Third World Approaches to International Law & Economic Sanctions

This series of Features Essays is an extension of YJIL’s 2023 symposium, Third World Approaches to International Law (TWAIL) & Economic Sanctions.

Introduction

Aslı Bâli, Ntina Tzouvala, & Chisato Kimura

Each historical moment is both entirely unique and the culmination of long-term trends. The challenge in scholarship, as in politics, is to understand how rupture and continuity, contingency, and structure fit together in distinct combinations that create the world around us. We will, therefore, resist the temptation to present contemporary developments and controversies about international law and sanctions as either entirely novel or as simple echoes of historical precedents. Sanctions are, in many respects, not new at all: as Nicholas Mulder has shown, the practice gained momentum under the League of Nations as a purportedly peaceful alternative to open warfare. More recently, the post-Cold War era has been the “golden age” of sanctions: as the world became multipolar and more deeply interconnected, the United States and its allies leveraged this uneven integration to punish “rogue” states, often with catastrophic consequences for local populations.

In the realm of international law, discussions about the permissibility and legal classification of economic coercion have raged for as long as the practice has been around.[i] The League era witnessed heated debates about “economic aggression,” as did the Cold War, with postcolonial states seeking to outlaw economic coercion by characterizing it as a form of unlawful intervention or even as a use of force. Ironically, it was during the same era when some Western international law scholars were briefly alerted to the legal problems of sanctions in light of the post-1973 Arab oil boycott.[ii] In this respect, the current moment is not as new as many lawyers argue or assume, and as Okafor has argued, we ought to treat claims of newness in law with extreme caution.[iii] Rather than being a new development, political economy and geopolitics have long been intertwined, not least through the form of sanctions. The renewed visibility of this symbiosis should, then, be seen more as an expression of the proliferation of the practice, including its adoption by geopolitical foes, such as China, rather than a wholly new development. Writing from a Third World Approaches to International Law (TWAIL) perspective, there are additional good reasons to resist the presentation of proliferating sanctions as novel. This is the case not only because such claims of newness erase the South’s catastrophic past encounters with sanctions but also because acknowledging this history makes visible a rich Third Worldist tradition of legal and political argumentation from which we can draw.

At the same time, it would also be equally misleading to assume that there is nothing new under the sun. If sanctions have been a feature of the international (legal) order for a long time, their form has evolved in significant ways. In terms of legal form, after two decades of intense activity by the UN Security Council (UNSC), the re-emergence of geopolitical competition and the increased use of the veto have led to a proliferation of unilateral sanctions, often administered in collaboration with willing partners but outside of formal international institutions. Even in instances when UNSC consensus was reached (notably, in the case of Iran, including with UN Security Council Resolutions 1737, 1747, 1803, and 1929), unilateral sanctions by the United States have gone far beyond the agreed scope of the relevant resolutions. The effect of these sanctions has been amplified by the use of secondary sanctions, which have forced third states, such as China, to (begrudgingly) restrict some of the transactions that it had purposefully kept out of the scope of UN Security Council Res. 1929.

Secondary sanctions target legal persons that are not otherwise subject to the jurisdiction of the sanctioning state for “violating” sanctions imposed upon a third entity. For example, an Italian car manufacturer might be targeted by the United States for selling cars to Iran in violation of U.S. law but not Italian, European Union (EU) or international law. Although the legal infrastructure of secondary sanctions in the United States goes back at least three decades, the practice has escalated over the past ten years. Notably, as discussed by Ntina Tzouvala in her contribution, secondary sanctions have, at times, caused friction between the United States and its own allies, particularly the EU, who are by no means critics of sanctions as a tool of foreign policy but reserve the right to decide autonomously when and how to impose them. The assertion of extraterritorial reach for unilateral sanctions expands the zone of coercion from targeting adversaries to conscripting allies, at times, as unwilling enforcers of unilateral policy choices outside of their sovereign control. In this context, the contemporary argumentative landscape is much more complicated than a straightforward disagreement between Global North and Global South over the legality of sanctions, even though this rough delineation still holds descriptive and analytical value. Rather, we can observe fissures in both blocs: emerging Southern hegemons, notably China, embrace sanctions as a foreign policy tool, while Western powers struggle over the desirability and legality of secondary sanctions and, ultimately, over the hegemonic role that the United States claims for itself.

