33/48 Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
Document Type: Final Report
Date: 2016 Aug
Session: 33rd Regular Session (2016 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.16-13299(E)
Human Rights Council Thirty-third session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
Note by the Secretariat
The Secretariat has the honour to transmit to the Human Rights Council the report of
the Special Rapporteur on the negative impact of unilateral coercive measures on the
enjoyment of human rights, Idriss Jazairy, prepared pursuant to Council resolutions 27/21
and 30/2. In the report, the Special Rapporteur lists the key activities that he undertook
between July 2015 and June 2016. He then focuses on the issues of remedies and redress
for victims of unilateral coercive measures, based on a review, assessment and evaluation
of the various mechanisms available to victims. Finally, he recommends steps to be taken to
reinforce or create avenues for remedies.
Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
Contents
Page
I. Introduction ...................................................................................................................................... 3
II. Activities of the Special Rapporteur ................................................................................................ 3
III. Follow-up to previous recommendations of the Special Rapporteur ............................................... 4
IV. Remedies available to States affected by unilateral coercive measures .......................................... 4
A. Remedies available under the Charter of the United Nations .................................................. 4
B. Remedies available under specific dispute settlement clauses in treaties ............................... 5
V. Remedies available to individuals and entities affected by unilateral coercive measures ............... 9
A. Domestic remedies ................................................................................................................... 9
B. Human rights bodies ............................................................................................................... 10
C. Compensation commissions .................................................................................................... 13
D. Regional or international courts ............................................................................................... 13
VI. Conclusion and recommendations ................................................................................................... 19
I. Introduction
1. The present report is submitted by the Special Rapporteur on the negative impact of
unilateral coercive measures on the enjoyment of human rights, Idriss Jazairy, pursuant to
Human Rights Council resolutions 27/21 and 30/2.
2. The Human Rights Council, in its resolution 30/2, and the General Assembly, in its
resolution 70/151, requested the Special Rapporteur to focus on the negative impact of
unilateral coercive measures on the enjoyment of human rights of victims and to address
the issues of remedies and redress with a view to promoting accountability and reparations
in his next reports.
3. In the present report, the Special Rapporteur focuses on the issues of remedies and
redress and, in line with his mandate, reviews, assesses and evaluates the various
mechanisms available to victims of unilateral coercive measures. The report will be
supplemented by the report that the Special Rapporteur will submit to the General
Assembly at its seventy-first session, in which he will examine the conceptual aspects of
the remedies relating to violations of human rights owing to the application of unilateral
coercive measures in international law, human rights law and humanitarian law.
4. Given the complexity of the subject matter and its multifaceted and intricate aspects,
the findings set out in this report, as well as the conclusion and the recommendations
formulated, are preliminary and tentative. The Special Rapporteur welcomes any
comments, information and suggestions that Governments, non-governmental organizations
and any other interested parties may have on remedies and redress in relation to the
negative impact of unilateral coercive measures on human rights.
II. Activities of the Special Rapporteur
5. Since 15 July 2015, the Special Rapporteur has sent requests for official visits to the
European Union and Zimbabwe and a reminder to the United States of America. At the
time of writing the present report, he had not received any replies. The Special Rapporteur
received an invitation to visit the Syrian Arab Republic.
6. Between 15 July 2015 and 30 June 2016, the Special Rapporteur issued eight press
releases, three of which were issued jointly with other special procedures.
7. On 17 September 2015, the Special Rapporteur participated in the first biennial
panel discussion on the issue of unilateral coercive measures and human rights, held in
Geneva.
8. On 26 October 2015, the Special Rapporteur presented his first report to the General
Assembly (A/70/345), which consisted of a preliminary review of the human rights
adversely affected by unilateral coercive measures.
9. The Special Rapporteur carried out his first official country visit to the Sudan from
23 to 30 November 2015 (see A/HRC/33/48/Add.1). He thanks the authorities of the Sudan
for their engagement with his mandate. At the end of his visit, the Special Rapporteur
issued a press statement containing his preliminary observations and recommendations.1
1 See www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=16824&LangID=E.
10. On 15 December 2015, the Special Rapporteur joined with three other mandate
holders and sent a communication to India regarding the alleged blockage at the Nepal-
India border of vessels carrying essential goods, which had resulted in a lack of basic
supplies and services to the people of Nepal (see A/HRC/32/53. p. 29). The Government of
India replied on 28 December 2015.2
11. On 22 February 2016, the Special Rapporteur sent letters to member States
reiterating his request for information on unilateral coercive measures. Thirteen countries3
sent written information. The Special Rapporteur thanks the Governments that replied and
encourages all member States to provide him with the requested information so as to enable
him to fulfil his mandate. In addition, in order to preserve the integrity of the Human Rights
Council, he invites all States to engage in good faith with all special procedures, as
requested by the Council in its resolutions, regardless of the voting record that led to the
creation of the mandates.
12. On 21 June 2016, the Special Rapporteur participated in a side event, held during the
thirty-second session of the Human Rights Council, on the negative impacts of unilateral
coercive measures.
III. Follow-up to previous recommendations of the Special Rapporteur
13. Since his appointment, the Special Rapporteur has submitted reports containing
several observations and recommendations relating to the theme of his mandate to the
Human Rights Council and the General Assembly.4
14. The Special Rapporteur reiterates all his recommendations, in particular the
recommendation to set up a consolidated central register at the level of the Security Council
or of the United Nations Secretariat to recapitulate the list of all unilateral coercive
measures in force (see A/HRC/70/345, para. 56 (a)). This register should be kept according
to the standards currently applied for Council sanctions and made public. Sender/source
States or group of States should be invited to notify the Council of unilateral coercive
measures in force at their initiative and of their evolution. Such a mechanism could draw on
the model of the United Nations Register of Conventional Arms, which includes data on
international arms transfers as well as information provided by member States on military
holdings, procurement through national production and relevant policies.5
IV. Remedies available to States affected by unilateral coercive measures
A. Remedies available under the Charter of the United Nations
15. The Charter of the United Nations (Article 33) sets out a number of mechanisms for
the settlement of disputes between sovereign States, which may be of relevance for States
on which unilateral coercive measures that affect the enjoyment of human rights by their
2 See https://spdb.ohchr.org/hrdb/31st/India_28.12.15_(16.2015).pdf.
3 They were Angola, Bahrain, Belarus, Bolivia (Plurinational State of), Cuba, Ecuador, Iran (Islamic
Republic of), Kuwait, Mexico, Montenegro, Russian Federation, Sudan and Syrian Arabic Republic.
