A Peaceful, Silent, Deadly Remedy
The usefulness and effects of economic sanctions in international politics
A thesis submitted in partial fulfilment of the requirement for the degree of M.A. International Relations and International Organisation (International Political Economy), University of Groningen
Dominik Flikweert
Student number: 1722964
Address: Kornoeljestraat 2-H14, 9741 JB Groningen, the Netherlands E-mail address: D.Flikweert@student.rug.nl
Phone number: +31(0)6-36 54 94 85
Supervisor: mr.dr. H.H. Voogsgeerd Second Supervisor: Prof.dr. J. Herman
Department of International Relations and International Organisation Section of International Political Economy
Declaration by candidate
I hereby declare that this thesis, “A Peaceful, Silent, Deadly Remedy: The usefulness and effects of economic sanctions in international politics,” is my own work and my own effort and that it has not been accepted anywhere else for the award of any other degree or diploma. Where sources of information have been used, they have been acknowledged.
Dominik Flikweert
Abstract
A popular thought is that economic sanctions rarely achieve the desired foreign policy results. Nonetheless, they are increasingly being used by foreign policy makers. This led to the question to what extent economic sanctions are an effective and efficient means of foreign policy. Answering this question first requires a ramification of what economic sanctions are, why they are being imposed, and how they are being implemented. Subsequently, a light is shed on the effects of economic sanctions. Also, two case studies, the 1990-2003 Iraq sanctions and the 1979-onwards Iran sanctions, will be dealt with.
Regardless of the motivations and actual reasons to impose economic measures, states or international organisations always link their decisions to international law. In the cases of the United Nations or the World Trade Organisation, members may not disregard a decision by respectively the Security Council of the Dispute Settlement Body to impose measures collectively.
Although the implementation of economic sanctions is strictly guided through international legislation, the effects of economic sanctions can hardly be foreseen. Sometimes, they even are counterproductive to the official aims of the measures and lead to situations contrary to international humanitarian and human rights law, like happened with the 1990-2003 Iraq sanctions. As a result, actors have become cautious in implementing far-going measures.
Table of content
Preface v
List of abbreviations vi
Introduction 1
1. Economic sanctions: a definition 5
1.1 Economic sanctions according to Realism 8
1.2 Economic sanctions according to Liberalism 9
1.3 Economic sanctions according to Marxism 10
1.4 A new framework 11
2. Constraints of economic sanctions 14
2.1 The United Nations sanctions regime 14
2.2 The World Trade Organisation sanctions regime 20
2.3 Individual economic sanctions 23
2.4 The economic sanctions regime as a tool 24
3. The results and implications of economic sanctions 26
3.1 The logic behind sanctions 27
3.2 The conventional wisdom 28
3.3 Restoring confidence in economic sanctions 29
3.4 Criticising Hufbauer, Schott, and Elliot 30
3.5 Some contemporary thoughts 32
3.6 As bad as war: economic sanctions and human rights 39
3.7 The effects for the sender 41
3.8 The effects for third countries 42
3.9 Another scheme: how to make sanctions work 43
4. Economic sanctions in practice: case studies 45
4.1 The case of Iraq 45
4.2 The case of Iran 49
4.3 Re-examining the cases 56
Concluding summary 58
Bibliography 61
Scheme 1: Effectiveness defined by Hufbauer et al. 12
Scheme 2: Defining economic sanctions and their goals 13
Preface
A long, long time ago, in October 2012, I started writing my thesis as a partial fulfilment of a M.A. degree in International Relations and International Organisation (International Political Economy). At that moment, I still believed that it would take me just a few months to finish everything. I have finished my Bachelor thesis in two weeks, so why not my Master thesis in a month, or even two months while working on it in a relaxed way? I have never before in my life been so wrong. Writing my Master thesis proved to be a battle of my discipline and motivation against the luring dangers of not having a deadline and living in a vibrant and lively city. And that in combination with doing courses for another studies and doing an internship abroad.
What kept me going was the topic that I chose for this project. I am someone who loves reading about politics, history, and economics, and especially about the linkages between those three. I also follow the news a lot, and economic sanctions in international politics are a topic that has nearly daily news coverage and is connecting the three subjects I am so much interested in. I noticed a lot of ambiguity around the topic and decided to elaborate the circumstances under which economic measures as a foreign policy tool can be successful.
It was interesting to see that there was little overlap between literature about economic sanctions from different perspectives; legal writings lacked political and economic insight, studies from a politics point of view missed understanding about the legal and economic part in the subject, while economists lack sufficient knowledge about what drives government decision-making and about how the international legal system operates. Linking those three topics is done by the discipline of International Political Economy in International Relations studies, enabling an all-encompassing project into the topic of my choice from a political, judicial, and economic point of view.
List of abbreviations
ADB Asian Development Bank
CISADA Comprehensive Iran Sanctions, Accountability and
Divestment Act
DSB Dispute Settlement Body
DSU Dispute Settlement Understanding
ECOSOC United Nations Economic and Social Council
EU European Union
FAO Food and Agriculture Organisation
FDI foreign direct investment
GATT General Agreement on Tariffs and Trade
GDP gross domestic product
GDP PPP gross domestic product at purchasing power parity
GNP gross national product
IAEA International Atomic Energy Agency
ICJ International Court of Justice
ICRC International Committee of the Red Cross
ILC International Law Commission
ILSA Iran and Libya Sanctions Act
IMF International Monetary Fund
IO international organisation
LDC least-developed country
MMbod million barrels of oil per day
NATO North Atlantic Treaty Organisation
NPT Treaty on the Non-Proliferation of Nuclear Weapons
OECD Organisation for Economic Cooperation and Development
OPEC Organisation of the Petroleum Exporting Countries
SOE state-owned enterprise
SWIFT Society for Worldwide Interbank Financial
Telecommunication
UN United Nations
UNGA United Nations General Assembly
UNSC United Nations Security Council
USSR Union of Soviet Socialist Republics
VCLT Vienna Convention on the Law of Treaties
WHO World Health Organisation
WMD weapon of mass destruction
Introduction
On 28 June 2012, the United States of America imposed economic sanctions on the Islamic Republic of Iran for its refusal to comply with international nuclear non-proliferation obligations. Those sanctions aim at reducing Iran’s oil sale revenues and at constraining Iran’s ability to fund nuclear proliferation activities. On 1 July 2012, the EU joined the United States by banning the import of Iranian oil and by prohibiting financial services related to the trade and transport of Iranian oil. The American and European economic sanctions are supported by less strict measures imposed by India, Japan, South Korea, South Africa, Turkey, Sri Lanka, Singapore, Malaysia, the People’s Republic of China, and the Republic of China (Taiwan).1
By isolating Iran economically, above-mentioned countries try to prompt Iran’s government to stop its nuclear programme. However, even though the sanctions are hurting and lead to a
deterioration of the Iranian economy, Iran’s authorities have large foreign exchange reserves and will still earn about €40 billion a year from oil sales.2 The debate about the effectiveness of economic sanctions is not new. Some authors claim economic sanctions to have positive effects on the
attainment of foreign policy goals, while others are convinced that economic sanctions are doomed to fail.3 This leads us to the question to what extent economic sanctions in general, not only against Iran, work. To what extent and how are economic sanctions an effective means of foreign policy?
