ODVV Interview: The impact of unilateral sanctions on health sector is life-threatening

Unilateral coercive measures (UCMs), which often materialize in the form of economic sanctions against countries, businesses or individuals, have come under increasing scrutiny in the recent decades as world powers resort to them more frequently as a means of statecraft. Numerous UN resolutions* and Special Rapporteur reports** widely discussed and condemned the adverse impact of UCMs on human rights of the people who live in target countries.

Notwithstanding their detrimental impacts on mortality, poverty, the wellbeing and full enjoyment of human rights by the target populations, the enforcement of UCMs belies the internationally-recognized legal frameworks. There are several legal instruments that accentuate this understanding, including the seminal Vienna Declaration and Program of Action adopted by the World Conference on Human Rights in 1993 that urges states not to deploy unilateral policies that impede trade relations between countries and deprive communities of their essential human rights.

Iran is one of the major targets of unilateral coercive measures, and since the early 2000s, has been bearing the brunt of economic sanctions over its nuclear program and other sticking points, which have undermined its business ties with the outside world, brought its banking relations with international financial institutions to a nadir and stripped its people of opportunities for development.

According to the Center for a New American Security, between 2010 and 2020, a total of 1,599 Iranian individuals and entities were designated for US government sanctions outside the mandate of Security Council resolutions, making Iran the most-heavily sanctioned country in the world. The sanctions, or in UN terms, the Unilateral Coercive Measures (UCM)s are imposed on Iran in violation of the UN Security Council Resolution 2231, unilaterally, illegally and beyond authority of the UN.

Alena Douhan is the UN Special Rapporteur on the negative impact of the unilateral coercive measures on the enjoyment of human rights. She is a professor of international law at the Belarusian State University and director of the Peace Research Center of the Institute for International Law of Peace and Armed Conflict at Ruhr-University Bochum, Germany.

Organization for Defending Victims of Violence has conducted an exclusive interview with Prof. Douhan to probe the legal foundations of unilateral coercive measures, the repercussions of overcompliance with sanctions on the sanctioned states’ economic and social functioning and the unfavorable living conditions of Iranians at the time of COVID-19 pandemic.

This is the first part of the interview, which will be presented in two segments.

Q: Let’s start our conversation discussing a public statement you published in October, along with five other senior UN experts, on the overcompliance of countries and businesses with the US sanctions on Iran and its human rights implications. Does the fact that companies in a number of countries refrain from engaging in legitimate trade with Iran out of fear of potential penalties indicate the possibly outsized political and economic influence of the United States on its allies, or is it a testimony to the existence of gaps in the enforcement of international law and international humanitarian law?

A: Indeed, the problem of overcompliance today is one of the very important ones and I’m afraid one of the very dangerous in the sphere of application of unilateral sanctions by different states all around the world, and I speak not only about the impact of the unilateral sanctions and overcompliance with these sanctions on Iran – that’s a general problem and it affects a number of people worldwide.

Unfortunately, today the number of unilateral sanctions imposed by different countries is expanding enormously. We can easily observe the expansion, not only in number, but also in the types of unilateral sanctions. Quite often, it’s very complicated for businesses to identify what exactly are the sanctions regimes which are applied by one or another state to a specific country or specific individual or specific situation, and as a result, businesses become scared to be involved in any sort of business activities; banks are becoming scared to do any bank transfers, and because of that the impact of unilateral sanctions, which are by themselves very dubious from the point of international law, is exacerbated enormously.

To make a long story short, when we speak about overcompliance, we need to realize that overcompliance appears because of the multiplicity of sanctions regimes; because of the introduction of secondary sanctions toward third-country nationals for the circumvention of the sanctions regimes, or something that can be considered to be a circumvention of the sanctions regimes; because of the introduction of civil and criminal penalties toward nationals and third-country nationals for the circumvention of sanctions regimes, and in this situation fines can be really unreasonable – like the Bank PNB Paribas, which was fined USD9 billion. Some other banks have been fined USD80 million, or USD50 million, so basically these fines could result in the bankruptcy of many banks. And as a result, banks prefer to avoid any transactions that refer to the companies or individuals of nationalities which are considered to be under sanctions.

