Unilateral and Extraterritorial Sanctions Symposium: Judging the Legitimacy of Sanctions – A Perspective from Latin America

[Stefano Palestini is an Assistant Professor at the Institute of Political Science, Pontificia Universidad Católica de Chile.]

Imposing sanctions is a common practice in the contemporary international order.  As Erica Moret (chapter 2: 23-24) shows, since 1990, the United States and the European Union (EU) have imposed 150 and 75 sanction regimes respectively. Furthermore, more than half of EU sanctions have been imposed autonomously from the United Nations Security Council (UNSC), the third most frequent sender. Latin America is, of course, part of this reality. Latin American governments have implemented UNSC sanctions and have also imposed sanctions as part of regional intergovernmental organizations (RIOs). Latin American peoples, governments, companies, and individuals have also been targets of sanctions as the infamous case of Haiti in 1991, the longstanding US embargo against Cuba, or the most recent combined sanction regimes against Venezuela and Nicaragua testify.

As the chapters in the Handbook clearly illustrate, sanctions are social relations between senders, targets, and audiences. Most of the large literature on international sanctions has focused on the diverse aspects of the senders/targets side of the relationship. Instead, in this commentary I would like to focus on the issue of the legitimacy of sanctions and, therefore, bring audiences to the fore. I will use Latin American audiences – the public opinion and foreign-policy actors – as the foil to explore how people perceive and judge the legitimacy of sanctions. I hope these notes can motivate a reflection about legitimacy also in other regions of the globe.

How is the practice of sanctioning states perceived in Latin America? Is there variation in the way in which Latin Americans assess the legitimacy of different sanction senders and episodes? Public opinion studies on the legitimacy of sanction in Latin America are in its infancy. However, anecdotal evidence suggests a nuanced picture. On the one hand, the US embargo against Cuba has loomed large in the negative perception of the legitimacy of sanctions by the Latin American public. Even in July 2021, when Cubans started unprecedented massive demonstrations against the regime, US sanctions not only provided the Cuban government with a scapegoat to deviate international criticism, but they were also invoked in the public debates, including social media, by citizens across Latin America to justify the deleterious situation on the island.

On the other hand, there are also reasons to believe that the public perception of sanctions is becoming more nuanced with the new regimes imposed against Venezuela and Nicaragua. For instance, an intense debate about the legitimacy and effectiveness of sanctions has occupied the public sphere of various Latin American countries since the worsening of the crisis of democracy in Venezuela from 2015 onwards. Differently from the case of Cuba, sanctions have been understood as a legitimate way to bring Nicolás Maduro to the negotiation table and to halt the humanitarian and migration crises. A recent study has shown that when sanctions are framed as targeted measures against members of Maduro’s regime with the explicit goal of protecting human rights, the public attitude towards sanctions is more positive. This suggest that the public is concerned with targetedness and appropriateness when they assess sanctions legitimacy (on the issue of targetedness vs. comprehensiveness of contemporary sanctions, see Erica Moret, chapter 2). Sanctions were also discussed in social media as a legitimate alternative to Donald Trump’s threat of the use of force, which was seen as illegitimate by Latin American audiences across the board with the sole exception of the most radical sectors of the Venezuelan opposition. In short: the Latin American public opinion has started to perceive sanctions as possibly legitimate international tools that stands between wars and words, as famously put by Peter Wallenstein and Carina Staibano.

The perception of legitimacy is also nuanced when it comes to more informed actors, such as foreign-policy actors. Here I rely on my current project Punitive Democratization: The Politics of Sanctions in Regional Organizations in the Americas” (FONDECYT 11190134). As part of the project, I have analyzed judgement-statements extracted from press news, tweets, official declarations, and semi-structured interviews. The statements are made by foreign-policy actors from eleven South American governments with different degrees of ideological affinity with the targeted regime of Nicolás Maduro.  Foreign-policy actors are an interesting audience to study not only because they have expert knowledge (most of them are diplomats with studies in international law and politics), but especially because their judgements have a direct influence in the positions that their states will take with regard to the implementation or contestation of present and future sanction regimes.

A first finding of the study is that Latin American foreign-policy actors make a stark distinction between UNSC sanctions and all other senders. Even actors who have been close allies of the Venezuelan regime do not hesitate to say that UNSC sanctions against Maduro would be legitimate. Of course, this is a counterfactual analysis as no UNSC sanctions have been imposed thus far against Venezuela. Yet, it is noteworthy that the UNSC provides a sort of yardstick against which the legitimacy claims of other senders are evaluated, which is consistent with what has been reported in the Handbook for other regions (cfr. Hennie Strydom chapter 3, for the case of South Africa; Rishika Chauhan chapter 4, for the case of India; Congyan Cai chapter 5, for the case of China).

