The picture show Article 25 of the Universal Declaration of Human Rights. Photo: Jon Tyson.
By Alfred de Zayas – Dec 29, 2023
As a matter of proper terminology, it is best not to use the term “sanctions” too loosely, because the term is judgmental and implies that the entity imposing them has the legal or moral authority to do so. This is the case e.g. when the United Nations imposes certain coercive measures under article 41 of the Charter. By contrast, what politicians and media routinely denominate sanctions are actually “unilateral coercive measures”[1] (UCMs) imposed by a country in pursuance of its geopolitical agenda and lacking any international legitimacy. Such measures actually constitute the “use of force” within the meaning of Art. 2(4) of the UN Charter, and their purpose is also illegitimate, since they entail the unlawful interference in the internal affairs of other States. For decades the General Assembly, the UN Commission on Human Rights and more recently the Human Rights Council have rejected UCMs as contrary to the UN Charter, customary international law, the principles of freedom of trade and navigation. More than two thirds of the international community reject them.[2]
The “sanctions” currently being imposed by the United States on some thirty countries do not qualify as “retorsion” or “countermeasures” under articles 49/50 of the Code on Responsibility of States[3]adopted by the UN International Law Commission in 2001. UCMs constitute “collective punishment”[4] against innocent persons and contravene the very foundations of the rule of law, the presumption of innocence and the principle of individual responsibility.
The impact of unilateral coercive measures on the enjoyment of economic, social and cultural rights is predictable, demonstrable and measurable. UCMs dislocate the economies of the targeted countries, adversely affecting the standard of living of entire populations, restricting their access to food, water and sanitation, medicines, health services[5], shelter, education, employment, etc. and making the implementation of the Sustainable Development Goals illusory.
Bearing in mind that human rights are interrelated and interdependent, it is inevitable that violations of the provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR) will also engender violations of the civil and political rights enunciated in the International Covenant on Civil and Political Rights (ICCPR)[6]. MCMs also directly violate civil rights laid down in domestic legislation and numerous other international agreements[7], and raise issues under the following provisions of the ICCPR:
Art. 1 – the individual and collective right of self-determination of peoples, the right over their natural wealth and resources, the right to property, the right not to be deprived of means of subsistence.
Art. 2 – the right to a remedy
Art. 3 – women’s rights, since women disproportionately bear the consequences of the dislocations caused by UCMs
Art. 6 – the right to life. UCMs demonstrably kill[8].
Art. 7 – the right not to be subjected to cruel and inhuman treatment or punishment
Art. 12 – freedom of movement
Art. 14 – due process of law, the prohibition of collective punishment, the presumption of innocence
Art. 17 – honour and reputation of persons whose names appear on sanctions lists
Art. 20 – the prohibition of war propaganda and incitement to hatred. UCMs are routinely accompanied by fake news, fake history, negative stereotypes, hate speech against China, Cuba, Nicaragua, Syria, Russia, Venezuela, etc. The media campaign of Russophobia and Sinophobia have been crucial in the attempt to render UCMs palatable to a democratic society.
Art. 22 – freedom of association. Individuals and groups are frequently made to suffer defamation and financial loss just because of their association with persons or countries subjected to UCMs. Even UN sanctions regimes can adversely affect the right of freedom of association.[9]
Art. 24 – rights of the child. UCMs are a factor in the rise of infant mortality and in the violation of the right to health and physical integrity of children.
Art. 26 – the prohibition of discrimination, in particular when assets are frozen or confiscated on a discriminatory or arbitrary fashion.
The gravity of the impact of UCMs cannot be overstated, but the gravest violation of the human rights of individuals and groups is the violation of the right to life. In countries like Cuba[10], Iran[11], Nicaragua, Sudan, Syria[12], Venezuela UCMs have killed tens of thousands of persons by making it nearly impossible for the targeted governments to obtain sufficient food, medicines and replacement parts for medical equipment necessary to prevent deaths. UCMs have caused desperation and consequent suicides, triggered uncontrolled migration flows, sometimes accompanied by tragedy in the seas.
