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The beliefs and practice of enforcing collective obligations through unilateral sanctions

Alexandra Hofer (UGent)
(2019)
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Abstract
This doctoral thesis addresses the legality and efficacy of unilateral sanctions adopted by States and the European Union, the international organization that is the most active unilateral sanctions sender, as a means to enforce obligations erga omnes (partes).The initial purpose of this study was to research the development of custom pertaining to international law’s enforcement, notably whether the members of the international community have accepted third-party countermeasures as legally permissible. However, it became apparent that the subjective element, one of the constitutive elements of custom, is lacking and that these measures are heavily contested amongst members of the international community. The thesis therefore turned into a critique of the existing legal framework and of its underlying beliefs. This dissertation first studies the relevance of the legal framework elaborated by the International Law Commission (ILC) in its Articles on the Responsibility of States for Internationally Wrongful Acts (Part I). It then assesses the disagreement amongst States on the legality of unilateral coercive measures (Part II). Finally, it analyses their effect on targeted States that are responsible for violating community obligations (Part III). Overall, it explores international law’s beliefs on unilateral sanctions, including the expectations on how these measures work in international relations, which shrouds how the discipline has gone about regulating these measures. In spite of the ILC’s legal framework and abundant (western) State practice, it appears that unilateral sanctions remain unregulated. This is because the ILC’s framework functions as a fundamental doctrine of international law. Rather than acknowledge the punitive nature of sanctions and how they affect the targeted State, legal doctrine has tried to regulate the measures by focusing on their coercive purposes and omitting their other functions. This ultimately leads to a distorted image of unilateral sanctions, where their genuine impact and purpose are not taken into account. The thesis then turns to the divide amongst States and regional organizations over the legality of unilateral coercive measures. Far from being generally accepted, they are frequently contested by developing and emerging economies that appear to favour multilateral enforcement measures over unilateral sanctions. Though there is disagreement between the members of the international community regarding the norms that lie at the basis of the world order, a study of this divide reveals that the larger dispute relates to how these norms should be enforced, i.e. through unilateral sanctions or multilateral practices. Finally, through a study of the unilateral sanctions adopted against Russia for its wrongful behaviour in Ukraine, the thesis demonstrates sanctions’ counterproductive effect. Instead of encouraging Russia to cease its wrongful behaviour, they give the State’s leaders incentive to commit to it. This is demonstrated by focusing on how unilateral sanctions influence the role Russian decision-makers attribute to their state – that is the ‘great power’ identity they seek to affirm and the interests they pursue in their foreign policy – and on the negative emotions that they trigger. It would appear that State behaviour is less guided by material interests than by interactions with other actors of the international community and the role it adopts in these interactions. The implication is that if violations of international law occur through interaction, then so would its compliance. Against this backdrop, it is concluded that discussions on international law’s ‘enforcement gap’ should be based on how international actors interact and how they influence each other in their international relations. Given the negative impact of coercive enforcement, there is good reason to believe that non-coercive forms of interaction would be more successful.
Keywords
unilateral sanctions, third party countermeasures, enforcement of international law

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MLA
Hofer, Alexandra. The Beliefs and Practice of Enforcing Collective Obligations through Unilateral Sanctions. Ghent University. Faculty of Law and Criminology, 2019.
APA
Hofer, A. (2019). The beliefs and practice of enforcing collective obligations through unilateral sanctions. Ghent University. Faculty of Law and Criminology, Ghent, Belgium.
Chicago author-date
Hofer, Alexandra. 2019. “The Beliefs and Practice of Enforcing Collective Obligations through Unilateral Sanctions.” Ghent, Belgium: Ghent University. Faculty of Law and Criminology.
Chicago author-date (all authors)
Hofer, Alexandra. 2019. “The Beliefs and Practice of Enforcing Collective Obligations through Unilateral Sanctions.” Ghent, Belgium: Ghent University. Faculty of Law and Criminology.
Vancouver
1.
Hofer A. The beliefs and practice of enforcing collective obligations through unilateral sanctions. [Ghent, Belgium]: Ghent University. Faculty of Law and Criminology; 2019.
IEEE
[1]
A. Hofer, “The beliefs and practice of enforcing collective obligations through unilateral sanctions,” Ghent University. Faculty of Law and Criminology, Ghent, Belgium, 2019.
@phdthesis{8635353,
  abstract     = {This doctoral thesis addresses the legality and efficacy of unilateral sanctions adopted by States  and the European Union, the international organization that is the most active unilateral sanctions sender, as a means to enforce obligations erga omnes (partes).The initial purpose of this study was to research the development of custom pertaining to international law’s enforcement, notably whether the members of the international community have accepted third-party countermeasures as legally permissible. However, it became apparent that the subjective element, one of the constitutive elements of custom, is lacking and that these measures are heavily contested amongst members of the international community. The thesis therefore turned into a critique of the existing legal framework and of its underlying beliefs.
This dissertation first studies the relevance of the legal framework elaborated by the International Law Commission (ILC) in its Articles on the Responsibility of States for Internationally Wrongful Acts (Part I). It then assesses the disagreement amongst States on the legality of unilateral coercive measures (Part II). Finally, it analyses their effect on targeted States that are responsible for violating community obligations (Part III). Overall, it explores international law’s beliefs on unilateral sanctions, including the expectations on how these measures work in international relations, which shrouds how the discipline has gone about regulating these measures. 
In spite of the ILC’s legal framework and abundant (western) State practice, it appears that unilateral sanctions remain unregulated. This is because the ILC’s framework functions as a fundamental doctrine of international law. Rather than acknowledge the punitive nature of sanctions and how they affect the targeted State, legal doctrine has tried to regulate the measures by focusing on their coercive purposes and omitting their other functions. This ultimately leads to a distorted image of unilateral sanctions, where their genuine impact and purpose are not taken into account.
The thesis then turns to the divide amongst States and regional organizations over the legality of unilateral coercive measures. Far from being generally accepted, they are frequently contested by developing and emerging economies that appear to favour multilateral enforcement measures over unilateral sanctions. Though there is disagreement between the members of the international community regarding the norms that lie at the basis of the world order, a study of this divide reveals that the larger dispute relates to how these norms should be enforced, i.e. through unilateral sanctions or multilateral practices.
Finally, through a study of the unilateral sanctions adopted against Russia for its wrongful behaviour in Ukraine, the thesis demonstrates sanctions’ counterproductive effect. Instead of encouraging Russia to cease its wrongful behaviour, they give the State’s leaders incentive to commit to it. This is demonstrated by focusing on how unilateral sanctions influence the role Russian decision-makers attribute to their state – that is the ‘great power’ identity they seek to affirm and the interests they pursue in their foreign policy – and on the negative emotions that they trigger. It would appear that State behaviour is less guided by material interests than by interactions with other actors of the international community and the role it adopts in these interactions. The implication is that if violations of international law occur through interaction, then so would its compliance. Against this backdrop, it is concluded that discussions on international law’s ‘enforcement gap’ should be based on how international actors interact and how they influence each other in their international relations. Given the negative impact of coercive enforcement, there is good reason to believe that non-coercive forms of interaction would be more successful.},
  author       = {Hofer, Alexandra},
  keywords     = {unilateral sanctions,third party countermeasures,enforcement of international law},
  language     = {eng},
  pages        = {301},
  publisher    = {Ghent University. Faculty of Law and Criminology},
  school       = {Ghent University},
  title        = {The beliefs and practice of enforcing collective obligations through unilateral sanctions},
  year         = {2019},
}