Debating the Law of Sanctions

Abstract

After years of United Nations-mandated sanctions against Iraq, human rights advocates began charging the UN Security Council with genocide in its use of 'sanctions of mass destruction'. Following the charges, a full debate began on the law of sanctions. The article recounts this debate, setting it in the context of two earlier rounds of discussion on the lawful use of sanctions. Those earlier debates resulted in general consensus that the Security Council was both free to use sanctions whenever it wanted and that sanctions should be comprehensive, air-tight and subject to enforcement. Sanctions of this description were imposed on Haiti and Iraq, but were soon linked to widespread suffering. The debate among lawyers then turned to how sanctions could or should be limited, perhaps based on human rights law, humanitarian law, or the law governing unilateral sanctions. From this debate the principle of proportionality is emerging as a general limitation on coercion and force in international law. Nevertheless, proportionality cannot eliminate all unintended effects of sanctions. The next iteration of the sanctions debate may well return to when the Security Council may impose sanctions, proportional or not. The impact of United Nations sanctions on Iraq has sparked a worldwide debate on all aspects of sanctions, including their legality. The legal debate continues a long- running discussion among international lawyers on the law of UN sanctions. From the UN Security Council's first imposition of mandatory sanctions, the use of sanctions has been surrounded by legal controversy. The first mandatory use involved sanctions against Rhodesia in 1966. The debate at that time centred on whether the Security Council was acting within its authority under the UN Charter in mandating sanctions in a situation not squarely within the original Charter conception. That debate continued until the end of the Cold War when it faded in preference to a discussion about effectiveness. With the end of the Cold War, the Security Council suddenly became active, imposing nine sanctions regimes in four years. 1 What did the