10.6092/issn.2531-6133/17799
The article examines sanctions imposed by the United Nations (U.N.), the most critical sender of multilateral sanctions, by categorising them as embargoes against states and their main sectors, as well as targeted sanctions against individuals and micro entities. The U.N. Charter serves as the foundation for determining the boundaries of U.N. embargoes. Accordingly, the Security Council is bound by the U.N. Charter’s Preamble and Articles as the only international treaty that can control its actions. Furthermore, based on the Charter’s proportionality principle, the Security Council must balance subjective wrongdoings and the consequences of sanctions. The article then evaluates flaws in the designation, implementation, judicial reviews, and targets substantive and procedural human rights in order to determine how U.N. targeted sanctions should be formed to become rights-based. The central issue of due process is addressed by examining certain recorded rights-based challenges in the process of domestic implementation of sanctions that are reviewed by international courts in order to demonstrate that the Security Council’s targeted sanctions require reconsideration as well as their own independent judicial review.
application/pdf
2531-6133
17799
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Mohsen Rowhani
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
Targeted Sanctions
Rights‐Based Boundaries Of The United Nations’ Sanctions
Text.Serial.Journal
https://bolognalawreview.unibo.it/
8
Notes
2023-08-11
2023-08-11
2023-05-08
2023-09-19
129-148
UBLR
Mohsen Rowhani
2023/08/11
10.6092/issn.2531-6133/17799
129
Yeshiva University
2531-6133
1
Targeted Sanctions
en
148
Rights‐Based Boundaries Of The United Nations’ Sanctions
https://bolognalawreview.unibo.it/article/download/17799/16722
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llVOLUME 8                                   llISSUE 1                                   NOTES



                          UNIVERSITY OF BOLOGNA LAW REVIEW
                          https://doi.org/10.6092/issn.2531‐6133/17799

             Received: 22 Nov. 2022 | Accepted: 6 Dic. 2022 | Published: 11 Aug. 2023

                                                  A

  Rights‐Based Boundaries Of The United Nations’ Sanctions


                                        MOHSEN ROWHANI


Mohsen Rowhani received his Doctorate of Juridical Science (J.S.D.) from Benjamin N. Cardozo
School of Law (U.S.A.) and his LL.M. in International Law and Justice from Fordham Law School
(U.S.A.). He is a New York-based licensed attorney who specializes in OFAC sanctions compliance.
He is also a Global Sanctions (CGSS) and an Anti-Money Laundering Specialist (CAMS).
The author would like to thank to Jocelyn Getgen Kestenbaum, Axel Kammerer, and Patrick C.R.
Terry, for thoughtful comments and edits on previous drafts and to Joachim Herz Foundation for
supporting the research while he was a visiting scholar at Bucerius Law School. The author is also
grateful to the editorial staff at the University of Bologna Law Review for their helpful comments
and suggestions.

 @ Mohsen@rowhanilaw.com
  ID
       0000-0001-6366-3838


                                             ABSTRACT

The article examines sanctions imposed by the United Nations (U.N.), the most critical sender of
multilateral sanctions, by categorising them as embargoes against states and their main sectors,
as well as targeted sanctions against individuals and micro entities. The U.N. Charter serves as
the foundation for determining the boundaries of U.N. embargoes. Accordingly, the Security
Council is bound by the U.N. Charter’s Preamble and Articles as the only international treaty that
can control its actions. Furthermore, based on the Charter’s proportionality principle, the
Security Council must balance subjective wrongdoings and the consequences of sanctions. The
article then evaluates flaws in the designation, implementation, judicial reviews, and targets
substantive and procedural human rights in order to determine how U.N. targeted sanctions
should be formed to become rights-based. The central issue of due process is addressed by
examining certain recorded rights-based challenges in the process of domestic implementation
of sanctions that are reviewed by international courts in order to demonstrate that the Security
Council’s targeted sanctions require reconsideration as well as their own independent judicial
review.


                                            KEYWORDS
                Economic Sanctions; Human Rights; Security Council; Targeted Sanctions




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              RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


                                        TABLE OF CONTENTS

Introduction . . . . . . . . . . . . . . . . . . . . . . . .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   131
1. Boundaries of the United Nations’ Embargoes . . . . .       .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   133
       1.1. Human Rights Boundaries . . . . . . . . . .        .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   134
       1.2. The Principle of Proportionality . . . . . . .     .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   139
2. Boundaries of the United Nations’ Targeted Sanctions        .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   141
       2.1. Administrative Reconsiderations . . . . . .        .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   143
       2.2. Judicial Review . . . . . . . . . . . . . . . .    .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   145
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   .   148




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      INTRODUCTION

International law evolved from jus ad bellum to prohibit use of armed forces, and along
the way, the United Nations Security Council [hereinafter U.N.S.C.] became the sole
responsible organ for maintaining international peace and security. In this regard, the
Security Council has the authority under Chapter VII of the U.N. Charter to issue
recommendations or binding decisions such as imposing sanctions,1 after determining
the existence of a threat to the peace, breach of the peace or act of aggression.2
          Sanctions are classified as embargoes and targeted sanctions. According to the
present article, embargoes shall be considered as coercive measures that impose costs
on states, major entities and sectors of states such as the oil industry or a state’s central
bank. Targeted sanctions are defined as coercive measures such as asset freeze and travel
ban against individuals, whether official or non-official; entities governing privately or
without affiliation with any state; as well as those against entities acting on behalf of the
states but with minimal effects on people in general.
          According to Article 41 of the Charter, the Security Council may call upon all
U.N. Members to implement its sanctioning resolutions domestically. Under Article 25 of
the Charter, they must agree to accept and employ the sanctions. As a result, all U.N.
Member States are clearly obligated to implement Security Council Resolutions
[hereinafter S.C.R.s] domestically. It is because they consented to the potential invasion
of their sovereignty by joining the U.N. under the pacta sunt servanda principle.3 This
principle affirms that the legality of all the sanctions imposed by international
organisations on their Member States can be established primarily based on the consent
given by the targeted Member State. Therefore, any sanctioning regimes founded by the

1
  The U.N.S.C. in carrying out its mandate is authorised to use the powers outlined in Chapters VI, VII, VIII, and
  XII of the U.N. Charter. The Security Council has the authority to make recommendations under Chapter
  VI or legally binding decisions under Chapter VII. Chapter VI of the U.N. Charter addresses the methods of
  peaceful resolution of disputes and empowers the Security Council to call on all parties, to investigate, to
  request appropriate procedures or methods of adjustment, and to make recommendations to the disputing
  parties. As a result of meeting the requirements of Article 39, the Security Council based on its power
  that is given under Chapter VII, is authorised to impose binding sanctioning resolutions. These binding
  resolutions may impose coercive measures involving or not involving use of force, such as complete or
  partial disruption of economic relations.
2
  The ambiguity in the phrase threat to the peace has raised some concerns about the specific situations in
  which the Security Council may pass sanctioning resolutions. In practice, however, it is widely accepted
  that any S.C.R. that is passed under Chapter VII include an implied Article 39 determination, even though
  most resolutions passed under Article 41 do not explicitly refer to Article 39 and merely indicate that they
  were passed under Chapter VII of the Charter. See generally RICHARD GORDON ET AL., SANCTIONS LAW 12 (2019).
3
  Pacta sunt servanda or the rule that any treaty in force is binding on the parties and must be carried out in good
  faith, is enshrined in the Vienna Convention on the Law of Treaties [hereinafter V.C.L.T.] (Article 26 V.C.L.T.
  1969), as well as the Preamble and Article 2 of the U.N. Charter and is frequently invoked in international
  jurisprudence. See generally Freya Baetens, Pacta Sunt Servanda, in ELGAR ENCYCLOPEDIA OF INTERNATIONAL
  ECONOMIC LAW 283 (Edward Elgar Publishing, 2017) (U.K.).


