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COMPLIANCE MATTERS

Recent developments relating to compliance with multilateral treaties
in the area of disarmament and international security.

The newsletter of the Markland Group

Issue No. 9, July 1999

This newsletter was originally published as part of the Canadian Council on International Law Bulletin, Vol. 25, No. 2, Summer-Fall 1999. The version that follows has been slightly edited since it first appeared in the Bulletin.

In This Issue

I. Improving UN Sanctions

Activity In the UN General Assembly

Activity in the Security Council

Activity Outside the UN

II. Book Review - R.T. Naylor: UN Sanctions in Iraq

III. Article Review – Mueller and Mueller: “Sanctions of Mass Destruction”

I. Improving UN Sanctions

The Markland Group takes a special interest in sanctions of the type imposed by the UN Security Council. We regard them as a vitally important tool in the hands of the UN for enforcing disarmament treaties. Without sanctions, the UN would have to rely on military measures, which we regard as an impractical method for enforcing treaties.

The use of sanctions by the UN Security Council is being widely challenged. It is said that they are both inhumane and ineffective. This view seems to be shared by certain members of the Security Council and by important sections of the media. As a result, the Security Council is confused as to what its attitude should be towards the use of sanctions.

This situation would appear to call for some activity on the part of the academic community. Sanctions need to be studied closely in order to determine whether they can be improved by mitigating their humanitarian impact while at the same time enhancing their effectiveness for influencing authoritarian regimes. If these types of improvement are possible for sanctions, they need to be widely understood and urged upon the UN Security Council.

It is therefore encouraging to see an awakening of activity aimed at improving sanctions. Some of the activity has taken the form of discussion among governments, meeting under the auspices of the UN. Even more impressive has been the activity outside the UN — much of it taking the form of seminars devoted specifically to sanctions. What follows is a survey of sanctions improvement activity within the UN and outside the UN.

Activity In the UN General Assembly

In the last issue of Compliance Matters, we spoke of discussions within the General Assembly, specifically within a committee known as the Charter Committee. We said that the Committee was discussing a working paper submitted by Russia entitled Basic Conditions and Criteria for the Introduction of Sanctions and Other Coercive Measures and Their Implementation. The Charter Committee's 1998 Report on its discussions of the Russian working paper was considered and approved by the General Assembly at its meeting in December and the matter was referred back to the Committee for continued discussion (A/RES/53/106).

The 1999 Session of the Charter Committee (whose full name is The Special Committee on the Charter of the United Nations and on Strengthening the Role of the Organization) met in April under the chairmanship of Marja-Liisa Lehto of Finland. A preliminary draft of the Committee's report has been made available to your editor. This document indicates that only a selection of the clauses in the Russian working paper (A/53/33, para. 45) were dealt with at the 1999 session of the Committee. For each clause, the draft report outlines the comments submitted by the sponsor (Russia) as well as the responses and opposing views submitted by other delegations (without naming them).

Among the clauses of the Russian working paper selected for discussion was clause II.2:

Decisions on sanctions must not create situations in which fundamental human rights… would be violated…

The draft report notes "general support" for this provision and goes on to suggest ways in which it could be strengthened. One delegation observed, however, that the international community was continuing to "make efforts towards the goal of imposing 'smart' sanctions. It was noted in this regard that, while the provision tended to contemplate the imposition of comprehensive sanctions, the emerging tend towards the adoption of such 'smart' sanctions rendered the provision less necessary in practice."

Also discussed was paragraph I.7 of the working paper:

The use of sanctions for the purpose of overthrowing or changing the lawful regime or existing political order in the country which is the object of sanctions is not permissible.

The draft report contains no indication of any opposition to this provision. (The draft report states that the Committee decided that silence on any particular paragraph would not be taken to signify consent.)

Clause I.2 of the working paper reads as follows:

The application of sanctions is permissible only in the event of a real, objectively verified and factually established threat to international peace or a breach of the peace; and this refers specifically to international peace, not peace between communities, clans or groups.

In the same vein, clause I.3 contains the following wording:

Sanctions must… pursue clearly defined purposes, have a time-frame, be subject to regular review and provide for clearly stipulated conditions for lifting them, and the lifting of them must not be linked to the situation in neighbouring countries.

These clauses were not discussed at the 1999 Session of the Committee; the same clauses, however, were discussed at the 1998 session (A/53/33, paras. 58-63). They provoked objections from several delegations and no decision was taken.

When finalized, the Committee's report will be considered by the Sixth Committee (legal) at the next session of the General Assembly in the fall. At that time, a resolution will likely be adopted referring the working paper back to the Charter Committee. We are advised that a revised draft of the working paper may possibly be prepared by the sponsor (Russia).

