Jus ad bellum economicum and jus in bello economico: The Limits of Economic Sanctions Under the Paradigm of International Humanitarian Law
© T.M.C. Asser Press and the author(s) 2015Ali Z. Marossi and Marisa R. Bassett (eds.)Economic Sanctions under International Law10.1007/978-94-6265-051-0_6
6. Jus ad bellum economicum and jus in bello economico: The Limits of Economic Sanctions Under the Paradigm of International Humanitarian Law
Office of the Prosecutor, International Criminal Tribunal for the Former Yugoslavia, P.O. Box 13888, 2501 EW The Hague, The Netherlands
This chapter argues that economic sanctions—including sanctions imposed outside of the armed conflict context—should be regulated by the principles underlying international humanitarian law (IHL). It considers the challenges associated with applying other sources of law, namely international human rights law and the law on countermeasures, to economic sanctions and the benefits of viewing sanctions through IHL. The chapter then describes what limits would regulate economic sanctions when borrowing IHL principles. In doing so, the chapter constructs two general categories of rules: jus ad bellum economicum—or the principles concerning when economic sanctions can be used—and jus in bello economico—or the principles concerning limits governing sanctions programs.
The views expressed in this article are those of the author alone and do not necessarily reflect the views of the ICTY or the United Nations in general.
In 1919, then US President Woodrow Wilson foreshadowed the motivations for using economic sanctions in the post-World War II era:
A nation that is boycotted is a nation that is in sight of surrender. Apply this economic, peaceful, silent, deadly remedy and there will be no need for force. It is a terrible remedy. It does not cost a life outside the nation boycotted, but brings a pressure upon the nation which, in my judgment, no modern nation could resist.1
Even though Wilson’s assessment of the effectiveness of economic sanctions remains an open question,2 the appeal of economic sanctions remains because, as foretold by Wilson, they are virtually cost-free for the States that impose them, and for those who believe that war is no longer an effective or viable option, sanctions are one of the remaining vestiges of coercion in international relations.3
In light of this attraction, there have been over 100 instances since World War II where economic sanctions have been imposed.4 During that time, sanctions were used more frequently and to achieve more diverse goals. They are no longer implemented in isolated incidents to address emergency situations or as precursors to military attacks. They are used in tandem with or in lieu of normal diplomatic channels,5 and with the potential to impact virtually every sector of the targeted State6 and exact great costs on the targeted State’s civilian population.7 A potential exacerbated by the economic inequalities that generally exist between the sanctioning and sanctioned State(s).8
There is now general consensus that some legal standard must apply to the use of economic sanctions. What those standards are is far less clear, and there is little consensus among the various commentators who have analyzed the issue. This chapter ventures into that debate by advancing the position that the resort to economic sanctions and the character of sanction programs should be governed by the principles of international humanitarian law (IHL). Section 6.2 lays out the policy and legal justifications for why IHL serves as the best framework through which to view the legal limits of sanction programs, even when economic sanctions are imposed outside of an armed conflict.9 Section 6.3 explains what those limits would look like when viewed through the IHL lens. Both parts also highlight some of the weaknesses and controversies relevant to these discussions.
6.2 IHL as the Proper Paradigm to Govern Economic Sanctions
The normative understanding of IHL is that it only governs State conduct during an armed conflict.10 All four of the Geneva Conventions11 plus the Additional Protocols12 recognize this contextual limitation. From this normative understanding, IHL would only serve as a legal framework for understanding the use and limits of economic sanctions when sanctions are used during an armed conflict.13 However, increasingly, sanctions have become imposed outside of the armed conflict context, including to promote human rights and democracy, prevent nuclear proliferation, and combat narcotics trafficking.14 In effect, economic sanctions are used as blunt instruments to further foreign policy goals without requiring the introduction of military agents.
The proceeding section identifies several salient reasons why IHL serves as the most appropriate paradigm through which economic sanctions should be governed, even when implemented outside the armed conflict context. Section 6.2.1 explains why other legal regimes, particularly human rights law and the law of countermeasures, are difficult to apply or insufficient for regulating sanction programs. Section 6.2.2 puts forward the positive case for viewing economic sanctions through IHL.
