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.
Bibliographical noteThe final publication is available at Springer via http://dx.doi.org/10.1007/s40803-022-00178-6
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FunderThe 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.
- Unilateral Sanctions
- Autonomous Sanctions
- Magnitsky Sanctions
- National Rule of Law
- International Rule of Law
- Comparative Methodology
ASJC Scopus subject areas