by Paul Conlon
Chapter 1 — Introduction: Background to the Iraq Sanctions Committee
In the chapters following, the experiences of that Committee are analyzed. Before doing so, however, certain issues about Security Council sanctions, and the actors involved in creating and implementing them, must first be explored.
A. The Structure of Security Council Sanctions
1. Lack of a General Theory of U.N. Sanctions
While the scope and stringency of the sanctions adopted against Iraq marked a new departure in international governance practice, neither the Security Council nor the United Nations nor the international community were without previous sanctions experiences. As early as 1921, the so-called Blockade Commission of the League of Nations had discussed possible sanctions procedures,1 as did the U.N. Committee on Collective Measures in the early 1950s.2 The League adopted sanctions against Italy in 19353 and the Security Council did so against Rhodesia in 19684 and, via an arms embargo, in 1977 against South Africa. Indeed, from 1963 onward,5 the U.N. General Assembly adopted many sanctions resolutions against South Africa including an oil embargo which, after 1986, was monitored by one of its subsidiary organs.6 Not to be overlooked either are multilateral sanctions regimes that have occurred outside the U.N. framework, one of the most interesting of which was the regime developed by Western states against the Communist bloc during the Cold War known as the "Coordinating Committee for East West Trade Policy (COCOM).7
As a phenomenon of classical international law, economic sanctions began as a restorative response to a delict, one that was applicable primarily to bilateral international relations. Then, at the beginning of the twentieth century, economic sanctions became viewed more broadly as a means of preventing war, mitigating destructive behavior between states, and pursuing collective enforcement of peace and security. Nonviolent coercive measures were viewed as morally more acceptable and perhaps effective enough to complement or supplant military sanctions. Additionally, traditional rules of international law, including the laws of war having to do with blockades, were admixed to the conceptualization of economic sanctions. The U.N. Charter, in Chapter VII, avoided using the term "sanctions" but allowed for such action in a purely collective legal environment, putting greater emphasis on Security Council discretion than on constraining law.
Although there is a voluminous literature available, the general theory of sanctions is not as weIl developed as one might expect, and a disproportionate share of the available literature has been written by U.S. scholars, reflecting their particular vantage point. For reasons inherent in U.S. politics and practice, they make practically no distinction between purely unilateral sanctions, more widely accepted sanctions regimes, and universally binding sanctions. Clearly, this situation is not conducive to a precise understanding of Security Council sanctions under Chapter VII of the Charter, which are unique.
Sanctions adopted by the Security Council are situated at the highest level of universal and collective authority. At this level, they are not primarily a form of managing conflict but, rather, a part of what strives to be a global monopoly on conflict measures of any kind in the interest of preserving world peace and fostering correct relations between individual members of the collectivity. The ideas behind sanctions in the case of the League of Nations and the United Nations stem from considerations that are radically different from those that guide governmental rulers, acting unilaterally, who weigh the pros and cons of sanctions against other options in their bilateral disputes.
To clarify further the concept of U.N. sanctions, it is useful to begin by eliminating measures that are motivated by trade disputes. Central to our understanding of economic sanctions under Chapter VII is the fact that commercial trade restrictions are used as a mean to basicaIly political ends. This is not to say that states taking positions on such sanctions may not be influenced by commercial considerations, nor that many political problems will not have commercial causes, but that disputes that lead states to interfere with trade through resort to the United Nations are not themselves trade disputes.
To distinguish two types of sanctions under Chapter VII, we may rely on the somewhat misnomered distinction between preventive and coercive sanctions, the term "punitive" being occasionally used as a substitute for the latter.8 A preventive sanction, such as an arms embargo, may be targeted at parties who have not committed any delict. Such sanctions frequently lead to criticism on the grounds that they "punish the wrong party," although, strictly speaking, they do not seek to punish any party. Yet at the same time, such measures are generally widely accepted because they are directed at disfavored items and cannot be seen as interfering in the provision of goods necessary for legitimate activities or for civilian populations. Moreover, they affect sanctioning states less since not all countries produce or traffic in the banned items. Consequently, fewer states oppose sanctions of this type; states tend to take their implementation more seriously. Sanctions committees also take their violation more seriously.
