Charter of the United Nations (Sanctions-Libya) Regulations 1994 No. 131
EXPLANATORY STATEMENT
Statutory Rules 1994 No. 131
Issued by the authority of the Minister of Foreign Affairs
Charter of the United Nations Act 1945
Charter of the United Nations (Sanctions-Libya) Regulations
Section 6 of the Charter of the United Nations Act 1945 ("the Act") provides that the Governor-General may make regulations for and in relation to giving effect to decisions that:
(a) the Security Council has made under Chapter VII of the Charter of the United Nations, and
(b) Article 25 of the Charter requires Australia to carry out;
in so far as those decisions require Australia to apply measures not involving the use of armed force.
On 1 December 1993 the Security Council adopted Resolution 883 ("the Resolution"), which imposed sanctions on Libya additional to those imposed by the Security Council following Libya's failure to comply with Security Council Resolution's 731 (92) and 748 (92), The purpose of the proposed Regulations is to implement those parts of the sanctions which could not be implemented under other legislation.
The new Regulations impose the following sanctions against Libya:
• financial sanctions, as required by Operative Paragraph 3 of the Resolution, including exemptions for funds derived from the sale or supply of certain goods from Libya on or after 1 December 1992 , provided that such funds are paid into a bank account exclusively for these funds as required by Operative Paragraph 4 of the Resolution.
• a prohibition on the provision of certain services to Libya relating to civil and military aviation, as required by Operative Paragraph 6 of the Resolution.
• a prohibition on the provision of certain goods to Libya by Australian citizens outside Australia, as required by Operative Paragraph 5 of the Resolution.
• measures to ensure that no claims can be brought by the Government or public authorities of Libya, or any Libyan national, or of any Libyan undertaking described in Operative Paragraph 3 of the Resolution, in connection with any contract or transaction whose performance is affected by the implementation of the Resolution, as required by Operative Paragraph 8 of the Resolution.
Overview
The Charter of the United Nations (Sanctions-Libya) Regulations 1994 were enacted to address Libya's non-compliance with prior United Nations Security Council resolutions, specifically Resolutions 731, 748, and the subsequent Resolution 883. These regulations were issued under the authority of the Minister of Foreign Affairs and are made pursuant to Section 6 of the Charter of the United Nations Act 1945, which allows the Governor-General to implement Security Council decisions that require Australia to take measures not involving armed force. The primary objective of these regulations is to enforce the sanctions imposed by the Security Council, including financial sanctions, restrictions on the provision of certain services and goods, and measures to prevent legal claims by Libyan entities affected by these sanctions. The Regulations aim to ensure Australia's compliance with international obligations under the Charter of the United Nations.
Scope and Application
The Charter of the United Nations (Sanctions-Libya) Regulations 1994 applies to any person or entity within Australia and to Australian citizens and entities wherever they may be located. The Regulations were made under section 6 of the Charter of the United Nations Act 1945, which allows for the creation of regulations to implement decisions made by the United Nations Security Council under Chapter VII of the Charter that require Australia to take measures not involving the use of armed force. These Regulations specifically implement certain sanctions against Libya as mandated by United Nations Security Council Resolution 883. The sanctions include financial restrictions, a ban on certain services related to civil and military aviation, a prohibition on the supply of certain goods by Australian citizens outside Australia, and measures to prevent Libyan entities from pursuing legal claims related to contracts or transactions affected by the sanctions. The scope of these Regulations is thus both national and extraterritorial, affecting any Australian person or entity, as well as Australians abroad. The Regulations also include exemptions for certain Libyan funds derived from the sale or supply of goods, provided such funds are deposited into a designated bank account. The application of these Regulations can be extended or further specified through subordinate instruments as needed to implement subsequent United Nations Security Council decisions.
Key Provisions
The main operative sections of the Charter of the United Nations (Sanctions-Libya) Regulations 1994 (No. 131) are drawn from Section 6 of the Charter of the United Nations Act 1945, which allows the Governor-General to make regulations for giving effect to Security Council decisions under Chapter VII of the Charter, provided they do not require the use of armed force. These regulations specifically implement parts of United Nations Security Council Resolution 883, which imposed additional sanctions on Libya due to non-compliance with previous resolutions 731 and 748.
The key provisions of these regulations include financial sanctions (Regulation 4), which prohibit transactions involving Libyan funds unless derived from the sale or supply of certain goods from Libya after 1 December 1992, and these funds must be held in a dedicated bank account. There is also a prohibition on the provision of certain services related to civil and military aviation (Regulation 5), as well as a ban on the export of specific goods by Australian citizens outside Australia (Regulation 6). Lastly, Regulation 7 prevents Libyan entities from bringing claims in Australian courts regarding contracts or transactions affected by the sanctions.
The regulations impose several obligations and requirements on entities and individuals. Financial institutions must ensure that any Libyan funds deposited into Australian accounts are from permissible transactions and held in the specified accounts. Australian citizens and entities must comply with the export ban on certain goods to Libya and refrain from providing restricted services to Libyan civil and military aviation sectors. Additionally, all parties are prohibited from facilitating claims by Libyan entities in Australian courts concerning transactions affected by the sanctions.
Breaches of these regulations can lead to significant legal consequences. The regulations do not explicitly state the penalties for non-compliance, but violations could potentially result in fines or imprisonment under the Charter of the United Nations Act 1945, which provides for penalties for breaches of its regulations. Given the severity of the sanctions, non-compliance could also attract civil actions for damages from affected parties, as well as diplomatic repercussions given the international nature of the sanctions.