James C. Νgobi1
Economic sanctions have gained wide currency and attracted a great deal of attention in the international community, particularly during the last few years. There is a growing awareness that sanctions can provide an efficacious medium for promoting the commonweal of the international community through peaceful means. That would sit well with the vision of the founding fathers of the United Nations (UN). Unfortunately, one too often hears epithets such as sanctions don't work, or sanctions hurt the wrong people, or sanctions are intended only as a political token, rather than as an instrument of deliberate coercive policy. I believe that the founding fathers would cringe at this last characterization of their otherwise seriously conceived method of regulating international behavior through peaceful means. For them, sanctions were to be the last means of coercion before using force. The rationale is that the consequences of sanctions are likely to be less devastating than the injury to persons and damage to property caused by the ravages of open warfare. One has only to look at the recent proliferation of sanctions regimes to see that there is a reliance on sanctions as a viable mechanism for promoting order in the international community. In the first forty-five years of its existence, the United Nations imposed mandatory sanctions only twice. Since 1990 the Security Council has used sanctions at least six times2 to regulate and redress the accepted norms of behavior among nations through peaceful means. The United Nations first promulgated a regime of mandatory sanctions in 1966 against the rebel United Kingdom-dependent territory of Southern Rhodesia. At the time, Rhodesia was not even a state member of the organization. In 1977 South Africa was the next country against which the Security Council imposed mandatory sanctions.
The Security Council did not resort to the use of sanctions again until the early 1990s. It imposed the first range of mandatory sanctions against Iraq in August 1990 (Resolution 661) in response to that country's invasion of neighboring Kuwait. The invasion was characterized by the council as a blatant act of aggression. In September 1991 the council established an arms embargo against former Yugoslavia (Resolution 713) by prohibiting the supply of any weapons and military equipment to any of the constituent parts of what was previously the Socialist Federal Republic of Yugoslavia. In May 1992 the council imposed various mandatory sanctions against two republics of the former Socialist Federal Republic of Yugoslavia, Serbia and Montenegro (Resolution 757), charging that those two republics were responsible for aiding and exacerbating the ethnic conflict in Bosnia and Herzegovina. In Resolution 748 (1992), the Security Council established selective mandatory sanctions against Libya (the country calls itself the Libyan Arab Jamahiriya) for the continued refusal of the government of that country to hand over certain persons resident there who are suspected of having committed criminal acts against civil transport aircraft. In Resolution 733 (1992) the Security Council established an arms embargo against Somalia by which it prohibited the supply of weapons and military equipment to that country. This action reduced the intensity of factional fighting and, hopefully, will end the devastating civil strife in that country. Similarly, in November 1992 (Resolution 788) the Security Council decreed a mandatory embargo against Liberia, a country in West Africa, where a similar civil war is currently raging. Finally, there has been a massive United Nations operation to restore order in Cambodia. In this country, ravaged by civil war, one of the factions is reneging on the agreement signed by all constituent parties. The Security Council thus adopted a resolution clearly intended for this errant faction (Resolution 792). This resolution was not, however, adopted under Chapter VII of the Charter.
Thus, since 1990 there has been a flurry of activity in the United Nations to use sanctions as a tool for regulating international behavior. One cannot rule out the possibility of yet other countries that may attract the invocation of sanctions against them in the future. Some people have attempted to explain this development as a consequence of the end of the Cold War, where the conduct of international relations has ceased to be characterized by the rivalry between superpowers and the pursuit of parochial interests by blocs of countries with opposing political or economic structures. It is worthy to note that since the beginning of the year 1990, the period when all of the new sanctions regimes have been established, the right of veto has been exercised only twice out of some 150 resolutions adopted by the Security Council, and neither of the two vetoes was directed against the establishment or expansion of the sanctions regimes. The Security Council has now come to realize that the use of sanctions is a viable last alternative to the use of military force, in conformity with the convictions of the founding members of the UN.
To proceed to a methodical treatment of the topic of sanctions, it is first necessary to clearly identify the field of sanctions which concerns us. We must, therefore, consider the concept and nature of sanctions as a coercive instrument of policy and then concentrate on the most relevant of the various types of sanctions.