6.2.1 The Limits of Human Rights Law and the Law on Countermeasures
A number of commentators have argued that economic sanctions implemented outside of an armed conflict should be governed by human rights law15—as codified in the twin covenants on human rights16 and the UDHR—and/or the law on countermeasures.17 Practical and legal difficulties exist, however, in regulating economic sanctions through each of these paradigms.
With respect to human rights law, the first difficulty is that treaties governing human rights obligations are expressed in limited jurisdictional terms.18 Human rights courts and committees have held that State obligations under human rights treaties extend only to persons or territories within the State’s “power” or “effective control.”19 Those obligations do not extend—as is generally the case when sanctions are imposed—to individuals and territories located in an independent third State.
A potential exception is the ICESCR, which contains no jurisdictional clause but includes language requiring States Parties to realize the rights of “everyone.”20 In Article 2(1), the ICESCR also requires each State Party to “take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights” recognized in that Covenant.21 At the very least the jurisdiction of the ICESCR appears to extend as far as the ICCPR—namely to those within the power or “effective control” of the State.22 Whether it goes further is unclear, but the ICJ has suggested that it probably does not. In its Advisory Opinion on the Palestinian Wall, the ICJ commented that while the ICESCR does not contain a provision as to its scope, this might be due to “the fact that this Covenant guarantees rights which are essentially territorial.” 23 This is consistent with the operational philosophy of human rights law, which is concerned with the relationship between States and those in their territorial domain and not with international relations.24
The second difficulty with regulating economic sanctions through a human rights law paradigm is a more practical one. It is hard to envision any economic sanctions program that would not in some way, directly or indirectly, result in human rights abuses. For instance, the CESCR has recognized that economic sanctions “often cause significant disruption of food, pharmaceuticals and sanitation supplies, jeopardize the quality of food and the availability of clean drinking water, severely interfere with the functioning of basic health and education systems, and undermine the right to work.” 25 These direct effects clearly implicate several rights under the ICESCR, including rights to health, life, and an adequate standard of living, including food, clothing, housing and medical care. In addition, there are unintended consequences caused by economic sanctions, including:
reinforcement of the power of oppressive élites, the emergence, almost invariably, of a black market and the generation of huge windfall profits for the privileged élites which manage it, enhancement of the control of the governing élites over the population at large, and restriction of opportunities to seek asylum or to manifest political opposition.26
While this phenomenon is essentially political in nature, the CESCR recognized that these indirect effects have a “major additional impact on the enjoyment of economic, social and cultural rights.” 27
If virtually every economic sanctions program is likely to affect the enjoyment of human rights of those in the targeted State, then it stands to reason that every sanctions program would run afoul of human rights law. In this sense, human rights law may demand too much. States are unlikely to accept human rights law as the governing body for determining the use and limit of economic sanctions if they believe the legal threshold is impossible to meet. States may also forego consideration of international law altogether in formulating their economic sanctions policies if they believe that existing regimes do not provide sufficient flexibility. This may explain why already at the international level the debate as to when sanctions should be used and how they should be structured, be it unilaterally or multilaterally, tends to occur without any discussion of potential human rights consequences.28
The law of countermeasures also has inherent limitations and weaknesses. The ILC’s Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DASR) defines countermeasures as nonforcible measures that are coercive in character and taken in response to an internationally wrongful act.29 Their function is to induce a State to cease its wrongful act and, where applicable, provide reparations.30 As a general matter, countermeasures may only be taken against the State that has injured it by committing an internationally wrongful act.31 Whether a third State, which is not itself individually injured by the internationally wrongful act, may take countermeasures is unclear and was deliberately left open by the ILC.32 At most, the ILC appears to accept that where the wrongful act arises from the breach of an obligation owed to the international community as a whole, such as when a State violates certain universally accepted rights, then the noninjured third State may still resort to countermeasures.33
Even with this wider understanding for when countermeasures may be undertaken, the diameter of reasons for when economic sanctions have been imposed is still larger. It is often the case that economic sanctions are employed by States that have not been directly harmed by the targeted State’s internationally wrongful act even though no universally accepted rights are implicated. For instance, the United States and the EU have recently sanctioned Russia for actions violating Ukraine’s sovereignty and territorial integrity even though the consequences of those acts appear to cause little, if any, direct harm to the United States. Similarly, it is difficult to find a legal basis for implementing economic sanctions against Iran or other States as a countermeasure for assumed breaches of the NPT since breaches of those obligations do not appear to cause direct harm to the sanctioning States nor are obligations under the NPT amongst those which have gained erga omnes status.34 Extending the boundaries of the countermeasures paradigm to cover these breaches would contravene the law’s raison d’être, which was to provide States some form of self-help when they themselves are injured by an internationally wrongful act, not to justify responses to any violation of international law.
