Peace Action
International Office
March, 2000
Introduction
This paper identifies some of the international legal norms and standards applicable to the international community when applying a sanctions regime. The purpose of this paper is not to take a position with regard to the application of sanctions per se, but to illustrate that when such a regime is applied, it must be in accordance with the human rights and humanitarian principles enshrined in international law. This paper identifies key analyses and recommendations from a number of UN bodies, and also refers to principles articulated in Security Council Resolutions, the United Nations Charter, the Convention on the Rights of the Child and other Human Rights conventions.
I. In Accordance With UN and International Human Rights Law
1. The Universal Declaration of Human Rights
Article 3:
Everyone has the right to life, liberty and security of person2.The UN Charter
The following articles of the UN Charter, which relate to human rights, must be fully taken into account when imposing a sanctions regime.Article 1 (3):
[The purposes of the United Nations are] to achieve international cooperation in solving international problems of an economic, social, cultural or humanitarian character, and in encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion.Article 55(c):
[With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote] universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.Article 56:
All Members pledge themselves to take joint and separate action in co-operation with the Organization for the achievement of the purposes set forth in Article 55.3. The Convention of the Rights of the Child
Article 3:
(1) In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
(3) States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 6:
(1) States Parties recognize that every child has the inherent right to life.
(2) States Parties shall ensure to the maximum extent possible the survival and development of the child.Article 24:
(1) States Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilities for the treatment of illness and rehabilitation of health. States Parties shall strive to ensure that no child is deprived of his or her right of access to such health care services.(2) States Parties shall pursue full implementation of this right and, in particular, shall take appropriate measures:
a) To diminish infant and child mortality;
b) To ensure the provision of necessary medical assistance and health care to all children with emphasis on the development of primary health care to all children with emphasis on the development of primary health care;
c) To combat disease and malnutrition, including within the framework of primary health care, through, inter alia, the application of readily available technology and through the provision of adequate nutritious foods and clean drinking-water, taking into consideration the dangers and risks of environmental pollution;
d) To ensure appropriate pre-natal and post-natal health care for mothers
e) To ensure that all segments of society, in particular parents and children, are informed, have access to education and are supported in the use of basic knowledge of child health and nutrition, the advantages of breast-feeding, hygiene and environmental sanitation and the prevention of accidents;
f) To develop preventative health care, guidance for parents and family planning education services.(4) States Parties undertake to promote and encourage international co-operation with a view to achieving progressively the full realization of the right recognized in the present article. In this regard, particular account shall be taken of the needs of developing countries.
Article 27:
(1) States Parties recognize the right of every child to a standard of living adequate for the child's physical, mental, spiritual, moral and social development.(3) States Parties, in accordance with national conditions and within their means, shall take appropriate measures to assist parents and others responsible for the child to implement this right and shall in case of need provide material assistance and support programs, particularly with regard to nutrition, clothing and housing.
Article 28:
(1) States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity.(3) States Parties shall promote and encourage international co-operation in matters relating to education, particular with a view to contributing to the elimination of e\ignorance and illiteracy throughout the world and facilitating access to scientific and technical knowledge and modern teaching methods. In this regard, particular account shall be take of the needs of developing countries.
Article 38:
(1) States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.(4) In accordance with their obligations under international humanitarian law to protect the civilian population in armed conflicts, States Parties shall take all reasonable measures to ensure protection and care of children who are affected by an armed conflict.
4. General Comment by the Committee on Economic, Social and Cultural Rights
E/C.12/1997/8: General Comment No. 8 (1997): The relationship between economic sanctions and respect for economic, social and cultural rights, 12 December 1997.The provisions of the Covenant on Economic, Social and Political Rights, most of which are also reflected in the Universal Declaration of Human Rights, are fully applicable during such a time as sanctions are imposed against a state. The targeted state is under a legal obligation to respect the civil and political rights of its citizens The international community is under a similar obligation to do everything that it can to protect the "core content" of the economic, social and cultural rights of the affected people.
The international community must be alert to the fact that the inhabitants of a country do not forfeit their basic economic, social and cultural rights due to violations of international norms committed by their leaders. Thus all human rights and humanitarian standards that relate to civilians remain in full effect at all times.
Lawlessness of one kind should not be met by lawlessness of another, and any sanctions regime which ignores fundamental rights detracts from the legitimacy of the entire operation.
It is possible to alleviate the suffering of children and all vulnerable groups cause by sanctions without jeopardizing the effect of the sanctions themselves.5. Statement by the Inter-Agency Standing Committee
S/1998/147: Statement dated 29 December 1997 by the Inter-Agency Standing Committee to the Security Council on the humanitarian impact of sanctions:Any adverse humanitarian consequence on civilian population should be avoided
Any sanctions regime must be take fully into account international human rights instruments and humanitarian standards established by the Geneva Conventions6. Relevant Security Council Resolutions
(a) S/RES/1261 (1999)
Security Council Resolution 1261 (1999) on the Protection of Children in Armed ConflictArticle 17(c):
[The Security Council] Reaffirms its readiness when dealing with situations of armed conflict: whenever adopting measures under Article 41 of the Charter of the United Nations, to give consideration to their impact on children, in order to consider appropriate humanitarian exemptions.(b) S/RES/1265 (1999) Security Council Resolution 1265 (1999) on Protection of Civilians In Armed Conflict.
