International Scenarios for International Sanctions: Six Landscapes to Face With.
- AAmstg
- Nov 6, 2024
- 5 min read
Updated: Nov 13, 2024
(published Aug 30th; updated Nov 6th, 2024)
Beyond legality and legitimacy, beyond justice or fairness, how about effectiveness and enforceability if dealing with arbitral or mediation outputs?
Introduction
The Spanish Ministry of Foreign Affairs has explained in general terms that international sanctions are coercive measures applied against States, non-state entities or individuals that pose a threat to international peace and security. This type of declaration of intent has been expanding in the international panorama of trade and international relations. The sample taken from the Spanish Ministry is neither the first nor the most expeditious manifestation of this trend, but it was closer to me. The Portuguese Ministry of Foreign Affairs has a similar declaration in its publications on the ‘Portal Diplomatico' of the Portuguese Republic. Spain and Portugal are not exceptions within the European Union, but a symptom of the permeability of this type of regulatory control mechanisms that form a substantial part of the institutional framework of the Union. An expression of the will to use coercion and, at the very least, to dissuade the reluctant or to warn of possible disaffection with a certain vision of how social actors should behave. Behaviour conduct training is precisely doing such a thing: guiding the line of conduct pointing at what is not allowed and using clear rules about the limits, and the waypoints for convenience.
Both States and the rest of the EU understand that sanctions are restrictive measures as a multilateral instrument, of a political-diplomatic nature, of a non-punitive nature, which aims to modify actions or policies, whether they are an expression of the Common Foreign and Security Policy (CFSP) programme or the decisions adopted by the United Nations Security Council (UNSC). The EU and UN are thus two relevant frameworks of legitimacy for international sanctions.
For this reason, it is worth focusing on the influence that this expression of the public policies of the States, and the organisations that the States create, seeks to impose on trade, the economy, finance and international activity in general. It is part of the regular track of governmental actions. And, singularly, in the distortions that it is capable of generating in the regular functioning of institutions created for the resolution of controversies and the recovery of consensus in the orbit of international relations in general and the promotion of trade and cooperation in particular, as the best instrument for peace and progress. Thus, before dissent is enthroned as a lever to thrive on the externalities generated on the international stage by public policies; thus, sanctions are an expression of externalities generated by States or those who act in their interests.
The Industry of sanctioning policies; its intersection with dispute resolution bodies.
Several organizations have been established in the shadowed comfort of these ideas, either as agencies of States or their multi-state organizations, or from private or public-private bodies (state corporations) to order and also promote these practices. Precisely, the organization called Financial Crime Academy declared in May 2024 that the main States and organizations that impose sanctions are the United Nations, which imposes multilateral sanctions; the United States, which imposes unilateral sanctions; and the European Union, which also imposes multilateral sanctions. At the same time, it dedicates its core team, which is not advertised much given the little it mentions on its website, and its panel of experts - the latter yes: well-stocked and diverse - to the organization of courses and accreditation of knowledge on the varied expression with which the various manifestations by which criminality disturbs the regular expression of freedom and its derivatives in commerce, industry, economy and finance are sequenced and analyzed.
One of the areas where the expression of sanctions arising from the supervision policies of the States mentioned above and organizations (and also the United Kingdom and Canada, as well as Australia and New Zealand, but to a lesser extent the latter), is the impact they produce on the regularity of the processes and procedures by which the management and resolution of conflicts in the international sphere is attempted and regularly achieved; whether outside of trade, transport or investments. Processes and procedures whose main channels are articulated around international arbitration and mediation.
Without any intention other than to highlight what I could identify as the main issues in which a disagreement may occur, I have found it interesting to analyze a series of issues that seem idiosyncratic to the different circumstances where the application of international sanctions (or the intention of such imposition) may occur in the regular experience of the work of arbitration tribunals or international mediation bodies.
Although I hypothesize that these are sanctions agreed upon by the Council of the European Union, they would be work scenarios regardless of whether their origin is the European Union, the United States, or any commonly recognized State or international organization. In all cases, they are externalities sought to obtain a benefit at the expense of third parties. However, anyone who reviews the plurality of sanctions already approved, and their diversity in the areas of circumspection, cannot fail to observe that all of them are based on the same pretensions: unilateralism, expansiveness and imperium. They must be declared legal, to the extent that they originate from organizations internally capable of adopting them; but apart from this impulse, it is worth asking whether they meet other requirements of the norms belonging to the rule of law, what would be the legitimacy of adopting them and the justice of their objectives; and, finally, what is most important now, the effectiveness of their implementation.
The reasons why such sanctions are approved with the intention that there are States, companies or people who suffer them and adapt to what is expected of them are out to the content of these posts (legitimacy, justice). The only thing that is important to mean is that they are adopted and become part in their respective singularity of the regulatory corpus of whoever approves them (legality) and, therefore, of the governmental action (enforceability, effectiveness) of whoever accepts that such regulation conditions its external action, its internal action and the institutions that it protects within its sphere of sovereignty. Some of these institutions are the judicial and arbitration systems, as well as the public and private institutes where the claim to define what is fair and adequate within a controversy between dissatisfied parties may be their responsibility to decide (justice, fairness). This is what the paragraphs of subsequent posts are about, respectively dedicated to one of the 'Big Issues' that I have been able to identify, and which I list in a brief sample below.
Six Landscapes to visit before any match you need to deal with International Sanctions Policy coming from (but not limited to) the EU.
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