A secondary but important reason why application of the law on countermeasures is difficult to apply is the requirement imposed by the DASR that States resorting to countermeasures refrain from the threat or use of force and respect fundamental human rights and peremptory norms of general international law.35 For the same reasons expressed above, placed against the modern context of how economic sanctions are used, the law of countermeasures may demand too much by requiring strict compliance with human rights law. Economic sanctions are also often used together with the threat of force, as part of the sanctioning State’s attempts to induce the sanctioned State to cease its wrongful conduct through a policy of “carrots and sticks.” Altogether, like the human rights law paradigm, the law on countermeasures provides conceptual and practical difficulties when juxtaposed with the modern day realities concerning how and when economic sanctions are utilized.
6.2.2 The Positive Case for Applying IHL as the Appropriate Paradigm
Several positive reasons exist that support viewing economic sanctions through the prism of IHL. First, as a preliminary matter, the rules of IHL constitute, at minimum, the lowest threshold that economic sanctions must meet. This accords consistency with the principle of argumento a majore ad minus, which demands that what is considered the minimum standard applicable in armed conflict, also applies during peacetime.36
Second, economic sanctions, as tools generally employed when tensions arise between States, are best situated in the context of IHL. In the spectrum of international relations, extending between peaceful relations and armed conflict, both the purpose and effect of sanctions makes them appear similar to acts of conflict and thus closer to the latter end of that spectrum. Sanctions are by definition coercive tools applied when normal diplomatic relations either break down or are deemed futile. They are often accompanied by threats of additional sanctions or even the use of force. They are designed to compel the targeted State to comply with the demands of the international community or the sanctioning State(s). In employing such pressure, sanctions place a significant toll on those inside the targeted State. In light of these characteristics, it is axiomatic that economic sanctions are employed when there exists a crisis or conflict serious enough to warrant such intervention.
IHL is the ultimate reference in situations of crisis and conflict. IHL was specifically designed to ensure that coercive State actions are humane by seeking to reconcile “the necessities of war with the laws of humanity.”37 IHL is also not static. It is designed to anticipate and account for changes in how we envision the use of force and armed conflict.38 The reason why IHL has normally been limited to armed conflicts, and in particular military attacks, is due to the incorrect assumption that only military instruments have a destructive effect.39 As our understanding of conflicts evolve and as new tools are employed to exact harm on targeted States, it is natural to alter our understanding of when the precepts of IHL apply.
Third, that economic sanctions should abide by IHL also appears to comport with the thinking of UNSC members. As noted by O’Connell “[r]ather than finding sanctions a violation of human rights per se, Security Council members have characterized sanctions as law enforcement tools to which a standard of humanitarianism applies.”40 In 1995, the five permanent members of the UNSC (P5) issued a policy statement stating that “future sanctions regime[s] should be directed to minimize unintended adverse side-effects of sanctions on the most vulnerable segments of targeted countries” and “the short- and long-term humanitarian consequences of sanctions” should be factored into designing such programs.41 In his 1999 report on the work of the UN, Secretary-General Kofi Annan similarly noted that:
It is increasingly accepted that the design and implementation of sanctions mandated by the Security Council need to be improved, and their humanitarian costs to civilian populations reduced as far as possible. This can be achieved by more selective targeting of sanctions, as proponents of so-called “smart sanctions” have urged, or by incorporating appropriate and carefully thought through humanitarian exceptions directly in Security Council resolutions.42
The language used by the P5 and the Secretary-General is important. The terms, phrases, and concepts used in both statements invoke principles common to IHL. Both messages implicitly accept that economic sanctions programs will harm civilians in the targeted State. Neither tries to eradicate those effects, but rather to ensure that whatever cost is borne is reduced as much as possible, presumably in light of the ultimate aims of the sanctions regime. The messages seek to strike precisely the same balance between the realities of conflict and the need for humanitarianism that forms the core of IHL.