Just as debates over the legality of sanctions have become increasingly complicated and fragmented, the discursive system through which different positions are articulated is also fragmenting. Although there has never been a homogeneous understanding of international law, earlier discussions over economic sanctions took place in a discursive terrain that was at least nominally shared and allowed all participants in the debate to engage in mutually-recognizable argumentative moves and countermoves. Debates about economic coercion in the 1970s cited broadly the same materials and used similar terminology, even if they assigned different meanings to these terms or arranged them in very different ways. Today, even this superficial consensus of what counts as an authoritative source of law or what constitutes a plausible argument is not a given. Increasingly frequent resort to the language of the “rules-based international order” amongst the United States and its allies, and the adoption of other forms of “alternative legalities,” notably by Russia, mean that even the existence of a nominally shared international legal system of rules and arguments should not be taken for granted. Rather, attempts to justify one’s own sanctions while delegitimizing those of one’s adversaries appear to rely upon and, in turn, reinforce a fragmentation of the international legal landscape into explicitly differentiated legal systems that apply unevenly across geopolitical alliances. Take, for example, the new EU anti-coercion instrument that centers the infamous “rules-based international order” in its analysis (rather than traditional public international law) in an effort to draw an unsustainable line between acceptable sanctions (practiced by the EU and its allies) and impermissible economic coercion (adopted by China). One need not be a naive proponent of conventional international law to acknowledge that this fracturing is a new and concerning development, as it erodes the discursive ground over which contestation can take place. Accusations of double standards or hypocrisy are only effective insofar as they are addressed to a legal system that does not unapologetically embrace differentiation.

If the rise of the “rules-based international order,” the proliferation of secondary sanctions, and the relative marginalization of the UN Security Council make this historical moment distinct in terms of the legal forms and arguments related to sanctions, the political economy of the practice has also evolved. Although trade-related sanctions remain in place, the focus of the United States has shifted toward financial sanctions. These sanctions leverage the central role of the United States within globalized and financialized capitalism, including the unrivaled power of the U.S. dollar as an international currency.

The contribution to this symposium by Ntina Tzouvala focuses precisely on the role of dollar hegemony as an enabler of modern sanctions. Focusing on the case of Afghanistan, her piece documents the far-reaching implications of central bank asset-freeze both on the material conditions on the ground in sanctioned countries but also on the edifice of international law, including the concept of state sovereignty. Even though this weaponization of dollar hegemony has triggered conversations about its potential demise, such a shift has not materialized yet, raising questions about what economic and legal strategies are open to Global South states to resist its sovereignty-eroding powers. The leading role of China in the development of initiatives concerning central bank digital currencies is motivated precisely by the desire to guard against the destructive effects of sanctions.

The contribution by Aslı Bâli considers these destructive effects of sanctions in light of the history of failed efforts by the Global South to regulate economic coercion. As Bâli argues, there is a basic contradiction at the heart of an international legal order that is permissive of economic coercion while purportedly prohibiting recourse to non-defensive uses of force. Examining an example of ostensibly “consensual” American use of force on Iraqi soil, she shows that licensing economic coercion has allowed powerful states to loosen restrictions on military coercion. Against this backdrop, she underscores the irony of the U.S. and its allies latterly becoming champions of restraint in the use of economic coercion, at least to the extent that rivals may apply such coercion against their own interests. As exemplified by the E.U. anti-coercion instrument, if there are to be limits on economic coercion today, they may emanate from the anxious states of the Global North, worried about how their increasingly powerful adversaries might borrow from their precedents. While the fracturing of international law carries real risks, the shift towards multipolarity may also furnish new opportunities for small or medium-sized states to play rivalrous hegemons against one another to shield themselves, to some extent, from the longstanding coercive entailments of American hegemony.

