39/54 Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
Document Type: Final Report
Date: 2018 Aug
Session: 39th Regular Session (2018 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.18-14322(E)
Human Rights Council Thirty-ninth session
10–28 September 2018
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights*
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the negative impact of unilateral coercive measures on the
enjoyment of human rights, Idriss Jazairy, prepared pursuant to Council resolutions 27/21
and 36/10. In the report, the Special Rapporteur provides updates on the situation in four
countries and calls for the negotiation and adoption of a United Nations declaration and
guidelines on sanctions and human rights. He considers the application of international
humanitarian law to the use of unilateral coercive measures in the context of the Islamic
Republic of Iran and notes the issues which arise from the extraterritorial impact of
sanctions. He also calls for the appointment of a special representative of the Secretary-
General on unilateral coercive measures.
* The report was submitted late to reflect the most recent developments.
United Nations A/HRC/39/54
Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights**
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Overview of the activities of the Special Rapporteur .................................................................... 3
III. Recent developments regarding the use of unilateral sanctions .................................................... 3
IV. The case for a draft United Nations declaration and guidelines on sanctions and human rights ... 5
V. Present issues of outstanding concern ........................................................................................... 7
A. The rise of comprehensive sanctions as economic warfare .................................................. 7
B. The reimposition of a comprehensive embargo on the Islamic Republic of Iran ................. 10
C. Sanctions on the Russian Federation and their economic and social consequences ............. 13
D. An escalation in sanctions measures ..................................................................................... 14
VI. Conclusions and recommendations ............................................................................................... 16
Annex
Elements for a draft General Assembly declaration on unilateral coercive
measures and the rule of law (updated) ......................................................................................... 18
** The annex to the report is circulated as received, in the language of submission only.
I. Introduction
1. The present report is the fourth annual report submitted to the Human Rights
Council by the Special Rapporteur on the negative impact of unilateral coercive measures
on the enjoyment of human rights, pursuant to his mandate, as set out in Council
resolutions 27/21 and 36/10.
2. The Special Rapporteur would like to clarify at the outset that, while his mandate
refers to “unilateral coercive measures”, understood as transnational, non-forcible coercive
measures, other than those enacted by the Security Council acting under Chapter VII of the
Charter of the United Nations, he uses loosely and interchangeably the expressions
“unilateral coercive measures”, “unilateral sanctions”, “international sanctions” and simply
“sanctions” in the present report.
II. Overview of the activities of the Special Rapporteur
3. On 18 October 2017, the Special Rapporteur presented a report to the General
Assembly (A/72/370). In the report, the Special Rapporteur reviewed developments
regarding unilateral sanctions applied to certain countries and addressed certain aspects of
the issue of extraterritoriality in relation to unilateral sanctions.
4. The Special Rapporteur carried out an official visit to the institutions of the
European Union from 19 to 22 June 2017 (A/HRC/39/54/Add.1). At the end of his visit he
praised the protections included in sanctions legislation, including due process measures for
targeted persons, and the availability of remedies. He called upon the European Union to
engage internationally to minimize the human rights impact of restrictive measures,
including by engaging in negotiations for a declaration on unilateral coercive measures and
the rule of law.
5. The Special Rapporteur also visited the Syrian Arab Republic from 13 to 17 May
2017 (A/HRC/39/54/Add.2). At the end of his visit, the Special Rapporteur expressed
concern that the current regimes of multiple unilateral coercive measures had had the effect
of blocking almost all trade with the country and in particular that it had harmed the ability
of humanitarian non-governmental actors to carry out their work there. He called upon
States to take action to ensure that legal humanitarian exemptions in sanctions regimes be
made practical and effective in the Syrian Arab Republic.
6. On 27 June 2018, the Rapporteur made a presentation at a side event organized by
the International Association of Democratic Lawyers entitled “Syria: a different
perspective.” His intervention focused on the findings of his recent visit to the Syrian Arab
Republic and he called for States to identify practical ways to lift the impact of unilateral
coercive measures on humanitarian actors in the country.
III. Recent developments regarding the use of unilateral sanctions
7. The past year has seen a number of significant developments regarding the use of
unilateral sanctions against a number of countries. In addition to the detailed information
relating to the Islamic Republic of Iran and the Russian Federation set out in the present
report, the Special Rapporteur provides a brief discussion of some recent events. Owing to
restrictions on the length of the present report, further situations will be elaborated upon in
his upcoming report to the General Assembly.
Islamic Republic of Iran
8. The Special Rapporteur continues to monitor closely the worrying developments
related to the unilateral sanctions on the Islamic Republic of Iran and expands below on the
concerns arising from the withdrawal of the United States from the Joint Comprehensive
Plan of Action. He notes the recent application for contentious proceedings before the
International Court of Justice to challenge the announced reimposition of sanctions by the
United States.1 The application cites the imposition of sanctions as violating a number of
provisions of the 1955 Treaty of Amity, Economic Relations, and Consular Rights between
the Islamic Republic of Iran and the United States.2 The Special Rapporteur welcomes the
reliance on the impartiality of international justice to solve legal disputes arising from the
implementation of sanctions.
Qatar
9. The Special Rapporteur continues to monitor the impact of the restrictive measures
initiated in June 2017 by a group of countries targeting Qatar, which remain in force. As
noted in his most recent report to the General Assembly (A/72/370), the coercive measures
in force raise a number of legal issues. He continues to share the concerns expressed by the
United Nations High Commissioner for Human Rights in June 2017 that the measures
adopted are overly broad in scope and implementation, and agrees that they have the
potential to seriously disrupt the lives of thousands of women, children and men, simply
because they belong to one of the nationalities involved in the dispute (see A/72/370, paras.
16–18).
10. The Special Rapporteur also notes that the recent step taken by Qatar to initiate
contentious legal proceedings before the International Court of Justice,3 based on alleged
violations of the International Convention on the Elimination of All Forms of Racial
Discrimination through the imposition of the measures targeting Qatar, should be an
opportunity for the Court, as the principal judicial organ of the United Nations, to clarify in
general terms the legal issues related to the practice of sanctions under international law
(including international human rights law). The response to be given by the Court to the
legal issues raised in the proceedings is likely to have an impact well beyond the single case
of the current measures targeting Qatar. The Special Rapporteur has noted that the Court, in
its Order of 23 July 2018 granting limited provisional measures requested by Qatar, found
that “at least some of the rights asserted by Qatar under Article 5 of CERD are plausible”
and thus that the situation deserved the granting of some provisional measures pending the
final judgment of the Court. Reference was made during the proceedings relating to the
request for provisional measures to the findings of the technical mission despatched by the
Office of the United Nations High Commissioner for Human Rights, that the measures put
in place on Qatar had “a potentially durable effect on the enjoyment of the human rights
and fundamental freedoms of those affected”.4
Syrian Arab Republic
11. During his visit to the Syrian Arab Republic, the Special Rapporteur was concerned
about the number of reports from national and international civil society organizations that
the impact of multiple, overlapping sanctions regimes, particularly financial ones, have
severely impaired their ability to conduct humanitarian activities within the country.
Furthermore, the economic impact on ordinary Syrian people and on their ability to obtain
certain medicines, particularly for long-term health problems, and spare parts for water
pumps and electrical generators are deeply concerning violations of their right to the
enjoyment of human rights. The Special Rapporteur calls upon all parties to the conflict to
begin serious discussions on how to address the “chilling effect” of sanctions on
humanitarian activities in the Syrian Arab Republic, particularly related to financial
transfers, and to eliminating the impact of sanctions on the human rights of ordinary
Syrians.
