v c the developed/developing divide on unilateral … chinese jil.pdfunilateral coercive measures...

VC The Author 2017 Published by Oxford University Press All rights reserveddoi101093chinesejiljmx018 Advance Access publication 31 July 2017

The DevelopedDevelopingDivide on Unilateral CoerciveMeasures LegitimateEnforcement or IllegitimateIntervention

Alexandra Hofer

Abstract

Unilateral coercive measures are condemned by the UN General Assemblyon a yearly basis for being contrary to international law and for having nega-tive effects on human rights and the economy of developing States Althoughlegal doctrine generally finds that the limitations of economic coercion are agrey area of international law these resolutions could be indicative of anemerging prohibition Upon closer scrutiny however it would appear thatthey do not satisfy the required criteriamdashas developed by internationaljurisprudence and doctrinemdashfor establishing a new custom That being saidthe resolutions clearly illustrate a divide between developed and developingStates on the legitimacy of unilateral sanctions that should not be dismissedIn the interests of understanding how this division came into existence andhow we can overcome it the article proceeds to address the social factors thatlead to its creation

Doctoral researcher Ghent University Ghent Rolin-Jaequemyns International LawInstitute (GRILI) (alexandrahoferugentbe) The author wishes to thankProfessor Tom Ruys for his helpful feedback during the drafting of this article aswell as the anonymous peer-reviewers The paper was completed on 2 June 2017and the websites cited were current as of this date unless otherwise noted All errorsremain the authorrsquos own The abbreviations frequently used in this paper includeAALCO Asian African Legal Consultative Organization DASR Draft Articles onState Responsibility EO Executive Order EU European Union ILCInternational Law Commission G77 Group of 77 GA General AssemblyMPEPIL Max Planck Encyclopedia Public International Law NAM Non-AlignedMovement SC Security Council UCM unilateral coercive measures UN UnitedNations US United States of America

16 Chinese Journal of International Law (2017) 175ndash214

Downloaded from httpsacademicoupcomchinesejilarticle-abstract1621754056413The-Developed-Developing-Divide-on-Unilateralby Ghent University useron 19 September 2017

I Introduction1 In June 2016 the Peoplersquos Republic of China and the Russian Federation issued ajoint declaration on the Promotion of International Law whereby they expressed theview that ldquounilateral coercive measures not based on international law also known aslsquounilateral sanctionsrsquordquo are an example of double standards and of the ldquoimposition bysome States of their will on other Statesrdquo which are excluded under the ldquogenerally rec-ognized principles and rules of international lawrdquo1 Such measures they argue ldquocandefeat the objects and purposes of measures imposed by the Security Council andundermine their integrity and effectivenessrdquo2 Prior to this declaration in April 2016the foreign ministers of China Russia and India issued a similar statement emphasiz-ing inter alia that the ldquoimposition of unilateral coercive measures not based on inter-national lawrdquo is excluded by the principles of sovereign equality of Statesnon-intervention and cooperation3 In 2014 the Asian African Legal ConsultativeOrganization (AALCO) expressed ldquoits profound concern that the imposition of uni-lateral sanctions on third parties is [a] violation of the United Nations Charter and incontradiction with the general principles of international law [ ]rdquo4

2 These statements touch upon issues regarding the legality of unilateral sanctionswhich has been a recurring theme within the United Nations (UN) arena as well asan on-going debate in legal doctrine Indeed not only do there appear to be difficul-ties defining economic coercion commentators struggle to demonstrate that unilat-eral coercive measures (UCM) are prohibited under international law Neverthelesseconomic coercion is frequently evoked in General Assembly (GA) resolutionswhereby developing States contest the legality of unilateral sanctions arguing thatthey constitute an act of coercion contrary to the principles of international law5

This led the Special Rapporteur on the negative effects of UCM on the enjoyment ofhuman rights Idriss Jazairy to question ldquowhether the multiplicity of UN resolutions

1 The Declaration of the Russian Federation and the Peoplersquos Republic of China onthe Promotion of International Law (25 June 2016) (httpwwwmidruenforeign_policynews-asset_publishercKNonkJE02Bwcontentid2331698) para 6

2 Ibid3 Joint Communique of the 14th Meeting of the Foreign Ministers of the Russian

Federation the Republic of India and the Peoplersquos Republic of China (19 April2016) (httpwwwfmprcgovcnmfa_engwjdt_6653852649_665393t1356652shtml) para6

4 AALCO Extraterritorial Application of National Legislation Sanctions Imposedagainst Third Parties (2014) (httpwwwaalcoint53rdsessionextraterritorial202014pdf) 22

5 See eg Pierre-Emmanuel Dupont Countermeasures and Collective Security TheCase of the EU Sanctions Against Iran 17 Journal of Conflict amp Security Law(2012) 316-317

176 Chinese JIL (2017)


adopted on such measures does not signal an emerging customary international lawor peremptory norm calling into questionrdquo resort to unilateral sanctions6

3 These resolutions include those entitled ldquoHuman rights and unilateral coercivemeasuresrdquo expressing concern on the negative impact UCM have on human rightsand inter alia urging ldquoall States to cease adopting or implementing any unilateralmeasures not in accordance with international law [ ]rdquo7 Though they are notquoted in the Special Rapporteurrsquos report reference can also be made to the resolu-tions on ldquoUnilateral economic measures as a means of political and economic coer-cion against developing countriesrdquo which call for the elimination of unilateraleconomic sanctions8 Unilateral sanctions can be adopted by groups of States butthey are to be distinguished from multilateral sanctions as they are not adopted by aninternational or regional organization against a Member State on the basis of the orga-nizationrsquos constitutive act The term therefore excludes sanctions adopted by the UNSecurity Council or by the African Union against their own Member States pursuantto their respective constituent instruments9 However restrictive measures adoptedby the European Union (EU) against non-Member States are considered to beUCM10

4 Although sanctions are generally considered to be part and parcel of a Statersquosright to conduct its trade relations freely official statements UNGA resolutions andSpecial Rapporteur Idriss Jazairyrsquos report indicate that an important number of Statesare opposed to acts of economic coercion and that there is a call for such practice tocease or at the very least for the implementation of a regulatory framework To whatextent do these debates within the UN and the adopted resolutions provide insighton an issue that has stumped doctrine Are they as suggested by Idriss Jazairy indica-tive of an emerging prohibition

5 Against this background we seek to shed light on the UN debate regardingUCM The first step comprises an attempt at assessing the value of the legal claimspertaining to unilateral sanctions the second step aims at understanding the underly-ing political and social factors that contribute to the construction of these claimsConcretely we begin by assessing the state-of-the-art on unilateral economic coer-cion where we find that the topic remains a grey area of international law (Part II)Following these considerations we turn to the UNGA resolutions and the debatesthereon in an attempt to determine whether or not they constitute to borrow Special

6 HRC Report of the Special Rapporteur on the negative impact of unilateral coercivemeasures on the enjoyment of human rights Idriss Jazairy AHRC3045 (10August 2015) hereafter ldquoReport of the SRrdquo para47

7 GA Res 71193 (20 January 2017) Operative clause 18 GA Res 70185 (22 December 2015) Operative clause 29 Report of the SR above n6 5 para1410 Ibid 5 para15

Hofer Legitimate Enforcement or Illegitimate Intervention 177


Rapporteur Jazairyrsquos words an emerging prohibition (Part III) It would however ap-pear that the texts do not satisfy the required criteria for establishing a new customaryrule not only is the language of the resolutions vague the debate is heavily dividedbetween developed and developing States bringing the discussions to a stalemate tothe extent that it is difficult to draw legal conclusions

6 Nonetheless by broadening the analysis to include the social factors that lead tothe creation of the deadlock (Part IV) we hope to provide a more comprehensive un-derstanding of a problem that is in reality fundamental to international law11 anduncover the underlying issues related to discussions on unilateral coercion As Hirschobserves a ldquosociological analysis of international legal issues broadens our understand-ing of social factors involved in the formation [ ] of international lawrdquo12 and hencethe construction of Statesrsquo legal arguments Indeed it is apparent that the debate isstrongly influenced by political considerations and social factors such as Statesrsquo senseof identity and the ethical norms they seek to uphold in the international communityThe discussion on the legality of UCM is indicative of the issues pertaining to thesemeasuresrsquo legitimacy In our conclusion we will seek to open the debate to venues ofdiscussion in an effort to overcome the deadlock (Part V)

II The current scope of the prohibition of unilateral coercion indoctrine and jurisprudence7 Acts of economic coercion are first and foremost foreign policy tools upon whichthe international legal order seeks to impose restrictions Inasmuch as these acts in-volve forms of pressure whereby one State seeks to compel another into behaving in acertain manner13 international law establishes which forms of pressure are

11 On the importance of the problem see Daniel Joyner United Nations Counter-Proliferation Sanctions and International Law in Larissa van den Herik (ed)Research Handbook on UN Sanctions and International Law (2017) (httppapersssrncomsol3paperscfmabstract_idfrac142752623) 2

12 Moshe Hirsch An Invitation to the Sociology of International Law (2015) 2 Healso observes that ldquosociological examination may also suggest some better legalmechanisms for [ ] enhancing compliance with international lawrdquo which is thestated aim of unilateral coercive measures by the States that adopt them (see belowParts IIIA and IVA)

13 See eg Lowenfeldrsquos definition of economic coercion as ldquomeasures of aneconomicmdashas contrasted with diplomatic or militarymdashcharacter taken to induce [atarget State] to change some policies or practices or even its governmental structurerdquoAndreas F Lowenfeld International Economic Law (2008) 698 See also NatalinoRonzitti Sanctions as Instruments of Coercive Diplomacy An International LegalPerspective in Natalino Ronzitti (ed) Coercive Diplomacy Sanctions andInternational Law (2016) 1 ldquoCoercion may assume various forms that have incommon the will of a State to force another State into taking particular actionrdquo



permissible and under which circumstances14 From a legal perspective it is necessaryto provide a definition of economic coercion where these boundaries are clearly out-lined Yet not only is defining the concept a difficult exercise15 identifying unlawfuleconomic coercion remains a legal grey area16 By way of illustration theInternational Law Commissionrsquos (ILC) commentary to Article 18 of the DraftArticles on State Responsibility (DASR) which deals with ldquoCoercion of anotherStaterdquo does not outline the legal boundaries of coercion Instead the Commentariesequate coercion to force majeure ldquothe occurrence of an irresistible force or of anunforeseen event beyond the control of the Staterdquo17 Coercion is defined as ldquoconductwhich forces the willrdquo of the targeted State ldquogiving it no effective choice but to com-ply with the wishes of the coercing Staterdquo18 The ILC goes on to say that ldquocoercionfor the purpose of article 18 [ ] is not limited to unlawful coercionrdquo without clarify-ing what unlawful coercion would be except to give two examples ldquoa threat or use offorce contrary tordquo the UN Charter and ldquointervention ie coercive interference in theaffairs of another Staterdquo19

14 Christopher C Joyner Coercion Max Planck Encyclopedia Public InternationalLaw (hereafter ldquoMPEPILrdquo) (2006) (httpopilouplawcomview101093lawepil9780199231690law-9780199231690-e1749rskeyfrac14fpJKgWampresultfrac141ampprdfrac14EPIL) para1 For instance the use of force as a coercive act is now prohibited un-less the UN Security Council has authorized it or if the operation is taken in self-defence pursuant to UN Charter Article 51 Acts of retorsion and countermeasuresare considered lawful under customary international law The latter have been codi-fied in the ILC Draft Articles on State Responsibility (2001) (hereafter ldquoDASRrdquo)Articles 22 49-53 see Annex to GA Res 5683 ldquoResponsibility of States forInternationally Wrongful Actsrdquo (28 January 2002)

15 Barry E Carter Economic Coercion MPEPIL (2009) (httpopilouplawcomview101093lawepil9780199231690law-9780199231690-e1518rskeyfrac14fpJKgWampresultfrac142ampprdfrac14EPIL) para1 ldquothe term lsquoeconomic coercionrsquo has traditionallybeen difficult to definerdquo Omer Yousif Elagab The Legality of Non-forcibleCounter-Measures in International Law (1988) 525 ldquoany definition of the conceptof coercion [is] uniquely difficult to obtainrdquo See also Philip Kunig InterventionProhibition of MPEPIL (2008) (httpopilouplawcomview101093lawepil9780199231690law-9780199231690-e1434rskeyfrac14V5a1XHampresultfrac142ampprdfrac14EPIL) para25

16 Tom Ruys Sanctions Retorsions and Countermeasures Concepts andInternational Legal Framework in van den Herik above n11 (httppapersssrncomsol3paperscfmabstract_idfrac142760853) 7 Nigel White and Ademola AbassCountermeasures and Sanctions in Malcolm D Evans (ed) International Law(2010) 531

17 ILC Commentaries to DASR in ILC Yearbook 200111(2) Commentary toArticle 18 69 para2 see also Commentary to Article 23 76 para2

18 Ibid 69 para219 Ibid 70 para3



8 With regard to the second illustration it is worth quoting Special RapporteurIdriss Jazairyrsquos definition of UCM

measures including but not limited to economic and political ones imposedby States or groups of States to coerce another State in order to obtain from it thesubordination of the exercise of its sovereign rights with a view to securing somespecific change in its policy20

