Introduction
Unilateral coercive measures present a set of concerns different from those posed by sanctions of the UN Security Council. Among such concerns are the extent to which states have the authority to impose sanctions unilaterally, as well as the absence of oversight mechanisms. Unilateral sanctions also pose legal questions due to their extraterritoriality, severity of the means of their enforcement: In addition to those measures that are specific and explicit in their targets, unilateral sanctions – absent judicial oversight and humanitarian accountability – routinely result in such severe consequences that risk-averse companies will overcomply and fail to do any business, even legitimate, with parties “designated” on sanctions lists, those which might have any nexus to listed individuals or private entities or even entire countries where those parties may reside.
Human rights protection is considered a cornerstone of the contemporary international system. States are obliged to take all possible steps to guarantee that human rights are observed in territories under their jurisdiction and control. A number of international mechanisms exist to ensure that states protect human rights. Indeed, unilateral sanctions have often been announced as constituting measures implemented to protect “common goods,” including human rights. At the same time, their scope, number, grounds, subjects, targets, and means of introduction and implementation are expanding exponentially, even when their legitimacy may be questionable. The very fact that states and regional organizations unilaterally sanction individuals, companies, economic sectors, or even entire countries without or beyond the authorization of the UNSC poses questions about their legality, particularly in cases when the humanitarian impact is so severe as to run counter to human rights.
Unfortunately, international legal discourse focuses mostly on the grounds, mechanisms, and effectiveness of initial or secondary sanctions;Footnote 1 the motivation, political costs, and internal justifiability of sanctions as an alternative to the use of military force; and the possibility to assess negative consequences as “collateral damage.”Footnote 2 The problem of their humanitarian impact has received far less attention.
The Expanding Nature of Sanctions in International Law
The nature and purposes of sanctions in general have proliferated in recent years. According to the Global Sanctions Database, the stated objectives of more than 40 percent of sanctions introduced between 2013–2019 were to pursue the enhancement of democracy, human rights protection, and other similar purposes rather than to address threats to peace, breaches of peace or acts of aggression, or in response to violations of erga omnes obligations as viewed by the ICJ in the Barcelona Traction case,Footnote 3 or in the ICCPR of 1996 General Comment No. 31, para. 2.Footnote 4
However, states and regional organizations are also expanding the application of unilateral measures to target individuals and private entities without or beyond the authorization of the UNSC under its Chapter VII authority.Footnote 5 Historically, the UNSC has authorized these measures against actors responsible for massive and gross violations of fundamental human rights. Recently, though, so-called “Magnitsky-like sanctions” have been imposed by the US,Footnote 6 the EU,Footnote 7 Estonia,Footnote 8 Canada,Footnote 9 Lithuania,Footnote 10 Latvia,Footnote 11 Gibraltar,Footnote 12 Jersey,Footnote 13 and Kosovo,Footnote 14 with reference to human rights violations or specific crimes, including corruption.
Another important development relates to the emergence of so-called “sectoral” sanctions, which apply nonselectively to all or nearly all individuals and organizations in a given economic sphere. The US and EU have applied such sectoral sanctions to the financial, energy, defense, railway, metals, and mining sectors of the Russian Federation,Footnote 15 “to impose costs […] for its aggression in Ukraine.”Footnote 16 The US and EU have also targeted the Venezuelan gold,Footnote 17 oil, and financial sectors;Footnote 18 the Iranian banking sector;Footnote 19 Syrian oil, financial, and other sectors;Footnote 20 and the Belarussian fertilizer sector.Footnote 21 Several other countries face sanctions in the context of counter-terrorism or anti-money laundering programs, as when countries are unilaterally designated as states sponsoring terrorism.Footnote 22
Other technological developments, including cyber technologies, have affected the nature of unilateral sanctions. In particular, the US and EU have subjected some perpetrators of cyber-related activities to sanctions,Footnote 23 and it is now common to see sanctions creating impediments to online banking, trade in software, and restricted access to online platforms and social media.
A no less important development concerns the expansion of so-called “secondary sanctions” against individuals and companies for violating unilateral sanctions regimes. Appendix A to part 501 of the US Economic Sanctions Enforcement Guidelines stipulates civil monetary penalties up to $289,239 or criminal penalties up to $1 million, imprisonment for up to twenty years, or both, upon conviction.Footnote 24 The practice of criminalizing the circumvention of unilateral sanctions regimes is expanding dramatically,Footnote 25 as well as imposing civil penalties, seizing cargo by customs authorities,Footnote 26 putting reputational and other types of pressure over countries, businesses, and individuals,Footnote 27 including via introduction of maximum pressure campaigns.Footnote 28
These trends result in the expansion of targets for unilateral sanctions, both directly and indirectly. States can, and do, designate individuals, companies, and populations in whole or in part. They sanction counterparties of designated individuals and companies, employees, and beneficiaries in third countries,Footnote 29 family members of designated individuals,Footnote 30 nationals of sanctioning states, and third-country nationals. They even sanction humanitarian organizations and their constituent parts, along with international judges and civil servants.Footnote 31
Beyond these developments, contemporary unilateral sanctions regimes are characterized by complexity and comprehensiveness. They may be enforced through extraterritorial jurisdiction, and often their basis is in emergency declarations that grant executive bodies extraordinary powers. Due to severe consequences for violations, these measures result in overcompliance by banks, states, trade partners, and donors. Even humanitarian exemptions and permissions for the delivery of humanitarian aid are hampered by complicated and unclear rules, as well as extremely narrow interpretation. Finally, the entire domain of sanctions regimes is without any comprehensive mechanism of accountability and redress for those whose rights have been violated by unilateral sanctions.
