The Legal and Practical Appropriateness of Economic Sanctions

Image Caption: Imposing economic sanctions as a way of solving international issues has long been one of the UN Security Council’s chief powers. Some have questioned, however, the legality of sanctions, and whether the international community understands their disastrous humanitarian costs.


Economic sanctions have increasingly become the most common form of state retaliation for international violations committed by other global actors. Whether these abuses are legal or normative, economic punishment is typically seen as the ‘middle way’ between no response and costly, military action. However, given the primacy of economic sanctions in the current international system and their humanitarian costs, much discussion has centered upon the appropriateness of the measures. Is there an international legal regime governing the use of sanctions? When are sanctions practically feasible and most likely to succeed? Determining the appropriateness of economic sanctions is a two-tiered problem requiring both legal and practical assessment. First, I will consider the conditions under international humanitarian law that suitably authorize economic sanctions. Then, I will consider the practical conditions that enhance a sanction regime’s success including the level of trade between states, international support, and the political climate of the target government. Considering both the legal and practical appropriateness of punitive economic measures, states can ensure that international sanctions do not violate legal norms and achieve their desired objective without producing excessive civilian suffering.

Within a state’s foreign policy tool box, economic sanctions are one of the most important instruments. Generally, sanctions are defined as “the withdrawal of customary trade and financial relations for foreign and security policy purposes,” through, among other actions, arms embargoes, asset freezes, capital restraints, travel bans, foreign aid reductions, and trade restrictions.[1] Such measures may be unilaterally or multilaterally imposed to influence the behaviour of state or non-state actors that threaten the interests of another government or abuse international norms.[2] Within the context of this paper, only state issued sanctions will be considered given their commonality in international relations. When imposed multilaterally, sanctions are typically authorized through an international organization like the United Nations (UN). Article 39 of the UN Charter enables the United Nations Security Council (UNSC) to determine threats to international peace and security and Article 41 authorizes the UNSC to employ the “complete or partial interruption of economic relations,” otherwise known as economic sanctions, to remedy international problems.[3] The use of economic sanctions has often been criticized for excessive humanitarian costs on the target state’s population. Kim Richard Nossal speaks for many critics when describing the foreign policy as a “violent, blunt, and gendered tool of statecraft” that ineffectively alters political behaviour.[4] This backlash has led to the increasing use of ‘smart’ sanctions. Rather than comprehensively destroying a state’s economy, ‘smart’ or targeted sanctions aim to penalize the specific entities responsible for the violations and minimize the civilian impact.[5] The realm of economic sanctions is still widely contested leading many to question when such measures are appropriate and if they are an effective means of intervention.

Unlike armed force, economic sanctions are not governed by a specific set of rules or international legal norms. As John Currie, Craig Forcese, Joanna Harrington, and Valerie Oosterveld discuss, there is no rule of customary international law forcing states to financially interact with one another.[6] Nevertheless, a set of norms could be established to indicate the legal appropriateness of how and when economic sanctions should be used to maximize their effectiveness and minimize their costs. Various legal frameworks have been considered, including international human rights law (IHRL) and international humanitarian law (IHL). Daniel Joyner contends that sanctions often produce conditions that deprive civilians of universal human rights outlined by the UN Charter and its accompanying human rights treaties.[7] As a result, Joyner argues that appropriate sanctions should always abide by human rights standards and IHRL. However, as Nema Milaninia identifies, Joyner’s argument is flawed by impracticalities. Milaninia accurately observes that nearly all sanctions will violate some form of human rights based on their innate purpose to pressure compliance through the deprivation of certain standards of living.[8] States would be unwilling to accept such an inflexible legal spectrum with impossible standards. Unlike IHRL, international humanitarian law is a generally accepted framework that recognizes the humanitarian costs of economic sanctions while providing reasonable limitations.