So, when we speak about overcompliance, we mainly speak about situations when bank transfers are not allowed or companies are not involved in business cooperation even though these companies or these individuals have not been designated by themselves. Thus, in fact we have the consequences of sanctions without real sanctions against specific individuals and companies.

When I talk to some of the non-governmental organizations involved in delivery of humanitarian aid, they are already complaining that the impact of overcompliance with sanctions, or fear of sanctions as they call it, is much greater than the sanctions themselves. So, as a reality, because of this overcompliance, the whole nation becomes cut off from the business transaction regime; individuals and companies cannot do the simplest bank transfers, buy tickets, pay for studies, buy any sort of medical equipment – that’s one of the most urgent elements. As a result, people’s rights are affected as well as the country as a whole.

Q: So, where does international law and international humanitarian law stand here on the issue of overcompliance? Is there any provision stating that overcompliance is unnecessary, redundant or needs to be remedied, or do we have a legal vacuum when it comes to countries or businesses avoiding doing any transaction, including humanitarian trade, with countries that are sanctioned?

A: Unfortunately, here, we stand on very fragile ground because this problem has not become the subject of careful legal research until now. There are only very fragmentary works. I believe that my press release was among the very first ones that paid attention to the problem of application of overcompliance as well as secondary sanctions, because traditionally, one speaks about the legality or illegality of sanctions only. I will cite here the example of my recent Zimbabwe country visit, where the sanctioning states refer to the fact that the list of the directly-designated individuals and companies is really short. In practice, however, because of the overcompliance, whole countries tend to be affected and that’s why I can’t say that we are exactly in a legal vacuum.

Because attention has not been paid to the problem, I make lots of efforts to bring the attention of the world community to the problems of secondary sanctions and overcompliance when I proposed this topic to the biannual panel meeting which took place in September 2021, and I plan to focus my report in 2022 on the problem of overcompliance. Unfortunately, what we see today in this sphere is that we have some norms but these norms are not applied.

I will elaborate a little bit on the point. I’ve forwarded several communications about the problem of overcompliance from the side of banks or companies which sell specific types of equipment, especially medical equipment, because quite often this equipment can be really unique and lifesaving. When I get replies, it usually comes to the point that companies state they would be very much interested to continue to be involved in economic transactions because they lose money by rejecting to be involved. But they are scared of sanctions and say it’s the decision of the states how to deal with the problem.

Similarly, when I communicate with the sanctioning states, they say they don’t push businesses to over-comply. They say the only thing they do is impose sanctions against a list of designated individuals, and overcompliance is the fault of businesses by themselves. Unfortunately, what we face is a problem of shifting responsibility when businesses refer to states and states refer to businesses, and as a result, we have this enormous problem of overcompliance.

The second point we know is the problem of extraterritorial application of measures which result in overcompliance. It is generally agreed in international law that extraterritorial application of unilateral sanctions shall be strictly prohibited. There are several statements made by the European Union – if you look at the documents, you’ll see that the European Union always tries to insist that their restrictive measures are not extraterritorial. We can dispute that matter, but I speak about the understanding that they shall be illegal.

There is the blocking statute within the European Union which seeks to protect European Union businesses from the extraterritorial application of someone else’s sanctions; therefore, theoretically, we have a legal norm and we have a recognition that extraterritorial application is not allowed under international law, but it does take place today and that’s one of the problems which shall be considered and we need to deal with it.

The second issue which also exists but has not been elaborated until now is the obligations of states and businesses within the scope of the due diligence rules. The United Nations is paying a lot of attention to the problem of cooperation and coordination between businesses and human rights, and human rights responsible behavior of businesses. There is a working group on business and human rights, and there is, inter alia, the Guiding Principles on Business and Human Rights.

