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International Sanctions: Improving Im- Plementation Through Better Interface Management Sascha Lohmann / Judith Vorrath (Eds.)

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International Sanctions: Improving Im- Plementation Through Better Interface Management Sascha Lohmann / Judith Vorrath (Eds.) Working Paper SWP Working Papers are online publications within the purview of the respective Research Division. Unlike SWP Research Papers and SWP Comments they are not reviewed by the Institute. RESEARCH DIVISION INTERNATIONAL SECURITY | WP NR. 01, AUGUST 2021 AND THE AMERICAS DIVISION International Sanctions: Improving Im- plementation through Better Interface Management Sascha Lohmann / Judith Vorrath (eds.) Contents I. Introduction: Interface challenges – Identifying and addressing pitfalls for implementation 3 Sascha Lohmann / Judith Vorrath 3 II. Cohesion and consistency: Interfaces in procedures and coordination of implementation 13 Reviewing the UN sanctions decade: Reforms’ effect on interfaces and remaining challenges 14 Michael Brzoska Interface challenges of UN sanctions with Forums of Export Control: Towards cohesion and consistency in non-proliferation sanctions? 23 Thomas Dörfler EU horizontal sanctions and the courts: Questions of interface 32 Clara Portela US engagement with the EU 41 Richard M. Nephew III. Transparency and compliance: Interfaces in monitoring and enforcement 47 The UN sanctions regime on Libya and sustaining peace: Not so ‘smart’ after all? 48 Moncef Kartas Challenging interfaces in monitoring and enforcing UN counter-terrorism sanctions 57 Hans-Jakob Schindler Enhancing compliance with EU’s foreign policy sanctions through better and/or new interfaces 65 Anthonius de Vries IV. Rule of Law, fairness and legitimacy: Interface challenges of due process and unintended consequences 73 Time to act: Harmonizing global initiatives and technology-based innovations addressing de-risking at the interfacing sanctions-counterterrorism-humanitarian nexus 74 Erica Moret Sanctions and the financial system: Steering away from de-risking? 83 Mark Daniel Jaeger Private sector implementation and effectiveness deliberations: The rapidly evolving global sanctions landscape 92 Justine Walker V. List of contributors 101 2 I. Introduction: Interface challenges – Identifying and addressing pitfalls for implementation Sascha Lohmann / Judith Vorrath The use of sanctions beyond borders plays an increasingly significant role in contempo- rary foreign policy and global governance. National policy-makers, most prominently in the United States (U.S.), and from regional organizations such as the European Union (EU), as well as the United Nations (UN) have wielded this instrument with increasing fre- quency since the mid-1990s. In doing so, they have been targeting a growing number of state and non-state actors with varying types of restrictions on both diplomatic and eco- nomic exchange. Diplomatic sanctions comprise travel bans and non-recognition, includ- ing the exclusion from (in-)formal international bodies, or from cultural and sport events. Economic sanctions encompass the withdrawal of finance, trade, transport and communi- cations, either comprehensively directed against entire countries or tailored to apply only with respect to sub-national units such as geographical regions and economic sectors, or persons (individuals and entities). As a matter of fact, the use of international sanctions has been highly controversial due to its contested effectiveness, legitimacy and legality. Supporters praise it as a critical policy tool more forceful than words while less invasive and costly than war. The equally vocal group of opponents allege its ineffectiveness to elicit desired change, and point to the det- rimental impact on civilian populations. Even multilateral sanctions bound to the UN Se- curity Council’s decision-making power on coercive measures according to Chapter VII of the UN Charter have faced serious criticism (see the contribution by Michael Brzoska). Their legitimacy has been suffering not only from deficiencies of due process and unin- tended consequences, but political maneuvering in the Council, especially among the per- manent members. But their multilateral character, and practically global reach, still clearly sets them apart from unilateral, or autonomous sanctions, frequently imposed by the EU or the United States In particularly, the use of unilateral U.S. sanctions has sparked a lot of controversy in recent years, mostly due to its extraterritorial reach. The EU’s newly intro- duced horizontal human rights sanctions regime may also lead to more controversy as the counter-measures by China against 10 European individuals and 4 entities in March 2021 has shown. This controversial “sanctions debate” has persisted in the face of a more targeted use of international sanctions against specific sectors or individuals and entities, coupled with humanitarian exemptions and exceptions, which has emerged as the dominant mode of application by governments and international organizations since the mid-1990s.1 Not 1 Thomas G. Weiss, Political Gain and Civilian Pain: Humanitarian Impacts of Economic Sanctions, Lanham: Rowman & Littlefield, 1997; Graf H.