Statement by Ms. Alena Douhan Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rightsAt the meeting of NAM countries

18.09.2020

Honourable Chair, Excellencies, Ladies and Gentlemen,

Before I start I would like to thank all countries of Non-Aligned Movement for supporting the mandate of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights during the whole period of its existence and to thank the Permanent mission of Azerbaijan, being presently the NAM chair for their efforts to make this meeting possible.

I would also like to use the chance and to pay tribute to my predecessor, who had to start dealing with such an uneasy task in confusing and conflicting surroundings.

Excellencies, it is a privilege to be able to share with you today my vision of the functioning and development of the mandate in the coming years. Most substantial aspects of it are accumulated in the Report, which will be presented at the ongoing session of the HRC on September 21.

Some other aspects – in particular on the impact of unilateral sanctions on human rights in the course of the COVID-19 emergency – will be presented at the 75^th session of the UN General Assembly in mid-October. Both reports are already available online.

 

Excellencies,

My mandate has started at the uneasy time when the World community faces an enormous expansion in the scope, grounds, purposes, targets, means, mechanisms and extraterritoriality of unilateral sanctions. Moreover, the negative impact of unilateral sanctions has been exacerbated severely by the COVID-19 pandemic. Both the UN Secretary General and the UN High Commissioner have repeatedly urged states to cooperate and to withdraw, review or minimize all unilateral sanctions undermining the ability of targeted states to respond effectively to the pandemic crisis and to save lives.

The UN High Commissioner, in her opening speech last Monday, referred to the enormous humanitarian impact of unilateral sanctions over the population of Syria and the Occupied Palestinian Territory and called for Israel to withdraw the blockade.

I shall admit that my mandate is one which causes numerous disputes among states and enjoys very little understanding from the side of the general public. Apparently I am very concerned that states do rather often ignore their obligation to act in accordance with the rule of law and human rights standards when applying unilateral sanctions for some political purposes. Humanitarian concerns are hardly taken into account despite the generally recognised poverty, food and health insecurity, high chances of the violation of the right to life in some of sanctioned countries, by transferring the fault for not guaranteeing these rights to the governments of the latter.

The main purpose of my mandate thus is not to make a political choice but rather to ensure that human rights standards are not violated by any unilateral measures and that humanitarian concerns are always taken into account. I strongly belive that it could only be done upon the detailed and thorough assessment of the legality of every act and fact of introduction of unilateral sanctions.

 

Excellencies, let me make a short overview of the current situation with unilateral sanctions.

The UN Charter empowers the UN Security Council as the only organ able to take any enforcement measures in response to the use of force, threat of force or an act of agression. The UN Charter does not provide any possibility for application of unilateral sanctions for the same or other purposes. The authorization of the UN Security Council is necessary, as it is re-affirmed in art. 53 of the Charter as regards the functioning of regional organizations. Therefore, no "common good" provided for in the UN Charter can be used as a ground for introduction of unilateral sanctions by states or regional organizations.

The illegal nature of unilateral coercive measures has been repeatedly affirmed in numerous resolutions of the Human Rights Council and General Assembly. Both the Council and the Assembly have also affirmed that people should not be deprived of their own means of subsistence, especially as concerns food and medicine, and that the extraterritorial application of law, affecting international humanitarian and human rights law, is inadmissible.

At the same time the world community is facing an absolute absence of consensus about nearly everything that relates to unilateral sanctions: including their notion, characteristics, legal grounds and humanitarian impact, that make one of the main challenges to modern international law, especially in the sphere of human rights protection.

Sanctioning states insist on the legality of all unilateral sanctions and sufficiency of existing exemption mechanisms. Sanctioned states on the other hand refer to their illegality, enormous humanitarian costs, non-transparency, confusing application, over-compliance, extraterritoriality and insufficiency of humanitarian exemptions. Some states insist that the humanitarian impact is so high that it may be equated to one of the crimes against humanity.