Of course, not every unfriendly act or means of pressure by a state may be described as a unilateral coercive measure, with the connotations of illegality as described by the UNGA and UNHRC.Footnote 32 Simply refusing to interact with another state is not illegal, since states are free to choose their partners in trade, economic, or other international relationships. Customary international law accommodates unfriendly acts that do not violate international law. At the same time, states are to make sure that their activity does not violate any international obligation in force between two states, otherwise it cannot be qualified as a retortion. International law also seems to authorize universal criminal jurisdiction over some international crimes.
According to the DARS, it is legal for directly affected states to employ proportionate countermeasures in response to the violation of international obligations.Footnote 33 DARS stipulates that states which are not directly injured are entitled to respond, but only if “the obligation breached is owed to the international community as a whole,”Footnote 34 that is to say, in response to the “serious breach by a State of an obligation arising under a peremptory norm of general international law,” “involv[ing] a gross or systematic failure by the responsible State to fulfil the obligation.”Footnote 35 Even then, a state can act only with the purpose of stopping the wrongful act and guaranteeing its non-repetition.Footnote 36 The ICJ concluded in a number of cases that such breaches include acts of aggression, genocide, apartheid, impediments to the right to self-determination, slavery, slave trade, genocide, racial discrimination, torture, and serious violations of IHL of a “systematic, gross or egregious nature.”Footnote 37 These are the situations that have been considered by the UNSC to constitute a threat to, or breach of, international peace and security.
Even in the case of a breach of erga omnes obligations, DARS stipulates that countermeasures shall generally be restricted to addressing the “non-performance for the time being of international obligations of the State taking the measures towards the responsible State,”Footnote 38 proportionate with the injury suffered,Footnote 39 with due account for the requirements of humanity and the rules of good faith,Footnote 40 and implemented in accordance with the rules of Article 52. Countermeasures may not violate either peremptory norms of international law or obligations to protect fundamental human rights and obligations prohibiting reprisals.Footnote 41 Therefore, observance of human rights obligations as well as assessments of the humanitarian impact are vital for the legitimacy of any countermeasure.
Human Rights and Unilateral Sanctions
The need to protect common goods – whether protecting human rights, fighting international terrorism, or combatting corruption or other transboundary crimes (although all the more frequently supplemented by the mere reference to the interests of the foreign policy) – is repeatedly cited as a reason to introduce unilateral sanctions today. It is claimed, or implied, that these sanctions are applied to protect the goods, rights, and freedoms that are guaranteed by international law. However, the expanding practice of unilateral sanctions does not provide any mechanisms for humanitarian assessment, and mechanisms of humanitarian exemptions and redress are generally insufficient, complicated, confusing, lengthy, costly, and ineffective.Footnote 42
Consequently, numerous UNHRC resolutions refer to the negative impact of UCMs on fundamental human rights, including the rights to life, health and medical care, an adequate standard of living, food, education, work, housing, and development. They also point out the specific effects on women, children, the elderly, persons with disabilities, those suffering from rare and severe diseases, marginalized groups, and other vulnerable persons.Footnote 43 Not only do these resolutions affirm that people should not be deprived of their means of subsistence but the resolutions also hold that the extraterritorial application of laws is impermissible.Footnote 44
The severe effects of unilateral sanctions were on display during the Covid-19 pandemic. The UN Secretary-General,Footnote 45 the OHCHR, UN Special Procedures,Footnote 46 international organizations,Footnote 47 and civil actors (ICRC,Footnote 48 Human Rights Watch,Footnote 49 and other NGOsFootnote 50) requested that all unilateral sanctions that obstruct humanitarian responses should be lifted, suspended, or at least eased so that the healthcare systems of sanctioned states could fight Covid-19.Footnote 51 The EU Commission Guidance of November 16, 2020 admitted that sanctions may “alter a country’s ability to fight Covid-19 by affecting the procurement of certain goods and technologies,” may impede transactions relating to targeted people or countries even when they do not fall within sanctions (overcompliance), and may cause the economic situation to deteriorate, “increasing hardship for the non-targeted civilian population.”Footnote 52 Unilateral sanctions, means of their enforcement, and overcompliance have been reported to cause a devastating humanitarian effect on the right to health, impeding the delivery of humanitarian assistance, access to health facilities, and the ability to use the latest methods of treatment, creating conditions undermining the right to health (poverty, food insecurity, discrimination, etc.).Footnote 53 As a result, the most vulnerable groups become affected the most.Footnote 54
Currently, it is not possible to adequately assess the humanitarian impact of specific sanctions imposed against a particular state or entity. To fully account for the magnitude of this impact, it would be necessary to assess the cumulative impact of all types of sanctions imposed by all actors. This must include even those measures that are not targeting a specific state (as many of these measures may have extraterritorial effects on third countries and their nationals), as well as the practice of overcompliance.
As the rest of this chapter will show, the widespread use of unilateral sanctions negatively affects all categories of human rights, especially civil, economic, social, and cultural rights. It also violates the right to development,Footnote 55 and impedes the achievement of the SDGs.Footnote 56 All of this occurs despite the fact that it is widely known that sanctions have these effects.
