Human Rights Limitations to Economic Enforcement Measures Under Article 41 of the United Nations Charter and the Iraqi Sanctions Regime

Leiden Journal of International Law

Volumn 14, Issue 2, 2001, Pages 277-300

  de Wet, Erika ^a  

^a UNIVERSITY OF THE FREE STATE   (South Africa)

Author keywords

economic sanctions; good faith; human rights; humanitarian exemptions; Iraq; purposes and principles; Security Council

Indexed keywords

EID: 84966689363     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156501000140     Document Type: Article

References (126)

1. UN Doc. S/RES/661 (16 August 1990). The text of all the resolutions referred to in this article are available at www.un.org/documents/.
2. Id., at para. 20.
3. Id., at para. 19; see also A.K. Fishman, Between Iraq and a Hard Place: The Use of Economic Sanctions and Threat to International Peace and Security, 13 Emory International Law Review 687-727, at 702 (1999).
4. UN Doc. S/RES/687 (3 April 1991), at paras. 7-13; Fishman, Id. note 3, at 702.
5. Fishman, UN Doc. S/RES/687 note 3, at 702; Report of the International Committee of the Red Cross, Iraq: A Decade of Sanctions 2-3 (14 December 1999), available at www.icrc.org/icrceng.nsf/ (hereinafter ‘ICRC Report’).
6. ICRC Report, UN Doc. S/RES/687 note 3 note 5, at 2.
7. UN Doc. S/RES/678 (1990), at para. 2; cf. HRW Explanatory Memorandum Regarding the Comprehensive Embargo on Iraq. Humanitarian Circumstances in Iraq (2000), at para. 8, available at www.hrw.org/press/2000/01/iraq-memo.htm (hereinafter ‘HRW Explanatory Memorandum’).
8. This was the assessment of a Food and Agricultural Organization (‘FAO’) Crop and Nutritional Status Assessment Mission between July and September 1995, cited in HRW Explanatory Memorandum, UN Doc. S/RES/678 note 8, at para. 1.
9. ICRC Report, This was the assessment of a Food and Agricultural Organization note 5, at 2. Fishman, This was the assessment of a Food and Agricultural Organization note 3, at 687 points out that two million men, women and children have died over a period of nine years. See also W.M. Reisman & D.L. Stevick, The Applicability of International Law Standards to United Nations Economic Sanctions Programmes, 9 EJIL 86-141, at 101-103 (1998).
10. Cf. ICRC Report, ICRC Report note 5, at 3.
11. T.D. Gill, Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter, 26 Netherlands YbIL 33-138, at 82 (1995). Since the Security Council derives its powers from member states who are themselves bound to these norms, the principle of maxim nemo plus juris ad alium transferre potest, quam ispe haberat would prevent states from transferring more powers to the organization than they have themselves.
12. R. Normand, A Human Rights Assessment of Sanctions: The Case of Iraq, 1990-1997, in W.J.M. van Genugten & G.A. de Groot (Eds.), United Nations Sanctions: Effectiveness and Effects, Especially in the Field of Human Rights. A Multi-disciplinary Approach 25 (1999); M. Fraas, Sicherheitsrat der Vereinten Nationen und Internationaler Gerichtshof 83 (1998); Gill, Legal and Some Political Limitations on the Power of the UN Security Council to Exercise its Enforcement Powers under Chapter VII of the Charter note 13, at 77. See also A. Segall, Economic Sanctions: Legal and Policy Constraints, 81 International Review of the Red Cross 24 (1999).
13. For a discussion on the potential role of advisory opinions in this regard, see E. de Wet, Judicial Review of the United Nations Security Council and General Assembly through Advisory Opinions of the International Court of Justice, 10 Swiss Review of International and European Law 137-178 (2000).
14. Fraas, For a discussion on the potential role of advisory opinions in this regard note 14, at 93; see also Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, 1962 ICJ Rep. 151, at 232 (Dissenting Opinion Judge Winiarski).
15. H. Gading, Der Schutz grundlegender Menschenrechte durch militärische Massnahmen des Sicherheitsrates-das Ende staatlicher Souveränität? 65-66 (1996); Fraas, For a discussion on the potential role of advisory opinions in this regard note 14 note 14, at 93; H.P. Gasser, Collective Economic Sanctions and International Humanitarian Law, 56 ZaöRV 871-904, at 883 (1996).
16. Gasser, Der Schutz grundlegender Menschenrechte durch militärische Massnahmen des Sicherheitsrates-das Ende staatlicher Souveränität? note 18, at 883. Cf. G. Nolte, The Limits of the Security Council's Powers and Its Functions in the International Legal System: Some Reflections, in M. Byers (Ed.), The Role of Law in International Politics 318 (2000). Nolte indicates that member states, acting alone or within a representative group of other member states, could be the ultimate interpreters of the legality of Security Council action.
17. Certain Expenses of the United Nations, Der Schutz grundlegender Menschenrechte durch militärische Massnahmen des Sicherheitsrates-das Ende staatlicher Souveränität? note 18 note 17, at 168.