By contrast, a coercive sanction is directed against a state that has committed a delict and seeks to coerce lawful behavior. Coercive measures may be adopted only for a relatively specific purpose and presuppose both culpability and a reversible act that the target state has taken and can reverse.
The distinction between these two main (functional) types of sanctions is useful, but it is not certain that the delegates framing resolutions or the governments claiming to implement them are clear in their own minds about this distinction. Furthermore, there are cases when the distinction is blurred, particularly in the case of oil and other strategically important commodities. Bans on oil in sanctions regimes normally are intended to weaken the economy and general operations of the target state, but occasionally this is reinforced by arguments about the necessity of reducing the target state's military mobility. Even greater difficulties arise due to the fact that oil and other fuels may have humanitarian uses, a complexity that led to interminable arguments in the 724 Yugoslavia Committee.9
In further cases, the same measure may have coercive or preventive functions as applied to different situations. The provisions of the Iraq sanctions regime freezing Iraqi assets had a coercive rationale; the Council hoped to inflict such disadvantages that the target state would opt for compliance with the demands of its resolutions as the lesser of two evils. In this sense, these measures were a dismal failure. However, the same provisions applied originally to Kuwaiti assets as well. Here the rationale was preventive; Iraq was to be prevented from gaining control of these assets. Within days of the invasion of Kuwait, the Iraqi regime was frustrated in its aims to seize Kuwait's massive capital holdings in third countries. Since this was believed to be one of the invasion's main aims, this preventive function of the same provisions was eminently successful. The same measure had two vastly different functions.
Where states, acting on the basis of a perceived common interest, adopt sanctions collectively within an international organization, a greater degree of acceptability attaches to sanctioning measures when they are taken against a member state since that state could be seen as having accepted the possibility of sanctions for violations of the organization's norms when it joined or formed the organization. However, many sanctions adopted by international organizations are directed at states outside the organization and even the United Nations, whose membership is practically universal, has adopted sanctions against such nonmembers as Rhodesia, UNITA, and the Khmer Rouge faction of Cambodia. Even in such situations, an argument can be made that the sanctions deserve greater moral and political acceptance than that accorded to sanctions of a purely unilateral type because, whatever circumstance has led to their adoption, they have been justified by a greater number of states. It would be difficult to find instances of sanctions being adopted by a large number of states in the absence of some substantial moral or security grounds, whereas simple retaliatory acts of individual states frequently constitute, by themselves, disturbances of orderly and amicable coexistence. In a case such as apartheid South Africa, when governments far removed from the target state and having no particular bilateral disputes with it nevertheless adopt sanctions in large numbers, then clearly the moral justification is quite strong.
On practical grounds, as well, more widely adopted sanctions can be considered superior because the more states that are applying the same or similar sanctions measures, the less grounds there are for friction among those states. Since sanctions under Chapter VII now are held to be universally binding, they should be, theoretically, in a class by themselves. Much of the discussion devoted to sanctions problems in the relevant literature directly addresses this problem (how to get other states to join, tolerate, cooperate with, or at least not work against, sanctions) and hence is irrelevant to the issue of sanctioning measures under Chapter VII. If it is found that sanctions are most effective where, for example, the disparity in wealth and power are extreme between the sanctioner and the target, than one normally could expect a much greater degree of effectiveness in U.N. sanctions than is the case in fact. The "sanctioner" in this case would consist of 184 states if the target is a member state, or 185 states in the opposite case.10
Most sanctioning measures taken by the Security Council are coercive. Their rationale is that a penalty or price applied to the target state will prove sufficiently harmful to outweigh the advantages of the target state's wrongful behavior and thus lead it to rescind that behavior. Some measures are not economic at all (e.g., severance or reduction of diplomatic relations, cultural or athletic boycotts), while others have economic consequences (e.g., severance of transport links) and the major ones such as trade bans are meant to affect the economy directly. Some measures are so weak as to be symbolic. Others, like the total severance of all diplomatic relations, are nowadays avoided. It is, however, precisely these measures that are less problematic for the sanctioning states since they entail minimal or negligible costs.
