Unilateral Sanctions in International Law: A Quest for Legality
© 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_44. Unilateral Sanctions in International Law: A Quest for Legality
(1)
Asian-African Legal Consultative Organization, 29C Rizal Marg, New Delhi, 110021, India
Abstract
This chapter contends that unilateral sanctions are impermissible under international law as the UN Charter addresses only collective economic measures. Unilateral sanctions are usually imposed by an individual State that resorts to unilateral sanctions as a primary tool of foreign policy with an objective of modifying the targeted country’s behavior. These sanctions are imposed by a State through application of its national legislation, which are prima facie extraterritorial in nature and against the established principles of jurisdiction under international law. The doctrine concerning extraterritorial application of national legislation, though not well settled, endorses the basic principle of international law that all national legislations are territorial in character. Hence, the unilateral sanctions and extraterritorial application of national legislation violate the legal equality of States, and principles of respect for and dignity of national sovereignty and nonintervention in the internal affairs of the State. Application of unilateral sanctions violates basic principles of the UN Charter and certain other important legal instruments. It imposes suffering and deprivation on innocent citizens of other countries, including mass human rights violations, and deprives them of their right to development and self-determination. The Asian–African Legal Consultative Organization affirms that unilateral sanctions imposed against third parties violate the principles enshrined in the UN Charter and other principles recognized through soft law such as the right to development and the Friendly Relations Declaration.
4.1 Introduction
Economic sanctions have been increasingly imposed in the past three decades as tools toward achieving foreign policy objectives. Over the past century major powers have resorted to using economic coercion over the use or threat of use of force against other States. Economic sanctions are at the center of controversy due to their increased imposition and the resulting significant economic and social costs incurred by targeted States, companies, multinational corporations, and third-party States.
Sanctions are generally defined as “negative measures which seek to influence conduct by threatening and, if necessary, imposing penalties for non-conformity with law.”1 From an international law perspective, sanctions are collective if enforced by the UN or through multilateral action. Unilateral sanctions are impermissible under international law. Developing countries have constantly opposed the imposition of economic sanctions by arguing that they involve a hierarchy of economic prohibitions—including constraints, pressures, boycotts, trade embargoes, limitations, and other disadvantages—which are chosen and imposed by the sanctioning State in order to exert pressure on the targeted State.
Since its inception in 1956, the Asian–African Legal Consultative Organization (AALCO), a forum for Asian-African solidarity and cooperation in matters of common legal concern, has raised a unified objection against unilateral sanctions before the UNGA, the ILC, the UNGA Sixth Committee, and other international institutions. AALCO has also produced a work program entitled “Extraterritorial Application of National Legislation: Sanctions Imposed against Third Parties.” The Member States of AALCO affirm that unilateral sanctions imposed against third parties violate the principles enshrined in the UN Charter and other recognized principles of law, including the right to development2 and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States.3 AALCO also maintains that extraterritorial application of national legislation on third parties is per se illegal because:
The limits of the exception to the principle of extraterritorial jurisdiction are not well established;
The practice of States indicates that many States oppose the extraterritorial application of national legislation;
Extraterritorial measures violate a number of principles of international law; and
Extraterritorial measures affect trade and economic cooperation between developed and developing countries and interrupt cooperation among developing countries.
To substantiate this perspective, this chapter provides an insight into the legality of the imposition of unilateral sanctions through various international law principles established through treaty and customary international law. Section 4.2 deals with sanctions under international law and attempts to trace the legality of the nature of sanctions. Section 4.3 defines the concept unilateral sanctions. Section 4.4 traces the means through which such sanctions are imposed, with emphasis on the extraterritorial jurisdiction inherent in the concept of unilateral sanctions. Section 4.5 provides an appraisal of the violations of principles of international law and of the human rights of the citizens of the target country to contend the impermissibility of unilateral sanctions under the international legal framework.
