Misure Restrittive Unilaterali e Diritto Internazionale degli Investimenti

The present paper addresses the growing practice of unilateral economic sanctions and the multifaceted debate surrounding their legality and compatibility with other fields of international law, most notably international investment law. The recourse to unilateral economic sanctions as a national security and foreign policy tool has become increasingly widespread in recent years, particularly among Western states. Indeed, 12,594 is the number of sanctions that have been imposed by Western countries against Russian individuals and entities from February 2022 to June 2023, after the unlawful invasion of Ukraine. As such, this so-called “sanctions tsunami” is considered by some scholars as one of the most unprecedented phenomena since the Cold War. These types of economic measures emerge outside the scope of the UN Charter, generally as a response to the UN Security Council’s inability to tackle international emergencies due to the veto of some permanent members (e.g., Russia). However, literature is divided on their legality and overarching impact. Even the term “sanctions” itself is yet not subject to agreement. On the one hand, some commentators and states contest the use of unilateral economic sanctions arguing that only UN Security Council resolutions can impose legitimate sanctions, despite the absence of a general prohibition to adopt unilateral restrictive measures. On the other hand, the opposing view advanced by other states (e.g., the US) and scholars supports the legality of unilateral sanctions as a justified response to a prior breach of international law by the targeted state. Against this background, the paper will deal with the current legitimacy debate by focusing on the consistency of state practice on the use of unilateral economic sanctions with the customary law rules on states’ responsibility, the UN Charter and international investment law. With reference to the latter, it is undisputed that the adoption of sanctions has a substantial impact on foreign investments, but the matter has received little to no doctrinal attention so far.