STRENGTHENING THE DESIGN AND IMPLEMENTATION OF ECONOMIC SANCTIONS

STRENGTHENING THE DESIGN AND IMPLEMENTATION OF ECONOMIC SANCTIONS
STRENGTHENING THE DESIGN AND IMPLEMENTATION OF ECONOMIC SANCTIONS
WITHIN THE FRAMEWORK OF INTERNATIONAL HUMAN RIGHTS LAW: A CRITICAL
APPRAISAL
Submitted in partial fulfilment of the requirements of the degree LLM (Human
Rights and Democratisation in Africa)
By Chisomo Kaufulu 12376737
Prepared under the supervision of
Prof Catarina Krause
At
Institute for Human Rights, Abo Akademi University
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Plagiarism declaration
I, Student No. 12376737 declare as follows:
1. I understand what plagiarism entails and am aware of the University’s policy in this regard.
2. This dissertation is my own, original work. Where someone else’s work has been used
(whether from a printed source, the internet or any other source) due acknowledgment has
been given and reference made according to the requirements of the Faculty of Law.
3 I did not make use of another student’s work and submit it as my own.
4 I did not allow anyone to copy my work with the aim of presenting it as his or her own work.
Date: 30 October 2012
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Dedication
To my husband, Moses- for being the wind beneath my wings
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Acknowledgments
Over and above, utmost thanks to the Lord Jesus Christ for His grace that kept me from giving
up so many times. My faith in Him kept me through it all.
I remain forever grateful to my late parents – Zephaniah and Febbie; and though not here to
see this work, your trust in my capabilities inspired me greatly each day.
I thank the Centre for Human Rights at the University of Pretoria for according me this rare
opportunity to study at their prestigious institution, an opportunity that I never thought would
be accorded to me. I do not take this privilege for granted. I accord gratitude to our tutors
who provided invaluable assistance throughout the course. I also thank the LLM Class of 2012
for the insightful interactions shared.
I thank my supervisor, Prof Krause, for her critical comments. The journey behind this
dissertation was a challenge but her determination in ensuring that I remain on track was
inspiring and humbling. However, at the outset, I must say that all error in this work is
attributable to me and me alone.
I accord due appreciation to the Institute for Human Rights, Abo Akademi University for the
welcoming and wonderful working environment. I take with me the memories of the beautiful
and quiet Turku…and a bigger dream for my own country.
I also wish to thank my brother for his support. He is a great man of wisdom and vision.
And of course I thank my dear husband for being there through it all; for his constant
encouragement, love and guidance.
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Definition of terms
Boycott: measures seeking to refuse imports from a target country.
Embargo: trade sanctions aimed at preventing exports to a target country.
Sanctions: in the context of this thesis, the term sanction is used to mean ‘economic sanctions.’
Comprehensive/general sanctions: the application of the total range of sanction measures
against a target country, including trade and financial sanctions as well as the withdrawal of
customary trade or financial relations.
Targeted/smart sanctions: the selective application of sanction measures with the primary
intention of minimizing unintended adverse humanitarian impact on the population by
specifically targeting individuals (often those who play a major role in the violations of human
rights).*
Restrictive measures: often used interchangeably with economic sanctions. A preferred term
of EU imposed sanctions
Target country/entity: the country/entity against which sanctions are imposed
Sender country/imposing state/imposing entity: the country/state/entity imposing the
sanctions
*Targeted sanctions are not only imposed against human rights violations. However, in the
context of this thesis, only those targeted sanctions imposed against human rights violators are
examined.
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Table of contents
Plagiarism declaration ....................................................................................................................... i
Dedication ......................................................................................................................................... ii
Acknowledgments ........................................................................................................................... iii
Definition of terms............................................................................................................................ iv
Table of contents ............................................................................................................................... v
CHAPTER ONE .................................................................................................................................. 1
1.0 Introduction .................................................................................................................................... 1
1.1 The history of sanctions .................................................................................................................. 1
1.1.1 Economic sanctions prior to the League of Nations ................................................................. 1
1.1.2 Economic sanctions during the League of Nations ................................................................... 2
1.1.3 Economic sanctions under the United Nations .......................................................................... 3
1.2 Economic sanctions as a ‘human rights enforcement tool’ ............................................................... 4
1.3 Significance of the study .............................................................................................................. 5
1.4 Research question and specific objectives .................................................................................. 6
1.5 Methodology................................................................................................................................. 7
1.6 Limitations .................................................................................................................................... 7
1.7 Literature review ........................................................................................................................... 7
1.8 Overview of chapters .................................................................................................................. 10
CHAPTER TWO ................................................................................................................................ 11
2.0 Introduction .................................................................................................................................. 11
2.1 The legal framework for sanctions ............................................................................................... 11
2.1.1 Unilateral sanctions ............................................................................................................... 11
2.1.2 Multilateral sanctions ............................................................................................................ 14
2.1.3 Secondary sanctions.............................................................................................................. 17
2.2 Exploring the principles of sovereignty and non-intervention in relation to sanctions .................. 19
2.3 Conclusion .................................................................................................................................... 21
CHAPTER THREE.............................................................................................................................. 22
3.0 Introduction .................................................................................................................................. 22
3.1 The emergence of targeted sanctions .......................................................................................... 22
3.1.1 Targeted sanctions and individual rights............................................................................... 25
3.1.2 The humanitarian impact of targeted sanctions .................................................................... 30
3.2 Conclusion .................................................................................................................................... 35
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CHAPTER FOUR .............................................................................................................................. 36
4.0 Recommendations......................................................................................................................... 36
4.1 Introduction .................................................................................................................................. 36
4.2 Addressing the problem of due process under sanction’s design ................................................. 36
4.2.1 The right to be informed ....................................................................................................... 36
4.2.2 Review proceedings .............................................................................................................. 39
4.2.3 Addressing the challenge of political will ............................................................................. 40
4.3 Addressing the problem of the unsuccessful implementation of targeted sanctions ..................... 41
4.3.1 Proportionality ...................................................................................................................... 41
4.3.2 Identifying the operating framework of the target .............................................................. 42
4.3.3 What is the relationship between the regime and the targeted entity? ............................... 43
4.3.4 Is the target regime hurting? ................................................................................................. 44
4.3.5 What is the extent of internal support for the regime?......................................................... 44
4.3.6 What does the populace want? ............................................................................................ 46
4.3.7 Enhanced regional support- a unique call for the African Union (AU)................................... 46
4.4 Conclusion .................................................................................................................................... 47
Bibliography.................................................................................................................................... 48
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CHAPTER ONE
1.0 Introduction
Economic sanctions (sanctions) can be defined as ‘coercive economic measures taken against
one or more countries to force a change in policies.1’ They are ‘measures of an economic -as
contrasted with diplomatic or military -character taken by states to express disapproval of the
acts of the target state or to induce that state to change some policy or practice or even its
governmental structure…and are measures taken not for economic gain, and often at
commercial sacrifice on the part of the state engaged in a program of denial. 2’ Sanctions
serve as ‘reactionary measures’ against a target state/regime/other entity that has violated
international law or which poses a threat to peace and security. 3 They take a variety of forms,
ranging from a mere refusal to renew foreign aid to a total trade embargo.4 They can also be
calibrated to impose unwelcomed costs on a single rogue leader flaunting international norms;
or ratcheted up to impose those costs on the elites supporting that leader; or further ratcheted
to impose population-wide costs on a recalcitrant society.5 They are generally imposed in two
ways; by the United Nations (UN) Security Council6 and by individual states (mostly the United
States of America (US) and countries within the European Union (EU)).7
1.1 The history of sanctions
1.1.1 Economic sanctions prior to the League of Nations
The best-known historical example of economic sanctions being employed dates back to 432
BC when Pericles decreed that the entry of products from Megara into the markets of Athens
be limited in response to Megara’s territorial expansion and its’ kidnapping of three women.8
However during that period, there was no formalized avenue under which such sanctions were
1
D E. Rennack, R Shuey Economic Sanctions to Achieve U.S. Foreign Policy Goals: Discussion and Guide to
Current Law (1997) available at http://www.fas.org/man/crs/crs-sanction.htm (accessed 31 July 2012).
2
A. F. Lowenfeld International Economic Law (2002) 698 as cited in M Abler Retooling economic sanctions:
challenges of legitimacy & efficacy (2008) available at http://works.bepress.com/e_michael_abler/1 (accessed
17 August 2012).
3
Practice Brief Economic & Financial Sanctions Practice available at
http://www.erenlaw.com/pdfs/pb_economic_sanctions-defined.pdf (accessed 31 July 2012).
4
J D’hollander Economic sanctions as a means to enforce human rights (1995) 24.
5
D Cortright & G Lopez Introduction: Assessing Smart Sanctions: Lessons from the 1990s
2, 3 as cited in M Abbler (n 3 above) 6.
6
Articles 24, 39 and 41 of the United Nations Charter.
7
B Baek Economic sanctions against human rights violations (2008) 21.
8
B Carter Economic Sanctions (2011) available at
http://www.google.fi/url?sa=t&rct=j&q=&esrc=s&source=web&cd=7&ved=0CEIQFjAG&url=http%3A%2F%2Fw
ww.mpepil.com%2Fsample_article%3Fid%3D%2Fepil%2Fentries%2Flaw-9780199231690e1521%26recno%3D3%26&ei=Xp1IUKCxG6Si4gTUiYH4Aw&usg=AFQjCNGiRkHY_GmqUz8DVYFlcxNmQf8P6A&si
g2=S8L8WH-YcVSlreMWhKdD1Q (accessed 4 September 2012).
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imposed. Thus, attempts to institutionalize the concept of economic sanctions began in 1899
during the Hague Peace Conference (1899 conference) with another follow-up conference
occurring in 1907.9 The underlying thought behind the institutionalization of economic sanctions
was to foster and enforce international peace and security.
The 1899 conference resulted in the adoption of the Convention for the pacific
settlement of international disputes which is considered to be the most essential as it forms the
basis for establishing alternatives to war in regard to resolving international disputes. 10 Such
alternatives to war included the voluntary use of mediation, commissions of inquiry and
arbitration.11 However during the 1907 conference, attempts to require mandatory arbitration
of disputes failed but the idea of ensuring enforcement through arbitration was raised and
hence, the concept of economic sanctions soon became a welcome development.12 The
conferences thus served as an important precedent for the League of Nations.13
1.1.2 Economic sanctions during the League of Nations
The idea of economic sanctions as an alternative to armed force was further institutionalized
when the League of Nations was established (soon after World War I) with the primary
purpose of preventing another world war. The drafters of the Covenant to the League of
Nations considered military and economic measures to be linked and did not originally intend
to separate them.14 The idea of economic weapons replacing the use of military force only
emerged gradually.15 In any case, economic sanctions were codified in the League of Nations
Covenant adopted in 1919 as part of the Treaty of Versailles ending World War I.16
Nineteen resolutions were adopted the following year as general procedural
guidelines for implementing economic sanctions.17 In addition, under the Covenant of the
League of Nations,18 articles 10 and 16 provided the mechanism by which sanctions were to
be implemented. Under article 10, the territorial integrity and political independence of
League members were to be respected and article 16 provided that any member of the
League who breached its obligation under the Covenant and resorted to war, shall be
9
Abler (n 2 above) 14.
M Bedjaoui International Law: Achievements and Prospects (1991) 521.
11
Abler (n 2 above) 18.
12
S Heselhaus International law and the use of force 4.
13
Abler (n 2 above) 18.
14
D’hollander (n 4 above) 4.
15
As above.
16
Abler (n 2 above) 22.
17
As above 24.
18
Available at http://www.unhcr.org/refworld/publisher,LON,,,3dd8b9854,0.html (accessed 6 September
2012).
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‘deemed to have committed an act of war against all other Members of the League which
hereby undertake immediately to subject it to the severance of all trade or financial relations.’
Article 16 was self-executing such that any member of the League that violated one of its
obligations under the Covenant could be subjected to economic sanctions. This ‘automatic
implementation’ of article 16 was not pleasing to many members at the time so the Assembly
later agreed that every member could decide for itself whether or not a breach of the
Covenant had occurred.19 This discretionary approach only served to undermine the purpose
of article 16. Thus, although article 16 was supposed to be the ‘teeth’ of the Covenant, the few
attempts to enforce this provision resulted in failure as there was little power to implement and
enforce sanctions.20 The League of Nations only successfully wielded the threat of economic
sanctions twice in the1920s to resolve international disputes. In November 1921, the League
threatened economic sanctions against Yugoslavia, which eventually withdrew its military
invasion in Albania.21 Similarly, in October 1925, the League successfully settled a border
conflict between Greece and Bulgaria through the threat of sanctions.22
Actual implementation of sanctions however proved unsuccessful. When Italy
invaded Ethiopia in November 1935, a majority of member states imposed economic sanctions
under article 16 of the Covenant in order to force Italy's withdrawal from Ethiopia.23 The
sanctions consisted of an arms embargo, restrictions on loans, restrictions on the importation of
particular goods from Italy as well as the exportation of goods to Italy and a suspension of all
bilateral clearing agreements with Italy.24 Despite the apparent severity of these measures,
and the fact that the aggressor did appear vulnerable, Italy was not deterred in its campaign
against Ethiopia.25 By June1936, it became apparent that the sanctions would not force Italy
to change its policy and as such the sanctions were lifted.26 That marked the beginning and the
end of collective sanctions under the League of Nations.
1.1.3 Economic sanctions under the United Nations
Following World War II and the failure of the League of Nations to maintain world peace, the
UN was established in 1945. According to article 1 of the UN Charter, the purpose of the UN
is to maintain international peace and security. To this end, the UN shall take steps to settle
19
D’hollander(n 4 above) .5
As above.
21
As above.
22
J Garner Settlement of the Graeco-Bulgarian Dispute (1926) 20 The American Journal of International Law
337.
23
C Ristuccia 1935 sanctions against Italy: would coal and crude oil have made a difference? available at
http://www.nuffield.ox.ac.uk/economics/history/paper14/14paper.pdf (accessed 6 September 2012).
24
As above.
