What are the lessons to be drawn from the sanctions imposed against Iraq, Haiti, and the former Yugoslavia? They did not force Saddam Hussein, General Raoul Cedras, or President Slobodan Milosevic to abdicate, although they were helpful in preparing for Desert Storm, in inducing Iraq to comply with most of the provisions of Council Resolution 687 issued following the end of hostilities, and in encouraging President Milosevic to sign the Dayton Peace Accords. The sanctions against Haiti were the least successful. There were overall modest results when measured against the considerable costs of these sanctions, but this should come as no surprise given the historically low levels of success of most prior sanctions. According to a worldwide survey of 116 sanctions imposed between 1914 and 1990, primary objectives were achieved in less than one-third of these sanctions.¹

Failure of sanctions to achieve primary objectives may be due in part to setting unattainable goals. The objective of bringing down an authoritarian regime through sanctions alone may well be unrealistic. The end of the apartheid regime in South Africa is often cited as evidence that multilateral sanctions can bring down an oppressive regime. Unquestionably, sanctions were an important factor in achieving this goal in South Africa, but the determinant factor was more likely the continuous labor strikes and public protests that led to race riots and mass arrests; in short, growing civil unrest that was fast assuming the dimensions of a popular revolution.

The disappointing results of some sanctions may also be due in part to the manner in which they are initially imposed. None of the three sanctions reviewed in this paper was initially imposed at the international or the domestic level in the form ultimately adopted. In fact, there was no clear agreement among participating nations, or even among U.S. political factions, as to what objectives were to be achieved by each of these sanctions. Even in the case of Iraq, initially the most effective of the three sanctions reviewed, there was general consensus at the outset over the objective of getting the Iraqis out of Kuwait, but not over all the particular objectives sought to be achieved by a continuation of the sanctions following the end of the Gulf War. Secretary of State Albright essentially confirmed in March 1997 that the primary objective of the Clinton administration is the overthrow of Saddam Hussein, whereas most other nations, including former coalition partners, believe that this cannot be achieved through sanctions alone.

Although sanctions are generally acknowledged to be extremely blunt instruments of coercion, there were no preliminary studies conducted to determine what specific measures might be best suited to achieve intended objectives or what might be the adverse impact of the sanctions on innocent parties, both within and outside the target nations. In short, apparently little or no thought was given before initially imposing sanctions against any of these three target nations to establishing an overall framework to maximize effectiveness of the sanctions or to resolving the many problems that they were bound to create (i.e., the measures necessary to monitor and enforce universal compliance with the sanctions, to compensate innocent nations most severely affected by the sanctions, to provide for the basic needs of innocent civilians in the target nations, etc.).

Instead, sanctions were imposed helter skelter in a disjointed and fragmented manner. Initially, only token sanctions were imposed against Haiti and the former Yugoslavia, with little or no prospect of achieving any purpose other than expressing outrage over perceived misconduct. Subsequently, these sanctions were expanded through successive ad hoc measures dictated more by political responses to unfolding events than by a concern with perfecting the sanctions. Blocking private transactions and private assets and military enforcement through maritime interception operations all came at very late stages of the sanctions against Haiti and the former Yugoslavia, despite glaring evidence from the outset of the ineffectiveness of the sanctions imposed. In the case of Iraq, where the sanctions were initially more comprehensive and the maritime interception operations were established at an early stage, it is unclear whether this was intended to make the sanctions more effective or to deny Iraq the opportunity to acquire additional weapons and military supplies in anticipation of the Gulf War.

Admittedly, initial establishment of comprehensive and effective sanctions is possible only if there exists at the outset an international and domestic consensus over the objectives, and the political will to do whatever is necessary to achieve these. Realistically, it may be difficult to obtain such a consensus at the very outset of a crisis because of widely divergent national interests, and special relations of some nations with the target nations, such as those between Jordan and Iraq, the Dominican Republic and Haiti, and Russia and Serbia. As reflected in all three of the above case studies, the political will of each nation to participate in sanctions, and the degree of such participation is affected by each nation’s perception of what is in its own best national interest. Accordingly, the sanctions evolved in accord with the evolution of these perceptions.

The evolution of U.S. sanctions against Haiti is a case in point. Questions over President Aristide’s true democratic credentials, coupled with the minimal importance of Haiti to U.S. economic and security interests, initially gave the United States little incentive to participate in, much less advocate, the imposition and strict enforcement of sweeping sanctions designed to achieve reinstatement of President Aristide in Haiti. The massive flight of Haitian boat people toward U.S. shores and their forced repatriation without a hearing, despite widespread violations of human rights by the Cedras regime, was what ultimately motivated leaders in the Afro-American community (including members of the U.S. Congressional Black Caucus, who chained themselves to the White House fence, and Randall Robinson, who staged a public hunger strike) to mobilize U.S. public opinion in spring 1994 and to convince President Clinton that the time had come to remove the Cedras regime by whatever means necessary.

