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United Nations Sanctions and the Rule of Law

The United Nations Security Council has increasingly resorted to

sanctions as part of its efforts to prevent and resolve conflict.
United Nations Sanctions and the Rule of Law traces the evolution of
the Security Council’s sanctions powers and charts the contours
of the UN sanctions system. It also evaluates the extent to which
the Security Council’s increasing commitment to strengthening
the rule of law extends to its sanctions practice. It identifies
shortcomings in respect of key rule of law principles and
advances pragmatic policy-reform proposals designed to ensure
that UN sanctions promote, strengthen and reinforce the rule of
law. In its appendices, United Nations Sanctions and the Rule of Law
contains summaries of all twenty-five UN sanctions regimes
established to date by the Security Council. It forms an invaluable
source of reference for diplomats, policy-makers, scholars and
advocates.

J E R E M Y M A T A M F A R R A L L is a Research Fellow at the Centre for

International Governance and Justice, in the Regulatory

Institutions Network at the Australian National University. He
worked for the United Nations from 2001 to 2006, serving as a
political officer in the UN Security Council in New York, on the
UN Secretary-General’s Mission of Good Offices in Cyprus and
with the UN Mission in Liberia. He received his Ph.D. in
International Law from the University of Tasmania Faculty of
Law, where he has also worked as a Postdoctoral Research Fellow.
CAMBRIDGE STUDIES IN INTERNATIONAL AND COMPARATIVE LAW

Established in 1946, this series produces high-quality scholarship in the fields

of public and private international law and comparative law. Although these
are distinct legal sub-disciplines, developments since 1946 confirm their
interrelation.
Comparative law is increasingly used as a tool in the making of law at
national, regional and international levels. Private international law is now
often affected by international conventions, and the issues faced by classical
conflicts rules are frequently dealt with by substantive harmonisation of law
under international auspices. Mixed international arbitrations, especially those
involving state economic activity, raise mixed questions of public and private
international law, while in many fields (such as the protection of human rights
and democratic standards, investment guarantees and international criminal
law) international and national systems interact. National constitutional
arrangements relating to ‘foreign affairs’, and to the implementation of
international norms, are a focus of attention.
The Board welcomes works of a theoretical or interdisciplinary character,
and those focusing on the new approaches to international or comparative law
or conflicts of law. Studies of particular institutions or problems are equally
welcome, as are translations of the best work published in other languages.

General Editors James Crawford SC FBA

Whewell Professor of International Law, Faculty of Law, and
Director, Lauterpacht Research Centre for International Law,
University of Cambridge
John S. Bell FBA
Professor of Law, Faculty of Law, University of Cambridge
Editorial Board Professor Hilary Charlesworth Australian National University
Professor Lori Damrosch Columbia University Law School
Professor John Dugard Universiteit Leiden
Professor Mary-Ann Glendon Harvard Law School
Professor Christopher Greenwood London School of Economics
Professor David Johnston University of Edinburgh
Professor Hein Kötz Max-Planck-Institut, Hamburg
Professor Donald McRae University of Ottawa
Professor Onuma Yasuaki University of Tokyo
Professor Reinhard Zimmermann Universität Regensburg
Advisory Committee Professor D. W. Bowett QC
Judge Rosalyn Higgins QC
Professor J. A. Jolowicz QC
Professor Sir Elihu Lauterpacht CBE QC
Professor Kurt Lipstein
Judge Stephen Schwebel

A list of books in the series can be found at the end of this volume.
United Nations Sanctions
and the Rule of Law

by
Jeremy Matam Farrall
CAMBRIDGE UNIVERSITY PRESS
Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo

Cambridge University Press

The Edinburgh Building, Cambridge CB2 8RU, UK
Published in the United States of America by Cambridge University Press, New York
www.cambridge.org
Information on this title: www.cambridge.org/9780521878029

© Jeremy Matam Farrall 2007

This publication is in copyright. Subject to statutory exception and to the provision of

relevant collective licensing agreements, no reproduction of any part may take place
without the written permission of Cambridge University Press.
First published in print format 2007

ISBN-13 978-0-511-37729-7 eBook (EBL)

