TheMarketForIdeas

Who hasn’t heard of international sanctions these days has probably avoided reading any global news in the past decade. The annexation of Crimea by the Russian Federation triggered an avalanche of reports, analyses, and commentaries about the sanctions imposed on Moscow — tens of thousands of articles published in the international press, academic centres, and political think-tanks. More recently, after February 2022, that number has increased more than fivefold, a clear sign that international sanctions have become not only instruments of foreign policy, but also products of media consumption.

This “media explosion” confirms, paradoxically, the timeliness and relevance of a sober reflection on the concept of the legal sanction in public international law. In a branch of law that, for centuries, has struggled to prove its very status as a legal order, the relationship between law and politics has generated endless debates — at the heart of which lies the elusive nature of international sanctions.

It may sound surprising, but from the much-quoted John Austin — who believed that international law had not progressed beyond the stage of public morality — to Hans Morgenthau, the father of political realism, who argued that “international law is a primitive kind of law, similar to that practiced by illiterate societies, like the Australian aborigines or the Yurok Indians of California”, this sceptical vision of the authority of international law has persisted through the centuries and deeply shaped much of the legal literature.

Even today, one can still find echoes of these ideas, especially in neighbouring disciplines — international relations theory, geopolitics, or political philosophy. Yet, in modern legal doctrine, the debate over the normative and ordering character of international law is considered settled: there is full consensus that it constitutes a distinct and genuine branch of law.

However, the main argument of the sceptics has remained unchanged: international law cannot be a genuine legal order as long as it lacks legal sanctions. Others admit their existence but regard them as marginal — applicable only to small states, while the great powers remain, de facto, untouchable.

That conclusion, however, stems from a confusion. The degree of compliance with a legal rule does not define its legal nature — only its social effectiveness. Following that logic, even criminal law would not be a legal order, since crimes are committed daily despite the existence of laws whose authority no one disputes.

More importantly, the claim that international law lacks sanctions is itself false. What is missing is not the sanction, but a proper understanding of how it functions in a legal space without a sovereign.

On the elusiveness of “sanction” in international law

In international law, the term sanction carries an aura of legal certainty — and yet, paradoxically, it has no definition in any fundamental legal instrument.

Doctrine, therefore, is left with the task of reconstructing its meaning piece by piece, in the absence of any authoritative text. Over time, scholars have tried to shape the concept by borrowing from the vocabulary — rich and often confusing — of international practice: restrictive measures, reprisals, countermeasures, unilateral sanctions, embargoes, economic blockades, boycotts, economic weapons, targeted sanctions, smart sanctions, and restrictions of trade, travel, diplomacy, culture, or even sports.

All these notions trace their lineage, in varying degrees, to the modern idea of the international sanction — an idea that evolved from a simple punitive reaction to an instrument for managing global order.

The result? A multitude of terms that, instead of clarifying, often blur the line between legal, political, and moral language, producing a polyphony of meanings from which it becomes increasingly difficult to extract a clear definition.

And so the question remains: which of these measures can truly be considered sanctions, in the legal sense, under contemporary international law? The answer lies neither in treaty texts nor in Security Council resolutions, but — once again — in legal doctrine, the only realm still trying to restore conceptual order where international practice has created confusion.

The legal anatomy of sanction: when law responds to its own violation

Strictly speaking, a legal sanction represents the reaction of a legal order to the violation of one of its fundamental norms. Its purpose is to correct unlawful conduct or eliminate the consequences of the breach, thereby restoring the legal equilibrium among the parties involved.

The sanction is not an exception but a structural element of every legal system — including contemporary international law. In domestic law, which operates within a hierarchy of subordination, sanctions are easy to identify: they are often built into the very norm itself and produce visible, immediate effects within society.

By contrast, public international law, being a system of coordination among sovereign entities and lacking a central authority capable of enforcing rules, hides the mechanism of sanction within a complex web of customary, conventional, and jurisprudential norms.

Even so, the sanction exists and functions. It operates quietly but consistently through the institution of international responsibility, which regulates the relationship that arises between the injured state and the state responsible for the wrongful act.

This institution — codified in the Articles on State Responsibility of the International Law Commission and consolidated by international jurisprudence — expresses a simple but essential idea: the international legal order defends itself.