4 See A/HRC/30/45; and A/70/345, in particular, paras. 56, 64, 66, 68, 70, 72 and 76.
5 See General Assembly resolution 46/36 L, para. 7.
populations have been imposed. These mechanisms are also referred to in the Declaration
on Principles of International Law concerning Friendly Relations and Cooperation among
States in Accordance with the Charter of the United Nations, according to which, States
shall seek early and just settlement of their international disputes by negotiation, inquiry,
mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or
arrangements or other peaceful means of their choice.6
16. While States are free, as a matter of principle, to agree on such peaceful means as
may be appropriate to the circumstances and the nature of their disputes,7 they are obligated
to fulfil in good faith their obligations under the Charter. The legality of recourse to
countermeasures in situations where inter-State negotiations are under way remains
questionable.8
17. The Charter also provides that the Security Council shall, when it deems necessary,
call upon the parties to settle their dispute by peaceful means (Article 33(2)), and that any
member of the United Nations may bring any dispute, or any situation of the nature referred
to in Article 34, to the attention of the Security Council or of the General Assembly (Article
35(1)). The Special Rapporteur points out that, in accordance with Article 50 of the Charter,
any State confronted with special economic problems as a result of the implementation of
United Nations sanctions have the right to consult the Security Council. The ongoing
debates surrounding the application of Article 50 and the compensation mechanisms that
could be devised to that effect should considered to some extent relevant also to the issue of
compensation for the adverse impacts of unilateral coercive measures.9
B. Remedies available under specific dispute settlement clauses in treaties
1. International Court of Justice
18. The International Court of Justice has dual jurisdiction. The Court may be called
upon to consider legal issues relating to unilateral coercive measures in the exercise of both
its contentious jurisdiction and its advisory jurisdiction.
Contentious jurisdiction
19. The Court may only deal with an inter-State dispute when the States concerned have
recognized its jurisdiction. Therefore, no State can be a party to proceedings before the
Court unless it has consented thereto.10 Disputes between targeting and targeted States
regarding the application of unilateral coercive measures would fall under the broad
6 See General Assembly resolution 25/2625, annex .
7 See for example, Handbook on the Peaceful Settlement of Disputes between States (OLA/COD/2394)
(United Nations publication, Sales No. E.92.V.7), paras. 19-20.
8 It has been argued that “when the target State is engaged in negotiations in good faith, there should be
no need to resort to countermeasures, and thus countermeasures would not be permitted under the
requirement of necessity. It is only when the target State refuses to cooperate in dispute settlement in
good faith that countermeasures become necessary”. See Y. Iwasawa and N. Iwatsuki, “Procedural
Conditions” in The Law of International Responsibility, J. Crawford, A. Pellet and S. Olleson, eds.
(Oxford, Oxford University Press, 2010), p. 1153.
9 With regard to the application of Article 50 of the Charter, see A/47/277-S/24111, para.41, in which
the Secretary-General recommended that the Security Council devise a set of measures involving the
financial institutions and other components of the United Nations system that can be put in place to
insulate States from such difficulties. Such measures would be a matter of equity and a means of
encouraging States to cooperate with decisions of the Council.
10 See R. Mackenzie and others, The Manual on International Courts and Tribunals, 2nd ed. (Oxford,
Oxford University Press, 2010), p. 14.
definition of international legal disputes, understood as a “disagreement on a point of law or
fact, a conflict of legal views or of interests between two persons”.11 As only States may
apply to and appear before the International Court of Justice,12 international organizations,
other entities and private persons are not entitled to institute proceedings before the Court.
The legal standing of unrecognized States or de facto entities to apply to the Court is
subject to controversy.13 This issue may be relevant to certain sanctions regimes.
20. The jurisdiction of the Court in a contentious case brought by a targeted State
against a targeting State could be based either on a dispute settlement clause or on a special
agreement between the States concerned (an hypothesis a priori highly unlikely as regards
sanctions) or could result from the recognition by the targeting State of the Court’s
compulsory jurisdiction. An example of such a treaty arguably providing for the jurisdiction
of the International Court of Justice to hear a claim against the application of unilateral
coercive measures is offered by the 1955 Iran-United States of America Treaty of Amity,14
which was previously used by the Islamic Republic of Iran to institute contentious
proceedings in the Oil Platforms case.15
21. According to article 38 of the Statute of the Court, it shall apply in the adjudication
of disputes submitted to it, international conventions, international custom and the general
principles of law, as well as judicial decisions and the teachings of the most highly
qualified publicists of various nations. The Court may thus apply to a given case regarding
unilateral coercive measures, human rights norms that may be relevant to the evaluation of
sanctions, as briefly identified in a previous report of the Special Rapporteur.16 There have
been cases in the jurisprudence of the International Court of Justice in which the claimant
State based part of its claims on the alleged violation by the respondent State of human
rights norms.17
22. The International Court of Justice has already considered the legality of economic
sanctions under public international law. Called to rule on, inter alia, the legality of acts of
“economic pressure” exercised by the United States of America against Nicaragua, the
Court stated that “a State is not bound to continue particular trade relations longer than it
sees fit to do so, in the absence of a treaty commitment or other specific legal obligation”.18
11 This is the classical definition of a legal dispute set out by the Permanent Court of International
Justice in The Mavrommatis Palestine Concessions (Greece v. Great Britain), Judgment of 30 August
1924, P.C.I.J. Series. A, No. 2, p. 11.
12 See Statute of the International Court of Justice, art. 34 (1).
13 On this matter, see for example, Sean D. Murply, “International judicial bodies for resolving disputes
between States” in Oxford Handbook on International Adjudication, Cesare Romano, Karen Alter,
Yuval Shany, eds. (Oxford, Oxford University Press, 2013), pp. 185-186.
14 See Treaty of Amity, Economic Relations, and Consular Rights Between the United States of America
and Iran, 15 August 1955, 284 U.N.T.S. 93. On 14 June 2016, the Islamic Republic of Iran initiated
proceedings before the International Court of Justice against the United States of America, alleging
violations of the Treaty of Amity in relation to measures by the United States targeting Iranian
entities, including the Central Bank of Iran.
15 See Oil Platforms (Islamic Republic of Iran v. United States of America), Judgments, I.C.J. Reports
2003, p. 161.
16 See A/70/345.
17 See for example, Bruno Simma, “Human rights before the International Court of Justice: community
interest coming to life?” in The Development of International Law by the International Court of
Justice, Christian J. Tams and James Sloan, eds. (Oxford, Oxford University Press, 2013),
pp. 577-603.
18 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of
America), Merits, Judgment of 27 June 1986, I.C.J. Reports 1986, p. 14, para. 276; see also
A/HRC/19/33, paras. 13-14.
This suggests that the freedom to impose measures restricting trade with a targeted State is
circumscribed to situations where such measures would not involve a violation of existing
treaty obligations. This leaves the Court much to decide upon as regards unilateral coercive
measures, their legality or otherwise under public international law, and their conformity or
otherwise with human rights, including an assessment of the legal significance and
consequences of repeated resolutions of the General Assembly condemning recourse to
unilateral coercive measures.
