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High Commissioner to Human Rights Council: Sanctions can create severe and undue suffering for individuals who have neither perpetrated crimes nor otherwise borne responsibility for improper conduct

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Council Continues Interactive Dialogue with the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, Deputy Prime Minister of Eswatini Addresses the Council

The Human Rights Council this morning held a panel discussion on the issue of unilateral coercive measures with the theme “Unilateral sanctions: jurisdiction and extraterritoriality”, hearing the High Commissioner for Human Rights say that sanctions could create severe and undue suffering for individuals who had neither perpetrated crimes nor otherwise bore responsibility for improper conduct.

Michelle Bachelet, United Nations High Commissioner for Human Rights, said that when sanctions targeted an entire country, or addressed entire economic sectors, it was the most vulnerable people in that country who were likely to be the worst harmed. In March 2020, less than two weeks after COVID-19 was declared a global pandemic, Ms. Bachelet said she had called for sanctions that could affect the health sector to be eased or suspended. This was vital to ensure that millions of people in countries being targeted by sanctions regimes could access essential medical equipment and treatment, as continued sanctions risked causing more suffering and death and wider contagion around the world. The High Commissioner called on sanctioning countries to reassess and critically re-evaluate their use of unilateral coercive measures to avoid human rights-adverse impacts.

Alena Douhan, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, said that the world community faced today a large expansion of the scope, grounds, purposes, targets, means and mechanisms of unilateral sanctions. The negative humanitarian effects of sanctions were exacerbated enormously by their extraterritorial application, the expanding use of secondary sanctions, and civil and criminal penalties against those who cooperated with States, companies and individuals targeted by primary sanctions.

Tom Ruys, Professor of International Law at Ghent University, said that the last 20 years had seen a veritable explosion of unilateral sanctions, with important repercussions for the enjoyment of human rights around the globe. He was particularly worried about the increasing resort to extraterritorial sanctions as, for instance, the United States regarded extraterritoriality as an effective force multiplier to increase the impact of unilateral sanctions. This raised fundamental legal concerns.

Pouria Askari, Associate Professor of International Law at Allameh Tabataba’i University and Secretary General of the Iranian Association for United Nations Studies, said that the principle of non-intervention in internal affairs was an extra test for assessing the legitimacy of unilateral sanctions. Over-compliance with secondary sanctions could result in the unlawful intervention in domestic affairs of third States. Most of the current unilateral coercive measures, especially those taken by the United States, were mainly part of the sanctioning State policy to force other States into taking a particular action.

Joy Gordon, Ignacio Ellacuria Chair in Social Ethics, Philosophy Department and School of Law Loyola University Chicago, said that she had been conducting research and publishing for many years on the humanitarian impact of sanctions, as well as the topic of extraterritoriality, and more recently on overcompliance and the chilling effect of unilateral sanctions. She had primarily looked at these last two areas in the context of sanctions by the United States, which had arguably been the most extensive and the most indiscriminately damaging.

Zhang Wanhong, Professor of Jurisprudence at Wuhan University School of Law, said that the international community generally did not recognise the legitimacy of unilateral coercive measures. Specifying the effect of sanctions by the United States on Venezuela, Iran and Cuba, he said that the United States and other countries had abused their hegemonic power, arbitrarily taken unilateral sanctions as punishment against innocent populations, and particularly devastated vulnerable groups. He called on the Human Rights Council and the Special Rapporteur to keep advocating for the lift of all unilateral sanctions.

Speaking in the discussion were Azerbaijan on behalf of the Non-Aligned Movement, European Union, Venezuela, Iran, Cuba, Belarus, Syria, Malaysia, Qatar, China, Indonesia, Zimbabwe, Bolivia, South Africa and Niger.

The following non-governmental organizations also spoke: Centre for China and Globalization Limited, World Evangelical Alliance, Organization for Defending Victims of Violence, Sikh Human Rights Group, Beijing Crafts Council, and Charitable Institute for Protecting Social Victims.

