Abstract
The purpose of this chapter is to discuss international law’s role in humanizing economic sanctions. The chapter is divided in three sections in which the legal argument is viewed from different but mutually reinforcing angles. In Section 10.1 the complete lifecycle of sanctions is presented to chart the comprehensive possibilities for legal argumentation during different phases of that lifecycle. A basic concept map is used as a methodological tool and it is complemented with a textual description. The legal phenomena are presented on a macro level and, hence, remain general. Nonetheless, they are a relevant part of the comprehensive contextual understanding, which is necessary when building a legal defense against sanctions. In Section 10.2, attention is paid to one specific phase during the sanctions lifecycle: sanctions amounting to human rights violations. Human suffering caused by sanctions often goes unnoticed to the general public. International law has some potential to correct the greatest human wrongs in this context, and the European Courts recent jurisprudence in the field of procedural justice is a step in this direction. However, a judge has yet to take the step of protecting all fundamental rights. In Section 10.3, some thoughts are evoked in support of the European Judge protecting all fundamental rights, such as right to life, right to a living, free pursuit of economic development, freedom from hunger, as well as right to highest standard of physical and mental health. The focus is on the European value community, which underlies all legal deliberations. It is the task of this community to set the limits on acceptable violence and acceptable human harm in Europe and for European actions abroad. Values protecting the State and values protecting the human being easily collide when sanctions are concerned. The European Judge has a formidable position to consolidate the defense of humans’ rights in Europe and elsewhere.
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Notes
- 1.
The sanctions literature is abundant. See e.g., Cortright and de Wet 2010, p. 1; Craven 2002, p. 43; Gowlland-Debbas 1994, p. 55; Gowlland-Debbas 2001; Hufbauer et al. 2009; López-Jacoiste 2010, p. 273; O’Connell 2002, p. 63; Oette 2002, p. 93; OHCHR, Sub-commission on the Promotion and Protection of Human Rights, Human Rights and Humanitarian Consequences of Sanctions, Including Embargoes, para 1, U.N. Doc. E/CN.4/SUB.2/RES/2000/1 (11 August 2000); ECOSOC, Review of Further Developments in Fields with which the Sub-commission Has Been or May Be Concerned: The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, p. 1, U.N. Doc. E/CN.4/SUB.2/2000/33 (21 June 2000).
- 2.
Sponeck 2002, p. 81 (emphasis added) (discussing the Iraqi civilians’ suffering which seemed to become acceptable to the UNSC as “unavoidable” in the broader interest of peace and security).
- 3.
- 4.
- 5.
Siltala 2003, p. 150.
- 6.
Idem, p. 141.
- 7.
Ross 1958, p. 34.
- 8.
Concept map is a specific graphic method for displaying information, developed by Joseph D. Novak. It is used for the description of a specific topic’s information structure. An information structure is a whole, which is made of concepts central to the topic and the relations between such concepts. In a conceptual chart the concepts are categorized and the categories are linked in order to describe relations between different concepts. The positioning of categories and links creates a hierarchical scientific structure. See Novak 1995, p. 79.
- 9.
Oette 2002, p. 97, fns. 20–28 (discussing legal literature on whether humanitarian and human rights law impact the UNSC’s powers to impose sanctions). Regarding the law of countermeasures and the concerns for humanity, see debate in the UN 6th Committee, U.N. Doc. A/C.6/47/SR.20–25; see also ILC, Third Report on State Responsibility, U.N. Doc. A/CN.4/440 and Add.1 (19 July 1991); ILC, Fourth Report on State Responsibility, U.N. Doc. A/CN.4/444 and Add.1–3 (12 May 1992).
- 10.
Antonios Tzanakopoulos EJIL:Talk!, Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU, 16 November 2010, http://www.ejiltalk.org/kadi-ii-the-1267-sanctions-regime-back-before-the-general-court-of-the-eu/, accessed 19 July 2014 (with references to cases in which courts have accepted such possibility); see also Clapham 2001, p. 131.