25
J Olson, R Shadle Historical Dictionary of European Imperialism (1991) 205.
26
H. J. Morgenthau International Affairs: The Resurrection of Neutrality in Europe (1939) 479.
20
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disputes that might lead to a breach of the peace by (preferably) ‘peaceful means.27’ Taking
into account the experience of the League of Nations, more power was bestowed upon an
organ of the UN; the Security Council than had been the case with its predecessor (the
League's Council). Article 24(1) of the Charter stipulates that the Members confer primary
responsibility for the maintenance of peace and security upon the Security Council. The real
power of the Security Council in regard to economic sanctions flows from Chapter VII of the UN
Charter, which permits it to take legally binding decisions under article 25 directing member
states to impose economic sanctions. However, in order for the Security Council to take action
under Chapter VII of the UN Charter, the requirements stipulated under article 39 of the UN
Charter must be met. Article 39 provides that the Security Council must ‘determine the
existence of any threat to the peace, breach to the peace, or act of aggression’ and, then
‘make recommendations, or decide what measures shall be taken in accordance with article 41
and 42, to maintain or restore international peace and security.’ Article 41 of Chapter VII
(which is crucial in regard to economic sanctions) provides:
‘the Security Council may decide what measures not involving the use of armed
force are to be employed to give effect to its decisions, and it may call upon the
Members of the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of
diplomatic relations.’
In order to impose such sanctions, the Security Council must act by a majority vote with no veto
from any of the five permanent members i.e. France, China, Russia, United Kingdom (UK) and
US. From thereon, economic sanctions have played a dominant role in international relations
usually in the form of trade sanctions like embargoes and/or boycotts, and the interruption of
financial and investment flows between sender and target countries.28
1.2 Economic sanctions as a ‘human rights enforcement tool’
Economic sanctions as a coercive means of protecting human rights are frequently used in the
modern era of international relations. Before the 20th century, sanctions were imposed to
supplement the use of force in war.29 Even under the Covenant of the League of Nations, there
27
J Dugard International law: a South African perspective (2011) 474. Also see article 1 (1) of the UN Charter.
Human rights council: nineteenth session agenda items 2 and 3 Thematic study of the Office of the United
Nations High Commissioner for Human Rights on the impact of unilateral coercive measures on the enjoyment
of human rights, including recommendations on actions aimed at ending such measures (2012)available at
http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session19/A-HRC-19-33_en.pdf
(accessed 2 September 2012).
29
M Majlessi Use of economic sanctions under international law: a contemporary assessment (1999) 6.
28
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were no indications of sanctions being imposed for the purpose of protecting human rights in
target countries.30 The League of Nations was created so as to foster peace and the term
‘peace’ was understood as avoiding war.31 Furthermore, the violations of human rights could
not have been considered a breach of international law, since basic legal instruments on this
matter were only drafted after the Second World War.32 Yet again, the UN was not
originally conceived as a protector of human rights norms and those norms did not traditionally
fall under the Security Council's domain.33 However, the protective mandate of the UN Security
Council has slightly evolved in accordance with emerging issues. In modern times, sanctions
have been used as measures to uphold standards of behaviour expected by custom or
required by law.34
1.3 Significance of the study
No issue has dominated the use of economic sanctions more than its role in the protection of
human rights.35 The controversy over economic sanctions, however, is not a dispute about the
ends sought as it is generally agreed that protecting human rights are worthwhile pursuits.
Rather, the disagreement is about whether economic sanctions serve as the appropriate means
to achieve such ends.36 The skepticism over the use of sanctions within the framework of
international human rights law rests upon a number of factors. The first is that though economic
sanctions are meant to weaken the target regime’s coercive capacity in efforts to reduce
human rights violations committed by that regime,37 the prevailing view is that undermining the
coercive capacity of the target elites often leads to more economic and political disorder
resulting into further human rights violations.38 Thus economic sanctions are perceived to be
generally inappropriate in inducing target countries to comply with the demands of upholding
human rights. Secondly, the ethical and moral underpinnings of economic sanctions have been
undermined by the horrendous humanitarian consequences in Iraq, Haiti, and Yugoslavia during
sanctions imposed in the1990s.39 Hence, if sanctions produce the desired behavior
30
J Humphrey The International Law of Human Rights in the Middle Twentieth Century (1973) 1-2.
D’hollander (n 4 above) 8.
32
As above.
33
D’hollander (n 4 above) 13.
34
As above.
35
C Drury Economic sanctions and political repression: assessing the impact of coercive diplomacy on political
freedoms (2009) 393-411.
36
Thihan Myo Nyun Feeling good or doing good: inefficacy of the US unilateral sanctions against the military
government of Burma/Myanmar (2008) 455.
37
Peksen (n 42 above).
38
As above.
39
Abler (n 2 above) 8.
31
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modification, they do so at a cost that is often unacceptably high.40 Thirdly, others are critical
of sanctions not so much for their inherent limitations, but because of the selective ways in which
they are applied.41 Often it is not just the degree of reprehensibility of the conduct of a state
that makes it a target of either unilateral or multilateral sanctions, but the fact that it is small
and weak.42 Lastly, procedures for imposing sanctions have come under harsh criticism. In the
case of unilateral sanctions (imposed by individual states), many states hold the view that
based on principles of state equality, an individual state cannot impose sanctions upon another
even for purposes of protecting human rights. They therefore insist that the UN Security Council
is the only lawful authority to impose sanctions upon states. However, in regard to the UN
Security Council, procedures for imposing sanctions have been harshly criticized for not
according to principles of due process guaranteed by international human rights law.
Thus, on one hand, economic sanctions are an attractive middle ground between
inaction and armed force to maintain international norms of peace and security but on the
other hand, they are attacked as ineffective, immoral, unethical, and illegitimate.43 It seems
odd to accuse economic sanctions of both endangering and strengthening international human
rights law. And yet this is precisely what scholarship on economic sanctions does. The interplay
between economic sanctions vis-à-vis protection of human rights in target countries is often
displayed as being fraught with tension. But does this necessarily mean that the two are
irreconcilable? This thesis analyzes the existent tensions and proposes possible solutions in a bid
to strengthen the role of sanctions imposed against human rights violations within the
framework of international human rights law with specific focus on the design and
implementation of sanctions. The design of sanctions, in this regard, refers to the procedures
implored by the UN Security Council when imposing sanctions against individuals and how the
same can be strengthened in accordance with principles of due process. Implementation of
sanctions refers to the execution of sanctions and what factors must be taken into account so as
to ensure that the sanctions imposed result in the deterrence of human rights violations without
causing adverse humanitarian impact on the population.
1.4 Research question and specific objectives
This thesis aims at strengthening the role of economic sanctions as a coercive measure for
protecting human rights in target countries within the framework of international human rights
law. It therefore answers the following research question: in what way can the design and
40
Addis Economic Sanctions and the Problem of Evil (2003) 576.
As above 577.
42
As above
43
Abler (n 2 above) 9.
41
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implementation of economic sanctions imposed against human rights violations in target
countries be strengthened within the realm of international human rights law?
To this end, the thesis will address the following:

To examine and discuss the legal framework justifying the imposition of economic
sanctions against human rights violations under international law;

To identify and discuss challenges in the design and implementation of economic
sanctions (imposed against human rights violations) within the framework of
international human rights law;

To recommend solutions to identified challenges in the design and implementation of
economic sanctions within the framework of international human rights law.
1.5 Methodology
The study is conducted upon desk research which will encompass a critical review of relevant
documentation including treaties, resolutions, declarations, national legislation, policies, media
reports and scholarly articles. Thus, research information shall be gathered from both primary
and secondary sources. Case studies will also be implored where appropriate.
1.6 Limitations
This study only centers upon sanctions that are imposed with an objective of addressing human
rights violations in a particular country. In addition, considering its authoritative and prominent
role in maintaining international peace and security, the study places much emphasis on
sanctions imposed under the UN Security Council. However subtle references, where relevant, is
also made to other sanctioning regimes i.e. the EU sanctions, unilateral sanctions etc. The study
also deliberately focuses on the design and implementation of sanctions as these pose the most
challenges when examined within the lens of international human rights law.
1.7 Literature review
There is a significant amount of literature that tackles the debate on the use of economic
sanctions in protecting human rights in target countries. Perksen suggests that economic
sanctions only worsen government respect for human rights.44 He argues that economic
sanctions are a detrimental and counterproductive policy tool even when they are imposed
44
D Peksen Better or Worse? The Effect of Economic Sanctions on Human Rights (2009).59.
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with the specific goal of promoting human rights conditions.45 The underlying logic behind his
argument is that foreign economic pressure unintendedly permits the targeted leadership to
enhance their coercive capacity and create more opportunities to violate the basic rights of
average citizens.46
Perksen is supported by Carneiro who argues that distressed leaders often
engage in more repression.47 He contends that among the reasons leaders have to suppress
human rights, and to engage in repression, is their own political survival. 48 Thus, when economic
sanctions aim at promoting human rights and democracy, they may inadvertently release
pressures that increase the frequency of human rights violations.49
Adeno points out that ‘the relationship between economic effectiveness and
political effectiveness is not at all clear; indeed, it may be an inverse relation.50’ He continues
to state that an unaccountable regime will always externalize the cost from itself and its
supporters to the ordinary citizens and the power of the ordinary citizen to punish the regime
for the consequences of the sanction is rather negligible, if not non-existent. Thus, the current
sanctioning system doubly victimizes citizens of the target state: they become not only victims of
their own (repressive) governments, but that of the international community as well.51
Riley holds the contrary opinion. He argues that the assertion by many scholars
that economic sanctions increase political repression should be revisited. 52 His analysis suggests
that economic sanctions imposed on purely autocratic regimes significantly decrease levels of
political repression when measured in terms of extra judicial killings, political imprisonment,
disappearances, and torture. Thus the implication of such analysis suggests that international
actors should continue to rely on ‘coercive diplomacy’ on the international stage when dealing
with the most autocratic forms of government.53
Levy, with specific focus on the case of South Africa, illustrates that though
economic sanctions imposed against the South African apartheid regime appear to have been
successful on the face of it, the reality is to the contrary and he proceeds to suggest that they
45
As above. 60.
As above. 61 & 62.
47
C Carneiro & D Elden Sanctions, Survival, and Human Rights (2009) 971.
48
As above. 973.
49
As above. 976.
50
Addis (n 40 above) 606-607.
51
As above. 617
52
E Riley Better or Worse? The Impact of Economic Sanctions on Human Rights Revisited (2011) available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2018708 (accessed 25 July 2012).
53
As above.
46
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may have even deferred its desired impact.54 In fact they resulted in enhanced hardship for
the already burdened black population. However, he is quick to point out that one cannot
argue conclusively that sanctions had completely nothing to do with the political change. 55
In a seemingly helpless gesture, Malloy laments that short of abandoning
sanctions as foreign policy tools, there is probably no practical way to ensure that sanctions
both narrowly affect only the targeted state actors and still remain effective in their desired
impact.56 Hove, partly agreeing with Malloy, states that one may find it fruitful and humane if
great players in diplomacy search for flexible strategies of engagement rather than rely on
rift widening tactics like sanctions which impact negatively on target countries.57
However, reliance upon diplomacy for the purposes of ensuring human rights
compliance in target countries is heavily criticized by Michael Abler where he points out that
even though critics contend that economic sanctions are inefficacious and illegitimate, the
alternatives are less effectual and more unviable.58 Consequently, he maintains that economic
sanctions remain a useful tool to fix breaches in international norms of peace and security. 59
He argues that without such a tool, the new ‘internationalism’ would face three undesirable
choices: except with the option of diplomacy, they would accept breaches to international
norms of peace and security; negotiate from a constrained bargaining position because its
only tangible leverage would be the threat of war (which may not be credible, depending
upon the breach); or wage war against the aggressor to restore the status quo ante (again,
depending on the breach, international consensus on the use of military force may be
unavailable).60
Oudraat also argues that economic sanctions remain an attractive and nonexpensive measure of taking action in place of military force.61 Thus he proposes that there is
need to develop a better understanding of how economic sanctions work in order to enhance
their intended impact and to limit their harmful humanitarian effects.
54
P Levy Sanctions on South Africa: What did they do? (1999) Center Discussion Paper No. 796 at Yale
University.
55
As above. 12.
56
M Malloy Economic Sanctions and Human Rights: A Delicate Balance Human Rights (1995) 12, 14.
57
See M Hove The Debates and Impact of Sanctions: The Zimbabwean Experience (2012).
58
Abler (n 2 above)1.
59
As above. 6
60
Abler (n 2 above)11.
61
C Oudraat Making economic sanctions work (2000) 105-128.
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Majlessi, aligning to Oudraat’s approach, points out that there is no doubt about
the importance of sanctions as means of enforcing international human rights law.62 However
the question that he suggests ought to be answered critically is whether they (sanctions) should
be reorganized systematically.
As is evident, criticisms against sanctions as an appropriate tool for human rights
protection are plenty. This study intends to support scholarship insisting that sanctions remain an
appropriate tool for such a function. It is agreeable that the whole concept of sanctions needs
to be reorganized systemically but this must be done within the framework of international
human rights law. Systematic re-organization of sanctions would thus necessitate a critical
review of sanctions from how it is imposed to how it is executed. Thus this thesis examines and
makes recommendations on the design and implementation of sanctions within the framework
of international human rights law.
1.8 Overview of chapters
Chapter one presents the background to the study, significance of the study and methodology
implored. The research question and objectives are also highlighted.
Chapter two discusses the legal justification under international law for using sanctions as a
coercive measure to protect human rights. Thus, the different types of sanctions and their legal
basis are analyzed herein.
Chapter three discusses some of the main criticisms signifying why economic sanctions remain at
odds with international human rights law. Criticisms focus on the design and implementation of
sanctions.
Chapter four provides recommendations to address the criticisms highlighted in chapter three.
The conclusion is also provided.
62
Majlessi (n 29 above)1.
