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Unilateral Economic Sanctions, International Law, and Human Rights

  • Idriss Jazairy

Abstract

As part of the roundtable “Economic Sanctions and Their Consequences,” this essay examines unilateral coercive measures. These types of sanctions are applied outside the scope of Chapter VII of the United Nations Charter, and were developed and refined in the West in the context of the Cold War. Yet the eventual collapse of the Berlin Wall did not herald the demise of unilateral sanctions; much to the contrary. While there are no incontrovertible data on the extent of these measures, one can safely say that they target in some way a full quarter of humanity. In addition to being a major attack on the principle of self-determination, unilateral measures not only adversely affect the rights to international trade and to navigation but also the basic human rights of innocent civilians. The current deterioration of the situation, with the mutation of embargoes into blockades and impositions on third parties, is a threat to peace that needs to be upgraded in strategic concern.

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I am grateful to Pierre-Emmanuel Dupont of the Public International Law Advisory Group for his valuable advice in connection with this essay.

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NOTES

1 For a collection of essays on selected contemporary aspects of transnational coercion, see Greenhill, Kelly M. and Krause, Peter, eds., Coercion: The Power to Hurt in International Politics (Oxford: Oxford University Press, 2018).

2 See Davis, Lance E. and Engerman, Stanley L., Naval Blockades in Peace and War: An Economic History since 1750 (Cambridge, U.K.: Cambridge University Press, 2006); and Greenwood, Christopher, “Historical Development and Legal Basis,” in Fleck, Dieter, ed., The Handbook of International Humanitarian Law, 2nd ed. (Oxford: Oxford University Press, 2008), p. 26.

3 On the prohibition of starvation of the civilian population, see Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Article 54, “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977,” July 12, 1978, ihl-databases.icrc.org/ihl/INTRO/470; and Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Article 14, “Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II),” July 12, 1978, ihl-databases.icrc.org/ihl/INTRO/475?OpenDocument. On the obligation to permit free passage of consignments of essential foodstuffs and medical supplies, see Article 23, “Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Convention),” 1st para, www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf.

4 Such is the case, for example, when an embargo effectively becomes a blockade. An embargo can be defined as a regime of restriction, or prohibition, of trade with a given country, including through bans on imports and/or exports. A blockade, by contrast, is a belligerent operation undertaken to prevent vessels or aircraft of all nations, enemy and neutral, from entering or exiting specified ports, airports, or coastal areas of an enemy nation.

5 A study by Lance Davis and Stanley Engerman found that “the country or countries imposing sanctions have almost always been both larger and more economically and militarily powerful than the target country …. In the 115 cases of economic sanctions deployed since 1914 that were investigated by [Gary Clyde] Hufbauer, [Jeffrey] Schott, and [Kimberly Ann] Elliott [in their work Economic Sanctions Reconsidered: History and Current Policy] (1990, p. 63) the GNP of the sender (or principal initiator) of sanctions was nearly always over ten times that of the target and in the majority of cases more than 50 times greater. Where ‘modest policy changes’ were at stake, the sender's economy was on average more than 200 times larger than the target's economy, and where ‘destabilization’ of the government was the goal, the average ratio exceeded 400” (p. 191). Davis, Lance and Engerman, Stanley, “History Lessons: Sanctions: Neither War Nor Peace,” Journal of Economic Perspectives 17, no. 2 (Spring 2003), pp. 187–97.

6 Donald J. Trump, Twitter post, March 2, 2018, 5:50 a.m., https://twitter.com/realdonaldtrump/status/969525362580484098?lang=en.

7 See United Nations General Assembly, “Report of the Independent Expert on the Promotion of a Democratic and Equitable International Order on His Mission to the Bolivarian Republic of Venezuela and Ecuador,” A/HRC/39/47/Add.1, September 10–28, 2018, undocs.org/A/HRC/39/47/ADD.1.

8 Article 24, Charter of the United Nations, June 26, 1945, www.un.org/en/sections/un-charter/chapter-v/index.html.

9 Resolution 73/8 was adopted by a vote of 189 states in favor and 2 against (United States and Israel). The resolution is the latest of a long series of UN General Assembly resolutions adopted annually since 1992 condemning the U.S. embargo on Cuba. United Nations General Assembly, Resolution 73/8, “Necessity of Ending the Economic, Commercial and Financial Embargo Imposed by the United States of America against Cuba,” November 1, 2018, undocs.org/en/A/RES/73/8.

10 Ibid., preamble.

11 Ibid., operative para. 2.

12 United Nations General Assembly, Resolution 73/8, “Necessity of Ending the Economic, Commercial and Financial Embargo Imposed by the United States of America against Cuba,” November 1, 2018, p.1, undocs.org/A/RES/69/5.

13 Ibid.

14 See, for example, Marc Bossuyt, “The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights” (working paper E/CN.4/Sub.2/2000/33, Commission on Human Rights, June 21, 2000).

15 Jones, Lee, Societies under Siege: Exploring How International Economic Sanctions (Do Not) Work (Oxford: Oxford University Press, 2015), p. 184.

