Unilateral Sanctions in International Law and the Enforcement of Human Rights

Front matter

Unilateral Sanctions in International Law and the Enforcement of Human Rights

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

World Trade Institute Advanced Studies

Part 1

The History, Effectiveness and Legality of Unilateral Economic Sanctions

The History of Economic Coercion: From Economic Warfare to the Enforcement of Community Interests 15

11 Economic Coercion before the Twentieth Century 15

1.2 Economic Sanctions in the Covenant of the League of Nations and Their Application in the Interwar Period 19

1.3 Economic Sanctions after World War II 23

1.4 The “Sanctions Decade” and the Quest for “Smart” Sanctions 30

1.5 The War against Terrorism and the UN Security Council’s Targeted Sanctions 33

1.6 The Increased Use of Unilateral Economic Sanctions and a New Geo-economic World Order 36

The Effectiveness of Economic Sanctions 44

Ži The Objectives Pursued by Economic Sanctions 45

2.2 The Debate on the Effectiveness of Economic Sanctions 47

2.3 Strategies for Circumventing the Negative Effects of Economic Sanctions 56

2 The Legality of Unilateral Economic Sanctions under Public International Law 59

Unilateral Economic Sanctions: In Search of Definitional Clarity 60 Ta, Retorsion 60

1:2 Reprisals 61

1.3 Countermeasures 63

1.4 Third-Party Countermeasures (Solidarity Measures, Countermeasures in the Collective Interest) 65

1.5 Sanctions 66

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

VIII CONTENTS

2 The Legality of Unilateral Economic Sanctions under the Charter of the United Nations 68

2.1 Unilateral Economic Sanctions as a Use of Force under Article 2(4) 71 2.2 Unilateral Economic Sanctions as a Violation of the Principle of

Non-intervention 74 3 The Legality of Unilateral Economic Sanctions under the Draft Articles on Responsibility of States for Internationally Wrongful

Acts 78 3.1 Unilateral Economic Sanctions as Countermeasures 80 3.2 Unilateral Economic Sanctions as Third-Party

Countermeasures 82 4 Unilateral Economic Sanctions and Established Principles of Jurisdiction in International Law 85 41 Jurisdiction in International Law 86 4.2 Secondary Sanctions and Their Extraterritorial Reach 89 4.3 Types of Primary and Secondary Unilateral Sanctions That Face a Significant Risk of Being Classed as Extraterritorial 94 5 Jurisdiction and the Imposition of Unilateral Financial Sanctions 105 5.1 The Era of Financial Warfare 106 5.2 Unilateral Financial Sanctions and Jurisdiction 109 5.3 Correspondent Account-Based Jurisdiction: A New Rule for Ascertaining Jurisdiction 2 6 Unilateral Economic Sanctions and the Immunities of States and State Officials 121 6.1 Blocking the Property of Central Banks and State-Owned Enterprises 122 6.2 Blocking of Property and Travel Restrictions Applicable to Heads of States and Other High-Ranking Government Officials 129 7 Unilateral Economic Sanctions and wTo Law 133 7.1 Import Restrictions 134 7.2 Export Restrictions 139 7.3 Restrictions on Traffic in Transit and Goods in Transit 144 7.4 The Freezing of Assets and Restrictions on Financial Transactions 148

7.5 Visa Restrictions 152 76 Secondary Sanctions and Their Compatibility with wTo Law 154

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access

CONTENTS IX

PART 2 The International Enforcement of Human Rights and the Legality of Unilateral Human Rights Sanctions

3 The International Enforcement of Human Rights 161 1 Human Rights Treaties and Enforcement Mechanisms 162 11 The Core Human Rights Treaties: A Short Review 164 1.2 Reporting Obligation 174 1.3 Mechanisms for Interstate Complaints 175 1.4 Mechanisms for Individual Complaints 175 1.5 Inquiry Procedure 177 1.6 Dispute Settlement Provisions and the Role of the International Court of Justice 183 1.7 The Deficiencies of Treaty-Based Enforcement Mechanisms 197 2 Enforcement of Human Rights That Have Acquired a Special Status 204 21 JusCogens 204 2.2 Obligations Erga Omnes 211 3 The Role of the Human Rights Council in the International Protection of Human Rights 214 4 The Role of the UN Security Council in Responding to Atrocities 216 41 Humanitarian Intervention and Responsibility to Protect (R2P) 217 4.2 Collective Economic Sanctions 220 5 Conclusion 222