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CHAPTER TWO
2.0 Introduction
This chapter discusses the legal framework justifying the imposition of sanctions for human
rights protection in target countries. This is done in light of the fact that there are debates
regarding the lawfulness of sanctions under international law, and also whether they should be
imposed to address human rights violations in another state. In addressing the latter, principles
of non-intervention and national sovereignty will also be examined.
2.1 The legal framework for sanctions
As stated by Majlessi, the lawyer's quest is to determine whether sanctions are legal and
whether they conform to the framework of international relations.63 In answering this question,
this sections examines the different legal obligations that arise depending on the type of
sanctions that have been imposed.
2.1.1 Unilateral sanctions
According to the Human Rights Council report, unilateral sanctions are defined as ‘economic
measures taken by one State to compel a change in policy of another State.64’ Many countries
still maintain that as a matter of legal policy, economic sanctions should be imposed only under
Chapter VII Security Council resolution or by states acting collectively in reaction to
fundamental violations of international law and peace and security, in pursuance of a UN
resolution.65 They argue that states cannot impose economic sanctions unilaterally against
human rights violations in a target country as it would constitute derogation from the general
principle concerning friendly relations among states.66 Chinese Foreign Ministry spokesperson
Hong Lei recently said that ‘China is against one country putting their domestic laws above
international law and placing unilateral sanctions on another country. 67’ It seems inconceivable
that in a non-hierarchical international legal order, a state(s) equal with all others could impose
such measures at all.68
63
Majlessi (n 29 above).
Human Rights Council Thematic study of the Office of the United Nations High Commissioner for Human
Rights on the impact of unilateral coercive measures on the enjoyment of human rights, including
recommendations on actions aimed at ending such measures (2012) A/HRC/19/33.
65
E Proukaki The problem of enforcement in international law (2010) 98.
66
As above.
67
J Reilly China’s Unilateral Sanctions (2012)1.
68
Proukaki (n 65 above).
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As a general rule, whether unilateral sanctions are legal or illegal under
international law depends upon the form of coercive measure, applicable treaty law and on
customary international law rules relevant to the assessment of coercive measures, as well as
on potential grounds for precluding the wrongfulness of such measures. However from the onset
and as confirmed by the International Court of Justice (ICJ); in the absence of explicit treaty
obligations, states are still considered to be free as to whether to maintain trade relations or
not.69 Thus, their decisions to stop such relations cannot, strictly speaking, be considered
unlawful. States are entitled, as a general principle of international law, to suspend the
performance of any other international law norm in their relation with the ‘violator.’70 This
principle is the result of the traditional doctrine of state sovereignty according to which a
state's sovereign right includes the right to control the flow of goods into and out of its national
territory.71 However, this sovereign right is not unlimited and is subject to specific conditions.
For instance, states often enter international trade arrangements in order to facilitate their
foreign trade. Thus, states are bound by bilateral or multilateral trade treaties which may also
create legal obstacles to the use of economic sanctions.72 Due to this limitation, a state violates
international law if it breaks treaty norms which are binding upon the state imposing the
sanction. For instance, the World Trade Organization (WTO) encompasses a multilateral
agreement that limits the application of unilateral economic sanctions by its member states.73
An illustrative example of this is the ‘Burma law’ which was enacted by the US State of
Massachusetts to pressure Burma to improve its human rights conditions through trade
restrictions with Burma. The law was at issue before the WTO because it violated the nondiscrimination principle enshrined in the WTO Agreement on Government Procurement (GPA)
which are prohibited according to Article I and XI of the General Agreement of Trade and
Tariffs (GATT).74
However, even at the WTO level, unilateral economic sanctions imposed to
address human rights violations can be justified under Article XX of the GATT. Article XX is the
general exception clause that lists specific public policy reasons that justify the deviation of
GATT principles. Those relevant for trade-related human rights measures include the protection
of public morals (paragraph. a) and the protection of human, animal or plant life or health
(paragraph. b). In addition to fulfilling the requirements of the specific policy goals, the
69
Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) Merits
(Judgment of 27 June 1986) ICJ Reports 14, para. 276.
70
Majlessi (n 29 above) 19.
71
As above.
72
As above. 19-20.
73
As above.
74
G Zagel WTO & Human Rights: Examining Linkages and Suggesting Convergence (2005) 5.
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protective measure has to fulfill the general requirements of Article XX (‘chapeau’); this means
that it must comply with the principle of non-discrimination and must not constitute a disguised
restriction to international trade.75 As states are fairly inventive in finding 'non-economic
reasons' as excuses for protectionist measures, the difficult task of the WTO Dispute Settlement
institutions is to examine whether the measure aims to genuinely protect the non-economic
concern or rather to protect the national industry.76 Thus, in order to keep up with GATT
principles, the Panels and Appellate Body have always interpreted Article XX very strictly,
which contributes to the WTO’s reputation of failing to respect human rights.77 Article XXI of
the GATT does permit the enforcement of gross human rights violations through economic
sanctions enacted by the UN Security Council; however it is doubtful whether the WTO should
be more responsive to trade-related human rights measures imposed by individual states since
this would mean that Member States could unilaterally determine what human right standards
to apply.78 The difficulties surrounding WTO state obligations vis-à-vis human rights protection
through trade restrictions is, however, beyond the scope of this thesis.
It must also be borne in mind that articles 55 and 56 of the UN Charter require
the UN member States to co-operate in order to promote ‘universal respect for, and
observance of human rights.’ Hence the duty of governments to respect and protect called
human rights is also an accepted international principle. Since the worst violations of human
rights are often those perpetrated by repressive governments against their own subjects, there
are times when outside intervention by a unilateral state seems warranted 79 as it is not always
easy, in light of the veto powers under the Security Council, to get consensus by the ‘permanent
5’ to impose sanctions against such governments.
State practice, as is evidenced by sanctions imposed against Greece, Central
African Republic and Liberia amongst others, signify that systematic and gross violations of
human rights can give rise to such measures. In fact, through consistent and widespread
practice, some can even argue that protection of collective interests through sanctions has
evolved into customary law. The concept of such solidarity measures has developed through the
apparent necessity to enforce fundamental interests of international law. Much as concerns
about unilateral sanctions being prone to abuse are worthwhile, state practice proves that
75
As above.
As above.
77
As above.
78
As above.
79
J Slater & T Nardin Non-intervention and human rights (1986) 86.
76
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states have responded to serious violations of violations with an erga omnes80 effect. This
element (erga omnes) is thus crucial to prevent abuse.
2.1.2 Multilateral sanctions
Multilateral sanctions (also known as collective sanctions/centralized sanctions) are those
decided upon by a competent organ of an international organization. The clearest example of
a multilateral sanction is that imposed by the Security Council of the UN pursuant to its
authority under the UN Charter. Article 39 of the UN Charter mandates the Security Counci1 to
determine the existence of any threat to the peace, breach of the peace, or act of aggression
and decide what measures to be taken to maintain or restore international peace and security.
Article 41 provides for economic sanctions which constitute one of the measures open to the
Security Council in ensuring international peace and security. When such sanctions are deemed
mandatory, all Member States of the United Nations are required to comply with the order
and to enforce the sanction against the outlaw state(s).81
Multilateral sanctions have to be adopted for the specific purpose for which the
constituting document provides that they shall be used. In regard to Security Council imposed
sanctions, it is clear from the wording of article 39 as read together with article 41 of the UN
Charter that the Security Council can only impose economic sanctions if it is established that a
threat to international peace exists. Thus, it is not in contention that the Security Council has the
mandate to impose sanctions. It is also generally agreed that although the UN Security Council
does not have an explicit mandate to involve itself in human rights matters, its mandate of
maintaining international peace and security has been extended to include human rights
related issues.82 However, since the UN Charter is silent on what constitutes a ‘threat to the
peace,’ states such as Russia and China remain vehemently opposed to the notion that human
rights violations within a state could amount to a ‘threat to international peace and thus
warranting sanctions. Such opposition has resulted in the Security Council being unable to
impose sanction in cases such as Zimbabwe and Syria.
Again we draw guidance from the Security Council practice which has read its
Chapter VII mandate ‘as including the objectives to enforce respect for international law and
to achieve fundamental political changes in the target countries, either by changing a regime
condemned as illegal [outlaw], or by restoring democracy in a country beset by internal
80
Refers to an obligation or rights towards all.
A Addis (n 40 above) 545.
82
nd
F Viljoen international human rights law in Africa 2 edition (2012) 50.
81
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disorder.83’ When the Security Council imposed sanctions on Southern Rhodesia in 1968 and on
South Africa in 1977, they served as an important precedent indicating the ‘de facto’
competence of the Security Council in the internal ‘human rights issues’ of states.84’
The Security Council has thus given the terms ‘international peace and security’ generous
interpretations. In 1992, a Security Council meeting recognized that the absence of war and
military conflicts does not in itself ensure international peace and security.85 A seemingly
purely internal dispute among warring factions of a state, more or less limited in scope and
reach, has been declared a threat to international peace and security hence bringing it within
the jurisdiction of the Security Council.86 Similarly, a regime's brutal repression of certain
minorities has been deemed a threat to international peace and security entitling the Council to
monitor the actions of the regime in relation to those minorities and even to limit the authority
of the regime over the area where the majority of such minorities reside.87 Thus, the
interpretation that the Security Council has used to exercise its Chapter VII authority are
sufficiently general that they have allowed it to fit almost all disputes that are sufficiently
intense as threats to international peace and security.88 The notions of ‘threat,’ ‘peace,’ and
‘security’ have been understood in the context of an international landscape, such that ‘human
rights’ are considered to be central to the identity of the community, the denial of which will
likely lead to resistance, hence posing a threat to international peace and security.89
The Security Council’s mandate to protect human rights also emanates from the
Responsibility to Protect doctrine (R2P).90 According to a General Assembly resolution91 and
Security Council resolution 1674 (2006) on the Protection of Civilians in Armed Conflict, states
have a commitment to protect populations from genocide, war crimes, ethnic cleansing and
crimes against humanity. If a state fails to protect its populations or is, in fact, the perpetrator
of such crimes, the international community (including the Security Council) must be prepared to
take measures.
Thus, not all forms of human rights violations within a state’s territory can amount
to a threat of international peace. The majority of scholars seem to hold the opinion that there
83
Addis (n 40 above) 601.
Viljoen (n 82 above) 50.
85
L Svedenstedt Threat to the peace? Are gross violations of human rights a threat to the peace in the meaning
of Article 39, Charter of the United Nations? (2002) 22.
86
Addis (n 40 above) 598.
87
As above. 599.
88
As above.
89
As above 600-601.
90
See General Assembly’s Outcome Document of the 2005 World Summit on the R2P Doctrine.
91
UN General Assembly, The responsibility to protect resolution / adopted by the General Assembly, 7 October
2009, A/RES/63/308.
84
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needs to be a serious violation of a fundamental human right.92 There also seems to be support
for a violation that is ‘gross,’ ‘massive,’ ‘large-scale’ or ‘persistent’ and of ‘elementary’ or
‘fundamental’ human rights, in such a way that ‘atrocities,’ ‘barbaric acts’ or ‘repulsive
practices’ are committed which constitutes ‘crimes against (the laws of) humanity’ or ‘genocide,’
and are considered to ‘shock the conscience of mankind’ or ‘flagrantly violate standards of
morality and civilization’ or at least a threat of substantial loss of human life.93 Since it also
largely unsettled in regard to what amounts to ‘elementary’ or ‘fundamental’ human rights’ and
whether they only encompass civil and political rights or also include the much contested
economic, social and cultural rights or the ‘third-generation rights;’ we draw assistance from the
practice of the Security Council. The UN Security Council has made decisions under Chapter VII
pertaining to peace and security that involved such ‘fundamental rights’ as the rights to
adequate nutrition (for example, in Somalia), and freedom from repression (for example, in
Iraq).94 In South Africa95 and Southern Rhodesia,96 the domestic policy of the racist regimes
constituted a threat to the peace. In Burundi97 and Angola,98 the humanitarian situation was so
grave that it constituted a threat to the peace. Such examples purport to show that in order for
the Security Council to intervene, that there must be ‘gross and persistent human rights
violations that shock the world’s conscience’ and occur ‘from systematic attacks on civilians by a
central government, or a system breakdown in law and order.99’
In rare cases, economic sanctions may also be implemented by international
organizations or by a group of states through intergovernmental cooperation.100 These are
sometimes called ‘organized unilateral sanctions.101’ The EU is the clearest example of such.
Other criteria suggested for this category of sanctions which distinguish them from other types
of sanctions imposed by a group of states-are:
‘(i) The decision making body must be universally or regionally international;
(ii) Its membership should normally encompass all states within the universal or regional system;
(iii) The organization must have a formally constituted body with expressed powers to make
mandatory decisions;
92
Svedenstedt (n 85 above) 35.
As above.
94
As above 35-36.
95
Security Council Resolution 282 (1970) of 23 July 1970.
96
Resolution 406 (1977) adopted by the Security Council at its 2008th meeting, on 25 May 1977.
97
Resolution 1577 (2004) adopted by the Security Council at its 5093rd meeting, on 1 December 2004
98
Resolution 1439 (2002) adopted by the Security Council on the situation in Angola.
99
Svedenstedt (n 85 above) 36.
100
Majlessi (n 29 above) 8.
101
As above.