The Council then continued its interactive dialogue with Alena Douhan, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, which started on Wednesday, 15 September. A summary can be found here.

Speakers urgently called for the immediate and complete elimination of unilateral coercive measures as they were strongly concerned about the continuous and systematic violation of the human rights of people by such measures, despite the short-term licenses for humanitarian goods. Some speakers said that unilateral coercive measures impeded the sustainable development of States and, thus, practically excluded the possibility of the collective achievement of the Sustainable Development Goals by 2030.

Speaking in the interactive dialogue were Syria, United Arab Emirate State of Palestine, Armenia, Indonesia, Egypt, Iraq, South Africa, Venezuela, Cuba, Zimbabwe, Russian Federation, Belarus, Sri Lanka, Saudi Arabia, Malaysia, Namibia, China, Fiji, Libya, Iran, Pakistan, Syria, Sudan, Botswana, Malawi, Bahrain, Cambodia and Algeria.

The following non-governmental organizations took the floor: Organization for Defending Victims of Violence, Charitable Institute for Protecting Social Victims, China NGO Network for International Exchanges, International Association of Democratic Lawyers, Fundación Latinoamericana por los Derechos Humanos y el Desarrollo Social, World Peace Council, United Nations Watch, and International Human Rights Association of American Minorities.

At the end of the meeting, Themba Nhlanganiso Masuku, Deputy Prime Minister of Eswatini, addressed the Council.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s forty-eighth regular session can be found here.

The Council will resume its work at 3 p.m. this afternoon, to conclude the interactive dialogue with the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights. It will then hear the presentation of the report of the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, followed by an interactive discussion. Time allowing, the Council will also hear the presentation of the annual report of the Expert Mechanism on the right to development as well as its report on operationalising the right to development in achieving the Sustainable Development Goals.

Biennial Panel Discussion on Unilateral Coercive Measures and Human Rights

Keynote Statements

MICHELLE BACHELET, United Nations High Commissioner for Human Rights, said that an increasing number of States, individually and collectively, resorted to sanctions of various forms, which could align – or depart from – the values promoted and protected by the United Nations Charter. Sanctions could create severe and undue suffering for individuals who had neither perpetrated crimes nor otherwise bore responsibility for improper conduct. When sanctions targeted an entire country, or addressed entire economic sectors, it was the most vulnerable people in that country who were likely to be the worst harmed. In March 2020, less than two weeks after COVID-19 was declared a global pandemic, Ms. Bachelet said she had called for sanctions that could affect the health sector to be eased or suspended. This was vital to ensure that millions of people in countries being targeted by sanctions regimes could access essential medical equipment and treatment, as continued sanctions risked causing more suffering and death and wider contagion around the world.

On human rights violations, the High Commissioner said that sanctions regimes that constrained the actions of third parties were also problematic. She also mentioned persisting challenges in the context of United Nations counter-terrorism sanctions, as despite significant reforms, they could often generate negative human rights impacts, including disruption of humanitarian action and infringement of the rights of those affected by travel bans, asset freezing or confiscation of property without sufficient basis or possibilities for review. The High Commissioner for Human Rights concluded by calling on sanctioning countries, in light of their own experience and that of others, to reassess and critically re-evaluate their use of unilateral coercive measures to avoid human rights-adverse impacts. She also called on the authorities of countries subjected to sanctions to provide transparent information, accept offers of necessary humanitarian assistance, and prioritise the needs and rights of vulnerable people.

ALENA DOUHAN, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, said that the world community faced today a large expansion of the scope, grounds, purposes, targets, means and mechanisms of unilateral sanctions. The negative humanitarian effects of sanctions were exacerbated enormously by their extraterritorial application, the expanding use of secondary sanctions, and civil and criminal penalties against those who cooperated with States, companies and individuals targeted by primary sanctions. The United States’ Caesar Act was a clear example of this extraterritorial application, threatening to sanction third countries, companies or individuals dealing with the Government of Syria and its Central Bank, among others. This prevented reconstruction projects in the country already severely affected by military conflict. She further explained that in view of enormous penalties that banks and private companies potentially faced, they preferred to adopt zero-risk policies that resulted in growing over-compliance.

