CHAPTER ONE

GENERAL INTRODUCTION

1.1       Background of the Study

The history of international law is a chronicle of attempts by members of the international community to establish a framework that would prevent the scourge of war, effectively resolve international disputes and promote mutual respect for the integrity of states. With the failure of the League of Nations to prevent World War 2, the United Nations (UN) was created in 1945 and the Security

Council (SC); its primary organ was charged with maintaining international peace and security. The SC’s first task in this regard is to determine the existence of any threat to, or breach of the peace or act of aggression under Article 39 of the UN Charter. Following such determination; the SC may decide what measures short of armed force are to be employed to give effect to its decisions, or it may authorize military action.[1] The measures short of armed force - otherwise termed “sanctions” are the focus of this research. It must be quickly pointed out that every enforcement measure authorised by the SC under Chapter VII of the UN Charter constitutes a sanction. Enforcement measures may be broadly categorised into “military sanctions”, i.e. those involving the use of armed force and “nonmilitary sanctions”, or those excluding the use of armed force. This study is concerned with the latter category, and uses the term ‘sanctions’ in that sense. 

During the Cold War, veto power politics and the ideological tension between the United

States (US) and Soviet Union caused a stalemate in the SC which hindered the use of sanctions in the UN’s collective security system. The demise of the Soviet Union however roused the SC from its sanctions lethargy, and a revived SC imposed sanctions on a dozen states during the 1990s; as a result of which the 1990s were christened “the sanctions decade.”[2] This enthusiasm has to date motivated the UN to impose sanctions to protect human rights, prevent and curtail armed conflict, counter illegal invasion or annexation of territory, negotiate peace agreements, combat terrorism and encourage nuclear disarmament. Their increased use stems largely from the perception of sanctions as a middle ground between the extremes of diplomacy and military intervention,[3] and the decreasing legitimacy of the use of force. Sanctions have become widely viewed as a veritable tool by which the UN can compel states in violation of international law to modify their objectionable policies.

However, the threats to world peace have geometrically increased in the last few decades in spite of the current appeal of sanctions. This study therefore assesses the effectiveness of UN sanctions imposed from 1945 to 2014 in eradicating threats to and breaches of international peace and security. The study establishes first that UN sanctions have limited effectiveness in addressing threats to world peace; and second, that this limited effectiveness is as a result of flawed UN practices concerning their formation and deployment. The work concludes that UN sanctions hold great promise as an effective alternative to the use of force in eliminating threats to world peace if properly devised and applied. 

1.2        Statement of the Problem

The reasons for which the UN imposes sanctions have multiplied, and the targets have metamorphosed. The current prominence of sanctions notwithstanding, global peace and security are more threatened today than prior to the UN’s formation – the upheavals and deplorable human rights conditions in Syria, Guinea Bissau, Central African Republic and Yemen; the violent clashes in Eritrea, Somalia and Sudan; the menace posed by transnational terrorist groups such as Al Qaida; and nuclear pursuits of North Korea and Iran, all give the world grave cause for concern. These seemingly intractable challenges have raised doubts about the effectiveness of sanctions. The central question is “Are sanctions effective in achieving target compliance with the stated objectives?” The literature is contentious and inconclusive. Conventional wisdom holds that sanctions are ineffective. Sanctions advocates contend however that they have been fairly effective and are more useful than critics acknowledge. This academic confusion compels our inquiry into the UN sanctions universe, to ascertain their effectiveness in addressing threats to and breaches of world peace.

Again, although there is an abundance of previous scholarship on UN sanctions, inadequate attention is paid to their effectiveness. Most of the works on the effectiveness of UN sanctions tackle just a few celebrated cases, which are too narrow to build a firm conclusion upon. In contrast, major studies have profusely addressed the effectiveness of unilateral sanctions imposed by states outside the ambit of the UN. This lacuna provides further motivation for our research.

1.3        Research Questions

This study addresses the following questions:

1.      What is the legal basis for the UN’s imposition of sanctions, and what is the UN’s sanctions policy and procedure?

2.      Has the imposition of sanctions by the UN been effective in eradicating threats to and breaches of international peace and security?

3.      If the answer to question 2 above is in the negative, what factors are responsible; and what can and should be done to improve UN sanctions effectiveness?

1.4        Objectives of the Study

Without question, attaining global peace and security is a desirable end whose importance cannot be overemphasized. This research probes the UN sanctions arena to determine whether its sanctions regimes have been effective in addressing threats to and breaches of world peace; and if not, how their effectiveness can be significantly improved.

1.5        Significance of the Study

The findings and recommendations of this research are a useful springboard for future sanctions management by the UN, and other regional sanctioning bodies such as the African Union (AU) and European Union (EU); because they afford a substantial improvement on the sanctions status quo. Given the current spate of global conflict, this study’s unique endeavour is to show that sanctions can be a veritable and effective instrument and a suitable substitute for force in eradicating threats to and breaches of international peace and security if properly designed and implemented.  The work further contributes to the sanctions literature by initiating a comprehensive case study model for the assessment of the effectiveness of UN sanctions.

