TRIBUNE — We are currently witnessing the development of measures aimed at governing by sanction. Westerners consider themselves justified in sanctioning various countries, entities and individuals throughout the world, but aren’t these measures a distortion of international law and a violation of the UN framework? Do not the policies deployed in this way aim primarily to neutralize their adversaries and install a world government?
A brief reminder of international law
Historical
International custom has always allowed the practice of sanctions against a State. These were blockades and embargoes to put pressure on foreign states. Often used in the 17th and 18th centuries, these measures were codified by international law and used extensively.
Countermeasures (International Law Commission/ILC) versus sanctions (UN Security Council)
“Countermeasures” and “sanctions” are two types of measure that are reactions to a wrongful act previously committed. Countermeasures taken by a State are only legitimate after the occurrence of an internationally wrongful act by another State (or on the sole decision of the UN Security Council in the event of a conflict). The same applies to United Nations sanctions which are only taken by States after the occurrence of the three situations of Article 39 by the Security Council and the existence of a decision ordering them. The measures of Chapter VII of the Charter of the United Nations taken as an example by the International Law Commission (ILC) are applied following a breach by a State of a double obligation: that of refraining from any behavior which could constitute a threat or a breach of the peace, and that of applying the decisions of the Security Council ordering the cessation of this illicit behaviour.
Countermeasures are taken directly by a State on the basis of an autonomous decision, while measures taken by States within the framework of sanctions are taken following a decision by a competent collective body. This means that, in the context of countermeasures, State action is the result of a self-qualification of the presumed violation of an obligation, and can engage its international responsibility in the event of an erroneous interpretation. Countermeasures enacted by individual States, in the exercise of their own powers, therefore act at their “risk and peril”.
In the context of United Nations sanctions, it is the Security Council which is responsible for the legal qualification of the incriminated act and which dictates the reaction measures to be taken by the States. Sanctions can only be taken by decision of the UN Security Council. Sanctions are part of an institutionalized and centralized reaction system, while “countermeasures characterize a decentralized system allowing States injured as a result of an unlawful action against them to endeavor to assert their rights and restore the legal relationship with the responsible State which has been severed by the internationally wrongful act”.
Finally, there has been a growing tendency until recently in today’s international society to reserve to international institutions the determination of the existence of the violation of certain norms and the taking of corresponding reaction measures. Thus, reactions to aggression have been reserved for the UN Security Council under Chapter VII of the UN Charter. Even if States retain their right of self-defence against aggression, this right is legally subordinate to subsequent action by the Security Council, under Article 51 of the Charter.
The rights of third parties
The State or organization which reacts with countermeasures or sanctions must limit, in both cases, the effects of the measures taken to the sole State which committed the wrongful act. They must avoid or limit as far as possible the effects of these measures on other States. This is the requirement to respect the rights of third parties. It happens quite frequently in international relations that the action of the State which acts in the application of a legitimate countermeasure against another State, while targeting only the latter directly, causes when even on this occasion a wrong to a third State. In such cases, the ILC has concluded that a sanction measure causing damage to third parties is unlawful against that State, whether such damage was deliberate or unintentional. A State taking countermeasures which affect the rights of third States must expect that its responsibility will be engaged by these third States to have the measures which affect them withdrawn and to seek compensation for the damage suffered.
European community law
In the European Community legal order, the States have renounced their rights of individual reactions to violations of Community rules in favor of the collective bodies of the European Union. And when these bodies take economic measures in place of States, they are subject to international law.
US vs. UN extraterritorial sanctions
If it is recognized that the UN is a subject of international law, it has a special legal nature of the UN
The evolution of the international system until recently showed us a progressive narrowing of the sphere of unilateral reactions of States in favor of institutional reactions. Since the early 1990s, the United Nations General Assembly had passed several resolutions aimed at eliminating unilateral coercive economic measures in international relations.
The adoption of these resolutions was motivated, on the one hand, by the concern of the General Assembly at the negative effects of unilateral economic measures on development and human rights, on relations and cooperation between States , and on international trade and investment. On the other hand, it is a reaction of the Assembly to the use of economic measures as an instrument of political pressure against a government to change its economic and social system, as well as its internal or foreign policy. More specifically, it is a reaction of the General Assembly to the continuation and strengthening of sanctions against Cuba, and to the enactment by the United States of America of the “Helms-Burton Act” and its extraterritorial effect.
In these resolutions, the General Assembly, inter alia, urges States to refrain from enacting and applying laws and measures whose extraterritorial effects affect the sovereignty of other States and the legitimate interests of entities or persons placed under their jurisdiction, “given their obligations under the terms of the Charter of the United Nations and international law which, in particular, enshrine the freedom of commerce and navigation”.
With regard to the right of States to apply unilateral economic measures, these resolutions unequivocally condemn the use of measures which have extraterritorial effects.
As legal bases for the prohibition of unilateral recourse to economic measures, the Assembly invokes in the first place several fundamental principles of international law. First, there is the principle that no State may apply or encourage the unilateral use of economic, political or other measures to compel another State to subordinate the exercise of its sovereign rights to it.
The Assembly then invokes the right of all peoples to self-determination, by virtue of which they freely determine their political status and freely pursue their economic, social and cultural development.
Human rights constitute another legal basis for the recommendations of the General Assembly on the elimination of unilateral coercive measures. It further affirms that these measures are detrimental to the full realization of the economic and social development of the population of the countries affected, particularly women and children, undermine their well-being and constitute an obstacle to the full exercise of human rights, including the right of everyone to a standard of living adequate to ensure their health and well-being, and the right to food, medical care and necessary social services. Generally speaking, the Assembly points out that coercive measures impede commercial relations between States and hinder the full realization of all human rights. And it is naturally that it refers, in addition to the principles set out in the Charter, to the “basic principles of a non-discriminatory and open multilateral trading system”.
What implications for current geopolitics?
The countries affected by current Western countermeasures and sanctions that do not conform to the UN Charter are on various continents and are affected by different lawsuits. The non-exhaustive list of illegally sanctioned countries includes: Belarus, Iran, Mali, Russia, Syria, Venezuela. One can notice within this list a certain homogeneity in their political balance of power with the West, which can raise various questions, not to mention the negative economic and financial impact at the global level of these illegitimate sanctions. In this context, the West therefore risks legal proceedings by the States targeted by the said sanctions or countermeasures and by the penalized third States.
In conclusion, after having lied to the UN Security Council about Saddam Hussein’s alleged weapons of mass destruction and developing biochemical laboratories throughout the world, the United States has agreed with the European Union to support and justify numerous separatist movements, including in Europe, notably in Montenegro and Kosovo. As we see more and more, in addition to international law and the Charter of the United Nations which are flouted, we are witnessing policies which frequently apply the principle of “double standards”. Under these conditions, will the West tip over and try to lead the world towards a planetary government that it would direct arbitrarily and where the law would be absent and subject to private interests? The answer will depend on a early or late awareness of the world population which must already fight for its right to reliable and diversified information in order to form its own opinion of the situations with which it is confronted.
Main references: Djacoba Liva Tehindraznarivelo, Barbara Delcourt