History suggests that coercion has probably always been one of the most common modes of interaction between political entities, from ancient cities to the modern state.Footnote 1 Over time, however, coercive practices used in the course of armed conflicts, such as sieges, naval blockades, and reprisals, have been subjected to certain important legal limitations and restrictions aimed at the protection of civilian populations.Footnote 2 These rules, such as the prohibition of starvation of civilian populations and the obligation to permit the free passage of all consignments of essential foodstuffs and medical supplies, are now codified in the Geneva Conventions and their Additional Protocols and as such are universally accepted (albeit sometimes disregarded in practice).Footnote 3 Nonetheless, the legal regulation of non-forcible (that is, economic) coercion outside the context of armed conflict has long remained embryonic and is still underdeveloped, even though these measures in some cases may rise to the level of forcible coercion.Footnote 4
In recent years there has been a return to de facto comprehensive economic sanctions, such as those currently applied by the United States against Syria, Iran, and Cuba, including extraterritorial enforcement on third parties. In such cases, source states may go beyond embargoes and create de facto blockades (which are acts of war). The increasing use of economic warfare in the context of the erosion of multilateralism more generally seems to have overturned previous achievements in regulating unilateral sanctions. Further, whereas until recently sanctions were typically imposed by powerful Western countries on smaller developing countries,Footnote 5 sanctions are now in the process of mutating to become a means of pressure between countries of the South, as in the case of the coalition embargo by Saudi Arabia, the United Arab Emirates, Bahrain, and Egypt targeting Qatar. Sanctions are also becoming a form of economic warfare between advanced countries, as in the case of the U.S. and EU sanctions against Russia, and recently of the United States against China. This has been vaunted by the president of the United States on the questionable assertion that “trade wars are good, and easy to win.”Footnote 6 Venezuela is another case in point, where sanctions are being used in connection with veiled and even open threats of military intervention in violation of Article 2(4) of the UN Charter and attempts at regime change. There is mounting evidence that unilateral economic sanctions adopted by the United States and other countries (such as Australia and New Zealand) and groups of countries (such as the European Union) coupled with a multifaceted economic war waged against Venezuela (including, but not limited to, allegations of currency manipulation and media campaigns aimed at discouraging foreign investments and shutting down the country's ability to access financial markets) have played a non-negligible role in crippling the country's economy.Footnote 7
In this essay I examine a particular type of economic sanctions, namely, unilateral economic sanctions, as a coercive tool. Unilateral sanctions are implemented not by the UN Security Council but by a single state or group of states targeting another state or persons within a targeted state. These may extend to “secondary sanctions,” in which the sanctioning state penalizes companies in third-party states that do business with the target. This form of coercion has become increasingly commonplace in international relations over the last decade, and is one with which I have become all too familiar as the United Nations Special Rapporteur on unilateral coercive measures. In the first section, I briefly look at the international legal issues surrounding unilateral sanctions, while in the second section I review some of the major ethical concerns. In the third section, I offer a number of proposals to alleviate some of these ethical concerns, particularly the problem of wrongful harm, though these proposals should be considered temporary stops along a path toward the full prohibition of unilateral sanctions. I conclude with a cautionary note about some recent worrying developments in the use of this coercive tool.
The Legality Debate and an Emerging Consensus
The contemporary trend has generally been toward the centralization of the authority to use economic sanctions in international relations. Chapter V of the UN Charter designates the UN Security Council as the main body responsible for the maintenance of international peace and security.Footnote 8 And Chapter VII gives the Security Council the exclusive power to adopt economic sanctions in situations that endanger such international peace and security. This leads to the dominant view of the international community, according to which economic sanctions taken outside this framework are “unilateral” and unlawful. Nonetheless, some thirty states, mainly advanced Western ones, challenge this position and advocate that unilateral sanctions are legitimate tools with which to pursue certain foreign policy objectives.
