THE UNITED NATIONS SANCTIONS POLICYAND INTERNATIONAL LAW

HANS KÔCHLER

I. Sanctions Viewed in the Ligbt or General EtbicalPrinciples (Tbe Problems Associated witb tbe UtllltarianApproacb):

Article 4ıof the United Nations Charter provides for economie andother kinds of non-military measures for maintaining or restoringinternational peaee and security. without using the term sanetions todesignale sueh measures.1These coercive measures bind all member states.2Theyare listed in eonnection with the maintenanee of peace in Chapter VII ofthe Charter3 and have become familiar to a broad publie in the wake of the1991 Oulf War.4 The use of economie coercion is a prior step Lo military

lConceming the legal problem oC smctions in general. cC. Vera Gowlland.Debbas. "Security Council EnCorcement Action and Issues of StateResponsibility." in: International and Comparatın LawQuarterly. vol. 43 (1994), pp. 55.98. Cf. also Gowlland-Debbu.Colleetlve Responses to Illegal Acts In International Law.United Nations Aetlon In the Questlon or SoutbernRbodesla. Dordrechl/ Bostonl London, 1990. Chapter 6: "The Adeptionof Collectiye Measures within the Framework of Chapter VII." pp. 423Cf.CC. also C. Lloyd Brown.John, Multilateral Sanetlons Ininternational Law: A Comparatlve Analysls. New York}Washington! London. 1975.2The coercive nature of these measures follows especially from Article 25of the Charter.3"Action with Respeet to Threats to the Peace. Breaches of the Peaee. andActs of Aggression".4nıe International Law Commission of the United Nations hu attempted Lodefine the concept of sanctions. which is not used in the Charter. The

2 THE 11JRKlSH YEARBOOK [VOl- XXII

force as provided for in articles 42 et seq.5 Interestingly, the Charter grantsthe Security Council a sort of monopoly over definitions in this field; theSecurity Council decides on its own whether a threat LO peace, a breach ofpeace, or an act of aggression exists.

lt remains undisputed that sanctions are pennitted by law as specificcountenneasures LO violations of international lawand that, in the event ofsuch aviolation, contractual obligations LO the "Iaw-breaking" state whichotherwise apply are invalidated. The problematic nature of this issue hasbeen thoroughly treated by the International Law Commission of the UnitedNations under the heading "Legitimate application of a sanction". 6 In Artiele30 of the "Oraft artieles on State responsibility" (1979), the Commissionrecommended a fonnulation of this normative priority of sanctions ininternational law; the revised title of this artiele reads "Countermeasures inrespect of an internationally wrongful act".7

Commission claims to reserve the use of this concept "for reactivemeasures applied by virtue of a decision talcen by an internationalorganization following a breach of an international obligation havingserious consequences for the international community as a whole, and inparticular for certain measures which the United Nations is empowered toadopt, under the system established by' the Charter, with a view to themaintenance of international peace and security." (Drart artlcles onState responslblllty: Report or the Commlsslon to theGeneral Assembly on the work of its thlrty-flrst sesslon. in:Yearbook or the International Law Commlsslon, 1979. Vol. II,Part Two, United Nations. New York. 1980. p. 121.)5In fact. however, economic sanctions measures are maintained by theSecurily Council in particular cases even after the use of military force hasbeen ended. This is highly problematic with regard to the formulation inChapter VII. Cf. point 32 of the report of the 18th Roundtable of theInternational Institute of Humanitarian Law: Current Problems orInternational HumanUarian Law, San Remo, 1993, p. 20.6Yearbook or the International Law Commlsslon, 1979, Vol. II,Part One: Documents of the thlrty.rlrst sesslon. United Nations,NewYork, 1981, pp. 39ff. Conceming the power of the Securily Councilto impose sanctions cc. pp. 43f.7"The wrongfulness of an act of a State not in conformity with anobligation of that State towards another State is precluded if the actconstitutes a measure legitimate under international law against that otherState, in consequence of an internationally wrongful act of that otherState." (Yearbook of the International Law Commlsslon,1979, Vol. II. Part Two: Report of the Commlsslon to theGeneral Assembly OD the work of Us thlrty-rlrst sesslon,United Nations, New York, 1980, p. 93.) Concerning thispower of theSecurily Council in this respeel, cf. par. 13 of the commentaries relatingto Aniele 30, p. 119.

19921 TIlE U. N. SANCIlONS 3

Two decisive facton influence the ethical evaluation of such measures:(a) whether the economic sanctions are partial or comprehensive; (b) thespecial economic circumstances of the countey subject to these measures.(The less econo~ic autarky the state has. the greater the impact will be onthe living conditions of the affected citizens.S) From a legal standpoint.sanctions which represent measures of collective seeurity (multilateralsanctions) - in accordance with the provisions of the UN Charter - are to bedistinguished from unilateral sanctions. The considerations of the presentethical and legal evaluation are devoted primari1yto comprehensive economicsanctions in accordance with the provisions of Chapter VII of the UNCharter.9

it is striking that the formulations of the UN Charter provide forcoercive measures only in connection with international peace and security.Human rights are doubly disregarded in this contexe (a) theyarenot given asa reason for imposing coercive measures; (b) theyarenot laken into accountas coneerns the impact of such measures upon the living conditions - indeed,upon the chanees of survival - of the affected people.10 In the normativelogic of the UN Charter - and especially of Chapter VII - peace apparendyassumes priority over human rights. as has become especially evident in thesanctions policy of the Security Council since the end of the East-Westconflict As regards (a). the Securily Council has admitted1ydrawn an indirectconnection between human rights and its sanctions policy in so far as itviews grave and systematic human rights violations as threats tointernational peace (for instance. in the case of the fonner apartheid policy in

8ır, in the course of belligerent aetions, the economie infrasttueture of eeountry has been impaired. eeonomic sanetions will hıve i far grevereffect than if this infrastrueture is intaet. ır the effects of sanetions are tobe adequately evaluated. one must therefore a1ways take into account thegeneral given conditions of a country (with regard to economie autarky)as well as its aetual ecollomic sitııation. On this whole eomplex ofquestions, see now Chapter IIIIE of the UN Secretary-General's report tothe fiftieth session of the General Assembly: Supplement to enAgenda for Peace: Posltlon Paper of tbe Secretary-Generalon tbe Occaslon of tbe Flftletb Annlversary of tbe UnitedNations, Doe. AJ50/60, S/1995/l, 3 January 1995. esp. paragraphs 67and 75.91n the &enseof the formulaıion in Article 41: "complete ..0 interruption ofeeonomie relations".

10Claire Palley refers unmistakably to these effeets in i report for theCommission on Human Rights of the United Nations (Sub-Commission onPrevention of Diserimination and Proıeeıion of Minanties): "Sanetionsimposed by the Seeurily Council have indiseriminately impaeted oneivilian populations." (Impllcatlons of Humanltarlaa Activitiesfor tbe EnJoyment of HUman Rlghts, Oac. E/CN.4/Sub.2/1994/39,IS June 1994. par. 14. p. 6).

4 TIlE l1JRKlSH YEARBOOK [VOL xxn

South Africa). Often, however, it is left to the discretion of member states -led by considerations of power politics • to judge whether such violationscanstitute a threat LO international peace. (lrrespective of this, grave andsystematic human rights offenses in a particular state do not necessarily posea threat LO international peace and securily.1 1) As regards (b) - the impact ofsanctions upon the living conditions of the people - not even an indirectreference is drawn LO human rights in either the UN Charter or in theresolutions practice of the Security CounciL.12 A report to the HumanRights Commission of the United Natioos publicly criticizes this practice ofthe Security Council's Sanctions Committee.13 lt is precisely these ethicalproblems which prove decisive for the evaluation of the legitimacy of therelevant measures and of the normative system of international law whichaIlows for such measures.

Comprehensive economic sanctioos which heavily impact the life andhealth of the civilian population oeed to be analyzed from an ethicalstandpoint before a normative evaluation of the current practice ininternational law can be undertaken. Indeed, comprehensive economicsanctioos seem LO be the "classical" instruments for inducing submission in

ı ıCf. Lori Fisler Damroseh, "Commentary on Colleetive MilitaryIntervention to Enforee Human Rights." in: Lori Fisler Damroseh andDavid J. Seheffer (eds.), Lawand Foree In the New InternationalOrder, Boulderl San Franeiscol Oxford, 1991, p. 217.

12Exemptions with regard to the delivery of food and medieines cannot beviewed as taking properly into account the humanitarian eonsequenees ifthe sanctionı deny the country the finaneial means for proeuring suchgoadı. In addition, they cannot be viewed as such if the SanetionıCommittee of the Security Council • as has happened in reeent praetice •administers these exemptions so restrietively that one can only speak of acynical contempt of the affeeted population. Cf. partieularly the effeets ofthe sanctions against Iraq according to the following sourees: the reportsof the Harvard Study Team of May 1991; the Committee to Save theChildren in Iraq; the UN special envoys Martli Ahtisaari (20 March 1991)and Sadruddin Aga Khan (15 July 1991); the UNICEF delegate Eric Hoskins(Children, War and Sanetlons [April 1993]); as well as the updatedreport of OSPAAAC (Madrid). Contra los embargos y sancloneseeoD6micas, Dossler 112: Irak. Canceming the more generalexemptions of. for instance. the former sanetions against Rhodesia, cc.Gowlland-Debbas, Colleetlve Responses to IIIegal Acts IDIDterDatloDal Law,op. elt., pp. 591ff.

l3"It is arguable that the Sanetions Commitlee does not have adequateinformation to aet promptly lo suspend the operation of sanetions whenundue suffering is being caused by an embargo on partieular eommodiıies."(Claire PaUey, loc, clt., .par. 14, p. 7).

1992] THE U. N. SANCTIONS s

the power politics of the so-caıled "NewWorld Order"14 - instruments whosepermissibility must be critically examined from the standpoint of ethics aswell as of international law. it does not of necessity follow that a measurepraised as the panacea of power politics fulfills the requirements placed on alegitimate international order.

In the fırst place, coercive measures like comprehensive economiesanctions represent a fonn of, collective punishmentlS and thus do notcomply with the ethical principle of individual responsibility, i. e. with theability LO aUribute behaviour LO an individuaL.The punishment of people notresponsible for political decisions is most akin LO a terrorist measure; the aimof such a measure is LOinfluence the government's course of action bydeliberately assaulting the civilian population.l6 Purposefuııy injuring theinnocent is, however, an immoral act per se, one which cannot be justifiedby any construetion of utilitarian ethics. In accordance with the conceptionof Thomas Aquinas, inquiring inlOthe intention behind a particular decisionis of decisive value for an ethical evaluation.l7 In the present context,several conditions govem the moral pennissibility of acts which havedubious effects: (a) thal the intended fmal erıdmust be goodin itself, (b) thatthe means towards its realization are morally aceeptable; (c) that theanticipated effects, morally dubious though they may be, are not intended assuch; and (d) that the goal which is moraııy good stands in an acceptablerelation LOthe wrong that is effected,I8 Le. that the fonner is importanlenough LOjustify the latter.19 The problematic nature of this utilitarian

14Cf. especially the analysis of Chandra Muzaffar, Human RIghts _ndthe New World Order, Penang, 1993, Chapter 6: 'The New WorldOrder: Subjugating Iraq and Libya," pp. 60ff.iSCf. also the working paper "L'embargo" (Les c_blers de Nord-SudXXI, n. i [Geneva, 1993], Chapter 2: "Violation des droits de l'Homme etdes peuples," p. 6): "Le caractere collectif denature l'applicaıion de lasanclion el la rend incompatible avec le respeet des droits de l'Homme."