In accordance with these guiding principles, both states and businesses are to exercise, to the fullest extent, the due diligence principles to guarantee that activity under the jurisdiction and control of states, including when done by business enterprises and banks, and also the activity of companies by themselves shall not violate human rights. What we see today as concerns the application of secondary sanctions and overcompliance is a clear violation of the due diligence rules in this sphere, as well.

So far, I can only speak about these elements. I plan to deal with them in detail when it comes to the preparation of my report to the General Assembly in 2022, and I need to say that right now, I have issued a call for contributions which is being forwarded to all states, and it is also an open call inviting all academic institutions, banks and all sorts of businesses and non-governmental organizations to send their responses.

Q: You made a reference to the UN Guiding Principles on Business and Human Rights. The set of principles obligates companies to avoid practices that breach the human rights of peoples and communities through their operations. In the case of a Swedish company’s refusal to sell life-saving bandages to Iran used for the treatment of epidermolysis bullosa (EB) patients, there is clear evidence that human rights violations are happening. In 2020, at least 15 “butterfly kids” reportedly died in Iran due to the unavailability of these protective dressings. Do you believe there is a legal remedy to preclude such violations? Have you had success reaching out to the Swedish government or the company involved to demand a change of policy?

A: From my perspective, that’s exactly what I have just been discussing concerning the application of due diligence, both from the side of the company and the side of the Swedish government. When I received that information, I forwarded communications to the company and to the Swedish government. At the moment, I’m still waiting for replies. So, in accordance with the UN rules, the communications themselves as well as any replies which are received – It’s not obligatory that they are received, but I hope very much that they will be – will be placed online within a 60-day limit from the moment the communications are sent. So, from my perspective, I hope very much that my explanation within the communications will change something.

Q: Moving on, the US Department of Treasury maintains it has made clear that humanitarian trade, including dealings related to the exports of food items, agricultural products, medicine and medical equipment to Iran, is broadly authorized for US and non-US persons, and in case of ambiguity, it is possible to obtain exemption licenses from the Office of Foreign Assets Control (OFAC). But international banks are patently reluctant to process relevant transactions, and companies are finding the costs of such trade notably high. What are the options at Iran’s disposal to meet its vital needs in humanitarian trade, and what can bodies such as the United Nations and the OHCHR do to mitigate the complexities?

A: Indeed, the delivery of humanitarian aid as well as the existence of humanitarian exceptions represent one of the hugest problems in the application of sanctions regimes today. Theoretically, all or nearly all sanctions regimes provide for the possibility of humanitarian action and humanitarian exceptions.

Unfortunately, in practice, when I deal with humanitarian organizations involved in the delivery of humanitarian aid, they refer to enormous problems in getting these humanitarian licenses, and they face enormous problems in the very possibility to implement the licenses even if they manage to get them.

So, first of all, they refer to the situation that the process for the application for licenses is very bureaucratic and only huge organizations which have really well-trained legal staff are usually able to do it. Moreover, quite often, it’s rather costly to get humanitarian licenses. The third problem which has traditionally been cited by humanitarian organizations is the very fact that even if they manage to get a license, these licenses are usually enormously narrowly-formulated and they refer only to the really humanitarian, lifesaving needs and do not cover anything which goes beyond things like medicine or minimal food requirements.

But as we all understand, if a country is not able to support a normal level of functioning of health institutions, or for example the normal level of functioning of clean water facilities, it will result in life-threatening situations as well. And supporting such projects is not permissible under the humanitarian licenses because the majority of NGOs say that they can’t get that.

But even those that manage to get humanitarian licenses for delivery of medicine or for delivery of humanitarian aid still refer to the existence of enormous problems in their attempts to implement these licenses because banks and companies are scared to provide their services. Delivery companies are scared to provide the deliveries, and banks do not want to do transfers even if they see the licenses.

Some humanitarian organizations note that their bank accounts and even the bank accounts of their staff have repeatedly been frozen, including their salary accounts, because of being involved in doing their humanitarian jobs with countries or in cooperation with countries which are under sanctions in one way or another.

