This article is written by Shivani Nair, from Manipal University Jaipur. This is an exhaustive article which deals with the topic of Sanction Theory and its relevance in today’s scenario.
Table of Contents
Introduction
The legal term “sanction” had come into existence after Austin’s ‘theory of sovereignty’ where he described “sanction” as one of the important elements of the law. According to this theory, the term “sanction” had first been derived from Roman Law. Salmond had also stated that the term sanction was meant to be an instrument of coercion by which any system of imperative law had been enforced. Any physical force that is applied by the State in order to administer justice could be termed as a sanction. They are blunt diplomatic tools that have been measured into the guidelines we know of today.
The Sanction Theory
The term “sanctions” in the field of law and legal theory, are deemed to be penalties or any other means of law enforcement tool that is used to provide an incentive to the obedience of the law, or any regulation or any other set of management or rules as provided by the State. A sanction may be defined as an element that is associated with accountability that corresponds to the consequences which result from the justification of the realization of such accountability.
In the form of a noun, the term may imply that sanctions mean and impose penalties upon individuals. But in the cases where they are used conversely, they could mean, just an imposition of some authoritative text that needs to be followed, without having to pay the penalties.
It initially began from the “pragmatic sanction”. This type of sanction is the kind of sanction that was imposed in the form of a sovereign’s solemn decree on a matter whose primary importance was the force of fundamental law. In the late History of the Holy Roman Empire, it was referred to as an edict that was specifically issued by the Emperor. It was a legal method that would refer to the theoretically untenable times of the land.
Kinds of Sanctions
The sanctions have always been a subject of controversy as the scholars have always criticized the topic of threat that such sanctions impose upon the citizens of a country. The sanctions can be divided into two parts depending upon the form of the sanctions and the nature of the offence committed. However, there may also be another type of sanctions, beyond the domestic frontiers.
Criminal Sanctions
Criminal sanctions are often the different kinds of punishments that are imposed upon the wrong-doer. Punishment is an imposition of an unpleasant outcome on an individual or a group by an authoritative figure. It is used as a deterrent to an action that is deemed to be unacceptable and undesirable.
This unpleasant sanction may include the imposition of a fine, a penalty, or confinement. It may also be the denial or removal of something that is unpleasant or undesirable. These sanctions are imposed upon by the authority. Such sanctions are often noted to be imposed upon a particular individual or a group of individuals. Any consequence which remains unauthorized or which are administered without any breakage of rules and regulations, do not fall under the category of penal punishments. This study of punishment is known as penology. But in the modern-day scenario, it is called “corrections” with the jails and the like, being called “correction-centres.”
There are four different types of correction process:
- Retributive theory- the offender suffers the way he has made the victim suffer.
- Deterrence theory- a strict and stringent form of punishment must be given to the offender in order to prevent others from committing this crime.
- Rehabilitation- re-educating those people who tend to commit the offence and bring them back to society.
- Incapacitation- This is a philosophy of sentencing where the person is sent to the correction centres to reform.
Civil Sanctions
It is related to the civil wrongs and refers to the non-criminal aspects of sanctions. Examples of civil wrongs could be a breach of contracts, tort, breach of trusts, or even breach of the quasi-contracts, or matters related to ownership and possession (other than property-related crimes such as theft or vandalism). More often than not, the penalty imposed upon the wrongdoer is a financial penalty by the administrative body of the court or the government through their legislations. It does not involve severe punishments because it is mostly concerned with the compensation of the money, taken away by the wrongdoer and to give it to the State or the aggrieved party.
International Sanctions
These kinds of sanctions are the ones that involve economic or political decisions that are a part of the diplomatic affairs of different countries, in the interest of their nation, or to protect their country, region, or State, or to defend against threats to international peace and security or to protect the International Law.
International sanctions should not be confused with the unilateral sanctions that each and every country imposes for its protection against outside threats. These sanctions are imposed by the United Nations Charter.
There are several types of international sanctions. Some of them are as follows:
- Diplomatic Sanctions- These kinds of sanctions are taken to assert political displeasure or disapproval with any foreign country, against certain acts committed by it through the political means or diplomatic means so as to not affect the military or the economic means. These sanctions include the non-visitation of the high profile meetings, or remove any staff or withdraw any diplomatic mission.
- Economic Sanctions- These kinds of sanctions are the ones that vary depending upon the situation. Economic sanctions vary from imposing the taxes or duties on the goods or blocking the export of certain kinds of goods from the countries that do not have very good relations with each other or a full naval blockade of the country’s exports through the sea by blocking the ports. This can involve a complete blockage of the goods or partial blockage. The benefit of this kind of sanction is that it is used to lessen the importance of multilateral cooperation, which by and large is generally difficult to obtain. The target country, in this case, is generally much smaller in a geographical area or is economically weak or has an unstable form of politics which makes it easier to impose the sanctions. Also, the country which authorises such impositions generally saves itself really high costs of such sanctions.
