Developing human rights and humanitarian law accountability of the Security Council for the impositi
August Reinisch. The American Journal of International Law. Washington: Oct 2001.Vol.95, Iss. 4; pg. 851, 22 pgs
Subjects:
Sanctions, International law, Economic impact, Human rights, Accountability
Abstract (Document Summary)
The end of the Cold War has led the UN Security Council to intensify its use of economic sanctions. The generally accepted purpose and emphasis of such sanctions lies in modifying behavior, not in punishment. However, their increased use has also brought to light various shortcomings and problems.
The end of the Cold War has led the United Nations Security Council to intensify its use of economic sanctions. The generally accepted purpose and emphasis of such sanctions lies in modifying behavior, not in punishment.’ However, their increased use has also brought to light various shortcomings and problems. Apart from the decades-old debate on their effectiveness, which depends, of course, on such factors as the policy goals set for sanctions, the criteria for measuring their success, the economic development of the target state, and the level of its economic relations with others,2 a few facts are relatively certain.
Thus, economic sanctions “theory” maintains that economic pressure on civilians will translate into pressure on the government for change, but the targeted leaders, sometimes expressly intended to be ousted by their outraged peoples, have managed to continue pursuing their policies and to stay in power. Part of the reason for this effect derives from the leaders’ ability to “retranslate” the message of sanctions into punishment and retribution against the country, which enhances popular support for the regime in “rally round the flag” fashion.’
Further, sanctions have unintentionally contributed to the emergence of black markets, creating huge profit-making opportunities for ruling elites and their collaborators. Worst of all, economic sanctions tend to hit the wrong targets; instead of the regime, the population at large and in particular the weakest in society become the true victims.’ A par
ticularly irritating consequence of the use of nonmilitary coercive measures like economic sanctions-as opposed to traditional means of military force, which are specifically targeted at soldiers-is that they almost exclusively affect the civilian population. These unintended negative consequences of economic sanctions have stimulated the quest for “smart” sanctions, more targeted and selective forms of economic coercion.6
In some cases the maintenance of economic sanctions has resulted in outright humanitarian disaster. That the sanctions against Iraq had such an effect? has been recognized not only by various health scientists, human rights activists, and nongovernmental organizations (NGOs) ,8 but even by some UN institutions.’ Thus, criticism concerning the effect of economic sanctions is no longer limited to NGOs and humanitarian organizations. The UN Human Rights Commission through its various subcommissions has equally voiced concern about the adverse consequences of economic sanctions on the enjoyment of human rights,lo as have some of the UN treaty-monitoring institutions such as the Committee on Economic, Social and Cultural Rights.” The Secretary-General himself, in his Supplement to an Agenda for Peace, called economic sanctions a “blunt instrument”‘ and demanded, inter alia, that more effective preimposition impact assessment be devised, as well as enhanced instruments for providing humanitarian assistance to vulnerable groups.” Some scholars have even spoken of an “outright human rights paradox,” i.e., that since the end of the Cold War the cause for human rights has increasingly become the reason for the imposition of UN sanctions, while the United Nations-in adopting such sanctions-more and more disregards these same human rights principles.”
This increasing degree of critical self-awareness of the United Nations has itself resulted from an interesting political process. At first, the General Assembly took the lead in passing resolutions questioning unilateral economic sanctions” such as the United States-imposed
Cuba embargo,”6 and in particular their extraterritorial effects; meanwhile, however, various UN bodies have become rather outspoken in criticizing multilateral sanctions imposed by the Security Council. 17 This trend culminated most recently in a working paper prepared for the Sub-Commission on the Promotion and Protection of Human Rights that qualified the UN sanctions regime against Iraq as “unequivocally illegal under existing international humanitarian law and human rights law.”‘”
Such findings are based not only on a factual assessment of the sanctions, but also on the legal requirement that the Security Council is bound to comply with international humanitarian law and human rights law. This latter aspect is at least implicitly assumed, and sometimes even more or less explicitly suggested, in the above-mentioned reports. Together with the concomitant issue of the possibility of remedies for individuals hurt by such sanctions, the question of the Council’s legal obligation forms the central issue of this discussion. At the same time, it should be noted that the debate about the human rights conformity of Security Council sanctions is not an isolated incident of public criticism of UN action but, rather, an important aspect of a broader and increasingly important debate on the accountability of international organizations.