Finally, unlike the law on countermeasures, which is a burgeoning area of international law, the principles of IHL are generally familiar to States. As a result, IHL has the immense advantage that it has been accepted as law that can be respected, even in war.43 As a practical matter, given its familiarity, States are more likely to accept being bound by IHL than by other, less-flexible legal paradigms, which may be viewed with greater suspicion or contention.
6.3 The Legal Limits of Economic Sanctions under IHL
The following section discusses what economic sanctions would look like under IHL. For this, the author borrows two conceptual frameworks, identified by Reisman, to put the relevant principles in their proper context: jus ad bellum economicum, or the right to resort to economic measures in some circumstances, and jus in bello economico, or the rules which govern the scope of economic sanctions.44
6.3.1 Jus ad bellum economicum: When a State Can Resort to Economic Sanctions
Under IHL, a State’s resort to force is governed by the rules prescribed in jus ad bellum, the current understanding of which is codified in the UN Charter.45 Article 2(4) creates a general prohibition on the threat of or use of force by States. Articles 39, 42, and 51 create two exceptions: allowing the UNSC to authorize the use of force to restore international peace and security in the face of a “threat to the peace, breach of the peace or act of aggression” and allowing actions in self-defense of an armed attack.46 There is also wide consensus that under customary international law a State can consent to another’s use of force on its territory.47
The difficulty with extending the jus ad bellum prohibition of force to economic sanctions is that doing so would seemingly conflict with the intentions of the UN Charter’s drafters. The drafting history of the UN Charter48 and subsequent UNGA resolutions49 indicate that the concept of “force” as used in Article 2(4) was not intended to include economic coercion. At the 1945 drafting conference, States considered and rejected a proposal to include economic coercion as a use of force.50 A proposal to include economic coercion in the definition of force was also rejected in proceedings leading to the UNGA’s 1970 Declaration on Friendly Relations.51 In addition, some argue that customary international law does not preclude States or the UN from instituting economic sanctions.52 The permissibility of economic sanctions is argued to be derivative to the right every nation enjoys to determine the scope of its trade relations with another State, absent bilateral or multilateral treaties circumventing that right.53
While each of these arguments is persuasive, there are several arguments justifying an expansion of our understanding of “force,” such that in certain circumstances economic sanctions would be understood as an “act of force” for purposes of Article 2(4).
While the view of the UN in 1945 and 1970 most certainly was that economic sanctions did not fall under the ambit of Article 2, that understanding must be viewed in its historical context. In the 45 years before 1990, the UNSC imposed sanctions under Chapter VII only twice: against Southern Rhodesia in 1966 and South Africa in 1977. In both instances, sanctions had a discrete and limited impact. Sanctions against Southern Rhodesia, while comprehensive in law, were largely ineffective as throughout the life of the sanctions program Western companies continued to engage in commerce with Southern Rhodesia, and many African States turned a blind eye to trade links between their nationals and the country.54 Sanctions against South Africa were equally limited; aimed exclusively at the import and export of military equipment.55 In both instances, sanctions also had a limited effect on the civilian population given that they were instituted to remove minority white rule.