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                RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


Security Council must be implemented by all U.N. Member States, as the International
Court of Justice [hereinafter I.C.J.] has also frequently advised so.4
          In addition, according to Article 103 of the U.N. Charter, the obligations of
Member States under the U.N. Charter take precedence over other obligations under
separate international treaties. In this regard, the I.C.J.’s two Lockerbie cases, more than
affirming this supremacy, also demonstrate that the I.C.J. is authorised to review the
Security Council’s decisions.5 The I.C.J. also held that the obligations under Article 103
give effect to Chapter VII’s measures and take precedence over other multilateral or
bilateral treaties.6 Furthermore, the rule of lex specialis has confirmed that any S.C.R. has
precedence over other treaties.7
          The supremacy of S.C.R.s over the U.N. Charter, which is this Article’s
challenging foundation, is not ruled out. Thus, the main issue is whether the embargoes
imposed by the Security Council should be reconsidered in light of their compliance with
the U.N. Charter. The other issue is whether the Security Council should adhere to the
boundaries of due process established by Customary International Law [hereinafter
C.I.L.] when imposing targeted sanctions to safeguard the substantive and procedural
rights of the listed targets during the administrative reconsideration and judicial review
phases.




4
  For example, I.C.J. in Namibia held that the S.C.R.s are binding on all the U.N. Member States, which are thus
  under obligation to accept and carry them out. See Legal Consequences for States of South Africa’s Continued
  Presence in Namibia (South West Africa) Notwithstanding Security Council Resolution, Advisory Opinion,
  1971 I.C.J. Rep. 16, 50 ¶ 115 (June 21) [hereinafter Namibia]. This Advisory Opinion was a reaffirmation of the
  I.C.J.’s previous opinion. See Reparation for Injuries Suffered in the Service of the United Nations, Advisory
  Opinion, 1949 I.C.J. Rep. 174, ¶ 178 (Apr. 11) [hereinafter Reparation].
5
  The I.C.J.’s two Lockerbie cases which initiated against the United States [hereinafter U.S.] and the United
  Kingdom [hereinafter U.K.] were concerned the interpretation of Montreal Convention for the Suppression
  of Unlawful Acts against the Safety of Civil Aviation, Sept. 23, 1971, 24 U.S.T. 564, 974 U.N.T.S. 177. Libya
  requested I.C.J. to issue a preliminary decision to halt the two countries’ efforts to impose U.N. embargoes
  on Libya. The basis was due to the alleged involvement of Libya in the attack on a civilian plane and the
  deaths of many passengers. The two cases raised a complicated issue about the relationship between the
  U.N.’s two main organs, the I.C.J. and the Security Council. See Questions of Interpretation and Application of
  the 1971 Montreal Convention arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.S.),
  Provisional Measures, 1992 I.C.J. 114 (Apr. 14), https://www.icj-cij.org/case/89/provisional-measures (Last
  visited Jul. 4, 2023); see also Questions of Interpretation and Application of the 1971 Montreal Convention
  arising from the Aerial Incident at Lockerbie (Libyan Arab Jamahiriya v. U.K.), Provisional Measures, 1992
  I.C.J. 3 (Apr. 14), https://www.icj-cij.org/en/case/88 (Last visited Jul. 4, 2023).
6
  See id.
7
  See Masahiko Asada, Definition and Legal Justification of Sanctions, in ECONOMIC SANCTIONS IN INTERNATIONAL LAW
  AND PRACTICE 3, 6 (Asada Masahiko ed., 2019) (U.K.).



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      1. BOUNDARIES OF THE UNITED NATIONS’ EMBARGOES

As an alternative to using force, then-U.S. President Woodrow Wilson introduced the idea
of an economic weapon in 1917 to emphasise the significance of joining the League of
Nations. He underlined stated, “[a]pply this economic, peaceful, silent, deadly remedy,
and there will be no need for force. It is a terrible remedy. It does not cost a life outside
the nation boycotted, but it brings pressure upon the nation which, in my judgement, no
modern nation could resist”.8 This assertion was the entire point of using sanctions at the
time - implying that the only factor that did not matter, at all, was the rights of people in
targeted countries.
          One could argue that this logic is still prevalent - given the fourteen continuing
sanction regimes in place at the U.N. level - the majority of which are embargoes.9
Although the number of these regimes appear to be low in comparison to those
sanctions imposed unilaterally by individual states or international organisations against
non-Members,10 there are several challenging grounds about the rights-based
deficiencies of these regimes and their legality status and boundaries under
international law; particularly regarding the extent to which these sanctions are
implemented domestically by individual states.
          While the Security Council’s sanctioning resolutions supersede any conflicting
treaty, the Security Council’s embargoes are also subject to the U.N. Charter’s
boundaries. As a result, the notion that the U.N.S.C. is unbound by law is factually
inaccurate. The fundamental issue is that the Security Council’s sanctioning power
should be limited, and, accordingly, in cases of imposing embargoes, the Security Council
needs to act within the U.N. Charter’s bounds. These boundaries include the U.N.’s
primary purpose, as stated in the Charter’s Preamble, as well as the other conditions
stated in the Charter’s Articles. Following such, both the principle of proportionality and
the U.N. boundaries based on fundamental rights will be examined.




8
   Robert A. Pape, Why Economic Sanctions do not Work, INT’L SEC., Oct. 1997, at 90, 90-93.
9
   The current U.N. sanctions are against Somalia, Al-Qaida, the Islamic State of Iraq and the Levant
   [hereinafter I.S.I.L.], Iraq, Liberia, Congo, Sudan, Lebanon, the Democratic People’s Republic of Korea
   [hereinafter D.P.R.K.], Libya, Afghanistan, Guinea-Bissau, the Central African Republic, and South Sudan,
   with the objectives of advancing conflict resolutions, nuclear non-proliferation, and counterterrorism.
   Notably, a sanctions committee chaired by a non-Permanent Member of the Security Council oversees
   each regime. As of March 3, 2023, eleven of the fourteen sanctions committees are supported
   by ten monitoring groups, teams, and panels. See Sanctions, United Nations Security Council,
   https://www.un.org/securitycouncil/sanctions/information (Last accessed Jul. 4, 2023).
10
   Seyed M. Rowhani, Rights Based Boundaries of Unilateral Sanctions, 32 Washington International Law Journal
   127 (2023), https://digitalcommons.law.uw.edu/wilj/vol32/iss2/3 .


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                 RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


     1.1. HUMAN RIGHTS BOUNDARIES

As specified in Article 1(3) and the U.N. Charter’s Preamble, the Charter preserves
fundamental human rights. The Charter also safeguards the pledges of Member States
who vow to employ international mechanisms to promote the economic and social
advancement of all peoples. It mentioned that one of the U.N.’s purposes is to promote
and encourage respect for human rights and fundamental freedoms.11 As a result, it is
reasonable to assume that the primary policy objective for the U.N. sanctioning
implementation should be settling global economic, social, cultural, or humanitarian
issues.12 This objective, which can also be interpreted as a boundary, is suggested in the
U.N. Charter. Accordingly, the Security Council’s primary responsibility is to “maintain
peace and security”.13
           However, the negative effects of embargoes could themselves jeopardise peace
and security. Implementation of embargoes would endanger the U.N.’s major goal of
promoting a higher standard of living and preserving the conditions of economic and
social progress and development and upholding the universal observance of human



