International Economic Sanctions and Fundamental Rights: Friend or Foe?




© Springer International Publishing Switzerland 2015
Norman Weiß and Jean-Marc Thouvenin (eds.)The Influence of Human Rights on International Law10.1007/978-3-319-12021-8_9


9. International Economic Sanctions and Fundamental Rights: Friend or Foe?



Jean-Marc Thouvenin 


(1)
University Paris West Nanterre La Défense, Nanterre, France

 



 

Jean-Marc Thouvenin




9.1 Introduction


After a short presentation of what is generally meant by “economic sanctions” (Sect. 9.2), this paper will focus on a single question, which is to know if, and to what extent, fundamental human rights (which, in this paper, will be considered as including human rights law and humanitarian law) affect the recourse to, and the practice of, economic sanctions in international relations. Upon analysis, it will be explained that the violation of fundamental rights can be a trigger for the adoption of “smart” economic sanctions (Sect. 9.3) but on the reverse that the protection of fundamental rights is also a strong argument to deny the legality of such sanctions (Sect. 9.4). Finally, it will be concluded that if international human rights and humanitarian law does influence the practice of international economic sanctions, this is still to a (too) limited extent (section “Conclusion”).


9.2 The Growing Enthusiasm for Economic Sanctions



9.2.1 Economic Sanctions as a Common Tool of International Policy


Broadly speaking, economic sanctions are peaceful “economic weapons” used by States, or international organizations, to put pressure on a State, or on another entity, in order to bring this State or entity to adopt or refrain to adopt certain behavior. The targets may also be private persons—which is particularly the case in the context of the fight against terrorism—but they are States in most of the cases.

This practice has always existed, but as interesting as it is, it does not seem appropriate here to dwell with the international economic sanctions reported in the History books. Indeed, one could discuss the decree adopted by Pericles in 432 bc limiting imports from Megara on the markets of Athens, the continental blockade of England imposed by Napoleon in the very beginning of the nineteenth century, U.S. embargoes in force between 1807 and 1813, blocking foreign trade with the U.S. (Embargo Act, 1807; Non-Intercourse Act, 1809; Non-importation Act, 1811), and Article 16 of the Covenant of the League of Nations, which requests Member States to adopt economic sanctions against States in breach of certain of their obligations.1 But these events are not really significant compared to the number and density of economic sanctions that have been and are still implemented on the international plane since the end of the Second World War.

The Security Council of the United Nations is a legitimate actor in this regard, since the UN Charter expressly recognizes its power to decide economic sanctions in case of a threat to peace or international security.2 But this tool was rarely used before 1990. Until this date, only Southern Rhodesia and South Africa could be sanctioned under article 41: of the UN Charter, due to the political difficulties encountered by the Security Council to make use of this tool. The South African case is a good illustration thereof: if it was in a position in 1977 to decide an arms embargo,3 in 1985 it could merely recommend—not decide—to enlarge the spectrum of the sanctions to enhance the pressure on the South African government.4 By contrast, since 1990, inflicting economic sanctions became an almost daily action of the UN organ in charge of the collective security. This activity became so common that the 1990s have been rightly depicted as the “Sanctions Decade.”5 The list is truly impressive: during the last 25 years, the Security Council has imposed—not only recommended—sanctions against Iraq (invasion of Kuwait),6 Yugoslavia (serious violations of humanitarian law),7 Somalia (internal conflict and humanitarian issues),8 Libya (international terrorism),9 Angola (the embargo targeted specifically UNITA opposed to the Angolan government),10 Haiti (coup),11 Rwanda (genocide),12 Sierra Leone (coup),13Afghanistan (Taliban’s regime),14 the DRC (internal conflict),15 Liberia (internal conflict),16 Sudan (internal conflict),17 Lebanon (political assassination),18 North Korea (nuclear proliferation),19 Eritrea (threatening international security and support for terrorism),20 and Iran (nuclear proliferation). 21

