The Applicability of International Law Standards to the Sanctions of the Security Council

in Hague Yearbook of International Law / Annuaire de La Haye de Droit International, Vol. 26 (2013)
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This article aims at defining economic sanctions generally, before presenting the international law standards applicable to the ones adopted by the Security Council. Two preliminary assessments can be made. Firstly, economic sanctions constitute a relatively homogeneous notion. Secondly, the predominant conception of the law of economic sanctions adheres to a low level of legal constraint, especially if compared with other areas of international law such as the law of armed conflicts. This predominant view is based on a debatable conception of the powers of the Council, which is itself premised on a maximalist conception of the notion of international community. It remains true that the recent debate on ‘smart sanctions’ has resulted in increasing significantly the level of protection of fundamental rights, but the understanding that is presented in this piece is that this debate has focused on due process guarantees applicable to individual sanctions while an ambiguous stance remains towards embargos. This practically results in implicitly validating the idea that embargos are not regulated by legal standards, and that the evolution of the practice of the Council is only a welcome exercise of its discretionary powers rather than the recognition of preexisting legal obligations.This article takes the view that strict legal standards apply to economic sanctions under the UN Charter, the Rome Statute, the Genocide Convention, and several decisions of the ICJ. It proposes an approach based on guiding principles to ensure that sanctions respect jus cogens prohibitions and remain effective at the same time. On the institutional side, it underlines that the evolutionary reading of the UN Charter that has led to conferring new powers to the Council has been a selective one, since no similar approach has been followed concerning the ICJ and UN technical agencies. Lastly, it underlines the progress made at the European level in the protection of fundamental rights and suggests an extension of the same logic of inter-institutional cooperation beyond European borders.

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