1 States Are Increasingly Using Unilateral Economic Sanctions against the Background of Their Questionable Effectiveness and Disputed Legality

The history of economic coercion dates back to the times of ancient Greece. These early attempts to exert economic pressure were accompanied by the use of military force. The remarkable success of the economic sanctions imposed by the United States and the United Kingdom during World War i instilled political leaders with high hopes for their future potential. President Woodrow Wilson, anticipating the effectiveness of economic sanctions, called them a “hand upon the throat of the offending nation.”¹⁷⁰¹

This enthusiasm was reflected in Article 16 of the Covenant of the League of Nations. This provision obligated states to impose economic sanctions against any member of the League that resorted to war, in violation of its obligations under the Covenant. Historians describe the rationale behind this obligation in terms of “[the] hope that the threat of facing universal economic sanctions would lead countries to reconsider before launching the war.”¹⁷⁰² However, the collective economic sanctions prescribed by the Covenant met the same fate as the League of Nations itself.¹⁷⁰³

The Charter of the United Nations empowers the Security Council to authorise collective economic sanctions, which are binding on UN Member States. By the end of the Cold War, the Security Council had exercised this power twice. In the meantime, states habitually relied upon unilateral economic sanctions. These sanctions pursued a range of objectives, including behaviour modification, punishment or sending a signal to a targeted country or to a third country.¹⁷⁰⁴

The practice of imposing unilateral economic sanctions inspired protracted legal debates about their legality and effectiveness. In chapter 1 of this book, major studies on the effectiveness of economic sanctions were analysed and presented, which emphasise that individual states are faced with the need to find a balance between the costs incurred and the potential success of economic sanctions.¹⁷⁰⁵ Another valuable contribution of this debate to present-day sanctioning policies is the finding that the “pain-gain” formula is not universally applicable. More specifically, the severity of the economic pain inflicted is not always proportional to the probability of a successful outcome. This conclusion provoked further discussions of the particular mechanisms through which the impact of economic sanctions is channelled. This new approach enabled political scientists and economists to focus on the contribution of the various factors to the overall success of economic coercion. The results of these intellectual endeavours paved the way for more narrowly construed and efficient sanctioning programmes.

Unilateral economic sanctions are a grey area in public international law. Even the definition of the term “sanction” is controversial. From the perspective of public international law, various forms of economic restrictions may fall under such legal categories as retorsion, reprisal, countermeasures, third-party countermeasures and sanctions. The boundaries of these categories remain blurred.

Political considerations haunt the discussion of the legality of unilateral economic sanctions. Paradoxically, this strong divide between states is not reflected in state practice. Indeed, as illustrated in this study, even the staunchest opponents of such unilateral measures – the Russian Federation and China – rely upon unilateral sanctions to advance their foreign policy agenda.

This political rift laid the foundation for two legal arguments. First of all, it was contended that the use of economic coercion is prohibited under Article 2(4) of the UN Charter. This argument implies that the prohibition of the use of force enshrined in Article 2(4) also entails a prohibition on the use of economic force. While a few legal scholars endorse this position, the majority agree that the prohibition of the use of force should be interpreted narrowly. Second, it was argued that the principle of non-intervention is breached by states that rely upon unilateral economic sanctions. Our enquiry has shown that the numerous declarations adopted under the auspices of the UN do not shed much light on the legality of unilateral economic sanctions. Further analysis of the legal scholarship and icj pronouncements lend support to the conclusion that only coercive economic measures that intervene in the domaine réservé of a state may be taken to encroach on the principle of non-intervention. Despite this conclusion, the distinction between forms of economic coercion that can be defined as “pressure,” “interference” or “intervention” is not clearly established.

Attempts to recognise the legality of unilateral economic sanctions revolve around the idea that these restrictive actions can be justified either as legal countermeasures or third-party countermeasures. Our analysis suggests that only a tiny subset of unilateral economic sanctions can be justified as legal countermeasures. This outcome is the logical result of the narrow definition of an injured state embedded in the Draft articles, as well as of the absence of an explicit entitlement to impose countermeasures granted to non-injured states. The legality of the third-party countermeasures – or “solidarity measures,” as they are often referred to – has been the subject of an extensive legal debate. The final text of the Draft articles is equivocal regarding the legality of third-party countermeasures. The legal deliberations on these countermeasures that followed the adoption of the Draft articles confirmed the abundance of the state practice, and thus called into question the conclusions of the ilc that this practice is embryonic. Notwithstanding the voluminous literature on the subject, the matter is far from settled.

In their efforts to enhance the effectiveness of economic sanctions, states design them in ways that raise the question of their compatibility with the established principles of jurisdiction in international law. A strand of the literature discusses the unlawful extraterritoriality of unilateral economic sanctions. However, this literature focuses, as a rule, on a particular sanctions regime. In this study, I attempt to identify types of unilateral sanctions that are particularly prone to legal contestation as being unlawfully extraterritorial. The results of this enquiry demonstrate that there are different types of unilateral sanctions which are extraterritorial and which cannot be justified under the existing principles on ascertaining jurisdiction in international law.

