No full-text available
To read the full-text of this research,
you can request a copy directly from the author.
The Developed/Developing Divide on Unilateral Coercive Measures: Legitimate Enforcement or Illegitimate Intervention?
Abstract
Unilateral coercive measures are condemned by the UN General Assembly on a yearly basis for being contrary to international law and for having negative effects on human rights and the economy of developing States. Although legal doctrine generally finds that the limitations of economic coercion are a grey area of international law, these resolutions could be indicative of an emerging prohibition. Upon closer scrutiny, however, it would appear that they do not satisfy the required criteria-as developed by international jurisprudence and doctrine-for establishing a new custom. That being said, the resolutions clearly illustrate a divide between developed and developing States on the legitimacy of unilateral sanctions that should not be dismissed. In the interests of understanding how this division came into existence and how we can overcome it, the article proceeds to address the social factors that lead to its creation. © The Author 2017. Published by Oxford University Press. All rights reserved.
... In spite of the fact that the meaning of the 'international order' remains unclear, sanctioning practices by third parties help clarify which norms lie at the basis of the international order (Adler-Nissen, 2014) and contribute to their robustness (Deitelhoff and Zimmermann, 2019: 3; see also Erickson, 2020). On the other hand, an important number of states -not only the targets of sanctions but also third countries -frequently contest the adoption of unilateral coercive measures (Hofer, 2017a and2017b). They do so by invoking the norms that senders violate when imposing such measures. ...
... Group of 77 plus China (hereafter G77) and the Non-Aligned Movement (hereafter NAM), which frequently voice their objection to non-UN sanctions within the United Nations. The opposition between those that impose the measures and those that contest them has been described as a divide between developed and developing states (Hofer, 2017a). It has been explained as originating from how each group of states defines itself and its role in the international community, and the norms it believes should be given precedence. ...
... Resentment is expressed through the re-affirmation of the importance of multilateralism, the peaceful settlement of disputes, the principle of non-intervention and, logically, sovereign equality. These groups' state practice contributes to challenging the legality of unilateral coercive measures, but they have not yet succeeded in transforming the status quo (Hofer, 2017a). While sending states refer to themselves as 'likeminded' and call for cooperation in adopting sanctions, resisting states call for support and solidarity against unilateral measures. ...
... A pesar de que el significado de orden internacional continúa sin estar claro, las prácticas sancionadoras por parte de terceros ayudan a clarificar qué normas radican en la base del orden internacional (Adler-Nissen, 2014) y contribuyen a su robustez (Deitelhoff y Zimmermann, 2019: 3; véase también Erickson, 2020). En este sentido, son numerosos los estados -no solo los destinatarios de las sanciones, sino también terceros países-que a menudo ponen en tela de juicio la adopción de medidas coercitivas unilaterales (Hofer, 2017a(Hofer, y 2017b, invocando las normas que los emisores infringen al imponer dichas medidas. ...
... La contestación contra las medidas coercitivas unilaterales se expresa a través del grupo de los 77 (G-77) más China y el movimiento de países no alineados (MNOAL), que a menudo expresan en el seno de Naciones Unidas su objeción a las sanciones externas a la organización internacional. La oposición entre los que imponen las medidas y los que las cuestionan se ha descrito como una división entre los estados desarrollados y los estados en desarrollo (Hofer, 2017a). Se explica que dicha división se origina por la manera en que cada grupo de estados se define a sí mismo y su papel en la comunidad internacional, y las normas a las que considera que se debería dar prioridad. ...
... El resentimiento se expresa mediante la reafirmación de la importancia del multilateralismo, la resolución pacífica de disputas, el principio de no intervención y, lógicamente, la igualdad soberana. Las prácticas de los estados de estos grupos contribuyen a cuestionar la legalidad de las medidas coercitivas unilaterales, pero todavía no han logrado transformar el statu quo (Hofer, 2017a). Mientras que los países emisores se refieren a sí mismos como estados «de ideas afines» y hacen un llamamiento a la cooperación en la adopción de sanciones, los estados que resisten hacen un llamamiento al apoyo y la solidaridad contra las medidas unilaterales. ...
Sanctions are presented as a form of international punishment that not only stigmatises the target, but creates a hierarchy between those who impose punishment and those punished. Such practices go against the principle of sovereign equality and contradict the horizontal structure of the international system. Drawing on the literature on stigma management and resentment, this paper argues that when states react to sanctions, they respond not only to the imposition of stigma, but also to the inferior position in which they are placed. Targets may resent the position of authority adopted by the sanctioners. This may in turn motivate them to contest the status quo upon which sanctioners justify their authority, thereby reasserting the norms and corresponding practices they believe should be prioritized.
... Lastly, other observers have referred to constructivist approaches to make sense of China's complex sanctions policy. The most common argument concerns China's history and experience with broad Western sanctions, which in turn have supposedly affected China's own perspective toward the larger consequences of these unilateral measures (Zhao, 2010;Hofer, 2017). In terms of China's justification for using them despite its international position against unilateralism, its consistent use of a victimhood discourse provides China with a leeway to avoid blame, thereby distinguishing a positive identity of itself as a major power different from the sanctions-wielding powers of the west (Gloria, 2023). ...
