Unilateral Sanctions Under International Human Rights Law: Correcting the Record

Aaron Fellmeth[1]

In July 2022, the U.N. Special Rapporteur on the Negative Impact of Unilateral Coercive Measures on the Enjoyment of Human Rights,[2] Alena Douhan,[3] submitted to the U.N. Human Rights Council a report of her findings, entitled “Secondary sanctions, civil and criminal penalties for circumvention of sanctions regimes and overcompliance with sanctions.”[4] The Douhan Report is fundamentally flawed in the selection, presentation, omission, and interpretation of evidence, as well as the identification, interpretation, and application of relevant principles of international law. The problems and errors in the Douhan Report are so serious and pervasive that a public response appears necessary. The purpose of this essay is to identify and to correct the major mistakes and misrepresentations of the Rapporteur’s report.[5]

The Douhan Report is supposed to concern the effects of unilateral secondary sanctions by states on human rights, with a special emphasis on “overcompliance” by third parties. Many states adopt unilateral sanctions against other states, organizations, and private persons for a variety of policy reasons. These measures may take the form of primary economic or trade sanctions against a state, such as trade embargos, investment prohibitions, or the freezing of assets. Sanctions may be intended to motivate the targets to change policies or simply to refuse assistance to a target whose policies and actions the sanctioning state finds repugnant. The Douhan Report does not focus on primary sanctions, although it begins by questioning the compatibility of unilateral sanctions with international law.[6]

Instead, the Report’s main focus is on secondary sanctions, which target persons identified by the sanctioning state as cooperating with or associating with the primary target of the sanctions. A secondary sanction by country A against country B would also impose sanctions on nationals of other countries (C, D, and E) if they do business in country B or with nationals of country B. For example, the Arab League has long had a policy of refusing to do business with any company anywhere in the world that does business in or with the target of its primary sanctions, Israel.[7] Secondary sanctions thus tend to target private actors such as corporations and individuals, and prohibit the nationals of the sanctioning state from commercial interaction with the secondary target.[8]

The “overcompliance” issue was chosen by the Rapporteur as the focus of this specific report. As used in the Report, the term consists of self-imposed restraints that go beyond the restrictions mandated by sanctions, either as part of a de-risking process, to minimize the potential for inadvertent violations or to avoid reputational or other business risks, or as a means to limit compliance costs.[9] Overcompliance is thus presented as a self-interested choice by private actors to refrain from commercial transactions, the provision of humanitarian aid, or other interactions that would not in fact violate any state sanctions.

This essay will begin by explaining why Douhan’s claim, made with varying directness and strength in different reports and publications, that unilateral primary state sanctions not approved by the U.N. Security Council inherently violate international law is unsupported by any valid source of international law, contrary to significant state practice, and at variance with crucial policies of the international community. The essay will then evaluate her claims that secondary sanctions necessarily violate international law in general, and international human rights law in particular, in light of her interpretation of international law and of the evidence she presents to support the claimed human rights violations. In the course of that analysis, special focus will be put on the alleged positive obligation of states to protect the human rights of foreign nationals in foreign states from violations by private actors. The essay concludes by challenging both the evidence and law presented in the Douhan Report that states are obligated by international law to prevent private actors from affecting human rights extraterritorially by choosing to take self-protective measures not required by sanctions.

Unilateral Primary Sanctions and International Law

States commonly use unilateral sanctions targeting other states, organizations, or individuals. The United States, probably the most active user of unilateral sanctions, has long imposed such sanctions on a variety of states and non-state organizations, including at the time of this writing Belarus, Burma, Cuba, Iran, North Korea, Russia, Syria, certain persons contributing to conflicts in the Central African Republic or the Democratic Republic of the Congo, and persons undermining democracy in Venezuela and Zimbabwe.[10] Some of these sanctions, such as the Cuban Assets Control Regulations, date back several decades.[11] The United States is far from the sole user of unilateral sanctions, however. Other countries, including the European Union,[12] the United Kingdom,[13] Canada,[14] Australia,[15] members of the Arab League,[16] and the Economic Community of West African States,[17] have implemented a range of unilateral and plurilateral sanctions not endorsed by the U.N. Security Council. Moreover, after the Russian invasion of Ukraine in 2022, several countries that have not historically maintained active unilateral sanctions programs, such as Japan, the Republic of Korea, and Singapore, and the Republic of China (Taiwan), imposed unilateral sanctions on the aggressor states.[18] In addition, some have argued that other countries, including countries that vocally condemn unilateral sanctions as a violation of international law, themselves secretly use unilateral sanctions disguised, for example, as government denials of routine export or import licenses.[19] These sanctions may be designed to provide disincentives or to disempower governments, organizations, and persons for such reasons as state sponsorship of terrorism; regionally destabilizing uses of armed force; usurpation of democracy; widespread and systematic human rights violations; or to express displeasure with the target of the sanctions.

Before evaluating the Report’s findings on secondary sanctions and overcompliance, it is important to address claims in the Douhan Report and by the Rapporteur concerning the legality of unilateral primary sanctions. The Report refers to unilateral primary sanctions as “dubious” under international law, but Prof. Douhan herself has gone further and stated in an interview with the International Review of the Red Cross (IRRC) that unilateral sanctions are “illegal.”[20] She has repeated these claims in the Yale Journal of International Law, with the same generalizations unsupported by legal analysis.[21] Nowhere does Douhan try to reconcile her claim of illegality or dubious legality with the longstanding and widely practiced use of unilateral sanctions, nor has she offered any sound evidence or reasoning to support this claim. She argues primarily by ipse dixit.

Whence, then, does this widely disregarded rule of international law derive? There is no general treaty, and the Douhan Report cites no evidence of custom, tending to prove that states are not free to refuse to trade or engage in economic transactions with other states and their nationals. Specific trade treaties, most notably the WTO agreements and various regional and bilateral free trade agreements, do prohibit discrimination in trade with other state parties to the agreements,[22] but the relevant WTO agreements contain exceptions for certain security and foreign policy interests,[23] and in many cases of unilateral sanctions, the parties are bound by no such treaties. Neither does the Douhan Report engage these points or attempt to support its claims.