4 The Legality of Unilateral Economic Sanctions Imposed to Redress

Human Rights Violations 223

1 Human Rights Sanctions and the Principle of Non-intervention 231

2 Economic Sanctions Targeting Human Rights Violations and the Draft Articles on Responsibility of States for Internationally Wrongful Acts 233

3 Economic Sanctions Targeting Human Rights Violations and the Immunities of Heads of States and Other High-Ranking Government Officials 237

4 Economic Sanctions Imposed on Human Rights Grounds and wro Law 244 4.1 Justification under the Public Morals Exception 248 4.2 Justification under the National Security Exception 258

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access x CONTENTS

PART 3 The Contribution of the Doctrine of Common Concern of Humankind to the International Protection of Human Rights

5 The Doctrine of Common Concern of Humankind and Its Contribution to Enhancing Human Rights Protection 273 1 The Evolution of the Doctrine of Common Concern of Humankind 273 2 The Suggested Normative Implications of the Principle of Common Concern of Humankind 279 2.1 Duty to Cooperate 279 2:2 Obligation to Do One’s Homework 281 2.3 Securing Compliance 282 3 The Introduction of the Doctrine of Common Concern of Humankind into International Human Rights Law 283 3. The Reasons behind States’ Abuses of Human Rights 284 3.2 The Concept of the Essence of Human Rights (Kerngehalt) as a Threshold to Define Human Rights as a “Common Concern” 287 3.3 Systematic Human Rights Violations as an Additional Criterion 289 34 Grave Human Rights Violations as a Threat to International Peace and Security 289 4 The Potential of the Principle of Common Concern of Humankind in International Human Rights Law 298 4.1 Reinforced Duty to Cooperate 299 4.2 The Domestication of International Human Rights Obligations 300 43 AnInstrument for Providing Legality and Legitimacy to Unilateral Economic Sanctions 302 4.4 AnInstrument to Empower Civil Society 305 5 Conclusion 306

Bibliography 317 Index 361

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access

Acknowledgements

This book is an edited version of my doctoral dissertation, and it represents the culmination of a number of years of research, which was conducted at the World Trade Institute (wT1), University of Berne. It was a privilege to be a member of the research team working for the project “Towards a Principle of Common Concern in Global Law.’ This research was made possible by the extraordinary enthusiasm of Professor Thomas Cottier and with the generous financial support provided by the Swiss National Science Foundation (SNSF). The initial findings of this research project were presented during the 2018 conference and were later published in an edited volume The Prospects of Common Concern of Humankind in International Law by Cambridge University Press in 2021.

I would like to take this opportunity to thank Professor Thomas Cottier for his trust, invaluable support and encouragement over the years. I am equally grateful to Professor Michael Hahn for his guidance as a second supervisor of my work.

This work would not be possible without unstinting support and encouragement from my family, friends and colleagues. Throughout my work on this book, I benefited from guidance and support generously offered by my teammates — Zaker Ahmad, Alexander Beyleveld and Lucia Satragno. I was lucky to form a close friendship with Zaker and Alex and hopefully, the bonds of friendship will only strengthen with time. The valuable help and wholehearted support of my close friend and a fellow PhD colleague — Anqi Wang — should also be acknowledged. Moreover, I was privileged to obtain advice and insights from many other people, in particular, fellow PhD colleagues — Andrea Schlaepfer, Judith Schaeli, Rosa Maria Losada, Aylin Yildiz and Maria Vasquez Callo-Miiller.

I thank the wT! doctoral school, under the guidance of Doris Oberdabernig and Octavio Fernandez, for providing me with the opportunity to learn from many leading experts in the course of my doctoral studies.

Many colleagues have guided and assisted me during this time, including Professor Peter Van den Bossche, Professor Manfred Elsig and Dr Rodrigo Polanco. I am grateful for their support and assistance.

Finally, the work of the wT! and researchers like me would not be possible without administrative and logistical support timely and professionally provided by Margrit Vetter and Sandra Joseph. Many thanks to both of them for being always there for the WTI researchers and students.

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

XII ACKNOWLEDGEMENTS

Thanks should also be extended to Pablo Das and Sophia Thompson for managing public communications and helping to spread the word about the research conducted at the wTI.

Thanks to language editor Chad Jorgenson for editing my manuscript and doing it on very short notice and under a significant time constraint, yet maintaining outstanding quality.

