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Economic Sanctions As An Act Of War

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The outbreak of the Russo-Ukraine war in 2022 saw the imposition of one of the most comprehensive international economic sanctions on any country in history. These sanctions were expressly aimed to damage the Russian economy, pressure its population and force its leaders to cease hostilities against Ukraine. These measures caused a run on banks, an economic recession and sky-high inflation in Russia. In response, Russia imposed retaliatory sanctions of its own and, described the Western sanctions as an ‘Act of War’. North Korea had raised a similar contention in 2017 in response to similar sanctions.  This author seeks to focus on and examine this claim on its merits and normative value in International Law.

I argue that, from an effects-based perspective, comprehensive and long-term economic sanctions should be regarded as an ‘Act of War’. In a globalised world, economic sanctions can have a disproportionate and indiscriminate effect on a nation’s populace, comparable to that of a direct military intervention in the form of a blockade. The decision to impose economic sanctions should thus ideally be regarded as such and be subjected to the same level of scrutiny and qualifications such as what the case for an armed intervention to be legitimate in modern International Law. A calibrated standard to determine a ‘legal’ economic sanction not amounting to an act of war, will allow for proportionate use of sanctions, to minimise their human costs and respect the rights of economically weaker states.

Economic Sanctions in International Law

The term ‘sanction’ in international law refers to a peaceful action, usually responding to a breach of an international law principle and aiming to economically constrain a target state, entity or individual , imposed by a state or authority with the legal capacity to do so.  Sanctions may be comprehensive, such as completely prohibiting commercial activity with an entire country, or they may be targeted, blocking specific types of transactions, with specific entities or individuals.

Sanctions act as tools of coercion aimed to cause popular dissatisfaction and create pressure on a country’s leadership to change its foreign policies. Importantly, sanctions imposed by major powers such as the US and EU, include ‘Secondary Sanctions’. Such sanctions extend similar trade restrictions to any other third country which continues to deal in the restricted trade with the target country. Secondary sanctions reduce the alternative trade partners for a target country and magnify the effects of sanctions.

The UN Charter itself, in Art. 41, mentions the use of economic sanctions as a measure by the Security Council to give effect to its decisions. It clearly treats it as a separate, less egregious measure then the use of armed force provided for in Art.42. ‘Blockades’ are also mentioned separately as within the scope of use of armed force by the Security Council.

The UN framework does not provide the only legal basis for states to impose economic sanctions, as states are relatively free in customary international law to adopt unilateral sanctions against states, entities and individuals. Various regional treaties also allow for use of collective economic sanctions.

It is also important to acknowledge a long-running movement in the UN to delegitimatize use of unilateral economic measures as a method of coercion, recognising that such measures significantly disadvantage developing countries in particular. This movement has manifested itself in form of various General Assembly resolutions such as Resolution 2131, ‘Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the Protection of Their Independence and Sovereignty’, 1965; Resolution 2625 (XXV), ‘Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations’, 1970;   

However, such resolutions are non-binding in nature. As it stands, a strict reading of the UN Charter and associated international legal instruments, does not per se allow for regarding economic sanctions as an act of war, as will be elaborated below.

Economic Sanctions as an ‘Act of War’

Defining ‘Act of War’

Art. 2(4) of the UN Charter prohibits all UN members from resorting to the threat or use of force, against the territorial integrity or political independence of any State. However, Art. 51 allows for use of force authorised by the UN Security Council, or in the exercise of the rights of individual or collective self-defence. The word “force” in this context was initially generally understood to refer only to military force. “Acts of War” are thus restricted by international law. General Assembly Resolution 3314, passed in 1974, also sought to define ‘acts of aggression’, but excluded ‘economic aggression’ from the ambit of the resolution.

Comparison to Blockade

The closest ‘act of war’ that may be ‘analogous’ to a comprehensive economic sanction may be the act of a ‘blockade’. A ‘blockade’ is an act of war which involves restricting ships or aircrafts of some or all nations from entering or existing specific ports or coastal areas of a target country, by the threat or use of armed force. Such an act aims to degrade a country’s economy and affect its populace by preventing trade and movement of essential goods. It is included as an act of aggression in Resolution 3314 and also mentioned in Art. 42 of the UN Charter as a type of armed force that may be used by the Security Council.