ISBN-13 978-0-521-87802-9 hardback

Cambridge University Press has no responsibility for the persistence or accuracy of urls
for external or third-party internet websites referred to in this publication, and does not
guarantee that any content on such websites is, or will remain, accurate or appropriate.
Contents

Preface page xix

Abbreviations xxii

Part I Setting the scene 1

1 Introducing UN sanctions 3
2 Towards a pragmatic rule of law model for UN
sanctions 14

Part II The evolution of the UN sanctions

framework 43
3 From Aegina to Abyssinia: a prehistory of UN
sanctions 45
4 Sanctions under the UN Charter 58

Part III UN sanctions in practice 79

5 Establishing the legal basis for sanctions:
identifying threats and invoking Chapter VII 81
6 Delineating the scope of sanctions and
identifying targets 106
7 Fine-tuning sanctions: setting objectives,
applying time-limits and minimising
negative consequences 133
8 Delegating responsibility for sanctions
administration and monitoring 146

v
vi CONTENTS

Part IV Strengthening the rule of law 183

9 Rule of law weaknesses in the UN sanctions system 185
10 Strengthening the rule of law performance of
the UN sanctions system 230
11 Concluding remarks 241
Appendix 1: Summary of policy recommendations 244
Appendix 2: Summaries of UN sanctions regimes 247
Appendix 3: Tables 464

Bibliography 493
Index 524
Extended table of contents

Preface page xix

Abbreviations xxii

Part I Setting the scene 1

1 Introducing UN sanctions 3
1. Defining UN sanctions 6
2. Central contention and key objectives 10
3. The path ahead 11
2 Towards a pragmatic rule of law model for UN
sanctions 14
1. The relevance of the rule of law to the
UN Security Council’s activities 15
1.1 The Council’s close relationship with and
reliance upon law 16
1.2 The increasing emphasis upon the rule of law
in Security Council practice 18
2. The promise and perils of the rule of law 24
2.1 The scholarly crisis concerning the rule of law 26
2.2 Salvaging the rule of law from scholarly crisis 30
3. Towards a pragmatic rule of law model for UN sanctions 32
3.1 The rule of law through the eyes of the Security
Council 32
3.2 The rule of law through the eyes of the
UN Secretary-General 35
3.3 Scholarly explorations of the relationship between
the Security Council and the rule of law 36
3.4 Constructing a pragmatic rule of law model for
sanctions decision-making 39
i. Transparency 40

vii
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viii EXTENDED TABLE OF CONTENTS

ii. Consistency 41
iii. Equality 41
iv. Due process 41
v. Proportionality 41
3.5 A framework for subsequent analysis 42

Part II The evolution of the UN sanctions

framework 43
3 From Aegina to Abyssinia: a prehistory of UN sanctions 45
1. Sanctions in ancient and medieval times 45
2. Sanctions under classic international law 47
2.1 Retorsion 48
2.2 Reprisals 49
2.3 Pacific blockade 50
2.4 The possibilities and limitations of
pre-twentieth-century sanctions 51
3. Sanctions under the League of Nations system 52
3.1 The League of Nations sanctions provision 53
3.2 The League of Nations sanctions experiment
against Italy 54
4. Learning from the League’s experience 56
4 Sanctions under the UN Charter 58
1. A fresh approach to collective security 58
1.1 An incentive for the great powers: the veto 59
1.2 Incentives for lesser powers: the UN purposes
and principles 60
1.3 The UN’s principal organs 61
2. The UN Security Council’s sanctions powers 62
2.1 The sanctions trigger: Article 39 63
2.2 The UN Charter’s sanctions provision: Article 41 64
2.3 Other sanctions-related Chapter VII provisions:
Articles 48 and 50 65
2.4 The binding character of Article 41 sanctions 65
3. The question of the limits upon the Security Council’s
sanctions powers 68
3.1 Potential Charter-based limits on the Council’s
sanctions powers 68
3.2 Peremptory norms as a potential limit upon the
Council’s sanctions powers 71
3.3 The possibility of judicial review of Security
Council sanctions 73
3.4 The Security Council’s enduring power 75
 EXTENDED TABLE OF CONTENTS ix