Humanitarian organizations had reported the complexity and inconsistency of humanitarian exemptions. The use of intermediaries by non-governmental organizations could halve the money they initially allocated for humanitarian purposes. Furthermore, de-risking by banks increasingly drove humanitarian actors to use informal payment channels or cash, creating security risks, making the money harder to trace, and increasing the risk of extortion and misuse or diversion of funds to finance terrorism, undermining one of the central aims of sanctions. Unilateral sanctions, together with secondary sanctions, civil and criminal penalties and over-compliance, affected all people of targeted societies, nationals and companies of other States, civil society and humanitarian organizations. They prevented the delivery of even essential goods like food, medicine, medical equipment, spare parts and equipment for maintaining critical infrastructure, and made even narrowly formulated humanitarian exemptions ineffective.

Statements by Panellists

TOM RUYS, Professor of International Law at Ghent University, said that the last 20 years had seen a veritable explosion of unilateral sanctions, with important repercussions for the enjoyment of human rights around the globe. He was particularly worried about the increasing resort to extraterritorial sanctions as, for instance, the United States regarded extraterritoriality as an effective force multiplier to increase the impact of unilateral sanctions. This raised fundamental legal concerns. Extraterritorial sanctions often went beyond what the international law of jurisdiction permitted. Another example was the application of United States sanctions to any transaction conducted in United States dollars. Given its dominant place in global trade, the weaponization of the United States dollar had a far-reaching impact around the globe, and merited the specific attention – and disapproval – of the Human Rights Council. Given the crippling effect on the economy of the primary sanctions target, it went without saying that secondary sanctions could have adverse humanitarian consequences and could negatively affect human rights, including the right to development. The Human Rights Council had an important role to play in exposing and countering the gravest excesses of such sanctions policies.

POURIA ASKARI, Associate Professor of International Law at Allameh Tabataba’i University and Secretary General of the Iranian Association for United Nations Studies, said that the principle of non-intervention in internal affairs was an extra test for assessing the legitimacy of unilateral sanctions. Over-compliance with secondary sanctions could result in the unlawful intervention in domestic affairs of third States. Most of the current unilateral coercive measures, especially those taken by the United States, were mainly part of the sanctioning State policy to force other States into taking a particular action. Unilateral coercive measures were not usually justified in terms of legal countermeasures by the injured State but instead, as a form of foreign policy to achieve national and international interests. Therefore, for him, the main question in this discussion related to the legality of the policy of coercion and the permissibility of pushing other States to behave in a way that the sanctioning State recognised as normal. Unilateral coercive measures were against the enjoyment of human rights because they prevented the sanctioned States from exercising their right to decide, of their own free will, their own political, economic and social systeMs. Countries under sanctions like Iran were subject to the most comprehensive form of sanction programmes imposed by the United States.

JOY GORDON, Ignacio Ellacuria Chair in Social Ethics, Philosophy Department and School of Law Loyola University Chicago, said that she had been conducting research and publishing for many years on the humanitarian impact of sanctions, as well as the topic of extraterritoriality, and more recently on overcompliance and the chilling effect of unilateral sanctions. She had primarily looked at these last two areas in the context of sanctions by the United States, which, despite the language of targeted sanctions, had arguably been the most extensive and the most indiscriminately damaging to populations as a whole, and to vulnerable populations in particular. This happened in part by means that were direct, and in part by means that were indirect. On direct means, although sanctions by the United States may be initiated unilaterally, in many ways they functioned as global measures, which occurred, for example, when measures by the United States blocked target countries from access to global institutions or to certain goods produced only in the United States. On indirect means, when government officials with key roles in a country’s economy were blacklisted, or nationalised industries such as oil or shipping, the impact would almost certainly be sectoral, indiscriminate, and broad-based in its impact on the population as a whole.