However, in her interview with the IRRC, Prof. Douhan attempted to offer some support, in the form of various resolutions of the Human Rights Council and the U.N. General Assembly.[24] It is hardly necessary to point out that resolutions of neither the Human Rights Council nor the General Assembly could create customary international law, even if the resolutions were passed unanimously. The powers of the General Assembly are defined by the U.N. Charter, which confers on it the authority to “discuss” matters, “make recommendations,” and “consider” questions,[25] but nowhere to create new international law by proclamation.[26] It could of course be argued that, under some circumstances, resolutions of the General Assembly can indeed create new customary international law,[27] but the resolutions cited by Prof. Douhan would not qualify under any minimally credible argument. None of those cited by the Rapporteur to support her claim remotely approached unanimity.[28] All were opposed by a large minority of states, usually a quarter or third of the states voting.

Equally important, none of the resolutions cited by the Rapporteur actually characterizes unilateral sanctions as contrary to international law. In some cases, the resolutions “object to” or “condemn” sanctions, but in no case do they posit a general rule of international law prohibiting unilateral sanctions. Obviously, there is a consequential difference between lamenting a state measure and asserting that it violates international law. Nor does the Report or Rapporteur cite any evidence that state practice conforms to any putative opinio iuris.

Theoretically, of course, it is possible for a state to adopt a unilateral sanction that would violate customary international law, for example if they did not comply with the traditional criteria of proportionality.[29] But it is quite another thing to assert that unilateral sanctions violate customary international law in general, much less semper ubique et ab omnibus. There are several capable defenses of unilateral sanctions as generally consistent with international law that would require refutation before such a conclusion could be reached convincingly.[30] The Douhan Report does not even attempt to engage these arguments.

Indeed, if the Rapporteur’s claim were accepted, a state would be obligated to trade with states that violate obligations erga omnes, such as directly supporting global terrorism or invading peaceful states in violation of Article 2(4) of the U.N. Charter, as long as the Security Council is incapable of responding, because all sanctions against the malefactors would necessarily be unilateral.[31] International law mandates no such course of action; states have always been free to impose economic sanctions as countermeasures for violations of international law by other states either directed against that state or contrary to an obligation erga omnes, as long as the measures are proportional to the wrongful act.[32]

Secondary Sanctions under International Human Rights Law

The foregoing points discredit the Douhan Report’s attempt to impugn secondary sanctions based on an a fortiori argument from primary sanctions. However, that unilateral primary sanctions are not prohibited as such by international law does not necessarily validate secondary unilateral sanctions. This essay will evaluate here the Report’s remaining arguments against secondary sanctions.

Secondary sanctions are no more prohibited by treaties than are primary sanctions, and the Douhan Report cites no relevant treaty provisions to support its claim. Instead, the Report relies on an interpretation of human rights treaty obligations and customary international law to try to make the case that unilateral secondary sanctions violate international human rights law. More specifically, it claims that such sanctions may alter the behavior of private actors, and that this altered behavior “has consequences for” specific human rights.[33]

Some of the Douhan Report’s arguments for the consequences of unilateral secondary sanctions have at best an unclear connection to international human rights law. The Douhan Report notably and repeatedly fails to clarify the connection to human rights of many of its claims regarding the impact of unilateral secondary sanctions. For example, the Report repeats the claims of sanctioned states that the sanctions have the effect of causing shortages in construction and technology industries, without drawing any connection to a human rights impact.[34] It is not immediately clear how reduced access to imported construction equipment in this context violates a human right or is necessary per se for the realization of human rights.

Similarly, the Report claims that sanctions have affected the sovereignty of target states by making it difficult for some of them (specifically, Iran, Venezuela, and Zimbabwe) to pay dues to international organizations, such as the United Nations, and thereby maintain their right to vote.[35] It does not contribute to the Report’s credibility to insist that countries such as Iran or Venezuela cannot pay $11 million in U.N. dues because of foreign sanctions. Iran has a $13 billion military budget without being in an active war with any other country,[36] and Venezuela likewise maintains an army of some 515,000 personnel in a country with a population of only 28 million.[37] Perhaps the Rapporteur should have considered that U.S. sanctions are not the best explanation for any difficulty these countries may have in paying U.N. dues. In any case, the Report never explains how a government’s difficulty in voting in international organizations infringes anyone’s human rights, particularly if the government itself is not democratically legitimate or a noted respecter of international human rights law.

As for those cases in which the Douhan Report does make some attempt to support the claim that unilateral secondary sanctions do “violence to human rights,”[38] a variety of claims are made. The first, and the most clearly articulated, is that, because targets of secondary sanctions are typically denied the right to contest their designation as collaborators with human rights violators, state sponsors of terrorism, and other targets of primary sanctions, they are thereby denied the right to due process of law provided in articles 14 and 15 of the ICCPR. The Report’s claim that the targets of secondary sanctions have no right to contest their designation is somewhat overbroad,[39] but I will here assume its accuracy arguendo. It is not difficult to imagine hypothetical cases in which secondary sanctions would violate a human right. For example, administrative sanctions that deny a person a vested interest by blocking access to personal assets in the sanctioning country potentially violate the guarantees of the ICCPR.[40]

Yet, the Report proves unable to make a clear case of causative connection between the sanctions and human rights. It typically resorts to broad claims, such as “the ability to conduct financial transactions is critical to the enjoyment of a broad range of human rights.”[41] It also alleges that secondary extraterritorial sanctions have sometimes resulted in depriving individuals in sanctioned countries of access to food, clean water, education, employment, and health care; freedom of expression; the right to information and education; and the right to property.[42] This includes humanitarian assistance from NGOs and IGOs, which have sometimes encountered great or even insuperable difficulties in delivering aid to sanctioned countries due to overcompliance by financial institutions.[43]

It is not enough to assert vaguely that private conduct indirectly affects the enjoyment of human rights in foreign countries. To make out a case that overcompliance actually causes negative human rights effects not attributable to the policies of the sanctioned state itself, the connection must be made clear. Assuming arguendo the negative human rights conditions alleged in the Report exist (see the next subsection), it is a platitude of reasoning that correlation does not prove causation. To make out a case that unilateral sanctions degrade human rights, the Report would have needed to do all of the following: (1) identify with specificity the human rights negatively affected by the sanctions, (2) show that the overcompliance contributes significantly to the negative effects on human rights, and (3) show that other, alternative explanations (such as the state’s own misallocation of resources) is not a mediating variable that causes or greatly contributes to the negative effects. This will frequently be very difficult to prove in an autocratic country, in which government oppression and corruption tend to create insurmountable obstacles to the realization of human rights. State policies in such cases are likely to overshadow any problems that NGOs may encounter in providing services to vulnerable persons caused by reluctance by banks to transfer funds to the sanctioned state.

