Written by Giulia Lombardo
Sanctions represent an international instrument, which can be adopted unilaterally by states or by their whole – within an international organization – to put an end to illegal conduct. The illicit action gives rise to the so-called international responsibility of the state, which derives from violations of obligations under International Law.
Sanctions may be of a different nature but do not imply – except for the Article 42 of Chapter VII of the Charter of the United Nations, which allows the adoption of military measures against member states – the use of force. The prohibition of the use of force is a rule of customary law but also of covenant law as it is formalized in the Charter of the United Nations, which entered into force on the 25th of October 1945. There are different types of sanctions starting from the financial and the civil ones, as well as restrictions on the entry of certain subjects or on the movement and the supply of services and goods.
Generally, the most adopted sanctions concern the economic sphere. According to Nicholas Mulder, assistant professor of modern European history at Cornell University, the weapon of economic restriction, at the time of its conception, represented a form of deterrence to war itself. Created as an “arme economique” of the Angle-French bloc during the First World War, the victors incorporated it into Article 16 of the Covenant of the League of Nations, thanks to the impulse of British and French delegates at the Paris Peace Conference of 1919. The idea was to have an instrument capable of resisting anyone who defied the new order established by the treaties, thus, transforming sanctions from “a wartime institution to a peacetime institution”.
In detail, the article provided that if a State committed an act of war against the other members of the Society, then, they would interrupt commercial, financial and personal relations. Woodrow Wilson, President of the United States during the IWW, described sanctions as something more destructive than a war, as they could lead to absolute isolation and social collapse. The effects of the pressure on civilians and the state of misery they could create were already clear to erstwhile internationalists and, perhaps, declaring it openly was aimed at dissuading states from illicit conduct.
The first attempt to apply sanctions was on Italy, following the invasion of Ethiopia in 1935, but it was a failure. The new organization for international security, that was crested in the aftermath of the Second World War, was aware of the limits and elaborated a more precise definition.
The Charter of the United Nations specifies the difference between an international sanction –which intends to end an unlawful conduct – and the sanction that exists in domestic law – of a persecutory nature. In technical terms, the economic coercion implemented by the so-called “sender state” is not a punitive strategy but is aimed at modifying a certain behavior or a certain choice of policy adopted by the “target state”. In this way, the state object of restrictions is forced to choose between changing its actions or bearing the cost and the consequences.
The literature has not empirically demonstrated the effectiveness of sanctions. This has always depended on variables that have determined distinct outcomes. The main factor that defines the effectiveness of sanctions is the ability of the sending state to impose costs and that of the target state to bear them. In addition to these, there is also the element of economic and political stability of the target state that, therefore, influences the duration of the sanctions. In relation to this, there are two distinct orientations. On the one hand, it is believed that the longer the sanctions are lasting, the more the target state will weaken; on the other hand, it is believed that if the sanctions are effective then their duration will be shorter.
Economic restrictions: the Iraqi case and the humanitarian effects.
In the wide sphere of economic restrictions, there is a distinction between trade measures (which concern imports and exports) and financial measures (restriction on aid or subsidies and the freeze on foreign assets). Their nature determines an important difference that concerns those who suffer the effects of such sanctions. While the former can cause significant damage to the economy and therefore relapsing the costs on citizens, the latter affect the ruling elites as the restrictions are more directed to individuals who cannot access foreign money.
An important example of economic sanctions – adopted by the international community – that have harmed the civilian population is that of Iraq. In the aftermath of the Iraqi invasion of Kuwait on 2nd of August 1990, the United Nations Security Council – the executive body responsible for maintaining international peace and security – adopted several resolutions. Resolution 661 of 6th of August 1990 is one of the most complex and articulated. It established the economic embargo which caused, according to a 1995 FAO study, the death of 560. 000 children and, according to a UNICEF survey, the malnutrition of almost 10% of infants. Resolution 687 of 3 April 1991 explained, in the paragraph 20, that the embargo was not intended to be applied to food and health goods.
Nevertheless, the sanctions imposed extremely difficult conditions on the Iraqi people; they were totally dependent on the regime which provided essential goods only to those who were part of the regime’s entourage. The Oil for Food program12 established that Iraq could export oil in order to finance the purchase of essential and humanitarian goods. This agreement strengthened Baghdad’s dependence on the United Nations, but rather than weakening Saddam Hussein’s power, it strengthened his regime because it was able to supply and distribute food. The situation led to the denunciation and resignation of the head of UN Humanitarian Aid who, accused that the real situation was being ignored and he called the program “a palliative applied to a sick person who is about to die”.
The Iraqi case has given rise to an important reflection developed by policymakers because of the criticality of the results achieved with the sanctioning policy. In particular, the pressure came from humanitarian and non-governmental organizations and from independent research centers. Human Rights Watch, for example, drafted a document in which it expressed concern about the plight of Iraqi citizens, calling for a change to the embargo. The awareness of the negative impact of sanctions on civilians urged the United Nations to established sanctions in accordance with the principle of proportionality between objectives and the protection of human rights.
The subjects of sanctions are not only state but also entities and individuals. In this case the restrictions are defined as smart sanctions or targeted sanctions. For each threats the Security Council has decided to impose measures in response to it and a Security Council Committee manages the sanctions regime. It publishes the names of individuals and entities – listing procedure – as well as information concerning the specific actions. The related process of cancellation is called de-listing.
