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Like it or Not, Unilateral Sanctions Are Here to Stay

  • David S. Cohen (a1) and Zachary K. Goldman (a2)

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Financial and economic sanctions are often adopted to serve multiple ends, including deterrence and prevention, but they are best understood as a tool to incentivize change in a target's behavior. In pursuit of this coercive objective, it is generally—but not always—the case that sanctions are more effective when they are imposed multilaterally, and the broader the coalition the better. This is because multilateral sanctions leverage the diverse sources of pressure that coalition partners can bring to bear on a target and carry with them the legitimacy of broad international support. Taken to its extreme, this argument may suggest that sanctions should always be multilateral, whether adopted through the United Nations, another forum, or an ad hoc coalition. But as we explain below, there are at least two significant reasons that militate in favor of unilateral sanctions. First, within the broad limits of international law, every country must retain the authority to impose sanctions to protect its sovereign security interests, even when it cannot muster a coalition of like-minded allies or a sufficient number of votes—and avoid a veto—on the UN Security Council. Second, imposing “smart” sanctions is actually a difficult business, requiring a complex administrative apparatus to design, build, implement, enforce, and defend them. International institutions, including the United Nations, are inherently less able to build the necessary structures to effectively enforce sanctions. For all of these reasons, two systems of sanctions—one national, one supranational—will likely coexist into the future.

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Copyright

This is an Open Access article, distributed under the terms of the Creative Commons Attribution licence (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.

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1 U.S. sanctions programs sometimes, but rarely, contain general licenses that allow companies and individuals to wind down existing commercial relationships. But these are almost always time-limited.

2 Commentators noted that the administration adopted the sanctions program principally to forestall Congress from adopting legislation that, if enacted, would have prescribed onerous sanctions on Russia for interfering in U.S. elections. See, e.g., Ed Stein, What's in the Executive Order on Election Interference?, Lawfare (Sept. 19, 2018).

3 Congress has adopted particular statutes to deal with specific sanctions challenges, such as the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 for Iran, and the Countering America's Adversaries Through Sanctions Act, adopted in 2017 and addressing Russia, Iran, and North Korea.

4 Sanctions program themselves are typically created by an executive order issued by the president that specifies both the reason the program is being adopted and the criteria by which a person or entity can be designated for sanctions—for example, illicit conduct, such as drug trafficking, or having a particular status, such as being a senior Russian political figure.

5 The committees established by certain relevant resolutions do important work monitoring compliance with the regimes and advising both the United Nations and member states on sanctions issues, but they do not constitute a sufficiently large or empowered administrative apparatus to replicate the work that member states do to develop, implement, and enforce sanctions.

6 The absence of a meaningful opportunity to contest designation decisions was a significant flaw in the UN and EU sanctions programs in the early post-9/11 period, and it took Yassin al-Kadi a decade worth of litigation to generate structural reforms in the European Union. These changes shaped the ways in which the European Union undertakes and reviews designations. The litigation resulted in the broader inclusion of reasons for action in EU designation decisions.

7 Secondary sanctions bar foreign companies (often foreign financial institutions) from doing business in the United States if they engage in proscribed activity with parties that are subject to U.S. sanctions. They apply in circumstances in which the potential secondary sanctions target is not directly subject to U.S. sanctions laws and regulations.

8 Ultimately the United States and Europe reached a diplomatic agreement on the implementation of the Iran and Libya Sanctions Act of 1996 and other extraterritorial sanctions.

Like it or Not, Unilateral Sanctions Are Here to Stay

  • David S. Cohen (a1) and Zachary K. Goldman (a2)

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