Norway’s Sanctions Act came into force on 16 April 2021. Its official title is Act on the Implementation of International Sanctions (Sanctions Act). The Act represents an important strengthening of the toolbox for Norway’s human rights policies. There are, however, some shortcomings. The Act does not include ‘serious corruption’ in its definition of sanctionable conduct. A yet unanswered question is also whether the government will invite civil society actors to submit cases.
The Act authorizes the Government to implement UN Security Council sanctions as well as restrictive measures adopted by intergovernmental organizations (such as the EU) or measures that otherwise have broad international support. The aim of the measures must be to maintain peace and security or to ensure respect for democracy and the rule of law, human rights, or international law in general. It is also worth noting that the Act specifically includes ‘Svalbard’, where several countries have vested interests, including Russia.
– The Norwegian government may apply a narrow interpretation of the Act, only adhering to it in order to implement EU and Security Council sanctions. We argue, however, that a more ambitious approach should be developed, says Gunnar M. Ekelove-Slydal, Deputy Secretary General of the Norwegian Helsinki Committee.
– The Act allow for the Government to play an active role in seeking international co-operation to apply sanctions against those who commit human rights violations with impunity. An idea would be for Norway to seek co-operation with other Nordic and Baltic states to form a group of like-minded states that adopt human rights sanctions against the same violators while also aiming to influence EU Magnitsky policies.
– An additional idea would be for Norway (and like-minded states) to support creation of a European Magnitsky Commission, a non-governmental body, constituted by respected and renowned persons with high integrity and pertinent competence in international human rights and international criminal law. Such a commission can effectively help develop Magnitsky sanctions into a co-ordinated and effective tool for democratic states to strengthen respect for human rights. A detailed proposal for such a Commission, to be discussed with its partners, has been developed by the Norwegian Helsinki Committee.
Magnitsky-style legislation
While there is no reference to ‘Magnitsky’ neither in the Act’s title nor in its provisions, the law still includes enough of the main characteristics of Magnitsky-style legislation to merit being labelled a Magnitsky Act.
Firstly, the sanctions can according to section 2 of the Act comprise of:
- a) prohibition of or restrictions on trade, services and economic or financial transactions
- b) prohibition or restriction on scientific, technological, and cultural cooperation
- c) financial sanctions against natural or legal persons
- d) travel restrictions
- e) 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.
‘Financial sanctions’ and ‘travel restrictions’ include the most common restrictive measures of Magnitsky-style legislation (‘asset freeze’ and ‘entry ban’), while another frequently used measure, “prohibition of or restrictions on … financial transactions” is also included.
It is worth noting that the law is broader than Magnitsky Acts in other countries in that it includes an open-ended clause referring to other measures aimed at “… ensuring respect for democracy and the rule of law, human rights, or international law in general.” In this way, the Act permits innovative approaches to designing restrictive measures.
Secondly, the definition of sanctionable conduct is broad, covering violations of human rights, rule of law, democracy, and international law in general. Since the law also cover sanctions adopted by the UN Security Council, it refers to “peace and security”. What is missing is ‘significant corruption’. This is similar to the 7 December 2020 EU Global Human Rights Sanctions Regime, which also only sanctions “serious human rights violations and abuses worldwide”.
While it may be argued that significant corruption may also constitute violations of human rights in themselves – and therefore may be sanctioned under existing EU and Norwegian legislation – the omission is nevertheless unfortunate. Corruption is often linked to human rights violations, but not always. Corruption crimes should be included in the definition of sanctionable conduct, underlining the seriousness of the harm they constitute nationally and internationally, and removing any uncertainty that sanctions may be applied to address impunity for such crimes.
Thirdly, the Norwegian Act provides strong safeguards for sanctioned people. They can complain if they think sanctions were imposed on false grounds, and if the sanctioned person is a) Norwegian citizen, b) is domiciled in Norway, c) is a business company registered in Norway, d) has been sanctioned on the initiative of Norway or e) Norway’s implementation of international sanctions entails real infringements on the person’s rights.
A sanctioned person/entity may also challenge the decision of Norway to impose sanctions in Norwegian courts. The state will pay for his or her lawyer.
Fourthly, even if the Act stops short of authorizing the government to impose sanctions unilaterally, it permits it to take initiatives on individuals or entities to be sanctioned with like-minded states. Like in other states with Magnitsky legislation, it will be up to the government to decide on how it will use its new tool.
While there exists no internationally approved definition of Magnitsky legislation, the principles proposed by the sub-committee for human rights of the Australian Parliament may be as close as we can get. According to chapter 7 of the sub-committees Magnitsky legislation report, the following principles should guide such legislation:
- The definition of sanctionable conduct should be broad, and cover human rights abuses, serious corruption and conduct that impinges on media freedom.
- There should be safeguards for individuals who may be sanctioned, including a right of reply and appeal process.
- The decision maker should have a broad and unfettered ability to apply, remove or vary sanctions.
- Nominations for sanctions can be made by anyone; however, an independent advisory body should be created to allow a transparent pathway to the decision maker.
- The definition of who can be sanctioned should be broad, including family members, associated entities, and corporate entities.
- The process should be as transparent as possible, with a public register of decisions, an annual report to Parliament, and review by the Joint Standing Committee on Foreign Affairs.
The Norwegian Act is close to fulfilling the first three principles, although with the omission of “serious corruption” as sanctionable conduct. These principles together with “asset freeze” and “entry ban” as minimum restrictive measures, may constitute the core of the definition of a Magnitsky Act.