Unilateral financial sanctions can also be unlawfully extraterritorial. In order to illustrate how unilateral US financial sanctions apply extraterritorially, we discussed a recent case that was decided by a US court. In that particular dispute, a US domestic court reaffirmed the jurisdiction of the United States over conduct that took place entirely abroad. A foreign national was accused of “violating U.S. law for agreeing with foreign persons in foreign countries to direct foreign banks to send funds transfers from foreign companies to other foreign banks for foreign companies.”¹⁷⁰⁶ The only nexus that existed originated “out of the incidental involvement of a U.S. bank at some mid-point in the payment chain of a transaction that originated from a foreign country and occurred between two foreign entities.”¹⁷⁰⁷ My analysis concluded that this newly emerged principle of ascertaining jurisdiction, which is called correspondent-bank account jurisdiction, is questionable.

The growing tendency to rely upon unilateral economic sanctions targeting central banks, heads of state and other high-ranking government officials was considered. The background against which sanctions of this kind have been evaluated are the immunities granted under international law to states, heads of state and senior government officials. The part of the study in which these legal questions were tackled concluded with the following observations. First and foremost, the extent to which state immunity guarantees protection to the assets of central banks is questionable. Second, the immunity of a head of state may potentially entail the freedom to travel abroad, and hence travel bans imposed on acting heads of state may violate this entitlement. It is debatable, however, whether freezing the assets of the acting head of state encroaches on immunity entitlements. Third, the scope of the immunities granted to other high-ranking government officials remains uncertain, and thus we are deprived of the possibility of making a definite pronouncement on whether unilateral economic sanctions infringe these immunities.

It is well established that various types of unilateral economic sanctions are inconsistent with the fundamental principles of wto law. Our analysis confirmed that this conclusion stands, with one notable exception, namely that export restrictions on services are less prone to be identified as wto inconsistent than other types of unilateral sanctions.

2 Faced with a Need to Respond to the Instances of Grave Human Rights Violations, States Impose Unilateral Sanctions Even Though Their Legality Is Not Yet Settled and Other Mechanisms of Human Rights Enforcement Exist

This study not only analysed the legality of unilateral economic sanctions irrespective of their objectives, but also conducted an analysis of the legality of unilateral economic sanctions imposed on human rights grounds. To set the context for this discussion, the international enforcement of human rights was examined.

Chapter 3 of this study was devoted to the analysis of the treaty-based mechanisms of international human rights enforcement, as well as to the contribution of the Human Rights Council and the Security Council to human rights protection. The protection of those human rights that have gained a special status, such as jus cogens and obligations erga omnes, was also discussed.

Our analysis revealed that the overwhelming majority of the core international human rights treaties (nine out of ten) prescribe an identical enforcement mechanism. The only obvious exception is the Convention on the Prevention and Punishment of the Crime of Genocide, which by its very nature cannot entail a reporting obligation or an individual complaints procedure. Nonetheless, this convention contains a compromissory clause that grants jurisdiction to the icj, and the court has been engaged in several disputes in which compliance with the obligations under this convention was adjudicated.

The enforcement mechanism of the core international human rights treaties comprises the reporting obligation, interstate and individual complaints procedures, an inquiry procedure and the possibility to initiate a dispute before the icj. Each of these elements suffers from a number of deficiencies that undermine the ultimate goal of improving human rights protection globally. By way of illustration, we should recall that states often neglect their reporting obligations or ignore the recommendations prepared by the human rights committees. The interstate complaints mechanism is not frequently used. For example, two complaints submitted by Qatar in March 2018 against Saudi Arabia and the uae represented “the first time that a human rights treaty body receive[d] an inter-state communication.”¹⁷⁰⁸ The individual complaints mechanism does not offer any effective remedy to the affected individuals. The disputes that were brought before the icj reflect the states’ desire to protect their own citizens. Notably, the recent dispute initiated by the Gambia against Myanmar is the only exception.

Additional protection that is guaranteed to human rights that gained a special status of jus cogens or obligations erga omnes is hampered by the definitional ambiguity of both concepts. Furthermore, the normative implications of these concepts are not well defined.

To complete the picture of international human rights protection, the role of the Human Rights Council and the involvement of the Security Council were reviewed. I argued that the political nature of these bodies deprives them of the possibility to effectively respond to instances of appalling human rights atrocities. Indeed, the lack of a coordinated response to the events in Rwanda, Kosovo, Darfur and Syria offer evidence to support this contention.

In order to answer the question of whether unilateral economic sanctions imposed on human rights grounds are susceptible to the same legal contestations as other types of unilateral economic sanctions, the interrelations between these sanctions and diverse fields of international law was analysed. To begin with, the interrelations between unilateral human rights sanctions and the principle of non-intervention were examined. There is no one generally accepted opinion on the matter. The literature review confirmed that the sharp divide between developed and developing countries with respect to the lawfulness of unilateral economic sanctions, including human rights sanctions, still exists. This disagreement is clearly reflected in the voting patterns at the UN General Assembly, where a group of developing states have made countless attempts to adopt resolutions condemning unilateral economic sanctions as illegal instruments of pressure.

