This post is part of a symposium on economic sanctions and TWAIL, presented in partnership with the Yale Journal of International Law.
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International law generally views sanctions as coercive but ultimately peaceful instruments of international politics. Indeed, despite attempts by the Global South to outlaw economic coercion during the drafting of the UN Charter, sanctions do not fall under the prohibition of the use of force under Article 2(4) or trigger a state of war calling for the application of international humanitarian law. In addition, sanctions are considered an alternative to military force in the UN collective system of security. Partly as a result of their status as a “peaceful” alternative to war, sanctions have proliferated to the point where virtually every country in the world includes individuals or companies subject to sanctions. And, as discussed in Jessica Whyte’s insightful remarks, their legality on grounds such as human rights has become incredibly difficult to challenge.
Yet the legal concept and practice of “peaceful sanctions” is ridden with contradictions. Prior to the twentieth century, international law viewed sanctions as a violent form of warfare that was illegal outside active hostilities. Conceptually, they conflict with the dominant ideology that only the free market and economic freedom can deliver peace (whether in the form of early liberal ideas about “doux commerce,” neoliberal ideas about freedom and the market, or theories of the capitalist peace). And in practice, many sanctions have been and are cast in official discourse as instances of aggression and economic warfare or criticized for their war-like effects.
In this short post, I argue that the antinomies of peaceful sanctions are symptomatic of the material basis of the international legal order, namely a global but contradictory, crisis-prone, and conflictual capitalist imperialism structured along racial, gender, and spatial lines. I first situate this argument within the broader scholarship on sanctions. I then use three key moments in the legal evolution of sanctions to illustrate how changes, variations, and contradictions in the legal treatment of sanctions over time and across space were shaped by capitalist developments, imperial interests, inter-imperial rivalries, and anti-imperial resistance. In the final section, I draw some broader conclusions about the implications for developing a critical legal understanding of sanctions.
Recent Liberal Anomaly or Long-Term Imperial Reality?
Although there exists no systematic study of the antinomies of sanctions, one can discern at least three tendencies in the literature. One treats these contradictions as symptoms of the anomaly of sanctions. Another locates them in deeper contradictions within liberal theory, such as the question of whether illiberal measures are permissible if necessary to secure liberal values and institutions against internal and external threats. A more recent tendency attributes them to a new age of “geo-economics” characterised by the weaponization and politicization of the global economy at a time of increased inter-dependence.
These explanations each engage in different forms of “denialism.” The first involves “theoretical denialism”: it acknowledges only to ignore the contradictions of sanctions. The second engages in “material denialism”: it locates those contradictions at the level of ideas, ignoring the material underpinnings of liberal concepts and practices. The third combines “historical” and “political denialism”: it ignores the longer history of sanctions; and it also ignores the politics of the global economy, particularly the unevenness of market dependency and the inequalities and conflicts underpinning relations of production and exchange. All, moreover, share an “imperial denialism”: they ignore the relationship between sanctions, international law, and the long and violent history of capitalist development and European imperialism.
Indeed, critical legal histories of international law have not only revealed the colonial origins and continuing imperial dimensions of key international legal concepts but also have illuminated how legal changes and inconsistencies relate to the contradictions of global capitalism as a system of exploitation, domination, and inter-imperial rivalries. My earlier work applied these insights to “smart sanctions,” arguing that these did not emerge merely to alleviate the humanitarian impact of sanctions against entire states but enabled, and responded to the growing need for, a new form of global policing drawing on, and suited to, the specific conditions of a formally post-colonial and neoliberal international order based on capitalist accumulation. And there are many indications that similar insights could be applied to the broader legal history and antinomies of sanctions.
Sanctions as War: Sanctions in the Age of Primitive Accumulation
For example, the pre-twentieth-century treatment of “economic” restrictions as acts of war bore close connections to the consolidation of a natural right to trade and its role in enabling and legitimizing European colonialism and imperialism as key aspects of the primitive accumulation of capital and the consolidation of European dominance. Francisco de Vitoria’s treatment of the Indians’ refusal to “communicate” with the Spaniards as a hostile act in breach of the jus gentium offered a justification for colonial war and plunder. A century later, Hugo Grotius used Portugal’s claim to monopoly over the East Indies trade to justify the seizure of the Catarina and consolidate Dutch commercial expansion. In both cases, the imperial powers presented themselves as defenders of the universal right to trade against barbaric societies or pirates whose actions offended the whole of humanity. And partly as a result, their own economic restrictions did not register as violent acts of warfare (e.g., the Napoleonic blockade of what was then Saint Domingue).
Sanctions as Peace: Sanctions in the Age of Capitalist Globalization
The gradual transformation of sanctions into “peaceful” instruments could similarly be linked to capitalist developments and imperial politics. During the nineteenth century, naval colonial powers such as Britain and France began to impose so-called “pacific blockades” against newly independent states in Latin America and other “semi-peripheral states” (i.e., states that had acquired international legal recognition but remained subject to somewhat different rules) for a variety of purposes such as debt collection or the enforcement of private contracts.