1 See www.icj-cij.org/files/case-related/175/175-20180717-PRE-01-00-EN.pdf. 2 See www.state.gov/documents/organization/275251.pdf. 3 See Application of the International Convention on the Elimination of All Forms of Racial
Discrimination (Qatar v. United Arab Emirates). Qatar submitted its application instituting
proceedings on 11 June 2018. From 27 to 29 June 2018, the Court held hearings on the Request for
the indication of provisional measures submitted by Qatar.
4 See Qatar v. United Arab Emirates, Order of 23 July 2018 and OHCHR technical mission to the State
of Qatar, “Report on the impact of the Gulf crisis on human rights” (December 2017).
Zimbabwe
12. On 2 March 2018, the United States of America extended its sanctions regime on
Zimbabwe until 2019.5 The European Union had already on 12 February 2018 renewed its
restrictive measures on Zimbabwe for another year. The Special Rapporteur expresses
concern that sanctions were applied to certain politicians in Zimbabwe during the national
elections in July 2018 as an unnecessary coercive measure that negatively affected the right
of Zimbabweans to choose their own political future.
IV. The case for a draft United Nations declaration and guidelines on sanctions and human rights
13. In his previous report to the Human Rights Council, the Special Rapporteur
proposed, inter alia, elements of a draft General Assembly declaration on unilateral
coercive measures and the rule of law (see A/HRC/36/44, annex, appendix II). In addition
to a series of basic principles regarding unilateral sanctions, the draft text included
“universally/generally accepted rules of behaviour” to be applied by States during the
transitional period preceding the abolition and elimination of unilateral sanctions, with a
view to mitigating their adverse human rights consequences. The Special Rapporteur
wishes to clarify here the contents and scope of certain of the accepted rules of behaviour
that the General Assembly should reaffirm. That is in response to the demand formulated
by the Human Rights Council in its resolution 37/21, requesting the Special Rapporteur,
“taking into account the views of Member States, to identify a set of elements to be
considered, as appropriate, in the preparation of a draft United Nations declaration on the
negative impact of unilateral coercive measures on the enjoyment of human rights, and to
submit those elements to the Human Rights Council in his next report”. Further to the
request he sent to all Member States for comment on 10 May, the Special Rapporteur
appeals to interested States to engage on the issue during the interactive dialogue for the
present report. The updated elements of the draft declaration are set out in the annex to the
present report.
Human rights impact assessments of sanctions
14. Among the elements of the draft declaration, is the rule that, without prejudice to the
standing of unilateral coercive measures, or lack thereof, in regard to international law, a
human rights impact assessment is to be conducted before sanctions are applied (and as
long as sanctions remain in force), formulated as follows: “The parties implementing
unilateral sanctions are under an obligation to conduct a transparent human rights impact
assessment of the measures envisaged, and to monitor on a regular basis the effects of
implementation of the measures, including as regards their adverse effects on human rights”
(see A/HRC/36/44, annex, appendix II, para. 13 (a)).
15. Human rights impact assessments in general are instruments for examining policies,
legislation, programmes and projects to identify and measure their effects on human rights.6
The use of comprehensive human rights impact assessments should always be a
prerequisite in the design of sanctions measures, all the more so since international
sanctions have repeatedly been identified as triggering adverse effects on human rights.7
They should be conducted by the relevant authorities of the State designing a sanctions
regime, but could also be conducted by non-governmental organizations (NGOs) and
international organizations, especially in cases where the responsible State(s) fail(s) to
conduct such an assessment.
5 See www.federalregister.gov/documents/2018/03/05/2018-04628/continuation-of-the-national-
emergency-with-respect-to-zimbabwe.
6 See Nordic Trust Fund and World Bank Group, “Human rights impact assessments: a review of the
literature, differences with other forms of assessments and relevance for development” (2013).
7 For selected examples of the adverse human rights impacts of sanctions, see, for example, A/70/345,
paras. 10–47.
16. Human rights impact assessments of sanctions programmes should be conducted ex
ante, that is before the measures are enacted, aim to measure the potential future effects of
such measures on human rights and possibly adjust or change the sanctions regime with a
view to preventing human rights violations. Ex post assessments that measure the actual
impact of implemented sanctions through comparisons between the current situation and
the situation before the measures were adopted are also important and monitoring should
remain in place as long as the sanctions programme considered remains in force.
Monitoring should seek to provide answers, inter alia, to the following questions:
(a) What mitigating measures have been adopted by the duty-bearers to mitigate
any negative effect foreseen by the assessment?
(b) Have any human rights risks and/or impacts that were foreseen by the
assessment materialized? If so, who were the affected stakeholders? Have the duty-bearers
taken measures to try to mitigate the negative effects of those risks?
(c) Have there been major human rights risks and/or impacts unforeseen by the
assessment? If so, who were the affected stakeholders?
(d) Have there been recurring grievances related to the policy intervention? If so,
who were the affected stakeholders?8
17. Human rights impact assessments of sanctions regimes can be expected to play an
important role in promoting accountability, offering clarity on the scope of human rights
obligations and the extent to which duty-bearers have fulfilled them. Impact assessments
will typically evaluate the extent to which the subject of the evaluation includes effective
accountability mechanisms.9
18. It is also important that the conduct of human rights impact assessments allows for
effective public participation of the populations affected by sanctions and that the
information gathered be made publicly (and widely) available.
19. Effective human rights impact assessments should become a non-derogable standard
in cases of sanctions imposed by groups of States or regional organizations. In 2014, the
Council of Europe Parliamentary Assembly adopted a resolution calling on all member
States of the Council to ensure that the international organizations of which they were
members were subject, as appropriate, to binding mechanisms to monitor their compliance
with human rights norms and to ensure that their decisions were enforced.10 They should
ratify human rights instruments, where possible, and formulate clear guidelines regarding
the waiver of immunity by international organizations or the limitation on the immunity
they enjoy before national courts, in order to ensure that the necessary functional immunity
did not shield them from scrutiny regarding, in particular, their adherence to non-derogable
human rights standards.11
Judicial review and effective remedies
20. Another fundamental “accepted rule of behaviour” suggested by the Special
Rapporteur is formulated as follows: mechanisms to guarantee due process and the
availability of judicial review for obtaining remedies and redress for unilateral coercive
measures, should be available to:
(a) Impacted groups, even if non-targeted (by comprehensive or sectoral
sanctions);
8 See Nordic Trust Fund and World Bank Group, “Human rights impact assessments: a review of the
literature”. 9 Ibid.
10 Council of Europe, Parliamentary Assembly, resolution 1979 (31 January 2014) on the accountability
of international organizations.
11 See Dinah Shelton, Remedies in International Human Rights Law (Oxford, Oxford University Press,
2015), p. 51.
(b) Individuals and legal persons and entities targeted (by sanctions) but found
not to have been given a chance to benefit from due process (see A/HRC/36/44, annex,
appendix II, para. 13 (d)).
