03 Mar Unilateral and Extraterritorial Sanctions Symposium: Enforcing Human Rights – The Dilemma Between Sanctions’ Effectiveness and Their Legality
[ Dr Elvira Domínguez-Redondo is an Associate Professor of International Law at Middlesex University, London (UK).]
The topic of sanctions in general, and their use as an enforcement mechanism linked to human rights violations specifically, is deeply controversial. It encompasses antagonist positions that oscillate between those focusing on the paralyzing impact of an international machinery that requires inter-state cooperation to function, and those highlighting the overwhelming influence of some countries and organizations in the internal affairs of other states. These contradictions are reflected in erratic political and legal frameworks where, for instance, the UN General Assembly has both recommended unilateral sanctions, and also considered them illegal.
So-called unilateral sanctions or unilateral coercive measures, among other denominations, comprise a wide range of complex measures for which there is neither clear conceptual delimitation nor a centralised or de-centralised registry of available actions. The assessment of human rights violations with a causal link to specific unilateral coercion measures remains anecdotal, although the reports of both UN Special Rapporteurs referred to below as well as several chapters in the Research Handbook provide many relevant examples. As Ioannis Prezas acknowledges (chapter 22, 387) there is often an assumption that unilateral coercive measures have an adverse impact on the enjoyment of human rights by the populations of the targeted States.
In this context, the book under review sheds much needed light on the normalisation of unilateral coercive measures in international relations despite (or perhaps because) of the limited applicable legal framework and its political divisiveness. In relation to international human rights, the relevant chapters of the book deliver unique insights on current political debates, legal lacunas and potential remedies. However, it remains anchored on this negative impact on human rights’ assumption that overlooks other viewpoints. This is particularly salient since the objective of some unilateral coercive measures is precisely to compel better human rights compliance based on another commonly held assumption: that human rights violations are fuelled by a lack of State and non-state actors’ accountability, which results in immunity from punishment.
Under the heading “Impact on Human Rights”, Part IV of the Research Handbook captures several of the debates underpinning the ambiguous relation between human rights and unilateral coercive measures, often caused or aggravated by lack of clarity over their conceptual contours. Pierre Emmanuel Dupont opens this section (chapter 21, Unilateral sanctions as unilateral coercive measures: discussing coercion at the UN level) by tracing the origins of the debate concerning the scope of the prohibition of the threat or use of armed force as inclusive of unilateral coercive measures. In practice, States appear to have settled for a narrow interpretation of Article 2(4) of the UN Charter that assimilates the expression use of force to “use of armed/military force”. In the intergovernmental political arena, the debate has moved to broader questions of the legality of these measures, independently from their categorization as use of force. The conclusions over their legality tend to reflect a stereotypical representation of different approaches to international law pursued by countries from the “Global North” or “Global South”. Emmanuel Dupont’s chapter – as well as others in the book tackling the practice of specific countries – demonstrate that, as it is often the case, the North-South divide is more rhetorical than fact-based, and definitely more nuanced than formulaic depictions suggest. Countries from the Global South opposed in principle to unilateral coercive measures, appear willing to use them – sometimes disguised under different denominations – defying preconceived conceptions about the “North” and the “South”.
Following a well-established pattern affecting an ever-growing number of topics, the issue of the legality of unilateral coercive measures has been accommodated within the international human rights machinery. Analyses of human rights violations associated with sanctions by the Security Council and beyond, has resulted in the creation of two United Nations special procedures: the Special Rapporteur on human rights and fundamental freedoms while countering terrorism and the Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights. Emmanuel Dupont’s chapter addresses the contribution of the latter in providing conceptual clarity to measures constituting unilateral coercive measures. He defends the importance of the conceptual framework articulated by the Special Rapporteur, synthetizing the criteria set out in UN resolutions as better suited than others based on their purpose or their characterization in national or international legal instruments.. The Special Rapporteur could also become central to the perceived need to create a UN global register of unilateral coercive measures that would facilitate the assessment of their impact on the enjoyment of human rights.
Elaborating further on recommendations made by the Special Rapporteur, Ioannis Prezas (Chapter 22: From targeted states to affected populations: exploring accountability for the negative impact of comprehensive unilateral sanctions on human rights) delves into the possible domestic and international human rights mechanisms that individuals affected negatively by comprehensive sanctions could use to pursue accountability of the ‘punishing’ State or organisation imposing sanctions with adverse effect on their human rights. This chapter could be of assistance to those seeking to take advantage of the international human rights machinery in a manner that may not be obvious, expanding the range of limited tools available for those struggling with the impact of comprehensive sanctions. To the range of regional and universal treaty-bodies mentioned in the chapter, the author could have added the much more accessible communications procedures handled by the Special Rapporteur on unilateral coercive measures who has, on multiple occasions, raised individual cases of potential violation of human rights derived from unilateral coercive measures before the European Union, Cabo Verde, the United States of America, Saudi Arabia, India and the Bank “Novo Banco S.A.” The Special Rapporteur has mostly acted in conjunction with other mandate-holders of special procedures, especially the Special Rapporteur on the right to health, but also with the mandate-holder on human rights while countering terrorism, torture, migration and food, among others, as shown in the communication databases of special procedures.