International humanitarian law is rooted in treaty law, namely the Geneva Conventions of 1949 and their Additional Protocols, as well as customary international law.[9] As stated by the International Committee of the Red Cross (ICRC), through jus in bello (the laws of armed conflict), IHL “regulates the conduct of parties engaged in an armed conflict” to minimize the pain and suffering experienced by combatants and non-combatants.[10] Under IHL, the legitimate use of force must adhere to the principles of necessity, proportionality, and discrimination.[11] This framework was created to govern military force as this style of intervention was considered the primary tool of pain and suffering employed by a state.[12] However, force is no longer the sole cause of state-enacted destruction.

Sanctions have the capacity to destroy an economy and lead to extensive civilian suffering. The most often cited example of excessive humanitarian costs associated with sanctions is the multilateral Iraq policy of the 1990s. Beginning in 1990, Iraq was pummeled by UNSC-approved sanctions for several years in an attempt to punish Saddam Hussein’s invasion of Kuwait and after the Gulf War, contest the Iraqi weapons of mass destruction (WMD) program.[13] The comprehensive sanctions contributed to Iraq dropping on the UN Development Program ranking from 50th to 126th, widespread malnutrition, and high infant mortality rates.[14] The United Nations has since admitted to the disastrous costs associated with sanctions, recognizing in 1995 that future sanction regimes should consider humanitarian consequences; these principles were later reiterated by Secretary General Kofi Annan in 1999.[15] Evidently, sanctions have the potential to wreak considerable collateral damage and given this reality, such measures should be constrained by some form of legal limitation. IHL offers recognized limitations on another form of state-enacted suffering (military force) and as a result, offers the proper framework to govern economic sanctions and their appropriate use. W. Michael Reisman is among the many who argue that IHL must be revaluated. Reisman sees this revaluation as adjusting jus in bello to jus in bello economico (the laws of economic sanctions implementation).[16] Like jus in bello, Reisman’s strategy supports the same key principles of necessity, proportionality, and discrimination.[17] Economic sanctions would need to demonstrate that such action is necessary to accomplish explicit and lawful objectives; the severity of the sanctions must be proportionate to the goal and the issue at hand; and finally, the policy should discriminate between the perpetrators of the offence and the general public. Reisman’s suggestions provide a simple form of regulation for economic sanctions within a framework widely recognized by the international community.

To continue the current course of unrestricted sanctions implementation would ignore the significant destructive capacity of the policy and invite further humanitarian costs. Counter arguments, like those raised by Anna Segall, might suggest that international humanitarian law only governs armed conflict and economic sanctions are often applied during peacetime crises, causing IHL to be an unsuitable framework.[18] While accurate, the international community’s perception of IHL must be revised to consider the modern age of foreign policy. For decades, military conflict was the ultimate source of indiscriminate harm, prompting IHL to be developed.[19] However, as evidenced by Iraq, economic sanctions can likewise enact excessive collateral damage regardless of their use in peacetime or conflict. IHL should be adjusted to apply to any foreign policy tool capable of disproportionate humanitarian costs irrespective of the context in which they are imposed. The principles of humanitarian protection support the applicability of IHL to economic sanctions and this legal framework provides the best form of proper governance widely accepted by the international community.

Sanctions are therefore appropriate under international law when adhering to the revised IHL principle of jus in bello economico. If a state or international organization can prove necessity, proportionality, and discrimination, then such sanctions should have a strong international legitimacy. However, legal appropriateness is only one level of the two-tiered issue. Once the law is satisfied, one must consider the practical conditions that should be considered before engaging in a sanctions policy. After considering the many cases of sanctions throughout history, scholars have indicated several circumstances that typically lead to sanctions success. These include the trade relationship between the sanctioning parties and the target state, whether sanctions are multilateral or unilateral, and the presence of political opposition within the target country. This list is not exhaustive, but rather provides some considerations identified by international lawyers and academics. If these conditions as well as those mentioned above regarding IHL can be satisfied, then the use of punitive economic measures should be deemed legally and practically appropriate.