ZHANG WANHONG, Professor of Jurisprudence at Wuhan University School of Law, said that the international community generally did not recognise the legitimacy of unilateral coercive measures as they violated the purposes and principles of the United Nations Charter and also deteriorated the independence of national laws. Some countries ignored these norms and wantonly imposed unilateral sanctions on other countries such as economic blockades, trade and financial sanctions. These sanctions also sparked economic, development and humanitarian crises in targeted countries under the pandemic and violated peoples’ basic rights to subsistence and development. In particular, the rights of vulnerable groups such as women, children, persons with disabilities and elderly had been affected disproportionately. Specifying the effect of sanctions by the United States on Venezuela, Iran and Cuba, he said that the United States and other countries had abused their hegemonic power, arbitrarily taken unilateral sanctions as punishment against innocent populations, and particularly devastated vulnerable groups. He called on the Human Rights Council and the Special Rapporteur to keep advocating for the lift of all unilateral sanctions.

Discussion

Speakers stated that in the context of international relations, the punitive nature of coercive measures contradicted the principle of sovereign equality between States as it was considered a direct interference in the internal affairs of other countries by imposing measures that resulted in direct violations of human rights. As illustrated by the panellists, the adverse effects of unilateral coercive measures on the enjoyment of human rights and their direct consequences on the humanitarian situation was concerning. The extraterritorial application of laws and regulations imposing unilateral coercive measures, and the increase in the overcompliance with them was a matter of deep concern. The political nature of unilateral coercive measures made the issue of accountability for the violations committed under them a complex matter, but this should not prevent the creation of mechanisms for reparation to victims and compensation for violations committed against them, and to prevent the recurrence of these violations.

Some speakers defended sanctions as they were not punitive in nature but were intended to bring about a change in policy or activity by targeting countries, as well as entities and individuals, responsible for the malign behaviour at stake. Sanctions were a foreign and security policy tool used to uphold respect for human rights and the principles of international law, promote international peace and security, prevent conflicts, and support democracy. They were not an end in themselves but formed part of a wider comprehensive political strategy involving for instance political dialogue and other instruments. Additionally, they were reversible, gradual and proportionate to the objectives they sought to achieve.

Some speakers said that the economic, commercial and financial blockade of the United States against Cuba qualified as the most severe and prolonged system of unilateral sanctions that had been applied against any country. It constituted a flagrant violation of the rights of the Cuban people and the main obstacle to their economic and social development. On Qatar, speakers underlined the illegality of unilateral coercive measures on that country on multiple grounds in various branches of international law. One of the blatant examples in which this illegality appeared was the case of extraterritoriality, where countries of origin exceeded their legal jurisdiction in violation of the principle of territoriality, the basic principle according to which States were exercising their sovereign jurisdiction, and without any other agreed basis for extending the jurisdiction beyond their territories. Referring to Venezuela, speakers said that the Council and the General Assembly had recognised that unilateral coercive measures had catastrophic consequences, generating serious long-term and far-reaching economic, social and humanitarian problems, and reiterated their calls on States to cease their application. They rejected in the strongest and most categorical manner, the enactment of illegal legislation with extraterritorial effects, which entailed serious interference in the internal affairs of States and violated their sovereignty.

Concluding Remarks:

TOM RUYS, Professor of International Law at Ghent University, stated the need for a refinement of the current approaches to criticism of unilateral coercive measures as States were in principle free to regulate their own enterprises and apply the principle of nationality. He further explained that they only needed to enter the capital of these companies to exercise this competence. On the other hand, he mentioned that the targeted States should cooperate more to prevent the enforcement of court decisions to impose fines on the grounds that unilateral coercive measures had not been complied with. He concluded by stating that the complexity of the current legislation must be reduced so that humanitarian organizations did not suffer indirectly from the effects of unilateral coercive measures.

