Unilateral Sanctions in International Law

Surya P Subedi, Surya P Subedi QC

• Publisher: Hart Publishing
• Year: 2021
• ISBN:
  9781509948390
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

This is the first book that explores whether there are any rules in international law applicable to unilateral sanctions and if so, what they are. The book examines both the lawfulness of unilateral sanctions and the limitations within which they should operate. In doing so, it includes an analysis of State practice, the provisions of various international legal instruments dealing with such sanctions and their impact on other areas of international law such as freedom of navigation, aviation and transit, and the principles of international trade, investment, regional economic integration, and the protection of human rights and the environment. This study finds that unilateral sanctions by a state or a group of states against another state as opposed to 'smart' or targeted sanctions of limited scope would be unlawful, unless they meet the procedural and substantive requirements stipulated in international law. Importantly, the book identifies and consolidates these requirements scattered in different areas of international law, including the additional rules of customary international law that have emerged out of the recent practice of States and that increase the limitations on the use of unilateral sanctions.

1

The Status of Unilateral Sanctions in International Law

SURYA P SUBEDI

I.Introduction

Unilateral sanctions have become part of life in international relations. But there is no comprehensive treaty regulating the activities of states in this area. That said, there is an assortment of hard and soft law instruments in international law as well as the extant and emerging rules of customary international law, all seeking to fill this legal vacuum. However, no focused and comprehensive analysis of the nature and scope of unilateral sanctions and of the principles of international law that would be applicable to such sanctions has yet been conducted. It is in this context that this chapter seeks to examine the nature and scope of unilateral sanctions, contemporary practice of states in this area and the provisions of both soft and hard law instruments as well as the rules of customary international law concerning unilateral sanctions, with a view to deducing and identifying the rules of international law regulating such sanctions. In doing so, it will analyse the status of unilateral sanctions in international law with special reference to the principles of the sovereignty of states, prohibition on the use of force, non-intervention, and protection of human rights based on both treaty law and the contemporary norms of customary international law.

II.The Nature and Scope of Unilateral Sanctions

In the long history of international law, the term ‘sanctions’ 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 ‘legitimate reprisals’ or, more generally, measures of ‘self-protection’ or ‘self-help’. The term ‘sanctions’ 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 – despite the fact that the Charter uses the term ‘measures’, not ‘sanctions’. The term ‘countermeasures’ has been favoured over the term ‘sanctions’ 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 ‘sanctions’² 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 ‘financial carpet bombing’.¹³ Furthermore, the terms ‘smart’ or ‘targeted’ 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 ‘economic war’ 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 ‘economic terrorism’.¹⁵ Turkish President Erdogan also stated that Turkey would not accept ‘the use of economic sanctions as weapons’ 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 America’s economic might.¹⁷ Cameron says that the developing or Second World states prefer the term ‘economic sanctions’ and that he prefers the term ‘economic diplomacy’ to signify unilateral economic coercion or economic sanctions.¹⁸ In the words of a commentator, sanctions are ‘an option for when words aren’t good enough, but war is too much’.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 ‘private justice’ (in the words of Pellet),²⁰ or a sort of ‘safety valve’ (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 ‘sanctions’ itself, let alone the definition of ‘unilateral sanctions’ 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 ‘sanctions’ 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, ‘sanctions 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 stigmatize’.²² He goes on to state that

it is clear that sanctions adopted by individual States – such as the notorious US sanctions imposed on Cuba pursuant to the Helms-Burton Act – 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 ‘sanctions’: ‘all means of exercising pressures short of the threat or use of military force directly against a target state or entity’.²⁴ Farer states that sanctions constitute ‘efforts to project influence across frontiers by denying or conditioning access to a country’s resources, raw materials, semi- or finished products, capital, technology, services or consumers’.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 ‘sanctions’ many scholars have adopted the definition of ‘economic sanctions’ provided by Lowenfeld, who defines economic coercion as

measures of an economic – as contrasted with diplomatic or military – 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 ‘unilateral sanctions’ connotes measures broader than merely economic measures and could include non-economic measures too. Therefore, the term ‘unilateral sanctions’ 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

III.The Practice of Imposing Unilateral Sanctions

States have long been resorting to the use of coercive diplomacy or non-forcible measures, including unilateral sanctions, as an instrument to further their political and economic objectives.³³ A survey by the UN demonstrated that a total of 38 states and territories had been subjected to some degree of unilateral sanctions during the period 2000–15.³⁴ As stated in a UK Government’s White Paper, ‘Sanctions are a key foreign policy tool’ which are designed to communicate a clear political signal and can be used ‘to constrain or help effect a change in behaviour’.³⁵ Although the unilateral sanctions are expected to be used only as an exceptional measure, their use has become so common that it is seen as legal whether authorised by the UN Security Council or not. Indeed, the 1990s has been referred to as the ‘sanctions decade’ for the unprecedented high number of unilateral sanctions employed by states³⁶ during that time. The trend continued in the following decade. Although the number of comprehensive and high-intensity unilateral sanctions has declined slightly in the recent past, the number of low-intensity unilateral sanctions of limited scope commonly known as ‘smart’ or targeted sanctions is on the increase.³⁷

According to a report, the US sanctions list runs to 1,300 pa...