International Economic Law Papers Reference Papers 1
On Economic Sanctions in International Law
In Chinese,? Sanctions? What is the basic definition of? Restrain punishment by force, so as not to run amok? . In English, sanctions have developed a variety of interpretations from the meaning of laws and solemn agreements: first, it refers to the means taken to ensure that laws are observed from the legal point of view, including various punishments for violating laws and forms of rewards to prevent violations; From the moral point of view, it refers to maintaining the binding force of morality; Third, from the perspective of international law or international politics, it refers to a coercive means jointly adopted by several countries to force countries that violate international law to stop illegal activities or obey rulings, especially by refusing loans, restricting bilateral trade or adopting measures such as armed intervention or blockade. International economic sanctions generally refer to an economic punishment imposed by one country or many countries on another country or many countries, and its essence is to achieve certain political and other purposes through sanctions. Western countries bluntly say that sanctions are their foreign policy? Powerful tool? . The United Nations sometimes forces Member States to participate in collective sanctions through certain resolutions. Since the 20th century, with the accelerated development of economic globalization, it has been used more and more frequently. According to k? Answer? Eliot (k? Answer? Elliott) and G.C. Hafpol (G? c？ Hufbauer) analyzed the cases from 19 14 to 1998 170. More than 50 years after the war 150 cases, less than 90 years 10 years more than 50 cases.
Looking at the examples of international economic sanctions after the war, we can conclude that there are three main forms:
The first and most widely used is the strategic embargo. It is forbidden to provide nuclear weapons, conventional weapons and dual-use technology products to the sanctioned country, and prevent high technology and its products from entering the sanctioned country; When a strategic embargo is not usually needed, a comprehensive trade embargo is generally adopted. Impose import and export embargoes and restrictions on the exchange of funds and personnel on sanctioned countries. There is also a special trade embargo. Focus on selecting a number of trade projects related to the national economy and people's livelihood of the sanctioned countries for embargo. The selected items are usually food and oil.
Characteristics of international economic sanctions
The first one is mandatory. In intensity, economic sanctions are a means between diplomatic means and military means. The sanctioned party will not take into account the feelings of the sanctioned party in order to achieve its own goals.
The second is antagonism. When imposing sanctions, the sanctions never conceal their targets and goals, which makes the sanctions and the sanctioned people in an open state of confrontation.
There is also correlation. Economic sanctions are a double-edged sword, which damages the interests of both sides and will also affect the interests of third countries. The closer the economic relationship, the greater the loss. This feature of economic sanctions determines that most sanctions are difficult to succeed, because driven by interests, not only the companies of the targeted countries may act against the will of the government, but also the members of the sanctions alliance will act in their own ways, thus greatly reducing the effectiveness of sanctions.
The core issue of international sanctions is efficiency, that is, how to achieve the purpose of surrender at the least cost and time. Eliot made an empirical analysis of a large number of cases and found that the success rate of economic sanctions was declining. During the period of 1938- 1972, 67% of people forced the other side to make concessions to achieve the predetermined goal of sanctions, while 1973- 1990 was reduced to 22%. Even in the1990s, the success rate of economic sanctions decreased. Among the factors that affect the efficiency of economic sanctions, the first is the economic cost borne by the target country. According to Elliott's statistics, in most successful cases, the cost caused by sanctions exceeds 2% of the target country's GDP, while in failed cases, the proportion is less than half.
The losses caused by economic sanctions should be borne by the people. Generally speaking, economic sanctions will cause losses to the people, lead to people's dissatisfaction with the government, and then affect the government's decision-making. The premise of this assumption is that the sanctioned government is an elected government. If the sanctioned state power is not democratically elected, then the effect of sanctions is worthy of scrutiny. For example, in a country like North Korea, the government controls all media, and the only source for people to get external news is official news. In this case, with a little incitement, the people's painful feelings of suffering can easily turn into hatred against the sanctions party. This will not only fail to achieve the goal of launching sanctions, but will make the regime of the targeted country more stable. After the Gulf War, the allied sanctions against Iraq continued until 2003, which greatly weakened Iraq's strength, thus laying the groundwork for subsequent military operations. But the original intention of sanctions is to hope that Iraqis will resist and overthrow Saddam Hussein's regime? It is undoubtedly a failure.
