{"id":10409,"date":"2022-07-14T21:56:33","date_gmt":"2022-07-14T21:56:33","guid":{"rendered":"http:\/\/legalblog.ie\/sanctions\/"},"modified":"2022-12-05T08:13:08","modified_gmt":"2022-12-05T08:13:08","slug":"sanctions","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/sanctions\/","title":{"rendered":"Sanctions"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/sanctions\/#Modern_Development\" title=\"Modern Development\">Modern Development<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/sanctions\/#Non-Force_Countermeasures\" title=\"Non-Force Countermeasures\">Non-Force Countermeasures<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/sanctions\/#Justifying_Countermeasures\" title=\"Justifying Countermeasures\">Justifying Countermeasures<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/sanctions\/#Retorsion\" title=\"Retorsion\">Retorsion<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/sanctions\/#Material_Breach\" title=\"Material Breach\">Material Breach<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/sanctions\/#Justifying_Countermeasures-2\" title=\"Justifying Countermeasures\">Justifying Countermeasures<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/sanctions\/#Countermeasures_Nature\" title=\"Countermeasures Nature\">Countermeasures Nature<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/sanctions\/#Collective\" title=\"Collective\">Collective<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/sanctions\/#Mandated_by_Organisation\" title=\"Mandated by Organisation\">Mandated by Organisation<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/sanctions\/#Unilateral_Measures\" title=\"Unilateral Measures\">Unilateral Measures<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-11\" href=\"https:\/\/legalblog.ie\/sanctions\/#Sanctions\" title=\"Sanctions\">Sanctions<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-12\" href=\"https:\/\/legalblog.ie\/sanctions\/#UN_Security_Council\" title=\"UN Security Council\">UN Security Council<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Modern_Development\"><\/span>Modern Development<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In former times, self-help was the primary remedy in international law.\u00a0 If one State breaches its obligations, the other State might take forcible and non-forcible measures to punish or counteract that breach.\u00a0\u00a0 This could range from war and armed reprisals to more minor confrontations.<\/p>\n<p>The Covenant of the League of Nations sought to regulate war, if not entirely prohibit it. States may take self-defence in response to an armed attack, but beyond this, force is generally prohibited under modern international law.<\/p>\n<p>The United Nations Charter provides a basic principle against threatening or using force in international relations.\u00a0 The prohibition on the use of force is a basic precept of international law from which States may not derogate.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Non-Force_Countermeasures\"><\/span>Non-Force Countermeasures<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>States may take countermeasures by way of a self-help response to breaches of international law.\u00a0 The countermeasures may be taken by an international organisation on a multilateral basis.\u00a0 The issues of non-forcible reprisal and economic sanction raise questions of credibility with international law.<\/p>\n<p>Lawful non-forcible measures may be taken under international law.\u00a0 Countermeasures may allow injured state parties to vindicate their rights and restore the legal position which has been ruptured by an unlawful act.<\/p>\n<p>Non-forcible countermeasures may only be taken in response to an internationally wrongful act and only against a State responsible for the act.\u00a0 They are limited to temporary non-performance of international obligations owed to the injured party by the responsible State.<\/p>\n<p>Under the ILC Articles on States Responsibility 2001 countermeasures are instruments for achieving compliance with obligations.\u00a0 They are intended to induce rather than to punish.\u00a0 They should be proportional and used only to the extent necessary.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Justifying_Countermeasures\"><\/span>Justifying Countermeasures<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The breach by one State of its obligations is the justification for the suspension of an obligation which would otherwise be a breach of international law. Countermeasures may be unilateral by way of a suspension of a trade agreement or freezing of assets.\u00a0 Countermeasures may typically involve the suspension of international obligations.<\/p>\n<p>If a situation arises in one State\\&#8217;s view that results in a violation of an international obligation by the other, the first State is entitled within the general rules of international law to take countermeasures.<\/p>\n<p>International tribunals and courts will review the extent to which countermeasures are justifiable.\u00a0 This leads to the difficulty that countermeasures are taken by the subjective act or in accordance with its own subjective view of the position in the first instance.<\/p>\n<p>Countermeasures do not equate to the suspension or termination of treaty obligations due to material breach within the meaning of the Vienna Convention on the Law of Treaty.\u00a0 The suspension or the termination of a Treaty may affect the legal obligations of States.\u00a0 However, in contrast, countermeasures deal with responsibility arising by reason of breach and seek to rectify a temporary breach.