- Military Sanctions- These kinds of sanctions can also be of a few kinds. They can range anywhere from targeted military strikes to less aggressive forms of strikes to degrade a nation’s conventional or non-conventional capabilities. They could also include cutting off the supply of arms.
- Sports Sanctions- These sanctions are the ones that are used as a way of psychological warfare. It is intended to crush the morale of the country so targeted. However, such sanctions related to sports are generally not that binding like the rest of the sanctions.
- Sanctions on Individuals- The United Nations states that International sanctions can be implemented and imposed upon the leaders who are political or any other individual personalities. They can also be imposed on economic individuals.
- Sanctions on Environment- The sanctions related to the issues of the environment include both political and economic means as these all are interdependent. The restrictions upon the trade and the barriers related to the trade are the key factors in such cases as they are involved with the problems that the world faces, such as the problems related to the endangered species of the world, or depletion of the ozone layer or chemically imbalanced substances that cause harm to the environment. These kinds of sanctions related to the environment are relatively new. But the recent concerns regarding the environment, and the other issues, have encouraged the government, the lawmakers, and other individuals to look over the matter and have active participation in the matters and deal with them.
These measures are most effective in dealing with international issues especially in the case of maintaining international peace and restoring good faith. It also helps in maintaining security, in the case where it is used as a part of the comprehensive strategy it helps to ensure peace-keeping, peace-building and peace-making. Contrary to the popular belief that sanctions are very disruptive or dangerous for a regime, it is pertinent to note that these sanctions are designed to support the government and the regions that are working towards the peaceful transition. Many sanctions have been applied to promote the support of peaceful transitions, deterrence of the non-constitutional changes, constrain terrorism, protection of human rights, and finally to promote non-proliferation.
Relevance of Sanctions
To ask whether a sanction works or not would mean to say that one does not simply understand its purpose. One has misunderstood the purpose of such sanctions and boycotts. In the recent history of modern sanctions, statecraft, economic, trade, international, criminal, civil, and all the other kinds of sanctions have been imposed many times.
Sanctions generally have many different or multiple goals and targets in their minds. The body that imposes such sanctions, generally knows who they are imposing it upon. During the imposition of a sanction, the general simple punishment is mostly out of question. To judge the effectiveness of a sanction, it requires various kinds of thorough processes that need to be followed. It also includes the analysis of the type of goals of the sanction that is chosen to be imposed and also, what impacts do these sanctions have on the individual or group of individuals or on the countries.
The important part while imposing a sanction is to not impose contradictory goals of sanction, as this will turn out to be weak and ineffective. In most of the cases, these are imposed for the “signalling” purposes, mainly for the benefit of certain allies or even third parties, or even for the cases of the domestic audience.
International sanctions that are intended to change certain policies of the targeted countries or areas are more difficult because a certain kind of law is needed to be structured specifically for that very purpose. Therefore in such cases, the sanctions that need to be imposed must be quick and comprehensive.
The relevance of sanctions lies in the fact that without any sanction, it is impossible to monitor the actual disturbances in civil society. If there are no sanctions, it is not possible to identify the potential threat and also the wrongdoings of an offender. Each sanction is imposed quickly in order to avoid any sort of delay and to maximize any sort of impact.
The supporters of the sanctions have always argued on the fact that such sanctions, even if they do affect the citizens of a country, they only affect the wrongdoers at large and then if imposed upon international countries, such citizens are already the vulnerable groups and marginalized or pressurized by their own governments. It is also a very good tool to measure and keep a check upon the people, as opposed to taking no action at all. Sanctions have always found ways to function in society especially while keeping under check the behaviour of its people. Sanctions have been an effective method to evade any sort of future threat to the people of a country, either externally or internally.
Conclusion
Through this article, we can note that sanctions are an imposition of any penalty or any sort of warning upon an individual, a group of individuals, or even an entirely different country. They are levelled as a penalty to illegal activity, thereby imposing strict and stringent rules of penalties. Thus, the sanctions are either passed by the lawmakers of a country or by some of the governmental rules and regulations, or by the courts that impose penalties on the same.
References
- https://archive.org/details/economicsanction0000unse/page/23
- https://www.piie.com/commentary/testimonies/evidence-costs-and-benefits-economic-sanctions
- https://complyadvantage.com/knowledgebase/what-are-sanctions/sanctions-list/
- https://www.worldcat.org/title/sanctions-decade-assessing-un-strategies-in-the-1990s/oclc/43115210
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