Economic sanctions often cause serious losses to the sanctioning countries themselves. For example, in the 1970s, in order to force the Soviet Union to leave Afghanistan, the United States initiated a food embargo against the Soviet Union, and then an oil and gas pipeline embargo. The Soviet Union's embargo on grain and oil and gas pipelines has seriously damaged the interests of American farmers, industrial enterprises and related industries. Finally, under the pressure of interest groups, the United States had to take the initiative to lift this sanction. Of course, this is also related to the progress of the war in Afghanistan and the changes in the international situation. The asset freezes imposed by the United States on Iran and Libya in the11970s and11980s included the assets of the two countries in the United States, as well as the assets of overseas branches and subsidiaries of American banks. Its implementation not only causes legal conflicts with the location of offshore financial market, but also damages the sovereignty of the place and the interests of the financial sector, as well as the interests of the American financial sector. "From a broader perspective, it is more important and vital to the national interests of the United States that the loss of confidence in the service ability of American banks will inevitably lead such customers to leave new york or other American markets and go to foreign markets such as London, which are considered to provide a fairer environment. "According to the report of the Institute for International Economics 1995, the losses caused by sanctions to American companies ranged from1500 million dollars to1900 million dollars, and the employment problem of about 200,000 workers was affected, which inevitably caused dissatisfaction in related industries.
As for democratic countries, the political system is becoming more and more mature, and the links between countries are getting closer and closer, which will affect the whole body. In this case, it is difficult to act that will be sanctioned, let alone sanction others.
So sometimes, sanctions are not necessarily powerful, and direct military means are the most effective method. As fewer and fewer countries dare to openly engage in dictatorship on earth, it is foreseeable that sanctions, as a means, will not be far from disappearing.
Legal status of international economic sanctions
Generally speaking, the legal status of international economic sanctions includes two aspects: first, under what circumstances the sanctioning country has the right to adopt economic sanctions. The second is the extent to which sanctions countries have the right to use economic sanctions. The former refers to the procedural provisions of international economic sanctions, while the latter refers to the substantive provisions of international economic sanctions.
The first international convention involving international economic sanctions was 19 19, the Covenant of the League of Nations signed at the end of the Paris Peace Conference. Article 16, paragraph 1 of the Convention stipulates that those members of the alliance who participate in the war in disregard of the provisions on dispute settlement through arbitration shall be regarded as acts of war against all other members of the alliance. Other member States immediately cut off all kinds of commerce or finance? Financial, commercial or personal contacts are prohibited between its people and those of countries that violate the Covenant? . That is to say, first, economic sanctions are aimed at specific acts of war, and once such acts occur, the obligation of other member States to implement sanctions will automatically arise; The second sanction is comprehensive and thorough, right? Comprehensive economic sanctions? ; Third, not only member countries but also non-member countries should participate in economic sanctions, then? Global economic sanctions? .
However, the General Assembly of the League of Nations quickly adopted the legal provisions of such severe economic sanctions. Economic weapons? Replaced by a resolution. This resolution proposes that it is up to member States to decide whether there is an act of war in violation of the convention; The League of Nations Executive Yuan can make suggestions on this, but it cannot make a binding decision. This amendment limits the power of the League of Nations Executive Yuan, strengthens the arbitrariness of the member countries, weakens the economic sanctions imposed by 1935 on Italy, and lays the foundation for unilateral international economic sanctions.
Compared with the legal status of multilateral sanctions and global sanctions, the legal status of unilateral economic sanctions is still unclear. On the one hand, according to the basic principles of international law, a country's decision to establish or cut off economic and trade exchanges with another country is purely the internal affairs of that country and the embodiment of its sovereignty, and no external interference is allowed. Some western international law scholars have also found out the above-mentioned League of Nations resolutions to demonstrate the legitimacy of unilateral economic sanctions. They pointed out that due to the incompetence of the United Nations, the task of promoting and maintaining international peace fell to all Member States, and the main tool of each country was economic sanctions.
On the other hand, there is also a trend in the world to advocate limiting international economic sanctions. For example, the United Nations General Assembly's Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations 1970 and the Charter of Economic Rights and Duties of States 1974 (Article 32) stipulate that no country may use or encourage the use of economic, political or any other measures to coerce another country in order to obtain the subordination of its sovereign rights and obtain any benefits from it. But what is this? A sovereign act that does not allow foreign interference? What is this? Forced obedience to sovereignty? Every country has its own standards, and it is difficult to reach a consistent conclusion.
