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International Economic Sanctions: Improving the Haphazard U.S. Legal Regime

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International Economic Sanctions: Improving the Haphazard U.S. Legal Regime Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1999 International Economic Sanctions: Improving the Haphazard U.S. Legal Regime Barry E. Carter Georgetown University Law Center This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1585 Barry E. Carter, International Economic Sanctions: Improving the Haphazard U.S. Legal Regime, 75 Cal. L. Rev. 1159 (1987) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub Part of the International Law Commons California Law Review VOL. 75 JULY 1987 No. 4 Copyright © 1987 by California Law Review, Inc. International Economic Sanctions: Improving the Haphazard U.S. Legal Regime Barry E. Carter TABLE OF CONTENTS PAGE I. INTRODUCTION ........................................... 1163 Scope of the Article ....................................... 1166 II. THE PURPOSES AND EFFECTIVENESS OF ECONOMIC SANCTIONS ................................................ 1168 A. The Purposes of Sanctions ............................. 1170 B. Effectiveness of Sanctions .............................. 1171 1. Effectiveness as a Function of Purpose .............. 1173 2. Effectiveness of Sanctions by Type .................. 1177 3. Costs to the Sender Country ....................... 1180 III. THE NONEMERGENCY LAWS .............................. 1183 A. Bilateral Government Programs........................ 1183 B. Exports from the United States ........................ 1189 1. The Export Administration Act .................... 1189 a. Agricultural Embargoes ........................ 1191 b. Foreign Policy Controls ........................ 1192 c. Contract Sanctity .............................. 1192 d. Extraterritoriality.............................. 1194 2. The Atomic Energy Act ........................... 1195 3. The Arms Export Control Act ..................... 1196 C. Imports .............................................. 1199 1. Section 232 and National Security: Does It Only Cover Foreign Oil? ................................ 1200 2. Specific Countries ................................. 1202 1159 1160 CALIFORNIA LAW REVIEW [Vol. 75:1159 3. Specific Products: A Strange Mix .................. 1203 4. Policy Issues: Emigration and Others .............. 1204 a. Opening the Doors: Emigration ................ 1204 b. Limiting the GSP and CBI ..................... 1205 5. Possible End Runs with Other Economic-Based Statutes: A Whiff of Ammonia .................... 1206 a. Where the ITC Has Jurisdiction................ 1206 b. Where the ITC Lacks Jurisdiction.............. 1208 6. Running Afoul of GAIT .......................... 1208 D. Private Financial Transactions ......................... 1212 1. Section 15 of the EAA: Stop Financing Those Exports ........................................... 1213 2. The Johnson Debt Default Act ..................... 1214 3. Federal Lending Limits ........................... 1215 4. Twisting Arms .................................... 1215 E. International Financial Institutions .................... 1218 1. Voting Systems .................................... 1220 2. Alliances and Informal Persuasion ................. 1221 F. Other Relevant U.S.Laws ............................. 1223 1. The Antiboycott Laws: The United States Strikes B ack ............................................. 1223 2. The UN.Participation Act: But for the Veto ....... 1224 G. The Comprehensive Anti-Apartheid Act of 1986 ........ 1225 IV. THE EMERGENCY LAWS .................................. 1229 A. The Evolution of IEEPA .............................. 1230 B. Current Issues SurroundingIEEPA .................... 1232 1. Are We Falling Victim to Dubious "National Emergencies"? .................................... 1234 2. Will ItEver End? ................................. 1239 3. What Can't the President Do? ..................... 1240 V. POSSIBLE POWERS OF THE PRESIDENT BEYOND THE STATUTES ................................................ 1242 VI. PLANNING FOR THE FUTURE ............................. 1248 A. Threshold Considerations .............................. 1250 B. A Major Restructuring ................................ 1252 C. Specific Recommendations ............................ 1254 1. Trimming the President's Authority over Exports ....1255 a. Expanding the Contract Sanctity Provision ...... 1255 b. Enlarging the Sunset Provision ................. 1259 c. Reining inExtraterritoriality ................... 1261 2. Giving the President Broad Authority over Imports.. 1263 3. Giving the President Authority over Private Financial Transactions: Exploring Virgin Territory ........... 