© T.M.C. Asser Press and the author(s) 2015Ali Z. Marossi and Marisa R. Bassett (eds.)Economic Sanctions under International Law10.1007/978-94-6265-051-0_7
7. Economic Sanctions Infringing Human Rights: Is There a Limit?
VU University Amsterdam, De Boelelaan 1105, 1081 HV Amsterdam, The Netherlands
Paul de Waart
7.2.2 Human Duties to Society
7.3.1 Right to Democracy
7.3.2 State of Necessity
7.3.3 Social Security
7.4.1 Freedom of Trade
7.4.2 Evaluation of Legality
7.5.1 Eradication of Poverty
The present chapter pursues the question to what extent contemporary international law puts a check on the adverse effects economic sanctions have on individual human rights, particularly economic, social, and cultural rights. It deals with economic coercion from the perspective of its objective: restoration of legality or political influence in domestic affairs. The relationship between freedom of trade and economic sanctions is discussed. Finally, the focus is on the significance of the adoption of the Guiding Principles on Extreme Poverty and Human Rights for setting a limit to economic sanctions that violate the core content of economic human rights. The basic assumption of the author is that public international law is really law. In view of this, the present state of the art in the ongoing debate on general international law as law will be briefly discussed, for which the new Max Planck Encyclopedia of Public International Law acts as guide.
7.1 Does International Law Matter?
The discussion concerning the impact economic sanctions have on individual human rights focuses mainly on economic, social, and cultural rights (esc-rights). Economic sanctions have become a fact of life and a tool of international diplomacy.1 This raises the question as to whether international law really matters when States or international organizations impose sanctions on States and even non-State actors, including individuals. The present state of international law in the recently published Max Planck Encyclopedia of Public International Law (MPEPIL) furnishes evidence that States and international organs, including the UNSC, must refrain from adopting unilateral coercive measures that have negative effect on the basic means of survival.2 This will be demonstrated on the basis of the following scheme:
Reality of international law;
Impact of international human rights law;
Immunity of esc-rights to economic sanctions;
Right to impose economic sanctions; and
Human rights limits.
7.1.1 The Reality of International Law
The Max Planck Institute invited authors “to cover their topic in an objective, comprehensive manner but also to add a personal assessment, delineating their personal view.”3 This invitation gave them freedom to discuss the state of international law from the perspective of doctrine and method. Illustrative is an observation in an essay on ethos, ethics, and morality in international relations that individual normative convictions and sensibilities carry the professional ethos of each international lawyer.4
The present exponent of skepticism about the universality of international law, Marti Koskenniemi, marked the MPEPIL by his contributions on international legal theory and doctrine, the history of international law and the methodology of international law. Koskenniemi passes the message that today’s international legal theory is more than ever dominated by a clash between norms and facts, though both are essential. Without a normative perspective a doctrine gets stuck in a “non-binding apology,” without factuality in an “ephemeral utopia.”5 From the perspective of methodology, Koskenniemi considers international law as an argumentative practice to persuade targeted audiences such as courts, colleagues, or politicians, of the correctness of the position one defends.6 In his view, “International law is what international lawyers do and how they think.”7
MPEPIL’s chief-editor Richard Wolfrum opens his answer to the question of whether international law is law with the provocative conclusion by American international lawyer and former Ambassador to the United Nations John R. Bolton, that international law is not law but a series of political and moral arrangements that stand or fall on their own merits, and that anything else is simply theology and superstition masquerading as law.8 Wolfrum seems to share the views of Koskenniemi. Yet he reconciles himself to the argument that the development of a regime on implementation of international law has not kept pace with the development of normativity. This may explain fragmentation of international law where the gap between legislation, execution, and settlement of disputes in sectors of the international society becomes narrower. The rise of this phenomenon in international law9 confirms that this law is not different from national law. The regime theory does not alter that fact. It only enables international lawyers to get and hold, like their national colleagues, a grip on the increasing complexity of their field of study.10 Be this as it may, the volume of the tables of decisions of international adjudicatory bodies, UN committees’ statements, decisions of national courts, and international instruments shows that international law can bear comparison with national law.11
7.1.2 Mutual Agreement Basis Manmade Law
Wolfrum concludes that international law may not be considered separately from regional or national law as international law relies on those levels for its implementation and enforcement.12 This is certainly true but not decisive because of the tension between international law and national law for lack of a hierarchical order.13 Wolfrum stresses the horizontal character of international law, being guided as it is by the structural principles of coordination, cooperation, and solidarity. As for legislation, however, such principles also underlie national law, the difference being mainly the settlement of disputes to which the implementation of legislative measures may give rise.
