UN Sanctions: Where Public Law Meets Public International Law

DOIhttp://doi.org/10.1111/j.1468-2230.2011.00855.x
Published date01 May 2011
Date01 May 2011
REVIEWARTICLE
UNSanctions:WherePublicLawMeetsPublic
International Law
Nigel D.White
n
J. Farrall and K. Rubenstein (eds), Sanctions, Accountability and Governance in a
Globalised World, Cambridge: Cambridge University Press, 2009,488 pp, hb d75.00.
INTRODUCTION
The intersectionand interaction ofpublic law andpublic international law are the
central issues addressed in a series of books, Connecting International Law with Public
Law.
1
The volume under reviewexamines the issue of sanctions imposed on states
and other actors by international organisations in order to achieve security and
related goals.
2
Sanctions resolutions agreed by the UN Security Council and
other international organs can impose obligations upon governments to act
against the targeted state, entity or individual, but require implementation in
national law, thus raising multiple issues of con£icting or converging legal orders
and obligations, as well as accountability and responsibility.
In exploring the complex relationship between the international legal order
and domestic legal systems, it is necessary to re-think their nature and purpose.
It is no longer possible to be able to compartmentalise them in the classicaldualist
manner;
3
which sawpublic international law as a horizontal contractual relation-
ship betweensovereign states, separatefrom public law which was based on a ver-
tical and constitutional relationsh ip between state and ci tizen. Human rights
obligations on governments created at the international and regional levels, but
creating rights for individuals withi n states, are often pointed to as bearing th e
most responsibility for breachingthis neat divide. Late nineteenth centurydualist
thought was challenged by early twentieth ce ntury examples of international
n
Professor of PublicInternational Law, Universityof Nottingham.
1See also T. Pogge,M. Rimmer, K. Rubenstein (eds),In centives forGlobal P ublicL aw (Cambridge:
Cambridge UniversityPress, 2010).
2On sanctions under international law see generally N. D.White and A. Abass,‘Countermeasures
and Sanctions’i n M. Evans (ed), International Law (Oxford: OxfordUniversity Press, 3
rd
ed, 2010)
531; M. E. O’Connell, ‘Debating the Law of Sanctions’(2002) 13 European Journalof International
Law 63;D. Cortwright, G.A. Lopez and L. Gerber-Stellingwerf,‘The SanctionsEra: Themes and
Trends in UN Security Council Sanctions Since1990’ in V. Lowe, A. Roberts, J.Welsh and D.
Zaum (eds),The United Nations SecurityCouncil and War(Oxford: Oxford University Press, 2008)
205; J. M. Farrall, UnitedNations Sanctionsand the Rule of Law (Cambridge: CambridgeUniversity
Press, 2007);V. Gowlland-Debbas (ed), United Nations Sanctions and International Law (The Hague:
Kluwer,2001).
3H.Triepel,Volkerrecht und Landesrecht(Leipzig: C.L. Hirschfeld,1899). See further G. Gaja,‘Dualism
^ A Review’in J. Nijman and A. Nollkaemper (eds), New Perspectives on the Dividebetween National
and International Law (Oxford: Oxford UniversityPress, 2007) 52.
r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(3) 456^478
constitutionalist thinking,
4
though the champion of monist thought, Hans Kel-
sen, managed to disaggregate constitutionalism from a vision of international
laws and national laws comprising a normative hierarchy with international law
providing a limited (but potentially expanding) set of overarching norms.
5
Indeed, the post-Kelsenian focus on the impact of human rights on the divide
between public law and public international law tends to obscure the more wide-
spread penetration of international laws into sovereign states. A number of such
laws originate from the soft and hard law produced by international organisa-
tions, for example regulations of the International Telecommunications Union
enabling the expansion of satellite broadcasting, and treaties and resolutions pro-
duced by the International Labour Organisation that provide for minimum
working conditions within states.
6
Coercive measures taken by international organisations have also increased in
recentdecades. A range of non-forcible measuresas well as the ultimatesanction ^
military action ^ have been used to defendand further the values andprinciples of
the United Nations and other organisations. Economic sanctions now take a
number of forms and are not simply directed at states but at corporations and
individuals within countries. In order to avoid widespread collateral damage
caused by sanctions imposed against a state, smartor targeted sanctions are direc-
ted at individuals suspected of involvement in international terrorism and other
threats to security.
7
In both instances, the obligations are placed on states to imple-
ment those measures against target states or individuals and both types can give
rise to a con£ict between the obligations of the implementing state on the inter-
national plane and those found in the national legal order (including existing
human rights protections which may or may not be a product of international
obligations). Implementation of international legal obligations deriving from
sanctions regimes falls to national executive and legislative authorities, and may
well result in disputes being adjudicated by national judicial bodies. It is no coin-
cidence that the number of cases before domestic courts involving the application
or interpretation of international laws within national legal orders has increased
dramatically over recent years.
THE END OF WESTPHALIA?
In chapter one Peter G. Danchin describes the Westphalian paradigm of public
international law, which de¢nes the ‘sovereignty’’ of states as subjects of interna-
tional law’; while public law de¢nes the ‘liberty’ of ‘individuals as subjects of a
national community in the form of a state’ (27). In this way, public international
law is agnostic towards the content of public law, which consists of each state’s
own constitutional, administrative and criminal laws. According to Danchin,
the assault on the normative structures of the Westphalian model by the ‘rise of
4A.Verdross, DieVerfassing derVolkerrechtgemeinschaft(Vienna: Springer, 1926).
5H. Kelsen,Principlesof InternationalLaw (London: Ri nehart and Winston, 1967)551^88.
6N. D. White,Law of InternationalOrganisations (Manchester: Manchester University Press, 2
nd
ed,
2005) 158^88.
7H. Keller and A. Fischer, ‘The UN Anti-Terror Sanctions Regime under Pressure’(2009) 9
Human RightsLaw Review 257.
Nigel D.Wh ite
457
r2011The Author.The Modern Law Review r2011 The ModernLaw Review Limited.
(2011) 74(3) 456^478

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