Prior to the tabling of the Russian working paper, the General Assembly took up the question of improving sanctions. In September 1997, the General Assembly adopted without a vote a resolution which registered its support for improving sanctions in accordance with a detailed list of measures (A/RES/51/242). Many of the measures listed are similar to those contained in the Russian working paper.

Note: Cornel König contributed importantly to this submission.

Activity in the Security Council

In addition to the foregoing work under the auspices of the General Assembly, there has been some activity on the part of the Security Council. In September 1998, the Security Council adopted Resolution 1196 which dealt, not with sanctions as such, but with arms embargoes. It contained a clause that reflected some of the concepts in paras. I.2 and I.3 (above) of the Russian working paper:

The Security Council… 10. Stresses that arms embargoes established by the Council should have clearly established objectives and provisions for regular review of the measures used with a view to lifting them when the objectives are met, in accordance with the terms of the applicable Security Council resolutions.

More recently, the Security Council issued a set of guidelines for each of the Council's committees that have been mandated to administer the various sanctions regimes, the so-called sanctions committees. The guidelines are contained in a document dated 29 January 1999 entitled Note by the President of the Security Council: Work of the Sanctions Committees (UN Document S/1999/92). The following are some of the highlights of this document (abbreviated):

· Each sanctions committee should consider information as to alleged violations of the sanctions regime and should take strict action in this regard.

· Each committee should monitor, throughout the sanctions regime, the humanitarian impact of the sanctions on vulnerable groups, including children, and make required adjustments to the exemption mechanisms.

Activity Outside the UN

Listed below are several recent seminars on the topic of sanctions.

· A Symposium on Targeted Sanctions,New York, December 1998.
Auspices: Fourth Freedom Forum, Goshen, Indiana, and seven other institutes.
Sample Presenters: Ambassador Celso Amorim, Brazilian Ambassador to the UN and chairman of the three panels on Iraq (1999); Ed Luck, New York University School of Law; Andrew Mack, Office of the UN Secretary-General.

Access to selected papers presented at this symposium: http://www.fourthfreedom.org/unsymposium/contents.html

· Targeting UN Financial Sanctions: Interlaken, Switzerland, two seminars in March 1998 and March 1999
Auspices: Swiss Federal Office for Foreign Economic Affairs
Sample Presenters: Jeremy Carver, International Law, Clifford Chance, UK; Rolf M. Jeker, Delegate of the Swiss Government for International Agreements; Richard Newcomb, Director, Office of Foreign Assets Control, US Treasury.

Access to all papers presented at these two seminars: www.smartsanctions.ch/int1_papers.htm www.smartsanctions.ch/int2_papers.htm

· United Nations Sanctions and International Law: Geneva, Switzerland, June 1999
Auspices: Graduate Institute of International Studies, Geneva
Sample Presenters: Judge Rosalyn Higgins, International Court of Justice; J. A. Frowein, Max-Planck Institute; Bruno Simma, University of Munich.
Further information may be obtained at: http://heiwww.unige.ch/

· Can Sanctions be Smarter? London, December 1998
Auspices: Overseas Development Institute, London
Sample Presenters: Margaret Doxey, emeritus professor, political studies, Trent University; Dennis Halliday, formerly UN Humanitarian Coordinator for Iraq; Joseph Stephanides, Head, Sanctions Branch, UN.

The papers from the conference are available at: http://www.oneworld.org/odi/rrn/newslet/bookrevs/sanctions.html

Among the topics discussed at these seminars were

· Reducing the humanitarian impact of sanctions

· Improvements in Iraqi-type oil-for-food schemes

· Improved financial sanctions aimed at locating and freezing assets of the target country as well as assets belonging to leadership personnel

· Travel restrictions against leadership personnel

· Compensation for economic losses suffered by participating countries

· The criteria and pre-conditions for instituting sanctions

· Model legislation for adoption by participating countries

· Creation of a UN Sanctions Agency

Mention should also be made of a study under the auspices of the Institute for National Strategic Studies (a division of the US Government National Defense University) entitled Imposing International Sanctions — Legal Aspects and Enforcement by the Military by Richard E. Hull, March 1997. Information available on the Internet at www.ndu.edu/ndu/inss/books/sanctions.html

In addition to the foregoing activities, several more are in the planning stage. The Fourth Freedom Foundation has sent us the following note:

At the request of the Canadian Government and in conjunction with the International Peace Academy, the Fourth Freedom Forum and the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame are conducting a comprehensive analysis of United Nations economic sanctions. The goal is to produce a book-length book report by mid-December. The project is being managed by Julia Wagler.