1.6       Research Methodology

This study adopted both doctrinal and empirical approaches. The analytical method is employed to examine the sanctions debate and the expository method discloses details of the UN sanctions practice. The UN imposes sanctions via SC resolutions, and this research relied on them for the facts and figures of UN sanctions regimes. The effectiveness of UN sanctions in causing a change in target behaviour is empirically determined using the following criteria, all of which must coexist before a sanctions regime is deemed successful: the sanctions must be threatened or applied before the change in target behaviour; the change in target behaviour must be a product of sanctions, and the sanctions must have ceased. Recourse was made to primary sources such as statutes, international treaties and conventions; and secondary sources including case law, textbooks, journal articles, law reviews, theses and dissertations, reports, conference and seminar papers, newspaper articles and the internet.

1.7       Scope of the Study

The UN is the focal point for sanctions in international law; as such this work explores and is limited to the UN sanctions practice from 1945 to 2014. This study does not address the effectiveness of trade sanctions imposed by states solely for economic purposes; or unilateral sanctions imposed by states outside the ambit of the UN to achieve non-economic goals; or sanctions imposed by regional bodies such as the AU and EU. It does not also deal with UN sanctions as a prelude or complement to the use of force. It concentrates on establishing the effectiveness of UN sanctions as a stand-alone enforcement strategy in achieving target compliance with UN objectives. 

1.8       Literature Review

In a comprehensive empirical review of 174 sanctions cases (from 1914 - 2007) in their book Economic Sanctions Reconsidered,[4] Gary Hufbauer et al counter the conventional wisdom that sanctions never work. From their study, the authors found that sanctions succeeded in achieving their goals in about a third or 34% of the cases. Theirs is arguably the most cited work in the sanctions literature, having considerably influenced subsequent research with renewed optimism in the effectiveness of sanctions. However, the main focus of their study is on the unilateral sanctions practice with only scant attention paid to UN sanctions in Chapter Five; and the cases studied include only two UN sanctions regimes - Southern Rhodesia and South Africa. Secondly, their data set is arranged in tabular form without a case-by-case analysis of the efficacy of each sanctions regime. This is perhaps due first to the volume of cases reviewed, and second, to the economic perspective of their work, which is devoid of legal content that our research aims to provide.

Alexander Kern’s Economic Sanctions: Law and Public Policy[5] also explores the legal dimensions of state practice of sanctions and how they can be applied more effectively against corporations and third parties to achieve public policy objectives. In doing so, it analyses the sanctions regimes of the US, the United Kingdom (UK) and Japan. Except for his detailed treatment of the challenges of the Iraq sanctions regime and the UN sanctions effort against international terrorism in Chapter 11; his work is bereft of UN sanctions material. In fact, his work suggests a shift of the responsibility for implementing and administering sanctions from the UN sanctions committees to other international economic organizations such as the World Bank,[6] which is diametrically opposed to the core of this study.

In The Sanctions Decade: Assessing UN Strategies in the 1990s,[7] David Cortright and George Lopez take advantage of the proliferation of sanctions after the demise of the Cold War to assess the impact and effectiveness of UN sanctions imposed during the 1990s. The book concludes that UN sanctions were reasonably successful, more than is generally acknowledged by critics. This study endorses their support for positive incentives; but their case studies are limited to the sanctions regimes of the 1990s, and the present research contemplates a broader review.

Robert Pape’s works, “Why Economic Sanctions Do Not Work”[8] and “Why Economic Sanctions Still Do Not Work,”[9] are dedicated to challenging the emerging optimism on sanctions effectiveness. He radically differs with Hufbauer et al on the definition of success and the constituents of a sanctions episode; and disputes their 34% sanctions success rate (i.e. 40 out of 115 cases in their second edition) as too optimistic and meticulously reviews same, concluding that this number is about 5 out of 115. He argues that “failure to consider alternative explanations, especially force, is the most serious problem in their empirical work.”[10] This study aligns itself with his methodical analysis of their case studies and the criteria adopted for his review, but because his critique is founded on the Hufbauer data set, it also lacks UN sanctions material save the sanctions against Southern Rhodesia.

David Baldwin’s Economic Statecraft[11] is distinguished by his definition of economic statecraft to encompass economic sanctions (or negative sanctions), and economic rewards (or positive sanctions), contrary to the impression that economic statecraft meant economic sanctions simpliciter; and his insistence that sanctions have multiple goals which should be considered in judging their utility. He de-emphasizes effectiveness and stresses the utility of sanctions as measures for demonstrating international resolve; and argues that any judgment of the utility of sanctions should not be made in isolation but compared to what could have been expected from using other policy measures. While his arguments are relevant to the sanctions debate, his work is still inadequate for our research because it addresses unilateral sanctions, and contains no reference to UN sanctions.

