Ali Akbar Rouf
Undoubtedly, unilateral sanctions have emerged as the main tool for addressing any geopolitical crisis. Sanctions have historically been the first step in forcing the alleged offender to change course, whether it be regarding the human rights situation in Myanmar or the nuclear programs of Iran and North Korea. The most extensive and well-organized measures adopted against a major power since World War II are the sanctions recently applied against Russia for invading Ukraine.
A review of their validity under international law is necessary given the widespread usage of this tool. The use of coercion during the war has been one of the characteristics that have distinguished engagement throughout the history of international relations, as shown by state practice. Blockades, retaliation, embargoes, purposeful starvation of the enemy’s people, etc. are only a few of the coercive tactics used during the armed conflict that has, over time, come under the purview of several international legal instruments.
Despite sporadic transgressions, many international standards, such as the requirement to permit the unimpeded movement of vital supplies like food and medicines during armed conflict, have attained universal approval. Even so, the international legal framework governing unilateral economic sanctions and other non-lethal forms of coercion that are used even in times of peace is still in its infancy. Although Chapter VII of the UN Charter permits the imposition of sanctions, these sanctions are in the form of collective action undertaken under the auspices of the UN Security Council (UNSC) to compel a country to stop its actions that threaten or violate international peace and security.
The UN Charter does not recognize unilateral measures, either forcible or non-forcible, by any member state except the right to self-defence as an interim measure.
In general, the international community has viewed unilateral economic sanctions as acting outside of the boundaries set forth by international law. For instance, 189 nations (a majority) voted in favour of the UNGA resolution from 2018 denouncing the US restrictions on Cuba, which have been in place since 1962, while only two states-the US and Israel-voted against it. The resolutions state that applying unilateral coercive measures infringes on a state’s responsibility to act internationally under the UN Charter.
This is so because member countries are required by Article 2(3) of the UN Charter to settle their disputes amicably. The peaceful resolution of disagreements is never helped by sanctions that are often applied uniformly. For instance, the extensive sanctions that the US imposed on Iran to offset its nuclear program have not produced any fruitful results, and the two parties continue to be at odds. Economic sanctions have little effect other than to make civilian suffering in the targeted state worse, and they cannot be relied upon to bring about a peaceful settlement of a conflict.
Furthermore, economic sanctions contravene UN Charter Article 2(7), which forbids non-interference in a state’s internal affairs, especially when they are extra-territorial. The threshold for intervention is met when one state forces another “to change its policy or cause of action, not through influence or persuasion but through threats or the imposition of negative consequences.” [iii] The economic juggernauts pressure the comparatively weak economies to discontinue doing business with the targeted state, influencing its foreign and trade policies, which are the sole purview of the state and should be free from outside intervention. This violates the fundamental tenet of international law-the sovereign equality of all states.
A civilian population’s means of subsistence could be taken away by unilateral sanctions. Take the situation in Iran’s healthcare system, which Human Rights Watch reports has been severely impacted by US sanctions. Sanctions have had a significant impact on the right to health, access to medications, and medical treatment of ordinary Iranians. They have drastically curtailed Iran’s ability to finance humanitarian imports.
The persistent possibility of secondary sanctions that could unintentionally affect them serves as a strong deterrent for foreign investors, international organizations, and foreign businesses to conduct business with the targeted state. Everybody’s lives and human rights are impacted by this economic impasse, but notably the most marginalized members of society. This goes against human rights agreements like the International Covenant on Economic, Social, and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), both of which state in their common Article 1 that “in no case may a people be deprived of its means of subsistence.”
However, there is one situation in which it is acceptable to impose economic sanctions. That situation arises when the targeted state violates its commitments under international law and carries out an “internationally wrongful act” that may be traced back to the targeted state. The imposition of countermeasures is permissible to persuade the offending state to fulfil its commitments and stop the incriminated wrongdoing. However, those measures shouldn’t be punitive and should just be intended to stop the wrongdoing. Additionally, countermeasures should end as soon as the wrongdoing stops operating and must be proportionate. The commitments to uphold fundamental human rights must always be respected, and countermeasures must not infringe on the peremptory norms of international law-those standards from which there is never a justification for deviating.
The majority of unilateral economic sanctions that are applied are not intended to punish wrongdoing, even though there are rules on state accountability and countermeasures. For instance, penalties imposed on Iran and North Korea for their nuclear weapons programs do not constitute wrongful acts. Nuclear weapons proliferation and even their use are not per se illegal, according to the International Court of Justice’s Nuclear Weapons Advisory Opinion. Since the Nuclear Non-Proliferation Treaty itself permits withdrawal under Article X on the grounds of “protection of the supreme interests of a country,” neither Iran nor North Korea has committed an illegal act in light of this decision and general state practice regarding nuclear proliferation.
As a result, these nations are subject to punitive sanctions. The situation with Cuban sanctions is comparable. According to the 1992 Cuban Democracy Act, the goal of placing sanctions on Cuba is to persuade it to move in the direction of democratization. There is no provision in international law that requires a nation to adhere to a certain form of government. Political considerations drive the imposition of sanctions on such a flimsy basis.
The lack of any judicial scrutiny of these sanctions and countermeasures makes them an arbitrary exercise of power on the part of the states. Countermeasures may be unlawful if a state has failed to observe the above-mentioned conditions and limitations. The risks that this economic weapon poses should not be ignored. Sanctions, in their most powerful form, can become weapons of mass destruction. Thus, to ignore these weapons, which have the ability to shake the very foundations of a country and destroy its central institutions, firms, lives, and even livelihoods, is nothing but a travesty of justice.
Given the seriousness of the harm that can result from the imposition of sanctions, a proper system of checks and balances in the form of judicial review is preferred. In a recent ruling on the Iran-US sanctions issue, the International Court of Justice (ICJ) determined that it has jurisdiction to rule on the case’s merits. This demonstrates that domestic laws that impose economic sanctions are not impervious to judicial examination.