First, before considering sanctions a state or international organization must study the level of trade between the imposer and the target. Knowing the trade conditions between the countries involved provides a more comprehensive understanding of a sanction regime’s capability to apply pressure. Kimberly Ann Elliot explains that over 115 episodes of sanction policies between World War I and 1989, measures were most effective when the sender and target state had a friendly, substantial trade connection.[20] The advantages of such circumstances are clear when considering the impact sanctions have on commercial activity or assets. If a state has relied on another country or group of states for goods and services, a cessation of such products will have a significant impact on the target state’s livelihood. As Ivan Eland explains, this is one of the reasons why economic sanctions were successful in apartheid-era South Africa. At the time, 80 per cent of South African trade and capital originated from six Western states and once those countries imposed sanctions against the apartheid government, significant pressure was placed on the South African economy.[21] South Africa is thus a clear example of a fundamental concept of economics sanctions: if a country relies on another for supply then a reduction of supply will alter the costs of non-compliance. A less substantial financial relationship will alternatively diminish the consequences applied by a sanction regime and the subsequent appropriateness of the policy.

Next, policy makers must consider whether sanctions are unilateral or multilateral. Several cases have indicated the advantage of multilateral sanctions to isolate the target. Richard N. Haass explains that unilateral sanctions are rarely effective within a globalized economy.[22] A government facing unilateral sanctions can often look towards other countries, such as enemies of the sanctioner, to alleviate the economic pressures. Cuba and North Korea act as examples in which a lack of sufficient international support limited the effectiveness of a sanctions policy. The United States imposed an embargo on Cuba in 1962 after Cuban leader Fidel Castro expropriated land with minimal compensation and demonstrated increasingly Communist tendencies.[23] The United Nations never endorsed the U.S. policy and the action remained largely unilateral. During the Cold War, the U.S.S.R supported Cuba’s economy as a form of what Elliot calls “offsetting assistance”.[24] For many years, the financial assistance from the Soviet Union offset the American sanctions and enabled Cuba to maintain its U.S.-disapproved policies. The current sanctions policy against North Korean nuclear proliferation is another example of offsetting assistance and the consequences of insufficient multilateral support. Several countries have imposed sanctions on the government of Kim Jong-Un, however, China continues to provide 90 per cent of North Korean trade and remains a major link between Korean financial institutions and the global market.[25] Although the sanctions against Kim Jong-Un are multilateral, the lack of cooperation from a major financial power has hindered the measures’ effectiveness and enabled the target to continue its rogue behaviour. As a result, a caveat should be considered when employing multilateral sanctions. If sufficient support cannot be achieved from global financial leaders, then policy effectiveness will subsequently decrease. On the other hand, the Libyan sanctions regime against Muammar el-Qaddafi is an example of effective multilateral sanctions with sufficient international economic support. In exchange for normalized relations, el-Qaddafi eventually admitted to the 1988 Lockerbie bombings and agreed to the cancellation of Libya’s WMD program.[26] Without sufficient allies against a largely unified U.S.-UN sanctions regime, Libya was forced to acquiesce with international demands and became a case of sanctions success. Cuba, North Korea, and Libya reveal the different levels of effectiveness multilateralism can provide to a sanctions regime. Widespread, international cooperation from major powers provides the strongest international isolation. Such collaboration is often difficult to establish or sustain, but nevertheless must be considered when determining the practical appropriateness of a sanction policy.

Lastly, a common factor impacting sanctions compliance is the domestic political environment of the target. For sanctions to succeed, there must be high costs for non-compliance, otherwise there is little incentive for the target to adjust its behaviour. Domestic political opposition can elevate these costs by mobilizing people disaffected with economic hardship and pressure the national leadership to encourage compliance. In extreme situations, an opposition group can even topple the target administration and form a new government willing to accept the sanctioners’ demands.[27] In Iraq, this opposition did not exist and as a result, Saddam Hussein could maintain firm control of the country. This became an additional factor in the state’s noncompliance and a further indication of the inappropriateness of the style of the Iraqi sanctions regime.[28] Alternatively, Indian sanctions against Nepal to arrest the country’s growing relationship with China reveal the usefulness of domestic opposition. Among other factors, Nepal complied with Indian demands in 1988 because internal political parties threatened the government’s position.[29] Prior to initiating a sanctions policy, concern should thus be given to the political state of the target. Evidenced by Iraq and Nepal, the political conditions of the target state are highly significant to sanction success and provide a greater indication as to whether economic sanctions are the most appropriate policy.

