Author: Alimpan Banerjee
It was commonly believed for a long time that sanctions would negate the need of war and that in sanctions the international community had found an effective tool to make recalcitrant states conform to norms to uphold peace and international security. Former US President Woodrow Wilson stated in 1919 that “A nation that is boycotted is a nation that is in sight of surrender. Apply this peaceful, silent, economic and deadly remedy and there will be no need for the use of force.” ((G C Hufbaeur, J.J Scott, et.al, Economic Sanctions Reconsidered [7thedn. West Group Publishers 1990] 126))However, over the last decade economic sanctions has been subjected to constant criticism across jurisdictions. The evolution of a more functional Security Council in recent times has brought about a sharp rise in the use of economic sanctions. However, the experience with sanctions imposed on countries like Iraq. Rhodesia and Haiti during the 1990’s has brought to the fore the ethical and legal ambiguities present in the international sanctions regime. In September 1999, Hans von Sponeck, the UN Co-ordinator for Iraq called for an end to most of these sanctions on Iraq to facilitate better flow of food and medicines to Iraq which was largely supported by the delegates in their deliberations in the General Assembly to seek an end to human suffering in Iraq. ((D.Jehl, ‘UN officials call for an end to sanctions against Iraq’, International Herald Tribune(IHT), 21 September 1999, ))Still sanctions retain their position in the toolbox of international statecraft as a more effective tool than diplomacy and a less cruel tool than war. With this background the first part of this article would be attempting to briefly delineate the flaws inherent in the present system of sanctions and consequently the broad legal and policy framework which the Security Council must adhere to in exercising its discretion in imposing economic sanctions. The second part of this article analyses the alternatives and possible solutions to the externalities caused due to the imposition of sanctions under the present system and explores ways through which the sanction can be made more ethical and humanitarian.
Present Legal and Policy Framework
This part of the article is divided into two halves firstly it analyses the framework of the Charter of the United Nations within which Economic sanctions function. The second part of this section evaluates the principle of proportionality and how it must guide the imposition of any sanction on a member nation.
Basic Rules under the Charter of the United Nations
The Security Council has been empowered to enforce non-military measures to uphold peace and international security under Article 41 read with Article 39 of the UN Charter. The Security Council has been provided the discretion to decide what constitutes a threat to international peace and security and sanctions can be imposed every time members in their collective wisdom consider a situation to be a threat to international peace and security ((G. Ooustizhen, Playing the Devil’s Advocate: The UNSC is unbound by Law, 12 LJIL 549))which is the patent flaw in the present system. This is a controversy which has engaged contemporary scholars over the years. This was a contention which we see was contested between the two blocs at the stage of formulation of the provision as well. The Soviet Union wanted Articles 39 and 41 to be applicable to an exclusive catalogue of events in which sanctions could be imposed and the unbridled discretion to be curtailed. The UK and the US opposed it as they thought it would unnecessarily limit the effectiveness of the forum ((Doc.1 G/1, 3 UNCIO Docs, 15 )).But over the years the efficiency argument has not sustained itself as it has been used mostly to impose coercive measures by powerful lobbies with vested interests ((D.J Halliday, Impact of UN sanctions on the people of Iraq, 28 Journal of Palestine Studies, 32-33)).
Further the ICJ itself has categorically laid down that the political character of an institution or organ cannot release it from the obligations laid down by the UN Charter when they constitute limitations on its powers or criteria for its judgement ((Advisory Opinion, 1948 ICJ 64 [May 28])). The rights and functions of the UN must always depend upon the purposes enunciated in its constituent documents and there can be no derogation from the same ((Advisory Opinion, 1949 ICJ 174,180 [April 11])). With an increase in human rights awareness it is now widely recognised at the international level that granting unlimited power to any organ would be highly anachronistic ((Advisory Opinion, 1980 ICJ 73, 59-60 [December 20])). Neither the essence nor the text of the UN charter grants uncontrolled powers to the Security Council and it is not LegibusSolutus. Thus as observed by Justice Weeramantry in the Lockerbie Case the Security Council cannot be given powers in contravention of basic rules of international law ((Libya v. US, 1992 ICJ 114, 175 [April 14])).