Here as well as in the second example given by the ILC the scope of coercion islinked to the scope of a Statersquos ldquosovereign rightsrdquo In other words unlawful coercionrequires a breach of the principle of non-intervention This nexus with the prohibi-tion of intervention can be found throughout academia

9 It is generally argued that the legality of economic coercive measures is related totwo general principles of international law First economic sanctions are usually con-sidered to fall within the scope of the Lotus principle21 States are at liberty to conducttheir economic relations as they choose provided they respect the obligations theyhave freely consented to by adhering to a treaty or the legal norms that have been rec-ognized as customary international law22 In light of this first principle economic co-ercion is prima facie legal the issue of legality will depend on the rules that apply in agiven situation23 The second principle that is applied is the prohibition of interven-tion A Statersquos freedom to adopt coercive economic measures is limited by the tar-geted Statersquos freedom to regulate matters that fall within the scope of its internalaffairs However this is not always an easy line to draw24 especially if we consider

20 HRC Report of the SR above n6 4 para13 (emphasis added) this definition isbased on HRC Res 2721 Human rights and unilateral coercive measures (adopted26 September 2014)

21 The Case of the SS Lotus (France v Turkey) Judgment PCIJ 1927 (httpwwwicj-cijorgpcijserie_AA_1030_Lotus_Arretpdf) 18

22 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v UnitedStates of America) (hereafter ldquoMilitary and Paramilitary Activitiesrdquo) MeritsJudgment ICJ Reports 1986 14 para276 ldquoA State is not bound to continue par-ticular trade relations longer than it sees fit to do so in the absence of a treaty com-mitment or other specific legal obligationrdquo

23 Thus recalling the concepts of retorsion and countermeasures Sanctions adoptedwithin the field of economic freedom are retorsions under public international lawpolitically unfriendly but lawful acts If a sanction breaches the sending Statersquos obli-gations towards the target State under conventional or customary international lawthen the countermeasure argument could be raised as a justification provided certainconditions are respected as defined in the DASR referred to above n14 See alsoElagab above n15 545 Joyner above n11 7-8 Vaughan Lowe and AntoniosTzanakopoulos Economic Warfare MPEPIL (2013) (httpopilouplawcomview101093lawepil9780199231690law-9780199231690-e292rskeyfrac14zvbIVfampresultfrac141ampprdfrac14EPIL) paras36-42

24 Kunig above n15 paras25 and 26



that fewer matters are strictly within a Statersquos domestic jurisdiction25 It follows that adiscussion on illegal acts of coercion quickly becomes intertwined with the debate onthe scope of the principle of non-intervention This adds additional complications asthe prohibition of intervention has been described as the ldquomost potent and elusive ofall principlesrdquo26 Further it is unclear exactly what threshold UCM need to reach inorder to constitute an unlawful intervention as the conduct has to amount to an irre-sistible pressure on the target State causing it to be forced to make a decision withinthe scope of its domaine reserve under constraint with no means of escape27

10 In Military and Paramilitary Activities in and against Nicaragua the ICJ ex-plained that an act would be considered as an intervention when it involvestrespassing

directly or indirectly in internal or external affairs of other States A prohibitedintervention must accordingly be one bearing on matters in which each State ispermitted by the principle of State sovereignty to decide freely [ ]Intervention is wrongful when it uses methods of coercion in regard to suchchoices which must remain free ones28

The Court found that coercion forms the very essence of the principle of non-intervention and further stated that this element would be obvious when the inter-vention involves the use of force29 However the Court did not discuss the thresholdthat needs to be met in order for economic pressure to be considered coercive andwas quite restrictive when it came to applying the principle of non-intervention tosuch acts30 Indeed in response to Nicaraguarsquos complaint that the US cessation ofeconomic aid and the imposition of a trade embargo amounted to indirect interven-tion31 the Court found ldquothat it is unable to regard such action on the economic plane

25 Ibid para3 Antonios Tzanakopoulos The Right to Be Free From EconomicCoercion 4 Cambridge Journal of International and Comparative Law (2015)631

26 Maziar Jamnejad and Michael Wood The Principle of Non-Intervention 22Leiden Journal of International Law (2009) 345

27 Thomas Giegerich Retorsion MPEPIL (2011) (httpopilouplawcomview101093lawepil9780199231690law-9780199231690-e983rskeyfrac14nNzN4Yampresultfrac141ampprdfrac14EPIL) para24 ILC Commentaries to DASR above n17 commen-tary to Article 23 76 para2

28 Military and Paramilitary Activities above n22 para20529 Ibid30 Jamnejad and Wood above n26 37031 Military and Paramilitary Activities above n22 paras123 and 125 It has been ar-

gued that the American measures had devastating effects on Nicaraguarsquos alreadyweak economy see eg William M Leogrande Making the Economy Scream USEconomic Sanctions against Sandinista Nicaragua 17 Third World Quarterly(1996) 329



[ ] as a breach of the customary-law principle of non-interventionrdquo32 Two remarkscan be made on this finding

11 First the phrase ldquosuch actionrdquo is rather ambiguous it is unclear whether theCourtrsquos conclusion was only relevant to the American action against Nicaragua or toembargoes in general33 Nevertheless embargoes are frequently given as examples ofretorsion34 this is the case for instance in the commentaries to the DASR35 Thusaccording to Ruys the Nicaragua dictum confirms that embargoes are not necessarilyunlawful and that the prohibition of measures amounting to economic interventionmust be ldquonarrowly construedrdquo36 Lowe and Tzanakopoulos have indicated that the le-gal characterization of embargoes adopted ldquoin peacetime will depend on the circum-stances and on the particular international obligations in force between the States inquestionrdquo37 Consequently they could qualify as either acts of retorsion countermea-sures or simply as internationally wrongful acts38 This reasoning seems to be in linewith the Courtrsquos finding that the US economic measures against Nicaragua violatedthe Treaty of Friendship Commerce and Navigation of 195639 Accordingly thoughthe embargo did not amount to an intervention in Nicaraguarsquos domaine reserve it stillconstituted an internationally wrongful act

12 Second even if the trade embargo against Nicaragua was not considered to bea breach of the prohibition of intervention it does not mean that the embargo wasnot coercive An act does not need to constitute an intervention in the Statersquos domainereserve in order for it to be considered coercive40 As explained in the beginning ofthis section a coercive sanction aims at changing the behaviour of the target or its pol-icy objective41 this can be achieved without intervening in the Statersquos internal affairsAll the same there appears to be a general consensus in legal doctrine that economic

32 Military and Paramilitary Activities above n22 para24533 Jamnejad and Wood above n26 37134 Dupont above n5 31235 ILC Commentaries to DASR above n17 128 para336 Ruys above n16 737 Lowe and Tzanakopoulos above n23 para3638 Ibid39 Military and Paramilitary Activities above n22 para27640 However see eg Tzanakopoulos above n25 at 623 the author differentiates be-

tween ldquocoercioninterventioncoercive interferencerdquo and ldquomere pressure or interfer-encerdquo and at 626 the distinction is made between ldquoinducementrdquo and ldquocoercionrdquo

41 This general definition is given in political science literature See eg Thomas JBiersteker Susan E Eckhart and Marcos Tourinho (eds) Targeted Sanctions TheImpacts and Effectiveness of United Nations Action (2016) 225-226 This is alsoapparent in Lowenfeldrsquos definition above n13 and accompanying text and in ILCCommentaries to DASR above n17 commentary to Article 18 where theCommission makes the distinction between ldquocoercionrdquo and ldquounlawful coercionrdquo



sanctions must amount to intervention in order to be considered illegal coercion42

However not only has the bar been set so high it seems near impossible to reach as il-lustrated below scholars are at pains to argue that the principle of non-interventionencompasses acts of economic coercion

13 In 1988 Elagab concluded that ldquothe principle of non-intervention did notseem to have crystallized into a clear rule prohibiting economic coercionrdquo though hebelieved that there was a gradual emergence of rules that would limit the scope of per-missible acts of economic coercion43 By contrast relying on ldquoUN instruments thatauthoritatively interpret the Charterrdquo Boumedra argued that there is sufficient evi-dence that economic coercion would be prohibited under Article 2(4) of the UNCharter44 This view does not seem to have convinced many legal scholars It appearsthat economic coercion is essentially considered to remain within the scope of aStatersquos freedom to conduct its economic relations and for the most part is only regu-lated by the legal obligations a State has expressly consented to or that have been rec-ognized as international custom45 Recently Ruys concluded that ldquoit remainsaltogether unclear to what extent exactly the principle of non-intervention prohibitscertain economic sanctions [ ] The question continues to puzzle legal doctrinerdquo46

Tzanakopoulos has gone further in arguing that illegal acts of economic coercionbarely exist in present-day international law47

14 This notwithstanding numerous General Assembly Resolutions have beenadopted condemning coercive economic measures as a means to influence a Statersquos in-ternal affairs48 suggesting that such acts are inconsistent with the prohibition of inter-vention Despite the organrsquos extensive practice in 1993 the UN Secretary-Generalpublished a report reiterating the findings of an expert group ldquo[t]here is no clear con-sensus in international law as to when coercive economic measures are improperrdquo49

42 Joyner above n11 12 Tzanakopoulos above n25 623 Elagab above n15 534Lowe and Tzanakopoulos above n23 para38 Ronzitti above n13 6

43 Elagab above n15 542 and 54444 Tahar Boumedra Economic Coercion under International Law 2 African Society

of International and Comparative Law Proceedings of the Second AnnualConference (March 1990) 81-83

45 White and Abass above n16 53846 Ruys above n16 7 See also Akira Kotera Western Export Controls Affecting the

Eastern Bloc An International Law Viewpoint in Hiroshi Oda (ed) Law andPolitics of West-East Technology Transfer (1988) 33-34 describing the proscrip-tion of certain types of economic coercion as lex ferenda

47 Tzanakopoulos above n25 63348 Carter above n15 para7 See GA resolutions referred to in subsequent paragraphs49 Note by the Secretary-General Economic measures as a means of political and eco-

nomic coercion against developing countries A48535 (25 October 1993) Point2(a)



The difficulty in determining whether or not the UNrsquos practice would lead to theemergence of a legal norm that restricts the use of economic coercion under the prin-ciple of non-intervention lies in establishing the normative value of the said practiceThe resolutions are generally political in nature and adopted by a heavily dividedvote thus lacking legal authority50 According to Jamnejad and Wood among themany resolutions that have been adopted the most ldquosignificantrdquo ones are Resolution2131 (XX) Declaration on the Inadmissibility of Intervention (1965) Resolution2625 (XXV) Declaration on Principles of International Law concerning FriendlyRelations and Co-operation among States in accordance with the Charter of theUnited Nations (1970) and Resolution 36103 Declaration on the Inadmissibility ofIntervention and Interference in the Internal Affairs of States (1981)51 It is also rele-vant to refer to Resolution 3281 the Charter on the Economic Rights and Duties ofStates (1974)

15 The first two resolutions assert that no State shall adopt economic measures asa means ldquoto coerce another State in order to obtain from it the subordination of theexercise of its sovereign rightsrdquo52 However the debates held on Resolution 2131(XX) reveal that Member States were more concerned about subversion and respectof the right to self-determination53 Prior to the adoption of Resolution 2625 onlythe Bolivian delegation made an express reference to economic sanctions as measuresencompassed by the principle of non-intervention54 Additionally Pakistan seemedto suggest that the prohibition of the threat or use of force should include ldquoeconomicpolitical and other forms of pressurerdquo55 These are the only explicit statements regard-ing economic pressure as a violation of the principle of non-intervention

16 The Charter on the Economic Rights and Duties of States (Resolution 3281(1974)) asserts that economic and political relations between States should be gov-erned by inter alia the principles of non-aggression and non-intervention56 Morespecifically Article 32 states that

50 Carter above n15 para851 Jamnejad and Wood above n26 350-351 See also Ronzitti above n13 4-552 GA Res 2131 (1966) Operative Clause 2 and GA Res 2625 (24 October 1970)

Operative Clause 153 Statements made by the USSR Brazil and Guatemala APV1408 (21 December

1965) para 108 (USSR) para 119 (Brazil) and para 125 (Guatemala)54 Statement made by Bolivia before the UNGA Sixth Committee AC6SR1181

(25 September 1970) para2255 Statement made by Pakistan before the UNGA Sixth Committee AC6SR1179

(24 September 1970) paras18-1956 UNGA Res 3281 (XXIX) (12 December 1974) (adopted by 120 to 6 against 10

abstentions and 2 non-voting) Chapter 1 Points (c) and (d)



No State may use or encourage the use of economic political or any other typeof measures to coerce another State in order to obtain from it the subordinationof the exercise of its sovereign rights

It nevertheless appears that the Charter does not have normative value Elagab has ar-gued that the Charter is not a binding instrument and that Article 32 cannot be readas legally prohibiting economic coercion instead it should be read as expressing anldquoidealrdquo57

17 Finally Resolution 36103 explicitly refers to economic coercion underParagraph 2 Point II(k) pursuant to this provision the principle of non-interventionin the internal and external affairs of States comprises the duty of a State not to useits external economic assistance programme or adopt any multilateral or unilateraleconomic reprisal or blockade and to prevent the use of transnational and multina-tional corporations under its jurisdiction and control as instruments of political pres-sure or coercion against another State in violation of the Charter of the UnitedNations