To support the separate claim that unilateral sanctions violate IHRL, the Report would additionally have needed to show (4) that the sanctioning state has a specific legal obligation under IHRL to the affected population of the sanctioned state, and that (5) the sanctioning state has violated that obligation. Again, saying that the human rights of persons in State A are being violated is not the same as saying that State B is responsible for violating the rights of those persons. Yet, the Report skips over most or all of these steps, leaving its conclusions without probative value.

Even if these steps had been adequately demonstrated in the Report, the argument that the sanctions violate human rights is attenuated by the fact that the claims do not relate to the direct effects of the sanctions, because state sanctions programs nearly always exempt the provision of information, food, water, medical supplies, or humanitarian assistance to the sanctioned state.[44] Instead, the claims relate to alleged “overcompliance” with the sanctions by private regulated actors. I will address overcompliance below. However, I first discuss whether the Report offers reliable and valid evidence that sanctions regimes are causing specific human rights harms.

If humanitarian assistance, medical supplies, and food and clean water are not reaching populations in need due to overcompliance with state sanctions of any kind, whether unilateral or multilateral, this is a problem that the sanctioning states should address. However, it is unclear whether the human rights impacts claimed in the Report are factual and significant, either in terms of a causative relationship to the sanctions or the alleged effects themselves.

In terms of evidence, the Report recites few empirical facts, but mainly relies on uncorroborated hearsay, most commonly in the form of repeatedly and uncritically echoing the claims of the sanctioned states.[45] For example, the Report repeats without comment the claims of the Belarusian government that economic sanctions make it impossible for Belarusian news broadcasters to deliver news content.[46] What it conspicuously does not mention is the absence of media freedom in Belarus in the first place.[47] It is implausible to claim that the human right to freedom of expression of state-censored media is somehow attributable to sanctions rather than the policies of the sanctioned government itself.

Other evidence cited in the Report, although it might be credible, is unreliable because it is anecdotal. Frequently, the evidence does not even support the Report’s claims. For example, the claim about the effects of overcompliance on freedom of expression is based on nothing more than a citation to a single publisher’s editorial policy cautioning about complying with sanctions regimes, which does not support the claim for which it is cited.[48] More generally, most of the support Douhan adduces for state condemnation of secondary sanctions comes from authoritarian governments that are notorious human rights violators.[49] One important way authoritarian governments maintain power is by systematic deception in, and attempts to monopolize, public communications.[50] The Rapporteur repeats uncritically claims by dictatorial governments that sanctions prevent them from responding to emergencies and disasters, when these same governments appear to face no difficulty whatsoever in reacting to public protests for human rights in their country with overwhelming shows of police force, or conducting full-scale invasions of foreign sovereign states. The Report makes no apparent effort to distinguish valid, objective, and reliable evidence from self-interested advocacy by authoritarian state governments.

Looking beyond the Douhan Report, there is reliable evidence that overcompliance with secondary sanctions does sometimes occur. The U.N. Security Council recently responded to the concerns of humanitarian NGOs on this front[51] by adopting a resolution proposed by the United States broadly to exempt humanitarian assistance and related transactions from any sanctions adopted by the Security Council under its Chapter VII authority.[52] At the national level, the U.S. Department of the Treasury itself has recognized the concern and has recently taken measures to dissuade banks from over‑complying with U.S. sanctions programs using a National De-Risking Strategy.[53] The Department’s Office of Foreign Assets Controls, which administers most U.S. economic and trade sanctions programs, has also adopted regulations broadening and clarifying general licenses for humanitarian aid to sanctioned countries.[54]

It is possible that some human rights effects are indirectly traceable to secondary sanctions, but, if so, the Douhan Report offers no credible evidence thereof. That a state policy indirectly and unintentionally impedes private humanitarian assistance does not mean that the measures violate human rights. To make such a judgment, it would be necessary to weigh the reasons for and effects of the policy with the directness and extent of the policy’s impact on the human rights. Of course, notwithstanding the Report’s broad assertion that “the overwhelming majority of unilateral sanctions being applied today” do not conform to international law,[55] it is impossible to conduct such an analysis with regard to sanctions programs as a class, because these factors differ among programs. And it is disingenuous at best to argue that a noteworthy concern in the suffering of persons living under the control of brutal, autocratic regimes and state sponsors of terrorism is not the depredations of their own governments, but economic sanctions by remote states with which they have at most minimal, indirect, and sporadic contact.

  1. Extraterritorial Human Rights Obligations and Secondary Sanctions

Because the persons allegedly affected by secondary sanctions are located in states outside the territory of the sanctioning state, the Report also relies on the claim that human rights obligations apply extraterritorially, specifically to foreign nationals in foreign territory and not under the jurisdiction of the sanctioning state. The obvious problem with this argument is that states do not generally accept the proposition that human rights obligations apply extraterritorially in this manner.

Several core human rights conventions specifically confine the state party’s obligations to persons within the state’s territory or jurisdiction.[56] The United States in particular has insisted on a strictly territorial interpretation of its human rights obligations.[57] International human rights courts and other authorities have largely accepted this principle, with exceptions frequently carved out for cases in which a state exercises de facto or effective control over a person, or over the territory in which the person is located.[58] No such exception is implicated in the Douhan Report’s discussion of secondary sanctions. The Report describes no situation in which persons outside of the sanctioning country whose human rights were allegedly violated were subject to the effective control of the sanctioning country.

Thoughtful arguments have been made that international human rights law should be interpreted to regulate state activities that affect the human rights of persons in certain other situations,[59] which might include cases in which a state exercises an important influence over the human rights of persons outside of its territory and jurisdiction, without strictly controlling that person or the person’s immediate environment. Such arguments merit consideration, particularly in light of the increasing ability of states to exercise power and influence far beyond their borders.