4. The Charter’s implementation lacuna and the organic

evolution of the UN sanctions system 76

Part III UN sanctions in practice 79

5 Establishing the legal basis for sanctions: identifying
threats and invoking Chapter VII 81
1. Determining the existence of a threat to the peace,
breach of the peace or act of aggression 82
1.1 Must the Security Council make a determination
under Article 39 before applying sanctions? 82
1.2 Threats to the peace 85
i. Threats with a clear international dimension 86
(a) States with an aggressive history and the
potential to possess or produce weapons
of mass destruction 86
(b) International terrorism 87
(c) International conflict 90
(d) Interference 91
ii. Threats arising from internal crisis 92
(a) The denial of the right to self-determination
by a racist minority regime 92
(b) Apartheid 94
(c) General civil war 95
(d) Seizure of power from a democratically
elected government 97
(e) The use or threat of military force by rebel
groups against a government 98
(f) Serious humanitarian crises 100
(g) The violation of a minority’s fundamental
rights 101
1.3 Breaches of the peace 102
1.4 Acts of aggression 103
2. Invoking Article 41 and Chapter VII of the Charter 105
6 Delineating the scope of sanctions and identifying
targets 106
1. The many types of UN sanctions 106
1.1 Economic and financial sanctions 107
i. Comprehensive economic sanctions 107
(a) Humanitarian exemptions from
comprehensive sanctions 108
(b) Other exemptions from comprehensive
sanctions 109
x EXTENDED TABLE OF CONTENTS

ii. Particular economic sanctions 110

(a) Arms sanctions 110
(b) Sanctions against weapons of mass destruction 114
(c) Petroleum sanctions 116
(d) Sanctions on asbestos, iron ore, sugar, leather,
chrome, pig-iron, tobacco, copper, meat and
meat products 117
(e) Sanctions against trade in forms of transport:
aircraft, vehicle and watercraft sanctions 117
(f) Diamond sanctions 118
(g) Chemical sanctions 119
(h) Timber sanctions 119
(i) Luxury goods sanctions 119
iii. Financial sanctions 120
1.2 Non-economic sanctions 123
i. Diplomatic and representative sanctions 123
ii. Transportation sanctions 124
iii. Travel sanctions 124
iv. Aviation sanctions 126
v. Sporting, cultural and scientific
sanctions 127
vi. Telecommunications sanctions 128
2. Identifying targets 128
2.1 Single state targets 129
2.2 Multiple state targets 129
2.3 De facto state targets 129
2.4 Failed state targets 130
2.5 Sub-state targets 130
2.6 Extra-state targets 131
2.7 Individuals as targets 131
7 Fine-tuning sanctions: setting objectives, applying
time-limits and minimising negative consequences 133
1. Setting sanctions objectives 133
1.1 Ending a rebellion, invasion or external interference 134
1.2 Restoring a legitimate and/or democratically elected
government to power 135
1.3 Facilitating the exercise or protection of
human rights 135
1.4 Bringing about disarmament or arms control 136
1.5 Facilitating the establishment and consolidation
of peace 136
1.6 Addressing international terrorism 137
1.7 Promoting good governance 138
 EXTENDED TABLE OF CONTENTS xi

2. Defining the temporal application of sanctions 139

2.1 Time-delays 139
2.2 Time-limits 140
3. Addressing the unintended consequences of sanctions 141
3.1 Security Council action to address the humanitarian
impact of sanctions upon civilian populations 141
i. The exemptions process 141
ii. Smart sanctions 143
iii. Humanitarian impact assessment 143
3.2 Security Council action to address the impact of
sanctions upon third states 144
8 Delegating responsibility for sanctions
administration and monitoring 146
1. Sanctions committees 147
1.1 Composition 147
1.2 Mandates 148
i. Reporting activities 149
ii. The administration of exemptions 150
iii. Considering requests for special assistance
under Article 50 151
iv. Sanctions monitoring 151
v. Improving sanctions implementation 152
vi. Liaising with other subsidiary organs 153
vii. Refining working methods 154
viii. Administering lists for targeted sanctions 155
ix. Considering the humanitarian impact of sanctions 155
1.3 Working methods 156
2. The Security Council Working Group on Sanctions 157
3. Disarmament commissions and commissions of inquiry 157
3.1 The Iraq Commissions: UNCC, UNSCOM, UNMOVIC 158
3.2 The International Commission of Inquiry on Rwanda 160
3.3 The Sudan International Commission of Inquiry 163
3.4 The Hariri International Independent Investigation
Commission 163
4. Bodies of experts: groups, committees, teams and
panels of experts 163
4.1 The Group of Experts on the Iraq sanctions regime 164
4.2 Ad hoc Panels on the Iraq sanctions regime 164
4.3 The Panel of Experts on UNITA sanctions 165
4.4 The Panel of Experts on the Sierra Leone
sanctions regime 166
4.5 The Afghanistan/Taliban/Al Qaida Committee
of Experts 167
xii EXTENDED TABLE OF CONTENTS