Point II(l) of Paragraph 2 also highlights

The duty of a State to refrain from the exploitation and the distortion of humanrights issues as a means of interference in the internal affairs of States [and] ofexerting pressure [ ]

However Resolution 36103 would appear to have little normative value58 All thesame the above quoted paragraphs echo the concerns of developing States that allegethat developed countries misuse claims concerning human rights violations to justifymeasures of economic coercion59 They also protest against these measuresrsquo negativeeffects It is within this context that the resolutions entitled ldquoHuman rights and uni-lateral coercive measuresrdquo and ldquoUnilateral economic measures as a means of politicaland economic coercion against developing countriesrdquo are adopted We will now studythe content of these texts and the reasons given for their adoption

57 Elagab above n14 543-544 See also Texaco Overseas Petroleum CompanyCalifornia Asiatic Oil Company v the Government of the Libyan Arab Republic 17ILM 1 (1978) (hereafter ldquoTexaco v Libyardquo) paras85-88 However see Joynerabove n11 10

58 Kunig above n15 para20 ldquoThe broad definition of the non-intervention principlegiven by this resolution was passed against the will of many States and does not re-flect general international opinion on the topicrdquo

59 Statements made before the UNGA Third Committee AC363SR44 (24February 2009) paras103-104 (Myanmar) AC351SR48 (22 November1996) para21 (Syria) AC351SR47 (21 November 1996) para6 (DPR ofKorea) and para9 (Myanmar)



III The UN General Assembly debates and resolutions onunilateral coercive measures and the absence of an emergingprohibition18 If we chose to study the resolutions entitled ldquoHuman rights and unilateral coer-cive measuresrdquo it is not only because of the Special Rapporteur Idriss Jazairyrsquos 2015Report but also because they explicitly denounce UCM for being incompatible withinternational law and have done so repeatedly since 1996 For similar reasons we be-lieve it was useful to complement our analysis with the resolutions on ldquoUnilateral eco-nomic measures as a means of political and economic coercion against developingcountriesrdquo Additionally to this authorrsquos knowledge very little has been written onthese resolutionsrsquo normative value60 The goal of this section is to assess the legal valueof the denunciations in order to determine if the resolutions constitute an emergingprohibition of UCM as suggested by Special Rapporteur Idriss Jazairy and if theyprovide insight on the legal issues that have puzzled legal doctrine

IIIA The condemnation of economic coercion through the UNGeneral Assembly19 Adopted on an annual basis by the Third Committeemdashthe GArsquos social humani-tarian and cultural committeemdashthen voted by the GA the resolutions on ldquoHumanrights and unilateral coercive measuresrdquo are annually submitted by the Non-AlignedMovement (NAM)61 UCM are rejected ldquoas tools for political or economic pressurerdquobecause of their negative effect on human rights62 The resolutions also express con-cern about these measuresrsquo negative impact ldquoon international relations trade invest-ment and cooperationrdquo63 and urge States to cease adopting them Since 1996twenty-one resolutions on ldquoHuman rights and unilateral coercive measuresrdquo havebeen adopted

20 The resolutions entitled ldquoUnilateral economic measures as a means of politicaland economic coercion against developing countriesrdquo are introduced on a bi-annual

60 However see Ruys above n16 6 refers to the resolutions on ldquoUnilateral economicmeasures as a means of political and economic coercion against developingcountriesrdquo without assessing their normative value Similarly see Ronzitti aboven13 13-14 and Dupont above n5 316 referring to debates in the SecondCommittee of the UN General Assembly and to the positions of the NAM andG77

61 Since 2006 the draft resolutions have been introduced by Cuba on behalf of theNAM For a list of the NAMrsquos members see httpwwwnamgovzamedia040802bhtm

62 UNGA Res 51103 (3 March 1997) to UNGA Res 71193 above n763 UNGA Res 55110 (13 March 2001) to UNGA Res 71193 above n7



basis on behalf of the Group of 77 (G77) and China64 and adopted by the SecondCommittee the economic and financial committee From 1993 to the time of writ-ing nineteen resolutions have been adopted Since 1993 these resolutions

[urge] the international community to adopt urgent and effective measures toeliminate the use of unilateral coercive economic measures against developingcountries that are not authorized by relevant organs of the United Nations orare inconsistent with the principles of international law as set forth in theCharter of the United Nations and that contravene the basic principles of themultilateral trading system65

A new clause was added in 2007 calling ldquoupon the international community to con-demn and reject the imposition of the use of such measures as a means of politicaland economic coercion against developing countriesrdquo66

21 Both resolutions affirm that UCM constitute a violation of international lawincluding the principles set out in the UN Charter and urge States to eliminate suchpractice These texts refer to the principle of non-intervention in condemning theadoption of ldquoeconomic political or any other type of measures to coerce anotherState in order to obtain from it the subordination of the exercise of its sovereignrightsrdquo in reference to Resolution 2526 (XXV)67 or to Article 32 of Resolution 3281(1974)68 The main distinction is that the texts entitled ldquoUnilateral economic mea-sures as a means of political and economic coercion against developing countriesrdquoplace more emphasis on these measuresrsquo negative impact on the right to developmenteconomic cooperation and the development of a non-discriminating multilateral trad-ing system The resolutions on ldquoHuman rights and unilateral coercive measuresrdquo astheir title indicates are concerned with unilateral sanctionsrsquo negative impact on thefulfilment of human rights in the targeted States which include the right to develop-ment as well as other social and economic rights These texts also condemn such sanc-tionsrsquo extraterritorial effect and their harmful influence on areas pertaining tointernational relations trade investment and cooperation

22 In both cases the resolutions are adopted by a large majority we can also ob-serve a political rift in the voting patterns When the topic on ldquoHuman rights andunilateral coercive measuresrdquo was first introduced in the United Nations in 1996 the

64 The texts were first introduced on an annual basis from 1983 to 1987 since 1987the topic is discussed bi-annually Note that they were first introduced under the ti-tle ldquoEconomic measures as a means of political and economic coercion against devel-oping countriesrdquo the word ldquounilateralrdquo was added in 1997

65 UNGA Res 48168 (22 February 1994) to UNGA Res 70185 above n866 UNGA Res 62183 (31 January 2008) to UNGA Res 70185 above n867 Ibid68 Resolutions referred to above n62



vote was more or less evenly split into three blocs 57 voted in favour 45 votedagainst and 59 abstained69 Since then the voting pattern has changed In the lastyears about 130 developing countries vote in favour of these resolutions whereasmore or less 50 developed countriesmdashmainly the US the EU Member States andtheir alliesmdashcast a negative vote Similarly the resolutions on ldquoUnilateral economicmeasures as a means of political and economic coercion against developing countriesrdquoare adopted by a large majority against only two negative votes emanating from theUS and Israel on the other hand EU Member States abstain It follows that these res-olutions are generally adopted by roughly 130 positive votes to two negative votesand around 50 abstentions Consequently the two texts are typically adopted byslightly over two-thirds of the General Assemblyrsquos Member States

23 Turning to the explanations of the votes the NAM70 and G77 and China areconsistent in denouncing the adoption of non-UN sanctions against developingcountries For instance the latter group has expressed their opposition

to the imposition of unilateral economic measures as an instrument of politicaland economic coercion against developing countries Such action was not in ac-cordance with the Charter of the United Nations international law or therules-based multilateral trading system and undermined the sovereign equalityof States71

The NAM has also called on ldquoStates to refrain from [UCM] against other States withthe aim of enforcing compliance particularly where such measures were inconsistentwith the Charter and international lawrdquo 72 In addition we can refer to commentssent by governments to the Secretary-General contesting the adoption of unilateralsanctions73

69 Voting result for UNGA Res 5110370 See the statements made by Cuba on behalf of the NAM in the UNGA Third

Committee AC366SR44 (15 November 2011) para59 AC367SR44 (26November 2012) para7 AC368SR49 (21 November 2013) para47 AC368SR43 (7 November 2013) para11 AC369SR44 (13 November 2014)para17 AC370SR48 (17 November 2015) para7

71 Statements made on behalf of the on behalf of the G77 and China in the UNGASecond Committee AC260SR17 (31 October 2005) para24 (Jamaica) AC268SR20 (24 October 2013) para26 (Fiji)

72 Statements made by Malaysia on behalf of the NAM in the UNGA ThirdCommittee AC359SR48 (19 November 2004) para21 AC360SR45 (21November 2005) para49

73 Reports of the UN Secretary-General on Unilateral economic measures as a meansof political and economic coercion against developing countries A64179 (27 July2009) A66138 (14 July 2011) A70152 (16 July 2015)



24 On the other side of the spectrum developed States cast negative votes or ab-stain According to the US the draft resolutions on ldquoHuman rights and unilateral co-ercive measuresrdquo have

no basis in international law and [do] not serve to advance the cause of humanrights [ ] The [resolutions challenge] the sovereign right of States to conducttheir economic relations freely and to protect legitimate national interests in-cluding by taking actions in response to national security concerns The [resolu-tions] undermine the ability of the international community to respond to actsthat were offensive to international norms Unilateral and multilateral sanctionswere a legitimate means to achieve foreign policy security and other nationaland international objectives The United States was not alone in that view orpractice74

By describing sanctions as part of a Statersquos right to conduct its economic relationsfreely the US is implicitly referring to the Lotus principle The US justifies its nega-tive vote against draft resolutions on ldquoUnilateral economic measures as a means of po-litical and economic coercion against developing countriesrdquo in a similar fashion75

25 Although the EU Member States do not explain their vote against the resolu-tions on ldquoHuman rights and unilateral coercive measuresrdquo in the context of the sec-ond topic at hand the EU has constantly stated that

economic measures should be compatible with the principles of internationallaw as set out in the Charter of the United Nations including in the wider sensethe principles of the multilateral trading system and the rules of the WorldTrade Organization76

74 Statement made by the US before the UNGA Third Committee AC370SR52(20 November 2015) para32 For similar statements by the US before the UNGAThird Committee see also AC364SR42 (12 November 2009) para56 AC366SR44 (15 November 2011) para60 AC367SR44 (26 November 2012)para12 AC368SR49 (21 November 2013) para54 AC369SR52 (24November 2014) para33

75 See statements by the US before the UNGA Second Committee AC258SR36(9 December 2003) para4 AC264SR41 (9 December 2009) para7 AC266SR37 (1 December 2011) para2 AC268SR36 (14 November 2013)para8 AC270SR31 (12 November 2015) para20 See also Statement madebefore the General Assembly A62PV78 (19 December 2007) at 11-12 (US)

76 Statement made on behalf of the EU before the UNGA Second Committee AC260SR33 (2 December 2005) para13 (UK speaking on behalf of the EU) Similarstatements also made on behalf of the EU in the Second Committee AC254SR43 (24 November 1999) para33 (Finland) specifying that ldquoany coercive eco-nomic measure should be condemnedrdquo AC256SR36 (4 December 2001)para5 (Belgium) here the EU also specified that ldquoUnilateral measures should notbe taken against any Member Staterdquo AC258SR36 (9 December 2003) para5



Up until 2005 the EU explained that it abstained during the votes on the secondtopic because

The draft resolution unfortunately focused almost exclusively on the adoptionof unilateral coercive measures against developing countries such inadmissiblemeasures should not be taken against any member of the internationalcommunity77

However since 2007 the EU states that

unilateral economic measures [are] admissible in certain circumstances in par-ticular when necessary in order to fight terrorism and the proliferation of weap-ons of mass destruction or to uphold respect for human rights democracy therule of law and good governance78

Though it is unclear why the EU changed its justification this shift could explainwhy (at least since 2007) the regional organization votes against the resolutions onldquoHuman rights and unilateral coercive measuresrdquo as these resolutions are critical ofthe adoption of sanctions to enforce human rights which the EU considers as an ad-missible policy

26 Given the content of the resolutions and the claims made by UN MemberStates during the debates it would appear that a large group of States deem UCM tobe contrary to international law because of their negative impact on inter alia humanrights and the right to development as well as the fact that they run counter to funda-mental principles of international law79 including UN Charter principles such as thesovereign equality of States and the peaceful settlement of disputes Further UCM

(Italy) AC262SR28 (16 November 2007) para29 (Portugal) AC264SR41(9 December 2009) para10 (Sweden) AC266SR37 (1 December 2011)para6 (Poland) AC268SR36 (14 November 2013) para9 (Lithuania) AC270SR31 (12 November 2015) para21 (Luxembourg)

77 Statement made on behalf of the EU before the UNGA Second Committee AC260SR33 (2 December 2005) para13 (UK speaking on behalf of the EU) Forsimilar statements made on behalf of the EU see UNGA Second Committee AC252SR47 (4 December 1997) para18 (Luxembourg) AC254SR43 (24November 1999) para33 (Finland) AC256SR36 (4 December 2001) para5(Belgium) AC258SR36 (9 December 2003) para5 (Italy)

78 Statement made on behalf of the EU before the UNGA Second Committee AC262SR28 (16 November 2007) para30 (Portugal speaking on behalf of the EU)Other statements made on behalf of the EU in the UNGA Second Committee AC264SR41 (9 December 2009) para10 (Sweden) AC266SR37 (1December 2011) para6 (Poland) AC268SR36 (14 November 2013) para9(Lithuania) AC270SR31 (12 November 2015) para21 (Luxembourg)