21. The starting point here is that a number of sanctions regimes operate in such a way
that the right to a fair trial of those affected is effectively suspended. As previously stressed
by the Special Rapporteur, the availability of judicial review for obtaining remedies and
redress for unilateral coercive measures is a requirement that stems from a number of
multilateral human rights instruments, to which the main users of sanctions are parties. A
right to a remedy for victims of violations of international human rights law is affirmed, for
example, in articles 8 and 10 of the Universal Declaration of Human Rights, article 2 of the
International Covenant on Civil and Political Rights, article 39 of the Convention on the
Rights of the Child, article 6 of the International Convention on the Elimination of All
Forms of Racial Discrimination and article 14 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (see A/71/287, paras. 22–27).
22. The right to a fair trial is enshrined in article 14 (1) of the International Covenant on
Civil and Political Rights providing that, in the determination of any criminal charges
against individuals or of their rights and obligations in a civil suit of law, everyone is
entitled to a fair and impartial hearing by a competent, independent and impartial tribunal
established by law. It is not disputed that sanctions affect at least the rights and obligations
of the targets and thus trigger the “civil” component of article 14 (1). That is irrespective of
the question as to whether sanctions, such as the freezing of assets, for example, constitute
a sanction belonging to the criminal sphere.12
23. What should also be emphasized is that the lack of effective mechanisms for the
judicial review of unilateral sanctions measures, and remedies and redress for victims, as
appropriate, amount to a denial of justice.13 That statement should be uncontroversial. It has
indeed been observed that most legal systems today recognize the importance of
safeguarding the right of access to independent bodies that can afford a fair hearing to
claimants who assert an arguable claim that their rights have been infringed. Indeed, many
writers include the element of enforceability in their definition of legal rights, because the
notion of rights entails a correlative duty on the part of others to act or refrain from acting
for the benefit of the rights holder. Unless a duty is somehow enforced, it risks being seen
as a voluntary obligation that can be fulfilled or ignored at will.14
V. Present issues of outstanding concern
A. The rise of comprehensive sanctions as economic warfare
24. The past months have witnessed increased recourse to sanctions, some of which are
clearly not targeted nor intended to be “smart”, but are clearly comprehensive, as in the
case of the measures introduced against the Islamic Republic of Iran. It may reasonably be
argued that applying a comprehensive regime of unilateral coercive measures extending to
the imposition of domestic sanctions legislation on third parties, the effects of which almost
12 On the question of whether (United Nations) sanctions amount to criminal charges, see E. de Wet,
“Holding the United Nations Security Council accountable for human rights violations through
domestic and regional courts: a case of ‘be careful what you wish for’?” in Jeremy Farrall and Kim
Rubenstein (eds.), Sanctions, Accountability and Governance in a Globalised World (Cambridge:
Cambridge University Press, 2009), pp. 143–168.
13 See generally Jan Paulsson, Denial of Justice in International Law (Cambridge, Cambridge
University Press, 2005); Antonio Cançado Trindade, The Access of Individuals to International
Justice (Oxford, Oxford University Press, 2011); and Robert Kolb, La bonne foi en droit international
public (Paris, Presses Universitaires de France, 2000).
14 See Dinah Shelton, Remedies in International Human Rights Law, p. 17.
equate to those of a blockade on a foreign country, amounts to using economic warfare.15
The potentially far-reaching, adverse consequences of such actions on human rights are
obvious. It has been convincingly argued that this concept of economic warfare, which is
not a term of art in international law, may cover not only wartime conduct (economic
methods of warfare such as belligerent blockades and the strategic bombing of factory
infrastructures), but also decentralized economic (counter-) measures in peacetime, such as
civilian blockades or even boycotts voluntarily undertaken by the citizens of one State
against the products of another, and collective sanctions imposed by the Security Council.16
“Decentralized” peacetime measures of economic warfare have been described as measures
taken unilaterally by a State that target the economy of another State and aim to apply
pressure to bring about a change in the conduct of the target. They may include an
economic embargo or boycott, the reduction or withdrawal of economic aid and other
restrictions in trade, such as a reduction in quotas or the freezing of the financial assets of
the target State.17
25. The trend of growing recourse to comprehensive sanctions coupled with secondary
sanctions is particularly questionable and raises important human rights concerns, since the
measures considered, at least in some cases, amount in practice to some form of blockade
and can be deemed to violate some of the most basic rules of international humanitarian law
and human rights law. While comprehensive embargoes coupled with secondary sanctions
do not obviously fit within the precise concept of “wartime” blockade in the meaning of
international humanitarian law,18 the (potential) similarity of their effects on the civilian
populations of the countries targeted may be seen as calling for the applicability, mutatis
mutandis, of the requirements of the law of armed conflict (international humanitarian law)
and the principles of necessity, proportionality and discrimination to non-forcible
(peacetime) economic sanctions that may amount to a blockade. 19 The principle of
discrimination in the law of armed conflict refers to the sharp distinction between
combatants and non-combatants (a principle also referred to as the “distinction principle”)20
and the imperative that any use of force be demonstrably necessary, proportional to the
necessity, and capable of discriminating between combatants and non-combatants.21
26. Arguing that those criteria found in the law of armed conflict are not applicable (at
least mutatis mutandis) to economic sanctions amounting to a de facto blockade would lead
to an absurd, unacceptable outcome: civilians would then be deprived in peacetime of the
protection offered in wartime by international humanitarian law against the very same kinds
of measures. It is widely accepted that blockades in wartime shall not entail starvation or
“collective punishment” of the populations affected, a behaviour that contradicts the rules
of the law of armed conflict, especially article 33 of the Geneva Convention relative to the
Protection of Civilian Persons in Time of War (Fourth Geneva Convention). The safeguards
of international humanitarian law have been established primarily to protect the civilian
15 See generally Stephen. C. Neff, “Boycott and the law of nations: economic warfare and modern
international law in historical perspective”, British Yearbook of International Law vol. 59, No. 1
(1989).
16 See V. Lowe and A. Tzanakopoulos, “Economic warfare” in Max Planck Encyclopedia of Public
International Law, Rüdiger Wolfrum, ed. (Oxford, Oxford University Press, 2012).
17 Ibid.
18 A blockade is generally defined as a belligerent operation to prevent vessels and/or aircraft of all
nations, enemy and neutral, from entering or exiting specified ports, airports, or coastal areas
belonging to, occupied by, or under the control of an enemy nation. See Wolff Heintschel von
Heinegg, “Blockade”, in Max Planck Encyclopedia of Public International Law (updated October
2015); and Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed
Conflict (Cambridge, Cambridge University Press, 2016) pp. 257–259.
19 See W. Michael Reisman and Douglas L. Stevick, “The applicability of international law standards to
United Nations economic sanctions programmes”, European Journal of International Law, vol. 9,
No. 1 (1998).
20 See Steven Haines, “The developing law of weapons, humanity, distinction, and precautions in
attack” in The Oxford Handbook of International Law in Armed Conflict, Andrew Clapham and Paola
Gaeta, eds. (Oxford, Oxford University Press, 2014).
