36/44 Report of the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
Document Type: Final Report
Date: 2017 Jul
Session: 36th Regular Session (2017 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.17-12735(E)
Human Rights Council Thirty-sixth session
11-29 September 2017
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 2016 and June 2017. He then focuses on the issues of remedies and redress
for victims of unilateral coercive measures, on the basis of 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.
United Nations A/HRC/36/44
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 ............................................................................................. 4
III. Follow-up to previous recommendations of the Special Rapporteur ............................................ 4
IV. Extraterritoriality and international sanctions ............................................................................... 5
A. Extraterritorial sanctions under international law ................................................................. 5
B. Extraterritorial obligations of States in relation to sanctions ................................................ 9
V. Options for the establishment of specialized compensation commissions for victims of
unilateral coercive measures ......................................................................................................... 12
VI. Conclusions and recommendations ............................................................................................... 13
Annex
Outcome document of the expert working group convened in Geneva on 3 June 2017 ............... 15
Appendices
I. Elements on the United Nations register of unilateral sanctions likely to have a
human rights impact ...................................................................................................................... 17
II. Elements for a draft General Assembly declaration on unilateral coercive measures
and the rule of law ......................................................................................................................... 19
* The annex to the present report is circulated as received, in the language of submission only.
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, 30/2 and 34/13.
2. The General Assembly, in its resolution 70/151, and the Human Rights Council, in
its resolution 30/2, 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 reparation
in his next reports to the two bodies.
3. Pursuant to these requests, the Special Rapporteur, in his report to the General
Assembly at its seventy-first session (A/71/287), focused on issues of remedies and redress
for victims of unilateral coercive measures. The report included a review of conceptual
aspects of the remedies for violations of human rights caused by unilateral coercive
measures in general international law, international human rights law and international
humanitarian law. The report was drafted in parallel with, and intended to be read in
conjunction with, the report that the Special Rapporteur had earlier submitted to the Human
Rights Council (A/HRC/33/48), which presented a preliminary review and evaluation of the
various mechanisms actually or potentially available to States and to individuals affected by
unilateral coercive measures to enable them to seek remedy and redress.
4. In his report to the General Assembly at its seventieth session (see A/70/345, para.
56 (a)), the Special Rapporteur proposed the creation of a register of unilateral coercive
measures likely to have a human rights impact, to be maintained and updated by the
Secretary-General. In his previous report to the Human Rights Council and his report
submitted to the General Assembly at its seventy-first session (A/71/287), he called upon
the two bodies 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 were adversely impacted by unilateral coercive
measures.
5. The General Assembly, in its resolution 71/193, took note with interest of the
proposals contained in the report of the Special Rapporteur and requested him to include in
his report to the General Assembly at its seventy-second session more information on the
discussion of his proposals at the Human Rights Council.
6. The Human Rights Council, in its resolution 34/13, requested the Special
Rapporteur to continue to pay special attention and identify immediate solutions to the
negative impact of unilateral coercive measures on the enjoyment of human rights of
victims, and to focus, in his next reports to the Human Rights Council and to the General
Assembly, on the resources and compensation necessary to promote accountability and
reparations for victims.
7. In the present report, therefore, the Special Rapporteur focuses on the identification
of possible mechanisms to ensure the availability of efficient remedies and redress for
victims of unilateral coercive measures. The report begins by summarizing the status of his
proposals regarding the establishment of a United Nations register of unilateral sanctions
likely to have a human rights impact and the adoption of a declaration on unilateral
coercive measures and the rule of law. Then, in the light of the findings of his previous
report (see A/HRC/33/48, paras. 48-50 and 74), he elaborates on the possible features of a
compensation commission that might be established to provide remedies for victims of
unilateral coercive measures. He also addresses certain relevant issues raised by the practice
of extraterritorial sanctions, as well as issues regarding the extraterritorial character of
human rights obligations of States. The present report will be supplemented by the report
on the same topic that the Special Rapporteur will submit to the General Assembly at its
seventy-second session.
8. The Special Rapporteur welcomes any comments, information and suggestions that
governments, non-governmental organizations and any other interested parties may provide
on remedies and redress in relation to the negative impact of unilateral coercive measures
on human rights.
II. Activities of the Special Rapporteur
9. Between 1 July 2016 and 30 June 2017, the Special Rapporteur issued seven press
releases, three of which were issued jointly with other special procedure mandate holders.
10. On 4 April 2016, the Special Rapporteur participated in the eighteenth session of the
Working Group on the Right to Development, where he engaged in an interactive dialogue
with experts on the implementation and realization of the right to development.
11. On 12 October, the Special Rapporteur presented a statement at the International
Seminar on the Right to Development, organized by the Independent Permanent Human
Rights Commission of the Organization of Islamic Cooperation in Abu Dhabi. In the
statement he reflected on the thirtieth anniversary of the Declaration on the Right to
Development and considered ways of using that right to promote effective and sustainable
development.
12. On 16 October, the Special Rapporteur presented his report (A/71/287) to the
General Assembly. In the report the Special Rapporteur reviewed the conceptual aspects of
remedies for violations of human rights caused by unilateral coercive measures in
international law.
13. The Special Rapporteur carried out an official country visit to the Russian
Federation from 24 to 28 April 2017 (see A/HRC/36/44/Add.1). He thanks the authorities
of the Russian Federation for their engagement with his mandate. At the end of his visit, the
Special Rapporteur issued a press statement conveying his preliminary observations and
recommendations, observing that sanctions might have led to economic losses to the
European Union and the Russian Federation totalling $155 billion, without apparent
benefit. He noted that targeted sanctions against individuals lack any form of due process,
which violated the rule of law.
14. The Special Rapporteur carried out an official visit to the institutions of the
European Union from 19 to 22 June 2017 (see A/HRC/36/44/Add.2). He thanks the
authorities of the European Union for their engagement with his mandate. At the end of his
visit, the Special Rapporteur issued a press statement conveying his preliminary
observations and recommendations.
III. Follow-up to previous recommendations of the Special Rapporteur
15. Since his appointment, the Special Rapporteur has submitted annual reports to the
Human Rights Council and the General Assembly, containing observations and
recommendations relating to his mandate.
16. The Special Rapporteur reiterates all his previous recommendations, in particular the
recommendation that a consolidated central register should be set up at the level of the
United Nations to recapitulate the list of all unilateral coercive measures in force. This
register should be kept according to the standards currently applied to Security Council
sanctions and made public. Targeted or sender/source States or groups of States should be
invited to notify the Council of unilateral coercive measures in force at their initiative and
of the evolution of those measures. 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.
