Toward a rights-based model of economic sanctions

Abstract

This Paper examines the rights-based boundaries of the United Nations (“UN”) sanctions as well as unilateral sanctions by classifying them as embargoes against States, major sectors and entities, and targeted sanctions against individuals and micro entities. For the UN embargoes, its Charter’s Preamble and Articles, the proportionality principle, and the preemptive norms of jus cogens are all investigated. It also analyzes some recorded rights-based challenges in the International Court of Justice (“ICJ”) and the European Court of Justice (“ECJ”) for the UN targeted sanctions, highlighting that the Security Council’s (“SC”) targeted sanctions require reconsideration and independent judicial review.¶ Sanctions imposed unilaterally or without the approval of SC must adhere to the rules specified in international law sources such as the UN Charter, as well as the boundaries of other rights-based treaties for their member States. These measures should also be consistent with CIL as established by opinio juris and State practices. By assessing embargoes against Russia and China, as well as the Magnitsky Act for targeted sanctions, the Paper analyzes how sender States justify their sanctions based on the CIL’s framework and erga omnes obligations.¶ Despite the fact that since the 1990s, embargoes have become less harmful in terms of collateral humanitarian effects to people who are not the subjective wrongdoers, yet they have been widely criticized for having some of the similar negative effects on human rights. In this regard, the Paper proposes a three-step rights-based model with a specific policy objective imposed by a sanctions coalition while taking into account all vulnerable rights during designation and implementation. These rights are highlighted to demonstrate how sanctions can proximately contribute to their violations. Finally, the Paper encourages international lawyers to consider a new shifting era, akin to the 1990s, in which a more realistic, rights-based economic sanctions model is devised and implemented.