23. The Special Rapporteur recalls that States subject to unilateral coercive measures
may verify the existence of treaties in force with the targeting State(s). Such treaties may
provide a basis for the jurisdiction of the International Court of Justice in the event of a
dispute regarding the interpretation or application of the treaty and could thus allow for a
legal challenge of unilateral coercive measures resulting in violations of obligations set out
in the relevant treaty, customary international law or relevant rules of human rights,
including those forming part of jus cogens.
Advisory jurisdiction
24. The International Court of Justice may render an advisory opinion on any legal
question at the request of any body or organ authorized by or in accordance with the
Charter of the United Nations to make such a request.19 In this regard, it should be noted
that further to Article 96 of the Charter, the General Assembly or the Security Council may
request the International Court of Justice to render an advisory opinion on any legal
question. In advisory cases, States are not parties and there is no claimant or defendant. The
Court invites States or international organizations to provide information to assist the Court
in its determination of the point(s) of law at issue.
25. Despite the fact that the advisory opinions of the Court are non-binding, they are of
great practical importance and could have far-reaching implications. Indeed,
The importance of the advisory function stems from the fact that it affects the
general interpretation of International Law for the international community rather
than simply for the particular States or entities directly affected by an individual
opinion. Thus, advisory opinions of the Court, if properly implemented cannot only
guide the requesting organ but also may serve the interests of the whole international
community.20
26. In that respect, the Special Rapporteur invites member States concerned to consider
submitting to the International Court of Justice a request for an advisory opinion on the
legality or otherwise of the unilateral coercive measures, especially under the angle of their
compliance or otherwise with human rights norms. Such advisory opinion would be of
great significance to the international community and for the advancement of the rule of
law. For the General Assembly to take a decision to submit a request for an advisory
opinion to the International Court of Justice on the legality or otherwise of unilateral
coercive measures, a resolution adopted by a simple majority vote appears to be sufficient.21
19 On the advisory function of the International Court of Justice in general, see Mahasen M. Aljaghoub,
The Advisory Function of the International Court of Justice, 1946-2005 (Berlin/New York, Springer,
2006); and Shabtai Rosenne, The Law and Practice of the International Court, 1920-2005, 4th ed.
Vols. I-IV (Boston, Massachusetts, Nijhoff Publishers, 2006).
20 Ibid., p. 5.
21 The question of whether a request for an advisory opinion constituted an “important question” in the
meaning of Article 18 (2) of the Charter of the United Nations, thus requiring a two-thirds majority
vote in the General Assembly, seems to have been resolved by the negative, as evidenced by the
uncontroversial practice following the requests to the International Court of Justice to render advisory
27. The Special Rapporteur deplores the fact that, the Human Rights Council has not
been authorized to request advisory opinions from the International Court of Justice
although its status as a subsidiary organ of the General Assembly22 would have warranted
it. Such authorization has been given to a number of United Nations specialized agencies
and main organs of the United Nations, including the Economic and Social Council.23
2. Inter-State arbitration
28. In addition to the International Court of Justice, a number of bilateral and
multilateral treaties provide for the compulsory jurisdiction of an international arbitral
tribunal in cases of dispute between the parties to the instruments with regard to the
interpretation or application thereof. Such dispute settlement clauses could, in certain
situations, be used to bring inter-State claims based on unilateral coercive measures that
may violate some provisions of the treaty considered.24
3. World Trade Organization dispute settlement mechanism
29. To the extent that unilateral coercive measures imposed by a World Trade
Organization (WTO) member State against another member State may arguably entail
violations of the obligations set forth in the WTO agreements, the question arises as to
whether recourse to the WTO Dispute Settlement Body is an option for a WTO member
State faced with international sanctions.25
30. The State(s) affected should of course demonstrate that the measures considered
contradict various provisions of the WTO agreements. It may be reasonable to think that
some of the grounds for considering unilateral coercive measures unlawful under public
international law would also be considered by the WTO dispute panel. Article 3.2 of the
WTO Understanding on Rules and Procedures Governing the Settlement of Disputes
provides that the dispute settlement system of the WTO serves to preserve the rights and
obligations of members under the covered agreements and to clarify the existing provisions
of those agreements in accordance with customary rules of interpretation of public
international law. In 1996, WTO Appellate Body, in US–Gasoline stated that “the General
Agreement on Tariffs and Trade is not to be read in clinical isolation from public
international law”.26 Regarding the possible invocation of security exceptions (such as that
opinions on the legal consequences of the construction of a wall in the Occupied Palestinian territory
and on the accordance with international law of the unilateral declaration of independence in respect
of Kosovo. See Jochen Frowein and Karin Oellers-Frahm, “Article 65”, in The Statute of the
International Court of Justice: A commentary, Andreas Zimmermann and others, eds. (Oxford,
Oxford University Press, 2012), p. 1614.
22 See General Assembly resolution 60/251.
23 See General Assembly resolution 89 (I).
24 See for example, the Treaty between the Federal Republic of Germany and the Republic of the Sudan
concerning the Encouragement of Investments, 7 February 1963, art. 11, available at
http://investmentpolicyhub.unctad.org/Download/TreatyFile/1420.
25 The Russian Federation, WTO member since 2012, has referred to the option of bringing proceedings
before the WTO Dispute Settlement Body to challenge European Union and United States sanctions
against it. Russian Minister of Economic Development, Aleksey Ulyukaev, stated that the latest round
of sanctions provided grounds to appeal to the WTO, and that they would appeal them: see Russia
Today, “Russia to appeal against US, EU sanctions to WTO” (12 September 2014) available at
http://rt.com/business/187432-wto-russia-sanctions-ulyukaev/; also E. Pickett and M. Lux, “Embargo
as a trade defence against an embargo: the WTO compatibility of the Russian ban on imports from the
EU”, Global Trade and Customs Journal, vol. 10, No. 1 (2015), pp. 2-41.
26 World Trade Organization, United States – Standards for Reformulated and Conventional Gasoline,
Report of the Appellate Body, 29 April 1996 (WT/DS2/AB/R), p. 17.
set out in article XXI of the General Agreement on Tariffs and Trade)27 as a defence by
States imposing sanctions, it is to be noted that the legislative history of article XXI of the
General Agreement on Tariffs and Trade indicates that this provision was not meant to be
excluded from the WTO dispute settlement procedures.28 That reinforces the argument that
security exceptions were not conceived of as a self-judging provision.29 On a related note, it
has also been suggested that the WTO Dispute Settlement Body could possibly be seized of
a dispute carrying human rights arguments.30
V. Remedies available to individuals and entities affected by unilateral coercive measures
A. Domestic remedies
31. Whether individuals or entities subject to unilateral coercive measures can benefit
from effective judicial review before the domestic courts of the targeting State(s) depends
in the first place on the country considered. It appears that in most jurisdictions, domestic
courts are unlikely to grant remedies to individuals or entities affected by unilateral
coercive measures, as the courts display a significant measure of deference vis-à-vis the
political decisions underlying sanctions. It should also be noted that, under European Union
law, domestic, or national, courts throughout the European Union are bound to apply
European Union restrictive measures.
