22 June 2017
Preliminary Observations and Recommendations
22 June 2017
I would like to begin this briefing expressing my gratitude to the European Union for the invitation to visit its institutions and for the openness and readiness to facilitate every meeting necessary for the pursuit of my mission. I would also like to thank the members of the Office of the High Commissioner for Human Rights in Brussels and Geneva who facilitated my visit.
I have been entrusted by the Human Rights Council with monitoring, reporting and advising on the negative impact on the enjoyment of human rights of unilateral coercive measures. My mandate was established on 26 September 2014, through Human Rights Council resolution 27/21 and Corr.1. The resolution stresses that unilateral coercive measures are contrary to international law, international humanitarian law, the United Nations Charter and the norms and principles governing peaceful relations among States, and highlights that in the long-term, these measures may result in social problems and raise humanitarian concerns in the States targeted.
I first requested a visit to the European Union in February 2016, and I am pleased I have been able to hold my visit this week. Since February I was also able to visit the European Court of Human Rights in Strasbourg and the European Court of Justice in Luxembourg. The effectiveness of the Special Procedures mechanisms established by the Human Rights Council requires the full cooperation of States. The European Union, among others, has been critical of States that do not cooperate with Special Procedures Mandate Holders, and I call upon all States to engage constructively with my mandate.
I welcomed this opportunity to hold open and extensive discussions with EU parliamentarians and officials in charge of defining, implementing and assessing EU sanctions policies. I appreciated their explicit commitment to establishing a continuing dialogue with my mandate on sanctions issues and related human rights concerns.
I commend the institutions of the European Union for gradual achievements in the field of safeguards and remedies for unilateral coercive measures – that I will also refer to for the sake of brevity as «sanctions» – and for providing opportunities to affected parties for judicial review. These steps, reflected in the EU Guidelines on implementation of restrictive measures (updated in 2012)1 are important. They represent a commitment of the EU and its member States to ensuring the availability of effective remedies for those targeted by unilateral sanctions. I took note of the fact that the EU Guidelines clearly state the following:
“The introduction and implementation of restrictive measures must always be in accordance with international law. They must respect human rights and fundamental freedoms, in particular due process and the right to an effective remedy. The measures imposed must always be proportionate to their objective”2.
It is important that international law referred to here should encompass broadly recognised norms of general international law, including those considered as peremptory or «jus cogens». It would therefore be desirable for the relevant provisions of international law to be spelt out more comprehensively in such guidelines. In particular, compliance with international law may justify a commitment by States to seek to abolish unilateral sanctions and give precedence to means of peaceful settlement of international disputes and differences. This would be in line with their obligations under the United Nations Charter to settle international disputes by peaceful means. Peaceful means of dispute resolution are considered by Chapter VI of the Charter to be the best way of preserving peace, security and justice.
The improvements regarding safeguards in the application of EU sanctions policy represent a noticeable, albeit insufficient, measure of due process available to their targets, whether States or natural or legal persons. Other major source countries of sanctions provide much more limited remedies to affected parties. Their judicial systems, even if theoretically competent to consider claims, are de facto unlikely to consider the legality of sanctions and annul them, even if these do not respect due process.
I note with concern the increasing recourse to unilateral coercive measures in international relations. It is against such background that I strongly suggest the time has come for the international community to reaffirm some basic elements of the rule of law. One is that all persons whose enjoyment of human rights has been affected by unilateral coercive measures are entitled to an effective remedy, including appropriate financial compensation. Such an entitlement necessarily flows from the Universal Declaration of Human Rights and a number of other human rights treaties, including the International Covenant on Civil and Political Rights (article 2, para. 3). These seminal instruments assert unambiguously that everyone has the right to an effective remedy for any act perpetrated by State officials that violate his or her fundamental rights. There is no reason why unilateral coercive measures should be exempted from this general principle. Access to an effective remedy is a key component of the rule of law, and should be provided to all victims of human rights violations, irrespective of the particular facts or context of such violations. It is worth recalling that in Agenda 2030, States have pledged to act for the promotion of the rule of law at the national and international levels and to ensure equal access to justice for all.
