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  • Ahan Gadkari and Amogh Chouksey

Should States Use Unilateral Coercive Measures as a means of Economic and Political Compulsion?

Introduction:

On 15th April 2021, the United States implemented a series of sanctions against Russia, including curbs on the country's sovereign debt market . This raises the broader issue of the necessity and legality of sanction use. Coercive measures such as sanctions form a part of international law. They are used as a method of implementing international obligations and directions given by certain international organizations. In a decentralized system such as the international community, sanctions prove to be an essential implantation mechanism to effectuate compliance measures. Certain economically superior nations have an inherent advantage in sanctions, which brings up the threat of its use for their objectives. The uneven distribution of power furthers the disparity between states, given their power to impose these sanctions unilaterally. This places a significant responsibility on these targeting states to not use sanctions for furthering their personal interests and foreign policy. Although sanctions are necessary for a decentralized legal system for upholding international law, it ends up acting as a tool for targeting states to further their foreign policy by unilaterally imposing sanctions.


Legality of Sanctions:

The general structure of international law, keeping in mind the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), states that it is unlawful for a country to impose sanctions if the targeted state has not violated international law. The ARSIWA (Article 42) does allow for measures to be undertaken if there is any act committed against that particular state, such as the breach of a treaty (page 128, para. 2) (A detailed discussion of this provision can be found here page 179-189). However, it must be kept in mind that this article has been drafted to be narrowly construed and hence, does not support unilateral coercive measures, especially if it is not clear that the targeted state has not violated international law (page 118, para. 13). The ARSIWA lays down some fundamental requirements that must be complied with when a state wishes to exercise their right to enforce sanctions (Article 49-54). The first is the principle that the targeted state must have committed some wrongful act against the targeting state. The measures should aim to get the targeted state to comply with its obligations and be proportionate to the injury suffered. More importantly, these sanctions should not affect the jus cogens rights of civilians and should cease once the wrongful act has ceased.


Multiple sanctions imposed by the United States and the European Union are not consistent with these requirements (See here and here). Sometimes their sole reason for imposing sanctions is the compliance with a disarmament regime, like in the case of Iran or the case of Syria, wherein a nation that does not ally itself with the United States is the victim of USA’s sanctions (a timeline of events can be found here). No direct action has been committed by Syria, which affects the United States or the European Union. At the same time, these sanctions end up crippling the civilian population in the affected nationespecially during the COVID-19 pandemic. Even the World Trade Organization (W.T.O.) had noticed discriminatory practices conducted by the United States in the Shrimp Turtle case. In this case, the WTO panel ruled against the dissimilatory practices undertaken by the United States. A WTO panel has also recently ruled that American sanctions on multiple Chinese goods violated the long-standing international trade norms. A pattern can be seen in this tangent, wherein sanctions are placed by certain nations without regard for the requirements drafted to restrict them.


In order to analyze unilateral sanction regimes, it must be first seen in which circumstances such sanction regimes have been placed. A concept that comes into this discussion is geoeconomics, which uses economic means to further geopolitical goals. This concept directly links to the reach and power of targeting states to impose these sanctions. It is reiterated that only economically powerful states can make use of such sanctions. For example, Togo imposing sanctions will not make a significant difference to countries; on the other hand, the United States imposing a sanction will make a huge difference. This further leads to the solidification of the power asymmetries between countries.


Geopolitical Sanctions against Iran:

The United States has found itself in a position to impose multiple sanctions on multiple states. The United States withdrew from the Joint Comprehensive Plan of Action (JCPOA), while other members decided to remain a part. The United States then imposed a severe sanctions regime on Iran, which led to much devastation. The sanctions were imposed due to the non-compliance with a disarmament regime, which in no way affected the U.S.A. Hence, these sanctions were inconsistent with the requirements laid down by the ARSIWA and ended up hurting the people they are were meant to protect, which are the civilian populations (para. 70). The United States has even refused to acknowledge the International Court of Justice's (I.C.J.) jurisdiction over their continued sanctions on Iran, even though the I.C.J. has established that it does have jurisdiction over the matter. The I.C.J. is competent to decide its jurisdiction under Article 36 (6) of its Statute. Historically, the United States has been known to reject the World Court's jurisdiction wherein the facts are not in their favour, as seen in the Nicaragua case. Additionally, this issue demonstrates that international organizations like the I.C.J. have an overload of expectations and an insufficient degree of authority. One of the major causes for this is the I.C.J.'s ‘flawed’ jurisdictional architecture which is entirely based on State consent. However, on the other hand, anything less than an unambiguous expression of approval by the defendant state in a particular case would pose significant non-compliance risks (this issue has been discussed in detail here).


