Human Rights Brief
A Legal Resource for the International Human Rights CommunityFall 1995
POINT/COUNTERPOINT
Point/Counterpoint is a regular feature of The Human Rights Brief. The purpose of the section is to encourage meaningful, intellectual discussion on contemporary issues in human rights and humanitarian law through the presentation of two diverse, though not necessarily opposing, opinions on the subject at hand. Commentaries for the Point/Counterpoint section are generally solicited by The Brief, however, the Board of Editors welcomes all submissions, comments, and suggestions. The newsletter does not facilitate the exchange of the authors’ compositions prior to publication. The views expressed in the Point/Counterpoint section are those of the authors and do not necessarily reflect those of The Human Rights Brief, the Center for Human Rights and Humanitarian Law, or their Directors or staff.
The Quandary of Economic Sanctions
by Gabriel Eckstein
Economic sanctions as a means of achieving political change have become commonplace amongst the world community. Often, the objective espoused by the nation or group of nations seeking their use has been the enforcement of human rights. Countries like Cuba, Iraq, South Africa, and Haiti, historically inimical to human rights protection, have all been the focus of such initiatives. Though generally well-intentioned, many of these efforts caused serious humanitarian consequences to the populations of the target countries.Whether economic sanctions are an effective tool for advancing individual liberty and human dignity is a question that transcends the political perspective of human rights ana reaches the realm of ethics and morality. It challenges the basic sense of right and wrong and further questions whether the creation of an environment of deprivation and- economic need among the general populace, at least on a temporary basis, justifies the greater goal of advancing human rights.
Point: Economic Sanctions and Human Rights: A Delicate Balance
Michael P. Malloy is Visiting Professor of Law at the Washington College of Law, American
University, and Professor of Law at Fordham University School of Law. He served as Attorney-
Adviser (1977-1980) and Acting Chief Counsel (1985) for the Office of Foreign Assets Control,
U.S. Department of the Treasury, where he administered sanctions programs. He is the author of
Economic Sanctions and U.S. Trade (1990 & 1995 Supp.), published by Little, Brown &
Co.
Counterpoint: Humanitarian Sanctions? The Moral and Political Issues
David Cortright is President of the Fourth Freedom Foundation, a privately-operated
foundation which advocates the abolition of nuclear weapons and the use of economic sanctions
and incentives as alternatives to military violence. The Forum is currently co-sponsoring a
"Sanctions and Humanitarianism" project to examine the interrelated issues of humanitarian
impact and sanctions effectiveness. Mr. Cortright is also a visiting fellow
at the Joan B. Kroc Institute for International Peace Studies at the University of Notre Dame and assistant professor
in the Peace Studies department at Goshen College. From 1977 to 1987, he served as executive
director of SANE, the largest peace organization in the United States.
Economic Sanctions and Human Rights: A Delicate Balance
by Michael P. Malloy
The once and future radical Angela Davis was recently quoted in the New York Times criticizing U.S. economic sanctions against Cuba on the grounds that they only make a bad economic situation worse. While one may wonder whether this observation was intended by Ms. Davis to illustrate that economic sanctions are ineffective, or too effective, her remark implicitly raises a serious concern for those who make and those who study economic sanctions policy: What is the proper balance between the deployment of economic sanctions and the effects, possibly unintended, on human rights concerns?
The interplay between human rights and economic sanctions is fraught with tension. The United States is the most frequent user of international economic sanctions in the world. U.S. sanctions programs often involve broad prohibitions against trade and financial transactions between persons subject to U.S. jurisdiction and particular target states or their nationals. When implemented effectively, such programs can have a dramatic impact on the basic human rights of subsistence and security. This presents the question whether policy makers should adjust sanctions programs to ameliorate such possible effects.
In recent years, economic sanctions have even been mobilized specifically or at least ostensibly in an effort to vindicate human rights. The case of Southern Rhodesia/Zimbabwe in the 1960s and 1970s provides one such example, while the case of South Africa is a more recent one. Other situations, like Haiti and the former Yugoslavia, arguably represent situations in which at least one major objective of the sanctions is the vindication of human rights. Much the same may be said for U.S. sanctions against Cuba. These cases raise the question of whether sanctions can be considered effective in vindicating human rights when they inflict considerable harm on those they ostensibly seek to benefit.
Sanctions imposed in the past, such as those imposed during WWII, the trade and financial sanctions against China, the Iran hostage sanctions, and the ongoing Iraqi sanctions, have been very effective means of achieving well-defined foreign policy objectives. Whether imposed for such broad policy reasons or in response to specific human rights concerns, sanctions usually, and perhaps inevitably, involve an immediate human cost within the target state. Short of abandoning sanctions as foreign policy tools, however, there is probably no practical way to ensure that sanctions both narrowly affect only the targeted state actors and still remain effective.