The idea of sanctions is probably as old as the earliest organization of human society. Many famous writers have examined the role of law in society. They have asserted that the essence of a viable legal system in an organized society is the existence of a central authority that can promulgate the law, and all members of the society ready to obey that law, with punishment to any errant members inflicted by the central authority or its agents. It is a matter of philosophical argument whether obedience to the law is prompted by the fear of punishment, or is based upon a high code of moral conduct to maintain good order in the society. Whatever it is, its result is a positive influence on the conduct of the members and the development of events in the society. The relevant question is whether these principles can be extended to apply at the international level.
Various types of sanctions can be identified. There can be unilateral or multinational sanctions. The sanctions applied against Cuba by the United States over the years are examples of unilateral measures. The sanctions established by the Coordinating Committee for Multilateral Strategic Controls (COCOM) countries to ensure nonprovision of certain classified materials or technology to the former Soviet bloc and certain other countries were an example of regional sanctions. The success of unilateral or regional sanctions depends on the degree of dependence by the target country on the country or group of countries imposing the sanctions, and on the speed and ease with which the target country can alter that dependency. For instance, Cuba at the time of Fidel Castro's rise to power, conducted almost three-quarters of its trade with the United States alone. However, within only a few years of the imposition of the United States sanctions, Cuba was able to divert virtually all of that trade to countries of the former Soviet bloc.
High stakes then are placed on multinational action for effecting a successful sanctions policy. At the international level of the United Nations, however, collective responsibility sometimes becomes an abstract concept, particularly for those states whose national interest is not threatened; the farther away they are removed from the theater and influence of events, the more they are likely to pay lip-service to calls for collective action. As evidence of this, one has only to count the number of responses received from governments to requests from the United Nations for information on the measures they have taken to carry out the mandatory measures decreed by the Security Council. It is a rare occasion when the tally rises to more than one-half the membership in the organization, and of those responding, only a small minority provides details of the measures actually put into force. Often when a dispute in question involves the interests of one or more big powers, the small powers feel inhibited to take measures that may publicly show them pitted with one big power against the other(s); in these circumstances, silence or inaction remains golden.
The objectives in organizing societies at national and international levels are coincident, namely to facilitate the pursuit of individual goals in an atmosphere of security, peace, and good order. Accordingly, there must be someone or some mechanism at the national level responsible for guaranteeing those conditions. Sanctions (in the modem sense of the word) take the form of punishment at the international level. Whether or not one believes in the retributive theory of punishment, the practical use of sanctions at the international level is intended to transcend such theories and focus on the preservation of peace in the society concerned.
All of the United Nations resolutions establishing mandatory multilateral sanctions are passed by the Security Council under the authority of Chapter VII of the charter. This chapter deals with threats to the peace, breaches of the peace, and acts of aggression.3 It is for the Security Council to decide when, where, and whether such situations exist or are latent, and to decide the measures that must be employed to stop them or to forestall their occurrence. That role of the Security Council is clearly stated in Article 39 of the charter.4 To date, the council has adopted close to fifty resolutions based on Chapter VII, and approximately half have dealt with some form of sanctions programs.
There are those who argue that the central role of the Security Council should not be used to encroach on national sovereignty, to intervene in the domestic affairs of states, or to draw in what they consider extraneous matters such as issues of human rights, They cite the protection expressed in Article 2 (7) of the charter.® However, the same article has an important proviso that is sometimes ignored, namely that the principle of noninterference in the domestic jurisdiction of states "shall not prejudice the application of enforcement measures under Chapter VII." It was under this proviso that the Security Council took action against South Africa for that country's policy of apartheid. As an institutionalized facet of national policy, the practice of apartheid had already been denounced by the General Assembly of the United Nations as being contrary to the charter and to the Declaration of Human Rights. Moreover, the efforts of the indigenous people of South Africa to resist apartheid often prompted the government of South Africa to mount what it regarded as preemptive strikes against certain neighboring countries under the pretext that the antiapartheid activists were being harbored or trained there with the eventual aim of infiltrating the country for subversive activities. Those strikes alone were sufficient for the Security Council to find situations that warranted measures under Chapter VII of the charter on account of their threat to international peace and security by virtue of their encroachment on other countries' national sovereignty.