Under what conditions does China openly acknowledge the use of unilateral sanctions against other countries? China is notorious for maintaining an official position that it is against using unilateral sanctions on the international stage. Yet, as recent events have also indicated, China has grown more proactive and obvious in its reliance on these unilateral measures. By considering China’s changing approach to publicly acknowledging its use of sanctions, this paper recognizes that China’s sanctions practice appears to be more complicated. It also recognizes that the seemingly contradictory practices of relying on vagueness and explicitly acknowledging sanctions coexist, forming China’s complex sanctions behavior. This paper turns to the concept of disrespect to explain China’s complex sanctions acknowledgement rhetoric. When China feels that it has been gravely disrespected, China tends to be more explicit in publicly acknowledging the use of sanctions. To test this hypothesis, this paper looks at the cases of China’s use of sanctions towards targeted actors during (1) Nancy Pelosi’s visit to Taiwan in 2022, (2) Japan’s nationalization of the Diaoyu/Senkaku islands in 2012, and (3) the Standoff between the Philippines and China at the Huangyan Dao/Scarborough Shoal in 2012. In the first two cases where conditions for salient disrespect were met, China’s sanctions use was explicit and discernible. The Philippines’ case, on the other hand, shows that China’s vague rhetoric coincides with relatively moderate perceptions that it was disrespected. This paper highlights the importance of status, emotions, and constructed meanings in shaping China’s foreign policy by underscoring disrespect as a possible explanatory variable to China’s changing sanctions rhetoric.
... Bei der Debatte um einen kritischen Ansatz der Dritten Welt zum Völkerrecht (TWAIL: Third World Approach to International Law) ist mittlerweile gerade das Thema »ökonomischer Zwang« im Kontext der Debatte um das Interventionsverbot ein zentraler Unterscheidungspunkt zwischen dem westlichen Völkerrechtsverständnis, das sich darauf beruft, unilaterale Sanktionen verstießen weder gegen Völkergewohnheitsrecht noch völkervertragliche Regeln (Hofer 2017), und demjenigen des Globalen Südens, der sich auf die UN-Charta und zentrale Resolutionen der UN-Generalversammlung beruft (vgl. Gathii 1999 Insbesondere die Folgen der Irak-Sanktionen sowie die Verschärfung der US-Sanktionen gegen Kuba haben dabei den internationalen Druck aus Ländern des Globalen Südens steigen lassen. ...
... The interaction between the subjects of international law, mainly states and international organizations, drives the implementation of international law and determines its effectiveness (Fitzmaurice, 1956). Furthermore, in the contemporary regime of international law, as the aversion of most members of the international community to unilateral coercion has deepened, international cooperation has become the dominant mode of such state interaction (Hofer, 2017). When further reflecting on the dysfunction of our international legal framework for EIAs in the Fukushima incident, we find that the reasons behind it may be complex, but two aspects related to international cooperation should be focused on. ...
Japan is discharging nuclear contaminated water from the 2011 Fukushima incident into the sea after treatment with the Advanced Liquid Processing System (ALPS). This process is expected to continue for decades, as planned by the Japanese government. This decision sparks opposition from many countries and international organizations, as well as constant protests from people in Japan and neighboring countries. Although there are no international documents specifically addressing the discharge of contaminants from a nuclear accident, it is found that the LOS Convention, treaties on nuclear safety, and international environmental laws provide the basis and legal framework for requiring Japan to implement environmental impact assessments throughout the entire process of Fukushima contaminated water discharge. First, this paper evaluates the consistency between the measures taken before Japan’s decision to discharge contaminated water into the sea and the requirements under international laws. Second, this paper further examines the substantive and procedural requirements under international law for the entire process of Fukushima contaminated water discharge. It identifies substantive criteria to be applied in assessing the environmental impact of Fukushima contaminated water discharge based on international documents and explores the procedural requirements to assure transparency, prudence, and accountability of the assessment. Finally, given the potential transboundary damage caused by the discharge of nuclear-contaminated water into the sea, this paper proposes that a new multi-stakeholder cooperative mechanism is necessary to achieve effective and credible monitoring and respond to the claims of potentially affected parties. In addition to providing a legal framework for the environmental impact assessment in the Fukushima case, this paper may also contribute to the proper disposal of nuclear contaminants in future nuclear accidents.
... 140 Starting from 1987, the UNGA has been adopting such resolutions biannually. 141 Concurrently, resolutions titled 'Human rights and unilateral coercive measures' have regularly been adopted by the UNGA, since 1996. 142 The voting pattern in favour of, or against, such resolutions was later labelled by Alexandra Hofer as a 'developed/developing divide on unilateral coercive measures' . ...
Literature and practice outlining the relationship between human rights and unilateral economic sanctions veer in two opposite directions. One strand of literature advocates for sanctions to redress grave human rights violations. This position has been epitomised in the legislation allowing the imposition of economic sanctions for human rights violations occurring abroad (Magnitskystyle sanctions). The opposing voice criticises unilateral economic sanctions irrespective of their objectives and forms, mainly by emphasising their negative repercussions on the enjoyment of human rights. This position is officially adopted by the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, and is reflected in numerous reports on the matter, which are traditionally supported by the most-sanctioned countries.
This contribution aims to explore perplexing and multifaceted relations between human rights and unilateral economic sanctions, an issue that is politically tainted, and which has been insufficiently analysed from a legal standpoint. Retreating from the clashes between these prevailing old, unworkable dichotomies, this contribution argues for a more nuanced portrayal of the subject matter.