32. There have been cases, however, in which national implementation measures of
United Nations sanctions have been challenged before domestic courts, for example, in the
United Kingdom of Great Britain and Northern Ireland.31 It is unclear whether any of the
applicants were awarded damages. Reportedly, a case concerning sanctions-related
damages is currently pending before the British High Court of Justice. The case was
brought by Bank Mellat (an Iranian bank), after the Supreme Court of the United Kingdom
ruled in 2013 that the 2009 order of the Government of the United Kingdom imposing
financial restrictions on the bank in the United Kingdom was unlawful.
27 This article allows a party to disregard its obligations under the General Agreement on Tariffs and
Trade by “taking any action which it considers necessary for the protection of its essential security
interests” with reference to various situations, including “in time of war or other emergency in
international relations” and “in pursuance of its obligations under the United Nations Charter for the
maintenance of international peace and security”. This latter provision clearly refers to obligations to
comply with Security Council resolutions under Chapter VII of the United Nations Charter and, as
such, does not cover unilateral coercive measures.
28 See M. J. Hahn, “Vital interests and the law of GATT: an analysis of GATT’s security exception”,
Michigan Journal of International Law, vol. 12 (1991), pp. 556-567.
29 See Mitsuo Matsushita and others, The World Trade Organization: Law, Practice and Policy
(Oxford, Oxford University Press, 2006), p. 597.
30 See for example, G. Marceau, “WTO dispute settlement and human rights”, European Journal of
International Law, vol. 13 (2002), pp. 753-814.
31 See for example The Queen on The Application of Aguy Georgias v. Secretary of State for The Home
Department [2008] EWHC 1599, in which a member of the Government of Zimbabwe targeted by a
travel ban imposed on him by Council Common Position 2007/235/CFSP renewing restrictive
measures against Zimbabwe, brought a claim for judicial review, which was dismissed by the High
Court.
B. Human rights bodies
33. Within the United Nations system, there are a number of treaty-based mechanisms
that potentially allow individuals to pursue claims against States based on violations of
human rights.32 Some of these mechanisms are, a priori, relevant to the situation of persons
whose human rights have been infringed by unilateral coercive measures. It must, however,
be emphasized that, in certain cases, such mechanisms may be unavailable because some
States imposing unilateral coercive may not have ratified the relevant treaties or protocols.
34. It can be assumed that individuals whose enjoyment of human rights is adversely
affected by the imposition of unilateral coercive measures could lodge complaints against
the targeting State(s) with the Human Rights Committee or the Committee on Economic,
Social and Cultural Rights, respectively, insofar as the targeting State(s) have ratified the
Optional Protocol(s). Each Committee may consider individual communications alleging
violations of any of the rights set forth in the Covenant concerned. As such, parties affected
may initiate claims alleging violation of their rights pursuant to, for example, article 11 of
the International Covenant on Economic, Social and Cultural Rights, which protects the
right to an adequate standard of living, including food, clothing, housing and medical care
and article 12 of the same Covenant, which protects the right to health.33
35. While anyone can lodge a complaint with the above-mentioned Committees alleging
violations of rights protected under the respective Covenants, the Optional Protocols to the
Covenants require that the authors of the communications must be under the jurisdiction of
the State responsible for the violation (and the State must have ratified both the Covenant
concerned and its Optional Protocol). It is unclear whether this requirement bars the
submission of a communication against a State that has violated a protected right beyond its
borders.34
36. However, extraterritorial application under the Optional Protocol to the International
Covenant on Economic, Social and Cultural Rights should not be ruled out. Indeed, States
may be bound by their obligations under the Covenant when acting extraterritorially.35 The
jurisprudence of international and regional bodies, such as the Human Rights Committee,
the International Court of Justice and the European Court of Human Rights indicate that
Governments can be held to account if they violate the fundamental rights of persons living
outside their borders.36
37. In its general comment No. 15 (2002) on the right to water, for example, the
Committee on Economic, Social and Cultural Rights made it clear that a State should not
deprive another country of the ability to realize the right to water for persons in its
jurisdiction (para. 31). The Committee has also indicated in its concluding observations on
periodic reports of States parties that jurisdiction includes any territory over which a State
32 See E/CN.4/2005/WG.23/2.
33 See A/HRC/70/345, paras. 34-44.
34 See Geneva Academy of International Humanitarian Law and Human Rights, “The Optional Protocol
to the International Covenant on Economic, Social and Cultural Rights”, In-Brief No. 2 (Geneva, July
2013), p. 12. Available from www.geneva-academy.ch/docs/publications/The%20optional%
20protocol%20In%20brief%202.pdf.
35 See C. Courtis and M. Sepúlveda, “Are extraterritorial obligations reviewable under the Optional
Protocol to the ICESCR?”, Nordic Journal of Human Rights, vol. 27, No. 1 (2009); and F. Coomans,
“The extraterritorial scope of the International Covenant on Economic, Social and Cultural Rights in
the work of the United Nations Committee on Economic, Social and Cultural Rights”, Human Rights
Law Review, vol. 11, No. 1 (2011).
36 See Geneva Academy of International Humanitarian Law and Human Rights, In-Brief No. 2,
pp. 12-13.
Party has geographical, functional or personal jurisdiction. The Committee may also accept
communications from individuals whose rights under the Covenant have been violated and
who live outside the territory of the State party that they allege to be responsible.37
38. Furthermore, the Human Rights Committee, in its general comment No. 31 (2004)
on the nature of the general legal obligation imposed on States parties to the Covenant,
asserts that every State party to the Covenant is “obligated to every other State party to
comply with its undertakings under the treaty” by considering that the violation of
Covenant rights by any State party requires others to call on violators to “comply with their
Covenant obligations”. It would therefore be reasonable to assume that compliance with
obligations under the Covenant is required in relation to the implementing of unilateral
coercive measures.38
39. It is thus reasonable to assume that, in the case of unilateral coercive measures,
complaints against targeting State(s) brought by corporate persons or individuals who are
nationals of or resident in targeted States may be admissible.
40. Third parties may also bring complaints on behalf of individuals with their written
consent.39 A formal complaint should include a comprehensive chronology of facts with
supporting documentation, an explanation as to how the facts violate specific provisions of
the Covenant concerned and an indication of the form of remedies sought.