Both at national and international levels the distribution of powers is a question of efficiency and practicability. At both levels the development of regimes does not always keep pace with the development of normativity. At both levels, mutual agreement is the basis of law. In other words, lawmaking is the outcome of a vote in favor or against by legal subjects within the framework of the pertinent institutions. In lawmaking, the border between law and politics is by definition a fluid one because of the need of the actors involved to find some common ground. Law is not what lawyers do and think but what States and non-State actors do and think to balance individual and community interests. Fragmentation of law may hinder community interests in the international legal system,14 but is not typical for that legal system. The exception might be international human rights law because of its focus on individual rights at the expense of society. However, from the world of business to the world of governments, “emphasis on strengthening fidelity to common human values is reaching the top of the agenda.”15
7.2 The Impact of Human Rights Law
The rights of individuals, recognized in international treaties and customary international law, are said to be a distinct branch of international law.16 International human rights law is hardly concerned with corresponding human duties. It does so with obligations of States to implement the rights of individuals, particularly with regard to civil and political rights (cp-rights). The key question is whether international human rights law should be distinguished from general international law—interstate law—as a special regime to protect it against the impact of international politics.
7.2.1 Special or General International Law
The pertinent study of the Committee on International Human Rights Law and Practice of the International Law Association (ILA) based the relationship between general international law and international human rights law on integration instead of fragmentation. The study noted that this integration or reconciliation helps to humanize general international law and that to transform it gradually from classic interstate law “into the law of the world community reflecting the interests of mankind.”17
In 2008, the Committee emphasized in its final report to the seventy-third ILA Conference that the impact of international human rights law on general international law is a process that only just started. It considered this process highly desirable for softening “the international legal order’s predominantly State-centered nature and to accommodate the special-non-reciprocal nature of international obligations in the field of human rights.”18 In doing so, the Committee successfully avoided wishful thinking, reflected in the narrow views of human rights zealots. This is apt for the ILA, an organization of some 3,500 lawyers in private practice, academia, government, and the judiciary, as well as nonlawyer experts from commercial, industrial, and financial spheres from all quarters of the world. The ILA concluded unanimously that:
[T]he impact of human rights law on general international law reflects a response to a deeply and widely felt need to make international legal order more responsive to the needs of a wider range of actors than just states, focusing on the individual and including the international community, this term understood as referring to humankind as a whole and not just the community of states.19
7.2.2 Human Duties to Society
The International Bill of Human Rights (IBHR)20 spells out basic human rights but only briefly indicates human duties. In explaining this imbalance it may be stated that contemporary international human rights date from the end of World War II. The need was then felt to save succeeding generations from the scourge of war.21 The West, in particular, was afraid that the inclusion of corresponding human duties in international human rights law would undermine the intended protection of individuals against the State. Moreover, the West was of the view that the inclusion of the cp-rights and esc-rights set forth in the 1948 UDHR in a single human rights treaty would give States an excuse to not protect cp-rights under the pretext of economic underdevelopment.22 In the heyday of the Cold War, the West emphasized the importance of cp-rights for economic and social development over and above esc-rights, while the East did the opposite. This may explain why the UNGA saw no other possibility than to request ECOSOC to prepare two draft international covenants on human rights: the 1966 ICCPR and the 1966 ICESCR.23
As for human duties, UDHR Article 29(1) only says that everyone has duties to the community, in which alone the free and full development of his personality is possible. The remainder of the article, however, puts the emphasis on the exercise of the rights and freedoms, subject only to limitations determined by law.24 The Preambles of the ICCPR and the ICESCR refer to the responsibility of the individual to strive for the promotion and observance of the rights recognized in both covenants but do not go beyond that, albeit the ICCPR speaks of responsibilities of individuals in relation to the exercise of the right to hold opinions (Article 19) and the equality of spouses as to marriage (Article 23).