21 See Reisman and Stevick, “The applicability of international law standards to United Nations
economic sanctions programmes”.
population against the effects of military operations in an armed conflict, but there is no
reason why those safeguards should not apply to economic sanctions imposed in the course
of or outside an armed conflict — even, it has been argued, those decided by the Security
Council.22 Irrespective of whether the measures considered are applied in peacetime or in
connexion with military operations, de facto blockades imposed as a result of measures
aiming at the economic isolation of the target country, through restrictions or prohibitions
on imports and exports abroad and transfers of goods between the target and the rest of the
world, also entail some form of collective punishment. It has been argued in that respect
that “economic sanctions … whether applied by the United Nations under Chapter VII of
the Charter or unilaterally, must be designed with regard to the techniques selected, with as
much attention to context and capacity for discrimination as must a lawful sanctions
programme using the military instrument”.23
27. In that context, there appears to be no valid reason why peacetime measures having
basically the same effects as blockades could be considered as lawfully inducing situations
of starvation or collective punishment (in addition to adversely affecting a range of basic
human rights), where such situations would have been deemed unacceptable in military
conflict under the rules of international humanitarian law.
28. In the context of a proliferation of sanctions, the Special Rapporteur considers it
necessary to renew his proposal to establish a consolidated central register at the level of
the Secretariat to recapitulate the list of all unilateral sanctions in force.24 The absence of a
central United Nations register and the correlative impossibility of obtaining and collecting
exhaustive data on sanctions regimes applied worldwide, their characteristics, their scope,
targets and consequences, and possible interference with Security Council sanctions,
hamper the coherence of international action. as well as public awareness and accurate
understanding of the phenomenon of unilateral coercive measures and of their adverse
consequences for the enjoyment of human rights.
29. When sanctions, especially those purporting to have extraterritorial effect, are used
as a routine foreign policy tool against each and every State, Government or entity that the
most prolific sanctions user unilaterally determines, on the basis of questionable “evidence”
or mere suspicions or allegations that a corrupt regime engaged in malign activities is
attempting to subvert Western democracies, the very architecture of the international
system based on the Charter of the United Nations and the International Bill of Human
Rights is at risk. It will be increasingly difficult to maintain an international order allowing
for international cooperation and understanding, effective respect for and promotion of
human rights, or even mere coexistence among States, if sanctions and embargoes
grounded in the rhetoric of confrontation become commonplace tools and take precedence
over normal diplomatic intercourse. It may be worth recalling that Article 2 (1) of the
Charter of the United Nations states that the Organization is “based on the principle of the
sovereign equality of all its Members” and that Article 1 (2) sets out as one of the purposes
of the United Nations to “develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples, and to take other appropriate
measures to strengthen universal peace”. Also, at a time when threats of the use of coercion
or even armed force are voiced, either in a veiled form or openly, in public addresses or in
casual Twitter messages, the continued relevance of Article 2 (4) of the Charter, which
states that “All Members shall refrain in their international relations from the threat or use
22 See Hans-Peter Gasser, “Collective economic sanctions and international humanitarian law. An
enforcement measure under the United Nations Charter and the right of civilians to immunity: an
unavoidable clash of policy goals?”, Zeitschrift für Ausländisches Öffentliches Recht und Völkerrecht
(ZaöRV), vol. 56. 23 See Reisman and Stevick, “The applicability of international law standards to United Nations
economic sanctions programmes”.
24 Draft elements of a United Nations register of unilateral sanctions likely to have a human rights
impact were appended to the previous report of the Special Rapporteur (A/HRC/36/44, annex,
appendix I), as a possible basis for multilateral negotiations aimed at the establishment of such a
register.
of force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations”, is to be reaffirmed.
B. The reimposition of a comprehensive embargo on the Islamic Republic
of Iran
30. On 8 May 2018, the President of the United States ended the participation of the
United States in the Joint Comprehensive Plan of Action, the agreement reached in Vienna
on 14 July 2015 between the Islamic Republic of Iran, China, France, Germany, the
Russian Federation, the United Kingdom of Great Britain and Northern Ireland, the United
States and the European Union. The President of the United States instructed his
administration to immediately begin the process of reimposing sanctions related to the Joint
Comprehensive Plan of Action.25
31. The withdrawal from the Joint Comprehensive Plan of Action by the United States
and its subsequent reimposition of a drastic, comprehensive unilateral sanctions regime on
the Islamic Republic of Iran raises in itself (irrespective of its human rights consequences,
which will be addressed later in the present report) important issues as to its lawfulness
under international law. The Special Rapporteur does not intend to elaborate on that point
and will stick to the human rights-related aspects of the withdrawal. He notes, however, that
it is quite clear that the withdrawal of the United States qualifies as a breach or a violation
of the Plan of Action, which is a multilateral agreement enumerating a series of reciprocal
commitments of the parties, thus creating rights and obligations for them under
international law. It is thus covered by the fundamental rule of international law pacta sunt
servanda, as acknowledged by several participants.26 Moreover, the Plan of Action was
endorsed by the Security Council in resolution 2231 (2015), in which it urged “full
implementation on the timetable established in the JCPOA” and called upon “all Member
States, regional organizations and international organizations to take such actions as may be
appropriate to support the implementation of the JCPOA, including by taking actions
commensurate with the implementation plan set out in the JCPOA and this resolution and
by refraining from actions that undermine implementation of commitments under the
JCPOA”. That included, obviously, the obligation for States to refrain from applying the
sanctions waived under the agreement. In resolution 2231 (2015), the Security Council
explicitly emphasized that Member States were obligated under Article 25 of the Charter of
the United Nations to accept and carry out the decisions of the Security Council.
32. As was affirmed by the International Court of Justice in the Namibia advisory
opinion: “when the Security Council adopts a decision under Article 25 in accordance with
the Charter, it is for member States to comply with that decision. ... To hold otherwise
would be to deprive this principal organ of its essential functions and powers under the
Charter.”27
Intended consequences of the sanctions regime
33. United States officials have made clear that harming the Islamic Republic of Iran at
large were the “actually intended consequences” of the sanctions regime.28 The United
States Secretary of State claimed that the United States would apply unprecedented
financial pressure on the Iranian regime, stressing that the “sting of sanctions will be
25 See www.whitehouse.gov/briefings-statements/president-donald-j-trump-ending-united-states-
participation-unacceptable-iran-deal/.
26 See the speech by the High Representative of the Union for Foreign Affairs and Security Policy/Vice-
President of the Commission, Federica Mogherini, at the European Parliament plenary session on the
Joint Comprehensive Plan of Action, 12 December 2017, available from https://eeas.europa.eu/
headquarters/headquarters-homepage/37259/speech-high-representativevice-president-federica-
mogherini-european-parliament-plenary_en.
27 See Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, I.C.J. Reports
1971, p. 53.
28 See www.state.gov/r/pa/prs/ps/2018/05/281959.htm.
painful if the regime does not change its course from the unacceptable and unproductive
path it has chosen to one that rejoins the league of nations. These will indeed end up being
the strongest sanctions in history when we are complete. … After our sanctions come in
force, it will be battling to keep its economy alive”.29 The underlying reasoning, considered
as a justification of that approach, has been clarified by United States officials as follows:
“We do think that, given the IRGC’s penetration of the Iranian economy and Iran’s
behaviour in the region, as well as its other nefarious activities, that companies should not
do business in Iran. That is an intended consequence”.30 The stated intention of the United
States is to build the economic isolation of Iran through wide use of secondary sanctions.31
Thus, the (alleged) malign behaviour of the Iranian political leadership, as unilaterally
ascertained by the leadership of one single State, serves as a justification for the imposition
of what is intended to be in practice the strongest sanctions regime in history. No doubt the
impact of the sanctions will harm ordinary people in the Islamic Republic of Iran and affect
their enjoyment of a range of human rights. Not only is such an adverse effect not denied,
but this is even an intended, assumed and claimed consequence of the sanctions to come.