Despite providing several recommendations, this discussion of when economic sanctions are legally and practically appropriate leaves some questions still unanswered. As mentioned earlier, the current framework of international humanitarian law does not generally apply to peacetime action. A normative shift is required to expand IHL’s use, however such a change will only occur through gradual international acceptance. Additionally, what can be done if diplomacy and military force are not an option and a sanction policy cannot satisfy the appropriate considerations? Can an international violation proceed unopposed? Given the breadth of possible action within a sanction regime, punitive economic measures can be custom-made for each case. ‘Smart’ sanctions provide a possible solution to complex crises, as such strategies can specifically target guilty parties and limit the humanitarian costs.[30] Narrow sanctions enable the policy to better comply with legal and practical considerations by focusing on certain entities and limiting the collateral damage upon the public.

Furthermore, ‘smart’ sanctions can be used to address violations committed by non-state actors. Non-state actors like terrorist organizations are becoming a more common component of international relations and as a result, the global community will need to devise effective policies to contest their advance. Economic sanctions have been used to target the financial resources of terrorist groups and hinder their development. Imposed against non-state actors, targeted sanctions could blacklist terrorist affiliates to freeze assets, ban travel, and derail their activities.[31] This strategy, while potentially effective, introduces another set of issues regarding blacklist mistakes and judicial review of the chosen blacklist occupants. [32] Consequently, while states and international organizations can use targeted polices to focus on individual terrorist cells and prevent future attacks, the strategy must still be developed to ensure proper accountability and effectiveness.

As discussed, a general framework needs to be established as to when economic sanctions should be used. First, decision makers must consider the legality of the measures under international law. Specifically, a sanctions regime should follow the adapted IHL conditions of jus in bello economico. Sanctions have a large destructive capacity and should follow the same principles of necessity, proportionality, and discrimination of military force to reduce humanitarian consequences. If legally appropriate, the practicality of a sanctions policy must then be considered, including the level of trade between the imposers and the target, the number of actors involved, and the level of internal opposition within the noncompliant state. Economic sanctions should not be blindly imposed as the immediate alternative to diplomacy and force, but rather assessed on a case by case basis. The use of targeted sanctions further enables the policy to adapt to specific conditions and even contest non-state actors. Within the current global climate, economic sanctions will most likely be imposed more often; however, policy makers must consider the legal and practical appropriateness of economic sanctions to avoid collateral damage and guarantee results.


About the Author

Harrison Myles is from Toronto, Canada and is currently in fourth year at the University of Toronto. He is majoring in international relations with a specific interest in humanitarian intervention and hopes to pursue a career in human rights with a non-governmental organization.


Endnotes

[1] Jonathan Masters, “What Are Economic Sanctions?” Council on Foreign Relations, last modified August 7, 2017, https://www.cfr.org/backgrounder/what-are-economic-sanctions.

[2] Ibid.

[3] United Nations, “Charter of the United Nations,” Repertory of Practice of United Nations Organs, last modified August 23, 2016, http://legal.un.org/repertory/art41.shtml.

[4] John H. Currie, Craig Forcese, Joanna Harrington, and Valerie Oosterveld, International Law: Doctrine, Practice, and Theory (Toronto: Irwin Law Inc., 2014), 833.

[5] Masters, “What Are Economic Sanctions?” https://www.cfr.org/backgrounder/what-are-economic-sanctions.

[6] Currie, Craig Forcese, Joanna Harrington, and Valerie Oosterveld, International Law, 820.

[7} Daniel H. Joyner, “Chapter 5: International Legal Limits on the Ability of States to Lawfully Impose International Economic/Financial Sanctions,” in Economic Sanctions Under International Law, ed. Ali Z. Marossi and Marisa R. Bassett (The Hague: T.M.C. Asser Press, 2015), 91.

