A/HRC/36/44
form of protests, domestic blocking legislation, non-recognition by domestic courts etc. The
study would also have to assess the potential implications of the use of extraterritorial
sanctions in terms of the law of international responsibility. It is worth mentioning in that
respect that, in 2006, the International Law Commission examined a preliminary Secretariat
report on extraterritorial jurisdiction, which could form the basis for long-term work on the
codification of international law on the matter.17 That proposal could (or should) be revived
in some form.
2.
International human rights law
27.
The adverse effects of international coercive measures in general on the enjoyment
of human rights of targeted populations have been widely documented. The question arises
whether extraterritorial sanctions display specific features (i.e. whether they are likely to
have specific adverse consequences on human rights) that can be distinguished from those
arising from the use of sanctions in general. It is submitted that such specific effects flow
from extraterritorial sanctions, to the extent that they affect the ability of the targeted
country (and its population), as well as that of third countries not involved in the dispute
between source and target countries, to interact with the global business and financial
community. They are likely, per se, to have specific, additional adverse consequences on
human rights, including the right to development. Most international businesses, while
legally not subject to the jurisdiction of the targeting State, will in practice be unwilling to
entertain any economic relations with parties in the targeted State that might lead to their
“violating” the provisions of the extraterritorial sanctions regime — and thus might
jeopardize their ability to pursue their own business activities in the targeting State. This
has led to the damaging practice of over-compliance by trading partners of targeted
countries. The result is a de facto blockade of the target State, voluntarily complied with by
economic actors that are not even legally subject to the jurisdiction of the targeting State.
The distinct additional impact of extraterritorial sanctions may also be related to their
effects on the targeted State’s ability to gain access to international financial institutions,
foreign financial markets and international aid.
28.
As an example, the impact of the extraterritorial sanctions imposed on Cuba by the
United States (before their lifting, de jure rather than de facto, in 2016) on the country’s
ability to conduct commerce with the outside world and access international financial
markets has been described as amounting de facto to a global embargo. The Helms-Burton
Act had the effect of blocking access by Cuba to global financial institutions, as well as to
access to the SWIFT financial messaging system, which had severe effects in the context of
the economic crisis of Cuba.18
29.
Extraterritorial application of unilateral sanctions may also have an adverse impact
on the enjoyment of human rights in third countries, which are not targeted directly, but are
prevented by the operation of the (extraterritorial) foreign law from entertaining economic
relations with the target country. It has long been recognized that economic sanctions
enacted against States by the Security Council may cause unintended adverse consequences
for third parties, such as trade partners. Article 50 of the Charter of the United Nations
provides that, if preventive or enforcement measures against any State are taken by the
Security Council, any other State that finds itself confronted with special economic
problems arising from the carrying out of those measures has the right to consult the
Security Council with regard to a solution of those problems.
30.
It is fair to assume that the same adverse effects may derive from the application of
unilateral (extraterritorial) sanctions, but in that situation no rule comparable to Article 50
of the Charter seems to apply.
31.
Regulation No. 2271/96 of the Council of the European Union (the “blocking
statute”) was intended to address and remedy the adverse effects of foreign extraterritorial
sanctions on economic enterprises of the European Union engaging in international trade
17
18
8
Official Records of the General Assembly, Sixty-first Session, Supplement No. 10 (A/61/10).
C.J. Gordon, “The U.S. Embargo against Cuba and the Diplomatic Challenges to Extraterritoriality”,
Fletcher Forum of World Affairs, vol. 36 (2012), pp. 69-70.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents