International Legal Limits on the Ability of States to Lawfully Impose International Economic/Financial Sanctions
© T.M.C. Asser Press and the author(s) 2015
Ali Z. Marossi and Marisa R. Bassett (eds.)Economic Sanctions under International Law10.1007/978-94-6265-051-0_55. International Legal Limits on the Ability of States to Lawfully Impose International Economic/Financial Sanctions
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University of Alabama School of Law, P.O. Box 870382, Tuscaloosa, AL 35487, USA
5.1 Introduction
5.2 Effectiveness
5.3 Legality
5.3.1 Economic Warfare
5.3.2 Countermeasures
5.3.3 Human Rights
5.4 Conclusion
Abstract
This chapter addresses the subject of the legal limitations which international law places on the imposition of international economic/financial sanctions, with particular reference to sanctions with counter-proliferation aims. It argues that there are at least three sources of international legal obligations which impose limits on the application of coercive international economic/financial sanctions: (1) the general international principle of noncoercion; (2) the law of countermeasures; and (3) human rights law. The totality of these obligations limiting the lawfulness of both unilateral and multilateral coercive sanctions purposed in counter-proliferation leaves a vanishingly small window for the lawful application of such sanctions.
5.1 Introduction
This chapter addresses the subject of the legal limitations which international law places on the imposition of international economic/financial sanctions, with particular reference to sanctions with counter-proliferation aims—i.e., purposed in stopping the actual or suspected proliferation of WMD, including particularly the original development of WMDs within the target State. However, the analysis in this chapter should be equally applicable to most other cases of the application of coercive economic/financial sanctions.
In terms of definitions, economic/financial sanctions may be organized and applied under a multilateral framework by States acting in a cooperative manner, under the authority of the UNSC. Alternatively, or sometimes in parallel, sanctions can be applied by States on a unilateral basis outside of a UNSC mandate. Under this paradigm, States may still coordinate sanctions among themselves as against a common target. Nevertheless, for purposes of legal categorization, this chapter will refer to all sanctions undertaken outside of a UNSC mandate as unilateral sanctions.
This chapter will argue that there are at least three sources of international legal obligations which impose limits on the application of coercive international economic/financial sanctions: (1) the general international principle of noncoercion; (2) the law of countermeasures; and (3) human rights law. It will conclude that the totality of these obligations of international law limiting the lawfulness of both unilaterally and multilaterally applied coercive sanctions purposed in counter-proliferation, leaves a vanishingly small window for the lawful application of such sanctions.
5.2 Effectiveness
First a word regarding the effectiveness of economic/financial sanctions in accomplishing their stated policy ends. This is not to be confused with the effectiveness of sanctions in causing harm to the target State’s overall economy, or suffering to the citizens of the target State, both of which are frequently caused by sanctions. However, the leading academic study of the use of economic sanctions as a tool of foreign policy found that economic sanctions have historically achieved success in changing target State behavior in the manner desired by the sanctioning States in only 34% of cases.1 It further notes that, in cases where high-level political interests, such as national security (e.g., WMD proliferation) are involved, the likelihood of sanctions significantly affecting target State behavior in the desired direction is even further diminished. These findings are applicable to both multilateral and unilateral sanctions.
A further observed corollary problem in the area of counter-proliferation-oriented sanctions specifically is that, once adopted, such sanctions typically become entrenched in either or both national and international law and are nearly impossible to rescind without the sanctioning authority losing perceived credibility. Thus, in the cases of UNSC-authorized sanctions against Iran and North Korea, for example, where longstanding counter-proliferation sanctions have not had the desired policy effect—even though their collateral effects upon the economy and the civilian populace, particularly in the case of Iran, have been severe—the sanctions program adopted by the UNSC now stands as a hindrance per se to a final resolution of the standoff between these countries and their Western detractors.2
In the case of Iran, the UNSC has ordered Iran to cease uranium enrichment—a fundamental element of a peaceful nuclear fuel cycle program. The economic sanctions that the UNSC has placed upon Iran are tied directly to Iran’s compliance with this command, among others.3 We now know (and indeed, the UNSC should have known from the beginning) that any final resolution of the international diplomatic crisis regarding Iran’s nuclear program will necessarily involve Iran keeping its uranium enrichment program.