Thanks to the staff at Brill, especially Kelley Baylis and Dove Morissette for coordinating the publication process. Thanks to the designers, typesetters and the production staff for their patience and efforts.

A few words of gratitude are owed to my long-term friends, whose support is a great encouragement for me — Roman Prodayko, Artem Nikitin, and Daryna Koryagina.

This book is dedicated to my family.

This book will be available in open access due to the generous support of the sNSF (grant number: 10BP12_208113).

Iryna Bogdanova Poltava, Ukraine January 2022

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

Tables m.

Types of import restrictions and modes of supply under the GATS 138

Types of export restrictions and modes of supply under the GATS 142 Reporting obligation in the core human rights conventions 176

Mechanisms of interstate complaints in the core human rights conventions 178 Individual complaints mechanisms in the core human rights conventions 181 an A WW N

Inquiry procedures in the core human rights conventions 184

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

Abbreviations

AB CAT

CEDAW CPED

CRC

CRPD

Draft articles DSU

EU

Genocide Convention

ICCPR ICERD

ICESCR

ICJ ICMW

ILC

MFN

NATO

OFAC

PCIJ

R2P

Security Council UAE

UN

UN Charter

Appellate Body

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Convention on the Elimination of All Forms of Discrimination against Women

International Convention for the Protection of All Persons from Enforced Disappearance

Convention on the Rights of the Child

Convention on the Rights of Persons with Disabilities

Draft articles on Responsibility of States for Internationally Wrongful Acts

Understanding on rules and procedures governing the settlement of disputes

European Union

General Agreement on Trade in Services

General Agreement on Tariffs and Trade

Convention on the Prevention and Punishment of the Crime of Genocide

International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination

International Covenant on Economic, Social and Cultural Rights

International Court of Justice

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families International Law Commission

Most-favoured-nation principle

North Atlantic Treaty Organization

Office of Foreign Assets Control

Permanent Court of International Justice

Responsibility to Protect

United Nations Security Council

United Arab Emirates

United Nations

Charter of the United Nations

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

ABBREVIATIONS XV

UN Convention United Nations Convention on Jurisdictional Immunities of States and Their Property VCLT Vienna Convention on the Law of Treaties WTO World Trade Organization

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

Introduction

In the early spring of 2014, the silence of the blossoming Crimean gardens was shattered by the manoeuvres of Russian military forces. The Russian Federation seized control of the southernmost outpost of the once-mighty Russian empire — the Crimean Peninsula. The core principles enshrined in the Charter of the United Nations almost seventy years earlier were overturned in a single stroke. This illegal annexation was followed by military conflict in eastern Ukraine, which was fuelled and supported by the Russian Federation. Needless to say, these events triggered an international outcry. Official statements made by heads of states and governments condemned these flagrant violations of international law.! Soon, diplomatic notes were replaced by unilateral economic sanctions.”

These sanctions were unilateral acts on the part of states, which were introduced in line with their domestic laws and were not authorised by any international institution. However, these unilateral efforts to inflict economic pain did not go unanswered. The Russian Federation fired back with its own economic restrictions against the states that had imposed restrictive measures, calling these measures “countersanctions.’$

1 “The sovereignty, territorial integrity and independence of Ukraine must be respected. The European Union does neither recognise the illegal and illegitimate referendum in Crimea nor its outcome. The European Union does not and will not recognise the annexation of Crimea and Sevastopol to the Russian Federation.” Joint Statement on Crimea by President of the European Council Herman Van Rompuy and President of the European Commission José Manuel Barroso. Brussels, 18 March 2014. EUCO 63/14.’; On 3 March 2014, the House of Commons of Canada unanimously passed a motion to “strongly condemn Russia’s provocative military intervention in Ukraine.’ Journals No. 55 — March 3, 2014 (41-2) — House of Commons of Canada’ <https://www.ourcommons.ca/DocumentViewer/en/41-2/house/sitt ing-55/journals>.

2 The first wave of sanctions was imposed in March 2014. President of the United States of America. Executive Order 13660 of March 6, 2014. Blocking Property of Certain Persons Contributing to the Situation in Ukraine; President of the United States of America. Executive Order 13661 of March 16, 2014. Blocking Property of Additional Persons Contributing to the Situation in Ukraine; The European Union introduced Council Regulation (EU) No 269/ 2014 of 17 March 2014 concerning restrictive measures in respect of actions undermining or threatening the territorial integrity, sovereignty and independence of Ukraine 2014 (OJ L); Canada introduced the Special Economic Measures (Ukraine) Regulations. sor/2014-60, on March 17, 2014.