16See Jeff McMahan and Robert Kim, 'The Just War and the Gulf War," in:Canadlan Journal ot Pbllosophy, vol. 23. n. 4, (December 1993),p. 536.

l7"Morales autem actus recipiunt speciem secundwn id quod inteditur, nonautem ab eo quod est praeter intentionem. cwn sit per accidens." (Summatheologlu, LL-II.qu. 64, arL 7. vol. 3, ed. Rubers/Billuart et al., vol. 3,Taurini 1932. p. 379).

1SCf. the principle of proportionality as formulated by Thomas Aquinas inthe context menlioned: "Potesı tamen aliquis actus ex bona inıentioneproveniens, illicilus reddi. si non sit proportionatus fini." (S ummatbeologlea. II-II, qu. 64, art. 7, op. dt., p. 380).

19Cf. the portrayal by Warren S. Quinn, "Acıions. Intentionı, andConsequences: The Doctrine of the Double Effect," in: Phllosophy aııdPublle Attalrs, vol. II (1989), pp. 334-351.

6 THE 11JRKlSH YEARBOOK [VOL. xxn

oonlext of evaluation is plain to view. Are those who suffer under a certainmeasure to be viewed sympathetically as the victims of the pursuit of a goodintention, or is their suffering to be regarded as the deliberate component of astralegy? This debaae seems merely to invite hypocritical casuistry. Theouıcome for the affceled population is one and the same.

A "superficial" difference may only be discerned by an ethics ofattitude from the viewpoint of the perpetrator. The latter appeases hisconscience with reference to the unintentional but "inevitable" side effects.in the Anglo-Saxon tradition, the so-called "Doctrine of Double Effect" wasdeveloped, following a distinction made by Thomas Aquinas.20 lt wasdesigned to help clarify ethical questions that arise when a morally good endcan only be reached through inflicting harm upon other people.2 1 In theconcrete instance of comprehensive economic sanctions in accordance withChapter VII of the UN Charter, the moral good that is aspired is themaintenance or restoration of international peace; the wrong that is therebyeffecled is the suffering of the civilian population (including sickness anddeath as results of the mass suffering that accompanies the breakdown in thedistribution of essential commodities). According to Quinn's ethicalanalysis, it is necessary to lake into account the relation which the aspiredgoal has to the foreseen wrong that results from it.22 In this context, Quinnrefers to the difference between "terror bombing" and "strategic" bombing inwar: in the first instance, the suffering of the civilian population isdeliberately intended; in the second, the possibility that the population willsuffer is merely toleraled. In the fırst instance, harın is directly inflicted, inthe second case indirectly. (In accordance with the currently valid rules ofinternational humanitarian law, which we will later examine more closely,t.error bombings are strictly prohibited, for the civilian population is neverallowed to be the direct target in a military conflict.) Economic sanctions,Iıowever, are in line with the fırst case mentioned above: harın is directiyanddeliberately inflicled so as to force the govemment to alter its course ofaction.

Comprehensive economic sanctions, then - continuing with thecomparison above - have the ethical quality of terror bombings: the civilianpopulation is explicitly laken hostage in the framework of a security strategyof power politics. It is self-evident that this kind of political instrumen-talization of the human being - as the citizen of a community that is a

20"nihil piohibet unius aetus esse duos effeems, quorum alter solum sit inintentione, alius vero sit praeter intentionem." (Summa theologlca, n-n, qu. 64, art. 7, p. 379).

21Cf. Warren S Quirin, "Aetiom. Intentions, and Consequences:The Doctrineof the Double Effeet", op.: ciL

220p• clt., p. 338.

19921 mE U. N. SANCllONS 7

subject in inlernational law - is not eompatible with his or her status as anautonomous subject, i.e. with human dignity.23 People have anatural rigbtnot to be sacrificed for a stralegie purpose over whose formulation andrealization they exercise no influenee. As Quinn says, "They have arigbtnot to be pressed, in apparent violation of their prior rights, into the serviceof other people's purposes."24 in the area of ethics, the SO-CaUed"DocuiDeof Double Effect" secures every person's right to veto "a certain kind ofattempt to make the world a betler plaee at his expense."25 lt auaeks thepurely uti1itarian approaeh (the maximization of usefulness) which, in thecase of sanctions, eould sacrifice the health and prosperity of a whole peoplefor the sake of the extemal politieal purposes of member states in theSecurity Council or of another stale eoalition. (This could be elarifıed case bycase in such measures as the sanetions plaeed against Iraq, formerYugoslavia, Haili ete.).

The sacrifice of a whole people for the sake of the stralegic interests ofa superpower or of a eoalition of states (as may be formed within theSecurity Council) would appear to be in no way etbically justifıable.26Assertions to this effect have already been made in eonnection with thesanetions against South Africa: if there are no general erileria for morallyevaluating a partieular political stralegy, then those who have to bear theprimary costs of measures such as sanetions should be able to decide whethertheyare to be imposed.27 The general ethical principle guiding the use ofsanctions should thus be that consideration be laken of the affectedpopulation in the formulation of such measures. Precisely this principle,however, is excluded by the nature of the coercive measures in accordancewith Chapter VII of the UN Charrer. As American authors have illustrated inan evaluation of the sanclioos policy in the wake of the Gulf War, econornicsanctions cause the civilian population to be held hostage in its oWDcountry.28 Measures such as those which explicitly inlend Lo barın the

23Cf. the author's Demoer.ey and Human RIgbt.: Do Huma.RIgbts Coneur wlth Partleular Demoeratle System.? Vienna,1990.

240p. clt., p. 350f.250p. clt., p. 3Sı.26nıe individuaı has a prima facie right not to be sacrificed for the sab ofthe seniement of conflicts between states. In this canteıu, there iı noethical justification of the wom-out dictum that the end justifies the means.

21See Robert Paul Wolff in: "The moral dimensions of the policy of anti.apartheid sanetianı," in: Mark Orkin (ed.), Sanetions .,.I •• tApartbeld, Cape TownlJohannesburglLondon. 1989, p. 108.

28ıerf McMahan/ Robert McKim, op. clt., p. 536. Conceminı lhe morall)'problem_tic nature of the Oulf War, d. also David E. Dec:osse(ed.), But

8 11IE TIJRKISH YEARBOOK [VOL. XXLL

population are to be judged as immoral,29 for "one cannot intentionallyeripple an eeonomy without intentionally affecting the people whoseworking and eonsuming lives are parlially eonstitutive of that economy."30

II. Sanctions Policy within the No~mative System orModern International Law:

Wben we view sanetions from the standpoint of moral phiIosophy, wemost of necessity inquire into their legitimaey within international law,especially since the current doctrine of international law presupposes thathuman righls constitute the jus cogens of general international law.3l (Asabove, we wiIl be limiting ourselves here to eonsidering the problem posedby eomprehensive economie sanetions - both unilateral and multilateral •since specific sanetions, like those placed on militaeygoods, do not affect thefundamentaI rights of the citizens as gravely.) The measures of the UNSecurity Council are also obliged to comply with human rights.32 As we

W.s it Just? Renectlons on the Morallty or the Perslan GuırWar, New Yorle. 1992.

29This is ılso the viewpoint which the Catholic Church has repeatedlyexpressed. Cf. the quoted statements by the Archbishop of the RomanCuria Alois Wagner, "Embargos treffen nur die Armen," Standard(Vienna), II March 1994, p. 5.

30McMahan/Kim, op. clt., p. 540.31in the modem theory of international law, jus cogens - in ıceardance with

the defmition in Article 53 of the Vienna Conyention on the Law ofTreaties of 23 May 1969 - refers to the peremptory norms of generalinternational law. Article 53 of the Conyention states that "a peremptorynorm of general international law is a norm accepted and recognized by theinternational community of. states as a whole as a norm from which noderogation is permitted and which can be modified only by i subsequentnorm of general international law haying the same character." (Cf. 11soAlfred Verdross! Bruno Simmı, Unlverselles Völkerrecht: Tbeorleund Praxis, Berlin [3rd ed.], 1984, p~ 331). The fundamental humanrights are unanimously held to be part of this jıu cogens, which thereforehıs "absolute vılidity ... so that it cannot be abrogıted either bycustomary international Ilw or by the agreements. between individualparties" (Verdrossl Simmı, op. clt., p. 331). From our point of view,the ıbsolute vılidity of the norms of tbe jııs cogens impliesthat theCharter of the United Nations. too, must only be ıpplied in ıccordancewith human rights. This provides a clear frame of reference for theSec:urity Council with respeet to the stNcturing of the sanctions policy,i.e. it considerably restriets its freedam of judgmentbased solely on ,theconsiderations of power politics.

32This isstressed by Roben Charvin with reference to the sanctions policyin ,his working plper "L'embargo" (Les cahlers de Nord-Sud XXI, no.

19921 mE U. N. SANC110NS 9

have discussed elsewhere, human rights form the foundation of validity. notonly for every state's internallegal system, but also for internationallaw}3Despite the normative connection between human rights and internationallaw, a remarkable disparity Devenhelessremains between the rules of modeminternational law conforming with human rights (such as the han on the useof force in international relations in connection with the abalishing of thetraditional jus ad bellum) and relics of old internationallaw motivateclby theprinciples of power and national interest The Iatter manifest themselves notonly in the right to veto exercised by the permanent members of the SecurityCouncil; they additionally assert themselves in the provision regardingcomprehensive economic sanctions in accordance with Article 4ıof theCharter. The "complete interruption of economic relations" which thisarticle mentions without any restrictive clause is fully in line witb thetradition of medieval militaey sieges, Le. the starvation of the civilianpopulation in the interest of the respectiye power.34 The Security Councilcan impose such sanctions in the event, for instance. of a threat tointernational peace. The existence of such a threat is determined by theCouncil itself, resulting in the problem of the arbitrariness of aninterpretation motivated by mere power politics.35 in accordance with the

1, Geneva. 1993, p. 6): les droits de l'Homme "ont pleine vigeur etdoivent ne pas etre mises en cause par la sanction prise ... En aucun cu.leur violation ne peut etre justifiie par le droit d'eıı.erccr deı ıanctiou".Conceming the complex legal problematic nature of the ımctions, cf. aboCharvin, "L'embargo," in: Nord-Sud XXI. Drolts de I'Homme •L1bertf, no. 5 (1994), pp. 123-132.

33Cf. the author's Tbe Prlnclples of International Lawand HumanRIgbts: Tbe Compatibility of Two Normative System.,Vienna. 1981.

34McMahanlKim have characıerized the currenı sanctions against Iraq in •ıimilar way (op. clt., p. 536).

