INTRODUCTION

Throughout history, nations have imposed economic sanctions and embargoes as a prelude or as an alternative to war, to correct and punish other nations for acts considered contrary to established norms of international behavior. The earliest recorded sanction occurred in ancient Greece where, under the Pericles Decree, Megarian products were denied access to Athens’s markets to punish Megara for having abducted three Aspasian women. This embargo allegedly led to the Peloponesian War.¹

The end of the Cold War has introduced an era of global instability where the United States, as the only remaining superpower, may frequently elect to use sanctions as an alternative or a prelude to hostilities. Although the U.N. Security Council ("the Council") is no longer paralyzed by the Soviet veto, it remains difficult to obtain a consensus in that body to impose comprehensive mandatory economic sanctions, because of the objections of many States, including China, to any U.N. intervention in crises arising from what they consider domestic issues. If implemented, the proposed increase in the number of permanent members on the Council with veto rights may make consensus even more difficult to reach in the future.

Accordingly, it is likely that at least some of the sanctions that the United States may seek to impose in the future will not be endorsed by the Council, or even by a coalition of friendly States. At the same time, the globalization of trade and other economic relationships assures that a nation unilaterally targeted with sanctions by the United States, will have access to alternative sources for all its essential needs, unless the United States is able and willing to use military force to preclude shipments to and from the target nation. It is therefore important for U.S. policy planners to be familiar with international and U.S. laws relating to economic sanctions and their enforcement by the military, so as to minimize difficulties in achieving U.S. policy objectives, particularly when support for the sanctions is not widespread.

To illustrate the legal considerations involved in the military enforcement of economic sanctions, this study will examine the comprehensive embargoes enforced by the U.S. military against Iraq, Haiti, and the former Yugoslavia, the justification for each of these military measures under international and U.S. laws, and lessons to be learned for more effective sanctions in the future. This study assumes that its readers are familiar with limitations on the use of military force under the Charter of the United Nations ("the Charter"), under principles of customary international law such as the right of self-defense, and under applicable U.S. statutory provisions, such as the War Powers Resolution and the U.N. Participation Act. Readers wishing to refresh their recollection of all these limitations are urged to read the Annex to this paper prior to reading the following chapters.

Most sanctions are not enforced by military means; each nation enforces sanctions only on transactions and assets under its jurisdiction such as the current U.S. unilateral sanctions against Cuba. The punitive sanctions examined in this paper were all eventually backed by maritime interception forces to compel compliance by all nations and should not be confused with restrictions on trade in particular sensitive commodities and technology imposed as preventive measures, or even with punitive trade restrictions imposed against particular nations on purely commercial grounds such as in retaliation for unfair trade practices. Nor should use of the military to enforce these sanctions without the consent of the target nation be confused with peacekeeping or humanitarian operations where military forces are sent, with the consent of the target nations, under Chapter VI of the Charter to oversee the resolution of a crisis by nonviolent means. The latter are not considered military "enforcement" actions, even when the need arises to resort to force in self-defense or to accomplish the mission. ²

Sanctions have been referred to as "the last resort before violence," but in fact, sanctions militarily enforced do involve an element of coercive violence even when they are imposed as an alternative to hostilities. In enforcing all three aforementioned embargoes, U.S. naval and Coast Guard forces were engaged in boarding and inspecting vessels of all nations on the high seas (and in some instances in the territorial seas of particular nations). Vessels found to be carrying cargo in violation of the sanctions were diverted out of the area, to their last port of call or to ports in neighboring countries. These diversions were reported by the interception forces to the United Nations, which passed on the information to the States having jurisdiction over the vessels, but any adjudication of the violations was left up to the States in whose ports the vessels had been diverted, even when the Council had specifically authorized seizure and confiscation of vessels caught violating the embargo.

Depending on the laws and the political will of each State, violators might be treated very differently, and interception forces soon learned where to divert the vessels in order to assure that their violations would not go unpunished. Although all member States were expected to report their investigations and the penalties they had imposed to the U.N. Sanctions Committee, compliance with this requirement was very uneven. Moreover, there was little followup by the United Nations, because the overworked and understaffed Sanctions Committees were unable to do much more than to file the reports which they received.

Maritime zones of interception were established and their locations published internationally by the United States in "Notice to Mariners" and nationally in "MARAD Advisories," warning anyone intending to navigate in these zones that their vessels might be searched for contraband and requiring them to have their cargo accessible for inspection at sea by interception forces. For containerships, this involved stacking containers no more than three high internally or on deck; for break bulk cargo, loading pallets in configurations that allowed access for inspection; and for loose bulk cargo, opening all hatch covers to allow thorough inspection.