Anton Moiseienko’s chapter (23, Due process and unilateral targeted sanctions) explores the range of mechanisms available to contest unilateral measures with undesirable human rights implications, focusing on targeted sanctions imposed by the European Union, the United States and the United Kingdom. International lawyers are used to reminders of the role of politics in framing international norms. Mosieienko’s analysis provides interesting, often neglected, insight into how geo-political interests also play a remarkable role in shaping domestic policy and legislation. His analysis of the origin, scope, conceptual contours and underpinning reasoning justifying the imposition of unilateral sanctions in the United States, the European Union and the United Kingdom, demonstrates that these measures are intentionally ambiguous, especially in determining their interaction with criminal justice measures available at domestic level. The decision-making process is divorced from conventional law enforcement mechanisms, which presents unusual obstacles to challenge them through standard legal logic and channels.
The international bodies available to contest multilateral sanctions (see reference to them below) are easier to identify and better known by those familiar with the United Nations system. Conversely, the myriad of actions included under the umbrella ‘unilateral coercive sanctions’ are difficult to recognize, making Moiseienko’s analysis a welcome guide for practitioners and persons directly affected by targeted sanctions. Both Prezas and Moiseienko’s contributions highlight the paradoxical situation created by rules that make it easier to challenge sanctions affecting specific individuals rather than those affecting millions. It reflects how human rights conceptions and mechanisms were conceived to redress breaches of individual rights over gross and systematic violations.
Muriel Ubéda-Saillard(chapter 24, The right to be protected from the criminal enforcement of extraterritorial sanctions: lessons learned from the Huawei case) illustrates some of the most flagrant dangers of unilateral coercive measures for their interference with domestic affairs of other states as well as individual rights through the lenses of the Meng Wanzhou extradition case. Rather than an isolated event this is the most reported case of its genre, with others having faced and/or continuing to face similar charges around the globe. Ms Meng, chief financial officer of Huawei, was detained by Canadian authorities in December 2018 at the request of the United States. She was accused of violating US sanctions against Iran employing a subsidiary business organisation. Ubéda-Saillard’s chapter was completed before the final resolution of the case in September 2021, when Meng was released following an agreement between China and the United States that involved dropping the extradition request against her.
Similar to other chapters of this section, Ubéda-Saillard’s contribution is a valuable guide for practitioners seeking to understand the scope and limitations of legal channels available before foreign courts to protect individuals who find themselves sanctioned for violations of law with extraterritorial effect. Focusing on extradition and human rights normative frameworks applicable to Ms Meng’s case, Ubéda-Saillard, like Moiseienko, addresses the broader national interest and political coordinates that impact an individual when she becomes a symbol of the hostility between the United States and China. These political elements ensure a normative ambiguity that generates unpredictable interpretations of the rules and the instrumentalization of the law to promote specific values rather than to limit abuses of power.
Clara Portela’s analysis (chapter 25) of sanctions aimed at individuals in relation to targeted activities rather than targeted countries or locations closes this final section of the Research Handbook. After summarising the milestone events resulting in targeted sanctions regimes and the progressive move towards their ‘horizontalization’, Portela portrays a scenario of increased specialisation of targeted sanctions detached from geography and nationality. Canada, the United Kingdom and the European Union have replicated the US practice, especially in sanctions related to human rights violations, using the 2016 “Global Magnitsky Human Rights Accountability Act” as a model. Horizontal sanctions by the United States originally targeting terrorist pursuits have in subsequent years been extended to other jurisdictions and applied to other activities such as chemical attacks, cyberattacks and human rights violations.
In her analysis of the intentional and politically motivated ambiguity characterizing the legal regime governing horizontal sanctions, Portela echoes claims in previous chapters in relation to other unilateral coercive measures. While pursuing human rights objectives and other goals (such as the fight against corruption), these measures are designed to be vague and sufficiently imprecise, making them extremely difficult to challenge, and are often contrary to guiding requirements of legal certainty associated with the rule of law and the human rights standards they seek to uphold.