79 See in particular GA Res 69180 (18 December 2014) Operative Clause 1 See alsostatements made by Iran before the UNGA Third Committee AC351SR52 (26November 1996) para12 and AC368SR35 (31 October 2013) para72



are argued to be illegal because they do not emanate from a Security Council decisionhence they are not multilateral80 The coercive nature of these measures stems fromthe fact that they aim at pressuring the target State to change a national policy thatfalls within its sovereign rights this is the case even when the sanctions are used to en-force human rights According to some Member States human rights and terrorismare used as a pretext to justify economic coercion and intervention81 Resolution 71193 explicitly ldquocondemns the inclusion of Members States in unilateral lists underfalse pretexts [ ] including false allegations of terrorism sponsorshiprdquo82 It is there-fore the source of the sanctions their negative effects on rights and principles underinternational law and the fear of abuse that give rise to their condemnation

27 The EU and the US do not explicitly deny the coercive nature of unilateralsanctions If at first the EU stated that such measures are inadmissible83 it now statesthat they are ldquoadmissible in certain circumstancesrdquo84 The US on the other hand hasargued that it is not a question of ldquocoercion against developing countries but of ex-tending a hand of support to their peoples when their Governments have coercedthemrdquo85 These measuresrsquo legality stems from the right of States to conduct their eco-nomic relations freely and from their legitimate policy objectives

28 The debate is therefore centred on whether or not these measures of coercionare compatible with international law and in particular with Article 41 of the UNCharter whereby the Security Council can adopt coercive measures86 Statements

80 Statements made by Mexico and Russia before the UNGA Second Committee AC266SR35 (17 November 2011) para3 (Mexico) and AC270SR31(12 November 2015) para25 (Russia) See also Reports of the UN Secretary-General on Unilateral economic measures as a means of political and economic coer-cion against developing countries A68218 (29 July 2013) responses received fromBrazil at 5 and from Qatar at 11 response received from Paraguay in A70152 (16July 2015) at 12On this issue see also debate at the Security Council in particularstatements made by Argentina China and Russia SPV7323 (25 November 2014)at 13 (Argentina) 14 (China) and 19 (Russia) See also Ronzitti above n13 18-21

81 Statements made by China and the Democratic Peoplersquos Republic of Korea beforethe UNGA Third Committee AC351SR47 (21 November 1996) paras 70and 79 (China) and para6 (Democratic Peoplersquos Republic of Korea) Statementmade by Eritrea before the UNGA A67PV19 (1 October 2012) at 23Statement made by Syria before the UNGA Second Committee AC270SR31(12 November 2015) paras28-29

82 GA Res 71193 above n7 Operative Clause 383 See above para25 and n77 with accompanying text84 See above para25 and n78 with accompanying text85 Speech by the US before the UN GA A60PV68 (22 December 2005) 786 According to the US the UN Charter provides further proof that economic coer-

cion is permissible under international law see statement made before the UNGASecond Committee AC266SR37 (1 December 2011) para5



issued within the UN arena demonstrate that there is indeed a clear divide betweenldquodevelopedrdquo and ldquodevelopingrdquo States The claims seem to be reflected in State practiceoutside the UN87 and also confirm the political nature of sanctions they are an ac-cepted foreign policy tool for the States or group of States that adopt them and aremeasures contrary to international law according to the States that are targeted as wellas the group they belong to88

29 Having briefly provided an overview of the content of the resolutions and theexplanations of the votes we will now turn to the crux of the matter and evaluatethese resolutionsrsquo normative value and whether or not the resolutions contribute tothe development of a prohibition of economic UCM

IIIB The absence of an emerging prohibition30 As we saw in Part II of this paper the majority opinion in doctrine is that there isno autonomous norm prohibiting economic coercion Such practice is consideredpermissible to the extent that it does not violate the principle of non-intervention orthat it does not violate other rules of customary international law or applicable treatyrules Based on the previous discussion we seek to determine if an autonomous pro-hibition of economic coercion has emerged89

31 Given the political nature of the General Assembly and its lack of legislativepower certain scholars have expressed scepticism about providing normative value toGA resolutions90 Nevertheless it is accepted that they can influence internationallaw by inter alia crystallizing emerging custom or by acting as a ldquofocal point for the

87 In the sense that the EU and the US are both active in adopting sanctions and theNAM Member States commit to refraining from adopting unilateral coercive mea-sures (see below Parts IV (A) and IV (B))

88 That being said inconsistencies can be found within the group of developing StatesFor instance Mauritius spoke in favour of the sanctions against adopted Myanmarwhere the military junta has been accused of using violence against the civilian pop-ulation see statement made before the UNGA A62PV10 (28 September 2007)at 19 Further regional organizations of the global South mainly the African Unionand ECOWAS adopt sanctions However these are (in principle) only againstMember States and would thus be of a multilateral nature as explained abovepara3

89 As suggested by SR Jazairy recall above para3 and accompanying text90 See eg DHN Johnson The Effect of Resolutions of the General Assembly of the

United Nations 32 BYBIL (1956) Stephen M Schwebel The Effect ofResolutions of the UN General Assembly on Customary International Law 73ASIL Proceedings (1979)



future developmentrdquo of customary international law91 provided certain conditionsare met92

32 In the context of its conclusions on the identification of customary interna-tional law the ILCrsquos Draft Conclusion 12(2) acknowledges that ldquoA resolutionadopted by an international organization or at an intergovernmental conference mayprovide evidence for determining the existence and content of a rule of customary in-ternational lawrdquo93 In addition Draft Conclusion 4(2) reads ldquoIn certain cases thepractice of international organizations also contributes to the formation or expres-sion or creation of rules of customary international lawrdquo94 Concerning UNGA reso-lutions the ILC called for caution when determining whether they create customaryinternational law95 For instance one should take into account what States actuallymean when they adopt a resolution and hence pay attention to the resolutionrsquos word-ing the circumstances surrounding its adoption as well as the reasons behind thevote96 The voting figure can also be of importancemdasha resolution adopted by a two-third majority will carry less weight than one adopted unanimously97 it is similarly

91 Blaine Sloan General Assembly Resolutions Revisited 58 BYBIL (1987) 68-71 re-ferring to Judge de Arechaga See also Rosalyn Higgins The Development ofInternational Law through the Political Organs of the United Nations (1963) JorgeCastaneda Legal Effects of United Nations Resolutions (1969) 4-5 GaetanoArangio-Ruiz The UN Declaration on Friendly Relations and the System of theSources of International Law (1979)

92 International Law Association (ILA) Final Report of the Committee on theFormation of Customary (General) International Law (London Conference 2000)55-65 See also Institute of International Law Conclusions of the ThirteenthCommission on The Elaboration of General Multilateral Conventions and of Non-contractual Instruments Having a Normative Function or Objective ldquoResolutionsof the General Assembly of the United Nationsrdquo (Cairo 1987)

93 ILC Fourth Report on identification of customary international law (2016) (httplegalunorgdocssymbolfrac14ACN4695) 22 Draft Conclusion 12(2) See alsoILC Third report on identification of customary international law (2015) (httplegalunorgdocssymbolfrac14ACN4682) 31-41 notably para45 The ILCrsquos ap-proach has been considered too restrictive and ldquostate-centricrdquo by some see RossanaDeplano Assessing the Role of Resolutions in the ILC Draft Conclusions onIdentification of Customary International Law Substantive and MethodologicalIssues International Organizations Law Review (forthcoming 2017) (httpspapersssrncomsol3paperscfmabstract_idfrac142972639) and Jed Odermatt TheDevelopment of Customary International Law by International Organizations 66ICLQ (2017)

94 ILC Fourth Report on identification of customary international law above n9321

95 ILC Third report on identification of customary international law above n93 32para47

96 Ibid 33 para47 and 34 para4897 Ibid 35 para49



recommended to observe whether the rule is followed in the practice of States98

Commenting on the ILCrsquos draft conclusions a report written for the Informal ExpertGroup on Customary International Law of the AALCO suggested inter alia that

the practice of an international organization can count toward the formation orexpression of customary international law only if it reflects the practice and posi-tions of the member States and can be counted only with due regard to thestrength of the support of its membership and the representativeness of thepractice among the States in the international community99

The report also called for the Commission to clarify when resolutions will count asevidence in the identification of custom ldquoin order to ensure better quality in and bet-ter respect for the exercise of sovereigntyrdquo and to prevent ldquoresolutions of a political na-turerdquo to be considered ldquoas constituent material for legally binding rules undercustomary international lawrdquo100

33 Moreover and as is well known the ICJ has confirmed that General Assemblyresolutions can potentially possess normative value101 In its advisory opinion on theLegality of the Threat or Use of Nuclear Weapons the ICJ established that a resolutioncan provide ldquoevidence of a rule or the emergence of an opinio jurisrdquo which can be de-termined following an examination of ldquoits content and the conditions of its adoptionrdquoas well as an examination of ldquowhether an opinio juris exists as to its normative charac-terrdquo102 A resolution will not have normative value if it is adopted by a divided voteand if the alleged rule refers to general principles of international law rather than to amore specific one103 A further obstacle to a resolutionrsquos normative value would becontradictory State practice outside the United Nations104 In addition we can referto the criteria outlined by Professor Dupuy acting as Sole Arbitrator in the Texaco v

98 Ibid para5199 Sienho Yee Report on the ILC Project on ldquoIdentification of Customary

International Lawrdquo 14 Chinese JIL (2015) para33 see also para34 In this man-ner the report supports the State-centric approach

100 Ibid 398 Comment L on the use of the resolutions of the United Nations GeneralAssembly and similar organizations This comment illustrates AALCOrsquos concernthat State sovereignty be reflected in the ILCrsquos draft conclusions see ibid para15

101 Legal Consequences for States of the Continued Presence of South Africa inNamibia (South West Africa) notwithstanding Security Council Resolution 276Advisory Opinion ICJ Reports 1971 16 31 para52 Military and ParamilitaryActivities above n22 paras99-100 195 and 204 Legal Consequences of theConstruction of a Wall in the Occupied Palestinian Territory Advisory OpinionICJ Reports 2004 136 paras86-88

102 Legality of the Threat or Use of Nuclear Weapons Advisory Opinion ICJ Reports1996 226 para70

103 Ibid paras71-72104 Ibid para73



Libya case (1978) for establishing a resolutionrsquos normative value the type of resolu-tion the votes and their circumstances and the legal provisions105 In order to bebinding the resolutions must be accepted as such by the UN Member States Even ifa majority adopts the text it needs to represent various groups of States106 With re-gard to the content of the resolutions Professor Dupuy made the distinction betweenprovisions asserting a right accepted by the majority of States and provisions introduc-ing new principles

34 Turning to the topic of our study the resolutions addressed above do not sat-isfy the required criteria for establishing the formation of an autonomous customarynorm prohibiting economic coercion or even an emerging prohibition First thougha large majority adopts the resolutions it only represents slightly above two-thirds ofthe Member States thus carrying less quantitative weight In addition the vote re-mains heavily divided especially in the case of the topic ldquoHuman rights and unilateralcoercive measuresrdquo and the majority is insufficiently representative of a variety ofStates Concerning the resolutions on ldquoUnilateral economic measures as a means ofpolitical and economic coercion against developing countriesrdquo though there are onlytwo negative votes on behalf of the US and Israel there are over fifty abstentions em-anating from the EU Member States and their allies As the explanation of the absten-tion is ambiguous it cannot count as inaction and therefore as a form of acceptanceas law Further given the EUrsquos practice of adopting restrictive measures one could ar-gue with difficulty that the organization believes that UCM are contrary to interna-tional law107

35 Second the objections to sanctions do not refer to a specific prohibition butrather to general principles of international law and the UN Charter such as the prin-ciple of non-intervention Therefore because of the broad nature of the condemna-tions it is unclear exactly what the scope of a potential prohibition would beMeasures of coercion are mainly condemned because of their effects on human rightsor on the targeted Statersquos economy States appear to be objecting to the misuse of

105 Texaco v Libya above n57 29 para86106 Ibid107 In addition the EU explains that ldquoAll restrictive measures adopted by the EU

are fully compliant with obligations under international law including thosepertaining to human rights and fundamental freedomsrdquo (emphasis in original) inSanctions how and when the EU adopts restrictive measures (httpwwwconsiliumeuropaeuenpoliciessanctions) See also Council of the EU Guidelines onimplementation and evaluation of restrictive measures (sanctions) in the frameworkof the EU Common Foreign and Security Policy Doc Number ST 11205 2012INIT (15 June 2012) para9 ldquoThe introduction and implementation of restrictivemeasures must always be in accordance with international law They must respecthuman rights and fundamental freedoms in particular due process and the right toan effective remedy The measures imposed must always be proportionate to theirobjectiverdquo



UCM The only clear legal claim would be that coercive measures cannot be adoptedwithout a UNSC mandate but this is immediately countered by US and EUrsquos votingpatterns and their consistent adoption of non-UN sanctions

