Introduction
Unlike conventional warfare, which is governed under the ‘jus ad bellum’, i.e., the law of war, the rules governing economic warfare through the imposition of unilateral sanctions are unclear and scarcely codified. Throughout history, several sanctions by powerful western countries have been viewed as justified measures of retorsion, while some have been alleged to be violative of international law. In the absence of any incontestable principle of international law regulating unilateral sanctions, their imposition is neither lawful nor unlawful. Although unilateral sanctions conveniently emerge as more effective than diplomatic negotiation and less adverse than the dire humanitarian consequences of military wars, the incertitude of its regulation from a legal perspective is concerning.
Sanctions vis-à-vis International Law
On a case-to-case basis, unilateral sanctions may or may not reach the threshold required to violate essential principles under international law. Previously, unilateral sanctions have been claimed by states and jurists to be violative of international trade law obligations under the GATT (General Agreement on Tariffs and Trade) & GATS (General Agreement on Trade and Services), human rights under ICCPR (International Covenant on Civil and Political Rights) & ICESCR (International Covenant on Economic, Social and Cultural Rights) and the principles of non-intervention imbibed in article 2 of the UN (United Nations) Charter. Given an absence of definitive thresholds, there is a necessity that these international legal regimes navigate through the jurisprudential developments to constitute incontestable rules governing sanction imposition.
Authorization Of International Sanctions
Economic sanctions can be authorised solely by the United Nations Security Council (UNSC) under Chapter VII of the UN Charter. However, out of the 174 sanctions regimes imposed on states over the last half-century, merely 31 were mandated by the UNSC, whereas the rest were unauthorised and unilateral. The UN Charter neither prohibits nor mandates such unilateral measures, either forcible or non-forcible. Nevertheless, the UN has condemned such unilateral measures in several General Assembly (UNGA) resolutions.
Sanctions imposed by the UNSC:
The UNSC is permitted under UN Charter article 39 to determine the existence of threats to international peace and acts of aggression. Accordingly, as under articles 41-42, steps may be taken by the sanctions committee established under the UNSC to restore international peace and security, through measures such as severance of economic or diplomatic relations as well as military actions on aggressive states. The UNSC has imposed such sanctions targeting several African and Middle-east nations as well as terror outfits, namely the Da’esh and Al-Qaida. These sanctions have significantly targeted non-constitutional authoritarian/dictatorial mechanisms, terrorism, proliferation, atrocities, etc. and of these, 15 regimes are still under operation.
2. Collective sanctions approved by the UNSC:
The first instance of a collective regional sanction was a resolution by the Organisation of American States (OAS) to disrupt diplomatic and economic ties with the Dominican Republic, which under Rafael Trujillo’s governance attempted to assassinate Venezuela's President in 1960. The resolution was transmitted to the UNSC, which is to be informed of regional enforcement actions for the maintenance of international peace and security, under Chapter VIII article 54. Although the UNSC rejected this sanctioning request, another OAS trade sanction against Haiti in response to its 1991-94 military coup was approved. Therefore, the authorisation of collective sanctions has largely been dependent on UNSC approvals and could be fairly argued to fall under the formal sanctioning regime permitted and overviewed by the UNSC.
3. Unilateral Sanctions:
Unilateral sanctions are individually adopted by states, without the authorization of the formally controlled sanctions regime of the UNSC. In practice, the majority of sanctions are imposed without UN authorisation, given the UN’s unwillingness to target human rights violators unless so encouraged by all major power blocs. It is practically impossible for the UNSC to impose sanctions on a permanent member (P5) with a veto power or initiate sanctions not in alignment with the interest of permanent members (P5). Additionally, the UNSC has demonstrated a fair share of reluctance against sanctioning developed and developing countries. A prime example of the same would be the UNSC's disinclination to sanction perpetrators of genocide against the ethnic minority of Rohingyas in Myanmar.
Sanctions as a violation of the Non-Intervention Principle
The UNGA Resolution 2625, as derived from the concept of sovereignty under Article 2(2) of the UN Charter, prohibits intervention in the domestic affairs of a state. In its 1986 Nicaragua judgment, the ICJ (International Court of Justice) stated that for an intervention to be unlawful, it should be coercive. A measure becomes coercive when it is dictatorial and deprives the targeted state of the authority to freely decide on a sovereign matter. Sanctions often extraterritorially interfere with the domestic functioning of the targeted states, especially through measures such as asset freezing and voiding/boycotting commercial contracts with the entities of such states.
