03 Mar Unilateral and Extraterritorial Sanctions Symposium: The Human Rights Dimension of Unilateral Sanctions
[Eirik Bjorge is a Professor at the University of Bristol.]
Sanctions are not an invention of the United Nations system: they predate the United Nations and have a long pedigree in the history of inter-State relations. This long pedigree is buttressed by extensive State practice which supports the unilateral right to impose such sanctions. It would therefore be incorrect to assert that only international organs such as the Security Council can properly impose such sanctions. Given the decentralized character of constitutional authority and the lack of central organs of authority in international law, it is necessarily the case, still under the rules of present-day international law, that “each State establishes for itself its legal situation vis-à-vis other States” (Air Service Agreement (1978) 18 RIAA 417, 443, para 81) and acts on that basis. The general position in international law is, in other words, that unilateral sanctions are permitted. But, as is reflected e.g. in common article 1(2) of the UN Human Rights Covenants, general international law prohibits sanctions in the extreme circumstance that a unilateral measure deprives a people of its own means of subsistence.
A number of commentators and States have nevertheless taken the view that only international organs such as the Security Council may properly impose sanctions. Those who have set themselves against the idea that States can lawfully impose unilateral sanctions have tended to adopt the terminology “unilateral coercive measures” for those sanctions that are not imposed by the Security Council. Thus the UN Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights has observed that unilateral coercive measures are “measures other than those taken by the Security Council under article 41 of the Charter of the United Nations”.
The four chapters in Chralotte Beaucillon’s fine volume that relate to unilateral sanctions and human rights make for rewarding reading. This short contribution will deal (not without some deviations occasioned by the engaging chapters themselves) with four of themes that are treated in or otherwise arise from those chapters. The first is the issue of unilateral sanctions and certain cardinal principles of international law. The second is the question of the effectiveness of the diplomatic protests that a number of States periodically make against unilateral sanctions. Third, the present contribution turns to the extent to which derogations to sanctions regimes are effective. Fourth, and finally, the focus shifts to targeted sanctions and the effectiveness of the curial or other institutional scrutiny of decisions to add individuals to sanctions lists. If there is a common thread that runs through the present contribution, it is the theme of effectiveness, as it appears in different guises in the topics treated in the four chapters in question.
Unilateral Sanctions and Cardinal Principles of International Law
In her chapter, “The right to be protected from the criminal enforcement of extraterritorial sanctions”, Muriel Ubéda-Saillard sets out her stall as to unilateral sanctions and human rights. She quotes from the view put forward by the United States, which in connection with the draft resolution entitled “Human Rights and Unilateral Coercive Measures” observed in 2016 that:
States bore responsibility to protect and promote the human rights and fundamental freedoms of their citizens. The text of the draft resolution challenged the sovereign right of States to conduct their economic relations freely and to protect legitimate national interests, including by taking actions in response to national security concerns.
Such a policy, in Ubéda-Saillard’s view, “is obviously likely to violate cardinal principles of international law that structure inter-state relations (sovereign equality of states, non-interferences in internal affairs, etc) but it can also affect the fundamental rights of individuals” (chapter 24, 425). There are two reasons why it is difficult to accept her view as regards cardinal principles of international law.
First, as to the first principle to which she refers, the sovereign equality of States, there is in international law a high bar to be met before interference by one State rises to the level of intervention in the affairs (and thus a breach of the sovereignty) of another. As senior commentators have observed,
to constitute intervention the interference must be forcible or dictatorial, or otherwise coercive, in effect depriving the state intervened against of control over the matter in question. Interference pure and simple is not intervention. (R Jennings & A Watts, Oppenheim’s International Law (9th edn, 1992) 432)
Although for example measures such as suspending exports or a boycott of products are intended to persuade the target State to pursue, or cease, a particular course of conduct, they are examples of pressure that “falls short of being dictatorial and does not amount to intervention” (Oppenheim, 434). It is therefore correct to conclude, as Sarah Cleveland has done, that customary international law operates to allow “States to use economic coercion for a wide range of purposes” and that nothing in customary international law “appears to bar the use of economic coercion” (at 53).
Second, it is of particular importance in the present context that the proposition that there is nothing in customary international law that bars economic coercion applies a fortiori to matters which are not considered to be solely within the State’s domestic jurisdiction (“domaine réservé”). In order to be inconsistent with the principle of non-intervention, conduct must not only be coercive: it must, on the authority of the International Court of Justice in the Nicaragua judgment of 1986, also concern “matters in which each State is permitted, by the principle of State sovereignty, to decide freely” (para 205). Human rights are examples of matters that fall outside the State’s domaine réservé . The principle of State sovereignty does not allow States to decide freely on matters relating to fundamental human rights. For that reason, unilateral sanctions imposed with a view to inducing a State to cease breaches of human rights do not concern matters in which the State is permitted, by the principle of State sovereignty, freely to decide. That leads us to another, not unrelated, question: the question of the effectiveness of the periodically made protests against unilateral sanctions made by States within the framework of the collective organ of the United Nations.