93
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(iv) The organization must have a procedure for formally reaching an obligatory decision; and,
(v) The organization must be considered as definitive or authoritative in its sphere of
international activity.102’
Currently organizations such as the EU continually use trade and economic
benefits ‘in exchange’ for respect of fundamental human rights. The legal basis for this
category of sanctions is sought within the legal framework of such organizations.103 Under the
law of treaties, a specific agreement can be suspended or terminated on the ground of human
rights considerations only if the treaty so provides or if the human rights violations go against
the very object and purpose of the treaty.104 A simple understanding of this would entail that
unless human rights specific provisions exist in the treaties establishing such organizations,
organized unilateral sanctions imposed to address human rights violations would not be
permitted. However, under article 103 of the UN Charter, obligations deriving from the UN
Charter should prevail over all other international treaty obligations. This means that the
human rights obligations deriving from the UN Charter remain applicable notwithstanding the
absence of human rights specific provisions in a treaty. In addition, articles 52 to 54 of the UN
Charter also recognize the role of regional agencies in maintaining peace and security as long
as such role is pursued in line with the principles of the UN Charter. Lastly, states can also
respond through sanctions to serious violations of fundamental human rights norms with an erga
omnes effect even in contravention of specific obligations under their respective treaties.105
2.1.3 Secondary sanctions
Even more contentious is the practice of imposing states to compel others to join a sanctions’
effort by threatening ‘secondary sanctions’ against third states that are unwilling to sanction
the target entity/country. Not only does this position raise questions of legitimacy but
invariably may adversely affect a third parties’ efforts to pursue socio-economic development
interests. The case of Kenya and Iran serves as a striking example. The Comprehensive Iran
Sanctions, Accountability and Divestment Act of 2010 (CISADA) enacted by the US restricts the
selling of gasoline, services and equipment related to gasoline production to Iran not only by
US companies but extends extraterritorially to foreign companies.106 In line with this Act,
Kenya recently cancelled an agreement to import four million tons of Iranian crude oil per
year due to threats from the US that Kenya will suffer secondary sanctions should it continue to
102
Majlessi (n 29 above)10.
Majlessi (n 29 above) 32. For the EU, see article 11 of the EU treaty.
104
Proukaki (n 65 above) 10.1
105
As above 133.
106
K Larsson United States extraterritorial application of economic sanctions and the new international
sanctions against Iran (2011) 25.
103
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deal with Iran.107 Similarly, in June 2012, US Representative Howard Berman sent a letter to
Tanzania’s president warning that Tanzania could face aid cuts if it continued to ‘re-flag’
Iranian oil tankers.108
Many
commentators
assert
that
secondary
sanctions
are
illegally
‘extraterritorial,’ exceeding the proper bounds of the imposing states’ jurisdictional authority
under customary international law.109 If secondary sanctions were imposed by the Security
Council against non-compliant third party member states, such action would be justified
considering that all states are obliged to comply with Security Council resolutions/measures.
But a unilateral sanction cannot be said to enjoy that power. When one country imposes
unilateral sanctions, no other countries are legally bound to follow suit. Not only does this
practice interfere with a state’s sovereignty to legitimately undertake development activities
crucial for its own national advancement but it also subjects nationals of that third party state
to unwarranted sanctions. It is contended that States remain bound both by treaty and
customary international law to respect the fundamental right of other nations to pursue
economic
and
social development in accordance with their own sovereign volition. Unfortunately, most
countries cannot afford to pay the price of being isolated from major powers such as the US
for dealing with a target state such as Iran. Such abuse of power in the use of sanctions has
enabled states to take the law into their own hands and ‘implement international law;’ a power
that exposes small and weak states to the abuse of powerful states.110 Hence ‘weak’ third
states, though not in support of a particular foreign policy objectives, are threatened into
implementing a unilateral sanction.
On the other hand, in the event of a violation of an erga omnes norm, it can be
argued that all states are obliged to act in cooperation against that state that has violated
such a norm even without Security Council authorization. However, an appeal is still made
towards developed states that they must be sensitive towards the delicate position of many
developing countries. For poor landlocked countries like Malawi who benefit from the
passageway of neighboring states like Zimbabwe, it is unforeseeable for them to take a major
stand against Zimbabwe in spite of the human rights situation existent therein. Historically, even
when the Security Council proclaimed sanctions against Rhodesia, some countries such as
107
A Kisia Kenya cancels oil deal with Iran due to sanctions (2012) available at
http://www.standardmedia.co.ke/?articleID=2000061186 (accessed 4 October 201).
108
K Katzman Iran Sanctions (2012) 44.
109
J Meyer Second thoughts on secondary sanctions (2009) 30 University of Pennsylvania Journal of
International Law.
110
Proukaki (n 65 above) 69.
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Zambia were too vulnerable to risk full involvement in economic sanctions. Zambia's
dependence on copper from Rhodesia prevented it from taking part in the embargo, although
it did not approve of the incumbent regime at the time.111 Similarly, western nations have
complained of the complicity of Southern African countries in addressing the Mugabe regime
and inasmuch as political considerations has also resulted in this complicity, one must not also
ignore the fact that in light of the poverty and the economic interdependence of Sub-Saharan
Africa, the cost of sanctioning a neighboring country like Zimbabwe may be too costly for
some countries to bear.
The United Nations Conference on Trade and Development condemned the
application of economic coercion, especially when the latter is used against developing
countries as it adversely affects the economies and development efforts of developing
countries and creates a negative impact on international economic co-operation.112 Though this
thesis in no way advocates the abolition of sanctions against entities engaged in human rights
violations, the use of secondary sanctions contravenes article 32 of the Charter of Economic
Rights and Duties of States.113 Developed countries therefore need to take steps (through an
impact assessment/cost analysis) to ensure that the economic isolation that can be suffered by
a poor developing country through sanctioning another is averted. Article 50 of the UN
Charter114 may also provide remedy to ‘weak’ third states if the sanctions emanate from the
UN Security Council.
2.2 Exploring the principles of sovereignty and non-intervention in relation to sanctions
The doctrine of non-intervention requires a state to refrain in their actions from ‘dictatorial’
interference in the affairs of another for the purpose of maintaining or altering the actual
conditions of things.115’ Herein also lies the essence of state sovereignty. The principles of nonintervention and sovereignty have been enshrined in various international legal instruments such
as the UN Charter and the Declaration of Principles of International Law Concerning Friendly
111
D’hollander (n 4 above) 28.
5th plenary meeting A/RES/44/215 (22 December 1989) see preamble.
113
Provides that that no State may use or encourage the use of economic, political or any other type of
measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign
rights.
114
Provides: ‘If preventive or enforcement measures against any state are taken by the Security Council, any
other state, whether a Member of the United Nations or not, which finds itself confronted with special
economic problems arising from the carrying out of those measures shall have the right to consult the Security
Council with regard to a solution of those problems.’
115
S Wheatley The non-intervention doctrine and the protection of the basic needs of the human person in
contemporary international law (1993) 15 Liverpool Law Review 189-199.
112
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Relations and Co-operation among States in accordance with the Charter of United Nations.116
Article 2(7) of the UN Charter is a widely cited article in regard to the principle of nonintervention. It prohibits intervention in matters which are within the domestic jurisdiction of
states.117 However, the principle of non-intervention is subject to the enforcement measures in
chapter VII. It therefore comes as a surprise that some Security Council member states have
opposed imposing economic sanctions against countries like Syria and Zimbabwe (in spite of
gross human rights violations therein) on the basis that such sanctions would conflict fundamental
principles of international law, namely the principle of non-intervention and state sovereignty.
Having developed in a legal system with its roots deeply founded on the principles of
sovereign equality of states and non-interference in domestic affairs, the imposition of coercive
measures by one state against another is sometimes perceived as an attack on the foundations
of the system itself.118 Unfortunately, the greatest threats appear to come, not from inter-state
conflict but events that occur within a state's borders.119 Thus, there appears to exist both a
moral and legal duty for trans-boundary uses of economic coercion against human rights
violations that do not, in the strictest sense, pose a trans-boundary threat to peace and
security. It is gratifying to note that the use of Chapter VII powers by the Security Council to
address crises which threaten human rights violations, as threats to the peace, is resulting into a
gradual change in the traditional definitions of sovereignty and non-intervention.120 As the
Permanent Court of International Justice in the Nationality Decrees case illustrated, ‘the question
whether a certain matter is or is not solely within the jurisdiction of a State is an essentially
relative question; it depends upon the development of international relations.121’ Hence it is an
evolving concept. In fact the ICJ in the Nicaragua case upheld the economic coercive measures
applied through the imposition of a trade embargo and only considered the aspect of
unlawful intervention in the context of military support afforded to the insurgent group.122
116
UN General Assembly, Declaration of Principles of International Law Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, 24 October 1970, available at:
http://www.unhcr.org/refworld/docid/3dda1f104.html (accessed 6 September 2012) See specifically the
preamble and principle c.
117
Article 2(4) of the UN Charter also enshrines the principle of non-intervention :’all Members shall refrain in
their international relations from the threat or use of force against the territorial integrity or political
independence of any state.’ Some scholars have argued that this article prohibits not only armed force but
economic force against another state. However, the prevailing view is that the notion of force in article 2 (4)
does not extend to all kinds of kind of force such as economic coercion but refers to armed forces. The General
Assembly Declaration on the Principles of International Law confirms this reading of ‘force.’ The same position
has also been confirmed by the Nicaragua (n 66 above) case.
118
Proukakai (n 65 above) 93.
119
Wheatley (n 115 above) 1.
120
L Fielding Taking a closer look at threats to peace: the power of the Security Council to address humanitarian
crises (1996)555.
121
National Decrees in Tunisia and Morocco (1923) PCIJ Series B. no 4. 24-27.
122
(n 69 above) Para 239-245.
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Therefore, economic sanctions imposed to address systematic human rights violations in a
country where the government is unable or unwilling to protect its population against such
violations would not amount to unlawful intervention.
2.3 Conclusion
Countries can no longer argue that economic sanctions imposed to address human rights
violations have no legal justification. Though many would prefer that the mandate to impose
sanctions for such cases be limited to the Security Council, the political considerations that
sometimes dictate the decision making powers of the Security Council may render sanctions
largely inactive. However unilateral sanctions are also not devoid of political considerations
and this is best reflected through the use of secondary sanctions. Hence, both sanctioning
systems can complement each other should one fail to fulfil its role in regard to the
international protection of human rights.
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CHAPTER THREE
3.0 Introduction
Criticisms against sanctions range from the actual design of sanctions- that they fail to observe
human rights obligations in the procedures for the imposition of sanctions; to the implementation
and impact of sanctions- that in spite of the good intentions behind their imposition, they
adversely affect human rights in the long run. This chapter discusses these criticisms in more indepth.
3.1 The emergence of targeted sanctions
Historically, the main criticism against economic sanctions as an inappropriate tool to address
human rights was because of its humanitarian consequences on the populace of the target
country. A case in point is the period of broad-scale sanctions against South Africa where
continuous concern was expressed over the disproportionate impact of sanctions upon the
oppressed black South African population.123 Human rights activists debated as to whether it
was appropriate to impose sanctions against South Africa that resulted in exacerbated nearterm economic deprivation of blacks in the interests of the long-term objective of moving South
Africa beyond its policy of apartheid.124 Was this hardship part of the price that had to be
paid in order to achieve the end to apartheid in South Africa? Similarly, a team of researchers
sent to Iraq in 1996 to investigate the impact of UN sanctions on the populace were astonished
at the humanitarian consequences of such sanctions and were drawn to conclude that ‘Iraq
illustrates why sanctions are not always a humane alternative to war.125’ Instruments
embodying the pertinent international humanitarian norms (i.e. the Geneva Conventions of
1949 and the Additional Protocols of 1977) apply only in the context of armed conflict and
do not explicitly address economic sanctions. However, human rights activists maintain that as
the population's protection underlies international humanitarian law, then humanitarian law
norms could be considered applicable to limit the use of economic sanctions.126
Nevertheless, the adverse humanitarian impact of sanctions urged the
international community to seriously reconsider the practicality of using sanctions to address
human rights violations in target countries. The UN General Assembly adopted a resolution
123
Malloy (n 56 above) 2.
As above.
125
Browne The effect of economic sanctions on political repression in targeted states (2011) 3.
126
V. P. Nanda Accountability of international organizations: some observations (2004) Denver Journal of
International Law and Policy, University of Denver 385.
124
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critical of coercive economic measures in 1989.127 Similarly, the Sub-Commission on the
Promotion and Protection of Human Rights in its resolution 1997/35 entitled ‘adverse
consequences of economic sanctions on the enjoyment of human rights’ also pointed out that
economic sanctions ‘most seriously affect the innocent population… and have a tendency to
aggravate the imbalances in income distribution already present in the countries concerned.128’
Consequently, General Assembly Resolution 242 provides that: ‘the purpose of sanctions is to
modify the behavior of a party that is threatening international peace and security and not to
punish or otherwise exact retribution.129’ In addition, General Comment 8 of the Committee on
Economic, Social and Cultural Rights (ESCR)130 in paragraph 1 emphasizes that sanctions should
always take full account of the provisions of the International Covenant on Economic, Social
and Cultural Rights (ICESCR). Paragraph 3 of general comment 8 acknowledges that whilst ’the
impact of sanctions varies from one case to another...they almost always have a dramatic
impact on the rights recognized in the Covenant.131’
In spite of the heavy task of evaluating the extent to which misery is caused by
sanctions, such documents highlighted the fact that states possess a duty to ensure that
economic sanctions imposed on target countries do not result in adverse humanitarian
consequences. The duty to consider the humanitarian impact of sanctions is deemed applicable
even to Security Council sanctions imposed under the auspices of the UN. The UN, as an
international organisation, is a ‘subject of international law’ and ‘capable of possessing both
rights and duties’ as reaffirmed by the ICJ in its Advisory Opinion on the UN expenses case.132
Thus, in a bid to address the humanitarian consequences of sanctions, ‘targeted (smart)’
sanctions were developed that target only the individuals responsible for the reprehensible
behaviour within target countries. Targeted sanctions involve some form of limited financial
sanctions such as travel bans or freezing assets of targeted individuals. They are designed to
raise the target regime’s costs of non-compliance while avoiding the general suffering that
comprehensive sanctions often create.133 The five permanent members of the Security Council
127
UN General Assembly Resolution 44/215 22 December, 1989.
Available at
http://www.unhchr.ch/Huridocda/Huridoca.nsf/TestFrame/32798bb8fb7af1c8c1256982005a37a5?Opendocu
ment (accessed 3 October 2012)
129
UN General Assembly Resolution 51/242 of 15 September 1997.
130
The relationship between economic sanctions and respect for economic, social and cultural rights:
1997/12/12. E/C.12/1997/8, CESCR General Comment 8 available at
http://www.unhchr.ch/tbs/doc.nsf/0/974080d2db3ec66d802565c5003b2f57?Opendocument (accessed 4
October 2012).