34. The reimposition of a comprehensive trade embargo on the Islamic Republic of Iran,
purporting to apply to third parties worldwide under the threat of adverse consequences for
corporations also doing business in the United States is a significant step backwards.32 It
exemplifies the rise of sanctions regimes whose effects correspond in some way to a
peacetime blockade, the difference from a wartime blockade being, as noted previously,
that the corresponding international protection provided by international humanitarian law
in wartime does not appear to be readily available. An evaluation of the consequences of
this sanctions regime calls for an evaluation of those measures against the criteria set in
international humanitarian law and for the immediate cessation of those measures found to
disregard the imperatives of necessity, proportionality and discrimination. As is well
known, the catastrophic consequences for human rights of broad trade embargoes imposed
under the authority of the United Nations in the 1990s, especially with respect to Iraq, 33
prompted a shift away from comprehensive sanctions to so-called smart sanctions. As was
noted by some scholars in 2003, a “new norm against comprehensive sanctions has become
part of the shared understanding among states”.34 It could be hoped that this move would be
irreversible; but this has proven not to be the case. While the Special Rapporteur has in a
previous report questioned the “smartness” of smart sanctions, he acknowledges that
comprehensive sanctions have the potential to hurt civilian populations in a much more
severe manner. The position expressed in 2008 by the European Parliament that it opposed
“the application, in all circumstances, of generalised, indiscriminate sanctions to any
country, since this approach leads de facto to the total isolation of the population”35 is of
continued relevance and should be reaffirmed. It is to be emphasized that the combination
of comprehensive unilateral coercive measures and of the imposition of secondary
sanctions on third parties unrelated to the dispute are tantamount to a peacetime blockade.
29 See www.state.gov/secretary/remarks/2018/05/282301.htm.
30 See www.state.gov/r/pa/prs/ps/2018/05/281959.htm.
31 Ibid.
32 See, for example, www.ft.com/content/cfe5b294-7e0e-11e8-bc55-50daf11b720d.
33 Iraqi gross domestic product was cut roughly in half by the sanctions. It has been estimated that the
country lost between $175 billion and $250 billion in possible oil revenues from the sanctions. The
price of a family’s food supply for a month increased 250 times over the first five years of the
sanctions regime. According to estimates, the sanctions caused a minimum of 100,000 and up to
227,000 excess deaths among young children from August 1991 to March 1998. See Daniel. W.
Drezner “Economic sanctions in theory and practice: how smart are they?” in Coercion. The Power to
Hurt in International Politics, Kelly M. Greenhill and Peter Krause, eds. (Oxford, Oxford University
Press, 2018), p. 259. Also, it has been noted that economic sanctions may well have been the cause of
the deaths of more people in Iraq than have been slain by all so-called weapons of mass destruction
throughout history: see John Mueller and Karl Mueller, “Sanctions of mass destruction”, Foreign
Affairs, vol. 78, No. 3 (May–June 1999).
34 See Darren Hawkins and Joshua Lloyd, “Questioning comprehensive sanctions: the birth of a norm”,
Journal of Human Rights vol. 2, No. 3 (2003).
35 European Parliament, Committee on Foreign Affairs, “Report on the evaluation of EU sanctions as
part of the EU’s actions and policies in the area of human rights” (15 July 2008), para. 14.
Secondary sanctions and the issue of extraterritoriality
35. As outlined by the Special Rapporteur in his previous report to the Human Rights
Council, there is a general understanding that extraterritorial sanctions disregard commonly
accepted rules governing the jurisdiction of States under international law and consequently
that such measures are unlawful (see A/HRC/36/44, paras. 22–24). The recent imposition of
further wide-scale secondary sanctions purporting to apply to third parties not concerned
with the dispute has attracted widespread condemnation from the overwhelming majority of
the international community. The European Union, in particular, once again voiced its
condemnation of extraterritorial coercive measures on the occasion of the repudiation of the
Joint Comprehensive Plan of Action by the United States in May 2018. As it explained:
“Some of the measures which the United States will reactivate against Iran have
extraterritorial effects and, in so far as they unduly affect the interests of natural and legal
persons established in the Union and engaging in trade and/or the movement of capital and
related commercial activities between the Union and Iran, they violate international law and
impede the attainment of the Union’s objectives.”36
36. In the European Union, a range of extraterritorial measures are already subject to
Council regulation No. 2271/96, which was adopted in reaction to the adoption by the
United States of restrictive measures concerning Cuba, the Islamic Republic of Iran and
Libya. That negatively affected the interests of natural and legal persons in the Union
engaging in business with those countries, which was perfectly legitimate under European
Community law.37 The regulation basically provides protection against, and counteracts the
effects of, the extraterritorial application of the sanctions measures covered, “where such
application affects the interests of persons … engaging in international trade and/or the
movement of capital and related commercial activities between the Community and third
countries”. 38 Persons and entities, as defined in article 11 of Council regulation No.
2271/96, shall not comply, “whether directly or through a subsidiary or other intermediary
person, actively or by deliberate omission, with any requirement or prohibition, including
requests of foreign courts, based on or resulting, directly or indirectly, from the [sanctions
covered] or from actions based thereon or resulting therefrom”.39 Moreover, the regulation
provides that “No judgment of a court or tribunal and no decision of an administrative
authority located outside the Community giving effect, directly or indirectly, to the
[sanctions covered] or to actions based thereon or resulting therefrom, shall be recognized
or be enforceable in any manner”.40
37. Following unanimous backing on 16 May 2018 by European Union Heads of State
or Government, on 18 May 2018 the European Commission launched a process to expand
the scope of Council regulation No. 2271/96 by adding to it the extraterritorial measures
which the United States were going to impose on the Islamic Republic of Iran. 41 The
Special Rapporteur stresses that the unlawfulness of those extraterritorial measures stems
also from their egregious and undiscriminating adverse human rights consequences, and
expresses his hope that the European Union will engage with the United Nations and in
particular with other Member States and with his mandate to address the immediate adverse
human rights impact of secondary sanctions and blockades, and support the rapid
finalization and adoption of guidelines in that respect, as suggested in the present report.
Issues of discrimination
38. There is a strong legal argument to the effect that sanctions may have a
discriminating effect on the basis of the country of residence or nationality of the targeted
36 See European Commission, explanatory memorandum on the draft Commission delegated regulation
of 6.6.2018 amending the annex to Council regulation No. 2271/96 of 22 November 1996 protecting
against the effects of extra-territorial application of legislation adopted by a third country, and actions
based thereon or resulting therefrom, para. 1.
37 Ibid.
38 Council regulation (EC) No. 2271/96, art. 1.
39 Ibid., art. 5.
40 Ibid., art. 4.
41 Ibid., para. 1.
populations. Discrimination on the basis of nationality or national origin violates, inter alia,
article 26 of the International Covenant on Civil and Political Rights and articles 1 and 2 of
the International Convention on the Elimination of All Forms of Racial Discrimination.
39. That argument may be made in particular with respect to the practical effects of the
unilateral comprehensive measures taken by the United States targeting the Islamic
Republic of Iran, under which Iranian people are deprived of the opportunity of conducting
normal business (and other) relations with foreign counterparts.