At present, the customary international law is that as long as one country's economic sanctions against another country do not involve military action or armed blockade, and as long as they do not involve the jurisdiction of other countries (1After President Reagan announced the expansion of the embargo on the export of oil and gas equipment to the Soviet Union in June 1984, Ceng Tongying and France, West Germany and other western European countries had a jurisdiction dispute), it will generally not cause criticism from other countries, and of course it will not cause national responsibility in international law.
refer to
[1] Modern Chinese Dictionary, Beijing, Commercial Press, 2002, p. 1492.
[2] Oxford Contemporary Dictionary, Guangzhou, World Book Publishing Company, 1997, p. 1644.
[3] Analysis of the Efficiency and Externality of International Economic Sanctions, Journal of Wuhan University, Vol.58, No.3, 2005.3.
[4] Haas, R.N. Recognition madness [J]. Foreign affairs,1997,76.
Refer to Article 2 for papers on international economic law.
Sovereign funds from the perspective of international economic law
Abstract: Sovereign fund is a brand-new professional and market-oriented active investment model. From the perspective of international economic law. Sovereign funds play an important role in establishing a new modern international economic order. Sovereign funds fully embody the principles of national economic sovereignty and international cooperation and development in international economic law, making the global capital market safer and more stable. From the perspective of ownership, the rise of sovereign funds will also shift the focus of the world economy from the private sector to the state-owned sector. Therefore, the steady operation and healthy development of sovereign funds need to create a fair and mutually beneficial legal environment on a global scale.
[Keywords:] sovereign funds, international economic law, legal environment
At the G20 Summit in London in April 2009. Western countries have repeatedly stressed that China should shoulder the responsibility of a big country in the field of sovereign funds. On April 18, 2009, Lou Jiwei, Chairman of China Investment Company, attended Boao Forum? Reform of the international financial system: the role of emerging economies? Speaking at the sub-forum, he said that sovereign wealth funds are the inevitable product of the existing unreasonable monetary system. From the 50-year history, sovereign wealth funds have no bad record in the market, and they are the stable force of modern market economy.
Sovereign fund, also known as sovereign wealth fund, refers to the funds held by a government for foreign market-oriented investment, which mainly comes from the national fiscal surplus, foreign exchange reserve surplus, natural resource export surplus and so on. , managed by a specialized investment institution established by the government. Sovereign fund is a brand-new professional and market-oriented active investment model. Its investment direction includes not only global diversified asset portfolio including stocks and other risky assets, but also non-traditional investment categories such as foreign real estate, private equity investment, commodity futures and hedge funds.
The rise of sovereign funds is closely related to economic globalization. 2/kloc-0 Since the beginning of the 20th century, China, Singapore, India and other newly industrialized countries have normalized their huge current account surpluses. These countries do not want the exchange rate to rise too fast, so their foreign exchange reserves have expanded rapidly. In addition, another group of emerging countries, represented by Russia and Gulf countries, directly benefited from the surge in energy demand brought about by globalization. In the context of high oil and mineral prices, they rely on the state's right to develop resources. It has also accumulated a lot of national wealth. These countries have a government-led tradition, and the financial management tools under market operation are not perfect, so wealth is concentrated in the hands of sovereign funds. At present, sovereign funds have become increasingly active participants in the international financial market, and their capital scale has surpassed that of hedge funds and private equity funds, and their market influence has been continuously enhanced. According to statistics, the global sovereign fund in 1990 was only about $500 million. In 2007, 36 countries and regions around the world have established sovereign funds with a capital scale of about 2.8 trillion US dollars. Among them, the largest Abu Dhabi fund in the UAE has a scale of 900 billion US dollars; The scale of sovereign funds owned by China and Russia also reached $200 billion and $654.38+028 billion respectively. Considering the win-win situation of developed countries and emerging market countries, the existence of sovereign wealth funds should not be regarded as a threat. As long as countries strive to standardize their behaviors and improve transparency and credibility, sovereign wealth funds should make positive contributions to the stability of the world financial market.
From the perspective of international economic law, sovereign funds play an important role in establishing a new modern international economic order.
