Research on the Regulation for US’s Unilateral Economic Sanctions from the Perspective of Human Rights

"Unilateral economic sanctions refer to the sanctions unilaterally imposed by the country initiating the sanctions." Unilateral economic sanctions are regarded as a kind of unilateralism, which not only impedes international peace and development, but also disrupts the order of international law, and is considered as an act of a country only considering its own interests. According to statistics, there were a total of 187 international economic sanctions from World War I to 2006, including 117 unilateral economic sanctions, of which 75 ones were imposed by US. The unilateral economic sanctions imposed by US have raised ongoing issues on human rights and humanitarian. This article aims to resolve how to regulate the violation of human rights by US’ unilateral economic sanctions

I. The Violation of Human Rights by US’s Comprehensive Sanctions

When imposing comprehensive sanctions, US usually indiscriminately imposes sanctions on the ordinary people of the sanctioned country by means of economic blockade or trade embargo. As a result, the sanctioned country is in economic paralysis and unable to guarantee its people’s basic living materials, which violates the basic human rights of the sanctioned people, including the right to life, the right to health and the right to an appropriate standard of living. For example, the comprehensive sanctions imposed by US on Cuba have brought significant economic losses to Cuba. As of March 2020, the nearly 60-year-long blockade imposed by US on Cuba has resulted in the cumulative losses of over $144.4 billion, and the losses will exceed $1 trillion if the depreciation of dollar against the price of gold is taken into account in the international market. The comprehensive sanctions against Cuba imposed by US are still going on, and the huge economic losses caused by sanctions have directly affected the basic livelihood and welfare of Cuban people. The comprehensive sanctions imposed by the United States on Haiti during the period from 1991 to 1994 also caused disastrous consequences for Haiti. During the sanctions, Haiti's trade suffered sharp drop, the government's fiscal deficit was soared, the unemployment rate and inflation rate were significantly increased. According to the survey, it’s estimated that at least 1,000 children die every month in Haiti as a result of the sanctions.

II. The Violation of Human Rights by US’s Targeted Sanctions

Targeted sanctions, also known as "smart sanctions" and mainly targeting at specific individuals or entities, prevent the ordinary people of the sanctioned country from bearing the adverse consequences of economic sanctions. However, since targeted sanction did not take into account the protection of individual rights from the very beginning, its violation on individual or entity rights is becoming increasingly serious, and even shows the tendency to trace back to comprehensive sanctions.

First, targeted sanctions violate the property right, personal right and reputation right. US’s targeted sanctions not only target at individuals or entities, but also family members, employees and service users of the sanctioned party, generally by the means of asset freezing, travel bans and other sanction measures. If individuals or entities are included on the sanction list, their personal right to travel will be banned, and their freedom of movement will be seriously disrupted. In terms of property right, the subsequent lives of the sanctioned subjects will be affected if their personal assets are frozen. In addition, it will greatly damage the reputation of both individuals and enterprises once being listed as sanctioned subjects.

Second, the imposition of targeted sanctions lacks the requirements of "due process". At the operational level, targeted sanctions include the sanctioned targets in various sanction lists, known as Designation. In the listing process, US will not disclose too much information when initiating the listing process based on the requirements for confidential information, and the process of formulating and operating sanctions is extremely opaque. In this situation, the sanctioned subjects have no opportunity to defend themselves and are often "declared guilty" without any trial process. In order to encourage the sanctioned subjects to change their behaviors, the US government gives individuals and entities on the sanction list the opportunity to be removed from the list, known as De-listing. However, it’s more difficult to successfully remove a person from the sanction list, making it harder for individuals or entities to receive effective relief after their property and personal rights are damaged.

III. The Regulation of International Human Rights Law on Unilateral Economic Sanctions

(1) Main legal basis for regulating unilateral economic sanctions by international human rights law

There are already provisions regarding the relationship between sanctions and human rights at the level of UN. It’s stressed in the Declaration on Principles of International Law Concerning Friendly Relations and Cooperation among States in accordance with the Charter of UN, the Charter of Economic Rights and Duties of States, and the Declaration on the Inadmissibility of Intervention and Interference in the Internal Affairs of Other States adopted by UN that no country shall use or encourage the use of economic, political or other measures to compel another country to submit to the exercise of its sovereign rights. The Vienna Declaration and Programme of Action called on avoiding the unilateral measures that would impede the full realization of the human rights listed in the Universal Declaration of Human Rights and international human rights instruments.

There are a large number of international conventions placing human rights protection in an important position in the international human rights legal system. For example, it’s stipulated in article 6 under the International Covenant on Civil and Political Rights that the right to life shall not be arbitrarily deprived, and it’s stipulated in article 4 that the right to life shall not be deducted even if the society is in public emergency and national security is threatened. The International Covenant on Economic, Social and Cultural Rights requires contracting parties to take steps to the best of their ability or through international assistance and cooperation to gradually achieve the full realization of the rights recognized in the Covenant, but economic sanctions are completely incompatible with the requirements of international assistance and cooperation. Any unilateral coercive measure imposed against a country will inevitably violate some provisions of the International Charter of Human Rights or mandatory provisions of customary law, and such measure will have varying degrees of adverse effects on the enjoyment of human rights by innocent people.