A series of seminars is being planned under the direction of the Bonn International Centre for Conversion to be sponsored by the German Foreign Office. The series would consist of an expert seminar in late 1999, a series of workshops and a concluding seminar. Participants would include (inter alia) the chairs of UN Sanctions Committees, sanctions experts from national governments and the UN as well as academic experts. The mandate would be to develop recommendations on arms embargoes and travel sanctions. The process will include discussions of a draft model law to implement UN sanctions.

In addition, Canada has commissioned the International Peace Academy of New York to prepare an extensive study on the effectiveness of existing sanctions regimes and their humanitarian impact. The study is to be completed in the spring of 2000. The project will be directed by the Academy's Director of Research, Dr. Elizabeth Cousens.—DS

II. Book Review - R.T. Naylor: UN Sanctions in Iraq

R.T. Naylor “Patriots and Profiteers: On Economic Warfare, Embargo Busting and State-Sponsored Crime”

McClelland & Stewart, 1999, 432 pages, $34.99

Reviewed by Philipp C. Bleek*

This is history unlike any other . . . populated by an extraordinary underworld of warriors and smugglers, gangsters and spies who are engaged in activities that would strain credulity if their acts were not so thoroughly documented.

Thus reads the final sentence of the book jacket description of R.T. Naylor’s recently published Patriots and Profiteers. The description is ironic because it highlights the very flaws of the book it purports to praise. Naylor’s over-the-top, intimately detailed yet often factually sparse descriptions of an extraordinary underworld do strain credulity. And Naylor provides documentation for few of his sources. In Naylor’s metaphor-laden prose, previously unsubstantiated (if at times plausible) rumors become hard fact.

Patriots and Profiteers deals with “economic warfare.” The book discusses a broad range of 20^th century economic warfare. This review will focus on Naylor’s discussion of UN sanctions imposed on Iraq. Naylor’s summary of the Iraqi economic embargo is typical of the book’s analysis:

While UN inspectors, often acting as little more than spies for American and British intelligence, engaged in largely fruitless but highly publicized searches for further caches of “weapons of mass destruction,” the real reason for maintaining [sanctions] against Iraq . . . was to keep oil from flooding an already soft market (p. 377).

To Naylor, politics is a grand conspiracy. Surely a modicum of cynicism is in order – but Naylor’s approach seems excessive. At the same time, Naylor’s sweeping statements often hinge on established fact. United Nations Special Commission (UNSCOM) inspectors do seem to have spied for the US. And some of UNSCOM’s inspections have been “fruitless.” But those two facts do not make UNSCOM an utter failure, as Naylor seems to argue. UNSCOM and the International Atomic Energy Agency (IAEA) deserve credit for eliminating Iraq’s nuclear, ballistic missile, and chemical weapons capabilities. Only Iraq’s biological warfare capabilities remain substantially unaccounted for, due to the difficulty of differentiating biological weapon development from non-military activities such as fertilizer and pharmaceutical production.

Naylor’s book raises at least one critical issue. As a few academic commentators have observed, sanctions may play a perverse role in autocratic regimes. They undermine the economic independence of the middle classes, a potential source of resistance against the regime. At the same time, regime allies who control the black market may benefit tremendously from the sanctions. In other words, sanctions may create a vested interest in their perpetuation among the elite they are targeted against while reducing the potential for resistance against that elite.

Patriots and Profiteers consists of a litany of black-market efforts to undermine sanctions regimes. The book’s thesis is that sanctions inevitably fail because black market economies supplement previous legitimate economic activity. These economies supply the power elite with consumer goods, arms, and anything else they desire – hence, the brunt of the sanctions must be borne by the civilian population. Past and present sanctions regimes have surely imposed undue burdens on civilian populations – although Naylor often succumbs to hyperbole on this issue. But sanctions also deserve far more credit than Naylor is willing to give them. Sanctions – rather than threats of armed force – were likely the prime source of leverage that persuaded Iraq to allow UNSCOM to dismantle its weapons of mass destruction (WMD) establishment.

Given sanctions’ apparent successes, but also their considerable humanitarian burdens, it is incumbent on the academic community (Naylor included) to contribute to current efforts to maximize the effectiveness of the sanctions instrument while minimizing its humanitarian cost. “Smart sanctions” are a topic of intense debate in the academic community. Travel bans, financial restrictions, and sanctions regimes that incorporate humanitarian assistance programs (such as the Iraqi oil-for-food program) are all means of targeting the political leadership while minimizing humanitarian impact. But even “smart sanctions” will impose some humanitarian costs. Policy makers considering such sanctions in the future will need to balance those costs against the potential benefits. Some level of “undemocratic” and duplicitous consideration will likely influence future decisions regarding sanctions. We can only hope that the reality of global politics is not quite as bleak as the extraordinarily cynical picture presented by R.T. Naylor.