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Effects and Effectiveness of Economic Sanctions

Author(s): Michael P. Malloy, Barry E. Carter, Adrien K. Wing and Covey T. Oliver

Source: Proceedings of the Annual Meeting (American Society of International Law), Vol. 84 (MARCH 28-31, 1990), pp. 203-213

Published by: American Society of International Law

Stable URL: http://www.jstor.org/stable/25658538

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203

ations with regard to limited sovereignty because of special circumstances. Panama was such a case.

Katherine Rahman*

Reporter

 

 

Effects

 

and

Effectiveness

 

of Economic

 

Sanctions

 

 

 

 

The

panel

was

 

convened

 

by

 

itsModerator,

Michael

 

P. Malloy,**

at 8:30

a.m.,

March

30,

1990.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Remarks

 

by Michael

P. Malloy

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

A

thoroughgoing historical

presentation

ofU.S.

sanctions would

lead us back

 

to the

earliest days of theRepublic.

While

these first instances may

seem modest,

particu

larly against

the standard of contemporary U.S.

practice,

they are nevertheless

clearly

in evidence.

This

factwas highlighted inpassing by theHouse

Committee

on Foreign

Affairs

in 1945, during consideration of implementing legislation for the newly

ratified

UN

Charter.

The

 

Committee

referred to:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

the embargo

legislation approved

June 4,

1794, giving

thePresident power

 

to lay

 

embargoes on

all ships and vessels inAmerican

ports whenever

inhis

opinion

the

 

public

safety should

require (1 Stat. 372).

Legislative

enactments

in 1798

(1 Stat.

 

565-566),

1799 (1 Stat. 613,

 

615),

1800 (2 Stat. 7, 9),

1808

(2 Stat. 490)

and

1809

 

(2 Stat. 506)

suspended

 

commercial

relations with

various

countries

but

left the

 

discontinuance

of the restraints to the discretion of the President.

. . . Congress

 

has likewise,

in 1886, authorized

thePresident

to exclude

foreign vessels

for retal

 

iation

against

discrimination

to American

commerce

(24

Stat. 79). There are

 

many

 

subsequent examples

of such delegation

of power

to the President.1

 

 

 

Despite

 

the venerable

pedigree

of economic

sanctions

inU.S.

 

practice,

itmust

be

admitted

that the

invocation

of

sanctions was

a markedly

 

less frequent occurrence

before

the advent

 

of the twentieth century.

In part,

thismay

reflect the relatively

limited economic

leverage that theUnited

States could

apply before

itsascendancy

in

this

century.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Two

other features seem

to distinguish

contemporary

practice

from the past. Huf

bauer and

Schott

remarked

thatmost

episodes

of the application

of economic

 

sanc

tions prior toWorld

War

I "foreshadowed

or accompanied

warfare. Only

afterWorld

War

I was

 

extensive attention given to the notion

that economic

sanctions might

sub

stitute for armed

hostilities."2

In addition,

in the present

century

there has

been a

marked

increase

in the rate at which

sanctions programs

 

have

been

 

initiated, a

fact

that ishardly

surprising

in lightof the increasing substitution of economic

hostility for

armed

hostility. Some of the characteristics

of this historical

progression

in our own

centurymay be discerned inFigure 3.1 (pp. 188-90) ofmy book Economic Sanctions and U.S. Trade (1990).

One characteristic of this historical summary is particularly graphic, that is, the proliferation of sanctions programs as one proceeds through the century. Economic

Department

of Government,

College

ofWilliam

and Mary.

 

 

Professor of Law,

Fordham

University

School

of Law.

 

 

!H.R. Rep.

No.

1383, 79th Cong.,

1st Sess. (1945),

reprinted in

1945 U.S. Code Cong.

Serv. 927,

932-33.

 

 

 

 

 

 

 

 

 

2G. Hufbauer

&

J. Schott,

Economic

Sanctions

Reconsidered

4 (1985).

 

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204

dominance

by theUnited

States

in the period

immediately

following World

War

 

II

may

be understandable,

but

the trend towards

increasing use

 

of sanctions

becomes,

if

anything, evenmore marked

in theperiod

of relatively lessU.S.

dominance

thatbegan

in the late

1960s. Notice

also,

however,

that economic

 

sanctions

inU.S.

practice have

not become

detached

from their original

 

connection

with

actual

or potential

armed

conflict. The

increase

 

in sanctions

programs

owes

a

great deal

to this connection?