131
As above.
132
Reparation for Injuries Suffered in the Service of the United Nations (Advisory Opinion of 11
April 1949) ICJ Rep. 174 p. 179.
133
D W. Drezner How Smart are Smart Sanctions? (2003) 5 International Studies Review (2003) 107–110.
128
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issued a short policy statement on the humanitarian impact of sanctions illustrating that 'further
collective actions in the Security Council within the context of any future sanctions regime should
be directed to minimize unintended adverse side-effects of sanctions on the most vulnerable
segments of targeted countries134' Thus, following the severe humanitarian consequences of
comprehensive sanctions against Iraq, the Security Council has only adopted targeted
measures135 and so have many other states and organizations. For example, Security Council
Resolution 1333 of December 19, 2000, regarding Afghanistan, explicitly recognized the
‘necessity for sanctions to contain adequate and effective exemptions to avoid adverse
humanitarian consequences.136’ Similarly, in the case of Sudan, a pre-assessment
report warning of adverse humanitarian consequences increased the Security Council's
reluctance to impose stronger sanctions.137 Security Council sanctions now allow the provision of
food and medicine (e.g. Sierra Leone,138 Iraq139). In addition, the UN working paper on the
criteria for imposing sanctions stipulated that future sanctions must not create a situation
in which fundamental human rights are violated.140 So while the UN Charter specifies no
explicit limitations on the Security Council's powers acting under Chapter VII, one could argue
that the activities undertaken by the Security Council must be in accordance with the purposes
and principles of the UN Charter as contained in Article I and 55.
Targeted sanctions are, however, still lacking in their compatibility with
international human rights law. Firstly, though targeted sanctions have minimized adverse
humanitarian effects on the populace, they have adversely affected individual rights such as
freedom of movement and right to property through measures such as travel bans and
financial restrictions respectively. Secondly, there is evidence to suggest that targeted political
leaders are sometimes able to shield themselves from the worst effects of sanctions such that
directing
measures
against
governments
or
particular
actors
does
not necessarily protect the population from devastating humanitarian effects. Thus sanctions
are deemed ineffective in curbing human rights violations. These two contentions are examined
134
Letter dated 13 April 1995 from the Permanent Representatives of China, France, Russia, the United
Kingdom and President of the Security Council 'Humanitarian Impact or sanctions' (1995) UN Doc. S/l 99 5/300 .
135
T Biersteker Addressing Challenges to Targeted Sanctions: An Update of the “Watson Report” (2009)
available at http://www.watsoninstitute.org/pub/2009_10_targeted_sanctions.pdf (accessed 5 October 2012).
136
Available at http://www.state.gov/documents/organization/5265.pdf (accessed 7 October 2012).
137
Giess 180
138
Security Council resolution S/1997/1132
139
See Security Council resolutions S/1990/661 and S/1995/986.
140
, Special Commission on the Charter of the UN and on the Strengthening of the Role of the Organization
Declaration on the Basic Conditions and Standard Criteria for the Introduction and Implementation of Sanctions
and Other Coercive Measures: Revised Working Paper (2004) U.N. GAOR, P 1, U.N. Doc. A/AC.182/L.114/Rev.1.
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below beginning with the former –the human rights implications of targeted sanctions on the
individual; and then ending with the latter- the humanitarian impact of targeted sanctions.
3.1.1 Targeted sanctions and individual rights
The emergence of targeted sanctions within the Security Council mandate raises various human
rights implications. Is the Security Council legally mandated to impose sanctions against
individuals? Wasn’t the whole system of the UN originally conceived to deal with the primary
actors in international law which are states?
Furthermore, article 25 of the UN Charter
provides that the decisions of the Security Council bind states, not individuals. Even though the
Security Council uses member states as intermediaries when it directs sanctions against
individuals, the mere fact that such sanctions in the end target particular individuals raises some
human rights implications. Arguably, international human rights law applicable to individuals
should therefore also bind the Security Council’s action in relation to such individuals. This raises
evident problems that will be explored here.
The first obligation that should bind the Security Council when imposing sanctions
against individuals are rights relating to due process. This is so because when imposing
sanctions, the Security Council generally establishes a sanctions committee with the task of
monitoring and reporting on the sanctions.141 These committees list individuals and corporate
entities that are to be subjected to the sanctions based on proposals or information of member
states (listing process). The problem of due process arises herein because listed individuals are
not heard before being listed. Individuals are also not informed of the evidence against them
that justifies their listing and thus limiting their right to be informed of the case against them.
Currently, the sanctions committee only produces narrative summaries justifying reasons for
listing142 which are often general. This undermines the right to a fair trial necessary for an
individual’s right to defense. The right to a fair trial is enshrined in article 10 of the Universal
Declaration of Human Rights(UDHR), article 14(1) of the International Covenant on Civil and
Political Rights(ICCPR), article 6(1) of the European Convention on Human Rights(ECHR) and
article 7 of the African Charter on Human and Peoples’ Right. In addition, these are
fundamental human rights principles implicitly recognized by the UN Charter in its purposes
and principles and thus applicable to the Security Council. At its minimum, the right to a fair
trial would include the right to be heard before being subjected to targeted sanctions, the
right to be informed of the evidence against oneself and the right to an effective review
before an independent forum so as to challenge such decision.
141
Article 29 is the legal basis for establishing these committees: ’The Security Council may establish such
subsidiary organs as it deems necessary for the performance of its functions.’
142
See Security Council committee Narrative summaries for reasons for listing
http://www.un.org/sc/committees/1988/narrative.shtml (accessed 29 October 2012).
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Regarding the right to be heard, the Security Council has justified that in
consideration of the fact that sanctions are aimed at being preventive in nature, it would
defeat the purpose of sanctions should individuals be informed of possible listing as some
individuals will be able to hide their assets before the sanctions are eventually implemented.143
Thus, the question that must be asked is whether the right to be heard is justifiably limited. Two
contrasting interests come into play; the individual’s right to be heard and the general interest
of maintaining international peace and security through the Security Council. The principle of
proportionality stipulates that the extent of any limitation should be strictly proportionate to
the need or the higher interest protected by the limitation. The principle of necessity
additionally requires an assessment of whether the measure in question is capable of achieving
the goal. Drawing this linkage is not an easy task. However, considering that the sanctions are
aimed at deterring an individual from engaging in human rights violations and that informing
such individual of possible listing would alert them to divert their assets and thus render the
sanctions ineffective to compel positive behavior change on such individual; this may arguably
provide reasonable justification for the limitation of the right to be heard.
Thus, if individuals are ‘justifiably’ denied the right to be heard, the question to
be asked is whether they are accorded the right to an effective review so as to challenge their
listing in accordance with international human rights law such as articles 8 of the UDHR and
2(3) of the ICCPR. With the exception of the Al Qaida sanctions committee with which an
Office of the Ombudsperson (OoO) was created144 so as to receive requests from individuals
who seek to be delisted(removed) from the sanction’s list, most sanctions committees do not
offer effective review. Effectiveness, in this regard, refers to the accessibility of the procedure,
speed and efficiency of consideration by the reviewing body, power of the reviewing body to
request interim measures of protection and / or grant appropriate relief, fairness of the
proceedings, quality of the decision making, compliance with the decision and follow up.145 The
Security Council has only established a ‘focal point mechanism’ to consider requests from
individuals seeking to be delisted from sanctions.146 The government that designated that
individual to be listed as well as the individual’s government are consulted but the primary
decision to delist an individual remains with the sanctions committee. The focal point holds no
power whatsoever but merely facilitates the delisting processes. This does not therefore
143
European Centre for Constitutional and Human Rights ’Backlisted: Targeted sanctions, preemptive security
and fundamental rights’ (2010) available at http://www.statewatch.org/news/2010/dec/eu-ecchr-blacklistedreport.pdf (accessed 21 October 2012).
144
Through resolution 1904 and extended in 2011 through resolution 1989. See
http://www.un.org/en/sc/ombudsperson/ (accessed 17 October 2012).
145
European Centre for Constitutional and Human Rights (n 143 above).
146
Available at http://www.undemocracy.com/S-RES-1730(2006).pdf
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amount to an ‘effective review’ as the sanctions committee acts as a judge in its own case,
being involved in both the listing and delisting process. In addition, the ’focal point’ process
does not mandate disclosure to the individual (the petitioner) of any evidence relied on to
justify the refusal for delisting and only a single member state represented on the relevant
sanctions committee can object to delisting in order for the designation to remain in place.
Even in regard to the Al Qaida sanctions committee, the OoO can only propose
delisting but the final decision rests with the sanctions committee or the Security Council should
the sanctions committee fail to reach a decision. This undermines principles of impartiality and
unfairness. As pointed out by the Canadian Federal Court judge in the Abdelrazik case
regarding the OoO of the Al Qaida sanctions committee: ‘there is nothing in the listing or delisting procedure that recognizes the principles of natural justice or that provides for basic
procedural fairness.’
Perhaps some can be defensive of these apparent loopholes on the basis of
security interests and the fact that the unique nature of targeted sanctions cannot merely allow
an extrapolation of due process principles applicable in administrative, civil or criminal cases
into sanction’s design. In fact others contend that an ‘effective remedy’ means a remedy that is
as effective as can be having regard to the circumstances.’147 But do the circumstances of the
UN Security Council necessitate a complete negation of the right to an effective review? And if
so, is this position compatible with international human rights law. In Al-Nashif v Bulgaria, the
European Court of Human Rights (ECtHR) stipulated that even where an allegation of a threat
to security interests is made, ‘the guarantee of an effective remedy requires as a minimum that
the competent independent appeals authority must be informed of the reasons grounding
the…[decision], even if such reasons are not publicly available. The authority must be
competent to reject the executive‘s assertion that there is a threat to national security where it
finds it arbitrary or unreasonable.’ European case law in general also implies that what is
decisive is the gravity of the consequences of a decision, not their formal classification.148 The
gravity of listing an individual for sanctions thus demands effective review.
However, can individuals be said to have no access to review when they may
have access to national or regional courts? Inevitably yes as national courts seldom serve as an
alternative forum since states (and their national courts), under Article 25 of the UN Charter,
are obliged to accept and carry out the decisions of the Security Council. A national decision
condemning the listing as violating specific international law standards and ordering the state
147
148
As above.
D Wet Human Rights Standards for Targeted Sanctions (2010).
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to act contrary to the sanctions committee’s lists, risks undermining the whole system of collective
security.149 The same holds true for decisions of regional courts.150 If the accuracy of the listings
were faultless, then perhaps we would have little recourse for worry. But this is not the case. In
several reports of the Panel of Experts on Liberia, the Panel noted that it had received a
number of complaints from individuals claiming to be improperly listed and thus unfairly
subjected to the travel ban.151 The problem of wrong listings and the apparent difficulties in
being delisted also arose in the context of targeted sanctions against the Taliban and al
Qaida.152 The applicants had claimed that freezing their assets without allowing the possibility
of challenging that decision violated their right to property, their right to be heard and their
right to judicial review. The Kadi case eventually decided by the European Court of
Justice(ECJ) in 2008 serves as a landmark decision on human rights protection vis-à-vis
sanctions imposed on individuals by the Security Council. The court held, whilst acknowledging
its limited competence to review Security Council decisions, that European Community acts
should be subjected to judicial review even if taken in compliance with Security Council
resolutions and that the EU’s principles could not be disregarded on the ground of compliance
with obligations arising from other international agreements.153 This decision could be said to
have propelled the creation of the OoO in 2009 to review requests seeking to be delisted
from the Al Qaida sanctions list. As already noted, this organ still lacks effective review
powers and handles requests from individuals in the Al Qaida sanctions committee only.
The aspect of wrongful listing also brings to the fore the standard under which
targeted individuals are listed in the first place. Should it be a test of ‘beyond reasonable
doubt’ that the individual is engaged in or supporting gross violations of human rights in the
target country? Should such a standard be applied in all cases or differ according to the
magnitude of the violation in occurrence? Should it be determined according to the type of
sanction and how far such a sanction limits the individual’s rights i.e. the greater the limitation,
the stricter the test to justify listing?. In the recent case of Tay Za v Council concerning targeted
sanctions imposed by the EU against Mr Tay Za, the Grand Chamber held that the necessary
‘test’ to be satisfied so as to include an individual such as Mr Tay Za on a sanctions list was
‘precise, concrete evidence’ establishing that the specific individual benefited from the
149
L Herik The Security Council’s Targeted Sanctions Regimes: In Need of Better Protection
of the Individual (2007) 20 Leiden Journal of International Law 798.
150
As above.
151
Herik (n 149 above) 799.
152
Ahmed Ali Yusuf and Al Barakaat International Foundation v. Council and Commission, Case T 306/01; Yassin
Abdullah Kadi v. Council and Commission, Case T 315/01, 21 September 2005.
153
Kadi and Al Barakaat v Council and Commission (3 September 2008) 303.
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economic policies of the leaders of Burma/Myanmar.154 Thus, in the courts view, a mere family
connection with someone who benefited was not enough. Since that ‘concrete evidence’ was not
available, the regulation as it applied to Mr Tay Za was annulled for want of legal basis.
Considering the difficulties of obtaining evidence in target countries (especially in authoritarian
regimes), the ‘Tay Za’ test might actually prove to be too burdensome to prove and thus make
it practically impossible for individuals to be listed at all. Perhaps we can draw assistance
from the standard of proof required by International Criminal Tribunal for the former
Yugoslavia(ICTY) Rules of Procedure and Evidence which provides that there must exist ‘a
reliable and consistent body of material which tends to show that the suspect may have
committed a crime155 Though reliability seems to be a justifiable notion within this test,
consistency may however prove to be more problematic and thus prove also to be a stringent
test. On the other hand, the current Ombudsperson asserts that this categorization is misplaced
and she contends that the sanctions process is a unique mechanism of a sui generis character,
which makes the criminal-civil terminology wholly inappropriate. Instead she says that what is
decisive is ‘whether there is sufficient information to provide a reasonable and credible basis
for the listing.156’ Again, in this case, one might ask; what is a reasonable and credible basis in
the context of listing? This test remains subjective. The challenge therefore is to establish a test
that is broad enough to enable the Security Council discharge its duties of maintaining peace
but this ambit must not be too wide as to allow for arbitrariness.
