A/HRC/37/311721424
satisfactory manner. For regional mechanisms, the Special Rapporteur referred to the
example of European courts. Sanctions by the European Union were subject to full judicial
review before the European Court of Justice. He emphasized how the courts had developed,
over time, a rich jurisprudence of cases brought by individuals or entities subject to
restrictive measures. In some cases, applicants had obtained delisting from sanctions. The
European Court of Human Rights was also competent to adjudicate cases brought by
individuals or legal entities for violations of the Council of Europe Convention for the
Protection of Human Rights and Fundamental Freedoms. The Court had already considered
cases on sanctions, albeit in a more limited manner. Its jurisdiction was limited to the
territory of Member States or over which the latter exercised control.
13.
For international mechanisms, the Special Rapporteur discussed the treaty-based
human rights bodies of the United Nations. Some of these mechanisms were, prima facie,
relevant to the situation of persons whose human rights had been infringed by sanctions.
Such mechanisms were, however, not available when the States imposing the sanctions
were not party to the relevant instrument. He argued for targeting State accountability and
liability for damages. States had not only obligations when they adopted measures
applicable to their own territory, but also extraterritorial obligations insofar as the actions of
the State could have an influence on situations abroad. A State imposing sanctions should
therefore be liable for any resulting human rights violations.
14.
Although a treaty body could render a decision with regard to remedial action to be
taken by a State, such as compensation to victims, their decisions were not legally binding
on targeting States. Complaints of violations of human rights caused by the application of
unilateral coercive measures may also be submitted to the special procedures of the Human
Rights Council, or to its complaint procedure mechanism.
15.
The Special Rapporteur concluded by suggesting that a compensation commission
could be set up under the Security Council or, alternatively, be established by means of a
multilateral convention. States that had imposed unilateral coercive measures on other
States could be called upon to contribute financially to such a commission.
16.
The Vice-Rector and Head of the International Law Department at the International
University MITSO, Alena Douhan, argued that the impact of unilateral coercive measures
was similar to that of other threats to international peace and security, leading to negative
effects and even the destabilization of progress in the peaceful social and economic
development of peoples around the world. The debate on remedies, however, first required
a clear definition of what unlawful unilateral coercive measures actually were, taking into
account not only the mechanisms used but also their consequences and purposes, as well as
immediate and long-term responses.
17.
Ms. Douhan proposed the reactivation of the fact-finding mechanisms of the
Security Council and the General Assembly as a response to unilateral coercive measures.
She also suggested making active use of the special procedures and other mechanisms of
the Human Rights Council, such as the treaty bodies and the complaint procedure.
18.
With regard to immediate responses to unilateral coercive measures applied to
natural and legal persons, an individual or a legal entity should have the right to appeal to a
national court, which could assess the legality of the measures and decide, if applicable, on
the most appropriate criminal or administrative penalty. If the targeted individual or legal
entity is acquitted of the charges that triggered unilateral coercive measures, the State of
habitual residence of that individual or legal entity would be empowered to request the
cessation of the measures, which would have to be lifted immediately. In all cases, the
natural or legal entity targeted by the measures would have the right to stand trial, with the
observance of other due process guarantees.
19.
Long-term responses to unilateral coercive measures should inevitably include the
drafting of a clear definition of such measures, and of criteria upon which activities could
be judged as illegal. The lack of a definition opened the way for misuse by both sanctioning
and sanctioned States. Therefore, if the means of pressure applied by a State were legal
under international law, they would not constitute unilateral coercive measures and could
not constitute grounds for accountability or reparations.
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