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Economic sanctions: legal and policy constraints

Published online by Cambridge University Press:  19 April 2010

Anna Segall
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International Review of the Red Cross , Volume 81 , Issue 836: XXVIIe Conférence Internationale de la Croix-Rouge et du Croissant-Rouge/27th International Conference of the Red Cross and Red Crescent , December 1999 , pp. 763 - 784
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Copyright © International Committee of the Red Cross 1999

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References

1 Charter of the United Nations, Article 39.

2 Article 41 of the UN Charter reads as follows: “The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.

3 Article 1.1 of the Charter provides that the purposes of the United Nations are inter alia to maintain international peace and security through the use of collective security measures and the promotion of the peaceful settlement of disputes. Article 25 states that “Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”. Article 103 provides that the obligations of Members of the United Nations under the Charter prevail over conflicting obligations under any other international agreement.

4 There are difficulties with the argument based on the unfettered nature of the power in Article 41 and the language of Articles 103, 25 and 1.1. In relation to Article 103, it is important to note that it applies only to conflicting obligations under any other international agreement. This language does not extend to obligations under customary international law. Many of the obligations under the major human rights and international humanitarian law treaties should now be regarded as forming part of customary international law.

5 The preamble to the Charter reaffirms faith in fundamental human rights and in the dignity and worth of the human person. Article 1.3 states one of the purposes of the UN to be to achieve international cooperation in promoting and encouraging respect for human rights and for fundamental freedoms for all. Article 55 provides that the UN shall promote universal respect for, and observance of, human rights and fundamental freedoms for all.

6 The notion that the Security Council should comply with human rights law and international humanitarian law when imposing economic sanctions is confirmed by Article 24 of the Charter, which gives the Security Council primary responsibility for the maintenance of international peace and security (Article 24.1) but requires it to exercise its powers for the maintenance of international peace and security in accordance with the purposes and principles of the UN (Article 24.2).

7 See Damrosch, L.F., “The civilian impact of economic sanctions”, Enforcing Restraint: Collective Intervention in Internal Conflicts, Council on Foreign Relations Press, New York, 1993Google Scholar; and Kulissa, M., “Von Märchen und Mechanismen: Gefahren und Chancen der Sanktionen des Sicherheitsrats”, Vereinte Nationen, Vol. 3, 1996, pp. 89–96.Google Scholar

8 Lopez, G.A. and Cortright, D., “Economic sanctions and human rights: Part of the problem or part of the solution?”, International Journal of Human Rights, Vol. 1, No. 2, 1997, p. 8.CrossRefGoogle Scholar

9 See Gasser, H.-P., “Collective economic sanctions and international humanitarian law — An enforcement measure under the United Nations Charter and the right of civilians to immunity: An unavoidable clash of policy goals?”, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht, Vol. 56, 1996, pp. 871–904.Google Scholar

10 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 june 1977, Articles 54, 69 and 70; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977, Article 14.

11 The applicability to naval blockades of the prohibition on starvation is affirmed by the 1994 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (San Remo Manual), which, although not legally binding, represents a modern restatement of the laws applicable to naval warfare: “102. The declaration or establishment of a blockade is prohibited if:

(a) it has the sole purpose of starving the civilian population or denying it other objects essential for its survival; or

(b) the damage to the civilian population is, or may be expected to be, excessive in relation to the concrete and direct military advantage anticipated from the blockade”.

Published in IRRC, No. 309, November-December 1995, pp. 595–637.

12 Amongst these conditions, the State allowing passage must be satisfied that there are no serious reasons for fearing that consignments may be diverted from their destination, that there is effective control over the operation, that no definite advantage may accrue to the military efforts or economy of the enemy and that distribution will be carried out under the supervision of the Protecting Power or the ICRC. See Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 (Fourth Convention), Article 23, and Protocol I, Article 70.

13 Fourth Convention, Article 23.

14 Protocol I, Article 70.1. Protocol I has not been ratified by two major Security Council powers: the US and France. The French government, however, has announced its intention to ratify, and the US Annotated Supplement to the Commander's Handbook on the Law of Naval Operations (NW9A) states that the prohibition of starvation as a means of warfare “should be observed and, in due course, recognized as customary law”.

