US Becomes First UN Member State to Implement and Exceed Requirements to Provide Humanitarian Carve Outs to Asset Freeze Sanctions

The United States has demonstrated strong leadership in addressing the long-discussed challenge of providing humanitarian assistance in states that are subject to economic sanctions. Not only did the U.S. spearhead the U.N. Security Council’s adoption of Resolution 2664, which provides a humanitarian “carve out” to nearly all of the U.N. sanctions programs that involve asset freezes, but the U.S. more recently became the first country to implement and exceed the resolution’s requirements.

Background on U.N. Security Council Resolution 2664

On December 9, 2022, the Security Council adopted Resolution 2664, which was spearheaded by the United States and Ireland. Resolution 2664 adopts a humanitarian “carve out” to nearly all of the U.N. sanctions programs that involve asset freezes.

The Security Council decided in Resolution 2664 that “without prejudice to the obligations imposed on Member States to freeze the funds and other financial assets or economic resources of individuals, groups, undertakings, and entities” designated by the Security Council or its Sanctions Committees “the provision, processing or payment of funds, other financial assets, or economic resources, or the provision of goods and services necessary to ensure the timely delivery of humanitarian assistance or to support other activities that support basic human needs” are not a violation of the asset freezes imposed by the Council or its Sanctions Committees.

Resolution 2664 named specific organizations that carry out activities that support basic human needs that are covered by the Resolution, and those organizations include the following:

The U.N., including its Programmes, Funds, and Other Entities and Bodies, as well as its Specialized Agencies and Related Organizations, international organizations, humanitarian organizations having observer status with the U.N. General Assembly and members of those humanitarian organizations.
Bilaterally or multilaterally funded non-governmental organizations participating in the U.N. Humanitarian Response Plans, Refugee Response Plans, other U.N. Appeals, or OCHA-coordinated humanitarian “clusters,” or their employees, grantees, subsidiaries, or implementing partners while and to the extent that they are acting in those capacities.
Appropriate others as added by any individual Committees established by the Security Council within and with respect to their respective mandates.

U.N. member states have an obligation to implement Security Council Resolution 2664 in accordance with international law, including international humanitarian law, international refugee law, and international human rights law.

U.S. Leads the Way in Accommodating Humanitarian Relief in Sanctioned Countries

On December 20, 2022, the United States became the first country to implement Security Council Resolution 2664. The U.S. Department of the Treasury’s Office of Foreign Assets Control, in consultation with the U.S. Department of State, published two final rules (see 87 FR 78470 and 78484) to add general licenses to comply with Security Council Resolution 2664 and to facilitate the delivery of humanitarian aid. Notably, while Security Council Resolution 2664 applies only to U.N. sanctions programs, the general licenses implemented by the United States apply across OFAC-administered programs, making the U.S. implementation of the resolution broader than required, reflecting the commitment of the United States to advance humanitarian priorities.

OFAC issued or amended four categories of general licenses authorizing the following activities:

Official business of the United States government.
Official business of certain international organizations and entities.
Transactions incident to certain humanitarian and other activities by non-governmental organizations.
Provision of food and other agricultural commodities, medicine, medical devices, replacement parts and components, or software updates for medical devices for personal, non-commercial use.

The U.S. Department of the Treasury has indicated that, for humanitarian-related activity that may fall outside the scope of these authorizations, OFAC will consider specific licenses on a case-by-case basis.

To assist with the implementation and provide additional guidance in relation to the new general licenses, on December 20, 2022, OFAC published four Frequently Asked Questions (FAQs):

FAQ 1105 explains that the new general licenses are intended to implement Security Council Resolution 2664 across a number of sanctions programs, which include sanctions programs that implement U.N. sanctions regimes and lays out the four categories of general licenses (listed above), that are amended.
FAQ 1106 addresses the fact that financial institutions are permitted to provide banking services, including processing funds transfers related to activities authorized under the four categories of general licenses that are implicated by the OFAC amended general licenses. The FAQ clarifies that activities within the general licenses apply to U.S. as well as non-U.S. persons or entities, including foreign financial institutions, who facilitate or assist activities covered by the general licenses.
FAQ 1107 clarifies the covered entities that fall within the covered category of “[t]he official business of certain international organizations and entities,” referring to a U.N. organizational chart to indicate the organizations that are included within the “U.N. Programmes, Funds, and Other Entities and Bodies, as well as its Specialized Agencies and Related Organizations.” The FAQ states that the international organizations general licenses “also authorize the activities of the fund entities administered or established by the foregoing UN organizations, as well as the activities of the international organizations and entities themselves, in addition to the activities of their employees, contractors, and grantees.”
FAQ 1108 clarifies that OFAC’s actions on December 20, 2022 do not restrict the scope of any existing exemptions or OFAC authorizations for humanitarian activities, including existing general licenses authorizing non-governmental organization activities in sanctioned jurisdictions including the Crimea Region of Ukraine, Iran, and Syria, and also including pre-existing web general licenses that have been incorporated into the relevant program regulations, such as Venezuela GL 20B.

The United States’ actions in implementing and going beyond the requirements of Resolution 2664 reflect the country’s leadership on humanitarian issues, its commitment to modernizing its sanctions regimes, and the challenges of using sanctions to address national security concerns while carrying out humanitarian activities through legitimate channels in heavily sanctions jurisdictions.

Buchanan’s team of international trade and national security attorneys have deep experience helping clients navigate complex sanctions matters and export controls. Should you have questions regarding this topic, please do not hesitate to contact the attorney authors.