First of all, sovereign fund is the direct embodiment of the principle of national economic sovereignty in international economic law. This principle stipulates that every country enjoys permanent sovereignty over all its wealth, natural resources and economic activities without any external interference. Sovereign fund itself is a country's independent decision-making power on economic activities, an extension of the ownership of natural resources, and belongs to the category of national interests. A government enjoys complete possession, management and control over its sovereign fund. Sovereign funds mainly come from the fiscal surplus of state-owned assets, foreign exchange reserves and export surplus of natural resources, which is an important embodiment of national sovereign wealth in modern international economic and legal relations. Especially for the vast number of developing countries. Sovereign fund is not only a symbol of national economic sovereignty. It is also a powerful weapon to ensure their equal participation and decision-making power in international economic activities, thus realizing the diversification of the international economic structure. According to the data released by the Institute-Tute in April 2009, as of 2008, Huaan Investment Management Company, a subsidiary of China Foreign Exchange Reserve Bureau, managed assets of about US$ 347,654.38 billion, ranking third in the world. China Investment Corporation, another sovereign wealth fund in China, ranked eighth with assets of US$ 654.38+90 million. In 2004, Lenovo Group, with the background of sovereign funds, successfully acquired IBM's global Pc business for US$ 654.38+75 billion, which to some extent reversed China's relatively weak position in Sino-US high-tech trade and gave China more voice in international economic activities. June 2008, the fourth time? China-US Strategic Economic Dialogue? When announcing the official launch of Sino-US bilateral investment protection agreement (BIT) negotiations, the US side also made it clear that it welcomed sovereign funds from China and would seriously consider China's position when amending the investment law.
Secondly, the positive development of sovereign funds fully embodies the principle of international cooperation and development of international economic law, making the global capital market safer and more stable. Due to the relative stability and low risk of sovereign funds, when the capital market is facing a collapse crisis, investors do not have to worry about the panic selling of sovereign funds, and most sovereign funds do not need to pay dividends regularly like pension funds, thus avoiding frequent cashing in the securities market. Therefore. Sovereign funds can become long-term strategic investors to participate in regional economic cooperation among countries in the world, which will help stabilize the international stock and bond markets. In addition, the rise of sovereign funds has transformed emerging market countries from creditors of developed countries to asset owners, fundamentally shifting the power center of international financial markets. The pattern of global financial market will change from the monopoly of the United States to a pluralistic system in which Eurasian countries and energy exporting countries participate together, and developing countries are gradually becoming a powerful force in international financial investment, which fully embodies the principle of international cooperation and development of international economic law. According to the statistics of the U.S. Treasury Department, in 2006 alone, transnational investment with sovereign funds as the main body increased the net assets of the United States by 1.9 trillion dollars, provided100000 jobs for the society, and contributed 13% to the R&D expenditure.
Finally, from the perspective of ownership, the rise of sovereign funds will also shift the focus of the world economy from the private sector to the state-owned sector. According to the US Treasury Department's estimation, the financial capital (foreign exchange plus sovereign funds) controlled by governments at present is about 7.6 trillion US dollars, equivalent to 15% of the global total output. Multinational companies that have been dominant for a long time will face the competition from sovereign funds invested by the government, and the state-owned assets of various countries will be put into the international capital market with a more flexible attitude after optimization and integration, which will make the traditional international investment legal system with multinational companies as the main body face great challenges. It promotes the theoretical research and institutional innovation of international economic law, and the recent revision of investment law in the United States is an obvious example.
Although the emergence of sovereign funds has had a very positive impact on international economic law, the legalization of sovereign funds still faces various difficulties at this stage. First of all, due to the huge scale of hundreds of billions of dollars of sovereign funds, far exceeding ordinary international investment, it is often difficult to fully absorb them in markets other than bonds due to insufficient liquidity and trading volume, which leads to the inability of the current investment legal system in various countries to effectively supervise. Secondly, due to the lack of regulations on information disclosure of sovereign funds in most countries' legislation and the lack of transparency in the operation of sovereign funds, it is not accurate to disclose who controls these huge capitals. There are no reliable information such as investment strategies and asset statements published regularly, and relevant international organizations have not formulated strict information disclosure standards, which makes the legal regulation of information disclosure of sovereign funds in a de facto absence state. Finally, based on non-commercial factors such as politics and national security, some developed countries are very cautious about the national background behind sovereign funds, which leads to the lack of sufficient commercial and operational independence of sovereign funds, which is easy to trigger investment protectionism and form investment barriers. In recent years, the US Congress halved the acquisition of American ports by Dubai Port Company. CNOOC's unsuccessful acquisition of Unocal and Huawei's acquisition of 3Com were rejected by the Committee on Foreign Investment in the United States (CHIUS), all of which were obviously characterized by investment protectionism.