17. The Special Rapporteur has duly noted the concerns expressed by the Human Rights
Council in its resolution 34/13, where it underlined the necessity of examining the wide
range of impact of unilateral coercive measures on international humanitarian and human
rights law, and on the economy, peace, security and social fabric of States, as well as the
need to monitor human rights violations associated with unilateral coercive measures and to
promote accountability. In the same resolution, the Council recognized the importance of
the quantitative and qualitative documentation of any such negative impact in the context of
ensuring the accountability of those responsible for human rights violations resulting from
the application of unilateral coercive measures against any State. The Special Rapporteur
believes that the establishment of a consolidated register of unilateral coercive measures
will be required to ensure the availability of such documentation. The register must be
supplied with the necessary information and must function effectively in order to evaluate
accurately the negative impact of unilateral sanctions and hence to ensure accountability
and redress for victims. As the Special Rapporteur has already pointed out (see A/71/287,
para. 39), measures aiming to ensure transparency in sanctions regimes that are already in
force are a prerequisite for the implementation of the right to a remedy for adverse
consequences for human rights of unilateral coercive measures. The Special Rapporteur
welcomes the support for his proposal for a central register expressed by some participants
at the thirty-third session of the Human Rights Council.1
18. The Special Rapporteur also wishes to reiterate his call to the Human Rights Council
and the General Assembly to restate in a declaration the right of victims to an effective
remedy, including appropriate and effective financial compensation, in all situations where
their human rights are adversely impacted by unilateral measures. While such a right is
arguably acknowledged in theory and principle as a necessary component of human rights,
it has not, to date, been recognized or affirmed in a specific manner, and it is frequently
ignored or set aside in practice. Unlike victims of armed conflict, for whom the right to a
remedy and the conditions of its realization have been affirmed and widely recognized at
the international level,2 victims of unilateral sanctions all too often remain in legal limbo.
19. The Special Rapporteur worked further on his proposals for a draft declaration and a
register of unilateral sanctions, and held a meeting of a high-level expert working group on
3 June 2017 to review, assess and refine the two proposals and agree on the language to be
put before the Human Rights Council. The outcome document of the meeting is annexed to
the present report.
IV. Extraterritoriality and international sanctions
20. The issue of extraterritoriality in relation to international sanctions raises two
separate, albeit interrelated questions: whether the extraterritorial reach of sanctions is to be
deemed admissible (or lawful) under international law, including international human rights
law, and whether States (or international organizations) are subject to extraterritorial
obligations under human rights instruments in relation to the application and effects of
sanctions.
A. Extraterritorial sanctions under international law
1. General international law
21. For over two decades, the Government of the United States of America has
commonly applied the country’s domestic sanctions law to foreign persons and
institutions. 3 For example, it has sanctioned foreign financial institutions for having
engaged in financial transactions initiated outside the United States that do not comply with
1 See, for instance, the comments by Tehmina Janjua, Permanent Representative of Pakistan, on behalf
of the Organization of Islamic Cooperation (13 September 2016).
2 See, for instance, Basic Principles and Guidelines on the Right to a Remedy and Reparation for
Victims of Gross Violations of International Human Rights Law and Serious Violations of
International Humanitarian Law.
3 M. Rathbone, P. Jeydel and A. Lentz, “Sanctions, sanctions everywhere: forging a path through
complex transnational sanctions laws”, Georgetown Journal of International Law, vol. 44 (2012-13),
pp. 1055-1126.
the country’s sanctions regimes, and has tried to regulate foreign exchange transactions.4 It
has been recently reported that the Government of the United Kingdom of Great Britain and
Northern Ireland is in the process of introducing new legislation displaying the same
features, albeit in a more limited form.5 By contrast, the European Union is understood to
refrain generally from applying any restrictive measures having extraterritorial reach.6 The
European Union adopted in 1996 instruments of European Union law which are still in
force, designed to counter the purported extraterritorial effects of United States sanctions
regimes, which the European Union sees as unlawful. The provisions state: “A third
country has enacted certain laws, regulations, and other legislative instruments which
purport to regulate activities of natural and legal persons under the jurisdiction of the
[European Union] Member State; … by their extra-territorial application such laws,
regulations and other legislative instruments violate international law”.7
22. There is a general understanding that extraterritorial sanctions disregard commonly
accepted rules governing the jurisdiction of States under international law.8 The concept of
State jurisdiction describes the limits of the legal competence of a State to make, apply, and
enforce rules of conduct upon persons. It concerns essentially the extent of each State’s
right to regulate conduct or the consequences of events. 9 In other words, jurisdiction
concerns the power of the State under international law to regulate or otherwise impact
upon people, property and circumstances and reflects the basic principles of State
sovereignty, equality of States and non-interference in domestic affairs.10
23. International law relating to jurisdiction generally relies on a distinction between
prescriptive jurisdiction (i.e. the law-making capacity) and enforcement jurisdiction (i.e. the
capacity to ensure compliance with the law). Prescriptive jurisdiction must be based upon
certain recognized criteria to avoid conflicts of sovereignty among States. These criteria are
generally described as follows:
• The territoriality principle, according to which a State may pass laws governing
people and property in its own territory
• The nationality principle, according to which a State may regulate the conduct of its
citizens in any part of the world
• The effects doctrine, according to which a State may regulate conduct that has a
direct, foreseeable and substantial effect within its territory, even though the acts
giving rise to the effects are undertaken abroad; this principle can be seen as an
extension of the territoriality principle
• The passive personality principle, according to which a State has jurisdiction over
conduct directed against the welfare of its own citizens
4 See, for instance, M. Cosnard, “Les lois Helms-Burton et d’Amato-Kennedy, interdiction de
commercer avec et d’investir dans certains pays”, Annuaire français de droit international, vol. 42
(1996), pp. 33-61.
5 See United Kingdom Foreign and Commonwealth Office and HM Treasury Department for
International Trade, “Public consultation on the United Kingdom’s future legal framework for
imposing and implementing sanctions”, presented to Parliament in April 2017, p. 16. According to
this document, a “UK nexus” (enabling the Government to enforce sanctions) might be created by
such things as a sterling transaction overseas that clears in the United Kingdom, action by a local
subsidiary of a United Kingdom parent company (depending on the structure of governance), action
taking place overseas but directed from within the United Kingdom, or financial products or
insurance bought on United Kingdom markets but held or used overseas.
6 See, for instance, J. Scott, “Extraterritoriality and territorial extension in EU law” American Journal
of Comparative Law, vol. 62 (2014), pp. 87-126; J. Scott, “The new EU ‘extraterritoriality’ “,
Common Market Law Review, vol. 51 (2014), pp. 1343-1380.
7 Council of the European Union, “Council Regulation (EC) No. 2271/96 of 22 November 1996
protecting against the effects of the extra-territorial application of legislation adopted by a third
country, and actions based thereon or resulting therefrom”, Official Journal of the European Union, L
309 (29 November 1996), preamble.