 

sabre-rattling has been

 

replaced

by the jingling of coins. Today,

theUnited

States has

many

economic

sanctions

programs

in place:

the vestiges of theWorld War

II assets

blockings,

and

complete

embargoes

on North

Korea,

 

Cuba,

Vietnam,

Cambodia,

South Africa

and Libya.

The

United

States

also

has

related

trade controls on what

used

to be

called

the Soviet bloc,

but

the controls

and

the bloc

are both

in the process

of dissolution.

Sanctions

were

just

recently

lifted from Nicaragua,

Panama

and

Namibia.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In

light of the dramatic

changes

in the sanctions field recently, this panel

will

be

examining

two

interrelated questions.

 

First, why

use

sanctions?

 

Second, when

are

sanctions

effective (and

how would

you know when

they are)?

 

 

 

 

 

 

can

 

 

Confusion

over

the policy objectives

behind

economic

sanctions

 

programs

sig

nificantly hinder

a

rational

critique of the effectiveness of such programs.

It is there

fore important to identifyand distinguish

 

the choices

available,

considering the policy

objectives,

from the totalmenu

of sanctions.

I can

think of no one better qualified

to

address

this

issue

than our

first speaker,

Barry

E.

Carter,

professor of

law

at Ge

orgetown

and chair of itsCommittee

 

on

International

Law

 

Programs.

Barry

has

a

long and distinguished

 

career,

 

in and

out of government. He

 

is a prolific author,

and

one of his recent accomplishments

 

is his celebrated

book

 

International

Economic

Sanctions,

published

by Cambridge

University

in 1988.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Remarks

by Barry

 

E. Carter*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Two

themes are

 

the subject

ofmy

remarks:

the policy

justifications

for sanctions

and

the laws for seeking

such policies.

I particularly want

to focus on

the laws, but

firsta few remarks about

the policy justifications.

Sanctions

 

have

 

been

used

increas

ingly in recent years fora variety of reasons. Until

about

1960, sanctions were

primar

ily used

for national

 

security-based

 

reasons:

 

for

example,

blockades,

efforts

to

overthrow

a

government

and

 

coercion

intended

to pressure

a

country

to withdraw

from another country.

 

Sanctions

also were used

to limit strategic and military

poten

tial, such

as

restrictions on

exports of high

technology

products

 

to the Soviet bloc.

Sanctions

were occasionally

used to help

settle expropriation

 

claims.

Especially

since

1972, a

variety of other justifications have

emerged,

such as human

rights, antiterror

ism and nuclear

nonproliferation

concerns.

Sanctions

have also been specifically trade

based;

for example,

those directed

against

the trading practices

of Japan.

 

 

 

 

 

Since

there is a

limit on what

we

can

cover

today,my

discussion

 

will

focus on

the

use of sanctions

for national

security and

foreign policy

 

reasons

that do

not

include

purely

trade-related matters.

There

are

a

variety ofU.S.

 

laws on

 

the subject.

Some

U.S.

laws are specific, e.g.,

theExport

Administration

Act

provides

specific authority

for national

security-based

export controls and

there are

specific

import laws on

ter

rorism. Generally,

 

though, the laws can

be used

for any

"willy-nilly" purpose.

The

policy justifications can change because

the laws permit a variety of justifications.

 

It is important tonote

that under

international

law there is very little tobe found on

the subject.

There

are bilateral

 

trade treaties as well

as multilateral

 

agreements,

such

Professor of Law,

Georgetown

University

Law

Center.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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205

as

theGeneral

Agreement

on Tariffs

and Trade

(GATT).

In theNicaragua

case,

however,

the International Court

of Justice indicated that customary

international

law

did

not prohibit U.S.

embargoes

against Nicaragua.

 

 

 

 

 

 

 

 

 

Frankly,

what

is more

interesting

is U.S.

domestic

law. Two

important

points

should

be made.

One,

 

there

is a wealth

of U.S.

law, but

it is haphazard.

The

laws

skew the President's discretion

toward

those sanctions

that are not necessarily

in the

national

interest. For

example,

as

a general

rule, the laws push

the President

to im

pose export controls. Two,

the laws also

skew thePresident's

discretion

towards dubi

ous declarations

 

of national

emergency.

I believe

that there are better ways

to operate

sanctions. At

the conclusion

ofmy

presentation

I will

offer some

recommendations.

Chart

I ofmy

handout

materials1

 

illustrates

the degree of presidential

discretion

under U.S.

sanctions

law, absent

a

national

emergency.

As

you

can

see from

the

handouts,

 

I also

divide

presidential

sanctions

authority

into emergency

and nonemer

gency

situations.