Answering this question is impossible without having any definitions. According to the Oxford Dictionary, a sanction is “an official order that limits trade, contact, etc. with a particular country, in order to make it do [several acts or deeds], such as obeying international law.”4 This is similar to the definition given by David Ruzié and Louis Cavaré respectively, who argue that a sanction refers to “un procédé social destiné à assurer l’application d’une règle de droit en réalisant la répression de ses violations” and “[l’action] de faire disparaître, dans toute la mesure possible, le trouble apporté à l’ordre juridique et social par la violation de la règle.”5 It follows that a sanction refers to a measure directed against another country to persuade the latter country to respect international obligations. And economic sanctions are sanctions imposed by means of measures related to trade and capital flows.6
1 Foreign and Commonwealth Office, “EU sanctions on Iran come into force,” Gov.UK, < www.gov.uk/
government/news/eu-sanctions-on-iran-come-into-force > (accessed on 29 September 2012); Office of the Press Secretary of the White House, “Fact Sheet: Sanctions Related to Iran,” The White House, < www.whitehouse. gov/the-press-office/2012/07/31/fact-sheet-sanctions-related-iran > (accessed on 29 September 2012).
2 Tom Gjelten, “Can Sanctions Force Iran To Change Its Policies?” National Public Radio, last modified on 3
July 2012, < www.npr.org/2012/ 07/03/156166649/can-sanctions-force-iran-to-change-its-policies > (accessed on 29 September 2012).
3 S. Rozemond et al., Economische sancties (’s-Gravenhage: Instituut Clingendael, 1988), 7; Margaret P. Doxey,
Economic sanctions and international enforcement (Oxford: Oxford University Press, 1971), 140.
4 Oxford Advanced Learner’s Dictionary 7th Edition (Oxford: Oxford University Press, 2007), 1344.
5 D. Ruzié, Organisations internationales et sanctions internationales (Paris: Librairie Armand Colin, 1971), 5;
Louis Cavaré, “Les sanctions dans le cadre le l’ONU,” Recueil des Cours 80 (1962): 191.
However, a breach of international law is easily found, especially when it concerns a hostile state. It would be too simple to assume that states only impose sanctions in case of a breach of international law. According to Realism, states do everything to keep or attain dominance over other states. As military build-up is an important element in attaining power, states form coalitions to avoid that one state might become too powerful relative to other states.7 Neo-Realism acknowledges that domestic policies are important in determining whether a state can fully exploit its potentials as a power; the size of its population and territory, its resource endowment, its economic capabilities, its military strength, and its political stability and competence are determining factors.8 From this point of view, sanctions can be imposed if the target country grows too powerful. Even though Realists most often think that economic sanctions do not work, this might give an explanation to state behaviour.9
Next to Realism, Liberalism is major branch in international relations and international political economy. In contrast to Realism, it focuses on international cooperation and on projecting its values of order, liberty, justice, and tolerance on the international plane. States are not the only relevant actors in international relations; IOs with (binding) rules and norms ought to bring states around those Liberal norms. Those organisations ought to universalise concepts like democracy, capitalism, and secularism.10 Military actions are considered to be an unwanted and final course of events, so a breach of modern international norms and rules could be a reason for imposing economic sanctions on a state, according to this point of view.
Both Realism and Liberalism are system-maintainers. They believe in a status quo in the system of international relations.11 Marxism, on the other hand, argues that the current system of international and economic relations will fall inevitably. Marxist theories argue that processes in history are all caused by economic developments; the base of the society is determined by the tension between the means of production and the relations of production. As a result of this tension, some classes in society are dominant over other classes. According to the world-system theory, this division is visible on a worldwide scale, where the core of Western capitalist countries exploits the less-developed periphery. Gramscianism adds that institutions are meant to keep in place the moral, political, and cultural values of the dominant group. Only a counter-hegemonic force could change the
7 Kenneth Waltz argues that states are in essence security maximising, and not power maximising (Kenneth
Waltz, “The Origins of War in Neorealist Theory,” in The Origin and Prevention of Major Wars, ed. R.I. Rotberg and T.K. Rabb (Cambridge: Cambridge University Press, 1989), 40); Tim Dunne and Brian C. Schmidt, “Realism,” in The globalization of world politics: An introduction to international relations 4th Edition, ed. John
Baylis, Steve Smith, and Patricia Owens (Oxford: Oxford University Press, 2008), 94-99.
8 Dunne and Schmidt 2008, 99-100; Kenneth Waltz, Theory of International Politics (Reading, Massachusetts:
Addison-Wesley, 1979), 131.
9 Rozemond et al. 1988, 7.
10 Tim Dunne, “Liberalism,” in The globalization of world politics: An introduction to international relations 4th
Edition, ed. John Baylis, Steve Smith, and Patricia Owens (Oxford: Oxford University Press, 2008), 110-120.
11 Steven L. Lamy, “Contemporary mainstream approaches: neo-realism and neo-liberalism,” in The
globalization of world politics: An introduction to international relations 4th Edition, ed. John Baylis, Steve
system.12 This suggests that economic sanctions are mainly imposed to keep a system in place favoured by dominant countries.
The first chapter will elaborate a definition of economic sanctions. Also, it will establish a general framework based on Realism, Liberalism, and Marxism, in order to explain the interests states have in imposing economic sanctions. These theories are not the only ones in international relations, but they are the most important. For the sake of simplicity, we will not involve other theories than Realism, Liberalism and Marxism.
Once we know what economic sanctions are and which goals are envisaged by imposing such sanctions on other states, it is interesting to look at the legal framework in which economic sanctions are created. By doing this, we can examine to what extent the possibilities to impose economic sanctions are in line with the interests of states. According to article 39 of the Charter of the UN, it is up to the UNSC to determine what constitutes “any threat to the peace, breach of peace, or act of aggression” and to take decisions “to maintain or restore international peace and security.” Such a UNSC decision “may include complete or partial interruption of economic relations”, according to article 41 of the Charter.13 But what rules are there in place for senders outside the UN system, like the case described at the beginning of this introduction? And does the GATT/WTO system limit the possibilities to impose economic sanctions? In the second chapter we will shed a light on international law and the possibilities or constraints it offers to any sender.
