28 Feb Unilateral and Extraterritorial Sanctions Symposium: Unilateral Sanctions and Geoeconomics – What Role for International Law?
[Larissa van den Herik is a professor of public international law at the Grotius Centre for International Legal Studies at Leiden University.]
As the balance of world power is tilting east with China’s economic might and its increased international political power ending US hegemony, it is said that we are entering into a new geoeconomic world order in which economic instruments follow the logic of conflict rather than that of cooperation. In a similar vein, it is said that we are at the cusp of an age of unpeace; an age where connectivity and globalization are weaponized through economic and digital warfare and through the instrumentalization of migration flows. In such a dynamic of tension and rivalry, interdependence is no longer seen as an inevitable road toward concord but rather as something that creates leverage to constrain and impose on the other. Against this background of a renewed quest for dominance over the global economy and consequently a gridlock of international institutions, the practice of unilateral sanctions flourishes. It intensifies and it diversifies. Or, in the words of Charlotte Beaucillon in her Research Handbook on Unilateral and Extraterritorial Sanctions, the practice is expanding and accelerating to such an extent that she even speaks of a “global run to unilateral and extraterritorial sanctions” (chapter 1). This practice, she points out, seems to flout core premises and principles of the post-Cold War system, including the very notions of multilateralism and sovereign equality. It even interrogates the role and function of international law as such.
The question how unilateral sanctions are and should be regulated by international law is considered in the Research Handbook on Unilateral and Extraterritorial Sanctions that Beaucillon has edited, and that has been published by Edgar Elgar Publishers. Answering this question is a herculean task given the definitional challenge and the rise of informal sanctions. Unilateral sanctions come in all shapes and forms and they are imposed for an ever wider variety of purposes. Their legality mostly depends on the web of bilateral and multilateral obligations that mutually apply between the sender and recipient of the sanctions. Sanctions are often formal and based on an explicit domestic legal regime, but in her chapter (chapter 12) Sabrina Robert-Cuendet also notes the turn to informal sanctions (a new frontier, she asks?). These informal sanctions operate under the radar of law and can include threats to companies to curb or complicate market access. Informal sanctions can also be disguised as sanitary controls or custom-related delays (Pierre-Emmanuel Dupont, chapter 21). Adding to the complexity is the absence of state articulation on what the international law on unilateral sanctions is or should be combined with muted reactions to excessive sanctions practice and particularly secondary sanctions (Yann Kerbrat, chapter 10). Moreover, state practice on sanctions is inconsistent or evolving as certain key players, such as India, China, and Russia, who have traditionally condemned unilateral measures as coercive, are gradually also resorting to coercive means themselves in more open and explicit, even if at times informal, manners as detailed in the chapters of Rishika Chauhan (chapter 4), Congyan Cai (chapter 5) and Ivan N. Timofeev (chapter 6) respectively. Hence, to make matters even more complicated, we see that important players in the sanctions domain are switching roles. Similarly, the EU – traditionally an important sanctions sender, often in the slipstream of the US – is now in the course of discussing an anti-coercion instrument to defend itself against coercive trade and investment measures by third states (for more see here). From being mostly a sender (as also discussed in chapter 7 by Charlotte Beaucillon), the EU thus now also becomes a defender against sanctions.
The EU anti-coercion instrument is presented as part of Brussels’ trade policy rather than its foreign policy. This can probably to some extent be attributed to a need for expedited decision-making (EU foreign policy decision-making requires unanimity), but it also underscores the convergence between economic and security agendas that is ongoing. Unilateral sanctions are nowadays discussed by international economic lawyers as well as international security lawyers, while generalists still try to test unilateral sanctions against the law on state responsibility and to squeeze them into the notions of retorsions or countermeasures. Meanwhile human rights lawyers are also raising their voice.
These voices are brought together in the outstanding Research Handbook on Unilateral and Extraterritorial Sanctions. Given the unstructured nature of the practice, the misfit with existing legal notions (also discussed by Alexandra Hofer, chapter 11) and the ongoing seismic shifts in international relations more broadly, unilateral sanctions are uneasy terrain for the international lawyer. Nonetheless, the Research Handbook critically interrogates the bourgeoning practice and it offers many compelling insights and standpoints. It does not state the law on unilateral sanctions, as there is no such thing in any coherent fashion, but it brilliantly sets out the assemblage of relevant legal notions and perspectives through its collection of excellent chapters. The international legal regime governing unilateral and extraterritorial sanctions is set out in part II with chapters on the interrelationship between UN and unilateral sanctions (chapter 9 by Jean-Marc Thouvenin), the theory of jurisdiction (chapter 10 by Yann Kerbrat), state responsibility (chapter 11 by Alexandra Hofer), as well as chapters considering core components of international economic law, namely investment law (chapter 12 by Sabrina Robert-Cuendet) and WTO/trade law (chapter 14 by Lena Chercheneff), with special attention in a separate chapter for the vexed issue of blocking statutes (chapter 13 by Daniel Ventura).
The issue of human rights is tackled separately in part IV, under the heading of “impact on human rights”, even though of course, human rights law could also be presented as part of the legal regime governing sanctions and perhaps even as its central component. Yet, although the disastrous humanitarian impact of sanctions is often exposed, the arguments regarding the applicability of human rights law or international humanitarian law to sanctions are not straightforward and require flexible approaches to the doctrine of extraterritoriality or the existence of an armed conflict as detailed by Ioannis Prezas in his superb chapter (chapter 22). And even if human rights law was considered applicable, a quest for accountability for human rights violations will face a nearly insurmountable problem which Prezas labels the “causality conundrum”: how to prove a link between the violations of specific rights of individuals and the imposition of sanctions, in particular when there is also the targeted state in between which may itself contribute to a dismal human rights situations through its own policies. This problem of causality is exacerbated in case of coordinated sanctions imposed by a variety of sanctions senders, or by the existence of humanitarian derogations which are overly complex and dissuasive and thus ineffective. But then who can be held accountable for the chilling effect of their ineffectiveness?