Lastly, regarding the right to an effective remedy- other than the fact that
targeted sanctions infringe on rights to movement, property and personal integrity, they could
also amount to defamation in cases of wrongful listing as they can severely damage one’s
reputation. Ideally, a violation of such rights warrants an effective remedy regardless of
whether the proceedings can be deemed to be civil or criminal. However, the court in the case
of Sison found that economic sanctions were a temporary measure and thus not affecting the
substance of the individual’s right to property.157 Thus, for individuals who are wrongfully listed
and, if possible, successfully challenge their listing, their only remedy rests in being delisted.
Being awarded monetary compensation for loss of economic interests is challenging as the
individual will have to prove wrongful conduct on the part of the sanctioning entity and
154
Pye Phyo Tay Za v Council of the European Union United Kingdom of Great Britain and Northern Ireland,
European Commission Case C-376/10 P (13 March 2012) Judgment of the Court (Grand Chamber). para. 70.
155
Rule 40 (B) (iii) of the ICTY Rules of Procedure and Evidence.
156
Office of the Ombudsman of the Security Council 1267 Committee Approach to and standard for analysis,
observations, principal arguments and recommendation (2011).
http://www.un.org/en/sc/ombudsperson/approach.shtml
157
Jose Maria Sison v Council T-341/07 (23 November 2011) Judgment of the General Court (Second Chamber,
Extended Composition) para. 75-82.
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damage suffered as a result of (casual link) the sanctioning entity’s conduct. 158 Furthermore, the
UN is immune from suit according to article 105 of the UN Charter and even if it was liable to
provide compensation, it does not have the institutional structure or capacity to do so. Similarly,
claiming compensation through their national government could cause problems of attribution.
However, in the Sayadi case, the HRC was able to order that Belgium do everything in its
power to secure de-listing, and pay compensation to the complainants159 Implementation of
court decisions however remains a challenge.
3.1.2 The humanitarian impact of targeted sanctions
Targeted sanctions were introduced with the purpose of deterring adverse humanitarian
effects on the population of the target country and inducing positive behavioral change on
targeted individuals. Regarding the former, critics maintain that even targeted sanctions such
as
travel
bans
and
financial
measures
will
inevitably have far-ranging adverse effects on the populace if imposed over a significant
period of time.160 For instance, Zimbabwean President Mugabe and some supporters of his
regime have been under targeted sanctions imposed by the US, EU and other western
countries since 2002.161 Such sanctions consist of freezing of assets, arms embargoes and
travel bans.162 In spite of efforts to ensure that adverse humanitarian impact of the sanctions is
limited, UN High Commissioner Navi Pillay in her mission to Zimbabwe in May 2012 called for
countries implementing sanctions against targeted members of the Zimbabwe regime to
suspend them as there seemed to be ‘little doubt that the existence of the sanctions regimes
has…acted as a serious disincentive to overseas banks and investors...Taken together, these
and other unintended side-effects…inevitably…had a negative impact on the economy at
large, with possibly quite serious ramifications for the country’s poorest and most vulnerable
populations.163’ Commissioner Pillay’s sentiments only confirm the fact that while targeted
sanctions may help to limit their adverse effects from the outset, given the complexity of state
economies and welfare systems, even a focused ban on air flights or the supply of petroleum
158
As above.
Sayadi and Vinck v. Belgium CCPR/C/94/D/1472/2006 (Views adopted on 22 October 2008). para. 12
160
R Geiss Humanitarian safeguards in economic sanctions regimes: a call for automatic suspension clauses,
periodic monitoring, and follow-up assessment of long-term effects (2005) 18 Harvard Human Rights Journal
167-185.
161
For history of sanctions against Zimbabwe, see J Grebe And They Are Still Targeting: Assessing the
Effectiveness of Targeted Sanctions against Zimbabwe (2010).
162
As above.
163
UN Human Rights Chief ends first ever mission to Zimbabwe (2012) available at
http://www.ohchr.org/EN/NewsEvents/Pages/HRChiefendsfirstevermissiontoZimbabwebyaUNHCforHR.aspx
(accessed 3 October 2012).
159
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could adversely affect a state's population in troubling ways.164 This effect is amplified if
sanctions are imposed during a time of crisis, caused for example by famine as was the case
with
Zimbabwe
in
2003.165
Similarly,
despite
humanitarian
relief
clauses
contained in the sanctions regime imposed against Haiti, the fuel embargo in and of itself
raising no specific humanitarian concerns led to an increase in transportation costs that in turn
caused a dramatic increase in food prices.166 Thus several factors such as hyperinflation, the
cumulative effects of military operations, the collapse of government institutions, a natural
disaster, or the targeted state's own behavior can all transform a sanctions regime intended to
be moderate into a devastating means of coercion by drastically augmenting its adverse
impact.167 It would appear that the humanitarian exemption clauses currently employed when
imposing sanctions are simply not up to the task of preventing a dramatic, adverse impact on
the population of the target state with any degree of certainty.168 Others have proposed that
if unavoidable, the effects of sanctions must, as far as possible be irreversible. 169
Unfortunately, it is practically impossible to do so since such humanitarian impacts are often
widespread and intertwined.
Yet again, the principle of proportionality has been proposed as a test that
states can use when imposing sanctions in a bid to limit humanitarian effects and ensure that
means employed are not excessive. In the case of Nabil Sayadi and Patricia Vinck v. Belgium,
the Human Rights Committee noted that ‘restrictive measures must conform to the principle of
proportionality; they must be appropriate to achieve their protective function.170’ The Security
Council is bound by the principle of proportionality when enforcing any measure as inferred
from the reference to ‘necessary’ measures in articles 40 and 42 of the UN Charter. 171 In
addition, by stipulating that military action shall only be undertaken if measures under article
41 of the UN Charter prove inadequate, article 42 indicates a systemic intention of the UN
Charter to minimize the impact of enforcement measures as much as possible.172
When imposing targeted sanctions, the imposing entity must therefore ask; are
the means employed suitable for the fulfillment of the legitimate goal? If the answer is to the
affirmative and it is evident that such sanctions will have adverse humanitarian consequences,
164
Geiss (n 160 above) 185.
Famine in Zimbabwe (2003) available at http://library.fes.de/pdf-files/iez/02815.pdf (accessed 4 October
2012).
166
Geiss (n 160 above) 185.
167
Geiss (n 160 above)191.
168
As above.
169
Proukaki (n 65 above) 263.
170
Sayadi and Vinck v. Belgium (n 159 above). Para 10.5.
171
Geiss (n 160 above).
172
As above.
165
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the imposing entity must then ask; are the adverse consequences of the measure on a legally
protected interest justified in light of the importance of the pursued goal? An assessment must
therefore be made concerning the importance of the goal pursued in light of the harm to be
suffered. For instance, the issue of proportionality was raised in regard to UN sanctions against
Yugoslavia concerning the impounding of the Turkish Bosphorus Airline. 173 The ECJ concluded
that the essential international community interest to cease the war in Bosnia-Herzegovina
supervened over the rights of Bosphorous. As such, the impounding of the aircraft was
proportionate to the objective sought. This reasoning was also confirmed by the EtCHR.174 In
contrast, the US responded through sanctions to a suspected alignment between Cuba and the
Soviet Union during the height of the Cold War.175 The US restricted and eventually blocked
Cuba's exportation of sugar to the US.176 In addition, the US waged a covert campaign to
block Cuba's ability to obtain loans or credit from Western European and Canadian financial
institutions resulting in the elimination of Cuba’s trade relationships.177 The UN General
Assembly objected against US's sanctions against Cuba as it was felt that the ‘sugar embargo’
on its own was sufficient and that its effect would still have been felt by Cuba since the US
accounted for the majority of Cuba's market for sugar.178 Thus the ‘harm’ inflicted by the US
sanctions was disproportionate to the objectives sought.
Thus regarding the humanitarian effects of targeted sanctions, the proportionality
test would imply that particularly ‘burdensome’ sanctions will be assessed in the context of
fundamental human rights to be protected. The nagging question, however, is: ‘how much, if
any, collateral damage is permissible in a particular case?179’ In addition, in the absence of
review, the question of proportionality seems to be a subjective test decided by the imposing
entity. Furthermore, given the character of economic sanctions as complex measures commonly
employed over a significant period of time, the chief problem in assessing their adequacy lies
in the fact that circumstances change over time.180 An initially modest enforcement measure
173
Bosphorus v Minister for Transport, Energy and Communications, Ireland and the Attorney General Case C84/95, European Court Reports I (1996) Part 1.
174
Bosphorous Hava Yollari Turizm ve Ticaret Sirketi v Ireland application No. 45036/98 Grand Chamber
judgment (30 June 2005) 149-157.
175
Proukaki (n 65 above).
176
As above.
177
As above.
178
As above.
179
W. Michael Reisman, Douglas L. Stevick The Applicability of International Law Standards to United Nations
Economic Sanctions Programmes (1998).
180
As above 178.
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may turn into a devastating form of coercion if circumstances in the target state change in
particular ways, severely distorting the adequacy of the measure.181
Also of interest is that when sanctions are imposed, they are imposed to address
human rights violations in the context of civil and political rights. The end result, however, is that
they adversely affect economic, social and cultural rights (ESCR). Thus, the same sanctions that
are imposed to end human rights violations of a civil and political nature are causing human
rights violations of an economic, social, and cultural nature, in a target country.182 Scholars
argue that this effect is incongruous with international human rights law, which is predicated on
the idea that human rights are universal; and yet sanctions deprive international human rights
law of this universality.183 They contribute to civil and political human rights norms favoured by
most western/developed states at the expense of ESCR favoured by many other nations, and
recognized on equal footing with civil and political rights in international human rights law.184
For instance, the following objectives of sanctions imposed have a civil and political rights
objective. US sanctions against South Africa starting in 1985 sought to compel the apartheid
government to release all political prisoners and those detained without trial from prison, to lift
the ban on democratic political parties and the right to express political opinions, to repeal
discriminatory measures, and make efforts to make the political process more
representative.185 Similarly, US imposed sanctions against Haiti in 1991, aimed at forcing a
military coup to step aside and restore the democratically elected leader to power.186 Not
only did such sanctions inflict harm to ESCR but they also sought to address civil and political
rights and neglect ESCR that were equally violated. Howlett notes that the sanctions levelled
against South Africa by the US did not expressly take note (in their objectives) of the
discrimination caused by apartheid which violated many aspects of ESCR such as work, culture,
education, and access to health care.187 In fact, most sanctions are rarely imposed with an
objective to directly address ESCRs violation. Howlett attributes this to the fact that because
ESCR involve a positive duty on the state, it is more difficult to assess whether an ESCR has
been violated.188 Civil and political rights on the other hand mostly require a negative act in
order to prove a violation and they are also immediately enforceable. In addition, the
jurisprudence behind ESCR is still developing. However, in many instances, governments fail to
181
As above.
A Howlett Getting "smart": crafting economic sanctions that respect all human rights (2004) 1199.
183
As above
184
As above.
185
See section 311 of the Comprehensive Anti-Apartheid Act of 1986.
186
Howlett (n 182 above) 1215.
187
As above.
188
As above 1205.
182
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take concrete steps within their resources towards the progressive realisation of ESCR and thus
resulting into gross violations of human rights which, arguably, should also warrant intervention
in the form of economic sanctions. Unfortunately this is not the case and most sanctions continue
to be levelled against violations of a civil and political nature and thus giving the impression
that it is acceptable to violate ESCR so long as civil and political rights are realised.
Lastly, considering that even targeted sanctions can inflict harm on the innocent
populace, the question of providing compensation to the injured again unavoidably arises. It is
not only unclear in regard to what remedies and mechanisms are available to the victims of
such sanctions189 but also who can be held accountable or responsible for the violations. Can it
be attributed to the ‘troublesome’ regime or the imposing entity or both? With specific focus on
the Security Council, invoking the possible responsibility of the UN would raise difficult
problems of attribution since UN sanctions are regularly imposed by the Security Council but
implemented by national policies/legislation.190 Furthermore, the UN enjoys complete immunity
from any form of legal proceedings before any national court under Article 105 of the UN
Charter. However, the ECJ has held that damage suffered as a result of the economic
embargo against Iraq was not attributable to the European Community but the Court hinted at
the responsibility of the UN for Security Council sanctions.191 On the hand, it has also been
contended that the suffering arising out of the sanctions was a rise of the regime that had
initially caused a threat to international peace and security and not the Security Council.192
Perhaps there is need for enhanced discussions on the liability of the Security Council within the
context
of
Article 50 of the UN Charter, under which any state ‘confronted with special economic
problems arising from the carrying out of [preventive or enforcement measures taken by the
Security Council] shall have the right to consult the Security Council with regard to a solution of
those problems. Similarly the Maastricht Guidelines on Violations of Economic, Social and
Cultural Rights provides that an international organization or state can be held responsible for
violations of economic, social and cultural rights and as such all concerned victims are entitled
to adequate reparation, which may take the form of restitution, compensation, rehabilitation
and satisfaction or guarantees of non-repetition.193’ Some have also suggested that claims for
189
Nanda (n 126 above).
A Reinisch Developing human rights and humanitarian law accountability of the Security Council for the
imposition of economic sanctions (2002) 95 American Journal of International Law.
191
As above.
192
Jeremy Matam Farrall United Nations Sanctions and the Rule of Law (2007).
193
Masstricht Guidelines on Violations of Economic, Social and Cultural Rights, Maastricht, January 22-26, 1997.
Para 19 and 23 http://www1.umn.edu/humanrts/instree/Maastrichtguidelines_.html (accessed 5 October
2012).
190
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damages be brought before national courts, or regional human rights organizations, or the
ICJ.194 Nevertheless, the quest for legal remedies faces various procedural and substantive
obstacles as all institutions remain hesitant to the risk of opening a floodgate of claims.