The actual inspections were usually carried out by Law Enforcement Detachments of the U.S. Coast Guard (LEDETS), who were specially trained and experienced in searching cargoes and examining shipping documents for contraband. Mariners were also warned that if their cargoes were deemed by the inspectors to be "inaccessible" for inspection at sea, then the vessel might be diverted out of the interception area to a third country for unloading and inspection. To facilitate verification, each master was required to keep on board an original manifest listing all cargo, its precise location on board the vessel, the names and addresses of all shippers and consignees, the port of origin and all ports of call of the vessel, and the final destinations of all cargoes.

Vessels to be boarded would be directed to stop by such nonviolent means of communication as radio, loudspeakers, flags, and blinking lights. Only those ignoring such orders might be forcefully halted using "minimum force," generally understood to mean warning shots across the bow and, if all else failed, seeking to disable the vessel without injuring her crew or sinking the vessel by targeting the rudder and propellers astern. Although warning shots were fired in the course of conducting all three maritime interception operations, there are no reports of disabling fire ever having been used. In order to bring uncooperative vessels to stop without having to resort to disabling fire, armed teams of U.S Navy Sea-Air-Land (SEAL) forces occasionally had to "take down" vessels from helicopters.

Interception forces operating close to the coast of a sanctioned nation are always at risk of sudden attack by air, naval, or shore-based weapons. Although there were incidents of confrontation and harassment by Yugoslav and Iranian naval units, maritime interception forces engaged in enforcing the three aforementioned embargoes were never subjected to armed attack.

Naval blockades interfere with freedom of navigation on the high seas and have historically been considered acts of war, although some blockades have been called "pacific blockades" when they interfered only with vessels of the blockaded and blockading States. Rules of naval warfare governing blockades were set down by the major maritime nations at the London Naval Conference of 1908 and 1909. Belligerent blockades differ from the aforementioned three maritime interception operations in that under the rules governing the blockade of enemy ports by a belligerent in time of war, neutral vessels attempting to run the blockade may be sunk and, if captured and found to be carrying contraband, may be subject to confiscation as prizes of war by the blockading nation; their crews may be detained during the remainder of hostilities. Although these rules were never formally codified in a treaty, they did reflect what was then customary international law on the subject.³

In the United States, the term "blockade" is no longer politically correct, and the terms "interdiction" and "interception" which are not defined in international law, are now definitely preferred, to avoid a connotation of war with the targeted State and all the legal and political consequences this would entail.⁴ Still "a rose under whatever name," enforcement of the sanctions against Iraq, Haiti, and the former Yugoslavia by means of maritime interception operations involved the threat of military force and the risk that it might provoke an armed attack by target nations or third nations whose vessels were affected.

There are many U.S. statutory provisions relating to commerce with foreign nations under which the President may restrict trade and financial transactions with a target nation. However, these were not enacted for the purpose of administering a comprehensive sanctions program; they are fragmented authorities, administered by many different agencies of the U.S. Government, and vary greatly in the degree of discretion they afford the President. For example, the President is provided much greater discretion to restrict U.S. exports than to restrict U.S. imports.

Section 5 of the U.N. Participation Act authorizes the President to impose economic and communication sanctions mandated by the Council.⁵ Under Chapter VII, Article 41, of the Charter, such sanctions "may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication."⁶ The President may invoke this statutory authority to impose comprehensive U.S. sanctions without a proclamation of national emergency, but not before the Council has acted under Article 41 of the Charter, and it does not authorize him to impose any U.S. sanctions that do not conform with those prescribed by the Council.

Although all U.N. member States are bound under the Charter to implement sanctions imposed by the Council under Article 41, in practice, the degree of implementation varies with the political will and particular national interests of each member. Under Article VI, clause 2, of the U.S. Constitution, U.S. treaties and federal statutes are at parity as the supreme law of the land. When a federal statutory provision cannot be reconciled with a provision under a U.S. treaty, the later of the two to enter into force generally prevails. Accordingly, a Resolution of the Council under Article 41 binding on the United States under the Charter may be overriden by a federal statute enacted subsequent to the entry in force of the Charter (assuming the statutory provision is constitutional).