Mere Periodical and Ineffectual ‘Paper’ Protests?
The Second Committee of the United Nations General Assembly voted, on 23 November 2021, on a draft resolution relating to “Unilateral economic measures as a means of political and economic coercion against developing countries”. The text of the resolution urged the international community to
eliminate the use of unilateral coercive economic measures against developing countries that are not authorised by relevant organs of the UN or are inconsistent with the principles of international law.
The summary provided by the United Nations press service is telling as to the positions taken by States on the two opposite ends of the spectrum, and also evidences that human rights have taken centre stage in discussions relating to unilateral sanctions:
the representative of the United States said sanctions are an effective, legitimate and peaceful tool for countering threats to peace and security, used against those who threaten human rights, undermine democracy or engage in criminal activities. In contrast, the representative of Iran said unilateral coercive measures aiming to destroy a State’s economy constitute an act of war, passing the red line of terrorism and reaching crimes against humanity.
Every other year since 1991 a similar resolution has been adopted. Although the trend is not rectilinear, there has been a general decline in the number of States voting in favour of the biennial resolution. This year 119 in favour and 7 against with 46 States abstaining. The States voting against were Australia, Canada, Israel, Sweden, Ukraine, the United Kingdom, and the United States. Seven States voting against the resolution is a record—and might be indicative of an increasing pace of change in the level of support the resolution has in the international community.
But, quite apart from the exact number of States voting for and against, there is a more fundamental aspect to this biennially recorded vote in the collective organ of the United Nations: how effective is this continuance of diplomatic protests against unilateral sanctions?
In Minquiers and Ecrehos, where the International Court of Justice held that the sovereignty over the islets and rocks of the Minquiers and Ecrehous group belonged to the United Kingdom, France’s numerous recorded protests were found to be no match for the United Kingdom’s effective occupation of the territories in question.Judge Levi Carneiro in his individual opinion amplified this aspect of the judgment and warned States against making protests which were not backed up by action. He observed that “mere periodical and ineffectual ‘paper’ protests”(at 107) would be less effective, in preserving rights or keeping a position open, than a taking of a position which was backed up by State action (ibid). Commenting on the judgment, Sir Gerald Fitzmaurice similarly observed that, if other means were available, then “a mere continuance of diplomatic (i.e. paper) protests will not serve indefinitely to keep the position open” (“The law and procedure of the International Court of Justice, 1951–54” (1953) 30 British Yearbook of International Law 1, 29). In fact such ineffectual protests might, on the contrary, be interpreted “as a constructive abandonment by the State of its rights—a tacit acquiescence in the situation” (ibid). Could the same be said to apply in relation to the periodical paper protests in the General Assembly against unilateral sanctions? Would it be unkind to say that they are long on cant, but correspondingly short on action?
At all events, such periodically made paper protests are, it seems, even more ineffectual when their habitual recitation is not only not backed up by State action but positively gainsaid by it. Dupont is correct to assert that a number of the States that oppose the use of unilateral coercive measures as a matter of principle (he mentions e.g. China and Russia) nevertheless are not above having recourse to them when it suits their book (chapter 21, 372). He lays out the evidence that several of the States that oppose unilateral sanctions themselves engage in them, through (inter alia) the tightening of custom controls, economic blockages, suspension of aid, and travel bans (chapter 21, 373). A striking recent example are the sanctions imposed by China on (inter alia) a leading London barristers’ chambers, Essex Court Chambers, on the basis that four self-employed members of those chambers had given legal advice (unwelcome in China’s eyes) relating to human rights breaches in connection with China’s treatment of the Uyghur population in the Xinjiang Uyghur Autonomous Region. This could be thought to be a surprising move by a State that has been pleased to deprecate “double standards” in the field of unilateral sanctions and declared in 2016 that:
good faith implementation of generally recognized principles and rules of international law excludes the practice of double standards or imposition by some States of their will on other States, and consider[ed] that imposition of unilateral coercive measures not based on international law, also known as ‘unilateral sanctions’, is an example of such practice. (Declaration of the Russian Federation and the People’s Republic of China on the Promotion of International Law, 25 June 2016, para 6)
The next topic concerns humanitarian derogations to sanctions: how effective are they?