1. THE OBLIGATION OF THE SECURITY COUNCIL To RESPECT HUMAN RIGHTS AND HUMANITARIAN LAw IN ADOPTING ECONOMIC SANCTIONS
Remarkably, most commentators, with very few exceptions,20 simply assume that the Security Council is obligated to respect human rights or humanitarian law rules when designing economic sanctions, and do not analyze the origin, scope, and existence of the obligation in any detail 21
Public International Law Limits on Security Council Measures
The first point to be made is that international organizations in general, and the United Nations in particular, are not parties to the 1949 Geneva Conventions (or the 1977 Additional Protocols) or to any human rights treaties.22 Thus, they are not bound by any humanitarian law or human rights obligations as a matter of treaty law.
Nevertheless, there may be convincing reasons why it is incumbent upon the United Nations and therefore also upon one of its main organs, the Security Council (including its subsidiary bodies established to administer UN sanctions regimes, the so-called sanctions committees),23 to respect the rules of humanitarian and human rights law. Indeed, one finds it surprising that this very basic question has not been discussed more frequently or thoroughly before. The increased activity of the Security Council since 1990 has spurred an intensified debate on possible limitations on the Council when it acts to maintain or restore international peace and security.24
Although not frequently addressed, the question whether international organizations must observe conventional rules when they are not parties to the treaties containing them has gained prominence in two sets of circumstances: the deployment of UN forces and the Geneva Conventions,25 and the activities of European Community (EC) organs and the European Convention on Human Rights (European Convention) .26 In the first case, the question of observance of humanitarian law has arisen when UN peacekeepers have become involved in combat action that harms members of other forces or third parties. In the second context, most cases have resulted from the investigative enforcement powers of the EC Commission under European competition law, where fundamental (mainly procedural)
rights of private individuals and business firms may have been infringed,27 and from the legislative powers of the Community institutions whose exercise may also encroach upon individual rights.” On the one hand, the possible duty of the United Nations to respect humanitarian law is mainly based on the argument that the rules of the Geneva Conventions are generally declaratory of customary international law, which in turn directly binds the Organization; and, alternatively, that the United Nations has unilaterally agreed to respect these rules by referring to them in its force regulations and in some of the agreements with participating states. On the other hand, the European Court of Justice elaborated upon the idea that the human rights guarantees of the European Convention are basically an expression of the common constitutional traditions of the EC member states and thus are binding on the EC organs as general principles of law.29
In asking whether there are any specific humanitarian and/or human rights limits to the exercise of the Security Council’s power to impose economic sanctions, one has to focus on whether-in the absence of any treaty obligations-general international law (custom or general principles) binds the United Nations and thus one of its main organs, the Security Council. To put this question into perspective, consider the apparently widespread acceptance of the proposition that international organizations are largely bound by general international law.so While the United Nations is certainly an international organization, its special status and responsibilities, coupled with the specific functions and powers conferred on it by the Charter, have cast doubt on whether this proposition also holds true for the Organization itself.31
Does the Security Council enjoy unfettered discretion as a political organ? The most prominent theory, which “liberates” the Security Council from any legal constraints, is based on the argument that the Council, as the main “executive” organ of the United Nations, was deliberately exempted from legal limits when fulfilling its major task of securing world peace and security. According to this view, that exemption “conform [s] with the general tendency which prevailed in drafting the Charter; the predominance of the political over the legal approach.””2 This approach maintains that its peace-preserving and peace-restoring function can be carried out best when the Council freely decides if, when, against whom, and how to react to threats to and breaches of world peace and security.33 This consideration is reinforced by the fact that the Security Council is not a “law enforcement” organ. The UN Charter conceives of the Security Council’s powers and tasks as those of a political organ enjoying a wide margin of discretion regarding how “to maintain or restore international peace and
security.” This idea was stressed by an early commentator, who wrote that ” [t] he purpose of the enforcement action under Article 39 is not: to maintain or restore the law, but to maintain, or restore peace, which is not necessarily identical with the law.””
However, as the International Court of Justice (ICJ) emphasized in the Admission to UN Membership case of 1948, “The political character of an organ cannot release it from the observance of the treaty provisions established by the Charter when they constitute limitations on its powers or criteria for its judgment.”35 The International Criminal Tribunal for the Former Yugoslavia (ICTY) more recently reaffirmed this reasoning by holding that “[t] he Security Council is an organ of an international organization, established by a treaty which serves as a constitutional framework for that organization. The Security Council is thus subjected to certain constitutional limitations. 36 Admittedly, ascertaining the precise limits and/or criteria for Security Council action is difficult. Yet it is a crucial task that should complement the political control exercised by the members of the Security Council, in particular, the permanent ones through their voting behavior.
Apparently, the Security Council is widely seen as enjoying broad discretion when determining whether or not a situation under Article 39 of the Charter has arisen.37 For present purposes, however, this question is less relevant than the main issue: whether in exercising the powers following such a determination, i.e., when using nonmilitary and/or military coercive measures, the Security Council is subject to certain (legal) limits.