3.2 Conclusion
All the highlighted problems provoke us to seriously reconsider the aspect of
targeted sanctions in addressing human rights violations. Targeted sanctions, in spite of their
noble pursuit of protecting human rights, do not themselves succumb to principles of due
process as demanded by international human rights law. Their subsequent implementation does
not also necessarily protect the innocent populace from adverse humanitarian impacts and
studies confirm that most sanctions simply do not succeed in achieving stipulated goals. Most
targeted sanctions have not brought about an increase in effectiveness that is dramatically
better than that of comprehensive sanctions.195 Examples of Iraq, Zimbabwe, Haiti, Cuba,
Burma, amongst others, seem to confirm this point. Inasmuch as sanctions also serve as an
important symbolic gesture of strong disapproval by the international community towards the
targeted regime/entity other than merely inducing behavioral change, its end goal of ensuring
human rights protection must be realized. Thus, the need to systemically review sanctions from
their design and implementation from a human rights perspective cannot be more emphasized.
194
See UN Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights,
The Adverse Consequences of Economic Sanctions on the Enjoyment of Human Rights, (2000) U.N. Doc.
ECN.4/Sub.2/2000/33 para. 6.
195
J Gordon Smart Sanctions Revisited (2011).
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CHAPTER FOUR
4.0 Recommendations
4.1 Introduction
Economic sanctions can be imposed with the good intention of protecting human rights in target
countries but the current framework within which they operate has also negatively affected
human rights. Though criticism leveled against sanctions are well-founded, abandoning
sanctions altogether limits coercive options for human rights protection in target countries to
diplomatic measures and/or military intervention which both have significant limitations.
Economic sanctions, if systematically improved, could serve as an attractive and effective
middle-ground between the two options. In this chapter, recommendations are provided in a
bid to improve the design and implementation of sanctions within international human rights
law. In proposing these recommendations, this thesis hopes to add to the jurisprudence of
ensuring that sanctions are ‘human rights friendly tools’ in their design, but are also effective in
deterring human violations with minimal adverse humanitarian impact when implemented.
Reference to case studies where relevant is also made in an attempt to signify the importance
of context when imposing sanctions. Recommendations herein have thus been proposed from
two angles. The first angle provides recommendations addressing the problem of due process
under the procedural aspects of imposing sanctions. The second angle provides
recommendations on the implementation of sanctions so as to address concerns on the
humanitarian impact of sanctions, and to ensure that they achieve their intended goal of
protecting human rights.
4.2 Addressing the problem of due process under sanction’s design
4.2.1 The right to be informed
It has been noted that when the sanctions committees are considering listing proposals, such
discussions are often held under strict confidentiality. Targeted individuals are therefore not
accorded the opportunity to object their inclusion in the listing process because they are mostly
unaware of such proceedings. In fact, if reviewed in terms of a criminal proceeding, their right
to be presumed innocent is curtailed.196 On the other hand, it is understandable that the listing
process requires sensitivity. Thus, the primary goal of the Security Council in maintaining
international peace and security is paramount but this does not entail a complete negation of
196
This position has however been rejected in the El Morabit case on the basis that such a step did not pre
determine the guilt or innocence of the individual. El Morabit v. Council of the European Union Case T-323/07
(judgment of 2 · September 2009) Para 40-52.
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individuals’ fair trial rights. In A. and Others v. United Kingdom, the EtCHR has held that
limitations on the right to disclosure of all material may be possible for important public
interest matters, provided the person still has the possibility to effectively challenge the
allegations against him.197 Thus, in this context, though the right to be heard before listing
occurs cannot be guaranteed, it is recommended that the Security Council provides even the
most minimal access to evidentiary information against concerned individuals soon after listing
so that individuals can be accorded an opportunity to understand and challenge their listing.
According to Fulmen v Council, the court held that reasons given, although brief, are sufficient if
the individual is able to understand the allegations and is able to dispute the truth or relevance
of it..’198 Proportionality test199 in this regard would thus demand that if the individual is not
accorded a chance to be heard due to security interests, he/she must be accorded the
opportunity to be provided with information justifying his/her listing which the individual can
use to challenge the listing decision. Such information must not merely be a general statement
of facts but it must be adequate to enable the individual to understand and challenge the
decision. This does not mean that full disclosure of all evidence is required (as the Security
Council may also be unwilling to divulge all evidence due to security interests) but sufficient
evidence must be provided.
Secondly, the issue of evidentiary information leads us to the important issue
regarding the burden of proof required to be discharged when imposing sanctions. Inasmuch
the listing process cannot be strictly defined as either a civil or criminal proceeding, it is
imperative that there must be a standard of proof to be satisfied under which individuals are
listed so that perceptions of impartiality and arbitrariness are minimized. In addition, the
severe consequence of being listed justifies the need for a consistent standard that validates
listing individuals. It is therefore recommended that the standard to be satisfied must be that
there exists a reliable body of material consistent with other verified circumstances, which tends
to show that a person may reasonably be suspected of being involved in an act that justifies
listing. This test has been adopted from the international commission of inquiry which was
created to investigate reports of violations of international humanitarian law and human rights
197
A and Others v. United Kingdom Application no. 3455/05 EtCHR (19 February 2009).
Judgment of the General Court (Fourth Chamber) of 21 March 2012.
199
See also Tinnelly and Sons Ltd and others and McElduff and others v. UK, Application No. 20390/92 EtCHR
(1998) 76 where it was held that for limitations on court access or fair trial rights based on national security
concerns, there must be ‘a reasonable relationship of proportionality between the concerns for the protection
of national security invoked by the authorities and the impact which the means they employed to this end had
on the applicants’ right of access to a court or tribunal.’
198
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law in Darfur in 2004.200 This standard is chosen in light of the fact that it strikes a right
balance between having too stringent or too flexible a standard. There must exist evidence,
not entirely sufficient but adequate to provide a rational basis that the targeted individual is
or could be involved in such unwarranted activities. The link need not be direct but it must raise
reasonable and reliable suspicion.
Thirdly, it is recommended that the objective for listing an individual must be
clear. It must not be broad or vague but must clearly stipulate the behavioural modification
that the sanction seeks. For instance, the objectives behind the sanctions implemented against
targeted persons in Zimbabwe (by the EU) are meant to ensure that targeted individuals reject
policies that lead to the suppression of human rights, of the freedom of expression and of
good governance.201 This objective is applicable to Mugabe and some supporters of his
regime. For Mugabe and some heavy weight politicians who support him, this objective is
somewhat clear as they initiate policies but this may be expecting too much from low level
targeted supporters. What does it mean to ‘reject’ a policy within this context? Does this mean
that the individual must have successfully opposed the implementation of a ‘destructive’ policy?
Or does this mean that such individuals should refrain from signifying any form of support
when the policies are implemented? When objectives for targeting individuals are formulated,
they must be sufficiently clear to indicate what the particular individual must do to ‘qualify’ for
delisting. This is proposed in light of the fact that sanctions cannot be merely punitive; instead
they seek behavioural modification. The case of Organisation des Modjahedines du peuple
d’Iran (OMPI)202 emphasizes the importance of clear objectives behind sanctions.203 The
challenge of course is for the sanctioning entity to strike a balance that allows sufficient
flexibility in the formulation of the objective so as to accommodate unforeseeable
circumstances that may arise during the sanction period but at the same time avoid a scenario
where the objective is too broad and thus leading to unjustified prolonged listing. This could be
solved through periodic review that can take into account any circumstance and modify the
objective accordingly. However to avoid a scenario where the legitimacy of sanctions is
questioned through constant reformulation of objectives, the guiding principle should be that
the formulation of sanctions is not strictly constrained but it must still be sufficiently detailed
200
See Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General
(2005) available at http://www.un.org/news/dh/sudan/com_inq_darfur.pdf (accessed 29 October 2012).
201
Foreign and Commonwealth Office Zimbabwe http://www.fco.gov.uk/en/about-us/what-we-do/serviceswe-deliver/export-controls-sanctions/country-listing/zimbabwe (accessed 17 October 2012)
202
Organisation des Modjahedines du peuple d’Iran (OMPI) v. Council of the European Union Case T-228/02
European Court of First Instance (Second Chamber) (12 December 2006) paras. 154, 155 and 159.
203
As above. para. 154.
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and concise in a manner that accords the individual sufficient information to modify its
behaviour for possible delisting.
4.2.2 Review proceedings
Considering that most sanction committees review requests for delisting through the facilitation
of the focal point, it is recommended that the focal point mechanism is abolished as it merely
facilitates requests for reviews and does not ensure that due process principles are accorded
to. Thus, it is also recommended that the current mandate of the Office of the Ombudsman
(OoO) who only reviews requests for delisting from individuals under the Al Qaida regime
should be expanded to review individual requests from all Security Council sanctions regimes,
and not just Al Qaida.
Secondly, in order to ensure effective review, ideally the Ombudsperson should
be accorded decision making powers other than issuing mere proposals for delisting which risk
not being implemented by the sanctions committee or the Security Council. However such a
recommendation would be over-ambitious considering that this could amount to a ‘de facto’
review of Security Council decisions and it is unforeseeable that the Security Council would
agree to a creation of such a body. And yet there is still need to have an impartial mechanism
that issues final decisions for delisting. To balance the competing interests, the following
recommendation is made. When the OoO makes a proposal for delisting to the sanctions
committee, any refusal to delist should be accompanied by substantiated information from the
sanctions committee warranting the refusal, and such refusal must address all the issues initially
raised by the OoO in the delisting proposal. The substantiated information warranting refusal
for being delisted must be made available to the individual via the OoO unless security
interests dictate that such information cannot be made public. In cases where security interests
would limit the individual from having access to that information, the information must still be
provided to the OoO whereas the OoO will issue a general statement to the individual that
his/her request for delisting has been denied providing minimal information as security
interests would dictate. The final decision in this case still remains with the sanctions committee
but at least under this recommendation, the sanctions committee is bound to provide
authenticated reasons for any refusal for delisting.
Thirdly, it is recommended that a defined criteria for delisting under every
sanction regime needs to be created. Some efforts have been made under UN Security Council
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imposed sanctions204 though they are not necessarily categorized as criteria to be met. By
criteria, this does not mean procedures for delisting but rather factors that must be taken into
account when the OoO and the sanctions committee are reviewing requests for delisting. Such
guidelines need not be exhaustive but would assist in ensuring consistency and credibility.
4.2.3 Addressing the challenge of political will
Throughout these recommendations it is borne in mind that political considerations play an
important role when sanctions are being designed. As such it may be unlikely that such
recommendations are implemented in the near future. Thus, as a short term strategy, there is
need for national and regional courts to take an active role in ensuring human rights
compliance under targeted sanctions, especially for those implemented under Security Council
authorization as they pose the most hierarchical challenges. Inasmuch as states are obliged to
implement Security Council sanctions, states must do this within the principles of the UN Charter
i.e. respect for human rights. In Al-Jedda, for example, the EtCHR held that there ‘must be a
presumption that the Security Council does not intend to impose any obligation on member
states to breach fundamental principles of human rights.205’ Taking into account the Kadi
decision, domestic judicial review can thus be taken by national judiciaries to entertain reviews
of listing procedures. This is not to be perceived as a review of the authority of the Security
Council but rather an attempt to ensure that sanctions are not blindly implemented by member
states without recourse to human rights implications. Even if the guarantees of due process are
not necessarily part of jus cogens, they arguably belong to international customary law and, as
general principles of law, bind also the Security Council. 206 The recent 12 September 2012
EtCHR judgment of Nada207 provides practical guidance on how states can respect individual
human rights without derogating from their obligation to implement Security Council decisions.
The Court in this case observed that Switzerland could not simply rely on the binding nature of
the Security Council resolutions, but should have taken all possible measures, within the latitude
available to it, to adapt the sanctions regime to the applicant’s individual situation.208 Since
Switzerland had failed to harmonize the international obligations that appeared
contradictory, the Court found that there had been a violation of Article 8 of the ECHR. In
reflecting upon Article 103 of the UN Charter, the Court’s view was that the respondent
Government had failed to show that they attempted, as far as possible, to harmonise the
204
See Security Council Resolution 1735 Threats to International Peace and Security Caused by Terrorist Acts
Adopted by the Security Council at its 5609th meeting, on 22 December 2006. para 14.
205
Al-Jedda v The United Kingdom Application no. 27021/08 EtCHR (7 July 2011) para 102
206
Agnieszka Grossman A Critical Assessment of the 1267 Sanctions Committee (2012) available at
http://www.e-ir.info/2012/03/03/a-critical-assessment-of-the-1267-sanctions-committee/ (accessed 15
October 2012).
207
Nada v Switzerland Application no. 10593/08 EtCHR (Judgment of 12 September 2012).
208
As above. para 196-180.
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obligations that they regarded as divergent. It is therefore recommended that national and
regional courts assume vigilant roles in ensuring that implementation of targeted sanctions is
human rights compliant and thus indirectly pressuring the Security Council to adhere to
principles of due process.
4.3 Addressing the problem of the unsuccessful implementation of targeted sanctions
The logic behind the introduction of targeted sanctions is twofold: to ensure that any adverse
humanitarian impact on the public as a result of the sanctions is prevented, and to ensure that
sanctions only target those individuals involved in gross violations of human rights and thus
compel them to alter their behavior accordingly. However, in the previous chapter, it has been
shown that due to the complexity of sanctions, targeting sanctions on perpetrators, without
affecting other parts of the population is not easy to achieve. In addition, their unintended
consequences can include reinforcement of the power of oppressive élites and thus render
sanctions ineffective in compelling behavioral change. Recommendations are thus made to
address these two problems.