 

Excellencies, I strongly believe that the problem shall not be viewed as only black and white. In accordance with international law not every unfriendly act or means of applying pressure by a State should or can be qualified as a UCM indeed. In particular, States are free to choose their partners in trade, economic or other types of international relations. International law provides also for the possibility of proportionate countermeasures in response to the serious breaches of collective obligations under peremptory norms of general international law. However, as stated by both the ICJ and International Law Commission, a violation giving rise to collective countermeasures shall be of extraordinary character, like acts of aggression, genocide or a mass gross violation of human rights shocking the conscience of mankind. Such countermeasures shall also be proportionate and can in no way violate either peremptory norms of international law or any fundamental human rights.

International law also provides for the possibility of a state to hold foreign nationals accountable for crimes committed beyond the territory under their jurisdiction or control but only if there are legal grounds for the exercise of universal jurisdiction, in particular as concerns international crimes, crimes against humanity and war crimes.

It basically means that not every unilateral measure or sanctions can be qualified as a UCM but the overwhelming majority of them can as far as they are very far from falling under the criteria above. There is a clear need to assess the legal grounds of every act of unilateral sanctions from the point of international law and as regards their humanitarian effect. I welcome thus efforts taken by Qatar to bring disputes as regards application of sanctions to it to the attention of the competent universal bodies, including the International Court of Justice, WTO, World Postal Union, and Committee on prohibition of discrimination.

 

Excellencies, unilateral sanctions have changed today so much, that many existing forms were not envisaged even 5 years ago. A clear example of this is so-called "sectoral" sanctions, which apply non-selectively to individuals and organizations acting in a particular sphere of the economy without any identifiable reason or violation from their side. One can cite here in particular, sanctions in the financial, energy, defense, railway, metals and mining sectors of the Russian Federation, or the gold, oil and financial sectors of Venezuela and many others. Economic and sectoral sanctions target the population as a whole or affect people involved in a specific sphere of the economy, their families, employees, again with no clear mechanism for protection of their rights.

Another example is the "Caesar Syria Civilian Protection Act", which was signed into the law by the President of the United States on 20 December 2019, which raises a number of concerns, including the legality of such unilateral sanctions mandating prohibition of engaging in reconstruction and rehabilitation activities in Syria.

Excellencies, the expansion of sanctions regimes means that more and more people are directly or indirectly affected by them. Quite often even directly targeted individuals are not informed about sanctions against them, so they are not able to protect their rights.

The Global Magnitsky act as well as a broad number of similar documents impose targeted sanctions over individuals accused in the commission of specific crimes, which usually cannot be qualified as international crimes with the possibility of universal jurisdiction. These sanctions are implemented by executive rather than judicial bodies without any possibility for judicial protection or redress.

Moreover, unilateral sanctions have started to be applied to international civil servants for doing their job, inter alia, in the sphere of human rights. One example is the application of sanctions to the judges and officials of the International Criminal Court as well as their family members.

Another tendency refers to the expanding number and increasing impact of secondary sanctions through prohibitions and punishments of people including their own nationals for failure to implement sanctions regimes. This results in the impossibility to transfer money from one country into another, long periods of consideration of transfer requests by banks; and the impossibility to buy or deliver necessary technical or medical equipment, medicine, food and other essential goods.

As a result the humanitarian impact of unilateral sanctions is enormously increasing due to overcompliance by private actors especially in view of the expanding extraterritoriality. People have become scared to fall under secondary sanctions: to be listed for doing their jobs, or to face civil or criminal penalties of up to US$ 1,000,000, imprisonment for up to 20 years or both upon conviction.

Even cyber space and cyber means are involved in the unilateral sanctions sphere today: Alleged cyberattacks or other offensive uses of information and communication technologies can be considered as grounds for introducing sanctions including visa and entrance bans or freezing assets. Software may be prevented to be bought if it originates at least partially in sanctioning states, including software for medical equipment, flight planning and many other spheres. Services and software cannot be used for commercial Internet services, connectivity etc. or even for non-commercial activities such as those carried out using Zoom or other educational platforms.

