UN Special Rapporteurs are appointed by the Human Rights Council. INTERVIEW | Special Rapporteur on sanctions on alternatives to unilateral measures International law
Unilateral sanctions violate human rights, and there are alternative mechanisms in international law. This was stated by Special Rapporteur on unilateral sanctions Elena Dovgan in an interview with the UN News Service at the UN headquarters. She came to New York to present her latest report to the UN General Assembly.
ED: The report that I presented to the General Assembly was about the impact of unilateral sanctions on access to justice for all categories of people affected by sanctions. And the circle of these people is extremely broad, given that we are talking not only about unilateral sanctions, but also about the means of coercion to unilateral sanctions and their subsequent excessive compliance by businesses and even by individuals, enterprises and UN bodies that are located in different parts of the world.
The main conclusion is that, unfortunately, access to justice for people affected by unilateral sanctions is very limited. People who are directly sanctioned may still have some opportunities to bring their case to court, although even these people face serious problems, given that quite often they have no way to pay, no way to travel, and very often lawyers at companies in the countries that impose sanctions are reluctant to take on cases because of reputational risks.
But also, quite often sanctions are imposed on grounds that are not publicly disclosed or are not transparent. So it is very difficult to know what exactly you will be speaking out against.
Access to justice for people affected by unilateral sanctions is very limited
We are seeing a “reversal of the burden of proof” because usually the state has to prove that someone – an organization or an individual – did something wrong. Under sanctions, the individual has to prove that he or she or the company did nothing wrong, without knowing what the accusation is.
But unfortunately, people who are not directly included in the sanctions list suffer even more, because quite often, when we are not talking about the direct impact of targeted sanctions, but about the impact of trade sanctions, financial sanctions, sports, academic or any other, as well as secondary sanctions, there is a general sense of fear of unilateral sanctions and, accordingly, their excessive compliance. Formally, they have no grounds for going to court. There are a number of cases where people have tried to bring the case to court.
For example, the Iranian Thalassemia Association and the Iranian EBP Association tried to bring a case in a US court to get access to medicines that are very important to them. The court said it had no jurisdiction. So they have no way to appeal the decision. They have no way to get their rights protected. What’s more, what’s even more dangerous is that they can’t even appeal to international bodies because traditionally UN bodies require domestic remedies to be exhausted first – before a case can be brought to their attention.
So one of my recommendations is that UN bodies should start accepting these cases without the requirement to exhaust domestic remedies, because they simply cannot be exhausted.
UN News Service: You have stressed many times in the past that sanctions against countries can have a negative impact on ordinary people and infringe on their rights. But at the same time, in some cases, sanctions can be an alternative, for example, to military action. If sanctions are indeed a violation of human rights, what alternative mechanisms would you propose??
ED: I I believe that this way of posing the question, and this is mainly the position of the countries imposing sanctions, is incorrect from a legal point of view. Formally, the sanctioning countries make the argument that they are trying to achieve some good common goal and therefore they need to do something.
When we deal with international law, we do not have a choice – to do something or to do nothing. We can use legal means. According to international law, the use of force is prohibited. Therefore, we have no choice: either to use force or to do nothing. If, for example, a state is not satisfied with the behavior of another state, it can freely use legal instruments. And international law knows many legal instruments. And in my reports, I have never said that no means of pressure are allowed.
Countermeasures must fully comply with the standards of countermeasures, be proportionate to the violation
But at the same time, countermeasures must fully comply with the standards of countermeasures, be proportionate to the violation, the intention to restore the fulfillment of international obligations. And they must never violate basic human rights. Today we are faced with the fact that unilateral sanctions affect human rights, so they do not fit into the criteria of countermeasures.
Moreover, if we look at the recent decisions of the European Court of Justice and the case on sanctions in the European Court, it clearly states that restrictive measures, that is, sanctions of the European Union, should not be assessed as countermeasures, because it is part of the EU’s foreign policy. And the Council of the European Union has every right to decide on foreign policy at its own discretion. But at the same time, the European Court did not consider the issue that the foreign policy of any institutions, both states and international organizations, should be carried out within the framework of international public law. And, unfortunately, such foreign policy of the European Union violates international law. Therefore, when a state is dissatisfied with the policy of another state, it can use legal means of pressure. The use of illegal means is essentially a violation of international law.
UN News Service: Can you give examples of legal means?
ED: When we talk about retorsions (in international law – lawful coercive actions of a state in response to an unfriendly act of another state – editor’s note), a state, for example, can decide not to become a party to an international treaty, even if the treaty was negotiated over a long period of time. It can stop diplomatic relations. These are unfriendly measures. They make life difficult for people, but at the same time they are completely legal.