A sanctioning country uses legal barriers to restrict its trade with a target country and also usually uses its economic heft to dissuade other countries from trading with a target country, by threatening to sanction them too. The question that arises is that how is this situation, from an effects-based perspective, different from a comprehensive economic sanction?  If the net result is the same, that the country’s trade is restricted and its populace is deprived of essential goods, why should only a physical blockade be regarded as an act of war and be subject to stricter scrutiny. This similarity of effects can be proved empirically using historical instances of comprehensive sanctions.

Comprehensive economic sanctions cut off a country from the global financial system, block foreign investment and remittances, cause loss of employment in export industries, causes shortage of essential import goods and high-end technology, which has ripple effects on the economy and popular welfare. These effects are particular amplified for a smaller, developing country which is less likely to be self-sufficient in essential goods.

Various case studies by Prof. Joy Gordon of use of sanctions in Iran, Iraq, and Cuba, demonstrate the damaging effects of sanctions on a country’s economy and tangible loss of life and popular welfare, easily comparable to a devastating armed conflict. For instance, the sanctions regime in Iraq resulted in the deaths of an estimated 500,000 civilians, exceeding the casualties in the Gulf War that followed. The sanctions had included restrictions on import of food grains and import of essential ‘dual use’ goods such as fertilizers for agriculture and chlorine for water purification, which resulted in a famine, epidemic and rise in infant mortality.

Addressing Counter-Arguments

Exercise of State Sovereignty

The first probable argument against treating economic sanctions as an act of war, would be based on state sovereignty, namely the right of a state to dictate its own trade policy. This principle was affirmed in Republic of Nicaragua v. The United States of America, 1986 I.C.J. 14, with specific reference to trade relations— that in the absence of a treaty commitment or other specific legal obligation, a state is not bound to continue particular trade relations longer than it sees fit to do so. States may thus argue that they have the right to choose their trade partners and treating these decisions as an act of war, would make them contingent to UNSC approval and abrogate their economic independence. 

However, state sovereignty is not an absolute principle, especially when pitted against humanitarian interests and interests of other states. The above argument may be addressed by a more careful calibration of standards on what kind of sanctions may amount to an act of war. A probable standard could be considering only those comprehensive economic sanctions which are imposed on essential goods, a shortage of which endanger the basic human rights (such as those to food, clean water, medication etc) of the citizens of the recipient state. This would amount to a reasonable restriction on the right of a trade of a sovereign country, namely that it should not wilfully endanger the essential rights of civilians of another country.

It is also essential to note that the existing regime of economic sanctions can also be differently viewed as a restriction on state sovereignty, as countries with disproportionate economic power are able to use ‘secondary sanctions’ to force other states to comply with sanctions on a target country. This also derogates sovereignty of other states by limiting their trade with a target country.

Economic Sanctions as a ‘Soft Tool’

It may also be argued that treating economic sanctions may deprive countries of an essential ‘soft’ tool to influence ‘rogue’ states and uphold the international legal order, without crossing the threshold of armed conflict.

However, a calibrated standard, as described above, would not completely preclude the use of economic sanctions. Countries may continue to use targeted economic sanctions against the political and economic leadership of a rogue state such as restricting their movement, seizing their overseas assets and crippling their businesses to exert pressure. Military and non-essential goods may continue to be restricted completely. In fact, recent studies have demonstrated the comparative effectiveness of targeted sanctions to influence state policy, as compared to general sanctions, with reduced human cost on the powerless sections of the society of the target country.

Moreover, even in this proposed model, comprehensive economic sanctions may be employed, if necessary, with the approval of the UN Security Council, which still has the authority to exercise use of force, under the UN Charter.

Conclusion

In summary, it is clear from an effects-based perspective, that comprehensive economic sanctions are comparable to direct military intervention such as a blockade.  Economic sanctions should thus be brought into the ambit of an act of war, and international legal safeguards on use of force should be applied.

A calibrated standard to determine a ‘legal’ economic sanction not amounting to an act of war, would allow the use of sanctions in a regulated, proportionate manner, to minimise their human costs and respect the rights of economically weaker states.

