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Lecture 22

POL340Y1 Lecture 22: POL340 - Lecture 22 - Sanctions and Other Remedies

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Political Science
Gerard J Kennedy

Lecture 22: Sanctions & Other Remedies (March 16 , 2017) Class Outline • ICL “Leftovers” o “Effective Control” vs “Overall Control” ▪ Tadic / Bosnia v. Serbia • International Economic Law (extra: pp. 688 -714) • Remedies o Obligations flowing from internationally wrongful acts o Self-help: countermeasures • Economic Sanctions o Retorsion vs. Countermeasures (Differences) o History o Forms of sanctions o Mandatory vs. Permissive o Canadian domestic sanctions regime o Iran Sanctions ICL “Leftovers” Effective Control vs. Overall Control • Effective Control o Acts performed by private individuals engaged by a state to perform specific illegal acts in the territory of another state • Overall Control o Acts performed by organized and hierarchically structured groups; specific instructions not required for each individual International Economic Law (extra: pp. 688 -714) Treatment of Foreign Investors • Controversial set of int’l legal constraints on state jurisdiction over economic activity concerns state expropriation of property owned by foreigners • These limitations are part of the ‘treatment of aliens’ broader body of IL • Governed by GA Resolution Remedies • ‘International Law Commission Draft Articles & State Responsibility’ o ILC Draft Articles o A whole set of articles dealing with the consequences of a breach of IL ▪ i.e, an internally wrong act Obligations flowing from internationally wrongful acts - States have the obligations to stop doing something • Cessation & Non-repetition - Article 30 • Reparation - Article 31 - Full repair of the injury – to try to fix it - Injury = damage - Moral = for the fact of the breach itself (physical or monetary) • Restitution - Article 35 - To reestablish the situation prior to the breach to the best of one’s ability • Compensation - Article 36 - Compensate for damaged caused (financially assessable damage) • Satisfaction - Article 37 ▪ Most internationally wrongful acts that are acknowledged fall into satisfaction ▪ Para 2: Acknowledgement of breach, expression of regret, formal apology • (may not be out of proportion of injury or humiliate the state) - E.g. Eichmaann ▪ Israel acknowledged its conduct in Argentina ▪ Argentina deemed the case closed since it seemed to be satisfied - States don’t often offer compensation to other states in the cases of breaches • Special consequences for breaches of pre-emptory norms (jus cogens) - Article 40, Application of Chapter III ▪ Where there is a “gross or systematic failure” by a state, there is then an obligation on other states to cooperate to end those breaches through lawful means - Article 41, Consequences ▪ 41(2): • Other states cannot recognize the breaches as lawful nor maintain the breaches • - Article 49, Object and limits of countermeasures ▪ There are ways in which states can make self-care action ▪ 49(1): Countermeasure: • Taking of an action that would otherwise be unlawful in order to bring about/encourage compliance of the original violating state to their obligations ▪ 49(2)–Limits on countermeasures: • Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State - You can’t suspend jus cogens obligations and cannot commit an armed attack I- n order to induce compliance, some unlawful acts can be taken Self-help: Countermeasures • Article 51: Obligations not affected by countermeasures - Diplomacy must still be maintained ▪ Reference 50(2)(a): Dispute settlement procedures must be adhered to [important] • Article 52, Conditions - 52(1)(b): ▪ Inform the responsible State prior to committing to countermeasures - 52(1)(a): ▪ Inform the responsible State that they are making breaches - 52(3): ▪ Countermeasures should not be taken if breaches stop and if a dispute is still pending in a dispute settlement procedure (esp. in good faith) • Preamble to Sanctions • Would it be lawful for Kuwaiti to push into Iraqi territory to some extent during the Gulf War? - NO. The use of force can never be a countermeasure. This is not a countermeasure - Kuwait could have invaded Iraq with the right of self-defence, allows the use of force Economic Sanctions Retorsion vs. Countermeasures (Differences) • Retorsion - Unfriendly conduct that is not inconsistent with international law ▪ Need to comply with GATT ▪ Can be done unilaterally o (only affecting one state) ▪ Basically, a Treaty / trade agreement - One of the most powerful tools of states to induce compliance - Something a state chooses to do when another state breaks an obligation ▪ In order to induce compliance with international law - i.e. An act done by ‘State A’ that IS compliant under IL to compel ‘State B’ to comply with IL as a response to ‘State Bs’ IL violations • Countermeasure: o An act done by ‘State A’ that is NOT compliant under Int’l law to compel ‘State B’ to comply with IL ▪ As a response to ‘State Bs’ IL violations History • History of self-help remedies at IL - Retorsion vs. Countermeasures/reprisals - Prohibition on the use of force • Forms of sanctions • Tariffs/quotas/restrictions/bans • Travel restrictions - US on Russian individuals, no-fly lists - US recent travel ban on Six Nations (Muslim Pre-dominate states) • Conduct of business - Certain firms and individuals • Asset freezes - Prevent individuals or states to accessing assets • Retorsions or Countermeasures? • If you’re determining is something is a retorsion or countermeasure • Think about state actions: - Is there an international legal rule that prohibits the action of that? WTO members subject to provisions of GATT (47/94) - General Trade and Tariff Agreement (1947) & (1994) GATT Art. XI 1. No prohibitions or restrictions other than - Duties, taxes or other charges - Through quotas, import or export licenses or other measures • There are limits of certain tariffs between states • On others and in general, there are fewer obligations; not many states have laws about open borders • A state can limit the conduct of their citizens; is there are restriction outlined in the GATT **If it’s lawful and there is no legal restriction, you don’t need to justify the action GATT Article XX: General Exceptions These measures are not to be applied in an arbitrarily or unjustified discriminatory way such that is: (a) necessary to protect public morals; (b) necessary to protect human, animal or plant life or health; … • You can impose a ban on certain products if you feel that it’s necessary to protect human health - (incl: environment) • General provision of non-discrimination GATT Article XXI: Security Exceptions (b) General authorization that taking any action which it considers necessary for the protection of its essential security interests • Relating to: o Nuclear (fissionable materials) o Arms trafficking o In times of war or emergencies in IR • States can restrict trade under these measures, but these provisions are broad (c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security. • As long as sanctions comply with the GATT, they are retorsions; • What is the significance of the limits under the GATT and how do you apply to them to the other? - Treaty over custom - WTO overtly specifies exceptions but not as much restrictions Mandatory Sanctions • United Nations • UN Charter, Art 41 • UN Act, RSC, 1985 - Article 2: Compliance - Article 3: Punishments - UN Charter, Ch. VII, Art. 41 • SC may call upon UN members to implement measures not involved the use of armed forces o Such as the complete or partial interruption of economic relations of: ▪ Rail, sea, air, postal, telegraphic, radio, and other means of communication, ▪ & severance of diplomatic relations. United Nations Act, R.S.C., 1985, c. U-2 Art 2. When, in pursuance of Article 41 of the Charter of the United Nations, set out in the schedule, the Security Council of the United Nations decides on a measure to be employed to give effect to any of its decisions and calls on Canada to apply the measure, the Governor in Council may make such orders and regulations as appear to him to be necessary or expedient for enabling the measure to be effectively applied. Art 3 (1) Any person who contravenes an order or regulation made under this Act is guilty of an offence and liable • (a) on summary conviction, to a fine of not more than $100,000 or to imprisonment for a term of not more than one year, or to both; or • (b) on conviction on indictment, to imprisonment for a term of not more than 10 years. Application of Security Council decisions • When, in pursuance of Article 41 of the Charter of the United Nation • UNSC calls for Canada to apply measures  • Governor in Council (Canada) may make nece
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