35Many jurists, however - especially in "diısenting opinions" in connectionwith rulings and opinions of the International Court of Justice • h.vereferred to the fact that the margin of discretion of the Security Council isnot unlimited and thaı a threat to peace and international security shouldnot be allowed ıo be arbitrarily concocıed for the sake of other ends. Cf.Legal Consequences for States of tbe Contlnued Presenu ofSouth Afrlca In Namlbla [Soutb West Afrlca]Notwltbstandlnı Securlty Council Resolution 176 [1970],Advlsory Oplnlon of 11 June 1971: LC.J. Reports 1971,dissenting opinion of Judge Fitzmaurice, p. 294, par. 116. In hisdissenting opinion, he viewı it as necessary to restrict the power of theSecurity Council "bec:auseof the all 100 great ease with which any llCutelycontroversial international siıuaıion can be represented as involvinı •latent threat to peace and ecurity, even where it is re.lly too remotegenuinely LO constitule one." (Ibld.) The course tlken by the Security

10 TIIE 11JRKISH YEARBOOK (VOLXxn

formulations of Article 41, the Seeurity Council is in no way restricted in itspower LO impose sanctions; it need not justify form and extent of thesanctions.36 The.Charter's phrasing in this context includes no reference LOhuman rights considerations, i.e. LO the proteetion of the civilian population.Indeed. comprebensiye sanctions specifically target the !atter.

The resolutions practice of the Seeurity Council until now shows thatas a last resort - and when in particular the interests of the permanentınembers so diclate - the Council is not beyond concocting a supposed threatto international peace so as LO plausibly impose measures of intervention.(The sanctions against Haiti have been a clear case in point: the USA saw LOit that the problems of democracy and human rights in the country's interiorwere deelared a threat to international peace.) Sanctions are used increasinglyby the Seeurity Council as a means to discipIine "unruly" r~gimes (or thoseviewed as such by the USA). De facto, however, they share the nature ofcolleetive punishment - for the actions of the r~gime are attributed to thewhole population - and above all are viewed in this manner by the populationin question. To this extent, economic sanctions prove counterproductivewith regard to the proclaimed goal (and in accordance with the Charter thesole permissible one) of maintaining or restoring peace. Through suchsanctions, the resentment of the population is often awakened, for the !atterfeels unrightfully perseeuted. This resentment can easily give way to newconflicts. Measures such as those taken against Iraq • several years af ter theend of the occupation of Kuwait - betray an underlying intent of punishmentand revenge, regardless of the proclaimed purpose of the resolutions.

In addition, a pronounced sense of injustice is awakened in thepopulation of the affeeted countries in the face of the selective imposition ofsanctions. Whereas in one case the occupation of foreign territory is ignoredfor decades by the Seeurity Council, the same behaviour in another case ispunished even years after the occupation has ended. Whereas in one case themost grave human rights offenses and a systematic violation of the basicrules of democracy are not regarded as a threat to international peace (there areinnumerable examples LO support this claim), in anolher case, not merelyeeonomic but also military measures of intervention are weighed. The

Council agamst Haiti is cleaı proof of the problematic nature of anunrestricted freedom of judgment.

36The validity of the resolutions of the Security Council in this regaıd is tobe seen, however, in connection with the formulation of Article 25 of theCharter, which expressly refers to the carrying out of the decisions bymember slates "in accordance with ıhe presenı Charter". This implies arestriction of the Council's power with regard to the other provisions ofthe eharter. This line of argumentation was more thoroughly expanded bySir Gerald Fitzmaurice in the dissenting opinion ciıed above: LC.J.Repor'ts 1971, p. 293, par. 113.

1992) TIIE U. N. SANCIlONS 11

interests of lhe pennanent members of lhe Security Council, involved as theyare in power politics, detennine the respectiye measures. One need notwonder lhaı such a "policy of double standarcls"- lhe unofficial credo of the"NewWorld Order" - produces a sense of injustice wilhin lhe states subject toit, especially as lhe fate of lhe present and future generations is decisivelymarked by lhe measures which lhe Security Council can impose.

In lhis context, lhe philosophically-minded person takes note of howlhe conventional dactrine of international law makes power politicsparticularly ıaboo. In the Western world, hartny a single expen oninternational law has seriously dealt wilh lhe problematic nature of thehuman ri~hts offenses caused by lhe sanctions policy of the SeeurilyCouncil.3 lt is lhe task of legal philosophy to break lhe ıaboo placed onpower politics by the dactrine of international lawand to expose lheinconsisteneies in lhe normative logic of lhe current practice of internationallaw in every instance where such inconsistencies are willfuUyoverseen due tolhe interests of states acting according to lhe rules of power politics.38 Thisis especially lhe case as concerns lhe whole sphere of collective security,which has become lhe prized playground for lhe advocates of the "NewWorldOrder". "Human rights" and "democraey" are lhe slogans of their variausideological legitimizations. There is a pecuHar contradiction in lhe currentsanctions policy of the United Nations, a1beit one that can be explainedıhrough the interests of power politics: whereas aviolation of human rightscan constitute a ground for imposing sanctions (a threat to international peaceis asserted),39 detrimental effects upon human rights as a result of the

37This deficit is especially blatant in the programınatic treatise by Theo vanBoven. the former Director of the UN Centre for Human Rights, "TheSecurity Council: The New Frontier." in: Tbe Review [InternationalCommission of Jurisıs], no. 48, June 1992, pp.12-23. - Cf. howeverHans Peter Gasser, "Protection of the Civilian Populaıions of States underEmbargo Measures [Summary of Statement]," in: Current Problems ofInternational Humanltarlan Law [International Institute ofHumanitarian Law], San Remo, 1993, pp. 41-43. Cf. alsa the report of the18th Roundtable of the International Institute of Humanitarian Law. "TheProtection of PopulatioDl of States which are under Embarıo: in:Current Problems or International Humanltarlan Law, pp.19ff. Both reports carefully and indirectly criticize the sanctioDl policyof the Security Council.

38Cf. this aecurate characterization in the publication of the InternationalInstitute of Humanitanan Law: "... a certain inconsistency was noted in theUnited Nations action: on the one hand imposinı an embargo and on theother hand developing modalilies to assist the victims of such measures"(Current Problems or International Humanltarlan Law, p. 21).

39The concept of the threat to international peace is interpreted in a veryvague sense in the Iradition of the Security Council resolutions, uVerdrosslSimma also point out (op. dt., p. 148).

12 11IE nJRKISH YEARBOOK [VOl- xxn

imposition of sanctions are ignored. On the one hand, the doctrine of"humanitarian intervention" is celebrated as a significant achievement ofmodem international law40; on the other hand, amidst the euphorla over thesupposed resttengthening of the United Nations as an instrument of collectivesecurity, a rigorous sanctions policy is permitted, one which de factoinvalidates the fQ.Jldamentalhuman rights of the affected population. Thiscontradiction, arising from the use (or abuse) of international law in powerpolitics, practically forces the theoretician to refleet anew on human rights asthe foundation of international law.

Even if the opposite impression is made by the formulations of theUN Charter and the resolutions policy of the Security Council, human rightsnevertheless constitute the normative foundation of every legal system, andbence of international law as well. International peace should also be definedas a norm from the standpoint of human rights, because a state of warthreatens or negates the fundamental human rights (including the right tolife). The General Assembly of the United Nations has also explicitly statedthis in its Declaration on the Right of Peoples to Peace.41 As withdemocracy,42 peace should be defined as afunction of human righls;43 it isnot an end in itself, independent of the individual's right 10 self-realization.

Simitarly, a hierarchical order exists within human rights. Withinthis order. the right to life assumes primary importance. Rights such asthose to health, peace and development can be derived from the right tolife.44 These fundamental ~uman rights, which are also fundamental

40Cf. Tom J. Farer, "An Inquiry into the Legitimacy of Hu'manitarianIntervention," in: Lori Fisler Damroschl David Jo Scheffer, op. clt., pp.185.201.

41Resolution 39/11 of 12 November 1984, par. 4: "Üfe without war serves asthe primary international requisite o.' for the fun implementation of therights and fundamental freedoms proclaimed by the United Nations."

42Cf. the author's Democracy and Human RIghts ..43Concerning dıe relation of human rights and peace in the syst~m of norms

of the UN Charter, cf. the working paper of the Commission on HumanRightsl Sub-Commission on Prevention of Discrimination and Protectionof Minorities, Forty-sixth session, item 14 of the provisional agenda:Internatlonal Peace and Security as an Essentlal Condltlonror tbe EnJoyment or Human RIghts, above aıitRe RIght to

" Lıre: "Interrelatlonshlp between buman rlgbts andInternatlonal peace" (supplementary working paper prepared by Mr.Murlidhar Bhandare) Doc. E/CN .4/Subo2/1994129, 22 June 1994, esp. par.22.

44Cf. Samuel S. Kim, "Global Human Rights and World Grder," in: Falk/KimI Mendlovitz (eds.), The United Nations and a Just 'WorldOrder, Boulderl San Franciscol Gxford, 1991, pp. 370f.

1992) TIm u. N. SANCTIONS 13

eeonomic and social rights, are the precondition for the validity offundamental rights and freedoms in the classieal European sense (civil andpolitical rights).4S The former may hence not be sacrificed for the sake ofthe laııer. This is precisely what accurs, however, when the SeeurityCouncil imposes comprehensive sanctions for the (pretended) sake ofdefending human rights or demoeracy in certain countrles ("selected" by theUSA - as for instance, Iraq and Haiti). In order LOsecure the population'spolitical rights, measures are intraduced which violate this population'sfundamental eeonomic and social rights. This normative contradiction doesnot further trouble the Security Council, whose real intent is LOtest thestrength of the regime in question by taking the population hastage. Thelaik of human rights or the maintenance of peace serves merely LOveil thebUemotives of power politics, regardless of whether these be the altemptlOoverthrow the regime of the country in question (which internationallawprohibits) or the altering of the regime's policy.

Due LOthe absence of explicit provisos in the UN Charter with regardLOhuman rights,46 and in view of the consequences of the comprehensivesanctions policy described above, a general interpretation of the Charter'sprovisions must be undertaken from the standpoint of international law.Such an interpretation is especially called for in light of the fact that theCharter's norms do noı lie beyond the bounds of international law or standabove the comprehensive normative system of internationallaw. on the oneband, we mUSl inquire inlOthe provisions in Article 4ıof the Charter as wellas inlO the measures of impJementation and the practice of the SanetionsCommittee of the Seeurity Council (1) in view of their compatibility notonly with the Charter's human rights goals, but more importantly with thejus cogens of general internationallaw. On the other hand (2), we mostıinalyze the sanctions poliey with regard to specifie instruments ofinternational law, such as conventions and treaties. Finally (3), we mostapply by analogy the generally recognized principles of internationalhumanilarlan law to the area of sanctions; our central concems here are theunity and consistency of the normative system in internationallaw, withoutwhich the sanctions policy would lose its legitimacy. (11ıe incompatibilitiesto be analyzed under the second point are valid for the imposition ofsanctions in general; in partieular, theyare valid for the unilateral sanctionspolicy of the USA, which seems to consider this instrument to be a

4SCf. the author's analysis in The Prlnclples of International Lawand Human RIghts.

46nıe purposes in Article i (3) and the corresponding demands under Article55 (c) can only be applied in a limited way as an "internal frame ofreference" for the evaluation of the resolutions procedure of the SecurityCouncil. This is the case because purposes regarding human rights seem inthe context of the Charter to be merely equally rwed to those regardingthe security policy.

14 mE TIJRKISH YEARBOOK (VOL xxn

legitimate means of foreign policy. These incompatibilities are onlypartially valid for measures in the area of collective security. Le. sanctioosimposed by the Security Council, as most of the conventions anddeclarations we will cite contain provisos with regard to the UN Charıer.)on the whole. the standpoint of moral philosophy retains its relevance evenin this legal context; the status of the human being as subject a10ng with thefundamental rights he or she thus possesses constitutes our primary concem,one at the heart of every ethical question.

