A/HRC/27/32
targeted entity should be questioned and it could be argued that the Security Council should
have exclusive competence in such a situation. She proposed that sanctions could remain
symbolic, and stated that they should in all cases be equitable and not only effective, and
should be accompanied by dialogue, mediation and negotiation.
V. Session II. Mechanisms to assess and mitigate the adverse
impact of unilateral coercive measures and ensure
accountability
17.
The panellists were Antonios Tzanakopoulos, Associate Professor of Public
International Law at the University of Oxford, Susanne Kühn, Head of the Public Sector
Integrity Programme at Transparency International, and Obiora Okafor, Professor at
Osgoode Hall Law School and member of the Human Rights Council Advisory Committee.
18.
Mr. Tzanakopoulos defined a unilateral coercive measure as a measure that was in
the first instance unlawful under international law, but whose wrongfulness was precluded
owing to the fact that it was taken by a State that had been injured by an internationally
wrongful act against the State that bore responsibility for that act. All unilateral coercive
measures must respect the principle of proportionality. In that connection, measures
adversely affecting human rights would likely be disproportionate, as they would have
effects that were not commensurate with the injury suffered by the reacting State. However,
it would be difficult to establish a direct relation between the unilateral coercive measure
and the adverse effect on the enjoyment of human rights.
19.
Examining potential avenues for legal accountability for unilateral coercive
measures, Mr. Tzanakopoulos considered both diplomatic and adjudicatory means of
dispute resolution. He noted that any imbalance in the relative power of the States party to
the dispute might hamper progress, so the best protection for a weak State targeted by
unilateral coercive measures that it considered unlawful would be adjudication. However,
judicial settlement was premised on the consent of all parties to the dispute, which might be
difficult to obtain in practice if the State implementing the unilateral coercive measures had
not previously indicated consent through unilateral declarations or compromissory clauses
in bilateral or multilateral treaties. It was further premised on the willingness of the targeted
State to challenge unilateral coercive measures; members of the population suffering the
adverse impact had no direct say in the matter. A final possibility would be for third States
to argue that disproportionate unilateral coercive measures affecting human rights
constituted a breach of an obligation erga omnes, which would allow them in turn to
impose coercive measures on the State imposing the disproportionate measures. That would
assume solidarity rarely seen in the international community, and so he considered that the
best mechanism to mitigate the adverse human rights impacts of unilateral coercive
measures might be to mobilize public opinion against such measures. That had been done
effectively in the case of United Nations sanctions imposed under Chapter VII of the
Charter of the United Nations, and had resulted in the creation of a hard monitoring
mechanism, at least with respect to one sanctions regime (the creation of the Office of the
Ombudsperson in accordance with Security Council resolutions 1904 (2009) and 1989
(2011)). The creation of a similar, perhaps softer, monitoring mechanism might be an
option in the case of unilateral coercive measures, but Mr. Tzanakopoulos noted that all
attempts to subject such measures to hard monitoring had been abandoned by the
International Law Commission during its work on the articles on responsibility of States for
internationally wrongful acts.
20.
Ms. Kühn addressed the potential positive role that targeted unilateral coercive
measures might play in the fight against corruption and impunity. She noted that corrupt
7
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents