CESCR
General Comment No. 8
The relationship between economic sanctions and respect for economic,
social and cultural rights
Seventeenth session 1997
E/1998/22
1. Economic
sanctions are being imposed with increasing frequency, both internationally,
regionally and unilaterally. The purpose of this general comment
is to emphasize that, whatever the circumstances, such sanctions
should always take full account of the provisions of the International
Covenant on Economic, Social and Cultural Rights. The Committee
does not in any way call into question the necessity for the imposition
of sanctions in appropriate cases in accordance with Chapter VII
of the Charter of the United Nations or other applicable international
law. But those provisions of the Charter that relate to human rights
(arts. 1, 55 and 56) must still be considered to be fully applicable
in such cases.
2. During the 1990s the Security Council has imposed sanctions of
varying kind and duration in relation to South Africa, Iraq/Kuwait,
parts of the former Yugoslavia, Somalia, the Libyan Arab Jamahiriya,
Liberia, Haiti, Angola, Rwanda and the Sudan. The impact of sanctions
upon the enjoyment of economic, social and cultural rights has been
brought to the Committee’s attention in a number of cases involving
States parties to the Covenant, some of which have reported regularly,
thereby giving the Committee the opportunity to examine the situation
carefully.
3. While the impact of sanctions varies from one case to another,
the Committee is aware that they almost always have a dramatic impact
on the rights recognized in the Covenant. Thus, for example, they
often cause significant disruption in the distribution of food,
pharmaceuticals and sanitation supplies, jeopardize the quality
of food and the availability of clean drinking water, severely interfere
with the functioning of basic health and education systems, and
undermine the right to work. In addition, their unintended consequences
can include reinforcement of the power of oppressive elites, the
emergence, almost invariably, of a black market and the generation
of huge windfall profits for the privileged elites which manage
it, enhancement of the control of the governing elite over the population
at large, and restriction of opportunities to seek asylum or to
manifest political opposition. While the phenomena mentioned in
the preceding sentence are essentially political in nature, they
also have a major additional impact on the enjoyment of economic,
social and cultural rights.
4. In considering sanctions, it is essential to distinguish between
the basic objective of applying political and economic pressure
upon the governing elite of the country to persuade them to conform
to international law, and the collateral infliction of suffering
upon the most vulnerable groups within the targeted country. For
that reason, the sanctions regimes established by the Security Council
now include humanitarian exemptions designed to permit the flow
of essential goods and services destined for humanitarian purposes.
It is commonly assumed that these exemptions ensure basic respect
for economic, social and cultural rights within the targeted country.
5. However, a number of recent United Nations and other studies
which have analysed the impact of sanctions have concluded that
these exemptions do not have this effect. Moreover, the exemptions
are very limited in scope. They do not address, for example, the
question of access to primary education, nor do they provide for
repairs to infrastructures which are essential to provide clean
water, adequate health care etc. The Secretary-General suggested
in 1995 that there is a need to assess the potential impact of sanctions
before they are imposed and to enhance arrangements for the provision
of humanitarian assistance to vulnerable groups.[1] In the following
year, a major study prepared for the General Assembly by Ms. Graça
Machel, on the impact of armed conflict on children, stated that
“humanitarian exemptions tend to be ambiguous and are interpreted
arbitrarily and inconsistently. ... Delays, confusion and the denial
of requests to import essential humanitarian goods cause resource
shortages. ... [Their effects] inevitably fall most heavily on the
poor”.[2] Most recently, an October 1997 United Nations report concluded
that the review procedures established under the various sanctions
committees established by the Security Council “remain cumbersome
and aid agencies still encounter difficulties in obtaining approval
for exempted supplies. ... [The] committees neglect larger problems
of commercial and governmental violations in the form of black-marketing,
illicit trade, and corruption”.[3]
6. It is thus clear, on the basis of an impressive array of both
country-specific and general studies, that insufficient attention
is being paid to the impact of sanctions on vulnerable groups. Nevertheless,
for various reasons, these studies have not examined specifically
the nefarious consequences that ensue for the enjoyment of economic,
social and cultural rights, per se. It is in fact apparent that
in most, if not all, cases, those consequences have either not been
taken into account at all or not given the serious consideration
they deserve. There is thus a need to inject a human rights dimension
into deliberations on this issue.
7. The Committee considers that the provisions of the Covenant,
virtually all of which are also reflected in a range of other human
rights treaties as well as the Universal Declaration of Human Rights,
cannot be considered to be inoperative, or in any way inapplicable,
solely because a decision has been taken that considerations of
international peace and security warrant the imposition of sanctions.
Just as the international community insists that any targeted State
must respect the civil and political rights of its citizens, so
too must that State and the international community itself do everything
possible to protect at least the core content of the economic, social
and cultural rights of the affected peoples of that State (see also
general comment No. 3 (1990), para. 10).