UCMs entail a revolt against fundamental principles of the UN Charter, international law and international order. Most importantly, it must be finally understood that UCMs are not innocent tools of “soft power”. UCMs kill, just as much as bullets in war[13]. The level of deaths caused by UCMs in some 30 countries over the past decades are sufficient to raise issues under the 1948 Genocide Convention, which stipulates inter alia
“…genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part …”[14]
Besides the assault on the right to life, UCMs seriously affect the right to property, which is protected in the domestic legislation of most countries. Interestingly enough, the right to property is not specifically protected in the ICCPR, but article 26 ICCPR would be violated if the property were confiscated or frozen in a discriminatory fashion. The right to property is protected ratione materiaein the European Convention on Human Rights and Fundamental Freedoms, and in the domestic legislation of most countries. WTO law provides for the protection of private property, the General Agreement on Tariffs and Trade prohibits restrictions of imports and exports, as well as the freezing of assets and the restriction of international transfers and payments. [15]
Another consequence of UCMs is its impact as a “push factor” generating uncontrolled migration movements. In this context it is pertinent to make a distinction between the legal regimes protecting the rights of refugees and migrants. As I learned during my 2017 mission to Venezuela as UN Independent Expert on International Order, the vast majority of the persons who have been constrained to leave Venezuela since 2015 did not do so because of political persecution, but because of the economic crisis brought about by UCMs, because enterprises went bankrupt, people lost their jobs and could not feed their families. [16]
In a more general sense, UCM’s constitute an attack on democracy[17] itself, bearing in mind that UCMs deliberately aim at imposing one country’s economic system on another, thereby violating the right of the targeted nation to choose its own form of government. UCM pressures are incompatible with paragraph 135 of General Assembly Resolution 60/1, which stipulates:
“We reaffirm that democracy is a universal value based on the freely expressed will of people to determine their own political, economic, social and cultural systems and their full participation in all aspects of their lives. We also reaffirm that while democracies share common features, there is no single model of democracy, that it does not belong to any country or region, and reaffirm the necessity of due respect for sovereignty and the right of self-determination. We stress that democracy, development and respect for all human rights and fundamental freedoms are interdependent and mutually reinforcing.”
Purposes and effectiveness of UCMs
Pronouncements by many US government officials since the days of President J.F. Kennedy document the real intent of US coercive legislation and financial blockades. A good explanation of the purpose of UCMs with regard to the Cuban embargo is contained in the statement of the US Undersecretary of State for Latin America Lester Mallory in 1960. He stated:
“The majority of Cubans support Castro … The only foreseeable means of alienating internal support is through disenchantment and disaffection based on economic dissatisfaction and hardship … Every possible means should be undertaken promptly to weaken the economic life of Cuba … A line of action which, while as adroit and inconspicuous as possible, makes the greatest inroads in denying money and supplies to Cuba, to decrease monetary and real wages, to bring about hunger, desperation and overthrow of Government.”[18]
In other words, the purpose of UCMs is to cause suffering in the hope that chaos will lead to violence and “regime change”. Yet, in more than sixty years, the UCMs and financial blockades against Cuba did not succeed in inducing the Cuban population to overthrow their government. The same applies to Nicaragua, where US coercive measures since the 1980s failed to dislodge the Sandinistas. Ditto in Venezuela, where the economic war since the election of Hugo Chavez in 1998 and the attempted coups in 2002 and 2019 have failed.
Over the past years, a less offensive narrative has been concocted to try to make the geopolitical nature of UCMs appear reasonable and acceptable. According to the new apologetics, UCMs are intended to advance “human rights” and “persuade” the targeted governments to change their economic policies and make them more in line with those of the world leader in human rights, namely the United States.[19] In order to make UCMs appear more “palatable” to a democratic electorate, propaganda is deployed to demonize the targeted governments, placing the blame on their “authoritarian” and “corrupt” leaders, who are allegedly guilty of gross violations of human rights and democratic principles.
UCMs are presented as a form of benign pressure aimed at bringing an end to alleged human rights violations. Actually, there is little new in this tactic. Already Tacitus[20]in the first century AD noted that it is human nature to try to blame the victims of our actions. Government propaganda and the echo chambers of the mainstream media are enough to anaesthetize the electorate of democratic countries so that they “accept” the moral legitimacy of UCMs. This kind of demonization of foreign governments includes false accusations of being “sponsors of terrorism” and therefore constitute a threat to the “national security” of the country imposing the UCMs. This is compounded by a hybrid media war that incites hatred and clearly violates article 20 ICCPR.[21]
Human rights restrictions by the targeted State in response to UCMs
As shown above, the purpose of UCMs is to cause chaos, a national emergency, a volatile situation with unpredictable consequences. At the same time, the political narrative continues to invoke human rights and humanitarian principles as their true purpose. However, there is no empirical evidence whatever to prove that countries subjected to UCM have improved their human rights records.
Experience shows that when a country is at war – any kind of war — it usually derogates from some civil and political rights. Similarly, when a country is enduring non-conventional hybrid warfare and is subjected to UCMs and financial blockades, the result is not an expansion of human rights, but exactly the opposite. When UCMs trigger economic and social crises, governments routinely impose extraordinary measures and justify them because of the “national emergency”. Accordingly, as in classical war situations, when a country is subject to a siege, it closes ranks in an attempt to reestablish stability through the temporary restriction of certain civil and political rights.