In his chapter “From targeted states to affected populations: exploring accountability for the negative impact of comprehensive unilateral sanctions on human rights”, Ioannis Prezas makes his focus what he terms the ineffectiveness of humanitarian derogations (chapter 22, 388). He observes that sanction regimes that include provisions which allow licensing of goods or services intended for humanitarian purposes tend to suffer from complex, time-consuming, and onerous regulatory frameworks for granting licences (ibid). He convincingly argues that private economic actors have a tendency to overcomply with extraterritorial sanctions. Banks, pharmaceutical, and insurance companies for example are reluctant to engage in transactions, including with humanitarian actors, for fear that severe secondary sanctions will affect them for even small-scale violations (ibid).
It bears noting that Prezas makes another valuable point when he observes, under the heading “the Causality Conundrum”, that conceiving of extraterritorial human rights obligations and jurisdiction in terms of considerations of causality simply “moves the problem to an even more complex level of analysis” (chapter 22, 309). Comprehensive economic sanctions raise the question of the existence of a causal link between the sanctions and the putative violation of specific human rights of identified groups or individuals (ibid). As he ably explains, in relation to sanctions in States such as Syria and Venezuela, it is difficult to extricate the homemade misery from that caused by extraterritorial sanctions: while, on the one hand, sanctions clearly contribute to the aggravation of an already precarious human rights situation, he says, “one cannot claim that sanctions have caused the current humanitarian crisis in Syria or that they are responsible for the collapse of the Venezuelan economy”(ibid 399). Against that background, it may, as he comes close to implying, well be that it is the difficulties relating to causality that has led to the now widespread and vague usage “negative impact on the enjoyment of rights” rather than the traditional usage human rights “violations”. Whether one speaks of negative impact or violations, in the case specifically of targeted sanctions, the question of review of the decision to add a person to a sanctions list inevitably comes to the fore.
Scrutiny of Decisions to Add Individuals to Sanctions Lists
In Anton Moiseienko’s chapter “Due process and unilateral targeted sanctions” the focus is on the resort by States to targeted sanctions and the adverse effects that they have on the persons concerned. Such sanctions range from interference with rights to property to a considerable negative reputational impact. One of Moiseienko’s main interests is how sanctions can be successfully contested by having them subjected to judicial scrutiny. He ably describes the contours of the US, the EU, and the UK sanctions systems. One system that naturally falls outside of his ambit (as it it not a judicial system of scrutiny) is the mechanism of the UN Ombudsperson to the ISIL (Da’esh) and Al-Qaida Sanctions Committee. This independent and impartial office reviews request from individuals, groups, undertakings, and entities which seek to be removed from the Security Council’s sanctions list. The Ombudsperson gathers information and interacts with the petitioner, relevant States, and organizations as regards the request. The Ombudsperson will then present to the Security Council a detailed report and a reasoned recommendation as to the request for delisting. The Security Council may follow or it may overturn the recommendation.
The office of the Ombudsperson is not without its critics, including the prominent former office-holders themselves, who have most notably pointed out the office’s “lack of institutional independence”. It remains the case, however, that as was reported in 2021 the office has since its establishment in 2010 “reviewed and concluded 92 cases, recommending the delisting of some 59 people and 28 entities”; the Security Council “has never blocked a recommendation for delisting, which requires a unanimous decision by the council to reverse” (ibid). Doubts as to the independence of the office may well have put forward; but the record is impressive: not once has the Security Council elected to block a recommendation by the Ombudsperson for delisting.
It may well come to pass, in the near future, that a regional or international human rights body, such as the European Court of Human Rights or the UN Human Rights Committee, is presented foursquare with a case in which it is argued that the Ombudsperson mechanism in its present and revised iteration does not comply with the strictures of fair trial guarantees. The focus in such a proceeding will no doubt be, as suggested by the European Court in Al-Dulimi v Switzerland, on the extent to which the Ombudsperson mechanism is equal to the task of ensuring “that the listing is not arbitrary” (para. 147). In making its determination as to whether fair trial guarantees are met, the human rights body in question could do worse than to take into account the actual record of effectiveness in avoiding arbitrariness of the office of the Ombudsperson: the striking fact that the Security Council has followed every single one of its recommendations as to delisting.
Human rights have come to play a vital role in connection with our understanding of unilateral sanctions. Human rights are used (by those who advocate the lawfulness and utility of unilateral sanctions) as a reason for States to engage in unilateral sanctions. Human rights are at the same time used (by those who deprecate the lawfulness and utility of unilateral sanctions) as a reason why the imposition of unilateral sanctions must cease. There may be doubts relating to the effectiveness of both positions. There is no doubt, however, that the four chapters under review make a useful and welcome contribution to our understanding of unilateral sanctions and human rights.