Debating the Law of Sanctions

Abstract

After years of United Nations-mandated sanctions against Iraq, human rights advocates began charging the UN Security Council with genocide in its use of 'sanctions of mass destruction'. Following the charges, a full debate began on the law of sanctions. The article recounts this debate, setting it in the context of two earlier rounds of discussion on the lawful use of sanctions. Those earlier debates resulted in general consensus that the Security Council was both free to use sanctions whenever it wanted and that sanctions should be comprehensive, airtight and subject to enforcement. Sanctions of this description were imposed on Haiti and Iraq, but were soon linked to widespread suffering. The debate among lawyers then turned to how sanctions could or should be limited, perhaps based on human rights law, humanitarian law, or the law governing unilateral sanctions. From this debate the principle of proportionality is emerging as a general limitation on coercion and force in international law. Nevertheless, proportionality cannot eliminate all unintended effects of sanctions. The next iteration of the sanctions debate may well return to when the Security Council may impose sanctions, proportional or not.

Autonomous and Collective Sanctions in the International Legal Order

“…128 Despite the significant impact on the human rights of the peoples of Iraq, it has been argued that human rights laws are inapplicable to those sanctions given that, even if they bind the UN as an inter-governmental organization possessing international legal personality as a matter of customary law, there was no intention by the Security Council to violate those rights. 129 On the understanding that the Security Council did not intend to violate the rights of the Iraqi people, and, furthermore, that it is necessary to show intent to establish that it had violated international law in this regard, 130 it still should have foreseen the possibility and, therefore at the very least, it had obligations of due diligence to do all in its power to prevent human rights violations that are likely to result from its actions. 131 The often-violative nature of unilateral sanctions that go beyond temporary and proportionate countermeasures is shown by the US embargo of Cuba first imposed 1962 in response to Cuba's nationalization of US property and businesses, but tightened considerably with the fall of the Soviet Union and the withdrawal of its support for Cuba in 1991 (meaning an immediate loss of 75-80% of Cuban trade), 132 by its incorporation in legislation in the form of the Torricelli and Helms-Burton Acts of 1992 and 1996 respectively.…”

Combating Terrorism and the Use of Force against a State: A Relook at the Contemporary World Order

“…69 The Council's response may be more influential than States acting in self-defense can do because the Council may respond to mere threats, and not just 'armed attacks.' 70…”