Human Rights Council
10 February 2015
Agenda items 3 and 5
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Human rights bodies and mechanisms
Research-based progress report of the Human Rights Council Advisory Committee containing recommendations on mechanisms to assess the negative impact of unilateral coercive measures on the enjoyment of human rights and to promote accountability
I. Introduction 1–5 3
II. Scope of the report 6 4
III. Notion of unilateral coercive measures 7–13 4
IV. Negative impact of unilateral coercive measures on the enjoyment of
human rights 14–20 6
V. Case studies 21–42 8
A. Cuba 22–28 8
B. Zimbabwe 29–31 10
C. Islamic Republic of Iran 32–36 10
D. Gaza Strip 37–39 11
E. Impact of unilateral coercive measures on third States:
the case of Pakistan 40–42 12
VI. Potential mechanisms to assess the negative impact of unilateral
coercive measures and to promote accountability 43–58 13
A. Challenge of territorially and jurisdictionally limited obligations 47–51 13
B. The accountability imperative 52–54 15
C. Access to independent evidence 55 16
D. Consideration of financial and administrative efficiency 56 16
E. Need to secure the most appropriate expertise 57 16
F. Minimizing politicization 58 17
VII. Concluding remarks and recommended actions 59–66 17
1. In the light of the increasing concerns regarding the adverse impact of unilateral coercive measures on the enjoyment of human rights,1 the Human Rights Council, in its resolution 19/32, requested the Office of the United Nations High Commissioner for Human Rights (OHCHR) to organize a workshop to explore the issue of the relationship of unilateral coercive measures and human rights, including the various aspects of the negative impact of unilateral coercive measures on the enjoyment of human rights by the affected population, with the participation of States, academic experts and civil society representatives. The workshop, which was held in April 2013, examined the various issues and views relating to the issue, including the legitimacy of the said measures from the perspective of human rights. A number of conclusions and recommendations were submitted to the Council for its consideration, including a proposal that the Advisory Committee be tasked to conduct an overall review of independent mechanisms to assess the impact of unilateral coercive measures and to promote accountability.2
2. In its resolution 24/14, the Human Rights Council requested the Advisory Committee to prepare a research-based report containing recommendations on mechanisms to assess the negative impact of unilateral coercive measures on the enjoyment of human rights and to promote accountability. The present progress report, to be presented to the Council at its twenty-eighth session, was prepared pursuant to that request. In resolution 24/14, the Council also requested the Advisory Committee to seek the views and inputs of Member States and relevant special procedures, national human rights institutions and non-governmental organizations during the preparation of the report. It requested OHCHR to organize a workshop on the impact of the application of unilateral coercive measures on the enjoyment of human rights by the affected populations, in particular the socioeconomic impact on women and children, in the States targeted, and to prepare a report on the proceedings of the workshop and to submit it to the Council at its twenty-seventh session. Pursuant to that request, a workshop was held on 23 May 2014 in Geneva and the proceedings of the workshop submitted to the Council at its twenty-seventh session.3 The progress report has also greatly benefited from the outcomes of the workshop.
3. Pursuant to Human Rights Council recommendation 12/6, the Advisory Committee established a drafting group comprising Mikhail Lebedev, Obiora Chinedu Okafor, Ahmer Bilal Soofi, Jean Ziegler and Imeru Tamrat Yigezu. The drafting group elected Mr. Ziegler as Chairperson and Mr. Yigezu as its Rapporteur.4 The Committee requested the drafting group to submit a draft progress report to the Committee at its thirteenth session, taking into account the replies to the questionnaire prepared during the twelfth session and subsequently circulated to Member States, relevant special procedures, national human rights institutions and non-governmental organizations.
4. Accordingly, the drafting group submitted a draft progress report to the Advisory Committee at its thirteenth session, in August 2014.5 At the session, members of the Committee as well as States and non-governmental organizations provided useful comments and inputs on the draft report. In its decision 13/5 adopted at the session, the Committee took note of the draft progress report and requested the drafting group to recirculate the questionnaire prepared earlier in order to further seek the views and inputs of the various stakeholders so as to allow for more informed work. It furthermore requested the drafting group to finalize the draft progress report, taking into account the discussion held at its thirteenth session, and to submit it to the Human Rights Council at its twenty-eighth session.