Non-UN sanctions prior to the 1990s followed a similar pattern. During World War II, immediately prior to the UN’s establishment, sanctions were implemented primarily to disrupt military action or complement a broader war effort.56 Non-UN sanctions following World War II and before the 1990s were equally deployed on limited occasions for discrete purposes such as forcing the targeted State to withdraw its troops from border skirmishes, to abandon efforts at territorial acquisition, or to desist from military adventurism.57 The use of comprehensive sanctions did not become prevalent until the early-1990s when comprehensive trade sanctions were imposed on Iraq, the former Yugoslavia, and Haiti. The indiscriminate impact of sanction programs on the civilian population of those countries, particularly individuals in the most vulnerable strata of society, has caused the international community to reassess such programs.58 Today, it is accepted that economic sanctions have the potential to inflict humanitarian, social, and economic harm on civilians within the targeted country.59
In most instances, the use of sanctions is likely to fall short of causing the type of consequences necessary to classify as an act of force. In other instances, however, the widespread harm caused by some sanction regimes justifies classification as an act of violence. Indeed, in some instances sanctions have an even greater impact on the targeted State’s civilian population than military force would have.60 Today’s greater understanding of how sanctions can severely impact civilian populations requires us to modify our understanding of force and accept that in certain instances economic sanctions are analogous to conventional military attacks in light of damage to the targeted community.61
There is also room both in the UN Charter and IHL to expand our understanding of “force.” The UN Charter contains no definition of or criteria by which to determine when an act amounts to a use of force. The ICJ has recognized that the UN Charter’s prohibition on the use of force and the right to self-defense should be understood broadly and apply to “any use of force, regardless of the weapons employed.”62 Under IHL, both the Hague Conventions of 1899 and 1907 and the Geneva Conventions employ language demonstrating that IHL is not a static concept, and that we should endeavor to apply IHL to circumstances or means of aggression that develop over time. For instance, the Martens Clause of the Preamble to the Hague Conventions on the Laws and Customs of War on Land states:
Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience.63
While the clause was originally intended to provide residual humanitarian rules for the protection of the population of occupied territories, a much broader understanding has since developed, ensuring that matters not explicitly provided for under IHL are not left to arbitrary judgment.64 A modernized version of the clause is also present in Article 1(2) of Additional Protocol I to the Geneva Conventions, which provides that “[i]n cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience.” ICRC Commentary to this clause states that principles of Additional Protocol I are intended to apply “regardless of subsequent developments of types of situations or technology.”65
Academics of cyber warfare have faced similar analytical difficulties: noting on one hand the current narrow understanding of force reflected in Article 2(4) and, on the other hand, the widespread potential harm that can result from cyber operations, a superficially nonviolent, nonforceful act. In reconciling this dichotomy, and in keeping with the spirit of Article 2, an International Group of Experts (IGE)66 identified a more holistic way of determining when an act constitutes an “act of force” by identifying a variety of factors used by States in making that determination. Those factors include: (1) the severity of the harm caused by the act subject to a de minimis rule that consequences involving physical harm to individuals or property in and of themselves qualify the act as a use of force; (2) the immediacy in which those consequences manifest; (3) the directness between the act and its consequences; (4) the invasiveness of the act, which is determined by the degree in which the act intrudes into the target State; (5) the measurability of the effects as determined by how apparent the consequences of the act are; (6) the military character of the act; (7) the extent of the State involvement in the act; and (8) the presumptive legality of the act, namely whether there is an express treaty or accepted custom prohibiting the act.67 These factors are nonexhaustive: depending on circumstances, other criteria may also be looked to, such as whether the act portends the future use of military force or the nature of the target.68
The IGE’s observations are instructive for determining when economic sanctions may be classified as an act of force and thus fall under the presumptive prohibition of Article 2(4). Certainly, sanctions programs that specifically target a State’s civilian population have the effect of denying the population access to food, water, or humanitarian services; are orchestrated by the military apparatus of the sanctioning State; and are precursors to military action should be classified as an act of force and justified only where one of the exceptions to Article 2(4) applies. On the other hand, economic sanctions that are discrete; target only the military infrastructure; and do not have immediate effects on the civilian population, may not rise to the threshold to constitute an act of force. Like in the cyber operations context, these determinations should be made on a case-by-case basis. At minimum, understanding economic sanctions in this context ensures that there are limitations on how sanctions can be used to ensure that there are regulations on any international act that results in injury or death to civilian persons or objects.