... Collective sanctions, which are adopted under the UN framework, are considered legitimate. However, unilateral sanctions are often considered illegitimate and not based on international law (Hofer, 2017;Bogdanova, 2022). Unilateral economic sanctions do not fall squarely within a single existing legal category in international law and may be divided into categories such as retorsion, reprisals, countermeasures, third-party countermeasures (solidarity measures) and sanctions (Bogdanova, 2022, p. 60). ...
Purpose
This paper aims to highlight the lacunae in international trade law concerning unilateral economic sanctions that impact food security.
Design/methodology/approach
This paper adopts a literature review to establish that unilateral economic sanctions impact food security and a descriptive assessment of a few such sanctions. Thereafter, it adopts doctrinal analysis of such sanctions under World Trade Organization law and identifies the gaps to address the specific situation of unilateral economic sanctions that impact food security.
Findings
Unilateral economic sanctions are not effectively regulated under international law. Unilateral economic sanctions are known to impact food security not just in the targeted country but also in third countries. Under international trade law, the security exception under Article XXI of the General Agreement on Tariffs and Trade (GATT) does not currently require an assessment of necessity and proportionality of measure. However, there is scope for such an assessment in the future depending on the circumstances, particularly if a measure impacts the rights and interests of third countries by impacting global food security.
Originality/value
The paper conducts a literature review of the impact of unilateral economic sanctions on food security. It highlights the gap in the interpretation of GATT Article XXI when assessing such sanctions that adversely impact the food security of third countries. The paper may be helpful for academics, policymakers, international organizations, non-governmental organisations, etc.
... China has traditionally generated strong headwinds against economic coercion in the form of unilateral economic sanctions (non-UN 168 iryna bogdanova and anqi wang sanctions). 5 In particular, it opposes the recognition of unilateral economic sanctions' legality in international law (Hofer, 2017;Poh, 2021). Although this position may rest on shaky legal ground -international law scholars refuse to acknowledge the existence of the right to be free from economic coercion (Tzanakopoulos, 2015), China's vehement opposition to unilateral sanctions is reflected in its persistent anti-sanctions rhetoric, which depicts Western sanctions as imperialist and interventionist (Poh, 2021). ...
The US-China trade war and looming ‘technological de-coupling’ instigated major revisions of Chinese laws and regulations. These recent amendments represent a major shift in the role assigned to export restrictions. In particular, China is more willing than before to use export restrictions as a geopolitical tool. To test the veracity of this assertion, this chapter analyses China’s use of export restrictions in the period from 2001 to 2021. It suggests that three distinct phases can be discerned: (i) the elimination of export restrictions before and after joining the WTO; (ii) the selective use of export restrictions for domestic policy reasons; and (iii) a shift toward strategic use of export restrictions as an instrument of geopolitical competition. Several implications flow from this new development: it endangers existing supply chains, may bifurcate the global economy by sapping its growth potential and contributes to the erosion of the multilateral trading system.
... 80 See, most recently, UN General Assembly Resolution 76/191, Unilateral economic measures as a means of political and economic coercion against developing countries, 17 December 2021. 81 On which see Tzanakopoulos (2015) and Hofer (2017 ...
The war of aggression by a permanent member of the Security Council, combined with the availability of its assets on the territory of other states, creates an opportunity to solve one of international law’s enigmas: the legality of third-party countermeasures in the general interest. Would confiscating Russia’s frozen Central Bank assets and making the proceeds available to repair the war damage in Ukraine be permissible as such a countermeasure? This paper argues that state immunity cannot be relied upon to prevent the freezing or confiscation of foreign central bank assets by direct executive action; that freezing foreign state assets is permissible as a third-party countermeasure to stop a serious case of aggression; and that confiscation would not qualify as a countermeasure but may be permissible as a ‘lawful measure’ to repair the damage. Recent changes in Canadian legislation support the existence of such a permissive rule. On the other hand, controversial measures by the United States to control the assets of the Afghan Central Bank demonstrate the need for safeguards against abuse.
... In 20 th century the meaning of term "sanctions" was limited solely to coercive measures taken by a decision of the UN Security Council 1 . As for one-sided extraterritorial coercive measures applied by states in the absence of a decision by the UN Security Council, such measures were declared illegitimate, inconsistent with international law and the UN Charter (Hofer 2017;Schmidt 2022) 2 , and, therefore, did not fall under the concept of "sanctions". Specifically, in legal literature as of unilateral economic measures were referred to as "economic coercion" (McDougal, Feliciano 1958;Bowett 1972;Parry 1977;Brosche 1974;Lillich 1976;Elagab 1988). ...
In this article the author covers the problem of possible modification or termination of contracts due to international economic sanctions, in particular the US and EU sanctions against Russia. The author analyses relevant legislative acts, approaches of governmental authorities and court practice on this matter. This extensive analysis includes overview of development of main legal doctrines and institutions, related to the subject matter of this article. Moreover, it covers definitions of the relevant terms. This article is mainly aimed at defining a list of criteria to rely on when determining the possibility to modify or terminate a contract due to international economic sanctions in each particular case. The author raises the hypothesis that possibility to modify or terminate a contract due to international economic sanctions is subject to a closed list of criteria. The subject matter of this article is important since sanctions are now one of the main instruments of political influence in interstate relations and have a significant impact on all types of contractual relationships. Today, a major and common challenge faced by market participants is the inability to enforce contracts the way they were originally entered into. Due to the fact that in Russia it is rare for contracts to be amended or terminated due to newly imposed sanctions, parties do not always find themselves in a position to enforce a contract in a timely manner or to perform at all. As a result, the stability of the business environment is disrupted and the level of trust is reduced. Thus, it is highly important to perform a thorough analysis of this matter and provide possible solutions for market participants.