41. It would be desirable that the general rule according to which the Committee shall
not consider a communication unless it has ascertained that all available domestic remedies
have been exhausted not be applicable to claims by victims of human rights violations
resulting from unilateral coercive measures imposed by another country. It should also be
noted that the complaint may be rejected if it is determined that the same matter (i.e.
relating to the same author, the same facts and the same substantive rights) is being
examined by another mechanism of international investigation or settlement.40
42. Applicants should, however, bear in mind that, given the large number of
communications submitted, there may be a delay of several years between the initial
submission and the Committee’s final decision. When the Committee decides that the facts
before it disclose a violation by the State party, it transmits its decision to the State party
and invites it to provide information, within a set time frame, on the measures taken to give
37 Ibid.
38 See CCPR/C/USA/CO/4, in which the Human Rights Committee recommended that that the United
States of America should interpret the International Covenant on Civil and Political Rights in good
faith, in accordance with the ordinary meaning to be given to its terms in their context, including
subsequent practice, and in the light of its object and purpose and review its legal position so as to
acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined
inter alia, in the Committee’s general comment No. 31 (2004) on the nature of the general legal
obligation imposed on States parties to the Covenant (para. 4 (a)). As regards National Security
Agency surveillance that is conducted worldwide, the Committee recommended that the United States
should take all necessary measures to ensure that its surveillance activities, both within and outside
the United States, conformed to its obligations under the Covenant, including article 17. In particular,
measures should be taken to ensure that any interference with the right to privacy complied with the
principles of legality, proportionality and necessity regardless of the nationality or location of
individuals whose communications were under direct surveillance. (para. 22 (a)).
39 See the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
art. 2; and E/C.12/49/3, rule 4.
40 See the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
art. 3 (2); and the Optional Protocol to the International Covenant on Civil and Political Rights,
art. 5 (2) (a).
effect to its decision and recommendations. The decisions of the Committees under the
communication procedure cannot be appealed.
43. As regards remedies and redress, although a Committee may render a decision as to
remedial action to be taken by the State, such as compensation to the victim(s), their
decisions are not legally binding on the State. Modalities on follow-up to the Committee’s
recommendations are set out in the Optional Protocols to the Covenants. For example, as
regards communications under the Optional Protocol to the International Covenant on
Economic, Social and Cultural Rights, the State party concerned must submit a response
within six months on the measures taken to give effect to the Committee’s
recommendations. The Committee may also request the State party to submit information in
its subsequent periodic report on any measures taken to respond to the Committee’s
recommendations.41
44. A case relating to sanctions imposed by the United Nations was brought before the
Human Rights Committee under the Optional Protocol to the International Covenant on
Civil and Political Rights.42 Two Belgian nationals, whose names were placed on the
United Nations Sanctions Committee list in early 2003 at the initiative of Belgium,
submitted a communication to the Committee, claiming that through its proposal to place
their names on the Sanctions Committee list without “relevant information” and through the
subsequent imposition of sanctions, Belgium had violated several provisions of the
Covenant, including the right to a fair trial and effective remedy (arts. 2 (3) and 14) and the
right to liberty of movement (art. 12). The Committee found that it was competent “to
admit a communication alleging that a State party had violated rights set forth in the
Covenant, regardless of the source of the obligation implemented by the State party”,
irrespective of the fact that the listing was effected at the request of Belgium by the
Sanctions Committee further to Security Council resolution 1267. The Committee ruled
that Belgium had violated the relevant rights protected under the Covenant.
45. In the light of the foregoing, the Special Rapporteur considers that the Committees
established under the International Covenant on Civil and Political Rights and the
International Covenant on Economic, Social and Cultural Rights are a fortiori competent to
address claims relating to the legality of unilateral coercive measures and to recommend
remedies for victims thereof.
Special procedures of the Human Rights Council
46. Complaints based on violations of human rights through the imposition of unilateral
coercive measures may also be submitted to the special procedures of the Human Rights
Council. In this context, individuals or groups subject to unilateral coercive measures may
bring allegations to the attention of the Special Rapporteur on the negative impact of
unilateral coercive measures on the enjoyment of human rights who is empowered to act on
individual cases by sending communications to the State(s) concerned in order to bring
alleged violations and abuses to their attention. Communications may also be addressed to
other special procedures, insofar as their mandate is of relevance to aspects of
infringements of human rights related to the imposition of unilateral coercive measures.
However, while States are expected to be accountable for national measures that have an
adverse human rights impact on their domestic population, legal considerations alone are
41 See the Optional Protocol to the International Covenant on Economic, Social and Cultural Rights,
art. 9 (3).
42 See Communication No. 1472/2006, Sayadi and Vinck v. Belgium, Views adopted on 29 December
2008.
not enough to determine whether source States will accept accountability for the adverse
human rights impact of unilateral coercive measures across borders.
Human Rights Council complaint procedure
47. The Human Rights Council complaint procedure is another forum that is intended to
address consistent patterns of gross and reliably attested violations of all human rights and
fundamental freedoms occurring in any part of the world and under any circumstances,
which could arguably be a mechanism to entertain complaints related to the impact of
unilateral coercive measures. The process is designed to enhance cooperation with the State
concerned. Upon prima facie review of a communication, the Council transmits it to the
State concerned to obtain its views and to keep the lines of communication open between
the applicant, the States and the Council at every stage of the process.
C. Compensation commissions
48. Compensation commissions have been established in a number of different contexts
to deal with the settlement of claims arising out of situations of conflict or massive
violations of human rights. These include the Commission for Real Property Claims of
Displaced Persons and Refugees, the Claims Resolution Tribunal for Dormant Accounts in
Switzerland, the Property Claims Commission established under United Nations Interim
Administration Mission in Kosovo regulation No. 2006/10, and the International
Commission on Holocaust Era Insurance Claims.
49. The United Nations Compensation Commission is a prominent example of such a
mechanism. It was established as a subsidiary organ of the Security Council with a mandate
to review, decide and pay the claims for which Iraq was liable as a result of its unlawful
invasion of Kuwait. The Security Council, in its resolution 687 (1991), reaffirmed that:
Iraq, without prejudice to the debts and obligations of Iraq arising prior to 2 August
1990, which will be addressed through the normal mechanisms, is liable under
international law for any direct loss, damage — including environmental damage
and the depletion of natural resources — or injury to foreign Governments, nationals
and corporations, as a result of its unlawful invasion and occupation of Kuwait.
50. A similar compensation commission could probably be established for the purpose
of providing compensation to victims of unilateral coercive measures. Such a compensation
commission could be set up under the Security Council, or alternatively, be established by
means of a multilateral convention negotiated under the auspices of the United Nations.
States which have imposed unilateral coercive measures on other States could be called
upon to contribute financially to such a commission.
D. Regional or international courts
European Union Courts
51. European Union sanctions — referred to in the European Union as “restrictive
measures”43 — are subject to full judicial review by the General Court, which may be
appealed before the Court of Justice. This applies equally to measures taken to implement
Security Council resolutions under chapter VII of the Charter of the United Nations and
43 See Council of the European Union, Guidelines on implementation and evaluation of restrictive
measures in the framework of the EU Common Foreign and Security Policy (15 June 2012).
“autonomous” European Union measures, as was made clear in the case of Kadi and Al-
Barakaat International Foundation v. Council and Commission.44 The courts of the
European Union have developed, over time, a rich jurisprudence of cases brought by
individuals or entities subject to restrictive measures and, in some cases, the applicants have
actually obtained “delisting”, even if the proportion of successful cases remains limited.
