1. Which are the procedures for the incorporation of Security Council Resolutions imposing sanctions into the internal legal order of your State? Are they incorporated through legislation, regulations or in any other way? Has the implementation given rise to any constitutional or other legal problems at national level? Is there any relevant case-law?

In principle, binding acts of an international organisation are given effect through an “ordine di esecuzione” (“order of execution”; “ordre d’exécution”) – usually by ordinary law; to the extent that they are self-executing, UNSCRs do not need an ad hoc act of implementation. In practice, however, most UNSCRs need be implemented through a specific act.

The normal instrument implementing UNSCRs is a legislative act: either a law or a “decreto-legge” (“law-decree”; “décret-loi”), a decree adopted by the Council of Ministers having the force of law. According to Article 77 of the Italian Constitution “Law-decrees shall loose effect as of the date of issue if they are not converted into law within sixty days of their publication” (unless a law is passed for the purpose to save the effects they produced while they were into force).

“Decreti legislativi” (delegated decrees, based on a specific law) - also adopted by the Council of Ministers and having the force of law –constitute the normal instrument for implementing EC directives (as well as other acts of EU law); however they are never resorted to for the purpose of implementing UNSCRs.

However, the vast majority of UNSCRs are implemented through EU Council Regulations (covering measures of EC competence) and/or CFSP Decisions (covering measures of MS competence, such as arms embargoes and travel restrictions).

Should a regulation exceptionally require an act of implementation to be taken at the national level, member States are under an obligation to adopt the necessary measures. This is typically the case of EC regulations setting out the obligation for member States to provide for “effective, proportionate and dissuasive”sanctions applicable to their infringements.

In some cases UNSCRs cannot be implemented in full at EU level, due to insufficient legal basis in the EC-treaty, (e.g.: UNSCR 1373 (2001) on the freezing of funds, financial assets and economic resources of persons or entities involved in terrorism)

According to the case-law of the Court of Justice of the European Community (ECJ), in fact, the direct applicability of regulations implies that national provisions of implementation are not only unnecessary, but even prohibited under the Treaty of the European Community (ECT). These sanctions complement the general civil law provision according to which any transaction illegally operated shall be null and void

TRADE AND FINANCIAL RESTRICTIONS

As for financial restrictions, the Financial Security Committee (FSC) has been established at the Italian Ministry of Economy and Finance (Mef) in order to monitor the functioning of the system for preventing and combating money laundering, the financing of terrorism (Italian Law 431/2001), the activities of countries threatening international peace and security (Italian Legislative Decree 109/2007 and Italian Legislative Decree 231/2007) and the proliferation of weapons of mass destruction (Italian Legislative Decree 90/2017), as well as to implement freezing measures ordered by the United Nations, the European Union and national entities.

The FSC, which is chaired by the Director General of the Treasury, is composed of representatives of several Italian Administrations and Authorities. In order to perform the tasks related to the freezing of economic resources, the FSC is integrated by a representative of the Italian State Property Office. The functioning of the FSC is regulated by decree of the Mef (Ministerial Decree N. 59, 22 April 2009).

ARMS EMBARGO/ DUAL USE

The control over the export and import of military goods is regulated by Law No.185 of 9 July 1990, and subsequent amendments (Legislative Decree No. 105 of 22 June 2012).

The dedicated National Authority - UAMA (Unit for the Authorizations of Armament Materials) located within the Ministry of Foreign Affairs and International Cooperation, was given the task to centralize controls on the whole transfer of military weapons, maintaining the principle that any individual or entity have to seek and receive authorization prior to any transfer of military items.

Export authorization procedures carried out by UAMA include assessment on respect for UN, EU and OSCE embargos.

Since 1st January 2020, UAMA licensing and controls have been extended to dual-use products.

2. Does the choice depend on the content and the legal nature of the Security Council Resolution?

The choice to implement UNSCRs imposing sanctions through an ad hoc act is independent upon their self (or non self) executing character. The legal nature of the Security Council resolution is also irrelevant as to the choice of the national measure – whether a law or a law-decree – that must be taken.