The steady operation and healthy development of sovereign funds need to create a fair and mutually beneficial legal environment on a global scale. At present, countries have begun to attach importance to the use of legal means to manage and regulate sovereign funds, and to clarify the management system, specific operation and investment review of sovereign funds through legislation to enhance the transparency of the operation of sovereign funds. The US Foreign Investment and National Security Act of 2007 stipulates that CFlUS has the right to conduct a 90-day investigation when sovereign fund investment is involved. Until it is determined that the investment will not endanger the national security of the United States; In February 2008, in the context of Chinalco's acquisition of Rio Tinto, the Australian government also announced six legal principles, announcing that it would intensify the review of foreign investors controlled by the government. The above legislation attempts to regulate the operation of sovereign funds by strengthening the review of sovereign funds, which is not only a corporate governance model, but also the result of its willingness to protect strategic assets. In contrast, the EU has adopted a more active and open attitude towards sovereign funds. In order to achieve the goal of investment liberalization, in February 2008, the European Union announced that it would issue a code of conduct for sovereign funds, trying to eliminate the legal restrictions on the free flow of sovereign funds on a global scale by formulating global self-regulatory norms. EU Trade Commissioner Mandelson suggested that in order to protect EU strategic enterprises from being acquired by sovereign funds, the EU should consider implementing it? Gold stocks? System (that is, the government holds shares with specific rights. This kind of shares are few, usually one share, but they have the right to speak and can veto the company's major strategic decisions, which gives the government the right to veto some foreign investments involving important and sensitive industries. While the European Union is preparing to issue a self-regulatory code for sovereign funds, the International Monetary Fund is also formulating a code of conduct aimed at regulating sovereign funds. The organization has explicitly asked Singapore, Norway and the United Arab Emirates to formulate detailed disclosure standards for their sovereign funds, and has begun to promote the mandatory disclosure of information in Norwegian legislation, believing that information disclosure legislation can promote the standardized operation of sovereign funds and avoid investment protectionism.
Sovereign funds are essentially specialized commercial organizations, not administrative organs of the government. Applying the administrative model is bound to suppress professionalism and business culture, leading to the rigidity of similar bureaucratic organizations, which is obviously not conducive to its efficient operation. Therefore, administrative intervention in sovereign funds should be avoided as much as possible to ensure the free operation of sovereign funds in the market. For example, in order to ensure a good return on investment to the greatest extent, there are almost no civil servants in the staff of sovereign wealth funds in the United Arab Emirates and Singapore, but they try their best to attract and recruit first-class financial talents in the international financial market. Most fund managers, including chief investment officers, are external professionals.
In addition, if the sovereign fund wants to become a member of the international financial market, it must also make clear the commerciality, professionalism and independence of the sovereign fund through legislation to dispel the political doubts and obstacles of the invested country. In the investment law, it should be clear that the main investment should be entrusted to external funds for third-party management, so as to dilute the political color, establish a multi-strategy and multi-channel investment portfolio and strengthen the competition among funds. Make up for the lack of resources, talents and internal control of sovereign funds.
[References]
[1] Wu Jinyong. G20 Summit in London, Huang Jixin? Church? Value [N], Business Week, April 20, 2009.
[2] Wang Zhigang, research on legal issues of sovereign wealth funds [J], law and practice. 2008。 (4)。
[3] Yan Yang, the impact of sovereign wealth funds on the world economy [J], Journal of Party School of Shijiazhuang Municipal Committee, 2009, (1).
[4]IFSL: Softball sovereign wealth fund increased to $3.9 trillion [N], Economic Information Daily, 2009-03-04.
[5] Liu Tingting and Saudi Arabia will build the world's largest sovereign fund [N], China Business Times, 2007- 12-25.
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