While the establishment of a comprehensive legal regime to regulate the imposition and administration of sanctions at the international level would not guarantee the necessary consensus and political will among nations to deal effectively with every crisis, it would promote a more disciplined and thoughtful approach. Whereas there are numerous treaties and international agreements to regulate the manner in which nations engage in warfare, international trade, and economic transactions, there is no such legal framework, other than general principles of customary international law and broad provisions of the Charter, that sets out the terms and conditions under which international sanctions may be imposed and should be enforced. This is particularly unfortunate, given the increasing frequency with which such measures are likely to be used in the future to respond to a widening range of international crises.

Admittedly, it would be naive to assume that any treaty or international agreement that might be concluded to fill this gap could resolve all outstanding issues. For the sake of reaching agreement, certain issues might have to be set aside for resolution at a later date. This was certainly the case, for example, with the U.N. Conference on the Law of the Sea, which undertook to overhaul obsolete provisions of maritime international law and sought to establish a legal framework for future international maritime endeavors. Some maritime issues remained unresolved but many more were settled, reducing the risk of bad precedents or conflicts borne from uncertainty over international rights and obligations. In short, development of international rules for the imposition and enforcement of sanctions is quite timely and is, in fact, overdue.

In June 1992 Secretary General Boutros Boutros-Ghali outlined several measures designed to improve U.N. ability to preserve global peace and security in the future, but there were no serious efforts made to implement these.² In January 1995, on the 50th Anniversary of the United Nations, he submitted a position paper entitled "Supplement to An Agenda for Peace" in which he elaborated on his earlier recommendations and specifically suggested establishing a mechanism to carry out the following five functions relating to sanctions: (1) assessment of their potential impact on the target country and third countries prior to their imposition, (2) monitoring their application, (3) measuring their effectiveness in order to enable the Council to fine tune these, (4) assuring the delivery of humanitarian assistance to vulnerable groups, and (5) assisting Member States suffering collateral damage and evaluating their claims.³

The new Secretary General, Mr. Kofi Annan has announced that he will make U.N. reform his top priority and apparently enjoys a greater degree of U.S. support than did his predecessor. Thus, under his aegis, it might be possible for the United Nations to sponsor an international conference to promulgate international rules governing the imposition of sanctions and their military enforcement.

This is not to suggest that the time has come for U.N. members to relinquish further their national sovereignty for the sake of increasing the effectiveness of U.N. sanctions, but rather to recognize that, with the increasing resort to sanctions as an alternative or a prelude to war, this growing international practice should be regulated by legal principles that can be adhered to by leading nations in both the developed and the developing world. Because instability discourages foreign investment, both developed and developing nations share a common interest in preserving a stable international climate in which they can pursue their own technological development and economic prosperity. Accordingly, both groups should be able to agree on general rules to make international sanctions more effective instruments to maintain or restore such stability.

In 1950, as part of the U.N. General Assembly’s "Uniting for Peace" Resolution, a Collective Measures Committee composed of 14 nations was established to recommend measures to increase the effectiveness of sanctions against target nations and to minimize their adverse impact on innocent parties. This Committee issued reports in 1951 and 1952 but its recommendations were never acted upon. Now may be the time for the General Assembly to establish a Committee composed of representatives from leading nations in the developed and the developing world to draft a comprehensive legal regime to regulate the uniform imposition and administration of sanctions at the international level. Such a draft could then be discussed and considered for adoption at an international conference sponsored by the United Nations. Such a Committee might address at least the following issues:

Procedures governing such matters as the military enforcement of sanctions (not only at sea, but also on land, and in the air), coordinating and monitoring uniform implementation and compliance by participating nations, compensation for their losses and expenses, punishment for violations of the sanctions, and humanitarian relief to victims in the target nations should all be established by permanent international agreement. While some flexibility should be retained to deal with unforeseen circumstances, there is now sufficient experience on which to base a permanent workable set of rules. It would be better to have to amend or suspend some procedures, as needed to deal with special circumstances, than for the Council or a regional organization to start a sanction program without any rules in place.

A State bound by such rules would feel greater pressure to fully participate in a sanction program than is presently the case. Even neighbors of the target nation which typically are most likely to be adversely affected by the sanctions and yet, whose participation is essential to effective enforcement, would be more inclined to cooperate, if they knew not only that there was a mechanism already in place to fully compensate them for legitimate losses and expenses but also that they would be punished by an impartial "Sanctions Tribunal" if they failed to do so.

