The sanctions mechanism of the United Nations Security CouncilIn recent years contemporary international relations have been marked by a relatively new political phenomenon – the "language of sanctions”, which manifests itself in international isolation and economic pressure on different states.
It seems too simple to explain the increased interest of the world community. Today, in the era of globalization, when there is a gradual transformation of world into a single area and common international legal, cultural and information space for all actors of international relations, the violation of the principles of international law as a result of illegal actions of states, which entails human casualties, becomes a threat on a global scale. The embodiment of the universal moral principles and norms, ideas of justice and humanity in existing legal norms, which became the main guidelines for the development of modern society, determines the logic of this process.
The new world order is a result of the implementation of the norms and principles of international law, compliance of which will guarantee international peace and security in the future. The increasing role of law in the world is a primary regularity of the global order,guarantee of which should be international community of states and international organizations designed to promptly and effectively respond to events happening in the world.
The main feature of modern international law is more and more thorough regulation of coercive measures. Now you can hardly find any kind of use of force in inter-state relations, which would not go beyond the limits of international law. Permitted by international law coercion is not violence, but a mean of law enforcement. The necessary sign of this compulsion is legitimacy. The coercion also must be lawful both as on basis, methods and volume.
Generally, coercion is a necessary element of decentralized functioning mechanism of international law (Ubi jus, ibi remedies – where there is a right there is a remedy). One of the main features of the mechanism of functioning of international law is the absence of central enforcement machinery authorized to compel the subjects of international law to uphold the principles and norms of international rights and obligations arising from the provisions of certain international documents. In this regard, the means of coercion are concentrated in the hands of the subjects of international law – states and their associations (international organizations) that apply them individually or collectively.
The fact should be noted that in international law the concept of the use of sanctions as tools of coercion found a fairly wide distribution and recognition. So, G. I. Tunkin argued that "international law, as legal norms inherited in the sanction...” (Тункин Г.И. Теория международного права.М., 1970. С. 470.).R. Monaco noted that "in any legal system compliance is ensured by sanctions” (Monaco R. Course generale du droit international public // Recueel des Cours. Vol. 1968-III.P. 313.).
The modern doctrine of international law contains another very interesting point according to which sanctions should be classified as coercive measures used only by international organizations, endowed by states the appropriate rights, which in turn gives them a fundamental difference between individual actions of states.
For the first time such a provision was brought after the adoption of the Statute of the League of Nations. Later it received its further development and final affirmation after the adoption of the Charter of the United Nations, which laid the foundations of a new universal cooperation of states in the framework of an international platform – the UN.
The UN not only occupies a central place in the system of international organizations, but also plays a unique role in the modern international affairs and political development. The primary responsibility for maintaining international peace and security is assigned to the UN Security Council, which is the main executive body of the Organization, whose decisions (resolutions) are legally binding.
It should be underlined that the UN has provided such a procedure, according to which a state even that is not a member of the Organization, acted in accordance with the principles of its Charter to the extent necessary to maintain international peace and security (p. 6. Article 2 of the UN Charter). The decisive role in the implementation of this norm belongs to the UN Security Council.
Despite the fact that the Security Council is a body, which represents the limited (less than 10% of the total number of member states of the UN) number of member states, they agreed that in the performance of their duties, the Council "acts on their behalf” (p. 1, Article 24 of the UN Charter). In other words, the Security Council takes unilateral actions that are considered as measures of the UN.
The Security Council determines the existence of any threat to the peace, breach of the peace and act of aggression. This privilege of the Council has the legal consequences for providing a state that is threatened or subjected to aggression the right to secure its interests through the United Nations.
Having identified the existence of a threat to peace and security, the Council may make a recommendation to stakeholders, but may accept decisions on coercive measures to the offender, utilizing its sanctions mechanism, which has been used in the practice of international relations with varying degrees of success.
Thus the UN Charter, placing on the Security Council most important function – the maintenance of international peace and security, has allocated it with the relevant power. As a result, the UN Security Council should play an important role in the formation of the mode collective reaction to the violation of the rules, which are determined by the international community as particularly important. Violations of these rules are classified as threats or breach of international peace and security (See: Gowland-Debbas V. The functions of the United Nations Security Council in the International Legal System // The Role of Law in International Politics. N.Y., 2000.).
The resolutions of the Council adopted according to Chapter VII of the UN Charter (Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression) contain all of the legal elements of international responsibility. The determination of a threat in accordance with Article 39 to peace or an act of aggression is a statement of the violation of fundamental norms. The resolutions of Security Council call to stop the following act, provide guarantees avoid similar situations in the future, and to provide reparation. Measures taken in accordance with Article 41 and 42 are sanctions intended to encourage the offender to fulfill the obligations arising from its international legal responsibility.