POURIA ASKARI, Associate Professor of International Law at Allameh Tabataba’i University and Secretary General of the Iranian Association for United Nations Studies, assured that the majority of the countries of the world opposed unilateral coercive measures, and that a consensus on the illegality of these measures therefore existed. Referring to the COVID19 pandemic, he stated that it had shown that cooperation between States was indispensable. In this context, unilateral coercive measures ran counter to the universal direction that was currently observed. He concluded by saying that the extraterritorial application of national laws in the form of unilateral coercive measures undermined the very existence of international law.

JOY GORDON, Ignacio Ellacuria Chair in Social Ethics, Philosophy Department and School of Law Loyola University Chicago, highlighted the consequences of certain decisions taken by the United States Department of the Treasury. Their effects were devastating for Global South countries in particular, who lost access to the banking system while trying to comply with due diligence obligations. Ultimately, it was the most vulnerable populations who suffered the most from financial exclusion – women, rural people and people working in the informal sector, in particular. Many non-profit organizations were suffering from the impossibility of accessing financial transactions.

ZHANG WANHONG, Professor of Jurisprudence at Wuhan University School of Law, recommended that more attention was paid to the needs of those indirectly affected by the effects of unilateral coercive measures, as many non-profit organizations were also suffering from the impossibility to engage in financial transactions.

ALENA DOUHAN, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, said that the application of sanctions gave rise to a sense of fear among companies, especially banks, which were tempted to choose zero risk policies, which she called an excess of zeal. For this reason, some States passed laws to protect their businesses. The Special Rapporteur stressed that it was not fear that should prevail but the rule of law.

Interactive Dialogue with the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights

The interactive dialogue with Alena Douhan, Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, started on Wednesday, 15 September and a summary can be found here.

Discussion

Speakers regretted that the United States and other Western countries resorted to unilateral coercive measures. These countries had even used such measures to suppress legitimate governments, inciting revolutions and subverting regimes of other countries, seriously violating the Charter of the United Nations and the fundamental principle of sovereign equality. Some speakers urgently called for the immediate and complete elimination of unilateral coercive measures as they were strongly concerned about the continuous and systematic violation of the human rights of peoples by unilateral coercive measures, despite the short-term licenses for humanitarian goods. Some speakers recalled that, according to the definition given in article 7 of the Rome Statute, financially blocking a state was a crime against humanity. Coercive practices used during armed conflict had been regulated at the international level over time in order to protect the civilian population, they stated. They, however, regretted that the regulation of non-forcible coercion outside armed conflict; in other words, economic coercion; was still in an embryonic state.

Some speakers welcomed such discussions, which served to raise global awareness of the problem of unilateral coercive measures and fully shared the main message of all statements that these measures were an illegal instrument under international law and had a negative impact on human rights in the affected countries. Unilateral coercive measures impeded the sustainable development of States and, thus, practically excluded the possibility of the collective achievement of the Sustainable Development Goals by 2030. In this regard, they stated that these measures were not only affecting States, but also international organizations and the private sector involved in efforts to support the countries of the world in the implementation of the Sustainable Development Goals. It was important that the International Labour Organization respond primarily to this phenomenon, since unilateral coercive measures most directly affected the rights of working people, which the International Labour Organization sought to uphold and protect.

Statement by the Deputy Prime Minister of Eswatini

THEMBA NHLANGANISO MASUKU, Deputy Prime Minister of Eswatini,spoked about the unprecedented civil unrest that Eswatini had faced at the end of June, beginning of July. Although the situation had been stabilised and peace and security had been somewhat restored, there remained some unresolved issues in some parts where the situation remained tense. This had been one of the most challenging situations faced by Eswatini, coupled with the COVID-19 effects. Some citizens had lost their lives during the unrest. The main focus of the Government for now was to first restore peace and normalise the situation. Eswatini was taking legal and political advice on the corrective measures to ensure that the victims of violations experienced during the unrest had access to effective remedy. There was an ongoing independent investigation that was being conducted by the Commission on Human Rights.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2021/09/mme-bachelet-demande-aux-pays-concernes-de-reevaluer-leur