Lawfare Institute: Are Unilateral Sanctions Illegal Under International Law?

In May, the Lawfare Institute hosted an online symposium in which experts on international law engaged questions surrounding the legality and efficacy of unilateral sanctions—that is, sanctions imposed by an individual state rather than the United Nations Security Council (UNSC) or another international body. The symposium was hosted on Lawfare’s blog, which acts as a platform for experts to engage with pressing issues of national security and law.

The upshot of the Lawfare discussion is that international law does not provide clear answers. First, the international legal framework concerning sanctions is underdeveloped and understudied the international legal infrastructure around sanctions fails to provide clear legal terms, leaving much of the debate up to speculation. Second, there is no clear consensus as to whether or not unilateral sanctions are actually effective in changing the behavior of target states.

In the symposium’s introduction, Anne van Aaken, referring to the Articles of the Responsibility of States for Internationally Wrongful Acts (ARSIWA), argues that ARSIWA leaves the legal basis of unilateral sanctions uncertain until further research or clarification is provided by the ILC or the United Nations. Devika Hovell builds off of van Aaken’s analysis by exploring the legal foundation of the UN Charter, which provides a certain framework for how autonomous states should settle international disputes. She reaches a similar conclusion, suggesting that the legal basis for unilateral sanctions is “unmapped terrain.” She points out that the International Law Commission (ILC), which established ARSIWA in 2001, has yet to express its position in the debate, instead opting to leave the question to be resolved by the “further development of international law.”

Elena Chachko takes a different approach, invoking articles from the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR). She proposes that states actually have a right under these accords to implement targeted sanctions under the right to property (UDHR Article 13) and the right to free movement (ICCPR Article 12(3)), and that legal precedent in international law protects the state’s right to impose sanctions in defense of human rights and national security. However, Chachko concludes that, though targeted unilateral sanctions are not necessarily unlawful in theory, individual sanction programs must be assessed on a case-by-case basis.

Other scholars assess whether unilateral sanctions are actually effective in achieving the goal of changing bad behavior by target states. In their essay, David S. Cohen and Zachary K. Goldman describe the logic behind the use of sanctions, essentially breaking it down into a cost-benefit analysis. They explain that, in theory, sanctions are used to shape the behavior of the target state by reducing its incentives to engage in a specific offending behavior. They conclude that, generally, sanctions are more effective when they are imposed multilaterally by an international organization or coalition, because the threat of sanctions and stigmatization by the international community is more persuasive in inducing behavioral change. However, they admit that there are practical reasons for individual states such as the United States to gravitate towards imposing unilateral sanctions, and that this is unlikely to change despite their questionable efficacy.

Alexandra Hofer takes a similar stance with regard to the question of efficacy, analyzing decisions by states in terms of anticipated outcomes and social psychology. She emphasizes the impact of stigmatization by the international community that may result from being sanctioned, and ultimately decides that unilateral sanctions are more likely to be effective in changing a state’s behavior if the sanctions: are targeted and connected to clear conditions, are perceived by the target state as legitimate, and result in stigmatization of the state by the international community.

The remaining essays deal with the question of whether it is fair for the United States to sanction a state with considerably less economic and political power. Antonios Tzanakopolous generally agrees with van Aaken, Hovell, and Chachko in that he too views that unilateral sanctions are not inherently unlawful and that their legality must be assessed on a case-by-case basis. However, he suggests that sanctions may become especially harmful, and even potentially unlawful, if they have severe extraterritorial consequences, meaning that they have a significant negative impact on states other than the target state.

Joshua P. Zoffer tackles a similar issue, explaining the complexities inherent in sanctions by the United States. He describes the U.S. dollar as the ‘world’s key currency,’ and explains that sanctions by the United States on other countries capitalize on this imbalance to restrict access to U.S. banks and financial institutions, effectively debilitating the economies of target states. Zoffer ultimately concludes that unilateral sanctions imposed by the United States on weaker states may be an unfair and/or unfriendly act—but that there is sparse and conflicting evidence within the existing legal framework that such an act is in fact against international law.