Member, Council of International Relations and International Law (CIRIL) Editor, Law School Policy Review and the Indian Journal of Law and Technlogy (IJLT) National Law School Of India University

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Digital Futures: Driving Systemic Change for Women

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Authors: Erin Watson-Lynn and Tengfei Wang*

As digital technology continues to unlock new financial opportunities for people across Asia and the Pacific, it is critical that women are central to strategies aimed at harnessing the digital financial future. Women are generally poorer than men – their work is less formal, they receive lower pay, and their money is less likely to be banked. Even when controlling for class, rural residency, age, income, and education level, women are overrepresented among the world’s poorest people in developing countries. Successfully harnessing digital technology can play a key role in creating new opportunities for women to utilise formal financial products and services in ways that empower them. 

Accelerating women’s access to the formal economy through digital innovations in finance increases their opportunity to generate an income and builds resilience to economic shocks. The recently issued ESCAP guidebook titled, Harnessing Digital Technology for Financial Inclusion in the Asia Pacific, highlights the fact that mechanisms to bring women into the digital economy are different from those for other groups, and that tailored policy responses are important for women to fully realise their potential in the Asia-Pacific region.

Overwhelmingly, the evidence tells us that how women utilise their finances can have a beneficial impact on the broader community. When women have bank accounts, they are more likely to save money, buy healthier foods for their family, and invest in education. For women who receive Government-to-Person (G2P) payments, there is significant improvement in their lives across a range of social and economic outcomes. Access to safe, secure, and affordable digital financial services thus has the potential to significantly improve the lives of women.

Despite the enormous opportunity, there are numerous constraints which affect women’s access to financial services. This includes the gender gap in mobile phone ownership across Asia and the Pacific, lower levels of education (including lower levels of basic numeracy and literacy), and lower levels of financial literacy. This complex web of constraints means that country and provincial level diagnostics are required and demands agile and flexible policy responses that meet the unique needs of women across the region.

Already, across Asia and the Pacific, governments are implementing innovative policy solutions to capture the opportunities that come with digital finance, while trying to manage the constraints women often face. The policy guidebook provides a framework to examine the role of governments as market facilitators, market participants and market regulators. Through this framework, specific policy innovations drawn from examples across the region are identified which other governments can adapt and implement in their local markets.  

A good example of how strategies can be implemented at either the central government or local government levels can be found in Pakistan. While central government leadership is important, embedding tailored interventions into locally appropriate strategies plays a crucial role for implementation and effectiveness. The localisation of broader strategies needs to include women in their development and ongoing evaluation. In the Khyber Pakhtunkhwa province, 50,000 beneficiary committees comprising local women at the district level regularly provide feedback into the government’s G2P payment system. The feedback from these committees led to a biometric system linked to the national ID card that has enabled the government to identify women who weren’t receiving their payments, or if payments were fraudulently obtained by others.

In Cambodia and the Philippines, governments have implemented new and innovative solutions to support remittance payments through public-private-partnerships and policies that enable access to non-traditional banks. In Cambodia, Wing Money has specialised programs for women, who are overwhelmingly the beneficiaries of remittance payments. Creating an enabling environment for a business such as Wing Money to develop and thrive with these low-cost solutions is an example of a positive market intervention. In the Philippines, adjusting banking policies to enable access to non-traditional banking enables women, especially those with micro-enterprises in rural areas, to access digital products.

While facilitating participation in the market can yield benefits for women, so can regulating in a way that drives systemic change. For example, in Lao People’s Democratic Republic and India, different mechanisms for targets are used to improve access to digital financial products. In Lao People’s Democratic Republic, the central government through its national strategy, introduced a target of a 9 per cent increase in women’s access to financial services by 2025. In India, their targets are set within the bureaucracy to incentivise policy makers to implement the Digital India strategy and promotions and job security are rewarded based on performance.

These examples of innovative policy solutions are only foundational. The options for governments and policy makers at the nexus of market facilitation, participation and regulation demands creativity and agility. Underpinning this is the need for a baseline of country and regional level diagnostics to capture the diverse needs of women – those who are set to benefit the most of from harnessing the future of digital financial inclusion.

