United Nations Financial Sanctions 1st Edition by Sachiko Yoshimura ISBN 0429522460 9780429522468

1 UN economic sanctions and financial measures—evolution and challenges

Introduction

Economic sanctions and collective security

What are economic sanctions?

Economic sanctions and their institutionalization

Difference between unilateral sanctions and sanctions imposed by UN

UN economic sanctions and coercive measures

The League of Nations and financial sanctions

The UN Charter and economic sanctions

Organs and competence of UN economic sanctions

Financial measures on economic sanctions and their characteristics

Practice of UN economic sanctions

Financial measures of UN economic sanctions

Smart sanctions and the Interlaken Process

Issues with UN financial sanctions

Issues relating to invoking of UN financial sanctions

Issues with the implementation of UN financial sanctions I

Measures taken by the UN to ensure implementation: the Security Council subsidiary organs and their activities

Issues of UN financial sanctions implementation by states and other actors

Issues with the application of UN financial sanctions

General application of UN financial sanctions

The application of UN financial sanctions on targets

Conclusion

Notes

2 “Smart sanctions” by the UN and financial sanctions

Introduction

Fundamental shift in the use of sanctions

Lessons from adverse humanitarian effects

Formulating “smart sanctions”

Current targeted sanctions

Sanctions on individuals and entities

Listing/delisting process and human rights

Emerging legal challenges and political concerns

Legal challenges at the regional and national levels

UN sanctions before the European Court of Justice

UN sanctions and national courts

Growing political concerns among member states

Developments and procedural improvements within the UN

The establishment of a focal point

Further reform of the 1267 committee procedures

Expanded roles of the 1267 committee

Appointment of an Ombudsperson

Conclusion

Notes

3 Functions of Security Council subsidiary organs in the UN financial sanctions regimes: From the perspective of the law of international organizations

Introduction

Background and problems

Methodological approaches

Legal status of Security Council subsidiary organs

Development of financial sanctions regimes

From comprehensive sanctions to “targeted” sanctions

Development of subsidiary organs in financial sanctions regimes

Sanctions committees

Bodies of experts

Monitoring bodies

Office of the Ombudsperson

Some observations from the perspective of the law of international organizations

Conclusion

Notes

4 Recent challenges regarding the implementation of UN Security Council sanctions

Introduction: overview of UN Security Council sanctions and issues at stake

Constant criticism towards the legitimacy of UN sanctions

Expanding the scope of sanctions measures and growing challenges of implementation

Relationship between individual sanctions and UN sanctions

Conclusion: prospects for more effective implementation of targeted sanctions

Notes

5 How Japan implements UN financial sanctions

Introduction

Implementation of UN financial sanctions

Overview

A brief history of the FEFTA

Types of regulations under the FEFTA

Grounds for license requirement under the FEFTA

Measures to ensure enforcement of the license system

The FEFTA as basic legislation for UN financial sanctions

Limitations of the FEFTA

Scope

Confirmation obligation

Concept of the Comprehensive Sanctions Act

A comparison with the US sanctions system

Conclusion

Notes

6 Implementation of financial sanctions by a state and its legal challenges: The case of sanctions-related laws of the United States

Introduction

What are financial sanctions?

Contents of this chapter

The rationale for financial sanctions by the United States

Considerations against the financial ecosystem

Strategic persuasion of American values and construction of LFS by the public and private sectors

The US laws pertaining to financial sanctions

Comparisons with Japanese laws

The US legal system

The case of Iranian sanctions

Discovery of Iran’s nuclear program

Reconciliation policy by Britain, Germany, and France

The UN Security Council resolution

Enhanced united sanctions by the United States and Europe

Joint comprehensive plan of action (JCPOA)

UN Security Council resolutions

Exit of the United States from JCPOA and resumption of sanctions

Legal issues regarding implementation of sanctions by a state

Protection of human rights of sanctioned individuals

Extraterritorial application

Issues surrounding the effectiveness of financial sanctions

Notes

7 Financial sanctions implementation by the European Union—the jurisprudence of the CJEU on the balance between protections of fundamental rights and effectiveness of the restrictive measures implementing the UN Security Council Resolution 1373

Introduction

The EU financial sanctions regimes

Classification and legal bases of EU financial sanctions

The procedure of listing a person in the case of autonomous sanctions

Two problems on the two-tier system

The LTTE case and the Hamas case

The judgment of the General Court

The judgment of the Court of Justice

An analysis of the case

The verification of compliance by the third countries with human rights standards

The balance between the protections of fundamental rights and the effectiveness of the sanctions

Remaining issues in relation to other sanctions regimes

Need for a domestic decision on new information serving as a basis to continue the imposition of EU sanctions on their targets

The significance of findings by the EU to Japanese courts

Conclusion

Notes

8 Implementation and enforcement of UN sanctions—the private sector’s key role and evolving standards

Introduction

Legal framework for sanctions compliance

“Gold standard” of sanctions compliance promulgated by the financial sector

Due diligence

Contractual protections

Conclusion

Notes

9 Judicial challenges against UN financial sanctions

Introduction

The judicial cases involving the UNSC financial Sanctions

The cases before the CJEU: the autonomy of the EU legal order

The first Kadi judgment by the CJEU

The actual impact of the CJEU’s Kadi judgment: the establishment of the UNSC Ombudsperson

The cases before the ECtHR: the harmonious approach

The Al-Jedda case and the Nada case

The Al-Dulimi case

The legal approaches taken by the two courts

Common characteristics of the legal approaches

Differences between the legal approaches

Conclusion

Notes

10 UN financial sanctions against the Democratic People’s Republic of Korea: Challenges and proposal for efficient implementation

Introduction

UN Security Council’s practice on the sanctions against the DPRK

The DPRK’s nuclear and ballistic missile program and the diplomatic effort until 2006

Development of UN sanctions against the DPRK

Characteristics of the UN DPRK Sanctions: comparison with UN Iran sanction

Challenges in implementation of the financial sanctions

Case study: the DPRK’s sanction evasion techniques

Use of cyber space

DPRK’s bank representatives

Use of overseas financial networks

Use of diplomatic status

Use of high-value goods to acquire money

Limitations of resolutions

Slow adoption of new elements in the resolutions

Lack of definition

Challenges of Member States’ implementation

Financial transfer in the third country

Insufficient inter-agency information exchange

Lack of legal systems to cover non-registered financial service provider

Monitoring of DPRK’s cyber space activities

Conclusion

Notes

11 UN sanctions on Iran and their financial elements

Introduction

Financial measures in UN sanctions on Iran

Asset freeze

Ownership and control of assets

Changing names of designated individuals and entities

Proliferation financing

Monitoring financial transactions based on UNSCR 1929 (2010)

National sanctions

US sanctions

EU sanctions

Impact on Iran’s economy

UNSCR 2231 (2015) and financial sanctions

Conclusion

Notes

12 The UN Security Council Resolution 1540 and counter proliferation financing

Introduction

Proliferation financing under UNSCR 1540

The FATF’s clarification of proliferation financing

The FATF’s 40 Recommendations and fourth-round mutual evaluations

Japan’s legislative and administrative developments in regard to counter proliferation financing

Conclusion: challenges to the implementation of UNSCR 1540

Notes

Annex I International and domestic documents related to United Nations financial sanctions (as of March 2018)

Annex II Major economic sanctions adopted by the UN Security Council under Chapter VII of the UN Charter (as of March 2018)

Index