3. When sanctions are imposed for a fixed period of time which is not renewed, are they tacitly repealed within your domestic legal order or is any normative action required?

In principle, national measures provided for as temporary cease to be in force once the period for which they were set up expires (unless their duration is extended or they are renewed by an ad hoc act).

The answer given by the European Union in 2006 applies also for Italy, and goes as follows:

As a rule, EU Council Common Positions and Regulations cease to apply either on the date of expiration provided therein, without needing any further decision, or, in the absence of an expiry date, when they are repealed. The 2003 Guidelines state in this regard:

“A specific situation exists, when the Security Council decides on measures which expire by a particular date. In such a situation, correct implementation of the UN measures requires immediate legislative action, if the measures are renewed just before the expiration date. In order to prevent expiration of the restrictive measures in cases where renewal is called for, the Council should not copy the expiration date in the implementing Regulation.”

Accordingly, the Regulations will normally remain in force and require normative action to be repealed, if the Security Council fails to renew them.

4. When a Security Council Resolution imposing an export embargo provides for exceptions while not establishing a committee to authorise such exceptions, does the incorporating act appoint a national authority, which is competent to authorise export?

To date, no national institution or organ has been endowed with the general power to authorize trade or other action in derogation of embargos established by UNSCRs. Nor has any new body been instituted for this purpose.

EC regulations often provide that derogations or exceptions to the general prohibitions laid down therein be authorized by the “competent authorities of member States” and contain a list of competent authorities attached thereto. See e.g. the List of competent authorities referred to in Articles 3, 4 and 5 of the Annex to EC Regulation No. 2580/01.

In principle, the competent national authority is determined in accordance with the general rules allocating competence among the different branches of the State’s apparatus: e.g. the Ministry for Foreign Affairs, the Ministry of Enterprises and Made in Italy, , the Ministry for Infrastructures and Transportation, the Ministry of Economics and Finance – or a particular office thereof – depending of the subject matter of the measures concerned.

With specific reference to exceptions from arms embargo and financial measures, these fall under the competence respectively of UAMA and the FSC.

5. Are Sanctions Committee decisions specifying Security Council sanctions or setting conditions for their activation incorporated into domestic law?

This question should be answered, in principle, in the negative for the Committees of sanctions are generally not endowed with the power to issue binding decisions. It is at the enforcement level; therefore, that conformity with a Committee’s interpretation of measures already implemented is to be ensured.

There is no practice of ad hoc acts of implementation with respect to binding decisions of Committees of sanctions. Such decisions are given effect through the measures enacted for implementing the UNSCR under which the Committee was established. However, when decisions of a Committee of sanctions amount to a change in the regime of sanctions, implementing measures need to be, and indeed are, accordingly modified through a specific act. See e.g. UNSCR 1452(2002), which explicitly sets out a regime of exceptions to the restrictive measures adopted against Usama bin Laden, members of the Al-Qaida organization and the Taliban, implemented with a series of EC Regulations, pursuant to Common position 2003/140/CFSP.

6. Have there been cases where the act incorporating sanctions in the domestic legal order was challenged in court for being in violation of human rights? For example, have national courts assumed jurisdiction in cases where sanctions are challenged by individuals affected by sanctions: a. if implemented through EU regulations? b. if implemented directly at national level?

This question is answered taking into account various possible scenarios according to Italian Constitutional law, EU law and the system of judicial protection established under the European Convention on Human Rights. The final paragraph highlights the problem of possible gaps in the judicial protection of fundamental rights vis-à-vis EU and national measures adopted in the implementation of UNSCRs.

(i) Constitutional challenges against UNSCRs and EU-EC measures (or the national
measures of implementation thereof)

In principle, UNSCRs have the same force as the act which provides to their introduction into the domestic legal order. As the order of execution of the UN Charter was given by an ordinary law and UNSCRs are implemented by way of a law or an act with the force of law, implementing measures also have the force of law.

