We can witness in real time how the Trump administration is devastating international relations as well as the international legal order. Sanctions form an integral part of this disruptive behaviour, as they attribute political and economic weight to the US’ foreign policy agendas (see e.g. here; here). One particular tool to maximize these aspired goals is extraterritorial or “secondary” sanctions: unilateral or autonomous measures of (mostly) economic or financial dimension which do not directly target the ultimate addressee but aim to interrupt the addressee’s transactions with third States. The US has in the past always been the most active operator in this field and nothing indicates that the Trump administration will be altering that façon.
Much has been said about the conformity of such measures when viewed e.g. through the lens of the non-intervention-principle (NIP), the law on jurisdiction or international trade law (here, here, here). However, with regard to the recurring condemnation of such measures and their general reception as being contrary to international law, there are nowadays voices in favour of an independent rule of customary international law (CIL) prohibiting the use of secondary sanctions (e.g. here). This piece addresses the question of whether such a rule is conceivable.
Shutting the Door on Secondary Sanctions?
To begin with, “unilateral” sanctions are not per se prohibited under CIL. Alexandra Hofer has analysed the UN’s institutional framework and concluded that despite UNGA-resolutions condemning autonomous sanctions, “unilateral coercive measures” are not prohibited under CIL autonomously: neither did respective UNGA-resolutions reach the quantitative threshold to establish widespread and representative practice nor could the contents of such a rule be clearly determined. Rather, an assessment involving such measures’ legality must rely on other established norms and principles, such as the NIP, human rights, or international trade and investment law.
With respect to secondary sanctions, a different picture emerges – at least on the face of it. Proponents of a CIL rule prohibiting secondary sanctions for a good reason point to the overwhelming majority with which the UNGA since 1992 periodically condemns the US’ sanctions regime against Cuba, expanding the frame of reference to extraterritorial sanctions (see here). The most recent of those resolutions was adopted with 187 votes in favour and only the US and Israel voting against it. Applying the “secondary” rules on the formation of CIL, a “general practice” requires virtual or substantial uniformity (Draft Conclusion 8, Comment (6)) which appears to be satisfied in the case at hand. Yet, State practice is to some degree relative and pays special attention to States whose conduct is particularly relevant vis-à-vis a certain subject-matter (p. 155; p. 225). On could therefore be tempted to attribute a special weight to the US’ role as the predominant sender of secondary sanctions. However, it would be cynical to grant such status only because a State can politically and economically afford to impose secondary sanctions. It is more commensurate to look at States’ reactions to the US’ sanctions practice. “State practice” is not limited to what States “do” in a common sense (e.g. acts of self-defence, the boarding of a ship etc.) – it is also what States “say” (see Draft Conclusion 6, Comment (2)). Accordingly, verbal acts and voting behaviour in international organizations are not only helpful in tracing opinio juris within the substance of the act but also in determining a State’s practice (pp. 201, 204 et seq.). Accordingly, there is a sound argument that the UNGA-resolutions are indicative of an emerging rule of CIL prohibiting secondary or extraterritorial sanctions (as suggested here).
Next to State practice within the UN, international actors are frequently slamming secondary sanctions as being contrary to international law. Most prominently, the EU has a strict anti-sanctions policy and enacted a “blocking-statute”, with which it sought to counter US-secondary sanctions concerning Cuba and which was amended to include also the reactivation of secondary sanctions after the US’ withdrawal from the JCPOA in 2018. Other States have similar legislation in place.
It thus appears plausible to infer from all this a certain stance of the international community of States towards secondary sanctions, which might lead to an assumption that general State practice and opinio juris have formed with the content of a prohibitive norm of CIL, leaving no room for secondary sanctions.
The Prohibition of Secondary Sanctions as an Independent Rule of CIL?
But this (admittedly provisional) inference cannot be drawn without the determination of the exact scope of such a rule. It is suggested here that the contents of an alleged rule remain somewhat imprecise.
The UNGA in its above mentioned resolutions envisages “laws and regulations, such as [the Helms-Burton Act], the extraterritorial effects of which affect the sovereignty of other States, the legitimate interest of entities or persons under their jurisdiction and the freedom of trade and navigation” (preamble). In the operative part, the UNGA “[r]eiterates its call upon all States to refrain from promulgating and applying laws and measures of the kind referred to in the preamble […], in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation” (para. 2).
