Decolonizing Sanctions: The Emancipatory Potential of Sanctions in "Boycott, Divestment, and Sanctions" (BDS) Campaigns

Abstract

Critical legal scholars and transnational solidarity movements have increasingly decried the United States’ deployment of unilateral economic sanctions towards the Global South as devastating to humanity and effectively neoimperial warfare by other means. Indeed, rather than serving as a humane alternative to war, such sanctions have created harms worse than many battlefields.  Despite mounting criticism, proponents of using sanctions as a legitimate foreign policy tool also rightly point out sanctions’ effectiveness in helping dismantle South African apartheid. As such, sanctions remain part of the “BDS” trio of “boycott, divestment, and sanctions,” critical to transnational solidarity campaigns today. Contemporary solidarity movements thus face an apparent tension between (1) calling for a cessation of sanctions by the U.S. and European Union due to their role in precipitating humanitarian disasters around the world, and (2) upholding the legacy of the BDS campaign against apartheid South Africa in supporting contemporary anticolonial and anti-apartheid struggles. The different resolutions of this tension that critical scholars and solidarity movements have proposed fall short of offering a full analytical framework for determining when sanctions are emancipatory or oppressive, and, perhaps more importantly for the purposes of legal scholarship, lawful or unlawful. Additionally, in their attempts at resolving this question, they have overlooked how anticolonial resistance movements in the era of decolonization recast fundamental principles of international law – through what I term “anticolonial lawmaking” – in ways that address this very question. This Article locates an analysis of economic sanctions in anticolonial lawmaking’s development of a right of self-determination within its two distinct aspects: an “independence” aspect, seeking freedom from colonial domination in all its manifestations, and a “nondomination” aspect, seeking to safeguard this independence from non-colonial forms of imperial control.  While the nondomination aspect prohibits the deployment of sanctions against formerly colonized states, the independence aspect of self-determination requires the imposition of sanctions to dismantle colonial structures in all its varying forms. Viewing sanctions through anticolonial lawmaking’s independence aspect of self-determination shows how sanctions are necessary to prevent international complicity in colonial structures. Colonial structures seek to extract wealth — be it in the form of land and/or labor — by dispossessing a people of the land to which they belong. International trade and investment play a significant role in facilitating that extraction of wealth. Thus, in order to avoid being complicit in such relations, third-party states must refrain from engaging in trade and investment specific to those colonial relations. It is this requirement of unilateral economic sanctions that forms the legal basis of BDS campaigns. Further, this Article shows how anticolonial lawmaking situated struggles against settler apartheid as anticolonial struggles because of the origins and operations of settler apartheid. Viewing settler apartheid through a decolonization framework, rather than the commonly-held human rights framework, shows why unilateral economic sanctions are required against settler apartheid just as against traditional forms of colonialism, even though such sanctions against other forms of human rights violations found in the formerly colonized world would be illegal.