On its part, the United States might encourage other U.N. members to fully participate in the enforcement of U.N. mandated sanctions or sanctions of a regional organization by enacting legislation that would terminate U.S. foreign economic assistance to any nation which refused to participate in such enforcement or to allow international observers on its territory to monitor its performance.

Admittedly, developed nations, including the United States, have opposed past proposals by the General Assembly to levy contributions to a permanent trust fund which would be administered by the Council to compensate innocent nations for losses incurred as a result of complying with U.N. sanctions. U.S. concern with the costs of funding such a trust fund may have stemmed in part from lack of confidence in the U.N. ability to strictly limit compensation awards to legitimate losses and expenses incurred by nations enforcing the sanctions. Such a concern was not altogether unjustified, given the lax manner in which the United Nations administered many aspects of the three sanctions reviewed in this paper, such as, for example, the humanitarian exception waivers for shipments of embargoed items to Serbia. It is hoped that U.N. administrative reforms promised by the new Secretary General may assuage some of these concerns and make it possible for the United Nations to establish such a trust fund.

As mentioned earlier, many nations lack the domestic legal capacity to implement and enforce sanctions imposed by the Council or the regional organization of which they are a member. Other nations, such as the United States, rely on an array of laws that were not enacted exclusively to deal with international sanctions and which are in need of revision and consolidation. This contributed to the uneven application and enforcement of the Council’s sanctions at the national levels in all three of the sanction programs reviewed in this paper.

The laws relied upon by the United States to impose and enforce sanctions in the absence of a Council Resolution or of a Presidential proclamation of national emergency consist of a large number of unrelated separate statutory provisions, administered by many different U.S. Government agencies. When imposing sanctions against Iraq, Haiti, and the former Yugoslavia, Presidents Bush and Clinton elected to invoke their emergency powers under the IEEPA to deal with "any unusual and extraordinary threat, which has its source in whole or in substantial part outside the United States, to the national security, foreign policy or economy."

These broad emergency powers do allow the President to impose comprehensive U.S. sanctions against foreign nations, but the IEEPA does not address how these sanctions are to be selected, administered, and enforced, leaving it largely up to the discretion of the President. Instances when Congress has undertaken to deal specifically with a particular sanction program have usually been after the fact, under appropriations or appropriation-authorization enactments, as when Congress codified previously imposed sanctions against the Federal Republic of Yugoslavia. In short, the ad hoc political approach of the Council at the international level also has been followed by the President and the Congress in imposing and administering U.S. sanctions.

The President’s selection of what U.S. sanctions to impose unilaterally against a target nation (i.e., suspending imports of textiles and textile products from Yugoslavia under a bilateral textile agreement) has been driven largely by politics and convenience rather than by thought over which would be most likely to achieve the primary objectives. In 1988 Professor Barry Carter, who subsequently served at the U.S. Department of Commerce as Deputy Under Secretary of Commerce for Export Administration, noted that "the existing laws can strongly influence the President’s choice of sanctions, frequently in a way that is not in the best interests of the United States." He noted that U.S. restrictions on imports of products originating in the target nation, in effect closing the lucrative U.S. market to that nation, and restrictions on private financial transactions have been imposed less frequently than restrictions on U.S. exports, although the latter recourse is often less effective in coercing a target nation than the other two.⁶

In short, a President is more likely, at least initially, to select the sanctions that are easiest to impose from a legal as well as a political standpoint, even though other trade and economic measures might be more effective to achieve the particular objectives of the sanctions. Obviously, measures that require extensive reporting and consulting with the Congress are less likely to be initially imposed than are those over which the President has unfettered discretion. Just as there is need to establish an international legal framework for sanctions, consideration should be given to the enactment of a statute exclusively dedicated to setting out all the terms and conditions under which the President may impose sanctions unilaterally, and those under which the United States may participate in multilateral sanctions. The need for allowing the President some discretion to impose unilateral sanctions should be balanced against the need for safeguards against precipitous or ill-advised measures.

All statutory provisions relating to U.S. economic sanctions that might be militarily enforced in the absence of hostilities should be revised and consolidated in a single enactment. This enactment would supersede all other earlier provisions of law, including the IEEPA, the NEA, and the War Powers Resolution. Requirements for consulting and reporting to Congress would be consolidated, eliminating the current redundancy of multiple reports and consultations with Congress involving the same activities under different statutory provisions. The new enactment should address all the issues involved in imposition, implementation, and enforcement of sanctions, including the following:

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Last Update:  October1, 2002