8 See M. Cosnard, “Les lois Helms-Burton et d’Amato-Kennedy”, pp. 36-50.
9 R. Jennings and A. Watts, eds., Oppenheim’s International Law, 9th ed. (1992), p. 456.
10 M.N. Shaw, International Law (Cambridge, Cambridge University Press, 2014), p. 469.
• The protective principle, according to which a State may regulate conduct of
foreigners that could prejudice its most vital interests; however, while this concept is
well established in international law, uncertainties remain as to its extent and the
acts it covers
• The universality principle, according to which all States may exercise jurisdiction
over certain criminal activities, notably piracy and slavery, regardless of the place of
perpetration and the nationality of victims or offenders
24. Against this background, it is generally assumed that extraterritorial sanctions are
unlawful.11 The reason for this is basically that most extraterritorial sanctions cannot invoke
any of the above-mentioned criteria.12 In particular, the effects doctrine, sometimes invoked
by the United States as a justification for the implementation of extraterritorial measures,
could be potentially legally warranted in only a very limited number of cases, given the
cumulative requirements that the said effects (of the situation that has triggered the decision
to impose sanctions) on the territory of the targeting State be direct, foreseeable and
substantial. It also appears that extraterritorial sanctions cannot generally be justified as
legitimate countermeasures under the law of State responsibility.
25. A number of negative reactions to the practice of extraterritorial sanctions have been
expressed over time by United Nations organs, other international organizations and
individual States, and are reflected in the academic literature. The assumption that
extraterritorial sanctions are unlawful is shared by a vast number of countries.13 Since 1992,
the General Assembly has annually voiced its condemnation of the extraterritorial reach of
the embargo imposed on Cuba by the United States.14 For its part, in 1996, the European
Union adopted a so-called blocking statute, under which European Union companies are
prohibited from complying with extraterritorial sanctions imposed by the United States.15
The European Union has also expressed its position against extraterritorial sanctions in its
own guidelines on “restrictive measures” as follows:
“The EU will refrain from adopting legislative instruments having extra-territorial
application in breach of international law. The EU has condemned the extra-
territorial application of third country’s legislation imposing restrictive measures
which purports to regulate the activities of natural and legal persons under the
jurisdiction of the Member States of the European Union, as being in violation of
international law”.16
26. A comprehensive study aimed at evaluating the practice of extraterritorial unilateral
sanctions under international law would far exceed the scope of the present report. This
remains a task for the future, preferably to be undertaken by the International Law
Commission. Such a study would require a comprehensive enquiry into the existence, the
content and the precise current legal status of any rule prohibiting recourse to
extraterritorial sanctions in present-day international law. The study would also have to
recapitulate all known critical reactions to extraterritorial sanctions at the United Nations
level, but also those of regional organizations or individual States or those voiced in the
11 See C. Beaucillon, “Practice makes perfect, eventually? Unilateral State sanctions and the
extraterritorial effects of national legislation”, in N. Ronzitti, ed., Coercive Diplomacy, Sanctions and
International Law (Leiden/Boston, Brill/Nijhoff, 2016), pp. 103-126; and S. Emmenegger,
“Extraterritorial economic sanctions and their foundation in international law”, Arizona Journal of
International & Comparative Law, vol. 33 (2016), pp. 633-660.
12 See M. Cosnard, “Les lois Helms-Burton et d’Amato-Kennedy”, pp. 36-50.
13 In addition to the various resolutions of the General Assembly and the Human Rights Council
condemning the use of extraterritorial sanctions, the countries of the Non-Aligned Movement have
firmly rejected this practice (see, for instance, Asian-African Legal Consultative Organization
resolution RES/51/S 6). See also Council of the European Union, “Council Regulation (EC) No.
2271/96”, referred to above. Canada, Japan and other countries appear to share the same views.
14 See General Assembly resolution 47/19 and subsequent resolutions.
15 Council of the European Union, “Council Regulation (EC) No. 2271/96”.
16 Council of the European Union, “Guidelines on implementation and evaluation of restrictive
measures (sanctions) in the framework of the EU Common Foreign and Security Policy” (15 June
2012), para. 52.
form of protests, domestic blocking legislation, non-recognition by domestic courts etc. The
study would also have to assess the potential implications of the use of extraterritorial
sanctions in terms of the law of international responsibility. It is worth mentioning in that
respect that, in 2006, the International Law Commission examined a preliminary Secretariat
report on extraterritorial jurisdiction, which could form the basis for long-term work on the
codification of international law on the matter.17 That proposal could (or should) be revived
in some form.
2. International human rights law
27. The adverse effects of international coercive measures in general on the enjoyment
of human rights of targeted populations have been widely documented. The question arises
whether extraterritorial sanctions display specific features (i.e. whether they are likely to
have specific adverse consequences on human rights) that can be distinguished from those
arising from the use of sanctions in general. It is submitted that such specific effects flow
from extraterritorial sanctions, to the extent that they affect the ability of the targeted
country (and its population), as well as that of third countries not involved in the dispute
between source and target countries, to interact with the global business and financial
community. They are likely, per se, to have specific, additional adverse consequences on
human rights, including the right to development. Most international businesses, while
legally not subject to the jurisdiction of the targeting State, will in practice be unwilling to
entertain any economic relations with parties in the targeted State that might lead to their
“violating” the provisions of the extraterritorial sanctions regime — and thus might
jeopardize their ability to pursue their own business activities in the targeting State. This
has led to the damaging practice of over-compliance by trading partners of targeted
countries. The result is a de facto blockade of the target State, voluntarily complied with by
economic actors that are not even legally subject to the jurisdiction of the targeting State.
The distinct additional impact of extraterritorial sanctions may also be related to their
effects on the targeted State’s ability to gain access to international financial institutions,
foreign financial markets and international aid.
28. As an example, the impact of the extraterritorial sanctions imposed on Cuba by the
United States (before their lifting, de jure rather than de facto, in 2016) on the country’s
ability to conduct commerce with the outside world and access international financial
markets has been described as amounting de facto to a global embargo. The Helms-Burton
Act had the effect of blocking access by Cuba to global financial institutions, as well as to
access to the SWIFT financial messaging system, which had severe effects in the context of
the economic crisis of Cuba.18
29. Extraterritorial application of unilateral sanctions may also have an adverse impact
on the enjoyment of human rights in third countries, which are not targeted directly, but are
prevented by the operation of the (extraterritorial) foreign law from entertaining economic
relations with the target country. It has long been recognized that economic sanctions
enacted against States by the Security Council may cause unintended adverse consequences
for third parties, such as trade partners. Article 50 of the Charter of the United Nations
provides that, if preventive or enforcement measures against any State are taken by the
Security Council, any other State that finds itself confronted with special economic
problems arising from the carrying out of those measures has the right to consult the
Security Council with regard to a solution of those problems.
