72nd session of the General Assembly, Third Committee, Item 73 (b & c):
18 October 2017
I have the honour to present my third report to the General Assembly, further to my appointment by the Human Rights Council pursuant to Resolution 27/21 of 2014.
I. Follow-up on my initial proposals
In its resolution 71/193 adopted last year, the General Assembly took note with interest of the proposals contained in my previous reports, and requested me to include in my report to its seventy-second session “more information on the process regarding the discussions of [my] proposals at the Human Right Council”.
Register of unilateral coercive measures
The first of these proposals is a recommendation to set up a consolidated central register at the level of the United Nations to recapitulate the list of all unilateral coercive measures in force. I believe it would be a simple, practical, viable and fair means to ensure transparency on sanctions pending their hoped-for ultimate phasing-out. This transparency would be helpful to the Security Council, to civil society organizations as well as to the business sector.
Declaration on unilateral sanctions and the rule of law.
The second proposal is a recommendation that the General Assembly adopt a solemn Declaration on unilateral coercive measures and the rule of law.
The idea is to crystallize a wide consensus of the international community on certain universally accepted rules of behaviour that States should be urged to comply with, pending the expected complete termination and elimination of unilateral coercive measures. During this transition period, some obligations, flowing from human rights law and international human rights law, should be recognized as constraints on States still applying unilateral sanctions. These obligations are basically:
- to conduct a transparent human rights assessment of coercive measures,
- to monitor on a regular basis the effects of implementation of the measures,
- to ensure effective and immediate exemptions for satisfying basic human rights and essential humanitarian needs, and
- to guarantee due process and the availability to victims of judicial review for obtaining remedies and redress.
A third proposal that I formulated relates to the establishment of an ad hoc compensation commission under the United Nations for victims of unilateral coercive measures, to ensure accountability and the availability of remedies and redress. This would be all the more relevant in situations that entail a risk of denial of justice, i.e. where domestic remedies, or international courts having appropriate jurisdiction, are not accessible or are prevented in practice, from allocating damages to the victims.
These proposals have been reviewed and fine-tuned in light of the input received from participants to an expert meeting that I convened earlier this year in Geneva, gathering specialists from the United Nations and academics. The proposals are detailed in this year’s report submitted to the Human Rights Council. I am pleased to note that in the latest resolution on human rights and UCMs adopted at the 36th session in September, the Council “welcomed the work of the Special Rapporteur on thematic and country issues” and “welcomed his report” which elaborates on these proposals.
II. Extraterritoriality in relation to unilateral sanctions
In this year’s reports to the General Assembly and the Human Rights Council, I focused on the issue of extraterritoriality in relation to unilateral sanctions. This is in response to HRC resolution 34/13 which mandated me to focus on the promotion of “accountability and reparation” in the area of UCMs.
From the legal point of view, one has to distinguish the issue of “extraterritorial” sanctions in the meaning of extraterritorial enforcement of domestic sanctions measures, and the issue of “extraterritoriality” of human rights obligations, which refers to the existence and extent of extraterritorial obligations of targeting States under human rights law.
These two fundamental aspects of the general issue of extraterritoriality have to be briefly addressed in turn.
First, as regards “extraterritorial” sanctions in the meaning of domestic sanctions that one State requires other State(s) to also enforce against a targeted State, there is a general understanding that these extraterritorial sanctions are unlawful under international law. By virtue of the UN Charter, only measures taken under Chapter VII call for multilateral enforceability and are therefore legally binding upon all States.
This understanding is also reflected in a number of resolutions of UN bodies, and held by a vast majority of individual States and by regional organizations. The EU for instance took this position in its “Blocking Statute” of 1996, which is still in force, and which aims at shielding EU citizens and corporations from the adverse effects of some sanctions regimes that purport to apply penalties on them for dealing with the country that is the primary target of the sanctions. Some governments of the EU have again recently voiced their intention to resist an initiative to enforce multilaterally a newly adopted domestic sanctions policy.
The issue is coming to the fore particularly in possible developments concerning unilateral sanctions targeting the Russian Federation or Iran.
Extraterritorial sanctions obviously have the potential to affect the right to development of the targeted country and of its population, but also of third countries not involved in the dispute between source and target countries.
Extraterritorial sanctions may even have a “chilling” effect on international businesses beyond the intended scope of the sanctions, as was noticed in previous cases. Indeed, third parties may be unwilling to entertain economic relations with the targeted State if they run the least risk of exposing themselves to onerous penalties by the targeting State. This leads to the devastating practice of over-compliance by third parties.
The discrete additional impact of extraterritorial sanctions may also flow from their effects on the targeted State’s ability to access funding from international financial institutions, foreign financial markets, and international aid.
This potential negative impact may of course be obviated if third countries refuse to enforce multilaterally domestic policies of unilateral sanctions applied by other targeting States. They should, in this case, provide effective protection of their own corporations against possible penalties imposed by sanctioning States.
The second aspect of the topic of extraterritoriality in relation to sanctions concerns the accountability of targeting States for human rights impacts caused abroad by their sanctions.
I have called for a clear recognition of both the obligations and the accountability incumbent upon targeting States. There is an explicit finding of the Committee on Economic, Social and Cultural Rights according to which “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”. This position cannot but apply to sanctions. It needs therefore to be reaffirmed. This will counter a certain formalistic legal discourse to the contrary. The latter disputes that States are under human rights obligations vis-à-vis individuals who are not their nationals, who are not present on their territories and over whom they do not otherwise exercise “jurisdiction” – as is precisely the case for targets of unilateral sanctions. I have drawn attention in my report to the jurisprudence of international courts and tribunals, which features recent cases where human rights treaties have been found applicable irrespective of a finding of “jurisdiction” or “control” stricto sensu or not, in situations where a State’s actions had entailed consequences abroad.
