Unilateral Sanctions: Kind and Degree; Long-arm and Strong-arm Jurisdiction; Real Intent and “Could-be” Intent

Abstract

This paper sketches out a normal analysis of unilateral sanctions. This consists of three steps: first, whether the sanctions measures are authorised or prohibited or not as unilateral sanctions, or as a course of conduct under a different name; second, whether they may be legitimately couched as another kind of lawful action, almost or apparently as a kind of “defence”; and third, whether unilateral sanctions in any category are prohibited or not collaterally by some special legal regimes. In each step, there is a question of kind as well as a question of degree. The jurisdictional regime may be of importance in the analysis. Sometimes the assertion of the so-called long-arm jurisdiction to justify a measure is so weak and so oppressive at once that it is better called “strong-arm jurisdiction”. In any event, a possible jurisdictional justification does not for this reason alone make a sanctions measure lawful. In each step of the analysis, the real intent behind the measure at issue settles the question of “kind” and should be carefully identified. The particular real intent, which is unique, qualifies that act as a unique international act. This would debunk the argument that the intent involved in a sanctions measure also “could be” the one required for treating it as a lawful measure. If, for the sake of argument, two different kinds of intent are present in a measure so that the measure can be qualified as, for example, a countermeasure by the imposing State and, at the same time, as unlawful intervention in the sovereign affairs of the target State, there may exist a conflict of norms to be resolved. Ultimately, of great importance is the level of scrutiny or standard of review that a decision-maker would apply to the assessment of intent.