At present, however, they remain claims de lege ferenda, advanced by scholars, treaty monitoring bodies, and U.N. special rapporteurs in the hope of expanding the reach of state obligations to the point at which the obligations are commensurate with that state’s ability to project distant power. They are not statements of the prevailing lex lata. In any event, the Douhan Report advances no argument that such obligations would apply in any specific situation involving secondary sanctions, especially considering that the human rights effects of the sanctions on which the Report focuses are mediated by the decisions of autonomous private actors.

The Douhan Report also asserts that customary international “prohibits a State from allowing its territory to be used to cause damage on the territory of another State.”[60] From the sic utere tuum principle, the Report appears to conclude that states are obligated to prevent private business organizations based in their territory from refraining from doing business in sanctioned countries. To support this unusual interpretation of international law, the Report cites only the International Covenant on Economic, Social, and Cultural Rights (“ICESCR”) and General Comment No. 24 of the Committee on Economic, Social and Cultural Rights (“GC24”). Assuming arguendo the General Comment’s advocacy of state extraterritorial obligations to prevent negative human rights by private corporations accurately reflects customary international law—an assumption that is not universally shared and that would entail extensive state obligations to foreign populations—GC24 in no way supports the conclusion drawn by the Report. In the first place, GC24 relates solely to the Committee’s interpretation of the Convention on Economic, Social and Cultural Rights, to which the United States—the main (indeed, nearly exclusive) target of the Douhan Report—is not a party. It is therefore irrelevant to a key focus of the Report.

Second, the Douhan Report’s reliance on GC24 creates a potential self-contradiction. GC24 asserts that the extraterritorial obligations of states respecting economic, social, and cultural rights include taking “the steps necessary to prevent human rights violations abroad by corporations” in their territories.[61] It nowhere states that “human rights violations” by private enterprises encompass refusing to do business in a sanctioned state. Indeed, in interpreting GC24 in this manner, the Douhan Report faces an antinomy. If all states are obligated to ensure that their business organizations in no way contribute to human rights violations in foreign states, then that interpretation would equally encompass the obligation not to collaborate with state governments pursuing policies that pervasively violate the human rights of their nationals. Yet, the Douhan Report also claims that sanctioning states “negatively impact” human rights by blocking private firms from doing business in the sanctioned states, without reference to the human rights practices of the latter.[62]

The Alleged Problem of Overcompliance

The Douhan Report focuses primarily on what it terms overcompliance with unilateral sanctions, primarily by private actors such as banks, equipment exporters, and nongovernmental organizations with a humanitarian mission.

  1. Overclaiming about Overcompliance

Although the Douhan Report asserts that overcompliance is “a widespread practice on a global scale,”[63] it does not cite actual evidence to support this assertion. As noted, there is evidence that overcompliance does occur and affects some humanitarian organizations. Whether it is “widespread” and “on a global scale” is less certain. All of the general sources the Report cites are other, equally unsupported assertions by third parties. The Report’s support consists primarily of bare assertions by a researcher[64]; a team of lawyers representing the regulated industries[65]; a single French legislator, to the effect that “all European businesses with economic and commercial interests in the United States had chosen to withdraw from” business with Iran[66]; and the Rapporteur herself.[67] These are not reliable and valid sources of evidence.

Aside from an alleged confidential submission,[68] the Report cites a few anecdotal examples for empirical support. The first example relates to the Portuguese bank Novo Banco, which allegedly “declined to process payments for vital medicines and medical supplies ordered by the Bolivarian Republic of Venezuela as a result of sanctions imposed by the United States.”[69] The Report cites only a letter written by the Rapporteur herself, as well as other U.N. rapporteurs and experts, to third parties alleging that the bank had rejected payments. It cites no reply by the Venezuelan government nor any direct evidence. The letter mentions no evidence that (a) the denial of payment actually occurred as alleged, (b) unilateral sanctions motivated any such denial of payment, or (c) any such denial of payment was the result of overcompliance with the sanctions, as opposed to actual compliance. Nor does the Report or the letter provide any evidence that the alleged payments were actually intended for medicines or medical supplies. Indeed, the letter itself denies any certainty in the accuracy of its own allegations: “we do not wish to prejudge the accuracy of these allegations.”[70] In short, the anecdote is the Rapporteur’s own ipse dixit that, in turn, relies on what the Rapporteur herself admits are unverified allegations.

The Report then cites a second example relating to the Swedish medical products manufacturer, Mölnlycke Health Care, which allegedly ceased selling difficult-to-source medical products to Iran due to overcompliance by banks unwilling to process payments to Iran.[71] The Report cites no firm evidence of these events, but instead relies on claims by the Iranian Center for International Criminal Law. The accuracy of anecdotal hearsay of this kind is impossible to judge, and the Report provides no reason for accepting its credibility.

A third example is the widespread boycott of Russia and to some extent Belarus following the Russian invasion of Ukraine.[72] Although the Report’s allegation that “many large foreign companies” ceased business in Russia as a result of overcompliance with the rapidly imposed sanctions regime is plausible, the Report does not offer evidence showing that this change was caused by overcompliance rather than a voluntary desire not to commercially support an international aggressor, given the widespread public condemnation of Russia’s aggression and the evidence of its war crimes in Ukraine.[73] Nor does the Report explain how such boycotts violate human rights, aside from two alleged examples of Russian citizens in France who temporarily could not access funds due to sanctions. These two examples were drawn from a French weekly magazine self-described as satirical.[74]

The remaining examples are of similar character and reliability, depending heavily on claims made by the sanctioned government and never making out a specific, authenticated case of human rights violations. At its most specific, the Report claims that unilateral sanctions sometimes make it difficult for individuals or companies in sanctioned countries, or having the nationality of a sanctioned country, to carry out certain financial transactions[75]—not itself a violation of any internationally protected human right—or to obtain food, water, and medical supplies, which assuredly could have some negative effect on the human rights of persons living in sanctioned countries. But there is a difference between a state having a negative obligation not to interfere with such human rights as sustenance or health care of persons in a foreign jurisdiction, and states having a positive obligation to protect the rights of persons in a foreign jurisdiction from privately-imposed obstacles, even those that indirectly result from the state’s own policies. Of course, there is widespread agreement among international human rights authorities that all human rights are positive.[76] Moreover, article 22 of the Universal Declaration of Human Rights can be read to recognize that all states have an obligation to cooperate in the fulfillment of economic, social, and cultural rights on a global level. Yet, even accepting this position, states are obligated only to take reasonable and proportional measures to protect these rights.

