SECOND THOUGHTS ON SECONDARY SANCTIONS

This Article explores the legality of so-called "secondary sanctions" under customary principles of international jurisdiction law. Ordinarily, when the United States imposes economic sanctions, it imposes primary sanctions only-to restrict its own companies and citizens (or other people who are in the United States) from doing business with a rogue regime, terrorist group, or other international pariah. Secondary sanctions, such as secondary trade boycotts and foreign company divestment, involve additional economic restrictions designed to inhibit non-U.S. citizens and companies abroad from doing business with a target of primary U.S. sanctions. Secondary sanctions have proven highly controversial, in part because of broad claims that they are illegally "extraterritorial" in purpose and effect. This Article challenges the conventional view. It suggests that a wide range of secondary sanctions measures are permissible if tailored to regulate exclusively on "terrinational" grounds-on the combined basis of territorial and nationality jurisdiction. Secondary sanctions may seldom be wise as a matter of policy, but when primary sanctions fail, secondary sanctions may be a last alternative to the use of military force. Because the use of secondary sanctions has been complicated by lack of clarity about their legality, terrinational forms of secondary sanctions should be considered as an alternative to other more legally controversial forms of secondary sanctions.