All three elements of our analysis are fOWldedon the principle that thelegitimaey of an international legal system is provided only when (a) thecentral principles of human rights are respeeted, Le. when the respectivenormative provisions are fonnulated with regard to the Wliversal validity ofbuman rigbts, and (b) when the same legal principles are valid everywhere.This would prohibit the selectivity of power politics in the application ofnonns - conlnlry to the current "policy of double standards" exereised by theSecurity CounciL.

if one accepts the fact that comprehensive economic sanctions negateor gravely encroach upon the rights to life, health, etc. of the affectedpopulation (the concrete economic factors of the country ntust be weighed inthis context), then the general provisions of Artiele 41 of the UN Charteroeed to be interpretedwith regard to the entire nonnative system ofinternationallaw, and restrictioos must accordingIy be placed on the SecurityCooncil's margin of discretion.

A. Concerning tbe Compatibility of Sandions witbHuman Rights as the jus cogens of General International Law:

Sanctions which invalidate the fundamental economic and social rightsof the population (and in many cases even the right to life) are - in view ofbuman rights as the jus cogens of international law47 - impermissible.48

47Conceming the embodiment of human rights in modem international law,cf. the comprehensive documentation by Paul Sieghart, The In-ternational Law of Human RIghts, Oxford. 1983; reprint 1992.

48Concerning the ıheory of human rights as jus cogens in cennection wilhthe problem of sanctions, cf. also Robert Charvin, "Droits de I'Homme:une exigence de clarificaıion," in: Nord-Sud XXI. Drolts deI'Bomme - Llberti, no. 5 (1994), pp. 5-8. Conceming the currentdiscussion about ıhis problem (in connection with the imposiıion of astate of emergeney). cf. also the Sevenıh Annual Report of the SpecialRapporteur of the Commission on Human Rights (Sub-Commission onPrevention of Discrimination and Protection of Minorities, Forty-sixthsession, item 10 [bLof the provisional agenda: The Admlnlstratlon of

19921 TIIE U. N.SANCTIONS IS

Rlıhts or Detalnees: Questlon orStates or Emerıeney), Ooc.1994. Chapter i: "Question of Inalienable

Not even the powers in aceordanee with Chapter VII of the UN Charterentitle the Security Council to take measures of this SOrL The Councilmust, in faet, in aceordance with Aniele 24 (2) of the Charter. eomply withthe Purposes and Prineiples of the United Nations when discharging itsduties. One of the United Nations' foremost aims. stated explieitly in Aniele1 (3).49 is that of promoting respeet for human rights and fundamentalfreedoms "for all without distinetion".50 Thus, an "internal" eonfliet appearsto arise belween the rules and principles on whieh the Securiıy Couneil'sactions are based.

Even this body, then, does not stand above the law; the legitimaey ofits resolutions is founded on the universally binding norms of international.law.51 The problematic ıendeney of the Securiıy Council to place itselfabove the law must be decisively countered. Not even the specia1responsibility its members have for the maintenance of international peace(Aniele 24 [1] of the Charter) gives rise to an absolutist right of this kind.Under the auspices of the "NewWorld Order", the verifıable abuse of powezwhieh this body has been guilty of since the end of the East-West confliethas been inereasingly made taboo. This development is wıfortunately abettedby such supreme orgaos of the United Nations as the International Court ofJustice, which indirectly recognized the Security Council's legal primaey inan Order relating to the sanetioos on Libya 52 From the perspective of Iega!

Justlee and the HumanHuman RIghts andEICN.4/Sub.2/1994123, 3 Juneor Non-derogable Rights".

49Cf. also the formulation of purposes in Aniele 55(c) and the coııective"pledge" stated in Article 56.

50Cf. also the detailed report by Claire PaJley for the Comrnission on HumanRights, op. cit .• par. 13ff. The author of this report accurately statestherein that measures to maintain international peace "potentially conflictwith other United Nations mandates," particularly with the purposes layedout in Artide 1 (3), to which the promotion of human rights belongs (par.13, p.6).

5 1The delegate of Zimbabwe has made accurate reference to this in theSecurity Council debate concerning the Lockerbie dispute: "Any approachthat assumes that international law is created by majority votes in theSecuriıy Council is bound to have far-reaching rarnifications which couldcause irreparable harm to the credibiJity and prestige of the Organization,with dire consequences for a stable and peaceful world order." (UnitedNations, Securiıy Council, Oac. S/pV.3063, 31 March 1992, p. 54)

52Ruling of 14 April 1992 (199%, 14 Aprll, General List No.BB/Case Coneernlnı Questlons or Interpretatlon aadAppllcatlon or the 1971 Montreal Conventlon Arısını rromtbe Aerlal Incldent at Lockerble [Llbyan ArabJamablrlya v.United KlnıdomJ, Request ror the Indleatlon or Provlslonal

16 TIlE TIJRKlSH YEARBOOK [VOL xxn

philosophy, one cannot accept this Order of the International Court ofluslice, dictated as it is by power politics; this would merely grantrecognilion within international law LO the principle of power politics - asexpressed in the dictum of the "normative power of the facts" - and therebyundermine any legal cerlainty with respect LO the future validity ofinternational treaties and conventions.

From oor point of view, we are forced to conclude the following byanalogy as regards the legal evaluation of resolutions adopted by the SecurityCouncil: just as the disregard of jus cogens in the process of their adoptioninvalidates international treaties, so should those resolutions adopted by theSecurity Council and standing contraey LO the jus cogens of international lawalsa be void. The binding norms in question are those of generalinternational law in accordance with the Vienna Convention on the Law ofTreaties of May 23, 1969, which confırms these as "accepted and recognizedby the international community of states as a whole" as norms "from whichno derogation is permitted" (Article 53).53 This is precisely the case withthe supreme principles of human rights.

B. Sanetions Poliey with Regard to InternationalCODveDtioDs:

The comprehensive sanctions policy outlined above furthermore runscounter LO many international agreements and conventions, of which only a

Measures). Cf. particularly "Declaration of Acting President Oda", part ı.with regaıd to the Coun's exclusive formulation of its ruling on the basisof the resolution of the Security Council ("... i am not in agreement withthe Court's taking UN Security Council resolution 748 (1992] as its soleground in this matter"). Cr. also the contribution to the debate by thedelegate of Zimbabwe in the session of the Security Council on 31 March1992, in which he appealed to the Council to recognize the legalcompetence of the International Court of lustice in accordance with theCharter and not to impose measures in accordance with Chapter Yıl heforethe International Court has announced its ruling : "By taking the ChapterYıl route while this case is still pending hefore the world Court, theSecurity Council is risking a major institutional crisis. Such aninstitutional crisis ... would ... sap international conlidence in the SecurityCouncil's capacity to execute, in a judicious and objective manner, itsmandate as provided for in the Charter." (S/PY.3063, 31 March 1992, p.53).

53Yienna Convention on the Law of Treaties (23 May 1969), Ooc.A/CONF.39/27, quoted from Vlenna Convent1on on the Law ofTreatles ,,!tb Flnal Act of the Conference, Dedaratlons andResolutlons, London, 1969, p. 18.

19921 mE U. N. SANCIlONS 17

limited number of examples can be eited in this evaluation.54 (As with theDeclaration of Human Rights and the two International Covenants on Civiland Politieal Rights and on Eeonomie, Social and Cultura! Rights, therespective eonventions are • surprisingly • only appliçable to a limited extenlto the sanetions policy of the Security Council. This clearly documents thefact that. in the framework of the United Nations - due to the circumstancesof power politics - no priority is accorded to human rights, the jus cogens ofinternationallaw, a facı which we will demonstrate. From the perspective ofthe theory of international law we propose, provisos in the specificconventions55 are highly problematic.56) To be considered in this regard are

54The approach we have chosen here is also apparent in Claire Paııey'sreport to the UN Commission on Human Rights. The report &ecuses theSecurity Council - with, however, the diplomatic caution obviouslynecessary in this framework - of violating the standards of human rights ofthe United Nations ("flouting a United Nations standard") in connectionwith its sanctions practice (Claire Palley, loc. clt., par. 13, p. 11).

55The Chmer of the United Nations has anyhow taken the necessaryprecautions in Aniele i03 and thus claimed the status of jus cogens for thenorms which it formulates ("In the event of a conflict between theobligations of the Members of the United Nations under the presentCharter and their obligations under any other international agreement theirobligations under the present Charter shaıı prevail."). The "jus cogens ofthe Charter" must nevertheless orient itself according to the jus cogens ofgeneral international law; it may thus not conflict with the universalvalidity of human rights. This was also emphasized in the report of thei8th Roundtable of the International Institute of Humanitarian Law:"Article 103 of the Charter could not be interpreted as justifying adisregard of these principles and rules." (Cu rrent Problemı olInternational Humanitarian Law, ap. dt., p. 20.)

56The reservations are formulated in a more or less specific manner. Anicle29 (3) of the Universal Declaration of Human Rights thus states that"These rights and freedoms may in no case be exercized contrary to thepurposes and principles of the United Nations." With regard to Anicle i(1) of the UN Chmer. this could mean a "normative priority" of theSecurity Council even in questions of human rights. This is above all thecase because the formulation of the Council's obligations in Aniele 24 (2)(which is binding for the Security Council) expressly refers to its powersin accordance with Chapter YIl. The identical reservation in Anicle 46 ofthe International Covenant on Civil and Political Rights and in Article 24of the International Covenant on Economic. Social and Cultural Rights, bycontrast. refers solely to the rights protected in accordance with bothConvenlions. The aim is merely to preclude a contradiction with the otherUN provisions "in regard to the maHers dealt with in the presentCovenant". The situation is very different as concerns theotherconventions treated in this analysis. In these conventions, thereservations refer either explicitly to the provisions of Chapter VII orgenerally to the provisions of the UN Charter. With reference to the

18 mE nJRKISH YEARBOOK [VOL xxn

the provisions set out in ~ 25 (1) of the Universal Declaration of HumanRights (1948)57 and in ~i i (I) of the International Covenant on Economic,Social and Cultural Rights (in effect since 1976)58 With reference tocomprehensive sanctions (as in the case of the oil and economic embargoagaiost Iraq), Ai (2) of the International Covenant is especially relevanC "Inno case maya people be deprived of its own means of subsistence."International law, then, clearly pennits no derogation from these provisionsunder any circumstances.59 These guarantees for human rights arespecifically upheld in Article i of the Universal Declaration on theEradication of Hunger and Malnutrition (1974) by the World FoodConference.60

The sanctions policy deseribed above is furtbennore contraey to theprinciples of the United Nations Declaration on Principles of InternationalLaw conceming Friendly Relations and Co-operation among States inaccordance with the Charter of the United Nations (General AssemblyR.esolution 2625 [XXV] of October 24, 1970). With regard to thefundamental principle of non-intervention, the declaration stipulates amongodıer things that "No State may use or encourage the use of economic,political or any other type of measures to coerce another State in order toobtain from ilthe subordination of the exercise of its sovereign rights and toseeure from iLadvantages of any kind."61 That which the individual state isexpressly probibited from practicing is, in the name of "collective secOOty",granted to the respective group of states in the SecOOtyCounciL. This is thecase despite the fact that the resolutions often serve the interests of the

reservalion in the Universal Declaration of Human Rights, Torkel Opsahlaccurately speaks of the impression "that the parent organizationsomewhaı self-righteously takes the opportunity to claim priority for itsown purposes and principles." (The Universal Dedaratlon orHuman RIgbts: A Commentary, ed. by Asbj.,rn Eide et al., Oslo,1992, p. 450.)

