4 Legal background
4.1 Introduction
In order to provide relevant context for our analysis of questions relating to the Sanctions Act in section 5 below, we include a brief description of the previous (and now repealed) sanctions laws. This is particularly relevant because the content and scope of the Sanctions Act partly build on, and are a continuance of, such prior legal acts.
Furthermore, we include in section 4.3 an overview of the main features of the Sanctions Act.
4.2 Sanctions acts in the past
Broadly speaking, Norwegian legislation consists of (i) acts that have been passed by the Storting and (ii) administrative regulations that have been issued by the Government under authority granted to it by the Storting's acts.
Prior to the Sanctions Act, the Government's authority to issue sanctions flowed mainly from two acts passed by the Storting:
- The Act on the implementation of binding United Nations Security Council resolutions of 7 June 1968 (the “1968 Act”) provided the Government with the authority to implement sanctions adopted by the UN Security Council in the form of binding resolutions.
- The Act on the implementation of international, non-military measures in the form of disruption or limitation of economic or other forms of relations with third states or movements of 27 April 2001 (the “2001 Act”) provided the Government with the authority to implement certain international, non-military measures. The main objective of the 2001 Act was to implement EU sanctions, but as further described in section 5.2 below, the scope was not entirely limited to this purpose.
Collectively, we refer to these two enabling acts as the “Previous Sanctions Acts” in the following.
In addition to the Previous Sanctions Acts, certain enabling acts previously authorised the Government to implement specific economic sanctions against Iran (1980), Argentina (1982), Yugoslavia (1999), and Zimbabwe (2003), and to prohibit – primarily in relation to the Spanish civil war – transportation of weapons, etc. to third states (1937). Both the Previous Sanctions Acts and the four specific enabling acts were repealed when the 2021 Sanctions Act entered into force. Still, the Previous Sanctions Acts and the specific enabling acts may provide guidance in the interpretation of the scope and use of the authority in the Sanctions Act.
In addition to the general and specific enabling acts, the Storting itself has also passed two specific acts (1986 and 1987) which implemented sanctions against the former apartheid regimes in South Africa and Namibia. These acts were repealed in February 1994 but will be commented on to the extent relevant in section 5 below.
4.3 The Sanctions Act
4.3.1 Introduction
In recent years, the number of sanctions regimes has increased, and international trends relating to the targets, content, and scope of sanctions have changed. In order to ensure that the Government has sufficient legal grounds to effectively implement various sanctions in light of these developments, the Sanctions Act was prepared by the (Solberg) Government in 2020 and adopted by the Storting in 2021.
The Sanctions Act entered into force on 16 April 2021. It provides the Government with the authority – but not the obligation – to implement certain types of sanctions or restrictive measures if certain criteria are met, cf. sections 1 and 2 of the Sanctions Act.
In essence, the Sanctions Act is a continuation of the Previous Sanctions Acts. However, it also provides some adjustments to, and clarifications of, the wordings and content of key provisions. We will discuss certain general aspects of these key provisions in the following, and more in-depth in section 5.
The Sanctions Act is currently the only legal ground that authorises the Government to implement sanctions independently of the Storting.
4.3.2 Legal basis for the implementation of UN sanctions
Norway is bound by international law to implement economic sanctions that are adopted by the UN Security Council. Currently, such UN sanctions are implemented through administrative regulations issued by the Government on the basis of section 1 of the Sanctions Act.
4.3.3 Legal basis for implementation of EU sanctions
Section 2 of the Sanctions Act provides that the Government may implement sanctions or restrictive measures other than the sanctions Norway is obliged to implement from the UN, provided that certain criteria are met.
Section 2 provides that the Government may issue regulations comprising the necessary provisions for Norway to implement sanctions or restrictive measures that “have been adopted in intergovernmental organisations” or that “otherwise have broad international support”, and that “aim to maintain peace and security or ensure respect for democracy and the rule of law, human rights, or international law in general”, cf. paragraph 1.
The first alternative, i.e., sanctions that “have been adopted by intergovernmental organisations”, typically comprises sanctions adopted by the EU. Although it is not expressly stated in the wording, it is clear from the preparatory works and the legislative history that the main (albeit not only) purpose of section 2 is to provide the authority to implement EU sanctions in an effective manner. The effective implementation of EU sanctions was also one of the main purposes of the 2001 Act. So far, both the 2001 Act and the Sanctions Act have only been used to implement EU sanctions.
The scope of the second alternative, i.e., sanctions that have not been adopted by intergovernmental organisations such as the EU but which “otherwise have broad international support”, is analysed in sections 5.1 and 5.2 below.
In addition to the introduction of the “broad international support” concept, section 2 of the Sanctions Act increases the types of people and entities that Norwegian sanctions can target and also increases the types of sanctions that can be used.
First, while the 2001 Act did not allow for the Government to implement globally scoped sanctions regimes (including those adopted by the EU) aimed at individuals and entities, section 2 paragraph 2 in the Sanctions Act now allows for this.
Second, section 2 paragraph 2 of the Sanctions Act provides a non-exhaustive and broader list of the kinds of measures that can be imposed. The list is meant to better reflect modern sanctions regimes compared to the 2001 Act. The wording is widely formulated in order to provide the flexibility to implement measures quickly. It should be noted that among other measures, the provision includes a “catch-all” alternative that allows for the implementation of “other measures aimed at maintaining peace and security or ensuring respect for democracy and the rule of law, human rights, or international law in general”, cf. second paragraph letter f.
4.3.4 Legal basis for the implementation of sanctions that are not adopted by the UN or EU
As noted in section 4.3.3 above, the Sanctions Act authorises the Government to implement sanctions that have not been adopted by intergovernmental organisations but “otherwise have broad international support”, provided that the measures aim to “maintain peace and security or ensure respect for democracy and the rule of law, human rights, or international law in general”, cf. section 2.
Hence, the Sanctions Act gives the Government the power to impose sanctions other than those adopted by the UN and EU provided that certain conditions are met. We elaborate further on the scope of this legal basis in sections 5.1 and 5.2 below.
It should be noted that neither the Previous Sanctions Acts nor the Sanctions Act provide grounds for the Government's implementation of so-called unilateral sanctions, meaning sanctions that are imposed by Norway alone and without broad international support.