11
   See U.N. Charter art. 1, ¶ 3.
12
   Id. ¶ 1.
13
   Id. art. 24, ¶ 2. The U.N. has so far established thirty sanctioning regimes, including as embargoes and
   targeted sanctions to maintain peace and security. As of March 7, 2023, in Southern Rhodesia, See S.C. Res.
   253 (May 29, 1968) (declaration of independence by white minority regime); S.C. Res. 421 (Dec. 9, 1977)
   (Apartheid regime); S.C. Res. 713 (Sept. 25, 1991) (Outbreak of internal fighting); S.C. Res. 841 (June 16,
   1993) (Military coup); S.C. Res. 661 (Aug. 6, 1990) (Kuwait’s invasion); S.C. Res. 1483 (May 22, 2003) (Deposed
   Iraqi regime); S.C. Res. 864 (Sept. 15, 1993) (Internal political conflict); S.C. Res. 1011 (Aug. 16, 1995) (Civil
   war and genocide); S.C. Res. 1132 (Oct. 8, 1997) (Civil war); S.C. Res. 733 (Jan. 23, 1992) (Internal violence);
   S.C. Res. 1160 (Mar. 31, 1998) (Serbian forces violence and terrorist acts of Kosovo Liberation Army); S.C.
   Res. 1298 (May 17, 2000) (Conflict between Eritrea and Ethiopia); S.C. Res. 985 (Apr. 13, 1995) (Liberian
   civil war); S.C. Res. 1343 (Mar. 7, 2001) (Liberian support for rebels in Sierra Leone); S.C. Res. 1521 (Dec.
   22, 2003) (Internal violence); S.C. Res. 985 (Apr. 13, 1995) (Liberian civil war); S.C. Res. 1343 (Mar. 7, 2001)
   (Liberian support for rebels in Sierra Leone); S.C. Res. 1521 (Dec. 22, 2003) (Internal violence); S.C. Res.
   1572 (Nov. 15, 2004) (Internal conflict); S.C. Res. 1556 (Jul. 30,2004) (Atrocities committed by Janjaweed
   militia); S.C. Res. 1636 (Oct. 31, 2005) (Investigations into assassination of Rafiq Hariri by The International
   Committee on Census Coordination); S.C. Res. 1718 (Oct. 14, 2006) (Nuclear program); S.C. Res. 1737 (Dec.
   26, 2006) (Uranium enrichment program); S.C. Res. 748 (Jan. 21, 1992) (Bombing the Pan American flight
   over Lockerbie); S.C. Res. 1970 (Feb. 26, 2011) (Internal conflict and use of force against civilians); S.C. Res.
   2048 (May 18, 2012)(Military coup); S.C. Res. 2140 (Feb. 26, 2014) (Terrorist attacks inside Yemen); S.C.
   Res. 2206 (March 3, 2015) (Internal conflict between the government and opposition forces); S.C. Res. 2374
   (Sept. 5, 2017) (Violations of the 2015 Agreement on Peace and Reconciliation); S.C. Res. 1988 (June 17,
   2011) (Taliban activities in Afghanistan); S.C. Res. 1493 (July 28, 2003) (Domestic conflict and exploitation
   of natural resources); S.C. Res. 2127 (Dec. 5, 2013) (Breakdown of law and order and domestic conflict); S.C.
   Res. 1267 (Oct. 15, 1999) (International terrorism). It should be noted that the Security Council on October
   21, 2022, by introducing the specific term of “targeted arms embargo,” established a new regime against
   those who are responsible for the instability of Haiti. See S.C. Res. 2653, ¶ 11-14 (Oct. 21, 2022). According to
   the S.C., targeted arms embargoes are put in place against individuals and entities that the Committee has
   designated as being responsible for, complicit in, or engaged directly or indirectly in actions that threaten
   Haiti’s peace, security, or stability. See id. ¶ 15.


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rights and fundamental freedoms.14 Accordingly, all U.N. embargoes must be designed
by the Security Council in compliance with the framework of the U.N. Charter.
           One may argue that the U.N. Charter only calls for the U.N. Member States to
implement S.C.R.s and does not oblige the Security Council.15 In response, it could be
claimed that a U.N. organ cannot act in violation or ultra vires of the U.N. Charter, and
since the U.N. Charter requires upholding human rights standards, both Member States
and the Security Council are obliged. Nonetheless, the Article tries to establish that
member states are required to carry out and domestically implement only those S.C.R.s
that are in accordance with the Charter. Consequently, since the use of comprehensive
embargoes violates the Charter’s human rights principles, these Resolutions are not
binding.16
           Comprehensive embargoes imposed by the U.N., such as those imposed on Iraq
during the sanctions decade will be considered illegal, because it would be impossible to
uphold the Charter’s obligations while implementing these measures.17 In other words,
if S.C.R.s violate the U.N.’s purposes or, more broadly, human rights obligations, they
possibly would be in violation of the Charter.




14
   See U.N. Charter, supra note 11, art. 55.
15
   Id. art. 24-25.
16
   The U.N. had already imposed comprehensive embargoes on five occasions: in Southern Rhodesia S.C. Res.
   232 (Dec. 16, 1966), Iraq S.C. Res. 661, supra note 13, Yugoslavia (Former), S.C. Res. 757 (May 30, 1992), Bosnia
   and Herzegovina S.C. Res. 820 (Apr. 17, 1993), and Haiti S.C. Res. 841, supra note 13.
17
   The sanctions decade began on August 2, 1990, four days after the Kuwait invasion, when the U.N.S.C.
   imposed a series of embargoes on Iraq. The Shatt-al-Arab waterway in southern Iraq was closed, and all
   vessels approaching the Jordanian port of Aqaba were boarded and inspected. It banned the importation of
   all products and commodities into Iraq, as well as the exportation of all commodities originating from Iraq.
   The Iraqi regime included a trade embargo; an oil embargo; freezing of Iraqi Government financial assets;
   arms-targeted sanctions; the suspension of international flights; and the ban of financial transactions. These
   embargoes were intended to force Iraq to remove its troops from Kuwait, to begin the reparation process,
   and, finally, to assure the termination of its alleged weapons of mass destruction programs. Iraqi embargoes
   remained in place until Saddam Hussain was overthrown in 2003.


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                 RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


This assertion is not applicable with limited embargoes or targeted sanctions that have
gone through the proper assessment and implementation process.18 This position was
emphasised by the I.C.J. in Certain Expenses as well where it held that even when the
Security Council’s actions are required to maintain international peace and security, the
presumption should be that it is not acting ultra vires.19 Furthermore, the International
Tribunal for the Former Yugoslavia (I.C.T.Y.) confirmed in Prosecutor v. Dusko Tadic that
the Security Council’s power is not unlimited and that the Security Council is subject to
the boundaries of the Charter in all circumstances.20
           These boundaries, however, appear to be quite broad and ambiguous. In other
words, the Security Council’s limitations on imposing embargoes under the Charter may
be understood so broadly that they become practically meaningless. Notwithstanding,
while the U.N.’s purposes are equivocal and more politically, than legally, defined, the
legally binding nature of the U.N.’s purposes is undeniably clear under Article 24(2). As a
result, they are clearly specified to be legally protected.