Chart

I divides

sanctions

into five categories:

(1) bilateral govern

ment

programs;

(2)

exports;

(3)

imports;

(4)

private

financial

transactions;

and

(5)

international financial

institutions.

 

 

 

 

 

 

 

 

 

 

 

 

 

As

is clear from the chart, thePresident has nearly unlimited

discretion

concerning

bilateral government programs and export controls. Judicial review ishighly limited.

For

example,

theU.S.

Government

 

can require an exporter to obtain a

license to ship

paper

clips

 

to Brazil.

 

The

limits that do

exist on

the President's

authority

to impose

export

controls primarily

involve agricultural boycotts

and contract

sanctity

issues.

In contrast, U.S.

laws extensively

limit the President's

discretion

to impose

import

controls.

This

reverse situation

is due

principally

to the fact that restrictions on

 

im

ports

into theUnited

States

are based

on

economic

grounds,

not reasons

of national

security or

foreign policy.

For

instance, existing

import prohibitions

 

involve critical

defense materials,

sugar, beef and

Soviet

bloc

exports

under

the Jackson-Vanik

ban.

One

vivid

example

involves

the prohibition

on seven

types of Soviet

furs, excluding

sable.

In the trade community,

the ban

is referred to as

the "Seven

Deadly

Skins."

Another

example

illustrating the economic

focus of import controls

involves President

Carter's

effortsduring

theAfghanistan

crisis to cut off the import of Soviet

ammonia

by

invoking section 406 of the 1974 Trade

Act.

Section

406 authorizes

 

restrictions on

imports from Communist

countries

if injury to U.S.

 

industry resulting from an

in

crease

in the imports is shown.

President

Carter was

able

to impose an extensive

cut

offofU.S.

exports to the Soviet Union,

but was

unsuccessful

inbanning

the import of

Soviet

ammonia

by Armand

Hammer.

The

International Trade

Commission,

which

administers

section 406, found

insufficienteconomic

evidence to warrant

a ban.

 

 

As with

import controls,

the President's

discretion

is also

limited

 

in the areas

of

private financial

transactions

and

international

lending institutions. There

are

exten

sive restrictions regarding South Africa, but

they are unique.

 

 

 

 

 

 

 

 

 

 

In national

emergency

situations,

the President

is given greater

freedom

to cut off

imports and

financial

transactions.

A

presidential

declaration

of national

emergency

is fairly easy

tomake

under currentU.S.

laws. The

criteria are open-ended.

 

The

1985

Nicaraguan

 

embargo

 

is a good example?as

 

evidenced

by theDoonesbury

cartoon

in

my

handout

material.2

The

embargo was

imposed

by

the President

with

 

little con

gressional

review.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

lSee

 

.Carter,

 

International

Economic

Sanctions:

Improving

the

Haphazard

 

Legal

Re

gime

26-27,

33,

200,

239,

244

(1988).

Chart

I

is at page

33.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2Id.

at

200.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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206

As

I noted earlier inmy discussion,

I think that there are better ways

to apply

and

operate

sanctions. My

recommendations

 

are presented

in outline

form on page

7 of

my

handouts.3

Generally,

I recommend

 

that thePresident's

export control powers be

reduced

somewhat

and

his

 

import powers

increased.

 

In

addition,

 

the President's

emergency

powers

authority

should

be more

clearly defined.

 

 

 

 

 

 

 

 

 

Professor Malloy:

 

Before continuing,

 

I would

just

like to add

that besides

 

little

congressional

oversight

in declared

 

emergency

situations

like

the Nicaraguan

 

em

bargo,

there

is little judicial

oversight. As

 

an example,

the court

inBeacon

Product

Corp.

v.Reagan, District ofMassachusetts,

 

1stCircuit,

held that the President's

dis

cretionary

authority was

 

not

subject

to review.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I would

now

like to turnour attention

 

to the second question

before

this panel,

that

of assessing

the effectiveness of sanctions.

 

Arguing

 

that a

particular

 

sanctions pro

gram

is?or

is not?"effective"

is often a politically

charged statement. What

itmay

express

is fundamental

opposition

to the overarching

foreign policy with

respect to the

target,more

than any specific objection

to sanctions.

 

In addition, public

debate

about

the "effectiveness"

of a particular

sanctions

program

quickly escalates

 

into the argu

ment

that sanctions?any

 

sanctions?are

 

 

never, or almost

never, effective. This

sort

of criticism,

though often overly generalized, may

relate to genuine,

analytically

based

criteria of effectiveness. The

problem

remains, however,

that criticism

 

is often highly

episodic,

ifnot

idiosyncratic, and

seems

to treat sanctions

as

iftheyoccur inan instant

and

could

be assessed

absolutely

in that context. Yet

 

sanctions

are applied

over time,

and

their immediate objectives may

shift in emphasis

 

over time. In addition,

tracking

the effectof sanctions

in any direct

causal

 

sense

is not an

easy matter.