On principles 4-6, further clarifications and initiatives are needed, as in many other countries that have adopted Magnitsky legislation.
Unofficial translation:
Section 1. Authorization to implement binding UN resolutions
The King [i.e., the Government] may issue regulations with the necessary provisions for the implementation of binding resolutions of the United Nations Security Council pursuant to Article 41 of the UN Charter.
The King decides whether a decision by the Security Council is binding.
Section 2. Authorization to implement international non-military measures
The King may issue regulations with the necessary provisions for Norway to implement sanctions or restrictive measures that have been adopted in intergovernmental organizations, or that otherwise have broad international support, and which aim to maintain peace and security or ensure respect for democracy and the rule of law, human rights, or international law in general.
Regulations pursuant to the first paragraph may comprise
- a) prohibition of or restrictions on trade, services and economic or financial transactions
- b) prohibition or restriction on scientific, technological, and cultural cooperation
- c) financial sanctions against natural or legal persons
- d) travel restrictions
- e) 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.
Regulations pursuant to the first paragraph apply with the restrictions that follow from international law or from an agreement with a foreign state.
Section 3. Scope of the Act
The law applies
- a) on Norwegian territory, including Norwegian airspace
- b) on board all vessels, including aircraft, drilling platforms and other similar mobile facilities under Norwegian jurisdiction
- c) for all Norwegian citizens and persons domiciled in Norway
- d) for all enterprises registered in the Register of Business Enterprises
- e) for all companies with regard to business activities they conduct in whole or in part in Norway.
The law applies to Svalbard and Jan Mayen. The King may issue regulations on the application of the law to the Norwegian dependent territories.
The King may issue regulations on deviating scope for measures implemented pursuant to this Act.
Section 4. Penalty for violations of provisions given pursuant to the law
Anyone who violates provisions issued pursuant to sections 1 and 2 of this Act shall be punished by fines or imprisonment for up to three years or both.
Anyone who negligently violates provisions as mentioned in the first paragraph shall be punished by fines or imprisonment for up to six months or both.
Section 5. The relationship to the Public Administration Act
The Public Administration Act’s rules on individual decisions do not apply to decisions made pursuant to or based on this Act to implement international sanctions against natural or legal persons.
Section 6. The right to request that a listing be changed or revoked
A natural or legal person who is the subject of sanctions or restrictive measures implemented in Norwegian law may request the Ministry of Foreign Affairs to change or revoke the listing of the person in question, if the person in question considers himself to be incorrectly listed and
- a) is a Norwegian citizen
- b) is domiciled in Norway
- c) is a company registered in Norway
- d) has been listed on the initiative of Norway, or
- e) Norway’s implementation of international sanctions entails real encroachment on the person’s rights.
To the extent that the listed person is subject to UN-binding sanctions under international law, the request may only be that the Ministry of Foreign Affairs, to the best of its ability, ensure that the listed person is removed from the relevant UN list by the UN Security Council or by one of the UN Security Council subordinate bodies.
A request pursuant to the first paragraph shall be submitted in writing and be substantiated. The request is processed in accordance with the rules on individual decisions in the Public Administration Act, Chapters IV and V.
If the Ministry of Foreign Affairs does not accede to the request, the listing may be appealed to the King in Council in accordance with the rules in the Public Administration Act, Chapter VI.
The King may issue regulations on the processing of requests to change or revoke listings pursuant to this provision.
§ 7. Court proceedings of lawsuits concerning the validity of list entries
For litigation concerning the validity of listings pursuant to sections 1 and 2 of the Act, the Disputes Act applies when nothing else follows from rules given in or pursuant to this Act.
As a condition for proof of matters that can otherwise be kept secret for reasons of national security or the relationship with a foreign state, cf. the Disputes Act § 22-1, the King may decide that the information shall only be made known to a special lawyer appointed for the listed. The special lawyer is appointed by the court as soon as possible after such a decision has been made and shall be reimbursed by the state.
When a decision has been made as mentioned in the second paragraph, the Citizenship Act § 31 c third and fourth paragraphs and §§ 31 d to 31 h apply, with the exception of § 31 g first paragraph, corresponding to the court’s processing of the case.
The King may issue regulations on the appointment of a special lawyer pursuant to the second paragraph.
§ 8. Entry into force, etc.
The law applies from the time the King decides [16 April 2021]. The King may enter into force the individual provisions at different times.
From the time the law enters into force, the following laws are repealed:
- a) Act of 4 June 1968 No. 4 for the implementation of binding resolutions of the United Nations Security Council
- b) Act of 27 April 2001 No. 14 on the implementation of international, non-military measures in the form of interruption or limitation of economic or other relations with third states or movements
(c) Act of 58 June 2003 No. 58 on special measures against the Republic of Zimbabwe
- d) Act of 6 June 1980 No. 18 on the implementation of sanctions against Iran
(e) Law of 43 June 1999 No 43 concerning special measures against the Federal Republic of Yugoslavia (FRY)
- f) Act of 16 April 1937 on power of attorney for the King, or the person he authorizes, to prohibit Norwegian ships from being used to bring people who are engaged in war, weapons, ‘loty’, aircraft, or parts thereof to foreign countries.
Regulations issued pursuant to the laws mentioned in the second paragraph, letters a, b and c also apply after the law has entered into force here.
§ 9. Amendments to other laws
From the time the law enters into force, the following changes are made to other laws: – – –