18
   The Iraqi regime had major collateral humanitarian consequences for civilians. After a few years and by
   finding the negative consequences of Iraqi embargoes, the U.N.S.C. finally shifted toward designing limited
   embargoes and targeted sanctions. This first generation of rights-based sanctions targeted political leaders
   and wrongdoers and armed organisations while exempting other civilians. See Colum Lynch, Sunset for UN
   Sanctions? Foreign Policy (Oct. 14, 2021). Denis Halliday, the former U.N. humanitarian coordinator in Iraq,
   has named the U.N. embargoes against Iraq, as genocide. Denis Halliday, Iraq: The Impact of Sanctions and
   U.S. Policy, in IRAQ UNDER SIEGE: THE DEADLY IMPACT OF SANCTIONS AND WAR 45 (Anthony Arnove ed., 2000).
   Also, a large body of legal and political literature labelled the Iraqi regime as a genocidal tool, claiming that
   embargoes imposed by the U.N. on Iraq drastically increased mortality rates. See JEREMY MATAM FARRALL,
   UNITED NATIONS SANCTIONS AND THE RULE OF LAW 5 (Cambridge University Press, 2007). This assertion created
   the argument that the U.N. also should be bound by peremptory norms of jus cogens in imposing sanctions.
   See DAVID SCHWEIGMAN, THE AUTHORITY OF THE SECURITY COUNCIL UNDER CHAPTER VII OF THE UN CHARTER: LEGAL
   LIMITS AND THE ROLE OF THE INTERNATIONAL COURT OF JUSTICE 197-202 (Erasmus Universiteit Rotterdam, 2001)
   (Neth.). Holding the U.N., as an international organisation, responsible for the crime of genocide and
   ascertainment of the mens rea and the specific intent of the genocide in the case of adopting collective
   embargoes seems impossible. It is due to the fact that it is hardly acceptable that the duty to prevent
   genocide could be extended to the actions of the Security Council, given that the Genocide Convention
   governs only sovereign states that commit genocide. Also, since genocide is defined as specific “acts
   committed with intent to destroy, in whole or in part, a national, ethnic, racial, or religious group” in Article
   2 of the Genocide Convention, and thus requires intent to destroy or dolis specialis, the existence of intent
   to destroy the Iraqi people by the U.N. could not be established. In addition, it is obvious that Iraqis did
   not die just because they were Iraqis. While Iraqi people died because they were living in Iraq, the U.N. did
   not impose sanctions to kill them because they were Iraqis and thus, while this is not a moral assertion but
   based on the rules of international law and the plain wording of the Convention, the U.N. did not commit
   genocide and did not violate jus cogens. Relatedly, Professor Gordon, by labeling the collateral situation
   that was caused by the sanctions on Iraq as the “perfect injustice,” mentioned that “[w]hat was probably
   not foreseen [in the process of drafting Genocide Convention] was the possibility that atrocities might be
   committed by institutions of international governance, acting in the name of international law and human
   rights”. See generally Joy Gordon, Smart Sanctions Revisited, 25 ETHICS & INT’L AFF. 317-18 (2011); See also Joy
   Gordon, When Intent Makes All the Difference in the World: Economic Sanctions on Iraq and the Accusation of Genocide,
   5 YALE HUM. RTS & DEV. L. J. 77 (2002).
19
   Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. 151 (July 20) [hereinafter Certain
   Expenses].
20
   Prosecutor v. Tadić, Case No. IT-94-1-I, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction,
   ¶ 28 (Int’l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).


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The Security Council’s actions are limited to the main principles outlined in Articles 1
and 2 of the Charter, as well as the more clearly defined Charter-based fundamental
limitations imposed on U.N. Member States and the Security Council.                        These
Charter-based fundamental limitations include the respect to the principle of
self-determination;21 fundamental human rights;22 sovereign equality;23 good faith;24
dispute settlements through peaceful means;25 refraining from the threat or use of
force;26 and respecting the principle of non-intervention to the Member States’
sovereignty.27
          As such, Article 1(2) states that the U.N.’s founding purpose is “to develop friendly
relations among nations based on respect for the principles of equal rights and the self-
determination of people”.28 According to the I.C.J. ’s Advisory Opinion in Western Sahara,
the right to self-determination requires a free and genuine expression of the concerned
peoples’ will.29 This means each state has the sovereign right to determine its own political
structure. This right is also mentioned in Article 2(1) of the Charter through the principle
of sovereign equality among all U.N. Members.30
          While comprehensive embargoes are in place, the infringement of people’s
rights to self-determination, or even to state sovereignty is inevitable. Acknowledging
the will of the people concerned should be considered when designing any sanctioning
resolution in order not to violate the genuine expression of their will in choosing their
political structure, and subsequently the state’s sovereignty. It could be argued that
when people freely elect their leaders, the actions of those leaders will be judged in
accordance with the people’s will.                However, for the majority of scenarios where
embargoes are imposed against those states, the actions of their leaders differ over time -
implying that the concerned people may freely elect their leaders, but the leaders’
actions will differ after the election.
          As a result, determining whether each target is a state with an authoritarian
regime or a democratic regime in terms of freely elected officials and the ability to
monitor their actions over time is critical. This is especially true when the concerned
people democratically elect their leaders who then go on to become authoritarians and
commit international wrongful acts.                 In the latter case, U.N. embargoes should be

21
   U.N. Charter, supra note 11, art. 1, ¶ 2.
22
   Id. ¶ 3.
23
   Id. art. 2, ¶ 1.
24
   Id. ¶ 2.
25
   Id. ¶ 3.
26
   Id. ¶ 4.
27
   Id. ¶ 7.
28
   Id. art. 1, ¶ 2.
29
   Western Sahara, Advisory Opinion, 1975 I.C.J Rep. 12, ¶ 55 (Oct. 16).
30
   U.N. Charter, supra note 11, art. 2, ¶ 1.
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                 RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


targeted and implemented only to the extent that they narrowly change the leaders’
wrongdoings; otherwise, the sanctions would be in violation of the Charter.
           In addition, Article 1(3) emphasises the importance of preserving “human rights
and fundamental freedoms for all, without regard to race, sex, language, or religion”.31
The Security Council is required by this Article to consider the negative consequences of
its embargoes on the targeted state’s population when drafting and implementing
sanctioning resolutions. Yet, since most of the U.N.’s embargoes are aimed at states that
have violated the rights of other states or the international community as a whole by
engaging in some type of international wrongful act, a short-term rights-based impact
can be justified by that state’s prior wrongdoing. However, long-term embargoes are
illegal because they can impinge on human rights for decades after they are lifted.32
Relatedly, as most of the U.N.’s embargoes are against states’ main sectors and products,
they may have long-term effects. For example, Iranian oil embargoes had long-term
consequences because the target was unable to reclaim its previous positions in the
lawful international oil market once the embargoes were lifted, forcing it to sell in the
black market, which led to corruption and its long-term consequences.33


31
   Id. art. 1, ¶ 3.
32
   See Seyed Mohsen Rowhani, Corruption the Middle East as a Long-lasting Effect of the U.S. Primary
   and Secondary Boycotts Against Iran, 3 ABA MIDDLE EAST L. REV.                     30-33 (Feb.         22, 2019),
   https://www.researchgate.net/publication/331286560_CORRUPTION_IN_THE_MIDDLE_EAST_AS_A_LONG-
   LASTING_EFFECT_OF_THE_US_PRIMARY_AND_SECONDARY_BOYCOTTS_AGAINST_THE_ISLAMIC_REPUBLI
   C_OF_IRAN.
33
   U.N. embargoes against Iran specifically aimed to put an end to its uranium enrichment program, which was
   suspected of being part of an effort to develop a nuclear weapon. In 2006, the Security Council demanded
   Iran to stop its nuclear developments, despite Iran’s claims that its program is peaceful and poses no threat.
   S.C. Res. 1696 (Jul. 31, 2006). Iran did not comply and five months later, the U.N. imposed a broad range
   of embargoes on Iranian financial sectors, as well as targeted sanctions against identified individuals and
   entities. S.C. Res. 1737, supra note 13. The regime imposed severe restrictions on the supply of goods and
   services to Iran, as well as freezing the assets of individuals mentioned in the resolution’s Annex. See, e.g.,
   id. ¶ 12; S.C. Res. 1803, ¶¶ 5, 8 (Mar. 3, 2008); S.C. Res. 1929, ¶¶ 11-12, 19 (Jun. 9, 2010). Although
   the sanctions were a mix of embargoes and targeted sanctions, based on the Article’s definition, and
   because they primarily targeted Iran’s main sectors entities and industries, they are labelled as embargoes.
   Furthermore, it is because the Security Council had urged states to be vigilant in their dealings with Iranian
   banks, including the Central Bank of Iran, and in providing financial services to Iranian companies and their
   citizens, which greatly caused the issue of over compliance of international market in importing oil from
   Iran. See S.C. Res. 1803, supra note 33, ¶¶ 3,9,10; S.C. Res. 1929, supra note 33, ¶¶ 14,21,23,24. The Joint
   Comprehensive Plan of Action [hereinafter J.C.P.O.A.] agreed to by Iran and the five Permanent Members
   of the Security Council and Germany entered into effect on July 14, 2015. Based on the J.C.P.O.A., Iran
   agreed inter alia to reduce its stockpiles of enriched uranium substantially in return for lifting the U.N.
   embargoes and easing the E.U. and U.S. unilateral embargoes. Notably, J.C.P.O.A. is not a legally binding
   treaty because some of the parties were volunteers in implementing the measure. See S.C. Res 2231, Annex
   A (July 14, 2015) (Joint Comprehensive Plan of Action). The provisions for the termination were specified in
   U.N. Doc. S/RES/2231 ¶ 7(a), (2015). The JCPOA has a snapback procedure to be implemented if any party files
   a complaint concerning Iran’s noncompliance. If the snapback procedure is triggered, all the UN embargoes
   against Iran would be reactivated immediately. Id at ¶¶¶ 11, 12, 13. Although the U.S. withdrew from
   the J.C.P.O.A. on May 8, 2018, the other parties remained committed to the agreement, and all members,
   including the U.S., are currently negotiating to resurrect the J.C.P.O.A. as of Mar. 7, 2023. Iran’s embargoes
   were lifted on January 16, 2016, following the UN’s approval of the J.C.P.O.A., but its effects are still being felt
   by Iranians.
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     1.2. THE PRINCIPLE OF PROPORTIONALITY

