Economic Sanctions in International Law and Practice

Masahiko Asada

• Publisher: Routledge
• Year: 2019
• Edition: 1
• eBook ISBN:
  9780429628016
• Topic: Law
• Subtopic: International Law
• Index: Law

Providing perspectives from a range of experts, including international lawyers, political scientists, and practitioners, this book assesses current theory and practice of economic sanctions, discussing current legal and political challenges faced by the international community.

It examines both the implementation of sanctions by major powers – the United States, the European Union, and Japan – as well as assessing the impact of those sanctions through case studies of Russia, Iran, Syria, and North Korea. Balancing theoretical analysis of legal considerations with national and regional level empirical analysis, it also includes coverage of sanctions issues by the UN Security Council and the EU, as well as the extraterritorial application of sanctions.

A valuable reference for academics and practitioners, Economic Sanctions in International Law and Practice will be useful to those working in the fields of international law, diplomacy, and international political economy.

Part ILegal considerations

1 Definition and legal justification of sanctions

DOI: 10.4324/9780429052989-2

Masahiko Asada*

Introduction

Sanctions are one of the most important and powerful tools to maintain or restore international peace and security. But until the 1980s, there had only been two cases in which the United Nations (UN) imposed economic sanctions, as far as mandatory sanctions are concerned.¹ After the end of the Cold War, the function of the UN was revived, and the Security Council began to adopt more sanctions resolutions, with those concerning the Iraqi invasion of Kuwait in 1990 as the turning point. Thus, the 1990s were called the “sanctions decade,”² but they were designated as such mainly due to UN sanctions.

Contemporaneously, sanctions outside the UN framework became far more visible than before. While the United States continued to maintain its sanctions on Cuba and elsewhere,³ regional organizations like the European Union (EU), the African Union (AU), and African sub-regional organizations started to emerge as major players in applying sanction measures without relevant Security Council mandates – the so-called “autonomous” or “unilateral” sanctions. Some of these autonomous sanctions were applied to the same target and for the same, or related, purposes as the UN sanctions.

At the same time, in response to the disastrous impact on the civilian population of the comprehensive trade sanctions on Iraq in the early 1990s, the way in which sanctions were applied was fundamentally reexamined and, as a consequence, it evolved into more selective and targeted ones, which were deemed to be more effective and less inhumane, in both UN and non-UN measures.⁴ Whether this proved to be true or not, as the targeted sanctions may come close to comprehensive ones depending on the concrete measures,⁵ it is the shared view that it was the sanctions imposed in the 2000s and 2010s, both UN and non-UN, that led Iran to enact a major policy change and to enter into a major nuclear agreement, the Joint Comprehensive Plan of Action (JCPOA), with the E3 + 3 States in 2015, settling what had long been seen as a difficult international security issue.

Even if (or perhaps because) such a view reflects the reality of the situation, from a legal perspective, it is imperative to examine whether such measures are legally justifiable, as sanctions may sometimes involve otherwise unlawful measures.⁶ The examination will be conducted by distinguishing between UN and non-UN sanctions, not only because the trend of exerting UN and non-UN sanctions in parallel is expected to continue but also because the possible theories of legal justification applicable to them are quite different. Before proceeding to the examination, it is pertinent to define what “sanction” means in our context, as it has been said that there is no accepted definition of sanctions.⁷

I. Definition of sanctions

Sanctions stricto sensu under international law can be defined as

coercive measures taken [in response to a violation of international law] in execution of a decision of a competent social organ, i.e., an organ legally empowered to act in the name of the society or community that is governed by the legal system.⁸

In other words, sanctions stricto sensu do not include, in the first place, such measures that are taken in response to unfriendly or threatening, but still per se lawful, acts. UN enforcement measures (sanctions) are taken in response to a threat to the peace, breach of the peace, or act of aggression (Art. 39 of the UN Charter), which is usually an internationally wrongful act, but not always,⁹ and the legal characterization of such acts may sometimes be ambiguous.¹⁰ Thus, UN enforcement measures may not be regarded as sanctions stricto sensu.

Second, according to the strict definition of sanctions above, they do not include measures that are taken by individual or a group of States outside the framework of a decision by a competent social organ. This kind of measure is sometimes called an “autonomous” sanction. However, the term “autonomous” sanctions may appear self-contradictory because, according to the definition above, sanctions cannot be imposed autonomously but should be in accordance with a decision made by a competent social organ.

