Mandate of the Special Rapporteur
On 26 September 2016, the UN Human Rights Council’s resolution 27/21 and Corr.1 created the mandate of the Special Rapporteur on negative impact of unilateral coercive measures on the enjoyment of human rights. It defined the mandate, in its paragraph 22, as follows:
(a) To gather all relevant information, wherever it may occur, including from Governments, non-governmental organizations and any other parties, relating to the negative impact of unilateral coercive measures on the enjoyment of human rights;
(b) To study trends, developments and challenges in relation to the negative impact of unilateral coercive measures on the enjoyment of human rights, and to make guidelines and recommendations on ways and means to prevent, minimize and redress the adverse impact of unilateral coercive measures on human rights;
(c) To make an overall review of independent mechanisms to assess unilateral coercive measures to promote accountability;
(d) To contribute to strengthening the capacity of the Office of the High Commissioner to provide affected countries with technical assistances and advisory services to prevent, minimize and redress the adverse impact of unilateral coercive measures on human rights.
The same resolution, in its paragraph 23, requested the Special Rapporteur, within the framework of her mandate, to undertake the following:
(a) To draw the attention of the Human Rights Council and the High Commissioner to those situations and cases regarding the negative impact of unilateral coercive measures on the full enjoyment of human rights;
(b) To cooperate with other relevant United Nations bodies, including the High Commissioner, the human rights treaty bodies, the special procedures and mechanisms, specialized agencies, funds and programmes, regional intergovernmental organizations and their mechanisms, with the aim to prevent, minimize and redress the adverse impact of unilateral coercive measures on human rights.
On 6 October 2020, the UN Human Rights Council adopted the resolution 45/5 that extended the mandate of the Special Rapporteur for a period of three years, as set out in its resolution 27/21.
The negative impact of unilateral coercive measures on the enjoyment of human rights
Unilateral coercive measures have been defined by the Human Rights Council in its resolutions 27/21 and 45/5 as measures including, but not limited to, economic and political ones, imposed by States or groups of States to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights with a view to securing some specific change in its policy. These measures are to be distinguished from measures taken by the Security Council under article 41 of the Charter of the United Nations. In general, any unilateral measure, as well as those measures that were taken domestically or internationally by Members States to enforce Security Council’s measures is should be in compliance with international law, including international human rights, refugee and humanitarian laws.
In her first thematic report (A/HRC/45/7) to the Human Rights Council, Ms. Alena Douhan, the Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights, stresses that not every unfriendly act or means of applying pressure by a State can be qualified as a unilateral coercive measure. At the same time, States are free to choose their partners in trade, economic or other types of international relations. Customary international law provides for the possibility of unfriendly acts that do not violate international law and of proportionate countermeasures in response to the violation of international obligations, as long as they abide by the limitations set out in the draft articles on responsibility of States for internationally wrongful acts.1
In carrying out the mandate, the Special Rapporteur is mindful of: the enormous discrepancies between sanctioning and sanctioned States, even in relation to defining what is a legal or illegal activity, what unilateral activity (sanction) without or beyond the authorization of the Security Council could or should qualify as a unilateral coercive measure; the legality of unilateral action from the standpoint of the Charter of the United Nations, international humanitarian law, international human rights law and other areas of law; and the humanitarian impact on the enjoyment of human rights, the adequacy of the humanitarian exemptions and the insufficiency of mechanisms of delisting, control, reparation and compensation.
In her aforementioned report, the Special Rapporteur underscores that any progress on these matters can only be achieved through consensus and the development of an appropriate legal framework that reflects the legitimate concerns of those affected and that fills the gaps in the promotion of human rights and the protection from mass gross violations of human rights. The term “unilateral sanctions” is used in the present report without any prejudice as to the legality or illegality of such sanctions and to refer to any means of pressure applied by States or international organizations without or beyond the authorization of the Security Council.
In her first thematic report (A/75/209) to the General Assembly, the Special Rapporteur stresses that Unilateral sanctions without or beyond Security Council authorization should be assessed for their legality under international law. The impact on human rights, including during emergency situations, should be part of such assessments. International cooperation at the bilateral and multilateral levels should be based on the principles of legality and observance of the rule of law in full compliance with obligations arising from the Charter of the United Nations, international humanitarian and human rights law, and other international obligations, especially in the situation of the global challenge created by the pandemic.