- 11.
The question is fundamentally of the evaluation regarding the contents of alleged violations and of the right forum to present a claim that a violation has occurred. See Pierre-Emmanuel Dupont, EJIL:Talk!, Iran’s (Non-)Compliance with its Non-Proliferation Obligations Revisited, 22 June 2013, http://www.ejiltalk.org/irans-non-compliance-with-its-non-proliferation-obligations-revisited/, accessed 19 July 2014; Daniel Joyner, Iran’s Nuclear Program and the Mandate of the IAEA, JURIST-Forum, 9 November 2011, http://www.jurist.org/forum/2011/11/dan-joyner-iaea-report.php (accessed 19 July 2014).
- 12.
ICJ Statute, Article 38.1.
- 13.
Vienna Convention on the Law of Treaties, Article 31, 23 May 1969, 1155 U.N.T.S. 331.
- 14.
See e.g., International Civil Aviation Organization, Information Paper: Continuity of the United States Trade Embargo on the Civil Aviation of the Islamic Republic of Iran and the Safety Deficiencies Arising Out of It, Doc. DGCA/06-IP/31 (15 March 2006); International Civil Aviation Organization, Working Paper: The Safety Deficiencies Arising Out of The United States Sanctions Against the Civil Aviation of The Islamic Republic of Iran, Doc. A36-WP/275 EC/34 (20 September 2007).
- 15.
Jussi Konttinen, Haagin kulissit romahtelevat, Helsingin Sanomat, available at http://www.hs.fi/sunnuntai/Haagin+kulissit+romahtelevat/a1373082179131.
- 16.
See Prosecutor v. Gotovina et al., Case No. IT-06-90-T, Trial Chamber Judgment (15 April 2011); Prosecutor v. Gotovina and Markač, Case No. IT-06-90-A, Appeals Chamber Judgment (16 November 2012); Prosecutor v. Perišić, Case No. IT-04-81-T, Trial Chamber Judgment (6 September 2011); Prosecutor v. Perišić, Case No. IT-04-81-A, Appeals Chamber Judgment (28 February 2013).
- 17.
ECHR, 4 November 1950, 213 U.N.T.S. 232, Charter of Fundamental Rights of the European Union, 2000/C 364/01 (18 December 2000); Consolidated Version of the Treaty on European Union, 2010 (C83/01) (9 May 2008).
- 18.
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the European Court of Justice (Grand Chamber), 2008 E.C.R. I-6351.
- 19.
EU Council Regulation (EC) 881/2002 of 27 May 2002 Imposing Certain Specific Restrictive Measures Directed against Certain Persons and Entities Associated with Usama bin Laden, the Al-Qaida Network and the Taliban.
- 20.
Case T-306/01, Yusuf and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, 2005 E.C.R. II-3533.
- 21.
Case T-315/01, Kadi v. Council of the European Union and Commission of the European Communities, 2005 E.C.R. II‐3649.
- 22.
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the European Court of Justice (Grand Chamber), 2008 E.C.R. I-635, para 326 (emphasis added). This sparked a considerable debate on the role of the UN Charter and Article 103 in relation to UN Member States’ obligations. For a critical view see de Búrca 2010, p. 1. For justifications for the EC review see Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the European Court of Justice (Grand Chamber), 2008 E.C.R. I-6351, paras 303–305, 311, 313, 362. For Solange argument and disobedience see Antonios Tzanakopoulos EJIL:Talk!, Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU, n. 10, 16 November 2010, http://www.ejiltalk.org/kadi-ii-the-1267-sanctions-regime-back-before-the-general-court-of-the-eu/, accessed 19 July 2014.
- 23.
Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Kadi, Judgment of the European Court of Justice (Grand Chamber), 18 July 2013.
- 24.
Joined Cases C-399/06 P and C-403/06 P, Hasan and Ayadi v. Council and Commission, Judgment of the European Court of Justice, 2009 ECR I-11393, para 71.