By virtue of Article 117 of the Italian Constitution [Article 117, paragraph 1, of the Italian Const. reads as follows: “Legislative power belongs to the State and the regions in accordance with the Constitution and within the limits set out by European Union law and international obligations” (emphasis added).], however, the Italian legislator is bound to respect all international obligations in force for the Italian State. This means that legislation implementing UNSCRs prevail over conflicting (previous or subsequent) legislation. They cannot, however, run counter the provisions of the Constitution. National measures of implementation could thus be challenged before the Italian Constitutional Court for the purpose of establishing whether they are consistent with the Constitution.

Indeed, albeit in few cases, statutes giving effect to international treaties have been successfully challenged. No such challenge, however, has ever been brought with respect to the law giving effect to the Charter of the United Nations or a law (or a law decree) implementing a resolution of the Security Council.

As to EC regulations, which – as recalled above – are acts endowed with direct applicability, it is a well established principle that they “prevail” over conflicting national legislation and, as a consequence thereof, determine the inapplicability of the latter.

According to the Italian Constitutional Court, they remain subject to the “fundamental principles” of the Italian Constitution and, within these limits, may be subject to the judicial review of the Constitutional Court (possibly by way of a challenge of constitutionality against the law which gave effect to the EC treaty and subsequent amendments thereto). This is a theoretical assertion, however, very unlikely to be ever applied by the Court.

Also acts adopted within the CFSP or the JHA pillars cannot be challenged per se before the Constitutional Court [Under Article 134 of the Italian Const., the Constitutional Court is endowed with the power to decide on “disputes concerning the constitutional legitimacy of laws and acts having the force of law, adopted by the State and the Regions.”]. Only national laws (or acts with the force of laws) implementing them could eventually be challenged (possibly – again – by raising the question of their constitutionality together with the constitutionality of the law implementing the Treaty of the European Union (TEU)).

There are no instances so far of such challenges.

(ii) Judicial protection under the TEU and the ECT

Under Article 6, paragraph 2, TEU, measures adopted by the EU and the EC have to conform to fundamental rights and freedoms. However, EU acts adopted under the II pillar are excluded from the judicial review of the ECJ, in accordance with Article 46 TEU, while EU acts under the III pillar are subject to the Court’s powers of judicial control only to the limited extent provided for in Article 35 TUE [See in this respect the decision of the Court of First Instance of the European Communities (Second Section), in the case SEGI and others vs. Council of the European Union (case T-338/02), Order of June 7, 2004 (see useful links), holding that under Article 35 TEU the Court has no jurisdiction to hear claims for compensation of damages allegedly caused by a common position adopted under Title VI TEU. For more details, see infra note 11 and corresponding text.]. EC regulations only are subject to full judicial review.

Private parties adversely affected by EC regulations, however, can bring a direct challenge before the Court of First Instance only in so far as he/she is “directly and individually concerned” by the regulation in question. This will rarely occur [See, however, in the reply by the European Union for references to a number of appeals against EC Regulations Nos. 881/2002 and 872/2004 lodged by persons and entities designated by a UN Sanctions Committee in accordance with a UNSCR.].

A regulation could also come before the ECJ through a preliminary reference. There are, in fact, a few instances in which the ECJ has ruled with respect to a regulation implementing sanctions decided by UNSCRs.

(iii) Judicial protection before the ECHR

The scarce number of venues for private parties to effectively enforce their rights allegedly impinged upon by national and/or EC-EU measures adopted for the purpose of implementing UNSCRs is only partially remedied by the existence of the system of judicial protection established under the European Convention for the Protection of Human Rights and Fundamental Freedom [or under other – less effective – human rights monitoring mechanisms.

(iv) Filling the gaps in the judicial protection of fundamental rights

There may be instances in which no effective protection is available to individuals whose rights are impinged upon by measures adopted pursuant to UNSCRs. The most sensitive issues arise in regard to the implementation of – and judicial protection against – measures impinging upon individual rights in the criminal field. Other rights that are likely to be especially affected are the right to property and the freedom to pursue a commercial activity.

7. Are there decisions of national courts or state practice concerning the relationship between sanctions towards individuals and the human rights of these individuals?

To date there is no relevant case law on the point in question.