The UN Charter gives the Security Council the right to the use of temporary and coercive measures. Temporary measures aimed at preventing worsening of the situation and should not prejudice the rights, claims or position of the parties concerned. Such measures may include requiring the parties to cease hostilities, withdraw troops to certain areas, and to resort to one or another procedure of peaceful settlement, including the entry into direct negotiations, recourse to arbitration, the use of regional organizations and bodies. Temporary measures were not binding. They are not legally binding on the parties, but the Security Council in accordance with Article 40 of the UN Charter "properly takes into account the fact of non-enforcement of these temporary measures”.
Coercive measures are divided into measures that do not involve the use of armed forces, and acts with the use of the armed forces (Article 41 and 22 of the Charter). Their utilizations are the exclusive competence of the Security Council, which is one of the most important components of its power.
According to Article 41 of the Charter enforcement measures that do not involve the use of armed forces, may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication, and the diplomatic service, as well as other measures of this nature. The Council took decisions on the application of such measures as sanctions in the past against South Africa, Southern Rhodesia and North Korea.
In cases when the aforementioned measures are insufficient or ineffective, the Security Council on the basis of Article 42 of the Charter has the right to take the armed forces of the United Nations actions that are necessary for the maintenance of international peace and security. All members of the United Nations make available their armed forces, assistance, and facilities, including the right of transit through the territory, territorial waters and airspace to the Security Council at its request. For this purpose, special agreements are reached.
The practices in the application of sanctions against Iraq can serve as an illustration of the capabilities of the Security Council. On the day when Iraq attacked Kuwait (August 2, 1990), the Council adopted a resolution that determined the fact of breach of the peace (Article 39 of the Charter), as well as recommended ways immediate cessation of aggression (Article 40). In the following resolution the Council noted the failure of the compliance of the previous resolution by Iraq and determined measures to restore the authority of the legitimate government in Kuwait. These were already not recommendations, but the decisions. Moreover, it not only addressed the UN members, but also the states that were not members. This is the example of exercising the power in clause 6, Article 2 of the Charter.
There were cessation of all economic relations and refusing to recognize any occupational government in the prescribed measures. The following resolution (August 25) considered the use of the armed forces. The resolution dated September 25 is particularly interesting from a legal point of view. It determined that all the legal acts of Iraq that contradict to the Council resolutions are not legally binding. According to Article 103 of the Charter of the primacy of obligations under the Charter, the Council obliged all states regardless of their previous agreements to terminate aviation ties with Iraq. In other words, binding Council resolutions are equated to the obligations under the Charter.
The resolution also established the terms of the cessation of hostilities, as well as the procedure for compensation of damage. As a result, they replaced not only the agreement on a truce, but a peace agreement.
A special kind of coercive measures is the suspension of the exercise of the rights and privileges of a member of the UN against which the Security Council took the decision to authorize enforcement action. This measure is also an exclusion from membership of UN for violation of the Charter (Article 6).
Thus, the international community, acting through the UN, specifically the Security Council that has been designed to maintain international peace and security authorized response to violations of the norms and principles of international law, bringing to justice the state perpetrators that violated international law.
Well, it turns out that the UN Security Council conducts a kind of policy of "differentiation” in the selection of questions "largest” and "smallest” importance. How else to explain the fact that none of the aforementioned measures of the sanctions mechanism of the UN Security Council have not been applied to Armenia as a result of the aggressive policy which occupied 20% of internationally recognized Azerbaijani territory – Nagorno-Karabakh and 7 surrounding districts?
Moreover, the UN Security Council had adopted four resolutions (822, 853, 874 and 884), reaffirming the sovereignty and territorial integrity of Azerbaijan and the inviolability of international borders and the inadmissibility of the use of force for the acquisition of territories. The resolutions demand the immediate cessation of hostilities, the immediate, complete and unconditional withdrawal of all occupying forces from Azerbaijani territories. Despite the legally binding nature of the resolutions of the UN Security Council to all member-states of the Organization, they are still ignored by Armenia. And in this case the Armenian side was not subject to the sanctions mechanism of the Security Council, designed to force the offender to fulfill the requirements of international law, as well as the fulfillment of the obligations arising from the relevant documents (resolutions) of the Security Council.
The President of the Republic of Azerbaijan Ilham Aliyev has repeatedly underlined during his numerous speeches at the international organizations that certain resolutions adopted by the Security Council on the Nagorno-Karabakh conflict cannot find its implementation for more than 20 years, while other resolutions adopted by the same Council are executed almost within a few hours.
The transfer of resolution of Nagorno-Karabakh conflict to the OSCE and its Minsk group, which has been unsuccessfully working for more than two decades, was in fact impingement of Security Council resolutions. The reason of inefficiency of OSCE activities, as well as the UN Security Council, is the lack of international pressure on Armenia which stems from the lack of political wills of the parties of the mediating countries, from which, oddly enough, Armenia also receives the most of its foreign aid.
