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Unilateral Sanctions in International Law: A Quest for Legality

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.

Keywords

  • National Legislation
  • Geneva Convention
  • International Peace
  • Universal Jurisdiction
  • Economic Sanction

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Notes

  1. 1.

    Doxey 1972, p. 528; see also Alexander 2009, pp. 10–11.

  2. 2.

    Declaration on the Right to Development, G.A, Res. 41/128, U.N. Doc. A/RES/41/128 (4 December 1986).

  3. 3.

    Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, G.A. Res 2625 (XV), U.N. Doc. A/RES/25/2625 (24 October 1970).

  4. 4.

    Collective or multilateral sanctions could be generally defined as “collective measures imposed by organs representing the international community, in response to perceived unlawful or unacceptable conduct by one of its members and meant to uphold standards of behaviour required by international law.” See Schrijver 1994, p. 125.

  5. 5.

    League of Nations Covenant, Article 16. This article reads:

    Should any Member of the League resort to war in disregard of its covenants under the Articles 12, 13 or 15, it shall ipso facto be deemed to have committed an act of war against all other Members of the League, which hereby undertake immediately to subject it to the severance of all trade or financial relations, the prohibition of all intercourse between their nationals and the nationals of the covenant-breaking State, and the prevention of all financial, commercial or personal intercourse between the nationals of the covenant-breaking State and the nationals of any other State, whether a Member of the League or not.

    It shall be the duty of the Council in such case to recommend to the several Governments concerned what effective military, naval or air force the Members of the League shall severally contribute to the armed forces to be used to protect the covenants of the League.

    The Members of the League agree, further, that they will mutually support one another in the financial and economic measures which are taken under this Article, in order to minimise the loss and inconvenience resulting from the above measures, and that they will mutually support one another in resisting any special measures aimed at one of their number by the covenant-breaking State, and that they will take the necessary steps to afford passage through their territory to the forces of any of the Members of the League which are co-operating to protect the covenants of the League.

    Any Member of the League which has violated any covenant of the League may be declared to be no longer a Member of the League by a vote of the Council concurred in by the Representatives of all the other Members of the League represented thereon.

  6. 6.

    U.N. Charter, Article 24.

  7. 7.

    Kumar 2009, p. 178.

  8. 8.

    U.N. Charter, Article 41.

  9. 9.

    See Idem, Article 25.

  10. 10.

    Kochler 1995, pp. 3–17.

  11. 11.

    Articles on Responsibility of States for Internationally Wrongful Acts, Article 22 & Part 3, Ch. 2, G.A. Res. 56/83, Annex, U.N. Doc.A/RES/56/83/Annex (12 December 2001) (defining countermeasures and further elaborating).

  12. 12.

    Even during armed conflict or conflict-like situations, it could be argued that sanctions are in total contradiction to the provisions of the Geneva Conventions. See Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Articles 48, 48, 54, 8 June 1977, 1125 U.N.T.S. 3 (Additional Protocol I). During the sanctions period, the human rights of the civilian population is grossly violated which could be considered disproportionate and indiscriminate.

  13. 13.

    U.N. Charter, Article 39.

  14. 14.

    According to the theory of retaliation, every rule of international law is a priori equipped with a legal sanction. If a state violates a rule, “the victim states are in principle entitled to suspend any other international law norm in their relation with the violator.” Schachter 1991, p. 126.

  15. 15.

    These are acts, normally illegal under international law, that are justified when imposed in response to a preceding impermissible act. They are also known as ‘non-forcible countermeasures.’ See Idem.

  16. 16.

    Retorsion is “unfriendly” conduct “which is not inconsistent with any international obligation of the State engaging in it even though it may be a response to an internationally wrongful act.” Crawford 2002, p. 281.

  17. 17.

    Alexander 2009, p. xii; see also Askari et al. 2003, p. 2.

  18. 18.

    See G.A. Res. 68/8, preamble, U.N. Doc. A/RES/68/8 (29 October 2013) (concerning the “Necessity of Ending the Economic, Commercial and Financial Embargo imposed by the United States of America against Cuba”).

  19. 19.

    G.A. Res. 68/8, preamble, U.N. Doc. A/RES/68/8 (29 October 2013); see also Asian–African Legal Consultative Organization 2013, p. 39.

  20. 20.

    AALCO 2013, p. 38.

  21. 21.

    See AALCO, Secretariat Report 2003, Extraterritorial Application of National Legislation: Sanctions Imposed against Third Parties, http://www.aalco.int/briefs2003/EXTRATERRITORIAL2003.pdf; see also Sykes 1992.

  22. 22.