40. Reference could also be made to the legal challenges that have been brought by
Iranians in recent years before the courts in the United Kingdom against a number of
British banks, on the grounds that they had been subjected to racial discrimination by the
banks, in breach of the provisions of the Equality Act 2010, after their bank accounts were
closed.42 It has been reported that compensation was obtained by the claimants in most of
those cases, often as the result of pretrial settlements.
C. Sanctions on the Russian Federation and their economic and social
consequences
41. On 6 April 2018, the United States Treasury imposed additional sanctions on the
Russian Federation,43 designating 7 Russian so-called oligarchs and 12 companies they
owned or controlled, as well as 17 senior Russian government officials and a State-owned
Russian weapons trading company and its subsidiary, a Russian bank.44 Those sanctions
have extraterritorial effect, i.e. they may affect non-Americans conducting dealings with
sanctioned Russian parties. Owing to its magnitude in terms of the profile of the targets
(which encompass a wide range of economic sectors), the measure is widely believed to
jeopardize the prospects of Nord Stream 2, the €9.5 billion pipeline project that will
transport natural gas from the Russian Federation to Germany. Analysts believe that the
pipeline, capable of supplying energy to 26 million households, which is currently under
construction and scheduled to start deliveries in 2020, will face difficulty in obtaining
adequate financing from Western banks.45 The underlying logic is well known: “Because
the United States is the epicentre of global finance, international bankers [need] access to
U.S. capital markets to conduct international transactions”.46 Bankers believe that they
cannot afford the risk of being exposed to stiff penalties in the United States, or even forced
out of the American market. European Union companies engaged in the Nord Stream 2
project are being openly threatened with sanctions by the United States administration. A
spokesperson for the State Department is reported to have said: “We have been clear that
firms working in the Russian energy export pipeline sector are engaging in a line of
business that carries sanctions risk”.47
42. Another significant target of the new sanctions measures is RUSAL, a Russian
company which is the world’s largest aluminium producer outside China. By adding the
company to its “specially designated nationals” sanctions list, the United States has
effectively choked off its access to the international financial system.48 Despite the claim
that the Government of the United States was not targeting the hardworking people who
42 See www.theguardian.com/world/2014/mar/28/iranians-uk-banks-closed-accounts-claim-racial-
discrimination.
43 For an overview and analysis of the measures currently in force against the Russian Federation, see
A/HRC/36/44/Add.1.
44 See https://home.treasury.gov/news/featured-stories/treasury-designates-russian-oligarchs-officials-
and-entities-in-response-to.
45 See https://global.handelsblatt.com/politics/us-sanctions-russia-nord-stream-2-gas-companies-
909619.
46 See Daniel.W. Drezner, “Economic sanctions in theory and practice: how smart are they?” in
Coercion. The Power to Hurt in International Politics.
47 See https://foreignpolicy.com/2018/06/01/u-s-close-to-imposing-sanctions-on-european-companies-
in-russian-pipeline-project-nord-stream-two-germany-energy-gas-oil-putin/.
48 See www.reuters.com/article/us-usa-russia-sanctions-rusal-exclusive/exclusive-rusal-seeks-sanctions-
relief-via-board-changes-exports-at-risk-if-plan-fails-sources-idUSKBN1HY0ZG.
depend on RUSAL and its subsidiaries49 and the granting by the Department of Treasury
Office of Foreign Assets Control of limited “licences” allowing a short deadline for
Americans and persons of other nationalities to wind down their dealings with RUSAL, the
chilling economic impact of the sanctions has been catastrophic. The company has seen
customers stop buying its aluminium and creditors scramble to offload debt. Reuters
reported that RUSAL shares had lost almost 60 per cent of their value after the imposition
of sanctions, while aluminium and alumina prices had soared, hitting businesses around the
world, including in the United States. The sanctions are likely to adversely affect the daily
life of nearly 100,000 people employed by RUSAL across its international operations and
offices in several countries, not only in the Russian Federation, and tens of thousands that
depend on those jobs. It is to be stressed that those individuals bear no responsibility for the
ownership structure of the company for which they are working.
43. In the view of the Special Rapporteur, it is also questionable in relation to the
sanctions that Russian State officials have been blacklisted merely on the grounds of their
profession: to borrow the words of the Office of Foreign Assets Control - for being an
official of the Government of the Russian Federation, without any alleged or specified
involvement in unlawful conduct or activities being invoked by the sanctioning State. The
mere fact of being an official of the Government of the Russian Federation now seems to be
deemed sufficient to be included in a list of targeted individuals, which sets an ominous
precedent, and furthermore amounts to a blunt denial of human rights. The persons targeted
here are punished for the conduct of other persons, which corresponds to the concept of
guilt by association, which is widely rejected by modern international criminal law and
human rights law.50
D. An escalation in sanctions measures
44. Also of concern is the recent designation of sanctions by the Office of Foreign
Assets Control against Dena Airways, the company that operates the presidential aircraft
used by the President of the Islamic Republic of Iran, Hassan Rouhani, for official travel.51
It is to be feared that this measure, based on allegations of links with the Islamic
Revolutionary Guard Corps and reported military airlifts to the Syrian Arab Republic, could
lead airport service companies worldwide to decline to refuel or service the aircraft. In
February 2018, an aircraft used by the Iranian Foreign Minister, Javad Zarif, to attend the
Munich Security Conference, and registered with another blacklisted Iranian airline, Meraj
Airways, had to be refuelled by the German military after companies refused to provide
services to the aircraft, citing United States sanctions. It is also to be noted that similar
designations by the Office of Foreign Assets Control have previously targeted various
Iranian aviation companies, including Mahan Air, the largest airline by fleet size and
number of destinations in the country, which will drastically affect the ability of the airline
to continue operating its international flights. 52 Resorting to sanctions that affect the
normal, safe operation of civilian aircraft is a highly questionable practice that has the
potential to jeopardize air safety and the security of passengers. The Special Rapporteur is
also of the view that the designation of aircraft used for official flights made by figures of
the Iranian administration is totally unacceptable, owing to its direct effect, which is to
prevent diplomatic intercourse among nations. The measure also contradicts the generally
accepted principle of international law that State aircraft enjoy sovereign immunity.53 In
addition, it is clear that a head of State and his or her aircraft enjoy immunity and
49 See https://home.treasury.gov/news/press-releases/sm0365.
50 The trend towards blacklisting ministers and high- or even low-ranking government and
administration officials of sanctioned countries in an indiscriminate manner, merely on the grounds of
their position or appointment (that may have been unsolicited or result from popular election) is also a
matter of concern. 51 See www.treasury.gov/resource-center/sanctions/OFAC-Enforcement/Pages/20180524.aspx.
52 See, for example, https://home.treasury.gov/news/press-releases/sm0395.
53 See Roger O’Keefe, “Article 3” in The United Nations Convention on Jurisdictional Immunities of
States and their Property. A Commentary, Roger O’Keefe and Christian J. Tams, eds. (Oxford,
Oxford University Press, 2013).
inviolability under international law, as was stressed by the Secretary-General with respect
to the incident in 2013, in which the aircraft carrying the President of the Plurinational State
of Bolivia, Evo Morales, was not allowed by several European nations to overfly their
airspace.54
45. On a related note, measures such as those targeting a head of State in office after his
re-election,55 and high-level officials including the head of the central bank of a State,56
appear to be unprecedented moves, likely to escalate underlying disputes and inhibit the
prospects of a negotiated, peaceful settlement, since they affect the ability of the target
States simply to interact with the international community (or, in the case of the governor
of a central bank, his ability to interact with central banks of other States and the global
financial system at large).