... Sanctions themselves are subjected to an extensive academic debate (Douhan, 2013;Douhan, 2017;Ruys, 2016;Hofer, 2017;Vazquez, 2003;Macfarlane, 2021). Cyber sanctions usually refer to restrictive measures adopted against individuals and entities determined to be responsible for or complicit in malicious cyber-enabled activities (Cyber Sanctions, 2021). ...
Cyber technologies have changed both social and international relations dramatically. The influence of information and telecommunication technologies (hereafter – ICTs) extends from daily life to fundamental freedoms, economies, public administration and political relations. Recent changes brought by coronavirus has emphasized the world’s heavy dependence on ICTs. The technologies provide a virtual environment for normal working processes, ensure e-procurement for medical equipment and supplies, raise awareness of coronavirus prevention, maintain people’s life at hospitals etc. However, ICTs not only provide considerable benefits to society as a whole, but also can be used for criminal purposes as well as in manner inconsistent with the Charter of the United Nations to inflict substantial damage to critical infrastructure of a state, interfere in elections, block e-government and bank services etc. The pandemic has led to the introduction of new cyber challenges and risks. At the same time, there is no international treaty on cybersecurity as well as on combating cybercrime concluded under the auspices of the United Nations that could be applicable to cope with these newly emerged threats. In this situation, cybersecurity challenges might be addressed through ethical norms, which are more flexible than international legal norms. Thus, in the absence of comprehensive legal response to cyber risks cyber ethics is particularly important. Therefore, the article analyzes international legal basis for international cyber ethics. It distinguishes the types of international relations that are regulated by ethical norms. The research defines new risks to cyber security that have emerged during the pandemic and discusses possible ways to respond them through cyber ethics. The paper expresses a view that ethical rules concerning friendly and responsible state behaviour in the context of combating cybercrime should be reflected in an international convention on countering the use of information and communications technologies for criminal purposes, which is going to be developed under the auspices of the United Nations.
... Moreover, China's UES against smaller countries are often perceived as a signaling tool or a symbolic measure to deter similar behavior from other states, while also exhibiting resolve to its domestic audience (Drezner, 2012). Different from the above strategic interpretations, some scholars adopt a more constructivist perspective, arguing that China's disapproval of UES as a legitimate policy is a product of its own experience and history hence the strict rhetoric against its use (Hofer, 2017;Zhao, 2010). Having been a target of western sanctions, China has firsthand experience of how ineffective sanctions can be, hence its preference for a low profile approach (Zhao, 2010). ...
China remains reluctant in claiming unilateral economic sanctions as a valid form of statecraft. China has consistently withheld official acknowledgment of its use of unilateral sanctions despite using them in different disputes. This has resulted to observations arguing that China is increasingly approaching the use of sanctions in a stealthier, therefore, more aggressive manner. It begs to ask, how does China’s reluctant attitude towards its use of unilateral economic sanctions fit into China’s overall foreign policy logic? More specifically, how does China’s victimhood discourse justify unilateral sanctions and at the same time, promote a positive identity of itself in light of coercion? This paper argues that China’s consistent vague acknowledgment and denial in claiming a direct hand on unilateral sanctions comes from its broad foreign policy objective of maintaining a positive identity through its discourse of victimhood. To uncover this understanding, this paper analyzes China’s official positions in six bilateral disputes where China has resorted to unilateral sanctions. While existing observations only stop at ‘plausible deniability’ as primary explanation for China’s vague rhetoric, analyzing China’s predication strategies provides a necessary nuancing in terms of how this peculiar behavior remains consistent with China’s overall foreign policy logic.
... It has long condemned the unilateral efforts of other states, particularly the United States and the European Union for flexing their economic muscle in response to the actions of rogue states and non-state actors. Consistent with this stance, China has backed numerous UN declarations condemning unilateral economic sanctions as illegal under international law, 4 and has cast votes against UN sanctions sought to be imposed on human rights grounds. 5 Poh's theory of international audience cost assumes that public statements of the governments are not purposeless and may play a role in defining government actions if certain preconditions are met. ...
Book Review. Sanctions with Chinese Characteristics: Rhetoric and Restraint in China’s Diplomacy by Angela Poh, Amsterdam, Amsterdam University Press, 2021, 372 pp., €109 (hardback), ISBN 978-9-463-72235-3
... 3 Partiendo de esta definición, es inmediato que las sanciones estadounidenses contra Cuba forman un sistema complejo y dinámico de componentes de múltiples tipos y alcances. El nivel de coherencia y la naturaleza de ese sistema ha sido debatido, incluyendo la denominación correcta, bloqueo o embargo, utilizada por diversos actores políticos y académicos (Dávalos, 2012;Bannerman, 2010;District Export Council, 2017;Hofer, 2017;Terry, 2019). La solución de este debate conceptual no es fundamental para este trabajo, por eso no se aborda. ...
