Sanctions, International
Sanctions, International
The term “sanction,” in its widest sense, means “any measure taken in support of a social order regulating human behavior” (Kelsen 1957, p. 101). The purpose of a sanction is to bring about a behavior considered to be in conformity with the goals and standards of a society and to prevent that behavior which is inconsistent with these goals and standards. Consequently, in its widest sense, a sanction can have the objective of suppressing and terminating a particular form of undesirable behavior and the objective of deterring or discouraging such behavior in the future. The word “sanction” originated in Roman law, where it meant a penalty imposed upon a person who violates the law. The word continues to be used in this narrow sense, particularly in municipal law. In international relations, the term is customarily used in the wider sense.
It is sometimes asserted, particularly with reference to Austin’s definition of law, that international law is not law because it lacks the sanctions of municipal law. That there is a difference of degree is no doubt true, but what is often not recognized is that municipal law, like international law, is basically dependent upon custom and consent, while international law has sanctions comparable with those of municipal law, though admittedly weaker. The organization of sanctions in support of an international order faces a special difficulty not encountered within the state to anything like the same degree. This is the difficulty of enforcing standards against organized groups which, as states, make exclusive claims on governmental authority and on the loyalty and support of their citizens. Even within the state, constituted authorities experience difficulties in enforcing their decisions against organized groups such as trade unions and component political units, as witness the difficulties experienced by the organs of the federal government of the United States in enforcing their decisions against the states.
Experience
Customary international law has in the past admitted the right of states to take certain measures of self-help in support of their legal claims if it was not possible to achieve satisfaction by negotiation or third-party settlement. These measures included withdrawal of diplomatic representatives, acts of reprisal such as embargo and pacific blockade, display of force, landing of armed forces for purposes of protection of persons and property, and resort to war. Under agreements concluded to meet particular situations, special guarantees were accorded and the right of intervention admitted, as, for example, in the collective guarantee of Belgian neutrality (1839) and the United States guarantee of Cuban independence (1901).
Under the Covenant of the League of Nations, the concept that peace should be maintained by the combined forces of peace-loving states was substituted for the principles of balance of power and self-help. “Resort to war” under defined conditions was prohibited. Provision was made under article 10 for joint guarantee of member states against external aggression and in article 16 for sweeping economic and financial sanctions to be applied “immediately” by every member against any state resorting to war in violation of its obligations under the Covenant. The Covenant provisions were seriously weakened by resolutions adopted by the Assembly in 1921 that were intended to take account of the failure of the League to achieve universality. Military sanctions under the Covenant were optional on recommendation of the Council.
No serious consideration was given to the application of the sanctions of article 16 until the mid-1930s. The Japanese invasion of Manchuria in 1931 was not treated as a resort to war under the Covenant. The Assembly did, however, recommend to members that they withhold recognition of the fruits of Japan’s military action, in line with the announced policy of the United States. This constituted a mild form of sanction, which had, however, no observable practical effect. In 1935, however, Italy’s military invasion of Ethiopia was recognized by all except a small minority of members as an illegal resort to war, and limited economic and financial sanctions were applied. These were not adequate, however, to achieve the declared objective of frustrating Italy’s military action, and leading members of the League were unwilling, for political reasons, to agree to measures that might have been effective.
The Charter of the United Nations adopts a different approach to the problem of sanctions. Like the Covenant, its objective is limited to the maintenance of peace; the Charter prohibits any threat or use of force against the territorial integrity or political independence of any state “or in any other manner inconsistent with the Purposes of the United Nations” (art. 2, paragraph 4). The sanctions envisaged, however, are not automatic, being left to the discretion of the Security Council. In cases of threats to the peace, breaches of the peace, or acts of aggression, it may take decisions requiring members to apply collective measures, including the severance of diplomatic relations, economic and financial nonintercourse, and “action by air, sea or land forces” (art. 42). But the taking of military measures is made dependent on the conclusion of agreements by which members undertake to place forces and facilities at the disposal of the Security Council (art. 43). In addition, a member against whom preventive or enforcement action has been taken may be suspended from “the exercise of the rights and privileges of membership” by the General Assembly upon the recommendation of the Security Council (art. 5), and a member who has “persistently violated the Principles” contained in the Charter may be expelled in like manner (art. 6). The Charter does not confer upon the General Assembly any explicit powers with respect to the imposition of sanctions. It does give to the Assembly the general authority to discuss and make recommendations with respect to any matter within the scope of the Charter (art. 10).
