Economic sanctions

• Author: John H. Currie, Craig Forcese, Joanna Harrington, Valerie Oosterveld
• Pages: 827-842

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CHAPTER 13

ECONOMIC SANCTIONS

In this chapter, we discuss economic sanctions as a tool used by states, acting either

multilaterally or alone, for responding to violations of international law.

A. MANDATORY SANCTIONS IMPOSED BY THE UN SECURITY COUNCIL

Recall that Article 41 of the Charter of the United Nations1 provides that:

The Sec urity Council may decide what measures not involving the use of armed force

are to be employed to give effect to its decisions, and it may call upon the Members of the

United Nations to apply such measures. These may include complete or partial interrup-

tion of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means

of communicat ion, and the severa nce of diplomatic relation s.

The measures short of force authorized by the UN Security Council pursuant to Article

41 have typically focused on the “complete or partial interruption of economic relations,”

or, in more common parlance, economic “sanctions.” Economic sanctions usually im-

pose constraints on the exchange of goods and services with, and on investment in, a

state considered by the Security Council to b e in violation of its international obligations

in a manner that poses a threat to international peace and security. Such sanctions may

be ver y broad in nature, prohibiting most forms of economic exchange with the target

state, or may be more tailored in scope, limiting, for example, trade in arms or commod-

ities suspected of fuelling local or regional conf‌lict. When adopted as a decision pursuant

to Article 41, respect for such sanctions is mandatory for all UN member states by oper-

ation of Articles 25 and 103 of the UN Charter.

Consider the following summary of Canadian practice with respect to the implementa-

tion of mandatory sanctions imposed by the Security Council:

Alan H Kessel, “Canadian Practice in International Law at the Department of Foreign

Affairs and International Trade in 2008–9” (2009) 47 Can YB Int’l Law 411 at 429–30

. . . As a member of t he UN, Canada has the internationa l legal obligation to implement

into domestic law the binding provisions of United Nations Security Council Resolutions

[UNSCRs]. In some cases, no action is requ ired as the substance of t he binding provi-

sion has already been i mplemented into Canadia n law (i.e. in Export and Impor t Permits

Act (“EIPA”), Criminal Code, Immigration and Refugee Protection Act (“IRPA”) etc.). For

example, Can ada need not ta ke further steps to implement the travel bans requ ired by

1 26 June 1945, Can TS 1945 No 7, in force 24 October 1945 [UN Charter].

828 INTERNATIONAL LAW: DOCTRINE, PRACTICE, AND THEORY

certain UNSCRs as they are already assured by provisions of the IRPA . However, if the

terms of the UNSCR create a binding obligation upon Canad a that is not already imple-

mented in Canadian domestic law, it has an international obligation to act. It is in these

cases it turns to t he UN Act [United Nations Act, RSC 1985, c U-2].

Article 2 of the U N Act states:

When, in pursua nce of Article 41 of the Char ter of the United Nations, set out in the

schedule, the Secu rity Council of the United Nations decides on a measure to b e em-

ployed to give effect to any of its decisions and calls on Ca nada to apply the measure,

the Governor in Council may make such orders and regulations as appear to him to be

necessary or exp edient for enabling the measures to be effect ively applied.

. . .

The UN Act is l imited to these circumstances and cannot be used to implement con-

trols in excess of what the UNSC [UN Secur ity Council] has mandated.

As there is no clear external authority to interpret the UNSC resolutions, Member States

must determine t hemselves whether the provisions are “bindin g” and thus require domes-

tic implementation. This is general ly done by analyzing t he language of the provision itself:

The question as to whether the Council has imposed an obligation binding under arti-

cles 24 and 25 should be determined from the Cou ncil’s actual language in any given

situation [and]. . . i n most cases, the Counc il does use relatively c lear language in its

operative paragraphs. For example, it can be clearly established th at by using “urges”

and “invites,” as opposed to “decides,” the paragraph is intended to be exhortatory and

not bi nding. [Secu rity Counc il Report — Special Research Report, Se curity Coun cil

Action Und er Chapter VII, 2008, No 1, 23 June 20 08, at 12.]

The language “decides” clearly indicates that the UNSC deemed this provision to be bind-

ing . . . .

[Reprinted with permiss ion of the Publisher from Canadian Yearbook of Interna tional Law, Volume 47

edited by Don M cRae © University of Bri tish Columbia Press 2009. A ll rights reserved by t he Publisher.]

As discussed in Chapter 3, the effective functioning of the Security Council suffers from

signif‌icant political and legal obstacles. Recall that decisions of the Council on non -pro-

cedural matters require the aff‌irmative support of a “super-majority” of nine out of f‌ifteen

Council members. Moreover, each of the f‌ive permanent members, wielding the veto pro-

vided by Article 27(3) of the UN Charter, is in a position to derail Security Council action.

As a consequence, the Security Council imposed only two mandatory non-military

sanctions regimes prior to the collapse of the eastern bloc and the Gulf War in 1990: the

Southern Rhodesia sanctions regime initiated in 1966,2 and the South Africa arms embargo

beginning in 1977.3 With the end of the Cold War, Securit y Council resolutions imposing

such sanctions have become more commonplace.4 However, notwithstanding the un-

2 SC Resolution 232 (1966), adopted 16 December 1966 , UN Doc S/RES/232 (1966) and SC Resolution

253 (1968), adopted 29 May 1968, UN Doc S/RES/253 (1968).

3 SC Resolution 418 (1977), adopted 4 November 1977, UN Doc S/RES/418 (1977).

4 During the 1990s, UN measures of one so rt or another were applied against various coun tries, including:

Iraq: SC Resolution 661 (1990); the former Yugoslavia: SC Resolutions 713 (1992), 757 (1992), 820 (1993),