5 Analysis of questions regarding the sanctions act
5.1 Does the Sanctions Act permit the Government to take its own initiatives to impose targeted sanctions as long as there exists “broad international support” for such sanctions?
Our conclusion is that the Sanctions Act permits the Government to take its own initiatives to impose targeted sanctions, provided that the sanctions (i) have “broad international support”, (ii) 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, and that (iii) other circumstances do not require that the Storting should still be consulted. In brief, the plain text of the law allows for such sanctions to be imposed, and it is clear from the preparatory works and legislative history that the Storting meant for the Government to have the option to do so.
First, the wording of section 2 of the Sanctions Act clearly allows for the Government to impose sanctions outside the framework of intergovernmental organisations. This is reflected in the plain text of the law, which reads as follows (our emphasis):
“… [the Government] may issue regulations with 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 [...]”
Second, the legislative history preceding the Sanctions Act supports this conclusion. Section 2 of the Sanctions Act is essentially a continuance of the 2001 Act. It was clear from the preparatory works to the 2001 Act that it was not meant to be used exclusively for implementing EU (or other intergovernmental organisations) sanctions. While the Ministry of Foreign Affairs (the “Ministry”) had proposed to limit the authority in the 2001 Act to only provide grounds for implementing “decisions of the EU within the area of the common foreign and security policy”, the majority of the Committee on Foreign Affairs and Defence of the Storting (the “Foreign Affairs Committee”) found that the law should “have an opening” for the Government to issue regulations implementing “measures with broad international support, even though the EU, for example, due to internal disagreement, had not made a binding decision within the framework of EU's common foreign and security policy” (our emphasis).
Third, it is equally clear from the preparatory works of the Sanctions Act that the 2001 Act's authority to implement sanctions not already adopted by intergovernmental organisations was meant to be continued in the Sanctions Act. The Ministry explicitly considered whether the Government's authority to impose sanctions through the Sanctions Act (i.e., without involving the Storting) should be limited to measures adopted by international organisations. It answered the question in the negative. The Ministry acknowledged that in some situations it will be difficult to adopt the necessary and appropriate measures in intergovernmental organisations, which might make it necessary for Norway to implement sanctions in tandem with a group of like-minded states outside the framework of international organisations. Therefore, the Ministry proposed to continue the approach of the 2001 Act, where the Government can implement sanctions outside the framework of intergovernmental organisations if the sanctions in question enjoy broad international support:
“The Ministry maintains the proposal to continue the Storting's guidance in the preparatory works [of the 2001 Act] that there should also be an opening for the Government to be able to support and implement in Norwegian law sanctions adopted outside the framework of intergovernmental organisations, provided that the measures have broad support among like-minded states [...]. This would allow the Government to implement sanctions that have broad support among like-minded states but are being blocked by a few states in the EU, without having to go by way of a time-consuming law-making process. A requirement for a law-making process in such a situation could mean the measures in question no longer are relevant when they can be implemented in Norway, which would lessen their effectiveness.”
Notably, in addition to discussing the concept of “broad international support”, the Ministry underlined that although the Sanctions Act allows the Government to implement measures that enjoy broad international support among like-minded states (but without being adopted within the framework of an intergovernmental organisation), it could still be appropriate under some circumstances to let a given measure undergo considerations and adoption by the Storting. According to the Ministry, whether or not sanctions provisions should be proposed to and enacted by the Storting instead of being implemented through the Government's administrative regulations depends on an assessment of among other things:
- how comprehensive the sanctions measures are
- whether the measures have been drafted/designed in close cooperation with other states, in such a way that the measures in question would be according to a common standard
- whether the measures raise particular concerns of due process
- whether the measures may be nationally controversial
- to what degree a law-making process would weaken the law's relevance and effectiveness
In other words, even though the requirement of “broad international support” is fulfilled, it is our understanding that an assessment must be made of whether the Government in fact should apply the authority in the Sanctions Act or whether the adoption of sanctions should be left to the Storting in the specific situation. In the absence of any practice pursuant to this part of section 2 authority, we find it difficult to say with certainty where the threshold for parliamentary consideration and adoption is or should be. However, in our view, this additional assessment appears to be more of a safety valve to ensure that principles of the constitutional separation of power are respected rather than a strict and practical limit on the Government's authority to impose sanctions that fulfil the requirements in the Sanctions Act.