Targeted sanctions especially restrict the freedom of movement and the financial rights. As regards financial restrictions, they can consist in “freezing assets abroad, restricting access to financial markets and even prohibiting loans or credits”. To be effective, is required the cooperation from financial institutions and from the members of the international community. Moreover, there are Commissions designated to monitor the execution of sanctions. The periodic analysis also underlines the impacts on the population because, despite the fact that the creation of smart sanctions was aimed at countering the remarkable impacts of comprehensive sanctions – such as the aforementioned embargo – they have repercussions on the community.
That is why for the Committee and the Humanitarian Agencies it is necessary to have access to the status of the population in order to ascertain possible violations. The issue of individual sanctions raises doubts about compliance with fundamental rights. Inclusion within the lists itself is not always accompanied by a clear and well-defined process, and this violates “the right of access to justice and the fair trial principle”. The call for greater transparency also comes from the United Nations which, over the years, has adopted amendments to improve the system of sanctions.
In this regard the Court of Justice of the European Union stated that the listing and de-listing procedures, established within the framework of the United Nations, “do not ensure to individuals the protection of the rights of defence in accordance with the standards imposed by Community Law ”not applying, in the case, the community regulation implementing the sanctions decided by the Security Council.
Sanctions in the European Union system
Even the European Union, in fact, adopts sanctions established by the Committee although EU is also equipped with an independent sanctioning regime. The legal basis for the sanctions is found in Article 29 of the Treaty on European Union and in Article 215 of the Treaty on the Functioning of the European Union. The measures are taken in order to protect the interests and the security of the European Union, to consolidate and to maintain democracy and to ensure the respect of the rule of law principle and of human rights, thus preventing conflicts.
The restrictions are applied, also in this case, with the aim of obtaining a change in the conduct of a state (even a non-member state), of an entity or of a subject. The procedure provides that the measures are defined by the Decisions of the European Council and that they are implemented through a Regulation – immediately enforceable. They are submitted to a constant review.
An example of sanctions adopted by the European Union concerns the case of the Republic of North Korea. Following the nuclear tests of October 2006, the EU – in addition to having fully incorporated the sanctions established by the Security Council since Resolution 1718 of 14 October 2006 – adopted measures autonomously. Council Regulation 696/2013 of 22 July 2013 provided for financial restrictions, including “an expansion of asset freezing measures to individuals or entities acting on behalf of designated persons or assisting in the violation of sanctions” and “restrictions for EU financial institutions on establishing and maintaining correspondent banking relationships with DPRK banks”. The most recent review, on 21 April 2022, led to the addition of eight other individuals and four entities involved in the nuclear programme.
The Republic of North Korea has also been sanctioned, autonomously, by several states of the community. Among all, the restrictive actions taken by the United States are relevant. The US sanction regime is particularly complex. The delegated authority to enforce economic sanctions, both commercial and financial, is the Office of Foreign Assets Control (OFAC) of the Department of the Treasury. Restrictions are based on national security objectives and are defined in accordance with foreign policy choices. To safeguard the political and territorial integrity of the United States, the country takes steps to oppose hostile governments, dangerous individuals – OFAC manages the Specially designated nationals and blocked persons list or SDN – including terrorists, drug traffickers and/or subjects involved in the weapons of mass destruction (WMD) trade.
Sanctions against individuals are often linked to the phenomenon of terrorism and the problem of non-conventional weapons. In the aftermath of September 11, and consequently the war on terrorism launched by the Bush Administration, the international community defined the problems of terrorism and WMD a threat to international peace and security. On the basis of these assumption, the international community by monitoring and freezing funding tries to obstruct illicit traffic and illicit financing of non-conventional arms programmes.
Can Diplomacy help to avoid international sanctions?
Sanctions represent a form of coercive diplomacy. The adoption of the measures provided in Article 41of the Charter of the United Nations has always followed the adoption of resolutions urging the target state to cease illicit conduct. The instrument of diplomacy has always been at the base of the structure of the Organization but, sometimes, it has proved to be ineffective. For this reason, in recent years there has been an important use of sanctions and restrictions even simultaneously with an attempt to diplomatic resolution.
The search for dialogue and compromise with a subject who has committed an international offense is evidently difficult to achieve. Often the acts that demand this coercive intervention are of a certain gravity and require rapid actions. The timing of diplomacy is slower and often an immediate intervention is necessary to avoid the aggravation of the situation. Moreover, in
most cases, hostile actions – that do not respect the principles and to the rules of the international community – are adopted by non-communicative leading figures and this makes the process even more difficult.
The outcomes of the adoption of sanctions depend on many factors and on the situations to which they are applied. The new interdependent reality – both from the economic and financial point of view – on the one hand represents a problem because it can cause a domino effect despite opting for targeted sanctions; on the other hand, it encourages the affected subjects to put an end to illicit behavior because the network of economic ties is able to arouse important damage.
They represent a border instrument between diplomacy – made up of dialogue and peaceful solution – and the conflict, characterized by the use of force. Undoubtedly, the adoption of sanctions is a clear sign of opposition to a certain conduct or of support for an injured state within the international community.
As highlighted above, the existing sanctioning regimes have contradictions and limitations but, despite this, in some cases they have proved effective. Nevertheless, the adoption of coercion must be accompanied by a work of mediation and cooperation between the states of the international community as well as an activity of control and protection of the fundamental rights and the norms of international law.
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