This takes us to the second distinct material feature of this moment. Although the human cost of sanctions remains unspeakably high, the current proliferation of the practice may be eroding the ground that sustains it by incentivizing policies of economic self-sufficiency, “re-shoring” and “friend-shoring,” and the development of alternative systems of cross-border payments. The case of Russia is instructive: following its full-scale invasion of Ukraine in 2022, the United States, the EU, and Japan implemented sanctions of an unprecedented scale. Against all (Western) predictions, Russia’s economy appears to have withstood the pressure of these sanctions. This is both because sanctions evasion is alive and well but also because Russia has pivoted to a model of “military Keynesianism” that relies on massive, war-oriented public spending to boost economic growth. Therefore, it is entirely plausible that the mid-term effect of the current wave of sanctions will be to fragment the global economic order as states powerful enough to protect themselves through alliance-building and national policies will do exactly that. This does not mean that concerns over the humanitarian impact of sanctions are suddenly outdated. As Vasuki Nesiah reveals in her contribution, the reality is quite the opposite. The unevenness of economic coercion’s deleterious effects will be further accentuated across the lines of nationality, geography, and class, as the most economically vulnerable citizens of weaker states will remain exposed to hardship and deprivation, while others will remain relatively unaffected or will even benefit from a competitive geopolitical landscape.

It is for this reason that international legal thinking that centers the human costs of sanctions remains as relevant and as urgent as ever. The contribution by Nathanael Tilahun and Obiora Okafor takes seriously the argument that the effects of sanctions cannot always be distinguished from the impact of war. In a contribution that creatively engages with legal doctrine, the two scholars move beyond countermeasures, arguably the most immediately relevant body of rules. Their turn to international humanitarian law does not seek to romanticize that field but rather to make visible the absence of any effective regulation of sanctions from the perspective of the basic humanitarian needs of impacted populations.

Vasuki Nesiah shares this skepticism about the distinction between supposedly “peaceful” sanctions and war. With its gaze firmly set on Palestine, and the unfolding famine in Gaza, her contribution troubles the distinction between siege and sanctions and, crucially, between slow and spectacular violence.

Nesiah concludes with a note on the BDS campaign, a solidarity movement that predates the current crisis and seeks to dismantle Israel’s apartheid policies throughout historical Palestine through the implementation of boycotts, divestment, and sanctions. In 2022, numerous scholars affiliated with TWAIL (including one of the undersigned) signed a public letter in support of BDS as a form of non-violent resistance in furtherance of the core propositions and aims of TWAIL. The tension between TWAIL’s critical stance toward sanctions and the endorsement of BDS by many progressive legal scholars is not lost on us. Invocations of the sanctions campaign against apartheid South Africa do not magically resolve these tensions, but they offer useful pointers on how to think through them.  Even though this symposium does not focus extensively on BDS, it is notable that legal scholarship on the topic is ascendant. For one example drawn from beyond our symposium, in a forthcoming article Jeena Shah offers an important defense of BDS from a Third Worldist perspective, and, crucially, she posits that this defense can be legally and politically consistent with a broader condemnation of sanctions as neo-colonial instruments.[iv] Shah invites us to take seriously the law-making efforts of the decolonization movement and, in particular, their success in turning a multi-faceted right to self-determination into a peremptory norm (jus cogens). This rich conception of the right to self-determination involves both a right to independence against (direct) foreign rule and a prohibition of domination post-independence. Shah argues that much like in South Africa, apartheid ought to be understood as a form of alien domination and not simply as a human rights issue, and, therefore, the use of sanctions to bring alien domination to an end is not only permissible but required by anticolonial law-making. We take this argument to be an indispensable starting point for broader conversations concerning sanctions as a counter-hegemonic tool of resistance and solidarity in international law, even as we acknowledge that the fine-tuning of our doctrinal and conceptual approach does not resolve questions of tactics and effectiveness. The mounting anti-war movement in the United States and beyond gives us hope that these conversations will indeed take place and that they will be part of the reconstruction of an anti-imperialist legal left.

