Sanctions in International Law

by

Boris Kondoch

• LAST REVIEWED: 28 September 2016
• LAST MODIFIED: 28 September 2016
• DOI: 10.1093/obo/9780199743292-0191

Introduction

After the end of the Cold War, sanctions have become an increasingly popular instrument of foreign policy. Since 1990, the United Nations Security Council has applied sanctions with varying degree of success, among others, against Afghanistan, Cambodia, Haiti, Iran, Iraq, Liberia, Libya, North Korea, Rwanda, Somalia, Sierra Leone, Angola, Sudan, and Yugoslavia. Prior to the end of the Cold War, the Security Council only imposed sanctions against South Africa (1962–1994) and against Southern Rhodesia (1965–1979). As of 2016 there are currently fifteen sanction regimes adopted by the Security Council in place. The latest set of sanctions has been adopted by Security Council resolution 2270 in March 2016 against the DPRK; after North Korea’s fourth nuclear test. UN sanction regimes serve broadly five different objectives: (1) conflict resolution; (2) the non-proliferation of weapons of mass destruction; (3) counter terrorism; (4) democratization; and (5) the protection of civilians. While sanctions were originally more comprehensive in nature, nowadays they are generally targeted. Targeted––sometimes called smart sanctions––are directed against states, but also at nongovernmental entities and even specific individuals. Sanctions may be analyzed from different angles. Scholars address the historical, economic, ethical, political, and legal aspects of sanctions. Questions frequently asked concern the effectiveness, objectives, and strategies behind sanction regimes, and how sanctions are implemented and complied with. There is in general a plethora of academic literature on sanctions. The following research guide therefore focuses on sanctions from the perspective of international law. This review mainly deals with sanctions decided by international organizations.

General Overviews

As explained by Farrall 2007 there is no commonly agreed definition of sanctions under international law. Abi-Saab in Gowlland-Debbas 2001 defines sanctions as “coercive measures taken in execution of a decision of a competent social organ, i.e., an organ legally empowered to act in the name of the society or community that is governed by the legal system.” Although unilateral measures taken by states including the suspension of diplomatic relations or restrictions on trade are sometimes labeled as sanctions, there appears to be a common understanding that the term refers to multilateral measures adopted by states through the United Nations or another international organization. The legal framework regulating sanctions may be found in the law of international organizations, general international law, and national law. International lawyers have focused, inter alia, on the following questions: the place of sanctions in the international legal system, which has been broadly discussed in Gowlland-Debbas 2001; the legal limitations upon sanction regimes; the relationship between international human rights law and sanctions; the relationship between international humanitarian law and sanctions; legal problems concerning the implementation of sanctions under domestic law, which have been explored by Farrall 2009 and Gowlland-Debbas 2004; the judicial review of and remedies against sanctions; and the legality of countermeasures against wrongful sanctions which is addressed in Tzanakopoulos 2011. In general, sanctions have to be adopted in accordance with the constituent instrument of the international organization. Although there is no scholarly agreement on the exact scope of the substantive limits, legal limitations flow from ius cogens obligations and the principle of proportionality. O’Connell 2002 provides a comprehensive summary of the limits of sanctions. Valuable starting points for understanding the legal framework applicable to sanctions are Farrall 2007, Schmalenbach 2006, and White and Abass 2014.

• Carneiro, Cristiane, and Dominique Elden. “Economic Sanctions, Leadership Survival, and Human Rights.” University of Pennsylvania Journal of International Law 30.3 (2009): 969–998.

  The articles analyzes the causal link between economic sanctions and leadership change by taking into account four case studies: European Community against Turkey (1981–1986); Australia, New Zealand, and India against Fiji (1997–2003); United States and Japan against Pakistan (1999–2001); United Nations and The Economic Communities of West African States (ECOWAS) against Sierra Leone (1997–2003).

• Farrall, Jeremy Matam. United Nations Sanctions and the Rule of Law. Cambridge, UK: Cambridge University Press, 2007.

  DOI: 10.1017/CBO9780511494352

  The first chapters of the book summarize all UN sanctions adopted between 1966 and 2006. The major focus of the study is to explore the relationship between sanctions and the rule of law. In the final chapters, Dr. Farrall makes a number of recommendations on how to improve sanctions from a normative point of view.

• Farrall, Jeremy Matam, ed. Sanctions, Accountability and Governance in a Globalised World. Cambridge, UK: Cambridge University Press, 2009.

  This is an edited volume which explores how public law and international law intersect in the area of sanctions. The books includes chapters, among others, by leading scholars such as Erika de Wet and Simon Chesterman.

• Gowlland-Debbas, Vera, ed. United Nations Sanctions and International Law: Colloquium on United Nations Sanctions and International Law 1999, Genève. The Hague: Kluwer Law International, 2001.

  The edited volume contains one of the most comprehensive studies on sanctions. The authors who are all imminent scholars, not only address sanctions adopted by the Security Council but also examine sanctions imposed by regional organizations, unilateral sanctions by states, and unilateral countermeasures.

• Gowlland-Debbas, Vera, ed. National Implementation of United Nations Sanctions. Leiden, The Netherlands: Nijhoff, 2004.

  Another edited volume by one of the leading international law experts on sanctions, Vera Gowlland Debbas. The volume examines the implementation of UN sanctions in sixteen different countries.

• O’Connell, Mary Ellen. “Debating the Law of Sanctions.” European Journal of International Law 13.1 (2002): 63–79.

  DOI: 10.1093/ejil/13.1.63

  Mary Ellen O’Connell provides an overview on the shifting debate among international lawyers beginning with the ultra vires debate in 1965 to the effectiveness debate in 1990 and the humanitarian impact debate in 1995 after the imposition of sanctions against Haiti and Iraq.

• Schmalenbach, Kirsten. “International Organizations or Institutions, Supervision and Sanctions.” In Max Planck Encyclopedia of Public International Law. Vol. 3. Edited by Rüdiger Wolfrum. Oxford: Oxford University Press, 2006.

  Looks at key issues of supervision and sanctions in regard to international organizations. Although there has been improvement with regard to the effectiveness and flexibility of targeted sanctions in recent years, Professor Schmalenbach points out that “some crucial issues . . . remain unresolved, eg human rights protection, the limitation of unintended side effects, as well as the improvement of national capacities and the infrastructure required for steady and uniform sanction implementation.”

• Tzanakopoulos, Antonios. Disobeying the Security Council. Oxford: Oxford University Press, 2011.

  DOI: 10.1093/acprof:oso/9780199600762.001.0001

  An important study addressing the legal responsibility of the United Nations for wrongful sanctions and how state’s disobedience toward UN’s sanctions should be viewed from the perspective of international law.

• White, Nigel D., and Ademola Abass. “Countermeasures and Sanctions.” In International Law. 4th ed. Edited by Malcolm Evans, 537–562. Oxford: Oxford University Press, 2014.

  Argue that non-military sanctions adopted by the Security Council under Chapter VII are compatible with international law but subject to the limitations of human rights and proportionality. One of the best overviews on the subject.