I will cite here several problems. The first one is the problem with getting humanitarian exception licenses. The second one is the problem with the implementation of the humanitarian exception licenses due to overcompliance. The third one, which I believe is fundamental, is that the majority of unilateral sanctions are illegal from the point of international law and we try to treat the consequences rather than the grounds of the problem – but that’s still a problem which should be dealt with. The primary challenge here is limited involvement from the side of the United Nations.

You have correctly cited that one of the mechanisms that can be used, and in my opinion should be used, is a high level of involvement of the different UN institutions. One of the recommendations which I made as a result of my country visits, for example to Venezuela, and one of the recommendations which I made in my report to the Human Rights Council and the UN General Assembly this year, was a higher level of involvement by the UN institutions in several aspects.

As the first one, I proposed that all the UN agencies start to monitor the humanitarian impact of unilateral sanctions within the scope of their responsibilities, and here I speak about, for example, UN country teams. They are there in the field, they see what’s happening, they can easily observe the humanitarian consequences.

I speak about the International Labor Organization, because labor and social rights are affected a lot. I speak about the World Health Organization, because the right to health is affected enormously quite often, and many other institutions. Unfortunately, the problem of the impact of unilateral sanctions is ignored or nearly ignored in their reports. Also, naturally, I emphasize the involvement of the UN High Commissioner for Human Rights as well the United Nations Development Program in monitoring the implementation of humanitarian exceptions regimes as well as the delivery of humanitarian aid, which unfortunately is necessary today.

The last point is the establishment of the monitoring system of the humanitarian impact of unilateral sanctions under the auspices of United Nations Office for the Coordination of Humanitarian Affairs. This kind of mechanism existed when it came to the control of the impact of sanctions imposed by the UN Security Council in 1990s. It was implemented by a group of humanitarian NGOs, and controlled and monitored by OCHA. Unfortunately, no mechanism exists today when one speaks about the humanitarian impact of unilateral sanctions. The mechanism is clear; it is necessary to use it here as well to be able to guarantee that human rights are not violated.

Q: So, based on what you said, is it possible to infer that some of these humanitarian exemptions and the licenses allocated are just official stipulations without concrete effectivity facilitating trade with the sanctioned countries? Are they just ceremonial provisions on the paper?

A: Well, generally speaking, from the legal point of view, they do exist and it’s necessary to accept that they are provided for in the majority of sanctions documents, but when it comes to practical implementation of humanitarian exceptions, I would say that in practice they are ineffective, inefficient and very hard to be implemented.

Q: Last year, in a virtual conference, you warned about the detrimental impacts of the US sanctions on Iran’s ability to cope with the COVID-19 pandemic. What are the human rights that are violated as a result of the sanctions slapped on Iran’s health sector either directly or indirectly? Why would you think the sanctioning states tend to overlook such effects?

A: When I start to speak about the impact of unilateral sanctions on the health sector, I can say that the impact is very broad and quite often it’s a life-threatening one. So, when we speak about the sphere of human rights, unfortunately the implementation of the broad scope of unilateral sanctions, exacerbated by the application of secondary sanctions and overcompliance, results in the fact that countries tend to be unable to buy necessary medical equipment or spare parts for it, firstly because it is possible that the country loses the necessary revenue to buy the equipment, and secondly because the country cannot transfer money owing to the rejection of the banks to do the transfers.

The situation is that all banks of Iran are designated by the United States, which basically means that all counter-parties of Iranian banks prefer not to be involved in any transfers with banks in Iran, both public and private. Around a year ago, there were enormous problems concerning the possibility to buy insulin for diabetics in Iran and I remember multiple reports that the price for insulin on the black market jumped dozens of times, because the absence of insulin for diabetics constitutes a threat to their life and naturally derogates their lifestyle enormously, even if in some situations they can survive without insulin or smaller doses of insulin.