A textual approach. The far-reaching and almost unlimited Charter-based powers of the Security Council have led some commentators to conclude that the United Nations is not bound by general international law (custom and general principles) when acting under Chapter VIL” This view is mainly based on a literal and systematic interpretation of the Charter, which does not include an express provision requiring the Security Council to respect international law.39
In Article 24(2), however, the UN Charter does contain a provision obliging the Security Council to act “in accordance with the Purposes and Principles of the United Nations,” among which Article 1 (1) lists, inter alia, the maintenance of peace and security “in conformity with the principles of justice and international law.” Nevertheless, if one remains within a Charter-based interpretive discourse, this duty to respect general international law is considerably weakened by the fact that Article 1 (1) requires conformity only with “the principles of … international law,” not with “international law” as such. Further, a close reading shows that the obligation to act “in conformity with the principles of justice and international law” literally refers only to the Security Council’s function to settle disputes peacefully and that this qualification is not contained in the first part of Article 1 (1), which addresses the Council’s function to “take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other
breaches of the peace.”40 One could thus argue that the Security Council is not obliged to act in accordance with international law principles when maintaining or restoring international peace and security.41
On the other hand, the view that the fundamental purposes and principles of Article 1 (1) of the Charter are relevant to all Security Council activities, including the maintenance of international peace and security,” and that Article 24 (2) therefore sets relevant legal limitations to the Council’s acts41 finds additional support in another textual provision: the statement in the preamble proclaiming as one of the major goals of the Organization, “to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained.” An organization that violates international law would certainly fail to establish such conditions.
Another Charter-based line of argument may equally lead to a human rights or humanitarian law-inspired limitation on the powers of the Security Council. It could be employed independently of recourse to general international law by looking at other substantive limits on the Organization’s activities contained in the Charter text itself. Two such provisions are the human rights articles: Article 1 (3) specifically refers to the promotion of human rights as one of the major purposes of the United Nations,’ and Article 55 (c) states that “the United Nations shall promote … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” This language does not explicitly require the Organization to observe human rights. However, one should not underestimate the historical context of this wording, i.e., that the lack of explicit obligations to respect human rights probably means that the framers did not anticipate human rights violations by the United Nations, rather than consider them permissible.45 Put into perspective, it appears plausible to regard the United Nations as having violated its duty to promote respect for and observance of human rights if it disregards these rights itself.’ Strong support for the proposition that the United Nations, as an international organization dedicated to supervising “universal respect for, and observance of, human rights,” must itself comply with these rights can be found in the Effect of Awards opinion.
Taking these various arguments together, one may well concur with the opinion of the ICTY appeals chamber that “neither the text nor the spirit of the Charter conceives of the Security Council as unbound by law.”48
The United Nations as an international organization. Beyond these textual intricacies of interpreting Charter law, strong arguments in favor of an obligation to observe customary law may be derived from more general reflections concerning the status of the United Nations as an organization enjoying legal personality under international law. International organizations-even if endowed with wide powers-still command only those powers conferred on them by their member states. As “derivative” or “secondary” subjects of international law, they do not possess any original powers or sovereign authority.” Since international organizations are constituted by the common will of states through the act of transferring powers to them, the resulting legal creatures cannot acquire more powers than their creators: Nemo plus iuris transferre potest quam ipse habet.50 Correspondingly, the assumption that the UN member states could have succeeded in collectively “opting out” of customary law and general principles of law by creating an international organization that would cease to be bound by those very obligations appears rather unconvincing.51 A related consideration that does not focus on the powers and obligations of organizations as state creatures but, rather, on the general perception that they enjoy international legal personality leads to the same result: the United Nations-whose personality under public international law has been beyond doubt since the Reparations case”-is subject to public international law precisely because it partakes of personality under this legal system. Thus, it has been asserted that the Security Council, as a main organ of the United Nations, is “subject to” international law because the Organization itself is a “subject of” international law.53
In addition, its practice confirms that the United Nations is generally subject to international law. In an early important incident, the Organization acknowledged its international responsibility for damage caused in the course of the Congo operation.54 This recognition was a
logical consequence of the applicability of general international law, in particular, the duty not to harm foreign nationals and to make reparations in case that duty is breached.55
Jus cogens norms. It is acknowledged that jus cogens forms a core of international rules that must be respected in all circumstances. The definition of jus cogens norms as rules from which derogation is prohibited actually refers to this legal consequence.56 While views may differ over whether the Security Council is bound by international law in general,” it is hardly disputed that the Council must respect peremptory norms of international law because the core values protected by the concept of jus cogens are simply not derogable in the sense of jus dispositivum”‘ In the recent Genocide Convention case,59 this issue was raised by Bosnia but not conclusively addressed in the ICJ’s order rejecting a request for interim measures.60
Public International Law Rules to Be Respected by the Security Council in Imposing Sanctions
The fundamental humanitarian norms analyzed below are widely accepted as customary international law.61 While the status as customary law of human rights law in general has been more controversial,62 the basic provisions in issue as regards economic embargoes seem to
qualify as customary rules. In addition, strong and convincing arguments may be made for considering core provisions of humanitarian law, as well as some basic human rights, as having attained the status of nonderogable, peremptory norms in the sense of jus cogens obligations.”