That said, the term “sanctions” has widely been used in practice as something encompassing much more, not only in nonlegal but also in legal literature¹¹ as well as in various official documents, both for UN enforcement measures and for autonomous measures. Although the Charter of the United Nations does not use the word “sanctions” anywhere, the Security Council resolutions themselves sometimes refer to the relevant measures as “sanctions.”¹² This applies even where they are taken in response to lawful, or not necessarily unlawful, acts.¹³

As for autonomous measures, the autonomous and other measures taken by the United States are called “sanctions” in the title of the relevant legislation. For instance, its legislation imposing certain measures on Iran is designated as the “Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010.”¹⁴ By contrast, within the framework of the EU, autonomous measures, as well as measures implementing UN resolutions, are all referred to as “restrictive measures” in its official documents. This is because Article 215 of the Treaty on the Functioning of the European Union (TFEU), which is the legal basis for the relevant EU regulations, refers to the measures for the interruption or reduction of economic and financial relations with third countries as “restrictive measures.” This does not, however, mean that the EU has never used the term “sanctions.” Rather, it sometimes uses this term in tandem with the term “restrictive measures,” as in the 2004 Council document entitled, “Basic Principles on the Use of Restrictive Measures (Sanctions).”¹⁵

Thus, “sanctions” has been used as a term broadly covering coercive measures taken against the will of a target State or entity. We will examine such broadly defined, but non-military, “sanctions” in this and other chapters in principle.

II. Legal justification of UN sanctions

Sanctions are coercive measures to be taken against the will of a target State or entity and are in some cases per se unlawful. As such, they need to be legally justified. The justifications for such sanctions may be different, depending on whether they are taken under the auspices of the United Nations or they are taken autonomously by a State or a group of States. Even for UN measures, the legal justifications may be different for mandatory and nonmandatory measures.

1. Legal justification of per se illegal mandatory UN sanctions

With regard to mandatory UN measures, which are typically provided in a paragraph beginning with the verb “decides” in a Security Council resolution adopted under Chapter VII of the UN Charter after the existence of a threat to the peace is determined,¹⁶ there are few divergent opinions about how to justify their apparent lack of legality. Legal scholarship, UN practice, and judicial opinions are virtually unanimous in agreeing that obligations under legally binding sanction resolutions of the Security Council must prevail over any other conflicting international legal rights and obligations.¹⁷

In cases where obligations under such resolutions conflict with those under a treaty to which UN Member States are party along with the target State, the former obligations would prevail by virtue of Article 103 of the UN Charter. Article 103 provides that “[i]n the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” Although it refers to the obligations “under the [UN] Charter,” they are understood to also include those present under legally binding Security Council resolutions, as has been demonstrated by some Security Council resolutions themselves,¹⁸ as well as jurisprudence of the International Court of Justice¹⁹ (ICJ) and other courts and tribunals.²⁰

On the other hand, literally, Article 103 only covers a conflict between obligations under the UN Charter and those under another “international agreement” and is not applicable to a case of conflict between the former obligations and those under customary international law.²¹ The drafting history of Article 103²² and subsequent practice²³ also supports such an understanding,²⁴ although there are views supporting a broad interpretation of Article 103 to the effect that it also covers a conflict with customary international law.²⁵

Nevertheless, the supremacy of the Charter obligations over those under customary international law may be confirmed by resorting to other rules of international law. Some analysts refer to the rule of lex specialis in this respect. Thus, Professor Nico Krisch, in discussing the reason for Article 103 only dealing with possible conflict with “any other international agreement,” argues that “Charter rules were deemed to derogate from general international law as lex specialis, and . .. a conflict rule was seen as necessary only for agreements.”²⁶ He goes on to maintain that “[i]n effect, thus, [Security Council] resolutions take precedence over all conflicting rules of international law.”²⁷

While it is undoubtedly persuasive, such a view might not be entirely correct. When a new customary rule is established following the conclusion of a treaty (including the UN Charter) regulating the same subject, the lex posterior rule may lead to the conclusion that a subsequently established customary rule as a lex posterior takes precedence over a prior treaty rule, unless a different intention on the part of the parties to the treaty is established.²⁸ For instance, it seems possible that, notwithstanding the rules set forth in Article 2, paragraph 4, of the UN Charter, a new customary rule allowing the use of force for humanitarian reasons (humanitarian intervention) may emerge to govern international relations between States.²⁹ In this case, the lex posterior rule, rather than that of lex specialis, would correctly explain the legal situation.

However, such eventualities seem to arise mainly in cases where the relevant UN obligations are directly provided for in the Charter itself. Regarding obligations under legally binding Security Council resolutions (sanction resolutions, in particular) as special treaty-based obligations, the rule of lex speci...

Table of contents

• Cover
• Half Title
• Series
• Title
• Copyright
• Table of Contents
• List of tables
• Notes on the contributors
• Preface
• PART I Legal considerations
• PART II Implementation of sanctions
• PART III Case studies
• Index