For example, Congress was concerned that a comprehensive embargo on all trade with Rhodesia imposed by the Council in 1968 would cause the United States to become overly dependent on chrome imports from the Soviet Union. Accordingly, in 1971 Congress amended the Strategic and Critical Materials Stockpiling Act to authorize the importation from Rhodesia of chrome ore, ferrochrome, and nickel "notwithstanding any other provision of law." This U.S. violation of the Council Resolution persisted until 1977 when, in response to mounting domestic political pressure to end the repressive racist regime in Rhodesia, Congress relented and amended the U.N. Participation Act to authorize the President to halt these imports and fully comply with the Council’s sanctions. ⁷

As will be seen in the case of sanctions imposed against Iraq, Haiti, and the former Yugoslavia, the most convenient statutory vehicle for the President to impose sanctions against a target nation still entails proclamation of a national emergency.

Section 5(b) of the Trading with the Enemy Act (TWEA), which is applicable to any foreign country, whether or not an enemy of the United States, was used as an instrument of economic warfare against Germany and her Allies during World War I. As initially enacted, its powers could be invoked only in time of war, but the statute was amended during the Depression to authorize imposition of comprehensive economic sanctions in peacetime whenever the President declared a national emergency. This statutory authority was used after World War II to impose comprehensive sanctions against China, North Korea, Cuba, Vietnam, and Cambodia.⁸ In 1977 the TWEA was amended to apply, once again, only when Congress has declared war. To avoid any termination of the peacetime sanction programs then in effect under the TWEA, this amendment "grandfathered" all sanctions still in effect that had been established under national emergencies proclaimed prior to July 1, 1977. ⁹

The termination of the applicability of the TWEA to national emergencies arising in peacetime would have left the President without statutory authority to deal with such emergencies in the future had not Congress, under the same legislation, simultaneously filled this void by enacting the International Emergency Economic Powers Act (IEEPA). ¹⁰

Congress sought to place greater limits on the President’s peacetime discretion under the IEEPA than he had theretofore enjoyed under the TWEA. Whereas the TWEA does not define the kind of national emergencies that would justify the imposition of sanctions, the IEEPA requires the President to find "an unusual and extraordinary threat, which has its source in whole or substantial part outside the United States, to the national security, foreign policy, or economy of the United States." Under the IEEPA, the President may no longer invoke any previous old "shop worn" emergency proclamation, as did a succession of Presidents under the TWEA, citing President Truman’s Korean War Proclamation as the basis for a number of separate and unrelated sanction programs. Each new sanction program imposed under the IEEPA must now be preceded by an Executive Order issued pursuant to the National Emergencies Act (NEA) declaring the particular new emergency which these sanctions are supposed to address. ¹¹

Borrowing from the War Powers Resolution, the IEEPA requires the President to consult with Congress "in every possible instance," and to report to Congress the reasons for his actions.¹² Moreover, these national emergencies are not expected to remain in effect indefinitely. The NEA, enacted in 1976 to correct abuses under the TWEA, provides for termination of an emergency: (1) at any time by Presidential Proclamation, (2) after 1 year, unless extended by the President, and (3) at any time, by Joint Resolution of Congress. (Section 202 of the NEA initially provided for termination by Concurrent Resolution, but it was amended in 1985 to provide for termination by Joint Resolution in order to cure the same constitutional defect as in the withdrawal provision under Section 5 of the War Powers Resolution). ¹³

Since enacting the IEEPA, Congress has been concerned that comprehensive sanctions imposed by the President not impact unnecessarily on the rights of U.S. nationals to share information and ideas, and to enjoy cultural and educational exchanges with the rest of the world. In 1988, Congress amended the IEEPA to provide limited exemptions for certain personal communications, informational materials, and donations of food, clothing, and medicines, that are designed to alleviate human suffering. ¹⁴

In 1994, Congress further amended the IEEPA to add a limited exemption for transactions relating to foreign travel, while making clear that existing embargoes on travel to Libya, Iraq, Cuba, and North Korea were not affected. The legislative history of this 1994 amendment noted that, although Congress was not restricting the authority of the President to impose sanctions under the U.N. Participation Act, it had received assurances from the Executive Branch that it would "work to exclude limits on the free flow of information and restrictions on travel from multilateral embargoes." ¹⁵

Despite all the above statutory safeguards designed to limit the imposition of sanctions to those needed to deal with real peacetime emergencies, the IEEPA has been invoked extensively and Presidential compliance with its requirements has been largely perfunctory.

With this background, the steps taken by Presidents Bush and Clinton to administer and militarily enforce comprehensive economic sanctions against Iraq, Haiti, and the former Yugoslavia can be reviewed in perspective.

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Last Update: October1, 2002