UN Sanctions

THE UN SANCTIONS PROCESS

UN Sanctions are imposed through UN Security Council resolutions. The Security Council’s power to impose sanctions is derived from Article 41, Chapter VII of the UN Charter.[1]

In order for a Security Council resolution to pass, it must not be vetoed by any of the five permanent members of the Council (China, France, Russia, the United Kingdom, and the United States).

Sanctions imposed by the Security Council take a variety of different forms and have ranged from comprehensive economic and trade sanctions to more restrictive targeted sanctions such as arms embargoes, travel bans and financial or commodity restrictions on individuals or entities.

Designation Process

UN sanctions are largely influenced by the political context in which they operate. As a result, there is no universal criteria for designating a person (natural or legal).

Once a sanctions regime is implemented, a specific UN Sanctions Committee (overseen by the UN Security Council) is established to identify and consider potential targets, as well as to administer, execute and monitor the regime. The Committee also has the responsibility of considering written requests from Members States to add individuals or entities to the designation list.

It is important to note that Security Council resolutions do not impose binding obligations on individuals or entities, only on countries. In order for UN resolutions to take effect within a member country, they have to be incorporated into the local law of that country. This is done in the UK for example through the Sanctions and Anti-Money Laundering Act 2018 (“SAMLA 2018”) – see in particular section 1(1) (a) which provides that:
An appropriate Minister may make sanctions regulations where that Minister considers that it is appropriate to make the regulations…for the purposes of compliance with a UN obligation

Within the European Union, UN designations are implemented into EU law automatically by virtue of the EU framework of restrictive measures so they are directly applicable in all EU Member States without these states needing to enact additional legislation.

How to Challenge UN Sanctions

This is an area of some controversy, as there are limited means of recourse for a person designated under a UN Security Council resolution to challenge that designation.

The options open to a designated person are set out below.

Administrative challenge

1.  Application to the relevant UN Sanctions Committee through the State Department

A designated person can file a delisting request with the relevant UN Sanctions Committee, through the state department of the country they reside in or are a citizen of. This is a diplomatic process, as individuals do not have direct access to the UN Sanctions Committee.

If the designated person has been sanctioned as a result of a request made by the State they reside in or are a citizen of, then this option will have obvious difficulties.

2.  Application through the UN Focal Point for Delisting

A designated person can file a delisting request with the UN Focal Point for De-listing (the “Focal Point”), which was established pursuant to Resolution 1730 (2006).

The Focal Point is able to receive delisting requests from designated persons and/or entities on all UN Sanctions Committee lists except for the ISIL (Da’esh) and Al Qaida Sanctions List (discussed further below). It performs tasks that are outlined in the annex to Resolution 1730 (2006), which include forwarding delisting requests from designated persons to the relevant designating government and acting as a communication intermediary between the designated person, the relevant designating government and the relevant UN Sanctions Committee.

While the Focal Point can help with facilitating communication between the relevant parties, the decision to delist a person ultimately lies with the relevant UN Sanctions Committee.

3.  Apply to the Office of the Ombudsperson

If an individual and/or entity is sanctioned under the ISIL (Da’esh) and Al Qaida Sanctions List, they can file a delisting request through the Office of the Ombudsperson. This office was established as a result of the successful Kadi Litigation in the European Courts in 2009, in which Carter-Ruck acted for Mr Kadi and was instrumental in bringing about the implementation of this route of recourse.

This option is only available to persons designated under the ISIL (Da’esh) and Al Qaida Sanctions regime. Unlike the Focal Point, the Office of the Ombudsperson can play a more proactive role in the delisting request, such as gathering information from all the relevant parties and providing recommendations as to delisting. However, the ultimate delisting decision remains with the relevant Sanctions Committee and a petitioner whose delisting request is denied is not entitled to know the reasons why.

Court challenge

There is no UN-level judicial review of UN sanctions designations.

In order to challenge the legality of a designation, designated persons can seek judicial review in their national courts. However, this option can be tricky and requires a finding by the national court that the relevant country can derogate from its UN obligations. By way of example in R (Youssef) v Secretary of State for Foreign and Commonwealth Affairs [2016] AC 1457, the Supreme Court upheld the dismissal of a judicial review of the Secretary of State’s decisions to: a) accede to the claimant’s listing by the UN Al-Qaida sanctions committee despite having concluded that he no longer met the criteria for designation; and b) accept a subsequent recommendation of the UN Ombudsperson that the claimant’s listing be retained due to his public utterances and prominent position in extremist circles.

If a person is subject to EU sanctions imposed to reflect a UN designation, they have the option of challenging that designation before the European Court of Justice. Such action has met with success in the past, as can be seen from the Kadi litigation mentioned above.

Licensing requirements

As countries are responsible for implementing UN Security Council resolutions on sanctions at a local level, they are also responsible for issuing licences that allow individuals and/or companies to carry out activities that would otherwise be prohibited under the relevant sanctions regime. The grounds for issuing such licences will generally be set out in the UNSC resolution underpinning the specific sanctions regime.

For example UN Security Council resolutions often expressly provide for humanitarian exceptions to seek to mitigate collateral damage caused by the sanctions they impose.

Countries are sometimes required to notify the United Nations and obtain further approval from the relevant UN sanctions committee before granting a licence.

In the UK, the relevant body responsible for granting and administering licences relevant to UN sanctions is HM Treasury’s Office of Financial Sanctions Implementation.

Contributors: Charles Enderby Smith (partner) and Guy Martin (consultant).

The material in this Guide is for general information only and does not constitute legal advice.    The content of this page is accurate as of  January 2023.