Background

Pursuant to Human Rights Council resolutions 27/21 and 45/5 and General Assembly resolution 76/161, the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights is requested in fulfilling her mandate, inter alia, to gather all information relevant to the negative impact of unilateral coercive measures on the enjoyment of human rights; to study relevant trends, developments and challenges; and to make guidelines and recommendations on ways and means to prevent, minimize and redress their adverse impact on human rights; as well as to draw the attention of the Human Rights Council, the General Assembly and the High Commissioner to relevant situations and cases.

In her thematic work, in accordance with the scope of the mandate, the Special Rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights has presented a significant body of evidence on direct and indirect negative consequences of primary and secondary sanctions, other types of enforcement of unilateral sanctions, compliance, over-compliance, vague terminology and legal uncertainty on the scope and sources of compliance policies^[1]. The reports also note that when a resolution of the UN Security Council relevant to the specific situation exists, unilateral sanctions are much broader in the scope and together with sanctions compliance enforcement measures and over-compliance prevent proper implementation of the Council decisions as well humanitarian provisions of relevant resolutions.

The Special Rapporteur has repeatedly referred to existing legal standards of due diligence, precaution and humanity in her reports and communications, and concluded that the development of the special document is necessary to protect human rights in the face of expanding practice of unilateral coercive measures and over-compliance. The document will be a guidance document entitled “Guiding Principles on Sanctions, Compliance (over-compliance) and human rights” (hereinafter the “Guiding Principles”) and is shared with all relevant stakeholders for comments and feedback.

Due to the complexity and sensitivity of the matter at hand the Special Rapporteur is intending to provide detailed comments to every paragraph of the document to demonstrate the legal basis of every provision as well as to enable uniform application.

The Guiding Principles are intended to establish the guidelines and benchmarks for States, international organizations, businesses and other actors to avoid and /or minimize over-compliance and to ensure promotion and protection of human rights in accordance with international law, the work done by the International Law Commission on the Law of International Responsibility as well as the United Nations Guiding principles on Business and Human Rights.

The Special Rapporteur underlines the importance of collective joint efforts of all stakeholders, governmental and non-governmental, including States, international and regional organizations, civil society, academia and businesses, among others, to crystallize a mutual consent on the modes of human rights approach to be implemented in situations of sanctions. For this purpose, after receiving and analyzing the responses to this call, the Special Rapporteur intends to organize a multi-stakeholder conference in November 2024 to discuss the draft document of the Guiding Principles and a commentary to this draft.

Objective and outcome

In accordance with the established practice of the Special Procedures thematic mandate-holders, the Special Rapporteur welcomes inputs by States, UN agencies, other regional and international organizations, businesses, including banks, transportation and insurance companies, national human rights institutions, civil society, scholars and research institutions, and others who may wish to submit input for the Guiding Principles, referred to, though not limited by the questionnaire below. For this purpose, the Special Rapporteur proposes a draft of the document and non-exhaustive list of questions to facilitate input and representativeness of views.

Key questions and input sought

The Special Rapporteur would be grateful to receive input as a response to the following questions and general issues:

1. What shall be the title of the document in a view of the main idea would be to crystalize the rules of behavior of States, businesses and other actors to minimize the humanitarian and human rights impact of sanctions of the UN Security Council, and to avoid negative humanitarian impact of all forms of unilateral sanctions, of measures aimed to enforce compliance with unilateral sanctions, as well as of over-compliance?
2. What shall be the status of the Guiding Principles?
3. In a view of the vague, complicated and confusing terminology of sanctions/ unilateral coercive measures, is the glossary provided in the draft comprehensive and clear enough? What other notions and definitions may be added and which from those already included in the document could/should be amended?
4. The draft Guiding Principles seek to crystalize general, foundational and operational principles of behavior of states, international organizations, businesses and other actors in the face of the expanding use of sanctions, unilateral coercive measures, development of sanctions-enforcement strategies and over-compliance. What other principles should be added to the draft to ensure solidarity and human rights-based approach?
5. What format of discussion of the draft and commentary is preferable: diplomatic conference/ academic conference/ consultations and banks and businesses any other option?
6. Whether the provisions on delivery of humanitarian assistance and protection of humanitarian actors seeking to deliver humanitarian assistance in accordance with resolutions of the UN Security Council as well as those working in the face of unilateral sanctions are sufficient? If not, what measures shall be added?
7. Shall the status and role of focal points be addressed in the draft? What can be added to the draft in order to make a proposal on focal points be practical and enforceable as much as possible?
8. What regional context may be important with regards to the draft? What examples of regional institutions practice, regional case-law are advisable for analysis and, probably, inclusion into the commentary?
9. To what extend the shall the Guiding Principles address the issue of accountability, remedies, responsibility and redress? What methodology for identifying and assessing damage may be used in order to provide remediation in cases of sanctions-related impact?
10.  Responsible anti-over-compliance business conduct (RAoBC) shall become one of the business policy objectives. What benchmarks for RAoBC may be introduced?

The Special Rapporteur also welcomes any comments and proposals about the draft in general or any specific provision of the draft to enable open and transparent dialogue.

The Special Rapporteur also asks all stakeholders to distribute this call for contributor to relevant banks and businesses.

How inputs will be used

Please send responses and comments in WORD or PDF, in ENGLISH, FRENCH, SPANISH or RUSSIAN, to hrc-sr-ucm@un.org and specify “Input for SR UCMs Guiding Principles” in the subject line. The deadline for submissions is 30 April 2024.