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?

(March 2006)

UN arms embargos

According to Art. 34 para.4 of the German Foreign Trade and Payment Act ("Außenwirtschaftsgesetz") any person who violates this act or a regulation based on this act or a legal provision of the European Communities on the restriction of foreign trade and payments published in the Federal Law Gazette or the Federal Gazette intended to implement an economic measure of the United Nations pursuant to chapter VII of the UN Charter shall be punished by imprisonment for at least two years. According to the German export control legislation every export of arms is subject to a license granted by the competent authority. In case of an existing arms embargo such license will not be granted unless the export is meant to further the purposes specified in the relevant Security Council resolution or is otherwise approved by the Security Council sanctions committee.

UN Travel restrictions

As regards the implementation of the international obligations deriving from UN Security Council resolution 1390 aiming to prevent the entry and transit of terrorists included in the list of UN Security resolutions 1267, 1333 and 1455, those listed persons have been included in the data files on foreigners to whom entry is refused. Germany draws attention to the fact that a person who has been included in such list may only be refused entry and transit if that person can be clearly identified on the basis of the information given in the list. The data of those persons for whom sufficient identifying information is available have also been entered in the Schengen Information System for the refusal of entry. The relevant national data files can be accessed by all offices charged with border control tasks in the Federal Republic of Germany; the Schengen Information System can be accessed by all police and border police authorities of the Schengen Contracting States.

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

Germany aligns itself to the answers provided for by the European Union in 2006.

Answer to the question by the European Union:

Legally binding Security Council decisions, adopted under Chapter VII of the UN Charter, are implemented in the European Union due to their obligatory legal nature. The choice of procedure and form depends on the nature of the measure 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?

Germany aligns itself to the answers provided for by the European Union in 2006.

Answer to the question by the European Union:

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?

Germany aligns itself to the answers provided for by the European Union in 2006.

Answer to the question by the European Union:

The Regulations imposing sanctions include lists of competent authorities which are empowered to grant exemptions. Whereas certain implementing powers are granted to the Commission, it is common practice that the Regulations provide that authorities of the Member States are competent to take decisions on requests for exemptions.

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

Germany aligns itself to the answers provided for by the European Union in 2006.

Answer to the question by the European Union:

Where the UN Security Council resolution provides that certain decisions can only be taken by a UN Sanctions Committee, the Regulations are drafted accordingly. For example, the Commission is empowered to adopt the measures necessary to implement designations of persons, groups and entities made by the Al Qaeda and Taliban Sanctions Committee, in order to have funds and assets frozen in accordance with Regulation (EC) No 881/2002.

If exemptions must be granted by a UN Sanctions Committee, the Regulations stipulate that requests must be sent to the competent authorities, which will then take the matter to the Sanctions Committee and inform the applicant of the decision. In order to provide the clarity that is needed, any conditions for granting exemptions laid down in the UN Security Council resolution are included in the Regulation.

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?

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

Germany is currently preparing a comprehensive survey of the exact number of cases where the act incorporating sanctions in the German legal system was challenged in a legal proceeding before a German court. Once the data will have been established the survey will be provided to the Council of Europe.