On Unilateral Coercive Measures (Part II): A Conversation with Alena Douhan 

The UN Special Rapporteur examines the consequences of sanctions on Venezuela and other countries and explores mechanisms to mitigate their effects.

Dr. Alena Douhan is a professor of International Law, the Director of the Peace Research Center at the Belarusian State University, and an associated member of the Institute for International Law of Peace and Armed Conflict at Ruhr University Bochum, in Germany. Since March 2020, Douhan has been the United Nations Special Rapporteur on Unilateral Coercive Measures [UCMs]. During her tenure, she has released multiple reports exposing the human rights impact of UCMs on targeted countries. In this two-part interview with Venezuelanalysis, Douhan talks about the consequences of UCMs and some legal mechanisms countries can employ to mitigate their effects 

[Note: Dr. Douhan frequently employs the term “designated country” to denote a nation subjected to – or targeted by – a unilateral sanctions regime.]

In October 2024, you will present a report before the UN General Assembly titled “Access to justice in the face of unilateral sanctions and over-compliance.” Could you explain this focus?

Access to justice is, in principle, the main instrument to protect people’s human rights. The idea is that if our rights are affected, we should be able to go to a court or another institution and resolve the problem there. 

However, when it comes to unilateral sanctions, and if we expand the field of observation beyond individual rights to include the rights of states and companies in a designated country, then we can perceive significant obstacles to obtaining justice.

It is encouraging to see an emerging trend where states are actively bringing cases to international courts. As previously mentioned, Iran initiated three cases, but Qatar also took a case to the International Court of Justice. Resolving disputes through international judicial institutions is a constructive avenue for bringing the issue back into the framework of international law.

Yet, when addressing companies and, even more so, individuals who are directly sanctioned, the situation becomes very complex. In such cases, the states imposing Unilateral Coercive Measures often categorize the measures as administrative rather than criminal or civil, asserting that their aim is to “improve” conditions in the designated country.

This can leave companies and individuals with limited recourse, and render them unable to effectively protect their rights. Consider, for instance, a Venezuelan national who is targeted by another country. The person’s ability to travel becomes nearly impossible and the costs associated with safeguarding their rights soar. 

These challenges are compounded by the fact that finding legal representation willing to handle UCM-related cases is difficult, since many law firms prefer to steer clear of such complex and sensitive matters. 

Furthermore, the United States has explicitly authorized certain law firms to represent specific cases, thereby restricting the sanctioned companies freedom of choice. Similar trends have been observed within the European Union. Notably, there are ongoing debates about an EU draft legislation that point to possibly imposing greater responsibility on law firms and legal professionals representing sanctioned entities. 

This approach introduces significant ambiguity: the allegation that a lawyer is aiding an entity in circumventing a sanctions regime is subjective and open to interpretation, posing inherent challenges in legal proceedings.

This is why law firms frequently approach me with a common concern: If we provide consultation to a sanctioned company regarding the legal implications of their situation, could the law firm face repercussions for allegedly aiding in circumventing a sanctions regime? Faced with these uncertainties, many law firms and lawyers opt for caution and decline involvement altogether. This contributes to a more restricted access to justice.

However, there are other instances where access to justice becomes even more elusive, particularly for the broader population or companies in a designated country but not directly targeted by a sanctions regime. In these scenarios, if they attempt to pursue legal action related to matters arising from the sanctions, their case is often dismissed on the grounds that the claimant – whether it’s the general population or a company – has not been directly designated.

Even if an entity manages to secure legal representation and bear the exorbitant costs of seeking justice abroad, what could the court claim? You have not been specifically designated. Your situation could be a consequence of your government’s policies or potentially an outcome of a private company’s over-compliance. We do not have control over the decisions made by private entities.This leaves individuals and companies without adequate protection. 

Can you give an example of how this might happen? 

Sure, to illustrate this predicament, consider the case of thalassemia patients in Iran. Without access to medicine, the mortality rate for these patients increases by 8 to 10 times, with life expectancy plummeting from 45 to below 20. Iranian thalassemia patients brought their case to a court in the United States, only to have it dismissed. The court dismissed the case because “the US has a humanitarian exception on medicines.”

However, the effectiveness of humanitarian exceptions is limited. The intricate process of applying for a license to export to a designated country presents formidable hurdles, deterring producers from engaging in such procedures. To avoid gray areas, uncertainties, and perceived risks, producers adopt a cautious stance, prioritizing safety over engaging in complex and unclear licensing protocols.

Returning to the plight of thalassemia patients, only two companies produce the medication they require. In my efforts to address this issue, I initiated communication with the US government, the governments in the countries where the companies are registered, and the companies themselves. 

Unfortunately, this revealed a disturbing pattern of shifting responsibility. Ultimately, the companies told us that they would export the treatment if assured that the US would not impose sanctions on them – a request beyond the scope of my mandate. Consequently, thalassemia patients in Iran continue to suffer and face premature death.

States, companies, and individuals, whether designated or not, face similar challenges. Furthermore, the impact extends to non-governmental organizations when they consider providing humanitarian aid to countries affected by unilateral sanctions. The gravity of this situation is underscored by the fact that these humanitarian actors bear the burden of proving the humanitarian nature of their activities. Consequently, the ambiguous context surrounding sanctions may prevent them from delivering essential aid to designated countries.