Besides bans on trade in tangible goods, freezes on assets and bans on financial flows or services (credits, loans) have become common in recent sanctions programs. They seek to deprive the target state of the immediate use of financial resources, although care is taken to avoid action that directly suggests confiscation. Those holding such assets are assumed to be under an obligation of stewardship. Frozen financial assets are supposed to accrue interest that ultimately belongs to the target state, although it may not be paid while the sanctions are in force.11
Finally, the temporary immobilization of tangible assets or properties may be the result of sanctions measures. Thus, Iraq has lost many aircraft that were stranded abroad when sanctions were imposed. The aircraft may not be serviced since the provision of services would violate the sanctions regime, nor may they be returned to Iraq for servicing for the same reason. It is assumed that damage done to property in this manner is not later recoverable by the target state.
In addition, the Council occasionally orders measures that support or accompany sanctions but are not themselves sanctions-for example, measures regulating transit traffic on the Danube.12 They are not sanctions inasmuch as they do not affect the target state directly. The target state cannot engage in transit traffic across its own territory, and this is precisely what is so problematic; affected third parties begin to complain that sanctions are being applied against them for no reason.13
1. W. SCHOCKING & H. WEHBERG, DIE SATZUNG DES VOLKERBUNDES 609-614, 630 (1924).
2. Report of the Collective Measures Committee, UN. GAOR, 6th Sess. Supp. No. 13,UN. Doc. All 891 (195 I); Report of the Collective Measures Committee, UN. GAOR, 7th Sess. Supp. No. 17, UN. Doc. Al2215 (1952).
3. M. DOXEY, INTERNATIONAL SANCTIONS IN CONTEMPORARY PERSPECTIVE 24-27 (1987).
4. Standard studies are: R. ZACKLlN, THE UNITED NATIONS AND RHODESIA (1974); V. GOWLLAND-DEBBAS, COLLECTIVE RESPONSES TO ILLEGAL ACTS IN INTERNATIONAL LAW (1990).
5. O. OZGOR, APARTHEID: THE UNITED NATIONS & PEACEFUL CHANGE IN SOUTH AFRICA (1982).
6. A. Araim, The United Nations and the Oil Embargo against South Africa, in EMBARGO: APARTHEID'S OIL SECRETS REVEALED, 234-241 (R. Hengeveld & 1. Rodenburg eds., 1995).
7. B. GROSSFELD & A. JUNKER, DAS COCOM 1M INTERNATIONALEN WIRTSCHAFTSRECHT (1990).
8. "Coercive" is also a slight misnomer, since all measures adopted under Article 41 of Chapter VII are binding against any contrary will of states and in that sense are coercive.
9. For a discussion of Yugoslavian requests contained in letters of Sept. 22, 1992, and Oct. 22, 1992, see UN. Docs. S/AC.27/1992/COMM.833 (1992) and S/AC.27/1992/ COMM.833/ Add. 1 (1992), discussed in Committee Established Pursuant to Security Council Resolution 724 (1991) Concerning Yugoslavia, UN. SCOR, 48th Sess., 38th mtg. at 2-6, UN. Doc. S/AC.27/SR.38 (1992)(on file with author). For synopses of discussions in the same committee on a proposal by the WHO to monitor Russian deliveries of natural gas to Serbia, see Summary and Assessment of 100th Meeting, Mar. 9, 1994; Summary and Assessment of 101 th Meeting, Mar. 15, 1994; and Summary and Assessment of 1 02 Meeting, Mar. 30, 1994 (internal Secretariat documents, no author, no date) (on file with author).
10. See K. Elliott, Factors Affecting the Success of Sanctions, in ECONOMIC SANCTIONS 51, 53 (D. Cortright & G. Lopez eds., 1995) [hereinafter ECONOMIC SANCTIONS]
11. M. DOXEY, INTERNATIONAL SANCTIONS IN CONTEMPORARY PERSPECTIVE 14, tbl. 1.1 (2d ed. 1996 ) (containing a "Typology of nonviolent sanctions").
12. S.C. Res. 820, U.N. SCOR, 48th Sess., 3200th mtg. at 8 at para. 15, U.N. Doc. S/INF.49 (1994 ).
13. See P. CONLON, DIE RECHTLICHE PROBLEMATIK VON UN-SANKTIONEN ALS MITTEL ZUR DURCHSETZUNG DES V OLKERRECHTS 9 (1996).
From "United Nations Sanctions Management: A Case Study of the Iraq Sanctions Committee, 1990 - 1994" by Paul Conlon (pages 1-5). Transnational Publishers. Used by permission.
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