3 The Decree of the President of the Russian Federation on 6 August 2014 No. 560 ‘On the application of certain special economic measures to ensure the security of the Russian Federation’ (Yxa3 IIpesugeuta Poccuiicxoii Pegepaunu or 06.08.2014 r. No. 560 O npumeHenuu

© IRYNA BOGDANOVA, 2022 | DOI:10.1163/9789004507890_002 This is an open access chapter distributed under the terms of the cc By-NO“ND2p@HGeHse- 978-90-94-50789-0 Downloaded from Brill.com02/02/2023 12:45:23PM via free access

The tensions between Ukraine and Russia and the ensuing sanctions led international legal scholars to be caught in the crossfire. The perennial legal debate over the legality of unilateral economic sanctions, which are not authorised by the Security Council of the United Nations, was given new momentum. Despite being voluminous, the literature on the subject does not provide much clarity beyond the mere recognition that it is a highly contentious topic.* Thus, even the basic question of whether unilateral economic sanctions are permitted under international law has not been firmly settled.

Furthermore, in light of the statements made by high-ranking Russian government officials pointing to the inconsistency of unilateral sanctions with World Trade Organization (wTo) law,* debates about whether national security considerations can justify such unilateral responses proliferated.® Subsequent developments, which resulted in a dispute initiated by Ukraine against the Russian Federation at the wTo, shed some light on the matter, yet did not clarify it fully.”

The dramatic unfolding of the war in Syria, along with the well-documented and widely reported large-scale human rights atrocities, prompted states to tighten the unilateral economic sanctions they had previously imposed. It is worth noting that the UN Security Council made numerous attempts to adopt a resolution condemning widespread violence and egregious human rights violations, as well as to impose collective sanctions, yet some of the permanent members, notably the Russian Federation and the People’s Republic of China,

4 Mergen Doraev, ‘The “Memory Effect” of Economic Sanctions against Russia: Opposing Approaches to the Legality of Unilateral Sanctions Clash Again’ (2015) 37 University of Pennsylvania Journal of International Law 355; Tom Ruys, ‘Sanctions, Retorsions and Countermeasures: Concepts and International Legal Framework’ in Larissa Van den Herik (ed), Research Handbook on UN Sanctions and International Law (Edward Elgar Publishing 2017).

5 Shawn Donnan and Kathrin Hille, ‘Russia Threatens US with WTO Action over Crimea Sanctions’ Financial Times (16 April 2014) <https://www.ft.com/content/5418ad46-c57c-11e3 -97e4-00144feabdco>; Benjamin Fox, ‘Poland Demands WTO Challenge over Russia Food Ban’ (20 August 2014) <https://euobserver.com/news/125295>.

6 Rostam J Neuwirth and Alexandr Svetlicinii, ‘The Economic Sanctions over the Ukraine Conflict and the WTO: ‘Catch-XXT and the Revival of the Debate on Security Exceptions’ (2015) 49 Journal of World Trade 891; Rostam J Neuwirth and Alexandr Svetlicinii, ‘The Current EU/US—Russia Conflict over Ukraine and the WTO: A Preliminary Note on (Trade) Restrictive Measures’ (2016) 32 Post-Soviet Affairs 237.

7 Panel Report, Russia — Measures Concerning Traffic in Transit, wT/DS512/R and Add, adopted 26 April 2019.

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access vetoed all these attempts.® Hence, the proposed actions under Chapter vii of the UN Charter were blocked.

Individual states faced with the need to respond to this international crisis relied on unilateral economic sanctions. These included economic restrictions imposed on the Central Bank of Syria and on the acting head of state, as well as on other high-ranking government officials.!° These developments provoked a debate about the relationship between unilateral restrictive measures and the immunities granted under the international law to states, heads of states and other high-ranking government officials."