 

Excellencies, the protection of human rights is a generally recognized priority of the United Nations organization and one of the fundamental principles of international public law. Today states, civil society and individuals are reporting on the expanding scope of human rights affected by unilateral sanctions. It includes now all categories of human rights. The application of and strengthening of unilateral sanctions in the course of the pandemic despite repeated calls and protests of the UN bodies, demonstrated that the right to food, right to health, right to education, access to information, economic and social rights and even the right to life become all the more vulnerable.

I would align myself here with the UN Secretary General's position expressed in 2000 that "the existence of a sanctions regime almost inevitably transforms an entire society for the worse" leading to enormous humanitarian costs. It is remarkable that the European Court of Justice has considered more than 360 so-called sanctions' cases and in a number of them it annulled the EU listings because human rights standards have not been observed.

Bearing in mind the purpose of the mandate to look for mechanisms which may provide humanitarian relief, I welcome every step that helps to minimize human suffering, including delivery of humanitarian aid by every state and every NGO, every effort to easy humanitarian exemption mechanisms. At the same time it has been repeatedly reported and announced also in my statements that unilateral sanctions stay complex, non-transparent and confusing, humanitarian exemptions are costly and complicated, and could in some cases be qualified as nearly non-existent.

 

Excellencies, today the very notion, grounds, purposes, targets, subjects, mechanisms and means of unilateral sanctions are drastically changing and expanding in the absence of consensus about their application and relevant legal grounds. The global COVID-19 crisis has revealed the depth of the problem and demonstrated clearly that UCM may be deadly, especially for the most vulnerable.

The world community should undoubtedly have mechanisms to react to mass gross violations of human rights and to punish perpetrators. States are free to decide on their foreign policy and free to apply countermeasures in accordance with international law. However, this should not result in the arbitrary application of unilateral sanctions.

The enormous speed of development of sanctions regimes testifies to the necessity to restore the status of the United Nations as the centralized system to control that any enforcement measure is taken in accordance with the Charter of the United Nations and that the human rights of those who are affected are observed.

Given the above-mentioned developments and challenges the world community must take proportionate responses to guarantee that human rights are observed. The current situation clearly demonstrates that the tasks and spheres for the fulfilment of the mandate have expanded accordingly.

As a result I plan to focus in my work on the following aspects of the problem:

• impact of unilateral sanctions on human rights in the course of emergency;
• notion of unilateral coercive measures and assessment of legality of various forms of unilateral sanctions;
• targets of unilateral sanctions and their extraterritorial application;
• impact of unilateral sanctions on the enjoyment of human rights in general and specific human rights;
• mechanisms of human rights protection, responsibility and redress;
• specifics of unilateral sanctions in the cyber area.

Excellences, There is thus a clear need to work together to reinterpret existing international legal norms to adapt them to the new challenges in accordance with the principles of legality, legitimacy, necessity and proportionality with due account of the international obligations of States, especially in the sphere of human rights law, refugee law and humanitarian law.

As an academic I can only say that the best conclusions may be made and recommendations done upon the assessment of detailed and relevant information on the notions, assessment, challenges and problems from the broad scope of countries. I would like to use the chance thus to thank all Governments, which responded to my questionnaire on various aspects of application of UCM in the course of emergency, which were used for the annual report to the UN General Assembly and can be found at my web-page.

As a part of my work for 2021, I finalize preparing the questionnaire on various aspects of the notion and targets of unilateral sanctions, which will be forwarded to all states and placed at the webpage of the mandate after the 75^th session of the UN General Assembly. I hope very much to receive responses from your respected Governments.

Excellencies, due to the contemporary challenges caused by the expanding practice of application of unilateral sanctions, I believe it is also important to deepen and expand existing functions of the mandate through accomplishing additionally the following tasks:

First, to establish networking cooperation with the UN organs, focused on specific aspects of the application of sanctions, regional actors and civil society. Unfortunately every UN organ is focused on their specific topic: assessment of unilateral economic sanctions, measures taken to struggle against international terrorism, UN reform and strengthening the role of the organization, the status of refugees, and usually does not assess humanitarian aspects of these sanctions. Coordination and cooperation with them shall be an integral part of the work of the mandate.