The 1993 UN World Conference on Human Rights recommended, in vain, the speedy completion and adoption by the then UN Commission on Human Rights of the draft declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms.25 The resulting Declaration, adopted by the UNGA in 1999 on the occasion of the 50th anniversary of the UDHR, did not do much more than confirm the importance of the role of the pertinent non-State actors.26 The same applied to the commentary of the UN Special Rapporteur on the Situation of Human Rights Defenders on this Declaration.27 The purpose of the Declaration was to create awareness of the rights and not of the inherent responsibilities. One explanation for this phenomenon might be the ongoing discussion as to whether the focus on human responsibilities for the promotion and protection of human rights will weaken the protection of individuals against States—Western countries—or the obedience of individuals to God’s commandments as the true source of human rights—the view of many Islamic countries.28 Be this as it may, the MPEPIL does not include an entry on individual duties or responsibilities.
7.2.3 Legal Nature of Esc-Rights
An extensive Dutch study from the 1970s on the changing structure of international economic law concluded that only an international economic order based on freedom, equality, and solidarity can promote and support the well-being and self-development of all world citizens; the well-being and self-determination of nations; and the effective functioning of States: “What is not possible is the combination of a just and efficient new international economic order with States aiming only at their own objectives, on the basis of absolute internal and external sovereignty.”29 Forty years later a former chairman of the Appellate Body of the WTO Matthew Craven concluded in the MPEPIL that the New International Economic Order (NIEO), embodied in the 1974 UNGA Declaration on the Establishment of a New International Economic Order,30 had not succeeded in attuning the world economy to the interests of developing countries. He noted, however, that its legacy is not only negative.31 After all:
[T]he concept of solidarity … permeates certain legal discourses in the international law sphere, where it appears to be something more than mere cooperation or reciprocity … In all cases solidarity is undoubtedly one of the most interesting witnesses of the transformation of international law into ‘a value based international legal order’.32
Discussing the significance of ICESCR as a human rights guarantee in his study of the origins and development of this covenant, Craven mentions the widespread perception that esc-rights are not justiciable and therefore not suitable for or capable of being invoked by domestic courts.33 In his article on the ICESCR in the MPEPIL, Eibe Riedel, former member of the CESCR, states that the view that esc-rights are not human rights at all, but at most are political and ethical standards without legal relevance, is now only rarely voiced.34 Illustrative is the international recognition of the right to social security, i.e.:
[T]he right to access and maintain benefits, whether in cash or in kind, from (a) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member; (b) unaffordable access to health care; (c) insufficient family support, particularly children and adult dependents.35
Nevertheless, the controversy on esc-rights as rights still appears to divide all corners of the world when the legal character of the so-called third generation of human rights, reflecting the special needs of new States—such as development, peace, humanitarian assistance, and a healthy environment—known as solidarity rights36 is at stake. In 2012 the UNHRC adopted a resolution on human rights and unilateral economic measures in which it decided, amongst others, “to give due consideration to the negative impact of unilateral coercive measures in its task considering the right to development.” With the exception of Russia, the 35 votes in favor were from the ‘South.’ The 12 votes against were from the remaining ten European UNHRC members and the United States.37
7.3 The Immunity of Esc-Rights to Economic Sanctions
The question presents itself whether, as part of general international law, esc-rights are less immune to unilateral economic coercive measures than cp-rights, even in a democratic society. After all, unlike the ICCPR,38 the ICESCR does not provide States with the duty to ensure effective remedies to everyone within their jurisdiction whose rights have been violated. Moreover, the ICESCR does not put constraints on the freedom of States to derogate from their obligations in times of economic crisis or public emergency. It only contains a general article on the authority of Parties to subject esc-rights to limitations by law for promoting the general welfare in a democratic society.39 As for the condition of democratic society, it holds true:
While there is no single model of a democratic society, a society which recognizes and respects the human rights set forth in the United Nations Charter and the Universal Declaration of Human Rights may be viewed as meeting this definition.40
In assessing the immunity of esc-rights to economic sanctions, one should not overlook:
The ambiguity of democracy as a human right;
The proclamation of a state of necessity in economic crises; or
The right to social security.