46. On a related note, the Special Rapporteur pays tribute to the European Union which,
while having voted against the creation of his mandate, has respected the decision taken by
the Human Rights Council and cooperated effectively with the mandate holder. That sets an
example for others to follow.
Lessons learned on the practice of diplomacy in the context of the mandate
47. As an ambassador, the Special Rapporteur was one of the framers of Human Rights
Council resolutions 5/1 on institution-building of the Council and 5/2 on the code of
conduct for special procedure mandate holders. At that time, it was recognized that one of
the reasons for the demise of the Commission on Human Rights was that it had indulged
excessively in “naming and shaming” rather than engaging in dialogue with Member States
to advance human rights, where dialogue was still possible, and in providing advice and
technical assistance to improve their compliance with human rights obligations. That
explains why in both resolutions emphasis was put on interactive dialogue, non-
confrontational postures, non-politicization, a focus on the enhancement of the capacity of
States in that regard and the provision of technical assistance with the consent of the State
concerned. Seen from that perspective, the human rights mechanisms have the same goals
as independent human rights defenders and NGOs but can pursue them in a distinct and
complementary manner rather than acting as though they were another advocacy NGO.
That applies particularly to the mandate on the negative impact of unilateral coercive
measures on the enjoyment of human rights, where the issue lies mainly with the source
countries or groups of countries enforcing unilateral coercive measures directed most often,
although not always, at weaker and more vulnerable States. The source countries tend to be
powerful or rich countries and may not respond positively to public admonishment by the
Special Rapporteur. On the contrary, that may lead to a refusal to engage by source
countries, either because they consider that their national legislation takes precedence over
international law or because, contrary to the Charter of the United Nations and to the thrust
of adoption by majority voting on General Assembly and Human Rights Council
resolutions, they consider their action not to be contrary to international law. Scoring a
legal point publicly in such circumstances may negatively affect opportunities for
engagement with the source of sanctions, damaging the ability of the mandate holder to
work towards the gradual alleviation of the sufferings of innocent victims.
48. The Special Rapporteur believes that the United Nations human rights mechanisms,
including his mandate in particular, should be wary of following the same course of action
as the Commission on Human Rights in returning to systematic “naming and shaming”,
which scores political points but with scant effect on improving the status of human rights
for vulnerable people at the grass roots, who actually bear the brunt of unilateral coercive
measures. This mandate has therefore endeavoured to limit its work through public
54 See https://news.un.org/en/story/2013/07/444262.
55 In July 2017, the Office of Foreign Assets Control designated the President of Venezuela, Nicolas
Maduro Moros, pursuant to executive order No. 13692, in which sanctions against current or former
officials of the Government of Venezuela and others undermining democracy in Venezuela are
authorized. See www.treasury.gov/press-center/press-releases/Pages/sm0137.aspx.
56 See https://home.treasury.gov/news/press-releases/sm0385.
channels to cases of broad life-threatening situations, as provided for in article 10 of the
code of conduct. Whenever the Special Rapporteur has had a possibility to engage
constructively with a source or a target country or both, he has opted for quiet diplomacy
and for promoting consensus, as was the case for the lifting of sanctions on the Sudan. In
that instance, joint engagement with the parties through quiet diplomacy by the Independent
Expert on the Sudan and the Special Rapporteur achieved the desired objective. The
Sudanese authorities have in effect acknowledged the role of the two special procedure
mandate holders in the successful outcome of the process that led to the lifting of sanctions
from the Sudan. That approach has had the effect of improving the living conditions of the
most vulnerable groups in the Sudan.
49. The Special Rapporteur believes that this is the most productive way to engage with
his mandate and will continue to pursue the approach of building bridges rather than
fuelling tension between sources and targets of sanctions, to the best of his ability. That
approach is being pursued without letting up on the effort to promote awareness of the
undercurrent of a tremendous expansion of unilateral sanctions through setting up and
keeping a United Nations register of such sanctions. The attention of the mandate will also
remain focused on initiatives to introduce, reassert and expand on potential legal
instruments, tools or guidelines that can protect innocent victims from the adverse human
rights impact of sanctions. The preferred option for that purpose is to adhere to the channels
of the institutional framework of the United Nations rather than consider the mission of the
mandate accomplished by the issuance of a press communiqué.
A special representative on unilateral coercive measures
50. The Secretary-General of the United Nations should consider appointing one or
more special representatives on unilateral coercive measures, each in charge of a specific
country sanctions regime, as appropriate. That would be a very strong signal of the
engagement of the United Nations system with the ongoing efforts to limit and ultimately
abolish the use of unilateral coercive measures, as the only legitimate use of sanctions
arises from measures applied by the Security Council through Chapter VII of the Charter of
the United Nations. The mandate of a special representative on unilateral sanctions could
encompass advocacy for the respect of international law in matters related to unilateral
coercive measures, the negotiation of relief measures, alleviation of the most indiscriminate
measures and ultimately promotion of a consensus on a case-by-case basis for the removal
of unilateral sanctions. The Special Rapporteur is of the view that those issues extend
beyond his mandate, which is focused on the protection of human rights affected by
sanctions. The Special Rapporteur could interact with the special representative(s) on
sanctions, as appropriate.
VI. Conclusions and recommendations
51. The objective of the mandate is to promote the rule of law to the international
community, with a view to eliminating economic coercion as a tool of international
diplomacy. To that end, the Special Rapporteur notes with appreciation the efforts
made by the Islamic Republic of Iran and Qatar to challenge the legality of the use of
unilateral coercive measures through international adjudication. The Special
Rapporteur reiterates his suggestion to Member States to request the renewal of the
work of the International Law Commission on “extraterritorial jurisdiction” that was
initiated in 2006 (see A/61/10, annex E, and A/72/370, para. 58). The Commission
could be called upon to elaborate, inter alia, on the legal status and consequences of
sanctions involving the unlawful assertion of jurisdiction by a source State or group of
States over target States and a fortiori on third States. It is recalled in that respect
that, under article 17 of its statute, the Commission shall consider proposals and draft
multilateral conventions submitted by Member States, the principal organs of the
United Nations other than the General Assembly, specialized agencies or official
bodies established by intergovernmental agreement to encourage the progressive
development of international law and its codification, and transmitted to it for that
purpose by the Secretary-General.
52. The Special Rapporteur encourages the Secretary-General to consider
appointing one or more special representatives on unilateral coercive measures to
limit and ultimately abolish the use of unilateral coercive measures, ensuring that
sanctions are only applied through the Security Council in accordance with Chapter
VII of the Charter of the United Nations.
53. Finally, the Special Rapporteur requests that Member States begin
consultations on a draft declaration on unilateral coercive measures and the rule of
law, incorporating the elements proposed in the annex to the present report, to be
presented at an upcoming session of the General Assembly, to establish an
international consensus on the minimum human rights protections which must be
applied to the use of unilateral coercive measures.
Annex
Elements for a draft General Assembly declaration on unilateral coercive measures and the rule of law (updated)
A. Basic facts
1. Resolution 34/13 adopted by the Human Rights Council on 24 March 2017 “urged
all States to refrain from imposing unilateral coercive measures, also urged the removal of
such measures, as they are contrary to the Charter and norms and principles governing
peaceful relations among States at all levels, and it should be recalled that such measures
prevent the full realization of economic and social development of nations while also
affecting the full realization of human rights”.