Another example of recent scholarship with connections to the themes we explore in this symposium is Benton Heath’s examination of civil society boycotts. Heath’s work focuses on earlier historical moments and, in particular, on transnational Chinese boycotts against U.S. products as a way of protesting racist migration laws and treaties. Nuancing the history of sanctions as a tool of the hegemonic (neo)liberal order, Heath instead recovers a history of the boycott as a non-statist, transnational practice that challenges the monopoly of the liberal state in dictating the terms of economic activity. In the process, boycotters constitute themselves as a subject and, more precisely, as a subject that asserts quasi-legal authority regarding the creation, refinement, monitoring, and implementation of rules. This is a form of insurgent legality: discursive claims backed up by material practices that range from peaceful to violent and from passive to disruptive about how (international) society is to be ordered and by whom. Indeed, states’ apparent overreaction to civil society-led boycotts, including BDS, can be better understood if these boycotts are understood not only in relation to their immediate economic effects but also as challenges to states’ authority.[v] As students, staff, and faculty face repression for overwhelmingly peaceful protests across the United States, Canada, Europe, and Australia the concept of insurgent legality can play a valuable explanatory role, but it can also help us name the scale of the current anti-war movement’s ambition: nothing less than a fundamental restructuring of the international political, economic and legal order.

The contributions to this symposium, as well as other critical engagements with the subject, such as Shah’s and Heath’s, speak to a growing interest in economic coercion amongst critically-minded and progressive legal scholars. We take this to be an ideal opportunity for productive encounters between TWAIL and other progressive legal movements, notably Law and Political Economy (LPE), Marxist legal theory, critical race theory (CRT), and socio-legal studies. Such encounters are crucial to developing new research agendas that will allow us to understand better how international law sustains economic coercion, how it fails to do so, how it becomes mobilized to counter it, or how it is itself shaped by the rise of sanctions. This symposium, then, is not the final word on the topic but rather an invitation to all progressive legal scholars to think carefully about the world that economic sanctions are in the process of making.

[i] We use “sanctions,” “economic sanctions,” and “economic coercion” largely interchangeably in this introduction, even though the latter has broader connotations.

[ii] However, the idea that the boycott was internationally unlawful was not a consensus position even amongst Western scholars. To complete the reversal of roles, prominent Third World lawyer and subsequent legal counsel to the World Bank, Ibrahim Shihata, supported the lawfulness of the boycott.

[iii] Recent literature on geoeconomics relies on the premise that the convergence between economics and geopolitics is new and constitutes a departure from the neoliberal international (legal) order.

[iv] Jeena Shah, Decolonizing Sanctions, Colum. Hum. Rts. L. Rev. (forthcoming 2024).

[v] Twenty-seven states in the United States have adopted anti-BDS laws. For a sampling of anti-BDS laws, see Ark. Code § 25-1-503 (2020); Ala. Code § 41-16-5 (2023); MO. Rev. Stat. § 34.600 (2023).

Contributions:

Introduction

Aslı Bâli, Ntina Tzouvala, & Chisato Kimura

Sanctions and “Bio-Necro Collaboration”

Vasuki Nesiah

Sanctions, Dollar Hegemony, and the Unraveling of Third World Sovereignty

Ntina Tzouvala

Weapons Against the Weak: International Law and the Political Economy of Coercion

Aslı Bâli

“Humanizing” Economic Sanctions? Lessons from International  Humanitarian Law

Nathanael Tilahun & Obiora Okafor

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