5. As at November 2014, 12 States, one inter-governmental organization, one special procedure, three national human rights institutions and one non-governmental organization had responded to the questionnaire.6
II. Scope of the report
6. Pursuant to Human Rights Council resolution 24/14, the present report focuses on the adverse consequences of unilateral coercive measures on the enjoyment of human rights by the civilian population of targeted States and includes recommendations on the appropriate mechanism that may be used to assess the negative consequences of such measures and to promote accountability. The question of the legality of unilateral coercive measures, therefore, does not fall within the scope of the report. This issue has already been extensively examined in the thematic study of OHCHR on the impact of unilateral coercive measures on the enjoyment of human rights,7 and was also a subject of discussion during the two workshops organized by OHCHR in April 2013 and in May 2014 at the request of the Council.8
III. Notion of unilateral coercive measures
7. The term “unilateral coercive measures” is a recent one. It has been used broadly to include measures such as “unilateral economic sanctions”, “unilateral economic measures” and “coercive economic measures” in various studies on the subject, as well as in United Nations documents and resolutions. To date, the term “unilateral coercive measures” does not seem to have a commonly agreed-upon definition. Despite the intensive discussion that the term has triggered among scholars and within the different bodies of the United Nations in recent decades, the definition used for the term and, particularly the main elements to be used for describing the term, remain elusive in certain respects.
8. The most commonly used definition of the term is “the use of economic measures taken by one State to compel a change of policy of another State”.9 Some recent studies thereon, however, tend to hold the view that the term “unilateral” may be used in a broader sense to include States, group of States and “autonomous” regional organizations, unless such measures are authorized under Chapter VII of the Charter of the United Nations.10 In a recent article, one author stated that “…one can distinguish the unilateral sanctions practice of individual states and organizations – such as the EU, the US, Canada or Japan – from the mandatory sanctions of the [Security Council]”.11 This approach to defining unilateral coercive measures currently seems to have, more or less, gained support. Owing to the current increased use of what are referred to as “targeted” or “smart sanctions” employed by States against individuals, groups and/or entities believed to be in a position of power to influence or determine actions in targeted States, defining the term “unilateral coercive measures” should also consider taking these categories of persons or entities into account.
9. On the basis of the above considerations, the working definition of the term “unilateral coercive measures” preferred for the purposes of the present study is “the use of economic, trade or other measures taken by a State, group of States or international organizations acting autonomously to compel a change of policy of another State or to pressure individuals, groups or entities in targeted states to influence a course of action without the authorization of the Security Council”.
10. Sanctions, including unilateral coercive measures employed by States, take different forms or a combination of measures, ranging from the restriction or disruption of trade, or financial and investment flows between sender and targeted countries to restrictions on social and cultural exchanges.12 Most of these categories of sanctions, usually called traditional or comprehensive sanctions, involve coercive measures intended to impose economic pressure on targeted States by preventing them from importing or exporting certain goods and services deemed strategically important, or more specifically target banking and financial sectors of targeted States. “Targeted” or “smart sanctions” are regarded as new forms of coercive measures aimed at applying pressure to persons or entities thought to hold political decision-making power in targeted Governments or persons deemed to engage in terrorism or other forms of violence and whose behaviour is thought to be undesirable from the perspective of the sender State. These sanctions may comprise the freezing of assets or travel bans on individuals, groups or entities in targeted countries; they may also target particular commodities from being exported from targeted States or entering such States (such as diamonds or luxury goods, or arms embargoes).13
11. Different sanctions imply a different negative impact on human rights. The motivations for sanctions may vary significantly, and in some case are even used as a geopolitical weapon. It seems almost certain that reshaping local and global markets, destroying competitive economies, challenging sovereign credibility and leadership, endangering conciliatory talk, destabilizing Governments and transforming independent countries into failed States may induce a downturn in global economic growth. Such situations may in turn lead to negative consequences for the livelihood of disadvantaged populations in sanctioned countries, including in the country of origin of the sanctions.
12. Unilateral coercive measures that are comprehensive in nature are intended to cause economic and political hardship for targeted States; they therefore make no real distinction between States and the civilian population, including women and children and other marginalized groups, residing in targeted States, who bear the brunt of such severe economic hardship. Consequently, comprehensive unilateral coercive measures usually have an adverse impact on the enjoyment of human rights by the civilian population of targeted States, disproportionately affecting the poor and vulnerable groups in society, particularly in terms of access to food, health care and basic livelihood, contrary to the political declarations of the initiators and, as such, leading to or constituting the root cause of furthering the encroachment and limitation of and restrictions on numerous human rights and fundamental freedoms enshrined in universal instruments.
