State & local economic sanctions: the constitutionality of New York's divestment actions and the Sudan Accountability & Divestment Act of 2007.

• Author: Trachy, Elizabeth

1. 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. For this reason, state divestment legislation has been attacked as unconstitutionally infringing upon the federal government's exclusive authority in the area of foreign affairs, as being preempted by federal divestment and procurement laws, and as violating the dormant Foreign Commerce Clause of the United States Constitution. (18)

   The Sudan divestment campaign was born in the wake of judicial invalidation of recent state divestment legislation, which demonstrated the judicial branch's intent to preserve the foreign relations policies of the federal government. (19) The SADA was enacted in 2007 by Congress to protect the states' ability to manage their assets as they see fit, but in a manner that is consistent with federal foreign policy with respect to Sudan. (20) The SADA is thus intended to protect state divestment measures taken within its explicit limits from executive and judicial invalidation under the dormant foreign affairs power.

2. HISTORY OF CONFLICT IN SUDAN

   Roughly one-quarter of the size of the United States, Sudan is the largest country in Africa, and its population of 45 million people is split along multiple lines, including race and religion. (21) Conflicts exist between numerous factions of the population. One such conflict is the twenty-one year civil war between the Arab and Muslim dominated northern region--led by the National Congress Party ("NCP") and President Omar Hassan al-Bashir--and the largely non-Arab and non-Muslim southern region--led by the Sudan People's Liberation Movement ("SPLM")--which alone has led to the displacement of an estimated four million people and more than two million deaths. (22) Another example, leading up to the most recent conflict in Darfur, is the split in that region between non-Arab and African ethnic groups, who inhabit central Darfur and primarily practice agriculture, and those who claim Arab descent, who are mostly semi-nomadic livestock herders residing in northern Darfur. (23) Historically, the pastoralists have migrated to the southern region in the dry season, causing clashes between the two groups which have been resolved by the negotiation of tribal leaders. (24) Fueled by the growing political tension between Arab tribes and the local government, the severe drought in the mid-1980s, and the increasing desertification of northern Darfur, conflicts between the two groups escalated. (25) The combination of these ethnic tensions, worsened by the competition for scarce resources caused by the extended drought, political disagreement, and the introduction and ready availability of automatic firearms, made the clashes bloodier and irresolvable by the tribal leaders. (26)

   The most recent civil war began in April of 2003 when the Sudan Liberation Army ("SLA"), a rebel group consisting of southern Darfurian farmers, attacked El Fashir, the capital of North Darfur, looting fuel and arms depots and damaging several government aircrafts. (27) In response, the "Sudanese government launched [a] massive military operation[]" and mobilized the Sudanese armed forces and the Janjaweed (Arab militia groups supported by the Sudanese government), against the civilian population of the Fur (Zaghawa and Masalit ethnic groups in the Darfur region). (28) "[T]he Sudanese government has a long history of using [militias consisting of] Arab and non-Arab ethnic [groups] to [combat] rebels [that sprung] from their traditional enemies." (29) The Janjaweed have sprung from this historical use--being given weapons and allowed "free rein to attack" the ethnic groups that were their longstanding former partners--as the government's proxy militias "in the name of counterinsurgency." (30)

   "Since the beginning of the [conflict], the [Sudanese government] has pursued a military strategy that has violated fundamental principles of international humanitarian and human rights law." (31) Together with the Janjaweed militia, the Sudanese government has participated in the mass murder, rape, torture of civilians, and forceful displacement of millions of people; destruction of property, villages, food stocks, and water sources; widespread looting; and the interference with the delivery of humanitarian aid to internally displaced persons and other civilians dependent upon humanitarian aid for survival. (32) By February 2004, the number of displaced persons from Darfur was estimated to be 750,000, with more than 110,000 of the refugees located in Chad. (33) The United States Department of State has reported 200,000 deaths resulting from the conflict in Darfur alone, (34) but that number has been estimated to reach as high as 400,000. (35) A humanitarian ceasefire agreement was signed by the Sudanese government and the two Darfurian rebel groups, SLA and JEM, in April of 2004. The agreement launched an AU peacekeeping mission to "monitor and report on the ceasefire," and to provide "an armed force to protect civilians" and humanitarian aid workers, in addition to mandating a cessation of hostilities. (36) The humanitarian ceasefire agreement also obligated the Sudanese government to commit itself to disarm and neutralize the Janjaweed. (37) However, reports of violations of the ceasefire surfaced shortly after it was signed. (38) Subsequently, the Declaration of Principles for the Resolution of the Sudanese Conflict in Darfur was signed on July 5, 2005, setting forth a seventeen-point plan to reach a peaceful solution by the end of 2005, (39) but violence in Sudan continued despite the Declaration. (40) The Declaration was followed by the Darfur Peace Agreement ("DPA") between the SLA and the government of Sudan, signed on May 5, 2006, consisting of five separate initiatives. (41) The Sudanese government was again required to disarm and demobilize the Janjaweed and rebel forces, and to create buffer zones around refugee camps and...