The Ministry further emphasised that if the measures in question were of certain importance for foreign or national policy, the Storting's expanded foreign policy- and defence committee should be consulted before the regulation is adopted, in line with current practice. Lastly, the Ministry noted that it may also be “more relevant” to organise a public consultation round/hearing on the sanctions measure to be implemented by way of regulations, for measures that are developed outside the framework of international organisations.
In summary, in order for the Government to use the Sanctions Act to implement measures that have not been adopted by an international organisation, the measure in question needs to have “broad international support”. Measures that do not have “broad international support” must be implemented by law, if at all.
In addition, even if the implementation of the measure does have “broad international support”, both the Ministry and (implicitly) the Storting have presupposed that there may be instances where the Storting should either be consulted or themselves tasked with implementing the sanctions in law. For a closer description of the content and scope of the requirement that sanctions must have “broad international support” in order to be based on the Sanctions Act, please refer to section 5.2 below.
5.2 Does the ‘broad international support’ requirement mean that (a) Norway can only impose sanctions as part of a coalition of states that cooperate on sanctions or (b) can Norway impose sanctions on its own when it is clear (from international resolutions or otherwise) that there is broad international support for them?
5.2.1 What does "broad international support" mean within the Sanctions Act?
In the Sanctions Act, the option to implement sanctions that have “broad international support” is expressly included in the wording of section 2. The term “broad international support” is rather vague. It does not specify the character or extent of international support that would satisfy the requirement. In conclusion, and as further described in the following, this is a requirement without a clear-cut scope, which ensures flexibility in its application. That being said, the preparatory works provide some guidelines on the meaning of “broad international support”, which we elaborate on below.
In the preparatory works to the Sanctions Act, the Ministry discussed how the legal authority in section 2 could be appropriately drafted. It concluded that two elements should be read into the requirement of sanctions having “broad international support”: the measure (i) must have broad support in the population and within civil society in general (but without similarly worded measures having been adopted by a certain amount of other states), and (ii) equivalent measures must have been “adopted and followed up” by a “group of states”. Further, the Ministry noted:
“… [a] precondition for providing the Government authority to implement sanctions through administrative regulation, should be that it is a matter of following up sanctions that have been adopted and followed up by a certain number of like-minded states. It is in such situations the need for a quick national implementation is most relevant. If it is relevant to implement measures that do not satisfy such a requirement of being determined jointly by a larger group of states, it is in the Ministry's view natural that the question is considered by the Storting, and that a separate law or authority, addressing the concrete situation, is passed.” (our emphasis).
The term “adopted and followed up” is not further clarified. However, the above statement suggests that several other states must have already at least decided and acted on, if not already fully implemented, the measures in question, in order for the Government to implement them through regulation (notwithstanding the use of the word “should”). Conversely, if such a “larger group” has not already implemented the sanctions, it would be up to the Storting, not the Government, to implement the measures in Norwegian law.
The Ministry emphasised that such “international support” must come from “like-minded states”, but that the law does not require support from specific states or from a specific number of states and that these questions must be assessed concretely. This provides the Government with some flexibility in the application of the authority, but also some uncertainty.
In this regard, some relevant guidance can be found in quotes elsewhere in the preparatory works. For example, the Ministry mentions “Norway's close/closest cooperation partners, including most EU countries and the US” and “Norway's most important allied and trade partners, including the EU, United Kingdom and the US.” The suggested requirement is a “larger group of states” (our emphasis).
As far as we can see, the only example provided in various preparatory works of a situation where the “broad international support”-criteria would be met is where the EU cannot find necessary consensus to adopt a given measure due to a “few states” blocking them. In the same vein, the Foreign Affairs Committee noted to the Storting that “this proposal makes for a solution whereby Norway also may join listing of persons together with a larger group of like-minded states in cases where the measures do not find unanimous support in intergovernmental organisations”. The quotes suggest that a “large group” with “a few” less than 27 would suffice to meet the criteria.
In conclusion, it is our view that the Government may only, according to section 2 of the Sanctions Act, impose sanctions as part of a coalition of states that cooperate on sanctions. The Sanctions Act does not require that this group of states are in any way formally organised as a coalition as such, but it “should be” a precondition for sanctions to be implemented through regulation that other states have “adopted and followed up on” the measures in question.
For the sake of completeness, we note that the possibility for the Storting to implement sanctions is not excluded or otherwise treated by the Sanctions Act. However, various preparatory works point out that Norway does not have a tradition for imposing unilateral sanctions, which suggests that it would be at the very least politically complicated and controversial for Norway to impose sanctions without broad international support, even though the possibility is formally there.