Article 16:
[The Security Council] Reaffirms its readiness, whenever measures are adopted under Article 41 of the Charter of the United Nations, to give consideration to their impact on the civilian population, bearing in mind the needs of children, in order to consider appropriate humanitarian exemptions.
II. The following sections summarize recommendations from official UN documents regarding various aspects of sanctions regimes and the protection of human rights.1. Prior Impact Assessment
(a) The Machel Report: Impact of Armed Conflict on Children; Note by the Secretary General A/51/306, 26 August 1996:
Sanctions should be judged against the standards of universal human rights, particularly the Convention on the Rights of the Child. The primary consideration when developing a sanctions regime should always be the potential human impact, which should influence the choice of sanctions, their duration, the legal provisions and the operation of the sanctions regime. Sanctions should not be imposed without advance assessment of the economic and social structure of the target country.
(b) General Comment by the Committee on Economic, Social and Cultural Rights:
There should be more precise targeting of the vulnerabilities of targeted states. A UN Mechanism is required to anticipate the impact of sanctions;
(c) Statement by the Inter-Agency Standing Committee:
There should be comprehensive information and objective analysis of the potential humanitarian impact of sanctions when deciding a sanctions regime.
(d) Note on Work of the Sanctions Committee
Note by the President of the Security Council: Work of the Sanctions Committee S/1999/92, 29 January 1999:Periodic meetings of the sanctions committees should be held for discussions on the humanitarian and economic impact of sanctions.
2. Monitoring
(a) The Machel Report:
Sanctions should not be imposed without an advance assessment of the ability of the international community to sustain continuous monitoring.
There must be a system of monitoring to assess the impact of the embargo on health and well-being - such a system should measure changes in access to medicines and medical supplies.(b) General Comment by the Committee on Economic, Social and Cultural Rights:
A UN mechanism should be created to anticipate and track the impact of sanctions The international community is required to establish a system of effective monitoring which must last the duration of the time the sanctions are in force.
This is because the international community, in applying sanctions, has assumed responsibility for that country. They therefore have an unavoidable responsibility to protect the economic, social and cultural rights of the affected population.(c) Statement by the Inter-Agency Standing Committee:
Information on what humanitarian supplies are required under a sanctions regime must be made available on a regular basis
(d) Note on the work of the Sanctions Committee:
The sanctions committee should establish appropriate arrangements and channels of communication with organs, organizations and bodies of the United Nations system, as well as other intergovernmental and regional organizations, neighboring countries and other countries and parties concerned, in order to improve the monitoring of the implementation of sanctions regimes and the assessment of their humanitarian consequences on the population of the target State and their economic consequences on neighboring and other States.
The Sanctions Committees should monitor, throughout the sanctions regime, the humanitarian impact of sanctions on vulnerable groups, including children, and make required adjustments of the exemption mechanisms to facilitate the deliver of humanitarian assistance.
The Chairperson of the sanctions committees should make visits to the regions concerned, as appropriate, in order to obtain first-hand accounts of the impact of sanctions regimes and the results and difficulties in their implementation.
The Secretariat should be requested to provide, whenever necessary, its assessment of the humanitarian and economic impact of sanctions to the sanctions committee.3. Humanitarian Exemptions / Aid
(a) The Machel Report:
When imposing sanctions, humanitarian exemptions should be formulated with clear guidelines Humanitarian assistance programs should be established to assure new sources of supply for vital goods. Neutral, independent bodies should be established to monitor the situation of vulnerable groups
(b) General Comment by the Committee on Economic, Social and Cultural Rights:
The identification of a wider range of exempt goods and services
The authorization of agreed technical agencies to determine necessary exemptions
Those applying the sanctions are under an obligation to respond to any disproportionate suffering experience by vulnerable groups in the community.
To address this the states must take economic and technical measures, both individually and through international assistance and cooperation.(c) Statement by the Inter-Agency Standing Committee:
Sanctions should not impede the work of humanitarian organizations in providing humanitarian assistance to the civilian population
Humanitarian aid must be timely
Humanitarian exemptions must be provided for in the sanctions regimes
These exemptions should be reviewed regularly and adjusted in the light of the humanitarian requirements under the sanctions regime.(d) Note on the Work of the Sanctions Committee:
UN agencies as well as humanitarian organizations and other relevant organizations should benefit from special, simplified procedures in requesting humanitarian exemptions, in order to facilitate the implementation of their humanitarian program. Consideration should be given to how humanitarian organizations could have the possibility to apply for humanitarian exemptions directly to the sanctions committee.
Foodstuffs, pharmaceutical and medical supplies should be exempted from United Nations sanctions regimes. Basic or standard medical and agricultural equipment and basic or standard education items should also be exempted. Consideration should be given to the drawing up of lists for that purpose. Other essential humanitarian goods should be considered for exemption. In this regard, it is recognized that efforts should be made to allow the population of the targeted countries to have access to appropriate resources and procedures for financing humanitarian imports.
The sanctions committee should make required adjustments of the exemption mechanism to facilitate the delivery of humanitarian assistance.4. Long-Term Perspectives
(a) The Machel Report:
No sanction regime should be allowed to continue indefinitely
The sanction regime must clearly define the circumstances under which the embargo will be lifted
If the regime is seen to be failing, it should replaced by other measures.