36 Finally though the resolutions are repeatedly adopted108 repetition is not gen-erally considered to be a sufficient basis for arguing that the provisions of a resolutionrepresent custom109 Consequently the most that can be said about the texts is thatthey demonstrate a majority of the international communityrsquos desire to if not pro-hibit then at least regulate resort to UCM and restrict their use Indeed the repeatedadoption of these resolutions can be understood as an attempt to ldquoestablish interna-tional standards of behaviourrdquo110 by the large majority of States that vote in their fa-vor Through these resolutions developing States are expressing their expectationthat States refrain from adopting unilateral coercive measures in their international re-lations111 This expectation is however not reciprocated by the developed States inlight of their negative votes andor abstentions

37 With these considerations in mind the present author submits that it wouldbe unsatisfactory to end the analysis here the resolutions clearly illustrate tension be-tween the aspirations of developing countries to restrict the use of economic coercioneven when their alleged aim is to enforce compliance with essential internationalnorms and the continuing practice of developed States112 The debates on UCMwithin the United Nations seem to demonstrate that the dispute on the legality ofeconomic coercion can also be read as a dispute on the legitimacy of these measuresOn the one hand developed Statesmdashsuch as the US and EU Member Statesmdashjustifyeconomic coercion as among other things a legitimate means to achieve foreign pol-icy objectives and enforce community norms On the other hand developingStatesmdashthrough the Group of 77 and the Non-Aligned Movementmdashcondemn eco-nomic coercion by submitting that these acts inter alia constitute a form of wrongfulintervention aimed at pressuring them into changing their internal policies Thoughquestions of legality are separate from considerations of legitimacy if a State views apractice as illegitimate it may develop legal arguments as a means to contest the unde-sired behaviour This appears to be the case regarding UCM as the discussions at the

108 See above paras19 and 20109 ILA Final Report of the Committee on the Formation of Customary (General)

International Law above n92 59 Higgins above n91 6 ILC Third Report onIdentification of Customary International Law above n93 40 para53

110 Deplano above n93 at 20 citing Thomas M Franck and Mark M MunansanguThe New International Economic Order International Law in the MakingUNITAR Policy and Efficacy Studies n6 (1982)

111 Although their own practice may sometimes be at odds with this expectation seeabove n88 and accompanying text

112 Similarly see Legality of the Threat or Use of Nuclear Weapons above n102para73 See also Jamnejad and Wood above n26 370-371



UN seem to be influenced by political considerations and lead to a stalemate that hasimportant implications for the development of international law113

38 Thus having demonstrated the existence of a legal conundrum pertaining toUCM in the next section we address the political issues it reflects by focusing on thesocial factorsmdashmainly State identities and values114mdashthat contribute to its construc-tion Indeed as demonstrated in Part II commentators are aware of the objections toeconomic coercion yet struggle to properly address them accordingly there is theneed for more clarity

IV The legal claims on UCM between justifying enforcementand resisting intervention39 If our objective is to address the stalemate resulting from the legal claims of both

groups then it is important to understand what led to its creation in the first placeTo quote Koskenniemi legal arguments do not descend from heaven but are theproduct of a grouprsquos history and socialization115 Choosing to apprehend the legal ar-guments of both groups from a sociological perspective it is submitted that variablessuch as ldquonormsrdquo (or values) and ldquoidentityrdquo can help explain these rival arguments andwhat is at stake for both parties We can also refer to Jouannet according to whomcertain conflicts in international law are existential their source lies in issues related toculture and identity116 She has furthermore written that ldquoall law transcribes the val-ues of those that create it it is not a substance-less form but the translation of the val-ues of the society it regulatesrdquo117 To quote Koskenniemi again international lawldquocontains arguments and positions precedents and principles that may be employedto express contrasting interests or values [ ]rdquo118 It follows that if a conflict on whatthe law should be arises this may very well be caused by conflicting values (based onculture and ethical norms) and identities According to Hopf ldquoidentities strongly im-ply a particular set of interests or preferences with respect to choices of action in

113 Oisin Suttle Law as Deliberative Discourse the Politics of International LegalArgumentmdashSocial Theory With Historical Illustrations 12 Journal of InternationalLaw and International Relations at 176 ldquothe dilemma is political but it is throughlegal discourse that the dilemma is constitutedrdquo

114 Recall Hirsch above n12 and accompanying text115 Martti Koskenniemi From Apology to Utopia The Structure of the International

Legal Argument (2007) 11116 Emmanuelle Jouannet Universalism and Imperialism The True-False Paradox of

International Law 18 EJIL (2007) 402117 Ibid 387118 Martti Koskenniemi International Law in the World of Ideas in James Crawford

and Martti Koskenniemi (eds) The Cambridge Companion to International Law(2012) 59



particular domains and with respect to particular actorsrdquo119 This reasoning can alsoapply to international law in the sense that a particular identity will imply a particularinclination for what should be legal or illegal Norms are considered as values and asldquoexpected standards of behaviour created within a given social settingrdquo120 As lawrsquospurpose is to regulate behaviour when a State claims that certain conduct is contraryto international law it can also be using legal principles to argue that the behaviour isnot conform to social expectations or to the ideals the community of States shouldstrive to reach121

40 In the section that follows we will assess the norms and identities of the USand of the EU whose voting pattern in the GA and practice block the emergence of aprohibition of economic coercion We will then turn to our second group of Stateswhich contains the G77 and China and the NAM who constantly submit the resolu-tions to the Second and Third Committees and who vote in their favor As the posi-tions as well as to a certain extent the membership of the G77 and China and theNAM overlap122 we will only focus on the latter group By taking into account dis-course from both groups123 we will assess how each group defines itself in relation tothe other group (identity) and identify what each group considers to be appropriatebehavior as well as the values it believes international law should protect (social andethical norms)

119 Ted Hopf The Promise of Constructivism in International Relations Theory 23International Security (1998) 175 See also David P Houghton Reinvigorating theStudy of Foreign Policy Decision Making Toward a Constructivist Approach 3Foreign Policy Analysis (2007) 29-30

120 Jutta Brunnee and Stephan J Toope Constructivism and International Law inJeffrey L Dunoff and Mark A Pollack (eds) Interdisciplinary Perspectives onInternational Law and International Relations The State of the Art (2012) at 1 seealso Peter Katzenstein Introduction Alternative Perspectives on National Securityin Peter Katzenstein (ed) The Culture of National Security Norms and Identityin World Politics (1996) 5

121 Moshe Hirsch The Impact of the Advisory Opinion on Israelrsquos Future PolicyInternational Relations Perspective 1 Journal of International Law andInternational Relations (20042005) 338-339

122 China is however not a member of the NAM We will nevertheless incorporate itsposition on UCM in section IVB below

123 On the link between identity and discourse see Ted Hopf Social Construction ofInternational Politics (2002) 1 ldquoeach identity has associated with it a collection ofdiscursive practicesrdquo see also Hirsch above n12 97 ldquolanguage [ ] and the con-struction of social identity are inextricably linked [ ] Collective narratives andmemories often contribute to the emergence and maintenance of social identitiesrdquo



IVA Coercion as legitimate enforcement the United States andthe European Union41 We begin with the US which defines itself as a world leader responsible for pro-moting values that will make the world a better place These are typically linked to de-mocracy human rights and the rule of law It would appear logical that sanctions area necessary and legitimate tool for any State that considers itself a world leader and be-lieves that it should promote specific values124 As mentioned above the US consis-tently states that unilateral economic measures constitute a sovereign right Sanctionsare an important foreign policy tool designed to respond to threats to US interests125

including national security foreign policy and economy The concept of ldquothreatrdquo hasa very broad meaning in American legislation as a threat can constitute human rightsviolations in foreign countries This far-reaching definition can be explained by thefact that if the US aims to promote values such as democracy and human rights it isbecause these are viewed as not only serving their interests but also as necessary forthe international community126 In this sense sanctions are used to demonstrate theUS ldquocommitment to advancing respect for human rights [and] safeguarding demo-cratic institutionsrdquo127 Acts of economic coercion are permissible in as much as theyseek to inter alia obtain ldquonoble objectivesrdquo on behalf of the international commu-nity128 Individuals and entities that are targeted by American sanctions have been de-scribed as ldquobadrdquo or ldquomalignrdquo actors129 The US has a ldquolike-minded partnerrdquo130 theEU which shares similar values and which is not against adopting sanctions which itcalls ldquorestrictive measuresrdquo

124 US Department of the Treasury Remarks of Secretary Lew on the Evolution ofSanctions and Lessons for the Future at the Carnegie Endowment for InternationalPeace (30 March 2016) (httpswwwtreasurygovpress-centerpress-releasesPagesjl0398aspx) (hereafter ldquoRemarks of Secretary Lewrdquo) ldquoThe power of our sanctions isinextricably linked to our leadership role in the worldrdquo

125 US Department of the Treasury Remarks of Secretary Lew above n124 USDepartment of Treasury About OFAC (Office of Foreign Assets Control) (httpswwwtreasurygovaboutorganizational-structureofficesPagesOffice-of-Foreign-Assets-Controlaspx) US Department of State Economic Sanctions Policy andImplementation (httpwwwstategoveebtfsspi)

126 Jeffrey Goldberg The Obama Doctrine The Atlantic (April 2016) (httpwwwtheatlanticcommagazinearchive201604the-obama-doctrine471525) see alsoUS Department of the Treasury Remarks of Secretary Lew above n124

127 US Department of State Venezuela-Related sanctions (httpwwwstategoveebtfsspivenezuelaindexhtm)

128 See references above n75129 US Department of the Treasury Remarks of Secretary Lew above n124130 Ibid



42 It is widely recognized that the EU also sees itself as the promoter of humanrights and democratic values in international relations131 The region differs from theUS in the sense that it does not position itself as a world leader but instead defines it-self as a partner with key international players it therefore develops strategic partner-ships through which it seeks to promote human rights norms and democraticvalues132 The actions that trigger the implementation of restrictive measures are notnecessarily phrased in terms of ldquothreatrdquo but as policies that the EU perceives as con-trary to international law or ethical norms133 The aim of the EUrsquos restrictive mea-sures is to minimize negative effects of ldquoundesirablerdquo policies and to encourage achange in behaviour134 Since the EU uses elements of soft power as a means to influ-ence world affairs and promote its values it needs to maintain relations with otherStates and in particular those it wants to influence For these reasons the EU usessanctions strategically arguing that they are permissible in certain circumstances135

but that they cannot be used in isolation The desire for partnership and the need tobe strategic can provide an explanation for the ambiguity of the EUrsquos voting patternin the UN debates on UCM The EU cannot justify coercion in the same way as theUS as this would place it against the States it wants to develop partnerships with andyet the regional organization cannot entirely side with developing countries as thiswould be inconsistent with its practice136 and would place it in opposition to the US

131 Evidenced by official documents Consolidated Version of the Treaty on the EU(2012) OJ C32615 (hereafter ldquoTEUrdquo) Articles 2 3(5) and 21 See also EUExternal Action Service (EEAS) Foreign Affairs (httpcollectionsinternetmemoryorghaeucontent20160313172652httpeeaseuropaeucfspindex_enhtm)ldquoTo influence policies violating international law or human rights or policies disre-spectful of the rule of law or democratic principles the EU has designed sanctions ofa diplomatic or economic naturerdquo Restrictive measures play a key role in achievingforeign policy goals as described here EEAS Sanctions policy (httpeeaseuropaeutopicssanctions-policy423sanctions-policy_en) ldquoSanctions are one of the EUrsquostools to promote the objectives of the [CFSP] peace democracy and the respect forthe rule of law human rights and international lawrdquo On EU identity in relation torestrictive measures see Hirsch above n12 106-116

132 Based on TEU above n131 Articles 21 and 22133 European Commission ldquoRestrictive measuresrdquo (Spring 2008) (httpeeaseuropaeu

cfspsanctionsdocsindex_enpdf accessed 2 June 2016) 1 ldquoSanctions are an in-strument of a diplomatic or economic nature which seek to bring about a change inactivities or policies such as violations of international law or human rights or poli-cies that do not respect the rule of law or democratic principlesrdquo

134 Ibid 6 See also EEAS Sanctions policy above n131135 Recall n107 above and accompanying text136 This is quite different from the Russian approach to sanctions During the Cold

War the USSR condemned the adoption of unilateral sanctions as a means to winover developing countries even though the Soviet Union also adopted such mea-sures See eg Mergen Doraev ldquoThe Memory Effectrdquo of Economic Sanctions



The EU is therefore careful to state that sanctions are ldquoadmissible in certaincircumstancesrdquo but that they should be adopted within a comprehensive policyapproach

43 The desire to enforce particular values is perceptible in the reasons given by theEU and the US as justifications for the UCM adopted against amongst othersMyanmar Syria Belarus and Russia The EU first adopted restrictive measuresagainst Myanmar for severe violations of human rights notably the repression of civiland political rights137 they were subsequently renewed because there had been insuf-ficient progress in the situation of human rights138 As the situation improved thesanctions were progressively lifted but at present an arms embargo remains inplace139 Whereas trade and financial sanctions have been lifted the EU sanctionsagainst goods that may be used in internal repression have been renewed140 Like theEU the US implemented sanctions in response to severe political repression Thesanctions were adopted in 1997141 and adapted over time as Myanmar progressivelyadvanced democracy culminating in elections in November 2015 Today after al-most 20 years the US sanctions against Myanmar have been lifted including thearms embargo142

against Russia Opposing Approaches to the Legality of Unilateral Sanctions ClashAgain 37 University of Pennsylvania JIL (2015) 355