Sanctions under other International Instruments
It also becomes imperative to assail some of the fallacious claims forwarded by some of the scholars who support the present regime of sanctions. It is argued on their behalf that as a matter of law, responsibility for a violation can only be attributed to a duty holder ((R.A Pape, Why Economic Sanctions do not work,22,Journal of International Security, 39-40,1997)). In most cases it is the individual member countries that have signed and ratified certain treaties and hence are obligated to protect their citizens and guarantee them certain rights. The UN or the Security Council as a multilateral collection of nations are not a party to international instruments like the ICESCR and CRC and hence their obligations are unfettered by the same. This assertion is wholly ill-founded and erroneous. The Committee on Economic, Cultural and Social Rights which administers the ICESCR and the CRC has held that the state or “entity” imposing sanctions must take into account the rights guaranteed by the aforementioned instruments and further take positive steps to alleviate any kind of suffering that might be imposed upon vulnerable groups in the targeted country imposing a positive duty on the UN and the Security Council ((UN document A/53/1of August 27, 1998, ¶ 62)). Thus any claim that such instruments are not applicable to the UNSC are not sustainable. Further, such instruments being in furtherance of objects of the UN it is obligatory for the UNSC to give them due regard.
Another argument popular among pro sanctions scholars is that the UNSC and its member nations cannot be held liable as they do not intend the human rights violations or the other externalities caused. It is done with the aim to make recalcitrant regimes conform to norms of international law ((G.A Lopez, Are Economic Sanctions Just?, 52, Journal of International Affairs,735-755, 1999)). This argument is scarcely tenable as with the modern day proliferation of information exchange among nations it is not hidden from the public that the actual suffering is mostly to the civilian population and sanctions which do not incorporate the necessary safeguards cannot be allowed to take the defence of unintended side effects because such a situation is easily foreseeable.
I.C Principle of Proportionality:The UN Charter contains no specific provision so as to adopt the measures enshrined in any particular order. Therefore, in theory the Security Council can adopt more extreme measures without resorting to minor rebukes at first ((YoramDinstein, , War Aggression and Self-Defense [Oxford Publishing House, New York,9thEdn. 2001])). However it is urged that the Security Council is bound by the principle of Proportionality which states that the punishment meted out should not be excessively harsh as compared to the actions. This can be inferred from the scheme of Articles 40 and 42 where the language used is “necessary” measures and hence it cannot be out of proportion ((EnzoCannizzaro, The Role of Proportionality in the Law of International Countermeasures, 12 European. Journal of International Law, 889, 909 )). Thus, the principle of Proportionality forms a part of the positive law employed by the Charter and any action in contravention to it would violate the basic principles enshrined in the Charter.
The principle in its practice is twofold. Firstly, it should be the necessary reaction to the actions committed by the state. To, this end the UNSC must try all other forms of rebukes before imposing sanctions. Secondly, the country should be adequately warned about the threat of imposition of sanctions as sometimes the warning in itself proves sufficient to change the target state’s behaviour ((U.N. Doc. A/AC.182/L.114/Rev.1 ¶ 1 )).
The sanctions must be targeted at the violators of the international terms and should be designed to achieve the adequate results. It may be argued that the most comprehensive sanctions would usually be the most effective and incorporation of any kind of safeguards would weaken the effectiveness of the sanctions, but this is not true. It has been seen that sanctions affecting the civilians as opposed to the regimes have proven to be highly ineffective as third party sympathizers circumvent the trade restrictions and supply the necessary resources to the ailing population ((Interim Report of the Inter-Agency Mission to Sierra Leone, U.N. SCOR, 53d Sess., U.N. Doc. S/1998/155 )). Sanctions must also take into account the long term costs involved with it as opposed to their immediate coercive impact. Most of the sanctions are on failing states and turn out to be safe havens for terrorists in the future due to their poor law and order situation. It also leads to economic hardship and suffering on the general populace, these effects have in fact increased the vulnerability of international security rather than uphold it ((Statement by the Deputy Chancellor and Minister for Foreign Affairs of Germany to the General Assembly, U.N. GAOR, 56th Sess., 48th plenary. Meeting., at 11, U.N. Doc. A/56/PV.48 (2001)). The inclusion of safeguards becomes necessary because if omission of them would make the civilians vulnerable, the principle of proportionality would mandate their inclusion.