The Security Council has dealt with similar situations in other areas as well. In Iraq, the council demonstrated its concern for human rights, said to be denied to the Kurds in the North and to the Shiite population in the marshlands of the South, by adopting Resolution 688 (1991) and by employing measures under the authority of previous relevant resolutions. First, the council condemned the repression of the Iraqi civilian population in many parts of the country and insisted that Iraq allow immediate access by international humanitarian organizations to all those in need of assistance in the country. Second, the Security Council established a no-fly zone by Iraqi aircraft, which the council believed were being used by Iraq to strafe the marshland areas. The straddling of Kurds and Shiite populations across the borders would have again provided sufficient ground for the Security Council to decide that a potential breach of international peace and security existed in the area, and to act accordingly.
Regarding the situation in former Yugoslavia, the Security Council often has denounced the policy of so-called ethnic cleansing and the barbaric methods used to implement it in Bosnia and Herzegovina. In fact, by Resolution 808 (1993), the Security Council established an impartial Commission of Experts to examine and analyze information about reported war crimes in former Yugoslavia, with a view for the council to establish subsequently a War Crimes Tribunal. On March 31, 1993, the Security Council adopted a new resolution (Resolution 816, 1993) authorizing the use of force to enforce its ban on unauthorized flights over the territory of Bosnia and Herzegovina. These developments, while affecting activities within the domestic jurisdiction of states, also demonstrate the increasing trend by the Security Council to effect enforcement of its decisions under a central authority, rather than leave such enforcement to the exclusive performance of individual states.
The Security Council has consistently declared or implied that the responsibility for implementing the sanctions it establishes lies with states (and international organizations, where applicable). This position probably springs from the realization that acts violating sanctions will be committed in the jurisdiction of some state, which must then investigate and/or prevent the act and deal with the guilty parties as appropriate under national laws, if so proven. This is in conformity with the principle of national sovereignty.
For most of the sanctions regimes promulgated, the Security Council also establishes a committee, usually composed of all fifteen council members, with a specific mandate. That mandate usually involves monitoring the application of the sanctions by states (and international organizations, where applicable), assisting states (and international organizations) in trying to implement the sanctions, and submitting reports to the Security Council on the progress of this implementation. The council also makes recommendations about how the implementation can be made more effective. To facilitate their work, the committees often draw up a set of guidelines, which they share with all states and international organizations for their own benefit. Much of the committees' day-to-day work consists of passing information to and from states that might help in investigating possible violations of the sanctions, and in advising states on the type of conduct or activity that might or might not violate the sanctions.
The committees conduct their business behind closed doors. There is no obsession with secrecy intended, but it has been found that open discussion of reports of suspected or actual violations of the sanctions makes states uncomfortable; they fear that the mention of such violations within their jurisdiction will immediately result in branding such states as violators of the sanctions, even before investigations of the reports have been concluded and their culpability proven or dispelled. To be shown or presented to the international community as a sanctions violator is something many states would like to avoid, even if it may require going to certain lengths to conceal such an imputation. Also, the committees try to keep the perpetrators unaware of the investigation trail after them, so that they may not tamper with incriminating evidence.
The United Nations, acting in conformity with Chapter VIII of the Charter on Regional Cooperation, also encourages sanctions implementation by regional organizations. For many years during its existence, the Security Council Committee on Sanctions against Southern Rhodesia cooperated closely with the Organization of African Unity (OAU), which had sanctions committees of its own on Southern Rhodesia and South Africa. Today the Security Council Committee on Yugoslavia is benefiting from its ever-increasing cooperation with the Commission of the European Community, the Conference on Security and Cooperation in Europe (CSCE), the North Atlantic Treaty Organization (NATO), and the Western European Union (WEU) in monitoring and facilitating the implementation of the arms embargo against the Republics of former Yugoslavia and the general sanctions against Serbia and Montenegro. The Security Council further watches with interest the progress of the sanctions imposed by certain of the regional organizations, such as those by the Economic Organization of West African States (ECOWAS), currently in force against Liberia.
