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CYIL 7 ȍ2016Ȏ
ARE UNILATERAL ȍECONOMICȎ SANCTIONS REALLY IMPERMISSIBLE…
are true no more for individually targeted sanctions and selective trade sanctions.
In the time when the text of the UN Charter (as a basis for current UN sanctions
practice) was drafted, no one could expect the future development of sanctions
(including the Security Council’s incapacity and unwillingness to authorize sanctions
because of political differences among permanent members) and the later targeting of
sanctions. The UN Charter allows us to understand internationals sanctions only as
a coercive measure with the aim of the coercion given resolutely: to maintain or restore
international peace and security. But the world is much more complicated, and the
sanctions practice reflects this; senders may impose sanctions not only to coerce
other subjects to maintain international peace or respect other rules of international
law. Their aim may be to constrain the power of the sanctioned state, to limit their
possibility to develop nuclear weapons, for example, or just to send a signal that the
sender does not agree with the behaviour of the recipient…
Prof. Mohamad tends to read the UN Charter in a word-to-word, verbatim way.
Of course, there are many Charter provisions where we should insist in a restrictive
interpretation, but not in the case of sanctions. The sanctions practice is much older
than the Charter text is; a wide unilateral sanctions practice (and some multilateral
practice) was developed already before the establishment of the United Nations
Organisation. The Charter itself does not use the term sanctions, does not define
it. Anyway, the Security Council imposes “sanctions” and established “sanctions
committees”. In my text I assert that the UN Charter is not the text we should
cling to absolutely when we study sanctions, especially unilateral ones. From my
point of view, the colourful sanctions practice of particular states, of the European
Union and of the United Nations as well, goes in many aspects beyond the Charter.
The years-long non-application of UN Charter provisions (art. 39 and art. 41)
created an open space for the independent sanctions decisions of states (not only
the United States, but also Soviet Union/Russia, France, Great Britain, China and
other states) and other international organisations. If we want to assess the legality
or permissibility of current sanctions measures, it is logical to start in Chapter 7 of
the UN Charter. But we definitely cannot ignore the fact, that unilateral sanctions
are imposed by a representative group of states and for a long time and that the
entire sanctions practices has changed significantly since the Charter was adopted.