The human cost of sanctions, even those mobilized for legitimate reasons, is therefore a cause for genuine concern. As Senator Richard Lugar observed in 1986, when the Congress was considering the enactment of extensive sanctions against South Africa, "[w]hatever steps might be adopted with respect to South Africa, they wil1 have to be taken with both a sense ol tragecly ancl reality."
What, then, is the reality of economic sanctions in relation to human rights? I would suggest that there are two dimensions to this question. First, should the construction of an economic sanctions program always proceed on the assumption that harm to the interests of subsistence and security must be avoided? The answer in U.S. practice is mixed. For example, under the International Emergency Economic Powers Act (IEEPA), the principal statutory authority for non-wartime U.S. sanctions, the President lacks the power to regulate or prohibit personal communications not involving the transfer of any thing of value. Furthermore, he may not regulate uncompensated transfers of "articles" for humanitarian aid unless he determines that the transfers would either (1) seriously impair his ability to deal with the emergency situation, (2) be in response to coercion against the potential donor or recipient, or (3) endanger U.S. armed forces. Beyond those situations, however, the IEEPA does not limit the executive from fashioning sanctions that have direct or indirect effects on human rights. Thus, in the Iraqi case, a significant impact on the civilian population followed fairly directly from the imposition of U.S. sanctions. The same may be said of the Cuban sanctions, which are based on a pre-lEEPA statute, the Trading With the Enemy Act. Furthermore, not even this modest "humanitarian aid" exception applies under section 5 of the United Nations Participation Act of 1945, which serves as the statutory authority (at least in part) for the sanctions imposed on Yugoslavia and Iraq. Hence, in current practice, it is almost entirely within the discretion of the executive to decide that adverse effects on human rights interests are merely incidental and tolerable costs of an economic sanctions program.
The second and more difficult dimension of the problem concerns the underlying legitimacy of sanctions programs that affect human rights concerns. Broad, cogent policy interests concerning threats to the foreign policy, national security, or economy of the United States the typical factual predicates under IEEPA for the imposition of sanctions have generally trumped concerns regarding their direct or indirect human rights. Assuming the seriousness of such threats, this trumping may be unavoidable.
A more poignant situation arises, however, when the foreign policy objective that triggers the use of sanctions is itself a human rights objective, as, for example, in the case of South Africa. Throughout the period of broad-scale sanctions against South Africa, beginning in 1985, continuous concern was expressed over the disproportionate impact of sanctions upon the oppressed black South African population. Was it appropriate, for example, to impose sanctions against South Africa that resulted in exacerbated near-term economic privation of blacks in the interests of the long-term objective of moving South Africa beyond its policy of apartheid? Despite the difficulty of this question, the firm, though anguished, answer of many in the black South African community was that this hardship was part of the price that had to paid to achieve the end to apartheid and vindication of human rights in South Africa.
Essentially, the strategy of any effective sanctions program is to induce dysfunction in the trade and financial payments system of a target state with the goal of furthering a specific policy objective critical to the national interest. Given the concerns involved, it is probably counterproductive to limit the use of sanctions in an abstract or general way in order to protect human rights concerns. Indeed, sanctions programs that try to be "surgical" and avoid unnecessary effects are often relatively ineffective. The Southern Rhodesian sanctions and the early stages of the Iran hostage sanctions come to mind. Nevertheless, responsible policy also counsels that a well-consulted .sanctions program should not inflict gratuitous collateral damage. The hard fact, however, is that sanctions are not delicate surgical tools but explosive devices. Effective sanctions are usually broad-based, and almost necessarily have extensive adverse effects on the population of the target state. Whether and how to use such sanctions are questions that should be asked before they are unleashed, not after they are deployed.
Humanitarian Sanctions? The Moral and Political Issues
by David Cortright
Multilateral economic sanctions offer the prospect of a more civilized world where international norms are enforced not through military violence but through the power of trade. Sanctions can be an effective tool against military aggression, weapons proliferation, and gross violations of' human rights. Since the end of the cold war, the UN Security Council has imposed multilateral sanctions with unprecedented frequency. South Africa, Iraq, former Yugoslavia, and Haiti are four recent cases where comprehensive trade sanctions were imposed. Despite the increasing use of sanctions, however, much uncertainty remains regarding their political effectiveness.
The most serious questions regarding the use of sanctions concern their humanitarian impact. Many believe that sanctions cause excessive economic hardship and suffering among vulnerable populations while having little effect on those in power. Conventional theory holds that the effectiveness of sanctions is directly proportional to the level of pain they impose on a target nation. Some analysts take issue with this view, arguing that there is no necessary causal relationship between the amount of hardship caused by sanctions and the degree of political change adopted by a target nation. Others contend that sanctions are questionable ethically because they impose disproportionate harm on innocent civilians. UN Secretary General Boutros Boutros-Ghali, in his Supplement to an Agenda for Peace report, questioned "whether suffering inflicted on vulnerable groups in the target country is a legitimate means of exerting pressure on political leaders."