But this list is not complete as the practice of economic sanctions is certainly not under a monopoly of the UN Security Council. States or regional organizations have recourse to unilateral sanctions abundantly since the end of the Second World War, so much that Louis Dubouis could describe in 1967 the “countless embargo decisions that had occurred over the last twenty years.”22

The United States is rightly considered as the main user of this tool. A 2001 report written by a French Member of the Parliament observes that “[t]he United States has very often resorted to the weapon of sanctions over the past decade. Countries subject to U.S. sanctions are numerous: 75 out of 193 countries in the world are affected by unilateral sanctions, either federal or enacted by States. The reasons that led to the imposition of sanctions are very diverse, ranging from disputes over food imports to serious breach of human rights and drug trafficking.”23 Cuba under U.S. sanctions since 1962 is the most famous example, followed by Nicaragua, which was under US economic sanctions at the time of the Sandinistas, as reflected in the International Court of Justice’s decision in the Nicaragua case. No less famous is the much-disputed D’Amato-Kennedy Act (Iran and Libya Sanctions Act, 1996), whose purpose is to implement extraterritorially and outside any multilateral framework a U.S. sanctions regime against Libya and Iran. Other international actors have recourse to the same type of actions. The Arab countries have joined together to perform a boycott against Israel since the 1950s, and the European Union has also progressively increased its practice of sanctioning economically different persons and entities, so much that its records are now quite close to those of the U.S.A.24


9.2.2 A Classification


The density of the practice of international economic sanctions, decided or authorized by the Security Council, or outside the UN, is striking. But, and this is obviously not a surprise, all economic sanctions are not equal. Truly, their common feature is that they are all peaceful and supposed to have an “economic” character. This does not mean that they have an economic purpose—this can nevertheless be the case, for example, when a member of the WTO implements trade retaliation against another member who has not met its own trade obligations. Rather, it means that they are intended to weaken the economy of their target in order to obtain something from it.

It is possible to qualify and classify economic sanctions under three categories.

Under the first one, sanctions are distinguished on the basis of the economic field targeted, which can be either trade or financial relations. As to trade, the most classical measure is the embargo, which prohibits exports from national traders to the territory of the targeted State and forbids the selling of products/services to nationals or companies of this State. Another tool is the boycott, a ban on imports from the targeted country. The blockade is the more damaging trade measure. It can be compared, with respect to a State, to the siege of a city. This is the final step of a strategy the object of which is to economically asphyxiate a State. It normally requires the use of “physical” coercion, specifically military, and therefore cannot be regarded as an economic sanction. For their part, “financial” sanctions include decisions freezing the assets that a targeted government holds abroad, restricting its access to capital markets, prohibiting the grant of loans and credits, blocking international transfers and the sale of real estate or property transactions. Should also be mentioned the suspension or cancellation of a promised financial aid. There are also, increasingly, measures adopted to freeze funds of individuals or companies. Financial sanctions can also now include a prohibition to provide insurance products to the targeted individuals and entities. Furthermore, but this is uncommon, they may seek to render the currency of the target State inconvertible (this new type of “monetary” sanction has been adopted in 2012 against Iran).

Under the second category, a distinction is made between economic sanctions based on whether they affect rights or merely restrict opportunities, bearing in mind that this is primarily when they affect rights that economic sanctions generate legal problems. Sanctions taking shape in the suspension or cancellation of development assistance clearly belong to the category of lost opportunities for the State that finally does not benefit of it, unless the assistance was provided for under a binding treaty, which is not common. It may be different in the case of an embargo or a boycott since the rules of international trade, including the WTO, generally provide for freedom of trade. Similarly, financial sanctions may affect rights under bilateral investment treaties, especially when they have the effect of freezing the funds of investors.

Under the last category, economic sanctions can be distinguished according to the fact that they are “targeted”—in other words, “smart”—or not. This distinction will be developed at Sect. 9.3.2 below.