Venezuela's attempts to call into question the legality of unilateral economic sanctions represent another convoluted legal twist. In January 2019, Venezuela aimed to challenge the consistency of the unilateral economic sanctions

8 The first attempt to adopt the Security Council resolution, in 201, failed. ‘Security Council Fails to Adopt Draft Resolution Condemning Syria’s Crackdown on Anti-Government Protestors, Owing to Veto by Russian Federation, China’ <https://www.un.org/press/en/ 20u/sc10403.doc.htm>; On 4 February 2012, the adoption of the draft resolution condemning the violence in Syria was vetoed by the Russian Federation and China. ‘Security Council Fails to Adopt Draft Resolution on Syria as Russian Federation, China Veto Text Supporting Arab League’s Proposed Peace Plan’ <https://www.un.org/press/en/2012/ sc10536.doc.htm>; On 19 July 2012, the adoption of another draft resolution was vetoed by the Russian Federation and China. ‘Security Council Fails to Adopt Draft Resolution on Syria That Would Have Threatened Sanctions, Due to Negative Votes of China, Russian Federation’ <https://www.un.org/press/en/2012/sc10714.doc.htm>; The General Assembly in its resolution that was adopted with an overwhelming majority condemned the Security Council’s failure to act on Syria. UNGA Res 66/253 B The situation in the Syrian Arab Republic (7 August 2012) UN Doc A/RES/66/253 B.

9 The European Union and the United States have been levying various types of unilateral economic sanctions in order to end violence and grave human rights violations, as well as to encourage the Syrian government to negotiate a peaceful political settlement. Other states, such as the United Kingdom, have also imposed unilateral economic sanctions on Syria.

10 President of the United States of America. Executive Order 13573 of May 18, 2011. Blocking Property of Senior Officials of the Government of Syria; President of the United States of America. Executive Order 13582 of August 17, 2011. Blocking Property of the Government of Syria and Prohibiting Certain Transactions with Respect to Syria; Council Regulation (EU) No 168/2012 of 27 February 2012 amending Regulation (EU) No 36/2012 concerning restrictive measures in view of the situation in Syria 2012 (OJ L).

11 Natalino Ronzitti, ‘Sanctions as Instruments of Coercive Diplomacy: An International Law Perspective’ in Natalino Ronzitti (ed), Coercive Diplomacy, Sanctions and International Law (Brill Nijhoff 2016); Tom Ruys, ‘Immunity, Inviolability and Countermeasures — A Closer Look at Non-UN Targeted Sanctions’ in Tom Ruys and Nicolas Angelet (eds.), The Cambridge Handbook of Immunities and International Law (Cambridge University Press 2019).

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access imposed by the United States with wro obligations.!2 The United States did not engage in consultations and contended that it was not obliged to do so, given that it did not recognise the legitimacy of the current Venezuelan government.!3 Under pressure from the other wto Members, Venezuela withdrew its request to establish a WTO panel to resolve the dispute.'* Yet, the matter did not rest there. In February 2020, the government of Venezuela filed a referral under Article 14 of the Rome Statute of the International Criminal Court regarding the situation in Venezuela. Venezuela argues that crimes against humanity are being committed “as a result of the application of unlawful coercive measures adopted unilaterally by the government of the United States of America against Venezuela, at least since the year 2014.”5 The prosecutor of the International Criminal Court was charged with taking a decision about this request.'© As of this writing, the investigation is still ongoing. However, legal scholars argue that “Venezuela’s expansive arguments do not find support in international law.”!”

The above-mentioned examples illustrate that states habitually rely upon unilateral economic sanctions in circumstances in which other means of recourse are either unfeasible or legally unavailable. This is the reality of state practice, which situates the debate about the legality of unilateral economic sanctions in a factual context. Furthermore, these examples demonstrate the diversity of the legal questions raised. What is noteworthy in this regard is that

12 WTO, ‘United States - Measures Relating to Trade in Goods and Services. Request for Consultations by Venezuela. Document wT/Ds574/1, G/L/1289, S/L/420, 8 January 2019.

13 Tom Miles, ‘U.S. Objection over Venezuela Threatens to Halt WTO Trade Disputes’ Reuters (26 March 2019) <https://www.reuters.com/article/us-usa-trade-venezuela-wto/u-s-venuez ela-spat-threatens-to-halt-wto-trade-disputes-idUSKCNiR71K]J >.

14 WTO, ‘United States — Measures Relating to Trade in Goods and Services. Request for the Establishment of a Panel by Venezuela. Document w1t/Ds574/2, 15 March 2019’; The issue was included in the agenda for the Dispute Settlement Body meeting, but the United States rejected the proposed agenda and, as a result, the meeting was postponed. Miles (n13).

