State & Local Economic Sanctions: The Constitutionality of New York's Divestment Actions and the Sudan Accountability & Divestment Act of 2007

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I. INTRODUCTION

Economic sanctions, the deliberate, government-motivated withdrawal, or threat of withdrawal, "of customary trade or financial relations," are a foreign policy tool designed to isolate another country. (1) They can take multiple forms, such as trade embargoes, asset freezes, and other financial controls, as well as import and export controls. Economic sanctions have been imposed by the United States with increasing frequency since the end of the Cold War, initially to oppose the communist regimes in several countries. (2) More recently, however, the United States has used this economic leverage to protest a wide range of issues, such as terrorism, weapons proliferation, and human rights violations by foreign governments. (3) Economic sanctions imposed unilaterally by the United States have been controversial. Sanctions have been criticized for having little effect on the targeted regime, working to the detriment of the civilian population, and violating principles of international law due to their extraterritorial effect.

International and domestic controversy has also arisen over the proliferation of sanctions imposed by state and municipal governments to protest behavior of foreign governments. State and local sanctions have increased in popularity and use since they were first applied, with perceived success, to the apartheid regime in South Africa in the 1980s. (4)

Most recently, state and municipal governments have participated in the growing protest movement against the massive human rights violations committed by the Sudanese government. (5) Sudan has been plagued by political instability and civil war since it gained independence from the joint rule of Britain and Egypt in 1956. (6) Sudan's history of internal conflict, steadily escalating since the mid-1980s, culminated in the most recent crisis in the western Darfur region of Sudan in 2003. (7) Human rights violations have been committed indiscriminately; all sides to the conflict have engaged in murder, rape, torture, the burning of villages, and the destruction of property, but these acts have been perpetrated in particular by the Sudanese government and the government-backed Janjaweed militia. (8) The conflict in Darfur alone has resulted in an estimated 200,000 deaths and has internally displaced another 2.7 million persons, (9) prompting President George W. Bush to deem the situation in Darfur genocide. (10)

The human rights atrocities have prompted the international community to intervene in an attempt to put a stop to the humanitarian crisis in Darfur. In 1993, the United States designated Sudan a state sponsor of terrorism, (11) resulting in sanctions which consist primarily of foreign assistance restrictions and restrictions upon financial transactions. (12) Since 1997, the United States has maintained unilateral economic sanctions against Sudan. (13) These sanctions have expanded over the past decade, with the most modern policy embodied in the Sudan Accountability and Divestment Act of 2007 ("SADA"). (14) Despite peace negotiations, ceasefire agreements, and international cooperation in the form of peacekeeping forces deployed by the United Nations ("UN") and the African Union ("AU"), the human rights violations in the Darfur region still occurred.

State and local governments have reacted strongly to the situation in Sudan, enacting local legislation that imposes economic sanctions, including divestment and selective purchasing laws against the Sudanese government. (15) The Sudan divestment movement is the "most widespread ... in the United States since the end of apartheid" in South Africa. (16) Divestment is a way for states, localities, and universities to use their economic power to express moral condemnation toward foreign governmental policies, and influence the behavior of those governments. (17) Because of the foreign reach of such sanctions, sub-national divestment and procurement laws may conflict or interfere with the United States' foreign policy, imposing substantial burdens on United States-based companies and the United States' economy. …