Specific humanitarian rules. The rules of international humanitarian law are codified and developed in the four Geneva Conventions of 1949″ and the two Additional Protocols of 1977.65 These rules, however, do not directly address economic sanctions.ss As a consequence, applicable norms must be deduced from the general rules on protection of the civilian population.67 Further, the distinction between international and noninternational armed conflicts and situations falling below the threshold of armed conflict-triggering the application of different sets of rules-raises the question whether humanitarian norms restricting the use of economic sanctions also apply to internal or even nonconflict situations. While one might concur with the Red Cross’s statement that general humanitarian rules must be considered in assessing the legality of the effects of economic measures imposed in all situations of armed conflict,68 this proposition may be more questionable regarding situations not involving armed conflict-where human rights law is normally applicable.69 Indeed, as a matter of positive treaty law, the Geneva Conventions only “apply to all cases of declared war or of any other [international] armed conflict”” plus-to a lesser extent-cases of “armed conflicts not of an international character.”71 It may be tempting-argumento a majore ad minus-to demand that what is considered a minimum standard applicable in times of war or internal conflict should be so considered in peacetime.71 However, one is forced to acknowledge that de lege lata-and despite a “growing convergence” of human rights and humanitarian law7′-the applicability of humanitarian rules is generally understood to be limited to situations constituting some sort of armed conflict. The future will show whether a development that started with the legally nonbinding Turku Declaration on Minimum Humanitarian Standards’4 will bridge the perceived “gap” between human rights and humanitarian law protection.
The fundamental humanitarian law principle prohibiting attacks on the civilian population finds concrete expression in various provisions of the Fourth Geneva Convention and
the two Additional Protocols. Probably the most relevant provision in the context of comprehensive economic embargoes prohibits starvation of the civilian population as a method of warfare.’7 The right to access to basic foodstuff is reinforced by the obligation to permit the free passage of all consignments of essential foodstuffs and other necessities, 77 and the positive duty of occupying powers to bring in these necessary articles.”71 In a similar vein, medical supplies must be freely admitted to the enemy population 79 and be made available by occupying powers.” In addition to food and medical supplies, Protocol I obliges the occupying power to ensure the provision of other articles essential to the survival of the civilian population.el The absolute character of these provisions is reinforced by the general prohibitions on reprisals against protected persons and collective penalties.82
Specific human rights rules. Several specific human rights guarantees contained in various human rights documents are also relevant to assessing the legality of economic sanctions, among them the right to life; the right to an adequate standard of living, including food, clothing, housing, and medical care; freedom from hunger; and the right to health.8″
The scope of the right to life, which is included in both the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (Civil and Political Covenant) 84 can be interpreted as limited to prohibiting arbitrary deprivation of life through execution, disappearance, or torture, or more broadly as even requiring states to take positive measures. In the latter instance one might find that the right to life has been violated by a failure to prevent deprivation of life as a result of the lack of necessities such as food and basic health and medical supplies.86 In this case it is probably the broad interpretation as regards the precise content of the right to life that may be debatable, whereas its obligatory nature-whether because it forms part of customary international law or general principles-appears less controversial. The reverse may well apply to the more pertinent right to food, which-though also included in the Universal Declaration-is specified in the International Covenant on Economic, Social and Cultural Rights (Economic and Social Covenant).87 There is no consensus that the contents of this Covenant, as well as the economic rights contained in the Universal Declaration, can be considered to represent established customary law or general principles.83 However, a contextual analysis of the relevance of Article 55 of the UN Charter” could reasonably lead to the view that the Organization’s obligation to promote “higher standards of living,” “solutions of international economic, social, health, and related problems,” and “universal respect for, and observance of, human rights” has been “authoritatively interpreted”99 by the Universal Declaration, the Economic and Social Covenant, and the committee that administers that Covenant. The right to food and freedom from hunger-even if it is not interpreted as containing a positive obligation to provide essential foodstuffs to those in need-could be viewed at least to require abstention from deliberately depriving individuals of food and causing hunger and starvation.” If the Security Council takes action that deprives a significant part of a state’s population of the means of effectively enjoying the right to food as contained in the Universal Declaration
and the Economic and Social Covenant, the Council maybe considered to be contravening Article 55 of its own Charter.