57"Everyone has the right to a standard of !iving adequate for the health andwell-being of himself and his family. ineluding foad, o" medical care" ete.

58As regards the specific situalion of children, Article 6 of the Conventionon the Rights of the Child is also relevant.

S9In this context, we need not make further mention of the fundamental rightLO life (Aniele 3 of the Universal Declaration of Human Rights, Artiele 6[1] of the Internaıional Covenant on Civil and Political Rights).

60ııus Declaration was ineorporated by the UN General Assembly into itsresolulion 3348 (XXIX) on 17 Deeember 1974.

61Coneeming the definilion of the eoneept of non-intervention in internalaffairs, cf. Tomislav Mitrovic, "Non.intervention in the Internal Aff.irs ofStates," in: Milan Sahovie (ed.), Prlndples or International Lawconcernlng Frlendly Relatloos and Cooperatlon, Delırade,1972. pp. 219-275.

1992) mE U. N. SANCTIONS 19

sttongest member country and that the sanctions are de facto imposed withthe intention of destabilizing the internal politics of a country. in a 1aterparagraph, the declaration therefore expressly negates the validity of its ownprovisions with regard Lothe measures authorized in accordance with ChapterVII of the Charter.62 This proviso empties the declaration's respecliveprovisions of any content whatsoever; it does, however, shed light on thetrue intention, one which is motivated by power politics: to uphold theprivileges of the Security Council. The provisions regarded as fundamentalfor the peaceful coexistence of states are all inapplicable to the SecurityCounciL. It is obvious that the permanent members profit the most fromsuch exemptions.

A rigorous sanctions regime has been and continues to be praclicedagainst Iraq by the Security Council; this policy a1so manifests itself in theunilateral US sanctions against Cuba. Such a policy in effect hinders theaffected governments in fulfilling their duties in accordance with the Chaı1erof Economic Rights and Duties of States (Resolution 3281 [XXIX] of theUnited Nations General Assembly of December 12, 1974).

A sanctioos policy of this kind runs especiaUy counter LoAnicle 7 ofthis Charter, which details the responsibility of each state ıowards promolingthe economic and social development of its citizens.63 Aniele 32authoritatively formulates the prohibition of the use of economic measures"10 coeıce anather state in order to obtain from it the subordinalion of theexercise of its sovereign rights." (This role was a1ready included in the 1970Declaration.) But here, too, power politics have stipulated a proviso (inAniele 33): no provision of the Charter should be construed as "impairing orderogating from the provisions of the Charter of the United Nations."

In a separate resolution, the United Nations Conference on Trade andDevelopment condemned the application of economic coeıcion, especia11ywhen the lalter is used against developing countries; it furthermore referred tothe fact that such measures "do not help to create the climate ofpeace neededfor development" In Resolution 152 (VI) of July 2, 1983, entitIed Rejectionof Coercive Economic Measures, the conference stipulated that "aU developedcountries shall refrain from applying trade restrietions, blockades, embargoesand other economic sanetions ineompatible with the provisions of theCharter of the United Nations ... against develaping countries as a form ofpolitical coercion whieh affects their eeonomic, political and socialdevelopment." (This resolution and those described below are especia1ly

62"Nothinl in the foreıoina paraaraphs shall be construed u affectinı therelevant provisionı of the Charter relaıinı to the maintenance ofinternational peace and security."

63 "Every Stare hu the primir)' responsibility to promote the economie,social and cullUraldevelopment of its people."

20 mE TURKISH YEARBOOK (VOL xxn

pertinent as conceros the United States, which have made comprehensive,unilateral sanctioos one of their foremost foreign policy instruments in theirefforts against countries which oppose the hegemonial interests of theUSA.)64 Without a doubt, the collective actions of the "developed" countriesunder the leadership of the USA against Imq, Libya and Haiti, and especiallythe unilateral sanctions imposed by the USA against Cuba, are contrary tothe spirit of this resolution. in all of these cases, a threat to internationalpeace, human rights or democracy has been concocted; what is rea11ymeant isthe refusal of the state in question to subject itself to Westem hegemonicsttaıegies. "Human rights", "role of law" and "restoration of demoeracy"merely serve as pretexts for unilateral measures of the USA - with covergeneraUy provided by multilateral resolutioos - which aim at destabilizing theregime in question or replacing it with one which bears the US seal ofapprovaL

The General Assembly has repeatedly condemned economic coercionas a meaos of achieving political goals, most sharply in Resolution 210(XLVI) of December 20,1991, entitled "Economic Measures as a Means ofPolitical and Economic Coercion against Developing Countries". Point 3 ofthis resolution's catalogue of measures requires the industrial nations to rejectthe use of their superior position as a means of applying economic pressure"with the purpose of inducing changes in the economic, political,commercial and soeial policies of other countries." This repeatedcandemnation of such sanctions measures by bodies whieh - when comparedwith the Security Council • enjoy a more demoemtic legitimization revealsone possible reason why the USA refrains from the exclusive imposition ofunilateral sanctions and iostead inereasingly prefers to seck the SecurityCouncil's cover (whieh, in the shifted constellation of world politics, is alsoeasier to come by). This endows the U.S. administratian with a kind of legalimmunity for its power politics, an immunity which it needs so as to deflatethe argument that sueh measures violate international law. The advoeates ofcomprehensive economie sanetions ("punitive sanetions") will only succeedwith a line of argument whieh upholds the primaey of the Security Councilif the doctrine of ajllS cogens with prineiples binding upon all organ s of theUnited Nations is abandoned and if the Security Couneil is placed above, Le.beyand the bounds of the law. This would, however, be tantamount to an"anarchy of sovereignty", the beneficiaries of whieh would be the memberstates equipped with the right to veto, and would carry the idea of an"international role of law" ad absurdum. The resolutions praetice of theSecurity Council sinee the end of the East-West eonfliet has greatly fosteredthis lcind of development.65

64Cf. United States Economlc Measures Agalnst Cuba:Proceedlngs In the United Nations and Intern.atlonal LawIssues, Introduction by Richard Faik. Northampton/ Mass, 1993.

65Cf. the author's Democracy and New World Order, Vienna, 1993.

1992] mE U. N. SANcnONS ıı

By explicitly demanding an exemption with regard to measures inaccordance with Artiele 41 of the LiNCharter, a group of United Nationsexperts - for the benefit of power politics - relativized the various declarationsand resolutions which have been passed since the Declaration of 1970 andwhich condemn measures of economic coercion.66 This indirectly confırmsthe full awareness within the United Nations of the problematic nature of theabove-mentioned measures in terms of international law. and in particutar ofthe consistency of the normative system as such.

For an evaluation of the coercive economic measures from thesıandpoint of international law, the Declaration on the Right Lo Development(Resolutian of the General Assembly [XLI] of December 4, 1986) isespecially importanı Anicle i (I) of the Declaration formulates aninalienable individual and collective human right Lo developmenL This rightnıns counter Lo coercive econamic measures which, as practice proves, ofleDiead Lo mass suffering. According to this article, "The right to developmentis an inalienable human right by vİrtue of which every human person and allpeoples are entitled to participate in, contribute to, and enjoy economic,social, cultural and political development, in which aıı human rigbts andfwıdamental freedomscan be fuUyrealized."

After all that we have said up Lo this point, it should not surprisc usthat this Declaration, too - under Article 9 (2) - formulates the USualproviso("Nothing in the present Declaration shall be construed as being contrary Lothe Purposes and Principles of the United Nations ...n); the reference Lo thesepurposes of the United Nations, however, remains in this instance rathervague, aş it does not explicitly cite the Charter, not Lo mention individualprovisions therein. All of these exemptions are contrary to human rights,the jus cogens of international law. In this context, one may refer to Article60 (5) of the Vienna Convention on the Law of Treaties. According to thisaniele, provisions which are contained in treaties of a humanilarian natureand which relate to the protection of the human person may not beinvalidated on the basis of other circumsıances67 This would mean that the

66" ... there should definitely be a provision at least recognizing that Stateseould take economie measures pursuant to a Securily Council resolutionunder Artiele 4i of the Charler of the United Nations." (Report of theSec:retary-General, Ec:onomlc: Measures as a Meanı olPolitical and Ec:onomlc: Coerdon agalnst DeveloplnıCountrles, Doc. A/44/SIO, October LO, 1989: Report of tbe EspertGroup Meetlng, par. 22).

67 The Convention ıpeaks • in eonneetion with the question of thetermination or suspension of treaties - of "provisions relating to theprotection of the human person eontained in treaties of a humanitarlueharaeter, in partieular to provisions prohibiting any form of reprisala

22 TIlE 11JRKISH YEARBOOK (VOL xxn

provisos contained in the respective conventions completely lose theirrelevance in regard lo the specific humanilarian norms contained in theconveotion.68

The United Nations Conference on Human Rights, in Par. 100f itsfınal document "Vienna Declaration and Programme of Action" of June 25,1993, also reasserted the right to development as a "universal andina1ienableright and an integral part of fundamental human rights." Artiele 14 of theDeclaration specifically states that poverty inhibits the full realization ofhuman rights.69 Precisely this siıualion, however, has been and continues tobe created in many counlries by the Securily Council through its policy ofeconomic sanctions. Even the Vienna Declaraıion does nol omiı the usualproviso when, in Article 7, it sıipulaıes thaı the processes of promoting andprotecting human rights should be conducted in conformity with thePwposes and Priociples of the UN Charter.

The most precise articulation to date (in the framewoek of the UnitedNations) of the problematic nalure of the sanctions with regard to humanrights problem S has been undertaken by the UN Commission on HumanRights in its resolution of March 4, 1994. Article 2 expressly maintainsthat coercive economic measures prevent the full realization of all humanıights, with special reference to children, women and the elderly.70 Directingoor aıtention lo the Universal Declaration of Human Rights, the resolutionCaUSon all states lo forbear such practices. It above all refers lo (in Article3) "the rigbt of everyone to a standard of living adequate for their health andweU-being.including food and medical care, housing and the necessary socialservices". Article 4 of the resolution explicitly lists reslrictions on trade,bloclcades, embargoes and the freezing of assets as coercive measuresconstituting human rights offenses; Artiele S expressly stipulates thatessential goods such as food and medicines may not be used as means of

against persons protected by such treaties." (United Nalions/ GeneralAssembly, Doc. A/CONF.39127,23 May 1969, p. 29)

68Cf. also Gowlland-Oebbas, "Security Council Enforcement Action andIssues of State Responsibility," op. clt" p. 93. She refers to thisprovision of the Vienna Convenıion as restricting the validity of Article103 of the UN Charter.

69'The existence of widespread extreme poverty inhibits the full and effectiveenjoyment of human rights ..... Cf. also the recommendation of the NGO-Forum, All Human RIghts for Aıı, Report by the GeneralRapporteur, 12 June 1993, Working Group D,Rec:ommendat1on n. 6: "The recognition of impoverishmenı of largesectors of the populaıion as a gross violaıion of human rights - civil,political, economic, social, cultural - in their entirety."

70Human rights and unilateral coercive measures: Commission on HumanRights, S6th mceting, 4 March 1994, res. 1994/47.

