• 制裁是內政也是外交|戴啟思
  • 2020-08-15    

 

The Legal Case for Targeted Sanctions

The news the other week that the U.S.A. Government had imposed sanctions on the Chief Executive, Central Government and other local officials came as a surprise, even though it had been on the cards had for some time.

The Chief Executive and some of the other sanctioned officials made light of the U.S. action, but the Government response was one of outrage. The U.S. sanctions were ‘blatant and barbaric interference in the internal affairs of the People’s Republic of China’ and ‘breaching international laws and basic norms governing international relations’ according to a Government spokesman.

Strong words! Are sanctions directed at individuals so outrageous that the international legal community condemns them out of hand?

The answer is ‘No’. Sanctions are legitimate foreign policy tools that can be deployed to bring pressure to bear on another country’s Government. States can use them inappropriately and unfairly, but that is a different matter from whether they are against international law.

It was no surprise therefore that, notwithstanding the loud rhetoric here, the Chinese Government retaliated by imposing sanctions on several U.S. senators who, in the words of a Chinese foreign ministry spokesperson, ‘have behaved egregiously on Hong Kong-related issues’. Tit-for-tat.

Sanctions are an old weapon used to serve Government interests. States deploy them to advance or protect foreign policy and national security interests. These are typically issues such as human rights, drug trafficking, arms proliferation, weapons of mass destruction and terrorism.

Using sanctions means not having to resort to more extreme measures such as severing diplomatic ties, expelling foreign nationals, repudiating international agreements or even resorting to armed force.

The objective of sanctions is to make the people holding positions of power in another country change their behaviour and not persist in conduct that the sanctioning country finds objectionable.

Of course, in the country where the sanctions apply, they will not be welcomed. There will be protests from the Government like as happened here. However, it is essential to remember that a sanction is a stick that is often applied when a diet of carrots fail to produce the desired results.

Many nations use the promise of economic benefits to advance their foreign policy and security objectives, such as soft loans, subsidised infrastructure projects and generous foreign aid, all to influence the direction of policy in the country that receives the benefits.

This kind of self-interested benevolence is just as much ‘interference with the internal affairs’ of a country if, like sanctions, the objective of aid is to influence a Government in a way that is to the advantage of the donor country.

At one time, sanctions were not applied to individuals but were applied to a country’s economy. If a country exported its oil reserves and the exports contributed to its wealth in a significant way, sanctions directed at oil trading would cause economic pain and suffering. They might then, so the thinking went, prompt a change in Government’s thinking in the sanctioned country.

The problem with untargeted country-wide sanctions, though is that they are often counter-productive. They result in job losses and hardship amongst the population as a whole, but they have little effect on the decision-makers who control the Government machinery.

These Government officials are insulated from the effects of across the board sanctions through possessing substantial personal wealth. However, the adversity suffered by the broader population because of the impact of sanctions might be translated into widespread support of the Government which policies the sanctioning country hoped to change.

Sometimes wide-ranging sanctions strike so close to the vital interests of a state that it drives the country into desperate action which is not to the advantage of the sanctioning State.

The policy of the US.A. in 1940 was to limit Japanese territorial ambitions in China. President Roosevelt applied sanctions that prevented vital oil and scrap metal sales to Japan. Feeling that it could not endure these sanctions for very long, Japan invaded the Dutch East Indies to secure oil reserves and precipitated a long and costly war with the Netherlands, Great Britain and the U.S.A.

The minimal success of these kinds of sanctions caused the English intellectual, Roger Scruton, to remark at a time when sanctions were being applied to Iraq in the 1990s that ‘Sanctions make a substantial contribution to power based on privation, and they have never hurt a single despot in the whole history of their use.’

Since the 1990s, targeted sanctions have been on the rise. By concentrating on a few officials in key decision-making areas and on the functionaries who execute the policies that the sanctioning State finds obnoxious, the idea is to make life difficult for them and not the population at large.

If individuals in Government posts find that life becomes bothersome because of targeted sanctions, then they may change their ways or step down from public life altogether.

However, targeted sanctions that do not afford a person affected by them a chance to argue that they are misplaced or even mistaken-the person affected has had no connection with Government, and it is a case of mistaken identity - are unfair.

Because sanctions are the product of high diplomacy and nations agree with each other to recognise and enforce them, individual rights were sometimes overlooked.

Until recently, United Nations sanctions imposed an obligation on other countries to implement them but afforded individuals affected next to no opportunity to argue that the sanctions had been wrongly applied or were disproportionate.

Things have changed for the better. Countries imposing personalised sanctions as part of their foreign policy objectives usually now give the person affected a chance to have the order set aside or modified.

The United Kingdom recently unveiled its first targeted sanctions scheme in the form of a set of regulations made under its Sanctions and Anti-Money Laundering Act 2018.

The ‘Global Human Rights Sanctions Regulations 2020’ limits sanctions to cases where designated individuals in other countries have been implicated in the worst kind of human rights abuses, including torture and inflicting cruel, inhuman or degrading treatment. The regulations provide or freezing orders on property, prohibiting access to financial services and immigration restrictions on persons designated under them.

If a person has been designated, he or she can ask for a review of the decision to designate by a minister. If the decision is not reviewed, the person affected has a right to go to the High Court to ask that the order should be set aside.

It is no fun to be sanctioned and become, in the legal vernacular, a ‘politically exposed person’ or ‘PEP’. However, in these days, the possibility of becoming a PEP is an unavoidable risk that goes with some Government jobs at times of high international tensions. People in such positions have to weigh up the effect of the sanctions and choose whether to resign the post or stay on. If they are doing this, the sanctions have the desired result.



About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.

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