30. It is fair to assume that the same adverse effects may derive from the application of
unilateral (extraterritorial) sanctions, but in that situation no rule comparable to Article 50
of the Charter seems to apply.
31. Regulation No. 2271/96 of the Council of the European Union (the “blocking
statute”) was intended to address and remedy the adverse effects of foreign extraterritorial
sanctions on economic enterprises of the European Union engaging in international trade
17 Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10).
18 C.J. Gordon, “The U.S. Embargo against Cuba and the Diplomatic Challenges to Extraterritoriality”,
Fletcher Forum of World Affairs, vol. 36 (2012), pp. 69-70.
and/or the movement of capital and related commercial activities between the (then)
European Community and (targeted) third countries. 19 The protection against the
extraterritorial application of sanctions lies in particular in the mandatory non-recognition
in the European Union of their legal effects. 20 It is to be noted that, while economic
operators in the European Union are generally prohibited from complying in any way with
the extraterritorial sanctions,21 they can nevertheless seek authorization to comply fully or
partially to the extent that non-compliance would seriously damage their interests or those
of the Community.22 Interestingly, the instrument also provides in detail for remedies in
favour of affected persons. European Union enterprises engaged in trade or economic
relations with a target country are to be entitled to recover any damages, including legal
costs, caused to that person by the application of the extraterritorial laws. Such recovery
may be obtained from the natural or legal person or any other entity causing the damages or
from any person acting on its behalf or intermediary. The recovery could take the form of
seizure and sale of assets held by those persons, entities, persons acting on their behalf or
intermediaries within the European Union, including shares held in a legal person
incorporated within the European Union.23
32. It is probably fair to note that, although the blocking statute appears at first sight to
be a powerful tool enabling the European Union to protect itself against the effects of
extraterritorial sanctions, it has unfortunately failed in the past to protect some European
Union companies (including banks), which incurred huge penalties from the United States
Department of the Treasury on the grounds of non-compliance with United States
sanctions. It is disturbing to observe that the European Union and its member States have
generally refrained from enforcing the provisions of the blocking statute or from exercising
any form of diplomatic protection in favour of their nationals affected by the extraterritorial
effects of foreign sanctions. Further, it is noteworthy that the application of this instrument
has not been extended by the European Union to cover the most recent United States
sanctions regimes having extraterritorial reach.
B. Extraterritorial obligations of States in relation to sanctions
33. The question is still being debated whether the obligations of States under the
International Covenant on Economic, Social and Cultural Rights extend extraterritorially
“to the point at which a State imposing sanctions might be held responsible for any
consequential deprivation (of the right to food or health care, for example), even if the
sanctioning State exercised no formal jurisdiction or control over the population
concerned”.24 However, the Special Rapporteur wishes to emphasize that there are strong
and convergent legal arguments pointing to the existence of extraterritorial State obligations
under the Covenant that may cover situations of imposition of international sanctions. As it
has been observed, “it is now widely agreed that human rights treaties may, in principle,
impose on States parties obligations not only when they adopt measures applicable on their
own territory, but also extraterritorial obligations, which may include positive obligations
going insofar as the State can influence situations located abroad”.25 It seems difficult to
deny that sanctions come within the category of situations where States can influence
situations located abroad.26
19 Council Regulation (EC) No. 2271/96, art. 1.
20 Ibid., art. 4.
21 Ibid., art. 5.
22 Ibid., art. 5.
23 Ibid., art. 6.
24 M. Craven, “The violence of dispossession: extra-territoriality and economic, social, and cultural
rights”, in M. Baderin and R. McCorquodale, eds., Economic, Social, and Cultural Rights in Action
(Oxford, Oxford University Press, 2007), p. 71.
25 O. De Schutter, “A human rights approach to trade and investment policies”, November 2008, para.
3.2. Available from www.iatp.org/sites/default/files/451_2_104504.pdf.
26 Ibid.
34. Firstly, the International Covenant on Economic, Social and Cultural Rights has no
territorial or jurisdictional limitations on the scope of its application.27 Whereas article 2 (1)
of the International Covenant on Civil and Political Rights sets out the obligation of States
parties to respect and ensure the rights of all individuals within its territory and subject to
its jurisdiction, the equivalent provision in article 2 (1) of the International Covenant on
Economic, Social and Cultural Rights avoids any reference to “jurisdiction” or “territory”.
Furthermore, the latter, using language that has no equivalent in the former, imposes an
obligation upon all States to take steps, individually and through international assistance
and cooperation, with a view to achieving the full realization of the recognized rights on a
progressive basis.28 This clearly implies that States parties assume certain obligations of an
external or international nature.29 Thus the International Covenant on Economic, Social and
Cultural Rights can be deemed as setting forth certain extraterritorial obligations for State
parties in respect of individuals in third States.30
35. Secondly, the concept of “jurisdiction”, which is the criterion (and an alternative to
“territory”) for the applicability of the legal human rights obligations of States, has been
extended over time to address satisfactorily situations where a restrictive application of the
territorial or jurisdictional requirements in the relevant treaty would have prevented its
application. Thus, jurisdiction has been established with respect to “occupied” territory31
and to territory over which a State assumes some form of “effective control”.32 Taking these
findings as a starting point, and applying these to situations where the measures complained
of (i.e. sanctions) have extraterritorial effects by their very nature, it may be reasonably
argued that a State imposing sanctions should incur liability for violations of human rights
even if it does not exercise formal “jurisdiction” or “control” over the population or the
territory targeted. This is all the more so since, as previously mentioned, the International
Covenant on Economic, Social and Cultural Rights does not contain territorial or
jurisdictional limitations.
36. In addition, an argument can be made that such position would be consonant with
the rule of customary international law which prohibits a State from allowing its territory to
be used to cause damage on the territory of another State, a requirement that has gained
27 M. Sepulveda and C. Courtis, “Are extra-territorial obligations reviewable under the optional protocol
to the ICESCR?”, Nordic Journal of Human Rights, vol. 27 (2009), p. 55; see also M. Milanovic,
Extraterritorial Application of Human Rights Treaties (Oxford, Oxford University Press, 2011), p.
17.
28 The reference to international cooperation is further reiterated in arts. 11 (2) and 15 (4) of the
International Covenant on Economic, Social and Cultural Rights. Art. 23 states that international
action for the achievement of the recognized rights should include such methods as the conclusion of
conventions, the adoption of recommendations, the furnishing of technical assistance and the holding
of regional meetings and technical meetings for the purpose of consultation and study.
29 M. Craven, “The violence of dispossession”, p. 71.
30 See, for instance, 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 (2011), pp. 1-35.
31 See Gondek, The Reach of Human Rights in a Globalising World: Extraterritorial Application of
Human Rights Treaties (Antwerp, Intersentia, 2009); F. Coomans, “The extraterritorial scope of the
International Covenant on Economic, Social and Cultural Rights”, p. 6.