The impossibility of justifying unilateral human rights sanctions as legal countermeasures has been well described by James Crawford: “Human rights obligations are not, in the first instance at least, owed to particular states, and it is accordingly difficult to see how a human rights obligation could itself be the subject of legitimate countermeasures.”¹⁷⁰⁹ The legality of third-party countermeasures has been debated at length within the international community. Nonetheless, the voluminous literature on the subject does not provide absolute certainty on the legal status of third-party countermeasures.

Efforts to bring justice to victims of egregious human rights violations often result in economic sanctions imposed against heads of state, heads of government and other high-ranking government officials. The states imposing these measures contend that human rights norms trump the immunities granted to such individuals under customary international law. This study has shown that unilateral economic sanctions can indeed encroach on the immunities granted to the states, heads of state, and other senior government officials. However, the possibility of justifying these restrictions by invoking human rights considerations is far from settled. Existing icj jurisprudence, which is supported by the views of legal scholars, is sceptical of such a possibility.

Before we discuss the possibility of justifying unilateral human rights sanctions under the wto exception clauses, one observation is warranted here. It should be noted that our analysis focuses on general economic sanctions, implying that these restrictive measures are not related to the process and production methods. General economic sanctions are trade-restrictive measures employed to remedy human rights violations, such as genocide, the denial of basic human rights and the use of torture, and are thus not related to particular goods or services.

The possibility of justifying wto-inconsistent human rights sanctions under the public morals exception and the national security exception embedded in the wto Agreements was analysed. Regarding the justification under the public morals exception, I concluded that the stringent requirements of the necessity test preclude a significant part of general economic sanctions from being justified under this exception clause. Thus, only a subset of general economic sanctions imposed on human rights grounds can be justified under the public morals exception.

The analysis of the panel’s pronouncements on the ambit of the self-judging nature of the national security exception reveals that the panel decided that the clause has objective, as well as subjective elements. The broadest exception allows for the justification of trade-restrictive measures “taken in time of war or other emergency in international relations.” The panel’s definition of “other emergency in international relations” is broad. Nonetheless, one should bear in mind that the definition of “emergency in international relations” explicitly mentions that the situation that qualifies as an emergency should be “engulfing or surrounding a state.” Thus, it remains unclear whether a wto Member can impose unilateral economic sanctions to redress human right violations occurring far from its territory and to justify such measures under the national security exception. The inevitable conclusion that can be drawn from these findings is that the legality of the unilateral economic sanctions imposed on human rights grounds is debatable.

3 The Doctrine and Principle of Common Concern of Humankind May Contribute to the Enhanced Protection of Human Rights

The concept of common concern has been enshrined in numerous international agreements and declarations. Furthermore, over the past two decades, the literature has abounded in claims that various collective action problems ought to be acknowledged as common concerns. Despite these developments, the legal implications of the concept of common concern remain underdetermined.

Against this backdrop, the doctrine of Common Concern of Humankind, which entails a number of well-defined normative obligations, was developed by Professor Thomas Cottier and others.

The suggested normative implications include: a duty to cooperate, an obligation to do one’s homework and obligations to secure compliance. These normative obligations apply only to the shared problems that can be defined as a common concern. More specifically, a problem that constitutes a common concern “stands for the proposition of an important shared problem and shared responsibility, and for an issue which reaches beyond the bounds of a single community and state as a subject of international law.”¹⁷¹⁰

The doctrine of Common Concern of Humankind applies only to a subset of human rights violations. Specifically, the following criteria should be fulfilled: human rights violations should impede the essence of human right (Kerngehalt), which is protected under international human rights law; these violations should be systematic; and they should threaten international peace and security.

The application of the doctrine of Common Concern of Humankind to international human rights law is an attempt to introduce an idea of subsidiary responsibility for human rights protection that is imposed on the international community. The main contributions of the doctrine of Common Concern when it is transposed into the international human rights law are: a reinforced duty to cooperate, the domestication of international human rights obligations, an instrument to provide legality and legitimacy to unilateral economic sanctions and a tool to empower civil society. The reinforced duty to cooperate entails an obligation on the part of the states lacking the necessary resources to guarantee a minimum level of human rights protection to communicate their need and imposes an obligation on the states that are in a position to provide assistance to do so. The domestication of international human rights obligations requires the full implementation of international commitments in the domestic sphere. This includes conditioning market access by requiring that imported goods and services are produced in a way that respects minimum standards of human rights protection. Furthermore, the doctrine can legitimise economic sanctions imposed on human rights grounds and can restrict their use if the coercive measures in question are politically motivated. A fully-fledged doctrine entails an obligation to act in order to redress grave human rights violations.