1992] TIlE U. N. SANcnONS 23

L_

exeıting political pressure. It is not neeessary to further elaborate on the Cactthat, in substanee, the circumstances deseribed in the resolution mateh thoseof multilateral sanctions imposed b; the Seeurity Council (in the frameworkof measures of colleetive security). 1 In order, however, to avoid a conruetwith the UN Cbarter, the Human Rights Commission expressly directed itsresolution, on a formalievei, at unilateral coercive measures ("Human Rigbtsand Unilateral Coercive Measures") despite the fact thaı the effects ofmultilateral sanctions upon human righıs are far graver (because theynaturally "hiı home" better). This reveals once more the normative rifı in theconscience of the United Nations organs; exempting measures of collectiveseeurily from the validiıy of human rights is symptomatic of this rifLGran ted, apoliıical conflict in ıhe framework of the United Nationsprocedures and the United Nations power Struelures is thus avoided; thecontradiction on the normative level, however, remains, as far as concems thestaıus of human rights as the jus cogens, Le. the foundation of validily, ofinternational law. In actuality, ıhe validity of human righıs is madedependenı on provisions of international law in the UN Charter. But it isprecisely through these provisions that the rights demanded by the HumanRights Commission can be invalidated in the course of collective measuresdetermined by power politics. Not even through reference to the priority ofpeace • as the guaranıee of the fundamental right to life - can this normativecirculus vitiosus be conjured away.

C. Sanctions Polh:y and InternatioDal HumanitarlanLaw:

For the legal evaluation of coercive economic measures imposed bythe Seeurity Council, generally reeognized provisions of internationalhumanitarian law72 can be especially useful. Because measures of this kinddo not constitute, from the standpoinı of international law, acts of war (even

71The International ProgresB Organization, before the Commission on HumanRights (Sub-commission on the Prevention of Diserimination andProteetion of Minorities) has already (on 13 August 1991) pointed out theviolations of human rights brought about by economic sanctions measureswith referenco to the case of Iraq. The Sub.Commission has also appealedin its Resolutions 1990/109 and 1991/108 to those states participating insanctions against Iraq that they lake into account the fundamental humanrights of the Iraqi civilian population - and especially those of thechildren. Although the Commission on Human Rights has not directed anappeal conceming this humanitarian issue • as demanded by the I.P.O. - tothe Security Council, it has nevertheless refleeted the I.P .0:5 humanitarianconcem in the resolution on unilateral coercive measures quoted earlier.

72Concerning the current discussion about the instruments of internationalhumanitarian law, cf. Bulletln. or Human RIgbts, 91/1, i: "Humanrights and humanitarian law," United Nations, New Yorlt, 1992.

24 TIlE 11JRKISH YEARBOOK (VOL. xxn

though that is what they de facto are), the laws of war in a strict sense do notapply to them. The provisions of the Geneva Convention Relative to theProteetion of Civilian Persons in Time of War (of August 12, 1949) are,however, valid, for they may also be applied with respeet to conflicts notexpressly declared as war. Thus "the humanitarian restriction also exists forcoercive measures in accordance with Chapter VII of the Charter.'r73 Artiele54 (1) of the First Additional Protocol to the Geneva Conventions isespecially significant for an evaluation of comprehensive coercive economicmeasures: "Starvation of civilians as a method of warfare is prohibited. "74This provision is also relevant as regards the continuation of comprehensivesanctions against Iraq, a large portion of whose economic infrastroeture wasdesteoyed in the course of belligerent activities based on Chapter VII of theUN Charter75 (and elearly contrary to Article 54 (2) of the First AdditioıwProlOCOı).76

Furthermore, the provisions of articles 48 and 49 of the FirstAdditional Protocol are by analogy appIicable to economic sanctions (whichoften serve as the fırst step towards or go hand in hand with coercive militaeymeasures). In accordance with these provisions, the protection of the civilianpopulation cal ls for the latter to be distinguished in all circumstances fromthe combatants.77 What appIies to a militaey situation must apply all themore to the implementation of coercive economic measures, for otherwisethe conduct of war would satisfy higher criteria of justice or human rights

73Verdross/Simma, Unlverselles Völkerreeht, p. 148, ~ 242.74 Protoeol Addltlonal to the Geneva Conventlons or 12

August 1949, and Relatıng to the Proteetlon or Vletlms orInternational Armed Connıets (Protocol I, signed on 10 June1977), Article 54: Protectlon or objects Indlspensııble to thesurvlval or the elvıııan populalion. Cr. also the identicalformulation in Article 14 of the Second Additional Protocol (with referenceto internal armed conflicts). Humanitarian exceptions for comprehensivesanctions (with regard to medical supplies and food) follow from Artiele 23of the Fourth Geneva Convenlion: Geneva Convention Relative to theProtection of Civilian Persons in Time of War of August 12, 1949.

7SCf. the editorial "Let Dur People Live," The ArabRevlew (London),vol. 2, n. 3 (Winter 1994), pp. 2-4. Cf. also "International Law ExperlsResolution," International Symposlum on U,S, War Crlmes andEmbargo Vlolatlons or Human RIgbts In Iraq, February 5.8,1994, Baghdad, 1994, pp. 12-15.

76"lt iı prohibited to atlack, destroy, remove or render useless objeetsindispensable to the survival of the civilian population ..."

77Artiele 48, Basic Rule: "In order to ensure respect for and protection ofthe eivilian population and civilian objects, the Parti es to the conflictshall at all times distinguish between the civilian population andeombatants ... "

19921 TIlE U. N. SANCIlONS ıs

than non-miliıary measures. Comprehensive economic sanctions, however -in contrast to partial sanctions - do not by their very nature allow for adifferentiation between the "civilian population" and the government (orspecific governmental institutions) whose policies are to be influencedthrough the sanctions. Comprehensive sanctions make the civilianpopulation the hostage of the Securlty Council, of the state, or of the groupof states implementing the coercive measures. Former American AuorneyGeneral Ramsey Clark has fervenlly drawn auention to this inconsistencybetween the provisions of international humanitarian lawand actual UnitedNations practice in the realm of economic measures based on Oıapter VII ofthe Charter: "If law prohibits even minimal assauh on civilians in time ofwar, when a government will not surrender, can it permit the assault of anentire nation when its government will not submit. stOking the poorest andweakest hardest and killing the most fragile?,,78 lt is astonishing LO the lega!philosopher that the sanctions policy is not measured against the normativeroles of international humanitarian law despite the fact that this policy is dejacıo constitutive of a war strategy, Le. this policy amounts to a strategy toesealate the use of force (even though this force, if implemented underChapter VII of the UN Charter, is not declared as "war" in terms ofinternationallaw). As shown by the practice of the Sanctions Committee ofthe Securlty Council especially in its handling of the Iraq sanctions since1990, there are no "humanitarian" seroples, despite the fact that numerousreports (including those of representatives dispatched by the United Nations)document in detail the catastrojhiC situation brought on by the continuatianof the sanctions after the war.7

The so-called Martens Clause evokes the general humanİtarianprinciples to which the Security Council is also bound by virtue of j"Scogens during the implementation of its sanctions policy. This role was fmıformulated in the Preamble to the Second Hague Convention of 1899 andwas restated in the Preamble LO the Fourtb Hague Convention of 1907. Thisprovision was decisive for the development of internationallaw. it stipulatesthat, in the absence of detailed provisions concerning specific areas of the lawof war, the civilian population as well as the combatants should "remainunder the protections and the role of the principles of the law of nations, asthey resuh from the usages established among civilized peeples, from the

78"Appeal for Aetion to Prohibit All Embargoes against a Whole Nation."Contra los embargoı y sanelones econ6mlcas, Dossler I,OSPAAAC, Madrid. [1994], p. ı.

79For recent considerationı of the precise and bindinı formulation or theprineiples of humanitarian aetion,ef .. L. Minear andT. G. Weisı,Humanltarlan Adlon In Time of War, Boulder/London, 1993. cr.alsa the "Providence Prineiples of hwnanitarian setionin umed eonflictl"(Minear/.Weiss. p. 19).

26 THE TURKISH YEARBOOK [VOL XXII

Iaws of humanity, and the dictates of the public conscience .••80 (TheMartens Clause was explicitly incorporated into the First Additional Protoeolto the Geneva Conventions of 1949.81) This fonnulation clearly upholdshuman rights as the jus cogens of general international law. Thus, thehumanilarian consequences of the provisions of the UN Charter - especiallythose in Chapter VII - must be constantly examined with regard to humanrights. This role of interpretation resulting from the Martens Clause is oftenused in the current discussion of the permissibility of weapons of massdestruction under internationallaw. This interpretation applies by analogyequally to all coercive measures which hadly harın the economy and thehealth of the civilian population and pose a threat to the latter's right to life;this is precisely the case with total blockades, which cause mass sufferingand destmy the healthcare system of the country targeted. It would be absurdand contrary to all principles of justice if one were to apply higherhumanitarian standards to war than to so-called non-military coercivemeasures which, like war, can lead to death and mass deprivation.

The lack of consideration granted to provisions of internationalbumanilarian law (which are applicable by analogy) cannot be justified evenby reference to the maintenance of internationalpeace according to Artiele 39of the UN Charter. The goal of peace does not supersede human rights; onthe contrary, peace as the goal of the UN Charter can only be dermed withrespeet to human rights (and especially the fundamental right to life). Therestoratian or maintenance of a state of affairs which preserves thefundamental human rights cannot be gained by negating these very humanrights. On grounds of humanity, there must be nonnative consistency inthis particular context of internationallaw. Otherwise, the nonnative systemembodied in the UN Charter loses its legitimacy. The requirements of powerpolitics should not establish the criteria of interpretation guiding theapplication of the provisions of Chapter VII; rather, through the analogous

SO"les populations et les belligerants restent sous la sauvegarde et sousl'empire des principes du droit des gens, tels qu'ils resultent des usagesetablis entre nations civilisees. des lois de l'humanite et des exigences dela conscience publique." (Preamble of the Conventlon concernant les1015 et coutumes de la guerre sur terre du IS octobre 1907.quoted according to Die Haager Landkrlegsordnung (DasUberelnkommen Ober die Gesetze und Gebrliuche desLandkrleges]. Textausgabe mit elner Elnrührung von RudoırLaun. WolfenhUttel-Hannover. [3rd ed.] 1947. p. 68.)

81 Protoc:ol i (1977), Part I: General Provlslons. Aniele i (2): "...civilians and combatants remain under the protection and authority of theprinciples of international law derived from established custom, from theprinciples of humanity and from the dictates of public conscience."

19921 TIlE U. N. SANCIlONS 27

application of provisions for the proteetion of eiviJians in armed eonfliets.international humanitarian law should determine such guidelines.82

III. Concerning Collective and Individual Legal Respon-sibility in Current International Law:

OutIin~ above is the kind of sanctions policy which either directIycauses or acknowledges the violation of human rights and the disregard ofprovisions of international humanilarian law. In light of this, one particuJarquestion necessarily arises: the question concerning the legal and moralresponsibility of the states or eommunity of states83 (as represented by theSecurity Council) authorizing or caırying out the sanctions. The InternationalProgress Organization raised this question with the UN Commission onHuman Rights in connection with the sanctions against lraq.84 Unti1 now.however, the doctrine of internationallaw has hardly, or inadequately, dealıwith the issue of responsibility; apparentIy the question of "guilt" has beensuppressed in collective security measures, as the many provisos in thepreviously quoted conventions prove. It seems to be a common belief thaıthese measures are above general international law or thal they invalidateevery other international law, as can be expressed by the following maxim:"Security (Council) law invalidaıes internationallaw (or the law of humanrights). " Clearly, this cannot satisfy the legal philosopher, whose concernsare the universal validity of norms and the legitimacy of legal systems.

