This post kicks of a symposium on economic sanctions and TWAIL, presented in partnership with the Yale Journal of International Law.
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Often touted as a peaceful alternative to war, economic sanctions have always been at least as controversial as the use of kinetic force in international law and international relations. From the inter-war period to the New International Economic Order, and from the humanitarian disasters inflicted upon the people of Cuba and Iraq to the efforts of the United States to restrict its allies from trading with targeted states, sanctions periodically re-emerge as nodal points where diverging interests and worldviews collide. Within international law, disagreements about sanctions often rely upon yet obscure competing conceptions of sovereign equality, force, the boundary between war and peace, and even the very nature of the international legal order. Accordingly, this Symposium takes its cue from contemporary events, but involves a broader theoretical and political ambition: as economic coercion becomes increasingly used as a tool of enforcement and geopolitical rivalry, we want to understand to what extent the very building blocks of international law enable this weaponization (and, thereby, deepening) of economic asymmetry, and to explore the possibility of using our discipline to resist this “economic weapon.”
Our engagement with sanctions in this Symposium will be situated at the intersection between law and political economy (LPE) and Third World Approaches to International Law (TWAIL). Doing so allows us to bring to bear the insights of these two approaches to the subject, while also exploring the productive synergies between them. Although currently distinct in their institutional lives and focus of study, LPE and TWAIL share the ambition to understand, and to ultimately help dismantle, the role of law in the construction, mystification, and legitimization of domination, inequality, and exploitation.
Of course, existing convergences need not be overstated. On the one hand, LPE has focused its critical energies primarily on neoliberalism with a focus on the specificities of the United States and an emphasis on domestic (U.S.) law. LPE to date has been so state- and, in particular, US-centric that it might be read as downplaying by omission the transnational character of neoliberal capitalism and the asymmetries of global political economy, as well as the role of international law in shaping these systems. On the other, TWAIL has coalesced around critiques of imperialism, which is often, but not always or coherently, understood as a political economic phenomenon. While Marxist TWAILers, such as BS Chimni, have insisted on the importance of economic imperialism as the matrix of political domination and Western cultural chauvinism, the intellectual debt of early TWAIL to post-colonial studies has led to an inconsistent engagement with political economy, which is at times subsumed by the cultural turn. This Symposium’s invitation to explore the intersection of TWAIL and LPE expresses our conviction that the above-described blind spots are not necessary but contingent and that the two movements can cross-pollinate and grow together. Examining, then, the role of law in economic sanctions opens up a space for understanding how capitalism, empire, and race work together to inflict economic hardship and expand inequality.
We were fortunate to have been joined in-person for a workshop on these pieces — and now in writing for the Symposium itself — by a number of scholars who currently hold mandates as international experts tasked with studying norms ostensibly designed to constrain state actions that exacerbate socio-economic deprivations and structural racism. We had the benefit of discussant remarks from Tendayi Achiume, former United Nations (UN) Special Rapporteur on contemporary forms of racism, whose edited reflections are included in the Symposium, and Balakrishnan Rajagopal, UN Special Rapporteur on the right to housing, whose comments informed revisions to several of the pieces featured here. Taken together, their framing remarks underscored the ways that sanctions both depend upon and entrench overlapping material and racial inequalities in the global order.
The contributions of Joy Gordon and Jessica Whyte draw out the inhumanity of modern sanctions and the inability of international law as it currently stands to operate as an effective counterweight against the human suffering inflicted by sanctions. They also show that economic sanctions are a good example of how the much-debated “return of the state,” especially in the Global North, need not lead to fairer outcomes for the South, especially its more vulnerable populations. Nevertheless, the interplay between the state and private economic actors raises important questions for our understanding of the “public” in public international law. In her intervention, Alena Douhan, who is currently serving as UN Special Rapporteur on the negative impact of the unilateral coercive measures on human rights, explores how over-compliance by private actors renders humanitarian exceptions to sanctions ineffective.
The degree to which the relationship between sanctions and violence has been obscured is a telling example of disciplinary bias in international law. In both doctrine and much of mainstream scholarship, physical force is singled-out as particularly destructive and worthy of international regulation, as opposed to economic coercion, which is often considered a legitimate policy tool regardless of its effects. The interventions by Vasuki Nesiah, as well as by Nathanael Tilahoun and Obiora Okafor, currently United Nations Independent Expert on human rights and international solidarity, highlight the inconsistencies inherent in this approach and offer snapshots of alternative approaches to the field that would take economic coercion seriously. Aslı Bâli revisits an earlier moment when such alternatives seemed closer to hand: delegates from newly decolonized countries once sought to use treaty negotiations as an opportunity to regulate and even prohibit economic coercion. While these efforts of the newly decolonized states were foiled by opposition of former colonial powers, Bâli suggests the strategy may receive new life given the current conjuncture of inter-imperial rivalry. Michael Fakhri, who is serving as UN Special Rapporteur on the right to food, uses his intervention to underscore the magnitude of the coercion at issue in contemporary sanctions regimes, proposing that we use them as an entry point for assessing the violence that permeates our food systems and the laws that regulate them.
Studying the law of sanctions also reveals how the United States (and to a lesser extent the European Union) is capable of exploiting the expansion and globalization of its financial system during (and thanks to) neoliberalism in order to pursue its geopolitical goals. Such analysis can help us identify important shifts in how material and legal asymmetries evolve on a global level. The most instructive example here is the turn from traditional trade embargoes, such as in the cases of Cuba or Iraq, to finance as the locus of economic coercion. Starting with Iran in 2011, the United States has internalized the critique that trade sanctions are generally ineffective and has instead used the centrality of its financial system to block and penalize transactions with its geopolitical rivals. It is partly this malleability that leads Eva Nanopoulos to argue in her intervention against a critique of sanctions that hinges on (in)effectiveness and to instead prioritize an analysis of sanctions as (structural) violence.
The pivot toward financial sanctions in particular raises urgent questions for TWAIL and LPE alike about the (under-explored) role of money and finance in the construction of modern imperialism and its legal dimensions. It is, then, no coincidence that, as Maryam Jamshidi and Ntina Tzouvala argue in their contributions, the handling and potential confiscation of sanctioned assets have emerged as central topics in contemporary legal and political debate, as attempts to expand the reach and depth of sanctions encounter the legal, political, and economic limits of their world-making ambition. Indeed, while this Symposium intends to highlight the potency of sanctions, it also aims to highlight their limitations as a means of coercion as the global economic and political order transitions toward multilateralism. In this respect, our legal analysis and advocacy should neither underestimate sanctions nor lose sight of the degree to which legalized imperialism remains contested and contestable.