When we know what economic sanctions are, why they are being imposed, and how they can be used, we can focus on the implications of economic sanctions. In order to get an idea about the effectiveness of economic sanctions, the implications will be linked to the states’ interests as described by Realism, Liberalism, and Marxism. Both the effects on the sanctioned (target) state and the effects on the sanctioning state will be elaborated. The third chapter will deal with those general implications of economic sanctions in international relations and how they best can be used to achieve their aims. In order to gain more depth and to evaluate recent evolutions in the use of economic sanctions, we will also have a quick look at the change in functioning of the UN sanctions system since the end of the bipolar world and the start of American hegemony in international relations. Looking at the effectiveness of economic sanctions in different power settings gives us a hindsight to what might happen with future economic sanctions, as the world power distribution becomes multipolar again.14
Last-mentioned is also the reason for having a greater look at two different case studies: the 1979-onwards Iran sanctions and the 1990-2003 measures against Iraq. Both Iran, a country
12 Stephen Hobden and Richard Wyn Jones, “Marxist theories of international relations,” in The globalization of
world politics: An introduction to international relations 4th Edition, ed. John Baylis, Steve Smith, and Patricia
Owens (Oxford: Oxford University Press, 2008), 145-147, 150.
13 Frans A.M. Alting von Geusau, “Recent and Problematic: The Imposition of Sanctions by the UN Security
Council,” in United Nations Sanctions: Effectiveness and Effects, Especially in the Field of Human Rights: A Multi-disciplinary Approach, ed. Willem J.M. van Genugten and Gerard A. de Groot (Antwerpen: Intersentia, 1999), 1.
14 Samuel P. Huntington, “The Lonely Superpower,” Foreign Affairs 78/2 (1999): 35-36; Richard N. Haas, “The
mentioned earlier, and Iraq are similar for the reasons they were sanctioned. Still, the outcome of the measures was completely different. Therefore, we will shed a light at the cases of those cases in the fourth chapter and examine what were the determining factors in making those sanction episodes more or less successful, linking this last chapter with the previous ones
1. Economic sanctions: a definition
There is a strong tendency amongst authors to believe that economic sanctions have evolved for the first time in the twentieth century as a policy tool of the League of Nations, whereas economic sanctions have been used much earlier in history.15 The technique was already used in ancient Greece, during the Peloponnesian War for example. As a reaction to the Megarian expansion and kidnapping of Aspasian females, Pericles enacted the Megarian Decree in 432 BC, stating that “Megarians shall not be on our [Athenian] land, in our market, on the sea or on the continent.”16 Economic sanctions were also imposed mutually by France and the United Kingdom between 1793 and 1815; the United Kingdom wanted to deprive France of coal, while France tried to deprive the United Kingdom of grain.17 So, economic sanctions are not a new policy instrument, as they exist for ages.
Till World War I, economic sanctions were mainly imposed to support military operations; economic sanctions ought to limit the military capabilities of the sanctioned state.18 However, the abhorrence of the war sparked a search for substitutes for armed conflicts. Economic measures as such were a suitable candidate. During the 1919 peace talks at Versailles, Woodrow Wilson, President of the United States, proclaimed that “a nation boycotted is a nation that is in sight of surrender. Apply this economic, peaceful, silent, deadly remedy and there will be no need for force (...) It does not cost a life outside the nation boycotted, but it brings pressure upon the nation that, in my judgement, no modern nation could resist.”19 As economic sanctions exist by the grace of international economic ties, the globalisation of the world economy offers increasing possibilities to policy makers.20
The word ‘sanction’ is a strange term, as it can refer to two directly opposite meanings. A ‘sanction’ usually refers to an official approval, authorisation, or permission. The plural form turns the meaning around. However, if you start examining individual sanctions, a ‘sanction’ retains its referral to a restriction or punishment.21 This may be confusing. In order to keep everything clear, both ‘sanctions’ and ‘sanction’ will refer to the same set of restricting or punishing policy instruments, which are described more below.
Van Bergeijk builds on above-mentioned distinction by identifying two categories of sanctions. A positive sanction is meant to reward certain behaviour. One could think of economic or financial aid, or technological or military cooperation. A positive sanction belongs to
15 Doxey 1971, 1-2.
16 Gary Clyde Hufbauer and Jeffrey J. Schott, Economic Sanctions in Support of Foreign Policy Goals
(Washington, DC: Institute for International Economics, 1983), 4.
17 Ibidem, 23-24. 18 Ibidem, 4-5.
19 Gary C. Hufbauer, “Economic Sanctions: America’s Folly,” Council on Foreign Relations, < www.cfr.org/
trade/economic-sanctions-americas-folly/p62 > (accessed on 14 October 2012); Rob van der Laan, Economische Sancties in Theorie en Praktijk (Groningen: Rijksuniversiteit Groningen, 1994), 4; Hufbauer and Schott 1983, 5.
20 Van der Laan 1994, 4.
21 Oxford Advanced Learner’s Dictionary 2007, 1344; M.S. Daoudi and M.S. Dajani, Economic Sanctions
practices of states and is difficult to separate from friendly international relations.22 Negative
sanctions, on the other hand, are a punishment, disincentive, or expression of disapproval.23 According
to Daoudi and Dajani, such sanctions can be moral, diplomatic, military, financial, or economic.24 This work is about negative sanctions by means of economic and financial measures, since most authors classify those two under economic sanctions.
However, most authors disagree on what economic sanctions precisely are. Like Woodrow Wilson in the second paragraph, most authors use the terms ‘sanctions’, ‘embargoes’, and ‘boycotts’ interchangeably.25 Authors also use the terms inconsistently. Daoudi and Dajani, for example, describe sanctions as punitive actions initiated against a state that violates international law, while an embargo is described as a prohibition of exports as a reprisal to coerce political policy shifts in the target. Boycotts are described as actions whereby imports are curtailed in order to isolate the exporting country.26 A selective embargo or boycott is limited to one or a few commodities, while a general
embargo or boycott is total.27 Daoudi and Dajani also identify five types of economic sanctions: 1) an
international boycott; 2) embargoes on military equipment; 3) embargoes on raw materials; 4) embargoes on technology; and 5) embargoes on imports.28 A contradiction can be found here; if an embargo is described as a prohibition of exports, then how can a restriction on exports be executed on imports? In this work, to keep it simple, an embargo refers to export restrictions, and a boycott will refer to import restrictions by the sender.
Hufbauer, Schott, and Van Bergeijk offer an easier framework for categorising economic sanctions. They identify three different kinds of economic sanctions: 1) embargoes; 2) boycotts; and 3) financial restrictions (including restrictions on development assistance).29 Embargoes are enforced by a system of export licences and controls of destination, transit, and transport. Boycotts can be held in place by border checks performed by governments or IOs, but in the end consumers have the most powerful position to determine whether to buy a product or service or not. Financial restrictions refer to actions where lending or investments are suspended or where foreign assets of the target are being frozen.30 Rozemond adds restrictions to transit duties and access to harbour facilities, which could be added in a fourth category of transit restrictions.31 In this work, we will stick with the tripartite categorisation, because transit restrictions are a means in order to achieve an embargo or a boycott. However, Van der Laan criticises aforementioned authors for including restrictions on development
22 Peter A.G. van Bergeijk, Economic Diplomacy, Trade and Commercial Policy: Positive and Negative
Sanctions in a New World Order (Aldershot: Edward Elgar Publishing Limited, 1994), 19-20.