32 See, for example, International Court of Justice, Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Reports 2004, p. 136, para. 112,
referring to the findings of the Committee on Economic, Social and Cultural Rights that the
obligations of Israel under the Covenant applied to all territories and populations under its effective
control (see E/C.12/1/Add.90, paras. 15 and 31). See also European Court of Human Rights, Loizidou
v. Turkey (application No. 15318/89), judgment on preliminary objections of 23 March 1995, para.
62: “The responsibility of a Contracting Party may also arise when as a consequence of military
action — whether lawful or unlawful — it exercises effective control of an area outside its national
territory”.
particular relevance in international environmental law33 and may be deemed relevant to the
field of protection of human rights.34
37. Further, such arguments in favour of extraterritorial obligations under human rights
treaties are fully consistent with the actual practice of the Committee on Economic, Social
and Cultural Rights. In its general comment No. 8 (1997), on the relationship between
economic sanctions and respect for economic, social and cultural rights, the Committee set
out certain obligations borne by parties responsible for the imposition, maintenance or
implementation of the sanctions, whether it be the international community, an international
or regional organization, or a State or group of States. Among these obligations flowing
from the recognition of economic, social and cultural human rights, the Committee
identified the obligation to respond to any disproportionate suffering experienced by
vulnerable groups within the targeted country.
38. In the same general comment, the Committee expressed the view that, when an
external party took upon itself even partial responsibility for the situation within a country,
it also unavoidably assumed a responsibility to do all within its power to protect the
economic, social and cultural rights of the affected population. The Special Rapporteur
believes that there lies the crux of the matter: notwithstanding the responsibility of the
targeted State to do its utmost to protect its own population, a State imposing sanctions,
insofar as it practically assumes even partial responsibility for the situation within the
targeted country, is also ipso facto under an obligation to protect the economic, social and
cultural rights of the affected population.
39. Other findings of the Committee point in the same direction. In its general comment
No. 14 (2000) on the right to the highest attainable standard of health, the Committee
emphasized that States parties should refrain at all times from imposing embargoes or
similar measures restricting the supply of another State with adequate medicines and
medical equipment. This clear position by the Committee, it has been noted, may be
interpreted as an implicit recognition of extraterritorial human rights obligations in the area
of economic, social and cultural rights.35
40. It should be added that, as a matter of principle, there is no apparent reason to
exclude the applicability of the general principles of State responsibility (and/or the
responsibility of international organizations, as the case may be) in cases of damage caused
to a third country by the application of sanctions imposed by source States (or international
organizations). The basic principle enunciated in article 1 of the articles on responsibility of
States for internationally wrongful acts (comprising text adopted by the International Law
Commission in 2001), according to which every internationally wrongful act of a State
entails the international responsibility of that State, should be deemed to apply equally to
wrongful acts of a State entailing damages to human rights of persons or populations of
other countries. In relation to the international responsibility of a State for unlawful acts, it
has even been observed that a State is under a duty to control the activities of private
persons within its State territory, and that the duty is no less applicable where the harm is
caused to persons or other legal interests within the territory of another State.36 Arguably,
the same duty shall apply a fortiori to unilateral sanctions that are directly attributable to the
33 As noted by the Committee on Economic, Social and Cultural Rights in its general comment No. 24
(2017) on State obligations under the International Covenant on Economic, Social and Cultural Rights
in the context of business activities.
34 See N. Vennemann, “Application of international human rights conventions to transboundary State
acts”, in R. M. Bratspies and R.A. Miller, eds., Transboundary Harm in International Law, Lessons
from the Trail Smelter Arbitration (Cambridge, Cambridge University Press, 2006), pp. 295-307; De
Schutter and others, “Commentary to the Maastricht Principles on Extraterritorial Obligations of
States in the Area of Economic, Social and Cultural Rights”, Human Rights Quarterly, vol. 34 (2012),
p. 1084; L. Bartels, “The EU’s human rights obligations in relation to policies with extraterritorial
effects”, European Journal of International Law, vol. 25 (2014), pp. 1081-1083.
35 F. Coomans, “The extraterritorial scope of the International Covenant on Economic, Social and
Cultural Rights”, p. 12.
36 I. Brownlie, System of the Law of Nations. State Responsibility (Oxford, Clarendon Press, 1983), p.
165.
State. Unlawful assertion of jurisdiction through extraterritorial application of domestic
(sanctions) measures, to the extent that it results in adverse effects (economic or otherwise)
on third countries, should also entail the international responsibility of the targeting State.
V. Options for the establishment of specialized compensation commissions for victims of unilateral coercive measures
41. The Special Rapporteur has previously mentioned the possibility of establishing a
compensation commission for the purpose of providing effective compensation to victims
of unilateral coercive measures (see A/HRC/33/48, paras. 48-50 and 74). It is submitted
that this option would be the clearest way to ensure general availability of remedies for
victims since, to date, few international forums are available to victims, whether States,
individuals or entities, as a matter of fact and law, and there remains a measure of
controversy as to the competence of United Nations human rights bodies to address claims
based on the effects of imposition of unilateral coercive measures.
42. It is submitted that such a compensation commission could draw on the model of
past similar mechanisms, which were most often created to address the need to provide for
remedies for victims of armed conflict. In particular, the precedent of the United Nations
Compensation Commission should be considered. The Commission was established as a
subsidiary organ of the Security Council by resolution 687 (1991), with a mandate to
review, decide and pay the claims for which Iraq was liable as a result of its unlawful
invasion of Kuwait.37 Despite criticism of the Commission, related mainly to the politicized
circumstances of its creation, the lack of application of the rule of law in the adjudication of
claims and the origin of the resources allocated to the victims (which were diverted from
Iraqi oil export revenue), lessons may be drawn from the functioning of the Commission,
and some of its features are of direct relevance to the right of victims to seek reparations for
violations of human rights.
43. An enquiry may also need to be conducted on the relevance of other compensation
commissions, whatever their title. A number of such mechanisms were set up in the past,
whether by agreement between the States concerned or by decision of the Security Council.
44. 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.
45. An important issue is that of the resources and financing of the compensation
commission. States which have imposed unilateral coercive measures on other States could
be called upon to contribute financially to it. It is also submitted that one pragmatic
possibility for the financing of the compensation commission would be to provide for the
diversion of all or part of the financial contributions of the targeted State to multilateral
financial institutions and its subsequent allocation to the compensation commission,
without any negative consequence for the targeted country. The latter would therefore
retain its full membership rights, including voting rights, in the multilateral financial
institution(s) concerned, as if the contributions had not been diverted.
46. The institutional features and modalities of functioning of the compensation
commission call for special attention. A preliminary issue to be addressed is whether it
would be preferable to establish a single, all-purpose compensation commission for all
existing sanctions regimes or, alternatively, several compensation commissions, each
designed to provide for the reparations of damage suffered by victims of a single sanctions
regime.
