CRITIQUE OF UNITED NATIONS SANCTIONS AS AN EFFECTIVE MEANS OF ENSURING INTERNATIONAL PEACE AND SECURITY

ABSTRACT

The quest for an international body authorised to regulate the conduct of states in international law and  prevent  war  and  aggression was  long  and  arduous; and  was seemingly achieved with the establishment of the League of Nations in 1919. International euphoria was short-lived however, as the League’s existence was truncated by World War 2 following which the United Nations (UN) was created in 1945 to maintain international peace and security. The UN via its mandate is empowered to take effective collective measures – including the imposition of sanctions, to prevent and remove threats to and breaches of world peace, and to suppress acts of aggression. Sanction measures include the complete or partial interruption of economic relations, the various means of communication and the severance of diplomatic relations between the target state and UN member states. Sanctions became prominent after the demise of the Cold War and have been increasingly employed by the UN in executing its global mission. UN sanctions are aimed at altering the objectionable policies of the target state or entity in conformity with international law. This research investigates the effectiveness of UN sanctions in eradicating threats to world peace by appraising its sanctions regimes imposed from 1945 to 2014. The inquiry is inspired by the unrelenting proliferation of international crises and the current precarious state of global peace and security, in spite of the UN’s prominent use of sanctions. The review adopts both doctrinal and empirical approaches and exhausts the expository and analytical methods in achieving its objectives. The findings establish first, that UN sanctions have limited effectiveness in addressing threats to international peace and security; and second, that the impediments to UN sanctions effectiveness are not intrinsic to or inherent in sanctions, but reside in current UN practices concerning their formation and deployment. The study then identifies and scrutinizes the factors responsible for the poor record of UN sanctions, and concludes by proposing a comprehensive blueprint for their effective imposition in international law enforcement.

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CHAPTER ONE GENERAL INTRODUCTION

1.1      Background of the Study

The history of international law is a chronicle of attempts by members of the international community to establish a framework that would prevent the scourge of war, effectively resolve international disputes and promote mutual respect for the integrity of states. With the failure of the League of Nations to prevent World War 2, the United Nations (UN) was created in 1945 and the Security Council (SC); its primary organ was charged with maintaining international peace and security. The SC’s first task in this regard is to determine the existence of any threat to, or breach of the peace or act of aggression under Article 39 of the UN Charter. Following such determination; the SC may decide what measures short of armed force are to be employed to give effect to its decisions, or it

may authorize military action.1 The measures short of armed force – otherwise termed “sanctions” are

the focus of this research. It must be quickly pointed out that every enforcement measure authorised by the SC under Chapter VII of the UN Charter constitutes a sanction. Enforcement measures may be broadly categorised into “military sanctions”, i.e. those involving the use of armed force and “non- military sanctions”, or those excluding the use of armed force. This study is concerned with the latter category, and uses the term ‘sanctions’ in that sense.

During the Cold War, veto power politics and the ideological tension between the United States (US) and Soviet Union caused a stalemate in the SC which hindered the use of sanctions in the UN’s collective security system. The demise of the Soviet Union however roused the SC from its sanctions lethargy, and a revived SC imposed sanctions on a dozen states during the 1990s; as a result

of which the 1990s were christened “the sanctions decade.”2 This enthusiasm has to date motivated

the UN to impose sanctions to protect human rights, prevent and curtail armed conflict, counter illegal invasion or annexation of territory, negotiate peace agreements, combat terrorism and encourage nuclear disarmament. Their increased use stems largely from the perception of sanctions as a middle ground between the extremes of diplomacy and military intervention,3 and the decreasing

1 Charter of the United Nations 1945 (hereafter UN Charter), Arts. 41 and 42.

2 D. Cortright and G. A. Lopez, The Sanctions Decade: Assessing UN Strategies in the 1990s, (Boulder: Lynne Rienner

Publishers, 2000), pp. 1-2.

3 J. K. Fausey, “Does the United Nations Use of Collective Sanctions to Protect Human Rights Violate its own Human

Rights Standards?”, Connecticut Journal of International Law, 10 (1994), pp. 193-218 at p. 193.

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legitimacy of the use of force. Sanctions have become widely viewed as a veritable tool by which the

UN can compel states in violation of international law to modify their objectionable policies.

However, the threats to world peace have geometrically increased in the last few decades in spite of the current appeal of sanctions. This study therefore assesses the effectiveness of UN sanctions imposed from 1945 to 2014 in eradicating threats to and breaches of international peace and security. The study establishes first that UN sanctions have limited effectiveness in addressing threats to world peace; and second, that this limited effectiveness is as a result of flawed UN practices concerning their  formation and  deployment. The work concludes that  UN  sanctions  hold great promise as an effective alternative to the use of force in eliminating threats to world peace if properly devised and applied.