Under no circumstances should trade in essential humanitarian goods and commodities, such as medicine, antivirals, medical equipment, its component parts and relevant software, and food, be subject to any form of direct or indirect unilateral economic measure or sanction. Accordingly, any impediment to such trade or to appropriate contracts, financial transactions, transfers of currency or credit documents and transportation that hamper the ability of States to effectively fight the COVID-19 pandemic and that deprive them of vital medical care and access to clean water and food should be lifted or at least suspended until the threat is eliminated.
The Special Rapporteur welcomes every effort to provide humanitarian relief, but she underscores that humanitarian exemptions remain ineffective, inefficient and inadequate. Humanitarian organizations refer to unilateral sanctions as the main obstacle to delivery of aid. In general, and in particular, in the context of any emergency, including COVID-19 pandemic, the humanitarian exemptions must not be administered based on permission but rather operationalized on the basis registration. In other words, the exemptions should be designed on the presumption that the stated purpose is actually humanitarian, with a burden of proof on others to show it is not.
In this context, the Special Rapporteur urges States, international organizations and other relevant actors to lift, review and minimize the whole scope of unilateral sanctions, to guarantee that neither doctors nor medical research centres are targeted, to ensure that the humanitarian exemptions are effective, efficient and fully adequate with the view to enable sanctioned States to protect their populations in the face of COVID-19, repair their economies and guarantee the well-being of their people in the aftermath of the pandemic.
With regard to concerns regarding the harmful effects of unilateral coercive measures, in particular on human rights of the populations of targeted countries, they have long been expressed by the United Nations, inter alia through a number of decisions and resolutions of the Human Rights Council and the General Assembly, as well as by the United Nations Conference on Trade and Development (UNCTAD) and other major international conferences.
Human Rights Council resolution 27/21 reiterates in that respect that the continuing implementation of unilateral coercive measures entailed “negative implications for the social-humanitarian activities and economic and social development of developing countries, including their extraterritorial effects, thereby creating additional obstacles to the full enjoyment of all human rights by peoples and individuals under the jurisdiction of other States”. The same resolution highlighted concerns regarding “the negative impact of unilateral coercive measures on the right to life, the rights to health and medical care, the right to freedom from hunger and the right to an adequate standard of living, food, education, work and housing”, and referred to “the disproportionate and indiscriminate human costs of unilateral sanctions and their negative effects on the civilian population, in particular women and children, of targeted States”.
Relevant international instruments
The following international instruments provide the legal context and guide the work of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights:
- the Charter of the United Nations, especially its Article 55;
- the Universal Declaration on Human Rights, especially its articles 3, 5, 6, 8, 12, 13, 17, 22, 23, 25, 26, and 28;
- the International Covenant on Civil and Political Rights, especially its articles 1, 6, 7, 14, 16 and 17;
- the International Covenant on Economic, Social and Cultural Rights, especially its articles 1, 2, 6, 11, 12 and 13;
- the Convention on the Rights of the Child, especially its articles 6 and 24;
- Human Rights Council decisions 4/103 and 18/120, and resolutions 45/5, 40/3, 37/21, 36/10, 30/2, 27/21, 24/14, 19/32, 15/24, 12/22, 9/4, and 6/7
- General Assembly resolutions 74/154, 73/167, 72/168, 71/193, 70/151, 69/180, 68/162, 67/170, 66/156, 65/217, 64/170, 63/179, 62/162, 61/170, 60/155, 59/188, 58/171, 57/222, 56/179, 56/148, 55/110, 54/172, 53/141, 52/120, 51/103, 50/96, 48/168, 46/210, 44/215, 42/173, 41/165, 40/185, 39/210 and 38/197
- Draft Articles on Responsibility of States for Internationally Wrongful Acts, Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 and corrigendum (A/56/10 and Corr.1), Chap. IV
- The Doha Mandate of UNCTAD TD/500/Add.1, para. 25
- the Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna on 25 June 1993;
- the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, adopted by resolution 2625 (XXV) of the General Assembly in 1970;
- the Declaration on the right to development, adopted by resolution 41/128 of the General Assembly in 1986;
The Special Rapporteur pays special attention to the wealth of decisions and resolutions concerning unilateral coercive measures adopted inter alia by the Human Rights Council, the United Nations General Assembly, UNCTAD, and in the framework of multilateral conferences and meetings of regional organizations, as well as to relevant General Comments adopted by the Committee on Economic, Social and Cultural Rights (CESCR).
1. Official Records of the General Assembly, Fifty-sixth Session, Supplement No. 10 and corrigendum (A/56/10 and Corr.1), Chap. IV.