In a context where accountability is difficult to achieve through the multilateral system, wealthy states are increasingly turning to targeted sanctions. But there are unanswered questions about process and the efficacy of such measures.
Beyond the routine business of diplomacy, wealthier states have increasingly turned to economic pressure, either to incentivize progress on human rights or punish abuses. Although this practice is perhaps outside of a narrowly defined diplomacy, it has come to be used alongside diplomacy or in its absence, and therefore merits a brief treatment.
The trend towards economic pressure has been cautiously welcomed by many human rights advocates, on that basis that it demonstrates a harder edge and a more realist approach than diplomatic statements and dialogue. Supporters of this approach assert that it applies meaningful leverage and brings direct consequences to individuals accused of human rights violations in a context where accountability is a rarity. But the trend also raises several questions, including when such pressure crosses a line into coercion, whether it is consistent with a human rights-based approach and whether it is effective.
Economic pressure takes several forms. Several UN sanctions regimes with human rights objectives are currently in place, including in Afghanistan (from 2011), Central African Republic (from 2013), Democratic Republic of the Congo (from 2010), Libya (from 2014, in the current form), South Sudan (from 2015), and Yemen (from 2011), which include both individual and comprehensive elements. However, consistent with its wider deadlock, the UNSC has introduced only one new sanctions regime since 2015 – in Mali (an exceptional case involving government cooperation) – having introduced 22 such regimes during the preceding 24 years.
While multilateral UN sanctions have dwindled, there has been substantial recent growth in the imposition of unilateral sanctions. This has been particularly true of the ‘Magnitsky’ regime of targeted sanctions. This trend began with legislation enacted in the US in 2012 following the death in 2009 of Russian tax lawyer Sergei Magnitsky, who had exposed a large-scale tax fraud alleged to involve high-level government officials in Russia. This legislation authorized the imposition of travel bans and asset freezes on a list of Russian officials believed to have been responsible for human rights violations. In 2016, Congress built on this foundation to pass the Global Magnitsky Human Rights Accountability Act, which authorized the President to revoke US visas and to block property and assets of foreign individuals and entities involved in ‘gross violations of human rights’, as well as ‘acts of significant corruption’. In 2017, President Trump further expanded the scope of the law via Executive Order 13818 and reduced the threshold for action to ‘serious human rights abuse’ and ‘corruption’. Similar laws have been introduced in Estonia (in 2016), Canada, Lithuania and the UK (all 2017), Latvia (2018), the EU (2019), Kosovo (2020) and Australia (2021), as well as in Gibraltar and Jersey (both 2018).
The recent expansion in Magnitsky legislation has rapidly pushed targeted individual sanctions towards becoming one of the most prominent tools of leverage on human rights.
The recent expansion in Magnitsky legislation has rapidly pushed targeted individual sanctions towards becoming one of the most prominent tools of leverage on human rights. But this trend has so far received relatively little serious scrutiny. In 2021, the US government issued 173 new designations, compared with 103 in 2019. Human rights were also part of the rationale for the imposition of massive co-ordinated sanctions on Russia by the US and G7 countries in 2022. Magnitsky sanctions are variously described by their proponents as a form of accountability (although it may be more accurate to call them a substitute for accountability), a deterrent and an incentive for governments to strengthen domestic human rights protections.
It is by no means clear that such sanctions are as effective as their proponents hope. Individual sanctions are by nature easier for their targets to sidestep than comprehensive sanctions, and as such they may only work if they are broad enough. But, as one expert interviewee explained, what is most difficult to know about sanctions is how they are experienced by their targets. In the absence of clarity on this, the primary value of individual sanctions is in signalling disapproval: in the words of one interviewee, ‘they are a feel-good measure’. In terms of secondary impacts, such as for deterrence or shifting the incentives in a mediation process, timing is critical. Yet new sanctions are often announced as part of regular designations without consideration to how to optimize their timing for maximum effect.