As stressed by the late Thomas Franck, the principle of proportionality has traditionally
not been recognized as one of the general principles under C.I.L., and it remains to be
seen if proportionality is fit to function as a self-standing principle in its own right.34 The
principle is acknowledged as a general concept of law by major legal systems. It states that
the law should be proportionate to the situation, respond in a measured and reasonable
manner, and not go beyond what is required to accomplish the objective of doing justice.35
           Regardless of being addressed in International Humanitarian Law [hereinafter
I.H.L.] and countermeasure codification by the International Law Commission (I.L.C.), the
Article endeavours to establish the Security Council’s boundaries in imposing sanctions
in accordance with the U.N. Charter’s principle of proportionality. It is because U.N.
sanctions do not simply fit into the category of countermeasures, even though one may
describe them as such and conclude that they must be aligned with the proportionality
outlined in the Draft Articles on State Responsibility for Internationally Wrongful Acts
[hereinafter A.R.S.I.W.A.].36
           Also, relying on I.H.L., which is normally applicable in times of war, conflicts
with the fact that sanctions are rarely considered as a use of force. It is because sanctions
normally are imposed in times of peace.37 Some commentators contend that the I.H.L.
proportionality, which requires an assessment as to “whether the overall evil a war
would cause was balanced by the good that would be achieved,” can be applied in
sanctions or a non-war situation.38 They believe that even though the U.N. is not a state
subject to the Geneva Convention, it cannot violate the laws of war as its Member States
may do, otherwise the U.N.’s purpose of maintaining world’s peace will be
compromised.39 Others assert that the effects of both wars and some embargoes were
34
   Thomas M. Franck, On Proportionality of Countermeasures in International Law, 102 AM. J. INT’L L. 715 (2008); See
   also Thomas M. Franck, Proportionality in International Law, 4 L. ETHICS HUM. RTS. 229 (2010).
35
   See generally NEWMAN RALPH ABRAHAM, EQUITY IN THE WORLD’S LEGAL SYSTEMS: A COMPARATIVE STUDY DEDICATED
   TO RENE CASSIN (Bruylant, 1973) (Belg.).
36
   Article 49 of A.R.S.I.W.A. defines countermeasures as a state’s failure to comply with international
   commitments in response to an international wrongful act committed by another state that is justifiable
   in specific situations. However, sanctions, which an international organisation may be entitled to
   adopt against its Members according to its rules, are lawful measures and cannot be assimilated to
   countermeasures. See Denis Alland, The definition of Countermeasures, in THE LAW OF INTERNATIONAL
   RESPONSIBILITY 1135, Oxford University Press (Crawford, Pellet & Olleson eds., 2010) (U.K.).
37
   This issue will almost certainly encounter conceptual difficulties due to the normative understanding
   of I.H.L. that deems only to govern during armed conflicts. See Pierre-Emmanuel Dupont, Human Rights
   Implications of Sanctions, in ECONOMIC SANCTIONS IN INTERNATIONAL LAW AND PRACTICE 39, 42 (Asada Masahiko
   ed., 2019) (U.K.).
38
   See Judith Gail Gardam, Proportionality and Force in International Law, 87 Am. J. Int’l L. 391, 395 (1993).
39
   The U.N. previously authorised the use of force by peacekeeping forces in the event of humanitarian
   law violations such as in the U.N.’s armed intervention in Somalia; thus, principles and rules of I.H.L.
   are applicable to U.N. forces in enforcement actions, or in peacekeeping operations. See Secretary-
   General’s Bulletin, Observance by United Nations Forces of International Humanitarian Law (Aug. 6, 1999),
   https://www.refworld.org/docid/451bb5724.html.
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                 RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


regarded as similar to military blockades and armed conflicts.40 Thus, the practice of
those embargoes is considered “tantamount to a peacetime blockade”.41
           While several commentators have referred to embargoes as a political weapon or
economic warfare, it is preferable not to compare them to any type of armed force. This
is due to the fact that economic sanctions, in general, were designed to prevent military
aggressions and wars in the first place. Furthermore, taking proportionality from C.I.L.
and labelling it as a countermeasure to expand the scope of the Security Council’s
boundaries in imposing embargoes is erroneous.                         Not only does the U.N. Charter
implicitly address the principle of proportionality, but the I.C.J. and other international
tribunals have repeatedly highlighted and recognized it. The I.C.J.’s decision in the North
Sea Continental Shelf in 1969,42 and the Naulilaa arbitration between Portugal and
Germany in 1928 are two key examples.43
           Within the U.N. Charter, the principle of proportionality applies equally to the
practice of the Security Council, as a legal principle falling under the category of
principles of justice and international law. These principles, which are mentioned in Article
1(1) of the Charter, have also been recognised by several commentators.44 Accordingly,
Chapter VII’s measures must prevent disproportionality in achieving its objectives and
must not adversely affect other interests in a disproportionate manner.45 The Security
Council has considerable latitude in deciding whether Chapter VII’s measures are
proportionate to the objectives pursued.                   It means that the Security Council must

40
   See generally Richard Garfield et al., The Health Impact of Economic Sanctions, 72 BULL. N.Y. ACAD. MED. 452,
   458-62 (1995).
41
   U.N. Human Rights Council, Rep. of the Special Rapporteur on the Negative Impact of Unilateral Coercive
   Measures on the Enjoyment of Human Rights (2018), ¶ 34, U.N. Doc. A/HRC/39/54 (Sep. 10, 2018)
   [hereinafter U.N. Special Rapporteur]. The U.N. Special Rapporteur emphasised that “legal rights holders in
   target countries where the negative impact of such measures is particularly acute could be considered as in
   a war zone”. Id. ¶ 42. Also, some I.H.L. rules such as the prohibition of civilian hunger and the unrestricted
   movement of essential food and medication, are identical to the situation with some comprehensive
   embargo regimes. The differentiation between civilian and military targets and the prohibition on causing
   unnecessary suffering to combatants are the other principles of I.H.L. which may be used in the case of
   sanctions as well, making I.H.L. to “serves as the most appropriate paradigm through which economic
   sanctions should be governed, even when implemented outside the armed conflict context”. See also W.
   Michael Reisman & Douglas L. Stevick, The Applicability of International Law Standards to United Nations Economic
   Sanctions Programmes, 9 EUR. J. INT’L L. 86, 95 (1998).
42
   Where the I.C.J. determined that proportionality was a factor to be considered in the delimitation of the
   continental shelf and stated, “whereas the Federal Republic considered that such an outcome would be
   inequitable because it would unduly curtail what the Republic believed should be its proper share of [the]
   continental shelf area, on the basis of proportionality to the length of its North Sea coastline”. See North
   Sea Continental Shelf Judgment, 1969 I.C.J. 17 (Feb. 20).
43
   Naulilaa Award (Port. v. Ger.), vol. 2 at 1011, (UN Rep. Int’l Arb. Awards 1928); Gabcikovo-Nagymaros
   Project, Hungary v. Slovakia, Judgment Merit, 1997 I.C.J. 7 (Sep. 25); see also LORI F. DAMROSCH, ENFORCING
   INTERNATIONAL LAW THROUGH NON-FORCIBLE MEASURES 57-59 (1998).
44
   Nicolas Angelet & Vera Gowlland-Debbas, International Law Limits to the Security Council, in UNITED NATIONS
   SANCTIONS AND INTERNATIONAL LAW 71-82 (Mariano Garcia Rubio & Hassiba Hadj-Sahraoui eds., 2001) (Neth.).
45
   See Frederic L. Kirgis, The Security Council’s First Fifty Years, 89 AM. J. INT’L L. 506 (1995).


