Form and Flexibility: The Normalisation of ‘Magnitsky Sanctions’ in the Face of the Rule of Law

Lorenzo Pasculli, Ben Stanford

Research output: Contribution to journalArticlepeer-review

26 Downloads (Pure)

Abstract

So-called ‘Magnitsky laws’ in various jurisdictions are turning unilateral sanctions into normalised instruments for the international promotion of the rule of law. However, the considerable regulatory and executive flexibility introduced by these laws is at strain with the fundamental requirements of the rule of law, both domestically and internationally. Despite a growing literature on sanctions, a systematic and comparative assessment of Magnitsky laws against both the national and international requirements of the rule of law is still lacking. This paper offers a first comparative analysis of the compatibility of US, Canadian, UK, and Australian unilateral sanctions laws with the formal and procedural principles of the rule of law that constitute the common core of both its national and international notions. By analysing the formal aspects of the legal basis, design and application of these laws, our study identifies and conceptualises the legislative techniques that enable the normalisation of unilateral sanctions. We find that these techniques, which we name the ‘generalisation’ of sanction laws, are not inherently incompatible with the rule of law, but so far national legislators have failed to ensure the right balance between the flexibility introduced by such techniques and the rigorous requirements of legality. The principled recommendations we propose based on our findings seek to help lawmakers around the world to strike the right balance between form and flexibility.
Original languageEnglish
Pages (from-to)109-142
Number of pages34
JournalHague Journal on the Rule of Law
Volume15
Issue number1
Early online date25 Jul 2022
DOIs
Publication statusPublished - Apr 2023

Bibliographical note

The final publication is available at Springer via http://dx.doi.org/10.1007/s40803-022-00178-6


Copyright © and Moral Rights are retained by the author(s) and/ or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This item cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder(s). The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders.

This document is the author’s post-print version, incorporating any revisions agreed during the peer-review process. Some differences between the published version and this version may remain and you are advised to consult the published version if you wish to cite from it.

Funder

The authors would like to thank Dr Steve Foster, Dr Nathanael Tilahun and Dr Gary Wilson for their helpful and constructive feedback on the initial draft. The authors would also like to thank the reviewers for their careful reading of the manuscript and their encouraging and valuable comments. Publisher Copyright: © 2022, T.M.C. Asser Press.

Keywords

  • Unilateral Sanctions
  • Autonomous Sanctions
  • Magnitsky Sanctions
  • National Rule of Law
  • International Rule of Law
  • Comparative Methodology

ASJC Scopus subject areas

  • Law

Fingerprint

Dive into the research topics of 'Form and Flexibility: The Normalisation of ‘Magnitsky Sanctions’ in the Face of the Rule of Law'. Together they form a unique fingerprint.

Cite this