16 Ali Fathollah-Nejad, quoted in ibid., p. 185.

17 See Council of the European Union, “Syria: EU Extends Sanctions against the Regime by One Year,” May 28, 2018, www.consilium.europa.eu/en/press/press-releases/2018/05/28/syria-eu-extends-sanctions-against-the-regime-by-one-year/.

18 See United Nations General Assembly, “Research-Based Progress Report of the Human Rights Council Advisory Committee Containing Recommendations on Mechanisms to Assess the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights and to Promote Accountability,” A/HRC/28/74, February 10, 2015, undocs.org/A/HRC/28/74.

19 See United Nations General Assembly, “Human Rights and Unilateral Coercive Measures,” A/70/345, August 28, 2015, paras. 18–23, undocs.org/A/70/345.

20 See ibid., paras. 38–44.

21 Ibid., paras. 45–46.

22 Ibid., paras. 34–37.

23 UN Human Rights Committee, CCPR General Comment No. 12: Article 1 (Right to Self-Determination), The Right to Self-Determination of Peoples, March 13, 1984, para. 1.

24 United Nations, Article 1, “International Covenant on Civil and Political Rights,” March 29, 1967; and United Nations, Article 1, “International Covenant on Economic, Social and Cultural Rights,” December 16, 1966.

25 Saul, Ben, Kinley, David, and Mowbray, Jacqueline, The International Covenant on Economic, Social and Cultural Rights: Commentary, Cases, and Materials (Oxford: Oxford University Press, 2014), p. 118. See also United Nations General Assembly, “Human Rights and Unilateral Coercive Measures,” A/70/345, paras. 25–30.

26 Saul, Kinley, and Mowbray, International Covenant on Economic, Social and Cultural Rights, p. 107.

27 United Nations General Assembly, Resolution 34/13, “Human Rights and Unilateral Coercive Measures,” A/HRC/RES/34/13, March 24, 2017, p. 2, undocs.org/A/HRC/RES/34/13. See also Mohamad, Rahmat, “Unilateral Sanctions in International Law: A Quest for Legality,” in Marossi, Ali Z. and Bassett, Marisa R., eds., Economic Sanctions under International Law: Unilateralism, Multilateralism, Legitimacy, and Consequences (Hague: T. M. C. Asser, 2015), pp. 7181.

28 See United Nations General Assembly, “Human Rights and Unilateral Coercive Measures,” A/70/345, paras. 31–33.

29 Mike Pompeo, “After the Deal: A New Iran Strategy” (remarks, Heritage Foundation, Washington, D.C., May 21, 2018), www.state.gov/secretary/remarks/2018/05/282301.htm.

30 See “Background Briefing on President Trump's Decision to Withdraw from the JCPOA” (special briefing, Washington, D.C., May 8, 2018), www.state.gov/r/pa/prs/ps/2018/05/281959.htm.

31 See, for example, Ed Pilkington, “Mike Pompeo Insists US Sanctions Will Not Hurt Iranian People,” Guardian, November 4, 2018, www.theguardian.com/world/2018/nov/04/pompeo-trump-us-sanctions-oil-iran-iranian-people.

32 United Nations General Assembly, Idriss Jazairy, “Report of the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights,” A/HRC/36/44, September 11–29, 2017, app. 2, para. 13(a), undocs.org/en/A/HRC/36/44.

33 See United Nations General Assembly, Idriss Jazairy, “Report of the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights,” A/HRC/39/54, September 10–28, 2018, documents-dds-ny.un.org/doc/UNDOC/GEN/G18/264/85/PDF/G1826485.pdf?OpenElement.

34 See ibid., paras. 20–23.

35 International Court of Justice, “Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates); Request for the Indication of Provisional Measures Order” (General List No. 172), July 23, 2018, p. 20.

36 See United Nations General Assembly, Idriss Jazairy, “Report of the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights, Idriss Jazairy,” A/HRC/30/45, August 10, 2015, para. 42, undocs.org/A/HRC/30/45.

37 See United Nations General Assembly, Idriss Jazairy, “Report of the Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights,” A/73/175, July 17, 2018, para. 36, undocs.org/A/73/175.

38 “Joint Statement on the Creation of INSTEX, the Special Purpose Vehicle Aimed at Facilitating Legitimate Trade with Iran in the Framework of the Efforts to Preserve the Joint Comprehensive Plan of Action (JCPOA) (31 January 2019)” (statement issued by Jean-Yves Le Drian, Heiko Maas, and Jeremy Hunt), France Diplomatie, www.diplomatie.gouv.fr/en/country-files/iran/events/article/joint-statement-on-the-creation-of-instex-the-special-purpose-vehicle-aimed-at.

39 Rarick, Charles A., “Destroying a Country In Order to Save It: The Folly of Economic Sanctions against Myanmar,” Economic Affairs 26, no. 2 (June 2006), pp. 6063.

40 See United Nations General Assembly, “Report of the Special Rapporteur,” A/HRC/39/54, para. 50.

41 Ibid., para. 48.

* I am grateful to Pierre-Emmanuel Dupont of the Public International Law Advisory Group for his valuable advice in connection with this essay.

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