The legality of sanctions
LAST week, US Secretary of State Hillary Clinton announced a list of 11 countries that had been exempted from sanctions after they had reduced their purchases of crude oil from Iran.
While that list was not released, a State Department official said that Pakistan was on the list of countries still being considered for sanctions.
This news of possible sanctions arrived in the shadow of renewed efforts to mend the US-Pakistan relationship. The mending and bending of US relations with Pakistan is a worn subject. In this latest case, Pakistan has announced the hiring of legal experts to investigate the legality of the threatened sanctions.
At the centre is the issue of the Iran-Pakistan gas pipeline project. On March 9, weeks before this latest threat of sanctions, US chargé d’affaires Richard Hoagland said that “no one was threatening Pakistan” and that the pipeline, even if pursued, was several years off. In this game both Pakistan and the US know a few years could be an eternity.
An investigation into the legality of the imposition of sanctions and an emphasis on the difference between UN sanctions and unilateral sanctions imposed by the US is crucial.
The legal regime governing sanctions imposed by one country on another is governed by the UN Charter Article 41 which states in the relevant part: “The UN Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the UN to apply such measures.
“These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio and other means of communication and the severance of diplomatic relations.”
Furthermore, under Article 39 of the Charter, the objective of the sanctions must be to keep or restore international peace and security. The permanent members of the UN Security Council must vote for the imposition of sanctions. In large part, sanctions imposed by the UN have been considered mainly legal.
In nearly all cases of sanctions imposed by the UN, exemptions have been created for international humanitarian aid, the import of food, medical equipment and the like. In the case at hand, it is unlikely that the US will be able to convince the Security Council to subject Pakistan to UN sanctions.
The legality of sanctions imposed by the US alone is another matter. These sanctions, through which American companies can be prevented from exporting goods or having trade relationships with a given country, are governed by US law whose constitution provides that the US Congress has the power to regulate commerce with other nations.
In recent years, the Helms-Burton Act, which governed the imposition of sanctions on Cuba and more recently the Iran Libya Sanctions Act (ILSA), have placed curbs on the ability of US citizens and companies to invest or engage in economic exchange with countries subject to sanctions.
If Pakistan is subjected to sanctions and wishes to challenge them via international law, the governing legal instrument would be based on the Restatement (Third) of the Foreign Relations Law of the US which pertains to international law provisions applying to America.
According to its provisions, the Helms-Burton Act, ILSA or any new legislation through which the US seeks to impose sanctions on another country must meet one or more of the following five criteria: 1) territoriality (conduct must take place in the territory of the country imposing sanctions); 2) nationality (affect nationals of the state); 3) protective (to prevent usurpation of the state’s materials by counterfeit or espionage, for example); 4) have effects on the country (this exception provides that even if the action itself does not take place within the geographic territory of the country, it still has substantial effects on it); 5) the universality principle (negative effects on the world in general, such as acts of terrorism).
In order for sanctions to be legal, one or more of the first four conditions must apply and if not, the final principle of universality must be applicable.
An argument that US sanctions on Pakistan could be initiated because of the Iran-Pakistan gas pipeline would assert that America is a) not territorially affected by the construction of the pipeline since it is not in its geographic territory; b) the construction of the pipeline has no effect on any US national; c) the construction of the pipeline does not intend through misuse or espionage to violate US laws; and d) it does not have substantial effects within US territory.
Finally, Pakistan would have to prove that the construction of the pipeline does not posit a universal threat to the world’s security or the proliferation of terrorist activity.
Of the conditions listed above, the first and second relating to territoriality and nationality are amenable to being proven inapplicable, making the satisfaction of the first four conditions an improbable basis for justifying US sanctions.
The pipeline is quite obviously not within US territory, nor does it implicate substantial effects beyond those of a globally interconnected energy market.
The problem, of course, is likely to be the ‘universality’ principle. The US has long asserted that the primary threat from Iran is the likely proliferation of nuclear weapons which could be availed by non-state groups.
The same charges have been levelled at Pakistan. An imposition of sanctions on Pakistan, then, could be comfortably justified via the argument that the construction of such a pipeline and close relations between the two countries would allow terror groups or states sympathetic to them to develop the means to destroy the world.
Energy for some, the US can easily convince a terrified world, may mean the destruction of everyone else.
The writer is an attorney teaching political philosophy and constitutional law.