Dozens of new actions for annulment are brought each year before the General Court.45
Nonetheless, as was noted by Judge Allan Rosas,
the fact that sanctions decisions are, in principle, subject to a “full” judicial control
does not imply that the targeted persons or entities always, or even in most cases,
succeed in obtaining the annulment of the restrictive measures. In fact, in 2015, most
actions for annulment of Council decisions brought before the General Court were
declared inadmissible or dismissed.46
52. The central provision governing direct actions for judicial review of European Union
measures before European Union jurisdictions is article 263 of the Treaty on the
Functioning of the European Union.47 Such proceedings have to be instituted within two
months of the publication of the measure, or of its notification to the plaintiff or, in the
absence thereof, of the day on which it came to the knowledge of the plaintiff. As regards
restrictive measures enacted under the Common Foreign and Security Policy, one important
point is that article 275 of the Treaty on the Functioning of the European Union excludes,
as a matter of principle, judicial review of acts relating to the Common Foreign and
Security Policy.
53. However, the same article 275 provides for an exception to that principle:
the Court shall have jurisdiction to monitor compliance with Article 40 of the Treaty
on European Union and to rule on proceedings, brought in accordance with the
conditions laid down in the fourth paragraph of Article 263 of this Treaty, reviewing
the legality of decisions providing for restrictive measures against natural or legal
persons adopted by the Council on the basis of Chapter 2 of Title V of the Treaty on
European Union.
54. It is therefore expressly provided that the General Court and the Court of Justice
shall be competent to review the legality of decisions providing for restrictive measures
against natural and legal persons adopted on the basis of the Common Foreign and Security
44 See Kadi and Al Barakaat International Foundation v. Council of the European Union and
Commission of the European Communities, C-402/05 P and C-415/05 P, Court of Justice (Grand
Chamber), Judgment of 3 September 2008. In the summary of the judgment, the Court made it clear
that “the Community judicature must … in accordance with the powers conferred on it by the EC
Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the
light of the fundamental rights forming an integral part of the general principles of Community law,
including review of Community measures which, like the regulation at issue, are designed to give
effect to the resolutions adopted by the Security Council”. 45 In 2006, five actions for annulment of such acts were brought before the General Court; more recent
figures are as follows: 93 new cases in 2011, 59 in 2012, 41 in 2013, 69 in 2014 and 55 in 2015.
Much fewer cases are brought on appeal before the Court of Justice. In 2015, for instance, the Court
decided seven such cases. See Allan Rosas, “EU sanctions policies: value imperialism, futile gesture
politics or extravaganza of judicial control?”, presentation at a seminar on European Union restrictive
measures, Tallinn, 5 February 2016. 46 Ibid. 47 Art. 263, fourth paragraph, of the Treaty on the Functioning of the European Union provides that
“any natural or legal person may … institute proceedings against an act [of a European Union
institution] addressed to that person or which is of direct and individual concern to them, and against
a regulatory act which is of direct concern to them and does not entail implementing measures”.
Policy. European Union restrictive measures may also be challenged indirectly through
recourse to a preliminary ruling under article 267 of the Treaty on the Functioning of the
European Union, when an issue relating to interpretation of European Union sanctions
legislation arises in proceedings before a national court of one of the 27 European Union
member States.
55. With regard to the various grounds for review, it should be noted that a restrictive
measure may be annulled if the institution concerned is found to have “misused” its power
or used its power for purposes other than that for which it was granted. However, a more
common reason is manifest error of assessment.48 Such a review requires that the measures
be substantiated by evidence and that the evidence be accurate, reliable, consistent and
sufficiently complete. A judicial review may also be conducted in relation to rights of
process, that is, the right to know the reasons for a legal measure, the right to a hearing in
which one’s interests are restricted, protection of one’s right of defence in the case of
possible sanction and the right to the administration of one’s affairs with due care by the
European Union institutions. A review may also be requested in relation to infringement of
a treaty or any rule of law relating to its application, including breach of any substantive
provision of European Union law and violation of fundamental rights. It also encompasses
legal principles developed by the Court of Justice, namely non-discrimination,
proportionality, legal certainty and protection of legitimate expectations.49
56. Judicial review by the courts of the European Union does not extend, however, to a
review of the general motivations underlying the political decision to implement a sanctions
regime or to blacklist a person. This means that European Union political institutions have
broad discretion in defining the general criteria which are to determine the scope of targeted
persons, entities and activities.50 Therefore, it appears that the European Union courts are
unlikely to address the legality of European Union restrictive measures from the viewpoint
of their compliance with international law, although such compliance is actually asserted by
the Council of the European Council.51
57. Even if no precedent exists, it does not seem controversial that an action for
annulment of European Union restrictive measures against a specific country could also be
brought before the European Union courts by the Government of a targeted State.52 It seems
to be well established that a third State (non-member of the European Union) can bring
proceedings before the General Court or the Court of Justice under article 263 of the Treaty
on the Functioning of the European Union, provided that the State concerned meets the
standing requirements set out in that article, i.e. that the measure complained of is of “direct
concern” to it.53
48 As was the case, for example, in Safa Nicu Sepahan v. Council of the European Union,
T-384/11,General Court (First Chamber), Judgment of 25 November 2014. 49 See D. Chalmers, G. Davies and G. Monti, European Union Law, 3rd ed. (Cambridge, United
Kingdom, Cambridge University Press, 2010), p. 396; on judicial review of United Nations and
European Union sanctions by the European Union courts, see for example, G. de Búrca, “The
European Court of Justice and the International Legal Order after Kadi”, Harvard International Law
Journal, vol. 51, No. 2 (2010). 50 See Allan Rosas, “EU sanctions policies”.
51 See Council of the European Union, Guidelines on implementation and evaluation of restrictive
measures in the framework of the EU Common Foreign and Security Policy (15 June 2012), para. 9,
in which it is stated that “the introduction and implementation of restrictive measures must always be
in accordance with international law”. 52 Consultations at the European Court of Justice, 25 May 2016. 53 See J. Rideau, « Recours en annulation – Conditions de recevabilité », Jurisclasseur Europe (Lexis
Nexis, 2011), para. 71. At least one case — not related to sanctions — has been brought by a non-
58. What remains unsettled is whether individuals or entities found to have been
unlawfully subject to European Union restrictive measures could be awarded damages by
the European Union courts. Under article 268 of the Treaty on the Functioning of the
European Union, private parties may bring action for damages before the General Court
alleging a non-contractual liability of the European Union.54 The Special Rapporteur
confirmed that, to date, there has been only one decision by a European Union court
granting damages to victims of wrongful restrictive measures. In this case,55 the applicant,
an Iranian company, was listed in 2011 in the restrictive measures relating to non-
proliferation against the Islamic Republic of Iran. The General Court found that the Council
had “manifestly erred” in listing the applicant and had not discharged its burden of proof. It
found that the Council’s error was “sufficiently serious” and had caused damage to the
company’s reputation. As such, the Court annulled the company’s listing and awarded
compensation for reputational harm suffered. However, the damages awarded were
modest.56
59. Even if the judicial review of restrictive measures by European Union courts
provides some form of legal remedy to affected persons and entities, and even if the scope
and intensity of such judicial review appears unrivalled worldwide, some matters of
concern remain. In particular, the practice of “relisting” delisted individuals or entities on
other grounds, which is widely applied by the Council of the European Union, appears to
the Special Rapporteur as a challenge to the authority of the European Union courts.