La relación entre Cuba y Estados Unidos tiene una larga historia y es sumamente compleja. Para comprenderla es necesario incluir en el análisis una diversidad de variables y dimensiones en estado de permanente interacción y cambio, articuladas en torno a una serie de ejes, enraizados en la historia de ambos países. En el artículo se presenta un modelo analítico que combina perspectivas de la historia, las ciencias políticas, la geopolítica y la economía política, apoyado en el estudio de más de 200 años de procesos y acontecimientos, con el enfoque de conformación de políticas. Desde esa perspectiva, se propone un estudio de las fluctuaciones de la política de Estados Unidos hacia Cuba observados entre 2001 y 2020, en particular las sanciones impuestas por el gobierno de Washington. ABSTRACT: The relationship between Cuba and United States has a long history and is extremely complex. To understand its core features, it is necessary to include in the analysis a diversity of variables and dimensions in state of constant interaction and change, articulated around a number of central axes, deeply embedded in the course of both countries´ histories. In the article we present an analytical model that combines perspectives and tools from history, political science, geopolitics and political economy, rooted in the study of over 200 years of processes and events, through the lenses of policy-making. From this perspective, we examine the fluctuations in US´ Cuba policy between 2001 and 2020, in particular the sanctions imposed by Washington.
موقف القانون الدولي من العقوبات الاحادية الجانب
We live in an age of sanctions. For geopolitical reasons, powerful states and economic blocks increasingly impose unilateral measures restricting economic transactions with certain target states. These sanctions may apply to transactions between the sanctioning state and a target country but may at times also extend to transactions between third states and the target state. By imposing such 'secondary' sanctions, states aim to further isolate the target state. The extraterritorial character of secondary sanctions makes them controversial, as they impinge on third states' economic sovereignty and the latter's operators' freedom to conduct international business. This book addresses the legality of secondary sanctions from multiple legal perspectives, such as general international law, international economic law, and private law. It examines how third states and operators can legally react against secondary sanctions, e.g. via blocking legislation or litigation. It also provides economic and political perspectives on secondary sanctions.
We live in an age of sanctions. For geopolitical reasons, powerful states and economic blocks increasingly impose unilateral measures restricting economic transactions with certain target states. These sanctions may apply to transactions between the sanctioning state and a target country but may at times also extend to transactions between third states and the target state. By imposing such 'secondary' sanctions, states aim to further isolate the target state. The extraterritorial character of secondary sanctions makes them controversial, as they impinge on third states' economic sovereignty and the latter's operators' freedom to conduct international business. This book addresses the legality of secondary sanctions from multiple legal perspectives, such as general international law, international economic law, and private law. It examines how third states and operators can legally react against secondary sanctions, e.g. via blocking legislation or litigation. It also provides economic and political perspectives on secondary sanctions.
We live in an age of sanctions. For geopolitical reasons, powerful states and economic blocks increasingly impose unilateral measures restricting economic transactions with certain target states. These sanctions may apply to transactions between the sanctioning state and a target country but may at times also extend to transactions between third states and the target state. By imposing such 'secondary' sanctions, states aim to further isolate the target state. The extraterritorial character of secondary sanctions makes them controversial, as they impinge on third states' economic sovereignty and the latter's operators' freedom to conduct international business. This book addresses the legality of secondary sanctions from multiple legal perspectives, such as general international law, international economic law, and private law. It examines how third states and operators can legally react against secondary sanctions, e.g. via blocking legislation or litigation. It also provides economic and political perspectives on secondary sanctions.
A study of the Legality of Unilateral Coercive Measures under International Law from a Global South perspective.
В настоящее время Россия столкнулась с применением в отношении неё односторонних принудительных мер (санкций) иностранными государствами. Cтатья посвящена исследованию юридической природы и особенностей применения санкций в международном публичном и частном праве. Автором проанализированы различные точки зрения по рассматриваемой теме с учётом российской и иностранной доктрины. Исходя из позиции по данному вопросу России, «Группы 77» и Азиатско-Африканской консультативно-правовой организации (AALCO), представляющих около 70% государств планеты, делается вывод о существовании в обычном международном праве запрета использования односторонних принудительных мер. Исследованы подходы к соотношению санкций со сверхимперативными нормами и публичным порядком государства, а также представлен анализ российской судебной практики по вопросу квалификации иностранных санкций как обстоятельства, влекущего невозможность исполнения обязательства. Отмечается ошибочная практика российских судов путем ссылки на публичный порядок для обоснования отказа в применении иностранных правовых предписаний, устанавливающих санкции, при рассмотрении сугубо внутренних споров. Исследуется проблема отсутствия единой позиции судов как по вопросам допустимости освобождения стороны от ответственности при наличии препятствия в виде санкций, так и по вопросам квалификации этих санкций. В статье уделяется внимание критерию непредвидимости непреодолимой силы в контексте рассматриваемых мер, содержится критика возложения судами на стороны обязанности предвидеть ужесточение санкционных ограничений в отношении России. Сделан вывод о необходимости рассмотрения иностранных односторонних принудительных мер как вопроса факта, допускающего квалификацию соответствующих отношений по п. 3 ст. 401 ГК РФ и ст. 416 ГК РФ.
