'If Property Rights Were Treated Like Human Rights, They Could Never Get Away with this,' Blacklisting and Due Process in U.S. Economic Sanctions Programs

Economic sanctions have proliferated in the last half of the twentieth century, and become the "first choice" of U.S. policymakers seeking tools to address many complex international issues. A key feature of these various sanctions programs is the use of a blacklist, to bring third party agents, controlled entities, and corporate cloaks operating elsewhere within the ambit of the sanctions aimed at a particular country or destination. These blacklists have now grown to include several thousand individuals and entities. However, despite the growing importance of economic sanctions, and their accompanying blacklists, these programs are still managed by a relatively small office within the Treasury Department, the Office of Foreign Assets Control (OFAC). Using the example of the IPT Company, Inc., a small but long established U.S. based corporation with foreign ownership, and the economic sanctions program targeted at the Federal Republic of Yugoslavia, this Article examines the processes used by OFAC to establish, impose, and implement such sanctions on a particular destination, and the closely related process of blacklisting particular parties associated with the sanctioned destination. It explores the unique, adversarial, relationship with the public which characterized much of OFAC's operations until recent years, and the impact that attitude has had on the promulgation, notice, distribution, and enforcement of OFAC's regulations. After considering the important, but limited, role individual case by case challenges have played in improving these processes, the Article concludes by suggesting that new legislation is required to remedy ongoing deficiencies in OFAC's implementation of its programs. Accordingly, it concludes by urging that the pending Sanctions Reform Act be expanded to provide detailed guidance on how sanctions should be implemented, in a manner similar to the way the U.S. Congress has both directed and overseen the operation of the export control system with the Export Administration Act.