The Norwegian Sanctions ActDoes it permit the Norwegian Government to become proactive in imposing human rights sanctions?

Norway is obligated by international law to implement all binding sanctions regimes that have been adopted by the UN Security Council. Norway has loyally implemented such sanctions regimes.⁴⁵

Norway is not obligated to implement sanctions adopted by the EU. Still, Norwegian authorities have decided to implement close to all EU sanctions regimes, with a few limited exceptions.

Broadly speaking, the Government has traditionally implemented EU sanctions regimes without making material national modifications to them (i.e., without limiting, expanding, or otherwise changing the scope or content).⁴⁶

However, sanctions practice shows that there have been certain limited exceptions to this main approach:

• First, the Government has in certain instances decided to implement EU based sanctions regimes with certain modifications. One example is the Norwegian sanctions regime relating to Venezuela,⁴⁷ and, as further discussed in section 6.3.4 below, recent sanctions against Russia.
• Second, the Government has in a few instances decided not to implement EU sanctions regimes at all. This includes autonomous⁴⁸ EU restrictive measures against Al-Qaida, ILIS (Da'esh), Bosnia-Herzegovina, DR Congo, Turkey, and terrorism.⁴⁹ From our understanding, the political reasons for why Norwegian authorities have taken a different view have varied and may for example have been based on Norway's role as a neutral mediator in conflicts relevant to the EU regimes.

These exceptions illustrate that the Government does make independent assessments of whether and how EU sanctions should be implemented in Norwegian law, and, if so, to what extent. It should be noted that EU sanctions are adopted based on the EU’s common foreign and security policy (CFSP), which is not part of the EEA agreement (to which Norway is party). Hence, the EU context may, at least in principle, differ from Norway's foreign and security policy.

Furthermore, due to the scope of the 2001 Act, the Government has not (until the Sanctions Act took effect in April 2021) had sufficient legal grounds to implement those of the EU's sanctions regimes that are not connected to a specific state, group, organisation, or conflict, but that target certain activities irrespective of where or by whom they are performed. However, Norwegian authorities have endorsed such regimes politically.

Both the Storting and various Norwegian governments have clearly stated that Norway does not have a tradition of implementing so-called unilateral sanctions,⁵⁰ cf. section 4.3.4 above. The Previous Sanctions Acts did not include grounds for such unilateral sanctions.

However, it should be noted that while not considered unilateral sanctions as such, the Storting has previously adopted certain specific enabling acts (against Iran (1980), Argentina (1982), Yugoslavia (1999) and Zimbabwe (2003)) which provided a basis for the Government to impose sanctions that were not UN or EU based, as described in section 4.2 above. We cannot see that any of these specific enabling acts explicitly required the measures to be implemented by the Government to have “broad international support” or a similar requirement, although we understand that most had such support in practice, and that Norway acted in conjunction with other states.⁵¹

Furthermore, we noted in section 4.2 that the Storting passed two specific acts (from 1986 and 1987) which themselves implemented sanctions against South Africa and Namibia. The Ministry has in earlier works described that Norway in these events ordered far-reaching measures (e.g., wide reaching restrictions on trade and investments) that went further than most other states.⁵²

Against this background, there are some examples where Norway has passed acts comprising more comprehensive sanctions than other states and without necessarily having “broad international support” for the concrete sanctions in question. However, these were not necessarily enabling acts that provided the Government with broad authority to impose sanctions. Assuming that the Sanctions Act is not meant to make any material changes to Norwegian sanctions practice, and while we have not analysed this in detail, this historic sanctions practice could arguably suggest that the “broad international support” requirement in section 2 of the Sanctions Act should be interpreted rather restrictively, in the sense that where Norwegian sanctions have had a broader scope than sanctions implemented by other comparable states, these have been implemented by the adoption of acts to this effect in the Storting and not by the Government.

In our view, sanctions practice under the previous Sanctions Acts show that various Norwegian governments normally and predominantly followed the EU in content and timing of Norwegian sanctions. In many instances, the Norwegian sanctions regimes have merely been a transposition of the relevant EU regulation, where the EU based legal text has not been re-worked but merely provided as a Norwegian translation (supplemented by certain administrative or linguistic adaptations).⁵³

However, Norwegian authorities have still in certain instances decided not to implement EU based sanctions in full or at all and have also imposed sanctions that are neither UN nor EU based through the adoption of special laws. Sanctions practice under the Previous Sanctions Acts thereby shows that Norwegian authorities do make independent assessments of the adoption of sanctions, and that the Storting (but notably not the Government) has also in one instance gone further than other states in the imposing of sanctions. In addition, however, previous practice also indicates that in instances where Norwegian sanctions have had a broader scope than sanctions implemented by other comparable states, this has been done by the adoption of acts to this effect in the Storting and not by the Government.

As Norway is obligated to implement all sanctions that are adopted by binding resolutions made by the UN Security Council, the Government will use the authority in section 1 of the Sanctions Act to implement regulations necessary to fulfil this stately obligation.

