A/HRC/36/44
• The protective principle, according to which a State may regulate conduct of
foreigners that could prejudice its most vital interests; however, while this concept is
well established in international law, uncertainties remain as to its extent and the
acts it covers
• The universality principle, according to which all States may exercise jurisdiction
over certain criminal activities, notably piracy and slavery, regardless of the place of
perpetration and the nationality of victims or offenders
24.
Against this background, it is generally assumed that extraterritorial sanctions are
unlawful.11 The reason for this is basically that most extraterritorial sanctions cannot invoke
any of the above-mentioned criteria.12 In particular, the effects doctrine, sometimes invoked
by the United States as a justification for the implementation of extraterritorial measures,
could be potentially legally warranted in only a very limited number of cases, given the
cumulative requirements that the said effects (of the situation that has triggered the decision
to impose sanctions) on the territory of the targeting State be direct, foreseeable and
substantial. It also appears that extraterritorial sanctions cannot generally be justified as
legitimate countermeasures under the law of State responsibility.
25.
A number of negative reactions to the practice of extraterritorial sanctions have been
expressed over time by United Nations organs, other international organizations and
individual States, and are reflected in the academic literature. The assumption that
extraterritorial sanctions are unlawful is shared by a vast number of countries.13 Since 1992,
the General Assembly has annually voiced its condemnation of the extraterritorial reach of
the embargo imposed on Cuba by the United States. 14 For its part, in 1996, the European
Union adopted a so-called blocking statute, under which European Union companies are
prohibited from complying with extraterritorial sanctions imposed by the United States. 15
The European Union has also expressed its position against extraterritorial sanctions in its
own guidelines on “restrictive measures” as follows:
“The EU will refrain from adopting legislative instruments having extra-territorial
application in breach of international law. The EU has condemned the extraterritorial application of third country’s legislation imposing restrictive measures
which purports to regulate the activities of natural and legal persons under the
jurisdiction of the Member States of the European Union, as being in violation of
international law”.16
26.
A comprehensive study aimed at evaluating the practice of extraterritorial unilateral
sanctions under international law would far exceed the scope of the present report. This
remains a task for the future, preferably to be undertaken by the International Law
Commission. Such a study would require a comprehensive enquiry into the existence, the
content and the precise current legal status of any rule prohibiting recourse to
extraterritorial sanctions in present-day international law. The study would also have to
recapitulate all known critical reactions to extraterritorial sanctions at the United Nations
level, but also those of regional organizations or individual States or those voiced in the
11
12
13
14
15
16
See C. Beaucillon, “Practice makes perfect, eventually? Unilateral State sanctions and the
extraterritorial effects of national legislation”, in N. Ronzitti, ed., Coercive Diplomacy, Sanctions and
International Law (Leiden/Boston, Brill/Nijhoff, 2016), pp. 103-126; and S. Emmenegger,
“Extraterritorial economic sanctions and their foundation in international law”, Arizona Journal of
International & Comparative Law, vol. 33 (2016), pp. 633-660.
See M. Cosnard, “Les lois Helms-Burton et d’Amato-Kennedy”, pp. 36-50.
In addition to the various resolutions of the General Assembly and the Human Rights Council
condemning the use of extraterritorial sanctions, the countries of the Non-Aligned Movement have
firmly rejected this practice (see, for instance, Asian-African Legal Consultative Organization
resolution RES/51/S 6). See also Council of the European Union, “Council Regulation (EC) No.
2271/96”, referred to above. Canada, Japan and other countries appear to share the same views.
See General Assembly resolution 47/19 and subsequent resolutions.
Council of the European Union, “Council Regulation (EC) No. 2271/96”.
Council of the European Union, “Guidelines on implementation and evaluation of restrictive
measures (sanctions) in the framework of the EU Common Foreign and Security Policy” (15 June
2012), para. 52.
7
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