- 25.
Case C-548/09 P, Bank Melli Iran v. Council, 2011 ECHR I-11381, para 105.
- 26.
CFI/GC, T-85/09, Kadi v. Commission, 2010 II-5177, para 121.
- 27.
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the European Court of Justice (Grand Chamber), 2008 E.C.R. I-6351, paras 307–308. Several claims were made by the defendants that the ECJ should refrain from reviewing the lawfulness of the contested regulation in the light of fundamental freedoms, like the ECtHR had previously done. However, the ECJ wanted to underline, with reference to para 151 of ECtHR’s Judgments in Behrami and Behrami v. France and Saramati v. France, Germany and Norway [2007] that in certain cases the ECtHR had, indeed, declined jurisdiction ratione personae, whereas in others its jurisdiction would seem to have been unquestionable. In the judgment in Bosphorus Hava Yollari Turizm ve Ticaret Anonim Şirketi v. Ireland [2005] concerning a seizure carried out by the authorities of the respondent State on its territory following a decision by one of its ministers, the ECtHR recognized its competence, notably ratione personae, vis-à-vis the respondent State, despite the fact that the source of the contested measure was a Community regulation taken, in its turn, pursuant to a resolution of the UNSC.
- 28.
See e.g., Case C-305/05, Ordre des barreaux francophones et germanophone and Others, 2007 ECR I-5305, para 29 and case law cited thereunder.
- 29.
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the European Court of Justice (Grand Chamber), 2008 E.C.R. I-6351, paras 303–304. Article 307 EC refers to the said Article in Treaty establishing the European Community, which has now been replaced by Article 351 in the Treaty on the Functioning of the European Union, OJ 2012 C 326/196. Article 6(1) EU refers to the Treaty on the European Union, OJ 2012 (C326/196).
- 30.
Cases C-27/09 P, France v. People’s Mojahedin Organization of Iran, 2011 ECR I-0000, para 66; C-300/11, ZZ, 2013 ECR I-0000, paras 51, 53 and case law cited therein; C-110/10 P, Solvay v. Commission, 2011 ECR I-0000, para 63; Joined Cases C-539/10 P and C-550/10 P, Al-Aqsa v. Council and Netherlands v. Al-Aqsa, 2012 ECR I-0000, paras 139–140; C-417/11 P, Council v. Bamba, 2012 ECR I-0000, para 53.
- 31.
Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, Judgment of the European Court of Justice (Grand Chamber), 2008 E.C.R. I-6351, paras 345–353.
- 32.
Idem, paras 342–344.
- 33.
EU Council (EC) Regulation 1190/2008 of 28 November 2008 Amending for the 101st time EU Council Regulation 881/2002 Imposing Certain Specific Restrictive Measures Directed against Certain Persons and Entities Associated with Usama bin Laden, the Al-Qaida Network and the Taliban.
- 34.
Case C-550/09, Criminal Proceedings against E and F (reference for a preliminary ruling from the Oberlandsgericht Düsseldorf, Germany), 2010 ECR I-0000, para 57.
- 35.
Case T-228/02, Organisation des Modjahedines du Peuple d’Iran v. Council of the European Union, 2006 ECR II-4665, para 155.
- 36.
Joined Cases T-284/08 and T-284/08 INTP, People’s Mojahedin Organization of Iran v. Council, 2008 II-00334, para 75.
- 37.
Joined Cases C-584/10 P, C-593/10 P and C-595/10 P, Kadi, Judgment of the European Court of Justice (Grand Chamber), paras 144, 146, 18 July 2013.
- 38.
Idem, para 101.
- 39.
Idem, para 120.
- 40.
Antonios Tzanakopoulos EJIL:Talk!, Kadi II: The 1267 Sanctions Regime (Back) Before the General Court of the EU, 16 November 2010, http://www.ejiltalk.org/kadi-ii-the-1267-sanctions-regime-back-before-the-general-court-of-the-eu/, accessed 19 July 2014. Or, alternatively Tzanakopoulos wonders whether the ECJ intends to introduce a new hierarchical level in the rudimentary structure of international law.