Enthusiasm for economic sanctions during the last decades is thus salient. But at the same time, their object and content have progressively been enlarged and reshaped, in particular as a direct consequence of the growing concern for fundamental rights.


9.3 The Protection of Fundamental Rights as Cause and Condition for Legitimate International Economic Sanctions


The influence of fundamental rights on the renewal of economic sanctions is twofold. On one hand, the practice reveals that domestic violations of fundamental rights frequently trigger the adoption of international economic sanctions (Sect. 9.3.1). On the other hand, modern economic sanctions must in principle be “smart,” which means that they must avoid adverse effects on innocents (Sect. 9.3.2).


9.3.1 Domestic Violations of Fundamental Rights as a Trigger for the Adoption of Economic Sanctions


Economic sanctions can be adopted for different purposes. It can be the response to a threat like terrorism, nuclear proliferation, armed attack, etc. Another of these purposes is to protest against domestic violations of human rights. In practice, there is a growing recourse to such policy, particularly by the USA and the EU and, to a lesser extent, by the UN Security Council.


9.3.1.1 UN Security Council’s Practice


Chapter VII of the UN Charter, under which the Security Council is recognized as having the power to adopt binding decisions, including economic sanctions, states that this power is limited to respond to specific situations, with no express reference to situations of violation of human rights or humanitarian law. According to art. 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security.” Certainly, the notion of “threat to peace” is anything but precise, and it is therefore possible to consider the systematic violation of human rights or humanitarian law by a government over its own population as such a threat. But even if the Security Council has a discretionary power to actually decide what is a threat to peace, it has generally adopted a cautious approach, at least until recently, as there exists a long-standing resistance against such an interpretation. In effect, it has been constantly argued by a number of UN Members that domestic questions should not be dealt with by the UN or any third State as they pertain to the reserved domain of sovereign States.

Thus the Security Council has frequently refrained from overtly stating that the domestic violation of human rights or humanitarian law is a threat to peace, safe in paroxysmal circumstances like apartheid and genocide. In three decisions adopted in the 1960s against South Africa, the Council considered that the racial conflict created by the apartheid policy of the government of South Africa was in itself a threat to peace.25 In 1992, in the context of the genocide in Bosnia, Resolution 808 (1992) determines that “widespread violations of international humanitarian law occurring within the territory of the former Yugoslavia, including reports of mass killings and the continuance of the practice of ‘ethnic cleansing’ … constitutes a threat to international peace and security.” The Council confirmed a similar approach in the context of the genocide in Rwanda in Resolution 955 (1994). By contrast, earlier Resolutions adopted during the crisis in Rwanda are more cautious. Resolution 918 (1994) states that the Council is “Deeply disturbed by the magnitude of the human suffering caused by the conflict and concerned that the continuation of the situation in Rwanda constitutes a threat to peace and security in the region.” On the same subject, Resolution 929 (1994) also finds that “the magnitude of the humanitarian crisis in Rwanda constitutes a threat to peace and security in the region.” These wordings are cautious as they suggest that it is not the humanitarian situation as such that is a threat but its magnitude and its consecutive destabilizing effects “in the region.” This approach is also to be seen in Resolution 688 (1991) concerning Iraq, sometimes mistakenly described as a case in which the domestic violation of human rights is qualified as a threat to peace26 while it is on the contrary a good example of self-restraint. A careful reading of this Resolution shows that the Council mentioned “the repression of the Iraqi civilian population in many parts of Iraq, including most recently in Kurdish populated areas, the consequences of which threaten international peace and security in the region.”27

