Autonomous Sanctions Bill Shown the Exit
By Alexander Campbell
Gerry Brownlee’s Autonomous Sanctions Bill, recently defeated at its first reading, would have introduced a framework for the implementation of autonomous sanctions by New Zealand. Autonomous sanctions are sanctions imposed unilaterally by states, as opposed to sanctions imposed as a result of a resolution by the United Nations Security Council (UNSC) or other international obligations. New Zealand implements these latter sanctions, but currently has limited ability to impose measures beyond what the Security Council prescribes.
There has been a trend towards such regimes overseas, with efforts focussed in particular on so-called Magnitsky regimes which provide for sanctions against foreign individuals who have committed human rights abuses or significant corruption. Of note is the Australian Autonomous Sanctions Act 2011, which has recently been reviewed with the recommendation that sanctionable conduct should be expanded to include human rights abuses and corruption. An example of sanctions under the current Australian regime are targeted financial sanctions and travel bans on seven people due to their facilitation of the questionable ‘elections’ in Crimea and Sevastopol of September 2019. While the consideration of human rights is limited in the current Australian regime, it does still allow for some sanctions against those who abuse human rights, such as sanctions against those who have committed violence against civilians in Syria.
Brownlee’s bill was originally a government bill introduced in May of 2017 near the end of the fifth National Government which had been worked on by the government since 2012 at least. It was carried over on the order paper by the sixth Labour Government but then lapsed at the end of their first term after languishing near the bottom of the order paper for three years. Brownlee subsequently put a nearly identical version of the bill into the members’ bill ballot from which it was drawn in 2021.
The bill allows for the implementation of sanctions by regulation where the threshold laid out in cl 8 of the bill is met. This clause allows sanctions where there is either a threat to peace and security specifically in the Asia-Pacific region, or a breach of international peace and security in response to which the UNSC has not imposed sanctions under Article 41 of the UN Charter or has imposed insufficient sanctions. The precise definition of threats to and a breaches of international peace and security are central to how broad or narrow this bill would have been in practice and are perhaps open to significant interpretation.
The bill also contains a few safeguards aimed at promoting transparency and accountability. Sanctions would expire after three years unless the responsible Minister intervened. The bill also requires a public register of sanctions to be maintained online. The Minister must also respond with reasons to any application by a member of the public asking for an amendment to, revocation of or exemption from a sanction.
There are questions generally about the place of autonomous sanctions in international law, as well as how regimes should best be implemented. Some regard autonomous sanctions as questionable, given the uncertainty of the international law surrounding them. Others cite the problematic nature of empowering states to act unilaterally in more ways. There is also debate about whether such actions can even truly be called sanctions, since the international legal sense of the word has evolved to incorporate a requirement of collective decision making. While semantic, this discussion perhaps encapsulates broader concerns over the legality and implementation of autonomous sanctions regimes. The counter argument is the frequent inability of the UNSC to agree on measures given the veto powers of the five permanent members, giving rise to a need for states to act outside of the UN.
And so, the area of autonomous sanctions is ripe for debate. However, despite voicing some support for the bill, Labour used its majority to prevent the bill progressing to select committee. At first reading, National and ACT voted in favour of the bill while Labour, the Greens and Te Paati Māori voted against it, resulting in a resounding defeat.
While Labour members speaking on the bill made note of several deficiencies, they seemed to support the general aims of the bill. Nanaia Mahuta, Minister of Foreign Affairs, specifically said in her speech on the bill that she welcomed debate on the issue. She also noted she was not ruling out future implementation of an autonomous sanctions regime, albeit with sanctions for use only as a last resort. However, Mahuta argued that the bill failed to consider sufficiently human rights, emerging threats such as those to cyber-security and issues beyond the Asia-Pacific region.
Ibrahim Omer, another Labour member speaking on the bill, echoed these concerns, noting in particular the discussions in Australia about the need to reform their regime to take greater account of human rights abuses. It is absolutely valid to raise concerns that the bill did not take sufficient account of human rights, however it seems odd to use reforms expanding an existing autonomous sanctions regime as an argument against implementing an autonomous sanctions regime at all.
Labour members speaking on the bill had plenty to say on how the bill could be improved, and little to say on whether they thought an autonomous sanctions regime is necessary, Mahuta’s comment that autonomous sanctions should be a last resort aside. In contrast Teanau Tuiono, speaking for the Green Party, made a spirited argument against the implementation of an autonomous sanctions regime based on the international rule of law, support for multilateral institutions and the potential for prejudiced against the Global South. While much of Labour’s argument against the bill focussed on equally principled concerns of human rights, their argument was not that the idea of autonomous sanctions was flawed, but merely that the bill was flawed. If Labour supports the idea of an autonomous sanctions regime and is so ready with ideas on how to improve Brownlee’s bill, then the question is why it voted against it going to select committee to be improved, a point Brooke van Velden of ACT raised.
A failure to send a bill to select committee despite support for the policy behind it is by no means unique to this bill or Labour, with National’s approach to a recent bill aiming to ban conversion therapy one example. It is however a concerning approach, and in this case stunts the ability for us all to participate in debate on a consequential issue for New Zealand’s foreign policy.
The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information.
Featured image source: Wikimedia Commons