Or, for example, a state may decide to withdraw from an international treaty, but the withdrawal must not happen overnight, but in accordance with the rules of the treaty. The basic rule of the Vienna Convention on the Law of Treaties on this matter is very clear: either these must be the rules of the treaty, or it must be a notice of withdrawal from the treaty made at least 12 months before the withdrawal. That is, we are talking about the law of international treaties, based on the stability and continuity of international relations.
States may mutually fail to fulfill obligations under the treaty
As for countermeasures, for example, if a state violates an international treaty, the states directly affected may mutually fail to fulfill their obligations under that treaty. However, this must not be done with the purpose of punishment. This can only be done with respect to a state. It cannot be done on the basis of the argument “we don’t like these people because they are members of someone’s family or friends.” This is not a basis. The European Court has ruled that being a member of someone’s family is not a crime. Otherwise, this could be qualified as collective punishment, which is completely prohibited by many UN documents and is prohibited even in times of war by international humanitarian law.
In such situations, all the criteria for countermeasures must be fully met. Including the criteria of proportionality, for example, proportionality to the violation, and not the supreme goal, as declared, for example, in the policy of the United States, not the protection of internal security interests, but proportionality to the violation, should be applied to states or to entities whose activities are related to the state.
This is like the introduction of sanctions against Russian oligarchs. Being a rich person is not a crime. If the idea of imposing sanctions is discussed, then all the criteria for countermeasures must be assessed.
UN News Service: You also mentioned excessive compliance with unilateral sanctions. Could you clarify what that means and give examples?
ED: I addressed the issue of excessive compliance in two of my reports. But the problem was so widespread that I continued to work on it and initiated the development of guidelines on sanctions, business and human rights, as well as commentaries to the guidelines. On November 21 and 22, we will hold a conference in Geneva at three different levels to discuss this issue.
Over-compliance, unfortunately, is now causing as much, and sometimes more, harm than the unilateral sanctions themselves. Over-compliance means that people, companies, or states decide not only to do exactly what the unilateral sanctions require, but to do more. They do more for different reasons.
Moreover, the sanctions regime changes very quickly. So someone who is not under sanctions today may be under sanctions tomorrow. National courts of sanctioning countries interpret the scope of sanctions differently, and you never know how and what can be classified.
I will give a very simple example: sanctions against the Russian Federation. In the United Kingdom, there are two court decisions. One of the court decisions states that given that Russia has an authoritarian system of government, everything that happens on Russian territory and Russian citizens are considered to be under Putin’s control and should be subject to sanctions.
And now the court said we can’t interpret it that way. There has to be a clear connection to government activity in order to say that a person or company is connected to Russian President Putin. And so in reality, no one knows how or what to interpret. And since businesses don’t want to be punished – and the punishment for circumventing sanctions is extremely high – they prefer to use the broadest possible interpretation.
I want to mention how serious the punishment is. In the US, it can be a criminal penalty of up to 20 years in prison, or it can be a fine. Typically, a fine is $250,000 and goes up to $1 million. And when it comes to businesses, the amount is unlimited.
I want to mention how serious the punishment is. In the US, this can be a criminal offense punishable by up to 20 years in prison
Basically, no one knows what is allowed and what is not, and whether what is allowed today will be allowed tomorrow. All this leads to over-compliance. Businesses and individuals prefer not to face any sanctions, and they interpret the imposed sanctions to the maximum, and this is called “over-compliance”.
So what are its consequences? It is very difficult to appeal. Over-compliance makes de jure existing humanitarian exceptions dysfunctional, ineffective.
The most common case that humanitarian organizations refer to is that, for example, after the UN Security Council adopted Resolution 2664 and required states to comply with this resolution, all the major sanctioning players, such as the United States, Great Britain, and the European Union, adopted a very short but general license asking businesses to comply with these resolutions.
Humanitarian organizations studied Resolution 2664 and decided to try to deliver humanitarian aid. But the banks immediately refused. They said that formally, yes, a general license exists, but there are still sanctions on financial transactions and there are also sanctions on deliveries. Therefore, no transport company will accept cargo for delivery to Syria, Iran, Venezuela, or anywhere else. No insurance company will insure your cargo. So why should we make a deal in that case? Because there are financial sanctions and economic sanctions.
The main point I am trying to make is that under international law, states have a duty of due diligence. It is not enough to tell a business that you should not comply with third-party sanctions, as the European Union, China and others do, because the business is afraid of being punished by third countries, and it will comply anyway.
The state, in accordance with the principle of due diligence, has a duty to ensure that business respects human rights, which means that states have a duty to create conditions under which business will minimize excessive compliance or will not resort to excessive compliance at all.