13. “Targeted sanctions” are, by contrast, designed to apply economic pressure to selected individuals or entities and may therefore not entail negative consequences for the enjoyment of human rights by the civilian population at large. This by no means implies that targeted sanctions do not give rise to violations of human rights of the individuals or entities targeted, particularly with regard to their civil and political rights.14 Since comprehensive sanctions are the ones that usually have negative consequences on the enjoyment of human rights by the civilian population of targeted States, however, the present study focuses mainly on such measures.
IV. Negative impact of unilateral coercive measures on the enjoyment of human rights
14. In several resolutions and declarations adopted by United Nations entities human rights bodies, including the Commission on Human Rights, increasing concerns were expressed about the negative impact of sanctions, including unilateral coercive measures, on the enjoyment of human rights, particularly their negative impact on the human rights of the civilian population of targeted States and, even more so, on such vulnerable groups as women, children, older persons and minorities.15 The Human Rights Council has followed this trend.16
15. There is general consensus that unilateral coercive measures, particularly those that are comprehensive in nature and manifested in the form of trade embargoes and restrictions on financial and investments flows between sender and target States, may have a serious impact on the enjoyment of human rights by the civilian population in targeted and non-targeted States alike. This is so because economic sanctions in general, including unilateral coercive measures, irrespective of their declared intent (such as preventing gross violations of human rights in targeted States), usually translate into a severe impact on the population at large, and in particular vulnerable groups in the society who become the true victims of such sanction rather than the States or Governments they are supposed to target.17 In this regard, the Committee on Economic, Social and Cultural Rights, in its general comment No. 8, on the relationship between economic sanctions and respect for economic, social and cultural rights, declared that the inhabitants of a given country do not forfeit basic economic, social and cultural rights by virtue of any determination that their leaders have violated norms of international peace and security.18 Although this comment seems to apply to sanctions adopted by the Security Council, it applies equally to unilateral coercive measures.
16. Several human rights obligations of States incorporated into the various core international human rights instruments provide limitations on unilateral coercive measures that have an impact on the enjoyment of human rights by the civilian population in targeted States. These include, inter alia, the right to life;19 the right to an adequate standard of living, including food, clothing, housing and medical care;20 and the right to health.21 In this regard, the Vienna Declaration and Programme of Action called upon States:
to refrain from any unilateral measures not in accordance with international law and the Charter of the United Nations that creates obstacles to trade relations among states and impedes the full realization of the human rights set forth in the Universal Declaration of Human Rights and in international human rights instruments, in particular the rights of everyone to a standard of living adequate for their health and well-being, including food and medical care, housing and the necessary social services.22
17. Previous studies conducted at the request of the Subcommission on Human Rights and by the Human Rights Council already documented the likely negative impact of unilateral coercive measures on the civilian population of targeted and non-targeted States, and included case studies documenting the impact of such measures. These studies clearly indicated the likely and actual negative impact of unilateral coercive measures on the civilian population, particularly on vulnerable groups, including women, children, the infirm and older persons, as well as the poor, caused by the deprivation of access to basic services, such as life-saving equipment and medication, food, educational equipment and the loss of jobs. They also pointed out that long-term unilateral coercive measures have a more severe negative impact on the economic, social and cultural rights of the affected population enshrined in the core human rights instruments, such as the Universal Declaration of Human Rights and the International Covenant on Economic, Social and Cultural Rights.23
18. In this regard, the presentations made during the workshops organized by OHCHR in April 2013 and May 2014 highlighted some of the negative effects of both multilateral and unilateral coercive measures on the enjoyment of human rights by the civilian population, particularly the disproportionate impact such measures have on women and children. One of the panellists stressed that the impact of unilateral coercive measures was more deeply felt by women and marginalized communities, and that women were the first to lose jobs, to be moved out of higher education, suffer from malnourishment and face food insecurity. He also gave specific relevant examples of the plight of women and children in the Islamic Republic of Iran and Cuba.24 In several of the presentations made at the workshop held in May 2014, the negative impact of both multilateral and unilateral coercive measures was unequivocally shown on the enjoyment of human rights in targeted and non-targeted States and, in particular, by women, children, minorities, older persons and persons with disabilities. Panellists cited examples of such impact in States such as Iraq, the Islamic Republic of Iran, the former Yugoslavia, Haiti and Myanmar.25
19. Almost all the responses to the question regarding the impact of unilateral coercive measures on the enjoyment of human rights underlined the fact that such measures often had a negative impact on the civilian population of targeted and non-targeted States and, in particular, on women, children, older persons and persons with disabilities. The examples given by the respondents with regard to the human rights affected by unilateral coercive measures included the rights to life, food, health, work and education, as well as to the right to development. They also pointed out that the negative impact of unilateral coercive measures on targeted States was compounded where such a State was, to a greater degree, economically dependent on the State that imposed the measure.