1.2      Statement of the Problem

The reasons for which the UN imposes sanctions have multiplied, and the targets have metamorphosed. The current prominence of sanctions notwithstanding, global peace and security are more threatened today than prior to the UN’s formation – the upheavals and deplorable human rights conditions in Syria, Guinea Bissau, Central African Republic and Yemen; the violent clashes in Eritrea, Somalia and Sudan; the menace posed by transnational terrorist groups such as Al Qaida; and nuclear  pursuits  of North  Korea  and  Iran,  all  give  the  world  grave  cause  for  concern.  These seemingly intractable challenges have raised doubts about the effectiveness of sanctions. The central question is “Are sanctions effective in achieving target compliance with the stated objectives?” The literature is contentious and inconclusive. Conventional wisdom holds that sanctions are ineffective. Sanctions advocates contend however that they have been fairly effective and are more useful than critics acknowledge. This academic confusion compels our inquiry into the UN sanctions universe, to ascertain their effectiveness in addressing threats to and breaches of world peace.

Again, although there is an abundance of previous scholarship on UN sanctions, inadequate attention is paid to their effectiveness. Most of the works on the effectiveness of UN sanctions tackle just a few celebrated cases, which are too narrow to build a firm conclusion upon. In contrast, major studies have profusely addressed the effectiveness of unilateral sanctions imposed by states outside the ambit of the UN. This lacuna provides further motivation for our research.

1.3      Research Questions

This study addresses the following questions:

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1.  What is the legal basis for the UN’s imposition of sanctions, and what is the UN’s sanctions policy and procedure?

2.  Has the  imposition of sanctions by the UN  been effective  in eradicating threats to  and breaches of international peace and security?

3.  If the answer to question 2 above is in the negative, what factors are responsible; and what can and should be done to improve UN sanctions effectiveness?

1.4      Objectives of the Study

Without question, attaining global peace and security is a desirable end whose importance cannot be overemphasized. This research probes the UN sanctions arena to determine whether its sanctions regimes have been effective in addressing threats to and breaches of world peace; and if not, how their effectiveness can be significantly improved.

1.5      Significance of the Study

The findings and recommendations of this research are a useful springboard for future sanctions management by the UN, and other regional sanctioning bodies such as the African Union (AU) and European Union (EU); because they afford a substantial improvement on the sanctions status quo. Given the current spate of global conflict, this study’s unique endeavour is to show that sanctions can be a veritable and effective instrument and a suitable substitute for force in eradicating threats to and breaches of international peace and security if properly designed and implemented. The work further contributes to  the  sanctions  literature  by  initiating  a  comprehensive case  study  model  for  the assessment of the effectiveness of UN sanctions.

1.6      Research Methodology

This study adopted both doctrinal and empirical approaches. The analytical method is employed to examine the sanctions debate and the expository method discloses details of the UN sanctions practice. The UN imposes sanctions via SC resolutions, and this research relied on them for the facts and figures of UN sanctions regimes. The effectiveness of UN sanctions in causing a change in target behaviour is empirically determined using the following criteria, all of which must coexist before a sanctions regime is deemed successful: the sanctions must be threatened or applied before the change in target behaviour; the change in target behaviour must be a product of sanctions, and the sanctions must have ceased. Recourse was made to primary sources such as statutes, international treaties and conventions; and secondary sources including case law, textbooks, journal articles, law reviews, theses and dissertations, reports, conference and seminar papers, newspaper articles and the internet.

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1.7      Scope of the Study

The UN is the focal point for sanctions in international law; as such this work explores and is limited to the UN sanctions practice from 1945 to 2014. This study does not address the effectiveness of trade sanctions imposed by states solely for economic purposes; or unilateral sanctions imposed by states outside the ambit of the UN to achieve non-economic goals; or sanctions imposed by regional bodies such as the AU and EU. It does not also deal with UN sanctions as a prelude or complement to the use of force. It concentrates on establishing the effectiveness of UN sanctions as a stand-alone enforcement strategy in achieving target compliance with UN objectives.

1.8      Literature Review

In a comprehensive empirical review of 174 sanctions cases (from 1914 – 2007) in their book Economic Sanctions Reconsidered,4  Gary Hufbauer et  al counter the conventional wisdom that sanctions never work. From their study, the authors found that sanctions succeeded in achieving their goals in about a third or 34% of the cases. Theirs is arguably the most cited work in the sanctions literature, having considerably influenced subsequent research with renewed optimism in the effectiveness of sanctions. However, the main focus of their study is on the unilateral sanctions

practice with only scant attention paid to UN sanctions in Chapter Five; and the cases studied include only two UN sanctions regimes – Southern Rhodesia and South Africa. Secondly, their data set is arranged in tabular form without a case-by-case analysis of the efficacy of each sanctions regime. This is perhaps due first to the volume of cases reviewed, and second, to the economic perspective of their work, which is devoid of legal content that our research aims to provide.

