Sanctions: what are they used for? – International law

By on June 21, 2021 0


When words are too weak and war is too costly, sanctions are increasingly the tool countries use to punish bad behavior around the world. However, what they accomplish often appears to fall short of their stated goals.

A dictator brutalizes his people. A country attacks its neighbor. A regime pursues nuclear weapons. These are common crises that threaten peace, stability and national interests. How to deal with it has long upset policymakers, especially in the United States and its allies, who place their global credibility on safeguarding rules-based relations and free trade.

The options available to them are often more bad than good. A strong conviction may be worth a little more than the paper – or the tweet – it’s written on. At the other extreme, armed intervention risks blood and treasures without any certainty of success.

That leaves sanctions – attractive, albeit imperfect, middle ground.

“They are the alternative between words and war,” John Smith, a former senior US sanctions official, told DW. “Every president, Democrat or Republican, and every Congress, led by Democrats or Republicans, loves the tool of sanctions.”

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Then came Donald Trump, and the sanctions “exploded,” he said. In 2015, when Smith became director of Office of Foreign Assets Control of the Department of the Treasury (OFAC), which oversees most US sanctions, there have been more than 500 sanctions designations. By the time he left three years later, that number had almost tripled, according to data compiled by the Center for a New American Security.

Sanctions: the spectator’s eye

Trump’s spree of sanctions highlighted a long-standing weakness in their use. If they are poorly defined and poorly constructed, they may have little or no negative effect. Trump’s unilateral “maximum pressure” campaign against Iran undermined the 2015 multilateral nuclear deal, which put Iran’s nuclear program on the table for the first time. By triggering sanctions without a clear objective, Iran had little incentive to cooperate.

“The Trump administration’s criticism was that sanctions were often used instinctively, without the thoughtful and orderly process of determining what would actually be a deterrent,” Smith said.

As the spearhead of US sanctions, OFAC plays a leading role in this process, doing for sanctions what the military does for conflict: advising the president on targets it makes sense to reach and what the fallout could be, then carry out the president’s decisions.

Sanctions cover a wide area of ​​external relations. They can target individuals, economic sectors or, in their most direct form, a country or an entire region.

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Sanctions are not just economic, although asset freezes and trade sanctions overseen by OFAC are among the most common. There are also diplomatic sanctions, such as travel bans; policies like boycotts and divestments; and those which prohibit arms sales or restrict access to certain technologies. Tariffs also became a sort of sanction, as Trump turned to them when he sought to punish China and the European Union in trade disputes.

The changing nature of sanctions is one reason why their assessment can be so difficult. Like war, sanctions can have unintended consequences and cause collateral damage. The target may react unpredictably or prove to be more resilient than expected.

“It is a complicated exercise to bring about change and exert influence in the desired direction,” Sascha Lohmann, researcher at the German Institute for International and Security Affairs (SWP), told DW. “This is generally forgotten, that this type of social engineering is really difficult.”

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The failure of today is the success of tomorrow

Cuba, for example, has been crippled by decades of sweeping US sanctions, but Fidel Castro has fallen to the grave with his Communist revolution intact. Its success was due not only to Soviet and Chinese patronage, but also to its ability to suppress dissent while rallying the public to the idea of ​​a Davidian Cuba defying the American Goliath.

The uncertainty makes sanctions “more of an art than a science,” Lohmann said, as policymakers grapple with what kind of pain to inflict on a country, and how much, to make it collapse. If wrong, they can injure large sections of society and strengthen the target – the economic equivalent of killing civilians while bombing terrorist leaders.

“You could dump the Russian economy down the drain in two or three months with some sanctions, but that’s like saying the operation was successful but the patient is dead,” Lohmann said.

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That’s not to say that sanctions never work, and the success itself is relative. Sanctions alone are unlikely to reverse Russia’s annexation of Crimea and its aggression in eastern Ukraine, nor allow Alexander Lukashenko to loosen his grip on Belarus, nor end to the repression by China of its Uyghur Muslim minority. Yet they can be the line in the sand that keeps bad actors from doing even worse – or others from following their lead.

“It always depends on what you mean by ‘work’,” Lohmann said. “Reporting disapproval is really effective.”

EU sanctions, Lohmann said, are often aimed more at promoting unity among the 27 member states of the bloc than on changing the target’s behavior. From this point of view, the sanctions can be considered a success. Democratic governments have additional electoral pressure “to act, or there is pressure to make it look like you are acting,” he said.

US sanctions on Nord Stream 2 could also be seen as a success – not for shutting down the project, as President Joe Biden acknowledged when he recently decided not to apply more, which would have could harm the allies. But they made the pipeline a political issue in Germany during an election year. German criticism of the pipeline now includes members of Chancellor Angela Merkel’s conservative party and her government, who fear the risks of damaging relations with the United States outweigh the benefits of more Russian gas.

It is an example of how sanctions, or the threat thereof, can influence the behavior of both allies and adversaries. Smith, who now advises clients on these matters for the Morrison & Foerster law firm, believes Western sanctions against Russia have halted its push into Ukraine and saved lives, even as the conflict continues.

“It is difficult for me to label a successful sanctions program versus a failure, because sanctions are a patient person’s tool,” he said. “You are trying to keep someone under control.

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Better sanction

The problem with sanctions is therefore not so much the sanction itself as the way in which the tool is perceived and used. United Nations sanctions, or those coordinated with other countries, may be the most difficult to obtain, but they are often the most effective.

“Sanctions are best when they’re multilateral,” Smith said. Otherwise, it can be relatively easy for the target to evade them, especially if the two sides have little commercial or political connection for sanctions to be taken.

This was the main complaint from Trump’s critics: many of his sanctions were all sticks, not carrots, and came with little coordination. For sanctions to work, they must be part of a larger strategy that includes incentives, such as diplomatic support or financial aid, Smith said. If behavior change is the goal, sanctioned countries must see their way there.

“People who think sanctions are the panacea to all the world’s problems are going to be really misguided or disappointed,” Smith said. “Sanctions are meant to be a tool.”

In other words, a sledgehammer can knock down a wall, but it’s probably a bad choice for hanging a picture.

While you’re here: Every Tuesday, DW’s editors summarize what’s going on in German politics and society, with the aim of understanding this year’s elections and beyond. You can sign up for the weekly Berlin Briefing email newsletter here, to stay abreast of developments as Germany enters the post-Merkel era.

Originally posted by Deutsche Welle on June 4, 2021.

Due to the generality of this update, the information provided here may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morrison & Foerster LLP. All rights reserved



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