Human Rights Violations:
One of the fundamental problems with the present policy framework is that it does not take into account well entrenched principles against human rights violations. Fundamental human rights set an outer limit to the exercise of discretion by the Security Council in imposing sanctions. The members of the Security Council has authorised the UNSC to act collectively on their behalf and hence it cannot pass on more powers than they themselves have. This is clear from the language of Article 24(1) of the UN Charter by which the member nations ‘confer’ the power to maintain international peace to the UNSC. Thus, the UNSC is bound by jus cogensprinciples of international law ((T. D. Gill, Legal and Some Political Limitations on the Power of the U.N. Security Council to Exercise Its Enforcement Powers Under Chapter VII of the Charter, 26 Yale Journal of. International Law, 33, 48 )). The Security Council is, at a minimum, bound to respect the right to life, which is not only non-derogable under the ICCPR ((Marc J. Bossuyt, Guide to the “TravauxPréparatoires” of the International Covenant on Civil and Political Rights [Marshall Publishing House, Buenos Aires, 7th Edition ,1987])), but which has also acquired jus cogens status. In support of this position, the recently submitted U.N. working paper on the criteria for imposing sanctions stipulated that future sanctions must not create a situation in which fundamental human rights are not violated ((Supra, at 14)).
The burden to act in good faith further forms a part of all civilised legal systems, it is likewise applicable to all legal systems ((Elisabeth Zoller,’La Bonne Foi en Droit International Public [Good Faith in Public International Law], [Oxford University Press, London, IIndEdition ,1997])). In case of the UN it is deducible from a reading of Article 2(2) of the Charter which enjoins upon the members as well as the UN a duty to act in good faith. More specifically, the Committee under the ICESCR has concluded that the provisions of the Covenant cannot be considered to be inoperative, or in any way inapplicable, solely because a decision has been taken that considerations of international peace and security warrant the imposition of sanctions. In addition, it is noteworthy that all permanent members of the Security Council have either signed or ratified the ICCPR and the ICESCR and thus the duty to act in good faith is binding on the UNSC which has blatantly transgressed by violating basic human rights in various countries.
The indiscriminate use of sanctions under status quo has also lead to widespread political repression. Any form of international sanctions gives an opportunity for oppositions of the ruling regime to launch a full blown attack on the Government and hence it is seen usually that the rulers use economic sanctions to justify their totalitarian measures and exercise absolute control in light of the economic hardships facing the country ((S. Vite, International Humanitarian Law and Human Rights Law, 293 ICRC Review 94 (1993)). This can be well understood on a close study of countries like Iraq, Haiti, Rhodesia etc. where sanctions were imposed with a view to protect civilian liberties but it ended up causing immense suffering to the populace in terms of lack of nutrition, access to medicines, standard of living etc. in gross violation of basic right to life and other human rights of individuals ((Paul Conlon, The Humanitarian Mitigation of U.N. Sanctions, 39 German Year Bookof International Law. 249, 250–51. )). Thus we can safely conclude from the discussion on this section that the lack of conformity to jus cogensnorms and the principles of good faith as enshrined in the UN Charter has led to immense political repression and human right violations amongst people of the world.
Changes and Alternate Methods
This part of the article would briefly focus on the changes which can be brought about in the present system of sanctions and also certain alternatives which could be equally efficacious. This would help in promulgating a new era where sanctions can retain their place in international statecraft and yet be humane and considerate to the suffering of the general public.
Sector specific sanctions are not new to the arsenal of international statecraft. The measures enumerated in article 41 of the U.N. Charter, which can be imposed alternatively or cumulatively, reflect this approach ((U.N. Charter, Art. 41)). They include measures like oil embargoes, trade restrictions and travel bans which has been used by the UNSC on an experimental basis in countries like Sierra Leone, Liberia, Sudan, Afghanistan etc. ((S.C. Res. 757, U.N. SCOR, 47th Sess., ¶ 8, U.N. Doc. S/RES/757 (1992))These measures have been found to be simultaneously effective and humane.
Though these measures provide an effective alternative to the present system of sanctions, humanitarian concerns about them have not totally seized to exist ((Matthew Craven, Humanitarianism and the Quest for Smarter Sanctions, 13 European. Jounal of International Law. 44, 48 )). The first prong of objections pertains to the fact that imposing sanctions only against the regime as opposed to the entire population or only on a specific sector will not protect the civilians from its long term externalities. A targeted sanction of flight ban or oil export embargo may cause harm to a state and its citizens if imposed during a time of crisis as was seen in the case of Haiti where a fuel embargo led to a dramatic rise in the prices of food products ((The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights: Working Paper, U.N. ESCOR, Sub-Commission on the Promotion and Protection of Human Rights., 52d Sess., ¶ 46, U.N. Doc. E/CN.4/Sub.2/2000/33 )). Secondly, even if they may be effective in certain situations they do not cover the entire gamut of events where these sanctions might have to be imposed. Certain situations may call for more comprehensive sanctions to generate the desired effects. For e.g. a targeted sanction in Iran might not be effective as they have endured threats of economic coercion and have continued to pursue their nuclear policy. Thus, targeted sanctions though effective might not be the solution all the problems plaguing the international regulatory system ((Supra, at 25)).
