Economic Sanctions and International Law

Matthew Happold, Paul Eden, Matthew Happold, Paul Eden

• Publisher: Hart Publishing
• Year: 2016
• ISBN:
  9781782254737
• Edition: 1
• Topic: Diritto
• Subtopic: Diritto internazionale

In recent years sanctions have become an increasingly popular tool of foreign policy, not only at the multilateral level (at the UN), but also regionally (the EU in particular) and unilaterally. The nature of the measures imposed has also changed: from comprehensive sanctions regimes (discredited since Iraq in the 1990s) to 'targeted' or 'smart' sanctions, directed at specific individuals or entities (through asset freezes and travel bans) or prohibiting particular activities (arms embargoes and export bans). Bringing together scholars, government and private practitioners, Economic Sanctions and International Law provides an overview of recent developments and an analysis of the problems that they have engendered. Chapters examine the contemporary practice of the various actors, and the legality (or otherwise) of their activities. Issues considered include the human rights of persons targeted, and the mechanisms established to challenge their listing; as well as, in cases of sanctions imposed by regional organisations and individual states, the rights of third States and their nationals. The book will be of interest to scholars and practitioners of international law and politics.

1

Economic Sanctions and International Law: An Introduction

MATTHEW HAPPOLD

THE USE OF sanctions and embargoes as tools of foreign policy or (to put it more bluntly) of economic warfare¹ has rarely been more prevalent. At present, there are 17 United Nations sanctions regime and 37 European Union sanctions regimes in force, along with various others imposed by States acting unilaterally or under the umbrella of other international organisations. Yet, at the same time, such practices have rarely been more contested. Targeted or ‘smart’ sanctions against individuals and entities—in particular, asset freezes and travel bans—imposed by the UN Security Council and Member States acting under its authorisation have been subjected to sustained challenge: to begin with, because they reduced those subject to them to conditions of indigency; and, more generally, because they are based on undisclosed evidence and are not subject to judicial review. So-called unilateral or autonomous sanctions—that is, those imposed by States and international organisations without the Security Council’s imprimatur—are criticised as being contrary to international law and in breach of the rights of the States targeted by such measures, including by the UN General Assembly and the Human Rights Council.

Sanctions, it can already be seen, take various forms. United Nations sanctions have traditionally had a special status, as they benefit from the combined effects of Charter Articles 25 (requiring Member States ‘to accept and carry out the decisions of the Security Council’) and 103 (providing that Member States’ obligations under the Charter shall prevail in cases of conflict with any other of their treaty obligations). And although it is sometimes argued that the wording of Article 103 means that only Member States’ treaty obligations, and not their obligations under general international law, are trumped, application of the lex specialis principle would seem to argue the contrary, absent a customary rule having jus cogens status.² What this means is that discussions about whether the Security Council has acted lawfully in establishing particular sanctions regimes tend to focus on whether the Council has acted within its powers as set out in the Charter.³

Unilateral or autonomous sanctions, however, cannot rely on such support. Here, legal justifications differ.

—Some measures, such as embargoes on the export of arms and materiel are occasionally argued as necessary to prevent the State or States imposing them breaching their own legal obligations (under, eg, the law of neutrality)⁴ or being complicit in another State’s illegal conduct (under international human rights or humanitarian law or the Arms Trade Treaty).⁵ If so, then properly speaking, they are not sanctions.

—Sanctions imposed by an international organisation on one of its Member States—such as those imposed by the African Union and threatened in the Organisation of American States in reaction to unconstitutional changes of Member States’ governments⁶—can be justified on the basis of consent. The targeted Member State, as a member of the organisation, has agreed to be bound by its rules.

—Sanctions can also be justified as retorsion rather than reprisals (countermeasures), as they breach no obligation owed to the target State.

—Should any such obligation exist, however, then unilateral or autonomous sanctions can only be lawful if they are countermeasures, meaning they are subjected to the stringent criteria codified in the ILC Articles on State Responsibility and its Draft Articles on the Responsibility of International Organisations.⁷

Indeed, this appears to be the crux of the dispute concerning the lawfulness of unilateral or autonomous sanctions. On one side, it is argued that a State’s freedom includes the liberty to revise its relations with other States as it pleases providing no specific legal obligations are breached doing so, and that, as there are no customary obligations to maintain any particular economic relations with other States, this includes the restriction or interruption of trade relationships. On this reading, providing sanctions do not breach any applicable treaty (the GATT or other WTO-covered agreement; a regional free trade agreement; a treaty of friendship, commerce and navigation; or a bilateral investment treaty) or customary rules (such as those relating to the treatment of foreign nationals and their property present on the territory of the State), they are lawful. Certainly, this seems to have been the position taken by the International Court of Justice in the Nicaragua case,⁸ when, discussing the legality of the trade embargo imposed by the USA on Nicaragua, the Court stated that ‘[a] State is not bound to continue particular trade relations longer than it sees fit to do so in the absence of a treaty commitment or other specific legal obligation’.⁹