23 Rozemond et al. 1988, 9; Van Bergeijk 1994, 19. 24 Daoudi and Dajani 1983, 2.
25 Ibidem. 26 Ibidem, 8-9. 27 Ibidem, 10. 28 Ibidem, 2.
29 Hufbauer and Schott 1983, 29-30; Van Bergeijk 1994, 19-20. 30 Van Bergeijk 1994, 19-20.
aid to economic sanctions, since development aid entails a concessional relation between states.32 But even though such relations fall under positive sanctions, removing them could be seen as punishment, disincentive, or expression of disapproval, putting restrictions on aid under negative sanctions.
The imposition of economic sanctions, or the threat of imposing them, is a deliberate government-inspired action. They are deliberate, because they are aiming at a change in other countries’ policies; their goals is to achieve a political change in targets, and not to change economic structures or relations.33 However, there is a difference between comprehensive economic sanctions, which are targeted at a country as a whole, and smart economic sanctions, which aim at penalising government officials or organisations of the targeted state.34 The latter recently receives more attention, especially after the devastating effects of the economic sanctions imposed on Iraq in the 1990s. In the words of former United States President Jimmy Carter, imposing states must “strive to correct the injustice of economic sanctions that seek to penalise abusive leaders but all too often inflict punishment on those who are already suffering from the abuse.”35 Nevertheless, both kinds of
economic sanctions aim at changing the policies of the targeted state. Moreover, smart economic sanctions still impose significant costs on a target state’s population, making the difference with comprehensive economic sanctions blurry.36 Therefore, in this paper, the difference between both types will only be put forward when there is a clear difference in means or effects.
In combination with above-mentioned, economic sanctions shall be described as a deliberate government-initiated imposition or threats of imposition of embargoes, boycotts, or financial
restrictions in order to achieve certain foreign policy goals. This definition, however, is not waterproof. It does not tell us what interests states have in imposing economic sanctions, let alone what kind of foreign policy goals could be achieved by initiating economic sanctions. Most economists fall short in explaining the interest of states in enforcing economic sanctions. Are they imposed because of domestic reasons and because of self-interest?37 Are they enforced to guarantee the efficiency of international law?38 Or are they conformity defending instruments that serve the interests of the strongest states?39
It is quite amusing to see that the bulk of literature on economic sanctions fails to explain the interests states might have in imposing economic sanctions on other states. If there is no notion of state interest involved, it becomes difficult to examine the effectiveness of economic sanctions. It is the aim
32 Van der Laan 1994, 11.
33 Hufbauer and Schott 1983, 2; Rozemond et al. 1988, 10.
34 Daniel W. Drezner, “How Smart are Smart Sanctions?” International Studies Review 5 (2003a): 107; Le
Secrétariat d’État à l’économie, “Sanctions ciblées,” Le Secrétariat d’État à l’économie de la Confédération suisse, < www.seco.admin.ch/themen/00513/00620/index.html?lang=fr > (accessed on 23 June 2013).
35 Drezner 2003a, 107. 36 Ibidem, 108.
37 Gary Clyde Hufbauer, Jeffrey J. Schott, and Kimberley Ann Elliott, Economic Sanctions Reconsidered:
History and Current Policy Second Edition (Washington, DC: Institute for International Economics, 1990), 3.
of this section to shed a light on the interests of states in imposing such sanctions. A general framework on the interests of states in imposing economic sanctions will be put forward based on Realism, Liberalism, and Marxism. These theories in international relations are the most widely used. To keep it simple, no other theories will be involved. The proposed framework will be used in this paper as a tool to examine the effectiveness of economic sanctions.
1.1 Economic sanctions according to Realism
Within states, societies have developed numerous rules and norms about behaviour to reduce
competitive uncertainty and threats that confront humans to manageable proportions. Rules and norms are also imposed to regulate collaboration within a society. Without such rules, according to classical Realism, humans would be entangled in a constant struggle for power.40 This is also a good motive for erecting international cooperation. However, deflection from cooperative models is a constant
temptation, mainly motivated by uncertainty and national self-interest, resulting in many cooperative models to be undermined. Thence, Realists press that interstate relations are characterised by
anarchy.41
In order to maximise their security and well-being, states do everything to keep or attain power relative to other states.42 This pursuit of control could be achieved by coercion, but also by mutually beneficial coercion, even though Realists are suspicious of cooperation when it provides one partner with more relative gains compared to the other partner.43 An important element of cooperation between states entails balancing in order to avoid one state to become too powerful, even when it is damaging from an absolute perspective; states may be happy to be left worse off, as long as their counterparts are left even worse off. Bandwagoning is considered to be dangerous, as a stronger partner might turn against a weaker partner at a later stage.44
Since some domestic factors, according to neo-Realism, are determining whether a state can exploit its potentials as a power, some economic relations might make a state relatively less secure; short-term economic advantages should be balanced against long-term security goals.45 With this in mind, large and more powerful states enjoy much more discretion in how they pursue their foreign policy goals and what sacrifices they want to make in face of security constraints.46
40 R.J. Barry Jones, Conflict and Control in the World Economy: Contemporary Economic Realism and
Neo-Mercantilism (Sussex: Wheatsheaf Books, 1986), 67-69; Dunne and Schmidt 2008, 96.
41 Jonathan Kirshner, “Realist political economy: traditional themes and contemporary challenges,” in Routledge
Handbook of International Political Economy (IPE): IPE as a global conversation, ed. Mark Blyth (London: Routledge, 2009), 36; Jones 1986, 72, 75, 95-96.
42 Dunne and Schmidt 2008, 96; Kirshner 2009, 36-37, 39-40. 43 Jones 1986, 206-207.
44 Scott Burchill et al., Theories of International Relations 4th Edition (Basingstoke: Palgrave Macmillan, 2009),
37-39.
Realism explains that sanctions can be imposed if the target grows relatively too powerful or the sender feels threatened. In the interstate relations, states are likely to balance powerful states in order to safeguard their security. Measures to balance could be implemented by means of economic policies. However, the larger and more powerful a state is, the more it can afford to consider economic interests against security interests.
