ODVV Interview with Prof. Douhan (Part: 2)

Global conflicts over territory, resources, power and dominance have become so fierce and sweeping that the clout of the principle of peaceful settlement of disputes, a preemptory code of conduct for nations to prevent political differences from spiraling into large-scale, irreversible outbursts of hostility, has been largely eclipsed and supplanted by unilateralistic muscle-flexing. Unilateral coercive measures are the set of economic maneuvers plotted by certain states to compel a change of policy by the target countries. Historical precedent shows the countries on the receiving end of the measures, namely economic sanctions, are usually the developing nations that are hard-pressed to procure the wherewithal to development, with a track record of vulnerability to external pressure.

Today, the United States oversees the broadest sanctions regimes in the world, as 39 countries are beleaguered by the US punitive measures, be they “smart” sanctions or blanket bans on trade and business with an entire nation. This is while the United Nations Security Council administers 14 sanctions regimes falling under the Chapter VII of the UN Charter.

Iran is a country wrestling with a sanctions behemoth affecting every aspect of the daily lives of its people, and it is believed the rights of the average citizen are being trampled as a result of what appears to be the world powers’ neglect for the fundamental entitlements of civilians who are supposed to be shielded from deliberate harm and suffering by the international law safeguards. Overcompliance of governments and businesses worldwide with the sanctions that were placed on Iran following the United States withdrawal from the Joint Comprehensive Plan of Action in 2018 has made a bad situation worse, even playing havoc with legitimate trade in humanitarian goods.

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 at the time of COVID-19 pandemic.

This is the second part of the interview. The first part, published on December 22, can be accessed here.

Q: Iran is hosting a large community of Afghan refugees, and it is reported that following the outbreak of violence in Afghanistan in August, as many as 4,000-5,000 Afghans have been crossing into Iran daily. Iranian officials complain that the US sanctions have slowed down the delivery of social services and humanitarian aid to the Afghans taking refuge in Iran, and that international organizations cite the sanctions as the reason they are not allocating funds to Iran to assist the refugees. Is this a valid concern voiced by Iranians? What can be done about it, at least on behalf of the UNHCR and other UN institutions?

A: First of all, it is necessary to take into account that I am just the special rapporteur and not the high commissioner. What I can do is to draw the attention of the Office of High Commissioner for Human Rights to the specific problems and to try to cooperate with other mandate-holders in the sphere.

The problem you are referring to is basically very relevant to one of the elements which has already been mentioned. In my opinion, it is high time now for the UN institutions to become more actively involved in the problem, and the problem of the impact of application of unilateral sanctions on migration, the problem of the impact of unilateral sanctions on the human rights of refugees, is among the very important ones. I have repeatedly mentioned that I would be interested very much in cooperating with the United Nations High Commissioner for Refugees and International Organization for Migration.

We have had several conversations but I believe that we are still taking the very first step on the long road ahead. So, from my perspective, I believe that there shall be involvement from the side of the UN human rights institutions, and not only human rights institutions, but also other UN agencies, to control the situation and ensure migrants have access to social guarantees and humanitarian aid, because I naturally understand that the burden of migrants on Iran today is really enormous.

Q: And to touch upon a different concern, do you think such legal entities as the International Court of Justice are able to effectively enforce their mandate on unilateral coercive measures when they find out that human rights violations are being committed as a result of the implementation of such punitive frameworks? In 2018, the ICJ ruled that the US should allow exemptions for the exports of humanitarian and civil aviation supplies to Iran, but the US government ignored the ruling. Is recourse to the world court and other UN entities at all a reliable option?

A: As an international law professor, I am always very much in favor of using the international adjudication mechanism because it provides the possibility of impartial assessment of the situation.

Naturally, each of the judicial institutions is limited by its own competence, but I am very pleased to see the increasing number of cases brought for adjudication to the International Court of Justice, including by Iran, for example concerning the interpretation of the Amity Treaty with the United States, as well as the cases brought to the World Trade Organization’s dispute settlement body, in relation to the freedom of trade or the extraterritorial application of unilateral sanctions, and cases brought to the International Civil Aviation Organization to consider whether the Chicago Convention has been observed or not. These are the very first steps, and I hope that the practice will expand.

In my opinion, the judicial mechanism is the one which shall be used instead of sanctions if countries face problems among each other. International law relies on the principle of peaceful settlement of international disputes, and that’s why countries should do everything they can to bring cases to international adjudication or to any other mechanism of peaceful settlement rather than to decide on unilaterally imposing sanctions. When I will speak about the assessment of the humanitarian impact, I believe that it’s necessary not to limit ourselves to the possibility to use universal judicial mechanisms like the ICJ, ICC or WTO’s dispute settlement body.

