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Norm Internalization and U.S. Economic Sanctions Articles Norm Internalization and U.S. Economic Sanctions Sarah H. Clevelandt I. INTRODUCTION ................................................................................................................................ 2 II. TRANSNATIONAL COMPLEMENTARITY: THE CASE OF BURMA .................................................... 7 A. The US. Response...................................................................................................... 9 B. InternationalResponses ................................................................................................. 12 C. RegionalResponses ....................................................................................................... 14 D. IndividualState Responses ........................................................................................... 15 E. Local Non-governmentalResponses ............................................................................ 18 F. Impact of Sanctions........................................................................................................ 19 III. DEFINING INTERNATIONAL HUMAN RIGHTS .............................................................................. 20 A. The Treaty Regime ....................................................................................................... 21 B. CustomaryInternational Law Norms: Jus Cogens and Erga Omnes .......................... 24 C. U.S. Participation......................................................................................................... 29 IV. UNILATERAL U.S. SANCTIONS PRACTICE ................................................................................ 31 A. FederalStatutes Imposing Sanctionsfor Human Rights Violations............................. 32 1. Statutory Definitions............................................................................................. 33 2. Statutory Design............................................................................................... 36 B. US. PracticeUnder the Human Rights Measures ....................................................... 37 1. ForeignDevelopment andSecurity Assistance................................................. 38 2. ForeignInvestment .......................................................................................... 40 3. TradeRestrictions ............................................................................................ 41 a. NationalEmergencies-the IEEPA, TWEA and EAA .......................... 41 b. Import Preferences............................................................................... 43 (i) Most FavoredNation Status ..................................................... 43 (ii) GeneralizedSystem of Preferences.......................................... 44 (iii) Import Restrictions................................................................... 46 C. National andSub-National GovernmentProcurement ........................ 47 V. COMPLIANCE WITH THE INTERNATIONAL SYSTEM ..................................................................... 48 A. The Validity of Nonforcible UnilateralAction Under InternationalLaw ................... 49 1. UnilateralIntervention and the U.N. Charter................................................. 50 2. The Customary InternationalLaw ofNonintervention ................................... 52 a. The Nonintervention Norm .................................................................. 53 t Assistant Professor, University of Texas School of Law; A.B. 1987, Brown University; M.St. 1989, Oxford University; J.D. 1992, Yale Law School. I am grateful for the advice and support of Francesco Francioni, Patricia Hansen, Douglas Laycock, Steven Ratner, Edward Tuddenham, and Jay Westbrook, for the unflagging library assistance of Jonathan Pratter, and for the research assistance of Bradley Smith and Deena Kalai. 2 THE YALE JOURNAL OF INTERNATIONAL LAW [Vol. 26: 1 b. Nonforcible Countermeasures.............................................................. 55 B. Secondary Boycotts and ExtraterritorialJurisdiction ................................................. 56 1. Helms-Burton Act ............................................................................................ 58 2. Selective PurchasingLaws .............................................................................. 61 3. PrescriptiveJurisdiction ................................................................................... 62 4. Unlawful Countermeasures.............................................................................. 63 C. Compliance with the International Trade System ....................................................... 65 D. Compatibility with the InternationalHuman Rights Regime ........................................ 69 1. U.S. Adherence to InternationalInstruments .................................................. 70 2. Statutory Definitions and InternationalStandards .......................................... 71 3. Cooperationwith InternationalInstitutions ..................................................... 73 4. Selective Enforcement ..................................................................................... 74 a. Selectivity and the Separationof Powers............................................ 75 (i) Congress .................................................................................. 76 (ii) The Executive ............................................................................ 77 (a) DraftingAmbiguity ..................................................... 77 (b) Executive Certifications.............................................. 78 (c) Waiver Provisions....................................................... 80 (d) Executive Fact-Finding............................................... 80 (iii) The Courts................................................................................. 82 E. Toward a Normatively Legitimate Sanctions Policy .................................................. 85 VI. INTERNALIZATION OF GLOBAL NORMS ....................................................................................... 86 A. DomesticNorm Internalization................................................................................... 87 B. TransnationalNorm Internalization............................................................................ 89 VII. CONCLUSION ..................................................................................................................................90 APPENDIX: U.S. HUMAN RIGHTS SANCTIONS LAWS ............................................................................ 92 I. INTRODUCTION The fifty years since the adoption of the Universal Declaration of Human Rights have seen a revolution in the promulgation and universalization of human and labor rights. Human rights conventions have proliferated in the areas of civil and political rights, social and economic rights, and the rights of women, children, minorities, and refugees. Many of these conventions have been ratified by a majority of the nations of the world. International monitoring of human and labor rights compliance is conducted by international institutions such as the U.N. Human Rights Commission and the International Labour Organization (ILO), by regional entities such as the Inter-American Commission on Human Rights, by non-governmental organizations (NGOs) such as Human Rights Watch and Amnesty International, and by national governments. Since the end of the Cold War, significant steps toward international judicial enforcement have been made through the development of regional courts such as the European and Inter- American Courts of Human Rights, through the creation of the International Criminal Tribunals for the Former Yugoslavia (ICTY) and Rwanda (ICTR), and through the 1998 agreement to establish a Permanent International Criminal Court. Peacekeeping efforts such as that of the United Nations in East Timor and the military intervention of the North Atlantic Treaty 2001] Norm Internalizationand Economic Sanctions Organization (NATO) in Kosovo also have been motivated substantially by human rights concerns. The ICTY's indictment last year of Slobodan Milosevic, a sitting head of state, was a striking pronouncement of the extent to which international human rights enforcement mechanisms have developed. Despite significant progress in the identification, definition, and promulgation of human and labor rights norms, however, international mechanisms for their enforcement remain underdeveloped. International monitoring bodies lack enforcement authority and rely substantially on the "mobilization of shame" to encourage governments to comply with international norms. The International Court of Justice (ICJ) remains limited in its effectiveness, and the restricted jurisdiction of the Rwanda and Yugoslavia war crimes tribunals, and the United States' refusal to join the International Criminal Court, indicate that effective international judicial enforcement for even the most fundamental human rights violations such as genocide, torture, and crimes against humanity may be years away. There is, to date, no international institution capable of holding individuals such as the late Pol Pot, General Pinochet, and "Baby Doc" Duvalier accountable for even the most basic human rights violations. Nor do any international enforcement mechanisms exist to reach nations and private corporations that utilize forced labor, murder labor organizers, or engage in other fundamental violations of international
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