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.
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.
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.