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Retorsion\"><\/span>Retorsion<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Retorsion is something done by one state on another in retaliation for a similar act done by the other state. It might be the use of comparably severe measures against citizens of the other state within the borders of the retaliating state when the other state has done in similar acts.[<\/p>\n<p>Retorsion is in contrast to reprisal.Reprisals are illegal if their purpose is punishment or coercion of the sovereign. A \u00a0retorsion is, by definition, something in conformity with international law, even if it is an unfriendly act.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Material_Breach\"><\/span>Material Breach<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Vienna Convention on the Law of Treaties deals with a material breach of a Treaty.\u00a0 Countermeasures may be taken in response to a breach, provided they are proportionate.<\/p>\n<p>The VCLT provides a procedure for suspension or termination of Treaty obligations for material breach, which differ from countermeasures.\u00a0\u00a0 The former must be confined to the Treaty being breached, whereas countermeasures are not so limited.<\/p>\n<p>There is no reason, in principle, why countermeasures could not be taken against an international organisation.\u00a0 They apply in principle to entities with international, legal personality.<\/p>\n<p>Measures which punish the responsible State are termed retortions. They are not limited to the suspension of international obligations owed to the responsible State. Acts of retorsion may include, for example, limitation of normal diplomatic relations, embargos and withdrawal of aid programs.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Justifying_Countermeasures-2\"><\/span>Justifying Countermeasures<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The International Court of Justice may consider the legality of countermeasures and will focus particularly on their proportionality.<\/p>\n<p>Countermeasures more typically may take the form of suspension of a trade agreement; the acts of retortion are based on the freedom to trade or not to trade.\u00a0 They are unfriendly but lawful acts.<\/p>\n<p>Countermeasures must be retaliatory.\u00a0 They must occur after the breach.\u00a0 They cannot be anticipated.\u00a0 They must be based on the occurrence of an unlawful or unfriendly act. Countermeasures should be temporary and aimed at the responsible State.\u00a0 They should be reversible so that relations can be restored.<\/p>\n<p>A countermeasure must be proportionate to the gravity of the injury suffered. A state which engages in disproportionate countermeasures itself incurs State responsibility.\u00a0 A weaker State should be subject to quantitatively less countermeasures than would be proportionate in respect of a powerful State.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Countermeasures_Nature\"><\/span>Countermeasures Nature<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Countermeasures must not violate basic obligations, including those in relation to human rights, humanitarian obligations and use of force.\u00a0 They should not affect dispute resolution procedures that apply.\u00a0 They cannot interfere with diplomatic or consular immunity.<\/p>\n<p>Countermeasures should follow an unsatisfied demand on the state responsible for complying with its international obligation.\u00a0 Prior notice should be given except in cases of urgency where it is necessary to proceed without notice to preserve the state\\&#8217;s rights.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Collective\"><\/span>Collective<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Countermeasures are generally taken by the state which has been injured by the wrongful act of another.\u00a0 In some cases, however, third-party states may take action in the collective interest.<\/p>\n<p>This arises as a result of the breach of obligations owed generally, including, for example, human rights obligations, genocide aggressions, slavery, racial discrimination, self-determination and other infringements of basic principles of international law owed to all States.<\/p>\n<p>There may be collective countermeasures, though in essence, they are concurrent individual initiatives.\u00a0 The UN Security Council may impose sanctions through certain machinery.\u00a0 This may complement multilateral countermeasures.<\/p>\n<p>International organisations such as the EU and individual States as well as the UN Security Council have imposed trade sanctions in response to acts of aggression, apartheid, and genocide as well as repression of democracy.<\/p>\n<p>Countermeasures may involve suspension of existing international law obligations or Treaty obligations.\u00a0 Some sanctions have taken the form of removal of civil aviation landing rights. Freezing of assets have been a response to breaches of fundamental norms.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Mandated_by_Organisation\"><\/span>Mandated by Organisation<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In some cases, the embargo may be in accordance with the rules of a particular institution, such as the Security Council or EU.\u00a0 In other cases, it involves the suspension of Treaties based on the breach. In practice, there may be an overlap of rationales or basis on which sanctions on countermeasures are based.<\/p>\n<p>Groups of states may take actions outside the Security Council where they have been unable to secure Security Council support.<\/p>\n<p>It may be that a complaint should be brought before an international organisation first as a precondition to any unilateral countermeasures or sanctions.