An integrated sanctions implementation mechanism for states

Most public or corporate officers with responsibilities to implement and comply with UN and other sanctions will seek to mobilize available implementation resources in the most rational and efficient manner. The coordination of sanctions implementation across all government branches is an even more urgent requirement as it relates to the extraordinary complexities of the UN’s current proliferation sanctions. Their biggest challenge is the need to divine the practical implementation and compliance obligations in sanctions resolutions that provide succinct, but elementary operative paragraphs without any or little guidance for their practical implementation. By virtue of its UN membership obligations, a state must be ready to implement UN sanctions adopted under Chapter VII of the UN Charter, regardless of the imprecision of their provisions.

Most states require a number of prerequisite constitutional, legal and regulatory instruments to enable the implementation of UN sanctions. Addressing this requirement as part of the Interlaken and Bonn-Berlin Processes two legal frameworks were discussed.

The experts of the Bonn-Berlin Process observed two basic models of national laws to implement arms embargoes:

  • One builds upon special UN laws. Under such laws, UN sanctions immediately become national law;
  • The other legal approach builds upon national arms export laws. Under such laws, all exports of weapons and regulated types of dual-used goods need to be licensed. The moment the Security Council decides to apply an arms embargo, Member States can stop issuing licenses to the targeted country and revoke existing licenses, if necessary.

The official Handbook to the Interlaken Process, observing that while its Model Law is not necessarily a “one size fits all” approach, participating experts concluded that it is the “preferred means to give effect to the intentions of the Security Council as it expedites implementation and achieves uniformity across national systems to the greatest extent possible”.

The Interlaken II Model Law

Article 1    Power to issue national measures

If, under Article 41 of the Charter of the United Nations, the Security Council of the United Nations calls upon [the State] to apply measures to give effect to a decision taken under that Article, then in accordance with [the State]’s obligations under Article 25 of the Charter the [relevant authority] shall forthwith adopt such [national measures] as appears necessary or expedient to implement such measures effectively.

Article 2      Nonliability for compliance

The [national measures] shall apply to transactions entered into prior to, as well as after, the [national measures] coming into force, unless expressly stated otherwise; and compliance with the [national measures] (or with the legislation of another State adopted pursuant to the same resolution of the Security Council) shall be a complete defense to any claim for nonperformance of any such transaction.

Article 3     Scope of national measures

The [national measures] made under paragraph 1 shall apply within the territory of [the State] and to all nationals of and entities incorporated in or organized in accordance with the laws of [the State], wherever located or operating.

Article 4     Penalties

Contravention or evasion of the [national measures] shall be an offence, subject to the penalties specified in the [national measures]. Such penalties shall be effective, dissuasive and proportionate, and may include the forfeiture of any property, documents or funds deriving from, used or dealt with in connection with the contravention or evasion.

Article 5   Legislative supremacy

[National measures] made in accordance with this law shall have effect notwithstanding the provisions of any other law.