1.2 Economic sanctions according to Liberalism
Liberalism is a broad branch of theories, but all stress the primacy of individual freedom and human rights. Democracy and capitalism are necessary to facilitate those freedom and rights. According to Liberals, capitalism holds in check and guides the tumultuous forces of self-interest by means of a system of cooperation wherein goods and services are exchanged and wherein resources are allocated most efficiently. Capitalism, together with democracy and individual liberty, function best under an institutional framework supported by the Rule of Law.47 As a result, human progress, when guided by scientific rationality, ought to be inevitable.48
Three reasons can be identified why states put a lot of effort in international cooperation. First, institutional Liberalism believes that states are not likely to open borders for trade and investment unilaterally. However, they stress the absolute benefits of an open market. In order to control
mercantilist restraints at the national level, international cooperation is established through reciprocal negotiations and facilitated by regimes.49 Commerce between nations ought to lead to a harmony of interests between nations, leading to a decrease of armed conflicts; the capitalist peace theory suggests that capitalist states aim at increasing wealth instead of power.50 Second, according to
Keynesians, states have to coordinate each others’ policies in order to overcome common problems, as national boundaries do not mark the scope of national social, political, and economic control.51 Third, Liberalism focuses on projecting its values on the international plane. IOs with (binding) rules and norms ought to bring states around those Liberal norms.52 Liberalism believes that progress in human history can be measured by the elimination of armed conflict between societies, just as Liberal norms and values have reduced armed conflict within states.53
47 F.A. Hayek, The Fortunes of Liberalism: Essays on Austrian Economics and the Ideal of Freedom (London:
Routledge, 1992), 13-14; Razeen Sally, Classical Liberalism and International Economic Order: Studies in theory and intellectual history (London: Routledge, 1998), 16-17, 20, 26, 37; Burchill et al. 2009, 57.
48 Burchill et al. 2009, 57.
49 Alexander Cooley, “Contested contracts: rationalist theories of institutions in American IPE,” in Routledge
Handbook of International Political Economy (IPE): IPE as a global conversation, ed. Mark Blyth (London: Routledge, 2009), 50; R.O. Keohane, After Hegemony: Cooperation and Discord in the World Political
Economy (Princeton, New Jersey: Princeton University Press, 1984), 57; Sally 1998, 37-50, 182-183; Burchill et al. 2009, 67.
50 Michael Mousseau, “Coming to Terms with the Capitalist Peace,” International Interactions: Empirical and
Theoretical Research in International Relations 36/2 (2010): 185-186; Sally 1998, 57-58.
51 Conrad P. Waligorski, Liberal Economics and Democracy: Keynes, Galbraith, Thurow, and Reich (Lawrence,
Kansas: University Press of Kansas, 1997), 114-118.
Liberalism does not require states to balance the power of others, nor does it consider
hegemony to be a threat to national security. In fact, it believes that dominant powers are necessary to stabilise interstate relations.54 Both dominant powers and IOs could act in face of threats to Liberal values, like violations to human rights, democracy, or international law. As armed conflicts are
considered to be a final, unwanted option for conducting interstate relations, economic sanctions could be imposed in order to attain a situation where threats to Liberal values are resisted.
1.3 Economic sanctions according to Marxism
Unlike Realism and Liberalism, Marxism argues that the current capitalism-based international order will collapse; it had a beginning in sixteenth century Europe and it will have an end in the future. It sees the international system as an economic process with a start, middle, and an end.55 Marxist theories argue that all processes in history are caused by economic and technological change; the base of the society is determined by the tension between the means of production and the relations of production. As a result of this tension, some classes in society are dominant over other classes.56 Those oppressed classes did not initiate countermeasures, as they were immersed in a false consciousness penetrated in everyday political, historical, economical, and social life.57 According to Marx, the modern state itself is nothing more than the “executive committee of the [oppressing class]”.58
Capitalism is characterised by endless capital accumulations; it needs more and more markets to grow and to sustain itself. Property rights (and other Liberal institutions) are centrepiece of the capitalist system; without property rights, no-one has an interest in capital accumulation. As a result, industrialised Western countries force non-industrialised non-Western countries to open their borders for trade and investment that is profitable to Western enterprises. There is no reciprocity, as most advantages of the open trade are directed towards the West. Also, European ideas of statehood and individual freedom have to be adopted by non-Western countries to fit the local markets within the world markets.59 Aforementioned is the basic idea behind the world-systems theory, which states that the core of Western capitalist countries exploits the less-developed periphery.
Initially, Marxist theories believed capitalism would come to an end when it encompassed approximately the entire globe; when it cannot grow anymore, it collapses. Nevertheless, few still believe that capitalism is short-lived.60 Apparently, the growth of capitalism depends on more than merely the geographical reach. It constantly reinvents itself to keep in place the unequal exchange and
54 Cooley 2009, 49-50.
55 Immanuel Wallerstein, World-Systems Analysis: An Introduction (London, Duke University Press, 2005), 23,
76.
56 Burchill et al. 2009, 114-115. 57 Ibidem, 114.
58 Immanuel Wallerstein and Terence K. Hopkins, World-Systems Analysis: Theory and Methodology (London:
Sage Publications, 1982), 136-141; Burchill et al. 2009, 126.
deteriorating terms of trade, which prevent developing countries from industrialising.61 According to Gramscianism, institutions are erected to keep in place Liberal concepts of state, society, and markets. Only a counter-hegemonic force, or an alternative to the Liberal and capitalist system, could challenge the dominant capitalist power structures and their legitimising belief systems.62
So, according to Marxism, Western industrialised countries press non-industrialised countries to open their markets to Western-based enterprises and to adopt European concepts of statehood, democracy, and human rights and liberty. Some states might be unwilling to do so. In fact, some states might even propagate alternatives to capitalism and propose them to other non-industrialised countries in the periphery, in order to overcome capitalist oppression together. Capitalist Western states might have an interest in imposing economic sanctions on states that do not wish to reconcile with Liberal norms and values, in order to let the challenging ideology fail.
1.4 A new framework
Within the discipline of International Relations, the above-mentioned theories are the most widely used and discussed. Despite of all their fundamental differences, they exhibit similar characteristics in explaining why states impose economic sanctions on other states. First of all, economic sanctions are mainly imposed and initiated by powerful states or IOs. That is, by states or IOs that have the
economic means and capacities to hurt the target.63 This is reasonable, as an economically weak individual country would not be able to pressure an economically more powerful state by means of economic sanctions. Symbolical economic sanctions are possible, but they might harm an
economically weak sender more than a more powerful target. This does not mean that economically smaller and weaker states do not impose any economic sanctions. However, those economically less powerful states impose sanctions in order to support the more powerful initiating state, like
Singaporean sanctions in support of American measures against Iran, or via and by means of IOs. An example of last-mentioned is the request of Antigua and Barbuda within the WTO to suspend
concessions and obligations to the United States in order to force the latter to comply with GATT/WTO rules.64
Next, states or IOs impose economic sanctions when they feel threatened. There are many ways in which a state can feel threatened. They can feel threatened because of the target to grow too powerful relative to the sender. The term ‘too powerful’ is subjected to broad interpretations,
dependent on state policies and interests; not every powerful state poses a threat, simply because that
61 Wallerstein and Hopkins 1982, 45, 47-48; Burchill et al. 2009, 122-123, 126. 62 Hobden and Wyn Jones 2008, 145-147, 150; Burchill et al. 2009, 127.
63 Defining ‘powerful’ and ‘weak’ is counterproductive, because it refers to flexible terms and situations; being
powerful or weak is not limited to a certain threshold. The importance lies in the relative differences in economic weight between the imposing and sanctioned states.
