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Unfinished Business of International Law: The Questionable Legality of Autonomous Sanctions

  • Devika Hovell (a1)
Extract

Enforcement by way of unilateral economic sanctions has been described as “one of the least developed areas of international law.” The term “sanctions” is notoriously difficult to define and does not itself appear in the key international instruments. With economic sanctions regularly referred to as President Trump's “weapon of choice,” and with opposition to such measures growing, greater certainty is needed in this area of law if the legitimacy and effectiveness of sanctions are to be preserved. This essay distinguishes UN-authorized sanctions from three types of “autonomous” sanctions (collective corrective sanctions, unilateral corrective sanctions, and unilateral coercive sanctions) and argues that many uses of unilateral sanctions are either unregulated or based on questionable legality.

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This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
References
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1 Nigel D. White & Ademola Abass, Countermeasures and Sanctions, in International Law 537 (Malcolm Evans ed., 2014).

2 Prosper Weil, Towards Relative Normativity in International Law?, 11 AJIL 413, 418 (1983).

3 UN Charter art. 33(1).

4 @realDonaldTrump, Twitter (Nov. 2, 2018, 11:01 AM).

5 Dames & Moore v. Regan, 453 U.S. 654 (1981).

7 Harold H. Koh & John Yoo, Dollar Diplomacy / Dollar Defense: The Fabric of Economics and National Security Law, 26 Int'l Law. 717, 744 (1992).

8 Angela Keane, Pro Policy Summit: Live Updates and Highlights, Politico (Sept. 14, 2017).

9 Gibson Dunn, 2017 Year-End Sanctions Update (Feb. 5, 2018).

10 Gibson Dunn, 2018 Year-End Sanctions Update (Feb. 11, 2019).

13 G.A. Res. 73/8 (Nov. 5, 2018).

15 Tom Ruys, Sanctions, Retorsions and Countermeasures: International Concepts and International Legal Framework, in Research Handbook on UN Sanctions and International Law 19 (Larissa Van den Herik ed., 2017).

18 Inken von Borzyskowski & Clara Portela, Sanctions Cooperation and Regional Organizations, in Interorganizational Relations in International Security: Cooperation and Competition (Stephen Aris et al. eds., 2018).

20 Vienna Convention on the Law of Treaties art 34., May 23, 1969, 1155 UNTS 331.

21 Marco Gestri, Sanctions Imposed by the European Union: Legal and Institutional Aspects, in Coercive Diplomacy, Sanctions and International Law 99 (Natalino Ronzitti ed., 2016).

22 Those who cite Nicaragua as authority against the legality of collective countermeasures ignore the fact that the Court was there referring to “collective countermeasures involving the use of force.” Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 165, 167 (June 27).

23 Int'l Law Comm'n, Articles on the Responsibility of States for Internationally Wrongful Acts arts. 49-54, 2 Y.B. Int'l L. Comm'n 31, 75 (2001).

24 Devika Hovell, Due Process in the United Nations, 110 AJIL 1 (2016).

25 Int'l Law Comm'n, Commentaries to ILC Articles on State Responsibility, in Report of the International Law Commission on the Work of its Fifty-third Session, UN GAOR, 56th Sess., Supp. No. 10, at 43, UN Doc. A/56/10, at 139 (2001).

26 Antonios Tzanakopoulos, The Right to be Free from Economic Coercion, 4 Cambridge Int'l L.J. 616, 617 (2015).

27 Philippe Sands, Unilateralism, Values and International Law, 11 EJIL 291, 293 (2000).

28 Case Concerning the Air Services Agreement of 27 March 1946, Arbitral Award of 9 December 1978, 54 ILR 304, [91] (1979).

29 UN Doc. A/HRC/30/45, at para. 13 (Aug. 10, 2015).

30 See also Ruys, supra note 15, at 50.

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