Some of the tensions between human rights and unilateral coercive measures, opacities about their legal framework and erratic positions of States stem from myriad issues placed under the same umbrella. Independent of their objective, unilateral coercive measures targeting a State may have an unintended negative impact on the human rights of the targeted State’s population. They may also negatively impact the human rights of targeted individuals. In addition, human rights constitute a limit to the measures that can be imposed legally against another State if they are countermeasures or retorsion (as emphasized by Emmanuel Dupont, chapter 21 and Ioannis Prezas, chapter 22). Finally, unilateral coercive measures may also be designed with the intended effect of compelling compliance with human rights standards.
The book addresses the first two questions better, with a limited evaluation of unilateral coercive measures as human rights enforcement mechanisms. Except for the description of the origin of specific legislation by Portela and a passing statement in Prezas’ conclusions, it does not address the assumptions made concerning the main dilemmas fueling the debate between those advocating for stronger human rights enforcement against those arguing that strong enforcement mechanisms, such as unilateral coercive measures, weaken rather than protect human rights on the ground.
The absence or limited efficacy of enforcement mechanisms are prominent among the plethora of flaws often associated with the international human rights regime. Eric Posner argued that the design of non-enforceable international human rights norms and their hidden cost is at the core of the human rights project’s failure (see here and here). In her 2017 article “International Law in the Post-Human Rights Era”, Ingrid Wuerth took this idea further, suggesting that the costs involved in maintaining and enforcing international human rights is such, that international law and international institutions, including the United Nations, should narrowly focus on core legal rules to protect and prevent threats to peace and security rather than human rights. This disputed line of argumentation illustrates the widespread tendency to project presumptions that underpin economic theory onto law by assuming that pursuing one objective always involves a cost (responding to Wuerth, see Frédéric Mégret, esp. pp. 114 and 122). Adoption of this cost-benefit premise, disputed in the realm of its own discipline, to reach conclusions over international law matters is problematic. Yet, it is undeniable that, despite efforts to mainstream the human rights agenda or to adopt a “human rights approach” to tackle other international concerns, mainly encompassing security and development, real contradictions persist between human rights goals and others. I believe these contradictions are at the heart of ingrained tensions surrounding the compatibility of unilateral coercive sanctions with human rights objectives.
The introduction of targeted sanctions by the Security Council in 1992 exemplifies the point. The design and implementation of “intelligent sanctions” to avoid devastating humanitarian consequences of comprehensive sanctions has become progressively sophisticated, especially in combating financial support for terrorism. The ethical, theoretical, and practical benefits of this move may appear obvious (see Portela, chapter 25). However, imposition of sanctions against individuals and non-state actors, rather than states, negatively impacts well-established human rights (see also here) and other international law rules. Responding to the criticisms, the Security Council undertook several reforms, including the establishment, in 2006, of a Focal Point for De-Listing and the Office of the Ombudsperson to the ISIL (Da’esh) and Al-Qaida Sanctions Committee. These measures continue to fall short of complying with international human rights standards, an issue repeatedly raised by the Special Rapporteur on human rights and fundamental freedoms while countering terrorism. The mere existence of this mandate, confirmed by the contents of all its reports, corroborates the conflicting nature of the security and human rights agendas. Unilateral sanctions, understood as those applied in the absence of or beyond a resolution of the Security Council, have also been severely criticized for their negative impact on human rights, as well reported by the book under review, leading to the creation of a specific UN Special Rapporteur to monitor this issue worldwide in 2014
To the chagrin of many human rights lawyers, attempts to use legal chastisement to impose compliance has repeatedly demonstrated that sanctions do work, but not as expected. They cause damage, but damage barely linked to the positive outcomes intended. Rather scholars point to their potential to aggravate the human rights situation they were responding to in the first place.
In brief, the international human rights agenda is often criticized on the basis of conflicting positions. On one hand, there is the accusation of non-enforcement. On the other, states and international organizations are blamed for using human rights as a neo-colonial instrument that perpetuates structural inequality among nations, often through imposition of sanctions. Sanctions are perceived, at best, as an arm-twisting exercise by powerful countries that interfere in the affairs of other states for their own benefit; at worst, as senseless tools that result in deepening the suffering of innocent populations when their scope targets the State as a whole, or as violating basic human rights – in particular the rights associated with due process, when they target specific individuals or groups of individuals. Both stances seem irreconcilable at first sight. Either the enforcement tools provided by international law to enforce human rights are toothless or they have a significant impact. The lack of conceptual and legal clarity as well as absence of data about sanctions and their effects obscures conclusions. The Research Handbook is a necessary contribution toward filling this gap.