Even if negative humanitarian impact is often mentioned as one of the main arguments against unilateral sanctions, it is actually not inherent in those sanctions per se nor is it a unique aspect to those types of sanctions alone. As pointed out by Erica Moret in her chapter (chapter 2), UN sanctions can also have, and indeed have had, negative humanitarian impact. Such impact is in fact a corollary of comprehensive, that is untargeted, sanctions regardless of legal base. Even unilateral sanctions that are classified as retorsions under the law of state responsibility, and thus not unlawful according to that area of law, may conceivably have such impact in certain particular circumstances (a similar argument is made by Dupont in his chapter, p. 373). Institutional sanctions that regional organizations apply against own member states are often – and also in this Research Handbook – left out of the equation of sanctions discourse because they are governed by their own legal framework, that is the framework guiding the organization as such. Nonetheless, and depending on their design, also these types of sanctions may unduly affect the civilian population with the recent ECOWAS sanctions on Mali as a potential case in point. The trend towards ‘recomprehensivation’ of sanctions, also through states teaming up to impose coordinated sanctions, increases the risks of negative impact on the population. To reiterate, this impact is unrelated to the precise legal basis underlying the sanctions and the setting in which they are adopted and is rather a consequence of design, notably their ‘untargetedness’.
The most recent example of a dramatic humanitarian catastrophe brought about by international economic strangulation is the near-collapse of the Afghan state. In the case of Afghanistan, the sanctions regimes in place were a combination of UN and unilateral sanctions. The most pertinent questions that arose were not sanctions-regime specific, i.e., they were unrelated to their legal basis, but rather concerned with questions of scope and sanctions design. Specifically, questions arose as to what the implications were of the inclusion of sanctioned persons in the Taliban administration. The assets of those listed individuals had been frozen. Typically sanctions regimes also prohibit third persons from contributing or providing funds, goods or services that may benefit listed persons. Therefore, humanitarian agencies, foreign donors and banks were uncertain whether this also concerned financial transactions with the government departments that were headed by any of the listed persons. The targeted sanctions thus became de facto comprehensive sanctions. Emanuela-Chiara Gillard, from the prominent think-tank Chatham House,argued that a distinction had to be made between an individual and a government department and that targeted sanctions “do not prohibit providing resources to a government department headed by a designated person.” This interpretation, which logically flows from the concept and idea of targeted sanctions, was not clarified in a timely and sufficient manner by the relevant sanctions senders. The uncertainty created an enormous chilling effectfor humanitarian organisations, which remained unsure whether any cooperation with Afghan authorities would be regarded as falling within the scope of any of the sanctions regimes. The situation was remedied per sanctions regime. For the UN sanctions UN Security Council Resolution 2615 (2021) carved out space for humanitarian assistance, but only for a year. The Special Rapporteur on Promotion and Protection of Fundamental Freedoms while Countering Terrorism likened the short-lived humanitarian exemption to “shuffling deck chairs on the titanic” and called for a more principled approach.
From a human rights perspective, there might indeed be merit in the formulation of more precise general principles for sanctions design applicable across the board regardless of the precise institutional or legal setting within which the sanctions are adopted and applied. These general principles for UN sanctions, non-UN or unilateral sanctions and institutional sanctions alike could make the case that humanitarian action is generally exempted. They could also specify standards for legal protection for targeted individuals, an issue that is masterfully explored by Moiseienko in his chapter (chapter 23). In particular UN sanctions regimes still fall short on this with Like Minded States pushing for further change and for the creation of due process protection for all regimes, also beyond the ISIL/Al Qaeda sanctions. With the increase of states unilaterally resorting to sanctioning individuals, a set of principles on process and legal protection and also on the relationship between sanctions and criminal justice measures (something Moiseienko also calls for in his chapter) would be welcome. In this light, General Comment 8 (1997) on the relationship between economic sanctions and respect for economic, social and cultural rights might warrant broadening and updating.
Sanctions are here to stay, that much is clear, also after reading the Reseach Handbook. Calls for full renunciation of sanctions as an economic instrument and/or a foreign policy tool may not be realistic. The Research Handbook illustrates how states that were originally averse to sanctions are now more openly embracing this tool. That said, the chapter of Strydom also stands out (chapter 3). He narrates how South Africa changed position the other way around. Some South African political actors and scholars converted from being a staunch supporter of anti-Apartheid sanctions to being a crit. “In retrospect”, Strydom writes, the ANC’s position on sanctions, was “more of matter of expediency than of principled choice” (p. 44). In his analysis of the alliances that South Africa forms part of which are critical of sanctions, including the African Union and the Non Aligned Movement (NAM), Strydom exposes their rather shallow engagement. He calls for more “thorough and substantial responses by developing states – which are more often than not the target of coercive unilateral measures – than the platitudes generated by their summit and assembly meetings.” (p. 54). Moving forward, it is indeed vital that states other than sanctions senders become involved in thought processes and law-making on sanctions. Also Latin American states, whose perspectives are unfortunately not discussed in a dedicated chapter, can play an important role in this regard as particularly Brazil has done in the past (Brazil has traditionally been critical on developing the law on countermeasures given the material inequality of states). In a similar vein as Mexico is spearheading initiatives for more inclusive discussions on the law on self-defence, Brazil or another Latin American state could come forward to further the law on sanctions. No doubt, this Research Handbook with its comprehensive and critical approach will be most useful for any potential future steps to regulate sanctions.