Questioning the Legality and Effectiveness of Economic Sanctions in International Law
Cenk KeskinThe international community is organized horizontally. There is no hierarchically superior institution in the relations prescribed among equals, and rules are formed in the direction of common interests; thus, the legal order pertaining to the international community differs from classical municipal legal orders. Effective compliance with rules is ensured in proportion to the parallels of mutual interests in the international order. An increase has been observed in cooperation particularly with the increase of interdependencies due to globalization. Violating the rules of international law creates a responsibility for that state. Individual and collective means of enforcing a state to comply with international rules are observed to exist. However, despite any warning to comply with international law, some actors in this community continue to be in violation and insist on exhibiting illegal behaviors. Economic sanctions and countermeasures applied on the basis of erga omnes obligations do not yet grant the same rights as an injured state to third-party states that have not been directly harmed by an unlawful act. However, developments in the Russia-Ukraine war have brought forth a new perspective to international law. Economic sanctions have become increasingly popular as a form of sanction and within themselves also possess a rich variety. Some of these diverse sanctions are not as effective as was assumed and also lack legal support. Some economic sanctions with a long prior history have been observed to result in harsher outcomes than the use of force based on their effects and to also affect a largely innocent population instead of the perpetrators of the violations. The legal regime of effective economic sanctions that directly aim for results is currently taking shape against the perpetrators of unlawful behavior.
Uluslararası Hukukta Ekonomik Yaptırımların Hukuka Uygunluğu ve Etkinliği Sorunu
Cenk KeskinBilindiği üzere uluslararası toplum yatay olarak organize olmuştur. Eşitler arasında düzenlenen ilişkilerde hiyerarşik bakımdan üstün bir kurum olmaması, kuralların ortak menfaatler doğrultusunda şekilleniyor olması bu hukuk düzenini klasik ulusal hukuk düzenlerinden ayırmaktadır. Bu durumun bir sonucu olarak uluslararası düzende karşılıklı menfaatlerin paralelliği oranında kurallara riayet etkin olarak sağlanmaktadır. Özellikle küreselleşmenin getirisi olarak karşılıklı bağımlılıkların artmasıyla iş birlikteliklerinde de bir yoğunlaşma gözlenmektedir. Milletlerarası hukuk kuralların ihlali ise söz konusu devletin sorumluluğunu doğurmaktadır. Uyarılara rağmen ihlale devam eden, aykırı tutumunda ısrar eden devleti uluslararası hukuka uymaya zorlayan ferdi ya da kolektif yollar bulunmaktadır. Erga omnes yükümlükler temel alınarak uygulanan ekonomik yaptırımlar ve karşı önlemler, hukuka aykırı fiilden doğrudan zarar görmeyen üçüncü taraf devletlere, zarar gören devletle aynı hakları henüz tanımamaktadır. Ancak Ukrayna-Rusya savaşında yaşanan gelişmeler uluslararası hukuka özellikle ekonomik yaptırımlar bakımından yeni bir perspektif getirmektedir. Farklı yaptırımlar arasında gittikçe daha fazla rağbet gören ekonomik yaptırımlar kendi içinde zengin bir çeşitliliğe sahiptir. Bu çeşitlilik içinde bazı yaptırımlar zannedildiği kadar etkin olmadıkları gibi hukuki destekten de yoksundur. Geçmişi çok eskilere dayanan bazı ekonomik yaptırımların ise etkileri bakımından kuvvet kullanılmasından daha da vahim sonuçlar doğurduğu, doğrudan sorumluları değil suçsuz geniş halk kitlelerini etkilediği tespit edilmektedir. Dolaylı yoldan sonuç hedeflemektense, doğrudan hukuka aykırı davranışın faillerine yönelik etkin ekonomik yaptırımlar ve bunların hukuki rejimi günümüz gelişmeleriyle yeniden şekillenmektedir.
Despite its shortcomings, the United Nations (UN) constitutes the most important platform for the current functioning of international law. The efforts made to maintain peace internationally and to ensure common security are reflected in the preamble of the UN Charter. As one of the most important elements in maintaining international peace, when the system envisaged for preventing the use of force fails to be implemented as intended, the UN will then try to fulfill the same task under very different conditions. As a result of globalization, the intertwined economic relations and financial mechanism that keeps the wheels of trade turning can sometimes turn into a very dangerous weapon and drag nations into warlike conditions. The international legal norms that constitute the source of economic sanctions should be such that it is prevented from doing more harm than good.