137 Common Position 96635CFSP of 28 October 1996 defined by the Council onthe basis of Article J2 of the Treaty on European Union on BurmaMyanmar OJL2871 (1996)

138 Council Common Position 2002310CFSP of 22 April 2002 extending CommonPosition 96635CFSP on BurmaMyanmar OJ L1071 (2002) para2

139 Council Decision (CFSP) 2016627 of 21 April 2016 amending Decision 2013184CFSP concerning restrictive measures against MyanmarBurma OJ L10623(2016) to be read in conjunction with Council Decision 2013184CFSP of 22April 2013 concerning restrictive measures against MyanmarBurma and repealingDecision 2010232CFSP OJ L11175 (2013)

140 Michael OrsquoKane EU renews BurmaMyanmar sanctions for 1 year EuropeanSanctions (26 April 2017) (httpseuropeansanctionscom20170426eu-renews-burmamyanmar-sanctions-for-1-year)

141 Executive Order (ldquoEOrdquo) 13047 (22 May 1997) (httpswwwtreasurygovresource-centersanctionsDocuments13047pdf) progressively adapted by EO13310 (July 30 2003) (httpswwwtreasurygovresource-centersanctionsDocuments13310pdf) EO 13448 (October 23 2007) (httpswwwtreasurygovresource-centersanctionsDocuments13448pdf) EO 13619 (July 13 2012)(httpswwwtreasurygovresource-centersanctionsProgramsDocuments13619pdf)

142 EO ldquoTermination of Emergency with Respect to the Actions and Policies of theGovernment of Burmardquo (httpswwwtreasurygovresource-centersanctionsProgramsDocumentsburma_eo_terminationpdf)



44 EU restrictive measures were implemented against Syria for acts of political re-pression in 2011 and are still in force143 the EU has affirmed that it ldquowould continueimposing and enforcing sanctions targeting the regime and its supporters as long as re-pression continuesrdquo144 Similarly US sanctions were adopted against Syria in reactionto the governmentrsquos ldquohuman rights abuses including those related to the repressionof the people of Syriardquo145

45 With regard to the EU restrictive measures against Belarus these have been im-plemented in response to Belarusrsquo alleged imprisonment of political activists and fail-ure to hold free and fair elections146 hence for not respecting democratic principlesIn February 2016 the EU lifted a significant amount of its restrictive measures citingldquoimproving EU-Belarus relationsrdquo147 However the sanctions that had remained inplace were renewed a year later148 US sanctions were adopted against Belarus in

143 Council Decision 2011273CFSP of 9 May 2011 concerning restrictive measuresagainst Syria OJ L12111 (2011) subsequently amended by Council Decision2012739CFSP of 29 November 2012 concerning restrictive measures againstSyria and repealing Decision 2011782CFSP OJ L33021 (2012) and CouncilDecision 2013255CFSP of 31 May 2013 concerning restrictive measures againstSyria OJ L4714 (2013) which remains in force see Council Decision (CFSP)2017917 of 29 May 2017 amending Decision 2013255CFSP concerning restric-tive measures against Syria OJ L31962 (2017)

144 Council of the EU Press Release Syria EU extends sanctions against the regime byone year (27 May 2016) (httpwwwconsiliumeuropaeuenpresspress-releases20160527-syria-eu-extends-sanctions)

145 EO 13572 (May 3 2011) (httpswwwtreasurygovresource-centersanctionsProgramsDocuments13572pdf) supplemented by EO 13573 (May 20 2011)(httpswwwtreasurygovresource-centersanctionsProgramsDocuments13573pdf) in view of the ldquocontinuing escalation of violence against the Syrian peoplerdquoand EO 13582 (August 22 2011) (httpswwwtreasurygovresource-centersanctionsProgramsDocumentssyria_eo_08182011pdf)

146 Council Common Position 2004661CFSP of 24 September 2004 concerning re-strictive measures against certain officials of Belarus OJ L30167 (2004) repealedby Council Common Position 2006276CFSP of 10 April 2006 concerning re-strictive measures against certain officials of Belarus and repealing CommonPosition 2004661CFSP OJ L1015 (2006) Further restrictive measures were im-posed in 2006 2010 and 2012 for alleged violations of electoral standards

147 Council of the EU Council Conclusions on Belarus (15 February 2016) (httpwwwconsiliumeuropaeuenpresspress-releases20160215-fac-belarus-conclusionsutm_sourcefrac14dsms-autoamputm_mediumfrac14emailamputm_campaignfrac14CouncilthornconclusionsthornonthornBelarus)

148 Council Decision (CFSP) 2017350 of 27 February 2017 amending Decision2012642CFSP concerning restrictive measures against Belarus OJ L 5081(2017) See also Michael OrsquoKane EU renews Belarus sanctions EuropeanSanctions (28 February 2017) (httpseuropeansanctionscom20170228eu-renews-belarus-sanctions-2)



2006 for policies that undermine democratic process and human rights abuses relatedto political repression149 these measures have been promulgated150

46 Concerning sanctions against Russia in 2012 the US Congress adopted theMagnitsky Act which targets individuals who are inter alia ldquoresponsible for extraju-dicial killings torture or other human rights violations committed against individualsseeking to promote human rights or to expose illegal activity carried out by officials ofthe government of the Russian Federationrdquo151 The scope of the Act was enlarged byCongress to target human rights abuses worldwide152 Additionally since 2014 USsanctions153 and EU restrictive measures154 have been implemented against Russia inorder to condemn its violation of Ukrainersquos territorial integrity and sovereignty andits perceived interference in the conflict in Eastern Ukraine In adopting these mea-sures the European Council stated that the aim is to send a ldquopowerful signal to theleaders of the Russian Federation destabilizing Ukraine or any other Eastern

149 EO 13405 (20 June 2006) (httpswwwtreasurygovresource-centersanctionsDocuments13405pdf)

150 White House Press Release (10 June 2016) (httpswwwwhitehousegovthe-press-office20160610message-continuation-national-emergency-respect-actions-and-policies)

151 HR 6156 112th Congress Russia and Moldova Jackson-Vanik Repeal and SergeiMagnitsky Rule of Law Accountability Act of 2012 (December 12 2012) (httpswwwcongressgovbill112th-congresshouse-bill6156qfrac1422search223A[22HRthorn615622]amprfrac142) Note that Canada Lithuania Estonia and the UnitedKingdom have adopted their own ldquoMagnitsky-typerdquo sanctions See MichaelOrsquoKane Canadian government endorses Magnitsky sanctions bill EuropeanSanctions (22 May 2017) (httpseuropeansanctionscom20170522canadian-government-endorses-magnitsky-sanctions-bill) Maya Lester Lithuanian parlia-ment introduces Magnitsky sanctions bill European sanctions (28 April 2017)(httpseuropeansanctionscom20170428lithuanian-parliament-introduces-magnitsky-sanctions-bill) Michael OrsquoKane Estonia introduces Magnitsky-style sanc-tions on human rights violators European sanctions (19 December 2016) (httpseuropeansanctionscom20161219estonia-introduces-magnitsky-style-sanctions-on-human-rights-violators) Michael OrsquoKane UK set to vote on ldquoMagnitskyrdquo sanc-tions against human rights violators European sanctions (5 December 2016)(httpseuropeansanctionscom20161205uk-set-to-vote-on-magnitsky-sanctions-against-human-rights-violators)

152 S 284 114th Congress Global Magnitsky Human Rights Accountability Act(17 December 2016) (httpswwwcongressgovbill114th-congresssenate-bill284)

153 EO 13660 (6 March 2014) EO 13661 (16 March 2014) EO 13662 (20 March2016) (httpswwwstategoveebtfsspiukrainerussia)

154 Council Decision 2014145CFSP of 17 March 2014 concerning restrictive mea-sures in respect of actions undermining or threatening the territorial integrity sover-eignty and independence of Ukraine OJ L 7816 (2014) para4 Council Decision2014512CFSP of 31 July 2014 concerning restrictive measures in view of Russiarsquosactions destabilizing the situation in Ukraine OJ L 22913 (2014)



European neighbouring State will bring heavy costs to its economyrdquo and will causeRussian isolation155 In light of the concerns that President-elect Trump would liftthe sanctions against Russia prior to leaving office in January 2016 Barack Obama re-iterated that the rationale behind the sanctions ldquohas to do with [Russiarsquos] actions inUkraine And it is important for the United States to stand up for the basic principlethat big countries donrsquot go around and invade and bully smaller countriesrdquo156 At thetime of writing the EU and US sanctions remain in place

47 Finally we can also refer to the US sanctions against Venezuela adopted inMarch 2015 for the Venezuelan governmentrsquos human rights violations and repressionin response to political opposition157 Furthermore in May 2017 8 judges of theVenezuelan Supreme Court were sanctioned ldquofor a number of judicial rulings in thepast year that have usurped the authority of Venezuelarsquos democratically-elected legis-lature the National Assembly [ ] thereby restricting the rights and thwarting thewill of the Venezuelan peoplerdquo158

48 To summarize sanctions are used to promote US and EU values which arevery much related to their political identities and the importance they attach to demo-cratic regimes They therefore exercise pressure on States to adopt similar values andto cease what they perceive as ldquobadrdquo or ldquoundesirablerdquo behavior Consequently UCMare framed as legitimate enforcement of essential norms Unsurprisingly such policiesare not well received by the targeted States which we will now turn to

IVB Coercion as illegitimate intervention the Non-AlignedMovement49 As is well known the NAM came into existence during the Cold War the objec-tives of this group were not only to safeguard their independence from external

155 European Council Statement by the President of the European Council HermanVan Rompuy and the President of the European Commission in the name of theEuropean Union on the agreed additional restrictive measures against RussiaEUCO 15814 (29 July 2014) (httpswwwconsiliumeuropaeuuedocscms_datadocspressdataenec144158pdf)

156 Obamarsquos Last News Conference Full Transcript and Video NY Times (18 January2017) (httpswwwnytimescom20170118uspoliticsobama-final-press-conferencehtml_rfrac140)

157 EO 13692 (March 11 2015) (httpswwwtreasurygovresource-centersanctionsProgramsDocumentsvenezuela_eopdf) The White House Office of the PressSecretary FACT SHEET Venezuela Executive Order (March 9 2015) (httpswwwwhitehousegovthe-press-office20150309fact-sheet-venezuela-executive-order)

158 US Department of the Treasury Press Center Treasury Sanctions Eight Membersof Venezuelarsquos Supreme Court of Justice (18 May 2017) (httpswwwtreasurygovpress-centerpress-releasesPagessm0090aspx)



pressure but also to speak against (neo-)colonial and imperialist practices Todayrestructuring the world economic order is also on the NAMrsquos agenda Indeed theNAM final documents reveal that the group is very conscious of the NorthSouth di-vide and economic discrepancies As the NAM group is sensitive to this reality it re-sents the fact that the so-called ldquoPowerful fewrdquo use their economic strength to imposebehaviour and values159

50 As a matter of policy the group categorically rejects UCM160 and seeks toeradicate their adoption161 This was reiterated during the NAM summit of 2016where the NAM heads of State and of government

expressed their condemnation at the promulgation and application of [UCM]against countries of the Movement in violation of the Charter of the [UN] andinternational law particularly the principles of non-intervention self-determi-nation and independence of States subject of such practices In this respectthey reiterated their determination to denounce and demand the repeal of suchmeasures [ ]162

51 It is clear that the group of developing States expects behaviour that upholdsUN principles and that they have a preference for multilateral rather than unilateral

159 Letter dated 981007 from the Permanent Representative of South Africa to theUnited Nations addressed to the Secretary-General (ldquoLetter dated 981007 fromthe Permanent Representative of South Africardquo) S19981071 (13 November1998) Annex I Final Document of the 12th Conference of Heads of State orGovernment of Non-Aligned Countries (1998) at 13 point 7 17 points 22 and 2351-52 points 173 174 and 177 16th Summit of Heads of State or Government ofthe Non-Aligned Movement Tehran Declaration 30ndash31 August 2012 NAM2012Doc7 para1(e)

160 16th Summit of Heads of State or Government of the Non-Aligned MovementFinal Document 26ndash31 August 2012 NAM2012Doc1Rev2 (31 August 2012)para244

161 Letter dated 981007 from the Permanent Representative of South Africa aboven159 9 ldquoWe must take up the challenge to fundamentally transform internationalrelations so as to eradicate [ ] unilateral coercive measures and unfair economicpracticesrdquo See also 16th Summit Tehran Declaration above n159 para8 Forsimilar positions expressed by the G77 see Declaration on the occasion of theTwenty-fifth Annual Ministerial Meeting of the Group of 77 (New York 16November 2001) (httpwwwg77orgdocDecl2001htm) para30 MinisterialDeclaration adopted by the 35th Annual Meeting of Ministers for Foreign Affairs ofthe Group of 77 (New York 23 September 2011) (httpwwwg77orgdocDeclaration2011htm) para39

