es4

Discussion:

Michael

Finkelstein*

suggested

to Professor Wing

that ifsanctions were

suc

cessful

in ending apartheid,

would

we

not

still face

continued

bloodshed

resulting

from tribalwarfare?

Professor Wing

responded

that tribalwarfare

is a

real possibil

ity,but such a possibility

does not mean

thatwe

should

accept

the status quo or

lift

U.S.

sanctions.

Yasuaki

Onuma**

questioned

the legality under

international

law of

the use

of

sanctions

and

said

that Professor Oliver's

categorization was

most helpful

in this re

gard.

The

legitimacy of sanctions

is linked to who

is sanctioning?an

international

organization,

a

group of nations

acting

in concert

or a

country acting

unilaterally.

Moreover,

the legality of sanctions has differentbases.

For

example,

the legal analysis

would

be differentwhen

examining

sanctions by theEuropean

Community

against

the

United

Kingdom

as

a member

state

in contrast

to

sanctions

against Argentina,

a

nonmember.

Professor Carter

reiterated that therewas no customary

international law prohib

iting the use of economic

sanctions.

The GATT

agreement

does

have

some

limits, as

do a number of bilateral

trade treaties. The

concept

of regional groups

imposing sanc

tions

is interesting,but one must

be careful of the variables,

such as those leading

to an

Arab

boycott

of Israel.

The

United

Nations

is currently

looking at

the issue of con

straints on

the use

of economic

sanctions.

There

are effortsunderway

to define

the

limits; for example,

limiting use

to national

security-based

grounds.

Professor Malloy

added

that the sources of legality can be derived from any of the

categories

offeredby Professor Oliver.

Professor Elisabeth

Zoller

of theUniversity

of

Strasbourg

also

has offered a framework for analyzing

the legality question.

Professor

Malloy

furthernoted

that true international organization

sanctions had

actually

been

failures. The

successes

tended to be

those

sanctions

imposed unilaterally.

According

to Professor Oliver,

the objective

intended by

the sanctions

is relevant

to the question

of

legality. Also,

with

respect tomodern,

"non-use

of force" force,

there

is the question

of the extent

towhich

the proportionality

concept

applies.

On

this subject, Professor Oliver

wished

to incorporate by reference the colloquy

with

Elisabeth

Zoller

during

the panel

discussion

Self-help

in International Trade

Disputes.

In addition,

theRestatement

(Second)

ofForeign

Relations

Law

of theUnited States

has

adopted

the "rule

of reason"

as an overarching

principle

of state authority, which

Professor

Oliver

has

some problems with as an old antitrust lawyer.

Mr.

Onuma

posed

an additional

question

forProfessor Wing

regarding the heavy

burden

imposed by economic

sanctions

on

themasses

of the target country. Professor

Wing

replied

thatwe

impose sanctions

for a variety of rationales;

harm

to themasses

is a

variable,

but may

be outweighed

by other considerations.

of sanc

Mark

Paist***

asked

Professor

Carter

what

he meant

by

scaling

back

tions?as

inadding

procedural measures

to check

theExecutive

Branch

or as

in sector

specific, proportional

sanctions.

Aren't

there constitutional

limits on

procedural

checks?

In arguing

for sector specific, proportional measures,

doesn't

that

limit the

moral

force of the sanctions?

Professor

Carter

said

that the South Africa

sanctions

are

supportable;

however,

thePresident has sweeping powers

in the export control area with

very limited review.

We

are no

longer

in theWorld

War

II

environment, and

the President

should

not

Nuclear

Regulatory

Commission.

Professor

of

International

Law,

University

of Tokyo.

Member,

Virginia

Journal

of International

Law.

have

the power to cut offexports of paper

clips

to Brazil.

Sometimes

export controls

are merely the economic

version of "shooting

yourself

in the foot."

U.S.

jobs

are

lost

and U.S.

businesses

hurt. The

President's

authority should be

limited

in the export

control area and improved

inother areas. Why

cut off trufflesto the Soviet Union

but

allow Armand Hammer

to import a couple

of billion

dollars

of Soviet

ammonia?

Mr.

Paist

further asked

whether

Professor

Carter

supported

any

procedural

safeguards.

Professor Carter

indicated

that his handout

provided

a listing; for example,

con

tract sanctity compensation,

sunset provisions

and some right of review.

Judicial

re

view

should be limited because

themost effective sanctions

are

those that hit hard and

fast.

Professor Malloy

added

that the longer the period

of time to "layer

in" sanctions,

themore

likely the sanctioning

state's commitment

to solving

the problem

can

be

called

into question.

Data

suggest

that "hard

and

fast"

is themost

effective. The

Nicaraguan

sanctions were

a poor model?loose

sanctions

that stopped no one except

the unsophisticated.

What

theNicaraguan

example

showed was

that the objectives of

theU.S.

sanctions were

domestic?designed

to look as

iftheUnited

States was

doing

something. There

are better ways

to accomplish

such objectives.

Mr.

Paist

wondered

whether

Professor Wing

considered

economic

sanctions

an

end

in themselves or a means

tomove

to some military force. Professor Wing

indi

cated

that sanctions were

not an end

in themselves.

Sanctions

are a means

of achiev

ing stated policies.

Furthermore,

theUnited

States

should

not use

unilateral

force to

invade South Africa.

We

need

to

look at multilateral,

diplomatic

approaches

to re

solve problems.

Scott

Nuchow*

concluded

the panel

discussion

by discussing

the legality of eco

nomic

sanctions. According

toMr. Nuchow,

economic

sanctions are

illegal in lightof

the developments

in current international

law, albeit on a theoretical basis.

There

is a

historical

tradition of economic

sanctions?blockades

during theNapoleonic

period as

well

as U.S.

actions

during World

War

II

to prevent shipment

of

steel and

other

materiel

to Japan. Accordingly,

sanctions

are really a part of actual warfare and

there

are limits on theiruse. For

example, theUN

Charter

contains

limitations, but permits

such use

in certain instances for purposes

of self-defense. Exceptions

can be made

in

certain new

areas

like human

rights.

Sanctions

associated

with

human

rights may

be

permissible

as exemplified by

the treatment of South Africa.

Marynell

De Vaughn**

Reporter

The European

Community?International

Personality

Preand Post-1992

The

panel was

convened by itsChair, Desmond Dinan,***

at 8:30 a.m., March 30,

1990.

*Of

the New

York

Bar.

**U.S.

Department

of Commerce.

Department

of History,

George Mason University.