Thus, the sphere of legal sanctions includes countermeasures and reprisals (in the broad sense, encompassing economic sanctions), acts of retorsion, the nullity of treaties concluded in violation of peremptory norms (jus cogens), the non-recognition of situations created in breach of international law, and international criminal penalties applied to individuals for war crimes, genocide, or crimes against humanity.

Between law and power: when sanction becomes strategy

In a world without a central authority, international law remains a system of norms without a sovereign, and its sanction — a mechanism of equilibrium rather than domination.

However, as state practice has diversified, the line between legal sanction and political coercion has become increasingly blurred.

In the strict legal sense, a sanction presupposes a breach of a norm, a competent body that establishes it, and a proportional response — in other words, a reaction of the legal order itself, not of a solitary actor. What is now commonly called a “sanction” is, in reality, a unilateral political decision, wrapped in legal language but lacking a clear normative foundation.

Such measures — economic, diplomatic, or cultural — are expressions of power, not of law. When legal language is used to disguise political will, law becomes the instrument through which power legitimizes its discretionary choices.

The monetary backbone of sanctions: when law rides on the dollar

Beyond the legal appearances and moral rhetoric, the real strength of international economic sanctions stems from a financial reality: the global dominance of the US dollar.

The champion of this form of coercion is the United States of America, for which the economic sanction has become, over the past decades, an instrument of foreign policy as influential as diplomacy or military power. Washington’s capacity to “punish” economically those states that violate international norms does not derive from universal legal authority, but from its monopoly over the world’s financial infrastructure.

The dollar remains the pivot of global trade, the unit of account for energy prices, and the key to interbank payment systems. To be excluded from these circuits is to suffer a slow economic death; to depend on them is to live under the constant threat of sanction.

In a deeper sense, Western economic sanctions are not merely expressions of a legal order but symptoms of a monetary one — a world where law travels along the arteries of financial flows and serves the hegemon that issues the global currency.

On the legality of international sanctions: between retorsion, countermeasures, and illicit coercion

Unilateral sanctions not supported or authorized by the UN Security Council, and which fail to comply with the conditions set out in the Draft Articles on the Responsibility of States and International Organizations, are incompatible with the norms of public international law. They constitute internationally wrongful acts for which the sanctioning states may themselves incur responsibility.

By contrast, retorsion — a merely unfriendly but legal act — remains permissible, as long as it stays within the bounds of international legality. Countermeasures, too, are lawful so long as they meet the conditions of general international law, as reflected in Articles 49–53 of the ILC’s Draft Articles on State Responsibility.

According to Professor Derek Bowett, an international sanction is illegal when it violates treaty obligations, the general principles of international law, or the principle of non-intervention in the domestic affairs of states. To this list one must add the peremptory norms of international law (jus cogens), since their violation renders any coercive measure null ab initio.

A significant portion of unilateral measures adopted in practice are economic in nature, which has sparked intense debate. Some authors consider them perfectly legal insofar as they do not involve the use of military force; others argue that they breach Article 2(4) of the UN Charter, since the prohibition of force should be interpreted broadly, encompassing economic force as well.

This interpretation is reinforced by the Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States (UN, 1965):

“No State may use or encourage the use of economic, political or any other measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights or to secure from it advantages of any kind.”

Identical provisions appear in the Charter of Economic Rights and Duties of States (1974) and in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States (1970), confirming a shared normative consensus: unilateral coercive economic measures are incompatible with the principles of sovereignty and sovereign equality.

Conclusion: when order becomes its own exception

In international law, the paradox lies not only in the fragility of sanctions but also in the malleability of interpretation.

When a group of states, driven by temporary interests, bends the meaning of norms to fit their momentary objectives, it creates a precedent that will eventually be used against them.

“Strategic” interpretations of law become, through repetition, accepted practices — and what began as a neatly phrased legal aberration may, in time, harden into custom.

This is perhaps the most painful irony of the contemporary international order: that law, designed to discipline disorder, becomes itself an instrument of political expediency.

In this light, states like the Russian Federation do not invent legal pretexts — they recycle them. They exploit every crack of legitimacy opened by double standards, borrowing the legal language of others to justify their own excesses.

And the final irony is cruel: every exception justified in the name of the “common interest” eventually returns as a weapon of legitimacy for the adversary.

Perhaps this is the lesson international law still refuses to learn: the global legal order does not collapse from a lack of norms or sanctions, but from the abundance of convenient interpretations by those who claim to defend it.

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