Article 4 ICCPR envisages the possibility that governments may impose certain temporary restrictions, e.g. the derogation from Art. 9 (detention), Art. 14 (fair trial proceedings), Art. 19 (freedom of expression), Art. 21 (freedom of peaceful assembly), Art. 25 (periodic elections). While such derogations are undesirable and should be as brief as possible, every state’s priority is survival, the defence of its sovereignty and identity. International law recognizes that governments have a certain margin of discretion in determining the existential threats posed by internal or external danger, whether by UCMs, paramilitary activities, subversive propaganda or sabotage.
Article 4 ICCPR stipulates: “In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. »[22]
Scholars have documented how external pressures to destabilize targeted governments have resulted in the adoption of emergency legislation in response. This has been the case in Cuba[23], Nicaragua[24]and Venezuela[25], where the enjoyment of certain civil rights has been restricted in the name of national security. Accordingly, it can be demonstrated that far from facilitating the improvement of the human rights situation in a targeted country, UCMs often result in the enactment or strengthening of restrictive domestic legislation that aim at maintaining stability and safeguarding vital interests. In such cases UCMs reveal themselves as counter-productive.
If the international community wants to help a country improve its human rights performance, it should endeavour to eliminate the threats that make governments retrench instead of opening-up. Precisely because UCMs aggravate a country’s economic and social situation and disrupt the proper functioning of state institutions, they actually weaken the rule of law and lead to retrogression in human rights terms.
In the light of the continuing threats by some politicians against countries subjected to UCMs, it would seem that an old French adage applies:
— la bête est très méchante, lorsqu’on l’attaque, elle se défend.
The beast is very nasty — when you attack it, it defends itself.
Another collateral effect of UCMs is that targeted governments frequently use their own propaganda means to bring about a “rallying around the flag” effect, emphasizing national identity and “embattled sovereignty”.[26] North Korean and Iranian leaders have succeeded in appealing to nationalistic feelings among their populations in an attempt to make them accept the government’s resilience to sanctions.[27] During my UN mission to Venezuela in November/December 2017, I discovered that the mood in the population, universities and churches was one of being under “siege” by the US, and a majority of those whom I interviewed, including dozens of persons active in the large ngo community, blamed the US for their misery and not the Maduro government.[28]
The bottom line is that “democracy” cannot be exported and imposed by force, that human rights are not the result of a vertical, top-down enforcement but rather require a horizontal recognition of the dignity of every human being. The exercise of human rights depends on peace, education, mutual respect and solidarity.
In my own reports to the General Assembly and Human Rights Council, I have proposed that the General Assembly adopt a resolution under article 96 of the UN Charter referring the legal questions to the International Court of Justice, requesting an advisory opinion on the legal consequences of the continued imposition and enforcement of UCMs. The ICJ should also estimate the level of compensation due to the victims of these international wrongful acts.
[1] See the thematic report on UCMs by UN High Commissioner Navi Pillay A/19/33 (2012), and the reports to the Human Rights Council and General Assembly by the UN Special Rapporteur on UCMs. https://www.ohchr.org/en/special-procedures/sr-unilateral-coercive-measures
[2] See e.g. General Assembly Resolution 77/214 of 15 December 2022 and HRCouncil Resolution 54/13 of 3 April 2023, as well as the GA resolution on the US embargo against Cuba, Res. 78/L.5 of 2 November 2023, adopted by 187 votes in favour and two against (US and Israel).
[3] https://legal.un.org/ilc/texts/instruments/english/draft_articles/9_6_2001.pdf
“Article 49 Object and limits of countermeasures:
- An injured State may only take countermeasures against a State which is responsible for an internationally wrongful act in order to induce that State to comply with its obligations under part two. 2. Countermeasures are limited to the non-performance for the time being of international obligations of the State taking the measures towards the responsible State. 3. Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question.
Article 50 Obligations not affected by countermeasures:
- Countermeasures shall not affect: (a) the obligation to refrain from the threat or use of force as embodied in the Charter of the United Nations; (b) obligations for the protection of fundamental human rights; (c) obligations of a humanitarian character prohibiting reprisals; (d) other obligations under peremptory norms of general international law.”
[4] https://news.un.org/en/story/2021/08/1097562
[5] Committee on Economic, Social and Cultural Rights, General Comment Nr. 8 (1997).
Dursun Peksen, “Economic Sanctions and Human Security: The Public Health Effect of Economic Sanctions”, Foreign Policy Analysis 7 (3) 237-51 (2011). Allen, Susan and David Lektzian, “Ecconomic Sanctions: A Blunt Instrument” Journal of Peace Research 50 (a) 121-135, 2013.