Aside from the lack of support for the Report’s broad claims, as discussed above, alleging that unilateral sanctions indirectly and unintentionally make it more difficult for the sanctioned country to provide food and medicine to its population is not equivalent to alleging that the sanctioning state has violated international human rights law, even accepting that international human rights law imposes extraterritorial obligations of this nature. It is only when the state measure is disproportionate to a legitimate aim that the measure can be deemed to violate international human rights law, and that can be assessed only on a case-by-case basis for each sanction regime. A legal analysis of specific sanctions regimes and their effects on human rights would have been a worthwhile project, had the Report attempted it.

  1. The Connection Between Overcompliance and International Human Rights Law

To argue that secondary sanctions violate international human rights law, the Douhan Report needed to show not only that the alleged negative effects on human rights actually occurred, but that they are attributable to the sanctions. It is difficult to see how this could be the case. According to the Report’s own definition and sole source of authority about overcompliance, a private entity’s decision to cease business with sanctioned countries and their nationals is a voluntary act, not one mandated by the sanctioning state.

Notwithstanding some unsupported claims in the Report, it is not as if compliance with sanctions programs were impossible. The Report suggests that compliance, specifically with U.S. sanctions, is too difficult for “many institutions”: “the due diligence necessary to address risks with precision can be labour-intensive, time-consuming, costly and demand investigative expertise that many institutions lack,”[77] It is a fair point that some sanctions regimes are either detailed and require extensive internal compliance procedures, or are vague and leave some uncertainty. Yet, an “institution” wishing to comply with sanctions generally can reduce risks sufficiently by obtaining competent export counsel to comply with the applicable regulations.[78]

Moreover, the “institutions” to which the Douhan Report refers are almost exclusively multinational enterprises, such as major banks. Although the Report claims that unilateral sanctions “entail prohibitive costs,”[79] it produces no evidence to support the claim that the costs are prohibitive to the typical regulated business organization. The idea that a multinational enterprise immersed in international trade or investment can comply with the complex tax laws and securities regulations of multiple countries, often enforced by criminal penalties, but complying with export controls is beyond its capabilities, is implausible. As noted, sanctions regimes may be complex or vague, but, writing as a former export regulatory lawyer who has represented both banking institutions and humanitarian relief organizations, overcompliance is a product of flawed decisionmaking by private actors, not generally something forced upon them by a government.


It is of course possible to critique coherently the consistency with customary international law of specific unilateral sanctions programs, as many have done. It is also possible that some such programs have sufficiently direct, negative effects on human rights to justify a well-formulated criticism of a specific program, or specific aspects of a program. Unfortunately, the Douhan Report does neither. It is based on selective and unreliable evidence to support arguments that are vague and speculative. Much of the report does not relate to human rights and is, therefore, irrelevant to the mandate itself.

But its most damning shortcomings—aside from its mistaken claim about the consistency of unilateral sanctions with international law in general—is the basis of the report in the claims that states have extensive, positive, extraterritorial obligations under international human rights law toward non-nationals in foreign countries indirectly affected by the state’s policies. Such an aggressive interpretation of international law is unsupported by the relevant treaties, and the international community has never endorsed it with regard to customary international law in such broad terms.

A carefully researched and written report based firmly on international law could have contributed usefully to the debate about unilateral sanctions. To be worthwhile, such a report would have to analyze the policies of the world public order to which unilateral primary and secondary sanctions contribute or detract, and it would draw its conclusions with specificity with regard to actual national sanctions programs and valid data about their effects on the enjoyment of human rights. A tremendous volume of research has been published about the inefficacy, or even counterproductivity, of certain sanctions regimes at achieving their stated purpose.[80] which suggests that even indirect and sporadic negative effects on human rights would be difficult to justify, if a strong case can be made for extraterritorial human rights obligations by the sanctioning state. Such careful analyses of specific sanctions regimes in light of international human rights law remains a project for the future.

             [1].        Dennis S. Karjala Professor of Law, Sandra Day O’Connor College of Law, Arizona State University.

             [2].        This specific rapporteurship was introduced by Iran, which has been the target of sanctions by the United States since 1979, primarily for state sponsorship of global terrorism and pervasive human rights abuses. See 31 C.F.R. pts. 535, 560-62 (2023).

             [3].        Ms. Douhan is a professor of international law at the Belarusian State University.

             [4].        U.N. Doc. A/HRC/51/33 (July 15, 2022) [hereinafter Douhan Report].

             [5].        To be clear, the essay is not intended to present an argument for or against the compatibility of any given unilateral sanctions regime with international law. Because such sanctions depend on specific laws and policies adopted on a case-by-case and country-by-country basis, it is difficult to generalize meaningfully about sanctions as a class. This variability does not of course preclude international law from regulating such sanctions, and norms of international law in general and international human rights law in particular bear on the permissibility of specific unilateral sanctions programs. It is also not the purpose of this essay to make general observations about these norms and how they apply to unilateral sanctions.

             [6].        Douhan Report, para. 2.

             [7].        See Martin A. Weiss, Arab League Boycott of Israel, Cong. Res. Serv. Rep. 7-5700, Aug. 25, 2017, https://sgp.fas.org/crs/mideast/RL33961.pdf.

             [8].        Secondary sanctions may sometimes take other forms, however. For example, Title III of the Helms-Burton Act of 1996, Pub. L. No. 104-114, 110 Stat. 785 (1996), denies entry visas to the family members of, and authorizes civil lawsuits against, persons of any nationality and state of residence who purchased Cuban property that had been expropriated without compensation from U.S. nationals decades earlier.

             [9].        Douhan Report, para. 17.

             [10].     For a current list of active sanctions programs by the United States, almost all of which are unilateral, see the Sanctions Programs and Country Information page of the Department of the Treasury’s Office of Foreign Assets Control, https://ofac.treasury.gov/sanctions-programs-and-country-information.

             [11].     31 C.F.R. pt. 515 (2023).

             [12].     For a current list of EU sanctions programs, see European Union, EU Sanctions Map, https://www.sanctionsmap.eu/#/main. This website allows filtering of the sanctions map by their unilateral (EU) or multilateral (UN) character.