    International Progress Organization, Appeal against Sanctions, Submission to the Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission on Human Rights’ Forty-eighth Session, Geneva, 15 August 1996, available at http://www.i-p-o.org/sanct.htm (accessed 30 August 2014).

  23. 23.

    Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty, G.A. Res. 2131(XX), U.N. Doc. A/RES/20/2131 (21 December 1965).

  24. 24.

    Declaration of Principles of International law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, G.A. Res 2625 (XV), U.N. Doc. A/RES/25/2625 (24 October 1970) (Friendly Relations Declaration).

  25. 25.

    Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of States, G.A. Res. 36/103, U.N. Doc A/RES/36/103 (9 December 1981).

  26. 26.

    See ILC Sixty-fifth Session, Geneva, 6 May-7 June and 8 July-9 August 2013, First Report on the Formation and Evidence of Customary International Law, U.N. Doc. A/CN.4/663 (17 May 2003).

  27. 27.

    North Atlantic Coast Fisheries (United Kingdom v. United States), 11 R.I.A.A. 167, 180 (Permanent Court of Arbitration 1910) (stating, with regard to United Kingdom regulations, that, “One of the essential elements of sovereignty is that it is to be exercised within territorial limits, and that, failing proof to the contrary, the territory is co-terminous with the territory.”).

  28. 28.

    G.A. Res. 68/8, preamble, U.N. Doc. A/RES/68/8 (29 October 2013); see also Asian–African Legal Consultative Organization 2013, p. 39.

  29. 29.

    Treatment of Polish Nationals, Advisory Opinion, 1932 P.C.I.J. (ser. A/B) No.44, p. 24.

  30. 30.

    See e.g., United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir. 1945); United States v. Watchmakers of Switzerland Information Center Inc., 133 F.Supp. 40 (S.D.N.Y. 1955); 134 F.Sup. 710 (S.D.N.Y. 1955).

  31. 31.

    Case of the S.S. Lotus (France v. Turkey), 1927 P.C.I.J. (ser. A) No.10.

  32. 32.

    See the deliberations at the 38th and 39th plenary meetings of the sixty-eighth session of the UNGA on A/RES/68/8, adopted on 29 October 2013, available at http://www.un.org/News/Press/docs//2013/ga11445.doc.htm.

  33. 33.

    The US has been one of the major example of those States which imposes unilateral sanctions extraterritorially. See Askari et al. 2003.

  34. 34.

    International Bar Association, Report of the Task Force on Extraterritorial Jurisdiction, 6 February 2009, available at http://www.ibanet.org/Search/Default.aspx?q=extraterritorial%20jurisdiction (accessed 30 August 2014). The use of direct extraterritorial jurisdiction by states in relation to private foreign actors and activities has been opposed by other states in some areas on the grounds that it constitutes interference in their own domestic affairs, including their ability to implement their own policy choices. It has also been opposed by companies (and their home states in some instances) for the extra risk, uncertainty, and expense that it may create for commercial actors. Nevertheless, direct extraterritorial jurisdiction continues to be utilized in a range of different regulatory areas, and especially in criminal law areas such as anti-corruption, counterterrorism, money laundering, international crimes, and sex tourism. See Zerk 2010.

  35. 35.

    See AALCO 2013, p. 194; see also AALCO, Verbatim Record of Discussions: Fifty-Second Annual Session, New Delhi, India, 9-12 September 2013, Doc. No. AALCO/52/NEW DELHI (HQ)/2013/VR, http://www.aalco.int/Verbatim%20Record%20of%20Discussion%2052nd%20Annual%20Session%202013.pdf.

  36. 36.

    Shaw 2003, pp. 579–592.

  37. 37.

    U.N. Charter, Article 2(1).

  38. 38.

    Idem, Article 2(7).

  39. 39.

    Idem, Article 74.

  40. 40.

    Friendly Relations Declaration, Principle 4(1).

  41. 41.

    Idem, Principle 1(1).

  42. 42.

    Idem, Principle 5.

  43. 43.

    Idem, Principle 3.

  44. 44.

    Idem, Principle 2.

  45. 45.

    Idem, Principle 4.

  46. 46.

    Idem, Principle 7.

  47. 47.

    See AALCO 2013, pp. 27–64.

  48. 48.

    Declaration on the Right to Development, G.A, Res. 41/128, Articles1(1)–1(2), U.N. Doc. A/RES/41/128 (4 December 1986).

  49. 49.

    See Köchler 1995.

  50. 50.

    See Alexander 2009.

  51. 51.

    See Idem, pp 10–11.

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Mohamad, R. (2015). Unilateral Sanctions in International Law: A Quest for Legality. 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_4

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