The considerations layed out by Jean Combacau in his work on thetheory of non-miJitary coercive measures typify the eonventional standpointof experts on international law on sanetions and the responsibility

82cf. Gowlland-DebblS, "Security Council Enforcement Action and Issues ofState Responsibility," op. dt •• particularly Chapter III: "Limits to theEnforcement Powers of the Security Council," pp. 9Off.

83Cf. Bin Cheng, "General Principles of the Law in the Concept ofResponsibility, 7: The Principle of Individual Responsibility," in:General Prlnc:lples or Law as applled by InternatlonalCourts and Trlbunals, London, 1953, pp. 208ff.

84,,1t must be said that the members of the U.N. Security Council bear •...moral and legal responsibility for the grave eonsequences of thecontinuation of the sanetions ... " (Commission on Human Rights, Sub-Commission on Prevention of Discrimination and Protection ofMinorities, Forty-third session, 5-30 Augusı 1991, Presenlation by WarrenA. J. Hamerrnan, International Progress Organization): Summary Rec:ordor the IOth meetlng, 13 Auıust 1991, Doc.ElCN.4/Sub.211991/SR.IOrıO Auguıı 1991. par. 95, p. 20.

28 TIlE TURKISH YEARBOOK (VOL. xxn

accompanying them.85 Combacau completely disregards the ethical aspectsof sanctions in conneetion with the population of the affeeted country. Heelaborates on the moral aspect only in regard to people in neighboringcounıries who suffer as a result of a sanctions measure. Combacau speaks of"exigence morale" as concerns the obligation of solidarity with these victims(among whom, however, the civilian population of the affected eountry isnot included).86 In eonnection with Artiele 50 of the UN Charter, hedeseribes the existence of a lega! obligation regarding the neig~boring statesafreeled by the sanctions,87 without, however, addressing the rights of thecivilian population direcüy affeeted. In his report on United Nations reform,An Agenda for Peace, UN Secretary-General Boutros-Ghali alsowillfully overlooks the question of liability as regards the population of thecountry affeeted by the sanctions when he suggests improvements toreparation measures for third eountries.88 In his recent report (Supplementto an Agenda for Peace: Position Paper of the Secretary-General on the Occasion of the Fiftieth Anniversary of theUnited Nations) he addresses, for the first time, the problematic nature ofsanetioos in regard to ethical questions.89

Konrad Ginther has proposed a theory conceming the responsibilityof international organizations under international law;90 however, this theorydoes not help to resolve the questions of liability raised by the sanetions. Heviews the United Nations Organization as regards its status in internationallawasa universalorganization; Ginther thus regards the measures of theSeeurity Council as being, as it were, ex definilione "always in the interestof the entire international community" .91 From this standpoint, there is -"at least theoretically" - no possibility of a collision between the individualinterest of a member state (and probably "individual rights" of that state as

85Le pouvolr de sanetlon de I'O.N.U.: Etude theorlque de lacoercltlon non m IIltalre, Paris, 1974.

860p. clt •• pp. 340ff.870p• clt •• p. 343.88par. 41: "Sanctions and special economic problems," in: An Agenda forPeace, Preventlve Dlplomaey, Peaeemaklng and Peaee-keeplng. Report of the Seeretary-General pursuant to thestatement adopted by the Summlt Meeting of the SeeurltyCouncil on 31 January 1992, New York, United Nations, 1992, p.24.

89 Report of the Seeretary-General on the Work of theOrganization, United Nations. General Assembly/ Security Council.Doc. AJ50/60. S/1995/1, 3 January 1995. esp. par. 70.

9 O Dlevölkerreebtllehe Veran twortlleh ke it In terna t10nalerOrganlsatlonen gegenüber Drlttstaaten. Vienna/ New York. 1969.

910p. clt., p. 18ı.

1992) mE U. N. SANCTIONS 29

well) and the interests of the community of nations as represented by theUnited Nations Organization.92 This interpretation is, of course, suppoıtedby the provisions of Artiele 24 (1) of the Charter.93 Ginther apparentlydisregards the fact thal the general responsibility of the Securlty Council forpeace and securily (as stated in this paragraph) disguises an underıying policyof interests of the permanent members of the Securlty Council. With regardto the postulated universalily, Ginther formulates a flctitious principle whichcan only be laken cynically by the population whose human rights areaffected by the sanctions: "the measure adopted by the organization inconformity with its Charter is always to be regarded as being in the interestof the affected state. "94 Ginther seems not to have considered whatconsequences this formulation could have for the assessment of coerciveeconomic measures, for the maxim he proposes instrumenlalizes the rights ofthe civilian population (Le., their human rights) for the beneflt of an abstraetSlllle; this mIDümthereby runs counter to a central area of the jus eogens ofgeneral international law. From a formal standpoint, Ginther correctlyconcludes from the universal nature of the United Nations Organization that"the organization alone, to the exelusion of a subsidiary liability of themember states, is responsible for the consequences resulting from aviolation of righis by one of its organs. "9S This general statement isproblematic, however, with regard to the privileged position of the permanentmembers of the Securlty Council, for these members can steer aresolution ina particular direction by means of their veto right.96 Judging from what hasbeen said, Ginther would probably not apply the principle of !iability to thesanctions resolutions of the Security Council, for such measures, from hisstandpoint, cannot eo ipso ron counter to the interests of member states. inaddition, current internationallaw provides for no mechanism for determiningand punishing a human rights violation caused by the Securlty Council.Neither does Ginther, in his exhaustive considerations on internationallaw,make reference to the problems associated with the damage caused by acomprehensive sanctions policy to the whole population of a country. Fromthe standpoint of conventionaı international law, the Securlty Council isapparently immune, due to the philosophy - or rather, ideology • of

92lbld.93"In order to ensure prompt and effective action by the United Nations, iliMembers confer on the Security Council primary responsibility for themaintenance of international peace and security. and agree that in carryingout ili duties under this responsibility ıhe Securily Council acls on ıheirbehalf." (Emphasis added by the author.)

940p. clt •• p. ISI.9S0p. elt., pp. ısır.96Cf !fE the aıhor's The Voting Procedan In the United Nations SecwttyCOı.mC:II:Examlnlng • Normative Contradletlon In the UN Cbarterand Its Consequenc:es OD International Relatlons, viavl-. 1991.

30 THE TIJRKlSH YEARBOOK [VOL xxn

"colleetive security"; it is not possible for the Council to violate any rightsas long as it adheres to the formal framework of the Charter's provisions.The ideology of universality does not even a1low for a substantive (material)examination and normative evaiuation of the Security Council's sanctionspolicy.

We are thus forced to acknowledge that the current theory ofinternationallaw completely overlooks issues of human rights and issues ofliability closely conneeted with the latter. This deficiency is all th~ moreaggravated by the fact that the sanctions policy in aceordance with ChapterVII of the Charter can gravely violate the fundamental human rights of awhole generation of people. A moral-philosophical critique of the currentUN Charter is urgently called for, one which considers the latter as it isactually interpreted by the "superpowers" (which above all exploit theprovisions of Chapter VII). It is inexcusable that these superpowers escapetheir responsibility preeisely through reference to their special responsibilityin aceordance with Article 24 and the provisions of Chapter VII and that theyfurthennore have their "immunity" indireetly confırmed by the InternationalCourt of Justice, as occurred de facto in the Order on the Libya case citedabove. Despite this fact of power politics, we must assert that not onlynations defeated in war but a1so the organ s of the United Nations - due to theuniversal validity of human rights - have a specijic duty to undertakereparations towards every person whose rights have been affeeted bysanctions. This is the case because the comprehensive economic sanctionsdeseribed above are an illegitimate instrument of collective punishment andcontraey to the jus cogens of international law; they should never have beena1lowed, in this general form, to become embodied in the UN Charter.

To the extent that - on the basis of human rights - the organs of theUnited Nations are fully responsible for the consequences of resolutionscontraey to the jus cogens, the question conceming the applicability of theprinciples of the NUmberg Tribunal and of the Genoeide Convention cancertainly be raised.97 Why should they not apply? As the delegate of thebıternational Progress Organization maintained in the statement presented tothe Human Rights Commission and quoted above, certain sanctions measuresof the Security Council represent grave and systematic violations of thefundamental human rights of an entire population of a state.98

97Conceming the fundamental issues, cf. the reflections of Hans Kelsen -which precedcd the conception of the NUmberg Tribunal and of theGenocide Convention: "Individual responsibility for acts of State," in:Peace through Law, Chapel Hill, 1944, Part II: Peace Guaranteedby Indlvldual Responslbll1ty lor Vlolatlons ol InternationalLaw, pp. 81ff.

98"A grave and systematic violation of human rights and fundamentalfreedoms is carried out against the entire population of Iraq, in form and

1992) mE U. N. SANCllONS 31

The principles of the Nümberg War Crimes Tribunal99 have alreadybeen discussed publicly in this regard.ıOOArtiele 6 (c) mentions "crimesagainst humanity" as wrongdoings to be duly punished as crimes underinternational law. In accordance with the definition provided by the NOmbergTribunal and adopted by the International Law Commission of the UnitedNations. crimes against humanilyl01 encompass not only murder,enslavement. deportation ete.; they also include "other acts done against acivilian population •...when such acts are done ...in execution of or inconnection with 80y erime against peace or 80y war erime." 102 Thisdefinition can certainly apply to a deliberate sanclions policy - though onlyin conneclian with beUigerent acts in the course of which war crimes havebeen commiued. The derınition gains relevance especia1ly in cases • such as

dimensiona without precedent ... That such a policy be earried out on thebasis of decisions made by a U.N. organ is unprecedented in the history ofthe U.N.... A further special feaıure of this elSe is that the violation iıbeing earried out not by a national govemment. but by anintergovernmental body against the population of • member State of theU.N." (Ioc. CiL. par. 95. p. 20).

990riginally formulated as "Charter of the International Military Tribunal atNUmberg" as part of the London Agreement for the Prosecution andPunishment of the Major War Criminals of the European Axis of AU8U1l19. 1945. it was then a!firmed by a unanimous resolution of the UNGeneral Assembly: "Affırmation of the Prineiples of Intem.tional Lawrecognized by the Charter of the NUmberg Tribunal" (resolution 95 [lı of11 December. 1946). Cf. Alfons Klafltowski, Die NürDberıerPrlnzlplen und die Entwlcklung des Völkerrechts. War•• w.1966.

100Cf. particularly the eomplaint of ıhe Commission of Inquiry for theInternational War Crimes Tribunal in connection with the Guır War. ThisCommission explieitly lists "erimes against humanity" (CommlssloD olInqulry for the international War Crlmes TrlbuDal. Initla.Complalnt. New York, 9 May 1991. p. 1). Cf. also the judgment of theInternational War Crimes Tribunal of 29 February 1992, in which thecontinuation of sanetions is described as a "erime against hwnanity".

101Concerning this coneept and its dislineıion from the concept of wc erimeıin eonneetion with the definitions of the NQmberg Tribunal, cf. JohnFried, "Observations on the Coneepts of War Crimeı and Crimes ag.mstHumanity," in: Toward a RIght to Peace. Selecıed Papers of John H.E. Fried with a foreword by Roger S. Clark, NorthampıonlMass, 1994, pp.43-58.