Alexander  Kern’s Economic Sanctions: Law and  Public  Policy5  also  explores the  legal

dimensions of state practice of sanctions and how they can be applied more effectively against corporations and  third  parties to  achieve public  policy objectives.  In doing  so,  it  analyses the sanctions regimes of the US, the United Kingdom (UK) and Japan. Except for his detailed treatment of the challenges of the Iraq sanctions regime and the UN sanctions effort against international terrorism in Chapter 11; his work is bereft of UN sanctions material. In fact, his work suggests a shift

of  the  responsibility  for  implementing  and  administering  sanctions  from  the  UN  sanctions

4 G. C. Hufbauer, J. J. Schott, K. A. Elliot and B. Oegg, Economic Sanctions Reconsidered, (3rd edn., Washington DC: Peterson Institute for International Economics, 2007).

5 A. Kern, Economic Sanctions Law and Public Policy, (London: Palgrave Macmillan, 2009).

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committees to other international economic organizations such as the World Bank,6 which is diametrically opposed to the core of this study.

In The Sanctions Decade: Assessing UN Strategies in the 1990s,7 David Cortright and George

Lopez take advantage of the proliferation of sanctions after the demise of the Cold War to assess the impact and effectiveness of UN sanctions imposed during the 1990s. The book concludes that UN sanctions were reasonably successful, more than is generally acknowledged by critics. This study endorses their support for positive incentives; but their case studies are limited to the sanctions regimes of the 1990s, and the present research contemplates a broader review.

Robert  Pape’s works,  “Why Economic Sanctions  Do  Not  Work”8  and  “Why Economic

Sanctions Still Do Not Work,”9  are dedicated to challenging the emerging optimism on sanctions effectiveness.  He  radically  differs  with  Hufbauer  et  al  on  the  definition  of  success  and  the constituents of a sanctions episode; and disputes their 34% sanctions success rate (i.e. 40 out of 115 cases in their second edition) as too optimistic and meticulously reviews same, concluding that this number is about 5 out of 115. He argues that “failure to consider alternative explanations, especially force,  is the  most  serious problem in their empirical work.”10  This study aligns itself with his methodical analysis of their case studies and the criteria adopted for his review, but because his critique is founded on the Hufbauer data set, it also lacks UN sanctions material save the sanctions

against Southern Rhodesia.

David  Baldwin’s  Economic  Statecraft11   is  distinguished  by  his  definition  of  economic statecraft  to  encompass economic  sanctions  (or  negative  sanctions),  and  economic  rewards  (or positive sanctions), contrary to the impression that economic statecraft meant economic sanctions simpliciter; and his insistence that sanctions have multiple goals which should be considered in judging their utility. He de-emphasizes effectiveness and stresses the utility of sanctions as measures for demonstrating international resolve; and argues that any judgment of the utility of sanctions should not be made in isolation but compared to what could have been expected from using other policy measures. While his arguments are relevant to the sanctions debate, his work is still inadequate

for our research because it addresses unilateral sanctions, and contains no reference to UN sanctions.

6 Ibid., p. 7.

7 See note 2 above.

8 R. A. Pape, “Why Economic Sanctions Do Not Work”, International Security, Vol. 22, No. 2 (1997), pp. 90-136.

9 R. A. Pape, “Why Economic Sanctions Still Do Not Work”, International Security, Vol. 23, No. 1 (1998), pp. 66-77.

10 Pape, loc. cit., above note 8, p. 98.

11 D. A. Baldwin, Economic Statecraft, (New Jersey: Princeton University Press, 1985).

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Johan Galtung  in  his  study “On the  Effects of International Economic Sanctions:  With Examples from the Case of Rhodesia”,12  was the first to criticize the key argument by sanctions advocates that  the  higher the  cost  to the  target, the  greater the  probability of compliance. He disapprovingly called this the ‘naïve theory’ of sanctions. Experience has so  far confirmed his position, and the cliché developed that economic pain inflicted on the target does not translate into political gain for the sender. His work though relevant to this inquiry, examines only a single case study which is a far cry from our research objectives.

Paul Szasz’s scholarly effort, “The Law of Economic Sanctions”13 concentrates on some of

the legal problems that often accompany the imposition of sanctions by the UN – including decision- making in the SC, enforcement, impact on targets and third states. However, he only summarily considers the question of effectiveness, concluding that the effectiveness rate for sanctions has been mixed. He concedes that sanctions imposed by the SC under Chapter VII of the Charter are solidly founded in international law, but laments that they are employed without proper guidance or control, with their impact disproportionate to the benefit sought.