The Expanding Scope of Unilateral Measures
In the 1990s, sanctions constituted the instrument most frequently used by the UNSC. Today, however, they are mostly used unilaterally by states or regional organizations to allegedly strategically target designated individuals or companies. At the same time, these “targeted sanctions” have expanded considerably. The EU’s financial sanctions include several thousand individuals and companies,Footnote 57 and far more are listed by the US.Footnote 58 When combined with sectoral sanctions, means of sanctions enforcement, and overcompliance, the claim that these measures are “targeted” is questionable.
There are also issues of due process, since individuals are designated by executive bodies, rather than judicial authorities. This deprives them of access to the justice system and its protection, including the right to due process. Disturbingly, the US executive branch has designated individuals without initiating any criminal case in response to the alleged cybercrimes. Instead, the OFAC acts without any mention of criminal proceedings and little possibility for the designees to access courts to defend their rights, reputations, or personal data.Footnote 59 Moreover, appealing a designation on a US sanctions list is very difficult, and the process is lengthy and costly. As a result, access to justice to protect affected human rights is very unlikely and often is not possible, affecting therefore additionally the right to a meaningful remedy and redress.Footnote 60 Consequently, the designee has few meaningful opportunities to defend his or her rights in court, violating the designee’s property rights, freedom of movement, right to protection of personal life, and right to reputation, as well as economic, labor, and social rights.Footnote 61
Some authors refer to “economic sanctions” as the “withdrawal of customary trade and economic relations,” including both comprehensive measures – blocking financial relations with the entire country – as well as targeted measures – blocking relations with specific companies, groups, and individuals.Footnote 62 However, the notion of unilateral sanctions has changed to include not only specific goods, such as arms. Unilateral sanctions now encompass every domain which may have an economic impact on targeted countries, sectors of the economy, specific companies, or individuals. Unilateral sanctions include measures that impact non-designated individuals and companies, including those in third countries, or the entire population of the country under sanctions. Their impacts are felt both financially and politically. As such, they bear little resemblance to, for example, the more straightforward arms embargoes of the past.
Unilateral sanctions can result in the freezing of bank accounts and property of central banks, other financial institutions, states, companies, and nationals. They include prohibitions on transferring funds to or from the targeted country, its nationals and companies, and this may apply even for non-designated goods, including food and medicine. Often, sanctioned countries are threatened with removal from Society for Worldwide Interbank Financial Telecommunication (SWIFT), thus preventing or limiting money transactions for the entire population. These economic consequences can take even more political forms, too, as sanctions can prevent countries from getting emergency and development loans from the World Bank or the IMF.
In relation to trade, sanctions can prohibit a country’s nationals and companies from engaging in trade and prohibit other countries and their nationals from trading with the country under sanctions. This is sometimes explicit. In other cases, it follows from measures, for example, restricting the sale of products that contain at least 10 percent of components or technologies produced in the sanctioning country, and sometimes is the end result of the uncertainty, fear of punishment and implementation of zero-risk or de-risking policies of businesses.
Even when sanctions are supposed to target specific individuals, there are often indirect effects that result in entire populations being de facto targeted. Designating high state officials may prevent any relations and trade with the entire sector of economy or infrastructure, including food, health, water supply, and so on, as quite often all at least public sector, and sometimes even relevant private areas are considered to be under the control of designated individuals. Beyond this, there are threats of secondary sanctions, and civil and criminal penalties for circumvention of primary sanctions regimes. Even in areas that are supposed to be universally recognized as fundamental rights, such as education, sanctions may restrict the transfer of funds for study, research, or humanitarian purposes.
These severe penalties for sanction results in a widespread practice of overcompliance, in which a private actor withdraws from an entire market or otherwise reduces legal business opportunities to reduce its risk of sanctions violations. This practice prevents, delays, or makes more costly the purchase and shipment to sanctioned countries of goods – including food, medicine, medical equipment, and spare parts for such equipment. Overcompliance can occur even when the goods are not under sanctions lists or are exempted from sanctions regimes. This may occur as well with regard to urgently needed goods that are critical to save lives.Footnote 63
It is often maintained that the consequences of blocking financial accounts are exacerbated by the extraterritorial application of sanctions and overcompliance.Footnote 64 Due to the high risks presented by US extraterritorial jurisdiction, banks are greatly reluctant to permit money transfers or extend transfer terms, and other companies are unwilling to be involved in transactions because of the fear of secondary sanctions or civil and criminal penalties, even when companies in targeted countries are not on US sanctions lists.Footnote 65