The call upon States to refrain from such measures in conformity with their obligations under the UNCh and international law indicates that already existing norms and principles are meant to be addressed. The preamble is helpful in identifying such principles, as it is “Reaffirming among other principles, the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation”.
Similar statements can be found in other reactions to secondary sanctions: the EU and China in their blocking-Statutes clearly link the illegality of secondary sanctions to their “extraterritoriality” (Art. 1, Art. 2) thus claiming a violation of the territoriality principle. Also, the G77 opposed sanctions with “extraterritorial impact and all other forms of coercive measures”, emphasizing inter alia the undermining of UNCh-principles (para. 52).
While States thus link secondary sanctions to illegal behaviour, it is not conclusively clear in how far a prohibitive norm could have an independent value. As this section shows, it would be difficult to describe and accordingly determine clearly the scope of an alleged rule as opposed to e.g. the NIP, the law on jurisdiction, international trade law or human rights. For example, what happens if a secondary sanction is measured against these norms and turns out to be lawful, because it does not interfere with a (third) State’s domaine réservé, can rely on strong jurisdictional links, is justified under trade law, and has an exemption clause which guarantees compliance with human rights – would an alleged CIL rule provide for a different result? Or would this be a case which the CIL rule ought not to address at all? And, in the end: how independent can such a rule really be when more precise norms already govern the same phenomenon? It seems that it is not so much the design of secondary sanctions as a tool which triggers States’ concerns but rather the manner in which they are used. The interference with relations between target States and third States is common to all secondary sanctions; yet, there are conceptual differences when comparing e.g. secondary sanctions that clearly aim at promoting self-interests and similar measures which address an illegal war of aggression. One should therefore be cautious when summoning a prohibitive rule of CIL irrespective of other norms regulating the same conduct.
After all, the content of such a rule remains indeterminate. I would tend to stick with the lex lata to find tangible answers. In this sense, the regular slamming of secondary sanctions as illegal depicts not so much the creation of a new rule of CIL but rather the reiteration, emphasis, and consolidation of other rules which might be prohibiting certain extraterritorial measures.
Practice Makes Perfect?
Another problem pertains to a consistent practice. States seem to be opportunistic when it comes to secondary sanctions. While all EU member States voted in favour of the above mentioned resolutions, the EU since its eleventh sanctions package against Russia arguably imposes sanctions of a secondary nature itself (here, here, here). Likewise, the US has repeatedly condemned the Arab League’s secondary boycott of Israel (see e.g. Sec. 7035). In the face of State actions contrary to a rule, it is difficult to affirm a consistent practice which calls for a “pattern of behaviour” (Draft Conclusion 9, Commentary (5) & (6)). Even though “complete consistency is not required”, “[t]he relevant practice needs to be virtually or substantially uniform” (Draft Conclusion 9, Commentary (7)). As Mendelson wrote, “each State whose conduct is under consideration must have behaved in the same way on virtually all of the occasions on which it engaged in the conduct in question” (p. 212). This is certainly not the case when actors like the EU and the US follow the logic of secondary sanctions when pursuing foreign policy goals. This impression is further corroborated when having a look at initial State reactions subsequent to the US’ withdrawal from the JCPOA – even though many States were disappointed, by far not all States labelled the re-imposition of secondary sanctions as “illegal” and the UNGA did not produce a resolution resembling the ones concerning Cuba. While inaction is inherently difficult to classify in the process of custom identification (here), it is at least remarkable that one of the most emblematic secondary sanction regimes did apparently not raise the same concerns as Cuba-related sanctions.
Sticking to the Litmus-Test
In conclusion, while States are actively opposing secondary sanctions as a “weapon out of control”, they do so on the basis of established norms of international law. This is not only more convincing with regard to the clarity of provisions but it also allows for a practical approach to assess secondary sanctions on a case by case analysis regardless of inconsistent State practice. While many secondary sanctions might be illegal under such an assessment, some may not and some may even lead to non liquet findings. The assertion that secondary sanctions are nowadays prohibited under CIL has its appeal; however, it would need an empirical study to, first, reach conclusive results as to the contents of such a norm and, second, provide for evidence of a widespread, representative, and consistent practice. Until such determinations are in place, assessing secondary sanctions gets along well with lex lata provisions.
