CYIL Vol. 7, 2016

CYIL 7 ȍ2016Ȏ ARE UNILATERAL ȍECONOMICȎ SANCTIONS REALLY IMPERMISSIBLE… are true no more for individually targeted sanctions and selective trade sanctions. In the time when the text of the UN Charter (as a basis for current UN sanctions practice) was drafted, no one could expect the future development of sanctions (including the Security Council’s incapacity and unwillingness to authorize sanctions because of political differences among permanent members) and the later targeting of sanctions. The UN Charter allows us to understand internationals sanctions only as a coercive measure with the aim of the coercion given resolutely: to maintain or restore international peace and security. But the world is much more complicated, and the sanctions practice reflects this; senders may impose sanctions not only to coerce other subjects to maintain international peace or respect other rules of international law. Their aim may be to constrain the power of the sanctioned state, to limit their possibility to develop nuclear weapons, for example, or just to send a signal that the sender does not agree with the behaviour of the recipient… Prof. Mohamad tends to read the UN Charter in a word-to-word, verbatim way. Of course, there are many Charter provisions where we should insist in a restrictive interpretation, but not in the case of sanctions. The sanctions practice is much older than the Charter text is; a wide unilateral sanctions practice (and some multilateral practice) was developed already before the establishment of the United Nations Organisation. The Charter itself does not use the term sanctions, does not define it. Anyway, the Security Council imposes “sanctions” and established “sanctions committees”. In my text I assert that the UN Charter is not the text we should cling to absolutely when we study sanctions, especially unilateral ones. From my point of view, the colourful sanctions practice of particular states, of the European Union and of the United Nations as well, goes in many aspects beyond the Charter. The years-long non-application of UN Charter provisions (art. 39 and art. 41) created an open space for the independent sanctions decisions of states (not only the United States, but also Soviet Union/Russia, France, Great Britain, China and other states) and other international organisations. If we want to assess the legality or permissibility of current sanctions measures, it is logical to start in Chapter 7 of the UN Charter. But we definitely cannot ignore the fact, that unilateral sanctions are imposed by a representative group of states and for a long time and that the entire sanctions practices has changed significantly since the Charter was adopted.

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