Some Western lawyers reacted with disdain: pacific blockade was “a contradiction in terms.” But if the practice seemed “monstrous” under a pre-twentieth-century international law comprising only “civilized” nations, when it came to the West’s relationship with non-European states, objections to the idea of “peaceful” sanctions quickly gave way. The first wave of decolonization in the early nineteenth century took place in the wider context of what Vladimir Lenin called “imperialism,” characterized by, among other things, the rise of finance capital and the consolidation of an international division of labour between an advanced core and an under-developed periphery. The resulting dependency of many states on exports and foreign capital meant sanctions enabled imperial powers to secure their interests without armed intervention or direct confrontation with the U.S. Monroe Doctrine. Labelling such sanctions as “peaceful,” meanwhile, avoided the application of the laws of war, including belligerent rights and privileges.
The proliferation of “peaceful sanctions” over the course of the twentieth century by international organizations and states, particularly the United States, could also be linked to the deepening relation between sanctions, international law, and imperialism. Immediately after WW2, under the pressure of an increasingly self-organized “third world,” economic sanctions were occasionally deployed in support of anti-imperial or anti-racist projects (e.g., UN sanctions against apartheid South Africa), building on a long tradition of anti-colonial and anti-imperial boycotts in America, India, or China. But with the end of the Cold War, the consolidation of the global neoliberal order, and the dominance of the U.S. dollar, both international and unilateral sanctions became one of the main ways through which powerful Western states secured the conditions for a Western-led global system of accumulation. One needs only to look at the cartography of sanctions to see striking resemblances to the geography of the colonial era.
In the face of criticisms – commentators went as far as describing the UN sanctions against Iraq as “genocidal tools” or “weapons of mass destruction” – the West once again presented itself as the guarantor of peace and human rights against “failed” and “rogue” states and other enemies of humanity, echoing the gendered and racialized premises of the civilizing mission. And once again, double standards in the characterization of sanctions persisted as the West often condemned the violence of sanctions by non-Western powers (e.g., the Arab oil embargo in the 1970s, which was treated by the West as an illegal use of force), civil society (e.g., BDS, support for which has been criminalized across a number of Western countries), or imperial rivals (e.g., China, whose economic practices are treated as forms of “bullying”).
Sanctions between War and Peace: Sanctions in the Age of Capitalist Crises
A similar analysis could be applied to the recent erosion of the notion of sanctions as “peaceful” in our “new age of catastrophe.” Concerns are today frequently expressed in mainstream political discourse about the impact of “economic warfare.” The language of war, however, has appeared mainly in contexts where sanctions have been drawn into inter-imperial rivalries and geopolitical conflicts between “great powers” and/or have directly affected Western interests, such as the U.S.’ extra-territorial sanctions, the trade-wars between the United States and China, or the West’s economic warfare against Russia for its invasion of Ukraine. It has done little to destabilize the concept or practice of peaceful sanctions when applied to police actors in the Global South, even as these have both expanded and hardened (e.g., see refusal of the United States to lift sanctions against Cuba, Iran, or Venezuela during the pandemic).
Beyond Denialism
What are some of the implications of this brief sketch for developing a critical legal understanding of sanctions? Challenging the effectiveness, impact, or legality of sanctions under international law on the grounds that they breach the principle of non-intervention or human rights or that they constitute a form of war is not enough. Even if such arguments can do some political work in capturing the violence of sanctions, they merely extend the various forms of denialism outlined above into the legal sphere.
Developing such an understanding instead requires at least four things. First, it requires a new legal history of sanctions that moves beyond the formalistic distinctions between various deployments of “economic” force – embargos, blockades, multilateral sanctions, and unilateral sanctions – and traces instead the historical connections between the legal treatment of non-military violence under international law and the history of capitalism, European colonialism, and imperialism.
Second, it requires a new theory of the violence of sanctions that takes seriously their specificity as a material force distinct from the exercise of physical or military power. The view of sanctions as “alternatives to war,” “measures short of war,” “a middle-ground” between war and diplomacy, or as occupying a “grey area” under international law, reflects a deeper theoretical problem. Johan Galtung’s pioneering work on violence noted that sanctions occupy a “middle position” between subjective/inter-personal and objective/structural forms of violence. Taking a step towards a theory of this “middle position,” Michael Fakri in his post already stressed the importance of understanding not only the violent effects of sanctions, but how such violence “arises from a global economy of dependency and extraction.” But market dependency and extraction are not only contingent processes: they are part of the very logic of capitalism. As such, much work remains to be done to theorise the materiality of sanctions in a way that connects it to “laws of motion” of capitalism as a historically specific way of organizing productive and reproductive relations.
Third, it requires a new language and discourse to capture the violence of sanctions. The characterization of sanctions as peaceful is not purely a myth. It is rooted in deep-seated liberal/neo-classical assumptions and Eurocentric ideas that are central to the broader structures of the international legal order, including the distinction between war and peace and between the political and the economic. As a result of these foundations, the economy emerges as a realm of rational, free, equal, and thus peaceful exchange relations that are weaponized by certain actors, rather than a sphere of violence and unequal relations that distribute economic power and vulnerability unevenly and that ground the materiality of sanctions in the first place.
And finally, it requires some self-reflection. Notwithstanding the dominance of positivist and doctrinal studies of sanctions in international law and international relations, there is a long tradition of scholars, revolutionaries, and activists that have repeatedly condemned the violence of peaceful sanctions, as exemplified, most recently, by the establishment of the International People’s Tribunal on U.S. Imperialism: Sanctions, Blockades, and Economic Coercive Measures. That it would take an economic warfare between two great powers – the West and Russia – to trigger a more explicitly critical legal engagement with sanctions should at least give us thought to pause and reflect upon whether this gap is an anomaly, or whether it is symptomatic of deeper shortcomings of the critical legal project.