How are these limits respected? Obviously, the Security Council cannot be accused of having intentionally-at least as a matter of policy–disregarded these principles. On the contrary, the inclusion of specific humanitarian exceptions2 in each set of sanctions was expressly aimed at guaranteeing respect for the above-mentioned humanitarian rules and human rights. However, do the existing humanitarian exceptions as they are administered by the sanctions committees of each of the Council’s economic sanctions regimes actually meet these humanitarian and human rights standards? This is not the place to assess these factual issues in detail. Suffice it to say that at least in the context of the Iraq sanctions-even after the implementation of the so-called Oil-for-Food program various human rights bodies have expressed serious doubts.94
II. REMEDIES FOR VICTIMS OF UN SANCTIONS
The conclusion that under certain circumstances economic sanctions imposed by the UN Security Council may violate international humanitarian or human rights law prompts the question whether ways of redress are available to the injured individuals and/or states. Of course, invoking the possible responsibility of the United Nations would also raise difficult problems of attribution since UN sanctions are regularly imposed by the Security Council but implemented by national (or as in the case of the European Community, supranational) legislation. These questions will not be investigated more closely here; suffice it to say that strong arguments support UN responsibility in cases of precise implementation of Security Council sanctions.95 This paper is also not the place to conclusively address various difficult issues of causality, among them the question to what extent the harm suffered by the civilian population in the target countries should be attributed to the Security Council’s imposition of sanctions and to what extent it is due to the ruling elites.96
Clearly, we live in an era of heightened attention to actually holding accountable-civilly or criminally-those responsible for violations of human rights and humanitarian law. Examples range from the Pinochet case before the House of Lords,97 the Holocaust litigation before American and German courts,98 and the cases under the Alien Tort Claims Acts in U.S. federal courts (including the proceedings against Radovan Karadzic,1 which in turn are
based on the experience of litigation for human rights abuses) ,’0 to the Genocide cases brought by Bosnia-Herzegovina and Croatia against Serbia and Montenegro before the ICJ” and the attempt to bring NATO officials before the Yugoslavia Tribunal.”3 This trend coincides with a corresponding discussion about more effective civil liability (compensation) mechanisms for victims of human rights violations 104 and a tendency toward “criminalizing” international humanitarian and human rights law.”‘
Building on this momentum, a recent UN working paper on sanctions urged that the “full array of legal remedies should be available for victims of sanctions regimes that are at any point in violation of international law,” mentioning, in particular, national courts, UN or regional human rights bodies, and the International Court of Justice as potential fora for such claims.”6 To date, the debate on compensation for sanctions damage has largely been limited to various types of “collateral damage,” such as economic harm suffered by third states'” and individual traders, and it has focused on liability claims against states and-in the European context-the European Community as the relevant sanctions legislator.”‘ Interestingly, the European Court ofJustice (ECJ) recently held that damage suffered as a result of the economic embargo against Iraq was not attributable to the Community. Rather, the Court hinted at the responsibility of the United Nations for Security Council sanctions.109 It is clear, however, that the ECJ, whose power of judicial review is limited to acts of EC organs,110 lacks jurisdiction to adjudicate such claims.
While the quest for legal remedies may already encounter various procedural obstacles if claims are brought against individual states imposing sanctions (or-for that matter-the European Community), the situation will become even more difficult if claims are attempted against the United Nations. Since UN bodies are explicitly recommending that victims of sanctions pursue their claims before national and international bodies,”‘ these
problems are likely to arise more frequently in the future. In fact, the debate on this subject has probably just started.
Assessing the Legality of Security Council Resolutions: The ICJ
For various reasons the ICJ may appear to be the most “convenient” venue for litigating questions concerning the lawfulness of Security Council-imposed sanctions. As these sanctions are adopted by one of the main organs of the Organization, it would appear logical to ask the main judicial organ of the United Nations to pronounce on their legality.
Judicial review. The increased activities of the Security Council after the Cold War led to expanded interest in the question of judicial review of its decisions.’ 12 The good arguments in favor of such a power are largely based on such factors as the Court’s implied powers, parallels with national constitutional jurisprudence, and the law-preserving function of the Court; but serious counterarguments can also be made, based, inter alia, on the lack of an express power of judicial review in the Charter”3 and the principle that each UN organ is called upon to assess the legality of its own acts.”‘
Both the Lockerbie and Yugoslavia Genocide cases not only posed the question of the substantive limits to the Security Council’s powers,115 but also crucially involved the issue whether the ICJ has jurisdiction to decide on the legality of the Council’s acts. Libya openly challenged the legality of the Security Council’s embargo resolutions in Lockerbie. “‘ The original claim of Bosnia-Herzegovina in the Genocide case”’17 also amounted to a challenge to the legality of Security Council decisions. To date the ICJ has been successful in avoiding a straightforward answer to these questions, but it has implicitly exercised some degree of judicial review in some cases by not calling into question, but rather confirming the legality of, acts of the Security Council.”‘
The case for or against judicial review has thus not yet been decided.