15 Protocol I, Article 70.2

16 Protocol I, Article 70.4

17 Articles 9/9/9/10 common to the 1949 Geneva Conventions.

18 Protocol II, Article 18.2.

19 Article 3 common to the 1949 Geneva Conventions.

20 Fourth Convention, Article 23.

21 Protocol I, Article 70. It should be noted that the expression “subject to the agreement of the parties” does not give the parties absolute freedom to refuse their agreement to relief action. This was made clear at the 1974–1977 Diplomatic Conference, where it was stated that “a Party refusing its agreement must do so for valid reasons”. See commentary on Article 70, Protocol I, in Sandoz, Y./Swinarski, C./Zimmermann, B. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/Martinus Nijhoff, Geneva, 1987, para. 2805.Google Scholar

22 The relevant provisions of the San Remo Manual are as follows:

“103. If the civilian population of the blockaded territory is inadequately provided with food and other objects essential for its survival, the blockading party must provide for free passage of such foodstuffs and other essential supplies, subject to:

(a) the right to prescribe the technical arrangements, including search, under which such passage is permitted; and

(b) the condition that the distribution of such supplies shall be made under the local supervision of a Protecting Power or a humanitarian organization which offers guarantees of impar tiality, such as the International Committee of the Red Cross.

104. The blockading belligerent shall allow the passage of medical supplies for the civilian population or for the wounded and sick members of armed forces, subject to the right to prescribe technical arrangements, including search, under which such passage is permitted”.

23 Para. 103.2 of the “Explanations”. See Doswald-Beck, L. (ed.), San Remo Manual on International Law Applicable to Armed Conflicts at Sea, International Institute of Humanitarian Law, Grotius Publication, Cambridge University Press, Cambridge, 1995.CrossRefGoogle Scholar

24 Fourth Convention, Article 55. Protocol I, Article 69.1: “In addition to the duties specified in Article 55 of the Fourth Convention concerning food and medical supplies, the Occupying Power shall, to the fullest extent of the means available to it and without any adverse distinction, also ensure the provision of clothing, bedding, means of shelter, other supplies essential to the survival of the civilian population of the occupied territory and objects necessary for religious worship”.

25 Fourth Convention, Article 59. The equivalent protection for relief actions conducted to occupied territories for the additional goods specified in Article 69.1 of Protocol I appears in Article 70.2, which provides that the parties to the conflict and each State party to Protocol I “shall allow and facilitate rapid and unimpeded passage of all relief consignments, equipment and personnel”.

26 Fourth Convention, Article 59.3.

27 See the commentary on Article 59 in Pictet, Jean (ed.), Commentary on the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949, ICRC, Geneva, 1958, p. 322.Google Scholar

28 The fact that consent is required does not mean that the decision is left entirely to the discretion of the parties. A party cannot refuse such relief without good grounds. See commentary on Article 70 of Protocol I and Article 18.2 of Protocol II, op. cit. (note 21), paras 2805 and 4885 respectively.

29 Universal Declaration of Human Rights (UDHR), 10 December 1948, Article 25; International Covenant on Civil and Political Rights (ICCPR), 16 December 1966, Article 6.1; Convention on the Rights of the Child, 20 November 1989, Article 6.1.

30 International Covenant on Economic, Social and Cultural Rights (ICESCR), 16 December 1966, Article 12.

31 UDHR; Article 3; ICESCR, Article 11.1; Convention on the Rights of the Child, Article 27.1.

32 ICESCR, Article 11.2.

33 See Dinstein, Y., “The right to life, physical integrity and liberty”, Henkin, L. (ed.), The International Bill of Rights, Columbia University Press, New York, 1981, p. 115.Google Scholar