On the other hand, however, it is argued that all ‘coercive measures’ are unlawful; that is, measures which are coercive in the sense of seeking to require the target State to change its policies on any matter within its domestic jurisdiction, in particular with regard to its political, economic and social system. It is a variant of this latter view that has lately been advanced by the UN Human Rights Council and the General Assembly, and (in this volume) by Alexander Orakhelashvili and Pierre-Emmanuel Dupont.¹⁰ It appears to find its justification in the 1970 Friendly Relations Declaration¹¹ and, in particular, in Article 32 of the 1974 Charter of Economic Rights and Duties of States,¹² which provides that: ‘No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights’. In purported application of the rule contained in Article 32, beginning in 1983,¹³ the General Assembly has adopted a long series of resolutions on ‘human rights and unilateral coercive measures’. The most recent of such, Resolution 68/180, is clear; stating in its preamble the conviction that ‘unilateral coercive measures and legislation are contrary to international law, international humanitarian law, the Charter of the United Nations and the norms and principles governing peaceful relations among States’. The resolution goes on to urge:

all States to cease adopting or implementing any unilateral measures not in accordance with international law, international humanitarian law, the Charter of the United Nations and the norms and principles governing peaceful relations among States, in particular those of a coercive nature, with all their extraterritorial effects, which create obstacles to trade relations among States, thus impeding the full realization of the rights set forth in the Universal Declaration of Human Rights and other international human rights instruments, in particular the rights of individuals and peoples to development.

States are ‘strongly’ urged not to adopt or apply unilateral measures, in particular economic financial or trade measures, not in accordance with international law which might impede economic and social development. The inclusion of States in unilateral lists ‘under false pretexts … including false allegations of terrorism sponsorship’ is condemned. Such measures’ ‘extraterritorial nature’ are also said to threaten the sovereignty of States. Indeed, unilateral coercive measures are stated to be ‘one of the major obstacles to the implementation of the Declaration on the Right to Development’. And the resolution condemns:

the continuing unilateral application and enforcement by certain Powers of unilateral coercive measures, and rejects those measures with all their extraterritorial effects, as being tools for political or economic pressure against any country, in particular developing countries, adopted with a view to preventing those countries from exercising their right to decide, of their own free will, their own political, economic and social systems, and because of the negative effects of those measures on the realization of all the human rights of vast sectors of their populations, in particular children women, the elderly and persons with disabilities[.]

The Human Rights Council has also passed a series of similarly worded resolutions,¹⁴ and in 2014 decided to appoint a Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights.¹⁵

It might be said, however, that such sweeping statements and blanket condemnations rest on uncertain foundations. The Charter of Economic Rights and Duties of States, despite its name, is nothing more than a General Assembly resolution and, although adopted by a large majority,¹⁶ its customary status is doubtful given the number of developed States that abstained or voted against its adoption. The General Assembly and Human Rights Council’s resolutions on human rights and unilateral coercive measures have been adopted by much less convincing majorities: General Assembly Resolution 69/180 received 134 votes for and 53 against, with one abstention. The most recent Human Rights Council resolution, Resolution 30/2,¹⁷ was adopted by 33 to 14 votes with no abstentions. The least that can be said is that States are divided on the issue, with a substantial minority opposed to the view of the majority on the general illegality of unilateral economic sanctions.

In his chapter, Alexander Orakhelashvili argues that States possess rights under international law which other States are obliged to respect, with those rights being codified in the 1970 Friendly Relations Declaration, which provides, in particular, that:

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.¹⁸

This seems a securer basis for arguing that unilateral or autonomous sanctions are generally illegal than the Charter of Economic Rights and Duties of States, given that the Friendly Relations Declaration was adopted by the General Assembly without a vote and is frequently considered to be an authoritative interpretation of the principles set out in Article 2 of the UN Charter. However, it might be recalled that the relevant provisions of the Friendly Relations Declaration fall within the section on ‘[t]he duty not to intervene in matters within the domestic jurisdiction of any State, in accordance with the Charter’, and that the extent of a State’s domestic jurisdiction at any one time is a relative question dependent on the development of international relations,¹⁹ so that references in the Declaration to the illegality of measures taken against ‘the personality of the State’, ‘its political, economic and cultural elements’ and ‘its sovereign rights’ need to be parsed carefully. Matters such as the degree to which a State respects the human rights of its nationals, which some decades ago might have been seen as wholly internal, are now seen as matters of international concern to which other States and international organisations may react.

It might also be questioned whether State practice comports with the high-minded statements of the General Assembly and the Human Rights Council. An obvious example is the Organisation of Arab Petroleum Exporting Countries’ oil embargo in 1973–74 against Canada, Japan, the Netherlands, the UK and the USA in response to those States’ support of Israel during the Six Days War. Ironically, the Arab States’ use of their ‘oil weapon’ was at the time condemned by many Western scholars as unlawful coercion.²⁰ The point here, however, is not so much that the embargo sought to prevent those States targeted ‘from exercising their right to decide, of their own free will, their own political, economic and social syst...