             [13].     For a current list of UK sanctions programs, see United Kingdom Government, Financial sanctions targets by regime, https://www.gov.uk/government/collections/financial-sanctions-regime-specific-consolidated-lists-and-releases.

             [14].     For a current list of Canadian sanctions programs, see Government of Canada, Current sanctions imposed by Canada, https://www.international.gc.ca/world-monde/international_relations-relations_internationales/sanctions/current-actuelles.aspx?lang=eng.

             [15].     For a current list of Australian sanctions programs, see Australian Government, Department of Foreign Affairs and Trade, Sanctions regimes, https://www.dfat.gov.au/international-relations/security/sanctions/sanctions-regimes.

             [16].     See Donald L. Losman, The Arab Boycott of Israel, 3 Int’l J. Middle East Stud. 99 (1972).

             [17].     See West African bloc Ecowas maintains sanctions against Mali, RFI, Mar. 26, 2022, https://www.rfi.fr/en/africa/20220326-west-african-bloc-ecowas-maintains-sanctions-against-mali; West African bloc sanctions Guinea, condemns Mali for detaining Ivorian troops, Reuters, Sept. 23, 2022, https://www.reuters.com/world/africa/west-african-bloc-sanctions-guinea-condemns-mali-detaining-ivorian-troops-2022-09-23/.

             [18].     See, e.g., Singapore Ministry of Foreign Affairs, Sanctions and Restrictions Against Russia in Response to its Invasion of Ukraine, Mar. 5, 2022, https://www.mfa.gov.sg/Newsroom/Press-Statements-Transcripts-and-Photos/2022/03/20220305-sanctions; Ministry of Foreign Affairs of Japan, Press Release, Sanction Measures following Russia’s Recognition of the “Independence” of the “Donetsk People’s Republic” and the “Luhansk People’s Republic” and the ratification of treaties with the two “Republics” (Statement by Foreign Minister HAYASHI Yoshimasa), Feb. 24, 2022, https://www.mofa.go.jp/press/release/press4e_003085.html; Ministry of Foreign Affairs of Japan, Press Release, Sanction Measures following the launce of military actions by Russia in Ukraine (Statement by Foreign Minister Hayashi Yoshimasa), https://www.mofa.go.jp/press/release/press6e_000371.html; Ministry of Foreign Affairs, Republic of China (Taiwan), Press Release, The Republic of China (Taiwan) government strongly condemns Russia’s invasion of Ukraine in violation of the UN Charter, joins international economic sanctions against Russia, Feb. 25, 2022, https://en.mofa.gov.tw/News_Content.aspx?n=1328&s=97420; Ministry of Foreign Affairs, Republic of Korea, Press Release, MOFA Spokesperson’s Statement on Korean Government’s Decision on Export Control Measures on Belarus, Mar. 6, 2022, https://www.mofa.go.kr/eng/brd/m_5676/view.do?seq=322011&page=1; Ministry of Foreign Affairs, Republic of Korea, Press Release, Korean Government’s Decision on Additional Financial Sanctions against Russia, Mar. 7, 2022, https://www.mofa.go.kr/eng/brd/m_5676/view.do?seq=322012&page=1.

             [19].     See, e.g., Alena Zhabina, Deutsche Welle, Mar. 6, 2023, https://www.dw.com/en/is-china-secretly-imposing-unilateral-sanctions/a-64897766.

             [20].     Unilateral coercive measures, IHL and impartial humanitarian action: An interview with Alena Douhan, Int’l Rev. of the Red Cross No. 916-917, Feb. 2022, at https://international-review.icrc.org/articles/unilateral-coercive-measures-ihl-interview-with-alena-douhan-916 (hereinafter IRRC Interview). Although Douhan states in the interview that “there are disputes about which measures are legal and which measures are illegal,” she then contradicts herself: “It is necessary to acknowledge that in accordance with resolutions of the Human Rights Council and the UN General Assembly, UCMs [unilateral coercive measures] are illegal.” Id.

             [21].     Alena F. Douhan, Unilateral Coercive Measures: Effects and Legality Issues, Yale J. Int’l L. Online, June 20, 2023, https://www.yjil.yale.edu/unilateral-coercive-measures-effects-and-legality-issues.

             [22].     See, e.g., General Agreement on Tariffs and Trade art. I, Oct. 30, 1947, 55 U.N.T.S. 187; General Agreement on Trade in Services art. II, Apr. 15, 1994, 1869 U.N.T.S. 183 (1994).

             [23].     GATT art. XXI; GATS art. IVbis. See also Sarah H. Cleveland, Human Rights Sanctions and International Trade: A Theory of Compatibility, 5 J. Int’l Econ. L. 133 (2002).

             [24].     IRRC Interview, supra note 20, at n.15.

             [25].     U.N. Charter ch. IV.

             [26].     One could of course argue that unanimous, or nearly unanimous, resolutions of the General Assembly can supply reliable evidence of opinio juris under the right circumstances. Neither the Douhan Report, nor the Special Rapporteur in her interview with IRRC, ever makes this argument, perhaps because it would not apply to highly contested resolutions such as the ones she cites.

             [27].     Prof. Bin Cheng famously made such an argument in the context of novel problems of international law, although his claim is not widely accepted by international lawyers. See Bin Cheng, United Nations Resolutions on Outer Space: “Instant” International Customary Law?, 5 Indian J. Int’l L. 23 (1965). See also Michael P. Scharf, Seizing the “Grotian Moment”: Accelerated Formation of Customary International Law, 43 Cornell Int’l L.J. 439, 446-51 (2010) (exploring some ways that General Assembly resolutions may influence the formation of customary international law).

             [28].     HRC Res. 15/24, Oct. 6, 2010, paras 1-3; HRC Res. 24/14, Oct. 8, 2013, paras 1–3; HRC Res. 30/2, Oct. 12, 2015, paras 1–2, 4; HRC Res. 34/13, Apr. 7, 2017, paras 1–2, 4; HRC Res. 45/5, Oct. 6, 2020, pmbl. G.A. Res. 69/180, Jan. 30, 2015, paras. 5-6; G.A. Res. 70/151, Mar. 7, 2016, paras. 5-6; G.A. Res. 71/193, Jan. 20, 2017, paras. 5-6. Each of these resolutions was adopted over the opposition of at least 53 states. UN GAOR, 69th sess., 73d plen. mtg., Dec. 18, 2014, UN Doc. A/69/PV.73, at 15/31; UN GAOR, 70th sess., 80th plen. mtg., Dec. 17, 2015, UN Doc. A/70/PV.80, at 16/39; UN GAOR, 71st sess., 65th plen. mtg., Dec. 19, 2016, UN Doc. A/71/PV.65, at 28/47.