[6] Öuzgür Özdamar and Evgenia Shahin, “Consequences of Economic Sanctions: The State of the Art and the Paths Forward” in International Studies Review 2021, 23, 1646-1671. https://academic.oup.com/isr/article/23/4/1646/6309628
Center for Economic and Policy Research, The Case Against Economic Sanctions, Washington, D.C. 10 January 2020. Michael Fakhri, in Yale Journal of International Law, “Situating Unilateral Coercive Measures Within a Broader Understanding of Systemic Violence” 23 June 2023.
[7] Biersteker, T.J., “Targeted Sanctions and Individual Human Rights”, in International Journal 65(1), 99-117, 2010.
[8] Jeffrey Sachs and Marc Weisbrot, “Economic Sanctions as Collective Punishment”, Center for Economic and Policy Research, Washington DC 2019 https://cepr.net/images/stories/reports/venezuela-sanctions-2019-04.pdf
Gutmann, Jerg, Matthias Neuenkirch, and Florian Neumeier. 2020. “Sanctioned to Death? The Impact of Economic Sanctions on Life Expectancy and Its Gender Gap.” The Journal of Development Studies 57 (1): 139–62.
Parker, Dominic, Jeremy, Foltz “Unintended Consequences of Sanctions for Human Rights: Conflict Minerals and Infant Mortality” The Journal of Law and Economics, 59 (4) 731-74.
See also the UN Secretary General 2023 report on the Cuban Embargo, A/78/84.
[9] See the Human Rights Committee decision in the Sayadi et al. v. Belgium case (2008), holding that articles 12 and 17 ICCPR had been violated. https://juris.ohchr.org/casedetails/1477/en-US
[10] See Judgment of the International Tribunal on US sanctions against the Republic of Cuba, Brussels 17 November 2023.
[11] Setayesh, Sogol, and Tim K. Mackey. 2016. “Addressing the Impact of Economic Sanctions on Iranian Drug Shortages in the Joint Comprehensive Plan of Action: Promoting Access to Medicines and Health Diplomacy.” Globalization and Health 12 (1): 12–31.
Shahabi, S., H. Fazlalizadeh, J. Stedman, L. Chuang, A. Shariftabrizi, and R. Ram. 2015. “The Impact of International Economic Sanctions on Iranian Cancer Healthcare.” Health Policy 119 (10): 1309–18.
[12] United Nations, ESCWA, Office of the UN Resident Coordinator in the Syrian Republic, “Humanitarian Impact of Syria-related Unilateral Restrictive Measures” 16 May 2016. https://www.csi-schweiz.ch/app/uploads/sites/2/2016/12/ESCWA_Sanctions-Report_May-2016.pdf
[13] A. de Zayas, Building a Just World Order, Clarity Press, Atlanta, 2021.
[15] https://www.wto.org/english/docs_e/legal_e/gatt47_e.pdf
[16] See the Report of the UN Independent Expert on International Order on his mission to Venezuela and Ecuador, Human Rights Council 38thsession, September 2018.
[17] Peksen, Dursun, and A.C. Drury, “Coercive or Corrosive: The Negative Impact of Economic Sanctions on Democracy.” International Interactions 36 (3): 240–64 (2010).
[18] Report of the Secretary-General, 3 May 2023, Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba. UN Doc. A/78/84.
[19] McCurdy, Nan. “The CIA: Attempting Coups in Nicaragua with Tax Dollars through US Agencies and Corporate Foundations – USAID does not provide aid, it carries out coups” Dissident Voice, 18 June 2021. https://dissidentvoice.org/2021/06/the-cia-attempting-coups-in-nicaragua-with-tax-dollars-through-us-agencies-and-corporate-foundations/
[21] A. de Zayas, The Human Rights Industry, Clarity Press, 2023.
[22] See also General Comment Nr. 29 of the Human Rights Committee on states of emergency (2001)
[23] A/78/84.
[24] John Perry, “Nicaragua’s Finance Minister Details How U.S. Sanctions Impact Nicaragua’s Poor”, Covert Action Magazine, December 6, 2023.
[25] Comments of the Venezuelan government on my mission report to the Human Rights Council.
[26] Jaeger, Mark, “Constructing Sanctions: Rallying Around the Target in Zimbabwe”, Cambridge Review of International Affairs 29 (3), 997-1021 (2016).
[27] Richard Falk, Public Intellectual, Clarity Press, Atlanta 2021. Julia Grauvogel and Christian von Soest, , “Claims to Legitimacy Count: Why Sanctions Fail to Instigate Democratisation in Authoritarian Regimes,” European Journal of Political Research 53 (4), 635-53, (2014).
[28] See the Report of the UN Independent Expert on International Order on his mission to Venezuela and Ecuador, Human Rights Council 38thsession, September 2018.
Alfred de Zayas
Alfred-Maurice de Zayas is an American lawyer, writer, historian, expert in the field of human rights and international law and retired high-ranking United Nations official. Since 2012, he has been the UN Independent Expert on the Promotion of a Democratic and Equitable International Order.