Moreover, the pressure put on the courts by some States that have publicly criticized the
delisting jurisprudence is a cause for concern.57 In the same way, the Special Rapporteur
notes that uncertainties as to the possibility of actually obtaining compensation for damages
as a result of unlawful restrictive measures from the courts are a significant limitation to the
effectiveness of remedies for victims of unlawful restrictive measures in the European
Union legal system.
European Court of Human Rights
60. The European Court of Human Rights is competent to adjudicate on cases brought
by individuals or legal entities for violations of the Convention for the Protection of Human
Rights and Fundamental Freedoms.58
member of the European Union against the European Commission before the General Court: see
Swiss Confederation v. European Commission, C-547/10P, General Court (Third Chamber),
Judgment of 7 March 2013. 54 See A. Rosas, “Counter-terrorism and the rule of law: issues of judicial control”, in Counter-
terrorism: International Law and Practice, A.M. Salinas de Frias, K.L.H. Samuel and N.D. White,
eds. (Oxford, Oxford University Press, 2012), p. 91. 55 See Safa Nicu Sepahan v. Council of the European Union, T-384/11, General Court (First Chamber),
Judgment of 25 November 2014. This case is currently under appeal before the Court of Justice (C-
45/15 P). A few other cases in which delisted persons or entities are seeking damages are currently
pending before the General Court. 56 In this case, Safa Nicu Sepahan Co. claimed €7.66 million plus interest, including €2 million in
damages for harm to its reputation, however, the Court awarded only €50,000 as compensation for
reputational damage. 57 Judge Allan Rosas noted that “it is true that the case law [of EU courts] has caused some
consternation and concern among the Council and the Commission and some [EU] member States
fearing that this judicial control would undermine the efficiency of EU sanctions; see Allan Rosas,
“EU sanctions policies”. 58 The European Convention on Human Rights was adopted in Rome on 4 November 1950 and entered
into force on 3 September 1953. All 47 member States of the Council of Europe have ratified the
Convention.
61. The Court is seized of a matter by means of individual applications from persons or
entities claiming to be victims of a violation of the Convention or one of the Protocols
thereto.59 However, the Court may only consider a matter after all domestic remedies have
been exhausted, according to the generally recognized rules of international law, and within
a period of six months from the date on which the final decision was taken.60 Furthermore,
the Court does not consider applications that are “substantially the same as a matter that has
already been examined by the Court or has already been submitted to another procedure of
international investigation or settlement and contains no relevant new information”.61 The
judgments of the Court are binding on the States parties to the Convention.62
62. The Court may award damages to the applicant, that is “afford just satisfaction to the
injured party”, if it “finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only partial
reparation to be made”.63 However, it has been observed that “the European Court’s
primary remedy is a declaration that there has been a violation of the Convention” and the
Court has been known not to award damages, “on the basis that its finding of a violation of
the Convention is ‘sufficient’ just satisfaction”.64
63. There have been a few cases related to restrictive measures that have been
adjudicated by the European Court of Human Rights. In the case of Bosphorus Hava
Yollari Turizm ve Ticaret Anonim Sirket v. Ireland, which concerned measures taken by
Ireland in pursuance of European Union decisions taken to implement Security Council
sanctions in respect of the former Yugoslavia. Ireland had impounded an aircraft leased by
the national airline of the former Yugoslavia to a Turkish company in compliance with the
restrictive measures regime targeting the former Yugoslavia. The Court found that the
measure was an act of compliance by Ireland with its legal obligations under Community
law. It took the view that “State action taken in compliance with such legal obligations is
justified as long as the relevant organization is considered to protect fundamental rights, as
regards both the substantive guarantees offered and the mechanisms controlling their
observance, in a manner which can be considered at least equivalent to that for which the
Convention provides”.65 The Court found that the protection of fundamental rights by
Community law could be considered to be “equivalent” to that of the European Convention
on Human Rights system, and consequently found that Ireland “did not depart from the
requirements of the Convention when it implemented legal obligations flowing from its
membership of the European Community”.66 It therefore concluded that Ireland’s actions
did not give rise to a violation of article 1 of Protocol No. 1 to the Convention, in relation to
property rights.
64. In the case of Nada v. Switzerland, an Italian and Egyptian national claimed that the
ban on entering or transiting through Switzerland, which had been imposed on him as a
result of the inclusion of his name in the list annexed to the Federal Taliban Ordinance of
the Swiss Government had violated various provisions of the European Convention on
Human Rights, including his right to liberty (art. 5) and his right to respect for private and
59 See European Convention on Human Rights, art. 34. 60 Ibid., art. 35 (1). 61 Ibid., art. 35 (2) (b). 62 Ibid., art. 46 (1). 63 Ibid., art. 41. 64 Philip Leach, Taking a Case to the European Court of Human Rights (Oxford, Oxford University
Press, 2011) 465-467. 65 See Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirket v. Ireland, Application No. 45036/98,
European Court of Human Rights (Grand Chamber), Judgment of 30 June 2005, para. 155.
66 Ibid., para. 165.
family life, honour and reputation (art. 8). The Court found violations of articles 8 and 13
(right to an effective remedy) of the Convention. It stressed that, under Swiss law, no
effective remedy by which to complain of the breaches of rights guaranteed by the
Convention was available, since, even if the applicant was able to apply to the national
authorities to have his name deleted from the list annexed to the Federal Taliban Ordinance,
“those authorities did not examine on the merits his complaints concerning the alleged
violations of the Convention. In particular, the Swiss Federal Court took the view that,
whilst it could verify whether Switzerland was bound by the Security Council resolutions, it
could not lift the sanctions imposed on the applicant on the ground that they did not respect
human rights”.67 The Court explicitly referred in that regard to the finding of the Court of
Justice of the European Union in the Kadi case that it was not a consequence of the
principles governing the international legal order under the United Nations that any judicial
review of the internal lawfulness of the contested regulation in the light of fundamental
freedoms was excluded by virtue of the fact that that measure was intended to give effect to
a resolution of the Security Council adopted under Chapter VII of the Charter of the United
Nations.68 It expressed the opinion that “the same reasoning must be applied, mutatis
mutandis, to the present case, more specifically to the review by the Swiss authorities of the
conformity of the Federal Taliban Ordinance with the Convention” and found that “there
was nothing in the Security Council Resolutions to prevent the Swiss authorities from
introducing mechanisms to verify the measures taken at national level pursuant to those
Resolutions”. In this case, the applicant’s claim for “just satisfaction” in the form of
damages under article 41 of the European Convention on Human Rights was dismissed.
