CYIL vol. 8 (2017)

CYIL 8 ȍ2017Ȏ

LEGAL STATUS OF UNILATERAL COERCIVE MEASURES …

Introduction In the Czech Yearbook of Public and Private International Law 2016, I had an opportunity to discuss (and reject) the opinion that unilateral economic sanctions are impermissible under international law. In this contribution, I would like to stay focused on unilateral sanctions, further develop the topic, and shift my focus to the possible illegality of unilateral sanctions under customary international law. InMarch 2017, the Human Rights Council (HRC) adopted resolution A/HRC/RES/34/13 on human rights and unilateral coercive measures. 1 It is already the ninth resolution of the HRC condemning unilateral coercive measures (UCM). In addition, when we look at the activity of the United Nations General Assembly (GA), we can see a series of resolutions from 1983 to 2016 calling for the elimination of unilateral extraterritorial coercive measures and dealing with human rights and UCM. On the other hand, we can observe the unflagging sanctions practice of particular states. How to explain such a discrepancy? Inspired by International Court of Justice deliberation and International Law Commission work on the relation between resolutions of international organisations and customary international law, the article aims to examine the importance of GA and HRC resolutions for the legal status of unilateral sanctions. The research question is: Do GA and/or HRC resolutions support customary rule on the prohibition or the illegality of unilateral sanctions? 2 At first, the text will briefly review the advisory opinion of the International Court of Justice delivered in July 1996, where the ICJ defined the relation between GA resolutions and customary international law. Then it will also look at the work of the International Law Commission, that has been dealing with the topic of the Identification of customary international law since 2012. Based on ICJ and ILC opinions, criteria for the assessment of GA and HRC resolutions on unilateral sanctions can be defined. After defining these criteria, the text turns attention to GA resolutions and as well to HRC resolutions. It gives an idea about the context that surrounds the UCM as a topic of international debate and it identifies the main lines of resolutions dealing with UCM. It applies the stated criteria on a particular series of resolutions and derives conclusions on the prohibition or illegality of UCM under customary international law. So far, the attention of scholars devoted to the legality/illegality/prohibition of UCM seems to be limited. 3 The following text will be based chiefly on primary sources. 1 UN HRC Res 34/13 Human rights and unilateral coercive measures (24 March 2017) UN Doc A/HRC/ RES/34/13. 2 Sanctions in this text are used as a synonym to UCM, although the author admits that different interpretations of this relation may be presented. 3 BUNN, I. D., ‘The Right to Development: Implications for International Economic Law’ (1999) 15 Am. J. Int’l L. Rev. 1425; BIERSTEKER, T. and PORTELA, C., ‘EU Sanctions in Context: Three Types’ accessed 30 June 2017; REINISCH, A., ‘Developing Human Rights and Humanitarian Law Accountability of the Security Council for the Imposition of Economic Sanctions’ (2001) 95 The American Journal of International Law 851; POROTSKY, R.D., ‘Economic Coercion and the General Assembly: A Post-Cold War Assessment of the Legality and Utility of the Thirty-Five-Year Old Embargo against Cuba’ (1995) 28 Vand. J. Transnat’l L. 901; SZASZ, P., ‘The Law of Economic Sanctions’ (1998) 71 International Law Studies 6.

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