On the one hand, this opposition of views is persistent and perennially appears in debates in the UN General Assembly on resolutions regarding the topic of human rights and unilateral coercive measures, as well as in other forums. On the other hand, the rejection of the U.S. embargo on Cuba—one of the most high-profile and long-lasting cases of unilateral sanctions—has become so widespread within the international community that it reached overwhelming consensus if not total unanimity in the General Assembly in 2018. The latest resolution condemning the embargo, adopted on November 1, 2018, had 189 states in favor and only two against, with no abstentions.Footnote 9
These successive resolutions, while nominally concerned with the Cuban embargo, actually contain language that clearly applies to unilateral coercive measures beyond the Cuban context. The resolutions call on “all States” to “refrain” from using unilateral coercive measures. The measures condemned are the “laws and regulations” adopted by states, “the extraterritorial effects of which affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation.”Footnote 10 The resolutions also make clear that by refraining from promulgating and applying such laws and measures or terminating existing measures in force, as the case may be, states would be acting “in conformity with their obligations under the Charter of the United Nations and international law, which, inter alia, reaffirm the freedom of trade and navigation.”Footnote 11 The 2018 resolution refers to a number of general principles, including “the sovereign equality of States, non-intervention and non-interference in their internal affairs and freedom of international trade and navigation, which are also enshrined in many other international legal instruments.” The 2018 resolution preamble also refers to “declarations and resolutions of different intergovernmental forums, bodies and Governments that express the rejection by the international community and public opinion of the promulgation and application of measures of the kind referred to above.”Footnote 12 These positions strongly support the view that unilateral coercive measures with secondary or extraterritorial effects, “which affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation,”Footnote 13 are almost universally seen by the international community as illegitimate. This suggests an emergent (if not already established) rule of customary international law.
Human Rights Consequences of Sanctions
The stalemate between proponents and opponents of unilateral sanctions should not, however, overshadow their human rights consequences. After the UN-mandated comprehensive trade embargoes of the 1990s against Haiti, Iraq, and the former Yugoslavia were found to have caused massive adverse economic and humanitarian harm,Footnote 14 the UN system undertook numerous reforms to better address basic human rights and rule of law concerns when designing and implementing sanctions. The same concerns have led the UN to renounce comprehensive, wide-ranging embargoes and to turn instead to targeted, so-called “smart” sanctions against specific sectors of activity or designated individuals and entities held directly responsible for the very threat or malign behavior that the sanctions are expected to curb.
But even smart sanctions have proven to be blunt instruments, and they almost inevitably provoke collateral damage. Researchers have shown that targeted sanctions are easier to evade, and thus their costs can be more easily shifted onto others, directly or indirectly.Footnote 15 The claim that smart sanctions are effective is also “belied by the tendency of frustrated Western governments to escalate personally targeted sanctions into sector-wide measures that will inevitably have society-wide repercussions.”Footnote 16 Indeed, in many cases the superimposition of diverse smart sanctions on a target country ends up looking like comprehensive sanctions by another name. For example, fifty-two different packets of smart sanctions were applied against Syria, adding up to invasive misery imposed on an entire population. Ironically, when in May 2018 the EU decided to extend its sanctions for another year, it cited as a reason for this decision the violation of Syrians’ human rights by the government.Footnote 17 This was tantamount to announcing one's attempt to extinguish a blaze with a flamethrower rather than a water hose.
Unilaterally imposed sanctions regimes continue to have the potential to negatively affect virtually all human rights,Footnote 18 including the right to life;Footnote 19 the right to health;Footnote 20 the right to education;Footnote 21 and the right to an adequate standard of living, including food, clothing, housing, and medical care.Footnote 22 As referred to above, the Security Council, after tragic consequences of comprehensive sanctions in Haiti, Iraq, and the former Yugoslavia, now resorts to only targeted sanctions, using impact assessments and an appeals procedure in certain cases.
The right of people to self-determination, the realization of which “is an essential condition for the effective guarantee and observance of individual human rights,”Footnote 23 can also be affected by unilateral sanctions, especially comprehensive ones. This right is recognized in both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, which both state in their Article 1 that “by virtue of that right [the peoples] freely determine their political status and freely pursue their economic, social and cultural development.” The second paragraph of Article 1 of both covenants provides that “in no case may a people be deprived of its own means of subsistence.”Footnote 24 Scholars have noted that in that respect “it is plain that in a given case, universally imposed sanctions regimes, which are insufficiently tailored or targeted and which lack adequate humanitarian exemptions, could have the cumulative effect of depriving a population, or substantial sections of it, of their means of subsistence.”Footnote 25 It also seems reasonable to argue that “unilateral economic sanctions (as opposed to multilateral UN measures under Chapter VII of the Charter) imposed by one State or group of States on another, to compel the latter to change a particular political or economic policy, could amount to a prohibited intervention and a denial of self-determination.”Footnote 26