[8] Nema Milaninia, “Chapter 6:Jus ad bellum economicum and jus
in bello economico: The Limits
of Economic Sanctions Under the Paradigm of International Humanitarian Law,” in Economic Sanctions Under International Law, ed. Ali Z. Marossi and Marisa R. Bassett (The Hague: T.M.C. Asser Press, 2015), 98, 100.

[9] International Committee of the Red Cross, “Treaties and customary law,” International Committee of the Red Cross, last modified October 29, 2010, https://www.icrc.org/en/document/treaties-and-customary-law.

[10] International Committee of the Red Cross, “What are jus ad bellum and jus in bello?” International Committee of the Red Cross, last modified January 22, 2015, https://www.icrc.org/en/document/what-are-jus-ad-bellum-and-jus-bello-0.

[11] M. Shervin Majlessi, “Use of Economic Sanctions Under International Law: A Contemporary Assessment,” The Canadian Yearbook of International Law 39 (2001): 318.

[12] Ibid., 317.

[13] Neil Arya, “Economic Sanctions: the Kinder, Gentler Alternative?” Medicine, Conflict and Survival 24, no. 1 (2008): 30.

[14] Ibid., 34.

[15] Milaninia, “Chapter 6:Jus ad bellum economicum and jus
in bello economico,” 103.

[16] W. Michael Reisman, “Sanctions and International Law Keynote Address, The Cuban Embargo and Human Rights” (presentation, Intercultural Human Rights Law Review Annual Symposium, New Haven, CT, October 24, 2008).

[17] Ibid.

[18] Anna Segall, “Economic sanctions: legal and policy constraints,” International Committee of the Red Cross, last modified December 12, 1999, https://www.icrc.org/eng/resources/documents/article/other/57jq73.htm.

[19] Milaninia, “Chapter 6:Jus ad bellum economicum and jus
in bello economico,” 103.

[20] Kimberly Ann Elliott, “Factors Affecting the Success of Sanctions,” in Economic Sanctions: Panacea or Peacebuilding in a Post-Cold War World? ed. David Cortright and George A. Lopez (Boulder: Westview Press, 1995), 53.

[21] Ivan Eland, “Economic Sanctions as Tools of Foreign Policy,” in Economic Sanctions: Panacea or Peacebuilding in a Post-Cold War World? ed. David Cortright and George A. Lopez (Boulder: Westview Press, 1995), 35. 

[22] Richard N. Haass, “Economic Sanctions: Too Much of a Bad Thing,” Brookings Institute: Brookings Policy Briefs Series, last modified June 1, 1998, https://www.brookings.edu/research/economic-sanctions-too-much-of-a-bad-thing/.

[23] Arya, “Economic Sanctions,” 28.

[24] Elliott, “Factors Affecting the Success of Sanctions,” 56.

[25] Eleanor Albert, “What to Know About the Sanctions on North Korea,” Council on Foreign Relations, last modified January 3, 2018, https://www.cfr.org/backgrounder/what-know-about-sanctions-north-korea.

[26] Robert McMahon, “UN Sanctions: A Mixed Record,” Council on Foreign Relations, last modified November 17, 2006, https://www.cfr.org/backgrounder/un-sanctions-mixed-record.

[27] Jean-Marc F. Blanchard and Norrin M. Ripsman, “Asking the Right Question: When Do Economic Sanctions Work Best?” in Power and the Purse: Economic Statecraft, Interdependnce and National Security, ed. Jean-Marc F. Blanchard, Edward D. Mansfield, and Norrin M. Ripsman (Portland: Frank Cass & Co., Ltd., 2000), 228, 229.

[28] Ibid., 224.  

[29] Ibid.,  244, 248.

[30] Joy Gordon, “Smart Sanctions Revisited,” Ethics and International Affairs 25, no. 3 (2011): 315.

[31] Currie, International Law: Doctrine, Practice, and Theory, 835.

[32] Ibid.

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