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2023]                              UNIVERSITY OF BOLOGNA LAW REVIEW                                        [Vol. 8:1


consider the proportionality principle to guarantee that its measures are proportionally
designed.         The Permanent Members of the Security Council also reaffirmed its
significance by stating that all the future U.N. sanctions “should be directed to minimise
unintended adverse side-effects of sanctions on the most vulnerable segments of
targeted countries,”46 and they should be “in support of clear objectives and [be]
implemented           in    ways      that     balance      effectiveness        against      possible      adverse
consequences”.47
           It is difficult to determine the precise scope of the proportionality principle as it
applies to the Security Council. However, it is in this context that international human
rights law can play a crucial role to advise on the scope of a procedural constraint rather
than constituting a substantive limit for the Security Council as a matter of law.48
Human rights laws may evaluate proportionality within the framework of the Security
Council with a particular emphasis on how it should take this principle into account
when designing sanctions adopted in accordance with Article 41 of the U.N. Charter. The
Security Council should make a distinction between subjective wrongdoers and other
civilians in order not to go beyond the targets. In this context, proportionality refers to
the requirement to make sure that the effects of the Security Council’s sanctions on
civilian populations are proportionate to the harm caused by the target’s wrongdoing
and are consistent with the sanctions’ objectives.
           The principle of proportionality requires that the collateral negative effects of
employing sanctions on innocent civilians be minimised.                                    On this path, the
Secretary-General and the sanctions committees should be held responsible in executing
sanctions in the pursuit of proportionality and assessing the objective and
commensurate response while taking fundamental human rights into account.




       2. BOUNDARIES OF THE UNITED NATIONS’ TARGETED SANCTIONS

Targeted sanctions, according to the Article’s definition, are those that impose economic
and/or travel restrictions on natural and legal persons who are not associated with the
state, or those that have minor effects on the people at large. While targeted sanctions
are preferable in comparison to embargoes, still it is likely that targeted sanctions may

46
   Rep. of the S.C., at 2, U.N. Doc. S/1995/300 (1995).
47
   Rep. of the S.C., U.N. Doc. S/PRST/2006/28 (2006).
48
   See Christopher Michaelsen, Human Rights as Limits for the Security Council: A Matter of Substantive Law or Defining
   the Application of Proportionality?, 19 J. CONFLICT & SEC. L. 451, 468 (2014).


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                 RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


infringe some substantive and procedural rights of the targets. As such the rights to
property; privacy and reputation; freedom of movement; and the right to a fair and
public hearing and an effective remedy by an impartial tribunal; or due process rights,
are the most vulnerable to targeted sanctions.
           This Article seeks to establish a pattern of rights-based considerations for future
designations in designing targeted sanctions.49 In this regard, the fundamental concern
stems from the basis for determining the existence of a threat to international peace and
security that allows a U.N. sanctions committee to list a target in a sanctioning regime.50
Even though Article 39 of the U.N. Charter’s determination criteria in assessing a threat
to international peace and security is unclear, those Security Council’s sanctioning
resolutions that do not include a prior Article 39 determination could be considered
non-binding under Chapter VII of the Charter.
           The ambiguity is exacerbated by the fact that several of U.N.’s targeted sanctions
on      individuals        and      entities      are     based       on      classified      evidence        and
undisclosed information.51             To address this lack of transparency, the procedural
boundaries in sanctioning designations, the infringements of which could result in a
violation of due process, should be analysed. Notably, these procedural boundaries are
recognised in domestic laws as customary international norms as well.52
           In addition, the right to a fair and transparent listing procedure was stressed as
a Security Council commitment in S.C.R. 1730 in 2006.53 It is because when mistakes in
listings based on false evidence occur, the individuals who are wrongly sanctioned will
find their funds and assets frozen without having any realistic prospect of being delisted.54

49
   Since 1999, the main U.N. targeted sanctions regime, which encompasses a package of sanctions targeting
   the Taliban, has been in place, and since then it has become one of the most challenged regimes. It was
   mainly because of the bombing of the U.S. embassies in Dar-el-Salam in Tanzania and Nairobi in Kenya. It
   blocked the funds of the Taliban because it was protecting Osama Bin Laden. The Resolution demanded that
   the Taliban turn over Bin Laden and ordered that all the Taliban’s assets be frozen. S.C. Res. 1267, supra note
   13, ¶ 3. Following the September 11, 2001 terrorist attacks, the Security Council amended that regime by
   compiling a list of individuals, including Osama Bin Laden and individuals or entities associated with him,
   as well as Al-Qaida.
50
   The task of deciding on listings at the U.N. level is often delegated to the Sanctions Committee: a
   body entrusted with managing the sanctions regime. Because designated persons feature as entries on
   blacklists, sanctions are easy to modify, and designations can be added to or removed from the list without
   fundamentally altering the sanctions regime. See Gordon et al., supra note 2, at 30.
51
   See Thomas Biersteker, Targeted Sanctions and Individual Human Rights, 65 INT’L J.: CANADA’S J. GLOB.POL’Y
   ANALYSIS 109 (2010). See also Thomas Gehring & Thomas Dörfler, Division of Labor and Rule-based Decisionmaking
   Within the UN Security Council: The Al-Qaeda/Taliban Sanctions Regime, 19 GLOB. GOVERNANCE 567 (2013).
52
   It is a recognized rule that a judgement cannot be executed if it was obtained in a way that did not comport
   with the principles of due process. For example, in the U.S. legal precedent see Bank Melli Iran v. Pahlavi,
   58 F.3d 1406, 1410, 1412 (9th Cir. 1995).
53
   See generally Thomas Biersteker et al., Addressing Challenges to Targeted Sanctions: An Update of Watson Report,
   The Graduate Institute of U.N. Academia 20-21 (2009).
54
   See HM Treasury v. Mohammed Jabar Ahmed and Others (FC) ¶ 182.


