approach of national implementation in Belgium, Finland, France, Germany, Japan, the Netherlands, Sweden, United Kingdom, and United States; 2) The interface by a regional organisation- the EU; 3) Implementation by a non-member State - Switzerland, and 4) Problems arising from implementation by the so-called AArticle 50 states@, neighbouring sanctioned States in Africa, Eastern Europe and the Middle East. There will also be an introductory theoretical chapter on the relationship between international and domestic law, as well as a concluding study that will draw on the results and recommendations reached by each national study.

The final results of the research will appear in book format and a number of publishers have already expressed their unreserved interest.

B. ORGANISATION, FUNDING AND FORMAT OF FINAL PUBLICATION

The research project directed by Professor Vera Gowlland-Debbas is conducted from 1 December 1998 to 1 May 2000. It is administered by the Graduate Institute=s Programme for the Study of International Organisation(s) (PSIO) headed by Dr. Daniel Warner. The funding of over US$ 200'000 comes from the Thyssen Foundation (which has contributed half the required sum), the Swiss Federal Departments of Foreign Affairs and Defense, United Nations University, and the Tokyo Club.

A meeting of participants in Geneva in June 1999 to discuss first drafts will be linked in to a Colloquium entitled AUnited Nations Sanctions and International Law@ which will be held from 23-25 June 1999. This meeting will be attended by high-level experts and representatives from the United Nations, diplomats, Judges from the International Court of Justice, Members of the International Law Commission , as well as academics.

C. CONTENT AND CONTRIBUTORS

Theoretical chapter and final conclusions:

Professor Vera GOWLLAND-DEBBAS, Graduate Institute of International Studies, Geneva, Switzerland.

Comparative national studies:

Belgium:
Professor Erik SUY, Law Faculty, University of Leuven, Belgium
Dr.N. Angelet, Law Faculty, University of Leuven, Belgium

France:
Professor Geneviève BURDEAU, Université de Paris 1, Panthéon-Sorbonne, Paris, France.
Professor Brigitte STERN, Université de Paris 1, Panthéon-Sorbonne, Paris, France.

Germany:
Professor Jochen Abr. FROWEIN, Director, Max-Planck-Institut für ausländisches Recht und Völkerrecht, University of Heidelberg, Germany

Finland:
Professor Martti KOSKENNIEMI, Department of Public Law, University of Helsinki, Finland

Sweden:
Professor Ove BRING, Uppsala University, Uppsala, Sweden and Legal Adviser to the Swedish Ministry for Foreign Affairs.

United Kingdom:
Dr. Daniel BETHLEHEM, Deputy Director, Cambridge Research Center for International Law and Cambridge University, United Kingdom
Professor Christopher GREENWOOD, London School of Economics, London, United Kingdom

United States:
Professor Andreas F. LOWENFELD, New York University, New York, USA

The Netherlands:
Professor A. SOONS, University of Utrecht, the Netherlands

Japan:
Ambassador Hisashi OWADA, President, Japan Institute of International Affairs, Tokyo, Japan

Regional Implementation (The European Union):

Dr. Daniel BETHLEHEM, Deputy Director, Cambridge Research Center for International Law, and Cambridge University, United Kingdom.
Professor Christopher GREENWOOD, London School of Economics, London, United Kingdom

Non-Member State of the United Nations (Switzerland):

Professor D. THÜRER, University of Zurich, Switzerland

Countries Affected by Sanctions Implementation: For Sanctions against Former Yugoslavia:
Docent Wladyslaw CZAPLINSKI, Fellow, the Institute of International Law, Polish Academy of Sciences, Warsaw, Poland.

For Sanctions against Iraq:
Mr. Adnan AMKHAN, Faculty of Law, Edinburgh University
Mr. Bisher H. KHASAWNEH, Counsellor, Embassy of the Hashemite Kingdom of Jordan, Egypt

For Sanctions against Southern Rhodesia and South Africa:
Dr. Tunguru HUARAKA, Special Advisor to the Minister, Ministry of Justice, Namibia

D. FRAMEWORK FOR NATIONAL STUDIES In order to ensure cohesiveness as well as a comprehensive approach each country study will revolve around the following issues:

I. Legal basis of domestic measures implementing economic sanctions:

1. Constitutional basis
2. Prior enabling legislation
3. Ex post facto legislation, executive orders or decrees
4. Other, such as emergency powers, foreign trade laws

II. Legal basis of domestic measures based on regional organization decision (where applicable):

1. Legal basis for exercise of European Union competence
2. Limits to such exercise
3. Interplay between European Union and domestic legislation in sanctions implementation

III. Comparison of content of Security Council resolutions and domestic measures:

1. Scope of import and export prohibitions
   • Prohibited items
   • Transfer of funds and freezing of assets
   • Services
2. Personal and extraterritorial scope
3. Entry into force
4. Provisions relating to existing contracts
5. Provisions for humanitarian exceptions
6. Provisions for penal sanctions

IV. Domestic procedures for implementation and enforcement:

1. Coordination between different ministerial activities
2. Role of central banks
3. Procedures relating to sanctions violations
4. Prosecution of sanctions violators
5. Problems raised by extraterritorial enforcement
6. Question of compensation
7. Problem of embargo at sea

V. Role of National Courts:

1. Resolution of conflicts between domestic and international obligations
2. Adjudication of disputes relating to execution of contracts or ownership of goods
3. Interpretation of Security Council resolutions and, where applicable, European Community decisions

VI. Constitutional issues raised for States by sanctions implementation:

1. Human rights issues such as freedom of movement, freedom of information, protection of acquired rights
2. Issues arising from the establishment of a war crimes tribunal: Legal assistance, extradition, conflict with domestic criminal law provisions

VII. Interface between domestic and international implementation:

1. Reporting to the United Nations: frequency, comprehensiveness
2. Issues arising from interface between member states and UN Sanctions Committees

VIII. Special problems posed where relevant:

1. Domestic legal basis in the absence of a mandatory decision of the international organization relating to economic sanctions and cooperation with the international criminal tribunals: the case of Switzerland
2. Requests for economic and financial assistance arising from sanctions implementation for neighbouring or otherwise affected States: for example, Hungary and Poland (for sanctions against Bosnia), Jordan (for sanctions against Iraq), Zambia and Botswana (for sanctions against Southern Rhodesia).