Magnitsky designations also risk falling foul of human rights due process. Even where clear criteria are in place, it is almost inevitable that sanctions designations will involve political choices, and potentially therefore could be arbitrary and lacking in transparency or accountability. States beholden to kleptocratic wealth are heavily compromised in this regard. A wide range of factors other than pure human rights considerations could be at play, including the opportunity to pursue a vendetta or the fear of economic reprisals. Yet this aspect of the process is largely concealed from scrutiny.
At the very least, these questions expose Magnitsky sanctions regimes to accusations of being politically driven. But it is also possible that a lack of due process could risk violating an individual’s rights in the name of upholding human rights, which was the great folly of the ‘war on terror’ in the early 2000s. There is a clear risk that a designated individual is proclaimed guilty of an act which may or may not meet the threshold of an international crime, without having practical means to prove their innocence. Magnitsky sanctions regimes therefore risk feeding into existing narratives about Global North hypocrisy, as well as the tendency to prioritize certain rights above others.
In her first report in 2020, the current UN special rapporteur on the negative impact of unilateral coercive measures on the enjoyment of human rights, Alena Douhan, noted ‘the selectivity and double standards that arise when such [Magnitsky] sanctions are introduced in the absence of any valid legal ground.’ The mandate of the special rapporteur was established in 2014, but there has been a much longer history of condemnations from the Non-Aligned Movement (which included several sanctioned states) about ‘unilateral coercive measures’, including one or more annual resolutions at both the HRC and UNGA, which are typically voted against by Global North countries. The 1993 Vienna Declaration and Programme of Action adopted by the World Conference called on states to ‘refrain from any unilateral measure not in accordance with international law and the Charter of the United Nations’. The declaration thereby established grounding in international law as the crucial test, and the special rapporteur indicated her intention to probe ‘the impact of various types of sanctions to all categories of human rights’, including a focus on ‘the legal grounds, the particularities and the legality of sanctions imposed on individuals and non-State entities, especially due to the proliferation of Magnitsky-like acts.’
On the economic incentives side, the best-known scheme is the EU’s GSP+ (one of three regimes under the broader Generalised Scheme of Preferences), which opens access to EU markets via substantial tariff reductions in exchange for the beneficiary ratifying and implementing 27 international conventions, including 15 on human rights. There are procedural criticisms about the quality and transparency of monitoring and implementation, and the EU has appeared to set an extremely high threshold for the withdrawal of benefits. Only Sri Lanka has ever been stripped of its status, on a temporary basis, following a European Commission inquiry into mass atrocity crimes committed by government forces against civilians.
However, perhaps the deeper question, as expressed by one interviewee, is whether the transactional nature of applying economic leverage for human rights improvements can ever be genuinely transformative. For example, after an attack on a school in Peshawar in 2014, Pakistan lifted an unofficial moratorium on the death penalty while benefiting from GSP+, thus demonstrating that domestic public opinion tends to prevail over passive compliance with international norms and obligations. Economic pressure from the EU has not translated into any public argument for the abolition of capital punishment in Pakistan. This remains a point of contention in discussions over the renewal of Pakistan’s GSP+ status, due in 2024.
It is not difficult to see how linking economic consequences to human rights outcomes could constitute an effective form of leverage, but it comes with potential for abuse. The economics of human rights diplomacy deserve a much fuller treatment than this paper can provide. Important issues in this area would benefit from further inquiry, including the legality and impact of unilateral sanctions; the relationship between targeted sanctions and accountability; the correlations between financial influence and voting records; the relative exposure of different states to economic pressure; and the impact of funding deficiencies within the UN human rights system. Moreover, the growing use of economic measures by wealthier states raises further questions about the financial balance of power in the multilateral human rights system at a time when parts of that system are applying fresh energy to issues such as climate, legacies of colonialism and inequality – all of which have significant economic dimensions.