4.6 The 1343 Liberia Panel of Experts 168

4.7 The Team and Panel of Experts on Somalia 170
4.8 The 1521 Liberia Panel of Experts 171
4.9 The DRC Group of Experts 172
4.10 The Sudan Panel of Experts 173
4.11 The Côte d’Ivoire Group of Experts 173
5. Monitoring bodies 174
5.1 The Iraq Export/Import Monitoring Mechanism 174
5.2 The UNITA Monitoring Mechanism 176
5.3 The Taliban and Al Qaida Monitoring Mechanism 176
5.4 The Taliban and Al Qaida Monitoring Team 177
5.5 The Somalia Monitoring Group 179
6. United Nations peacekeeping operations 180

Part IV Strengthening the rule of law 183

9 Rule of law weaknesses in the UN sanctions system 185
1. Behind closed doors: the problem of transparency 185
1.1 Transparency in the Security Council’s
decision-making process 186
1.2 Transparency in Security Council decisions 189
i. Determination of threats to the peace 190
ii. Invoking the Charter basis for applying sanctions 195
iii. Articulating sanctions objectives 196
(a) Establishing peace and stability 196
(b) Securing the future and ongoing verification
of disarmament 197
(c) Ensuring that a target stops supporting
terrorism 198
1.3 Transparency in sanctions committees 202
2. A less than constant practice: the problem of consistency 205
2.1 Consistency and the objectives of sanctions regimes 206
2.2 Consistency and the scope of sanctions 207
2.3 Consistency and the Security Council’s use of
subsidiary bodies 210
i. The establishment of sanctions committees 210
ii. Commissions of inquiry, bodies of experts
and monitoring mechanisms 211
3. First among equals: the veto and the problem of equality 211
3.1 Equality as equal treatment 212
3.2 Equality as equal representation 213
4. Guilty until proven innocent? The problem of due process 217
4.1 Due process and states targets 217
 EXTENDED TABLE OF CONTENTS xiii

4.2 Due process and non-state targets 219

4.3 Due process and individuals 219
5. A disproportionate burden: civilian
populations and third states 223
5.1 Proportionality and civilian populations: minimising
the humanitarian impact of sanctions 224
5.2 Proportionality and individual targets 228
5.3 Proportionality and third states 228
10 Strengthening the rule of law performance
of the UN sanctions system 230
1. Increasing transparency 230
2. Improving consistency 232
3. Promoting equality 234
4. Providing due process 236
5. Ensuring proportionality 239
11 Concluding remarks 241

Appendix 1: Summary of policy recommendations 244

1. Increasing transparency 244
2. Improving consistency 245
3. Promoting equality 245
4. Providing due process 245
5. Ensuring proportionality 246

Appendix 2: Summaries of UN sanctions regimes 247

1. The 232 Southern Rhodesia sanctions regime 247
1. Constitutional basis 248
2. Objectives 249
3. Scope 249
4. Administration and monitoring 251
5. Termination 253
6. Conclusions 253
2. The 418 South Africa sanctions regime 255
1. Constitutional basis 255
2. Objectives 257
3. Scope 258
4. Administration and monitoring 259
5. Termination 260
6. Conclusions 261
3. The 661 Iraq sanctions regime 261
1. Constitutional basis 262
2. Objectives 264
3. Scope 265
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