-C. Sponeck, »Sanctions and Humanitarian Exemptions: A Practitioner's 3 least, it remains highly disputed – both by scholars as well as practitioners – in how far in- ternational sanctions help or impede to attain pursued policy objectives.2 There are many reasons why little agreement exists about how effective international sanctions actually are, though there is an ever increasing number of empirical studies scrutinizing this issue.3 First and foremost, defining what might count as intended result, and eventually as overall success, is inherently subject to diverging interpretations of what particular purposes international sanctions were intended to serve. Generally, differ- ent senders commonly employ international sanctions in different contexts, pursuing vari- ous objectives, some of which may be openly proclaimed while others may remain rather vague.4 Most prominently, the use of international sanctions has been geared toward elic- iting desired behavioral change by targets. In particular, desired behavioral change may pertain to coercing targets into compliance, deterring further or future objectionable be- havior, including by relevant third parties, or, at least, constraining targets in an ongoing behavior.5 Yet, even in the absence of behavioral change, there can be various other pur- poses that senders may pursue, including strategic communication vis-à-vis targets and relevant third parties, retributive punishment, or upholding self-identifications (such as being a defender of human rights) in situations where non-intervention could be con- strued as complicity. A further complication for the analytical and political assessment of whether or not inter- national sanctions might “work” relates to their use alongside other policy instruments that are frequently applied simultaneously. This makes the disentangling of effects pro- duced by other interventions methodically challenging. Finally, there will always be a se- lection bias concerning the universe of publicly known cases, given that effective interna- tional sanctions may have sometimes only been threatened without ever being officially imposed.6 Yet, such a threat may actually produce an intended outcome, e.g. moving an ac- tor to join peace negotiations. In sum, the controversial debate about the success and fail- ure of international sanctions is most likely here to stay. Commentary«, in: European Journal of International Law, 13 (2002) 1, pp. 81–87; Ella Shagabutdinova, Jeffrey Berejikian, »Deploying Sanctions while Protecting Human Rights: Are Humanitarian “Smart” Sanctions Effective?«, in: Journal of Human Rights, 6 (2007) 1, pp. 59–74; Joy Gordon, Invisible War: The United States and the Iraq Sanctions, Cambridge: Harvard University Press, 2010; Erica S. Moret, »Humanitarian Impacts of Economic Sanctions on Iran and Syria«, in: European Security, 24 (2015) 1, pp. 120–140; Grégoire Mallard et al., »The Humanitarian Gap in the Global Sanctions Regime. Assessing Causes, Effects, and Solutions«, in: Global Governance: A Review of Multilateralism and International Organizations, 26 (2020) 1, pp. 121–153 (122–123). 2 Arne Tostensen/Beate Bull, »Are Smart Sanctions Feasible?«, in: World Politics, 54 (2002) 3, pp. 373–403; Daniel W. Drezner, »How Smart are Smart Sanctions?«, in: International Studies Review, 5 (2003) 1, pp. 107– 110; Joy Gordon, »Smart Sanctions Revisited«, in: Ethics and International Affairs, 25 (2011) 3, pp. 315–335. 3 Gary C. Hufbauer u.a., Economic Sanctions Reconsidered, 3. Aufl., Washington, DC: Peterson Institute for International Economics, 2007; T. C. Morgan et al., »Threat and Imposition of Economic Sanctions 1945– 2005: Updating the TIES Dataset«, in: Conflict Management and Peace Science, 31 (2014) 5, pp. 541–558; Gabriel Felbermayr et al., »The Global Sanctions Data Base«, in: European Economic Review, 129 (2020), p. 103561. Thomas J. Biersteker, Sue E. Eckert and Marcos Tourinho (eds), Targeted Sanctions: The Impacts and Effectiveness of United Nations Action, Cambridge: Cambridge University Press, 2016. 4 Margaret P. Doxey, »Sanctions through the Looking Glass: The Spectrum of Goals and Achievements«, in: International Journal, 55 (2000) 2, pp. 207–223 (220). 5 For example, UN arms embargoes may not have led to policy changes by the target, but frequently have re- duced arms imports by targeted states and groups. Michael Brzoska, George A. Lopez, Putting Teeth in the Tiger: Policy Conclusions for Effective Arms Embargoes, in: Michael Brzoska, George A. Lopez (eds.), Putting Teeth in the Tiger: Improving the Effectiveness of Arms Embargoes, Contributions
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