Unilateral Sanction regime against Venezuela:

Venezuela provides another stark example of such a dynamic. For more than 15 years, the United States has imposed systematic unilateral sanctions as a reaction to the Venezuelan government's activities. Initially, these sanctions were imposed due to Venezuela's lack of cooperation on the anti-drug and counter-terrorism front. Subsequently, during the Obama administration, sanctions were imposed on the grounds of anti-democratic behaviour, corruption and human rights violation. Cut to the Trump government, the US has been extending sanctions to pressurise President, Nicolás Maduro, to step down.


As a matter of policy, to impose sanctions for such reasons, any state must first bring the case in front of the Dispute Settlement Body of the World Trade Organization. It is only after their approval is sought; can sanctions be imposed. The U.S. has systematically violated this protocol over the years and has failed to adhere to this prerequisite miserably. Additionally, these sanctions are illegal under the Charter of the Organization of American States (O.A.S.), namely articles 19 and 20 of Chapter IV. It violates treaties assented by the U.S. and international human rights law and the U.S. law itself. The U.S. seeks to hide behind the national security exception mentioned in Article 21(b) of GATT 1947. Furthermore, these sanctions have led to humanitarian turmoil in Venezuela, causing great distress. The country is marred by a lack of sufficient healthcare (specifically for diseases like H.I.V., cancer, etc.) and forcibly pushed civilians into substandard living conditions. Currently, there is a looming threat of sanctions hindering the fight against coronavirus.


Need for change:

The imposition of illegal sanctions has long been criticised as a tool in the hands of influential nations. Much of the scrutiny is due to its negative impact on ordinary citizens instead of the government elites. Hence, sanctions should highly be restricted and be used only on humanitarian grounds. While it is understandable that prosperous and robust nations should take the onus of human rights protection worldwide, there should be a mechanism to double-check if these nations are not exploiting their privilege while doing so. This can be achieved by making the screening process more transparent and giving international institutions (like U.N., W.T.O., I.C.J. etc.) more autonomy to go about their business. Recommendations like those released on 17 October 2018 by the United Nations Human Rights office of the High Commissioner, suggesting sanctions be retracted should be abided strictly.


Conclusion:

The imposition of unilateral sanctions continues to be employed by states. The worrisome issue arises wherein sanctions are being imposed on states to acknowledge obligations that these states have not consented to accept. The idea is that sanctions should not cross the line from inducing a state to comply with legal obligations it has accepted to coercing a state to do something it is not bound to do under international law (page 144). The primary issue arises from the lack of regulation on these sanctions and that they do not have a firm legal foundation. Iran has initiated a case in the I.C.J. and Venezuela in the W.T.O. challenging the sanctions imposed on them, but these bodies' capacity to understand the legal structure is questionable due to the narrow terms in which these claims have been defined until now. Sanction regimes definitely requires additional research in the legal and economic field. Until a regulation structure on these sanctions or binding requirements to impose them can be created, these will remain dubious.


Ahan Gadkari is a penultimate year law student pursuing the BA LLB course in O.P. Jindal Global University. He currently works as a Research Assistant under Dr. Aniruddha Rajput, Member, UN International Law Commission. His key interests include arbitration and international law.

Amogh Chouksey is a 4th year law student at O.P. Jindal Global University. His fields of interest are International Trade law and Humanitarian law. He was the speaker of the team representing JGU at the 12th GNLU International trade law moot competition.


Image: Source CGTN