37 See M. Frigessi di Rattalma and T. Treves, eds., The United Nations Compensation Commission, A
Handbook (The Hague, Kluwer Law International, 1999); H.M. Holtzmann and E. Kristjánsdóttir,
International Mass Claims Processes: Legal and Practical Perspectives (Oxford, Oxford University
Press, 2007).
47. The compensation commission would need to operate according to strict rules of
procedure, and should be designed so as to allow for an expedient, fair and efficient
evaluation and adjudication of the claims. The following features would have to be agreed
upon, in particular:
(a) The composition of the adjudicatory body of the compensation commission;
the creation of one single panel or several and the modalities of designation and
replacement of the members of the commission (or panels);
(b) The method of determining the amount of damages and their allocation to the
victims;
(c) The establishment of a secretariat and a supervisory body;
(d) The requirements regarding the claimants and conditions of admissibility of
the claims (eligibility criteria); the United Nations Compensation Commission adopted a
system of consolidated claims, under which only States were entitled to submit claims on
behalf of their nationals and corporations, but an alternative would be a direct right of
action for victims;
(e) The applicable rules of procedure, proof and evidence;
(f) The time limits for the submission of claims;
(g) The provisions regarding an appeal or review mechanism for decisions of the
commission.38
VI. Conclusions and recommendations
48. The Special Rapporteur is of the view that the time has come for the
international community to reaffirm the principle that all persons whose enjoyment of
human rights has been affected by unilateral coercive measures are entitled to an
effective remedy, including appropriate and effective financial compensation. Such
affirmation necessarily flows from the general principle, enshrined in the Universal
Declaration of Human Rights and a number of other human rights instruments, that
everyone has the right to an effective remedy for acts violating his or her fundamental
rights. There is no reason why unilateral coercive measures should be exempted from
this general principle, which is intended to benefit all victims of human rights
violations, irrespective of the particular facts or context of such violations. It is worth
recalling that, in the 2030 Agenda for Sustainable Development, States have pledged
to act for the promotion of the rule of law at the national and international levels and
to ensure equal access to justice for all (target 16.3 of the Sustainable Development
Goals).
49. It is necessary to extend the paradigm from remediation to prevention of the
adverse effects of unilateral sanctions. States should thus be called upon to take
resolute steps, at an early date and in good faith, towards termination of unilateral
coercive measures in force and renunciation of their use, in accordance with
international law. A commitment by States to abolish unilateral sanctions and give
precedence to means of peaceful settlement of international disputes and differences
would be in line with their obligation under the Charter of the United Nations to settle
their international disputes by peaceful means such that international peace and
security and justice are not endangered, in accordance with Chapter VI of the
Charter.
50. The fact that States increasingly resort to unilateral coercive measures raises
some basic principles of international law which need to be reaffirmed. Assuming that
there will be a transition period pending complete termination and elimination of
38 On institutional characteristics of the Compensation Commission, see, for instance, F.E. McGovern,
“Dispute system design: the United Nations Compensation Commission”, Harvard Negotiation Law
Review, vol. 14 (2009), pp. 171-193.
unilateral coercive measures, States are urged to comply during that transition period
with universally accepted rules of behaviour, called for by international law and
international human rights law, aiming at the mitigation of the adverse human rights
impacts of unilateral sanctions. These basic principles and rules of behaviour are set
out in detail in the elements for a draft declaration on unilateral coercive measures
and the rule of law contained in appendix II of the annex to the present report. The
rules of behaviour advocated include, inter alia, the obligation to conduct a
transparent human rights assessment of coercive measures, to monitor on a regular
basis the effects of implementation of the measures, to ensure effective exemptions for
satisfying basic human rights and essential humanitarian needs, and to guarantee due
process and the availability to victims of judicial review for obtaining remedies and
redress.
51. The other proposal put forward by the Special Rapporteur, i.e. the
establishment of a United Nations register of unilateral sanctions likely to have a
human rights impact, is a simple, practical, viable and fair means to ensure
transparency in the implementation of sanctions during the transition period. This
transparency will be helpful to the Security Council, civil society organizations and
the business sector. The Special Rapporteur believes that such a mechanism could be
agreed and established and begin operations in the very near future.
52. The Special Rapporteur must strongly emphasize the paradoxical fact that the
same countries which apply unilateral sanctions with extraterritorial reach and effects
are the same ones which generally oppose the recognition of the extraterritorial
character of State obligations assumed under the Covenants, in particular the
International Covenant on Economic, Social and Cultural Rights. He concurs with the
view of the Committee on Economic, Social and Cultural Rights that, as a matter of
law and logic, the imposition of sanctions on a third country entails at least partial
responsibility of the targeting State for the situation within the targeted country,
which in turn implies the legal responsibility also of the targeting State to protect,
extraterritorially, the human rights of the affected population, especially their
fundamental economic, social and cultural rights. The Special Rapporteur therefore
calls for a solemn reiteration, in the form of a declaration on unilateral coercive
measures and the rule of law, of the basic principle that unilateral coercive measures
involving extraterritorial application of domestic measures are unlawful under
international law. He trusts that such condemnation of extraterritorial measures as
unlawful reflects the understanding of most countries of the world, irrespective of
their legal systems.
53. The Special Rapporteur also calls for an explicit recognition of the basic
principle of the extraterritorial character of the human rights obligations of States in
cases of imposition of sanctions on third countries; such action entails the legal
accountability of targeting States for measures affecting negatively the enjoyment of
human rights of the affected populations.
54. Finally, the Special Rapporteur wishes to reiterate that the establishment of an
ad hoc compensation commission under the United Nations for victims of unilateral
coercive measures is a viable option to ensure accountability and the availability of
remedies and redress while gaps still remain in domestic and international
mechanisms for the judicial review of unilateral sanctions.
Annex
Outcome document of the expert working group convened in Geneva on 3 June 2017
1. An expert consultation was held at the OHCHR, Palais Wilson in Geneva on 3 June
2017 to review and evaluate the initiatives put forward by the Special Rapporteur in his
reports to the Human Rights Council and the General Assembly, i.e. a United Nations
Register of unilateral sanctions likely to have a human rights impact and a United Nations
Declaration on unilateral coercive measures and the rule of law.
