Unilateral sanctions violate international treaties

Alfred de Zayas 2

Interview with Prof Alfred de Zayas, Geneva

 

At the end of their spring session the President of UN Human Rights Council appointed a special rapporteur who will investigate human rights violations in connection with unilateral coercive measures such as economic sanctions. This appointment had been prepared over years by investigations into the status of these sanctions as far as international law is concerned. With the majority vote of the Human Rights Council in favour of the resolution to install the special envoy this preparation phase has come to an end for the time being. (see Current Concerns of 10 March) International law expert Alfred de Zayas answers questions in the following interview, to what extent international law is violated by such unilateral measures.

Current Concerns: In your report to the Human Rights Council which you delivered personally on 10 September 2014, you refer to unilateral coercive measures such as economic sanctions as non-peaceful and as non-compliant with the aims and principles of the United Nations. What does that mean?

Prof Dr Alfred de Zayas: Not only unilateral coercive measures, but quite often also multilateral ones violate the spirit and letter of the UN Charter, in particular its preamble and Articles 1 and 2. The organisation rests on the principle of equality of all its member states. Unilateral sanctions and embargoes break numerous international treaties as well as “general principles of law of the various nations” (Statute of the International Court of Justice, Art. 38(1)(c)).

What are “general principles of law”?

These are principles of legality and legitimacy recognized by peoples and nations over the centuries, and building blocks of treaties and other agreements. Such principles constitute the “spirit of the law” (Montesquieu) and include good faith, ex injuria non oritur jus (estoppel), non-arbitrariness – all of which underpin the protection of state sovereignty, the prohibition of interference in the internal matters of other states, the freedom of international trade and the freedom of navigation, among others. Moreover, sanctions and embargoes violate the cardinal international judicial norm of pacta sunt servanda, since they hinder the compliance with valid treaties agreed upon according to international law. The extra-territorial application of national laws constitutes a new variant of colonialism, resulting in usurpation of sovereign competencies, bordering on annexation by means of over-extension of jurisdictional exercise of power.

Are there any UN resolutions which are violated by unilateral coercive measures?

Several resolutions of the UN General Assembly are violated, for-instance Resolution 2625 regarding friendly relations between states (24 October 1970), in the preamble of which the states agree “not to interfere with internal matters of another state”. This is “a crucial condition for the peaceful co-existence of nations”. Moreover they agree “to abstain from any military, political, economic or other coercion directed against political independence or territorial integrity of another state in their international relations …”

The General assembly emphasizes: “No State and no group of states has the right to intervene, directly or indirectly, for any reason whatever, in the internal or external affairs of any other State. Consequently, armed intervention and all other forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are condemned. 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 or to secure from it advantages of any kind.”

What is to be understood by “other forms of interference”?

For-instance, “the blockade of the ports or coasts of a State by the armed forces of another State” constitutes an aggression in violation of international law (General Assembly Resolution 3314, Article 3 c).

Are there  paertinent statements or resolutions  by the international community?

Unilateral coercive measures have been condemned by a majority of states on a regular basis in a variety of international fora including the UN General Assembly, for instance in the 23 resolutions of the General Assembly condemning the US embargo against Cuba (see Resolution 69/5 of 28 October 2014). Endorsing this resolution, a majority of states – 188 states voted for, two (USA and Israel) against it and three abstained – referred to the embargo in plain words as “illegal”.

This is an overwhelming majority …

In the debate at the General Assembly the representatives of the South American continent supported Cuba. Speaking on behalf of the Community of Latin American and Caribbean States (Celac), which all American countries except the USA and Canada belong to, Costa Rican UN envoy Juan Carlos Mendoza criticised the extraterritorial consequences of US blockade laws which also affect third parties. “The unilateral measures which were implemented as part of the blockade, harm numerous companies who trade with Cuba according to both international law and the rules of the World Trade Organisation (WTO).” The representatives of the non-aligned countries also condemned the sanctions against Cuba.

The driving force behind sanctions are the United States?

According to the US-Treasury official website the USA currently run 26 “Sanctions Programs” (www.treasury.gov/resource-center/sanctions/Programs).

The extraterritorial implementation of national laws, such as the Helms-Burton Act of 12 March 1996, violate the rights of third party states as well and have been condemned many times by the international community.

According to your comments, unilateral sanctions  breach a multitude of international law principles.

Yes, the question of their illegality is quite clear. The problem remains, how international law may be enforced in these circumstances. Up to now, there is no way for the UN to force one of the five permanent members of its Security Council to do what they do not want to do.