4.3.1 Proportionality
Proportionality, though an accepted principle under international enforcement measures, is
rarely adhered to. It is reiterated that the objectives of the sanctions imposed must be strictly
proportionate to the means sought. Guidance must be drawn from the recent judgment of
Nada by the EtCHR concerning a businessman placed on the UN anti-terrorism sanctions list for
several years.209 What makes the case peculiar is that the applicant lived in the Italian
enclave of Campione d'Italia, a small 1.6 sq. km enclave on Lake Lugano, surrounded by a
Swiss canton. Since the sanctions imposed a prohibition on transit, Nada was not able to leave
the small enclave to visit family or friends. The Court's view was that the implementation
measures taken against Nada were not proportionate and that the state should have taken the
very special situation of him living in the enclave into account.210 Similarly, the Human Rights
Committee in the case of Sayadi v Vinck211 held that the travel restrictions imposed on the
applications violated their right to movement and the Committee held the opinion that it did not
perceive the travel restriction as necessary for the protection of national security and public
order. Thus it is recommended that imposing entities must ensure that a reasonable relationship
209
Nada v Switzerland (n 207 above).
A concurring opinion by three judges who adopted a different approach in signifying Switzerland’s violation
of Nada’s rights stipulated that the State did not ’take all reasonable steps open to them to seek to mitigate the
effect of the sanctions regime by the grant of requests for exemption for medical reasons or in connection with
judicial proceedings, or to bring about a change in the sanctions regime against the applicant so as to secure so
far as possible his Convention rights.’
211
Sayadi v Vinck (n 159 above).
210
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exists between the means implored and the goal sought. Though still a subjective assessment,
an imposing entity must consider whether that particular restriction on the individual’s right will
most likely result into, or contribute towards a deterrence of the ‘opposed’ behavior.
4.3.2 Identifying the operating framework of the target
When considering whether to impose sanctions upon individuals accused for gross human rights
violations, regard must be had to the framework under which those particular individuals are
operating within. This factor is important in limiting adverse humanitarian effects to the
populace and in ensuring that the conduct resulting in human rights violations is eventually
curbed. In most cases, such individuals operate within framework of a governing regime. In
some cases, it can be an independent revolutionary movement like the Taliban (this point will
be addressed in the next section). In the case of a governing regime, an imposing entity needs
to take into consideration the specific characteristics of the regime. This is important because
the type of the regime can invariably affect the human rights conditions in the country once
sanctions are imposed. An imposing entity must therefore consider whether the regime is a
purely dictatorial one. If the answer is to the affirmative, it must be borne in mind that the
possibility of inducing behavioural change on the part of that regime will be difficult. The
failure of sanctions to induce change in dictatorial regimes such as Iran, Cuba and Haiti serve
as good examples. Thus imposing entities must be able to rethink, at this juncture, whether
sanctions remain a proper and necessary coercive measure for protecting human rights in such
a regime. This is not to be perceived as a weakness since best practice dictates that sanctions
must be preceded or taken together with other coercive tools especially in cases where their
likelihood to induce change is minimal. Sanctions must be perceived to be one ‘tool in the
toolbox’ and must be seen in the context of larger foreign policy options212 especially if the
regime is largely authoritarian. Sanctions imposed against authoritarian regimes have often
resulted in those regimes engaging in further political repression as a means to retain
power.213 The regime can also simply avoid economic pressure by shifting the hardship to the
population.214 Thus it is recommended that in the case of authoritarian regimes, other avenues
of coercion such as diplomatic negotiation with offers of incentives should be explored.215
Secondly, it is also recommended that other than imposing targeted sanctions on
individuals in the form of travel bans or asset freeze in a purely authoritarian regime, it is
212
The Carter Center Meeting on the Viability of International Economic Sanctions (1996) 2.
Perksen (n 47 above).
214
Grebe (n 161 above) 21.
215
Others may criticize diplomatic channels as being lengthy, but similarly, sanctions imposed against
authoritarian regimes have proved to be considerably lengthy without yielding desired results. Consider the
sanctions against the authoritarian regimes in Iraq, Iran, Afghanistan, Cuba and Haiti.
213
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more strategic to impose an arms embargo so that such regimes do not use such weaponry to
further repression. However, this proposal is made cautiously considering the fact that the
effectiveness of an arms embargo largely has to do with the level of state cooperation.
Underground supply of weaponry by other states has often undermined any positive behavior
change as evidenced by the cases of Zimbabwe (secretly supplied weaponry by China) and
Syria (secretly supplied by Russia).
Thirdly, if the regime is a hybrid regime, targeted sanctions are more likely to
succeed. A hybrid regime is one that possesses democratic structures but largely reflects
authoritarian tendencies. Such democratic structures, as imperfect as they may be, demand
some sense of accountability on the part of the regime. The presence of opposition
parties/factions is also a positive factor to consider. In nations where repression has eliminated
domestic democratic opposition, coercion against such regimes is much more difficult.216 On the
other hand, sanctions imposed coupled with the presence of such structures can represent
pressure to the regime and thus warrant behavioural change. Human rights violations by that
regime are thus more likely to decrease.
4.3.3 What is the relationship between the regime and the targeted entity?
The imposing entity often makes the mistake of confusing a regime and any hostile entity
operating within the regime as one. In cases like the Taliban in Pakistan and Afghanistan, the
distinction is clear and as such, sanctions can be rightfully targeted against that hostile entity
without necessarily targeting the governing regime. In other cases, it is not so clear. For
instance, ZANU-PF and the Mugabe regime are often perceived to be the same because the
distinction is not clear. And yet this distinction is important because sanctions must strategically
target individuals who, when targeted, will induce the desired behavioural change. Without
the Mugabe regime, ZANU-PF may not necessarily pose as a hostile entity. Similarly, in the
case of Iraq, groups such as the Sunni minority and the Baath Party gained prominence through
Saddam Hussein. In such cases, the general recommendation would be that sanctions need to
target regimes because it is these regimes which encompass the procedures defining and
regulating access to power. Targeting sanctions against groups that support oppressive
regimes in the hope that the ‘pain’ inflicted on the group members will deter their support for
the regime sometimes only produces the opposite effect (by inducing further rebellious support
for the regime). Such was the case during the Saddam Hussein regime who consolidated his
repressive authoritarian rule by enhancing the relationship between the regime and the key
groups whilst allowing him to maintain a strong repressive rule against civilians in spite of the
216
David Cortright Humanitarian Sanctions? The Moral and Political Issues (1995) 1-3.
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sanctions.217 Such non-strategic imposition of sanctions can therefore increase human rights
violations. Thus it is recommended that economic sanctions should, where applicable, target key
players. They should target those in whom, once a change of behaviour is achieved, will also
alter the behaviour of its followers.
4.3.4 Is the target regime hurting?
Vulnerability rather than the degree of culpability often determines whether or not a regime is
an appropriate target of economic sanctions. So the question that the imposing entity ought to
ask is whether the target regime is ‘hurting’ in a manner that will cause it to desist from
carrying out further human rights violations. In order to ensure that the regime is ‘hurting,’
economic or political costs to the leaders of those regimes must be carefully crafted. However,
care ought to be taken that the regime's vulnerability is not deftly transformed into the
vulnerability of the nation itself. In addition, ‘hurting’ in this context is not used as a form of
punishment but rather to ensure that the outlaw regime is able to feel the pain enough to
change its policies. An illustrative example is the US imposition of sanctions against Idi Amin
that strategically targeted Uganda’s coffee exports (which was crucial for obtaining foreign
exchange) in a bid to undermine Amin’s regime. This foreign exchange was crucial to curb Idi
Amin’s strategy of providing private goods to his core group of supporters such as the army
and civil servants. The initial commercial boycott and subsequent trade ban eventually
contributed to weaken Amin’s regime.218 Similarly, in the Dominican Republic, sugar exports
were the main source of the Trujillo family’s resources used to buy the support of core
supporters, including the armed forces. Hence the strategy implored by the Organization of
American States (OAS) and the US restricting Dominican sugar imports contributed to efforts
towards a peaceful regime change.219 In ensuring that the cost is not unduly borne by the
populace, the target of such sanctions must be something that is directly under the control of
the regime and is used for the regime’s sustenance.
4.3.5 What is the extent of internal support for the regime?
Sanctioning entities must bear in mind that even the most brutal of regimes can attract some
level of support from the populace. Most dictators do not rule in isolation, but build supporting
coalitions whose loyalty is largely dependent on obtaining patronage resources or policy
concessions from the dictator.220 The Haitian military regime had, for example, the support of
217
Perksen (n 47 above) 62.
R Nurnberger Why sanctions almost never work? (2003) 1-2.
219
Abel Escriba`-Folch Dealing with Tyranny: International Sanctions and the Survival of Authoritarian Rulers
(2010) 340.
220
As above.
218
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the small wealthy elite.221 The Taliban had the support of religious militants and the Iraqi
regime had the support of the military i.e. the Republican Guard. 222 As Kimenyi emphasized,
‘to keep the coalition intact, it is necessary for the dictator to distribute benefits to the
coalition.223’ This is even more evident in countries where resources are scarce, for instance
Zimbabwe. The magnitude of internal support for the regime will affect how the targeted
regime responds to sanctions. In some cases, the support emanates from an innocent populace
and not necessarily a hostile faction. Lack of proper communication channels is one of the
reasons why such populace rallies behind targeted regimes. Regimes, especially those that are
authoritarian in nature and thus in control of information flow, are able to effectively convey to
the populace misconceptions about the sanctioning entities. This is most apparent in regimes
operating in countries with historical disadvantages. Such regimes manage to relate the
sanction imposed as an attempt to entrench such historical disadvantages. The Taliban has used
this tactic to display western imposed sanctions as attempts of demeaning Islam. A study
conducted during the Taliban-led regime found that the sanctions against Afghanistan was
mostly seen by the citizens of that country as another attempt by the West (the Judeo-Christian
tradition) to isolate Islam by defining it as the troublesome other.224 Thus, there was absolutely
no support within Afghanistan for further economic sanctions and that there was ‘strong and
widespread perception that the Security Council had set out to harm rather than help
Afghans.225’ Mugabe has also attacked sanctions imposed on his country as an attempt by the
West to interrupt his government’s attempt in correcting colonial imbalances evidenced through
current land inequalities. In fact, observers suspect that the Mugabe regime does not want the
sanctions lifted as they have effectively been used as a campaign tool to rally support against
the west and enhance Mugabe’s control.226 Similarly in Cuba, Castro depicted US sanctions as
an imperialistic attempt to infringe on the independence and integrity of the Cuban people.
Sanctions therefore allowed Castro to divert public attention from internal problems of the
communist regime to the external threat posed by sanctions.227 In such instances, a significant
number of supporters have rallied behind such regimes and thus made it easier for the regime
to justify repression. Considering the challenges of obtaining information in some regimes, it
may not always be easy to effectively communicate the intended objectives of sanctions to the
people of the regime being targeted. However, it is recommended that attempts must still be
221
Addis (n 40 above) 585.
As above.
223
Folch (n 219 above) 337.
224
Addis (n 40 above) 610.
225
As above.
226
A Harding EU to suspend Zimbabwe sanctions after referendum available at
http://www.bbc.co.uk/news/world-africa-18951 (accessed 30 July 2012).
227
Perksen (n 47 above) 63.
222
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made to effectively communicate the reasons for sanction policy to the population of the state
whose regime is being targeted either through other non-state controlled means such as civil
society, opposition parties, public discussions and seminars as well as website publications.
4.3.6 What does the populace want?
Even though economic sanctions discussed herein are imposed with the good intention of
protecting human rights in a target country, it must be borne in mind that other equally
important aspirations are prioritised by the populace such as peace. Most, if not all sanctions,
are imposed without any consultation of the group whose rights are to be protected.228
Examples include attempts by the US to force a democratic transition in Myanmar without a
thorough assessment of Myanmar's historical, political, economic, social, and cultural climate.229
The same can be said of Zimbabwean whose current political problems can be traced back to
historical problems upon attaining independence. This is not to mean that human rights should
be forgone but it is recommended that a holistic assessment of the situation in a target country
is done before sanctions are implored otherwise sanctions will only serve as a short term
solution within a broader range of problems that are likely to resurface later and cause wider
human rights violations
4.3.7 Enhanced regional support- a unique call for the African Union (AU)
Perhaps the sanctions agenda has been driven by the western world and there is need for
regional bodies to create ownership of the agenda. A special call is hereby made for the AU
in consideration of the fact that many sanctions regime under the Security Council concern
African countries. The AU’s sanctioning powers has largely centred upon unconstitutional
changes of government. Much as unconstitutional changes of government invariably affect
human rights, there is still need for the AU to pay closer attention to other forms of gross
violations of human rights in African countries and impose sanctions accordingly. The AU has
repeatedly rejected sanctions against countries like Zimbabwe and South Sudan citing
negotiations as more effective mediums even when evidence suggests otherwise. In some
instances, it is this lack of cooperation that has entrenched repressive governments where such
governments have avoided the cost of sanctions by securing the supplies of scarce resources
through neighbouring countries. The support that Mugabe currently enjoys with neighbouring
countries in the SADC region is a good example. Even though Hufabeur’s theory suggests that
the greater the number of participating countries, the more likely the regime is compelled to
alter its behaviour;230 it is contended that it is not really the number of sanctioners that matters
228
D'Hollander (n 4 above).
As above.
230
G Hufbauer, B Oegg A Short Survey of Economic Sanctions (2001).
229
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but the strategic positions of the participating country and their relationship with the targeted
regime. Thus if AU mandates member states implement sanctions against African regimes who
engage in gross human rights violations, the pressure may be harder felt and compel
behavioural change. Thus it is recommended that the sanctions committee under the AU must be
systematically strengthened so as to address human rights violations. Procedurally, the AU
sanctions committee must adhere to due process principles as discussed earlier.
4.4 Conclusion
This thesis has sought to convey that economic sanctions require strategic design and
implementation within the framework of international human rights so as to improve their
impact. It has thus provided recommendations to address the same. However, an issue that
remains unresolved concerns remedies for wrongfully listed individuals and for victims of
humanitarian impact of sanctions. Resources permitting, perhaps the solution could lie in the
establishment of a separate organ/commission under the UN to consider and award rightful
claims. All in all, the challenge is that political will remains wanting. Nevertheless it is hoped
that an active role played by national/regional courts will provide substantial pressure for
reform.
___________________________________________________________________________
Word Count (excluding preliminary pages and bibliography): 19,998
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