Environmental emergencies are increasingly the subject of debate. As defined in this article, these emergencies start on a State’s territory but can have consequences beyond its borders. The interconnectedness of the environment and the growing concern about environmental threats lead to the question of whether third States might have a legal interest in some of these environmental emergencies. It triggers a debate similar to past debates on human rights violations, resulting in the Responsibility to Protect. This article investigates the circumstances under which States can lawfully intervene without using force in another State in response to environmental emergencies. By analysing the principle of non-intervention and the effect of international environmental law on the scope of the domaine réservé, the article discusses whether certain environmental interventions can be justified under the current legal framework of the principle of non-intervention. The emphasis lies on the no-harm principle and the concept of the common concern of humankind as a means to address environmental emergencies with direct transboundary impacts or those threatening the environment at a global level. The article concludes that the no-harm principle and the concept of the common concern of humankind can potentially reduce the scope of the domaine réservé. Consequently, States’ actions in response to an environmental emergency can be lawful under the principle of non-intervention. This lawful environmental intervention has the potential to develop from an activist idea into a legal tool.
The paper addresses jurisdictional issues on the case of NSD initiating investment arbitration against Belgium/Luxembourg. Under the Russia-Belgium/Luxembourg BIT, the states undertake to prevent expropriation of investments and, if it does happen, to pay timely and fair compensation. Such “expropriation” may also occur due to sanctions. Being a Russian intermediate custodian for a number of foreign securities, the NSD has accounts with the centralized European securities Euroclear/Clearstream depositories. Since the inclusion of the NSD in the list of entities provided for in Annex I of EU Regulation no. 269/2014 in June 2022, transactions with the securities were suspended, NSD’s account with Euroclear/Clearstream was blocked. Because the NSD accounts with foreign securities depositories were blocked, it became impossible to transfer non-Russian securities from a securities account opened with the NSD to another Russian or foreign securities depository. One of the ways to challenge the consequences of Euroclear/Clearstream actions is to file a claim with the investment tribunal against Belgium/Luxembourg. The case has two potential solutions: mass claim from the end-investors or one single claim by the NSD as a “nominee holder” of the end-investors’ securities. The first option might seem time- and resource-costly, which is why a claim by the NSD might seem more attractive. Hence, using the interpretation instruments of public international law, the paper aims at assessing the perspectives of initiating investment arbitration proceedings by the NSD, thereby focusing on interpretation of the two central terms in the Russia-Belgium/Luxembourg BIT — “investor” and “investment”. The paper concludes that prima facie the investment tribunal would have jurisdiction over the case rationae personae nonetheless the “nominee holder” status of the NSD, as well as jurisdiction ratione materiae, where the blocked securities could constitute an “investment” in the sense of the BIT. Consequently, the paper defines the legal capacity of nominee holders to initiate arbitration. Since the issue has never been raised before, the paper draws an analogy with the case law on shell companies.
This article contributes to the understanding of why states resort to targeted, or smart, sanctions to meet the threat of cyber intrusions and whether this type of response is a forced measure or an effective tool to halt, prevent and punish attacking states. The tools of analysis used in the article are legal positivism and political theories, including Mancur Olson's theory of groups and Francesco Giumelli's analytical framework for assessment of sanctions. The authors address the effectiveness of sanctions as a reaction to cyber-enabled activities through the lens of regulation introduced in the United States, the European Union and the United Kingdom, which are the most developed counter-cyber sanction regimes, analysing publicly known cases of cyber-related sanctions.
This paper analyses and discusses the legal nature of unilateral sanctions under international law. It focuses on unilateral sanctions (restrictive measures) adopted by the European Union and subsequently provides a general overview of the legal framework of the Slovak Republic concerning sanctions and some of the legal and practical problems connected with the implementation of restrictive measures adopted by the European Union. These deficiencies are demonstrated in the recent case of Mr. Hambálek, a Slovak citizen who was put on the EU sanctions list in July 2022, and its uniqueness lies in the fact that he is currently the only EU citizen on the sanctions list. Thus, the article also attempts to put forward an analysis of this case, focusing on its practico-legal aspects since it may constitute an important precedent in the context of EU sanctions law and policy and may be relevant for other EU Member States.
So-called ‘Magnitsky laws’ in various jurisdictions are turning unilateral sanctions into normalised instruments for the international promotion of the rule of law. However, the considerable regulatory and executive flexibility introduced by these laws is at strain with the fundamental requirements of the rule of law, both domestically and internationally. Despite a growing literature on sanctions, a systematic and comparative assessment of Magnitsky laws against both the national and international requirements of the rule of law is still lacking. This paper offers a first comparative analysis of the compatibility of US, Canadian, UK, and Australian unilateral sanctions laws with the formal and procedural principles of the rule of law that constitute the common core of both its national and international notions. By analysing the formal aspects of the legal basis, design and application of these laws, our study identifies and conceptualises the legislative techniques that enable the normalisation of Magnitsky sanctions. We find that these techniques, which we name the ‘generalisation’ of sanctions laws, are not inherently incompatible with the rule of law, but so far national legislators have failed to ensure the right balance between the flexibility introduced by such techniques and the rigorous requirements of legality. The principled recommendations we propose based on our findings seek to help lawmakers around the world to strike the right balance between form and flexibility.
Unilateral coercive measures are deeply rooted in the history of statehood, yet their legal qualification continues to evolve. In a factually unequal international order, the governments of core countries continue to apply such measures as a foreign policy tool in driving peripheral countries to submission despite human rights concerns and a growing consensus on the illegality of their conduct. As most legal scholars struggle to define what constitutes a unilateral coercive measure, the conditions that beget coercive measures and the historical progress that led to today's predominant views are largely overlooked. Thus, this article is the fruit of a historical and doctrinal study of unilateral coercive measures and their qualification, as it aims to provide an insight as to what lies ahead in light of the historical precedent and the current progress in the field of public international law, human rights law and international criminal law.