Russia has most been one of the more notable recent targets of unilateral sanctions. The EU has applied sectoral sanctions to the Russian energy, defense, financial, and dual-use goods sectors, and has introduced an import ban on goods from Crimea and Sevastopol and a ban on tourism services in those areas.Footnote 66 The effect of bans such as this are heightened because the majority of mechanisms enabling trade, such as SWIFT, are either within the US or the EU. There have been discussions of cutting off access to SWIFT as part of the sanctions against Iran, Syria, Cuba, Russia, Belarus, and China.Footnote 67 When sanctions are applied by the US, its jurisdiction allows for the possibility of controlling and blocking payments in US dollars via Visa, MasterCard, American Express, Western Union, and PayPal.Footnote 68 Because there are so few major financial service providers, and financial markets are so interdependent, unilateral sanctions affect not only sanctioned countries, but also and the individuals and companies who are the end users.Footnote 69
While the EU restrictions do not extend to software in the public domain,Footnote 70 the US differs by restricting trade in “technology, and software relating to materials processing, electronics, telecommunications, information security, sensors and lasers, and propulsion,” including traditional encryption and geospatial software.Footnote 71 The consequences of this are extensive. For example, because of this policy, Syria reportedly has been unable to buy software produced only by US companies,Footnote 72 which is required for CT scanners and ventilators used to fight Covid-19.Footnote 73
Human Rights Violations
Marc Bossuyt, reporting to the UN Economic and Social Council in 2000, challenged the basic rationale behind economic sanctions as fallacious: the assumption that the “pressure on civilians will in turn translate into pressure on the Governments for change.”Footnote 74 Further, Bossuyt argued that sanctions undermine access to fundamental human rights, including the right to life, freedom from inhuman or degrading treatment, the right to an adequate standard of living (including food, clothing, housing, and medical care), and the rights to health and education, especially for vulnerable populations.Footnote 75
In 1997, the UN Committee on Economic, Social and Cultural Rights (CESCR) reported on the negative impact of sanctions on economic, social and cultural rights.Footnote 76 Academic works from that period also described and predicted the enormous destructiveness of economic sanctions.Footnote 77 Sanctions often give rise to corruption,Footnote 78 and may also be self-defeating, preventing governments from actually protecting human rights. Michael Reisman and Douglas Stevick characterized UN economic sanctions as a “deadly remedy” demonstrating a “comfortable astigmatism,”Footnote 79 and detailed their enormous humanitarian effects on economic rights and the rights to health, water, education, and life in South Rhodesia, Iraq, Libya, Yugoslavia, and Haiti. They noted that sanctions caused physical and mental suffering due to economic collapse; malnutrition; epidemics; food, medicine, vaccines, and medical equipment shortages; operations performed without anesthesia; suicides; and forced migration. These in turn have a heightened impact on vulnerable populations, including children, mothers, migrants, economic refugees, and the poor.Footnote 80
The impact of these reports resulted in changes to the UNSC’s implementation of sanctions. In the case of the sanctions on Iraq, UN agencies provided extensive monitoring of the humanitarian situation, and the equity, adequacy, and efficiency of the Oil-for-Food Programme. It is now a standard practice that UNSC sanctions regimes will not only have a committee of the Council overseeing the implementation of the sanctions, but that there is also a panel of experts for each sanctions regime, which may study and document the consequences of the sanctions. Resolution 2664 adopted by the UNSC in December 2022 provides for unfreezing assets for humanitarian purposes.Footnote 81 At the same time, this resolution cannot be fully implemented due to the impediments caused by unilateral sanctions, means of their enforcement and overcompliance.Footnote 82
For the most part, no such measures have been adopted in relation to unilateral sanctions. While there have been numerous studies of the negative impact of sanctions in general, the studies that look specifically at the humanitarian impact of unilateral sanctions are limited, even though the negative impact is often both obvious and dramatic.
There are several reasons for the severity of these humanitarian impacts. First, there is the direct and clear scope of unilateral measures, which may directly undermine a country’s access to shipping, banking, exports and imports, and foreign investment, particularly where there is a policy of “maximum pressure” aimed at the target states. Additionally, there is the use of secondary sanctions, imposed upon third parties who do business with the primary target, which are accompanied by civil and sometimes criminal penalties. These are penalties imposed not only upon the nationals of the sanctioning state, but also on foreign nationals – not properly subject to the sanctioner’s jurisdiction – who do business with the target country. Finally, there are decisions by private actors to avoid doing business with countries and entities, even where it is permitted. Private actors may avoid engaging with governments, or entire countries, because there are multiple sanctions regimes in place, imposed by several different sanctioning bodies. Taken as a whole, these multiple sanctions regimes are sometimes overlapping, and sometimes inconsistent with each other; and in the aggregate may be so confusing or lacking in transparency that compliance would be very costly, if not actually impossible.
Some information can be found in the statements of states and humanitarian organizations. For instance, it has been repeatedly reported that delays and increasing costs of bank transfers and transportation result in rising prices for medical equipment, food, and other essential goods in Venezuela, Sudan, Syria, Iran, Zimbabwe, and other countries under unilateral sanctions.Footnote 83
In particular, there has been documentation of the direct impact of unilateral coercive measures on access to medicine and medical equipment in several sanctions regimes.