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2023]                            UNIVERSITY OF BOLOGNA LAW REVIEW                                    [Vol. 8:1


     2.1. ADMINISTRATIVE RECONSIDERATIONS

According to Resolution 1730, the Focal Point for De-listing, as a dedicated part of the
U.N.’s Secretariat, is responsible for receiving and processing de-listing requests from
U.N. Member States and individual petitioners, as well as serving as the primary source
for preserving the due process of targeted individuals and entities.55 The Resolution
stated that the Security Council is committed to ensuring a fair and clear procedure for
listing and de-listing individuals and entities, as well as granting humanitarian
exemptions.56 Because of this obligation,57 the Security Council passed Resolution 1735
to protect fundamental rights and increase the level of scrutiny for states proposing
additional individuals or entities to be sanctioned.58 In this regard, Resolution 1735
emphasised that after listing a new target, states should make a releasable portion of the
statement available to the public.59
          Despite these attempts, there have been complaints about how the de-listing
mechanism works, including one from the then-President of the Security Council, who
described the Resolution as “very modest and weak” which “does not at all constitute an
effective means of fairness”.60 Due to these flaws, the U.N. Focal Point for Delisting was
replaced on December 17, 2009, by the Office of the Ombudsperson, which exists solely to
review designations under S.C.R. 1267.61
          In order to improve the fairness of de-listing requests, the U.N. also established
an additional review panel for complaints of people and entities that were incorrectly
listed under the 1267 regime.62 A significant step was taken to increase the fairness and

55
   The other function of the Focal Point for De-Listing is to facilitate communication during the de-
   listing process. To find the procedure of de-listing see U.N. Security Council, Focal Point for De-listing,
   https://www.un.org/securitycouncil/sanctions/delisting/ (last visited Jul. 4, 2023).
56
   G.A. Res. 60/1, ¶ 109 (Oct. 24, 2005).
57
   It was passed only three days after Resolution 1730. S.C. Res. 1735 (Dec. 22, 2006).
58
   For example, in some domestic cases like H.M. Treasury, Lord Roger, made specific reference to the veto power
   of the Committee members, and has expressed his concern by stating that “if a State applies on their behalf,
   the name will still not be removed unless all members of the Committee agree. There is an obvious danger
   that States will use listing as a convenient means of crippling political opponents whose links with, say,
   Al-Qaeda may be tenuous at best”. See HM Treasury v. Mohammed Jabar Ahmed and Others (FC), ¶ 181.
59
   The obligation has been strengthened by the S.C. Res. 1822 (June 30, 2008) which mentions:
                For each such proposal Member States shall identify those parts of the statement
                of case that may be publicly released, including for use by the Committee for
                development of the summary [to be placed on the committee’s website] or for the
                purpose of notifying or informing the listed individual or entity, and those parts
                which may be released upon request to interested States.
60
   See U.N. SCOR, 5599th mtg. at 4, U.N. Doc. S/PV.5599 (Dec. 19, 2006).
61
   It should be noted that applications for review of other U.N. sanctions regimes can still be submitted to the
   relevant Focal Point. According to the S.C. Res. 1904 ¶ 22 (Dec. 17, 2009): “the Focal Point shall continue to
   receive requests from individuals and entities seeking to be removed from other sanctions lists”.
62
   See Rep. of the High-level Panel on Threats, Challenges and Changes addressed to the UN Secretary General,
   UN Doc A/59/596 (Dec. 1, 2004).


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                RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


transparency of the sanctions regime when the Security Council stated in the Preamble
of S.C.R. 1989 that it intended to guarantee due process rights and fair and transparent
procedures.63 The Ombudsperson was also given the authority to preserve the due
process by recommending the Committee to review a de-listing request, and thereafter,
the Committee must unanimously vote to maintain the listing if the Ombudsperson
considers de-listing.64          Furthermore, because the Al-Qaida Sanctions and Taliban
Committee was assumed to make all decisions by consensus, it gave each Member of the
Committee veto power over a de-listing request, paving the way for a more rights-based
administrative reconsideration procedure.65 The Ombudsperson was also tasked in this
procedure with providing anyone who requested, with openly releasable, non-classified
information about Al-Qaida and Taliban Sanctions Committee procedures, as well as
informing individuals or entities about the status of their listing and submitting biannual
reports to the Security Council.66 Still, the Security Council was expected to incorporate
new advancements into the sanctions regime founded by this Resolution.67
          One of the main goals in this direction was to reduce the negative effects of
targeted sanctions on humanitarian aid delivery through humanitarian organisations.
The effects were brought on by the fact that most donors are overly compliant with
sanctions regulations because they are so worried about the repercussions of sanctions
violations.      Furthermore, the frustration caused by the lengthy licensing process
discourages them from transferring humanitarian aid to the targets. In this regard, and
after several years, the adoption of S.C.R. 2664 on December 9, 2022, which was primarily
drafted by the United States and Ireland, is the most admirable Security Council
milestone.68 Accordingly, for all current and future U.N. sanctioning regimes, including
the 1267 regime, a cross-cutting humanitarian exemption has been established (unless
otherwise decided), ensuring the timely and effective conduct of providing
humanitarian aid. This S.C.R. affirms that any financial transactions or provision of
goods and services required for humanitarian assistance and fundamental human needs
are authorised, and that these assistances do not violate the sanctions. While this
general exemption will not solve all of the concerns associated with providing



63
   U.N. SCOR, 6247th mtg., UN Doc S/PV.6247 (Dec. 17, 2009).
64
   Regarding the delisting request by the petitioner, the task of the Ombudsperson consists of three main levels:
   Information gathering in two months that is extendable to four months, making dialogue in two months that
   is extendable to four months, committee discussion and decision in two months. See Gordon et al., supra note
   2, at 6-9.
65
   S.C. Res. 1904, Annex II (Dec. 17, 2009). Specified the Ombudsperson tasks.
66
   Id. at 15.
67
   S.C. Res. 1989, (Jun. 11, 2011).
68
   S.C. Res. 2664, (Dec. 9, 2002).


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2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                       [Vol. 8:1


humanitarian assistance, it demonstrates the Security Council’s solid intention to shift
toward a more rights-based model of sanctions.



     2.2. JUDICIAL REVIEW

The domestic implementation of the U.N. targeted sanctions may face a number of judicial
reviews and legal challenges in various domestic and international courts. These judicial
reviews       primarily       determine        whether        these     sanctions       violate     rights-based
boundaries while also contesting their legal status. By highlighting these inadequacies,
this article aims to draw attention to the issue of the U.N. needing to establish a
specialised judicial organ in order to achieve a rights-based model of sanctions.
           Whereas the validity of the I.C.J.’s judicial review power to challenge the
violation of S.C.R. boundaries is still debated,69 based on Lockerbie,70 and the absence of
any exclusion of the I.C.J. ’s power over the Security Council’s decisions, the I.C.J. should
be regarded as the primary available judicial forum for states with proper standing to
determine whether rights-based boundaries have been violated by S.C.R.s. This assertion
also could be understood by other cases such as Certain Expenses where the U.N. General
Assembly asked the I.C.J. to provide an Advisory Opinion on whether the U.N. Member
States were responsible for the expenses of the U.N. operations in Congo in 1960-1961
and in the Middle East in the 1950s.71 Also according to Namibia, the I.C.J. confirmed that
it has the power to decide whether a S.C.R. is in conformity with the Charter.72




69
   See S. Ghasem Zamani & Mazaheri JamshiD, The Need for International Judicial Review of UN Economic Sanctions,
   in ECONOMIC SANCTIONS UNDER INTERNATIONAL LAW 219, 227-28 (Ali Z. Marossi & Marisa Bassett eds., 2015).
70
   Lockerbie, supra note 7.
71
   Certain Expenses, supra note 19, at 151. In response the I.C.J. recognized the expenses are related to the purpose
   of the U.N. and needs to be paid.
72
   Namibia, supra note 4, at 22.