However—and here is the impediment—how can the UNSC ever rescind the sanctions it has applied, in the absence of Iranian compliance with its command regarding enrichment? Such an action would be viewed by some States on the UNSC as an unacceptable loss of perceived credibility for the UNSC, notwithstanding the miscalculated, and now failed, nature of the its chosen program of action. However, from Iran’s perspective, without the lifting of these sanctions, there can be no final resolution to the crisis. Thus, observation of counter-proliferation-oriented sanctions cases indicates that not only are sanctions typically unsuccessful in this context, but worse, they have the potential to become impediments per se to achieving desired policy aims.4
5.3 Legality
The question of the legality of international economic/financial sanctions is a complex one and one that this edited volume is admirably attempting to address. Economic/financial sanctions have effectively become the favored default tool of foreign policy, particularly for powerful States, acting alone or cooperatively, to express their displeasure with the policies of less powerful States in a range of issue areas, and to bring pressure to bear on those target States to change their behavior.
The UNSC itself seems to have come to regard economic sanctions as the most attractive (i.e., least costly to them) tool in its toolbox of options for dealing with States and nonstate actors that it determines constitute a threat to international peace and security. This notwithstanding the above referenced empirical research which demonstrates the ineffectiveness of sanctions. This observation has led many to conclude that economic/financial sanctions, in fact, have more to do with cathartically satisfying the sanctioners and their domestic constituencies that they are ‘doing something,’ than with meaningfully addressing the sanctionee’s displeasing behavior.
Consistent with the Lotus Principle of international law, as a general proposition and in the absence of positive legal obligations to the contrary, it is certainly correct that a State has the legal discretion to choose with which other States it pleases to have, and to allow the legal and natural persons subject to its jurisdiction to have, economic/financial dealings.5 Pursuant to this observation, there is undoubtedly a range of sanctions that are applied by States against other States and nonstate actors, that are not prohibited by any positive rule or obligation of international law, and are therefore lawful to maintain, such as in the case of a simple retorsion.6
However, it is also true there are a number of sources of positive international legal obligation, located within a variety of substantive areas of international law, which may be applicable to the imposition of certain international economic/financial sanctions and which may significantly circumscribe States’ and international organizations’ lawful discretion to impose them. The balance of this chapter briefly reviews and considers a number of these sources of international legal obligation, focusing on obligations applicable to the implementation of economic/financial sanctions outside of the context of an active armed conflict.
5.3.1 Economic Warfare
Although coercive international economic/financial sanctions applied unilaterally by States are generally held not to comprise a per se breach of Article 2(4) of the UN Charter, which prohibits the threat or use of international force, nor on their own to constitute the commencement of an armed conflict, nevertheless in a meaningful sense coercive sanctions adopted during peacetime, either unilaterally or multilaterally through the UNSC, are a means of economic warfare.7 And indeed, some of the most chief proponents of the use of coercive sanctions refer to them as such.8 Though ‘economic warfare’ is not a legal term of art, it does usefully capture both the intent of those applying such sanctions, as well as the effects of those sanctions upon the target State(s). As Vaughan Lowe and Antonios Tzanakopoulos have written:
Economic warfare is not only a means of imposing pressure which supports military action. Certain measures taken in peacetime resemble traditional means of economic warfare to such an extent that it may be fair to say that economic warfare, in the form of economic coercion, is also an alternative to—and not simply a complement of—armed conflict.9
President Hassan Rouhani of Iran has recently commented on the violent nature of the sanctions imposed by the UNSC, and by States acting unilaterally, against Iran for espoused counter-proliferation purposes:
Unjust sanctions, as manifestation of structural violence, are intrinsically inhumane and against peace. And contrary to the claims of those who pursue and impose them, it is not the states and the political elite that are targeted, but rather, it is the common people who are victimized by these sanctions. Let us not forget millions of Iraqis who, as a result of sanctions covered in international legal jargon, suffered and lost their lives, and many more who continue to suffer all through their lives. These sanctions are violent, pure and simple; whether called smart or otherwise, unilateral or multilateral. These sanctions violate inalienable human rights, inter alia, the right to peace, right to development, right to access to health and education, and above all, the right to life. Sanctions, beyond any and all rhetoric, cause belligerence, warmongering and human suffering.10
Particularly as the authorization and use of economic/financial sanctions, especially by powerful States against weaker States, has become so commonplace during the post-Cold War period, it is important to recognize that international economic/financial sanctions that are purposed in coercing a target State to change its behavior are measures of economic warfare, potentially no less destructive in their effects upon the target State, and particularly upon its civilian population, than military force.
In recognition of this fact, a number of scholars have proposed that the law of armed conflict, or at least principles derived from that body of law, should apply to the imposition of coercive economic/financial sanctions, both by States acting unilaterally as well as under the authorization of the UNSC, even during peacetime. In a comprehensive presentation of this line of analysis, in an article published in the European Journal of International Law