(2) The main ways to regulate unilateral economic sanctions by international human rights law

Since the 1980s, UN has continuously reviewed the negative impact of unilateral economic sanctions on human rights, and condemned such issue through General Assembly resolutions, the establishment of special rapporteur procedure, and the promotion of declarations.

Condemn the negative impact of unilateral economic sanctions on human rights through resolutions

UN has passed numerous resolutions on regulating unilateral economic sanctions, with the main topics concerning: (1) Human rights and unilateral coercive measures; (2) Use unilateral economic measures as the means to impose political and economic coercion against developing countries; (3) Necessity of ending the economic, commercial and financial blockade imposed by US against Cuba. The above resolutions generally recognize that any unilateral coercive measure would inevitably violate certain provisions of the International Bill of Human Rights, including the right to life, the right to health and the right to an appropriate standard of living. The international community is urged to take measures to prohibit some developed countries from unilaterally using the economic coercive measures that are neither authorized by relevant UN agencies nor consistent with the principles of the Charter of UN, against developing countries.

Propose "six standards" for regulating unilateral economic sanctions

On June 21, 2000, Mr. Marc Bossuyt submitted his work report on the Negative Impact of Economic Sanctions on the Enjoyment of Human Rights to the Promotion and Protection of Human Rights Sub-commission with a view to introduce the human rights and humanitarian issues related to sanctions into international dialogue. The Report has put forward "six standards" for reviewing economic sanctions, which are: first, adequate and valid reasons for sanction; second, proper sanction target; third, appropriate sanctioned subject; fourth, reasonable time; fifth, effective sanction; sixth, public support.

Appoint Special Rapporteur for the negative impact of unilateral coercive measures on the enjoyment of human rights

On September 26, 2014, the Human Rights Council decided to appoint a Special Rapporteur for the negative impact of unilateral coercive measures on the enjoyment of human rights. The task of the Special Rapporteur is to collect all information related to unilateral coercive measures violating human rights, study relevant trends, dynamics and challenges, and develop guidelines and make recommendations; promote the establishment of an accountability mechanism for unilateral coercive measures; assist in strengthening the capacity of the Office of the High Commissioner for Human Rights to prevent, reduce and remedy the negative impact of unilateral coercive measures on human rights.

Promote the establishment of UN General Assembly Declaration on Unilateral Coercive Measures and the Rule of Law

In 2019, the Special Rapporteur submitted the draft of UN General Assembly Declaration on Unilateral Coercive Measures and the Rule of Law to the Human Rights Council with the aim to establish an international consensus on the minimum human rights protection that must be applied when adopting unilateral coercive measures. It’s confirmed in the draft that unilateral coercive measures and their extraterritorial application violate the Charter of UN, the norms and principles for peaceful relations between states, and the human rights of sanctioned subjects. The draft specified the "rules of conduct" to be applied by the country imposing sanctions during the transitional period prior to the abolition and cancellation of unilateral sanctions, such as ensuring effective humanitarian immunity mechanism and providing due process guarantees and judicial review mechanisms to the groups affected by sanctions. The draft is still under consideration.

IV. Prospects for Regulating Unilateral Economic Sanctions under the Framework of UN

(1)    Accelerate the development of international rules related to unilateral economic sanctions

In the absence of further improvements in the international dispute settlement mechanism reform and the rules of national responsibility, the prevalence of unilateral economic sanctions can be curbed by promoting international consensus on unilateral economic sanctions. The urgent task is to confirm the legitimate and reasonable standards for unilateral economic sanctions through international rules, and strengthen the legal binding force of UN’s measures in regulating unilateral economic sanctions.

Establish the mechanism for reviewing the legality of unilateral economic sanctions

The Office of UN High Commissioner for Human Rights has elaborated the basic principles for reviewing the legality of unilateral coercive measures in the Thematic Study on the Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights submitted to the Human Rights Council. International human rights law, international humanitarian law, and customary international law and general principles on state sovereignty and non-interference have provided legal basis for reviewing the legality of unilateral economic sanctions. Reviewing the legality of unilateral economic sanctions also needs to review whether the implementation of unilateral economic sanctions meets the requirements of due process from the procedural perspective. The sanction procedure review elements established by UN Economic Sanctions Committee and UN General Assembly Declaration on Unilateral Coercive Measures and the Rule of Law provide a basic model for implementing the procedure review for unilateral economic sanctions. When reviewing the legality of unilateral economic sanctions, minimum human rights protection and humanitarian considerations in the sanctions should be considered as the review standard. The universal periodic review mechanism and individual complaint mechanism in UN human rights protection mechanism, as well as the humanitarian exception mechanism and the assistance mechanism for the economic impact on third countries established in UN economic sanctions mechanism, should be considered as elements for reviewing the legality of unilateral economic sanctions.