Furthermore, it stands to reason that no policy of unilateral sanctions aimed at protecting the human rights of the population of a particular country would be justified if in itself it has an unintended, but nevertheless egregious, adverse human right impact on vulnerable segments of the population of the targeted country. In particular, there is a need to warn against sanctions that bring about unintended deprivations of basic rights, causing as much distress as the human rights denials they purport to remedy through the pressure of the said sanctions.
I pointed to the stalemate between the majority of the international community, which outright rejects unilateral sanctions (i.e. those not adopted by the United Nations Security Council pursuant to article 41 of the Charter), and countries initiating autonomous sanctions, which consider them to be legal under international law. The former position, according to which unilateral sanctions are incompatible with international law, was expressed in particular by the Declaration on Friendly Relations, adopted unanimously by the UN General Assembly in 1970. According to this text, «no State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind». This position was reiterated recently in Human Rights Council resolution 34/13, adopted on 24 March 2017. The resolution urged all States «to refrain from imposing unilateral coercive measures», and called for the removal of such measures, «as they are contrary to the Charter and norms and principles governing peaceful relations among States at all levels». It recalled that such measures prevent the full realization of economic and social development of nations while also affecting the full realization of human rights.
My remit is to focus on the human rights aspects of sanctions, and during my mission to the European Union institutions, I reviewed the potential adverse impactof the unilateral measures imposed by the EU with a view to suggesting possible ways of further mitigating their unintended adverse human rights impact. It must be emphasized in this respect that sanctions, whether comprehensive or «smart», are a pretty blunt tool in the tool box of policy makers, especially when they encompass financial transfers.
During this visit, I emphasized the need to make clear that humanitarian exemptions from sanctions, as provided for in the EU Best Practices for restrictive measures (2015), should be mandatory and be communicated to national financial institutions along with the freezing orders of bank accounts. This would obviate a protection gap between the time of enforcement of the freezing order and the time when the national authority will decide, upon request of the targeted person, on the humanitarian exception to be conceded.
I also emphasized that unilateral coercive measures, without prejudice to their lawfulness or otherwise under international law, could be made to progressively comply with the procedural and substantive conditions set out in the legal regime of «countermeasures». This regime is defined by the International Law Commission in the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, adopted in 2001. Along the same line, I stated that sanctions may create widespread instability if not limited to exceptional situations. These should be restricted to immediate and direct threats to the security of the source State (or group of States), or to egregious breaches of recognised principles of international law.
I emphasized that the application of restrictive measures to individuals based only on the suspicion that they may be, or might be, involved in a criminal or terrorist act raises serious concerns with respect to the rule of law. These sanctions, which may consist in the freezing of assets or travel bans imposed on individual suspects, are usually adopted by members of the executive power on the basis of confidential and undisclosed information and are not subject to judicial review. It is at times argued that this approach, which is tantamount to a suspension of the rule of law, is justified by portraying the measures as provisional or as being of a quasi-administrative nature. In reality, the measures may remain in force for a prolonged duration. In such situations, sanctions thus practically amount to handing down criminal sentences, without the targeted person benefiting from the procedural and substantive safeguards appplicable under criminal law in all legal systems.
It is appreciated that the EU authorities, according to information received, now systematically provide for a regular internal review of their autonomous sanctions. But the modalities and decision-making process of periodic reviews of sanctions (and possible lifting thereof) remain to be clarified. This is to limit the shortcomings of these practices in relation to the requirements of the rule of law and due process.
I noted with satisfaction that the EU has taken a principled stand to reject as illegal under international law the application of domestic sanctions extra-territorialy. I recommend that the European Union consider applying in practice the “Blocking Statute” of 1996. Under this statute, EU companies are prohibited from complying with some extraterritorial sanctions regimes and will thereby benefit from the protection of their State. In this respect, I expressed my concerns about possible new extraterritorial measures being currently considered by a non-EU source country of sanctions that may cause further international economic disruptions and undermine the right to development for a large number of countries.