Regional actors are important partners in the process of human rights protection in the spheres concerned. ECOWAS in particular announced the introduction of sanctions against Mali, the European Union is reforming its sanctioning process, and as I mentioned, the European Court of Justice has considered more than 360 sanctions' cases and in a number of them it annulled the EU listings because human rights standards have not been observed;

Civil society partners are upon my view very important partners for cooperation. Humanitarian NGOs have not only provided useful information as concerns the humanitarian impact of unilateral sanctions in the COVID-19 crisis from the field, they also reported on the enormous problems they faced in buying and delivering humanitarian aid in the sanctioned states.

Secondly, it is very important now to communicate with direct and indirect victims of unilateral sanctions and civil society actors concerning individual cases, general patterns and trends of human rights violations, and the content of draft or existing legislation, policy or practice.

Today the number of people affected directly and indirectly by targeted sanctions is expanding, and it is very important in my view to consider individual cases. One case has already been considered within the term of my office. It provides the possibility to bring attention of the sanctioning Governments to the specific facts of violation of human rights. The same refers to the information received from individual states concerning the specific facts of human rights violation.

Similarly a broad number of sanctions' acts adopted today by various states are taken without due concern for their legal grounds, human rights and humanitarian standards. It is not possible to assess all of them simultaneously but some communications have already been sent regarding the Global Magnitsky act and other relevant aspects. The Caesar act is one which will be in the focus of my attention as the next step. Naturally it is a long-run activity, which could only be done in a consistent and progressive way.

Thirdly, the absence of transparency is one of the serious problems today. States, companies and individuals often are not informed about being listed. They may have no idea about the content of sanctions they are under, cannot either exercise or protect their rights. Humanitarian organizations are facing problems with getting licenses for delivery of humanitarian aid. They complain that the process is non-transparent, expensive and time-consuming. Due to the complicated and confusing legislation and insufficient online coverage and systematization it is often possible to get any relevant information only on a paid basis from specific companies, which lays an additional financial burden on already sanctioned companies. I believe thus it is necessary to establish, under the auspices of the mandate, a sanctions reference tool as an integrated system of individual sanctions without any prejudice to the legality of unilateral measures for information purposes in order to increase the level of transparency.

All the above facts as well as my activity within the last half a year have been formulated in the proposals concerning the draft resolution on the further functioning of the mandate, which has been kindly forwarded to all NAM states by the chair.

 

Excellencies, there is an enormous number of other points of significance, which can and shall be discussed as concerns the functioning of the mandate and what I hope to implement in future.

Right now I want to draw your particular attention to the fact that the functioning of the UCM mandate is not about black and white. The mandate is about the need to protect human rights based on the principles of legality, legitimacy, proportionality and the rule of law, in full compliance with obligations arising from the Charter of the United Nations, international humanitarian law and international human rights law, as well as other international obligations.

Human rights could be protected effectively only when states are working together in the spirit of consensus, solidarity and cooperation. No pursuit of "common good" can justify the violation of fundamental human rights, including the right to life, the right to health and the right to food, as this became especially evident in the course of the COVID-19 pandemic, especially in respect of those whose rights unilateral sanctions seek to promote.

I strongly believe that due to the enormous negative humanitarian effect of sanctions in general and unilateral sanctions in particular, a precautionary principle shall be used, providing for the preliminary assessment of the possible negative humanitarian effect before any decision on unilateral sanctions is taken even when valid legal grounds exist.

Naturally, no one can be able to do all the work alone. As well, the humanitarian impact of unilateral sanctions won't be minimized and unilateral sanctions won't be withdrawn immediately or because of a single action. Any solution can only be found on the basis of consensus. Therefore I hope very much that you will support my initiatives and we will be able to move forwards to guarantee that human rights of those who are affected by sanctions will be protected properly.

 

I am always open for cooperation.

I thank you for your attention.

And I am open for any questions you may have.