Unilateral sanctions, and the overcompliance that sanctions entail, have meant that countries have struggled to import necessary medical equipment and supplies. UN organs and the countries themselves have produced reports detailing their struggles to support their population’s health. These shortages have affected the treatment of common health issues, including diabetes, forms of cancer and leukemia, respiratory illness, heart disease, asthma, and so on. States have struggled to procure respiratory, cardiology, endoscopic, pharmaceutical, and other types of equipment; high-tech kits; medicine for treating heart disease, specific forms cancer,Footnote 84 diabetes, hemophilia, leukemia, ichthyosis, multiple sclerosis, autism,Footnote 85 epidermolysis bullosa,Footnote 86 thalassemia, HbA,Footnote 87 kidney failure and dysfunction, hypertension, anemia, respiratory diseases,Footnote 88 chronic inflammatory myelinating polyneuropathy of multifocal motor neuropathy, immunosuppressed patients, and asthma; treatments for orthosis, prostheses, as well as factor VII hormones; anesthetics, antibiotics, antidotes, immunoglobulin, immunosuppressors, blood derivatives;Footnote 89 blood pressure, cardiac, and antipyretic drugs; painkillers; and other irreplaceable and essential drugs and equipment.Footnote 90
During the Covid-19 pandemic, some sanctioned states were unable to buy necessary medicines and medical equipment to treat this disease. This was due in part to the impossibility of making financial transfers, in conjunction with trade and financial sanctions imposed upon Cuba,Footnote 91 Iran, Venezuela, Syria, and other states.Footnote 92 Iran is reportedly unable to use foreign currency for humanitarian imports, such as grains, and also for medicines,Footnote 93 including insulin.Footnote 94
In Venezuela more than 85 percent of globally available medicine is reportedly unable to reach the country.Footnote 95 In Cuba, professional health associations have reported on the challenges of obtaining medicine and equipment to care for premature newborns, as well as children facing other health issues that rely on specialized medical equipment and medicines. Professional associations report on the challenges of delivering life-saving and pain-killing medicines and equipment for pediatrics in Cuba, including high-tech lung ventilators for newborns or children, nutritional supplements or special foods for medical use in the dietary management of specific childhood disorders and diseases, pediatric arterial and venous lines, hydrophobic filters, temporary hemodialysis catheters for young children, pediatric dialyzers, dialysis bags and catheters used for newborns and infants with acute renal failure, analgesics or anesthetics to prevent or treat pain,Footnote 96 high-tech medical treatment and support equipment of children with disabilities;Footnote 97 pacemakers, supplies and medications needed in cardiovascular surgery; as well as new high-tech equipment, catheters, stents, oxygenators, disposable electrodes, contrast media, and radioisotopes.Footnote 98 Swiss humanitarian organizations have also been prevented from collaborating with Cuban medical entities because some Swiss banks have suspended money transfers to Cuba, for fear of secondary sanctions, including civil or criminal penalties.Footnote 99
In addition to human rights relating to health, unilateral sanctions can violate the right to development and other economic rights specified in the ICESCR. In 2019, the US adopted the Caesar Syria Civilian Protection Act (Caesar Act), which expanded the extraterritorial jurisdiction of the US to third-country individuals and entities who provide significant financial, material, or technological support to the Syrian government (including entities owned or controlled by the government), engage in transactions with it, or supply goods or services to the country’s military forces. The Caesar Act also targeted the energy sector as a whole, and forbids assistance directly or indirectly on significant construction or engineering services.Footnote 100 This resulted in the termination of many humanitarian projects which maintained critical infrastructure (electricity, water, sanitation, irrigation systems, health facilities, transportation – including ambulances and rescue equipment – seed, and fertilizers), reconstructed and rebuilt, and assisted or trained public sector workers (including in health, education, water, electricity, irrigation, transportation, agriculture, etc.). The worry was that even these humanitarian projects would be interpreted as illegal assistance to the government.Footnote 101
Finally, unilateral sanctions often impact basic human rights guaranteeing the human rights to freedom of movement, applying by analogy of law Article 13 of the ICCPR, privacy and family life, the right to life,Footnote 102 and the right to work when one’s work involves crossing borders. Similarly, targeted financial sanctions may violate the rights to privacy, family life, health, and property.Footnote 103 Even an arms embargo may violate property rights.Footnote 104 When sanctions are applied against journalists, as the US has done to Iranian journalists,Footnote 105 these coercive measures may violate the rights to hold opinions and freedom of expression.
These severe humanitarian effects may seem surprising because there are often carve-outs for humanitarian goods. However, these exemptions do not adequately address the situation. The process of obtaining licenses for exempting humanitarian goods is lengthy, complicated, and expensive, and often several licenses are needed. Beyond this, there is often the problem that “humanitarian” may be interpreted very narrowly by the sanctioning agencies and also by NGOs and private actors. This impedes the trade of several domains of goods, including medicine, food, and other essentials. When combined with risk aversion by private actors, the result is a trend of increasing overcompliance by banks, donors, and delivery companies, including the reduction or termination of services and funds. This ultimately makes humanitarian aid delivery more complicated,Footnote 106 putting enormous burdens and risks on humanitarian operators.Footnote 107 Most importantly, though, it negatively affects the beneficiaries of these goods in targeted and other countries.Footnote 108
Further, private actors are also reluctant to use “humanitarian exceptions,” out of fear that they may run afoul of the expanded legislation that criminalizes the circumvention of sanctions regimes, not only by nationals of the sanctioning government but also by third country nationals and companies.Footnote 109 There is also the growing risks of extradition by a sanctioning government in regard to foreign nationals on the grounds that they breached or circumvented the sanctions regime. For example, the US requested to extradite a British businessman on the grounds that he assisted a Russian national in circumventing US sanctions.Footnote 110 This has been challenged as a violation of international law; yet banks and other private actors remain wary and inclined to decline even legitimate business. A study commissioned by the European Parliament’s Committee on International Trade found not only that such actions are illegal but that they also present a danger even for huge economies such as that of the EU.Footnote 111
Even where it is clear that certain goods are not subject to unilateral sanctions, or are explicitly permitted by humanitarian exemptions provisions, it may still be impossible for a sanctioned country to obtain them. This can happen when the country’s central bank has been placed on a list of blocked entities, or the country or its banks were cut off from the SWIFT system. It may happen as well because a shipping company has been designated, or because insurance companies will not insure deliveries to the sanctioned country. In the environment of overcompliance, states and companies shift responsibility to each other – the companies citing the lack of legal protection from the sanctioning state, and the sanctioning state citing freedom of trade by private companies.