In United Nations practice, the Security Council has largely been prevented from using its powers to apply sanctions its enforcement powers—by the inability of the permanent members to agree. In the early stages of its handling of the Palestine question (1948) it specifically invoked these powers and threatened to use them. In the Korean case, the Council, in the absence of the Soviet representative, recommended assistance to the Republic of Korea and, under this authorization, members took measures of the kind described in articles 41 and 42. More recently, in dealing with policies of racial discrimination by South Africa, the Security Council, by its resolution of December 4, 1963, called upon members to refrain from shipping arms and munitions to that country so long as it practiced this discrimination, which it found was “seriously disturbing international peace and security.”
The General Assembly, in the exercise of its broad powers under the Charter, has on numerous occasions recommended to members the adoption of various measures of a coercive nature to bring the conduct of particular states into line with standards set by the Charter, international law, and United Nations resolutions. Examples include such recommended measures as the withdrawal of heads of missions to Spain and its exclusion from UN conferences in order to eliminate the Franco regime (1946); an embargo on the shipment of arms and strategic materials in general to North Korea and Communist China to suppress their aggressive action (1951); and an embargo on export of arms and petroleum products to South Africa to achieve the termination of policies of racial discrimination (1963). The measures recommended by the General Assembly have had a range of purposes extending beyond the maintenance of international peace and security, to the implementation of obligations and policies in respect to self-determination and human rights.
Provisions for the application of international sanctions are not limited to the constitutions of global international organizations. The Inter-American Treaty of Mutual Assistance, for example, provides that in case of aggression by an American state, the Organ of Consultation may decide that the other signatory states apply sanctions, including political, economic, financial, and military measures. Decisions may be taken by a vote of two-thirds and are binding, except that no member can be required to use military force against its will. In August 1960, the decision was taken to sever diplomatic relations and partially interrupt economic relations with the Dominican Republic because of its aggression against Venezuela.
Evaluation
Experience with organized international sanctions in support of international order has been limited and does not give much encouragement to those who believe in the efficacy of such arrangements. The League system of sanctions was a system of collective security which rested “upon the proposition that war can be prevented by the deterrent effect of overwhelming power upon states which are too rational to invite certain defeat” (Claude 1964, p. 228). It also assumed that an ethical and legal difference existed between military force used by a state to advance its national interests and the use of force by members of an international organization to restrain a state after it has been adjudged guilty of illegal use of force. This experiment was handicapped from the beginning by the League’s lack of universality. The limited economic and financial sanctions imposed against Italy showed that international sanctions were technically feasible. The necessary machinery could be organized and decisions could be taken to permit sanctions to become operative promptly and with substantial impact on the transgressor. Their failure was due to political difficulties—the conflicting interests and purposes of the sanctioning powers and the unwillingness of some states to risk war to make sanctions effective.
United Nations experience has not been encouraging either. Sanctions against Franco Spain were applied half-heartedly and were soon terminated. In the Korean case, the measures taken to assist the Republic of Korea and to defeat the aggressive actions of North Korea and Communist China were essentially United States measures dictated by United States policy considerations. The United Nations served as a useful framework to provide legitimacy and as a moderating influence. Measures recommended against South Africa to achieve fuller respect by that member for basic human rights have had little observable effect.
What conclusions are to be drawn from this and other experience regarding the role of international sanctions in the implementation of international order? Statesmen and scholars have arrived at a variety of conclusions.
One conclusion which appears to be widely held is that the theory of international sanctions, particularly as it involves the use of military force, is fallacious. According to this view, no effective pressure can be applied against a state except by another state, and consequently, an international order that depends on that form of pressure is a permanent source of conflict instead of a medium of order. As early as 1787 Hamilton wrote in The Federalist: “In an association where the general authority is confined to the collective bodies of the communities that compose it, every breach of the laws must involve a state of war; and military execution must become the only instrument of civil obedience” (No. 15).