15 Annex I to the Prosecution’s Provision of the Supporting Document of the Referral Submitted by the Government of Venezuela, 1cc Doc. 1cc-01/20-4-Anxl, 04 March 2020 (Situation in the Bolivarian Republic of Venezuela 11). https://www.icc-cpi.int/Pages/rec ord.aspx?docNo=ICC-o1/20-4-AnxI.

16 ‘Statement of the Prosecutor of the International Criminal Court, Mrs Fatou Bensouda, on the Referral by Venezuela Regarding the Situation in Its Own Territory’ <https://www .icc-cpi.int/Pages/item.aspx?name=200217-otp-statement-venezuela>.

17 Dapo Akande, Payam Akhavan, and Eirik Bjorge, ‘Economic Sanctions, International Law, and Crimes Against Humanity: Venezuela's ICC Referral’ (2021) 115(3) American Journal of International Law 493, doi:10.1017/ajil.2021.20.

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access the legality of unilateral economic sanctions per se remains contested, irrespective of the objective pursued.

The primary focus of this book is question of the legality of unilateral economic sanctions, with particular emphasis on economic sanctions imposed in order to redress severe human rights violations. Moreover, the potential contribution of the doctrine of Common Concern of Humankind to the enhancement of the international protection of human rights will also be presented. To this end, I analyse the existing state practice of applying unilateral economic sanctions against the background of diverse principles and norms of international law. The subsequent discussion of the legality of unilateral economic sanctions imposed to redress human rights violations is preceded by an analysis of the international enforcement of human rights. This analysis is intended to reveal the shortcomings of the current system of human rights enforcement. Another objective of this study is to consider the potential contribution of the doctrine of Common Concern of Humankind to strengthening the international protection of human rights. In order to do so, I rely upon a three-pronged framing of this doctrine suggested by Professor Thomas Cottier and others.!®

In this book, unilateral economic sanctions are defined as restrictive economic measures imposed by an individual state against another state and/ or its government officials and bodies, legal entities and foreign nationals, in pursuance of political objectives and without any prior authorisation from an international or regional organisation. In other words, such economic restrictions are enacted on the basis of the domestic laws and regulations of the state that imposes them.

It is crucial to define what types of restrictive economic measures are not covered in this study. First and foremost, there will be no analysis of economic restrictions imposed by the United Nations Security Council under Chapter vii of the UN Charter (collective economic sanctions) or of measures taken by individual states insofar as they are merely implementing the binding

18 Thomas Cottier, ‘The Principle of Common Concern of Humankind’ in Thomas Cottier and Zaker Ahmad (eds.), The Prospects of Common Concern of Humankind in International Law (Cambridge University Press 2021); Iryna Bogdanova, ‘Reshaping the Law of Economic Sanctions for Human Rights Enforcement: The Potential of Common Concern of Humankind’ in Thomas Cottier and Zaker Ahmad (eds.), The Prospects of Common Concern of Humankind in International Law (Cambridge University Press 2021) doi:10.1017/ 9781108878739.008; Thomas Cottier and others, ‘The Principle of Common Concern and Climate Change’ (2014) 52 Archiv des Volkerrechts 293; Thomas Cottier and Krista Nadakavukaren Schefer, ‘Responsibility to Protect (R2P) and the Emerging Principle of Common Concern’ (2012) NCCR Working Paper 2012/29.

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access decisions of the Security Council. Collective economic sanctions are discussed only in order to describe the historical evolution of coercive economic measures and the role of the Security Council in enforcing human rights. Second, non-forcible measures introduced by a regional or international organisation against its member states in accordance with the provisions of their constituent documents fall outside the scope of this research project. Third, trade restrictions introduced to implement the suspension of concessions allowed in some instances under wTO law are excluded. Finally, there is no discussion of positive sanctions! or restrictions on the trade in arms.

The legality of unilateral economic sanctions is not well settled in international law. Paradoxically, although states habitually rely upon unilateral economic measures, this abundance of state practice has not resulted in legal certainty regarding their status. Even the use of the term “sanction” is not subject to agreement.?°

Given the backlash against globalisation and international trade, as well as the fact that some scholars even argue that the international economic order is in the process of transition to a new geo-economic order”! we may witness increasing recourse to unilateral economic sanctions as instruments of unfolding geopolitical tensions. Hence, the discussion of the legality of unilateral economic sanctions, as well as the circumstances in which they can be legally employed, is a timely undertaking.