Are unilateral economic sanctions legal under public international law? How do they relate to the existing international legal principles and norms? Can unilateral economic sanctions imposed to redress grave human rights violations be subjected to the same legal contestations as other unilateral sanctions? What potential contribution can the recently formulated doctrine of Common Concern of Humankind make by introducing substantive and procedural prerequisites to legitimise unilateral human rights sanctions?
Unilateral Sanctions in International Law and the Enforcement of Human Rights by Iryna Bogdanova addresses these complex questions while taking account of the burgeoning state practice of employing unilateral economic sanctions.
This chapter considers whether, in cases where there is overwhelming
humanitarian need and the host State will not consent to humanitarian assistance, there is any legal alternative to exclusive reliance on the Security Council. It first interrogates the view that humanitarian assistance provided without consent violates territorial integrity, and then considers whether non-consensual humanitarian assistance may be justified by circumstances of necessity. It then considers whether the UN General Assembly could play a role by making a legal determination regarding a state of necessity, which would have the effect of precluding the wrongfulness of an internationally wrongful act.
In this chapter, it is argued that the deficiencies of the international human rights regime pose a difficult dilemma for individual states – when and how to respond to egregious human rights violations abroad. Being constrained by a few possible alternatives, individual states or groups of states increasingly rely upon coercive economic measures (unilateral economic sanctions) to remedy grave human rights violations. The legality of unilateral economic sanctions has been debated at length within the international community. Notwithstanding this, their consistency with public international law and more specifically, WTO law is still contestable. Against this backdrop, the chapter discusses the theoretical framework of the doctrine of Common Concern and its potential to discipline the use of coercive economic measures imposed on human rights grounds. It explores the ability of the emerging doctrine to provide a new legal framework and necessary thresholds to legitimize coercive economic measures as well as to restrict their use if they are politically motivated.
This article seeks to make sense of two seemingly contradictory aspects of the General Assembly's practice: its history of recommending to States that they impose unilateral sanctions; and its series of resolutions denouncing unilateral coercive measures as illegal. It examines the seeming discrepancy between the customary international law position regarding unilateral sanctions, and the position asserted by the Assembly, and argues that on a nuanced reading of the Assembly's resolutions, these positions are not so divergent as is often supposed. The article concludes by examining the scope for the Assembly to make future sanctions recommendations, consistently with its prior condemnation of unilateral coercive measures.
This article considers whether, in cases where there is overwhelming humanitarian need and the host state will not consent to humanitarian assistance, there is any legal alternative to exclusive reliance on the Security Council. It first interrogates the view that humanitarian assistance provided without consent violates territorial integrity, and then considers whether non-consensual humanitarian assistance may be justified by circumstances of necessity. It then considers whether the UN General Assembly could play a role by making a legal determination regarding a state of necessity, such as would preclude the wrongfulness of an internationally wrongful act.
This article argues that sanctions are interactional tools; their interactive nature is evident if these measures are considered as a form of stigmatization, which is the outcome of an interaction between the group imposing the stigma and the actor that is stigmatized. Stigmatized states do not always accept the label that is placed upon them and can adopt strategies to counter or resist stigma. From a symbolic interactionalist perspective, this can be understood as a state’s foreign policy role. Such an approach is illustrated through a study of Russia’s response to being sanctioned by the EU and the US for its policies in the Ukrainian crisis. It is argued that Russian leaders are unlikely to cave into Western pressure because they reject the role of deviant that is placed upon their state and instead adopt the role of the ‘untouchable’ state, which is consistent with Russia’s great power identity. Though the sanctions may enable the EU and the US to activate their roles as normative powers, in the context of the Ukrainian crisis, they have locked the parties into roles that contribute to the crisis’ duration.
International sanctions have become the instrument of choice for policymakers dealing with a variety of different challenges to international peace and security. This is the first comprehensive and systematic analysis of all the targeted sanctions regimes imposed by the United Nations since the end of the Cold War. Drawing on the collaboration of more than fifty scholars and policy practitioners from across the globe (the Targeted Sanctions Consortium), the book analyzes two new databases, one qualitative and one quantitative, to assess the different purposes of UN targeted sanctions, the Security Council dynamics behind their design, the relationship of sanctions with other policy instruments, implementation challenges, diverse impacts, unintended consequences, policy effectiveness, and institutional learning within the UN. The book is organized around comparisons across cases, rather than country case studies, and introduces two analytical innovations: case episodes within country sanctions regimes and systematic differentiation among different purposes of sanctions.
This Editorial Comment elaborates the author's concept of the international law of co-progressiveness first as a descriptive
observation and then as a normative position and attempts to identify some core tenets of this law.
Common Position 96/635/CFSP of 28 October 1996 defined by the Council on the basis of Article J.2 of the Treaty on European Union
Common Position 96/635/CFSP of 28 October 1996 defined by the Council on
the basis of Article J.2 of the Treaty on European Union, on Burma/Myanmar, OJ
L287/1 (1996).
extending Common Position 96/635/CFSP on Burma/Myanmar
Council Common Position 2002/310/CFSP of 22 April 2002 extending Common
Position 96/635/CFSP on Burma/Myanmar, OJ L107/1 (2002), para.2.