Causes of action. Both the Lockerbie and Yugoslavia Genocide cases also demonstrate the limited procedural means available to parties negatively affected by Security Council resolutions. In contrast to the direct cause of action provided to EC member states and EC institutions against other Community institutions,”9 UN members and UN organs cannot sue the
United Nations or any of its organs since the ICJ Statute limits contentious proceedings to interstate disputes.’20 Thus, both Libya and Bosnia had to raise the issue of the validity of the contested UN resolutions incidentally in two sets of interstate disputes.12
In both contentious cases and advisory proceedings individuals have no direct say about whether the Court should be seized or not. The right to institute proceedings is limited to states and-in the case of advisory opinions-to certain UN organs and specialized agencies. Access to the ICJ thus depends on the espousal of the claims of individuals by their home states in contentious proceedings and on the willingness of a sufficient number of states to vote in favor of a request for an advisory opinion in the appropriate UN organ, probably the General Assembly. That the latter is not necessarily wholly theoretical is evidenced by the General Assembly’s application to the Court to assess the legality of the use of nuclear weapons and the advisory opinion rendered against the will of permanent members of the Security Council.122
National Courts
Challenging UN sanctions by suing the Organization before national courts appears to be almost impossible. National courts are usually unavailable to potential claimants since the United Nations enjoys sweeping immunity as a matter of treaty law and domestic legislation. According to the UN Charter, the Organization is accorded the immunity “necessary for the fulfilment of its purposes.””‘ The General Convention even provides for immunity “from every form of legal process,” with the exception of a waiver in particular cases.’24 Most national legislation on immunity equally provides for absolute immunity for the United Nations. But even if a national court would consider a more limited functional immunity to be determinative of the scope of UN immunity from suit,125 it would be implausible to argue that the imposition of economic sanctions falls outside the scope of the Organization’s functional immunity.”121
The situation may be different where the legality of UN embargo resolutions forms an incidental question in disputes concerning private or other parties subject to the jurisdiction of national courts.127 Thus, national courts might be asked to decide cases concerning the nonperformance of private law contracts as a result of the imposition of economic sanctions,
which would require the judges to allocate the burden of risk between the private parties. However, such proceedings would not enable aggrieved parties to claim compensation for the harm suffered from those responsible for the imposition of the sanctions. Moreover, domestic courts could be expected to employ judicial “abstention” doctrines other than immunity so as to avoid adjudicating disputes involving the legality of acts of international organizations in such situations. Invoking a broad concept of act of state 128 or nonjusticiabilityl29 may serve as a welcome tool to dismiss lawsuits directed against international organizations.”‘ And such a result appears understandable since domestic litigation over the lawfulness of Security Council sanctions would indeed represent a direct challenge to UN policy decisions. This is exactly the type of lawsuit that the principles of immunity, act of state, and nonjusticiability try to prevent.
Arbitration
An alternative mode of settling disputes with international organizations, which is routinely provided for in their procurement contracts, is arbitration.”‘ In the case of claims arising from the imposition of economic sanctions, arbitration would be available only on the basis of a mutual agreement between the United Nations and the affected parties in the form of an ad hoc compromis. Thus, recourse to arbitration in these situations wholly depends on the willingness of the Organization to submit to such settlement. Further, arbitration does not seem to be well suited to determining the occurrence of fundamental rights violations because it is mainly designed for private law disputes arising from contracts entered into or torts committed by the United Nations.
Still, arbitration might be a fallback option where no other legal recourse is available. In cases where international organizations enjoy immunity from suit before national courts, they are required to agree to alternative dispute settlement of their “private law disputes” to prevent a denial of justice.”2 A strong policy argument can be made that this requirement holds true even if an issue cannot be identified as a “dispute of a private law character.” There is no justification for recognizing human rights, including access to the courts, without providing any viable remedy against an entity such as the United Nations that is quite capable of violating those rights.