I am looking forward very much to the time when specific individuals will start to bring individual complaints to the treaty bodies of the United Nations, because we can clearly speak about the violation of the prohibition to discriminate, violation of women’s rights, violation of children’s rights, violation of the fundamental human rights, including civil rights and for example the right to life, when lifesaving medicine is not available, or violation of the social and labor rights in accordance with the International Covenant on Economic, Social and Cultural Rights. So, I am very much optimistic about the role of both judicial and human rights treaty institutions in promoting and protecting human rights in the face of unilateral sanctions and also as the way to bring international relations back to the rule of law everywhere.

Q: But in this specific case, the outcome was that a legal judgment was made by the ICJ, and a political decision was made by the US government to ignore the ruling, and it also withdrew from the Treaty of Amity. So, in effect, the credibility of the world court was spoiled. What do you think?

A: Well, unfortunately, this question, I would say goes beyond the scope of my mandate. I can say that this development is unfortunate, that’s why I always try to press states to follow the legal standards and not to sacrifice the law for the sake of political interests. So, no good intentions and no political motivations can be understood as a ground not to observe international law or to violate human rights. Human rights can only be protected by legal means. Concerning the situation with the International Court of Justice, I believe that that’s one case and that’s why I hope very much that we will have more of them. If you have one case, it’s easy to take political steps, but if you have dozens of them, you get lots of precedent; you get lots of pressure from the side of international adjudication. And it changes the situation.

That is why I call on states to use international adjudication mechanisms. I am also trying to engage, for example, with national human rights institutions like commissions and committees to involve them in dialogue, explaining to people about the possibility of applying to the treaty bodies. I believe when the number of cases brought to international courts and treaty bodies and the volume of communication through the UN human rights system is rather significant, it will change the situation.

Q: What international mechanisms are in place to prevent the sanctioning states from imposing unilateral coercive measures on other countries? How has your mandate served to strengthen those mechanisms?

A: As I already said, we are still somewhere at the very beginning of our road. Our mandate is one of the newest ones. It has only been established in 2015, and moreover it has been established not unilaterally, but through a process based on voting, because political discrepancies among state are so enormous that the states which impose sanctions traditionally vote in favor of not having such a mandate at all. So, they are supporting the idea that this mandate shall not exist and there is no problem about the impact of unilateral sanctions.

Yet, I can say the recent materials clearly show that even the nationals and companies of countries which impose unilateral sanctions also become affected because of overcompliance or because of the sanctions imposed by some other countries. So, I hope that this understanding will change at a certain point. My mandate had been established nominally because countries started to realize that the problem exists, that the number of unilateral sanctions is expanding, and the humanitarian impact of unilateral sanctions is growing enormously, as well.

Moreover, the new instruments like, for example, sectoral sanctions, secondary sanctions, civil or criminal penalties for circumvention of sanctions regimes and overcompliance are emerging, and there shall be at least someone who deals with that.

Unfortunately today, my mandate is the only instrument which is devoted to the problem and to the impact of unilateral sanctions only, and moreover the mandate is facing enormous problems of non-understanding or misunderstanding of the concept of the mandate, because unfortunately public opinion and social media discourses are formed in a way [to assume] that the mandate has been established for political purposes only, and quite often it’s said that it is established by tyrants to protect the tyrants.

I always try to explain that this mandate, sometimes more than other mandates, is seeking to protect human rights because the number of people affected by the application of unilateral sanctions is enormous – it’s not about the specific designated individuals only; it’s about the people of countries as a whole that are suffering a lot. What I can observe right now is that the UN institutions – very slowly – are becoming more interested in dealing with the problem. I would refer to the initial statements of the UN special rapporteurs and the UN High Commissioner on the request to lift or suspend sanctions when the pandemic started; I will refer to the Arria Formula meeting of the UN Security Council a year ago which was focusing on the impact of unilateral coercive measures on the maintenance of international peace and security; I would refer to the fact that the UN High Commissioner started to include the assessment of the impact of unilateral sanctions in her statement concerning specific country visits, including the case of Venezuela, for example; and I would refer to the fact that the High Commissioner was the person who did the opening statement during the biannual panel devoted to the problem of overcompliance with unilateral sanctions.

Therefore, I would note again that I believe that the process of protection of human rights in the case of unilateral sanctions is somewhere at the beginning of its formation; we are still taking the very first steps and the road ahead is still very long. But I see the higher and higher level of involvement of both the states and the international organizations and international institutions. I believe that in spite of all the problems we have now, I see that the dialogue, very slowly, is starting.