In “The Applicability of International Law Standards to United Nations Economic Sanctions Programmes”14  Michael Reisman and Douglas Stevick identify sanctions as a coercive instrument and assess the applicability of the traditional humanitarian criteria of necessity, proportionality and discrimination to UN sanctions. They conclude that the SC has given inadequate consideration to international law standards in implementing sanctions, but only briefly survey the issue of effectiveness. They propose five legal principles to guide the UN: that highly coercive sanctions follow prescribed contingencies; that they be necessary and proportionate; that the UN reasonably maximizes discrimination between the target regime and the citizens; that sanctions regimes be periodically assessed, and that relief be provided to injured third parties.

Chantal de Jonge Oudraat also reviews the mechanics of UN sanctions in his work “Economic

Sanctions and International Peace and Security.”15  He investigates UN sanctions regimes of the

1990s, focusing on Iraq, the Federal Republic of Yugoslavia (FRY), Haiti, Libya, Sudan and Al

12  J. Galtung, “On the Effects of International Economic Sanctions: With Examples from the Case of Rhodesia”, World

Politics, Vol. 19, No. 3 (1967), pp. 378-416.

13 P. Szasz, “The Law of Economic Sanctions,” International Law Studies, Vol. 71, (1998), pp. 455-481.

14  W. M. Reisman and D. L. Stevick, “The Applicability of International Law Standards to United Nations Economic

Sanction Programmes”, European Journal of International Law, 9 (1998), pp. 86-141.

15  C. de Jonge Oudraat, “Economic Sanctions and International Peace and Security” in C. A. Crocker, F. O. Hampson  and  P.  Aall  (eds.),  Leashing  the  Dogs  of  War:  Conflict  Management  in  a  Divided  World,

(Washington DC: United States Institute for Peace, 2007), pp. 739-755.

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Qaida. However, he does not determine the independent effectiveness of the above regimes; but treats the issue of sanctions’ effectiveness under the following subheads which he defines as the parameters of a successful sanctions strategy: assessment of the target’s strengths and weaknesses, definition of an objective, determination of tactics, evaluation and implementation, and periodic review.

From  a  human  rights  perspective,  Eugenia  Lopez-Jacoiste  tackles  the  legal  debate  on sanctions  in  her  article  titled  “The  UN  Collective  Security  System  and  its  Relationship  with Economic Sanctions and Human Rights.”16 She also exhausts the new approaches to sanctions by the UN, notably the merits of its targeted sanctions practice and its impact on the rights to property, movement, fair trial and an effective remedy. She canvasses that the implementation of targeted sanctions demands in all cases – the fullest respect for human rights; and urges the UN to strike a balance between the use of sanctions to maintain international peace and security, on the one hand,

and the rule of law and human rights on the other. Owing to her emphasis on human rights, the effectiveness question receives only peripheral mention.

Jeremy Farrall’s seminal book, United Nations Sanctions and the Rule of Law,17 examines the

UN situation in great detail. It traces the evolution of sanctions, captures the sanctions debate, and contains the summaries of sanctions regimes imposed by the UN from inception to 2007, his time of writing. Remarkable as it is however, the work does not frontally resonate the thrust of this research – which is UN sanctions effectiveness. Instead, it underscores the need for the UN to consider rule of law principles such as transparency, consistency, equality, due process and proportionality in the imposition of sanctions. Farall contends that “sanctions have been applied in such a way that they have undermined the rule of law, thus weakening the authority and credibility of the SC and its

sanctions tool.”18  Due principally to his focus on the rule of law, the theme of effectiveness is

inferred from but not directly addressed in the entire work. It comes as no surprise therefore that his case summaries are more akin to documentaries than a review of UN sanctions effectiveness.

All the above works are inadequate, not in themselves, but for the purpose of this study which endeavours to address these lacunae in the literature, and advance a robust plan for the effective imposition of UN sanctions to ensure international peace and security.

1.9      Organisation of the Study

16 E. Lopez-Jacoiste, “The UN Security Council and its Relationship with Economic Sanctions and Human Rights”, Max

Planck UNYB, 14 (2010), pp. 273-335.

17 J. M. Farrall, United Nations Sanctions and the Rule of Law, (Cambridge: Cambridge University Press, 2007).

18 Ibid., p. 10.

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The research is structured into six chapters, with Chapter One as the general introduction. Chapter Two is dedicated to the conceptual discourse of central terms such as sanctions, effectiveness and international peace and security. Chapter Three traces the history and evolution of sanctions, presents and discusses the schools of thought in the sanctions debate, and carries out a broad survey of the UN’s modus operandi as regards sanctions. Chapter Four meticulously evaluates the effectiveness of UN  sanctions  regimes  imposed  from 1945  to  2014.  Chapter  Five  identifies  and  examines  the challenges impeding the effectiveness of UN  sanctions; while  Chapter Six sets out the work’s findings and recommendations for improving effectiveness and concludes the study.

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