Regulate the customary international law access for unilateral economic sanctions

As mentioned earlier, UN has passed numerous resolutions condemning the violation of human rights by unilateral economic sanctions. It’s pointed out in the conclusion draft on the topic of "Identification of Customary International Law" contained in the Report of UN International Law Commission that the resolutions of international organizations or conferences may serve as the evidence of customary international law or contribute to its development, although these resolutions themselves do not constitute customary international law. Taking the resolutions on the theme of "human rights and unilateral coercive measures" as an example, the UN General Assembly had successively passed resolutions on denying the legality of unilateral economic sanctions in the 27 years from 1996 to 2022, which can already be seen as state practice and opinio juris to constitute a rule of customary international law. According to the conclusion draft, the form of state practice and the form of evidence accepted as law (opinio juris) include the acts related to resolutions adopted by international organizations or at intergovernmental conferences. Conclusion 12 of the draft has also explicitly stated that the resolutions passedby international organizations or at intergovernmental conferences may provide evidence for determining the existence and contents of a rule of customary international law or promote its development.

Clarify the human rights obligations of the countries imposing unilateral economic sanctions The Committee on Economic, Social and Cultural Rights has defined the human rights obligations to be fulfilled by the parties involved in sanctions, and required the countries initiating economic sanctions to: first, fully respect and safeguard human rights when formulating sanctions regimes; secondly, make effective supervision throughout the period in which sanctions are imposed and guarantee people's economic, social, and cultural rights free from being affected with best efforts; third, alleviate the suffering of vulnerable groups in the sanctioned countries through international assistance and cooperation. Based on this obligation framework and specific circumstances of unilateral economic sanctions violating human rights, the human rights obligations to be fulfilled by the countries initiating economic sanctions include the following aspects: first, ensure the humanitarian exception in the comprehensive sanctions; second, prohibit the expansion of economic sanctions to innocent third countries, and fully fulfill the extraterritorial obligations for state human rights; third, ensure the minimum due process guarantee during the implementation of economic sanctions.

Establish the human rights impact assessment mechanism for economic sanctions

Emerged in the late 1990s, Human Rights Impact Assessments (HRIA) was designed to predict and measure the impact of a policy or program on human rights, which contributes to determining the rights and obligations of responsible parties. The assessment of the effects of economic sanctions on human rights should be divided into three stages: first, the assessment before sanction, namely, assess whether the reasons for sanctions are valid and sufficient, and whether the sanction targets and subjects are proper; second, the assessment during the sanction process, namely, monitor whether the sanction has achieved the expected effects, how the international community evaluates the sanction, and whether it’s necessary to suspend or stop the sanction; third, the assessment after sanction, that is, measure the actual impact of the sanction being imposed and guarantee necessary measures for remedies and compensation. This mechanism is ideally to be established by an independent third party, such as the UN General Assembly or the Human Rights Council, to ensure the fairness, independence and transparency of the human rights impact assessment mechanism.

(3) Strengthen the enforcement of UN's collective decisions on economic sanctions

The Charter of UN has established the purpose of pursuing and maintaining collective security, and endowed the Security Council with the responsibility of maintaining international peace and security. In order to achieve this goal, the Security Council must have the ability to forcibly maintain or restore peace. This ability mainly includes two aspects: "first, the decision-making ability to apply collective coercion, and the decision-making should be centralized and unified; second, the ability to enforce sanctions, the enforcement must obey centralized and unified orders whether in the hands of the organization directly or individual member states.” In terms of economic sanctions, UN has concentrated the decision-making power of sanctions on the Security Council, which has not only effectively cracked down internationally wrongful acts, but also effectively controlled and regulated sanctions so that all countries to exercise them unanimously. The UN’s economic sanctions mechanism has been recognized and respected by member states who even regard whether the economic sanctions comply with certain principles and regulations of UN as the legal basis. Even US, which is committed to establishing unipolar hegemony, needs to seek the 'legal' name for its actions through UN. To effectively maintain international peace and security, it is necessary to strengthen the UN's enforcement power on collective decisions and uniformly impose economic sanctions under the framework of UN.

Conclusion

It has become the consensus of the international community that the unilateral economic sanctions imposed by US have significant human rights risks and will result in humanitarian disasters. It’s important and urgent to regulate unilateral economic sanctions through the legal system of international human rights to prevent the occurrence of humanitarian disasters. In addition to the traditional international human rights conventions, UN has taken measures to regulate unilateral economic sanctions, which may serve as a deterrent. Strengthen the enforcement of UN's collective decisions on economic sanctions and incorporate unilateral economic sanctions into the multilateral mechanism of UN to break through the limitations of countries in response to the unilateral economic sanctions imposed by US. The abuse of economic sanctions can be truly limited if only the international community works together to accelerate the development of international rules related to unilateral economic sanctions and establish applicable minimum human rights protection standards when imposing unilateral economic sanctions under the framework of UN.

(The author is researcher at Human Rights Institute, Southwest University of Political Scienceand Law)