Finally, the right to development, particularly as recognized in General Assembly Resolution 41/128, is especially vulnerable to economic sanctions. The Human Rights Council reaffirmed in 2017 that “unilateral coercive measures are major obstacles to the implementation of the Declaration on the Right to Development.”Footnote 27 It is clear that economic sanctions imposed on a country almost inevitably pose serious disincentives for foreign investors, as well as for foreign banks and international financial institutions, such as the World Bank Group. This harms the country's economy, which in turn affects everyone's human rights, especially the poorest and most vulnerable segments of the population.Footnote 28 In Iran, for example, recent U.S. economic sanctions have affected tens of millions of ordinary Iranians, disrupting their access to jobs, food, and often medicine. When the United States reimposed these economic sanctions in 2018, Secretary of State Mike Pompeo boasted that after a new wave of sanctions, Iran would “be battling to keep its economy alive.”Footnote 29 This clearly shows that according to U.S. officials, an indiscriminate, massive impact on the economy and Iran's population is actually the intended consequence of the sanctions regime.Footnote 30 And yet somehow the current U.S. administration makes the paradoxical claim that the sanctions are not intended to hurt ordinary civilians.Footnote 31
Remedying Denial of Justice and Promoting Minimal Protections
Too often, civilians affected by economic sanctions, embargoes, and blockades are left without any meaningful remedies or forums wherein they can seek to have individual sanctions lifted or can obtain compensation and redress for harms wrongly suffered. To remedy this, the existing legal protections against economic sanctions, such as judicial review before the courts of the European Union available to those affected by EU sanctions, should be replicated in other regions of the world. The international community, which almost entirely agrees on the inadmissibility of extraterritorial application of secondary sanctions, should be called on to affirm at the very least certain basic requirements for existing sanctions regimes, pending the elimination of their use. These requirements should include mandatory human rights impact assessments (HRIAs) of sanctions programs, the availability of judicial review, and the existence of effective humanitarian exemptions.
First, HRIAs of sanctions programs should be recognized as a nonderogable obligation (that is, a right that cannot be withheld or compromised) that is incumbent on states using sanctions. In my 2017 report to the UN Human Rights Council, I suggested that such an obligation be formulated, without prejudice to the legality or other such conditions of the sanctions, as follows:
The parties implementing unilateral sanctions are under an obligation to conduct a transparent human rights impact assessment of the measures envisaged, and to monitor on a regular basis the effects of implementation of the measures, including as regards their adverse effects on human rights.Footnote 32
Such HRIAs should be conducted by the relevant state authorities, but could also be conducted by NGOs and international organizations, especially in cases where the responsible state fails to conduct such an assessment. The assessment should be conducted ex ante—before the measures are enacted—and aim to measure the potential future effects of such measures on human rights, thus allowing the state to adjust or change the sanctions regime with a view to preventing human rights violations. The assessment should also be carried out ex post, with a view to measuring the actual impact of implemented sanctions through comparison between the current situation and the situation before the measures were adopted. Monitoring should remain in place as long as the sanctions program remains in force.Footnote 33
Second, states should take measures to guarantee due process, judicial review, and redress to affected groups and individuals.Footnote 34 Often, meaningful forums or mechanisms to ensure remedies for victims of economic sanctions prove unavailable de facto, which amounts to a denial of justice. In this regard, the outcome of the pending contentious proceedings initiated before the International Court of Justice in the case of Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v. United Arab Emirates) should be closely examined. This case relates to a land, air, and sea embargo (not a blockade, despite the lazy application of this term in news reports) that the United Arab Emirates, along with Bahrain, Saudi Arabia, and Egypt, imposed in June 2017 against Qatar—an embargo that still stands as of this writing. The court will consider whether the sanctions are compliant with the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and under what conditions. if the court concludes they are not, this could in turn give new life to the possibility for individual victims, or entire states, to bring claims before the Committee on the Elimination of Racial Discrimination or for an affected state party to the ICERD to initiate contentious proceedings. In an order from July 23, 2018, the court considered that “at least some of the rights asserted by Qatar under Article 5 of CERD are plausible.”Footnote 35 It would be presumptuous at this stage, however, to draw conclusions as to whether this gives a clue as to what the court will decide on the substance of the case.