7.3.1 Right to Democracy
It should be noted that the IBHR does not contain a right to democracy.41 International law at large does not shed light on whether such a right exists; let alone its scope and content.42 As for the scope and content of democracy, there is a procedural and a substantive approach. The former emphasizes elections and political participation:
In this view, democracy concerns the way in which the government is chosen, primarily through elections, and does not involve other human rights that protect citizens against forms of governmental overreaching. This separation of democracy on the one hand and human rights on the other seemingly mirrors the distinction in American constitutional theory between ‘majoritarian’ and ‘counter-majoritarian’ rights.43
As for the latter approach: “Political participation and government accountability, the central features of the procedural view, are seen as impossible to achieve without a robust protection of other rights.”44 Parties to the IBHR have in both approaches a certain margin of appreciation in setting national esc-policies in crisis situations.45 Under the procedural approach, there is a greater risk that esc-rights will only serve as a paper tiger. Admittedly, both the ICCPR and the ICESR aim to prevent misuse of the rights recognized therein as well as misuse of higher national standards that might exist.46 As for the right of States to put limitations on esc-rights, Riedel notes that, “the spirit of this article is not to be understood as permissive in terms of State behavior, but rather as being protective of the individual’s rights. In any case, the essence of the Covenant’s rights must at all times be preserved by national law.”47 The vagueness of the wording of ICESCR provisions and relatively weak international monitoring makes the protection of esc-rights mainly dependent on national legislation.48
7.3.2 State of Necessity
The ICCPR allows Parties to derogate from their obligations under that covenant in situations of public emergency that have been officially proclaimed, but some cp-rights may never be derogated from.49 The ICCPR thus excludes the right of a State Party to invoke the general doctrine of necessity as a justification for noncompliance with its treaty obligations.50 This is not the case with the ICESCR. Due to the absence of a similar provision, States may call upon the state of necessity51 in an economic crisis as a justification for subjecting esc-right to limitations or derogations. For this very reason, in 1984 the ILA adopted the Paris Minimum Standards of Human Rights in a State of Necessity.52
The margin of appreciation that Parties to the IBHR have in proclaiming a state of necessity should take into account the third-party effect on esc-rights not only internally but also externally and particularly when unilateral economic measures against other States create technical barriers to trade in disguise.53 Moreover, States should not overlook that in a democratic society their nationals are accountable for abusing everyone’s esc-rights in times of crisis.54 This holds particularly true for the prevention and removal of absolute poverty.55 The esc-rights related to basic needs equal cp-rights as hard law in that respect.56 But the justiciability of esc-rights depends on elaboration and interpretation by General Comments of Special Rapporteurs at the international level57 and the adoption of legislative measures by States at the national level.58
7.3.3 Social Security
International legal protection of esc-rights is still hampered by the lack of a worldwide consensus on the scope and content of the right to social security required to prevent or remove absolute poverty59 of people between and within States. The still-prevailing principles of freedom of the market, sovereign equality of States, and the prohibition of intervention by States in each other’s domestic affairs are not a productive framework for an effective war against want. This induced the ILA to declare recently that:
The principle of equity (incorporating notions of intergenerational equity, intragenerational equity and substantive equality) and the goal of the eradication of poverty should, where appropriate, contextualise and inform judicial and quasi-judicial decision-making when matters of sustainable development are raised. Although judicial bodies and quasi-judicial bodies cannot alone address the social, economic, governance and political issues that invariably form key aspects of such disputes, it is nevertheless incumbent upon judicial and quasi-judicial bodies to further such principles of equity and fairness in exercising their judicial function.60
7.4 The Right to Impose Economic Sanctions
The MPEPIL champions the reservation of the term ‘sanction’ for coercive measures imposed or mandated by competent international organizations following a serious breach of international law in order to constrain the targeted entity to restore legality.61 Economic sanctions are said to be used not so much to restore legality as to force or at least influence a country, entity, or individual to change policies (or even its government), or at least to demonstrate the sender’s opinion about the other’s policies.62 The exercise of economic pressure, even in the absence of specific obligations, must not exceed a certain limit, lest it constitute a violation of the customary principle of nonintervention. However, it is difficult to draw a line between a State’s own legitimate economic interests and illegal pressure put upon another State. The later may violate the prohibition of intervention.63
The ICJ has stated that intervention is wrongful when it uses methods of coercion in regard to choices that must remain free, such as the choice of a political, economic, social, and cultural system, and the formulation of foreign policy.64 However, according to the ICJ in the same judgment, a State is not bound to continue particular trade relations longer than it sees fit to do so, in the absence of a treaty commitment or other specific legal obligation. Moreover, in the ICJ’s view, the giving of economic aid is unilateral and voluntary. Therefore, its cessation could be regarded as a violation of the prohibition of intervention only in exceptional circumstances. All in all, there is still no consensus as to when under international law economic sanctions go beyond the limit of intervention.65
7.4.1 Freedom of Trade
The WTO stands for a multilateral trading system that in the interest of its participants—foreign companies, investors, governments—is based on nondiscrimination; openness; predictability and transparency; competitiveness; benefit for less developed countries; and environmental protection.66