Extraterritorial sanctions are not only contrary to international law; they also entail severe adverse effects for physical and legal persons insofar as they seek to dissuade, often under threat of severe penalties, private parties of third countries from entering into any trade and other dealings with the targeted State. Their human rights impact is exacerbated in many cases by the phenomenon of «over-compliance»: businesses and financial institutions refrain from dealings with the targets of sanctions even when they are not required to do so under the relevant sanctions instrument, out of fear of breaching it inadvertently. Such breach might expose them to prosecution and incur financial or criminal liability in the source State. I noted with pleasure that EU officials I met shared this concern regarding «over-compliance» with sanctions, and expressed their wish to find ways and means to overcome this problem.
I also invited the EU institutions to reaffirm their endorsement of a pivotal principle asserted by the Committee on Economic, Social and Cultural Rights (CESCR) in its General Comment on the relationship between economic sanctions and respect for economic, social and cultural rights. The principle asserts that “when an external party takes upon itself even partial responsibility for the situation within a country (whether under Chapter VII of the Charter or otherwise), it also unavoidably assumes a responsibility to do all within its powers to protect the economic, social and cultural rights of the affected population”3. I believe that this reiteration would be in line with the EU’s commitment to uphold human rights and international law.
In the same spirit, I advocated an intensified dialogue and interaction between Brussels and Geneva, i.e. between EU institutions and the human rights fora and mechanisms established under the United Nations. EU member States, as well as EU authorities in charge of the sanctions policy, are committed to the obligations of States under the two Covenants and other major international human rights instruments. They are also bound by the General Comments issued by the CESCR, including General Comment 8, already quoted. This comment stresses that “the inhabitants of a given country do not forfeit their basic economic, social and cultural rights by virtue of any determination that their leaders have violated norms relating to international peace and security”4.
Overall, realism prevents analysts from expecting that resort to unilateral coercive measures will be discontinued in the near future. Let us nevertheless assume that an open-ended transition period will occur pending complete termination and elimination of unilateral coercive measures. I have emphasized that States may be called to comply during that transition period with universally accepted rules of behaviour. These are already part of international law and international human rights law. Their aim is to mitigate the adverse human rights impacts of unilateral sanctions. These rules of behaviour could be regrouped and embodied in a Declaration on unilateral sanctions likely to have a human rights impact and the rule of law, a preliminary draft of which I intend to submit to the Human Rights Council in my next report. On all these issues, the EU is ahead of other sanctions-emitting States. Replication of some of its innovative policies by other source countries would be a step in the right direction.
I also took the visit to Brussels as an opportunity to present my proposal for the establishment of a United Nations Register of unilateral sanctions likely to have a human rights impact. This is a simple, practical, viable and fair means to ensure transparency in the implementation of sanctions during that transition period. The transparency advocated will be helpful to the Security Council, civil society organisations and the business sector. As was stressed during my visit, a comprehensive list of sanctions instruments and of their targets exist at the level of the EU. There is need to scale up the collection of data to all unilateral sanctions in a UN Register regrouping in comparable form corresponding data at world level as reported by source and/or target countries.
Finally, I really appreciated the professional and friendly responses of EU officials and of the European Parliament who demonstrated their willingness to interact with my mandate. We have agreed to continue to consult with one another in the future and I greatly look forward to such productive interaction.
Indeed, I have left a substantial questionnaire to the European External Action Service of the European Commission. Their replies may lead me to rectify to some extent the conclusions provisionally reached by my mandate as set out above on the basis of available data.
A final report of my visit will be presented to the Human Rights Council in Geneva in September 2018.
Thank you for your time.
1. Council of the EU, Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, Doc. 11205/12 (15 June 2012).
2. Council of the EU, Guidelines on implementation and evaluation of restrictive measures (sanctions) in the framework of the EU Common Foreign and Security Policy, Doc. 11205/12 (15 June 2012), para. 9.
3. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 8: The relationship between economic sanctions and respect for economic, social and cultural rights, 12 December 1997, E/C.12/1997/8.
4. UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 8, cit.