8. While this obligation of every State is derived from the commitment
in the Charter of the United Nations to promote respect for all
human rights, it should also be recalled that every permanent member
of the Security Council has signed the Covenant, although two (China
and the United States) have yet to ratify it. Most of the non-permanent
members at any given time are parties. Each of these States has
undertaken, in conformity with article 2, paragraph 1, of the Covenant
to “take steps, individually and through international assistance
and cooperation, especially economic and technical, to the maximum
of its available resources, with a view to achieving progressively
the full realization of the rights recognized in the present Covenant
by all appropriate means ...”. When the affected State is also a
State party, it is doubly incumbent upon other States to respect
and take account of the relevant obligations. To the extent that
sanctions are imposed on States which are not parties to the Covenant,
the same principles would in any event apply given the status of
the economic, social and cultural rights of vulnerable groups as
part of general international law, as evidenced, for example, by
the near-universal ratification of the Convention on the Rights
of the Child and the status of the Universal Declaration of Human
Rights.
9. Although the Committee has no role to play in relation to decisions
to impose or not to impose sanctions, it does, however, have a responsibility
to monitor compliance by all States parties with the Covenant. When
measures are taken which inhibit the ability of a State party to
meet its obligations under the Covenant, the terms of sanctions
and the manner in which they are implemented become appropriate
matters for concern for the Committee.
10. The Committee believes that two sets of obligations flow from
these considerations. The first set relates to the affected State.
The imposition of sanctions does not in any way nullify or diminish
the relevant obligations of that State party. As in other comparable
situations, those obligations assume greater practical importance
in times of particular hardship. The Committee is thus called upon
to scrutinize very carefully the extent to which the State concerned
has taken steps “to the maximum of its available resources” to provide
the greatest possible protection for the economic, social and cultural
rights of each individual living within its jurisdiction. While
sanctions will inevitably diminish the capacity of the affected
State to fund or support some of the necessary measures, the State
remains under an obligation to ensure the absence of discrimination
in relation to the enjoyment of these rights, and to take all possible
measures, including negotiations with other States and the international
community, to reduce to a minimum the negative impact upon the rights
of vulnerable groups within the society.
11. The second set of obligations relates to the party or parties
responsible for the imposition, maintenance or implementation of
the sanctions, whether it be the international community, an international
or regional organization, or a State or group of States. In this
respect, the Committee considers that there are three conclusions
which follow logically from the recognition of economic, social
and cultural human rights.
12. First, these rights must be taken fully into account when designing
an appropriate sanctions regime. Without endorsing any particular
measures in this regard, the Committee notes proposals such as those
calling for the creation of a United Nations mechanism for anticipating
and tracking sanctions impacts, the elaboration of a more transparent
set of agreed principles and procedures based on respect for human
rights, the identification of a wider range of exempt goods and
services, the authorization of agreed technical agencies to determine
necessary exemptions, the creation of a better resourced set of
sanctions committees, more precise targeting of the vulnerabilities
of those whose behaviour the international community wishes to change,
and the introduction of greater overall flexibility.
13. Second, effective monitoring, which is always required under
the terms of the Covenant, should be undertaken throughout the period
that sanctions are in force. When an external party takes upon itself
even partial responsibility for the situation within a country (whether
under Chapter VII of the Charter or otherwise), it also unavoidably
assumes a responsibility to do all within its power to protect the
economic, social and cultural rights of the affected population.
14. Third, the external entity has an obligation “to take steps,
individually and through international assistance and cooperation,
especially economic and technical” in order to respond to any disproportionate
suffering experienced by vulnerable groups within the targeted country.
15. In anticipating the objection that sanctions must, almost by
definition, result in the grave violation of economic, social and
cultural rights if they are to achieve their objectives, the Committee
notes the conclusion of a major United Nations study to the effect
that “decisions to reduce the suffering of children or minimize
other adverse consequences can be taken without jeopardizing the
policy aim of sanctions.[4] This applies equally to the situation
of all vulnerable groups.
16. In adopting this general comment the sole aim of the Committee
is to draw attention to the fact that the inhabitants of a given
country do not forfeit their basic economic, social and cultural
rights by virtue of any determination that their leaders have violated
norms relating to international peace and security. The aim is not
to give support or encouragement to such leaders, nor is it to undermine
the legitimate interests of the international community in enforcing
respect for the provisions of the Charter of the United Nations
and the general principles of international law. Rather, it is to
insist that lawlessness of one kind should not be met by lawlessness
of another kind which pays no heed to the fundamental rights that
underlie and give legitimacy to any such collective action.
Notes
[1] Ibid.
[2] Supplement to an Agenda for Peace, (A/50/60 S/1995/1), paragraphs
66 to 76.
[3] Impact of Armed Conflict on children: Note by the Secretary-General,
(A/51/306, annex) (1996), paragraph 128.
[4] L. Minear, et al., Toward More Humane and Effective Sanctions
Management: Enhancing the Capacity of the United Nations System,
Executive Summary. Study prepared at the request of the United Nations
Department of Humanitarian Affairs on behalf of the Inter-agency
Standing Committee, 6 October 1997.
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