             [29].     See Articles on the Responsibility of States for Internationally Wrongful Acts art. 51, U.N. Doc. A/56/49(Vol. I)/Corr.4 (2005).

             [30].     See, e.g., M. Shervin Majlessi, Use of Economic Sanctions under International Law: A Contemporary Assessment, 39 Can. Y.B. Int’l L./Annuaire can. de droit int’l 253 (2002). See also David S. Cohen & Zachary K. Goldman, Like it or Not, Unilateral Sanctions Are Here to Stay, 113 AJIL Unbound 146 (2019).

             [31].     Presumably, the Rapporteur’s claims would apply equally to plurilateral sanctions not endorsed by the UN Security Council.

             [32].     See Articles on the Responsibility of States for Internationally Wrongful Acts, supra note 29, arts. 22, 48-54.

             [33].     See Douhan Report, para. 12.

             [34].     E.g., id. at para. 53 (repeating uncritically Syrian government claims to this effect).

             [35].     Id. at para. 61.

             [36].     Dragan Stavljanin & Pete Baumgartner, Persian Might: How Strong Is Iran’s Military?, RadioFreeEurope/RadioLiberty (Jan. 9, 2020), https://www.rferl.org/a/persian-might-a-look-at-tehran-s-military-capability-amid-the-u-s–iranian-conflict/30368967.html.

             [37].     Alfred Joyner, How Strong Is Venezuela’s Military?, Newsweek (Jan. 22, 2019), https://www.newsweek.com/how-strong-venezuelas-military-1277131.

             [38].     Douhan Report, para. 17.

             [39].     For example, a person subject to English sanctions has the right to ministerial review, as well as appeal the designation to a court under broad circumstances. See Sanctions & Anti-Money Laundering Act 2018, c. 13, § 38, https://www.legislation.gov.uk/ukpga/2018/13/contents/enacted.Although contesting sanctions is more difficult in the United States, because courts tend to defer greatly to the Executive Branch on matters implicating national security and foreign policy, see, e.g., Holy Land Found. for Relief & Dev. v. Ashcroft, 333 F.3d 156, 162 (D.C. Cir. 2003), a person designated as a “specially designated national” (SDN) of a sanctioned country, and therefore subjected to sanctions as well, may petition the U.S. Department of the Treasury for removal from the SDN list. See 31 C.F.R. § 501.807 (2022). Moreover, a sanctioned person may challenge a designation under the judicial review provisions of the Administrative Procedures Act, 5 U.S.C. § 706(2)(A) (2022).

             [40].     On this point, see Human Rights Committee, General Comment No. 32, para. 16, UN Doc. CCPR/C/GC/32 (2007).

             [41].     Douhan Report, para. 44.

             [42].     Id. at para. 54-57. The Report also suggests that the sanctions thereby violate the “human right to development.” The human right to development is a complex concept, and the question raised about the effect of the sanctions on this putative right is also a complicated claim about which the Report offers no argument, either about the scope of the right, the manner in which sanctions factually affect the right, the availability of justifications for any such effect, and the ultimate consistency of the sanctions with the right to development. This essay will therefore not engage with an argument that the Report has not seriously made.

             [43].     See id. at paras. 56, 62. Some humanitarian NGOs have claimed that they have encountered substantial difficulty in delivering aid to sanctioned countries. See, e.g., Kylie Atwood, Treasury Department to Roll Out New Policy to Make Global Humanitarian Support Easier, CNN (Dec. 20, 2022), https://perma.cc/8FC5-BQSK.

             [44].     See, e.g., Office of Foreign Assets Control, General License No. 27, 31 CFR pt. 587 (2023) (exempting humanitarian projects from sanctions on Russia set forth in Executive Order 14024), https://ofac.treasury.gov/media/922211/download?inline; 31 C.F.R. §§ 515.206(b), 515.533, 515.572(a), 515.574-.575, 515.591 (2022) (providing general and specific licenses for humanitarian aid to Cuba); Council Regulation (EU) 2017/1509 of Aug. 30, 2017, art. 34(7) (derogation of sanctions on North Korea for humanitarian purposes); Council Regulation (EU) No. 401/2013 of May 2, 2013, as amended by Council Regulation (EU) 2021/479 of Mar. 22, 2021, art. 4da (derogation of sanctions on Myanmar for humanitarian purposes).

             [45].     See, e.g., id. at 4 nn. 10 & 11, paras. 53 & 54, 56, 60.

             [46].     Id. at para. 60.

             [47].     On this point, see, e.g., Belarus: 2022 another disastrous year from media freedom, Int’l Press Inst. (Dec. 22, 2022), at https://ipi.media/belarus-2022-another-disastrous-year-for-media-freedom/; Belarusian journalists forced into exile to speak out, Reporters Without Borders (May 7, 2021), https://rsf.org/en/belarusian-journalists-forced-exile-speak-out; Ales Herasimenka, Belarus. The two hidden mechanisms of media censorship, New E. Eur. (May 18, 2016), https://neweasterneurope.eu/2016/05/18/belarus-the-two-hidden-mechanisms-of-media-censorship/.

             [48].     The citation in the report is to a webpage that no longer exists. The policy as of this publication may be found at Editorial Office Guidance for Applying International Sanctions, The Wiley Network, https://www.wiley.com/en-us/network/publishing/research-publishing/editors/editorial-office-guidance-for-applying-international-sanctions.

             [49].     See Douhan Report, at 4 n. 10 & 11, paras. 53 & 54.

             [50].     See Jennifer Dresden et al., Protect Democracy, The Authoritarian Playbook, June 2022, at 10, https://protectdemocracy.org/wp-content/uploads/2022/06/the-authoritarian-playbook-how-reporters-can-contextualize-and-cover-authoritarian-threats-as-distinct-from-politics-as-usual-1.pdf. See generally Sergei Guriev & Daniel Treisman, Spin Dictators: The Changing Face of Tyranny in the 21st Century (2022) (describing how modern and postmodern authoritarian regimes use deception and propaganda to maintain power).

