Evidence shows unilateral sanctions a no-win crusade

By Arif Havas Ugroseno

JAKARTA (JP): Are sanctions becoming an increasingly important foreign policy tool for enforcing international norms and standards of behavior?

Yes, according to Stuart Eizenstat, U.S. Undersecretary for International Trade, who cited U.S. sanctions against South Africa, Iraq, Libya and Serbia (The Jakarta Post, Oct. 4).

But he is wrong on at least one count. Many U.S. sanctions are unilateral, but the attractive ones that he quotes are multilateral.

South Africa, for example, was sanctioned by a number of multilateral conventions, such as the International Convention on the Suppression and Punishment of the Crime of Apartheid.

But it is not likely that there will ever be an international convention backing the unilateral American Anti-Iran Act or Anti- Cuba Act.

U.S. unilateral sanctions are also in direct contravention with general international law and the Charter of the United Nations.

They run counter to the 1974 United Nations Charter of Economic Rights and Duties of States which declares that no state may use or encourage the use of economic, political or any other type of measures to coerce another state in order to take away its sovereign powers.

They completely ignore the 1993 Vienna Declaration and Program of Actions which "calls upon states to refrain from any unilateral measure not in accordance with international law and the Charter of the United Nations that creates obstacles to trade relations among States and impedes the full realization of the human rights set forth in the Universal Declaration of Human Rights and international human rights instruments".

These are the fundamentals that make America's call to the international community to support its unilateral sanctions ring hollow.

Far from following the heed of the superpower, the international community has flatly rejected it.

Responding to a recent threat of unilateral economic sanctions, Boris Yeltsin charged that the U.S. did not have the right or authority to ban Russian investments and that the U.S. move was simply incomprehensible.

The threat was set against a US$2 billion investment in natural gas by a group of three transnational companies -- Russia's Gazprom, France's Total SA and Malaysia's Petronas -- for failing to comply with the American Anti-Iran Act.

Meanwhile, French Foreign Minister Hubert Vedrine challenges that there is no responsible government that believes all economic sanctions are effective.

In a U.S.-Iran conference held by Rutgers University and the Middle East Institute in Washington DC in April 1997, the European Union representative expounded that there exists a different cultural mentality in the U.S. toward questions like how to deal with difficult nation-states.

The European Union's rejection of the U.S. call went even further as the EU brought the Anti-Cuba Act, known as the Helms- Burton Act, to the World Trade Organization in May 1996.

The EU rightly claimed that the act and other legislation enacted by the U.S. Congress regarding trade sanctions against Cuba violate several articles in the General Agreement on Tariffs and Trade, and the General Agreement on Trade in Services.

After desperately arguing that the unilateral sanctions were a matter of national security and therefore the WTO could not take action on it, the U.S. called a truce and eventually yielded to EU interests.

The fact that even the closest allies of the U.S. rejected this American policy clearly demonstrates that it is the credibility of American leadership and power that is at stake and suffers.

In the world where interdependence is increasingly critical and strategic alliances and collective actions are more indispensable than ever, pursuing unilateral sanctions would undermine goodwill needed to garner friends and allies.

Furthermore, by alienating itself from targeted countries, the U.S. gains no leverage whatsoever to stay in touch and have an influence in the happenings in those countries.

Even worse, realizing that America's closest allies challenge such policy, the targeted countries would not likely change their attitude and would only consider the policy as no more than mere bullying, thus hardening opposition against the U.S.

U.S. international economic influence is also seriously hurt by unilateral sanctions. Recent studies by the U.S. National Association of Manufacturers show that from 1993 to 1996, U.S. sanctions have created a cut in the export market worth US$790 billion.

While this number is large, the association says, it does not convey the full extent of U.S. loses. Not only did the U.S. lose ground in the export market but also in related export benefits, such as service contracts and spare parts deals, as well as confidence in the international market that America is a reliable supplier.

As the U.S. economy is heavily dependent on exports, the loss in the market means a loss of jobs, and thus unemployment. Furthermore, by isolating itself from the market, the U.S. also stands to loose the opportunity to help build a strong middle class -- an important segment of society to support democracy -- within targeted countries.

The situation is worsened by the proliferation of local and state sanctions in America. Currently there are 19 enacted local and state sanctions, seven pending sanctions at local levels and 13 pending sanctions at state levels.

These include those targeted at Indonesia which are sponsored by Massachussets and Rhode Island. Most of these sanctions typically regulate investment and procurement.

This foreign policy exercise by local and state authorities violates the U.S. Constitution which vests the power to conduct foreign affairs and regulate foreign commerce in the hands of the federal government alone.

The U.S. Supreme Court in a case referred to as "Holland vs. Missouri" declared unconstitutional the attempt of Missouri to create its own foreign policy regarding migratory birds from Canada. The court established that international treaties constituted the ultimate law of the land and that individual states could not maintain their own foreign policies.

The reason that the U.S. federal government does not take local and state authorities to the Supreme Court is obviously political. The administration needs congressional support from such states to attain fast-track legislation authority on new regional and multilateral trade negotiations.

The administration also does not want to look soft in hectoring and lecturing human rights the world over.

So what is the moral of the story?

Unilateral sanctions just do not work. Even when the cases of Panama and Haiti are quoted as shining examples, one should remember that Panama only surrendered when the U.S. sent in combat troops in violation of international law, kidnapping Manuel Noriega. Even poor Haiti managed to tough it out until yet another threat of military intervention was exerted.

Thanks to the U.S., who negotiated relentlessly for the establishment of the World Trade Organization, an international forum is now available to American-targeted countries to bring U.S. sanctions to court.

Even if U.S. sanctions may not be in violation of specific international trade provisions, they nevertheless nullify or impair expected benefits and objectives sought after from the creation of these international norms.

As a matter of fact, due to clear violations of international trade law, it would not be that expensive, nor difficult, to win a case against many U.S. sanctions.

Clearly, as we learn from the "I-will-sue-you" mentality, bringing the U.S. to the world trade court is the best possible advice for the international community to stop unwarranted sanctions exerted by this numero uno cop.

After all, police brutality is something that we all detest.

The writer is a graduate of Harvard Law School.