162 Declaration of the 17th Summit of Heads of State and Government of the Non-Aligned Movement The Diplomatic Society (22 September 2016) (httpwwwthediplomaticsocietycozahome16-home1939-17th-summit-of-heads-of-state-and-government-of-the-non-aligned-movement) Point 6



practices This is evidenced by the fact that one of the main purposes and principlesof the movement is ldquoto promote and reinforce multilateralism and in this regardstrengthen the central role that the [UN] must playrdquo163 Historically the UN arenaenabled these States to successfully fight colonialism and gain independence conse-quently the group attaches importance to the rules and principles of the UNCharter164 The NAM believes that multilateralism and equality between States areundermined by the imposition of UCM165 and condemns ldquoall manifestations of uni-lateralism and attempts to exercise hegemonic domination in international rela-tionsrdquo166 One of the NAMrsquos principles is to refrain from adopting sanctions againstother countries167 If UCM are rejected sanctions adopted by the UN SecurityCouncil are acceptable provided certain conditions are respected168

52 The NAM countries also call for dialogue and a culture sensitive approach tohuman rights issues169 Whereas the EU adopts restrictive measures in response to

163 14th Summit Conference of the Heads of State or Government of the NAMDeclaration on the Purposes and Principles and the Role of the Non-AlignedMovement in the Present International Juncture Havana Cuba 11-16 September2006 NAM 2006Doc5Rev3 para 8(a) see also paras2 9(s) 12(iii) Letterdated 20110629 from the Permanent Representative of Egypt to the UnitedNations addressed to the Secretary-General (ldquoLetter dated 20110629 from thePermanent Representative of Egyptrdquo) S2011407 (7 July 2011) Annex II BaliCommemorative Declaration on the 50th Anniversary of the Establishment of theNon-Aligned Movement 187

164 16th Summit Tehran Declaration above n159 para1(b)165 Letter dated 20110629 from the Permanent Representative of Egypt above

n163 Annex I Final Document para264 16th Summit Final Document aboven160 paras254 and 278

166 14th Summit Declaration of the purposes and principles above n163 para8(i)167 Ibid para9l See also Letter dated 20110629 from the Permanent

Representative of Egypt above n163 Annex I Final Document para254168 16th Summit Final Document above n160 para915 In this document it is how-

ever indicated that Security Council sanctions are a ldquoblunt instrumentrdquo and an ldquois-sue of serious concernrdquo to the NAM The Movement indicated that these measuresshould be imposed inter alia only when ldquothere exists a threat to international peaceand security or an act of aggression in accordance with the Charterrdquo and not ldquolsquopre-ventivelyrsquo in instances of mere violation of international law norms or standardsrdquoFurther the Security Council should only adopt sanctions after peaceful settlementmeasures have been exhausted When it imposes such measures the objectivesshould be ldquoclearly definedrdquo This concern points to the fear of abuse of sanctions bythe Security Council See also ibid paras928 and 22620

169 Letter dated 20110629 from the Permanent Representative of Egypt aboven163 Annex I Final Document para4961 ldquohuman rights issues must be ad-dressed within the global context through a constructive non-confrontational non-politicized and non-selective dialogue based approach in a fair and equal mannerwith objectivity respect for national sovereignty and territorial integrity non-



violations of civil and political rights which are valued as democratic principles cer-tain developing countries argue that disproportionate attention is given to such rightsand recall the importance of economic social and cultural rights170 Although the USbelieves that human rights and democratic principles need to be enforced in order tomake the world a better place the NAM has stated that

We recognise that human rights and democracy do not of themselves auto-matically bring a better world They require an environment of peace and devel-opment respect for sovereignty territorial integrity and non-interference in theinternal affairs of States Socio-economic rights including the right to develop-ment are inextricably part of human rights171

53 In addition to the NAM Chinarsquos stance towards non-UN sanctions is equallyrelevant to this discussion172 Indeed China would appear to reject the adoption ofunilateral coercive measures173 as is elucidated in a statement made by the Chineserepresentative during a Security Council meeting on ldquoGeneral issues relating tosanctionsrdquo

a small number of countries act at will according their domestic laws and im-pose or threaten to impose unilateral sanctions against other States which is notonly in violation of the principle of sovereign equality among Member Statesbut also undermines the authority of Council sanctions [ ] Sanctions shouldnot be a tool for one country to use in pursuit of power politics The domesticlaw of one country should not become the basis for sanctions against otherStates China is opposed to any practice of imposing sanctions on other coun-tries on the basis of onersquos domestic law174

interference in the internal affairs of States impartiality non-selectivity and trans-parency as the guiding principles taking into account the political historical socialreligious and cultural particularities of each countryrdquo See also 16th Summit TehranDeclaration above n159 para4 14th Summit Declaration of the Purposes andPrinciples above n163 Point 8(g)

170 Statement by Iran before the UNGA Third Committee AC368SR35 (31October 2013) para70 Statement by Nigeria before the UNGA ThirdCommittee AC369SR35 (30 December 2014) para53

171 Letter dated 981007 from the Permanent Representative of South Africa aboven159 11

172 Notably because it votes in favour of the resolutions on ldquoHuman Rights and unilat-eral coercive measuresrdquo and ldquoUnilateral economic measures as a means of politicaland economic coercion against developing countriesrdquo

173 Recall above para1 of this article China is also a member of AALCO which con-demned unilateral sanctions in the report quote above n4

174 SPV7323 above n80 14 Also quoted in ZHU Lijiang Chronology of PracticeChinese Practice in Public International Law in 2014 14 Chinese JIL (2015)



More recently a spokesperson of the Chinese Ministry of Foreign Affairs reiteratedthat ldquo[w]ith regard to unilateral sanctions the Chinese side has all along disapprovedof unilateral sanctions in international affairs [ ]rdquo175

54 Chinarsquos opposition to unilateral sanctions echoes the NAMrsquos preference formultilateralism Indeed in 2015 President Xi Jinping asserted before the UNGeneral Assembly that Member States ldquoshould be committed to multilateralism andreject unilateralismrdquo176 He also emphasized that ldquo[States] should resolve disputesand differences through dialogue and consultationrdquo177 The rejection of UCM and apreference for multilateral practices could be explained by what Vanhullebusch iden-tified as Chinarsquos desire to adopt policies that promote harmony in inter-State relationsin accordance with the Five Principles of Peaceful Coexistence178 Similarly to thecreation of the NAM these principles were initiated by China India and Myanmarin ldquoresponse to developing countriesrsquo appeal against imperialism colonialism andhegemonism and reflected the aspirations of those countries for independence au-tonomy self-improvement and developmentrdquo179 The adoption of unilateral coercivemeasures would seem to run counter to the Five Principles For instance accordingto Liu Zhenmin the principle of peace would require States to ldquorefrain from unilat-eral actions and commit themselves to settling disputes through negotiations and

639-640 para61 Other non-NAM members that made similar comments duringmeeting SPV7323 above n80 are Argentina at 13 and Russia at 19

175 Ministry of Foreign Affairs of the Peoplersquos Republic of China Foreign MinistrySpokesperson Lu Kangrsquos Regular Press Conference on April 13 2017 (httpwwwfmprcgovcnmfa_engxwfw_665399s2510_6654012511_665403t1453551shtml) answer given in response to the following question ldquoWe are recently told bythe US official that the US may be considering new economic sanctions for theDPRK including some which may target Chinese companies and banks DoesChina have any responserdquo See also Foreign Ministry Spokesperson HuaChunyingrsquos Regular Press Conference on January 18 2017 (httpwwwfmprcgovcnmfa_engxwfw_665399s2510_665401t1431615shtml) ldquoChina alwaysopposes unilateral sanctions [ ]rdquo Recall the Russia-China declaration on thePromotion of International Law above n1 as well as the Joint Communique of the14th Meeting above n3

176 Address by President Xi Jinping before the UNGA summit meeting A70PV13(28 September 2015) 19

177 Ibid178 Matthias Vanhullebusch Regime Change the Security Council and China 14

Chinese JIL (2015) 665-707 On the Five Principles of Peaceful Coexistence seethe special issue in 13 Chinese JIL (2014) On Chinese approach to internationallaw more generally see Wim Muller China an Illiberal Non-Western State in aWestern-Centric Liberal Order 15 Baltic YIL (2015) and XUE Hanqin ChineseContemporary Perspectives on International Law History Culture andInternational Law (2012)

179 LIU Zhenmin Following the Five Principles of Peaceful Coexistence and JointlyBuilding a Community of Common Destiny 13 Chinese JIL (2014) para2



consultationsrdquo180 Additionally the concept of justice calls for States to avoid ldquoap-ply[ing] international law selectively or adopt[ing] double standards in the applica-tion of international lawrdquo181 This issue in particular is illustrated in targeted Statesrsquoreaction to the sanctions imposed against them which they perceive as selectively im-posed economic coercion

55 Myanmar has criticized the ldquoselective targeting of countries for political pur-poses and the imposition of double standardsrdquo182 Likewise Syria has claimed thatthe measures against it are arbitrary and indiscriminate183 Rejecting all justificationsof UCM it believes that the protection of human rights and the fight against terror-ism are used as a pretext to apply political pressure on developing States184 Belarushas condemned the EU sanctions adopted against it as an attempt at exercising pres-sure ldquounder the pretext of human rights protectionrdquo and has accused Western Statesof applying double standards185

56 Finally Venezuelan President Maduro responded to the American targetedsanctions by recalling an American diplomat and denouncing what it viewed as impe-rialist and interventionist practices186 Additionally in March 2015 the Communityof Latin American and Caribbean States (CELAC)187 and the United Nations ofSouth American States (UNASUR)188 issued statements protesting the US targetedsanctions against Venezuelan officials for human rights violations According toUNASUR the American executive order constitutes ldquoa threat to sovereignty and the

180 Ibid para5181 Ibid182 Statement made by Myanmar before the UNGA Third Committee AC369

SR35 (30 December 2014) para70183 Statement made by Syria before the UNGA Second Committee AC268SR20

(17 December 2013) para58184 Response received by Syria in the Report of the Secretary General A68218 (29

July 2013) 13-16 Statement made by Syria before the UNGA Second CommitteeAC270SR31 (15 January 2016) para29

185 Statement made by Belarus before the UNGA Third Committee AC369SR35(30 December 2014) para44

186 Catherine Shoichet Venezuela recalls top diplomat in US over sanctions CNN(10 March 2016) (httpeditioncnncom20160309americasvenezuela-diplomat-recalled) Venezuelan leader Maduro condemns new US sanctions BBC (10March 2016) (httpwwwbbccomnewsworld-latin-america-31813127)

187 CELAC Unanimously Passes Resolution in Support of Venezuela Telesur (26March 2015) (httpwwwtelesurtvnetenglishnewsCELAC-Unanimously-Passes-Resolution-in-Support-of-Venezuela-20150326-0021html)

188 La Unasur pidio a los Estados Unidos que derogue las sanciones contra VenezuelaInfobae (14 March 2015) (httpwwwinfobaecom201503141715929-la-unasur-pidio-los-estados-unidos-que-derogue-las-sanciones-contra-venezuela)



principle of non-intervention in the internal affairs of other statesrdquo189 TheCoordinating Bureau of the NAM also expressed solidarity with Venezuela affirmingits support for Venezuelarsquos sovereignty territorial integrity and political indepen-dence190 It appears that solidarity and unity within the group are an importantmeans to resist pressure from a perceived powerful minority of States as such themovement has explicitly condemned sanctions against Zimbabwe and Syria191

57 Lastly although it is not a member of the NAM Russiarsquos condemnation ofUCM is also worth mentioning192 and notably its reaction to the sanctions imposedagainst it by the EU and the US In response to these measures Russia adopted a se-ries of counter-sanctions targeting agricultural products from the sending States193

and withdrew from nuclear-related agreements it had signed with the US194 In hisAnnual Address in 2014 President Putin explained the Western sanctions were an at-tempt to undermine and weaken Russiarsquos economic growth195 During the GA de-bate in September 2015 for instance Vladimir Putin remarked that the sanctions

189 South American Governments Slam Obama Over Venezuela Sanctions HuffingtonPost (16 March 2015) (httpwwwhuffingtonpostcom20150316unasur-venezuela-sanctions_n_6881886html)

190 Communique by the Coordinating Bureau of the Non-Aligned MovementRejecting the Latest Decision by the US Government Under the Executive OrderSigned by President Barack Obama to Expand Unilateral Measures AgainstVenezuela (16 March 2015) (httpnamiranorgwp-contentuploads20150323-CommuniquC3A9-Rejecting-the-Latest-Decision-by-the-US-Govt-to-Expand-Unilateral-Measures-Against-Venezuela-16-March-2015pdf)

191 16th Summit Final Document above n160 paras323 and 362 Letter dated20110629 from the Permanent Representative of Egypt above n163 Annex IFinal Document paras285 and 316

192 Recall quotes in the introduction above n1 and n3 see also n80193 President of Russia Executive order on applying certain special economic measures

to ensure the security of the Russian Federation (httpenkremlinrueventspresidentnews46404) These measures were adopted against the EU the US and Statesthat had aligned themselves with their policies

194 Russian Government Decision Suspending the Russian-US Agreement onCooperation in Nuclear- and Energy-Related Scientific Research and Development(5 October 2016) (httpgovernmentruendocs24766) Rosatom Russia with-draws from US Nuclear Cooperation (12 October 2016) (httpwwwrosatomruenpress-centreindustry-in-mediarussia-withdraws-from-us-nuclear-cooperation)President of Russia Draft law suspending the Russia-US Plutonium Managementand Disposition Agreement submitted to the State Duma (3 October 2016) (httpenkremlinruactsnews53009)

