Last week, the Trump administration sanctioned four judges of the International Criminal Court, who were subjected to an asset freeze and a travel ban simply for doing their job. Yesterday, the governments of Australia, Canada, New Zealand, Norway and the United Kingdom sanctioned two extremist Israeli ministers, Itamar Ben-Gvir and Bezalel Smotrich, for inciting violence and other human rights abuses against Palestinians in the West Bank. They, too, were subjected to asset freezes and travel bans. Within the span of a week, the same tool was used by different (allied?) states for very different ends – in the latter case to pursue a measure of justice, in the former to outrage any sense of justice.
For many years, states and scholars have debated the legality of sanctions or coercive measures. For some, sanctions are a legitimate and legal tool of statecraft. For others, sanctions violate the rights of the target state, and/or the human rights of its population or persons who were targeted individually. When it comes to the rights of the target state, sanctions are said – especially by developing states – to violate either the customary prohibition of intervention in another state’s internal or external affairs, or sovereignty, or some specific rule prohibiting unilateral coercive measures (see more Barber and Hoffer).
As for the human rights of the target state’s population, or the rights of targeted individuals, it is manifest that sanctions can harm individual rights, on a scale large or small. For instance, sanctions that cripple the target state’s ability to maintain its health system at a minimum interfere with the right to health. Or, if we look at the sanctioned judges and ministers, the measures imposed on them undoubtedly interfere with their right to freedom of expression, since it was their expressive activity that was the reason for which they were sanctioned. The measures imposed also arguably interfered with their freedom of movement and the right to property.
However, that there is an interference with human rights does not mean that these rights were violated – some restrictions on individual rights can be justified within the established framework of international human rights law. Whether they are so justified depends on the goals they pursue and the effects they cause.
The legality of sanctions, whether from the perspective of state rights or individual rights, is all too frequently framed in a rigid binary fashion, as being either categorically legal or categorically illegal. I was particularly struck by the rigidity of such positions a few weeks ago, when I was invited to participate in a session of the UN Intergovernmental Working Group on the Right to Development, which was devoted to the impact of coercive measures on the right to development.
An argument was advanced there that sanctions (or unilateral coercive measures) violate the right to development, a right which is commonly understood to have both an individual and a collective dimension. I found it particularly striking in this context how the focus on the unilateral and coercive nature of certain measures was regarded as being relevant for a human rights analysis. I also found it particularly striking how a direct connection seemed to be drawn between coercion in the context of the (interstate) prohibition of intervention and a violation of individual rights.
That connection is most visible in the text of the draft covenant on the right to development. That draft text was transmitted a couple of years ago by the Human Rights Council to the General Assembly, for the purpose of convening a diplomatic conference and negotiating a new human rights treaty. As things stand, it seems politically unlikely that such a conference will be convened. It is also unlikely that that the covenant as drafted will ever become a binding treaty. But, its text, especially its Article 14, is nonetheless instructive:
- The use or encouragement of the use of economic or political measures, or any other type of measure, including unilaterally, to coerce a State in order to obtain from it the subordination of the exercise of its sovereign rights in violation of the principles of the sovereign equality of States, the freedom of consent of States or applicable international law constitutes a violation of the right to development.
- States Parties shall refrain from adopting, maintaining or implementing the measures referred to in paragraph 1.
This text of para 1 is based on the definition of non-intervention in the 1970 Friendly Relations Declaration – the italicized parts of the text are the development-related additions. Note the (rather unwieldy) addition of ‘including unilaterally’ to describe coercive measures, in line with the UNGA resolutions on this topic. In a human rights context, however, I don’t see how the qualification of sanctions or other similar measures as unilateral could ipso facto lead to a violation of individual rights, including the right to development. Multilateral sanctions authorized by the UNSC can just as easily violate human rights as measures taken by individual states – and I suppose the word ‘including’ at least nominally acknowledges that possibility.
Even more interesting is the drawing of a direct link between a coercive violation of a state’s right – its right to be free from intervention – and a violation of a human right, the right to development. Readers will correct me if I am wrong, but I can’t remember any other existing or proposed treaty text that somehow automatically couples the violation of an interstate rule with the violation of a human right. One example that comes to mind – but it is a jurisprudential and a scholarly one – is the argument that aggression, i.e. a manifest violation of the interstate prohibition on the use of force in Article 2(4) of the Charter, resulting in deprivation of life automatically entails a violation of the right to life (see HRC General Comment No. 36, para. 70). While I am open to the possibility, I am not sure that this kind of direct coupling of the prohibition of intervention, including its element of coercion, and the right to development is really warranted.
As I previously argued, coercion can be seen in two distinct ways in the context of the non-intervention principle. First, as a form of extortion, a combination of a demand, a threat and a harm – do what I say, or else. Coercion-as-extortion can in my view encompass economic measures, including sanctions of various kinds. Second, coercion can take the form of a direct deprivation of another’s state ability to control its internal or external affairs – for example, by funding rebels in that state’s territory or using a cyber operation to interfere with its elections.
