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Economic Sanctions Law and Public Policy

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Economic Sanctions Law and Public Policy Economic Sanctions Law and Public Policy Kern Alexander Economic Sanctions This page intentionally left blank Economic Sanctions Law and Public Policy Kern Alexander © Samuel Kern Alexander III 2009 Softcover reprint of the hardcover 1st edition 2009 978-0-230-52555-9 All rights reserved. No reproduction, copy or transmission of this publication may be made without written permission. No portion of this publication may be reproduced, copied or transmitted save with written permission or in accordance with the provisions of the Copyright, Designs and Patents Act 1988, or under the terms of any licence permitting limited copying issued by the Copyright Licensing Agency, Saffron House, 6-10 Kirby Street, London EC1N 8TS. Any person who does any unauthorized act in relation to this publication may be liable to criminal prosecution and civil claims for damages. The author has asserted his right to be identified as the author of this work in accordance with the Copyright, Designs and Patents Act 1988. First published 2009 by PALGRAVE MACMILLAN Palgrave Macmillan in the UK is an imprint of Macmillan Publishers Limited, registered in England, company number 785998, of Houndmills, Basingstoke, Hampshire RG21 6XS. Palgrave Macmillan in the US is a division of St Martin’s Press LLC, 175 Fifth Avenue, New York, NY 10010. Palgrave Macmillan is the global academic imprint of the above companies and has companies and representatives throughout the world. Palgrave® and Macmillan® are registered trademarks in the United States, the United Kingdom, Europe and other countries. ISBN 978-1-349-35775-8 ISBN 978-0-230-22728-6 (eBook) DOI 10.1057/9780230227286 This book is printed on paper suitable for recycling and made from fully managed and sustained forest sources. Logging, pulping and manufacturing processes are expected to conform to the environmental regulations of the country of origin. A catalogue record for this book is available from the British Library. A catalog record for this book is available from the Library of Congress. 10 9 8 7 6 5 4 3 2 1 18 17 16 15 14 13 12 11 10 09 Contents Preface xi Table of Legal Authority: Judicial Cases xiv Introduction 1 I Outline of chapters 3 1 The Origins and Use of Economic Sanctions 8 Introduction 8 I Nature and purpose of economic sanctions 10 II Economic sanctions – historical perspective 12 Economic sanctions during World War I 14 British blacklisting and secondary boycotts 15 US blacklisting 16 Sanctions during World War II 16 British blacklisting during World War II 17 US blacklisting 18 III International organisations and economic sanctions 20 The League of Nations 20 United Nations 23 Conclusion 28 2 International Political Economy and Economic Sanctions 30 Introduction 30 I The modern international economic system 31 II A review of the empirical evidence on economic sanctions 34 III The theory of comparative advantage and economic sanctions 36 IV International financial markets and economic sanctions 40 V US hegemony and economic sanctions 51 Conclusion 54 3 The International Legal Dimension of Economic Sanctions 55 I Introduction 55 II International law and economic sanctions 56 The sources of international law and economic sanctions 56 State responsibility and economic sanctions 58 Retorsion 58 Countermeasures 60 Punitive sanctions 62 III Evolving principles of international jurisdiction 65 v vi Contents Territorial principle 66 Territorial jurisdiction and economic sanctions 69 Subjective territorial principle 70 Objective territorial principle 71 Nationality principle 75 Active and passive nationality principle 75 Corporate nationality 76 Protective principle of jurisdiction 77 Universal principle of jurisdiction 78 Extra-territorial jurisdiction and state practice 79 Extra-territorial jurisdiction and export controls 81 US jurisdiction over foreign persons who re-export US-origin products and technology 83 Conclusion 86 4 Economic Sanctions and State Practice 88 Introduction 88 I United States economic sanctions 89 US unilateral sanctions 90 Trading With the Enemy Act 92 International Emergency Economic Powers Act 95 The Export Administration Act 97 The 1979 Export Administration Act 101 Export Administration Act Amendments 103 Iran/Libya Sanctions Act of 1996 106 Cuban Embargo 111 II United Kingdom 112 The case of Southern Rhodesia 119 British financial sanctions against Southern Rhodesia 121 III Japan 123 IV The European Union 127 History of EC sanctions practice 128 EU unilateral economic sanctions 130 The Treaty on European Union (Maastricht Treaty) 132 V The Challenge of Multilateral Sanctions – Lessons Learned 134 Conclusion 138 5 Economic Sanctions, Corporate Law and Control Liability 139 Introduction 