The fact that in certain circumstances economic sanctions may not meet the threshold needed to constitute a use of force does not automatically render them lawful. As described in more detail in other chapters in this book, the use of economic sanctions may still constitute a violation of the principle of nonintervention,69 and the law on countermeasures provides adequate safeguards in these circumstances to ensure that sanctions operate under a legal framework.70 In those instances, even where the sanctioning State has resorted to the use of economic sanctions to induce the responsible State to resume compliance with its international legal obligations, economic sanctions must still meet the requirements of necessity and proportionality.71 The discussions on those principles under IHL elaborated in proceeding paragraphs remain valuable for that analysis.
Accepting that economic sanctions can constitute an act of force, jus ad bellum economicum relates to when a State may legally resort to the use of economic sanctions. Using the IHL paradigm the use of economic sanctions rising to an act of force is generally unlawful, unless one of the following IHL exceptions apply: self-defense, UNSC action, or consent by the targeted State. Each of these will be discussed in turn.
188.8.131.52 Economic Sanctions Taken in Self-defense
At the heart of jus ad bellum is the right of every State to act in self-defense. That right is set forth in Article 51 of the UN Charter which states that “[n]othing in the present Charter shall impair the inherent right of individual or collective self-defences if an armed attack occurs.”
From the offset, it is important to note that the level of force required to meet the threshold to prompt Article 2(4)’s prohibition is lower than the level of force required under Article 51. Article 51 permits the use of force in self-defense only in response to “an armed attack.” Certain acts may qualify as a use of force but might not reach the threshold to constitute an “armed attack.”72 Accordingly, States facing an act of force that does not amount to an armed attack may not resort to using economic sanctions that cross the “use of force” threshold.
The natural question is whether there are circumstances where economic sanctions can also be classified as an “armed attack.” In the Paramilitary Activities Case, the ICJ determined that whether an act constitutes an armed attack depends on its “scale and effects.”73 Low intensity fighting, such as the sending of armed bands into the territory of another State, may count as an armed attack. At the same time, the ICJ identified a category of acts which do not constitute armed attack, namely “assistance to rebels in the form of the provision of weapons or logistical or other support.”74 In none of its opinions has the ICJ restricted the definition of an armed attack to the actual use of weapons.
The majority of IGE members have similarly taken the position that weapons need not be used for an act to be considered an armed attack. Instead, the “critical factor [is] whether the effects of a cyber operation, as distinct from the means used to achieve those effects, [are] analogous to those that would result from an action otherwise qualifying as a kinetic armed attack.”75 The most obvious case is where the relevant act results in the injury or death of persons or damages or destroys property.76 In those cases the damage would seem to meet the ICJ’s “scale and effects” test. By analogy, the same analysis seems equally apt for determining when economic sanctions cross the threshold for constituting an armed attack, thereby justifying an act of force in self-defense.
Actions taken in self-defense must meet the criteria of necessity and proportionality.77 To meet the criterion of necessity, those acts “must not merely be such as tend to protect the essential security interests of the party taking them, but must be ‘necessary’ for that purpose.”78 Whether an act taken in self-defense is necessary is “not purely a question for the subjective judgement of the party,” but rather depends on the entire situation between the relevant parties.79 The key to the necessity analysis is, therefore, the existence or lack of alternative courses of action. This does not mean that sanctions must be the only remaining response absent an armed attack. The principle of necessity allows forceful actions in conjunction with nonforceful measures such as diplomacy when diplomacy by itself is inadequate to resolve the situation. If, however, one requires economic sanctions to be “necessary,” then the concomitant use of diplomacy and economic sanctions may in many circumstances be deemed unlawful if diplomacy itself would have likely resolved the situation.
