HUMAN RIGHTS IMPLICATIONS OF TARGETED SANCTIONS

By




 

The Collective Security order evolved alongside History, towards a system where threats to the peace can be dealt with thanks to non-military measures, such as sanctions.  These measures can be found in Article 41 of the UN Charter, their function is to pressure countries that threaten international peace and security, to correct their policies without engaging in an armed conflict.

Sanctions themselves have evolved, from comprehensive sanctions, which target the State as a whole, to targeted or smart sanctions, which are aimed more specifically at groups or individuals. The shift to targeted sanctions started with the UDHR of 1948, which placed emphasis on human rights.  Issues were raised about the compatibility of achieving peace and security, and human rights (Tsagourias, 2013).  The importance of human rights in the context of sanctions became even more striking in the 1990s, especially after the operations in Iraq, which caused suffering to thousands of innocent civilians (Daniel, 2011).  This led the Security Council to take targeted sanctions, to minimize the collateral damages caused to populations.

Since 2011, the Security Council (SC) has taken different Resolutions concerning Libya, imposing sanctions that are still applied today (arms embargo, assets freeze, and travel ban).  This paper will focus on the Security Council Resolution 2362 (29 June 2017).  In light of the particular situation in Libya, the paper will address the human rights implications of targeted sanctions on the affected individual’s human rights.  To answer that question, it is useful first of all to explain how the Security Council is entitled to take these measures.  This leads to the assumption that human rights violations are perpetrated by lawful acts.  Secondly, the essay will focus more on the human rights violations themselves, and on the International Organizations’ point of view.

I.               The Security Council and targeted sanctions as a matter of concern to international human rights law

The legal basis for measures such as sanctions is to be found in the UN Charter, under Chapter VII.  After acting under Article 39 to determine a threat to international peace and security, Article 41 allows the SC to decide on non-military measures to be used to implement its decisions, and gives some examples of sanctions.  Article 25 of the UN Charter, related to Article 41, seems to indicate by using the language of sovereignty, that these measures are binding over the member States.

Another evidence of the binding character of the sanctions taken by the SC is the vocabulary used in its resolutions.  As mentioned before, the main Resolution in this paper is the one that the SC took in June 2017 about Libya: Resolution 2362.  In this particular Resolution, the Council uses a strong vocabulary: it ‘stresses’, ‘condemns’, ‘urges’, and ‘decides’.  There is clear evidence that these measures cause human rights violations (Daniel, 2011).  However, there is also proof that the SC recognizes its human rights obligations.  First, it does not take comprehensive sanctions imposed on States anymore, and moves to more targeted sanctions, against individuals deemed responsible for threats to international peace and security (Tsagourias, 2013).  Secondly, in light of Resolution 2362, it seems like the SC is taking precautions.  Indeed, it recalls twice that it is ready to review the measures in its decisions if appropriate (UN Security Council Resolution, 2017)

There are other elements to take into account.  There exist derogations from certain human rights obligations.  Under International Treaty Law, States can derogate from some of their obligations, as long as they do so exceptionally and temporarily.[1]  Some argue that the General Assembly should have applied this logic to the SC when it had the chance.[2]  Indeed, even if the SC is not bound by the ICCPR, it should still follow the principles allowing States to temporarily derogate from certain human rights obligations in emergency situations, such as threats to international peace and security.

Another element is Article 103 of the UN Charter.  It is a supremacy clause: the provisions of the UN Charter shall prevail over other treaty obligations.  Some have interpreted that this article can be used to override other treaties’ obligations, the issue is therefore whether this article could allow the Security Council to override the human rights obligations of member States (Tsagaurias, 2013).  An illustration of this issue is the General Comment No.8 about the Iraqi situation.  It was argued that humanitarian law was not applicable, because there was no intention to violate any human rights.[3]