Certainly in such situations the targeted State is, and remains, under obligation to do its utmost to protect its population to the best of its ability. However so is the targeting State. The recognition of such an obligation incumbent on the latter, entails the legal accountability of targeting States. Their responsibility extends also to the adverse human rights consequences of sanctions that businesses from third States are thereby compelled to apply against the same target.
I also suggest in my report that the UN International Law Commission resume work on “extraterritorial jurisdiction”, that was initiated back in 2006. The Commission could be called upon to elaborate inter alia on the legal status and consequences of sanctions involving the unlawful assertion of jurisdiction by a source State or group of States on target States and a fortiori on third States. Alternatively, the International Court of Justice could be requested by the General Assembly to issue an advisory opinion on that matter.
III. Key development affecting selected unilateral sanctions regimes
In this year’s report I reviewed recent developments that affected sanctions regimes in force against certain countries: Belarus, Cuba, the Democratic People’s Republic of Korea, the State of Palestine (the Gaza strip), Iran, Myanmar, Qatar, the Russian Federation, the Sudan, Venezuela and Yemen. Although each single sanctions case is of course specific, I was able to identify a current trend which seems to point to a more frequent – if not systematic – use of unilateral sanctions as a foreign policy tool by certain countries. This is to be deplored.
By contrast, the developments regarding the Sudan are emblematic of a positive, win-win approach. After my visit to the Sudan, I engaged during 2016, along with the UN Independent Expert on the Sudan, in “quiet diplomacy” with a view to narrowing the differences between the Sudan and the United States in relation to sanctions.
These efforts were successful. In line with our recommendations to that effect, a special procurement unit was set up under the UN mission in Khartoum with American approval to make life-saving drugs available in the Sudan. Then in the final days of his administration US President Obama acceded to the request we made to relax the sanctions regime the U.S. had applied on the Sudan for 20 years. I warmly praise the US and Sudanese authorities for their positive responses to our recommendations and wish to renew to both States the expression of our deep gratitude.
The Sudanese Government for its part formally expressed appreciation to this mandate. It indicated inter alia that my mandate together with the Independent Expert on the Sudan had contributed significantly in lifting the sanctions on the Sudan and its people.
The U.S. Government move was not meant to materialize immediately. It contemplated that most sanctions would be revoked only six months later, provided the incoming U.S. Secretary of State acknowledged that the Government of the Sudan had sustained the “positive path” that gave rise to the U.S. decision. On 11 July 2017 a new presidential decision extended the review period for three more months. At its September session, the HRC reviewed the progress achieved by the Sudan and welcomed advances in the cessation of hostilities, in the National Dialogue and in the follow up of over 900 recommendations it adopted, in the release of human rights defenders and in humanitarian access. South Sudan itself expressed appreciation at the Council for the positive attitude of the Government of Sudan. While several advanced countries underlined that some human rights issue remain unaddressed, it was the position of this mandate that the process had gained sufficient momentum to dispense with the remaining sanctions in the pursuit of on-going negotiations.
I therefore launched at the HRC on 13 September an “appeal to all concerned to make 11 October 2017 the last day of the sanctions”. Thanks to the elevated sense of vision of the current US administration and its refusal to let this issue be marred by partisan considerations, the appeal received a positive response. A decision was thus taken by the US on 6 October to lift all remaining economic and trade sanctions on the Sudan effective 12 October 2017. The present mandate wishes to reiterate its gratitude to the US Administration for this timely decision which will improve the living conditions of the civilian population of Sudan. I also must reiterate my thanks to the Sudanese authorities which have cooperated fully to make this happy outcome possible.
I visited the Russian Federation in April 2017 to assess the impact of unilateral sanctions implemented against the country on the enjoyment of human rights. Based on data gathered and on interviews with stakeholders, I reached a determination that the unilateral measures have mainly (if not only) adversely affected the most vulnerable groups of the population. On the sidelines of my later visit to the European institutions in June 2017, I was also informed of the extent of the huge losses suffered by the EU agricultural sector due to the countermeasures taken by Russia in retaliation for EU sanctions.
I cannot but express concern about the entry into force of the recent additional sanctions against the Russian Federation. The significant expansion of the scope and applicability of these new measures, and their purported extra-territorial reach, may entail adverse effects on the Russian economy and may thus jeopardize its recent recovery and entail an indirect adverse human rights impact. It is observed that the 7 to 16 year age group and that of women of working age are those worst affected in situations of that kind. This will also further undermine the right to development in some EU member States. Experience shows that without simultaneous negotiations guided by an elevated vision, these UCMs may turn out again to make everybody worse off.
I finally wish to give a brief account of my official visit to the European Union institutions in Brussels in June 2017. Unfortunately, due to administrative constraints, the presentation of my report on this EU visit to the Human Rights Council will have to be postponed to next year.
During this visit I held meetings with officials of the European Commission and of the Council of the EU. I also met with the Parliament’s Subcommittee on Human Rights and was given an opportunity to address the Subcommittee. I suggested that additional steps be taken by the competent EU authorities to better ensure observance of human rights in the context of their sanctions policy.
Finally, I appreciated the fact that my concerns expressed in a communiqué on 12 April 2017 regarding the humanitarian situation in Yemen were quoted and supported in a resolution of the European Parliament adopted on 15 June 2017. The resolution explicitly endorsed my position and recommendations in this respect.
I thank you for your attention.