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III. Since the UN charter
2. Economic sanctions adopted outside the UN
The practice of inflicting economic damages is not the monopoly of the UN. To the contrary, it has been increasingly used by States unilaterally.
The Arab States were the first to resort to an economic boycott as a primary international policy at the end of World War II. They proclaimed in 1945 a boycott on goods that was produced by the Jewish community in Palestine, and they then extended the boycott to Israeli products when the state of Israel was proclaimed.38 The boycott has long remained in force until it gradually has faded since the late 1980s.
The USSR and its Easter European allies also had recourse, through the COM-ECON, to a boycott on all trade with Yugoslavia in 1948 as a result of the politi-cal rupture between Stalin and Tito. The sanction continued until relations were normalized between the two Parties in 1955.39
In 1951, the British Government had recourse to the economic weapon, in response to the nationalization by Mossadegh, the Iran’s nationalist prime minis-ter, of the Anglo-Iranian Oil Company, an oil company which was controlled until then by British persons. A complete boycott of Iranian products was enacted as a retaliation, coupled with measures to freeze Iranian assets located in Britain. The Mossadegh regime was thrown out of power only three years later,40 but it was not a consequence of the British boycott. It is now documented that this was the outcome of a coup organized by the CIA and the MI6, as acknowledged by the United States in 2013.
One must for sure mention the United States, which is rightly seen as being particularly active in the field of economic sanctions since the end of World War II. For example, the US Government used the economic weapon against the com-munist bloc and China during the Cold War period, especially prohibiting any export of sensitive technologies.41 Cuba, under United States sanctions since 1962,42 is also an emblematic example of the United States’ policy, which has also been illustrated with regard to Nicaragua at the time of the Sandinista regime.
An account of the latter can be found in the 1986 International Court of Justice Judgment in the Military and paramilitary activities in and against Nicaragua case, in which the American economic sanctions against Nicaragua are detailed and legally assessed.43 It should also be noted that after the USSR’s invasion of Afghanistan in 1979, the United States issued a cereal embargo on the Soviet Union then ruled by Premier Leonid Brezhnev. This “food weapon” proved inef-fective, as have been the sanctions against Cuba and Nicaragua, since the USSR then turned to European and other countries rather than the US to satisfy its grain
History of implementation of sanctions 89 needs.44 Despite the quite disputable success of this kind of policy, the United States have recourse to economic sanctions in its international relations since World War II.
The European Union has also been applying economic sanctions for a number of years as an international policy tool, not only pursuant to the decisions of the Security Council – which is not without its problems in the internal law of the Union, as is evidenced by the famous Kadi judgment45 – but also independently of the United Nations. One of the first cases for adoption of such a unilateral eco-nomic sanction regime dates back to the one adopted in 1982, against Argentina in the context of the Falklands War.46 These sanctions, taken at that time by what was still the European Economic Community on the basis of Article 113 of the EEC Treaty, which did not clearly empower the community to take action,47 had aroused concern on the part of the Organization of the American States. But these sanctions were withdrawn quickly, as soon as the Falklands war ended. Today the European Union clearly has the power to adopt decisions providing for the inter-ruption or reduction of economic relations with third countries, pursuant to Chap-ter 2 of Title V of the Treaty on European Union. These decisions must be adopted by EU members unanimously. The practical implementation of these measures takes the form of regulations and implementing regulations adopted pursuant to Article 215 of the Treaty on the Functioning of the European Union. Nowadays the European Union applies multiple economic sanctions regimes against many States, including Russia since the annexation of Crimea.
The Organization of American States also adopts economic sanctions. This was the case in 1960 against the Dominican Republic, and in 1962 and 1964 against Cuba. This was also the case between 1991 and 1996 against Haiti following the overthrow of the then government by a military coup.
Conclusion
In sum, one can indeed consider that the current international economic landscape is one where economic sanctions are “everywhere” since “everyone” has recourse to them in international relations. Even if, as we have seen, they are rooted in the most ancient international practice, especially in times of war, they now take many forms in times of peace – directed against States as such – or against per-sons belonging or close to governments, or opposed to them, as is the case with terrorists and their supporters. They inflict trade, financial, or monetary damages, with the aim of putting pressure on the target State or persons for convincing it or them to act or not act in a certain manner. Their consistency with international law, which is not the topic of this contribution, must of course be assessed in light of treaty law and human rights law, and also with general international law. In this regard, one basic point is that in principle a sovereign State is fully entitled to decide how to manage its own economic relations with other States. However, the so-called “secondary sanctions” appear far less acceptable.48 Their object is to force foreign persons that are not under the jurisdiction of the sanctioning State to cease any economic relation with the target State. Such secondary sanctions
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are not common49 but have been unilaterally decided in some cases, and quite fre-quently by the United States.50 Since their clear aim is to interfere with the exter-nal relations of other States, they are often denounced as contrary to internatioexter-nal law by the United Nations General Assembly or others.51
Notes
1 See, e.g., U.N. Doc. A/HRC/RES/24/14 (October 8, 2013), adopted by the UN Human Rights Council, para. 3.
2 Barry E. Carter, “International Economic Sanctions: Improving the Haphazard U.S.
Legal Regime,” California Law Review, Vol. 75 (1987), p. 1159, p. 1168, fn 18; De Gary C. Hufbauer, Jeffrey J. Schott, Kimberly Ann Elliott, and Barbara Oegg, Eco-nomic Sanctions Reconsidered, 3rd ed. (Peterson Institute for International EcoEco-nomics, 2007), p. 9.