195 President Putin Presidential Address to the Federal Assembly (the KremlinMoscow 4 December 2015) (httpenkremlinrueventspresidentnews47173)



imposed against Russia are illegal as they circumvent the UN Charter and becausethey are not based on a Security Council decision196

58 Based on the above we can deduce that when developing countries claim thatUCM are contrary to international law they are criticizing the fact that a minority ofpowerful States is undermining the multilateral system they want to uphold and im-posing a specific understanding of human rights norms In this sense coercion is in-vasive and amounts to intervention because it seeks to dictate how States shouldinterpret or apply rules or worse uses these rules as a pretext to apply political pres-sure In this way coercion does not necessarily have to amount to an irresistible pres-sure Based on this reasoning it is submitted that the NAM countries understandldquoeconomic coercionrdquo as the wrongful use of economic power or advantage in orderto unilaterally impose a certain type of behaviour In this sense UCM as a means toenforce so-called community norms are perceived as an illegitimate intervention

59 Nevertheless while developing countries are critical of non-UN sanctions thisdoes not mean they automatically refrain from adopting such measures themselvesFor example in March 2017 Iranmdashan outspoken critic of unilateral coercivemeasuresmdashadopted sanctions against fifteen US companies for ldquosupporting Israel byproviding arms and equipment lsquofor use against the Palestiniansrsquordquo197 Although thisshould be understood against the background of tense US-Iranian relations it couldalso be indicative of the fact that developing States are willing to adopt sanctions de-pending on the norm that is at stake For instance Iranrsquos measures could possibly bejustified as a means to support the Palestinian cause and even the Palestiniansrsquo rightto self-determination198 This further illustrates the importance of values in the con-text of UCM

V Conclusion60 This paperrsquos starting point was Special Rapporteur Idriss Jazairyrsquos inquiry onwhether the frequent adoption of UNGA resolutions is indicative of an emerging pro-hibition of UCM Following an assessment of legal doctrinersquos position on the legality

196 Address by President Putin before the UNGA summit meeting A70PV13 (28September 2015) 26

197 Maya Lester USA and Iran impose sanctions on new people amp entities EuropeanSanctions 28 March 2017 (httpseuropeansanctionscom20170328iran-imposes-sanctions-on-15-us-firms) Iran has also adopted counter-sanctions againstUS firms see Michael OrsquoKane Iran imposes reciprocal sanctions on 9 US firmsEuropean sanctions (24 May 2017) (httpseuropeansanctionscom20170524iran-imposes-reciprocal-sanctions-on-9-us-firms)

198 Another example is the 1973 oil embargo imposed by Arab States in order to pres-sure Israel into changing its policies towards Palestine Recall also that developingStates were in favor of sanctions against the Apartheid regime in South Africa



of unilateral economic sanctions we analysed the resolutions referred to by theSpecial Rapporteur in order to determine their legal value From a strictly positivistperspective we were unable to determine that the resolutions and the statementsmade by UN Member States possess normative value In spite of frequent calls forthe cessation of such practice a prohibition of UCM has not crystalizedNevertheless the resolutions are indicative of a clear divide on the issue of economiccoercion between developing and developed States a divide that is responsible for thecurrent uncertainty

61 It would appear that this split is caused not only by a divide on the norms andvalues of each group but also by two incompatible group identities The first groupof States believes that UCM are permissible because they are adopted in the service ofhigher values and seek to pressure States that do not comply with these values tochange their behaviour They believe they are allowed to do this because of their lead-ership role in the international community199 The second group of States fears thatits values will be overruled by such unilateral acts Though it values human rights anddemocracy it resents powerful States for using their economic advantage in order toenforce changes in conduct Developing countries therefore turn to acts of solidarityand multilateral practices as a means of resistance Nevertheless if developed Statescontinue to impose UCM that target States view as illegitimate this could have theeffect of encouraging developing States to go beyond adopting UNGA resolutionsand bite back by adopting UCM as illustrated by the Iranian counter-sanctions

62 These conclusions recall the work of Jouannet who has described ldquoa phenome-non of resistancerdquo emanating from governments in response to values that are per-ceived as imposed or hegemonic200 as international law evolves ldquotowards theuniversalization of certain legal values which are perceived of as Western some verylively cultural resistance [re-emerges]rdquo201 This appears relevant for the debate on eco-nomic coercion that seems to be driven by cultural divisions Consequently if we areto overcome the legal stalemate then political resistance needs to be addressed202 It isclear from the analysis that followed that UCM do not promote harmony betweenStates but instead give rise to resistance resentment and all the friction that followsthus escalating disputes and increasing tensions For instance Prime Minister

199 One could even say that they are expected to do something see Hirsch above n12113

200 Jouannet above n116 391-392201 Ibid 390202 Lest the values that the North and South claim to accept will be defeated see ibid

392



Medvedevrsquos assessment of US-Russia relations in January 2017 is particularly criticalof the US sanctions negative effect on cooperation between the two States203

63 Therefore rather than trying to copy the vertical nature of national legal sys-tems enforcement measures should be adapted to the horizontal system it seeks tostrengthen204 In this way practices of enforcement of international law should aimat bringing States together and at convincing each member of the so-called interna-tional community to strive to meet the ideals that guide the international legal sys-tem205 As noted by Yee ldquoit is not intervention in the domestic affairs of a State [ ]to attempt to dialogue with or influence a government undergoing difficulties in or-der to induce it without coercion or use of force to conduct its affairs in a betterwayrdquo206

64 We therefore agree with Doxey who argued that instead of sanctions

emphasis [ ] should be placed on developing ways and means of lessening ten-sion keeping lines of communication open and avoiding conflict between[States] In the long run this would be a more constructive approach toproblem-solving than occasional resort to international ldquoenforcementrdquo whichsuffers from [limitations]207

203 Assessment of Russian-US relations by Dimitri Medvedev (19 January 2017)(httpgovernmentruennews26148) ldquoThe pressure on our country has reachedunprecedented proportions Ill-considered economic sanctions which did no oneany good have reduced our cooperation to zero There were the ridiculous individ-ual sanctions that nobody paid attention to And it doesnrsquot get any dumber than re-stricting entry to the United States for the leadership of the Russian parliamentministers and businessmen thus deliberately reducing the possibility of full-fledgedcontacts and closing the window to cooperation [ ]rdquo

204 See eg XUE Hanqin above n178 96205 Thus recalling Sienho Yeersquos theory of co-progressiveness see eg Towards a

Harmonious World The Roles of the International Law of Co-progressiveness andLeader States 7 Chinese JIL (2008) Even though the author refers to the idea ofsanction as a means to enforce international law of co-progressiveness the sanctionwould be more multilateral in nature rather than unilateral as it would be based on aStatersquos membership to the so-called community ldquoits enforcement is often character-ized by a sort of lsquomembershiprsquo sanction so that the community simply excludes anon-performing State from the community and therefore also the benefits derivingfrom membershiprdquo in ibid para11 See also Sienho Yee The International Law ofCo-progressiveness The Descriptive Observation the Normative Position andSome Core Principles 13 Chinese JIL (2014) 485-499

206 Sienho Yee The International Law of Co-progressiveness above n205 para26Emphasis added

207 Margaret Doxey Economic Sanctions and International Enforcement (2nd Edition1979) 132 More recently see Margaret Doxey Reflections on the SanctionsDecade and Beyond 64 International Journal Canadarsquos Journal of Global PolicyAnalysis (June 2009) 549 ldquoSince the beginning of the sanctions decade there have



Although some are skeptical about the benefits of communication in order to lessentensions208 when the situation is at a deadlock this may push us to give serious con-sideration to the unlikeliest solutions

65 Against this backdrop it is noteworthy that in reaction to UCM certain Stateshave called for more emphasis to be placed on the means of peaceful settlement of dis-putes209 This idea is not entirely new the ILC planned on including a chapter onthe peaceful settlement of disputes in the DASR because it was concerned that coun-termeasures an unlawful UCM whose wrongfulness has been precluded210 wouldaggravate international disputes211 Nevertheless the chapter was ultimately aban-doned as at the time it seemed too unrealistic That being said if we sincerely aspiretowards a fair international (legal) system the question now is whether or not itwould be realistic or even tenable to continue down the current path

been significant improvements in sanctions design and implementation and it is cer-tainly worth striving for collective pressure in egregious cases but as this writer andothers have long argued diplomacy in all cases and inducements in some may pro-duce better resultsrdquo

208 Jouannet above n116 402 Tzanakopoulos above n25 617 referring to ldquosweettalkrdquo

209 Response received from Burkina Faso in UN Secretary-General on Unilateral eco-nomic measures as a means of political and economic coercion against developingcountries A64179 (27 July 2009) 5 Response received from Brazil in Report ofthe UN Secretary-General on Unilateral economic measures as a means of politicaland economic coercion against developing countries A68218 (29 July 2013) 6

210 Provided of course that the procedural and substantive requirements codified inArticles 22 and 49-53 of the DASR are fulfilled See also HRC Report of the SRabove n6 para38

211 See eg Sixth report on State Responsibility by Mr Gaetano Arangio-Ruiz SpecialRapporteur ACN4461 and Add1-3 (1994) (httplegalunorgdocspathfrac14ilcdocumentationenglisha_cn4_461pdfamplangfrac14EFS) at 5-18



jmx018-FM1

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I Introduction1 In June 2016 the Peoplersquos Republic of China and the Russian Federation issued ajoint declaration on the Promotion of International Law whereby they expressed theview that ldquounilateral coercive measures not based on international law also known aslsquounilateral sanctionsrsquordquo are an example of double standards and of the ldquoimposition bysome States of their will on other Statesrdquo which are excluded under the ldquogenerally rec-ognized principles and rules of international lawrdquo1 Such measures they argue ldquocandefeat the objects and purposes of measures imposed by the Security Council andundermine their integrity and effectivenessrdquo2 Prior to this declaration in April 2016the foreign ministers of China Russia and India issued a similar statement emphasiz-ing inter alia that the ldquoimposition of unilateral coercive measures not based on inter-national lawrdquo is excluded by the principles of sovereign equality of Statesnon-intervention and cooperation3 In 2014 the Asian African Legal ConsultativeOrganization (AALCO) expressed ldquoits profound concern that the imposition of uni-lateral sanctions on third parties is [a] violation of the United Nations Charter and incontradiction with the general principles of international law [ ]rdquo4

2 These statements touch upon issues regarding the legality of unilateral sanctionswhich has been a recurring theme within the United Nations (UN) arena as well asan on-going debate in legal doctrine Indeed not only do there appear to be difficul-ties defining economic coercion commentators struggle to demonstrate that unilat-eral coercive measures (UCM) are prohibited under international law Neverthelesseconomic coercion is frequently evoked in General Assembly (GA) resolutionswhereby developing States contest the legality of unilateral sanctions arguing thatthey constitute an act of coercion contrary to the principles of international law5

This led the Special Rapporteur on the negative effects of UCM on the enjoyment ofhuman rights Idriss Jazairy to question ldquowhether the multiplicity of UN resolutions

1 The Declaration of the Russian Federation and the Peoplersquos Republic of China onthe Promotion of International Law (25 June 2016) (httpwwwmidruenforeign_policynews-asset_publishercKNonkJE02Bwcontentid2331698) para 6

2 Ibid3 Joint Communique of the 14th Meeting of the Foreign Ministers of the Russian

Federation the Republic of India and the Peoplersquos Republic of China (19 April2016) (httpwwwfmprcgovcnmfa_engwjdt_6653852649_665393t1356652shtml) para6

4 AALCO Extraterritorial Application of National Legislation Sanctions Imposedagainst Third Parties (2014) (httpwwwaalcoint53rdsessionextraterritorial202014pdf) 22

5 See eg Pierre-Emmanuel Dupont Countermeasures and Collective Security TheCase of the EU Sanctions Against Iran 17 Journal of Conflict amp Security Law(2012) 316-317











































































































































































































































































































































































392























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392























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jmx018-FN106

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jmx018-FN78

jmx018-FN79

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jmx018-FN85

jmx018-FN86

jmx018-FN87

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jmx018-FN89

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jmx018-FN91

jmx018-FN92

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jmx018-FN94

jmx018-FN95

jmx018-FN96

jmx018-FN97

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jmx018-FN100

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jmx018-FN102

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jmx018-FN105

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jmx018-FN107

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jmx018-FN112

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jmx018-FN114

jmx018-FN115

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jmx018-FN117

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jmx018-FN120

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jmx018-FN122

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jmx018-FN125

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jmx018-FN128

jmx018-FN129

jmx018-FN130

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jmx018-FN132

jmx018-FN133

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jmx018-FN135

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jmx018-FN137

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jmx018-FN139

jmx018-FN140

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jmx018-FN142

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jmx018-FN147

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jmx018-FN150

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jmx018-FN157

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jmx018-FN160

jmx018-FN161

jmx018-FN162

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jmx018-FN165

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jmx018-FN183

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jmx018-FN190

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jmx018-FN192

jmx018-FN193

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jmx018-FN210

jmx018-FN211