2. In addition to the Special Rapporteur, Mr. Idriss Jazairy, the following experts were
in attendance: Professor Mark Bossuyt (Member of the Committee on the Elimination of
Racial Discrimination, Member of the Permanent Court of Arbitration in The Hague and a
former judge at the Belgian Constitutional Court), Professor Alena Douhan (Associate
Professor of international law, Belarusian State University, Minsk, Belarus), Mr. Hans-
Jakob Schindler (Coordinator of the ISIL(Da’esh)/Al-Qaida/Taliban Monitoring Team),
Ms. Catherine Marchi-Uhel (Ombudsperson, Security Council ISIL (Da’esh) and Al-Qaida
Sanctions Committee), Professor Aslan Abashidze (Member of the United Nations
Committee on Economic, Social and Cultural Rights, Professor at the International Law
Department, Moscow State Institute of International Relations and Director of Center for
Innovations in Education and Legal Research at Peoples’ Friendship University of Russia),
Professor Matthew Happold (Professor of Public International Law at the University of
Luxembourg and a barrister at 3 Hare Court, London),Professor Antonios Tzanakopoulos
(Associate Professor of Public International Law, University of Oxford) and Mr. Pierre-
Emmanuel Dupont (Director, Public International Law Advisory Group) who moderated
the workshop. Mr. Alfred de Zayas (Independent Expert on the promotion of a democratic
and equitable international order) could not attend but submitted a statement.
3. The first session of the expert consultation was devoted to the draft Declaration on
unilateral coercive measures and the rule of law. One participant first addressed the issue of
the legal force of resolutions of the General Assembly, stressing that for a General
Assembly resolution to have legal effects, it should have a normative character, it should
receive the support or at least the absence of opposition from a large number of States,
including the States particularly affected by the matter concerned, and the adoption of the
resolution should be followed by a uniform and constant state practice in conformity with
the behaviour prescribed in the resolution. Another participant addressed the issue of
mechanisms of and remedies for human rights protection against unilateral coercive
measures. Unilateral coercive measures have an impact a broad range of human rights, and
their ‘contributory nature’ in ongoing human rights situations brought before the Human
Rights Council was underlined by one participant. Possible responses to unilateral coercive
measures were identified, and a distinction was made between immediate and long-term
responses. Responses to measures targeting States (including Special Procedures of the
Human Rights Council, United Nations fact-finding missions, 1 a United Nations
compensation commission, etc.) and responses to measures directed against individuals or
entities (including, but not limited to, judicial review before domestic courts of the
sanctioning state, which is unfortunately subject to a range of legal and practical
limitations, if available at all, in many scenarios). It was also called for a reform of the
‘targeted sanctions’ processes to ensure due process guarantees, that would include the
mandatory and immediate opening of criminal or administrative process in parallel to
inclusion in a sanctions list, and lifting of the sanctions (and financial compensation) if a
person is recognized not-guilty. A participant referred to the under-utilized inter-State
complaints procedure, which should be engaged and in some cases could facilitate
negotiation and friendly settlement under treaty bodies (e.g. Art. 41 International Covenant
1 See Declaration on Fact-finding by the United Nations in the Field of the Maintenance of
International Peace and Security (A/RES/46/59).
on Civil and Political Rights). It was suggested that sanctions should also be tested in the
context of the Universal Periodic Review of the Human Rights Council. Another participant
examined the relevance of the work of the International Law Association on Reparation for
Victims of Armed Conflict, stressing that all victims of human rights violations are entitled
to access to mechanism for reparations. Several participants stressed the importance of the
right of access to a court, as called for by Article 6 of the European Convention on Human
Rights and other instruments.
4. The second session focused on the United Nations Register of unilateral sanctions
likely to have a human rights impact. The possible institutional features and practical
modalities of functioning of such mechanism were extensively discussed, and participants
generally agreed that such Register could possibly under certain conditions benefit from
wide acceptance from the international community. The relevance of the United Nations
Register of Conventional Arms as a possible precedent was examined, as well as possible
guidance to be drawn from the practical operation of the Sanctions Committee and the
Ombudsperson of the Security Council ISIL/Al Qaeda sanctions regime, and from the
experience of the Committee on Economic, Social and Cultural Rights in relation to
sanctions. Participants generally shared the view that unilateral sanctions were primarily to
be reported (including information about the alleged impact on human rights of the
measures) by targeted States, although reporting by targeting State was also possible. The
depository of the Register would then notify the targeting state of the allegation by the
targeted state of the alleged impact on human rights of the measures, and invite the
targeting state to respond to the allegation and to include in the response, information on
whether it has conducted an assessment of the possible inadvertent (or unintended) impact
on human rights of the measures, and if so provide the result of such assessment, and
whether it has taken any steps to mitigate such impact. It was also suggested that a focal
point should be created by States for civil society organizations to be able to interact with
their respective Government as regards possible notification of unilateral sanctions for
inclusion in the Register. Also, the inclusion of a potential dispute settlement mechanism
associated with the Registry was discussed, as well as the possibility that such dispute
settlement mechanism be entitled to rule on reparation claims for adverse impact of
sanctions on human rights.
Appendix I
Elements on the United Nations register of unilateral sanctions likely to have a human rights impact
1. It is suggested that the next General Assembly resolution on human rights and
unilateral coercive measures include the following elements:
Preamble
2. Welcoming the proposal made by the Special Rapporteur of the Human Rights
Council on the negative impact of unilateral coercive measures on the enjoyment of human
rights, submitted pursuant to [---], and recalling the reports of the Secretary-General on [---
], to establish a consolidated central register at the level of the United Nations Secretariat to
recapitulate the list of all unilateral sanctions in force, and sharing the Special Rapporteur’s
view that the first obstacle to a global evaluation of the negative impact of unilateral
sanctions on human rights is the unavailability of global and standardized updated data, and
that full transparency in this regard would be helpful both to the United Nations, to private
enterprises involved in international trade, and to the civil society at large,
Operative paragraphs
• [---]. Requests the Secretary-General to establish and maintain at United Nations
Headquarters in New York a universal and non-discriminatory Register of unilateral
sanctions, to include information on unilateral sanctions, to be reported by targeted
States, or by States implementing sanctions as the case may be, in accordance with
procedures including applicable standards initially comprising those set out in the
annex to the present resolution and subsequently incorporating any adjustments to
the standards decided upon by the General Assembly at its [---] session in the light
of the recommendations of the panel referred to in paragraph below;
• [---]. Also requests the Secretary-General, with the assistance of a panel of
independent experts to be nominated by him on the basis of equitable geographical
representation and upon proposals by States, to elaborate the technical procedures
and applicable standards for comparability of data, to make any adjustments to the
annex to the present resolution necessary for the effective operation of the Register,
and to prepare a report on the modalities for ensuring the universality and non-
discriminatory character of the Register, to raise awareness concerning the Member
States concerning the Register and its procedures, and to submit this report to the
General Assembly at its [---] session;
• [---]. Calls upon all Member States to provide annually for the Register data in
accordance with the procedures established by paragraph 26 above, and the annex to
the present resolution;
• [---]. Decides, with a view to ensuring the universality and non-discriminatory
character of the Register, to keep the operation of the Register under review, and, to
this end:
(a) Invites Member States to provide the Secretary-General with their views, not
later than [insert date 2 years ahead], on:
(i) The operation of the Register during its first two years;
(ii) Any identified obstacles to achieving the universality and non-discriminatory
character of the Register;
(iii) Possible improvements or expansion of scope to include a monitoring
function;
Register of unilateral sanctions
1. The Register of unilateral sanctions likely to have a human rights impact (the
“Register”) shall be established, with effect from [1 January 2018], and maintained at the
Headquarters of the United Nations in New York.