The issues of humanitarian impact and effectiveness of sanctions are directly interconnected. When economic measures are imposed, the result in the target country can be either a "rally- around-the-flag" effect or an "internal opposition" effect. In the former, the leadership uses external pressures to invoke patriotic and nationalist forces in support of government policies, a pattern apparent in Iraq and Serbia. In the latter, sanctions empower domestic opposition groups and isolate the political elites responsible for wrongdoing. This effect was substantially evident in the case of South Africa, and to a more limited degree, in Haiti. Obviously, the goal of nations implementing economic sanctions should be to create an internal opposition effect rather than a rally effect. This will depend on the ethical and humanitarian consequences of the sanctions regime.
Much thought has been devoted recently to the ethical criteria for imposing sanctions. Some argue that although sanctions imposing hardship on a target nation may be appropriate, they should not drive living standards of the general population below subsistence levels. A sanctions regime that goes beyond this standard loses political and moral legitimacy. Arguing from a just war perspective, others make the related point that sanctions should never deprive a civilian population of the basic human right to life and survival. Moreover, the international community has a responsibility to provide humanitarian assistance and alleviate the suffering of the most vulnerable victims of sanctions. Pacifists argue that nations imposing economic sanctions have an affirmative obligation to provide humanitarian aid and protect the lives of vulnerable populations in a target nation. This raises the related issue of sanctions as an alternative to war. Too often, sanctions are a prelude to war rather than an alternative. To be morally acceptable, sanctions must stand in sharp distinction to the use of military violence.
A crucial standard for determining the moral and political legitimacy of a sanctions policy is the degree to which sanctions are supported within the target nation by democratic and human rights groups. The American Friends Service Committee focused on this criterion in their 1993 report, Dollars or Bombs: The Search for Justice Through International Economic Sanctions. When sanctions are supported by human rights advocates and victims of oppression, the moral legitimacy of the sanctions regime is enhanced. Political effectiveness is likely to be greater as well. In the case of South Africa, sanctions were morally legitimate and politically effective precisely because they were supported by the majority African population represented by the African National Congress. In nations such as Iraq, where repression has eliminated domestic democratic opposition, applying the standard of internal support is much more difficult. Even here, however, the voice of opposition groups in exile can be consulted. The Iraqi National Congress, based in Iraqi Kurdistan and London, continues to support UN sanctions as indispensable to resistance efforts against the regime of Saddam Hussein.
There are no easy solutions to the sanctions dilemma. Each particular case must be judged on its own merits, or lack thereof. The following observations may serve as guidelines for assessing the moral and political appropriateness of a sanctions policy:
Sanctions should be applied only in a multilateral fashion, with the support and authorization of the UN Security Council. Unilateral measures, such as the U.S. embargo against Cuba, are politically ineffective, morally questionable, and without foundation in international law.
Humanitarian assistance for vulnerable populations must be a major element of sanctions policy. The Security Council grants humanitarian exemptions in its sanctions regimes, but current procedures are woefully inadequate in addressing the nutritional, medical, and other needs of vulnerable populations in nations targeted for sanctions. As the American Friends Service Committee report argues, nations imposing sanctions have an "affirmative obligation" to ensure that humanitarian assistance is actually delivered.
The targeting of sanctions holds considerable promise as a means for applying pressure on political and military elites. The use of financial sanctions, including the freezing of overseas financial assets, may be especially effective in this regard. Other measures might include selectively canceling development projects, revoking passports and visas, and banning air transport.
Sanctions should be combined with offers of incentives and an ongoing process of dialogue and negotiation. While sanctions may close off avenues of trade, they should not block discussion and communication. Indeed, sanctions work best when they are part of a "carrots and sticks" policy designed to bring the dispute to the bargaining table for resolution.
Is it possible to impose economic sanctions effectively while providing humanitarian assistance to vulnerable populations? Many would say no, but my own view is that these two objectives can and must be addressed simultaneously. Sanctions cannot be effective politically if they are unacceptable morally. Economic pressures should be targeted against decision makers, not the innocent, and special care should be taken to meet the humanitarian needs of vulnerable populations. When affirmed by human rights advocates within the target nation, such an approach can lead to a sanctions policy that is both effective and humanitarian.
The proper citation for this article in the Human Rights Brief Volume 3, Number 1, beginning at page 12 is: 3 No. 1 Hum. Rts. Brief 12 (1995).