One possible approach would be via the state complaint procedure of the UN Human Rights committeee according to Article 41 of the International Covenant on Civil and Political Rights – that way the UN would have to deal with the matter.

What aspects of human rights may be violated by unilateral sanctions?

The right to live (Article 6 of the International Covenant on Civil and Political Rights), the right to security of person (Art 7 ICCPR), the right to due process (Art. 14 ICCPR). The sanctions against Iraq, Iran, Cuba, Sudan, Venezuela and Zimbabwe etc. have all caused deteriorations in the food supply situation in those countries and many people have died as a direct result of sanctions, due to lack of food, clean water, medicines and access to medical care. Moreover, the ability to practice economic and social rights as they are laid down in the International Covenant on Economic Social and Cultural Rights is hampered. Sanctions may also be in conflict with the Geneva Conventions and other treaties on international humanitarian law.

In this case, are the recent sanctions against Russia also problematic?

A clarifying advisory opinion by the International Court of Justice would be desirable in this regard, which would require a vote by the UN General Assembly pursuant to article 96 of the UN Charter. The ICJ should pronounce itself on the  different legal aspects of these sanctions and on their humanitarian consequences in more detail.

Provided sanctions are illegal, what does that mean for states supporting them?

This leads to the obligation to compensate, especially if human rights have been violated, in cases where sanctions have resulted in famine, violence, mass migration or ethnic cleansing. Pursuant to the erga-omnes principle – regarding all states – governments must neither endorse international crimes committed by other states nor support them financially or in any other ways. But again, as mentioned earlier, international law is not self-execuiting. For that to happen, the political will of the international community is required. Unfortunately, there is a pervasive lack of international solidarity.

Under which circumstances may sanctions be “legal”, or is there always a grey area?

There may be many “grey areas” in international law, but in this case the situation is a bit clearer. Article 41 of the UN Charter entitles the Security Council to impose sanctions, provided the Security Council has made a finding under Article 39 of the Charter that peace has been jeopardized. Such sanctions were implemented successfully in the fight against colonialism, racism and apartheid in Rhodesia/Zimbabwe and South Africa.

A weapons embargo may be perfectly legal if it is aimed at promoting peace and diplomatic solutions to a conflict. Weapons embargos should be imposed on all warring parties and at the same time the international community should actively work on a cease fire and towards negotiations in good faith. However, in most cases sanctions are not only ineffective but may prove counter-productive. Sanctions imposed on a state by the Security Council may not only deteriorate the humanitarian situation in this state but may even enhance corruption and crime.

What can be said in conclusion?

All sanction regimes – unilateral or multilateral – have to be scrutinized for their compliance with international law in paticular with human rights norms. Moreover, apart from being formally legal, sanctions have to fulfill objective criteria concerning the stated objective of the sanctions  and must respect the principle of proportionality. All sanction regimes have to be audited regularly – and if they violate human rights or have no positive impact, they have to be terminated. In a globalized world sanctions must not be imposed for the sake of geopolitical or economic interests, and if they violate the rights of people or states this creates state liability for adequate compensation of the victims.

What about most recent developments at the UN in this regard?

The Human Rights Council hosted a conference on this topic of unilateral and multilateral sanctions in May 2014, in which I participated actively. Former Humanitarian Coordinator in Iraq Denis Halliday blamed the senseless sanctions against Iraq (1991–2003) for the loss of more than a million human lives. The report of this workshop was discussed during the 27th session of the Human Rights Council in September 2014. Subsequently the Human Rights Council Advisory Committee was requested to perform a study to provide recommendations which have just recently been presented to the Council’s 28th session. At the same session, on 28 March, the Council appointed Mr Idris Jasairy, the former Algerian Ambassador to the United Nations, as Special Rapporteur on the  humanitarian consequences of sanction regimes.

What else can we all do against sanctions?

The media have an important role to play, especially in alerting the public about the adverse human rights impacts of sanctions regimes. Most citizens don’t  know what crimes are  committed by their own states , or which  consequences sanctions can have for innocent populations of other states. It is our responsibility to protest as citizens and say: “Not in our Name!” On 19 March a scientific conference was held in London which was attended by several professors from Oxford, London, Paris, and my-self. It concluded that sanction regimes create more problems than they could ever solve and that dialogue and UN mediation are better than punishing measures which hurt mainly the civilian populations. “Collateral” victims of sanctions regimes are entitled to international solidarity.

(Interview Thomas Kaiser)