Sanctions: Vote on Resolution Establishing a Standing Humanitarian Carve-out to UN Sanctions Regimes*
Today (9 December), the Security Council is expected to vote on a draft resolution establishing a “humanitarian carve-out” to the asset freeze measures imposed by UN sanctions regimes. (The carve-out is also referred to as a standing humanitarian exception or exemption.) The draft resolution is open to all UN member states for co-sponsorship.
Ireland and the US, the co-penholders on the resolution, circulated the first draft of the resolution to all Council members on 2 November. Several rounds of negotiations were held, and members also submitted written comments. The penholders put the third version of the draft under silence until 12 pm on 6 December; silence was broken by China and Russia. After making additional revisions, a fourth draft was then put in blue on 8 December without an additional silence procedure.
The draft resolution in blue decides that “the provision, processing or payment of funds, other financial assets, or economic resources, or the provision of goods and services necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs … are permitted and are not a violation of the asset freezes imposed by [the] Council or its Sanctions Committees”. This carve-out applies to a wide range of entities, including UN programmes, funds, agencies, humanitarian organisations having observer status with the General Assembly, and certain non-governmental organisations.
It seems that negotiations on the resolution were difficult, reflecting divisions among Council members regarding several issues, including the appropriateness of establishing a humanitarian carve-out that applies to all UN sanctions regimes, which regimes should be included in the scope of the carve-out, and the method of monitoring the carve-out’s implementation.
The inclusion of the 1267/1989/2253 Islamic State in Iraq and the Levant (ISIL/Da’esh) and Al-Qaeda sanctions regime within the ambit of the carve-out appears to have been a major issue during the negotiations. It seems that some members, including China, France, India, Kenya, and Russia, were concerned about the potential diversion of humanitarian aid to terrorists, and argued that the risk of such diversion is greater for the 1267/1989/2253 ISIL and Al-Qaeda sanctions regime because it involves numerous designations across multiple jurisdictions and is not limited to a single geographic area. Some of these members apparently also suggested that the humanitarian implications of individual UN sanctions regimes should be considered and managed on a case-by-case basis, rather than through the creation of a standing humanitarian carve-out that applies to all regimes. These positions were opposed by other members, including Brazil, Mexico, Norway, and the UK, who seemingly contended that the carve-out should be as broad as possible in order to address the concerns previously raised by humanitarian organisations. It appears that some of these members also argued that given the number of individuals and entities listed under the 1267/1989/2253 sanctions regime and its broad geographical application, it must be included in order to render the carve-out effective.
To address the concerns of those who were sceptical about including the 1267/1989/2253 regime in the carve-out, it appears that text requiring the Council to review the implementation of the carve-out with respect to that regime after a period of two years was added to the second draft of the resolution. This compromise was apparently not acceptable to some members, who pushed for the draft to include text clarifying that the carve-out will only apply to the 1267/1989/2253 sanctions regime for a specific period, after which the Council will make a decision on the continued application of the carve-out to that regime. Language to this effect was added to the third draft of the resolution and included in the draft in blue, which stipulates that the carve-out will apply to the 1267/1989/2253 regime for two years and expresses the intention to make a decision on the extension of the carve-out for the regime once that two-year period has expired. It seems that the time period for the application of the carve-out to the 1267/1989/2253 sanctions regime was also an issue during the negotiations, with some members, including France and India, advocating for one year rather than two.
Language requesting the 1267/1989/2253 Monitoring Team to assist the Emergency Relief Coordinator by providing information concerning implementation of the resolution for use in briefings to the Council’s sanctions committees was also added to the second draft. It appears that this language was included because some Council members wanted to strengthen and improve the oversight of the carve-out’s implementation. It seems that some members were concerned about the practical implications of this request, however, and it was ultimately removed from the draft in blue, which instead emphasises the importance of the “Emergency Relief Coordinator’s consideration of any information provided by the 1267/1989/2253 sanctions committee or its Monitoring Team”.
It appears that China and Russia also argued that the draft resolution was not sufficiently broad and should take other issues into account, including the humanitarian effects of other types of UN sanctions, such as arms embargoes and travel bans, as well as the impact of unilateral coercive measures imposed by member states. Both states apparently pushed for the inclusion of language requesting the Secretary-General to issue a written report on the unintended adverse humanitarian consequences of Security Council sanctions measures, including travel bans and arms embargoes. Although this text was included in the draft in blue, other preambular language proposed by China and Russia concerning unilateral coercive measures was not added to the draft.
The entities to which the carve-out applies was another issue during the negotiations. The first draft of the resolution included a broad list of entities subject to the carve-out; however it seems that some members, including China and Russia, contended that the carve-out should only apply to a limited group of organisations. In response to this suggestion, other members argued that the carve-out should encompass a wider range of groups working to deliver humanitarian assistance in order to be fully effective. The list in the first draft was largely retained in the draft in blue, with the exception of “contractors” to humanitarian organisations, who were not included.
Language emphasising that measures taken by member states to implement sanctions are not intended to have adverse humanitarian consequences was added to the draft in blue during the negotiations. Language recalling the UN “guiding principles of General Assembly Resolution 46/182 of humanitarian emergency assistance” and a paragraph expressing the Council’s readiness to “review, adjust and terminate … its sanctions regimes taking into account the evolution of the situation on the ground and the need to minimise unintended adverse humanitarian effects” were also added to the draft. It seems that this paragraph and the text referring to “General Assembly Resolution 46/182” of 19 December 1991 were added to the draft at the behest of China and Russia. The 1991 guiding principles, outlined in the annex of this General Assembly resolution, state that “the sovereignty, territorial integrity and national unity of States must be fully respected in accordance with the Charter of the UN. In this context, humanitarian assistance should be provided with the consent of the affected country and in principle on the basis of an appeal by the affected country”.
*Post-script: On 9 December, the Council adopted resolution 2664, establishing a humanitarian carve-out to the asset freeze measures imposed by UN sanctions regimes. 14 members voted in favour and India abstained.