Also, there is software that is often bought from abroad and the equipment stops working – even if the country has the equipment, it can’t function normally because of the impossibility to buy the software.

The third problem is that the delivery companies prefer not to deal with a country under sanctions and therefore even if equipment or spare parts are bought, quite often it can’t be delivered to the country. This challenge also applies to necessary medicine when the countries producing specific sorts of medicine just decline to sell this medicine. The example of the Swedish company producing the bandages is one of them. There are some other examples in different countries concerning the delivery of various sorts of medicine, and it basically means that medicine is not available for people in the country and even the simplest types of diseases which can easily be treated become life-threatening.

Unfortunately, I can also say the same in the broader perspective. I have faced in other countries problems with vaccinations – I do not speak about COVID-19 only, although some countries are reporting impediments in doing the bank transfers to pay for participation in COVAX, and they face problems with delivering Covid vaccines to the country because of the reluctance of the transportation companies to deliver them.

Venezuela also has reported that there was an enormous problem in buying the vaccines for children suffering polio, yellow fever and some other illnesses, and they had more than 2.5 million children not vaccinated within several years. Happily, this problem has been settled after the UNDP and UNICEF were actively involved, but these are the examples which clearly demonstrate that the right to health is very much violated.

Moreover, if I expand on details regarding the impact of Covid, [I can note that] the movements of people are minimized, and there are problems in the direct communication between people. I can speak, for example, of instances when the application of sanctions minimizes the possibility to use online platforms, for doing telemedicine in the countries where access to medical help is not so easy. In the countries where there are problems to get to the hospital, telemedicine may be lifesaving but when it’s not available, people have no other choice, so they basically can’t get to the hospital on one hand and they can’t get the medical advice online, either.

There are problems in getting access to PubMed, for example, which is the professional medical database to share views on the treatment of various diseases, again, because of the sanctions. There are problems in using other sorts of platforms to discuss the mechanisms of treatment of specific diseases, and all this is affecting the right to health a lot. It affects the rights of the most vulnerable categories of people, for example those with disabilities, or with severe and chronic diseases, genetic diseases, those in need of transplants, women delivering babies, infants, and women in general.

Unfortunately, when we speak about the health sector, lots of mistakes are happening and lots of shortages are happening because of the impact of unilateral sanctions and overcompliance is resulting in death, and as such it violates the right to life.

Q: Specifically, on Iran and its COVID-19 crisis, have you identified any obstructions to Iran’s ability to import ventilators, vaccines and other treatment supplies as a result of the sanctions, including its ability to handle banking transactions and its ability to work with the COVAX facility? You made a brief reference earlier to this subject, but I wanted you to expand on it a bit.

A: When I was preparing my report to the General Assembly in 2020 on the impact of unilateral sanctions at the time of the pandemic, Iran was among the countries which submitted a wonderful contribution identifying the impact of the unilateral sanctions on the health situation and again the situation in the Covid period.

Unfortunately, the Covid pandemic made the health situation around the world worse and the access to medical aid worsened globally, and Iran, as one of the countries under sanctions, is among those countries which are affected enormously. I also made a press release several months ago referring to the fact that failure to lift and suspend sanctions because of the pandemic de facto discriminates against people of the countries under sanctions. By the way, this statement has been also reiterated in several statements of the UN General Assembly and the High Commissioner for Human Rights.

Concerning Iran directly, I can’t speak about the specific impact right now because I’m still in the process of research – one of the areas on which I focus now is trying to identify the availability of vaccines to the countries under sanctions in the course of the pandemic, so it will come out a little bit later.

By Kourosh Ziabari

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ODVV Interview with Prof. Douhan (Part: 2) 

* A/HRC/RES/24/14; A/HRC/RES/30/2; A/HRC/RES/34/13; A/RES/71/193; A/HRC/RES/46/5
** A/HRC/48/59; A/HRC/48/59/Add.2; A/HRC/45/7; A/HRC/42/46; A/HRC/36/44; A/HRC/33/48