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                 RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


Outside the I.C.J., the most well-known of these rights-based challenges began in 2008
when the European Court of Justice [hereinafter E.C.J.] overturned a decision by the
European Community [hereinafter E.C.] in implementing U.N. targeted sanctions
against Kadi and Al-Barakaat - resulting in the first court-ordered disobedience for
domestic employment of a U.N. targeted sanctions.73 These cases initially filed in 2005
before the European Court of First Instance [hereinafter C.F.I.], also known as the
European General Court (E.G.C.), concerned the legality of the European Union’s
[hereinafter E.U.] implementation of the U.N. sanctions.74 It challenged implementing
U.N. targeted sanctions imposed through S.C.R. 1267 at the E.U.-level without informing
Yasin Kadi and the Yusuf and Al Barakaat International Foundation about the basis for
the freezing of their assets and without following due process.75
           The claimants argued that the designation violated their due process rights, and
specifically the rights to a fair hearing, property, and effective judicial protection.76
Following that, the C.F.I. declared that the E.U. judicial system prioritised the E.U.’s
constitutional identity.77 The C.F.I. also noted that, in the event of procedural challenges,
the E.U. is not legally bound domestically to implement the Security Council’s
resolutions because it is not a Member of the U.N.; however, it ultimately rejected the
annulment request.78 As a result of this rejection, Kadi and Al Barakaat filed a joint
appeal with the E.C.J., which successfully reversed and set aside the two C.F.I.
judgements.79 It broadened the possible grounds and rights-based boundaries of U.N.



73
   Joined Cases C-402/05 P and C-415/05 P Yassin v Council of the European Union and Commission of the
   European Communities, 2008 E.C.R. I-6351.
74
   See Council Regulation (EC) No. 881/2002 of 27 May 2002 imposing certain specific restrictive measures
   directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and
   the Taliban, and repealing Council Regulation (EC) No. 467/2001 of 6 March 2001 prohibiting the export of
   certain goods and services to Afghanistan - strengthening the flight ban and extending the freeze of funds
   and other financial resources in respect of the Taliban of Afghanistan, annex 1, 2002 O.J. (L 139) 9-22.
75
   See Council Regulation 881/2002 of 27 May 2002, art. 2 (1), that with regard to states, “[a]ll funds and
   economic resources belonging to, or owned, or held by, a natural or legal person, group or entity designated
   by the Sanctions Committee and listed in Annex I shall be frozen”.
76
   See cases C-402/05 P and C-415/05 P Yassin v Council of the European Union and Commission of the European
   Communities, 2008 E.C.R. I-6351, ¶¶ 20-21. Article 230 of the Treaty Establishing the European Community
   states that “[t]he Court of Justice shall review the legality of acts adopted”. See Treaty Establishing the
   European Community arts. 230-231, Nov. 1997, 1997 O.J. (C 340). The Court enumerated the grounds for
   annulment. As such are infringement of an essential procedural requirement, and infringement of any rule
   of law relating to its application, or misuse of powers. See id. art. 230 ¶ 2.
77
   Case T-315/01, Kadi v. Council of the European Union and Commission of the European Communities, 2005
   E.C.R. II‐3649, ¶ 192.
78
   Id. ¶ 193.
79
   See Cases C-402/05 P and C-415/05 P, supra note 76. According to Article 16 of the Statute of the Court of
   Justice the E.C.J. sits in a Grand Chamber consisting of eleven out of the total of twenty-seven judges, instead
   of the normal chamber size of three or five judges. Statute of the Court of Justice, Article 16, 10 March 2001 O.J.
   (C 80).


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2023]                             UNIVERSITY OF BOLOGNA LAW REVIEW                                      [Vol. 8:1


targeted sanctions and granted full reviewability to all European acts, including the
domestic implementation of S.C.R.s.80
           Nonetheless, the E.C.J. rejected the argument that it has jurisdiction over S.C.R.s,
emphasising that it only has jurisdiction over the domestic implementation of S.C.R.s.81
Subsequently, it ruled that the appellants were not fully informed and notified -
resulting in a violation of their due process rights. The Court also confirmed that the
implementation of the S.C.R.s could be subject to judicial review in order to protect
fundamental rights such as property rights, freedom of movement rights, reputation,
family, and privacy rights.82 Finally, the E.C.J. annulled the Council Regulation relating
to Kadi and the Al Barakaat International Foundation be annulled.83
           Nonetheless, based on E.U. law, the E.U. is bound by the U.N. Charter.84 It means
that the E.C.J. lacks the jurisdiction to decide whether the U.N. sanctions are lawful. Jus
cogens, which cannot be violated by any rules of international law, including Security
Council resolutions, are the only exception to the Charter’s supremacy.85 Therefore, only
in cases of jus cogens violations may E.U. courts assess the legality of U.N. sanctions.
Property rights and due process were all categorised by the C.F.I. as jus cogens. Although
it is established that property rights and due process are among the norms of C.I.L., it is
obvious that both Courts idealised and expanded the application of jus cogens with regard
to these rights. As a result, the most apparent means of preventing domestic courts from
redefining and reclassifying international norms is for the U.N. to establish its own



80
   According to Paragraph 326
                 [E.C.] judicature must, in accordance with the powers conferred on it by the [E.C.]
                 Treaty, ensure the review, in principle the full review, of the lawfulness of all [E.C.]
                 acts in the light of the fundamental rights forming an integral part of the general
                 principles of [E.C.] law, including review of [E.C.] measures which, like the contested
                 regulation, are designed to give effect to the resolutions of the Security Council
                 under Chapter VII of the Charter of the United Nations.
   See Cases C-402/05 P and C-415/05 P, supra note 76, ¶ 326.
81
   Id. ¶ 287. It mentioned that European Community in their sanction implementations should “communicate
   those grounds to the person or entity concerned, so far as possible, either when that inclusion is decided on
   or, at the very least, as swiftly as possible after that decision in order to enable those persons or entities to
   exercise, within the periods prescribed, their right to bring an action”. Id. ¶ 336.
82
   Notably, if the Security Council fails to meet the procedural requirements for listing the targets, their due
   process rights, as enshrined in the Universal Declaration of Human Rights [hereinafter U.D.H.R.], may be
   violated. U.D.H.R. art 8, Dec. 10, 1948 recognised “the right to an effective remedy by the competent national
   tribunals for acts violating the fundamental rights,” also, according to U.D.H.R. art 10 “[e]veryone is entitled
   in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination
   of his rights and obligations and of any criminal charge against him”.
83
   Cases C-402/05 P and C-415/05 P, supra note 76, ¶ 51; Guglielmo Verdirame, Implementation of UN Sanctions,
   in THE UN AND HUMAN RIGHTS: WHO GUARDS THE GUARDIANS? 300, 304 (Cambridge University Press ed., 2011)
   (U.K.).
84
   Case T-315/01, supra note 77, ¶ 193.
85
   Id. ¶ 226.


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             RIGHTS-BASED BOUNDARIES OF THE UNITED NATIONS’ SANCTIONS


independent judicial organ with jurisdiction over challenging the legality of U.N.
targeted sanctions.




    CONCLUSION

The U.N. embargoes are presumably permissible under international law. It is primarily
due to the fact that the S.C.R.s take precedence over other international treaties. This
supremacy, however, is limited only to other treaties, and Member States may argue that
they are not obligated to implement U.N. sanctions if doing so would violate the U.N.
Charter. The U.N. Charter established the boundaries of human rights and the principle
of proportionality between the consequences of sanctions and the subjective
wrongdoing. While a short-term impact on a state’s sovereignty can be justified by that
state’s previous wrongdoing, long-term embargoes against states or their main
industries contradict the Charter’s boundaries. In this regard, the most recent step
forward in the U.N.’s sanctioning procedure toward a rights-based model is including a
general exemption for conveying humanitarian aid. This general exemption may lead
sanctions senders to implement similar considerations in their own current and future
sanctioning regimes.
        Individuals sanctioned under a targeted sanctions regime based on classified
evidence may face violations of due process rights, particularly the right to a fair and
transparent listing procedure. The listed individuals have filed challenges in domestic
and international tribunals such as the E.U. Courts due to deficiencies in the
administrative reconsideration process at the U.N. Office of the Ombudsperson and Focal
Point for De-listing. Despite the existence of these fora, this article emphasised the
importance of an independent rights-based mechanism and procedure for reviewing
Security Council sanctioning resolutions. This mechanism should address shortcomings
in upholding the rights-based boundaries of U.N. embargoes, as well as deficiencies in
the process of filing an application for delisting and upholding due process.




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