Another threat comes from a nuclear deterrence which voiced by some Armenia’s current and former officials. After large-scale armed clashes between Armenian and Azerbaijani troops, from April 2 to 5, 2016, Armenian politicians made international headlines by declaring "the presence of nuclear weapons in Armenia”. Thus, the former Prime Minister of Armenia, and current MP, Hrant Bagratyan, claimed at a press conference on April 29, 2016. "We have the capacity to create nuclear weapons, [adding] we have nuclear weapons [in order] to protect Armenia and Nagorno-Karabakh against further attacks.” Armen Rustamyan, the head of the parliamentary faction of the Armenian Revolutionary Federation (Dashnaktsutyun), made a supportive statement saying, "Hrant Bagratyan has grounds for such a statement as he has been a prime minister, [adding] who said that, we are banned of producing the weapons.”
Moreover, the nuclear fuels and radioactive wastes from Metsamor, an outdated Chernobyl-type NPP located in an earthquake-sensitive zone, are kept in the occupied territories of Azerbaijan by Armenia, and the Nagorno-Karabakh region is used for the illegal smuggling of nuclear materials.
As it reflected in the Statement of the Ministry of Foreign Affairs of the Republic of Azerbaijan, in recent escalations and offensive actions starting from April 2, 2016, armed forces of Armenia among numerous instances of deliberate shelling on civilians and civilian objects of Azerbaijan with artillery and large-caliber weapons have also used shells containing chemicals such as white phosphorus. One of such projectiles was shelled on Askipara village of the Tartar region of Azerbaijan, coincidentally it missed its prime target and landed on the cultivated cotton field and was found as an unexploded ordinance by the Azerbaijan National Agency for Mine Action (ANAMA) on May 10. If landed on the densely populated part of Askipara village, the projectile would have inflicted serious casualties and injuries among the civilians.
The investigation has revealed that ammunition, which was fired by the armed forces of Armenia, is a D-4 type (smoke bomb) 122 mm artillery shell. It weighs 27.07 kg and contains 3.6 kg of P4 (the chemical code of white phosphorus).
Consonant with general international humanitarian law, attacks on civilians or civilian objects as are attacks on forests or other kinds of plant cover (like cultivated area in Askipara village) with white phosphorus shells are prohibited under the Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons of the United Nations Convention on Certain Conventional Weapons (CCW or CCWC) of 1980.
Armenia with the intentional strike at civilian objects of Azerbaijan using high-explosive white phosphorous grossly violates its obligations under international humanitarian and human rights law, such as 1949 Geneva Conventions, and in particular the Fourth Geneva Convention.
Weapons containing white phosphorus can also qualify as "incendiary weapon or device” under the 1997 International Convention for the Suppression of Terrorist Bombings which Armenia acceded in 2004. The Convention applies to any "explosive or incendiary weapon or device that is designed, or has the capability, to cause death, serious bodily injury or substantial material damage” or a weapon that has these effects through toxic chemicals, biological agents, toxins, or radiation.
Over the past several years, the world community only focused its attention on the nuclear talks with Iran, while neglecting other potential nuclear arms spots in the neighborhood. The bellicose rhetoric of Armenian politicians about the possible "utilization of nuclear weapons” is not that different from the warnings of a possible nuclear attack by North Korea in early March.
North Korea (DPRK) conducted its fourth nuclear detonation on 6 January 2016. The UN Security Council began working immediately on new measures to take in response to North Korea's fourth nuclear test. U.S. Ambassador Samantha Power said in a statement the 15-nation council should impose "a tough, comprehensive, and credible package of new sanctions,” and ensure "rigorous enforcement of the resolutions it has already adopted”. U.N. Secretary-General Ban Ki-moon called North Korea's latest nuclear test "deeply troubling” and "profoundly destabilizing for regional security”. The head of the UN International Atomic Energy Agency said that if the nuclear test is confirmed, it is in clear violation of UN Security Council resolutions and is "deeply regrettable”.
On October 9, 2006, North Korea had conducted its first nuclear test. The Security Council responded immediately to the challenge to international peace and security and on October 14 adopted a resolution demanding that the DPRK not conduct any more nuclear tests and ballistic missile launches. The resolution ensured the introduction of sanctions against North Korea, the ban on arms supplies and materials associated with the production of weapons of mass destruction.North Korea had conducted two more underground nuclear tests in 2009 and 2013, also drawing sanctions from the UN Security Council.
Evaluating the effectiveness of the sanction mechanisms of the international organizations, the following points should be underlined: 1) the deterrent effect on the offenders, limiting the scope of their wrongful conduct; 2) the power to demonstrate the position of the international community and states toward an offence, providing preventive action against potential infringement; 3) limitation upon the financial capabilities of the offender. The arms embargo impedes the modernization of the armed forces, and economic sanctions reduces a state’s economic potential, which then results in limiting potential financial expenditure on armaments.
At the same time we have to admit that the effectiveness of sanctions coming from international organizations, particularly from UN and its Security Council, first of all depends on the policies of great powers holding sufficient economic and military resources and the leverage of political coercion at the global level necessary for ensuring the effectiveness of the mechanism of sanctions and accountability of states that violate universally recognized norm and principles (jus cogens) of international law.