2. Member States are requested to provide data for the Register, addressed to the
Secretary-General, on an annual basis by [30 April] each year in respect of unilateral
coercive measures implemented by them or targeting them and in force during the previous
calendar year;
3. The first such registration shall take place by [30 April 2018] in respect of the
calendar year [2017];
4. The data so provided shall be recorded in respect of each Member State.
5. Member States are requested to designate focal points for civil society organizations
to be able to interact with their respective Government as regards unilateral sanctions;
6. Upon notification of the unilateral sanction by the targeted State or States, the
Secretary-General shall seek the views of the source State or group of States and vice versa.
7. Unilateral sanctions covered are those taken by virtue of law or executive decision
or under any other form by the source State or group of States.
8. The Register shall be open for public consultation.
9. In addition, the Secretary-General shall provide annually a consolidated report to the
General Assembly of the data registered.
Appendix II
Elements for a draft General Assembly declaration on unilateral coercive measures and the rule of law
A. Basic principles
1. Full account should be taken of the position expressed in resolution 34/13 adopted
by the Human Rights Council on 24 March 2017, which ‘urged all States to refrain from
imposing unilateral coercive measures, also urged the removal of such measures, as they
are contrary to the Charter and norms and principles governing peaceful relations among
States at all levels, and recalled that such measures prevent the full realization of economic
and social development of nations while also affecting the full realization of human rights’ ;
2. Unilateral coercive measures have a tendency to remain in force irrespective of the
achievement of its purported objective;
3. Unilateral coercive measures involving extraterritorial application of domestic
measures are unlawful under international law;
4. Unilateral coercive measures in a number of cases entail severe adverse impacts on
the enjoyment of human rights of targeted populations and individuals, have often proven
to be inefficient, and are most likely to entail unintended effects in the form of adverse
human rights impacts on non-designated third parties;
5. Whilst targeted States have a responsibility to mitigate the adverse human rights
impact of unilateral sanctions imposed by source countries, the latter are also accountable
for any adverse effects on human rights occurring in target countries, even if such effects
are unintended, to the extent that “when an external party takes upon itself even partial
responsibility for the situation within a country (whether under Chapter VII of the Charter
or otherwise), it also unavoidably assumes a responsibility to do all within its powers to
protect the economic, social and cultural rights of the affected population” (Committee on
Economic, Social and Cultural Rights, General Comment No. 8 on the relationship between
economic sanctions and respect for economic, social and cultural rights, E/C.12/1997/8,
para. 13);
6. The inhabitants of a given country do not forfeit basic economic, social and cultural
rights by virtue of any determination that their leaders have violated norms of international
peace and security, as affirmed by the Committee on Economic, Social and Cultural Rights
in its general comment No. 8 on the relationship between economic sanctions and respect
for economic, social and cultural rights (See E/C.12/1997/8, para. 16).
7. In situations where unilateral coercive measures inflict undue sufferings/have an
egregious human rights impact, on the population of a targeted State, whatever legal motive
is invoked, they become clearly illegal and their source countries should be called to
account.
8. Such call for the removal of unilateral coercive measures applies to comprehensive
measures as well as to targeted measures and to economic as well as to financial measures;
9. As a consequence, the basic principle should be that States and groups of States
should commit themselves to refraining from imposing unilateral coercive measures, as
well as remove such measures as are in force, and shall commit to using other means of
peaceful settlement of international disputes and differences;
10. The present Declaration is without prejudice to the procedural and substantive
requirements arising from the legal regime of countermeasures in the sense of the
International Law Commission Draft Articles on the Responsibility of States for
International Wrongful Acts;
B. Mitigation: Universally/Generally accepted rules of behaviour
11. Pending the total removal and termination of all existing unilateral coercive
measures and renunciation to their use, all efforts should be made to mitigate the adverse
effect of unilateral sanctions on human rights;
12. The transitional period preceding the total removal and termination of all existing
unilateral coercive measures and renunciation to their use should be shortened to the
greatest extent possible.
13. During the transitional period, the following universally accepted rules of behaviour
shall be asserted to mitigate the adverse impacts of unilateral sanctions:
(a) 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;
(b) The parties implementing unilateral sanctions are under an obligation to
ensure effective exemptions for satisfying basic human rights and essential humanitarian
needs;
(c) There must be an end to the politicization of what was intended to be a purely
technical interbank international financial transfer mechanism, whose manipulation in the
form of selective exclusion is tantamount to re-introducing comprehensive sanctions on
targeted countries;
(d) Mechanisms to guarantee due process, and the availability of judicial review
for obtaining remedies and redress for unilateral coercive measures, should be available to:
• Impacted groups, though non-targeted (by comprehensive or sectoral sanctions), and
• Individuals and legal persons and entities targeted (by targeted sanctions).
(e) The basic components of the requirement of due process in relation to
unilateral coercive measures, pending their total elimination, shall be the following:
(i) Mechanisms and procedures for judicial review of unilateral coercive
measures:
• The factual and legal grounds for the measures have to be disclosed to the concerned
parties;
• The availability of, and the mechanisms and procedures for, a right to appeal/judicial
review, should be made known to the targeted parties upon notification to the
concerned parties;
• Such mechanisms and procedures should allow for a review of the substantive
factual and legal grounds for the unilateral coercive measures, in accordance with
international law and international humanitarian law, as well as in compliance with
internationally recognized procedural standards;
• Such mechanisms and procedures should be in place and available at the same level
(either domestic or international [either regional organization or the United
Nations]) as the source of the unilateral coercive measures concerned; in case of
unavailability of procedures for remedies at the domestic level or at the level of a
group of countries imposing sanctions, the targeted countries or persons should be
entitled to seek remedies by the Committee of the treaty body concerned, i.e.
CESCR;
• Such mechanisms and procedures should be of a judicial nature or at least, for a
transitional period, of the nature of an Ombudsperson or other quasi-judicial
mechanism;
(ii) Notification of the measures to the parties concerned as soon as practicable,
without affecting the effectiveness of the measures;
(iii) Time-bound limitation of the measures, and biannual monitoring and review;
(iv) Reversibility of the measures;
(v) Appropriate humanitarian exceptions;
(vi) A regular mechanism to monitor potential adverse impact and unintended
consequences of these measures; and
(vi) Availability of effective compensation/reparations (including financial) when
unwarranted adverse impacts on human rights have occurred.