3 M. Rathbone, P. Jeydel, and A. Lentz, “Sanctions, Sanctions Everywhere: Forging a Path Through Complex Transnational Sanctions Law,” Georgetown Journal of Inter-national Law, Vol. 44 (2013), pp. 1055, 1063.
4 C. Calvo, Dictionnaire Manuel de Diplomatie et de Droit International Public et Privé, édition de 1885 rééditée en 2009, p. 475, p. 53.
5 C.C. Joyner, “The Transnational Boycott as Economic Coercion in International Law:
Policy, Place, and Practice,” Vanderbuilt Journal of Transnational Law, Vol. 17 (1984), pp. 205–286, at pp. 210–212.
6 Delber L. McKee, “The Chinese Boycott of 1905–1906 Reconsidered: The Role of Chinese Americans,” Pacific Historical Review, Vol. 55, No. 2 (1986), pp. 165–191;
Shih-shan H. Ts’ai, “Reaction to Exclusion: The Boycott of 1905 and Chinese National Awakening,” The Historian, Vol. 39, No. 1 (1976), pp. 95–110; Sin Kiong Wong, China’s Anti American Boycott Movement in 1905: A Study in Urban Protest (2002), p. 232.
7 See The Osaka Chamber of Commerce and Industry, A Synopsis of the Boycott in China (1932), Trinity College Library, Moore Collection, available at <https://digi-talrepository.trincoll.edu/cgi/viewcontent.cgi?article=1041&context=mooreSin Kiong WONG>.
8 M. Diez de Velasco, “La protection diplomatique des sociétés,” Collected Courses of The Hague Academy of International Law, Vol. 141 (1974), p. 123. See also H.F. van Panhuys, The Role of Nationality in International Law (1959), pp. 109–125.
9 Ibid.
10 “Barcelona Traction, Light and Power Company, Limited,” Judgment, February 5, 1979, I.C.J. Reports 1970, pp. 3, 40, para. 60.
11 C. Anderson, “The Trading-with-the-Enemy Act,” American Journal of International Law, Vol. 12, No. 2 (1918), pp. 363–369; Carter, supra note 2, p. 1230.
12 D.A., Gross, “The U.S. Confiscated Half a Billion Dollars in Private Property During WWI: America’s Home Front was the Site Of Internment, Deportation, and Vast Property Seizure,” Smithsonian.com (July 28, 2014), available at <www.smithsonianmag.com/
history/us-confiscated-half-billion-dollars-private-property-during-wwi-180952144/>.
13 See, for a reference to this often cited speech, e.g., Carter, supra note 2, p. 1169, fn. 20.
14 See, on this provision as envisaged up to 1932, E. Clark, Boycotts and Peace: A Report by the Committee on Economic Sanctions (1932).
15 David Cortright and George A. Lopez, The Sanctions Decade: Assessing UN Strate-gies in the 1990s (2000).
16 U.N. Doc. S/RES/661 (1990).
17 U.N. Doc. S/RES/713 (1991).
18 U.N. Doc. S/RES/733 (1992).
History of implementation of sanctions 91
32 See J. Gordon, “Smart Sanctions Revisited,” Ethics & International Affairs, Vol. 25, No. 3 (2011), pp. 317–318.
33 M. Bossuyt, “The Adverse Consequences of Economic Sanctions, Economic and Social Council,” U.N. Doc. E/CN.4/Sub.2/2000/33, para. 63.
34 Millennium Report of the Secretary-General of the United Nations, “We the Peoples”:
The Role of the United Nations in the 21st Century (2000), p. 50.
35 This is taken from Gordon, supra note 32, p. 318.
36 This sort of sanction can also be damaging. If one of the opponents is better armed than the other, an arms embargo can be at its advantage and leave the other opponent with-out sufficient defense capacity. For example, during the siege of Sarajevo, the arms embargo imposed by the UN Security Council enhanced the disequilibrium between the Serbian and the Muslim forces. On this precise point, Sir Elihu Lauterpacht wrote a separate opinion in the Application of the Convention on the Prevention and Punish-ment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) case in which he stated: “95. The fourth and legally most relevant comment to be made on the resolution is that the embargo operates unequally between the two sides principally engaged in the conflict. The Serbians in Bosnia had (and have) the support of the Serbians in Serbia and the latter have the benefit of access to the stocks of arms of the Yugoslav National Army, the production of arms factories in Serbia and the import, in breach of the embargo, of arms and military equipment via the Danube and other routes. The Bosnian Muslims did not (and do not) have these advantages. . . . 102. . . . the inability of Bosnia-Herzegovina sufficiently strongly to fight back against the Serbs and effectively to prevent the implementation of the Serbian policy of ethnic cleansing is at least in part directly attributable to the fact that Bosnia-Herzegovina’s access to weapons and equipment has been severely limited by the embargo. Viewed in this light, the Security Council resolution can be seen as having in effect called on Members of the United Nations, albeit unknowingly and assuredly unwillingly, to become in some degree supporters of the genocidal activity of the Serbs and in this manner and to that extent to act contrary to a rule of jus cogens.” “Application of the Convention on the Prevention and Punishment of the Crime of Genocide,” Provisional Measures, Order, September 13, 1993, ICJ Reports 1993, p. 325, pp. 438, 441.
