Unilateral Sanctions in the Context of Modern International Law

Sanctions in modern international law

In modern international law, sanctions are one of the most common forms of State responsibility, which occurs as a result of violations of generally recognized norms that are important to the world community. Modern international legal documents do not imply a clear definition of the concept of sanctions. As a rule, sanctions are understood as coercive actions taken by one State or a group of States in order to convince and compel a certain State to stop actions that violate international law. However, violation of international law is not the only reason why coercive actions in the form of sanctions can be applied. In practice, they may be introduced due to threats to peace and security, acts of aggression that violate peace and security ^[3].

Thus, the fundamental international legal document - the UN Charter does not provide for the concept of "sanctions" at all, rather it is about specific restrictive measures. Article 39 of Chapter VII gives the Security Council the right to take measures prescribed in Articles 41 and 42 in cases of any threat to the peace, any violation of the peace or an act of aggression to maintain and the restoration of international peace and security. Article 41 refers to "coercive actions" that "include the complete or partial interruption of economic relations, rail, sea, air, postal, telegraph, radio or other means of communication, as well as the severance of diplomatic relations." It is important to note that international sanctions can be imposed only on the basis of Article 41 of the UN Charter, and only in this case they can be considered legitimate. Article 42 presupposes the use of military force in cases where the measures provided for in article 41 are insufficient.

The UN Security Council sanctions are dominant in force. This is spelled out in Article 103 of the UN Charter, which states that the obligations of the Members of the Organization take precedence over their obligations under any other international agreement. Chapter VIII of the UN Charter on regional agreements clearly spells out the role of regional organizations, including in the implementation of coercive measures. The most important article is Article 53, according to which regional organizations can exercise sanctions pressure against a country under the leadership of the UN Security Council. On the one hand, regional organizations can adhere to the sanctions imposed by the UN Security Council, on the other hand, they themselves can impose sanctions only with the approval of the UN Security Council. It is also worth noting the contents of Article 54, according to which the UN Security Council "must always be fully informed about actions taken or planned by regional agreements or regional bodies to maintain international peace and security," which indicates the primary role of the UN in these issues.

It should be noted that the sanctions adopted by the UN Security Council under Articles of Chapter VII are final and are not subject to revision. Neither the International Court of Justice nor any other organization can challenge them. The decision that the International Court of Justice cannot give a legal assessment of the sanctions measures of the UN Security Council was made after the case of Libya against the United States and is enshrined in the judgment of the International Court of Justice of February 27, 1998 [Judgment of February 27, 1998. International Court of Justice]. According to paragraphs 39-44 of this document, the Court cannot make decisions regarding the articles of Chapter VII, which relate to the introduction of coercive measures that are binding on all Member countries and are final. As for other instances, it is worth mentioning paragraph 2 of Article 24 of the UN Charter, which states that the Security Council "acts in accordance with the Purposes and Principles of the United Nations." However, there are no special bodies within the UN system that would verify compliance with this requirement. In this context, there is concern about the arbitrariness of the Council's actions. The only way to prevent arbitrary decisions is paragraph 3 of Article 27 of the Charter, which provides for the requirement to reach consensus, there are no other checks. This implies the need to maintain a balance of power between the permanent members of the UN Security Council in order to increase the legitimacy of decisions on the introduction of coercive measures ^[2].

The lifting of previously imposed sanctions can be carried out only with the support of all permanent members of the UN Security Council. Thus, the regime of comprehensive sanctions against Iraq persisted for 10 years, until the United States voted for its abolition after achieving a change in the political regime and the entry of troops into the country ^{[2, p. 33]}.

The UN Charter does not prescribe a mechanism for the application of sanctions by unilateral actors, either under UN control or independently. The UN member States must act in accordance with the adopted sanctions resolutions. However, in practice, regional organizations and unilateral actors are increasingly bypassing the UN. First of all, they refer to the inactivity of the UN Security Council or challenge the time, form and wording of the UN Security Council sanctions ^{[2, p. 42]}.

There is also no mechanism of legal protection against arbitrariness in the decisions of the Council when imposing and determining the scope of sanctions. Within the framework of the established international legal system, UN Security Council resolutions under Chapter VII are dominant in comparison with decisions of other international bodies and obligations of member countries under international treaties. This applies to the General Assembly, the International Court of Justice, and the WTO. Thus, if the Council imposes economic sanctions against a State, the provisions of the GATT on freedom of trade cease to apply.

Sanctions from the point of view of humanitarian law

The negative humanitarian consequences of sanctions on the civilian population of the target countries have provoked the need to consider sanctions through the prism of human rights and international humanitarian law. Human rights activists reacted particularly sharply to the sanctions imposed against Iraq. In 1996, American scientists conducted a study according to which hundreds of thousands of people suffered from these coercive measures. However, there is no mechanism within the UN system that could provide adequate legal protection against such consequences. Moreover, no other organization can do this. According to paragraph 2 of Article 24, the obligations of the UN Security Council do not guarantee protection from possible violations of human rights. Moreover, some lawyers believe that Article 24 emphasizes the dominance of the UN Charter over all other international legal documents ^[10].

There is not a single section in the UN Charter that says that the UN Security Council must act in accordance with International humanitarian law in cases when the UN Security Council adopts a resolution on the use of military force. However, the UN officially recognized that within the framework of Chapter VII concerning the entry of armed forces, the organization's actions are limited by the basic principles of international humanitarian law, but this is not legally fixed in any way. The basic principles of humanitarian law, which, according to some lawyers, should be observed by the UN Security Council, are: the principle of military necessity, the principle of proportionality or proportionality, the principle of distinction. According to the first principle, military force can only be used to fulfill objective military objectives. The second principle prohibits the use of such military force that will provoke accidental deaths among civilians or material damage to the civilian population, or both, provided that the consequences for the civilian population will not be commensurate with the benefits that military intervention can bring. And the third principle states that persons who do not participate in hostilities should not intentionally become a target for military purposes ^[12].