Q: In the preceding years you have been actively working on the negative effects of UCMs, making country visits to Qatar, Venezuela and Zimbabwe, presenting detailed reports to the UN Human Rights Council and the General Assembly on the challenges faced by these nations. What do you think the sanctioned states can do, if at all, individually or collectively, to eliminate or mitigate the impacts of UCMs using human rights mechanisms?

A: I believe I have already mentioned several of the mechanisms. As I said, regional cooperation is very important, so, firstly, assistance to each other is important. Secondly, collective political statements are also important. Then, it’s very important to use the judicial mechanisms and the mechanisms of the UN treaty bodies. The fourth mechanism is communicating assessments of the impact of unilateral sanctions to the UN agencies, including the WHO, ILO, the UN High Commission for Refugees, International Organization for Migration, and many others

It shouldn’t be assumed that it’s only the high commissioner or my mandate that are the institutions involved in the assessment of sanctions. It shall be a matter of concern for the whole UN system, because naturally sanctions are never the only reason for the problems which exist in countries; rather, they add a very substantial layer of problems to the humanitarian situation. Therefore, the impact shall definitely be assessed in the labor sphere, health sphere, education sphere and many other areas.

I also believe, and it has been reflected in some of my statements, that the application of unilateral sanctions is enormously affecting the right to development of people, and as far as the UN is leading in the process of the achievement of Sustainable Development Goals, I believe that the element of assessment of the impact of sanctions and steps aimed to eliminate the application of unilateral sanctions, as well as the negative humanitarian effects, should also be dealt with within the UN to achieve the Sustainable Development Goals.

Therefore, I believe that the most obvious step is the involvement of more and more UN institutions to undertake assessing and dealing with the problem of the application of unilateral sanctions, and I believe if it happens, the political authorities of the UN institutions will be the instrument which will help to change the approach to the application of unilateral sanctions.

Moreover, if the UN institutions are involved more in collecting information about the real impact of sanctions, that will change public opinion as well. Unfortunately, the impact of unilateral sanctions for people who are not dealing with the problem in detail is not very obvious, and it’s very important to show the individual cases. That’s why I pay so much attention to dealing with individual communications like for example the one you have referred to about the impossibility to buy bandages, which are necessary for the lives of butterfly kids and people with this sort of genetic diseases.

Another mechanism which I believe is important is careful legal research and legal qualification of every specific type of unilateral measure taken, and that’s why being an academic myself, I very much welcome the involvement of academia in the assessment of unilateral sanctions from legal perspectives, economic perspectives and political perspectives.

I am trying to implement an initiative to establish a so-called “sanctions research platform” to bring together documents which have already been published by the United Nations, statements by NGOs as well as academic work into a single platform to make research in this sphere easier and to provide some sort of facts and legal assessment to be used both for the UN organs and for specific states as well. So, I very much welcome the fact that more and more academic events, as well as diplomatic conferences, have been organized within the last year and a half [on this topic].

Q: As a concluding question, how can NGOs like ODVV, who are promoting debate and advocacy surrounding the unilateral coercive measures, support and make contributions to your mandate?

A: That is a good question and I am very much open to cooperation with NGOs, especially those doing the fact-finding or doing research on specific areas relevant to the mandate. Every year, when I start to prepare thematic reports for the Human Rights Council and the UN General Assembly, I open a call for contributions. Next year, my thematic reports will focus on the status of unilateral sanctions in the cyber world and on the problem of overcompliance. The call for contributions is already online on the webpage of the mandate. So, I am welcoming contributions of NGOs a lot.

Then, the second area is the country visits. When I announce a country visit, again the open call for contribution is published and non-government organizations are very much welcome to share their information.

The third sphere is that I repeatedly organize expert consultations with non-governmental organizations to assess the specific realms of the impacts of unilateral sanctions on the enjoyment of human rights. It is possible to participate in such expert consultations and share views as well.

I mentioned the idea of the establishment of a sanctions research platform – any report can be shared, including reports already published, and we can include them in the platform so that they are made publicly available for everyone who is doing research in this sphere. And the last very important element is the possibility to collect materials and to send me the information so that I can decide whether it will be possible to prepare a specific communication addressed to the states or the UN or businesses, drawing attention to the problem of the application of unilateral sanctions. That was exactly the case with the impossibility to buy the bandages, and there were cases regarding Venezuela when children could not get necessary transplants.

Q; Are you planning a possible country visit to Iran in the near future, as well?

A: It is in the process of discussion. Under the rules, I am supposed to take two country visits per year, and naturally the country visit planning is negotiated within the United Nations, the countries and many other entities. That possibility is not excluded.

By Kourosh Ziabari
Photo