What follows are several personal observations of what I consider to be the shortcomings of the sanctions programs and suggestions for some possible improvements. First, sanctions generally should not be employed as a permanent feature of policy against any targeted country because the damage they are likely to cause to the long-term infrastructure of that country may far exceed the extent of the wrong committed. They should be decisive and swift in producing the desired objective in the shortest possible time. The history of sanctions programs shows that many of them have been applied much too selectively, much too gradually and without immediate mechanisms to monitor their effective implementation. Such a recipe gives the targeted country enough time to make the necessary adjustments to withstand the impact of the sanctions and defeat or delay their objective.
Regarding Southern Rhodesia, the Security Council determined on November 12, 1965, that the unilateral declaration of independence by that territory's minority regime constituted a threat to international peace and security, but merely called upon states not to give it any diplomatic recognition (Resolution 216). It was not until after a year later (December 12,1966) that the council invoked Chapter VII of the charter to impose the first range of sanctions against the rebel territory (Resolution 232). And only on May 29,1968, did the council create a committee to monitor the implementation of the sanctions (Resolution 258). It took more years and more resolutions before the sanctions could contribute to the capitulation of the rebel regime.
In the case of South Africa, the first two Security Council Resolutions of 1963 (181 and 182) were not adopted under Chapter VII and were only voluntary. The mandatory arms embargo was imposed against South Africa on November 4, 1977 (Resolution 418), but a committee of the council to monitor the implementation of the embargo was not created until after a month later (through Resolution 421) and then only after some prodding. In more recent times, one notes that the Committee on Yugoslavia was created to monitor the arms embargo almost three months after the establishment of the embargo; the Committee on Somalia after nearly six months of establishing the arms embargo against that country; and the Security Council has yet to create a committee to monitor the arms embargo established against Liberia on November 19, 1992. One also notes, regarding Iraq, that between August 2,1990 and October 2,1992 the Security Council adopted a total of twenty-three resolutions under Chapter VII. The vast majority of these resolutions have dealt with various aspects of the mandatory sanctions in force against that country.
Second, exclusive reliance on states for imposing sanctions means that the Security Council committees do not have an independent external mechanism to implement sanctions or to verify that the investigations undertaken by governments are sufficient and conclusive. As previously mentioned, protection of national honor may sometimes tempt governments to give little more than lip service to profound investigations that may lead to a discovery of sanctions violations. It is amazing how often the committees forward information to governments sufficient to charge companies within their borders of sanctions violations in ordinary courts of law. However, when governments report back, they declare that "after careful and thorough investigations" of the companies in question, there is no truth whatever in the allegations made. If governments were to rise above the traditional principle of sovereignty and domestic jurisdiction and accept the assistance of independent, external experts during the investigations, a large number of violations of sanctions would be avoided.
Third, the question of retribution must be a serious claim. The Security Council declared that Iraq's invasion of Kuwait was a deliberate act of aggression. Iraq must therefore pay compensation for the damage it caused to the people, the environment, and the property of Kuwait and other countries. Furthermore, the council has decided that Iraq must meet certain costs incurred by the United Nations in making adjustments after the Gulf War, such as the cost of inspections inside Iraq and the elimination of weapons of mass destruction, and partial payment of the costs for marking the international boundary between Iraq and Kuwait.
Fourth, there should also be measures to punish the offenders who continue to trade with a sanctioned country. If necessary, secondary sanctions can be instituted against companies or persons frequently mentioned or actually convicted of violating the sanctions. Their names could be blacklisted, and eventually they could be prohibited from engaging in international trade for the duration of the sanctions. If it is found that the countries in which such companies or individuals reside are not exercising sufficient control or restraint on their national entities, a threat of secondary sanctions against such countries would likely yield amazing results in the field of compliance.
Often the use of merchant vessels of convenience comes into question. Many of these are registered in countries that do not pay as much attention to all the international criteria and regulations for flagging a merchant vessel as to the amount of fees they charge for granting the registrations. The result is that many such ships engage in reckless transportation of contraband merchandise, making it difficult to track them for possible violations of the sanctions. They change their names and flag almost at will.