5.3 Does the law permit the government to create a sanctions desk that can receive submissions from NGOs and others? Are there passages in the preparatory works that indicate that this should be done?
There is nothing in the Sanctions Act to suggest that creating a sanctions desk mechanism would not be permitted. However, when preparing the law, the Ministry noted that it did not find it practical to include a provision that would create such a mechanism, since a legal basis is not needed for the Government to obtain views on the justification for the imposition of sanctions.
Thus, whether such a sanctions desk can be created is a matter of political will (including allocation of economic and personnel resources).
There are quotes in the preparatory works suggesting that there is political manoeuvring room “in special cases” for Norway, together with “a few other states” to play a more active and leading role in sanctions policy, i.e., not exclusively following the EU, but also taking its own practice initiatives. We would think that establishing a sanctions desk or forming a network of likeminded states that seek to adopt coordinated human rights sanctions against the same violators, are (political) initiatives that could be pursued in this regard.
5.4 How does the scope of the Sanctions Act compare to laws of other, similarly situated countries?
5.4.1 The EU and EU Member States
Many EU Member States do not impose any sanctions on their own but become bound by decisions on sanctions once these are implemented in an EU regulation. The EU's competence to impose sanctions pursuant to Article 29 of the Treaty of the European Union (“TEU”) is very broad and without any express limitations. However, the measures must be consistent with the objectives of the EU's external action, as laid down in Article 21 of the TEU.
Poland is an example of an EU Member State that has introduced independent national sanctions on top of the EU's sanctions in the wake of the Russian Federation's war of aggression against Ukraine. On 16 April 2022, Poland passed the Act on special solutions to counteract aggression against Ukraine and to protect national security, which empowered the Polish government to pass specific sanctions against individuals and entities supporting Russian aggression against Ukraine not already included by the EU sanctions.
5.4.2 The UK
The UK sanctions regime flows from the Sanctions and Anti-Money Laundering Act of 2018. According to that act, the appropriate UK Minister may issue sanctions for the purpose of compliance with either (i) a UN obligation, (ii) any other international obligation or (iii) for one of the defined purposes in section 1 (2) of the act. These range from national security interests to promoting respect for democracy. Thus, the UK act clearly authorises unilateral sanctions and does not require the sanctions to have any international support.
5.4.3 Iceland
Iceland's International Sanctions Implementation Act empowers the Icelandic government, having consulted with the Icelandic parliament, to “participate in and take the necessary measures to implement resolutions of international organisations or group of States concerning sanctions adopted for the purpose of maintaining peace and security and/or for securing respect for human rights and fundamental freedoms” (our emphasis). The term “group of States” in the Icelandic law appears to have a clearer meaning than “broad international support” in the Norwegian Sanctions Act. The passage concerning the purpose of the measures, i.e., to maintain peace and security and respect for human rights and fundamental freedoms, is almost identical to the similar regulation in the Norwegian Sanctions Act. On its fact page on international sanctions, the government of Iceland states that Iceland implements restrictive and security measures adopted by either the UN Security Council, the EU or the Organisation for Security and Co-operation in Europe (the OSCE).
5.4.4 Switzerland
Switzerland's Federal Act on the Implementation of International Sanctions (the Embargo Act) of 2002 empowers the Federal Council of Switzerland “to enact compulsory measures in order to implement sanctions that have been ordered by either the UN, the OSCE “or by Switzerland's most significant trading partners” (our emphasis) and which “serve to secure compliance with international law, and in particular the respect of human rights”. The regulation thus differs from both the Icelandic and Norwegian regulations, as it only empowers Switzerland to join in sanctions outside of the UN and OSCE system if the sanctions have been ordered by one or several of Switzerland's largest trading partners. In practice, that is the EU and the US. In addition, Switzerland may adopt independent freezing measures to safeguard its interests.
5.4.5 Liechtenstein
Liechtenstein's International Sanctions Act of 2008 is almost identical to the Swiss Embargo Act referred above. It authorises Lichtenstein to enforce international sanctions that have been adopted by the UN or “the most significant trade partners of the Principality of Liechtenstein” and that “serve to secure compliance with international law, and in particular the respect of human rights”. Liechtenstein's official fact page on international sanctions further states that the act empowers the government to enforce “internationally backed sanctions”.