Even if the act taken in self-defense is necessary, the intensity and magnitude of the response must be proportionate to repelling or preventing the unlawful act.80 In this sense, proportionality has two components. First, it requires that the response be proportionate to the act that provoked it, and second, that the harm resulting from the response not be disproportionate to the intended benefits sought.81 When applied to economic sanctions, the test requires that economic sanctions taken in self-defense be narrowly tailored to prevent unintended, collateral consequences.
184.108.40.206 Economic Sanctions Undertaken by the UNSC
The UNSC’s power to implement economic sanctions is relatively straightforward. Under Articles 39 and 41 of the UN Charter, the UNSC can institute economic sanctions after determining the existence of a threat to the peace, breach of the peace, or act of aggression, if sanctions would maintain or restore international peace and security.
The basis by which the UNSC can opt to implement sanctions is much broader than the right to self-defense. There is no requirement that the sanctioned State threatens or resorts to an armed attack for it to become the subject of economic sanctions under Chapter VII. UNSC practice also reflects a generally broad understanding of what constitutes a threat or breach of peace for which economic sanctions are justified. For instance, with respect to Sierra Leone, the UNSC adopted economic sanctions to end the military coup and restore a democratically elected government and constitutional order.82 Similarly, with respect to Rwanda, the UNSC instituted economic sanctions to encourage an immediate end to hostilities and violence and ensure a restoration of peace.83 Economic sanctions were also passed against Iran in response to proliferation risks presented by Iran’s nuclear program and its failure to fully cooperate with the IAEA.84
The UN Charter is, however, silent as to which legal standards are applicable to actions taken under Chapter VII, and the UNSC’s use of economic sanctions reflects an almost unfettered understanding of those limits. In their 2008 study, in which they evaluated all UN sanctions until that period, Reisman and Stevick concluded that:
a striking feature of the economic sanctions programmes and arms embargoes implemented by the U.N. under Chapter VII of the Charter is the Security Council’s almost complete failure to consider international law standards, particularly the criteria of proportionality and discrimination.85
That being said, there is significant persuasive authority suggesting that the UNSC must observe IHL when undertaking actions under Chapter VII even though there is no provision within the UN Charter explicitly requiring such observance. As discussed in detail above, the P5 has expressed sentiments accepting that IHL principles ought to be respected when implementing economic sanctions. In the context of peacekeeping missions taken under Chapter VII, the Secretary-General has been even more explicit, accepting that the UN is restrained by general principles of IHL.86 The ICJ has also issued several opinions suggesting that IHL limits actions taken under Chapter VII. In the Reparations Case, the ICJ emphasized that the UN has both rights and responsibilities that go beyond the specific provisions of the UN Charter.87 In another case, the ICJ ruled that international organizations are “international person[s]” which can be subject to international law.88 Several ICJ judges have also opined on this issue in separate or dissenting opinions. In the Lockerbie Case, Judge Weeramantry pointed to Article 24(2) of the UN Charter which requires that in discharging its duties the UNSC “shall act in accordance with the Purposes and Principles of the United Nations.”89 Article 1(1) sets out as one of those purposes the need “to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.”90 Judge Weeramantry also evaluated the travaux préparatoires of the UN Charter, from which he concluded that “[t]he history of the United Nations Charter corroborates the view that a clear limitation on the plenitude of the Security Council’s powers is that those powers must be exercised in accordance with well-established principles of international law.”91 Similarly, in the Genocide Convention Case, Judge Lauterpacht concluded that Article 24(2) limited UNSC actions.92 When evaluating whether the UNSC would be required to respect preemptive norms of international law, he noted “one only has to state the opposite proposition thus—that a Security Council resolution may even require participation in genocide—for its unacceptability to be apparent.”93
It is now generally accepted that the UNSC is bound to observe the principles of IHL when designing sanctions programs.94 This suggests that economic sanctions instituted under Chapter VII will also need to abide by the principles of jus in bello economico discussed below.
220.127.116.11 Sanctions Consented by the Targeted State
Under customary international law, a State may consent to the imposition of an otherwise wrongful act upon its territory, including, for instance, an act which rises to the level of the use of force. The DASR codifies this rule, noting in Article 20 that “[v]alid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State to the extent that the act remains within the limits of that consent.”95