Since the Sanctions Act took effect in April 2021, the (Solberg) Government used the new legal basis in section 2 of the act to implement three EU sanctions regimes that the 2001 Act did not provide sufficient legal basis for, see section 4.3.3 above. This was due to their theme-based and global scope, as the three regimes sought to change activities that are not connected to a specific state, group, organisation, or conflict, but rather to certain activities that shall be sanctioned irrespective of where or by whom they are committed.⁵⁴

Respectively, the three regimes sanction serious human rights violations and abuses,⁵⁵ cyber-attacks⁵⁶ and the proliferation and use of chemical weapons⁵⁷ committed anywhere in the world. The three Norwegian regulations are transpositions of the corresponding three EU regimes, meaning that they refer to the text and annexes of the relevant EU regulation on which they are respectively based (together with a Norwegian translation of the EU text). For instance, this means that the Norwegian sanctions regime against serious human rights violations and abuses only target those actions that are defined in the underlying EU regulation⁵⁸ (which does not include corruption), and that the persons and entities made subject to Norwegian asset freezes as a consequence of such actions are those designated by the EU.⁵⁹

Broadly speaking, the adjustments that Norway has made to EU sanctions regulations have been limited, such as adjusting the jurisdictional scope to reflect Norwegian sanctions jurisdiction and fitting or excluding EU-specific provisions to the Norwegian context.

There is a great deal of overlap in scope between the EU (and therefore also Norway's, see section 6.3.2 above), US⁶⁰, UK⁶¹ and Canadian⁶² regimes for sanctions aimed at human rights violations, with one notable exception being serious corruption. The US and Canada target serious corruption offences within the framework of their human rights sanctions regimes, and the UK has adopted a separate anti-corruption sanctions regime. The EU has however so far been reluctant to combat corruption by way of targeted sanctions measures.

Of these, the US has been the most aggressive in its pursuit of serious human rights abusers through the use of sanctions and has by far the highest number of designations under its human rights regime. Similarly, to the punitive mechanisms of the other regimes, the US Global Magnitsky Act allows for blocking sanctions imposed on persons determined to have committed or been complicit in certain human rights abuses or for corrupt acts anywhere in the world, meaning they are effectively blocked from taking part in the US economy. In contrast to the other regimes, however, the US will also under certain circumstances impose secondary sanctions targeting persons and entities outside its own jurisdiction, that do business with US-sanctioned human rights abusers.

Although there are certain overlaps between the different regimes' listings of human rights abusers, there is no one-to-one relationship between them.

In the following, we describe Norway’s current targeted sanction practice to address human rights violations and international crimes related to the Ukraine situation.

The Norwegian sanctions regime relating to Russia and Ukraine has been in place since 2014, cf. FOR-2014-08-15-1076 (the “Norwegian Russia-related sanctions regulation”).⁶³ It is based on, and is predominantly aligned with, the EU's Russia-related sanctions regime, including the predominant parts of the sanctions packages imposed by the EU in 2022 in response to the escalations in Russia's aggression towards Ukraine.⁶⁴

Still, the Norwegian Russia-related sanctions regulation is not a direct implementation of the relevant EU regulations as such.⁶⁵ In practice, however, the provisions are Norwegian translations of the English wording of the relevant EU regulations, with very few substantial changes.⁶⁶ Furthermore, in respect of asset freezing measures, the Norwegian Russia-related sanctions regulation does not include a separate Norwegian list of designated persons and individuals, but merely includes a hyperlink to the consolidated EU financial sanctions list.

Against this background, although Norwegian authorities are not strictly obliged to follow EU sanctions, it is likely that the EU's interpretation of the underlying EU legislation would be considered highly relevant by Norwegian sanctions authorities when interpreting the scope or content of the Norwegian Russia-related sanctions regulation. Hence, Norwegian authorities would be likely to look to EU case law and EU guidance when interpreting its content and scope.

However, it should be noted that in 2022, the Norwegian government expressly excluded or modified certain Russia-related EU sanctions when implementing them into Norwegian law. These national adjustments have made Norway's Russia-related sanctions regime slightly narrower than the EU regime on which it is based. As described in the following, the reasons for doing so have varied.

First, the Government decided to not (yet) implement the EU sanctions targeting the broadcasting activities of certain Russian state-owned media.⁶⁷ It was stated that such measures might potentially be implemented into Norwegian law at a later stage, but that the matter will undergo more thorough assessments by Norwegian authorities before doing so.⁶⁸ Notably, considerations relating to the freedom of expression appear to be the main basis for the Norwegian hesitation. This is noteworthy as freedom of expression is not a principle unique to Norway, but rather a basic principle which was, undoubtedly, duly considered also by the EU when adopting the relevant media restrictions. Hence, this hesitation shows that the Government does make independent assessments of the adoption of EU sanctions from a Norwegian perspective.

Second, and perhaps less surprisingly, the Government modified the EU prohibition against providing access to EU ports for Russian-flagged vessels.⁶⁹ First, the Norwegian prohibition includes an express carve-out for Russian-flagged “fishing vessels” (Norwegian: “fiskefartøy”) which does not expressly follow from the wording of the EU prohibition.⁷⁰ Second, the prohibition only applies to ports in the Norwegian mainland, and does thereby not prevent Russian-flagged vessels from using ports in the Norwegian territories of Svalbard and Jan Mayen. This is contrary to other parts of the regulation, which generally applies also to those parts of the Norwegian territory.

These two national modifications are mainly based in the distinctive political and legal relation between Norway and Russia relating to fisheries, which is also regulated by international law.⁷¹

It is also worth noting that the Government's recent statements about Russia-related sanctions also show a reluctance to impose sanctions that have not yet been adopted by the EU. Specifically, we note that there were public discussions relating to the potential closure of Norwegian airspace to Russian aircraft, but the Government decided not to impose such a measure before it was adopted by the EU, even though countries such as Sweden, Denmark, Austria, and Finland had adopted equivalent flight bans and other political parties were advocating for it.⁷²