Human Rights Institutions
When searching for a judicial or quasi-judicial forum to adjudicate claims concerning the United Nations’ abrogation of fundamental rights of individuals, international human rights organs would seem to be the most “natural and convenient.” These treaty-based institutions scrutinize the human rights record of state parties to the respective agreements. In par
ticular, the universal human rights treaty organs, such as the Human Rights Committee… and the Committee on Economic, Social and Cultural Rights,”4 which are entrusted with supervising the application of the two Covenants, and also regional institutions like the Strasbourg and San Jose courts, appear to be predestined for this task. Here again, however, complaints against international organizations face major procedural obstacles because the jurisdiction of these bodies is treaty based and, in the case of state and individual complaints, requires an additional act of acceptance by the state parties to the agreement.”5 Thus, only acts that are attributable to states that have expressed such consent are subject to the direct supervisory jurisdiction of these international human rights institutions.
Contrary to the elaborate efforts to find a legal basis for the claim that international organizations may be bound by human rights treaty obligations even if they are not treaty parties, 136 the accompanying jurisdictional obligations have not been interpreted to “devolve” upon international organizations. Equally, claims against member states of organizations that have allegedly violated human rights have been rejected. Thus, the UN Human Rights Committee denied the admissibility of a complaint against a member state alleging a violation of the Civil and Political Covenant by an international organization.ls* It is well settled case law that the Strasbourg institutions also do not consider themselves competent to decide human rights complaints against international organizations that are not parties to the European Human Rights Convention, even if all or some of the member states are.”8 Moreover, the European Court of Human Rights is still unlikely to allow claims instituted against an organization’s member states, either individually or collectively, for human rights violations attributable to the organization,”9 although certain recent developments may ultimately lead to a fundamental change of attitude in this respect.140
While a direct complaint against the United Nations or one of its organs is thus excluded as a matter of lex lata, the UN human rights organs have demonstrated increasing willingness to scrutinize not only acts attributable to state parties to the respective human rights treaties, but also-at least indirectly-acts of international organizations, in particular as regards economic sanctions, in an incidental form. The work of the UN Committee on Economic, Social and Cultural Rights presents a pertinent example of such “indirect” supervision. In its General Comment No. 8,”‘ the Committee carefully stated that it was not in any way calling into question the necessity for the imposition of sanctions in appropriate cases in accordance with Chapter VII of the UN Charter. However, it went on to assert that the human rights provisions of the Charter “must still be considered to be fully applicable in such cases.”142
While these conclusions may be problematic as a matter of substantive law,”‘ they serve as an important indication that at least some human rights bodies have found an “indirect” way of exercising an “incidental” form of jurisdiction over international organizations via their power to adopt general comments. These trends evidence the fact that UN human rights monitoring bodies no longer feel inhibited from pronouncing themselves on human rights obligations of international organizations, in particular, those of the United Nations itself. While they may not be in a practical position to supply an adequate mechanism for compensating the victims of economic sanctions, they will probably further develop the conceptual framework establishing rights, violations, and potential remedies. This development, in turn, may ultimately contribute to a “political” solution that provides for compensation to sanctions victims.
III. CONCLUSIONS AND PROSPECTS
This overall assessment of the question of the Security Council’s duty to respect humanitarian law and human rights provisions when imposing economic sanctions is another piece of evidence signaling the urgent need for more control and limitations of the power exercised directly by an international organization. When the United Nations-the major promoter of human rights in the international arena-takes enforcement action, it can be legitimately held to show respect for human rights in an exemplary fashion. At a minimum, one can support the conclusion drawn in a recent UN subcommission working paper regarding remedies for civilian victims of sanctions imposed by the United Nations or regional bodies: “What is needed is for these entities-the Security Council, regional governmental organizations or regional defence pacts-to establish special mechanisms or procedures for relevant input from non-governmental sources regarding sanctions, including, especially, civilian victims.”144
The preceding discussion has demonstrated that the existing judicial and quasi-judicial mechanisms not only are largely unavailable as a matter of current law, but also are unlikelyfrom a practical point of view-to provide adequate procedural means of compensating large groups of individuals or entire populations suffering as a result of economic sanctions. It is thus legitimate to reflect on possible alternative mechanisms or procedures. Admittedly, this search may lead away from judicial or quasi-judicial ways of redress toward more political mechanisms.
In this respect, an interesting lesson may be learned from another case of “collateral damage” from interstate trade sanctions, the losses incurred by European exporters on the U.S. market as an indirect consequence of the Bananas and Hormones disputes between the United States and the European Union.145 In that case the United States had imposed retaliatory trade measures-more or less authorized by the World Trade Organization (WTO) —
in the form of punitive tariffs on various European exports (wholly unrelated to the banana and beef industries) in response to persistent EC violations of the General Agreement on Tariffs and Trade (GATT) .147 The affected exporters are trying to recover their losses before the ECJ in currently pending actions for noncontractual liability”48 against the EC Council, which had adopted the legislative acts contrary to the Community’s obligations under the GATT.”‘ Such a remedy, which the EC Treaty expressly authorizes, complements annulment action, by which EC organs, member states, and-under certain restrictively interpreted circumstances-even individuals may challenge the legality of EC acts.15 These types of recourse are very special and, one may add, highly refined mechanisms of legal accountability vis-a-vis the acts of a very special international organization and reflect its high level of integration and supranational character.151 More traditional intergovernmental organizations are unlikely to adopt similar mechanisms.