Johan Galtung in his study “On the Effects of International Economic Sanctions: With Examples from the Case of Rhodesia”,[12] was the first to criticize the key argument by sanctions advocates that the higher the cost to the target, the greater the probability of compliance. He disapprovingly called this the ‘naïve theory’ of sanctions. Experience has so far confirmed his position, and the cliché developed that economic pain inflicted on the target does not translate into political gain for the sender. His work though relevant to this inquiry, examines only a single case study which is a far cry from our research objectives.

Paul Szasz’s scholarly effort, “The Law of Economic Sanctions”[13] concentrates on some of the legal problems that often accompany the imposition of sanctions by the UN – including decisionmaking in the SC, enforcement, impact on targets and third states. However, he only summarily considers the question of effectiveness, concluding that the effectiveness rate for sanctions has been mixed. He concedes that sanctions imposed by the SC under Chapter VII of the Charter are solidly founded in international law, but laments that they are employed without proper guidance or control, with their impact disproportionate to the benefit sought.

In “The Applicability of International Law Standards to United Nations Economic Sanctions Programmes”[14] Michael Reisman and Douglas Stevick identify sanctions as a coercive instrument and assess the applicability of the traditional humanitarian criteria of necessity, proportionality and discrimination to UN sanctions. They conclude that the SC has given inadequate consideration to international law standards in implementing sanctions, but only briefly survey the issue of effectiveness. They propose five legal principles to guide the UN: that highly coercive sanctions follow prescribed contingencies; that they be necessary and proportionate; that the UN reasonably maximizes discrimination between the target regime and the citizens; that sanctions regimes be periodically assessed, and that relief be provided to injured third parties.

Chantal de Jonge Oudraat also reviews the mechanics of UN sanctions in his work “Economic Sanctions and International Peace and Security.”[15] He investigates UN sanctions regimes of the 1990s, focusing on Iraq, the Federal Republic of Yugoslavia (FRY), Haiti, Libya, Sudan and Al Qaida. However, he does not determine the independent effectiveness of the above regimes; but treats the issue of sanctions’ effectiveness under the following subheads which he defines as the parameters of a successful sanctions strategy: assessment of the target’s strengths and weaknesses, definition of an objective, determination of tactics, evaluation and implementation, and periodic review.

From a human rights perspective, Eugenia Lopez-Jacoiste tackles the legal debate on sanctions in her article titled “The UN Collective Security System and its Relationship with Economic Sanctions and Human Rights.”[16] She also exhausts the new approaches to sanctions by the UN, notably the merits of its targeted sanctions practice and its impact on the rights to property, movement, fair trial and an effective remedy. She canvasses that the implementation of targeted sanctions demands in all cases - the fullest respect for human rights; and urges the UN to strike a balance between the use of sanctions to maintain international peace and security, on the one hand, and the rule of law and human rights on the other. Owing to her emphasis on human rights, the effectiveness question receives only peripheral mention.

Jeremy Farrall’s seminal book, United Nations Sanctions and the Rule of Law,[17] examines the UN situation in great detail. It traces the evolution of sanctions, captures the sanctions debate, and contains the summaries of sanctions regimes imposed by the UN from inception to 2007, his time of writing. Remarkable as it is however, the work does not frontally resonate the thrust of this research – which is UN sanctions effectiveness. Instead, it underscores the need for the UN to consider rule of law principles such as transparency, consistency, equality, due process and proportionality in the imposition of sanctions. Farall contends that “sanctions have been applied in such a way that they have undermined the rule of law, thus weakening the authority and credibility of the SC and its sanctions tool.”18 Due principally to his focus on the rule of law, the theme of effectiveness is inferred from but not directly addressed in the entire work. It comes as no surprise therefore that his case summaries are more akin to documentaries than a review of UN sanctions effectiveness.

All the above works are inadequate, not in themselves, but for the purpose of this study which endeavours to address these lacunae in the literature, and advance a robust plan for the effective imposition of UN sanctions to ensure international peace and security. 

1.9        Organisation of the Study

The research is structured into six chapters, with Chapter One as the general introduction. Chapter Two is dedicated to the conceptual discourse of central terms such as sanctions, effectiveness and international peace and security. Chapter Three traces the history and evolution of sanctions, presents and discusses the schools of thought in the sanctions debate, and carries out a broad survey of the UN’s modus operandi as regards sanctions. Chapter Four meticulously evaluates the effectiveness of UN sanctions regimes imposed from 1945 to 2014. Chapter Five identifies and examines the challenges impeding the effectiveness of UN sanctions; while Chapter Six sets out the work’s findings and recommendations for improving effectiveness and concludes the study.

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