Third, effective humanitarian exemptions to any sanctions regime are a basic requirement of fundamental importance. I have repeatedly denounced the fact that in some cases payments and financial flows are affected by de facto bans on the use of SWIFT (Society for Worldwide Interbank Financial Telecommunication), the international wire transfer payment system, making humanitarian exemptions to sanctions ineffective. When humanitarian organizations inside the sanctioned country have no ability to pay for imports, they cannot buy food or medicine. This creates a situation that effectively amounts to an unlawful blockade or may be comparable to collective reprisals, both of which are banned under humanitarian law.Footnote 36
In my capacity as a UN Special Rapporteur, I have called on the United Nations and independent procurement agencies in third countries to remedy these situations and to ensure that humanitarian supplies reach target countries.Footnote 37 One positive development in this regard is the recent joint establishment of the Instrument in Support of Trade Exchanges (INSTEX) by France, Germany, and the United Kingdom, with the support of the EU. This is a special-purpose vehicle aimed at facilitating legitimate trade between European economic operators and Iran. It is an attempt to address the new wave of U.S. sanctions, which expressly claim to apply extraterritorially on a worldwide basis, thus threatening EU people and companies dealing with Iran. The sanctions threaten to cut off third-country businesses from access to the U.S. market if they continue to conduct even humanitarian-related business with firms in Iran, creating the risk of financial penalties and criminal liability in the United States for such countries. According to its sponsors, INSTEX “will support legitimate European trade with Iran, focusing initially on the sectors most essential to the Iranian population—such as pharmaceutical, medical devices and agri-food goods.”Footnote 38 At the time of this writing, some measure of uncertainty still surrounds this mechanism. According to certain sources, there might be a lack of political will on the EU side to ensure its effectiveness in shielding EU companies trading with Iran from U.S. sanctions, in the face of threats voiced by U.S. officials. This being said, it is worthy of note that INSTEX aims in the long term to be open to economic operators from third countries that wish to trade with Iran.
Another significant mitigation measure could flow from the broad-based recognition of the unlawfulness of secondary extraterritorial sanctions, already mentioned. There is arguably a duty under international law for states not to recognize such measures, grounded in customary international law. The UN General Assembly should solemnly affirm this principle by passing a resolution that states are expected to take appropriate measures (including under their domestic laws) to deny any effect or recognition or enforcement in any manner in their respective jurisdictions to extraterritorial secondary sanctions. In 1996 the EU adopted a regulation (“blocking order”) that prohibited EU persons from complying with U.S. sanctions against Cuba, Iran, and Libya; and in 2018 the EU passed a similar regulation that obliges EU companies not to comply with certain U.S. sanctions on Iran. Both regulations, in theory, allow EU companies that run afoul of U.S. secondary sanctions and thus have to pay a fine to sue the U.S. administration in courts in EU member states to recover damages. However, these regulations, while perhaps symbolically important, are largely seen as toothless and have never been effectively used.
States and international organizations should work toward the recognition of the three aforementioned basic requirements—HRIAs, forums for legal remedies, and effective humanitarian exemptions—as the minimum legal obligations for state-applied sanction. However, this should not be the ultimate goal: they should then work toward the full renunciation and prohibition of unilateral sanctions as a coercive tool.
Conclusion
I am of the view that the phenomenon of escalation and stockpiling of economic sanctions outside the ambit of the UN Security Council is a major step back for the rule of law with egregious, albeit often unintended, consequences on innocent populations, especially in the most vulnerable countries. Comprehensive economic sanctions have been adequately described as a tool to “destroy a country in order to save it,”Footnote 39 and that is an inhumane and unethical form of foreign policy.
In addition to the measures suggested above, I have also suggested that the UN secretary-general consider appointing one or more special representatives on unilateral coercive measures, each in charge of one or more country-specific sanctions regimes. That would be a very strong signal of the United Nations system's engagement with the ongoing efforts to limit and ultimately abolish the use of unilateral sanctions. The mandate of a special representative on unilateral sanctions could encompass advocacy for the respect of international law in matters related to unilateral coercive measures, the negotiation of relief measures, the alleviation of the most indiscriminate measures, and the ultimate consensus on a case-by-case basis for the removal of unilateral sanctions.Footnote 40
Beyond this, I also favor a quiet-diplomacy approach that consists of engaging constructively with a source or a target country with the goal of promoting consensus, as was the case for the lifting of sanctions against the Sudan. In that case, a joint engagement with the parties through quiet diplomacy by the independent expert on the Sudan and myself achieved the desired objective—namely, the U.S. decision to lift sanctions, which had the effect of improving the living conditions of the most vulnerable groups in the Sudan.Footnote 41 It bears mention here that the sanctions against the Sudan had fostered a “rally-round-the-flag” reaction that consolidated the regime of Omar al-Bashir. It was actually the lifting of the U.S. sanctions that had been applied for over two decades that emboldened the Sudanese population to remove Bashir, and to so do without the activists being accused of pandering to an outside power.
Nevertheless, the restrictive character of these unilateral measures is increasing over time. Embargoes that restrict trade between source and target countries are gradually mutating into blockades by which source countries compel third countries to stop any business relations with a target state. This is a denial of the rights of entire nations, whose people wind up hostage to these inhumane practices. The fact that these blockades are so inhumane leaves little space for providing a dignified outcome for the targeted state, which often leads to the eruption of violence in response. Hence, measures of economic pressure intended to be a peaceful alternative to conflict could have the opposite effect and become instigators of war.