So, some lawyers believe that the UN Security Council sanctions are also a weapon, as they can cause serious damage to the civilian population. Consequently, the above principles of international humanitarian law are applicable to the sanctions resolutions of the UN Security Council. Recent discussions around sanctions against Afghanistan, Liberia and Iraq demonstrate that the UN Security Council is trying to adapt a more "smart" approach to sanctions restrictions in order to avoid serious humanitarian consequences.

However, it should be noted that lawyers are arguing about how international humanitarian law can be adapted to sanctions. IHL is not directly applied to sanctions, its application occurs by analogy. The basic principles of IHL apply to military actions, whereas UNSC sanctions do not imply the use of military force. That is why many lawyers and politicians in the UN Security Council refuse to recognize the connection between the IPG and sanctions, emphasizing that coercive methods cannot cause serious humanitarian damage, much less lead to civilian casualties ^{[2, p. 32]}.  

Unilateral sanctions in the context of international law

From the point of view of international law, unilateral sanctions in comparison with multilateral ones can only be considered "legitimate" in exceptional cases. To date, State sovereignty is not a sufficient basis for the use of coercive measures by one State against another State. Modern international law establishes specific rules of conduct for States, which ensures the realization of their "sovereign equality". There are only two cases in which countries can legally use sanctions measures: a threat to national security and countering the misconduct of other States. In other cases, unilateral sanctions contradict international law and violate the existing order^{[2, p. 44]}.

First of all, unilateral economic sanctions violate the WTO free trade regime, namely the principle of non-discrimination underlying the GATT (Article I "General regime most favorable to the nation"). Moreover, in accordance with this principle, the foreign partner must be reliable and predictable, but the application of sanctions contradicts this requirement.

Article XXI of the GATT and Article XIV of the GATS imply "exceptions for security reasons", which is often used by States to justify sanctions measures. As noted earlier, the application of sanctions can be considered legitimate when there is a threat to national security. However, the vagueness and inaccuracy of the wording of "exceptions for security reasons" allows States to freely interpret them in their favor, and this does not depend on whether the situation meets the criteria of "exclusivity". Article XXI of the GATT states that a State may take advantage of this exception if there is a threat to "its essential security interests." The document rather vaguely indicates the areas that fall under this exception. On the one hand, they talk about "fissile materials", "trade in weapons, ammunition and military materials". On the other hand, it is about the actions that the country takes "in wartime or in other extraordinary circumstances in international relations." At the same time, the article does not indicate what "extraordinary circumstances" mean. Moreover, according to the GATT, States should not justify in any way the existence of a threat to "essential security interests". Within the WTO system, bodies such as the General Council and the WTO Appellate Body, consisting of seven independent experts, are required to resolve disputes that arise, but the criteria for "self-determined security exceptions" have not been worked out, which leads to abuse by state actors.

As noted earlier, another case in which States can use unilateral sanctions is countering the illegal international activities of other States. The document that is most often used to justify the realization of this goal is UN General Assembly Resolution 56/83 of December 12, 2001 "Responsibility of States for international legal acts" (it should be noted that it is non-binding). According to paragraph 1 of Article 49 of this document (Purpose and limits of countermeasures), under certain circumstances, a State "may take countermeasures against a State responsible for an internationally wrongful act only with the aim of inducing that State to fulfill its obligations." It is important to note that Article 50 indicates that these countermeasures should not be in the nature of "reprisals" or "violate human rights". Moreover, they should not concern "the obligation to refrain from the threat and use of force." These provisions limit the possibility of applying sanctions by unilateral actors who claim to act on behalf of the entire world community, and emphasize the decisive role of the UN Security Council in this matter. It should also be emphasized that in paragraph 1 of Article 49 there is a clear indication that not any, but only the "injured State" can legally impose coercive measures for a certain period. The same paragraph states that, from a legal point of view, third States cannot act on behalf of the "injured State" and use coercive measures against the "responsible" country ^{[2, p. 42]}.

From a legal point of view, unilateral sanctions can be legitimate only in exceptional cases. Otherwise, they largely violate general international law. They constitute a violation of the fundamental principles of sovereign equality referred to in Paragraph 1 of Article 2 of the UN Charter, as well as the principle of non-interference in the internal affairs of other States described in paragraph 7 of Article 2 of the UN Charter. Moreover, unilateral sanctions more often than multilateral ones lead to human rights violations.  Another significant problem in the context of unilateral sanctions is the issue of extraterritorial jurisdiction. Some countries are increasingly applying national law beyond State borders. They try to regulate and even make and execute court decisions regarding the behavior of specific persons, property relations or actions outside borders that affect the interests of the State, if there are no relevant norms in international law.

Thus, from the point of view of international law, sanctions are an instrument for ensuring collective security, and they can be legitimate only when they are applied by the UN Security Council on behalf of the world community in the interests of security. The legality of the application of regional sanctions is limited by the charters of regional organizations. At the same time, unilateral sanctions measures due to their incompatibility with the principle of sovereign equality of States are a manifestation of lawlessness and anarchy in international relations. The only exceptions to the application of such sanctions (threat to national security and countering the misconduct of other states) are not applicable to the US sanctions considered in the study. Consequently, these restrictive measures are nothing more than a tool for promoting American national interests of the United States and weakening political and economic rivals.