*Tengfei Wang, Economic Affairs Officer

This article is the second of a two-part series based on the findings of the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) Policy Guidebook: Harnessing Digital Technology for Financial Inclusion in Asia and the Pacific, and is jointly prepared by ESCAP and the Griffith Asia Institute.source: UNESCAP

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Empowering women-led small businesses in Nepal to go digital

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People walk down a street of shops in Kathmandu, Nepal. (file) photo World Bank/Peter Kapuscinski

Authors: Louise Anne Sophie Lavaud and Mitch Hsieh*
Throughout the years, Laxmi Shrestha and her husband saw the opportunities that opening an online shop could bring to her family business.

“Looking at the trend of TikTok and other sites, we thought selling online could help us but we weren’t technically sound,” said Laxmi, the owner ofLaxmi Hastakala Store, in Banepa, Nepal, and part of a family of artisans.

As she learned about selling online, she picked up on how to market her shop digitally and, according to Laxmi: “It has surely given our business a push we always wanted. Recently we started selling our products online and we also receive payments online.”

Laxmi Hastakala Store is among the 1,800 women-led micro, small and medium enterprises (MSMEs) in Nepal being trained on digital and financial literacy by Sparrow Pay – one of the winners of the Women Fintech MSME Innovation Fund launched in 2019 by the United Nations Economic and Social Commission for Asia and the Pacific (ESCAP) and the United Nations Capital Development Fund (UNCDF).

Sparrow Pay has created a local digital marketplace where women-led MSMEs can offer products and services to its existing 800,000+ digital payment service users. Additionally, Sparrow Pay is supporting these women entrepreneurs in adopting digital payments and creating a payment history to support access to additional financial services.

MSMEs are a vital source of employment and a significant contributor to a country’s GDP. However, more than 45 per cent of MSMEs in Asia and the Pacific are constrained from accessing finance and other support for their businesses. Socio-cultural norms mean women-led enterprises have to overcome gender-specific barriers to access institutional credit and other financial services.

ESCAP and UNCDF aim to encourage easy access to digital finance for MSMEs in Asia and the Pacific, break the financial barriers surrounding women-led enterprises and support entrepreneur-centric growth and inclusiveness throughout the region. Initiatives by the 10 winning fintech companies are currently supporting more than 9,000 women-led MSMEs in Bangladesh, Cambodia, Fiji, Myanmar, Nepal, Samoa and Viet Nam.

Just like Laxmi, these women business owners plan on successfully growing their companies in the digital area.

The Women Fintech MSME Innovation Fund is part of a regional programme “Catalyzing Women’s Entrepreneurship: Creating a Gender-Responsive Entrepreneurial Ecosystem,” which seeks to support the growth of women entrepreneurs in Asia and the Pacific by enabling a policy environment for such business owners, providing them with access to finance and expanding the use of ICT for entrepreneurship.

*Mitch Hsieh Chief, Communications and Knowledge Management Section

UNESCAP

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Is It Possible to Lift Sanctions Against Russia? — No

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Every conflict sooner or later ends in peace. Such is the conventional wisdom that can often be heard from those who, amid the current situation of the sanctions tsunami and confrontation with the West, are trying to find hope for a return to “normality”. The logic of such wisdom is simple. At some point, the parties will cease fire and sit down at the negotiating table. The end of hostilities will lead to a gradual reduction in sanctions pressure on Russia, and our businesses will be able to return to work with Western partners.

We have to disappoint those who believe in such a prospect. Sanctions against Russia, for the most part, will not be lifted even in the event of a ceasefire in Ukraine and a peace agreement. There will be no return to “pre-February normality”. Instead of remembering a lost past, we will have to focus on creating a new future in which Western sanctions remain a constant variable.

Why is the lifting of Western sanctions on Russia extremely unlikely? There are several reasons.

The first reason is the complexity of the conflict between Ukraine and Russia. It has every chance of being prolonged for a long time. There may be pauses in active hostilities. The parties may conclude temporary truces. However, such truces are unlikely to remove the political contradictions that gave rise to the conflict. Currently, there are no parameters for a political compromise that would suit all parties. Even if an agreement between Moscow and Kiev is reached, its sustainability and feasibility are not guaranteed. The experience of Minsk-2 shows that the mere appearance of agreements does not automatically resolve political problems and does not lead to the lifting or easing of sanctions. The Ukrainian problem can smoulder and flare up again for decades, partly because both sides are limited in the possibilities of a decisive military victory and complete surrender of the enemy. Relations between Russia and Ukraine are at risk of entering the ranks of long-term conflicts, similar to relations between India and Pakistan, or North and South Korea. The complexity and longevity of the conflict guarantee Western sanctions for the long term.