- 41.
- 42.
In the General Comment No. 8 of the ICESCR it is insisted upon the fact that the targeted state, along with the international community, must do everything possible to protect “at least the core content of the economic, social and cultural rights of the affected peoples,” rights which are not nullified or diminished in any way by the imposition of sanctions. ECOSOC, General Comment No. 8, Implementation of the International Covenant on Economic, Social and Cultural Rights: The Relationship between Economic Sanctions and Respect for Economic, Social and Cultural Rights U.N. Doc. E/C.12/1997/8 (12 December 1997), cited in Landgren 2001, p. 205.
- 43.
UNHRC, General Comment No. 6, The Right to Life, para 1 (27 July 1982).
- 44.
With “common interest” it is deliberately referred to universalist tendencies in international law which take concrete manifestation in discourses on peremptory norms jus cogens, obligations erga omnes, community reactions under state responsibility, and the consolidation of the concept of international criminal responsibility.
- 45.
Dworkin 1997, p. 81. Dworkin’s reference to hard cases is related to the application of law for the purposes of finding the right answer, if possible. No settled rule disposes of the case but one party may nevertheless have the right to win.
- 46.
This discourse is linked to preconditions for the definition of criteria for just warfare, bellum iustum, rooted in early Christian teachings by Saint Augustine (354–430), Thomas Aquinas (1225–1274), Francesco Vitoria (1480–1546), Alberico Gentili (1552–1608), and Hugo Grotius (1583–1645). On humanitarian intervention criteria, see e.g., Lillich 1974, p. 247; Reisman 1973, p. 194.
- 47.
- 48.
Higgins 2004, p. 245.
- 49.
- 50.
Under the Convention on the Rights of the Child, “State Parties recognize the right of the child to the enjoyment of the highest attainable standard of health …” and they “shall pursue full implementation of this right and, in particular, shall take appropriate measures … to diminish infant and child mortality.” CRC, Articles 6, 24, 20 November 1989, 1577 U.N.T.S 3. Instead, the Declaration recognizes the right of every person to a social and international order in which the rights and freedoms set forth in the Declaration can be fully realized (Article 28). The Declaration guarantees the right of every person to the enjoyment of economic, social and cultural rights indispensable for his dignity (Article 22), including the right to work and the right to free choice of employment (Article 23), and the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care (Article 25). UDHR, G.A. Res. 217A (III), U.N. Doc. A/810 (8 December 1948).
- 51.
Normand 1999, p. 9. In the case of Iraq, the UNSC and particularly the US representative to it, have argued that Saddam Hussein and his government bear sole responsibility for civilian suffering and, therefore, for human rights violations.
- 52.
Landgren 2001.
- 53.
See Katariina Simonen and Paavo Teittinen Why Can We Not Hear Out the Iranians? Helsinki Times, 4 July 2013.
- 54.
The concept of legal community is borrowed from Professor Ilkka Niiniluoto. See Niiniluoto 1981, p. 171.
- 55.
These different interests were discussed abundantly in the 1990s concerning the UNSC’s powers to interfere in internal crisis in which human rights were at stake. See e.g., Koskenniemi 1995, p. 337.
- 56.
Dworkin 1997, p. 81. Dworkin uses a fictive example of a philosophical judge to evaluate how he/she might develop theories of what legislative purpose and legal principles require. This judge is a He, called Hercules, a lawyer of superhuman skill, learning, patience, and acumen.
- 57.
The Russell-Einstein Manifesto, 9 July 1955, http://www.pugwash.org/1955/07/09/statement-manifesto.
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Simonen, K. (2015). Economic Sanctions Leading to Human Rights Violations: Constructing Legal Argument. In: Marossi, A., Bassett, M. (eds) Economic Sanctions under International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-051-0_10
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