65. The case of Al-Dulimi and Montana Management Inc. v. Switzerland was brought
by Khalaf M. Al-Dulimi claiming that his right of access to a court guaranteed by article 6
of the European Convention on Human Rights had been violated by the Swiss authorities,
which had refused to seek adjudication on his claim that his and his company’s assets had
been unlawfully frozen and confiscated by the Swiss authorities. The position of the Swiss
Government was that the Swiss courts could not adjudicate because Switzerland had no
discretionary powers and had to implement Security Council resolution 1483 and freeze the
assets of persons connected with the Government of Iraq. The European Court of Human
Rights held that this was a disproportionate restriction of Mr. Al-Dulimi’s right under
article 6 of the Convention, because neither the Security Council nor the Swiss courts were
providing him with access to effective judicial review, which was essential, given the
considerable restriction of freezing (since 1990) and confiscating (since 2006) his assets.
The similarity between this and the Kadi case is obvious and it is noteworthy that the
European Court observed that there was no Ombudsperson for the sanctions list related to
Security Council resolution 1483 (as there is, as a result of the Kadi case, for the list
relating to Security Council sanctions under Chapter VII of the Charter of the United
Nations) and stressed that “for as long as there is no independent and effective judicial
review, at the level of the United Nations, of the legitimacy of adding individuals and
entities to the relevant lists, it is essential that such individuals and entities should be
authorized to request the review by the national courts of any measure adopted pursuant to
the sanctions regime”.69 However, the claim in respect of damages was dismissed.
66. One important potential limitation regarding the jurisdiction of the European Court
of Human Rights is that the European Convention on Human Rights extends the obligation
67 See Nada v. Switzerland, para. 210. 68 Ibid., para. 212; also Kadi and Al Barakaat International Foundation v. Council and Commission,
para. 299.
69 See Al-Dulimi and Montana Management v. Switzerland, Application No. 5809/08, European Court
of Human Rights (Second Section), Judgment of 26 November 2013, para. 134.
of its contracting parties to respect human rights to “everyone within their jurisdiction”.70
As a matter of fact, all of the three cases reviewed above concerned the effects of sanctions
on persons or entities residing in a State party to the Convention. Although the
jurisprudence of the Court has extended the extraterritorial application of its provisions,71 it
still seems to require that the State alleged to have violated the provisions of the
Convention exercise some form of “effective control” over the territory where the applicant
resides. It is thus still unclear and unsettled, to the Special Rapporteur at least, whether the
European Court of Human Rights has jurisdiction to address claims of violations of the
European Convention on Human Rights in relation to the adverse impacts of unilateral
coercive measures imposed by member States of the Council of Europe on the human rights
of persons or groups living in third countries.72
VI. Conclusion and recommendations
67. Based on the review of existing mechanisms that have actually been used (or
could arguably be used) to claim for damages for the adverse effects of sanctions, it
appears that such mechanisms are generally few and that their powers to grant
actually effective remedies and damages, including compensation and redress, are
most often limited. Prima facie, for targeted individuals or private entities, the main, if
not only, functioning and available legal mechanisms seem to be the courts of the
European Union and the European Court of Human Rights. However, these
institutions, themselves, seem to have limited ability, or willingness, to grant effective
compensation to victims of violations of human rights owing to sanctions.
68. In each situation worldwide, where unilateral coercive measures are found to
have a negative impact on human rights, the right to a remedy should be effectively
available and be protected, and appropriate mechanisms at the national or
international level should be available for the victims to obtain remedies,
compensation and redress. It is not acceptable that the populations of a large number
of States should be deprived of access to any forum or mechanism through which they
could seek remedies, compensation and redress. The lack of such mechanisms
contravenes some of the basic obligations enshrined in most human rights treaties.
69. The Human Rights Council and the General Assembly should be called upon to
restate in a solemn manner, through a declaration, the right of victims to an effective
remedy, including appropriate and effective financial compensation, in all situations
where their human rights are affected by unilateral coercive measures.
70. States whose populations are affected by unilateral coercive measures should
consider the jurisdictional options available to them by virtue of treaties in force,
including the contentious jurisdiction of the International Court of Justice, or other
available forums to challenge the legality and application of such measures with
respect to international law, including human rights law.
70 See European Convention on Human Rights, art. 1.
71 The European Court of Human Rights has acknowledged that “the concept of ‘jurisdiction’ [under]
the Convention is not restricted to the national territory of the High Contracting Parties. In
exceptional circumstances the acts of Contracting States performed outside their territory or which
produced effects there, might amount to exercise by them of their jurisdiction”. See Issa and Others v.
Turkey, Application No. 31821/96, European Court of Human Rights (Second Section), Judgment of
16 November 2004, para.68.
72 Consultations at the European Court of Human Rights, 15 June 2016.
71. States should consider the opportunity of submitting to the International Court
of Justice a request for an advisory opinion on the legality of unilateral coercive
measures. An advisory opinion clarifying the status of unilateral coercive measures
that do have adverse human rights impacts on innocent people in contemporary
international law (including international human rights law) and its relationship to
collective punishment would be of great significance to the international community
and the advancement of the rule of law.
72. The United Nations mechanisms overseeing the implementation of United
Nations human rights treaties, in particular the Committees established under the
International Covenant on Civil and Political Rights and the International Covenant
on Economic, Social and Cultural Rights, should be reinforced and their competence
to address human rights violations resulting from the imposition of unilateral coercive
measures, irrespective of the location of the victim or the perpetrator, should be
reaffirmed.
73. The principle of accountability could be upheld by including in the universal
periodic review of each source State an item on the unilateral coercive measures that
they apply to targeted countries with an assessment of their human rights impact.
74. The establishment of an appropriate mechanism to enable persons affected by
unilateral coercive measures to seek remedies, compensation and redress at the United
Nations level should be considered. Such a mechanism could take the form of a
compensation commission set up by the Security Council. Alternatively, the
mechanism could be set up by means of a multilateral convention, negotiated under
the auspices of the United Nations, to which States would be invited to adhere and
which would provide a forum through which individuals and entities affected by
unilateral coercive measures could bring direct claims against targeting States or
international organizations. Such a compensation commission could be called upon to
review and adjudicate claims relating to human rights violations arising from the
imposition of sanctions or it could rely on the findings of the Human Rights
Committee and Committee on Economic, Social and Cultural Rights.
75. Alternatively, the possibility of adopting the format of the World Trade
Organization Dispute Settlement Body could be reviewed in order to set up an
adjudicatory body to address requests for compensation and reparation related to
human rights violations resulting from the implementation of unilateral coercive
measures.