For present purposes, however, the interesting fact is that even in the highly integrated, supranational European system of control of the organization’s acts, there is an awareness that external trade measures for political purposes-and economic sanctions are a classical example of such measures-should not be “legally restrained.”‘ Thus, it should not strike one as a surprise that when it came to compensating innocent third parties harmed as a result of the interstate measures adopted during the WTO Bananas and Hormones disputes, political, instead of legal adjudicatory, remedies were suggested. The European Parliament discussed the establishment of a special compensation fund for European exporters.”‘ The underlying rationale for this attitude in the EC context is worth reemphasizing: so as not to hamper the political discretion of the EC organs within the WTO, including the freedom to violate binding GATT/WTO provisions, judicial remedies-even for those harmed as a result of possible violations-are considered inappropriate. Political action is deemed necessary if a total lack of accountability and redress for victims is to be avoided.
A political path viewed as more appropriate than judicial remedies in the “legal order” of the EC appears to be even more suited to the UN context. Given the importance for the Security Council to exercise a large degree of discretion when acting under Chapter VII to fulfill its political task, a similar approach should make sense. If the political will is fixed on resorting to economic sanctions to fulfill the Charter mandate to secure international peace and security, and if the implementation of this political resolve necessarily implies
damage to innocent third parties, it may seem wiser to provide for mechanisms to alleviate and/or compensate for the harm inflicted upon those parties than to interfere with the legitimate sanctions decision as such.
The current practice of introducing and administering humanitarian exceptions to the UN embargo programs 15 may serve as one element of such a mechanism. Experience with these exceptions has shown, however, that they are not always effective in the sense of fulfilling their aim of shielding the population from suffering.”15 Another political tool serving the same purpose is the quest for better-directed sanctions. The whole “smart” sanctions debate”‘ and the attempt specifically to target the ruling elites by aiming at their personal wealth”57 and/or freedom of travel,158 coupled, as it happened in some instances, with the threat of personal criminal liability,”59 illustrate this development.
The question remains what should happen if all these precautionary steps prove ineffective and full-scale economic embargoes are imposed, massively hurting large groups of innocent civilians. In trying to develop another nonlegal remedy, a political compensation mechanism such as the one currently debated with regard to Article 50 of the Charter appears to hold promise. Although Article 50 is textually limited to third states, the underlying idea of compensating innocent third parties can be extended to the civilian population in a target country. Considering that the theory that economic hardship resulting from external sanctions will pressure the population of the target state into rebelling against its ruling elites has failed”6′ or at least is no longer very persuasive, one should accept that the populations of sanctioned states are frequently as much the unintended victims of UN sanctions as third states.161
Article 50 has been a rather dormant Charter provision throughout the last fifty years, but the increase in sanctions programs during the last decade not only has caused more frequent economic difficulties for third states, but also has led to numerous requests for consultations under that article.”2 This development has now gained enough momentum for a serious demand for a more principled approach.”‘ In 2000 the Security Council decided to establish an informal working group to develop general recommendations on how to improve the effectiveness of UN sanctions, including by preventing their unintended impacts and assisting member states in implementing them.”4 UN members have understandably remained reluctant to accept additional financial burdens. But if it is correct to demand that the affected countries alone should not be expected to bear the costs resulting from collective action,”‘ it is hard to conceive of any alternative to collective burden sharing.
If one accepts the concept of compensatory funding for innocent third states, it should be even more acceptable to reallocate the burden of the costs of political action that innocent civilians in the target countries sustain, especially when that burden amounts to the deprivation of basic entitlements under humanitarian and/or human rights law.
[Author Affiliation]
AUGUST REINISCH
[Author Affiliation]
* Professor of Public International and European Community Law, University of Vienna; and professorial lecturer, Bologna Center, SAIS/Johns Hopkins University. This contribution is based on a lecture given at the 21 st Meeting of Financial Sanctions Experts, held in Vienna on October 20, 2000. 1 am grateful for comments and suggestions on an earlier draft received from Andrea Bianchi, Hanspeter Neuhold, Christoph Schreuer, Bruno Simma, Karel Wellens, and Karl Zemanek. Any errors are mine alone.