 

 

 

 

 

For

example,

Vietnam

 

has

been

the target of U.S.

 

 

sanctions

since

1964, with

the

former South Vietnam

added

to the sanctions

in 1975. Clearly,

these sanctions began

as an

instrument incidental

to the involvement of U.S.

armed

forces

 

in theVietnam

conflict, but

they are now

counterpoised

 

against

continuing

foreign policy

differences

between

the United

States

and Vietnam.

 

 

Sanctions

 

have

not

in and

 

of

themselves

resolved

thewide

range of foreign policy

differences that exist between

 

the two states.

Yet we do know thatVietnam

has

experienced

severe economic difficulties that cannot

have been

eased by continuing U.S.

sanctions,

and

this situation has persisted. Yet

we

are

sometimes

told by visitors to the area

thatU.S.

 

policy

has

led to isolation

of the

United

 

States,

not Vietnam.

 

The

fact remains

that

themovement

of events

is not

embargoed

by

sanctions,

and

critics as well

as policy makers must

be

 

sensitive

to the

fact that sanctions may

become more?or

 

 

 

less?effective

over time.

 

 

 

 

 

 

 

To

say that, given

the current circumstances

of any

international crisis, the applica

tion of

sanctions will

not immediately work

a cure does not necessarily

counsel

re

fraining from sanctions.

 

The

Iran hostage

crisis

is a

case

in point.

Ultimately,

the

unilateral actions undertaken by thePresident

did not, of themselves,

resolve

the crisis

between

the United

States

and

Iran. Given

the religious

and

revolutionary

fervor

prevalent

in Iran,

then and

now,

perhaps

no unilateral

action,

no matter

how

harsh,

could

have

effecteda resolution of the crisis. Yet

embargo and blocking

restrictions of

the

type applied

to

that situation have

 

traditionally

been

viewed

by U.S.

 

courts as

necessary

for resolving

international

crises.

 

 

 

 

 

 

 

 

 

 

caution

inmaking

This

 

long view

of

the application

of

sanctions

would

suggest

quick

assessments

of

sanctions programs,

yet

instant analysis

continues

 

to be

the

norm.

For

example,

in less than fourmonths

from their imposition,

 

theNicaraguan

sanctions were

declared

to be a failure. By mid-1987,

 

the long-term effectof the sane

 

*Id.

at 244.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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207

tions was

said

to be

a

gain

in trade for Japan, to the detriment of theUnited

States.

Yet

by

the end of

1988, information fromNicaragua

 

appeared

to

indicate

that the

country was

 

in a

state of perhaps

irrevocable

economic

decay, which

apparently per

sisted. Since

 

then, economic malaise

has

fueled an electoral

upset

for the ruling party

inNicaragua.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Where

 

a political

consensus,

pro or con, develops

with

respect

to a particular

sanc

tions

target, public

perception

of

the effectiveness of sanctions may

 

coalesce.

Other

wise,

 

itmay

 

seem that critics are speaking about differentprograms

altogether.

 

Criticism

of the effectiveness of sanctions

often illustrates two potential

problems

in

assessing

them. First,

 

identifyinga

single, dramatic

objective

of a

sanctions program

may

 

be

disingenuous.

 

For

example:

"Sanctions

have

not ended

apartheid;

hence,

sanctions

are

ineffective." The

simple

truth is that sanctions cannot

end

apartheid;

South Africa must

 

end apartheid.

Sanctions,

as an

instrument ofU.S.

foreign policy,

generally

can

change

only overall

circumstances

and may

affect the pace

of events.

Second,

and

related

to the firstproblem, much

criticism views sanctions

in isolation

and

attempts

to test for a direct, causal

relationship

between

the imposition of sanc

tions and

the achievement

of a broadly

conceived,

dramatic

objective.

Putting

aside

the epistemological

difficulties of establishing

causal

relationships

in any complex

of

events, the fact remains

that such criticism

implicitly assumes

that the causal

relation

ship here

is a binary one, and

that it should be ascertainable

 

in the short term. These

assumptions

 

are questionable.

As

the chair of theHouse

Foreign

Relations

Subcom

mittee

on Africa

 

was

 

reported

to

have

said:

"Sanctions

aren't

a quick

fix

for

apartheid.