             [51].     See U.N.S.C., 9214th mtg., Dec. 9, 2022, U.N. Doc. S/PV.9214, at 2 (remarks of Linda Thomas-Greenfield, U.S. Permanent Rep. to the U.N.).

             [52].     S.C. Res. 2664 (Dec. 9, 2022), U.N. Doc. S/RES/2664.

             [53].     See Daniel Flatley, Treasury Officials Warn Banks Over Sanctions Compliance Overkill, Bloomberg, Jan. 6, 2023, https://www.bloomberg.com/news/articles/2023-01-06/treasury-officials-warn-banks-against-sanctions-overcompliance.

             [54].     See 87 Fed. Reg. 78470 (Dec. 21, 2022), https://ofac.treasury.gov/media/930146/download?inline; 87 Fed. Reg. 78484 (Dec. 21, 2022), https://ofac.treasury.gov/media/930151/download?inline

             [55].     Douhan Report, para. 87.

             [56].     See, e.g., ICCPR art. 2(2); CRC art. 2(1); ECHR art. 1; ACHR art. 1(1); European Social Charter art. 30; Revised European Social Charter art. L.

             [57].     See Beth Van Schaack, The United States’ Position on the Extraterritorial Application of Human Rights Obligations: Now is the Time for Change, 90 Int’l L. Stud. 20, 23-24 (2014).

             [58].     See, e.g., Al-Skeini & Others v. United Kingdom, [2011] ECHR 1093 (July 7, 2011); see also Saleh Al-Asad v. Djibouti, Commc’n No. 383/10, [2014] ACHPR 1, para. 134 (Oct. 14, 2014); López Burgos v. Uruguay, Human Rts. Comm., Commc’n No. 052/1979, Decision of July 29, 1981, U.N. Doc. CCPR/C/13/D/52/1979; Hum. Rts. Comm., Gen. Cmt. 31, para. 10, U.N. Doc. CCPR/C/21/Rev.1/Add.13 (May 26, 2004); Inter-Am. Comm’n on Human Rts., Rep. No. 109/99, Case No. 10.951, Sept. 29, 1999.

             [59].     See, e.g., Philipp Janig, Extraterritorial Application of Human Rights, 2 Elgar Encyclopedia of Human Rights 180, paras. 34-51 (Christina Binder et al. eds., 2022); Mariagiulia Giuffré, A functional-impact model of jurisdiction: Extraterritoriality before the European Court of Human Rights, Questions of Int’l L., Zoom-in 82, at 53 (2021); Van Schaack, supra note 57, passim.

             [60].     Douhan Report, para. 66.

             [61].     Committee on Economic, Social & Cultural Rights, General Comment No. 24, U.N. Doc. E/C.12/GC/24, para. 26 (2017).

             [62].     Douhan Report, para. 3.

             [63].     Id., para. 18.

             [64].     Id., para. 18 n.20 (citing Erica Moret, Time to act: Harmonizing global initiatives and technology-based innovations addressing de-risking at the interfacing sanctions-counterterrorism-humanitarian nexus, in International Sanctions: Improving Implementation Through Better Interface Management 74 (Sascha Lohmann & Judith Vorrath eds., 2021)). Moret mentions a number of projects by NGOs, IGOs, and scholars that deal with the humanitarian effects of multilateral or unilateral sanctions, but she offers no evidence of the existence of overcompliance.

             [65].     Id.

             [66].     Id. para. 42.

             [67].     Id. para. 17 n.19.

             [68].     Id., para. 20 n.22.

             [69].     Id., para. 19.

             [70].     See Letter from Alena Douhan to Venezuelan Government, July 12, 2021, ref. AL OTH 207/2021, at 4, available at https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=26509.

             [71].     Douhan Report, para. 26.

             [72].     Id., para. 27.

             [73].     On this point, see Jeffrey Sonnenfeld & Steven Tian, Some of the Biggest Brands Are Leaving Russia. Others Just Can’t Quit Putin. Here’s a List, N.Y. Times, Apr. 7, 2022, https://www.nytimes.com/interactive/2022/04/07/opinion/companies-ukraine-boycott.html.

             [74].     Id., para. 33. See Le Canard enchaîné, https://www.lecanardenchaine.fr/.

             [75].     E.g., Douhan Report, paras. 34-35.

             [76].     See Aaron Fellmeth, Paradigms of International Human Rights Law 221 (2016).

             [77].     Douhan Report, para. 43.

             [78].     I personally advised global business firms on export regulatory compliance from 1997 to 2004, and I had no difficulty in instructing my clients about how to comply with U.S. secondary sanctions, both in individual cases and in creating internal compliance programs. The only real difficulty arose when a client faced a conflicting blocking statute imposed by other states, such as Canada, the EU, and Mexico. However, these cases were very unusual and did not relate to human rights or humanitarian issues.

             [79].     Douhan Report, para. 50. The Report cites an annual report by Union Bank of Switzerland, in which the bank claims that the costs and risks of evolving sanctions for financial entities is high. However, even if the opinion of the authors of a bank report held decisive weight, nothing in that report supports the implied assertion that the cost of compliance to a $7.63 billion multinational bank requires it to over-comply with such sanctions. See UBS Group AG Net Income 2015-2023, https://www.macrotrends.net/stocks/charts/UBS/ubs-group-ag/net-income.

             [80].     See, e.g., Gary Clyde Hufbauer et al., Economic Sanctions Reconsidered (3d ed. 2009); Agathe Demarais, Backfire: How Sanctions Reshape the World Against U.S. Interests (2022); Dursun Peksen & Cooper Drury, Coercive or Corrosive: The Negative Impact of Economic Sanctions on Democracy, 36 Int’l Interactions 240 (2010); Reed M. Wood, “A Hand upon the Throat of the Nation”: Economic Sanctions and State Repression, 1976-2001, 52 Int’l Stud. Q. 489 (2008); Robert A Paper, Why Economic Sanctions Do Not Work, 22 Int’l Security 90 (1997). But see Christian von Soest & Michael Wahman, The Underestimated Effect of Democratic Sanctions, E-Int’l Relations, Apr. 26, 2014, http://www.e-ir.info/2014/04/26/the-underestimated-effect-of-democratic-sanctions/.

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