It appears more generally that safe in paroxysmal situations, in case of human rights or humanitarian domestic disasters, the practice of the Council is to qualify explicitly or implicitly the consequence on the international plane of this domestic situation as a threat to peace. Thereby, in Resolution 733 (1992) concerning Somalia, the Council said it was “[g]ravely alarmed at the rapid deterioration of the situation in Somalia and the heavy loss of human life and widespread material damage resulting from the conflict in the country and aware of its consequences on the stability and peace in the region.”28 In the same vein, Resolution 1484 (2003) concerning the DRC determines “that the situation in the Ituri region and in Bunia in particular constitutes a threat to the peace process in the Democratic Republic of the Congo and to the peace and security in the Great Lakes region.”29

By contrast, Resolution 1556 (2005) concerning Sudan is another case in which the “ongoing humanitarian crisis and widespread human rights violations, including continued attacks on civilians that are placing the lives of hundreds of thousands at risk” is seen as a threat to international peace as such. The Council considers in this text that “the situation in Sudan constitutes a threat to international peace and security and to stability in the region.” This suggests that, on one hand, the situation, in itself, is a threat to international peace and security, while, on the other hand, its consequences threatens stability in the region. The difference between this formulation and the more cautious quoted above strengthens the doctrinal movement towards a progressive acknowledgment that at a certain paroxysmal point massive domestic violations of human rights or humanitarian law become a threat to international peace or security. Resolution 1973 (2011) adopted in the Libya case 6 years later confirms this evolution. Here, the UN Security Council expressly states that the violations of human rights by the Libyan government, despite its responsibility to protect its own population, is a threat to peace, and decides to impose sanctions, including economic sanctions (arms embargo and freezing of assets).

This last resolution could well be seen as reflecting the accomplishment of a slow but irrepressible doctrinal movement in the UN, favored by the invention in 2001 of the now famous concept of “responsibility to protect,” and its further adoption by the UN in 2005,30 the object of which has been precisely to open the door for a better international protection of people from mass violations of human rights.31 But it could also reflect the failure of the growing humanist approach of the Security Council. In effect, the manner in which Resolution 1973 has been implemented by some UN Members, notably France, but more generally by NATO Members, proclaiming that a “regime change”—and not only “protecting the civilians”—was their real goal, has been highly criticized, so much that an observer sentenced that the “responsibility to protect” concept was dead in Libya. 32 The failure of the UN Security Council to take any decision in the context of the Syrian crisis seems to confirm that the evolution presented above is very fragile and that qualifications by the UN of domestic violations of human rights as threats to peace will stay exceptional.


9.3.1.2 Others


Due to their economic prominence, the main international actors that are used to resort to economic sanctions besides the UN Security Council are the United States of America and the European Union.

The USA does not hesitate to adopt economic sanctions against persons considered responsible for or complicit in, or responsible for ordering, controlling, or otherwise directing, or to have participated in, the commission of human rights abuses. The current legal basis of such sanctions lies in the International Emergency Economic Powers Act (IEEPA), codified in the United States Code. Para. 1701, a), which states that the President is empowered to take economic sanctions “to deal with any unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States, if the President declares a national emergency with respect to such threat.” Precisely, violations of human rights abroad have been declared extraordinary threats in many cases. Among other examples, in the case of Syria, Executive Order 13572 of April 29, 2011, finds that “the Government of Syria’s human rights abuses, including those related to the repression of the people of Syria, manifested most recently by the use of violence and torture against, and arbitrary arrest and detentions of, peaceful protestors by police, security forces, and other entities that have engaged in human rights abuses, constitute an usual and extraordinary threat to the national security, foreign policy, and economy of the United States.” On this assumption, a number of persons are submitted to the blocking of their properties.33

The European Union follows the same trend. In its “Basic Principles on the Use of Restrictive Measures (Sanctions)” adopted in 2004, the Council of the European Union puts that “[i]f necessary, the Council will impose autonomous EU sanctions in support of efforts to fight terrorism and the proliferation of weapons of mass destruction and as a restrictive measure to uphold respect for human rights, democracy, the rule of law and good governance. We will do this in accordance with our common foreign and security policy, as set out in Article 11 TEU, and in full conformity with our obligations under international law.”34

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