139 I Multi-national firms and economic sanctions 139 II Control liability for corporations 142 III Enterprise liability in the corporate group 145 Modern enterprise principles 145 English law of corporate groups 147 Contents vii IV Control liability and economic sanctions 148 Nationality principle and control liability 149 The concept of control and extra-territoriality 152 Libyan Sanctions Regulations 155 Cuban embargo 156 Conclusion 158 6 Third Party Liability and Economic Sanctions 160 Introduction 160 I Facilitative, participatory and accomplice liability 161 Participatory civil liability 163 Participatory criminal liability 165 Facilitative/participative liability under statute 166 The UK Financial Services and Markets Act 2000 166 II UK financial sanctions and third party liability 167 Extra-territorial third party liability 171 Extra-territorial application and federal conspiracy statute 174 Extra-territoriality and the aiding and abetting statute 175 US economic sanctions and third party liability 179 Foreign assets control regulations – third party facilitative liability 179 Cuban assets control regulations 180 Third party liability – Helms-Burton’s visa blacklist 183 Knowledge 184 The aftermath of September 11 188 Contract breach and foreign illegality 190 Contract law defences – frustration 191 The doctrine of foreign illegality 192 Conclusion 194 7 Private Attorneys General and Economic Sanctions 196 Introduction 196 I The private enforcement of international law and US economic sanctions 197 The Torture Victim Protection Act of 1991 201 Foreign sovereign immunity 202 Anti-Terrorism and Effective Death Penalty Act 206 II The Cuban Liberty and Democratic Solidarity Act 209 Liability for trafficking in expropriated assets 213 Trafficking in confiscated Cuban property 215 Claimant eligibility 216 Certified claimants 217 Damages 219 Claims’ limitations 219 viii Contents Parties who fail to get their claims certified 220 Newly identified claimants 220 Conclusion 222 8 Blocking Statutes, Foreign Illegality and Extra-Territorial Economic Sanctions 224 Introduction 224 I National responses to extra-territorial US sanctions 225 The UK’s response to US extra-territorial sanctions 225 UK state practice 226 The Protection of Trading Interests Act 1980 227 Protection of Trading Interests Act and the Siberian pipeline dispute 233 Protection of Trading Interests Act and Cuban embargo 235 Canada’s response to US extra-territorial sanctions 236 The 1985 Foreign Extra-territorial Measures Act 236 Amendments to the Foreign Extra-territorial Measures Act 238 The Amended Blocking Order 240 Corporate compliance 241 The European Union’s response 245 European Union Regulation 2271/96 246 III Blocking laws and foreign sovereign compulsion 251 The legal limits of US extra-territorial sanctions 251 The WTO option 255 Conclusion 257 9 Mutual Assistance and Economic Sanctions 258 Introduction 258 I Economic sanctions and bilateral cooperation 259 Mutual assistance agreements 259 Mutual assistance and economic sanctions 260 II Economic sanctions: recent history of US efforts at mutual assistance 262 The Diefenbaker-Eisenhower Agreement 262 Efforts at Canadian-US mutual assistance collapse 263 The pipeline dispute 265 III EU-US mutual assistance in the 1990s 266 1997 Memorandum of Understanding 266 1998 EU/US Mutual Assistance Agreement 267 Conclusion 275 10 Extending Economic Sanctions: the Financial War on Terror 278 I The shift to targeted financial sanctions 278 II The changing nature of terrorist financing and financial crime 279 Contents ix Emerging trends in terrorist financing 280 Corporate structures and financial dealings 281 Trade mispricing 282 Informal methods of money movement – underground banking systems 282 III Financial sanctions and extra-territorial enforcement 284 IV The Patriot Act – and regulatory controls to combat terrorist financing 287 An analysis of the Patriot Act 288 Interbank payable through and correspondent accounts 290 Efforts at cooperation and coordination with foreign regulators 292 UK financial sanctions against terrorism 293 Patriot Act financial sanctions against Banco Delta Asia 295 The Macau Monetary authority’s blocking orders against Banco Delta Asia 296 Conclusion 301 11 Economic Sanctions Reform and International Institutions 302 Introduction 302 I The Security Council and the case of Iraq 303 II United Nations General Assembly measures against terrorism 305 The Convention for the Suppression of the Financing of Terrorism 307 III United Nations Security Council Terrorism Committees 308 The Al Qaida and Taleban Committee 308 Resolution 1373 and the Counter-Terrorism Committee 309 EU implementation of Security Council Terrorist Sanctions 313 IV Legal and regulatory obstacles to implementation 315 Financial Action Task Force 322 Enhancing the Security
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