The second reason is the stable nature of the contradictions between Russia and the West. The conflict in Ukraine is part of a larger Euro-Atlantic security palette. An unstable system of asymmetric bipolarity has formed in Europe, in which the security of Russia and NATO can hardly be indivisible. Russia has no way to crush the West without doing unacceptable damage to itself. However, the West, despite its colossal superiority, cannot crush Russia without incurring unacceptable losses. Containing Russia is the best strategy for the West. Ukraine is doomed to remain one of the areas of containment. For Russia, the strategy of asymmetric balancing of Western superiority remains optimal. It is possible that part of such a strategy will be a course towards a radical territorial redistribution of Ukraine, tearing away from it the eastern and southern parts. But in itself, such a redistribution will not remove the problems of Western sanctions.

The third reason is the institutional features of the sanctions policy of the initiating countries. Experience shows that sanctions are relatively easy to impose but very difficult to lift. Thus, with regard to Iran, a whole “web of laws” has formed in the United States, which significantly limits the administration’s ability to lift sanctions. Even if the sanctions are not enshrined in law, their cancellation or mitigation still requires political capital, which not every politician is ready to spend. In the US, such steps will cause criticism or even opposition in Congress, and in the EU – disagreements among member states. Of course, individual restrictions are lifted or relaxed in the interests of the initiating countries themselves. The experience of sanctions pressure on the Republic of Belarus shows the existence of the “sanction remissions” when restrictions are eased. However, the legal mechanisms of sanctions themselves remain and can be used at any time.

The fourth reason is the quick reversibility of the sanctions. Often, their abolition is accompanied by political demands, the implementation of which is a complicated process. For example, the Iranian nuclear deal required several years of complex negotiations and significant technological decisions. However, the return of sanctions can be carried out overnight. There is an asymmetry in the fulfilment of obligations. Fulfilling the requirements of the initiators requires significant changes, while the return of sanctions requires only a political decision. Rapid reversibility breeds distrust among target countries. It is easier for them to continue to live under sanctions than to make extensive concessions and risk receiving new sanctions. Historical experience shows that the initiators of sanctions tend to play the game of “finishing” the opponent. After the concessions come new, more radical political demands and the threat of new sanctions. The “Pompeo 13 Points” – a list of US demands on Iran beyond the limits of fulfilling the terms of the nuclear deal – have already become a textbook example. The Iranian lesson, apparently, was well learned in Moscow. Iran itself is actively working to achieve its goals in the field of nuclear arms. Ultimately, this shows the ineffectiveness of sanctions in terms of influencing the political course of the target country. But questionable effectiveness does not negate the fact that sanctions continue to be applied and enforced.

The fifth reason is the ability to adapt. Without a doubt, Russia will suffer enormous damage from the restrictive measures which have been introduced. However, the possibility of it adapting to the sanctions regime remains high. Russia has the chance, first, to partially make up for the shortfall in supplies from abroad with the help of its own industry, although this will require political will and the concentration of resources. Second, it has access to non-Western markets, as well as alternative sources of goods, services and technology. The key conditions for solving this problem will be the creation of reliable channels for financial transactions that are not related to the US dollar, the Euro, or Western financial institutions. Such a task is feasible both technically and politically, although it will also require time and political will. Iran’s experience shows that sanctions have seriously hit the country’s development opportunities. However, they did not interfere with the development of agriculture, industry and technology. The modernisation of the Soviet Union also proceeded under severe Western sanctions. The ability to adapt reduces the motivation for concessions to the demands of the initiating countries, especially given the risk of playing for “finishing”.

These reasons make the prospect of lifting or significantly reducing sanctions pressure on Russia extremely unlikely. The US, EU and other initiators have already introduced the most severe restrictions on Moscow. But the upward wave of sanctions escalation has not yet been exhausted. In addition, the achievement of the ceiling of the applied measures is unlikely to mean the abolition of those already introduced. However, the sanctions also do not mean the “end of history” of the Russian economy. It found itself in new conditions that will require adaptation and the search for new opportunities for development and growth.

From our partner RIAC

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