Myanmar sanctions for 1 year, European Sanctions
- O' Michael
- Kane
- Eu
- Burma
Michael O'Kane, EU renews Burma/Myanmar sanctions for 1 year, European
Sanctions (26 April 2017) (https://europeansanctions.com/2017/04/26/eu-renewsburmamyanmar-sanctions-for-1-year/).
concerning restrictive measures against certain officials of Belarus and repealing Common Position 2004/661/CFSP
Council Common Position 2004/661/CFSP of 24 September 2004 concerning restrictive measures against certain officials of Belarus, OJ L301/67 (2004), repealed
by Council Common Position 2006/276/CFSP of 10 April 2006 concerning restrictive measures against certain officials of Belarus and repealing Common
Position 2004/661/CFSP, OJ L101/5 (2006). Further restrictive measures were imposed in 2006, 2010 and 2012 for alleged violations of electoral standards.
Lithuanian parliament introduces Magnitsky sanctions bill, European sanctions
- Maya Lester
Maya Lester, Lithuanian parliament introduces Magnitsky sanctions bill, European sanctions (28 April 2017)
(https://europeansanctions.com/2017/04/28/lithuanian-parliament-introduces-mag
nitsky-sanctions-bill/);
UK set to vote on "Magnitsky" sanctions against human rights violators, European sanctions
- O' Michael
- Kane
Michael O'Kane, UK set to vote on "Magnitsky" sanctions against human rights violators, European sanctions (5 December 2016)
(https://europeansanctions.com/2016/12/05/uk-set-to-vote-on-magnitsky-sanctionsagainst-human-rights-violators/).
concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine
Council Decision 2014/145/CFSP of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine, OJ L 78/16 (2014), para.4; Council Decision
2014/512/CFSP of 31 July 2014 concerning restrictive measures in view of Russia's
actions destabilizing the situation in Ukraine OJ L 229/13 (2014).
16th Summit of Heads of State or Government of the Non-Aligned Movement, Final Document
16th Summit of Heads of State or Government of the Non-Aligned Movement,
Final Document, 26-31 August 2012 NAM2012/Doc.1/Rev.2 (31 August 2012),
para.24.4.
See also Letter dated 2011/06/29 from the Permanent Representative of Egypt, above n.163, Annex I Final Document
- Ibid
Ibid., para.9.l. See also Letter dated 2011/06/29 from the Permanent
Representative of Egypt, above n.163, Annex I Final Document, para.25.4.
On Chinese approach to international law more generally see Wim Muller, China an Illiberal, Non-Western State in a Western-Centric Liberal Order?
- Matthias Vanhullebusch
Matthias Vanhullebusch, Regime Change, the Security Council and China, 14
Chinese JIL (2015), 665-707. On the Five Principles of Peaceful Coexistence see
the special issue in 13 Chinese JIL (2014). On Chinese approach to international
law more generally see Wim Muller, China an Illiberal, Non-Western State in a
Western-Centric Liberal Order?, 15 Baltic YIL (2015) and XUE Hanqin, Chinese
Contemporary Perspectives on International Law: History, Culture and
International Law (2012).
Following the Five Principles of Peaceful Coexistence and Jointly Building a Community of Common Destiny
LIU Zhenmin, Following the Five Principles of Peaceful Coexistence and Jointly
Building a Community of Common Destiny, 13 Chinese JIL (2014), para.2.
- Catherine Shoichet
Catherine Shoichet, Venezuela recalls top diplomat in U.S. over sanctions, CNN
(10 March 2016) (http://edition.cnn.com/2016/03/09/americas/venezuela-diplo
mat-recalled/); Venezuelan leader Maduro condemns new US sanctions, BBC (10
March 2016) (http://www.bbc.com/news/world-latin-america-31813127).
Executive order on applying certain special economic measures to ensure the security of the Russian Federation
- Russia President Of
President of Russia, Executive order on applying certain special economic measures
to ensure the security of the Russian Federation (http://en.kremlin.ru/events/presi
dent/news/46404). These measures were adopted against the EU, the US and States
that had aligned themselves with their policies.
Russia withdraws from US Nuclear Cooperation
- Rosatom
Rosatom, Russia withdraws from US Nuclear Cooperation (12 October 2016) (http://www.rosatom.ru/
en/press-centre/industry-in-media/russia-withdraws-from-us-nuclear-cooperation/);
Draft law suspending the Russia-US Plutonium Management and Disposition Agreement submitted to the State Duma
- Russia President Of
President of Russia, Draft law suspending the Russia-US Plutonium Management
and Disposition Agreement submitted to the State Duma (3 October 2016) (http://
en.kremlin.ru/acts/news/53009).
More recently, see: Margaret Doxey, Reflections on the Sanctions Decade and Beyond, 64 International Journal: Canada's Journal of Global Policy Analysis
- Margaret Doxey
Margaret Doxey, Economic Sanctions and International Enforcement (2nd Edition,
1979) 132. More recently, see: Margaret Doxey, Reflections on the Sanctions
Decade and Beyond, 64 International Journal: Canada's Journal of Global Policy
Analysis (June 2009), 549: "Since the beginning of the sanctions decade there have
Hofer, Legitimate Enforcement or Illegitimate Intervention? 213