CYIL vol. 7 (2016)

CYIL 7 ȍ2016Ȏ

ARE UNILATERAL ȍECONOMICȎ SANCTIONS REALLY IMPERMISSIBLE…

sanctions are not mentioned in the Charter and that is why they are impermissible.

As support for his conclusion Prof. Mohamad refers to jurisdictional issues; further

he lists many principles of international law that are violated by unilateral sanctions.

The fact that unilateral sanctions violate the fundamental principles of international

law leads him to the conclusion that unilateral sanctions are impermissible under

international law.

The following text is going to challenge several aspects of his argumentation:

the very term sanctions, especially in the light of current sanctions practice, the

“permissive power” of the United Nations Charter (is there any space for sanctions

beside the Charter?) and the allegedly punitive character of sanctions. On the other

hand, it is intentionally not going to deal with his statement on the violation of

fundamental principles of international law (because of the lack of reasoning in

Prof. Mohamad’s text)

and with jurisdictional issues (Prof. Mohamad explains the

extraterritoriality issue of unilateral sanctions in subchapter 4.4), because this topic

was elaborated on recently in depth by Charlotte Beaucillon.

By assessing the “permissibility” of unilateral sanctions Prof. Mohamand relies on written international

law only, he does not work with customary law. He mentions customary law only in relation to some

principles of international law (as a source of princple of proportionality or non-discrimination) that

are violated by unilateral sanctions in his opinion.

Prof. Mohamad rejects unilateral sanctions strictly also because of their alleged contradiction to

fundamental principles of international relations (Chapter 4.5). He states, that “

it becomes evident that

impositions of unilateral sanctions violate certain core principles of the UN Charter, such as sovereign equality

and territorial integrity, nonintervention, and the duty to cooperate. They also violate the core principles

enshrined under the Declaration on Friendly Relations, which includes the principles of sovereign equality

of States, nonuse of force, self-determination of people, nonintervention in the internal and external affairs

States, peaceful settlement of international disputes, cooperation among States, and fulfilling in good faith

obligations assumed under international law. Unilateral sanctions imposed against third parties by virtue of

the application of one’s own national legislation extraterritoriality also breach certain basic tenets of general

principles of international law. These include the principle of self-determination; the ‘right to development’

of the citizens and individuals residing in the targeted territory; countermeasures and dispute settlement; and

freedom of trade and navigation.

” Further, he proclaims that also the rights to life, to food, to health,

and right to development are manifestly influenced by unilateral sanctions. Unfortunately, he presents

only a few isolated arguments as a support for his statements in Chapter 4.5.

BEAUCILLON, CH. ‘PracticeMakes Perfect, Eventually? Unilateral State Sanctions and the Extraterritorial

Effects of National Legislation’ in RONZITTI, N. (ed),

Coercive Diplomacy, Sanctions and International

Law

(Martinus Nijhoff Publishers, Leiden 2016) 103-126. The author in her contribution defines the

legitimacy and legality issues related to the application of unilateral sanctions and their background.

She concentrates on two criteria that are used to justify extraterritorial effects of unilateral (especially

U.S.) sanctions – control criterion and effects criterion. She reminds us of the unsuccessful regulation

efforts and the careful approach of the International Law Commission to the topic. She concludes her

contribution by saying that

“although extraterritorial effects of unilateral sanctions remain highly controversial

[…] and might jeopardize some of its fundamental principles, this issue still seem to be left to the balance of

power between the leading economies of the world on the one hand, and to the operation of domestic law to

contain their effects on the other hand.”