<%-- Page Title--%> Law opinion <%-- End Page Title--%>

November 28, 2004

UN sanctions & International Law

Kamrul Hossain

The UN sanctions are imposed by virtue of use of Chapter VII mechanism of the Charter. Article 39 of the Charter allows the Security Council to take measures such as sanctions only to "maintain or restore international peace and security" following its determination that there exists a threat to or breach of the peace, or an act of aggression. Article 41 provides measures not involving use of force, which includes economic sanctions by imposing trade restrictions, financial restrictions, restrictions on communication by means of air, sea, road, and so on. Sanctions such as this may also invoke break up of diplomatic tie, and communication on cultural movements. Thus, sanctions may be imposed upon a government, "quasi-government" or other entity that is capable of being a threat to international peace and security or that is in fact threatening international peace and security. Recently, sanctions are being imposed on private individuals too who, in the opinion of the Security Council may pose a threat to international peace and security, such as international terrorists. While armed groups within a country may pose a threat to international peace and security, a generally unarmed civilian population is, in all likelihood, unable to pose such a threat. Moreover, the other States not presenting a threat to, or actually breaching, peace and security are also the subjects of the adverse effect of sanctions. Thus, the compatibility of sanctions with international law has been a significant issue held by the scholars of international law.

The Charter of the UN restricts by its article 1(1) that measures undertaken must be "effective" and must be "in conformity with the principles of justice and international law." That means sanctions must be evaluated to ensure that they are not unjust or that they do not in anyway violate principles of international law stemming from sources "outside" the Charter. Article 24 requires the Security Council to "act in accordance with the Purposes and Principles of the United Nations." The Purposes include: respect for the principle of equal rights and the self-determination of peoples, promoting and encouraging human rights, facilitating the harmonization of national or international action. Article 55 of the Charter states that the United Nations promote: higher standard of living and social progress; solutions to international economic, social, health and other problems; and respect for and observance of human rights. Thus, sanctions that cause international dissention, that unduly affect people's right to self-determination, cause humanitarian problem, directly or indirectly cause death of the innocent civilian population, and violate other human rights norms are not justified by the Charter. Apart from the Charter provisions, there also exists obligation under other body of international law, for example, the two International Covenants on Human Rights, Universal Declaration of Human Rights, Convention on the Rights of the Child, Declaration of the Principles of International Cultural Cooperation, Standard Minimum Rules for the Treatment of Prisoners. There are also General Assembly resolutions that must also be taken into consideration regarding sanctions. They include: Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations; Charter of Economic Rights and Duties of States (Economic Charter); Permanent sovereignty over natural resources; Universal Declaration on the Eradication of Hunger and Malnutrition.

Any sanctions regime, imposed during a war or as a consequence of a war, is governed by humanitarian law. Under humanitarian law the civilian population must be protected from war and its consequences as much as possible. Therefore, sanctions should also be in consistence with the norms of humanitarian law. The Hague Convention and Regulations of 1907 contain a number of provisions that are substantially relevant to the sanctions regime. For example, the Martens Clause (eight preambular paragraph, restated in the Geneva Conventions of 1949 and Additional Protocol I thereto) mandates that all situations arising from war be governed by principles of law of civilized nations, principles of harmony, and dictates of the public conscience. The four Geneva Conventions of 1949 and the two additional protocols set out many provisions relevant to the imposition of sanction. For example, the free passage of medical provisions and objects necessary for religious worship, protection of objects indispensable to the survival of the civilian population, relief actions for the benefit of the civilian and so on. The General Assembly has also passed many resolutions relating to the protection of persons in times of armed conflict, for example, General Assembly Resolution, 3318 (XXIX), of December 1947, on the Declaration on the Protection of Women and Children in Emergency and Armed Conflict.

It is, however, the responsibility of the Sanctions Committees that sanctions may not target civilians who are uninvolved with the threat to peace or international security. Sanctions Committees may also ensure that the free flow of humanitarian goods under the Geneva Conventions and other provisions of humanitarian law are not subject to sanctions regime. Sanctions Committee may also observe whether the sanctions are free from protest arising from violations of the "principles of humanity and the dictates of the public conscience." The emergence of so-called "smart sanctions" to a great extent relieves the sufferings of the general population, but the fundamental human rights of individuals under the national constitution are being subjected to infringement. It has created further criticism. The Sanctions Committee therefore faces a challenge in sanctions management especially with regard to the targeted sanctions to reach the private individuals that has to be use in more pragmatic manner.

The author is a research fellow, International Law, University of Helsinki.