64 Dispute Settlement Body, “United States - Measures Affecting the Cross-Border Supply of Gambling and
state could be regarded as a friend. For example, the attitude of the United States towards French and British nuclear weapon programmes was calm, since France and the United Kingdom could be regarded as friends of the United States and do not pose a threat to American nor its allies’ security. This is somewhat different in the case of an Iranian nuclear weapon programme.
A threat, from another point of view, can also mean that the target poses a threat to the modern Liberal and capitalist system or breaches international law and norms. One could argue that, from a Realist point of view, senders that have enough capacities to impose economic sanctions have a tendency to be somewhat conservative in international relations and tend to maintain the status quo. However, economic sanctions could also be used to spread and reinforce Liberal values; both
dominant powers and IOs could act in face of threats to Liberal values, like violations to human rights, democracy, or international law.
Before we can make above-mentioned operational, we need to remember that economic sanctions are deliberate government-inspired actions, which we describe as the imposition or threats of imposition of embargoes, boycotts, or financial restrictions in order to achieve certain foreign policy goals. Those foreign policy goals are described in the preceding three sections. A scheme to assess the effectiveness of economic sanctions is offered by Hufbauer et al., who divide the outcome of
economic sanctions into one of the following categories: failed (1), unclear (2), positive (3), or successful (4). The numbers in brackets indicate the score assigned to any of those outcomes. Those four possible outcomes are compared the magnitude of the economic sanctions in question, which are also divided in four groups: zero/negative (1), minor (2), modest (3), and significant (4). Again, the numbers in brackets indicate the assigned score to any size of policy measures. By doing this, Hufbauer et al. link the size of economic sanctions to their impact on the target’s economy (and policies).65 As a result, the following scheme could be constructed.
Scheme 1: Effectiveness defined by Hufbauer et al.
Zero/negative Minor Modest Significant
Failed 1 2 3 4
Unclear 2 4 6 8
Positive 3 6 9 12
Succesful 4 8 12 16
According to the proposed scheme, everything with an end score of 8 or lower can be considered to be a failure, while everything with an end score of 9 or higher could be seen as a success.66 However, Hufbauer et al. do not make clear what failed, unclear, positive, or successful outcomes exactly are. Neither do they explain what minor, modest, or significant economic sanctions are. Next to it, they
ignore the possibility that minor and subtle sanctions could have an huge impact and that comprehensive sanctions could be less effective than those small and subtle ones.67
Because of abovementioned, a more direct approach should be developed while keeping in mind the success rate and impact of an economic sanction. An element about the effectiveness of economic sanctions could also be directly deduced from the earlier-explained foreign policy goals. If a country feels threatened because of increasing military power of another nation, one could conclude economic sanctions to be efficient when they lead to a reversal of the target’s growing military power. Likewise, if a country breaches international law, economic sanctions can be considered to be
successful when that country stops breaching international law. This is a logical way of measuring the effectiveness of economic sanctions, as it is directly linked to the interests that states have in imposing economic sanctions. It also eliminates subjectivities present in the scheme proposed by Hufbauer et al. However, it is important to keep in mind that there should be a causality relation between the actions taken under the auspices of foreign policy goals and the effects they have. As a result, we can construct the following scheme.
Scheme 2: Defining economic sanctions and their goals
1. Economic sanctions are imposed by economically powerful nations or IOs (incl. weaker states through IOs)
by means of the imposition or threats of imposition of embargoes, boycotts, or financial restrictions;
2. when those states or IOs feel threatened
a) because of growing relative (military) power of the target compared to the sender; b) because of a breach of international law or norms by the target;
c) because of (growing) (ideological) resistance by the target against the currently dominant Liberal
and capitalist system of interstate relations and economics;
3. and could be effective
a) when the relative growth of (military) power of the target is stopped or reversed. b) when the breach of international law or norms by the target are stopped or reversed.
c) when the (ideological) threat to the currently dominant Liberal and capitalist system in interstate and
economic relations is countered.
Abovementioned scheme defines and explains the goals of economic sanctions. The proposed scheme will be used in later chapters to assess the effectiveness of economic sanctions and to frame actions within one of the three mentioned groups of state interests. We now know what economic sanctions are and what interests states have in imposing them. However, we do not know what possibilities states have within international relations and within international law do to so. The next chapter will shed a light on this topic.
2. Constraints of economic sanctions
Even though international law encompasses broad and ambiguous texts, it does form a framework in which interstate relations and international economic ties are performed. When discussing the effects and usefulness of economic sanctions, the possibilities and constraints of international law cannot be ignored. Thence, this chapter will look at the when and how of economic sanctions in international law and at countries’ possibilities to impose such measures.
With regard to this, economic sanctions can again be categorised in two groups. Collective economic sanctions are “[binding measures] imposed by organs representing the international community, in response to perceived unlawful or unacceptable conduct by one its members and [are] meant to uphold standards of behaviour required by international law.”68 The most well-known IOs that impose binding decisions with a nearly worldwide coverage are the UN and the WTO. But
countries could also decide individually to initiate economic sanctions, without the obligation for other states to follow suit. Those kinds of sanctions are called individual economic sanctions. In this chapter we will shed a light on both collective and individual economic sanctions.
2.1 The United Nations sanctions regime
During his address to the 58th Session of the UN General Assembly, Indian Prime Minister Atal Bihari Vajpayee stated “that international institutions like the UN can only be as effective as its members allow it to be.”69 This is especially true for the highly politicised decision-making procedures in the UNSC. In article 39 of the UN Charter can be found that the UNSC “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken (...) to maintain or restore international peace and security.” So, not only it is completely up to the UNSC to decide about the existence of a threat to or breach of peace, the UNSC is also not required to automatically react to such threats or breaches. This is because UNSC decisions are the result of political considerations and negotiations, and not of legal
reasoning.70 In fact, sanctions are not imposed to restore respect for international law, because that would have meant that the UNSC would be a judicial body, and a judicial body would not be flexible enough to address threats to international peace and security. 71 Hence, the UNSC is neither judge nor a (public) prosecutor, but just a guardian of peace that has a monopoly on violence which uses the
68 Boris Kondoch, “The Limits of Economic Sanctions under International Law: The Case of Iraq,” International
Peacekeeping Volume 7 (2001): 269.
69 UN General Assembly 58th Session, “Address by Shri Atal Bihari Vajpayee, Prime Minister of India,” United
Nations, < www.un.org/webcast/ga/58/statements/indieng030925.htm > (accessed on 1 July 2013).