2. Unilateral coercive measures have a tendency to remain in force irrespective of the
achievement of its purported objective.
3. Unilateral coercive measures involving extraterritorial application of domestic
measures are unlawful under international law.
4. Unilateral coercive measures in a number of cases entail severe adverse impacts on
the enjoyment of human rights of targeted populations and individuals, have often proven
to be inefficient, and are most likely to entail unintended effects in the form of adverse
human rights impacts on non-designated third parties.
B. Basic principles
5. Whilst targeted States have a responsibility to mitigate the adverse human rights
impact of unilateral sanctions imposed by source countries, the latter are also accountable
for any adverse effects on human rights occurring in target countries, even if such effects
are unintended, to the extent that “when an external party takes upon itself even partial
responsibility for the situation within a country (whether under Chapter VII of the Charter
or otherwise), it also unavoidably assumes a responsibility to do all within its powers to
protect the economic, social and cultural rights of the affected population” (Committee on
Economic, Social and Cultural Rights, General Comment No. 8 on the relationship between
economic sanctions and respect for economic, social and cultural rights, E/C.12/1997/8,
para. 13).
6. The inhabitants of a given country do not forfeit basic economic, social and cultural
rights by virtue of any determination that their leaders have violated norms of international
peace and security, as affirmed by the Committee on Economic, Social and Cultural Rights
in its general comment No. 8 on the relationship between economic sanctions and respect
for economic, social and cultural rights (See E/C.12/1997/8, para. 16).
7. In situations where unilateral coercive measures inflict undue sufferings/have an
egregious human rights impact, on the population of a targeted State, whatever legal motive
is invoked, they become clearly illegal and their source countries should be called to
account. This applies in particular to comprehensive embargoes coupled with secondary
sanctions aimed at the economic isolation of the target country, the effects of which may be
comparable with those of a wartime blockade.
8. Such call for the removal of unilateral coercive measures applies to comprehensive
measures as well as to targeted measures and to economic as well as to financial measures.
9. As a consequence, the basic principle should be that States and groups of States
should commit themselves to refraining from imposing unilateral coercive measures, as
well as remove such measures as are in force, and shall commit to using other means of
peaceful settlement of international disputes and differences.
10. The present Declaration is without prejudice to the procedural and substantive
requirements arising from the legal regime of countermeasures in the sense of the
International Law Commission’s Draft Articles on the Responsibility of States for
internationally wrongful acts.1
11. When comprehensive embargoes coupled with secondary sanctions aimed at the
economic isolation of the target country produce effects comparable with those of a
wartime blockade, the relevant rules of international humanitarian law applicable to
blockade, as well as the general requirements of necessity, proportionality and
discrimination and the prohibitions of starvation and collective punishment, should become
applicable mutatis mutandis.
C. Mitigation: Universally/Generally accepted rules of behaviour
12. Pending the total removal and termination of all existing unilateral coercive
measures and renunciation to their use, all efforts should be made to mitigate the adverse
effect of unilateral sanctions on human rights;
13. The transitional period preceding the total removal and termination of all existing
unilateral coercive measures and renunciation to their use should be shortened to the
greatest extent possible.
14. During the transitional period, the following universally accepted rules of behaviour
shall be asserted to mitigate the adverse impacts of unilateral sanctions:
(a) The parties considering the implementation of unilateral sanctions are under
an obligation to conduct a transparent human rights impact assessment (HRIA) of the
measures envisaged, before sanctions are applied, and to monitor on a regular basis, as long
as sanctions remain in force, the effects of implementation of the measures, including as
regards their adverse effects on human rights; there should be effective mechanisms in
place at national level to ensure that State authorities in charge of sanctions programmes
adjust or change the sanctions regime with a view to preventing human rights violations
identified through HRIAs;
HRIAs should allow for the effective public participation of the populations affected
by sanctions, and ensure that information gathered be made publicly (and widely) available.
NGOs and international organizations may also conduct HRIAs of sanctions
programmes, especially in cases where the State enacting sanctions fails to conduct such
assessment.
HRIAs should also be conducted in cases of sanctions imposed by groups of States
or regional organizations.
(b) The parties implementing unilateral sanctions are under an obligation to
ensure effective humanitarian exemptions mechanisms whose effectiveness can be gauged
by target country institutions, both governmental and non-governmental, for satisfying
basic human rights and essential humanitarian needs;
(c) There must be an end to the politicization of what was intended to be a purely
technical interbank international financial transfer mechanism, whose manipulation in the
form of selective exclusion is tantamount to re-introducing comprehensive sanctions on
targeted countries;
(d) Mechanisms to guarantee due process, and the availability of judicial review
for obtaining remedies and redress for unilateral coercive measures, should be available to:
1. Impacted groups whether the impact is intended or unintended (by
comprehensive or sectoral sanctions), and
1 A/56/10.
2. Individuals and legal persons and entities targeted (by targeted sanctions) but
found not to have been given a chance to benefit from due process.
The need for such mechanisms stems from a number of multilateral human rights
instruments such as the Universal Declaration of Human Rights (Articles 8 and 10), the
International Covenant on Civil and Political Rights (Articles 2 and 14 (1)), the Convention
on the Rights of the Child (Article 39), the International Convention on the Elimination of
All Forms of Racial Discrimination (Article 6) and the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment (Article 14). Where it is
found to prevail, the lack of effective mechanisms for the judicial review of unilateral
sanctions measures, and remedies and redress for victims as appropriate, should be
addressed without delay to the extent that such situation amounts to a denial of justice.
(e) The basic components of the requirement of due process in relation to
unilateral coercive measures, pending their total elimination, shall be the following:
(i) Mechanisms and procedures for judicial review of unilateral coercive
measures:
1. The factual and legal grounds for the measures have to be disclosed to the
concerned parties;
2. The availability of, and the mechanisms and procedures for, a right to
appeal/judicial review, should be made known to the targeted parties upon
notification to the concerned parties;
3. Such mechanisms and procedures should allow for a review of the
substantive factual and legal grounds for the unilateral coercive measures, in
accordance with international law and international humanitarian law, as well
as in compliance with internationally recognized procedural standards;
4. Such mechanisms and procedures should be in place and available at the
same level (either domestic or international [either regional organization or
the United Nations]) as the source of the unilateral coercive measures
concerned; in case of unavailability of procedures for remedies at the
domestic level or at the level of a group of countries imposing sanctions, the
targeted countries or persons should be entitled to seek remedies by the
Committee of the treaty body concerned, i.e. CESCR;
5. Such mechanisms and procedures should be of a judicial nature or at least,
for a transitional period, of the nature of an Ombudsperson or other quasi-
judicial mechanism.
(ii) Notification of the measures to the parties concerned as soon as practicable,
without affecting the effectiveness of the measures;
(iii) Time-bound limitation of the measures, and biannual monitoring and review;
(iv) Reversibility of the measures;
(v) Appropriate humanitarian exceptions;
(vi) A regular mechanism to monitor potential adverse impact and unintended
consequences of these measures; and
(vii) Availability of effective compensation/reparations (including financial) when
unwarranted adverse impacts on human rights have occurred.