Further, the UNGA has affirmed the duty of a state to not adopt unilateral economic reprisal and prevent the use of transnational and multinational corporations as instruments of political pressure or coercion against another. By limiting the economic freedom of third countries, through a threat of secondary sanctions, sanctioning states effectively act to the detriment of their sovereignty. For instance, the Helms-Burton Act not only imposed trade sanctions on Cuba but also threatened third countries with secondary sanctions if they engaged in business with Cuba. Thus, several companies of sanctioning and non-sanctioned states are deterred from making economic contracts with the sanctioned countries in fear of penalties, inspite of their sovereign right to the same.
Sanctioning Rationale in International Relations
Sanctions are essentially imposed to protect human rights in situations of apartheid, crimes against humanity, genocide, discrimination, aggression, self-determination, totalitarianism, etc. States preferably target through sanctions specific individuals and organisations aligned with activities in violation of international law, e.g.- in June 2023, the U.S. OFAC (Office of Foreign Assets Control) sanctioned Sudanese Armed Forces (SAF) to prevent its military and financial contributions to the Sudanese conflict that has battered civilians for years. Such targeted sanctions, known precisely as primary sanctions, cuts off support to states virulently violating human rights and mitigate the atrocities perpetrated by it.
Multipolarity effects of Sanctioning
Multipolarity in international relations has impelled countries from one power bloc to impose sanctions on countries aligned with the opposing power blocs. Unilateral economic sanctions are also frequently imposed on relatively less powerful countries by majorly powerful countries. The US sanctions on communist Cuba through the Foreign Assistance Act of 1961, embargoes against China from 1949-1979, as well as the highly criticised and opposed extraterritorially applicable Helms-Burton Act of 1996, are the most renowned examples of sanctioning countries in vengeance on the antipodal power blocs of cold war. The same creates considerable instability and uncertainty in international diplomacy and inter-state dynamics. Consequently, to ensure stability to a certain extent in international relations, limiting unilateral sanctioning becomes imperative.
Human Rights Violations Through Sanctions-TWAIL Approaches
ICESCR article 12 provides the right to the highest attainable standards of physical and mental health. Inherent in this right is the obligation of state parties to refrain from imposing embargoes that restrict the supply of medical equipment to other states. Additionally, as per CESCR general comments 3 & 8, states shall refrain from undertaking retrogressive measures or sanctions that jeopardise the economic, social, and cultural rights of the population in the targeted State. Sanctions collaterally violating such rights have been repeatedly taken by the US, against Syria in a series of sanctions in 1979, 2004 & 2011 and against Iran in 1995-1996, 2006 & 2010-2012. These sanctions have resulted in steep economic contraction in these respective countries, causing a dearth of availability of essential resources to civilians.
The Necessity Of Regulation Of Imposition Of Unilateral Sanctions
Human rights violations and widescale civilian suffering, most prominently in the Iran sanctions regime, brought to the forefront an urgency to regulate sanction imposition. The adversities of humanitarian crises, financial strain & devaluation and the subsequent political turmoil caused in sanctioned states reflect the necessity to impose limits on unilateral imposition of sanctions.
In light of the increasing commonality of sanctions, courts engaged in an analysis of the legality of unilateral sanctions in the 2019 WTO Panel Report in Russia- Traffic in Transit case of 2017. The court therein laid out the existence of an international emergency situation or war as the qualifying condition for sanction imposition. Emergency situations are to be restricted to international conflicts and urgencies in international relations.
Similar limits shall be internationally codified through UNSC resolutions, general comments of the UN Human Rights Council, and endeavours by the ILC (International Law Commission) in drafting rules on sanction imposition, which could later be adopted by states. UN Agencies must also proactively advocate for the restriction of violative sanction imposition and mitigate the effects of those already imposed. Although such attempts do not equate to objectively binding international conventions, a culmination of these jurisprudential expansions will enable the development of binding customary principles of international law.
Conclusion
Post the end of World War II, states attempted to move towards a system of international relations wherein unjustified use of force or imposing of coercive measures against any state were to be categorised as interventionist of a nation’s sovereignty and were to remain prohibited. Yet, there still is a requirement for enhanced participation of international stakeholders in framing limits within which sanctions can be imposed. Effective participation of under-developed and developing states to campaign in the international fora for restrictions on violative sanctions is desired. International NGO and civil society group activism is also required for positive outcomes in international jurisprudence, so as to ensure development of international law that may objectively govern inter-state relations.
Authors:
Suchetana Chakroborty is a law student at Institute of law, Nirma University and Utkarsh Sharma is a law student at Hidyatullah National Law University, Raipur.
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