However, not all coercion is illegal. Coercive measures that are designed solely to compel the target state to comply with its obligations under international law do not violate the prohibition of intervention, because they do not interfere with that state’s internal or external affairs. To give an example, the comprehensive sanctions that many states have employed against Russia because of its invasion of Ukraine are coercive. But, these coercive measures do not interfere with those matters on which Russia gets to decide freely, its reserved domain. Russia has no right to invade Ukraine, and compelling it not to do so is not a matter of Russia’s internal or external affairs. Or, using sanctions against a state that systematically violates human rights, for example by stealing elections contrary to the right of individuals to participate in public affairs, as has been the case in Belarus or Venezuela, is not an interference in these states’ internal affairs.
Similarly, using coercive measures against Israel to compel it to comply with its legal obligations and stop its annexationist policies in the occupied Palestinian territory, as e.g. by prohibiting exports from Israeli settlements, may be coercive, but again is not an interference with Israel’s internal affairs.
To put this differently, states do not have the right to be free from coercion when the coercion is exclusively a response to their own violation of international law. Saying otherwise would mean that the international community is powerless to respond to such violations whenever a state is able to block collective action through the UN Security Council. That, with all due respect to those who argue differently, just can’t be right. But, depending on their effects, such measures can violate the human rights of the population of the target state, such as the right to health, food or water, or indeed the right to development. It is the effects of these measures that matter, not their characterization as unilateral or coercive.
All sanctions can at least potentially inhibit the development of the target state/its people. But that, in turn, cannot mean that sanctions or coercive measures, unilateral or multilateral, will always violate the right to development. That right is not some kind of absolute rule, like the prohibition of genocide or slavery or torture. It is necessarily qualified, and has to be balanced against other, potentially competing considerations. Indeed, arguably the text of draft Article 14 acknowledges that point when it refers to coercion in violation of applicable international law – coercing a state to comply with applicable international law is precisely the opposite scenario.
Thus, I am sure that the sanctions employed by dozens of states against Russia have, in some sense, harmed the right to development of the Russian people. I am also sure that the right to development of sanctioned Russian officials or oligarchs was also harmed. But those harms can nonetheless be justified. Human rights law has a developed framework of assessing justifications, including principles such as legality, legitimacy, necessity and proportionality, requiring some kind of balancing of harms and interests. While the text of the draft covenant does not expressly refer to these principles or have a limitations clause, any negative dimension of that right that requires states from taking a certain action can only be a qualified one.
Therefore, in most cases, the real inquiry will be whether the harm to development is outweighed by legitimate competing considerations, including inducing compliance with international law. Sometimes that inquiry will be easy, as with the US sanctions against ICC officials, which serve no legitimate aim and fail the legitimacy prong of the justification test. Conversely, however, it can be justified for a state to sanction the judges of another state who are abusing their function to commit grave human rights violations, for instance by sentencing political dissidents to death.
Sometimes that justification inquiry will be difficult and heavily fact-dependent. These facts may evolve over time. Measures that could initially have been justified can, through changing circumstances, cease to be necessary and proportionate. This is at least arguably the case with sanctions that many states have taken against Syria, in response to gross violations of international law by the Assad regime, which have now, after that regime has fallen, simply outlived their legitimate purpose. Providing sanctions relief to Syria is thus, in my view, not simply a question of discretion, but one of legal and moral obligation.
In sum, the tension between the right to development and sanctions or coercive measures is a real one. The same goes for the impacts that sanctions can have on other human rights. But the right to development cannot reasonably be interpreted as somehow categorically, always, prohibiting the use of such measures. As with the principle of non-intervention, it simply cannot be right that no state in the world can sanction Russia for invading Ukraine, or sanction Israel for starving the population of Gaza, simply because any sanctions would to some extent interfere with the right to development of the people of those states. Likewise, it cannot be right that sanctions against Ben-Gvir and Smotrich for inciting violence against Palestinians are somehow categorically prohibited just because they harm their individual right to development. It is in fact nothing short of obscene to suggest otherwise, bearing in mind the harm that they, and others like them, have caused to many individual and collective rights of Palestinians, including their right to development.
Thus, in my view, developing states advocating for a categorical ban on ‘unilateral coercive measures,’ either directly or through the mediation of the right to development, need to think long and hard about what the effects of their position could be. This is especially the case because there is a sensible middle ground available. Some sanctions (or coercive measures) violate human rights, including the right to development, but not all do. Some sanctions can constitute intervention in the target state’s internal or external affairs, but not all do. Yes, there will be hard cases of whether some specific sanctions are justified, even if most cases will not be so hard. But this is nothing usual. All this requires is avoiding thinking about sanctions in a simplistic legal/illegal binary.