While economic sanctions have been a highly preferred tool in international relations in recent years, they have become a point of heated discussion. Many states, especially Western ones, not only implement UN Security Council resolutions but also use unilateral sanction regimes to protect their national interests and at times international social order. In addition to states, which are the main subject of international law, regional and multilateral international organizations are also observed to attempt to achieve similar outcomes through economic sanctions. Economic sanctions are conceptually based on the UN collective system or the countermeasures under the law of international responsibility and have diverse applications these days.
Sanctions are generally defined as a threat to act in cases of non-compliance with the law, the realization of a threat when necessary, and the measures aimed at ensuring behavior in accordance with international law. Economic sanctions that are applied in this context aim to change the unlawful behavior of the target state using commercial and financial means. While the UN International Law Commission used sanctions as the term for joint measures taken by international organizations in its study on state responsibility, it also defined unilateral actions as acts that are contrary to international law and that States can implement against a harmful state as countermeasures. However, if the violated norm of international law is at the level of jus cogens, then an erga omnes aggravated responsibility will occur towards the whole of the international community; and if all states besides the injured state are expected to give the right to employ common countermeasures, the practical importance of the distinction between sanctions and countermeasures will diminish.
Another important factor in terms of economic sanctions is the authority that imposes the sanction. In terms of international law, different criteria emerge depending on whether the sanction originates from the UN, an international organization, or a State. Some authors argue that third-party states may resort to countermeasures when the peremptory rules of international law are violated. This argument is based on Article 42 of the International Law Commission’s (ILC) Articles on State Responsibility for Internationally Wrongful Acts (ARSIWA). According to Article 43, a state may invoke the responsibility of another state in cases where the breached obligation is owed directly to that state, to a group of which the state is a member, or to the international community. Similarly, Article 48 states that a State other than the directly injured State may invoke the responsibility of the infringing State if the breach occurs against a group of States, including the requesting State, or against the international community as a whole. The main difference between the two rules is that one emphasizes the obligation, while the other emphasizes the damage. Although some authors rightly argue that reading this article alongside Article 54 does not allow sanctions against international law while still allowing retaliation; however, practices show that international law is shaped in the opposite direction. Meanwhile, because autonomous economic sanctions originate from municipal law, their compliance with international law will be contested, especially in terms of their application in cases abroad. Similarly, non-intervention in internal affairs, humanitarian law, human rights law, international trade law, international investment law, and the rules of the World Trade Organization (WTO) in particular exist as legal boundaries that must be taken into account.
The effectiveness of economic sanctions, the legal basis of which is dubious in terms of current positive law, is another matter of discussion. The aim of sanctions is to ensure compliance with the rules of international law. Extensive sanctions such as export, import, and investment restrictions targeting entire economies are being replaced with point-based, guided sanctions that are assumed to be smart. However, this does not mean that extensive sanctions such as trade embargoes have been abandoned. Economic and financial sanctions are currently used together to provide the maximum benefit, with the results being analyzed in short intervals with the help of technology and the sanctions regime being modified accordingly rather than leaving the economic sanctions to their own fate once they have been decided and not inspecting their implementation, which occurs as one of the main reasons for their failure.
When examining the recent economic sanctions against Russia, democratizing the country appears impossible, and pressure is put on Russian policymakers by targeting the decline in people’s purchasing power through wide-ranging economic sanctions and restrictions on accessing foreign currency assets in banks, thus causing an economic bottleneck in their daily life. Trying to block key sectors of Russia with targeted sanctions in order to prevent Russia from financing a long-term war does not seem very likely, nor are these sanctions effective in pressuring a change in policy. On a psychological level, pressure has been exerted on the Russian government by making the Russian people feel guilty, similar to what was done in Germany after World War II, and also by announcing the drama in Ukraine to the global public, especially on social media. However, to say that such propaganda has had a negative impact on national public opinion would be inaccurate, as the Russian government exercises tight control upon its media.
In principle, International Law is known to support the protection of fundamental rights. Texts such as the Universal Declaration of Human Rights and the European Convention on Human Rights have always aimed to raise this level of protection. However, recent practices have revealed the harmful individual effects of economic unilateral sanctions while the people of the whole country are able to escape legal scrutiny. When considering the frequency with which digitalization and artificial intelligence are used in daily life, more intense efforts should be made to use these opportunities to increase the impact of economic sanctions while reducing the illegal and undesired impacts in terms of Human Rights Law, Humanitarian Law, and international trade, as well as International Law of course. A divisive picture of the world has emerged as a result of the Russian people having been harmed by the implemented measures, in addition to the states and individuals that do business with Russia. The policies pursued with vengeful outlooks indicate that a difficult process is expected in the world economy, which has yet to have healed from the wounds of the COVID-19 pandemic.