There

is a

long, protracted struggle inprocess,

and

[sanctions]

are part of a

pattern of developments

thatwill

shorten this time frame and accelerate

the onset

of

negotiations."1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

This

is not

to say that circumstances

may not affect the appropriateness

of specific

sanctions

in particular

 

situations.

In

the case of the Libyan

sanctions,

for example,

U.S.-Libyan

 

trade was

 

reported

to have

been

generally

 

low before

 

the imposition of

trade prohibitions.

On

 

the other hand,

unknown

or uncontemplated

circumstances

may

have

surprising effectson

the "pattern of developments"

intowhich

sanctions

are

inserted.

In the case

of theLibyan

sanctions,

on

the positive

side,

itappears

that the

Libyan Government

 

assets

blocked

by the sanctions may

have

far exceeded U.S.

Gov

ernment

expectations.

 

 

On

the

negative

 

side,

sanctions

 

against

Libya

 

carried

repercus

 

sions

forU.S.

 

relations with other

Islamic

states.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

It

 

is against

this troubling factual background

 

we

must

seek reliable criteria for

 

 

that

 

assessing

the effectiveness of economic

sanctions.

Presumably,

thesewould

be criteria

that are

sensitive to the purposes

of sanctions,

as Professor Carter

has

suggested

inhis

book.

There

 

is, however,

considerable

uncertainty

over

the purposes

against which

the sanctions

are

to be measured.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Typically,

 

the result of such assessments

seems to be

somewhat

of a

rigged game.

Seeking

a direct causal

 

relationship between, for example,

a

trade embargo

and

a fun

damental

and

immediate change

in a

significant policy of a

target state places

an often

unrealistic

expectation

upon the use of a sanction. Not

surprisingly, under

such crite

ria it has

been

said

that generally

"sanctions

do

not

contribute

very much

 

to

the

achievement

of foreign policy

goals";2

that is to say,

that sanctions

 

are not generally

effective.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

^reenberger,

at

U.S.

Trade

 

Sanctions

on South

Africa Starting

toPay

Long-Term

 

Dividends,

Wall

St. J.,

Sept.

21,

1987,

24,

col.

1 (quoting

Rep.

Howard

W?lpe).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

2Hufbauer

 

&

Schott,

 

 

supra p.

203,

note

2, at

79.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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208

From

studies

like that of Hufbauer

and

Schott one may

derive

certain

useful,

if

anecdotal,

"political"

criteria or rubrics for assessing

sanctions. Nevertheless,

 

 

certain

features

of

these

studies

 

tend

to raise

questions

about

 

the efficacy of their recom

mended

 

approaches

to the task of assessment.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

First,

there is a problem with

 

the identification of the purposes of a particular

sanc

tions program.

 

Effectiveness

or

"success"

of a

sanctions

program

has

tended

to be

measured

 

against

broad

 

pronouncements

of policy objectives,

rather than the instru

mental

objectives

of sanctions

 

themselves.

Yet

sanctions,

if successful,

only

directly

effect instrumental objectives:

preventing

themovement

 

or

transfer of assets

already

subject

to the sanctioning

state's jurisdiction;

 

limiting the flow of foreign exchange

to

the

target state; isolating

the

target country

from

international trade

and

financial

markets;

and maintaining

 

sanctions

(and

embargoed

assets)

as a counter or "bargain

ing chip"

for any

future resolution

of the differences between

sanctioning

and

target

states.

In a properly formulated foreign policy,

these instrumental objectives

fitwithin

a broader

scheme

of objectives

 

but are

not

 

coincident

with

the

latter. What

most

studies

of

sanctions

effectiveness tend

to do

ismeasure

 

the success

 

of that broader

scheme

of objectives

only, as

if sanctions were

coincident.

 

 

 

 

 

 

 

 

 

as

 

 

 

Second, most

 

studies

treat the identifiedobjectives

of a

sanctions

program

ifthey

were

static;

in other words,

the objective,

once

announced,

 

is not

contemplated

as

changing over timewith change of circumstances.

Yet

 

instrumental purposes

 

of sanc

tions are oftenmultiple,

with

relative emphasis

shifting (and

contemplated

 

to be

shift

ing) over

time.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

at face

Third, many

 

studies

take public

pronouncements

of broad

policy

objectives

 

value.

This

problem may

 

be

unavoidable

 

ifone

seeks

to develop

a

consistent

and

regular

system of assessment

to apply

to sanctions

programs.

Yet

 

the uncritical

ac

ceptance

of publicly

announced

 

policy

objectives

can

skew one's assessment.