Humanitarian Exemption Clauses:
There is an international consensus to the effect that comprehensive sanctions cannot be ruled out completely. To that effect the inclusion of humanitarian exemptions becomes a viable and workable method to the imposition of sanctions. Humanitarian exemptions include basic items like food and medicines which the population needs for basic subsistence. There have been instances before when such exemptions have been incorporated like in the case of Southern Rhodesia ((S.C. Res. 217, U.N. SCOR, 20th Sess., U.N. Doc. S/RES/217 )). The Security Council also affirmed the importance of humanitarian exemption clauses in the preamble to Resolution 1333, in which it emphasized the necessity “for sanctions to contain adequate and effective exemptions to avoid adverse humanitarian consequences ((S.C. Res. 1333, U.N. SCOR, 55th Sess.,Preamble., U.N. Doc. S/RES/1333 )).”
The structural problem with imposing such humanitarian exemptions is that the job of execution is delegated to a highly secretive and unaccountable sanctions committee ((S.C. Res. 1127, U.N. SCOR, 52d Sess., ¶ 5, U.N. Doc. S/RES/1127 )).These committees are comprised of member states of the Security Council deciding by consensus and in closed sessions ((Mariano J. Aznar-Gomez, A Decade of Human Rights Protection by the U.N. Security Council: A Sketch of Deregulation?, 13 European Journal of International Law, 223, 230–41 )). They operate according to internally adopted guidelines; their practices are therefore highly divergent and range in approach from stricter to more lenient in their consideration of humanitarian exemptions. It is widely believed that the approach of the committee is coloured by narrow partisan national interests rather than the benefit of the larger international fora. It has happened before where in the case of sanctions against Iraq the US and UK convinced the committee to halt the supply of humanitarian relief repeatedly to further their narrow vested interests.
In addition to these procedural shortcomings, humanitarian exemption clauses manifest more general deficiencies. They have been criticized as too marginal and too narrowly focused i.e., they merely take into account the transactional aspect of welfare delivery, leaving aside other aspects relevant to the limitation of adverse humanitarian consequences ((Koenraad Van Brabant, Overseas Development Institute, Can Sanctions Be Smarter: The Current Debate available at http://www.odihpn.org/pdfbin/sancconf.pdf. [Last Modified: 29th February, 2012])). These other relevant considerations include whether there is an adequate infrastructure in place for the distribution of humanitarian supplies ((Supra, at 25)). Even if certain goods are provided, lack of transportation or exorbitant prices may render them inaccessible or unaffordable. Thus we see even the inclusion of humanitarian exemptions does not render it full proof and it has to be structured efficiently for it to be effective.
Automatic Suspension Clauses:
It is impossible to foresee all the consequences of a sanctions regime, thus it is dangerous to assume that a moderately designed sanctions regime will have only a limited impact on the population of the target state. The modus of suspension under Article 27(3) of the UN Charter requires a consensus among all five permanent members of the Security Council. Now this is a dangerous provision to the effect that given the political realities of the contemporary world, it is futile to assume that a consensus will reached among those nations, given their own political interests. In light of this it is urged that every sanction document should incorporate a suspension clause that automatically kicks into effect whenever a large scale humanitarian crisis like violations of jus cogensnorms are detected ((Declaration on the Basic Conditions and Standard Criteria for the Introduction and Implementation of Sanctions and Other Coercive Measures: Revised Working Paper, U.N. GAOR, Special Comm. on the Charter of the U.N. and on the Strengthening of the Role of the Organization, ¶ 1, U.N. Doc. A/AC.182/L.114/Rev.1 )).
