Unilateral economic sanctions have undoubtedly become the primary weapon for responding to any geopolitical challenge. Be it the human rights situation in Xinjiang and Myanmar or the nuclear programmes of Iran and North Korea, the imposition of sanctions has been the first response to force the alleged wrongdoer to course correct. Recent sanctions imposed against Russia for invading Ukraine are the most comprehensive and coordinated actions taken against a major power since World War II.
Examples of such unilateral economic sanctions include trade sanctions in the form of embargoes and the interruption of financial and investment flows between sender and target countries. A more problematic aspect of the unilateral economic sanctions regime is the targeting of third or neutral countries that engage in any sort of trade or commerce with the targeted state. The United States’ (US) law on economic sanctions, i.e., Countering America’s Adversaries through Sanctions Act, 2017 (CAATSA) allows for the imposition of sanctions on such third states if they enter into any significant transactions with the targeted states, i.e. Iran, North Korea, or Russia.
The widespread use of this economic tool warrants an enquiry relating to their legality under international law. State practice throughout the history of international relations is evidence of the fact that coercion has been one of the defining features of engagement during wars. Over the course of time, the coercive practices used during armed conflict like blockades, reprisals, embargoes, deliberate starvation of the enemy’s population, etc. came to be regulated by numerous international legal instruments.
These international norms like obligation to allow unhindered transit of basic necessities like food and medicines during armed conflict have achieved universal ratification, despite occasional violations. However, the international legal regulation of non-forcible coercive measures such as unilateral economic sanctions, which are employed even during peacetime, is still in the nascent stage of its development. Although Chapter VII of the United Nations Charter allows for imposition of sanctions, these sanctions are in form of collective action taken under the aegis of United Nations Security Council (UNSC) so as to force a country to put an end to its actions which threaten or breach international peace and security. The UN Charter does not recognise unilateral measures, either forcible or non-forcible, by any member state except the right to self-defence as an interim measure.
The international community has generally regarded unilateral economic sanctions as operating outside the framework permitted by international law. For example, the UNGA resolution of 2018 condemning the US sanctions on Cuba which have been in operation since 1962 witnessed 189 countries (a majority) voting in favour of the resolution and only two states voting against it, i.e. the US itself and Israel. The resolutions note that the imposition of unilateral coercive measures violates the international obligations of the state under the UN Charter.
This is because Article 2(3) of the UN Charter imposes an obligation upon member states to resolve their disputes peacefully. Sanctions which are generally imposed in a blanket manner in no manner contribute to the peaceful settlement of disputes. For example, the massive package of sanctions imposed by the US on Iran to counter its nuclear programme has not resulted in any positive outcome, and the two sides still remain at loggerheads. Economic sanctions do nothing except aggravate the sufferings of civilians in the targeted state and cannot be expected to resolve a dispute peacefully.
Additionally, economic sanctions, especially those which are extra-territorial in nature, violate Article 2(7) of the UN Charter which prohibits non-intervention in internal affairs of a state. The threshold of intervention is satisfied when a state compels another “to change its policy or cause of action, not through influence or persuasion but through threats or imposition of negative consequences.”
The economic giants force the relatively weak economies to stop engaging with the targeted state, thereby, influencing their foreign and trade policies which is an exclusive domain of a state where no outside interference should be tolerated. This attacks the principle of sovereign equality of states, a key norm of international law.
Comprehensive unilateral economic sanctions target the entire financial landscape of a state and are mostly imposed indiscriminately without taking into regard the common people of the state who are the most affected due to the consequent economic shocks.
The The Office of the United Nations High Commissioner for Human Rights (OHCHR) Special Rapporteur on the negative impact of the unilateral coercive measures has repeatedly pointed out in its reports the ‘exceedingly’ negative impact of unilateral sanctions on the enjoyment of human rights.
Unilateral sanctions have the ability to deprive a civilian population of their means of subsistence. Consider for example, the state of the healthcare sector of Iran which has been gravely affected to the imposition of sanctions by the US, as reported by the Human Rights Watch Sanctions drastically reduced Iran’s capacity to finance humanitarian imports, and it has negatively impacted the common Iranians’ right to health and access to medicines and medical care.
Economic sanctions act as a significant disincentive for foreign investors, international organisations, and foreign companies to engage in trade and commerce with the targeted state due to the constant threat of secondary sanctions which could inadvertently target them. This economic standoff affects the life and human rights of every person, especially the most marginalised section of the populace. This violates human rights covenants such as the International Covenant on Economic Social and Cultural Rights (ICESCR), and the International Covenant on Civil and Political Rights (ICCPR), both of which mention in their common Article 1 that “in no case may a people be deprived of its own means of subsistence.”
However, there is one instance where the imposition of economic sanctions is allowed. That instance is when the targeted state breaches its obligations under international law and commits an “internationally wrongful act” which can be attributed to the state in question. To compel the perpetrator state to comply with its obligations and to cease the wrongful act in question, imposition of countermeasures is allowed. However, those countermeasures must solely aim at cessation of the wrongful act and should not be punitive. Further, countermeasures must be of a proportionate nature and should be terminated once the wrongful act cease to operate.
Additionally, countermeasures shall, at any time, not affect the obligations for the protection of fundamental human rights and must not violate peremptory norms of international law—those norms from which no deviation is possible under any circumstance.
Despite the existence of these rules on state responsibility and countermeasures, most of the unilateral economic sanctions which are imposed are not directed against a wrongful act, for example, the sanctions imposed against Iran and North Korea for their nuclear weapons programme. The International Court of Justice in its Nuclear Weapons Advisory Opinion has clearly held that proliferation of nuclear weapons, and even their use, is not per se unlawful. Considering this decision and the general state practice in respect of nuclear proliferation, neither Iran nor North Korea have committed a wrongful act particularly when the Nuclear Non-Proliferation Treaty itself allows for withdrawal under Article X on grounds of “protection of supreme interests of a country”.
Therefore, the sanctions imposed on these countries are punitive in nature. Similar is the situation with sanctions on Cuba. The Cuban Democracy Act of 1992 states that the purpose of imposing sanctions in Cuba is to force to move towards democratisation. There is nothing under international law which imposes a legal obligation on a country to stick to a specific model of governance. Imposition of sanctions on such dubious grounds is clearly motivated by political reasons.
The lack of any judicial scrutiny of these sanctions and countermeasures makes it 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 as well as limitations.
The risks that this economic weapon poses should not be ignored. Sanctions in their most powerful form, have the ability to become weapons of mass destruction. Thus, to ignore these weapons which have the ability to shake the very foundations of a country, destroy its central institutions, firms, lives and even livelihoods is nothing but a travesty of justice.
Considering the gravity of damage that can arise out of the imposition of sanctions, a proper checks and balances in form of judicial scrutiny is desirable. The International Court of Justice (ICJ) in its recent decision in Iran-US Sanctions case held that it has jurisdiction to decide upon the merits of the case. This shows that economic sanctions imposed under domestic legislations are not immune to judicial review.
(This article first appeared in the ORF.)Aditya Raj writes for ORF. Views are personal, and do not represent the stand of this publication.