 

For

ex

ample,

the League

ofNations

embargo

against

Italy was,

ostensibly,

 

intended

to stop

the Italian

war

against Abyssinia,

but it

 

 

be

argued

 

that "effective"

sanctions were

 

 

 

 

 

 

 

 

 

may

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

of sanc

not

in any real

 

sense a primary policy

goal

of British Government

 

sponsors

 

tions. Yet

 

this episode

 

is recorded

as

an

example of

the ineffectiveness of economic

sanctions.

The

 

real

point

is that

the sanctions

as

applied

failed

their

instrumental

purpose;

theywere neither constructed nor applied

adequately

to

isolate

Italy.

 

 

What

 

is still required are a

relatively greater attention

to the instrumental purposes

of economic

 

sanctions

and

a more

directly

empirical,

less abstract

approach

 

to

the

available

data.

 

For

example,

two relatively straightforward

instrumental purposes

of

sanctions?to

 

limit theflow of foreign exchange

and

to isolate

the target from interna

tional

trade and financial markets?ought

 

to be

reflected

in data

concerning

 

foreign

exchange holdings

and volume

of exports and

imports. Inmy book

 

I have

focused on

such data,

and

 

inmany

cases

 

some apparently

significantmovement

 

in the year-to

year data

can be

perceived.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

On

this basis,

the case

of thePeople's

 

Republic

of China

 

suggested moderate

 

effec

tiveness

in achieving

instrumental objectives.

 

It also

seems undeniable

that the impact

of the Iran blocking was

swiftand

significant. In contrast, performance

of the South

ern Rhodesian

 

 

sanctions

 

appeared,

at best,

erratic.

a

 

 

 

 

 

 

 

set of

 

 

 

 

 

 

In the case

 

of South Africa,

 

we

are

faced with

very complex

sanctions,

applied

 

over

a

 

relatively

long period of

time. Some

 

indication of

these complexities

should be evident inFigure

8.2

(pp. 486-88)

 

ofmy

book

 

previously

referred to.

 

The

South Africa

sanctions

are ongoing, but

the empirical

data,

through

1988, have

not been encouraging.

Foreign

exchange

holdings, on

the readily available

data,

have

been

on

an upward

trend since

sanctions were

first imposed.

Trends

 

in both

export

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209

and

import data

have

generally

remained

relatively positive.

Performance

of broader

indicators, such as gross domestic

product, has been more

erratic, but at the very least

does

not

suggest a

significant impact of sanctions on

the economy.

 

 

 

 

 

 

 

 

 

Events

inSouth Africa may

be overtaking us, however, and we now

turn to our next

speaker

for a more

particularized

examination

of the effectsof sanctions

on develop

ments

in South Africa.

Adrien

K. Wing

has been

extremely active

 

in the affairs of the

Society,

having

recently

served

three years

on

the Executive

Council,

 

and

on

this

year's Nominating

Committee.

 

She has

chaired

two panels at past annual meetings

of

the Society,

and she

currently

serves on

the Executive

Board

of

the South African

Interest Group.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Remarks

 

by Adrien

K. Wing*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The

rapidly changing

events

in South Africa make

 

any discussion

of sanctions

diffi

cult. To

date, Nelson

Mandela

 

 

is free, theAfrican

 

National

Congress

is no

longer

banned, Namibia

 

is independent, and

de Klerk

is the new head of the South African

Government.

 

Many

of

these events were

inconceivable

even

six months

ago.

 

It

is

difficult to speculate on

 

the influence ofU.S.

sanctions

against

South Africa.

Never

theless, as

international

lawyers,we

can

examine

the rationales

for theU.S.

sanctions.

Three

rationales

are discernible:

 

to influence South African

policies;

to punish

South

Africa

financially;

and

to demonstrate

symbolically U.S.

opposition

to apartheid.

 

It is important to note

the background

fromwhich

the current sanctions derive.

In

1986, Congress

 

passed

theComprehensive

Anti-Apartheid

Act.1

The

 

1986 sanctions

bill

was

a

compromise

measure

resulting

from

a

prolonged

campaign

by

 

anti

apartheid

forces. Although

the bill was

vetoed

by

then President

 

Reagan,

Congress

overrode

the veto. Congressman

Dellums

 

still has

a bill pending formore

comprehen

sive

sanctions

than those mandated

by

the 1986

legislation.

 

 

 

 

 

 

 

 

 

 

 

 

There

are

a

number

of questions

to ask when

measuring

the success

 

of

theU.S.

sanctions. Were

the stated policies

achieved

by

the

legislation,

and,

if so,

to what

extent? Many

argue

that the sanctions

should be

liftedbecause

Mandela

 

 

is now

free.