4.2 Sanctions under International Law
International law recognizes only “collective or multilateral sanctions,”4 applied as per Chapter VII of the UN Charter. Previously, under the League of Nations system, the prerequisites for the use of economic and military sanctions were that a member of the League of Nations had gone to war in violation of Articles 12, 13, or 15 of the Covenant of the League. Unlike the UN Charter, the League of Nations Covenant did not provide for the League’s organs to make binding decisions in this area. It was up to each member to decide whether or not to apply sanctions.5
Under the UN Charter, the UNSC is vested with the “primary responsibility” for maintaining international peace and security.6 Toward that objective, the UNSC is enabled to take measures to impose economic sanctions apprehending the threat or use of force or aggression against its Member States. Multilateral sanctions were intended to be used as part of a more sophisticated system of collective security, particularly under the aegis of the UNSC.7 Under international law, the UN Charter addresses only collective economic measures—or ‘multilateral sanctions’—through Article 41, which provides for, inter alia, “complete or partial interruption of economic relations” to give effect to a UNSC decision maintaining or restoring international peace and security.8
These measures are important as they are coercive in nature, besides being binding on all Member States.9 Interestingly, the UN Charter grants the UNSC a monopoly over definitions in this field, and the UNSC decides on its own whether a threat to peace, a breach of peace, or an act of aggression exists. However, the international community has been very critical of this approach wherein the slogan of imposing multilateral sanctions are advanced in the name of maintaining international peace and security, which according to some, amounts to a collective punishment against the civilian population.10 Within this context, collective or multilateral sanctions receive legal recognition as specific countermeasures to violations of international law and, in the event of such a violation, contractual obligations to the “law-breaking” State which otherwise apply are invalidated.11
Moreover, even in the case where collective sanctions are imposed, it remains inadmissible for an organ of the UN, such as the UNSC, by virtue of its decision under Chapter VII, to violate the fundamental human rights of an entire population in the name of international peace and security. Collective sanctions constitute human rights violations where the civilian population of the targeted State is deliberately and indiscriminately attacked in order to change the political behavior of the government of the targeted State.12 In that regard, multilateral sanctions, though permissible under international law, significantly impact the civilian population, amounting to collective punishment of innocent civilians. The adverse effects of such multilateral sanctions on civilians are unjustifiable and must be condemned.
4.3 Permissibility of Unilateral Sanctions: A Quest
Unilateral sanctions often refer to economic measures taken by one State to compel a change in the policy of another State.13 Unilateral sanctions are usually imposed by an individual State on the pretext of retaliation,14 reprisal,15 or retorsion.16 In rare cases, sanctions may be implemented by international organizations or by a group of States through intergovernmental cooperation. These two latter types may be called ‘organized unilateral sanctions.’
Unilateral sanctions are typically employed by powerful nations like the United States, which more than any other State has resorted to unilateral sanctions as a primary tool for advancing its foreign policy.17 The most widely used forms of economic pressure are trade sanctions in the form of embargoes and/or boycotts, and the interruption of financial and investment flows between sender and target countries.
Within this context, unilateral sanctions, besides being infirm in law, are also a bad instrument of foreign policy. The imposition of unilateral sanctions and secondary boycotts that affect nationals of third States are seen as a step retarding the economic progress of the targeted State.18 They pose serious challenges to the efforts of the international community to establish an equitable multilateral, nondiscriminatory, rule-based trading system and challenge the very basis of the primacy of international law.19 It has been argued that unilateral sanctions lack consensus and promote self-interest, which is contrary to the idea of multilateral sanctions.20 Unilateral sanctions affect trade relations of the targeted State as well as its trading partners, affect the economic and banking system, and inflict suffering on innocent citizens of targeted States.21 The UN Commission on Human Rights has stated that:
Economic sanctions—and in particular comprehensive economic sanctions—are a form of collective punishment that is in total contradiction to the basic principles of justice and human rights. The right to life, the right to adequate nourishment and health care are inalienable rights that form part of the jus cogens of general international law. Those rights are the basis of international legality and of the legitimacy of the United Nations Charter as well.22
Within the UN, numerous Member States have expressed their growing concern that unilateral coercive measures of an economic character would constitute unlawful interference in the internal affairs of a State. Hence, since the 1960s, the principle of nonintervention has repeatedly figured in UNGA resolutions, culminating in the 1965 Declaration,23 the 1970 Friendly Relations Declaration,24 and the 1981 Declaration,25 each of which places particular emphasis on economic measures. Though the UNGA resolutions as such do not create binding legal obligations, they may reflect existing customary international law or contribute to its evolution.26
4.4 Jurisdictional Issues
The question remains as to under which law unilateral sanctions are imposed against targeted States. It is surprising to note that in the case of unilateral sanctions, the national legislation of the imposing State is applied against the targeted State as doctrinal questions concerning extraterritorial application of national legislation are not well settled.