When we let aside the UNSC and we confront Latin American foreign-policy actors with the legitimacy claims of various unilateral and multilateral senders, some interesting distinctions emerge. The first distinction has to do with what Erica Moret (chapter 2) has called the “targetedness” of sanctions. The more genuinely targeted a sanction is, the more likely it is to be recognized as legitimate by the Latin American elites. This is an interesting finding since many targeted sanctions are becoming de facto comprehensive, as the US sanctions against the Venezuelan oil company PDVSA exemplify. In their legitimacy assessments, Latin American foreign-policy actors also evaluate the normative bases on which sanctions are grounded as well as the quality of the procedures through which they are implemented. Here, a comparison between the sanctions imposed by the Common Market of the South (MERCOSUR) and those imposed by the EU can be illustrative. MERCOSUR was born in 1991 as a regional economic organization, but by the end of the 1990s it had adopted a democracy clause known as the Protocol of Ushuaia which established not only democracy as a condition for becoming a member, but also enabled the organization to adopt different measures including the suspension of a state in cases of democratic breakdown. On the bases of this protocol, MERCOSUR suspended indefinitely the membership rights of Venezuela in August 2017, including its participation in the custom union. Even though foreign-policy actors – including those closer to Maduro’s regime – recognize the legality of the suspension based on the Protocol of Ushuaia of which Venezuela was a signing party, they judge MERCOSUR actions overall as illegitimate. The reasons for this discrepancy between legality and legitimacy, so to speak, is based on the alleged political motivation of the governments of Argentina, Brazil, and Paraguay in suspending Venezuela. In other words, despite being appropriate according to a shared normative framework, MERCOSUR sanctions are seen as led by Realpolitik and by intentions other than the “defense of Venezuelan democracy”.

Interestingly, we find the opposite evaluations when foreign-policy actors assess EU sanctions against Venezuela. The Council of the EU has imposed a line of restrictive measures against a list of Venezuelan individuals since November 2017, even though there is no binding democracy clause equivalent to the Protocol of Ushuaia between the EU and Venezuela. In fact, the EU stands out as the only regional organization that sanctions states which are not part of their membership. Theoretically, all this should amount to a negative appraisal of EU legitimacy claims, especially in the Global South where accusations of imperialism and neocolonialism fall on fertile ground. However, most Latin American foreign policy-actors – including those with a certain level of affinity with Maduro – deemed EU sanctions as more legitimate than US or MERCOSUR sanctions on the grounds of their decision-making procedures. Issues such as the transparency of the procedures, the participation of different EU institutions in the decision-making process, the targetedness of the measures, the access to legal remedies by targeted individuals, and the strong normative bases are cited as conferring procedural legitimacy to EU sanctions (on the EU practice with regard to unilateral sanctions, see Charlotte Beaucillon, chapter 7).

One can draw important lessons from this brief comparison of senders. First, it is clear that international organizations rank better in terms of legitimacy than single states acting unilaterally or in coalition. The US sanctions against Venezuela are considered illegitimate across the board even by diplomats who are harsh critiques of Maduro’s regime. The contestation of unilateral sanctions is not exclusively explained by “Anti-Americanism”. Many foreign-policy actors contested the legitimacy of unilateral measures imposed by the Grupo de Lima – a coalition of Latin American governments aiming at regime change in Venezuela – on the same grounds invoked to reject US sanctions: because they lacked sound legal bases and were politically motivated.

Second, even though international organizations are more positively assessed than single states because they have a shared normative framework and established decision-making procedures, this is not enough to be considered legitimate as the case of MERCOSUR and the enforcement of the Protocol of Ushuaia indicates. It seems that in order to be legitimate senders, international organizations must be perceived as having procedures that prevent the organization from being captured by the interests of the most powerful member states. To put it differently, the organization must have a higher level of authority over and autonomy from its members in order to be perceived as procedurally legitimate. Seemingly, this could explain why an organization with self-arrogated authority to punish individuals and companies from non-member states, such as the EU, ranks nonetheless better in terms of legitimacy than other regional organizations in the eyes of Latin American foreign-policy actors.

What do these insights from Latin America say about the broader issue of the legitimacy of sanctions? And more importantly, why should we care about legitimacy in the first place? First of all, as the Handbook has made patently clear, sanctions – and particularly unilateral sanctions – are here to stay as a recurrent practice in international politics as long as the dysfunctional governance of the UNSC is not addressed and reformed. Thus, we need to understand how audiences evaluate and judge legitimacy claims because only legitimate actors and practices will prevent us from descending into a world exclusively commanded by asymmetries of power and Realpolitk. In a nutshell, the legitimacy of sanctions is a crucial element of a legitimate global governance, and it will continue being in an international order in which China and other emerging powers will also claim the legitimacy to punish what they will perceive as international wrongdoings. Second, there are good reasons to believe that sanctions that are broadly perceived as legitimate will most likely also be more effective. As the effectiveness of sanctions depends on a series of intermediaries in a chain of indirect governance, those intermediaries need to perceive sanctions as legitimate in order to cooperate and implement those sanctions.

Finally, international sanctions are no longer (if they ever were) a practice circumscribed to “sanction experts” and “foreign-policy makers”. Sanctions are increasingly politicized and more people care about the intentions of the senders, the design of the measures, and their impact on the population. Chilean and Uruguayan citizens care about sanctions against Venezuela because their own lives are affected by economic turmoil and migration flows, even if they live thousands of kilometers from Caracas and do not share any physical border. Furthermore, and as in many realms of politics, social media is becoming a multiplier of the politicization of sanctions. In this context, the analysis of the legal, economic, and political aspects of sanctions must pay attention to the way in which people perceive and judge the legitimacy of this practice in international politics, the practice of punishing states.