However,

 

South Africa

still has a

longway

to go toward achieving

themost

important

goals,

namely,

the establishment

of

"one man,

one

vote"

and

 

the elimination

of

apartheid.

I believe

it is far too early

to say

that the sanctions have

been

successful.

We

also

need

to examine

the contribution

of the sanctions to the recent positive

out

comes.

The

economic

indicators

are hard

to decipher?foreign

policy

objectives

are

only

beginning

to be

achieved.

The

 

1986 sanctions were

not

the first. The

United

Nations

 

agreed

to arms-related

sanctions beginning

in 1963 and adopted

a mandatory

arms embargo

in

1967.

During

 

the

1980s, theUnited

States

extended

 

its sanctions,

and

in 1983 opposed

funding by

the International Monetary

Fund.

Congressionally

mandated

 

sanctions were

temporarily preempted

in 1985 when

the President,

by exec

utive order,2 imposed sanctions under

the authority of the International

Emergency

Economic

 

Powers

Act.

 

In addition,

 

there was

a divestment

campaign

taking place

outside

government.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Using

Professor Carter's

framework, the 1986 sanctions

affected five areas?govern

 

ment

programs, U.S.

exports,

 

imports from South Africa,

and private

and

interna

tional

financial

transactions.

The

1986

legislation

 

in many

instances

codified

the

President's

 

1985 executive

order. Examples

of affected government

programs

are:

Professor

of Law,

University

of

Iowa

College

of Law.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

*26ILM 77 (1987).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

224 ILM

1488(1985).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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210

prohibition on air landing rights; scholarship

programs

to

assist

the

victims

of

apartheid;

and extension

of credit

to nonwhite

South Africans

by

the EXIM

Bank.

The

export

controls mandated

 

by

 

the legislation also codified provisions

of the

1985

executive

order;

for example,

controls on nuclear-related

items and

computer

equip

ment.

The

 

import ban

applied

 

to a number of

items?Krugerrands,

 

arms, military

equipment,

 

uranium,

textiles, sugar and

imports from companies

owned

or controlled

by

the South African

Government.

It is interesting to note

that the uranium

import

prohibition

 

has been

ignored. Also

notable

for their absence

from the import ban

are

strategic materials

and

diamonds.

 

As

for financial

transactions,

the

1986

 

legislation

codified

existing

regulations

on no

new

loans

to South African

Government

 

entities.

In addition,

the law prohibited

new

investments in companies

in South Africa,

except

(and

these are big exceptions)

the extension of short-term trade credits and

 

the rein

vestment of profits generated

in South Africa.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

It

is arguable

that if theUnited

States were

truly serious

about

South Africa,

then

we

would

 

institute a

total embargo, similar to that against

Libya,

inwhich

all U.S.

companies

would

 

be

required

to

leave

the country. Moreover,

 

the current sanctions

contain

loopholes

resulting not

only from the scope of

the

law

itselfbut

 

also

 

from

Executive

Branch

discretion

 

in carrying out the law.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What

should be done now? Many

would

claim that theBush

administration

policy

is "constructive

engagement"

by another

name.

For

example,

funding forUNITA

continues while

very

little aid

is allocated

to the newly independent Namibia.

 

I be

lievewe must pressure theBush

 

administration

tomaintain

the sanctions.

Currently,

sanctions

can

be

lifted if all

political prisoners are released (25

percent

have

been

released),

and

if three of the following

four conditions

are met:

repeal of the state of

emergency;

 

legalization

of

all

political

groups

(which

has

occurred);

repeal

of

the

Group

Areas

and Population

Registration

Act;

 

initiation of negotiations

between

the

South African

Government

and

the black

leadership.

Thus,

sanctions

can

be

lifted

even iftheGroup Areas

and Population

Registration

Act

remains

in place.

 

 

This Act

is

the fundamental basis

of

apartheid.

Sanctions

should

not

be

lifted under

such

circumstances.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Professor Malloy:

 

Covey

T. Oliver will now comment on what

 

has

been

said at

today's panel.

From

his

long service

as

a

law

teacher, prolific author,

ambassador,

World

Bank

Executive Director,

 

Assistant

Secretary of State, Co-ordinator

 

of theAl

liance forProgress

and

long-time servant of the Society, I pluck

one

interestingdetail.

Professor

Oliver

was

in at

the creation

of theWorld

War

 

II

economic

 

sanctions.

When

I talk to him about

old Executive

Order

No.