37 On this point, see J. Saura-EStapà, “The UN Security Council Ombudsperson: An Original Institution Still Under Construction,” Revista Catalana de Dret Públic, No.
54 (2017), pp. 185–195.
38 A.J. Sarna, Boycott and Blacklist: A History of Arab Economic Warfare Against Israel (1986), p. 286; N. Turck, “The Arab Boycott of Israel,” Foreign Affairs, Vol. 55 (1977), pp. 472–493; Joyner, supra note 5, pp. 216–221.
39 Ibid., p. 214; Muir J. Dapray, “The Boycott in International Law,” Journal of Interna-tional Law and Economics, Vol. 9, No. 2 (1974), pp. 187–204, at p. 189.
40 Joyner, supra note 5, pp. 214–215.
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41 Rathbone, Jeydel, and Lentz, supra note 3, p. 1064.
42 Ibid., pp. 1075–1081.
43 “Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America),” Merits, Judgment, June 27, 1986, ICJ Reports 1986, p. 14.
44 Rathbone, Jeydel, and Lentz, supra note 3, p. 1065.
45 ECJ, September 3, 2008, Kadi, C-402/05 P et C-415/05. In this case, the European Court of Justice considered that since the basic right of defense had not been respected by the UN Security Council before adopting its decision to sanction Mr. Kadi, nor by the European Council, which purely and simply transposed the UN decision in the European Union’s order, the sanction could not be implemented in the European Union.
46 Regulation (EEC.) n° 877/82, and Decision 82/221/ECCS.
47 J.-L. Dewost, “La Communauté, les Dix et les ‘sanctions’ contre l’Argentine – De la crise iranienne à la crise des Malouines,” Annuaire français de droit international, Vol.
28 (1982), pp. 215–232.
48 C. Fabre, “Secondary Economic Sanctions,” Current Legal Problems, Vol. 69, No. 1 (2016), pp. 1–30.
49 For example, the European Union does not adopt such secondary sanctions.
50 For example, the economic sanctions regime decided by Arab States against Israel included secondary sanctions; the United States frequently adopts secondary sanctions to economically isolate Syria and Iran.
51 On this point, see, for example, Alleged Violations of the 1955 Treaty of Amity, Eco-nomic Relations, and Consular Rights (Islamic Republic of Iran v. United States of America), Request for the indication of provisional measures, Order of October 3, 2018, Declaration of ad hoc Judge Momtaz, paras. 15–28.
Introduction
Since the end of the Cold War, the United States has employed dozens of sanc-tions in a variety of contexts in order to manage a plethora of challenges. Targets of sanctions have included terrorist groups and human rights violators, states and individuals, banks and corporations, and all manner of illicit activities. Sanc-tions also enjoy a somewhat unprecedented amount of bipartisan legitimacy, with many sanctions debates centering on how much pressure to apply through their use rather than whether they ought to be contemplated in the first place. As an example, even as the US Congress debated whether to support the 2015 Joint Comprehensive Plan of Action (JCPOA) reached by the United States, its nego-tiating partners, and Iran, the continued persistence of US sanctions against Iran was a selling point for those who favored the agreement.
It is almost inconceivable to describe a future of US foreign policy in which sanctions do not play at least some role, though there are many signs that US facility with sanctions imposition will be matched by the retaliatory and defensive capabilities of adversaries. Even the Trump Administration, which was initially run and staffed at the senior most levels by a combination of businesspeople and generals, has seen fit to employ sanctions in managing a variety of challenges, including North Korea’s nuclear program and Venezuela’s collapse into economic ruin and political tyranny. Yet, for all the current euphoria around sanctions, they have a mixed legacy in US history, playing a vital role in some areas and poten-tially an inflammatory role in others. Moreover, the limits of sanctions power are also beginning to be realized.
In this chapter I will examine the history of US sanctions; their present legal, political, and organizational structures; and their use in a variety of present and possibly future conflicts. Throughout, I will underscore three main themes:
1. Sanctions have achieved a preeminent place in US foreign policy because they appeal to US strengths and address US weaknesses.
2. The success of sanctions to date owes equally as much to the attractiveness of the United States intrinsically as to the policy goals that they serve.