70 Vera Gowlland-Debbas, “UN Sanctions and International Law: An Overview,” in United Nations Sanctions
and International Law, ed. Vera Gowlland-Debbas (The Hague: Kluwer Law International, 2001), 8.
combined power of its members, in name of the international community, to reach the goals that can be derived from article 39 in Chapter VII of the Charter.72
A key feature of the measures is that they come from a law-enforcing body, and not from a legislator. Articles 39 jo. 41-42 of the Charter state that the UNSC should act to counter threats to or breaches of peace, and not to impose new obligations on target states.73 In the words of former UN Secretary-General Boutros Boutros-Ghali: “the purpose of sanctions is to modify the behaviour of a party that is threatening international peace and security and not to punish or otherwise exact
retribution.”74 The question is, however, what threats to or breaches of international peace actually are. In a strict sense, it refers to the threat or use of aggression, which is defined by the UN General
Assembly as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter.”75 In reality, the UNSC has interpreted its discretionary powers in such a way that sanctions could also be imposed when completely domestic situations are thought to pose a threat to international peace and security.76 It includes situations like ethnic cleansing, genocide, violations of the right of self-determination, and other gross violations of humanitarian law. Thence, the concept of international peace and security has acquired a much wider meaning than just collective security.77 This is evident in the first article 39 resolutions: the Resolution 221(1966) sanctions against the racist minority regime in South Rhodesia and the Resolution 418(1977) arms embargo against apartheid ruled South Africa.78
Once the UNSC decides to take such measures, article 41 of the Charter states that the UNSC “may decide what measures not involving the use of armed forces are to be employed to give effect to its decisions (...) These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication.” To make last-mentioned more conveniently arranged, economic sanctions can be separated in three branches. The first branch consists of trade sanctions, which refers to arms embargoes, oil embargoes or boycotts, or other selective or general trade measures. Then we have financial sanctions, consisting of freezing funds and blocking other financial services of and for the target. Related to aforementioned two are
72 Pierre-Marie Dupuy, “Quelques remarques sur l’évolution de la pratique des sanctions décidées par le Conseil
de Sécurité des Nations Unies dans le cadre du Chapitre VII de la Charte,” in United Nations Sanctions and International Law, ed. Vera Gowlland-Debbas (The Hague: Kluwer Law International, 2001), 47; Von Geusau 1999, 10; Dupuy 2001, 47.
73 Nicolas Angelet, “International Law Limits to the Security Council,” in United Nations Sanctions and
International Law, ed. Vera Gowlland-Debbas (The Hague: Kluwer Law International, 2001), 72-80.
74 Supplement to an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth
Anniversary of the United Nations, New York, 3 January 1995, Report of the Secretary-General on the Work of the Organisation, nr. A/50/60-S/1995/1, para. 66, < www.un.org/documents/ga/docs/50/plenary/a50-60.htm > (accessed on 5 August 2013).
75 General Assembly Resolution 3314(XXIX) on the Definition of Aggression, New York, 14 December 1974,
art. 1, < www1.umn.edu/humanrts/instree/GAres3314.html > (accessed on 5 August 2013).
76 James Crawford, “The Relationship Between Sanctions and Countermeasures,” in United Nations Sanctions
and International Law, ed. Vera Gowlland-Debbas (Den Haag: Kluwer Law International, 2001), 57-58.
communication measures, which focus on an air, land, or sea blockade and the seizure the target’s modes of transportation.79
When the UNSC has agreed on measures to be imposed on a target, the UNSC members have a choice between recommended and mandatory sanctions. Like the word already says, recommended sanctions are recommended by the UNSC. Member states are not obliged to impose them, but the UNSC would like to motivate other countries to impose those sanctions against the target state, even when other treaties might prohibit it. Mandatory sanctions, on the other hand, have to be implemented by all member states. A sanction is mandatory when it is clearly written in a resolution that the UNSC
decides to impose certain measures.80 In that case, sanctions result in the forcible suspension of in the
resolution specified target’s legal rights.81
When the imposed sanctions are mandatory, member states cannot try to disregard the UNSC resolution. Article 25 of the Charter states that “[the] Members of the United Nations agree to accept and carry out the decisions of the Security Council.” Regarding national laws, article 27 of the VCLT states that “[a] party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” On top of that, article 103 of the Charter states that “[in] the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” This has far-reaching consequences, as also allies of the target will have to comply with the UNSC decisions. Of course, the implementation of UNSC resolutions is dependent on the
effectiveness and efficiency of national legislative, executive, and administrative bodies. This might create a high burden for some countries, especially on the field of finances and economics.82
Sometimes, senders might feel more economic and financial pain than the target. Article 50 of the Charter, therefore, offers the possibility of consultation with the UNSC. However, this is no
compensation or remedy mechanism, but just a way to obtain extra attention from the UNSC with the possibility of some compensation.83 And nonetheless, those vulnerable states still have to comply with UNSC decisions.
In order to effectively enforce UNSC resolutions and to compel nationals abroad, including private companies, to comply with the new legislation, states may be required to implement legislation with extraterritorial reach. This is interesting, because extraterritorial legislation is usually seen as an intervention in other states’ domestic jurisdiction.84 Sometimes, it is possible that UNSC resolutions result in the temporary suspension of customary international law, like happened in the 1966 Beira
79 Ibidem, 10.
80 Andreas W. Lowenfeld, “Unilateral versus Collective Sanctions: An American Perspective,” in United Nations
Sanctions and International Law, ed. Vera Gowlland-Debbas (The Hague: Kluwer Law International, 2001), 97-100.
81 Gowlland-Debbas 2001, 10. 82 Ibidem, 19-20.
Resolution, which allowed the forcible seizure of a ship that was transporting oil to sanctioned Rhodesia.85 They are also applicable to private contracts, notwithstanding any license or contract granted before the entry into force of the resolution.86 However, economic sanctions do not mean that existing private contracts with the target have to be terminated; it just means that those contracts cannot be executed anymore.87 Concluding new private contracts with a target is not necessarily forbidden, depending on the exact text of the resolution and as long as those contracts are not executed.88 This means that it is possible for a sender to prohibit companies active in its territory to maintain economic ties with a target via their foreign branches.
In order to monitor the implementation of its resolutions, the UNSC may establish so-called
Sanctions Committees, which consist of UNSC members.89 If members do not comply with UNSC
resolutions, it is possible to also sanction them, but in practice that has never happened yet. As far as now, a soft law approach has been deployed against disobedient states. An example is Jordan, a country that refused to implement the 1990-1994 economic sanctions against Iraq. As a result, the country was not admitted to the earlier-mentioned article 50 consultations. Also, several individual countries imposed (diplomatic) measures against Jordan. The United States, for example, cancelled several financial aid programmes.90 But there is no clear policy towards UN member states that fail to comply with UNSC resolutions.
Findings of illegality have formed an integral part of UNSC determinations. In theory, the sanctions should end once the threats to or breaches of international peace and security have ceased. In reality, the UNSC has a more elastic approach that has little to do with restoring the initial situation.91 An example can be found in UNSC Resolution 660(1990), which states that Iraq should withdraw from Kuwait before the imposed sanctions would be lifted. However, after Iraq’s withdrawal, the UNSC imposed new conditions, like in Resolution 687(1991). This led to accusations that sanctions were used as punishments and to damage Iraq, and not to restore international peace and security. It happens more often that the measures agreed upon by the UNSC do not reflect the reasons and objectives for which the sanctions were decided. Also, an accumulation of sanctions is easier to achieve than the termination, because the termination requires the same procedure as the establishment
85 Security Council Resolution 221(1966), New York, 9 April 1965, nr. S/RES/221(1966), para. 5, < www.
refworld.org/docid/3b00f205c.html > (accessed on 5 August 2013).
