II.The Nature and Scope of Unilateral Sanctions
In the long history of international law, the term âsanctionsâ is a relatively recent phenomenon. As stated by the International Law Commission (ILC) in its commentaries to the Draft Articles on State Responsibility,1 until recently the more usual terminology was that of âlegitimate reprisalsâ or, more generally, measures of âself-protectionâ or âself-helpâ. The term âsanctionsâ has generally been used for collective measures such as those taken by the UN Security Council under Chapter VII of the Charter of the UN â despite the fact that the Charter uses the term âmeasuresâ, not âsanctionsâ. The term âcountermeasuresâ has been favoured over the term âsanctionsâ to signify measures taken in response to a prior breach of international law mainly since the Air Service Agreement arbitration and it was adopted by the ILC for the purposes of the Draft Articles on State Responsibility.
However, the term âsanctionsâ2 itself has been used by various writers synonymously with a host of other terms such as economic blockade,3 boycott,4 embargo,5 countermeasures,6 retorsion,7 reprisals,8 economic warfare,9 economic coercion,10 economic force or economic aggression,11 economic weapon12 and a tool for âfinancial carpet bombingâ.13 Furthermore, the terms âsmartâ or âtargetedâ sanctions have also been used to signify low-intensity unilateral sanctions of limited scope.
Not only scholars but some states too have characterised the employment of unilateral sanctions as âeconomic warâ and the statement of the Foreign Minister of Iran in response to the US sanctions against his country in June 2019 is an example.14 He termed the US unilateral sanctions as âeconomic terrorismâ.15 Turkish President Erdogan also stated that Turkey would not accept âthe use of economic sanctions as weaponsâ by the US against his country. He made these remarks in response to the use of unilateral sanctions by the US in 2018.16 A commentator states that successive US governments have weaponised Americaâs economic might.17 Cameron says that the developing or Second World states prefer the term âeconomic sanctionsâ and that he prefers the term âeconomic diplomacyâ to signify unilateral economic coercion or economic sanctions.18 In the words of a commentator, sanctions are âan option for when words arenât good enough, but war is too muchâ.19 As opposed to the collective sanctions employed by the UN, other forms of sanctions, and especially unilateral economic sanctions, are a kind of means of âprivate justiceâ (in the words of Pellet),20 or a sort of âsafety valveâ (in the words of Cameron),21 whereby a state or a group of states decides to impose sanctions on the target state for an alleged prior violation of a rule of international law or to deter a state from violating international norms.
There is no universally agreed definition of the term âsanctionsâ itself, let alone the definition of âunilateral sanctionsâ in international law. There is a thin line between low-intensity unilateral sanctions of retorsive character and high-intensity unilateral sanctions. A case-by-case analysis will have to be conducted to draw a clear distinction between the high-intensity unilateral sanctions and low-intensity unilateral sanctions of retorsive character, since there is no judicial or other international mechanism to adjudicate upon the matter. However, generally speaking, the term âsanctionsâ means any measure taken by the targeting state against the target state to require it to adhere to international law or to punish it for a breach of international law. But in reality, sanctions have been used by states for a variety of purposes. As stated by Ruys, âsanctions can serve a variety of purposes, namely: (i) to coerce or change behaviour; (ii) to constrain access to resources needed to engage in certain activities; or (iii) to signal and stigmatizeâ.22 He goes on to state that
it is clear that sanctions adopted by individual States â such as the notorious US sanctions imposed on Cuba pursuant to the Helms-Burton Act â often serve foreign-policy purposes of the State(s) concerned, without necessarily constituting a reaction to a prior breach of international law.23
Szasz provides the following broad definition of âsanctionsâ: âall means of exercising pressures short of the threat or use of military force directly against a target state or entityâ.24 Farer states that sanctions constitute âefforts to project influence across frontiers by denying or conditioning access to a countryâs resources, raw materials, semi- or finished products, capital, technology, services or consumersâ.25 According to Jazairy, the UN Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights,
unilateral coercive measures are measures including, but not limited to, economic and political ones, imposed by States or groups of States to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights with a view to securing some specific change in its policy.26
However, in defining the term âsanctionsâ many scholars have adopted the definition of âeconomic sanctionsâ provided by Lowenfeld, who defines economic coercion as
measures of an economic â as contrasted with diplomatic or military â character taken by states to express disapproval of the acts of the target state or to induce that state to change some policy or practice or even its governmental structure.27
Economic sanctions can include any of the following measures: financial sanctions, asset freezes, trade sanctions, arms embargoes, commodity interdictions, diplomatic sanctions and travel bans, etc.28 However, the term âunilateral sanctionsâ connotes measures broader than merely economic measures and could include non-economic measures too. Therefore, the term âunilateral sanctionsâ could be defined as follows: measures of exercising pressures short of the threat or use of military force directed against a target state or entity, which are taken by an individual state or a group of states, which are not authorised by the United Nations and which seek to limit or deprive altogether the freedom that other states enjoy as sovereign states under international law. Not only economic and financial sanctions would come within the ambit of unilateral sanctions, but also restrictions on the freedom of navigation, aviation and transit and on the right to communications.
Some of the most comprehensive unilateral sanctions in recent times have been the US sanctions against Cuba, Syria, the Russian Federation, Iran and North Korea and the comprehensive unilateral sanctions imposed on Qatar by four other Arab states in 2017. The US-imposed sanctions seem to include a wide range of measures ranging from the economic, banking and other financial restrictions, a ban on the sale of weapons and technology to a restriction on travel to these countries by US citizens.29 These measures also affect other countries and their citizens, including US citizens themselves, who are not allowed to visit the target country as tourists. The extraterritorial scope of such measures ensures that all matters pertaining to the target country, especially international banking transactions, are targeted by US authorities, even in third countries.30
A series of comprehensive sanctions by the US against the Russian Federation between 2014 and 2016, in the aftermath of its action in Crimea and Sevastopol, included freezing the assets of a number of Russian and Ukrainian officials in connection with the situation in Ukraine, restrictions on the sale of military and dual use products to Russia, and imposing an export licensing regime on goods designed for a number of oil projects in Russia related to deep water, shale and Arctic oil exploration. These wide-ranging sanctions have considerable impact on the economy of the target country. For instance, the Russian Minister of Finance, Anton Siluanov, estimated that Russia was losing around US$ 40 billion per year because of these sanctions, and a further US$ 90 to 100 billion per year on account of the drop in the oil price. Presidential adviser Sergey Glazyev believes that the cost of the damage wrought on the Russian financial industry by the sanctions against Russia was US$ 250 billion over two years, bearing in mind that Russian borrowers had already been compelled to pay back about US$ 200 billion.31
Some of the most comprehensive sanctions with far reaching implications were the sanctions against Syria by the US, EU and the League of Arab States. They included measures ranging from an export ban on arms and related material and on equipment, an import ban on crude oil and petroleum products from Syria, a ban on investment in the Syrian oil industry and in companies engaged in the construction of new power plants for electricity production in Syria, prohibition from participating in the construction of new power plants, including related technical or financial assistance, a ban on exports to Syria of key equipment and technology for the oil and gas industry, the freezing of the assets of the Central Bank of Syria within the EU, an export ban on equipment, technology or software primarily intended for monitoring or interception of the Internet or telephone communications, and the prohibition from trading Syrian public or public guaranteed bonds to or from the Government of Syria or its public bodies and Syrian financial institutions.32