II.            Interpretations related to human rights violations and the need for progressive reforms

Comprehensive sanctions were indeed a greater risk to human rights than targeted sanctions, but it does not mean that these targeted sanctions don’t violate the human rights of those targeted. Several cases are evidence of this reality, the reality that Kelsen considers an inherent component part of any legal order, including one providing collective security (Tsagourias, 2013).  In a first case from the ECJ, ‘Organisation des Modjahedines du peuple d'Iran’ (2006)[4], the Court held that fundamental rights and safeguards, including the right to a fair hearing, the obligation to state reasons, and the right to effective judicial protection, had been violated.[5]  The first relevant case was issued by the Human Rights Committee in 2008: Sayadi and Vinck v. Belgium.[6]  In this case, it is confirmed that targeted sanctions are administrative measures and not criminal ones, it was therefore argued that there were no fair trial requirements issues.  However, the Committee found that the right to privacy and freedom of movement had been violated.[7]

However, in the Kadi cases, the ECJ found that the European Regulation giving force to the SC Resolutions imposing sanctions infringed the right to fair trial and property rights of the targeted individuals.[8]  With this case arose a conflict between European Union Treaties and Article 103 of the UN Charter.  Indeed, it could be said that the European Union instances are indirectly bound by Article 103 of the Charter, but it would mean that the Charter’s obligations prevail over other obligations, such as human rights obligations for instance.  The European Regulation was still annulled, which seems to suggest that the ECJ does not consider itself bound by Article 103 of the UN Charter.  Due to the issues raised by listing individuals, the Security Council established a non-judicial mechanism: the ombudsperson.[9]  This international mechanism allows listed individuals to claim a wrongful listing.  Some could argue that this ombudsperson does not meet Kadi’s requirements, some others consider that the slow process of judicial challenge would undermine the effectiveness of the sanctions regime (Tsagourias, 2013).

There exists other evidence of the existence of human rights violations.  Studies have underlined that even targeted sanctions could have side effects on others.  In the case of Libya, it has been shown that a trade ban leads to a devaluation of the local currency, but also to unemployment. Studies show that unemployment leads to human trafficking, and to prostitution.  Furthermore, there is an obvious tendency to flee to other countries, to find a situation where the living conditions are not as bad as in Libya or countries of origin (Mariam, 2017).  This could pose an issue if the population blamed the United Nations for imposing sanctions – this is what happened in 2014 when the Russians supported their Government even more after the sanctions had fallen (Guy, 2017).

           III. Conclusion and general observations

Today, human rights are still being violated because of measures like sanctions.  However, the improvement is important.  Indeed, extensive sanctions are more detrimental to human rights (economic impact on civilians, public health, living conditions, on education) than targeted or smart sanctions (Dursun, 2017).  The Security Council took that into account and its practice changed: nowadays, most sanctions are targeted ones.  The Resolution which is emphasized in this paper is also good proof of the fact that the Security Council is now more concerned about human rights.[10]   Indeed, the Preamble insists on the importance of prosecuting human rights violators, which is the state’s responsibility.  These rights are not absolute, there is a necessity to strike a fair balance between them and international obligations and the need to tackle threats to international peace and security (Elizabeth, 2006).  This is why there is still this possibility, for the Security Council, to temporarily override some due process rights when faced with a threat.  However, it is important to make sure that these temporary and preventive measures do not become punitive measures, for a long time, or there will be a need to protect fully the individuals’ due process rights (Tsagourias, 2013).

To conclude, one could argue that the balance to strike is just like any other human rights dilemma.  Indeed, if the targeted individuals become targets, it is because they are a risk to society, therefore the listing procedure protects the rest of the population’s right to life, meaning a normal and quiet one, for instance, which is to be balanced with the targets’ rights to a fair trial, to property, and their freedom of movement.

 

Bibliography

Daniel W. Drezner, ‘Sanctions Sometimes Smart: Targeted Sanctions in Theory and Practice’, (2011), International Studies Review 13.

Dursun Peksen, ‘Better or Worse? The Effect of Economic Sanctions on Human Rights (2009), Journal of Peace Research, vol. 46, no. 1, 2009, pp. 59–77, Sage Publications.

Elizabeth F. Defeis, ‘Targeted Sanctions, Human Rights, and the Court of First Instance of the European Community’ (2006), Fordham International Law Journal, Volume 30, Issue 5, Article 5.

Guy Grossman, Devorah Manekin, & Yotam Margalit, How Sanctions Affect Public Opinion in Target Countries: Experimental Evidence from Israel (25 November 2017).