Fifth, steps need to be taken to alleviate the suffering of innocent people in the sanctioned country. The purpose of sanctions is to force the people in charge of the formulation of repugnant national policies to change those policies. Unfortunately, it often happens that such people are the least affected by the sanctions, while innocent people in the target country suffer. The Security Council has recognized the need to alleviate this suffering of ordinary people by permitting exceptions to the sanctions so that medicines, foodstuffs, and other items of essential human need can still be exported there. Regarding the population at large, sometimes a paradox appears. The people engaged in campaigns against colonial oppression or subjugation have often insisted that, in spite of the difficulties to them, they prefer the sanctions to be maintained and tightened. The Freedom Fighters in Southern Rhodesia very often raised that plea, and in South Africa many opposition parties there continued to advocate the maintenance of sanctions against South Africa until the last moment. In other sanctions situations, such as in Iraq and former Yugoslavia, the Security Council has recognized the need to alleviate the suffering of ordinary people by allowing exceptions to the sanctions. The committees, especially those on Iraq and Yugoslavia, spend a great deal of their time in evaluating the humanitarian nature of the goods requested as supplies to those countries.
As for the hardships caused at the national level, the Charter of the United Nations has a mechanism by which such countries can apply to the Security Council for consultations on how they can cope with the economic difficulties they face resulting from their enforcement of the sanctions. However, Article 50 of the charter only confers that right of consultation. It does not necessarily mean that the Security Council is obliged to come up with answers. In fact, the council does not appear to have ready answers. In cases where such applications have been lodged, the council has appealed to the international community and to international financial institutions to offer generous assistance to such countries. Sometimes the results are good, as in the twenty-one countries that have applied because of the sanctions against Iraq. It is now known that besides soft loans by international financial institutions, the European Community has distributed a total of some $1.2 billion to those countries. Three countries have so far applied to the Security Council because of the sanctions against former Yugoslavia, and it is expected that the council will proceed in a similar manner.
Finally, attention should be drawn to a growing trend in the Security Council toward prescribing how the sanctions should actually be implemented by states.
In the case of sanctions against former Yugoslavia, the council has authorized states, acting nationally or through regional agencies under the authority of the Security Council, to halt and inspect vessels in the Adriatic Sea and on the relevant portion of the Danube international waterway to ensure strict implementation of all the sanctions. Previously, in the aftermath of the Gulf War, the council authorized those states cooperating with Kuwait to mount a blockade in the Gulf area for similar purposes. Most recently, the Security Council called upon states to use such measures to ensure strict adherence to the arms embargo against Somalia and the sanctions against Haiti.
A sanctions regime can be used as an effective tool to regulate international behavior before resorting to the use of force. The Security Council of the United Nations should continue to be the central authority for detecting the situations and areas where international peace and security are threatened. The present practices in implementing sanctions fall rather short of achieving the intended objectives. More attention should be paid to devising measures that can make the application of sanctions as effective as possible, achieve their objectives in the shortest possible time frame, and minimize the suffering to the unintended, vulnerable sections of the population in the target countries. This would include the ordinary civilians: women, children, the old, the infirm, and the disabled. Appropriate measures should also be devised so as to avoid, minimize, or alleviate the economic difficulties of the third countries affected by the sanctions.
1. The views expressed in this article are solely those of the author and do not represent the official position of any organ of the United Nations Organization mentioned.
2. As of August 31,1994, three more sanctions regimes have been established by the Security Council: against Haiti (Resolutions 841,875, and 917), Angola— only against the UNITA political movement there (Resolution 864), and against Rwanda (Resolution 918).
3. Some decisions of the Security Council under Chapter VII of the charter may be recommendatory or nonbinding, i.e., when their operative paragraphs are introduced by emotive words such as 'The Security Council,... requests, invites, appeals, urges, etc." Mandatory or obligatory measures, on the other hand, constitute those adopted under Chapter VII of the charter and introduced by command words such as: "The Security Council, . . . demands, determines, orders that, calls upon, etc."
4. Article 39 reads: "The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security."
5. Article 2(7) reads in part: "Nothing contained in the present charter shall authorize the United Nations to intervene in matters that are essentially within the domestic jurisdiction of any state."