A/HRC/39/54
(b)
Individuals and legal persons and entities targeted (by sanctions) but found
not to have been given a chance to benefit from due process (see A/HRC/36/44, annex,
appendix II, para. 13 (d)).
21.
The starting point here is that a number of sanctions regimes operate in such a way
that the right to a fair trial of those affected is effectively suspended. As previously stressed
by the Special Rapporteur, the availability of judicial review for obtaining remedies and
redress for unilateral coercive measures is a requirement that stems from a number of
multilateral human rights instruments, to which the main users of sanctions are parties. A
right to a remedy for victims of violations of international human rights law is affirmed, for
example, in articles 8 and 10 of the Universal Declaration of Human Rights, article 2 of the
International Covenant on Civil and Political Rights, article 39 of the Convention on the
Rights of the Child, article 6 of the International Convention on the Elimination of All
Forms of Racial Discrimination and article 14 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (see A/71/287, paras. 22–27).
22.
The right to a fair trial is enshrined in article 14 (1) of the International Covenant on
Civil and Political Rights providing that, in the determination of any criminal charges
against individuals or of their rights and obligations in a civil suit of law, everyone is
entitled to a fair and impartial hearing by a competent, independent and impartial tribunal
established by law. It is not disputed that sanctions affect at least the rights and obligations
of the targets and thus trigger the “civil” component of article 14 (1). That is irrespective of
the question as to whether sanctions, such as the freezing of assets, for example, constitute
a sanction belonging to the criminal sphere. 12
23.
What should also be emphasized is that the lack of effective mechanisms for the
judicial review of unilateral sanctions measures, and remedies and redress for victims, as
appropriate, amount to a denial of justice. 13 That statement should be uncontroversial. It has
indeed been observed that most legal systems today recognize the importance of
safeguarding the right of access to independent bodies that can afford a fair hearing to
claimants who assert an arguable claim that their rights have been infringed. Indeed, many
writers include the element of enforceability in their definition of legal rights, because the
notion of rights entails a correlative duty on the part of others to act or refrain from acting
for the benefit of the rights holder. Unless a duty is somehow enforced, it risks being seen
as a voluntary obligation that can be fulfilled or ignored at will.14
V. Present issues of outstanding concern
A.
The rise of comprehensive sanctions as economic warfare
24.
The past months have witnessed increased recourse to sanctions, some of which are
clearly not targeted nor intended to be “smart”, but are clearly comprehensive, as in the
case of the measures introduced against the Islamic Republic of Iran. It may reasonably be
argued that applying a comprehensive regime of unilateral coercive measures extending to
the imposition of domestic sanctions legislation on third parties, the effects of which almost
12
13
14
On the question of whether (United Nations) sanctions amount to criminal charges, see E. de Wet,
“Holding the United Nations Security Council accountable for human rights violations through
domestic and regional courts: a case of ‘be careful what you wish for’?” in Jeremy Farrall and Kim
Rubenstein (eds.), Sanctions, Accountability and Governance in a Globalised World (Cambridge:
Cambridge University Press, 2009), pp. 143–168.
See generally Jan Paulsson, Denial of Justice in International Law (Cambridge, Cambridge
University Press, 2005); Antonio Cançado Trindade, The Access of Individuals to International
Justice (Oxford, Oxford University Press, 2011); and Robert Kolb, La bonne foi en droit international
public (Paris, Presses Universitaires de France, 2000).
See Dinah Shelton, Remedies in International Human Rights Law, p. 17.
7
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