UN human rights experts want end to unilateral sanctions and world bank immunity

The writer’s book, Mission Impossible: Geneva is now available



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By SANJA DE SILVA JAYATILLEKA


Most Sri Lankans hear about the UN Human Rights Council only when it passes resolutions on Sri Lanka. Therefore it is regarded with suspicion and some people either want Sri Lanka to leave it or want it gone altogether with the entire United Nations. To them, it looks like all it does is pick on small countries in a biased way and make matters worse.


However, the UN Human Rights Council is far from our enemy. It is tasked with the promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development. It is made up of a certain number of member states of the United Nations with the others able to participate and contribute despite the absence of voting rights. Unlike at the UN Security Council, no state has a veto at the UNHRC. Its composition is representative of the distribution of the world’s population and therefore the majority of members are from the Asia-Pacific, Latin American and African regions. And it has taken many bold and progressive steps in fulfilling its mandated tasks.


Unilateral Sanctions


At the currently ongoing September 2017 session of the UN Human Rights Council in Geneva, a report on the impact of unilateral sanctions was presented at its request. The Special Rapporteur(an independent expert appointed by the Council) on Unilateral Coercive Methods, Idriss Jazairy,has called for a declaration by States that "unilateral coercive measures involving extraterritorial application of domestic measures are unlawful under international law."


Unilateral sanctions are imposed by individual States acting on their own and outside a multilateral forum such as that of the United Nations. Only the very powerful States can ensure compliance with their sanctions and the United States is one of them. Countries which are targeted for sanctions have little chance of challenging them. Most often, in those countries, it is the people who suffer, not the alleged perpetrators (invariably their leaders), who are sought to be punished through these sanctions.


Now it has been recognized that such sanctions are unlawful. The report presented to the Council calls for their abolition and urges States to give precedence to other means of peaceful settlement of disputes in keeping with the Charter of the United Nations and in accordance with international law.


One of the countries highlighted in this report as a target of unilateral sanctions by the United States is Cuba. It indicates that the US did not have the endorsement of the international community for the sanctions against Cuba and in fact condemned it at the UN General Assembly, every year since 1992. It says "Since 1992, the General Assembly has annually voiced its condemnation of the extraterritorial reach of the embargo imposed on Cuba by the United States." Most often, the US had only a handful of countries voting with it and in 2016, under President Barak Obama, even the US abstained, making it 191 in favor, none opposed and two abstentions.Despite the repeated resolutions at the UN General Assembly, the US sanctions against Cuba have remained.


At the UN Human Rights Council this month, the Special Rapporteur has proposed that States imposing such sanctions should be made accountable: "…such action entails the legal accountability of targeting States for measures affecting negatively the enjoyment of human rights of the affected populations."


For the first time, a United Nations expert has begun the process of evaluating the impact of sanctions on the general population of the targeted countries. While General Assembly resolutions have had no impact, this initiative by the UN Human Rights Council is likely to make the world more aware of the plight of those most affected and demarcate a clear path for redress.


To this end, the Special Rapporteur recommends that an ad hoc compensation commission should be established under the UN for victims of those sanctions to ensure accountability and availability of remedies and redress until a proper judicial review is undertaken of unilateral sanctions.


The Special Rapporteur’s report criticizes the United States for applying its domestic sanctions law to "foreign persons and institutions". It gives the example of sanctions against financial institutions "for having engaged in financial transactions initiated outside the United States that do not comply with the country’s sanctions regimes…"The report also warns that the United Kingdom is also in the process of introducing legislation "displaying the same features, albeit in a more limited form".


The EU however has adopted a ‘blocking statute’ which prohibits EU companies from complying with "extraterritorial sanctions imposed by the United States". The EU agrees that unilateral sanctions are unlawful. The report says that the EU has declared that it "will refrain from adopting legislative instruments having extra-territorial application in breach of international law."


A vast majority of UN member states regard extraterritorial sanctions as unlawful. This includes Japan, Canada and the Non-Aligned Movement (NAM).


If these proposals are adopted at the Council, it would be yet another bold step towards the promotion and protection of human rights. In a world where the powerful rule, this initiative of the UN Human Rights Council and the report of its Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, Ambassador IdrissJazairy, is a welcome one.


The World Bank


At the same (currently ongoing) session of the Council, the World Bank has come under the scrutiny of the Independent Expert on the promotion of a democratic and equitable international order, Alfred de Zayas.


He was requested by the Council to report on his research into how the policies pursued by international organizations and institutions such as the World Bank and the IMF impacted on a democratic and equitable international order. In his report,the Independent Expert states that some believe that these institutions have a greater impact on the world order than the UN General Assembly and the ECOSOC combined.


Until now, it seemed as if the World Bank and the IMF were somehow above the law since they were huge international financial institutions. Many of their projects around the world have impacted on the local populations negatively, but few have found ways of making them accountable for the consequences of the projects they support or finance, nor to make their views heard.


Of the many studies undertaken on the impact of the World Bank on Human Rights, one that the expert’s report quotes is that ofthe Indian Law Resource Centre. In a 2009 study their"scholars refuted the argument that the international financial institutions are somehow above the law and that they only have to honour their charters and constitutions."


In a critique of the World Bank, the Independent Expert says that the World Bank understands "development" to mean growth in terms of gross domestic product (GDP), increased trade and greater consumption. As inequalities between States and within States increase, he says observers have suggested that development should be defined in terms such as "a more equitable distribution of wealth, food security, clean water, sanitation, health care, housing."


Going further, the Independent Expert questions whether the World Bank should continue to have immunity from litigations in domestic courts over the negative impact of its policies on local populations. He recommends waiver of institutional immunity granted to the World Bank when gross violations of human rights have occurred as a result of projects resulting from its loan practices and lack of due diligence, "in a similar way as Head of State immunity was loosened since the Pinochet arrest warrant in 1998".


In a chilling reminder of the power of these huge international institutions, the Independent Expert goes on to recommend urgent steps to protect those who have dared to complain against them. He recommends addressing as a matter of urgency," risk of reprisals and other security risks" linked to thosecritical of World Bank projects.


He includes in his statement the importance of safeguarding the functioning of the State in any disputes with entities carrying out World Bank projects. He advises the Board of Governors of the World Bank to ensure that the International Centre for Settlement of Investment Disputes must "refrain from interfering with the ontological functions of the State, which are to regulate in the public interest". He also says that the International Centre for Settlement of Disputes should not lend its services to litigation that "puts the functions of the State into question".


This report, together with the report on the IMF to be presented to the General Assembly by him,should go a long way towards holding these two powerful institutions accountable for their actions. The United Nations Human Rights Council has embarked on achieving a difficult and long overdue task which could only serve to further the cause of human rights.


 
 
 
 
 
 
 
 
 
 
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