Taken together, the impact of unilateral sanctions on basic human rights is severe. Indeed, there is good reason to say that these measures may violate the right to life, under Article 6 of the ICCPR. The UN Human Rights Committee, charged with overseeing the implementation of the ICCPR, notes in General Comment No. 36 that the prevention of “access by individuals to essential goods and services such as food, water, shelter, health care, electricity and sanitation” may violate the right to life.Footnote 112 While the committee was not referring specifically to unilateral sanctions, it is clear that the Committee’s notes very much depict what often happens under these measures, even when humanitarian exceptions are theoretically present.
There are grounds to argue that private actors have obligations to prevent the violation of human rights, and that in the context of unilateral sanctions, their overcompliance conflicts with these obligations. According to the Guiding Principles on Business and Human Rights issued by the OHCHR, “Business enterprises should respect human rights. This means that they should avoid infringing on the human rights of others and should address adverse human rights impacts with which they are involved.”Footnote 113
“Human rights,” in this context, is “understood, at a minimum, as those expressed in the International Bill of Human Rights,” such as the Universal Declaration of Human Rights, the ICCPR, and the International Covenant on Economic, Social, and Cultural Rights.
In addition,
The responsibility to respect human rights requires that business enterprises:
(a) Avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur;
(b) Seek to prevent or mitigate adverse human rights impacts that are directly linked to their operations, products or services by their business relationships, even if they have not contributed to those impacts.Footnote 114
In light of this, it can be argued that businesses are acting counter to these obligations when they comply with unilateral sanctions that are illegal, such as those that are extraterritorial. But at the very least, it can be said that overcompliance by businesses – including banks, pharmaceutical, transportation, and insurance companies – violate their due diligence obligations. Private companies are obliged to take measures to prevent any violation of human rights – at least those human rights set forth in the ICCPR and ICESCR. Further, “in meeting their duty to protect, States should: (a) Enforce laws that are aimed at, or have the effect of, requiring business enterprises to respect human rights, and periodically to assess the adequacy of such laws and address any gaps.”Footnote 115
As noted by the CESCR, the failure of states to ensure that business freedoms do not violate rights enshrined in the ICESCR – and the failure to establish mechanisms to prevent such violations, including extraterritorially – constitute violations of the due diligence requirements of states under the ICESCR.Footnote 116 This is true regardless of whether this occurs by the acts of the state, or by its failure to act.
There is no need to develop new norms of international law to identify obligations of states and businesses to protect human rights in the sanctions environment, as relevant treaty and customary norms already exist. At the same time, it is important to recognize such norms and demonstrate how they shall be implemented in the face of unilateral sanctions, the means of their enforcement, and overcompliance.Footnote 117
Emerging Issues of Unilateral Sanctions: Cyber Technologies
Cyber technologies are an emerging area that is changing the nature of unilateral sanctions regimes. Unilateral sanctions have been imposed on persons and entities on the claim that they are engaged in malicious cyber activity,Footnote 118 even where such measures do not necessarily involve sophisticated electronic activities, or the use of spyware or malware. Cyber-related sanctions imposed by US authorities can then prohibit ordinary online transactions relating to the property of sanctioned individuals,Footnote 119 with far-reaching consequences. Blocking online commerce has become a frequent means of implementing unilateral economic and financial sanctions. It often results in prolonging the time necessary to complete transactions, increasing bank costs and entrepreneurial risks, shutting down investments, and making it impossible to buy or order even essential goods.Footnote 120
Some unilateral sanctions block software used for regular administration of commercial internet services or connectivity,Footnote 121 and even for noncommercial activity. The latter has become especially problematic in the course of Covid-19. For example, the terms of service, as of August 20, 2020, for the online meeting platform Zoom precluded use by those living in Cuba, the DPRK, Iran, Syria, and Crimea, following US law.Footnote 122 However, this prohibition restricted communication even among doctors regarding symptoms, diagnostics, and means of treatment. Consequently, it was impossible for those across the UN system to use Zoom for official communication as initially planned. This led to Cuba being excluded from a Zoom summit meeting of leaders of the Organization of African, Caribbean and Pacific States on June 3, 2020, to discuss the Covid-19 pandemic.Footnote 123
Other platforms are also subject to restricted use by a sanctioned country’s citizens. Iranian citizens cannot access information on Covid-19 and its symptoms, even from the Iranian government, because Google – responding to US law – blocked access to AC19, an Iran-developed app,Footnote 124 and Iranian doctors could not access PubMed, a medical database, after its server was transferred to Google.Footnote 125 In addition to health information, citizens of Iran, Sudan, and Venezuela cannot use online platforms for educational purposes, potentially affecting enrollment and dropout rates.Footnote 126 The majority of Google services, as well as educational resources or services tied to other educational platforms – such as Udemy, Amazon Cloud, GoDaddy, GoFundMe, Khan Academy, Coursera, GitLab, Slack and Digital Ocean, and WeTransfer – cannot be accessed from countries under sanctions, even for legitimate use by their nationals.Footnote 127
Cyber sanctions have prevented scholars from targeted countries – Iran, Russia, Syria, and Venezuela – from submitting their articles for publication, including to online journals, owing to their nationality.Footnote 128 This isolates people engaged in art, science, and sport. Besides depriving the world of these knowledge contributions, these sanctions violate the obligation of states to guarantee equal participation in academic cooperation, access to information, and the right to benefit from scientific progress, as reflected by the CESCR in its General Comment No. 36.Footnote 129
Numerous other human rights are also affected by sanctions in the digital age. Article 19 of the ICCPR provides that: “Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.”Footnote 130
However, the practice of blocking social media accounts has expanded; we see this, for example, when US-registered companies act in compliance with Magnitsky sanctions.Footnote 131 This is the case even when the justification for the cyber sanctions is questionable, as when an individual’s online social activity is blocked, although there is no judicial conviction.Footnote 132 Indeed, these measures may be imposed on persons or entities solely on the basis of accusations from the executive organs. These accusations, in turn, may be based upon disinformation, propaganda, or misinformation.