Alongside these recent developments, the perennial political rifts between developed and developing countries continue to haunt the debate on the legality of unilateral economic sanctions.” In parallel to the attempts on the part of developing countries to denounce the use of unilateral economic sanctions, attempts which are explicitly reflected in numerous documents adopted under the auspices of the United Nations,?° individual states have moved

19 “Positive sanctions can involve a state promising to grant enhanced access to its markets or to increase its foreign aid to another country in return for it making specific policy changes or continuing to follow an existing policy.’ Kern Alexander, Economic Sanctions: Law and Public Policy (Palgrave Macmillan 2009) 10.

20 Fora similar view, see Ruys (n 4).

21 Anthea Roberts, Henrique Choer Moraes and Victor Ferguson, ‘Toward a Geoeconomic Order in International Trade and Investment’ (2019) 22 Journal of International Economic Law 655.

22 Alexandra Hofer, ‘The Developed/Developing Divide on Unilateral Coercive Measures: Legitimate Enforcement or Illegitimate Intervention?’ (2017) 16 Chinese Journal of International Law 175.

23 ibid.

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access forward with enacting domestic laws authorising them to sanction not only other states, but also high-ranking government officials of the other states.?+ The recent trend towards imposing unilateral human rights sanctions also warrants further discussion. The practice of justifying economic restrictions on the grounds of human rights violations dates back to the protection of religious minorities in medieval times. Indeed, Kern Alexander provides an example of trade restrictions imposed by Protestant Swiss cantons, led by Zurich, on Catholic cantons for violating their treaty obligation to tolerate their Protestant minorities.25 Discussing the growing role of unilateral economic sanctions imposed on human rights grounds, the distinguished international lawyer Alain Pellet has accurately pointed out one of the reasons behind it: “the institutionalized sanctions machinery is all too often paralyzed not only by the veto, but also by the inexistence of a ‘caring majority’ — who really cares about the fate of the Moslem minority in Myanmar, or endemic slavery in many countries, or gross human rights violations in Saudi Arabia.”6 Notwithstanding their increased use, the legality of imposing unilateral economic sanctions in order to redress grave human rights violations remains unclear. This uncertainty has inspired debates about the legality of such measures as third-party countermeasures, that is, countermeasures imposed by non-injured states. The recent trend towards sanctioning heads of states and other high-ranking government officials for gross human rights violations has provoked a debate about the consistency of such actions with the immunities granted under international law to states, heads of states and other senior government officials. With respect to wTO law, the debate concerning the relationship between trade restrictions justified on human rights grounds and the commitments undertaken by wro Members is multifaceted. In particular, trade restrictions may be invoked as a protection against unfair trade practices. A frequently reported example of such measures are the trade restrictions imposed on products produced by forced labour. Pointing to such trade restrictions, Sarah Cleveland has noted: “The United States has restricted imports made with convict labor since 1890, and began barring imports made

24 Nienke van der Have, ‘The Proposed EU Human Rights Sanctions Regime: A First Appreciation’ (2020) 1 Security and Human Rights 1; Clara Portela, ‘Targeted sanctions against individuals on grounds of grave human rights violations — impact, trends and prospects at EU level’ (2018) Study commissioned by the European Parliament's Subcommittee of Human Rights 1.

25 Alexander (n 19) footnote 4, 8-9.

26 Alain Pellet, ‘Unilateral Sanctions and International Law. A Proposal for a New Commission on Unilateral Sanctions and International Law. (2015) 76 Yearbook of Institute of International Law 730.

Iryna Bogdanova - 978-90-04-50789-0 Downloaded from Brill.com@2/02/2023 12:45:23PM via free access with other forms of forced labor in 1930.2” These trade restrictions prompted a vigorous dispute about whether the distinction between the two kinds of products, which is rooted in different production and processing methods, is permitted under wTo law. Thus far, wTo adjudicators have eschewed any direct pronouncements on the matter. Another group of trade restrictions can be characterised as general human rights sanctions. General human rights sanctions are a conventional foreign policy instrument which is channelled through trade prohibitions. Put differently, such trade prohibitions are levied in order to express dissatisfaction with the human rights policies of a given state, and they are not related to any particular product or production method. In this study, the wTO consistency of general human rights sanctions is analysed.