Economic Sanctions are prohibited by the UN Charter
Economic Sanctions and Article 2 (3) of the UN Charter
Economic Sanctions and Article 2 (4) of the UN Charter
It has been argued that economic sanctions are unlawful because:
(a) They violate article 2 (3) of the UN Charter which requires States to settle their international disputes by peaceful means; and
(b) They violate article 2 (4) of the Charter which requires States to refrain in their international relations from the threat or use of force against the territorial integrity and political independence of any State, or in any other manner inconsistent with the purposes of the United Nations.
However, as will be explained below these prohibitions do not apply to the State of Israel because that country through constructing a wall in Occupied Palestinian Territory and transferring its citizens there is in breach of international law itself.
Economic Sanctions and Article 2 (3) of the UN Charter
The argument that sanctions violate article 2 (3) was advanced by the Israeli Professor and former Ambassador Professor Yehuda Z. Blum in his creative thesis on “Economic Boycotts in International Law” based on a paper he presented to the Conference on Transnational Economic Boycotts and Coercion at the University of Texas Law School in February 1976.
However, his thesis relies on the 1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States which only prohibits the use of economic measures if its aim is “to coerce another state in order to obtain from it the subordination of the exercise of its sovereign rights”.
This would not apply to Israel since sanctions would not subordinate its sovereign rights for a purpose that is inconsistent with the principles of the Charter. Rather, it is Israel’s polices and practices in the Occupied Palestinian Territories that conflict with the principles and purposes of the Charter.
Moreover, economic sanctions are peaceful and non-violent measures designed to coerce Israel to comply with international law. As long as they do not threaten its independence or existence it is difficult to see why they would be unlawful.
They are certainly preferable to war and should be distinguished from sanctions whose aim is to force a state to subordinate the exercise of its sovereign rights by pressing for regime change in paces like Cuba and Iraq.
So although the basic rationale is that sanctions are acts which are unlawful per se, this is not the case if they can be justified as a sanction triggered by an unlawful act designed to induce the offending State to return to full compliance with the law.
Sitting in at the same conference with Blum in 1976 was Richard B. Bilder, who was then Professor of Law at the University of Wisconsin Law School. He responded to Blum’s thesis by making these comments in his article on the legality of the Arab oil boycott:
(Texas International Law Journal, 1977) p. 42:
“…I am sceptical that in our present political and legal system there is much likelihood of achieving an effective rule barring the use of economic pressures in international relations. I think that it is unrealistic to expect or to require a nation, at least in the absence of a specific agreement otherwise, to continue to do business with another nation which it regards as its enemy or as helping its enemies. It seems even more unrealistic to attempt to require a nation to confer what it considers as gifts or favors, such as economic aid or trade concessions, upon other nations which it considers unfriendly. The United States has long held this position as regards trade with Communist countries, and it is not surprising that the Arab countries have taken this position with respect to Israel. It is interesting to note that private groups in the United States and elsewhere have frequently attempted to organize boycotts or trade or other dealings which they felt supported foreign nations who policies they disagreed – for example, the attempt by Jewish groups to organize boycotts of French goods and of travel to Mexico because of these countries’ support for anti-Israel positions, or various boycotts on dealings with South Africa. I think it would be useless to attempt to deny either to nations or to individuals or groups the right to express their attitudes in this way”.
The plain fact of the matter is that economic coercion, be it through popular boycotts, trade embargoes or selective sanctions are not prohibited so long as their aim is not to force a state to subordinate the exercise of its sovereign rights.
In his commentary on Article 2 (3) of the Charter, Christian Tomuschat, Professor of Constitutional and International Law at the Humboldt University in Berlin, writes: “International practise is based on the assumption that such a general ban [on economic sanctions] does not in fact exist. Any other view is open to serious doubt, for it would be tantamount to conferring privileges on a wrong-doer” (The Charter of the United Nations: A commentary 2002, p. 110).
As has been made clear in the numerous resolutions passed by Israeli, Palestinian and international non-government organizations as well as by Christian, Jewish and Muslim groups, the aim of sanctions against Israel is not to subordinate the exercise of it’s sovereign rights (which it in any case does not have over the Occupied Palestinian Territories), but to secure it’s compliance with international law.
Economic Sanctions and Article 2 (4) of the UN Charter
The argument that economic sanctions violate Article 2 (4) of the Charter is also without merit because this only prohibits the use of armed force, not economic force.
This view is supported by the negotiating history of the UN Charter. A Brazilian proposal to extend the prohibition of this Article to include economic force was rejected during the drafting of the Charter on 6 May 1945.
In his commentary on Article 2 (4) of the Charter, Albrecht Randelzhofer, Profess or Public International Law at the Free University of Berlin, writes (The UN Charter a commentary, p. 118):
“…para. 7 of the Preamble to the Charter states as one of the goals of the United Nations ‘that armed force shall not be used, save in the common interest’. And Art. 44 supports the view that the Charter uses the term ‘force’ where it clearly means ‘armed force’. The prevailing view is further corroborated by a teleological interpretation of Art. 2 (4): were this provision to extend to other forms of force, States would be left with no means of exerting pressure on other States that violate international law. That consequence would be unacceptable at the present stage of development of international law, where compliance with the law is not effectively ensured through international organs”.
That Israel is in violation of international law is beyond doubt. Yet for almost four decades the international community has done little about these violations effectively perpetuating a conflict which has left thousands of Israeli and Palestinian dead and injured.
Had they done something about these violations from the very beginning, perhaps all those wars, intifadas, and terrorist attacks could have been prevented?
We will never know. But what is clear is that for the reasons set out above, economic sanctions against Israel are not prohibited by the UN Charter.
For further reading:
See Yehuda Z. Blum, “Economic Boycotts in International Law”, 12 Texas International Law Journal, (1977), pp. 5-15.
See Richard B. Bilder, “Comments on the Legality of the Arab Oil Boycott”, 12 Texas International Law Journal, (1977), pp. 41-46.
See Bruno Simma, The Charter of the United Nations: A Commentary (Oxford: Oxford University Press 2002).