\u00a0 In these cases, the treaty in effect, requires that wrongdoing must be responded to in a collective manner, if possible.<\/p>\n<p>International organisations and states may take countermeasures without seeking the authority of the Security Council. If the UN Security Council proceeds to take non-forcible measures after determining that a situation of aggravated responsibility is also a threat to peace, the Charter provides that the UN Security Council takes over and individual States may only take action to the extent allowed by the UN Charter, individual or collective self-defence or it is recommended or decided on by the Security Council.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Unilateral_Measures\"><\/span>Unilateral Measures<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>There is an increasing trend towards collective, non-forcible measures for breach of international norms.\u00a0 However, unilateral measures still remain possible beyond the countermeasures.<\/p>\n<p>On some views, this is permitted only when organisational routes have been exhausted. It is suggested that in this context, retorsion is lawful as a remedy but that non-forcible reprisals are unlawful where there is a punitive element.<\/p>\n<p>Powerful States such as the US have imposed unilateral measures when Security Council sanctions have not been available for political reasons. During the Cold War in particular, countermeasures and sanctions were frequently political in nature, seeking to pursue political objectives.<\/p>\n<p>The US has imposed sanctions on a number of States, including Sudan, Somalia, Iraq, parts of Angola.The US has taken the view in relation to Cuba that the right to trade is a matter of national sovereignty.<\/p>\n<p>Accordingly, it has justified economic embargos on largely political grounds. It considers that non-forcible economic coercion may include trade, financial, commercial, and arms embargoes.<\/p>\n<p>It is argued that the US measures go far beyond permissible countermeasures and amount to coercion.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Sanctions\"><\/span>Sanctions<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Punitive measures of coercion which forces the responsible State to stop its acts might be termed sanctions.<\/p>\n<p>Sanctions in international law are indeterminable and less systematic than under national law.\u00a0 Apart from sanctions by institutions, there are individual state sanctions by way of self-help.\u00a0 There is no central law-enforcing agency. Enforcement may be largely political in nature.<\/p>\n<p>Sanctions in the sense commonly used are specific measures.\u00a0 A countermeasure is temporary and is intended to be coercive. A sanction is final in its nature and is more likely to be punitive.<\/p>\n<p>Unilateral sanctions are generally unlawful in this sense.\u00a0 In order to be lawful, they must be undertaken by an international organisation representing centralised mechanisms.\u00a0 According to this view, the sanctions should be imposed by a competent organisation in accordance with its procedures.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"UN_Security_Council\"><\/span>UN Security Council<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The UN \u00a0Security Council may impose total or partial trade, financial, and commercial sanctions, and arms embargoes.\u00a0 The scope is broad enough and may include most kinds of punitive action short of armed force.<\/p>\n<p>The Security Council is required by the UN Charter to determine whether there is a threat to peace, breach of the peace or act of aggression.\u00a0 Economic measures may be provided under the UN Charter.<\/p>\n<p>Sanctions aimed to achieve regime change are unlikely to be lawful if undertaken unilaterally.\u00a0 Regional sanctions as collective sanctions may be within the scope of international law.\u00a0 The articles on the Security Council and the sanctions purport to prevail over other international obligations.<\/p>\n<p>The UN may impose sanctions for the purpose of restoring peace and security.\u00a0 Sanctions should be proportionate.\u00a0 It must not cause serious violations of human rights.\u00a0 They must be proportionate to the interest protected.<\/p>\n<p>Since the beginning of the millennium, sanctions have become more targeted. Sometimes leaders of a regime and non-state actors are sanctioned.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-10409\" data-postid=\"10409\" class=\"themify_builder_content themify_builder_content-10409 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Modern Development In former times, self-help was the primary remedy in international law.\u00a0 If one State breaches its obligations, the other State might take forcible and non-forcible measures to punish or counteract that breach.\u00a0\u00a0 This could range from war and armed reprisals to more minor confrontations. The Covenant of the League of Nations sought to [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[143],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10409"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=10409"}],"version-history":[{"count":4,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10409\/revisions"}],"predecessor-version":[{"id":21077,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/10409\/revisions\/21077"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=10409"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=10409"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=10409"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}