20. In several studies and reports, attention was drawn to the difficulty of assessing the impact of unilateral coercive measures, particularly those that are comprehensive in nature. They recommended a more robust and independent mechanism to assess and monitor the impact of such measures, including by promoting accountability in this regard.26 Some of the reasons that give rise to this challenge are the restrictions on access to the target country in which sanctions are imposed, and the difficulty to distinguish the negative impact of unilateral coercive measures on the enjoyment of human rights by the affected population when such measures are imposed in conjunction with multilateral sanctions. When considering an appropriate mechanism for the assessment and monitoring of the negative impact of unilateral coercive measures on the enjoyment of human rights, it is hence essential to establish a body that, as far as possible, may have access to targeted States in which human rights are likely to be affected by such measures and with adequate expertise to undertake such a task.
V. Case studies
21. To date, few case studies on the impact of unilateral coercive measures on the enjoyment of human rights by the civilian population in targeted or non-target States have been available. The case studies below, which are well documented, serve to highlight some of the main adverse effects of unilateral coercive measures on the enjoyment of human rights in target and non-targeted States.
22. The economic sanctions on Cuba were initially imposed by the United States of America in the 1960s, and were subsequently amended by the Cuban Democracy Act of 1992 and the Helms-Burton Act of 1996, as well as other legislative and executive acts. These acts essentially impose an economic, commercial and financial embargo on Cuba.27
23. In the United States, Congress passed the Trade Sanctions Reform and Export Enhancement Act in October 2000. The Act eased somewhat the enforcement of the embargo and allowed the sale of agricultural goods and medicine to Cuba for humanitarian reasons. From 2005 onwards, exports to Cuba were required to be on a cash-in-advance basis, with full payment made before the products were shipped to Cuba; transactions had to be made through banks in a third country. In 2009, the Government of the United States eased the restrictions by allowing the Government of Cuba to pay for food and agricultural products after the shipment was made.28
24. The embargo of the United States on medicines and technologies in Cuba has led to limitations of the enjoyment of human rights by citizens in Cuba. Amnesty International has shown, on the basis several fact-finding reports, that the embargo had contributed to malnutrition that mainly affected women and children, poor water supply and lack of medicine.29 The United Nations High Commissioner for Human Rights described the effect of the embargo on Cuban people as “disastrous”.30 According to the American Association for World Health, which conducted a detailed health survey in Cuba, the embargo on food and the de facto embargo on medical supplies had wreaked havoc with the island’s model primary health-care system.31
25. According to the United Nations Children’s Fund (UNICEF), Cuba is unable to import nutritional products intended for children and for consumption in schools, hospitals and day-care centres.32 In addition, food shortages are linked to a devastating outbreak of neuropathy numbering in the tens of thousands. By one estimate, daily caloric intake dropped by 33 per cent between 1989 and 1993.33
26. The embargo also restricts the State’s access to water treatment chemicals and spare parts for the island’s water supply system. This has led to serious cutbacks in the supply of safe drinking water, which in turn has become a factor in the rising incidence of morbidity and mortality rates due to water-borne diseases.
27. Access to essential medicines and equipment has also been affected by the sanctions. Of the 1,297 medications still available in Cuba in 1991, physicians now have access to only 889, and many only occasionally. Because most major new drugs are developed by United States pharmaceutical companies, Cuban physicians have access to less than 50 per cent of the new medicines available on the world market. Owing to the direct or indirect effects of the embargo, the most routine medical supplies are in short supply or entirely absent from some Cuban clinics.34 In the case of patients with psychiatric disorders, advanced drugs are also not available. The embargo imposed against Cuba not only affects the supply of medicine. Health services depend on functioning water and sanitation infrastructure, electricity and other equipment, such as X-ray equipment and refrigerators to store vaccines. The embargo has also slowed down the renovation of hospitals, clinics and care centres for older persons.35
28. According to the Government, the State is forced to pay above-market prices and tariffs on goods purchased and shipped from distant markets, while the blockade imposes difficult terms on credit and trade and blocks access to many goods and technologies. It is estimated that the embargo on Cuba creates a virtual tax of 30 per cent on all imports.36