United Nations Participation Act (1945)

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United Nations Participation Act (1945)

Michael P. Malloy

The United Nations Participation Act (UNPA) (59 Stat. 619) provides the basic authority for U.S. participation as a member of the United Nations Organization. In particular, it is the authority for the president to apply economic and other sanctions against a target country or its nationals pursuant to mandatory decisions by the United Nations Security Council under Article 41 of the United Nations Charter. Until recently, this statutory authority was rarely invoked, but in current practice it has become a significant basis for U.S. economic sanctions.

The UNPA emerged from Congress with considerable optimism and with relative swiftness. According to the House report accompanying the bill, it was intended to "prescribe the domestic, internal arrangements within [the U.S.] Government for giving effect to [U.S.] participation in [the United Nations] and [to] set up the machinery whereby [U.S.] national authorities can comply with certain of the major international commitments" assumed by the United States upon its ratification of the U.N. Charter. These commitments included the requirement that U.N. members comply in good faith with any Security Council decision under Article 41 to apply specified measures short of the use of armed force to implement Security Council decisions.

Such measures might include a complete or partial interruption of economic relations with a target country, prohibition of communication, or severance of diplomatic relations. Section 5 of the UNPA created domestic authority to comply with this obligation, authorizing the president, to the extent necessary, to apply measures decided upon by the U.N. Security Council pursuant to Article 41 to "investigate, regulate, or prohibit, in whole or in part, economic relations or rail, sea, air, postal, telegraphic, radio, and other means of communication between any foreign country or any national thereof or any person therein and the United States or any person subject to the jurisdiction thereof, or involving any property subject to the jurisdiction of the United States."

At least in terms of its potential effect on economic relations, this authority is quite broad. It is comparable to the statutory authority extended to the president for economic sanctions in such enactments as Section 5(b) of the Trading With the Enemy Act (TWEA, 1917) and its nonwartime successor, 1977's International Emergency Economic Powers Act (IEEPA). One obvious difference, however, is that presidential discretion to shape a program of sanctions under the UNPA is guided by the mandatory call for specified sanctions in the triggering Security Council resolution, rather than by specific statutory conditions contained in the TWEA and IEEPA.

The UNPA's broad authorization permitting presidential prohibition of international communications arguably would raise constitutional concerns under the freedom of speech provision of the First Amendment if the UNPA were a purely domestic legislative provision. Nevertheless, case law suggests that the UNPA authorization is reinforced by the international obligations of the United States as a U.N. member to comply with a Security Council mandate for such prohibitions on communications with a target country. The legislative history surrounding the enactment of the act in 1945 appears to argue that such authority is constitutionally permissible. This is reinforced by such Supreme Court cases as Missouri v. Holland (1920), holding that a treaty obligation may empower the federal government to regulate in an area otherwise beyond its domestic power under the Constitution.

Section 5 also provides for penalties for willful violations, evasions, or attempts to violate or evade any order, rule, or regulation issued by the president pursuant to the section. These are criminal sanctions, providing for a fine of not more than $10,000 or for natural persons, imprisonment of not more than ten years, or both. Knowing participation by an officer, director, or agent of a corporation in such a violation carries the same penalties. The Section also provides for forfeiture of property concerned in any such violation. According to the Federal District Court in United States v. Eight Rhodesian Stone Statues (1978), due process protections (such as written notice of forfeiture and an opportunity to file a petition for return of forfeited property) apply to such forfeiture proceedings.

In 1971 the Strategic and Critical Materials Stockpiling Act of 1939 was amended to authorize the importation of Rhodesian chrome ore, ferrochrome, and nickel, despite a U.N. embargo against Southern Rhodesia. These products were important economic resources of the illegal regime in Southern Rhodesia, and so prohibiting trade in these products placed significant pressure on the regime. However, access to these products was of strategic importance to U.S. national security. The amendment placed the United States in noncompliance with its obligations under the U.N. Charter, resulting in a conflict between U.S. foreign policy with respect to compliance with U.N. obligations and U.S. national security policy. Repeated efforts in Congress to repeal the amendment and to reimpose a total U.S. embargo on imports of Rhodesian origin were unsuccessful until 1977. The UNPA's Section 5 itself was amended in 1977 to authorize the president to reinstitute the embargo on imports of chrome ore, ferrochrome, nickel, and other materials from Southern Rhodesia. The 1977 amendment also established a certification procedure to prevent indirect importation of Rhodesian chrome through the importation of third-country specialty steel products. With the eventual resolution of the Rhodesian situation (and the emergence of the new state of Zimbabwe) in December 1979, the president revoked the Rhodesian sanctions.

After the Rhodesian sanctions, U.S. government interest in the UNPA as a statutory source of economic sanctions authority was in decline until 1990, with administrative attention shifting decisively to the unilateral authority of the IEEPA. With the withering away of the Soviet Union and the emergence of a more cooperative relationship between Washington and Moscow, the stage was set for a resurgence of U.S. government interest in the mandatory authority of the Security Council under Article 41. In more recent years, the UNPA has been invoked regularly to implement Security Council resolutions under Article 41, for example, in response to the Iraqi invasion of Kuwait in 1990 (terminated in 2003); to ban overflight, takeoff, and landing of aircraft flying to or from Libya; to impose sanctions against the Federal Republic of Yugoslavia (since suspended); to impose sanctions against Haiti (terminated); to implement a 1993 arms embargo against Angola and the insurgent group, the National Union for the Total Independence of Angola (known by its acronym, "UNITA") (terminated); a 1994 arms embargo against Rwanda; and to impose a broad range of sanctions against terrorist organizations and states supporting or facilitating terrorism after the attacks on the United States in September 2001.

See also: FOREIGN SERVICE ACT OF 1946; TRADING WITH THE ENEMY ACT