86 Gowlland-Debbas 2001, 20-21.
87 Geneviève Burdeau, “Les effets juridiques des Résolutions du Conseil de Sécurité sur les contrats privés,” in
United Nations Sanctions and International Law, ed. Vera Gowlland-Debbas (The Hague: Kluwer Law International, 2001), 272.
88 Burdeau 2001, 275-276.
89 Dupuy 2001, 50; United Nations Security Council “Security Council Sanctions Committees: An Overview,”
United Nations, < www.un.org/sc/committees/ > (accessed on 5 August 2013); Gian Luca Burci, “Interpreting the Humanitarian Exceptions Through the Sanctions Committees,” in United Nations Sanctions and
International Law, ed. Vera Gowlland-Debbas (The Hague: Kluwer Law International, 2001), 144..
of measures. This means that one permanent member can block the termination of the sanctions in question.92
At first sight, the choice of measures seems to be largely selective and arbitrary.93 This does not mean UNSC decisions are solely based on power politics. Article 24(2) of the Charter states that “[in] discharging [its] duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations,” while article 1(1) of the Charter states that one of the purposes of the UN is “[to] maintain international peace and security (...) by peaceful means, and in conformity with the principles of justice and international [customary] law.” This limits the purposes of its actions and discretion, especially in the field of economic, social, cultural, and other human rights.94 It is important to keep in mind that the UNSC is always bound by the inviolability of diplomats, also those coming from the target.95
Especially the core of human rights needs to be respected. Article 50(1)(b)(c) of the ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts calls for the protection of fundamental human and humanitarian rights with regard to economic sanctions. The ECOSOC even says that disrespecting those core human rights might damage the legitimacy of UNSC decisions that are actually implemented to uphold those rights.96 That is why UNSC resolutions contain a clause that should guarantee exceptions in the field of human rights. An example can be found in paragraph 3(d) of UNSC Resolution 253(1968) against Southern Rhodesia, which should guarantee the continuous supply of medical and educational equipment and food.97
The obligation to act in accordance with human rights laws does not prevent economic sanctions from victimising the target’s civilians. This raises concerns at the UN specialised agencies like UNICEF, the WHO, the FAO, and other non-UN related organisations like the ICRC. Difficulties arise when those organisations have to merge their non-political goals with UNSC resolutions. In order to continue their operations in a target, they often have to ask permission from the relevant Sanctions Committee.98 Those committees can block any (requested) implementation of a human rights exception. The foundation of the committees’ decisions is almost never made public, but it is know that its decision-making is inconsistent. The main feature is that it makes a distinction between “humanitarian relief and development” and “satisfaction of short-term civilian needs and rehabilitation
92 Gowlland-Debbas 2001, 12; Von Geusau 1999, 15. 93 Gowlland-Debbas 2001, 8; Dupuy 2001, 50.
94 Angelet 2001, 72-80; Gowlland-Debbas 2001, 8-9, 13-16.
95 Security Council Resolution 667(1990), New York, 16 December 1990, nr. S/RES/0667(1990), para. 6,
< www.fas.org/news/un/iraq/sres/sres0667.htm > (accessed on 5 August 2013).
96 General Comment 8 of the Economic and Social Council on the relationship between economic sanctions and
respect for economic, social, and cultural rights, 12 December 1997, nr. E/C.12/1997/8, < www.unhchr.ch/tbs/ doc.nsf/0/974080d2db3ec66d802565c5003b2f57?Opendocument > (accessed on 5 August 2013).
97 Burci 2001, 143.
of infrastructure,” even though both labels are logically inseparable. This makes it nearly impossible for humanitarian or human rights organisations to operate in the target.99
Since the 1990 Gulf War, the UNSC is increasingly using its powers under Chapter VII of the UN Charter.100 Given all the aforementioned possible mistakes and drawbacks of UNSC resolutions, the attention for judicial review of those measures started to emerge. Some states regard the UNSC as unrepresentative and elitist.101 In the Certain Expenses of the United Nations case, the ICJ stated that “[in] the legal systems of States, there is often some procedure for determining the validity of even a legislative or governmental act, but no analogous procedure is to be found in the structure of the United Nations.”102 And in the South West Africa case, the ICJ states that “the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned.”103 This appears to be clear; it seems like the ICJ cannot judge on UNSC measures.
However, even though there is no constitutional basis for judicial review by the ICJ, the ICJ could follow the same trick that has been performed by many other international organs. The goals of the UNSC are elaborated in articles 24 jo. 1 of the Charter, but the UNSC has interpreted the Charter in a way that would give itself more powers. The ICJ could also do this.104 Other UN-based organs followed the same route, like the Criminal Tribunal for the former Yugoslavia did in the Tadić case.105 From here, it is possible to identify two sorts of judicial review by the ICJ. Substantive review refers to the review of findings to impose measures, which happens under article 39 of the Charter. This is very unlikely to happen, as the UNSC is already a highly politicised and diverse organ, so findings on which decisions are based are most often well-grounded. In fact, the ICJ cannot review a UNSC qualification under article 39, because it is completely part of the UNSC’s discretionary powers. Incidental review looks at the correctness of measures to restore international peace and security. The latter looks at the measures taken under article 41 of the Charter and is possible.106
The first time that the ICJ reviewed UNSC measures, was in the Lockerbie case.107 The UNSC’s choice of measures can be opposed by the ICJ, if those measures are contrary to the
99 Burci 2001, 144, 149. 100 Gowlland-Debbas 2001, 1.
101 John Dugard, “Judicial Reviews of Sanctions,” in United Nations Sanctions and International Law, ed. Vera
Gowlland-Debbas (The Hague: Kluwer Law International, 2001), 83-84.
102 International Court of Justice, 20 July 1962, Certain Expenses of the United Nations (Article 17, Paragraph
2, of the Charter), Advisory Opinion, p. 168, < www.icj-cij.org/docket/files/49/5259.pdf > (accessed on 5 August 2013).
103 International Court of Justice, 21 June 1971, Legal Consequences for States of Continued Presence of South
Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276(1970), Advisory Opinion, para. 89, < www.icj-cij.org/docket/files/53/5595.pdf > (accessed on 5 August 2013).
104 Dugard 2001, 85.
105 International Criminal Tribunal for the former Yugoslavia, 10 August 1995, Decision on the Defence Motion
on Jurisdiction (Prosecutor vs. Duško Tadić a/k/a “Dule”), Judgement, < www.icty.org/x/cases/tadic/tdec/en/ 100895.htm > (accessed on 5 August 2013).
106 Dugard 2001, 88-89; Gowlland-Debbas 2001, 14-15.
107 Dugard 2001, 83; International Court of Justice, 27 February 1998, Case Concerning Questions of