8389,

I see

the glint inhis

eye of

the true economic

warrior.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Remarks

 

by Covey

T. Oliver*

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

I am

reminded

of

the

line?old

 

economic

warriors

never

die

they just

 

get

their

assets

frozen.

I seemy

tasks as

the following:

(1) identifycertain

terminological

vari

ables

that are

thought to be

followed by

linkages

that relate to the effectsof economic

sanctions;

(2)

appraise

those effectsbriefly; (3)

provide

a

few functional

observations

about

effectiveness.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As

to terminological

variables,

 

it is important to determine who

is sanctioning;

 

that

is, an

international organization,

 

a

group

of states, or

a

state acting

unilaterally.

In

addition,

one

should

determine what

kind of "economic

sanction"

 

is involved.

For

example,

one

type of economic

 

sanction

is a form of self-help through countermeas

*Professor Emeritus of International Law, University of Pennsylvania Law School.

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211

ures. The

excellent panel

discussion

 

on Self-help

in International Trade

Disputes

calls

this tomind?particularly

 

the observations

of Professor

 

Zoller.

 

Self-help

is a

legiti

mate

response

(provided

 

it is not excessive

and

unreasonable)

 

to a

preceding

 

injury

sufferedby the acting state under general or treaty international

law. We

should keep

this concept inmind

both

to differentiateand

 

to examine

permissible

responses. As

an

example,

I note

the League

of Nations

embargo

against

 

Italy mentioned

earlier

by

Professor Malloy

 

in his remarks. An

economic

sanction

can also

be a form of retalia

tion?whether

directly,

remotely or not

even?linked

 

to actions by

the other con

cerned

state. Then

comes

economic

warfare,

or as

it is called

 

today, authorized

 

use of

economic

force as

an alternative

to the use of armed

force. The

concept

is enshrined

in theUN

Charter.

It has

also

been

used

in a semidefensive way

by a

state or groups

of states. The notion

goes beyond mere

denial

and

is specifically directed

to coerce

the

will

of the target state. Economic

warfare

has

also

been

applied

unilaterally as a kind

of spurious self-defense.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

What

about

the effects of economic

sanctions?

The

effects of economic

sanctions

can

be

described

as

psycho-political

 

in nature.

They

are

always

tension building

in

international relations. They

cut

to the quick

as

far as national

prestige

is concerned.

They

triggerdelicate

internal reactions

in the target state and

sometimes

in the acting

state.

Interactions

also occur

 

in domestic

politics

as well

 

as

international politics.

In

addition, economic sanctions

affect the development

process.

Losses

come

from sanc

tions, particularly

sanctions

that are on/off in nature.

 

I have

called

 

it the "gringo's

light switch" effect in a

development assistance context. The development process

requires a

steady

input to produce

 

exponential

development

effects. When

we

use

sanctions,

even

for purposes

of human

rights or helping

democracy,

we must

 

recog

nize

the negative

effectson the development

pattern of the target country. For

 

exam

ple,

Chile

suffered enormously

in economic

development

when

the United

 

States

imposed unilateral

sanctions designed

to induce Pinochet

 

 

to leave power.

It is impor

tant to recognize

that sanctions

carry a human

price for their otherwise

appropriate

use.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

At

this point my

discussion

culminates

in examining

 

 

the difficult area

of human

rights and

economic

sanctions.

To

what extent

in theworld

 

community

through

in

ternational organizations,

multipartite

structures and unilateral

actions

should

a state

use this or that kind of economic

sanction

to further the cause

of human rights?

I am

glad

sanctions happened

in South Africa, but

I am

also

glad

I did not have

to face the

issue as a

State Department

or World

Bank

official. A World

 

Bank

official

is not

supposed

to consider

political

 

factors when making

development

loans and grants.

My

successors

 

as U.S.

 

Executive

 

Director,

however,

 

have

been

required

to vote

against

certain

loans on

noneconomic

grounds.

 

I am

sure of one

effect: economic

sanctions work

 

in time of armed

conflict against

an

enemy

that is highly

industrial

ized, short of rawmaterials

and vulnerable

by sea. Other

 

than under

those conditions,

effectiveness of sanctions

 

has

been

 

spotty.

I would

say

that sanctions

in pursuit of

human

rights have

been

successful

in the case

of South Africa.

However,

 

there are a

number of failures?Cuba

 

and North Korea

come

tomind.

Rhodesia

was

a multipar

tite failure. I end with a view

that sanctions

are an extremely dangerous

weapon

that

must

be used with

utmost

caution,

and in the process

of using

them agonizing

value

choices often have to be made.

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