1268 1987] INTERNATIONAL ECONOMIC SANCTIONS 1161 a. InternationalTrade Financing ................. 1269 b. GeneralInternational Financing ................ 1269 c. Foreign Deposits ............................... 1272 4. Making IEEPA Less than an Everyday Occurrence . 1274 D. Conclusion ........................................... 1277 FIGURES Figure 1: Illustrative Potential Target Countries ............... 1178 Figure 2: Present US. Laws .................................. 1184 Figure 3: A New Regime ..................................... 1254 1162 CALIFORNIA LAW REVIEW [Vol. 75:1159 International Economic Sanctions: Improving-the Haphazard U.S. Legal Regime Barry E. Cartert The United States has resorted increasingly to economic sanctionsas a major tool in its foreign policy. Recent targets include Panama, South Africa, Nicaragua, Libya, the Soviet Union, Poland, and Iran. These sanctions encompass controls on government programs (such as foreign aid), US. exports, imports, private financial transactions,and assistance by internationalfinancial institutions. In this Article, Professor Carter demonstrates that the present US. legal regime governing the use of sanctions for foreign policy reasons is haphazardand in need of reform. Current US. laws provide the President with nearly unfettered authority to cut off government programs and exports, but very little nonemergency authority in other areas, such as the regulation of imports and private financial transactions. This imbalance either skews presidentialdecisionmaking toward the use of easily imposed sanctions that might not be in the best interests of the United States, or encourages presidential declarations of dubious national emergencies to invoke his sweeping emergency powers. Professor Carterproposes thoroughgoing but selective reform of the present legal regime. He recommends correcting the disparity in the Presi- dent's nonemergency authority by substantially increasing the President's authority over imports and private financial transactions, while reducing the control over exports. He also proposes trimming the President'sability to employ emergency powers for imposing economic sanctions. t Associate Professor of Law, Georgetown University Law Center. A.B. 1964, Stanford University; M.P.A. 1966, Princeton University; J.D. 1969, Yale Law School. This Article had its genesis in a course entitled "International Economic Coercion and the Use of Force," which Arthur T. Downey and I created and taught together. In 1988, Cambridge University Press will publish my book with the same title as this Article. It will contain a more detailed discussion of current U.S. laws and a chapter on the laws of several major U.S. allies. I wish to thank the many people who have read all or parts of various drafts of this Article and offered thoughtful comments. Among those who have been especially helpful are Kenneth Abbott, Madeleine Albright, Kathleen Ambrose, Samuel Dash, Arthur Downey, John Jackson, David McCarthy, Paula Newberg, L. Edward Shaw, and Phillip Trimble. Thanks also go to several law students for their research, analysis, and editing skills. They include Hugh Grambau, Marian Hagler, David Laufman, Anthony Majestro, Ines Radmilovic, and Craig Zimmerman. 1987] INTERNATIONAL ECONOMIC SANCTIONS 1163 I INTRODUCTION Against a wide range of target countries, the United States is resort- ing with increasing frequency to economic pressure as a major tool in its foreign policy. Recent examples include: -a variety of trade and investment sanctions against South Africa; -financial and other sanctions against Panama; -- wide-ranging measures against Libya; -the trade embargo against Nicaragua; -continuing controls on high-technology exports; -sanctions against Poland and the Soviet Union, including the grain embargo and the ill-fated attempt to stop exports of pipeline equip- ment; and -the ban on trade and the freezing of assets during the hostage crisis in Iran. Other countries have also used economic sanctions for foreign policy purposes, although the United States employs them most often. This frequent use reflects the special utility of economic sanctions, at least on first impression. Sanctions do not involve the violence and destruction of armed force, yet they provide a nation's leader with the appearance, and often the reality, of taking decisive steps. They are also more acceptable in the international community than the use of force. Yet they are usually more concrete than diplomatic protests or other dip- lomatic moves. Considerable debate continues over the effectiveness of economic sanctions. Today's conventional wisdom questions whether they work. Despite significant failures, however, detailed studies suggest that sanc- tions have been successful in some situations.1 For example,
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