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Autonomous and Collective Sanctions in the International Legal Order
Abstract
The UK government is currently proposing the enactment of a “Sanctions Act” upon the UK’s withdrawal from the EU in 2019, embodying a right to impose “autonomous sanctions” against other states and non-state actors, on the basis that the UK will no longer be able to benefit from the EU’s collective sanctioning competence. The spotlight is again on the nature and purposes of sanctions in international law. The article addresses the legal framework applicable to sanctions by, first of all, showing that the nature of sanctions is different in the international legal order to how it is conceived in domestic legal orders in that sanctions are primarily imposed in response to threats to or breaches of the peace and, in so doing, the analysis will distinguish sanctions from countermeasures and other non-forcible measures. It then proceeds to demonstrate that the values of peace and security that underpin sanctions are essentially normative and should be seen as part of the international legal order and enforceable through sanctions alongside other fundamental norms of international law. Whether viewed as responses to breaches of international law or not, the analysis shows that sanctions are collective measures exclusively within the competence of international organizations. Having established the conceptual and legal frameworks for understanding sanctions, the article considers sanctions imposed against states and non-state actors, and explores whether the move towards targeted sanctions is a form of collective response to violations of international law. The article finishes by considering that, in contrast to countermeasures and other measures of self-help, collective sanctions are inherently lawful, but can only be legally justified as measures adopted out of a necessity to prevent major ruptures to peace and international law.
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.
The focus of this chapter is UN Security Council sanctions; that is, coercive measures short of the use of military force taken under Article 41 of the UN Charter. Since the late 1990s, the Council has undergone a seismic shift in its sanctioning practice, from imposing blanket sanctions against states towards targeting individuals apparently implicated in global terrorism. As a result of this shift, this area of the Security Council’s practice has, in recent times, courted a high degree of controversy. Criticisms centre on the lack of due process guarantees provided to those targeted, which culminated in the now notorious Kadi litigation before the courts of the European Union, and other high-profile decisions of regional and domestic courts. This chapter situates these developments, first in light of the Council’s ‘primary responsibility for the maintenance of international peace and security’ and, secondly, in the context of a broader conversation on the legality and legitimacy of Security Council decision-making under Chapter VII.KeywordsSecurity CouncilArticle 41SanctionsLegal limitsLegitimisation
Kadi
International Law and Peace Settlements provides a systematic and comprehensive assessment of the relationship between international law and peace settlement practice across core settlement issues, e.g. transitional justice, human rights, refugees, self-determination, power-sharing, and wealth-sharing. The contributions address key cross-cutting questions on the legal status of peace agreements, the potential for developing international law, and the role of key actors – such as non-state armed groups, third-state witnesses and guarantors, and the UN Security Council – in the legalisation and internationalisation of settlement commitments. In recent years, significant scholarly work has examined facets of the relationship between international law and peace settlements, through concepts such as jus post bellum and lex pacificatoria. International Law and Peace Settlements drives forward the debate on the legalisation and internationalisation of peace agreements with diverse contributions from leading academics and practitioners in international law and conflict resolution.
Conditionality has different meanings in different situations. Conditionality is applied in different policy areas such as lending or investment programmes, trade agreements and development cooperation aid. In international economic relations, for example, it indicates a performance-based aid allocation by international organizations such as the World Bank or the International Monetary Fund (IMF). In this financial and economic context, conditionality requires governments seeking aid to agree to economic policy adjustments defined by the donors. Conditionality can also refer to the process of tying aid to a specific use or it can describe projects and programmes aimed at supporting democracy or human rights protection
Taking stock of the discussion on the measures to be taken against States not complying with existing obligations in the field of nuclear non-proliferation contained in the Fourth Report on Legal Aspects of the Use of Nuclear Energy for Peaceful Purposes presented by the Committee on Nuclear Weapons, Non-Proliferation & Contemporary International Law to the ILA Sydney Conference (2018), this chapter suggests three possible avenues to deal with such States. The first avenue is the UN Charter and the possibility that the recalcitrant Member State’s membership rights be suspended or that its membership be severed permanently (expulsion). The second avenue centres on the Treaty on the Prohibition of Nuclear Weapons and how its provisions might be invoked to address prohibited nuclear proliferation by Contracting Parties. The third avenue concerns the domestic legislation of certain States, which permits the adoption of the so-called ‘autonomous sanctions’, separately and independently of enforcement action ordered by international organisations, and in furtherance of foreign policy objectives.
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