A/HRC/42/46
the context. In its resolutions, the Assembly calls on all States to refrain from using
unilateral coercive measures. The measures condemned are laws and regulations adopted
by States the extraterritorial effects of which affect the sovereignty of other States, the
legitimate interests of entities or persons under their jurisdiction and the freedom of trade
and navigation. The Assembly also makes clear that States that refrain from promulgating
and applying laws and measures of the kind dealt with in the present report or that repeal or
invalidate any such measures already in force would be acting in conformity with their
obligations under the Charter of the United Nations and international law, which, inter alia,
reaffirm the freedom of trade and navigation (see, e.g., resolution 73/8, paras. 2–3).
45.
In the preamble of its resolutions, the General Assembly refers to certain general
principles, including the sovereign equality of States, non-intervention and non-interference
in their internal affairs and freedom of international trade and navigation, which are also
enshrined in many international legal instruments. It also refers to declarations and
resolutions of different intergovernmental forums, bodies and Governments that express the
rejection by the international community and public opinion of the promulgation and
application of measures of the kind referred to above.
46.
It would thus appear that the international community views as unlawful those
unilateral coercive measures the extraterritorial effects of which affect the sovereignty of
other States, the legitimate interests of entities or persons under their jurisdiction and the
freedom of trade and navigation. Being almost universally proclaimed as such by the
international community, that view therefore qualifies as an emerging rule of customary
international law.
B.
Obligation to resist the extraterritorial application of unilateral
sanctions
47.
There is a legal argument that States may be under a legal obligation not to
recognize the effects of unlawful sanctions, especially those applied extraterritorially and
secondary economic sanctions. In fact, there exists in international law an obligation of
non-recognition of (at least certain) unlawful situations. Such an obligation derives from the
well-established general principle of law ex injuria jus non oritur, meaning that legal rights
cannot derive from illegal acts.65 It is set out in particular in article 41 (2) of the articles on
responsibility of States for internationally wrongful acts: “No State shall recognize as
lawful a situation created by a serious breach [by a State of an obligation arising under a
peremptory norm of general international law], nor render aid or assistance in maintaining
that situation”.66
48.
What are the peremptory norms the violation of which can give rise to the obligation
of non-recognition? The forcible acquisition of territory is the most well-known example,
and appears to be the unlawful situation par excellence covered by the obligation of nonrecognition under customary international law.67 But breaches of other peremptory norms
can arguably be directly relevant to the same obligation, such as the right to selfdetermination, the prohibition of racial discrimination and apartheid, and basic principles of
international humanitarian law.68 The Special Rapporteur has already made the point that all
three sets of peremptory norms referred to above could possibly be breached through the
imposition of (at least certain forms of) economic sanctions.
49.
The right to self-determination is recognized, inter alia, in common article 1 (1) of
the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights, which also spells out that, by virtue of that right, all
peoples freely determine their political status and freely pursue their economic, social and
65
66
67
68
14
Martin Dawidowicz, “The obligation of non-recognition of an unlawful situation”, James Crawford,
Alain Pellet and Simon Olleson, eds., The Law of International Responsibility (Oxford, Oxford
University Press, 2010), pp. 677–686.
See General Assembly resolution 56/83, annex, as modified by A/56/49(Vol. I)/Corr.4.
Dawidowicz, “The obligation of non-recognition of an unlawful situation”.
Ibid.
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