Maram Daoud, ‘Unintended consequences of multilateral targeted sanctions — Case Study: Libya 2011 until today’ (CCSI, 31 May 2017) accessed 3 January 2018.

 Nicholas Tsagourias & Nigel D. White, Collective Security: Theory, Law and Practice (Cambridge University Press, 2013).

UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 8: The relationship between economic sanctions and respect for economic, social and cultural rights, 12 December 1997,   E/C.12/1997/8, http://www.refworld.org/docid/47a7079e0.html.

 


[1] Article 4 of the International Covenant on Civil and Political Rights (ICCPR)

[2] GA Res. 64/168 and 65/221 (2010).

[3] UN Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 8: The relationship between economic sanctions and respect for economic, social and cultural rights, 12 December 1997, E/C.12/1997/8, http://www.refworld.org/docid/47a7079e0.html.

[4] ‘Organisation des Modjahedines du peuple d'Iran v. Council of the European Union’, Case T-228/02, [2006] E.C.R.

[5] Elizabeth F. Defeis, ‘Targeted Sanctions, Human Rights, and the Court of First Instance of the European Community’ (2006), Fordham International Law Journal, Volume 30, 1457.

[6] Sayadi and Vinck v. Belgium, Comm. 1472/2006, U.N. Doc. CCPR/C/94/D/1472/2006 (HRC 2008).

[7] Ibid, Individual Opinions Rodley, Shearer, Motoc, Kalin and Iwasawa.

[8] Abdullah Kadi and Al Barakaat International Foundation v. Council and Commission, C-402/05P and C415/05P (ECJ 2008).

[9] S/RES/1904 (2009).

[10] S/RES/2362 (2017).

Comments

Post a Comment

Popular posts from this blog

Taxation of natural resources; policy options for Africa-J.A.Bwesigye

By
Image
    Unlike other resources, taxation of natural resources poses a great challenge even to the most advanced tax frameworks. The problem is made worse in Africa where the governance systems are weak and unable to design effective tax policy frameworks. The rationale behind this complexity is anchored principally in; the high costs and long production periods involved, the prospect of substantial rents, the uncertainty that’s involved at almost every stage of project development, the international considerations at play where the efficacy of a tax system depends not only on the tax regime of the hosting country but also on the country owning the investing corporations, the complexity of the asymmetric information involved, the market power where corporations involved have great control over markets as opposed to host governments, among others. The concerns above have led to global concern by independent governments, especially in the global south on how to tax their natural resources.
Read more

Taxation of natural resources; what’s the way forward for Africa?

By
Image
  A succinct analysis of the literature concerning the notion of taxation of natural resources discloses several loopholes on the part of African Countries. These loopholes are policy-based, moral, and institutional in nature. At a moral level, African leaders are deeply interested in their personal needs; this makes them vulnerable to bribes and corrupt tendencies. In Zambia, several tax concessions were offered to Acacia Mining Company in return for donations given by the British Government. Other corporations such as Sino Metals, and China Non-Ferrous Mining Corporation used petty deception and were able to obtain tax concessions in the extraction of copper which greatly reduced the tax revenues to which Zambia was entitled.   The other moral issue concerns the role played by several actors including politicians, auditors, lawyers, local bandits, local tax advisors, and bureaucrats that greatly influence tax governance through threats, lawsuits, and assassination attempts on the par
Read more

A REFLECTION ON TAXATION AND TAX REFORMS IN UGANDA

By
Image
  An effective tax policy is a key reflection of an effective governance framework. This is premised upon the notion that tax is an expression of authority and taxation policies that are fair, comprehensive, and feasible reflect the effectiveness of the governance machinery. To this end, states across the world aim at reforming their tax policies to achieve the aspects of fairness, transparency, and comprehensiveness.   In low-income countries, challenges such as a low level of relevant statistics, a high level of inaccuracy in records available, and a high degree of informality in tax administration continue to thwart the adoption of effective tax policies. It is important to point out that an effective tax policy involves not only the collection of revenue from the population but also the ability on the part of the government to account for this tax collected. The aspect of accountability covers elements such as investing in social welfare programs such as the provision of education,
Read more