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The term ‘sanctions’ is not new. The 90s have been called the ‘decade of sanctions’ of the UN Security Council. Today we are observing the unprecedented expansion of economic, financial, trade, cyber, targeted, individual and other types of sanctions (restrictive measures) applied by states and regional organisations unilaterally without the authorisation of the UN Security Council. Compliance with unilateral sanctions is enforced by multiple tools, including secondary sanctions exposure, criminalisation of sanctions circumvention and maximum pressure campaigns. Pecuniary penalties as a result of civil charges, even after securing settlement agreements with the US Office of Foreign Assets Control, may reach billions of US dollars.

Complicated, confusing and overlapping sanctions regulations, the proliferation of penalising mechanisms, the high risk and severity of penalties, unclear, lengthy, costly and complicated licensing procedures, uncertainties around the scope of humanitarian carve-outs, broad interpretations of the sanctions regimes, complications in delisting procedures and high legal costs all heighten risks and result in the growing de-risking and over-compliance by all actors in sanctioning, sanctioned and third countries.

It is a principled position of the mandate that any unilateral measures can only be taken by states and regional organisations without the authorisation of the UN Security Council if they fully correspond to criteria of countermeasures or retortions under the law of international responsibility. Any other measures qualify as unilateral coercive measures and are illegal under international law. These unilateral measures, independent of their legality, also have enormous humanitarian effects, which are often neglected or considered to be unintended by the sanctioning parties.

At the same time, as a Special Rapporteur I receive multiple complaints not only about the direct impact of sanctions but also often of over-compliance with all types of sanctions for many, if not all, of the reasons stated above.

De-risking and over-compliance have negative effects on all nationals or residents of countries under sanctions, often involving discrimination on the grounds of nationality, place of birth, residence, registration, IP address or any other nexus with these countries. It results in the isolation of countries, their companies and individuals, breach of trade and cooperation networks, and creates challenges to, or uncertainties of, access to justice and to remedies for those affected, and thus a lack of accountability.

I can also cite the detrimental effects on all basic human rights arising from impediments to the delivery of goods that are not subjected to sanctions, including those that are explicitly exempted from sanctions regimes via humanitarian carve-outs, such as food, medicine, fertilisers, medical equipment and spare parts, as well as many other goods necessary for the maintenance and development of critical infrastructure, thus rendering humanitarian provisions de facto almost non-existent. Financial institutions, manufacturers and delivery and insurance companies refer to broad and unclear interpretations of sanctions limitations by states or the compliance sector. They also mention the risks involved in delivering goods that may be perceived as ‘dual use’ (relevant to many types of medicine, rescue equipment and even simple consumer goods such as toothpaste), the impossibility or challenges of bank transfers, insurance or deliveries due to other elements of sanctions regulations, or the simple risk-aversion by refraining from dealing or cutting ties with any actor suspected of, or perceived as, having relations with the country under sanctions.

In particular, multiple reports refer to the challenges of delivering humanitarian assistance to the countries under sanctions even in the course of global public health crises, including the covid-19 pandemic, or epidemics (dengue), or in the aftermath of natural disasters such as earthquakes. They also refer to sanctions-induced challenges of effectively implementing humanitarian resolutions of the UN Security Council. Over-compliance and its serious adverse impact on humanitarian work persist even after the adoption of specific, targeted and often time-limited humanitarian carve-outs, such as those adopted for Syria by the US, UK and EU in response to its catastrophic earthquakes in February 2023 (UN Security Council Resolutions 2664 and 2615).

Information about the scope of international and unilateral sanctions, counter-sanctions, legal regimes of different countries, and legal assessment of, and challenges in, litigation in sanctions cases is often fragmentary or politicised. As a Special Rapporteur I very much welcome reflections and open dialogue on all aspects relevant to sanctions and their impact, as well as discussions about mechanisms to ensure protection of the rights of all those affected by unilateral measures, analyses on the various challenges pertaining to humanitarian carve-outs and licensing, and mechanisms of litigation, accountability, responsibility and redress.

In terms of the serious practical implications of international and unilateral sanctions, compliance and over-compliance, I believe that the experience and views of practitioners exposed in The Guide to Sanctions will contribute to the international ongoing debate around the above-mentioned and other relevant issues.

ena Douhan
UN Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights
September 2023

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