It is urged that in cases of catastrophes like wars, famines and droughts the UNSC should suspend economic sanctions until it can assess the humanitarian situation on the ground and make adequate provisions to protect the right to life ((S.C. Res. 861, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/861 (1993) [Haiti])).However, the problem if such a right is vested with the nations themselves then it might be prone to abuse. One of the possible responses might be that the Security Council itself during the formulation of the sanction itself enunciate the situations which would lead to suspension of the treaty. Then consequently under Article 27(2) of the Charter it can conclusively determine whether such a situation exists or not, which should not be too difficult as only a majority to approve the same is required ((U.N. Charter Art. 27(2). Distinguished from Art. 27)). Alternatively, the responsibility could fall to the Secretary-General to determine when a triggering situation has arisen. The Security Council has adopted such an arrangement before when it has asked the Secretary-General to determine whether the objectives of certain measures have been met; if the Secretary-General deems so, the measure is automatically terminated ((S.C. Res. 1192, U.N. SCOR, 53d Sess., ¶ 6–7, U.N. Doc. S/RES/1192 (1998) [Libya])).
Periodic Monitoring of Humanitarian Impact:
The possible effect of sanctions on human rights violations are well known to one and all, yet the monitoring of these violations remain a grave problem. Commonly, sanctions committees charged with initiating humanitarian relief swing into action solely upon outside requests rather than becoming active propriomotu. The sanctions regime imposed in some countries are improving but serious discrepancies still remain in their execution. For e.g. in Angola the UNSC introduced the monitoring mechanism a whole 7 years after the imposition of sanctions and that too with an objective to increase its efficiency and not to assess its human rights impact ((S.C. Res. 1295, U.N. SCOR, 55th Sess., ¶ 3, U.N. Doc. S/RES/1295 (2000) [Angola])).
The obligation not to deprive anyone arbitrarily of his or her life also implicates an obligation to institute mechanisms to monitor the humanitarian impact of sanctions. Without any form of monitoring, the adverse consequences of a sanctions regime will either not come to the attention of the Security Council, or will do so only belatedly. An automatic suspension clause, the triggering of which depends on certain circumstances on the ground, is rendered meaningless if the conditions on the ground are not monitored. Similarly, sanctions committees need accurate data about the humanitarian situation in a target state in order to make informed decisions regarding whether to grant a humanitarian exemption, or whether to pursue a stricter or more lenient policy with the target state. The meaningful functioning of these humanitarian safeguards depends on a regular assessment of the circumstances on the ground ((Phillip Meilinger, A Matter of Precision: Why Air Power May be More Humane than Sanctions, 123 Foreign Policy Journal78 )).
Introducing safeguards like these would increase the overall effectiveness of the sanctions regime, not only by increasing its credibility as a humane enforcement measure, but also by preventing the level of humanitarian crisis that would negatively impact regional stability and force the temporary suspension of the sanctions regime.
My endeavour through this article has been to analyse critically and highlight the various inherent flaws and shortcomings in the present system which has rendered its effectivity dubious. Irregular application of the system has also perpetuated multiple human rights violations and other irregularities across the globe. The article has also looked at a few probable changes and positive practices to ameliorate the system and make it comparatively more effective.
Despite recent improvements in designing sanctions as well as lessons learned from past experiences in implementing sanctions regimes, important questions in this field remain unresolved and demand further attention. Even though sanctions of the scope imposed against Iraq may not be employed again, it is likely that relatively comprehensive sanctions will be used in the future, given that mere arms embargoes or travel bans will not prove sufficiently coercive in all situations. Moreover, particularly in the fight against international terrorism, sanctions are no longer employed solely to change an entity’s behaviour, but also increasingly to create conditions which will deter certain activities. In light of this development, there are strong reasons to believe that sanctions regimes will continue to be imposed on long-term bases. The fact that a change in circumstances may then distort an initial proportionality assessment and render a once moderate sanctions regime into a devastating means of coercion thus demands serious attention. The changing nature of the facts on the ground in the targeted state makes it critical to monitor the adverse impact of sanctions regimes on a continuous basis, to allow for temporary suspension of the measure if the situation on the ground becomes intolerable, and to assess the long-term effects of the regime and in incorporating these changes ad making the law dynamic lies the road ahead for effective International Governance by the United Nations.
“Let me conclude by saying that the humanitarian situation in Iraq poses
a serious moral dilemma for this Organization. The United Nations has
always been on the side of the vulnerable and the weak, and has always
sought to relieve suffering, yet here we are accused of causing suffering to
an entire population. We are in danger of losing the argument, or the
propaganda war – if we haven’t already lost it – about who is responsible
for this situation in Iraq – President Saddam Hussein or the United Nations.”