34 In 1985 the Human Rights Committee issued a second general comment on the right to life, pointing out that it is a right from which no derogation is permitted even in time of public emergency, describing it as “basic to all human rights”. See B.G. Ramcharan, “The concept and dimensions of the right to life”, F. Menghistu, “The satisfaction of survival requirements”, and Redelbach, A., “Protection of the right to life by law and by other means”, in Ramcharan, B.G. (ed.), The Right to Life in International Law, Martinus Nijhoff, Dordrecht, 1985Google Scholar; United Nations, Right to Adequate Food as a Human Right, UN, New York, 1989.Google Scholar

35 Following the reasoning used in the Corfu Channel Case (I.C.J. Reports 1949, pp. 22–23) and the Case of Nicaragua v. United States (I.C.J. Reports 1986, p. 114), it can be argued that the obligation to provide essential goods and foodstuffs contained in the Geneva Conventions and Additional Protocols and applicable in time of war applies also in peacetime, since the obligations do not derive only from the Conventions themselves but from the general principles of humanitarian law to which the Conventions merely give specific expression.

36 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948 (Genocide Convention).

37 Genocide Convention, Article 3(c). See Breining-Kaufmann, C., Hunger als Rechtsproblem: Völkerrechtliche Aspekte eines Rechts auf Nahrung, Schulthess Polygraphischer Verlag, Zürich, 1991, p. 95.Google Scholar

38 Genocide Convention, Article I.

39 It is notions such as these which have led organizations such as the UN Office for the Coordination of Humanitarian Affairs and the Inter-Agency Standing Committee to develop tools for assessing the humanitarian impact of sanctions. See in particular the study by Minnear, L., Cortwright, D., Wagler, J., Lopez, G.A. and Weiss, T.G., Towards More Humane and Effective Sanctions Management: Enhancing the Capacity of the United Nations System, Thomas J. Watson Institute for International Studies, Brown University, Providence (Rl), 1998.Google Scholar

40 The fundamental principles governing the ICRC, the National Red Cross and Red Crescent Societies and the International Federation of Red Cross and Red Crescent Societies are: humanity, impartiality, neutrality, independence, voluntary service, unity and universality. Many humanitarian organizations are bound by similar principles, as can be seen by the number of organizations (over 150) which have subscribed to the Code of Conduct for the International Red Cross and Red Crescent Movement and Non-Governmental Organizations in Disaster Relief, adopted at the 26th International Conference of the Red Cross and Red Crescent (Geneva, 1995) and published in IRRC, No. 310, January-February 1996, pp. 119–128.

41 26th International Conference of the Red Cross and Red Crescent, Resolution 4: Principles and action in international humanitarian assistance and protection.

“F. With regard to the humanitarian consequences of economic sanctions [the 26th Conference of the Red Cross and Red Crescent];

1. encourages States to consider:

(a) when designing, imposing and reviewing economic sanctions, the possible negative impact of such sanctions on the humanitarian situation of the civilian population of a targeted State and also of third States which may be adversely affected by such measures,

(b) assessing the short-and long-term consequences of United Nations-approved economic sanctions on the most vulnerable, and monitoring these consequences when sanctions have been applied,

(c) providing, including when subject to economic sanctions, and to the extent of their available resources, relief for the most vulnerable groups and the victims of humanitarian emergencies in their territories;

2. calls upon States to permit relief operations of a strictly humanitarian character for the bene fit of the most vulnerable groups within the civil ian population, when required by international humanitarian law;

3. calls upon the ICRC, the International Federation and National Societies to contribute to the reduction of the undesirable side-effects of sanctions on the humanitarian situation of civilian populations, through assessing the impact thereof and providing relief to the most vulnerable persons, in accordance with their respective mandate. “See IRRC, No 310, lanuary-February 1996, pp. 73–74.

42 UN Committee on Economic, Social and Cultural Rights, General Comment No. 8: The relationship between economic sanctions and respect for economic, social and cultural rights, E/C. 12/1997/8, 4 December 1997.

43 UN Committee on Economic, Social and Cultural Rights, General Comment No. 12: The right to adequate food, E/C. 12/1999/5, 5 May 1999, para. 37.

44 S/1999/92 of 29 January 1999.