Another conclusion that has wide support is that forces of coercion which are effective when applied to individuals are not effective, at least not to the same degree, when applied to states. Even those forms which might be expected to be particularly effective, such as embargoes and blockades, may at least temporarily have the opposite effect. In the case of the economic sanctions against Italy, among the immediate effects was a strengthening of popular support for the regime.
A view which is widely held by those who stress national interest as the motivating force in international relations is that international sanctions are unrealistic because they require a willingness to accept general commitments for situations which cannot be foreseen in detail and to carry them out under circumstances where the immediate national interest appears to dictate a different course. Thus, in the case of League sanctions against Italy, France was a reluctant participant because of her primary interest in having Italian support against Germany. Many members of the United Nations were reluctant to press sanctions against Communist China in 1950 and 1951 because of their greater concern at the time with the security of western Europe.
A more optimistic and positive view regarding sanctions is that while experience to date may not have been encouraging, a system of organized sanctions in support of law and order is the only alternative to anarchy. Scholars and writers who take this view—Quincy Wright and Myres McDougal are examples—argue that our experience with sanctions as applied to organized groups is not so discouraging as is often contended, that sanctions have been effective in deterring undesirable conduct by states, and that with a fuller appreciation of the extent of the coincidence of particular and general interests in public order, sanctions can be expected to become more effective.
Problems and prospects
It is obvious that the organization and application of international sanctions in support of international order present difficulties that do not exist to the same degree in the case of sanctions in support of domestic order. With respect to international legal claims, states generally continue to rely upon good faith and reciprocity of interest in compliance, and upon retaliatory measures when these fail. It is primarily for the maintenance of peace and, to an increasing extent of late, for the implementation of certain human rights that organized sanctions are seriously considered. Much study has been given to the organization and application of collective sanctions to these ends, both by private scholars and by official groups.
A group of members of the Royal Institute of International Affairs made a study of international sanctions in the light of the League experience of 1935-1936 (1938). During the period when the United Nations was engaged in supporting collective measures in Korea, the General Assembly, by its Uniting for Peace Resolution of November 3, 1950, established the Collective Measures Committee to study methods which might be used to strengthen international peace and security. In its report, published in 1951, it made detailed recommendations for the organization and application of collective measures (United Nations … 1951).
The scope of the prohibition of the use or threat of force under the Charter, combined with the lack of any effective provision for the enforcement of legal rights, has led some scholars to take the view that unilateral use of force to secure respect for legal rights is permissible as a sanction consistent with “the Purposes of the United Nations” (Stone 1958, pp. 94-95). Others take the view that the Charter does not permit the individual use of force, without United Nations authorization, except as it can be justified as an exercise of the right of self-defense in case of an armed attack.
There is an extensive scholarly literature dealing particularly with the theory and legal aspects of international sanctions, but research and writing have thus far neglected the more practical aspects of the problem. While scholars have explored the legal, organizational, and administrative problems involved in the establishment and operation of a system of sanctions, and furthermore have analyzed the influence of the international political environment on a system of sanctions, relatively little attention has been given to the effects of sanctions upon the delinquent states as well as upon those states joining in their application. It is too readily assumed that the recalcitrant state can be coerced by material pressures into conforming to a desired mode of conduct or into ceasing an undesirable mode of conduct. We need to know more about the effect of sanctions upon the people of the state that is the object of sanctions, and the processes by which that state, once its resistance is overcome, can be restored to good standing in the international community.
Furthermore, while the problem of the unequal effects of sanctions upon those states applying them or expected to apply them is recognized, more study needs to be made of the extent of these inequalities and of procedures by which burdens will be more equally shared. It is clear that reluctance to participate in the application of sanctions has in large measure been due to unequal burdens and risks that states have been asked to assume.
Leland M. Goodrich
[See alsoEconomic warfare; International conflict resolution; International law. Other relevant material may be found underInternational organization; International politics; War.]
BIBLIOGRAPHY
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