102 Formulation of the Prlnclples of InternatIonal LawRecognlzed In the Charter of the NOrnberg Trlbunal and Inthe Judgment of tbe Trlbunal: Text of the NQrnberlPrlnclples adopted by tbe InternatIonal Law CommlssloD(44th to 49th meetlngi. 11 to 19 June 1950), .United N.tionslGeneral Assembly, Dac. A/CN.4/Ul, 24 June 1950, p.2.

32 mE TIJRKlSH YEARBOOK [VOLXxn

the case of Iraq - where, following the strategic destruetion of the eeonomicinfrastructure of a whole eountry in the eourse of belligerent acts (inviolation of the Geneva Conventions), sanetions measures deny thepopulation the right to adequate nutrition and appropriate medical care over anextended period of time. With referenee to the sanetions imposed againstIraq, former US Attorney General Ramsey Clark has repeatedly and ferventlypointedout evidence of a erime against humanity in accordanee with theNürnberg principles.103

The resulting personal eriminal responsibility of the respectivedecision-makers of the member states of the Security Council can also beshown with regard to the provisions of the Genocide Convention. Inaccordance with Artiele II, the concept of genocide is defined on the basis ofacts with the intent to destroy anational, ethnie, racial or religious group;one means among others towards this end is "deliberately inflieting on thegroup conditions of life caleulated to bring about its physical destruction inwhole or in part." 104 In a petition to the United Nations, the Americanexpert on internationallaw, Francis Boyle, concluded that the Iraq sanctionsamount to genocide; accordingly, in the name of the children affected mostdeeply by the sanctions, he demanded legal measures against thoseresponsible.10S

In connection with recent attempts to formuiate definitions ininternational law, another document is relevant, namely the draft of theInternational Law Commission conceming the responsibility of a state for itsintemationally wrongful acts. Artiele i9 of the draft defines the term"international erime" as an "intematiorially wrongful act whieh resultsfromthe breach by a State of an international obligation so esscntial for theproteetion of fundamental intcrests of the international community that its

103Cf. particularly the report of the commission which he initiated, namelythe Commission of Inquiry for the International War Crimes Tribunal -InlUal Complalnt of 9 May 1991. Cr. also his artiele in the LosAngeles Times (22 February 1994). Cf. also the statement by Third WorldSolidarity, "US imposed sanctions and blockades on Third World countries"(London, 23 July 1994): 'The sanctions policy is clearly a Crime againstHumanity as defined under the terms of the Nuremberg Principles." Cf.also the editorial "Let Our People Liye," op. cit., p. 3: 'The total blockadeis moraııy indefensible ..." The editorial mentions in this context the"rubher stamping Security Council claiming international legitimacy forgenocide."

l041ntemationalConvention on the Prevention and Punishment of the Crimeof Genocide (1948), Artiele II, par. c.

10 Slodldment-, Complıılnf and Petltlon by' the 4.5 mllllonChildren from Iraq for Relld from Genoelde by PresldentBush and the United States of Amerlca [Sept. 18, 1991).

19921 TIlE U. N. SANCIlONS 33

breach is recognized as a crime by that community as a whole."106 Underparagraph (c), the Commission provides as an example of international erime"a serious breach on a widespread scale of an international obligation ofessential importance for safeguarding the human being, such as thoseprohibiting slavery, genocide and apartheid. n107 In the context of theCommission's codification efforts in international law, the defınition appliesto the policies of individual states;108 by analogy, however, it should beequally applicable to acts of a community of states as represented by theSeeurity Council, whereby (disregarding the theory formulated by Ginther)every state should be held individuaIly accountable for its participation insanctions resolutions that are contrary to human rights. if evidence ofgen<>cideas defined above is found, the individual responsibility of themember states of the Seeurity Council would have to be determined inaccordance with this definition of "internationalcrime".

A speciaIist for United Nations reform, ErsicineChilders, has drawnattention to other legal issues. He has documented that recent sanctionsresolutions have come about with the help of economic pressure and bribery.In his opinion, a practice of this sarı. especiaIly when perpetrated by apennanent member of the Seeurity Council, undermines the sovereignty ofthe member states and thus gravely violates the UN Charter. A member statesuspected of such practice should be, in his eyes, held accountable before "acourt of international criminal law".ı09 However, there exist as of yet nolegal instroments which would allow this kind of justifiable demand to berealized. The practice which Childers condemns is blatantly contrary to theprovisions set out in the Dec/araıion on Principles of International LawConceming Friendly Relaıions and Co-operaıion among States in accordonuwiıh the Charter of the United Nations (1970).

106Yearbook or the International Law Commlssloıı 1980, Vol. II,Part Two: Report of the Commlsslon to the General Assemblyon the work or Its thlrty-seeond sesslon. [Doc. A13S/l0] NewYork. 1981. Chapter 111:Sıate Responsibility, p.32.

1071bld.1081n the ruHngs of the International Court of lustice, as well. this specific

lega1 obligation towards the community of states as a whole ("obIigationserga omnes") - in contrast to the obligation merely towards single states •has been described. An obligation of this sort in current international law

according to the International Court of Justice - results "from theoutlawing of acts of aggression. and of genocide. as also from theprinciples and rules concerning the basic rights of the human person."(Bareelona Traetlon, LIght and Power Company, Limited,Judgment, ı.C.J. Reports 1970. p.33.)

109" The Demand for Equity and Equality: The North.South Divide in theUnited Nations." in: Hans Köchler (ed.). Tbe United Nations andInternational Demoeraey. Vienna. 1995, p. 33.

34 TIIE 'lURKlSH YEARBOOK IVOL xxn

IV. Consequences from the Perspective of LegalPbilosopby: Cbances for the Further "umanitarian Develop-ment of International Law?

if we consider this list of inconsistencies and incompatibilities ofsanctions measures with regard to international law. and above all asconcems the universal validity of human rights • and if we furthermore lakeaccount of the ethical impermissibility of the sanctions policy describedabove, we are lefi to call for the further humanitarian development ofinıemational law, especially with respeet to the rights and duties of theSecurity Council. Above all, criteria should be formulated within theframework of the United Nations (it would make most sense for theInternational Court of Justice to undertake this) that would eliminateconflicts between specific purposes and principles of the UN Charter in favorof the primacy of human rights. The Security Council, in accordance withArtiele 24 (2), should also be bound to these eriteria. ı ıo Coming to termswith the current state of affairs would amount to recognizing the primacy ofthe Securily Council, not merely above the other organs of the UnitedNations, buı also above international lawasa whole, including the juscogens to wbich the community of nations is bound. Should the principlesof power politics imleed supersede the general principles of law - as the UNCbarter is interpreted in current practice - the legitimacy of international lawwould be seriously undermined. if the principles of power politics, asmanifested in the "policy of collective security" in accordance with ChapterVU of the Charter, violate the jus cogens of general international law (asclearly documented by the many provisos in the international conventionscited here), then the talk of the universality of principles of international lawloses all meaning whatsoever.

Let us in addition consider the fact that the current sanctions practieeof the Security Council in accordance with the seeurity doctrine of the "NewWorld Order" is detrimental to a comprehensivepolicy of peace, for sanctionsare in many cases part of a war strategy and abet the preparations towards orthe continuation of war. The affected population can only lake this as an actof aggression on the part of a coalition of states (or war coalition, as in thecase of the Gulf War) taking advantage of the Seeurily CounciL. With thisconsideration in mind, one is forced to call for a modiflcation of the UN

ı ı 0The current state of affairs is eritieized in a reeent report to theCommission on Human Rights: 'There are no eriıeria. developed by theUnited Nations for guiding decision-making and choiee in eases of conflictbetween duties, functions, righıs and values." (Claire Palley.Impllcatlons or Humanltarlan Actlvltles ror the EnJoymentor Human RIghts. loe. clt •• par. 16, p.7.)

1992] TIlE U. N. SANcnONS 3S

Charter to bring about a genuine policy of peace and human rights. if - asthe Security Council's current position seems to be - the restoration of apositive order of peace includes "not merely the suspension of war activities,but more important1y the respect for human rights," ılI then one cannotdisregard the most fundamental human rights of the entire poputation affectedby sanctions. ı ı2 While securing political rights and classical civil rights,one must not invalidate economic and social rights - including the right tolife and health. The arbitrariness of the Security Council's power politicsmust be reigned in; the Council at present ignores its responsibility in thisregard and bypasses the will of the affected population, directing attentioninstead to its primary responsibility for world peace in general. Only theprinciple which stipulates the conformity of all decisions with human rightscan be the foundation of a legitimate international legal order, i.e. of theinternational rule of law.l ı3 lt is especially necessary that a supplementaryhuman rights clause be added to the provisions of Article 41 of the UNCharter so that, in the statutory framework of the United Nations, theconfonnity of sanctions measures with the requirements of human rights canbe explicit1y demanded (even if our considerations from the standpoint oflegal theory have shown a colleetive duty of this kin d as aıready applying tothe member states of the Seeurity Council). ı 14 In the current discussion ofthe practice of sanctions, more radical suggestions have been made with theaim of adopting an international convention to prohibit economicblockades.l ı s

ı ı ı According to Karl Joseph Partsch, "Von der Souverllnitlit zur Solidarillt.Wandelt sich das Völkerrecht?" in: Europilsche Menscben-rechtszeltschrırt, vol. ı8. n. 21-22. ı99ı, p. 475.

ı ı 2Cf. the aııempt to formuiate practical rules for humanitarian action. 'TheProvidenee Prineiples of humanitarian aetion in armed eonfliets," in: LarryMinearı Thomas G. Weiss, op. cU., p. 19.

ı 13John Quigley has eharaeterized this international role of law as follows: "Ifthe brave new world of harmony is to emerge, the role of law must becentral, both at the domestie and international levels. All people must beseeure in their person, well-being, and property, and all must be assured aminimum level of food. health care. edueation and opportunity."("Prospects for the International Rule of Law," Emory InternationalLaw Review, vol. S, n. 2 IFall 1991], p. 320.)

114The International Institute of Humanitarian Law explieitly formulates •"Right to Humanitarian Assistance", whieh is derived from the fundamentalhuman rights. Cf. the statement of the Institute. Guldlng Prlnclpleson the RIght to Humanltarlan Assıstance (April 1993).

115Cr. Ramsey Clark's approaeh. He reeommends an InternationalConvention Prohibiting Bloekades and Penalizing Violators ("Appeal foraetion to prohibit all embargoes against a whole nation," loe. cil., p. 3).Cf. also his commentary. "Iraq Embargo is Killing Kids; End it Now"(Los Angeles Times. 22 February 1994) in which he additionally

36 TIIE TURKISH YEARBOOK [VOL xxn

Regardless of how one judges the acıual political chances of suchproposaIs for reform, it is inexcusable - in view of the most recent sanctionspr3Ctice established by the Western states - to continue placing taboos on thepowers of the Security CounciL. The relics of the old system of internationallaw, which was determined by the concept of power, need to be consistenllydisclosed for what theyare. if - under the auspices of the New Old WorldOrder - the provisions in the UN Charter with regard lO collective securitypresent de facto a loophole for the old power politics, then we mustconsistenlly demand that the use of these provisions conform with humanrights. II is inadmissible that medieval methods of siege • and war tacticswhich include the imposition of complete blockades against countries that are(economically) not self-sufficient are to be regarded as such - are justified asmeasures for the protection of world peace and human rights. Thephilosopher of law, if no one else, must refrain from joining the conspiracyof silence obviously constructed by the beneficiaries of the "New WorldQdeı".

demands a convenıion ıo derine economic oppression against a wholepeople as a erime against humanity.