The use of unilateral cyber sanctions raises novel concerns and threatens a number of fundamental human rights. While states are obliged to take measures to suppress cybercrimes against the state, its nationals, and legal entities, such measures should conform to recognized international practice, such as joining treaties, developing legislation, criminal investigations and prosecutions, and judicial cooperation,Footnote 133 rather than executive actions that do not meet the evidentiary and procedural standards ingrained in fundamental documents articulating civil and political human rights.
Targeted Sanctions and Human Rights of Targeted Individuals
The use of targeted sanctions against individuals has, on a large scale and with frequency, run counter to the rule of law. The right of individuals to judicial protections of their rights is guaranteed both in international practice and legal doctrine. All procedural guarantees, in particular, the right to due process,Footnote 134 and the right not to be held guilty ex post facto, for any offense that was not an offense at the moment of its commission,Footnote 135 are considered inalienable by human rights institutions,Footnote 136 legal scholars,Footnote 137 and international treaties.Footnote 138 Violating these rights, even in time of war, is considered a serious breach of IHL.Footnote 139
Some targeting states, particularly the EU, acknowledge the need to adopt and implement unilateral sanctions in accordance with the purposes and principles of the UN, obligations under the UN Charter, human rights, and fundamental freedom commitments.Footnote 140 These frameworks provide the possibility of appeal,Footnote 141 and regular review,Footnote 142 consistent with principles of judicial review and the rule of law, and may also require humanitarian exceptions.Footnote 143
Yet in many cases, unilateral sanctions violate basic guarantees of due process or the rule of law. Sanctions targeting individuals often violate the rights to a fair trial, effective remedy, protection of law, and procedural guarantees,Footnote 144 as well as the rights to be informed promptly on the nature and cause of the accusation and to defend oneself, and the right to protection of reputation.Footnote 145 While sanction regimes are often framed as “merely administrative,” this depiction is misleading, given that in the majority of cases sanctions are imposed “for … [some wrongful act],” clearly demonstrating a punitive purpose and converting an administrative process into a form of punishment,Footnote 146 that in many cases is comparable to criminal punishments. Moreover, circumvention of such sanctions regimes may result in criminal charges, even by third country nationals. It is also important to note that the designation of family members of listed individuals contradicts the prohibition on punishment for activity that does not constitute a criminal offense, and arguably constitutes collective punishment, which is prohibited by international human rights law.
Unilateral targeted sanctions against individuals are routinely imposed today by the executive bodies of the US and the EU in the absence of court hearings or due process guarantees. In the US, the authority for these designations comes from national emergency declarations. However, these declarations are problematic.Footnote 147 Article 4 of the ICCPR does allows a party to derogate from the due process rights normally required, on the basis of declaring a public emergency. But this requires that there must be a threat to the life of the nation; and any action taken under Article 4 must be temporary. In addition, Article 4 also prohibits derogations from the right not to be punished for acts which, at the moment of their commission, are not crimes.
The Article 4 provision becomes especially pertinent when individuals and companies are placed on lists of SDNs, or comparable lists – potentially causing enormous disruption and personal and economic harm – for acts which are not recognized as actual crimes under the legislation of the sanctioning state, or any other state.Footnote 148 This results in the violation of the right not to be held guilty for any offense that did not constitute an offense at the moment of its commission.Footnote 149 Thus, while emergency declarations could, in principle, serve to justify some derogations from the ICCPR, those declarations used to justify current US designations are not in compliance with Article 4.
In addition to falling afoul of the ICCPR, targeted sanctions listing individuals and companies also cannot be justified as countermeasures in accordance with Article 49(1) of DARS. According to this article, countermeasures may only be applied against individuals immediately responsible for the policy or activity of a state in breach of an international obligation, and in order to change that policy or activity.Footnote 150 Countermeasures are not applicable to other categories of persons or entities. In any event, the requirement to observe fundamental human rights, discussed above, must be applied in all cases of countermeasures.
Outside of the EU, the majority of other unilateral sanctions regimes do not provide for either preliminary judicial guarantees or access to justice afterwards. US unilateral sanctions against judges and officials of the ICC on the grounds of E.O. 13928 of June 11, 2020 and later affect procedural rights twice.Footnote 151 Besides general concerns about applying targeted sanctions to judges and court officials, the sanctions constitute a clear violation of their privileges and immunities granted to guarantee their role in international adjudication.Footnote 152 Moreover, such measures undermine the ICC’s efforts to investigate, prosecute, and sanction international crimes and thwarts victims’ access to justice.
