Ukraine invasion: Why Canada should rethink its approach to economic sanctions

Western countries have imposed massive sanctions against Russia for its invasion of Ukraine. The West has increasingly relied on economic sanctions to punish or change the policies of foreign governments in the last several decades. The conventional wisdom is that economic sanctions are an effective and peaceful foreign policy tool.

Some sanctions regimes, such as the current effort against Russia, may be both effective and lawful.

But as I explored in a recent research report, some economic sanctions may violate international law principles, including those the sanctions are intended to enforce. They may therefore undermine the very legal regimes that Canadians like to champion.

The nature of economic sanctions

Many economic sanctions are authorized by the United Nations Security Council or regional organizations. But countries are increasingly imposing sanctions without such legal authority. It’s these so-called unilateral or autonomous sanctions that raise legal questions.

Economic sanctions typically involve a mix of trade restraints, constraints on financial transactions and travel restrictions. These may take the form of broad trade and financial embargoes (like against Iraq in the 1990s) or they may target certain industries or sectors (like the arms embargo against South Africa in the 1970s).

While countries are the primary target, there is an increasing deployment of so-called targeted sanctions against people and companies within the target state as a means of exerting pressure on the government (like the Magnitsky sanctions against Russian oligarchs).

The United States has also imposed secondary or extra-territorial sanctions against countries other than the primary target, and even against individuals and companies outside of the target state, to deter business with the target state (like the Helms-Burton sanctions relating to Cuba).

Human rights objections

But there is growing criticism that comprehensive sanctions may inflict serious harm and suffering on the people of the target state. The sanctions against Iraq in the 1990s are thought to have contributed to tens of thousands of deaths.

More recently, the American sanctions against Iran may have caused increased loss of life during the COVID-19 pandemic.

Whether states have human rights obligations to the people of other countries is a matter of some debate. But there is an emerging recognition that, at a minimum, comprehensive economic sanctions that significantly impact food security within the target state would constitute a violation of human rights law.

Recent developments therefore require sanctions include humanitarian safeguards and exemptions for food and medical supplies, though these are often ineffective.

International courts have also ruled that it’s a violation of human rights not to provide people subjected to targeted sanctions with reasons and a process for challenging their sanctions.

Unlawful intervention

Economic sanctions may also violate the principle of non-intervention that prohibits countries from engaging in coercive interference in the internal affairs of other states. What kind of pressure exactly comprises coercive interference is debated and somewhat unsettled in international law.

Western states have consistently maintained that economic sanctions do not comprise unlawful intervention. The well-established practice of employing sanctions would tend to corroborate that view. But the developing world has long held that economic sanctions are not only a form of unlawful intervention, but a perpetuation of imperialistic policies against countries of the Global South.

There is a growing body of soft law, such as UN resolutions, that condemn autonomous economic sanctions as a “means of political and economic coercion.” Canada has even supported some of these resolutions. But sanctions that are designed to bring about regime change, as with the U.S. measures against Venezuela, are coercive in nature.

Secondary sanctions

There are also objections to the American practice of imposing secondary sanctions against third-party states, and companies and people outside the target state.

There is a basic prohibition in international law, with a few specific exceptions, against the extra-territorial application of domestic law. Secondary sanctions will frequently violate this principle.

Canada has been caught up in such secondary sanctions, from the Helms-Burton Act sanctions against Canadian businesses in Cuba to Canada’s detainment, at the behest of the United States, of a Huawei executive for violating U.S. sanctions against Iran.

Canada and other western countries have even enacted legislation to block American secondary sanctions.

Canadian sanctions

Canada has several laws in place to implement sanctions. While the United Nations Act is specifically for implementing UN-authorized sanctions, the Special Economic Measures Act (SEMA) and the Justice for Victims of Corrupt Foreign Officials Act (the Magnitsky Law), provide for autonomous sanctions regimes.

Canada has sanctions under SEMA against 13 countries for human rights violations. It also has sanctions against Iran and North Korea for nuclear non-proliferation, and it had sanctions against both Russia and Ukraine even before the recent invasion. Canada has targeted sanctions in place against people in states that include Russia, Venezuela and Myanmar under the Magnitsky Law for human rights violations.

Canada has not engaged in secondary sanctions, and so isn’t vulnerable to criticism on this front. Some scholars have suggested that Canada should actually consider being more aggressive in this regard. But Canada has been wise not to follow the U.S. down this increasingly controversial path. Indeed, Canada itself has objected to U.S. secondary sanctions.

Some autonomous Canadian sanctions are more vulnerable to criticism on human rights and intervention grounds. Sanctions against Iran until 2016 and against Venezuela as part of U.S. sanctions regimes were quite comprehensive in their scope. These multilateral sanctions regimes may be viewed as coercive, and may undermine the food security and public health of the target populations.

Unlike the European Union, Canada doesn’t provide due process rights to individuals targeted for sanctions.

Champion of human rights?

Canada has traditionally viewed itself as a champion of human rights and the international rule of law. It also casts itself as a friend of the developing world.

It should therefore be sensitive to claims that some of its sanctions may violate international human rights law and constitute unlawful intervention in states of the Global South.

Aside from the apparent hypocrisy, there’s also a risk that Canada could undermine the international law principles that it seeks to champion and betray the broader legal and ethical values that are part of Canada’s sense of identity in the world.

Craig Martin, Professor of Law, Washburn University

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