Sanctions are a popular tool of economic leverage to conduct foreign policy. However, economic sanctions are controversial because they often go along with damage to society. Take, for example, Haiti, Iraq and Iran as countries that have been targeted by sanctions because governments in these countries suppress citizens or curtail human rights. These sanctions fall into the category of sanctions that seek to improve human rights in the sanctioned states.
Sanctions must be proportionate to be lawful
Critics of sanctions argue that sanctions are not effective, because they do not improve the human rights situation even if intended to do so. Rather, according to the critics, sanctions make society worse off. This argument has been frequently raised by political scientists and economists. If this argument is true, it becomes a legal problem, as sanctions must be proportionate in order to be lawful. The legal proportionality test is twofold. First, sanctions must pass a ‘necessity test’. They must be effective at achieving their goals in the sense that sanctions must generally be suitable to promote the goal of the sanction, i.e. to improve the human rights situation in a given country. In other words, measures that are not effective and do not promote the goal are not ‘necessary’ and hence unlawful. Second, even if sanctions are effective, the sanctions may only impose harm that is proportionate to their goal. This means that if sanctions, even if they improve the human rights situation in the target country, cause tremendous damage to the target country, the proportionality is in question.
Our goal is to evaluate the empirical premise underlying the judicial proportionality assessment of economic sanctions – it is an interdisciplinary exercise because the law builds on empirical observations regarding the effects and effectiveness of sanctions. To that end, we study all US sanction episodes between 1976 and 2012 comprising a dataset of 235 sanction-years and 34 targeted countries.
Many sanctions worsen the human rights situation despite opposite intention
The results of our empirical analysis inform the legal interpretation on four levels. First, because we find no evidence that human rights sanctions systematically lead to human rights improvements, economic sanctions that aim explicitly at an improvement of human rights in the target country generally do not pass the necessity test. On the contrary, we find that countries targeted with sanctions to improve their human rights protection experience a deterioration of certain human rights. Specifically, we find detrimental effects for basic rights, such as the right to life, inviolability of the person as well as for political rights, such as freedom of assembly and speech. We find that the damage to these human rights is even more pronounced compared to sanctions that do not explicitly pursue human rights objectives (i.e., sanctions that pursue, for example, the goal of ending violent conflicts or fostering democratic change).
We find that countries targeted with sanctions to improve their human rights protection experience a deterioration of certain human rights.
Second, because economic sanctions can have very different effects on different categories of human rights, a meaningful proportionality analysis should include an assessment of the impact of sanctions on different types of human rights rather than confounding them in one overall effect. This differentiated assessment is important because lawyers typically refer to human rights in their entirety and as a uniform body of collateral damage. Lawyers speak about the effects of sanctions on human rights, but they fail to distinguish between different categories of human rights. We argue that one could distinguish the effects of sanctions on four kinds of human rights: basic human rights, economic rights, women’s rights, and political rights.
Third, lawyers tend to argue that multilateral sanctions are preferred to unilateral sanctions. If the US imposes sanctions with the backing of the United Nations, this is often viewed to be more legitimate from legal perspective compared to when the US decide on their own to impose sanctions. However, from the perspective of actual damage, we show that it does not make a difference if sanctions are multilateral or unilateral. Our empirical results support the view that multilateral sanctions should not enjoy a privileged legal treatment from the perspective that they are not less harmful to human rights than unilateral sanctions.
Smart sanctions are not smart
Fourth, we explore smart sanctions. Many scholars view smart sanctions (like travel restrictions on leaders, financial or diplomatic sanctions) as the solution to the problem of negative side-effects of sanctions. If sanctions are imposed on a country’s elite rather than the entire society, undesirable harm can be avoided. Smart sanctions are then viewed to be more proportionate than other sanctions. However, counterintuitively, we find that targeted sanctions do not perform better regarding their human rights effects than non-targeted sanctions, which casts doubt on the benign proportionality judgment of the former.
Finally, our quantitative evidence shines a spotlight on the role of statistics for the study of sanctions, proportionality, and international law more generally. Law is a normative science, and empirical input is not easily integrated. We want to show that the transfer of quantitative insights is particularly valuable where it illuminates the empirical premises underlying normative judgments, like in our case with ‘proportionality’. We need to better understand the empirical effects of sanctions in order to judge whether sanctions are lawful or unlawful.