Even if an individual may be a plausible candidate for sanctioning, there are unintended consequences to targeting particular persons depending on the roles played by those individual persons or entities. For instance, several high-ranking state officials or public figures have been designated in recent years who are in charge of public agencies – such as health, education, or food – and are leading industry figures. Although it is only a single individual being formally designated, the effect of the designation is to deny funds to the entire public body. In the case of a company, this designation may negatively impact a corporation whose revenue plays a large role in the state revenue. An example of this is the designation in 2017 of Petróleos de Venezuela (PDVSA), the Venezuelan state-owned oil and gas company. The designation and sanctioning deprived Venezuela of 99 percent of its external revenue.Footnote 153
While the impact on the Venezuelan population is severe, its people are only considered “indirect victims.” As indirect victims, their rights can only be protected intermediately by their states. The indirect impact on populations and industries differs considerably from the direct listing of individuals and companies. Judicial cases seeking redress in these circumstances are limited. The Pre-trial Chamber of the International Criminal Court (ICC) is still considering the referral of Venezuela of February 12, 2020 on qualification of unilateral sanctions imposed against Venezuela as crimes against humanity.Footnote 154 However, litigation between states concerning unilateral sanctions typically do not invoke human rights treaties, but rather violation of interstate treaties. For example, Iran’s case against the US before the International Court of Justice, concerning economic and sectoral sanctions against Iran,Footnote 155 and the seizure of certain Iranian assets,Footnote 156 were based upon the Treaty of Amity, Economic Relations, and Consular Rights of 1955 between Iran and the US.
Thus, for unilateral sanctions that target individuals, we see a pattern of the denial of due process rights. This occurs in part because sanctions are treated as administrative matters, and thus circumvent the procedural protections available in criminal contexts, even though the acts and penalties are comparable to those found in criminal law. These measures run counter to the due process requirements of Article 4 of the ICCPR; but do not meet the requirements for derogation under the ICCPR. To the extent that these sanctions claim justification as countermeasures, they do not meet the requirements for countermeasures under international law.
Conclusion
Unilateral sanctions have expanded so widely that they are often viewed as an acceptable means of international practice aimed at protecting “common goods,” even in the absence of UNSC authorization. Yet under international law, unilateral sanctions can only be imposed if they do not violate international obligations, if they constitute proportionate countermeasures in response to the violation of international erga omnes obligations, and if they are exercised in full conformity with international responsibilities. However, the overwhelming majority of unilateral sanctions do not conform to the above criteria. Indeed, while sanctions are often imposed in the name of punishing or preventing the violation of human rights, we see numerous ways in which they in fact violate human rights.
Despite the growing understanding that sanctions against states, individuals, and companies are not effective at achieving their stated goals,Footnote 157 while often causing enormous human suffering, the number and scope of targets of unilateral sanctions have expanded considerably. They now include countries, economic sectors, designated individuals, companies, populations of targeted societies, nationals of targeting countries subjected to secondary sanctions, and humanitarian NGOs and beneficiaries of their aid, regardless of nationality. Due to the multiplicity of sanctions regimes, fear of secondary sanctions, and civil and criminal penalties for circumvention of primary sanctions regimes, unilateral sanctions negatively affect the rights of many population groups in targeted states, as well as third-state nationals, with a special impact on vulnerable populations.
Today, numerous reports detail the ways in which unilateral sanctions violate nearly all categories of human rights: the rights to health, education, food, fair trials, property, movement, privacy and reputation, the right to life, and so on. Procedural rights – including the presumption of innocence, the right to a fair trial, and the independence of the judiciary – are often violated in cases where individuals are placed on lists of SDNs and similar lists, on the basis of questionable evidence, and with little recourse. That these measures may be imposed arbitrarily is particularly evident in regard to the sanctions imposed on ICC judges and officials.
Furthermore, insofar as unilateral measures are comprehensive and indiscriminate, they create serious obstacles for the achievement of all SDGs. This situation is then worsened by the practice of overcompliance.
As not all unilateral measures are prohibited by international law, there is a clear need to develop a proper legal and institutional network to guarantee the rule of law and human rights protection in this arena. It is certainly true that no humanitarian purpose can be achieved via measures that violate the rights of those they intend to protect. Moreover, UN findings clearly demonstrate that preliminary and continuous assessments of the humanitarian impact must be done, even if measures are imposed legally.
No good intentions can justify the violation of fundamental human rights, even when it is deemed to be “collateral damage.” Moreover, it is believed here that the term “unintended,”Footnote 158 with regards to the humanitarian consequences of unilateral sanctions, is misleading and even dangerous, as it might create a feeling of the legitimacy of the measures applied. When unilateral sanctions are taken without or beyond authorization of the UNSC and do not correspond to the requirements of international law, sanctioning states should be held responsible for these violations and for their negative consequences, regardless of the stated intention of the officials of the sanctioning state.
Unilateral sanctions are often presented as measures imposed to prevent and stop severe human rights violations, to stop international, transboundary, or national crimes, and to hold those who are responsible accountable for violations committed. However, the reality today is that most unilateral sanctions are illegal in one aspect or another. Their use raises numerous concerns from the point of international security law, sovereign equality of states, international trade and international criminal law, immunities of state property and high state officials, peaceful settlement of international disputes, due process guarantees, observance of labor, health, environmental and civil aviation standards, and many other issues.
A closer look at the consequences of unilateral sanctions makes it difficult to find a situation where they have changed the situation for the better. On the contrary, what we see with great frequency is that they worsen the situation, affecting civilian populations as a whole, with especially negative impacts on women, children, the poor, people suffering from severe or chronic diseases, and other vulnerable groups. Unfortunately, the use of unilateral sanctions is mostly discussed in political rather than legal or humanitarian terms. The result is that there is insufficient accountability for those applying unilateral coercive measures, and insufficient redress for victims.
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