My forthcoming General Assembly report focuses on access to justice under unilateral coercive sanctions. We are currently in the process of calling for input to produce a comprehensive report.

You can download Venezuelanalysis’ A War Without Bombs: The social, political and economic impact of sanctions against Venezuela, here: www.venezuelanalysis.com/opinion/a-war-without-bombs.

Can you shed light on the challenges posed by over-compliance and, if possible, how this affects Venezuela and other countries subjected to a UCM regime? 

The issue of over-compliance is a real problem. There are debates about whether it is an intentional or unintentional consequence of a sanctions regime. Delving into the political debate surrounding this matter is outside of my mandate. However, I will go into the real-world implications of over-compliance.

Over-compliance occurs when private businesses, NGOs, or even UN organs refrain from engaging in transactions or activities that are not prohibited by a sanctions regime, driven by the fear of potential adverse consequences. These zero-risk or de-risking policies exemplify the amplifying impact of unilateral sanctions.

I have presented two reports on over-compliance – one before the Human Rights Council in 2022 and another prepared for the General Assembly in 2023 – both highlighting the associated risks. Since becoming a UN Rapporteur, I have worked on the issue of over-compliance. This situation is so severe that some countries imposing sanctions have raised concerns about the impact of the practice on their own businesses.

In response, the EU is actively seeking to amend its regulations to shield businesses from the risk of US sanctions, particularly on over-compliance issues. While EU guidelines explicitly state that companies are not expected to be subjected to US sanctions, the reality is that the European Union has yet to effectively protect its own companies from such risks.

Recognizing that we do not operate in a legal vacuum, I have drafted recommendations for states and businesses. There are many provisions in the Law of International Responsibility to ensure that the activities of states and private businesses do not affect the human rights of a population. Additionally, we incorporated extraterritorial considerations from the 2011 UN document Guiding Principles on Business and Human Rights into the draft.

The draft for Guiding Principles on Sanctions, Compliance (Over-Compliance) and Human Rights is now posted on our mandate page. I developed it in consultation with scholars and NGOs, but the document is not final yet: we are calling for input and I also plan to develop commentary for each provision.

Once we have gone through this process, we aim to convene a multi-stakeholder conference to propose this document as the legal guidance to prevent or minimize over-compliance. In reality, we do not need to invent new rules, we simply need to understand the existing ones and apply them.

You visited Venezuela as the Special Rapporteur on Unilateral Coercive Measures and later published a report. How UCMs have affected the lives of the Venezuelan people?

All elements that I mentioned before [see Part I] apply to the situation in Venezuela. In my visit, I was able to observe firsthand the devastating impact of sanctions. Of course, sanctions are not the only element affecting Venezuela’s humanitarian situation. We could also refer to the impact of Covid-19 or to the government policies – right or wrong – that have been implemented. However, there is no question that sanctions are an extremely important factor. 

My mandate is not to talk about sanctions as a policy, but instead to identify when UCMs have a negative humanitarian impact. That is what I did in Venezuela. In Venezuela the impact of sanctions on human rights is incredible and it affects all aspects of life. By this, I mean that not only the designated people and companies are affected, but the population as a whole.

This brings me to an important issue. Sanctions imposed on a person are supposed to be specific to that person. However, the consequences are generally much larger. For instance, if a minister in a certain area is sanctioned, his whole sphere of action is affected by extension. In the end, these kinds of [individual] sanctions become comprehensive ones. In Venezuela, I witnessed how people’s basic needs were hampered by UCMs. 

Overall, in Venezuela, unilateral sanctions have generated food insecurity and affected all other aspects of life, from education to healthcare. For instance, the delivery of medical equipment and certain medicines is nearly impossible. Access to vaccinations was impacted by the UCMs, although this situation has fortunately been resolved through the participation of Unicef. 

UCMs impact the population’s economic rights, restrict access to information via limited internet availability, and curb access to electricity and water. Finally, freedom of movement is also constrained. For instance, during my country visit to Venezuela, the price of a bus fare could amount to half of a month’s salary.

There appears to be a growing movement aimed at increasing accountability for the devastating impact of sanctions and at mitigating the effects of UCMs. What do you have to say about this?

As an international lawyer, I firmly oppose Unilateral Coercive Measures, because I believe that the resolution of disputes between states should be pursued through legal channels. My guiding principle can be expressed as follows: “Start to act in accordance with international law. Adherence to international legal norms will mitigate the majority of issues associated with UCMs, since many measures will have to be lifted.”

My perspective is based on a respect for humanity’s welfare. When a sanctioning entity prioritizes “higher goals” over humanity, that inevitably leads to problems. People need to eat, they need to have access to healthcare and education, and they want to live. 

In advocating for the rule of law as a countermeasure to unilateral sanctions, I emphasize the importance of gathering evidence before addressing issues of responsibility and accountability. Precision is key in my work, and I consistently remind the state representatives with whom I talk about the need for precision.

In preparation for the upcoming report that I will present at the Human Rights Council in October, we are launching a sanctions monitoring tool to quantify their impact. This is important because, while I conduct reports following country visits, it’s not feasible to visit every country affected by UCMs. 

Therefore, we invite stakeholders, individuals, and NGOs in designated countries or those affected by unilateral sanctions in third-party countries to contribute by sharing relevant information. This tool will enhance the visibility of impacts, facilitating a more informed discussion about accountability.