18. Fraas, Certain Expenses of the United Nations note 14, at 93; see also Dissenting Opinion Judge Winiarski in Certain Expenses of the United Nations, Certain Expenses of the United Nations note 17, at 232. However, the Security Council's insistence in the preamble to UN Doc. S/RES 666 (1990) that it alone would determine whether humanitarian circumstances had arisen in Iraq, cannot be interpreted as meaning that states have no ‘right of last resort.’
19. Para. 33.
20. UN Doc. S/RES/661 (6 August 1990), at para. 4; cf. V. Gowland-Debbas, Security Council Enforcement Action and Issues of State Responsibility, 43 ICLQ 55-98, at 93 (1994).
21. UN Doc. S/RES/661 (1990), at para. 6. The sanctions committee consists of all the members of the Security Council. Its meetings are private and decisions are taken unanimously. See L. Oette, Die Entwicklung des Oil for Food-Programs und die gegenwärtige humanitäre Lage in Irak, 59 ZaöRV 842 (1999).
22. UN Doc. S/RES/666 (13 September 1990), at para. 1.
23. Id., at para. 5.
24. Id., at para. 3.
25. Id., at para. 4.
26. UN Doc. S/RES/687 (3 April 1991). Para. 20 also authorized a more simplified and accelerated “no-objection” procedure under the supervision of the sanctions committee. According to this procedure, exemption requests are passed on from the president of the sanctions committee to its members who could then object to them within two weeks. If no objections are raised, the requesting state receives authorization to provide the particular goods. If objections are raised, no authorization is granted and the request remains on the agenda of the committee. Decisions regarding exemptions take place on an individual basis and each member of the sanctions committee has a veto. The requests can be granted, refused, or placed on hold. In the latter case, the requestor is regularly asked to provide the sanctions committee with more information. See Oette, Id., at para. note 25, at 844.
27. Report to the Secretary-General on Humanitarian Needs in Iraq by a Mission led by Sadruddin Aga Khan, Executive Delegate of the Secretary-General, S/22799 (15 July 1991). The Report estimated that it would cost US$22 million to restore Iraq's key sectors, such as power, water, sanitation, food, health, and oil to pre-war levels. It proposed a limited United Nations controlled sale of Iraqi oil to fund a portion of the country's humanitarian needs. However, the Security Council did not authorize the full amount.
28. UN Doc. S/RES/706 (15 August 1991), at para. 2.
29. Id., at paras. 1(d) and 5.
30. UN Doc. S/RES/712 (19 September 1991), at para. 2.
31. The oil-for-food program was initially authorized for 180 days, subjected to review every 90 days, see UN Doc. S/RES/986 (14 April 1995), at para. 4. It has, however, been extended on a continuous basis.
32. Memorandum of Understanding between the Secretariat of the United Nations and the Government of Iraq on the Implementation of Security Council Resolution 986 (14 April 1995), UN Doc. S/RES/356 (1996), available at www.un.org/Depts/iop/undocs /s1996356.htm.
33. Id., Sec. II; UN Doc. S/RES/986 (1995), at para. 8. See also HRW Explanatory Memorandum, Memorandum of Understanding between the Secretariat of the United Nations and the Government of Iraq on the Implementation of Security Council Resolution 986 note 8, at para. 3.
34. UN Doc. S/RES/1153 (1998), at para. 2; cf. HRW Explanatory Memorandum, id., at para. 3.
35. UN Doc. S/RES/1175 (1998), at paras. 1-3; HRW Explanatory Memorandum, id., at para. 10.
36. Ann. II of S/1999/356 (1999), at para. 3, available at www.un.org/Depts/oip/panelrep.htm.
37. The Office of the Iraq Program was established in October 1997 to consolidate the management of the United Nations activities involved in the implementation of UN Doc. S/RES/661 (1990) and UN Doc. S/RES/986 (1995). See www.un.org/Depts/iop/.
38. Ann. II, The Office of the Iraq Program was established in October 1997 to consolidate the management of the United Nations activities involved in the implementation of UN Doc. S/RES/661 note 41.
39. UN Doc. S/RES/1284 (17 December 1999), at para. 15; cf. Human Rights Watch, Letter to the United Nations Security Council, 4 January 2000, at para. 9, available at www.hrw.org/press.2000/01/iraq-ltr.htm (hereinafter ‘HRW Letter’).
40. See UN Doc. S/RES/1284 (1999), at para. 17. It directs the sanctions committee to “pre-approve” humanitarian items on the basis of lists to be submitted to it by the Secretary-General. Once the lists were approved, its items would be subject to approval by the Secretariat and would not need to come before the Sanctions Committee anymore. See also HRW Letter, UN Doc. S/RES/1284 note 44, at para. 11.
41. UN Doc. S/RES/1284 (1999), at para. 24. However, the provision of the cash component remained contingent on further steps by the Security Council. It had to approve the arrangements made by the Secretary-General in this regard. See also HRW Letter, See UN Doc. S/RES/1284 note 44, at para. 11.
42. UN Doc. S/RES/1293 (31 March 2000), at para. 1. In UN Doc. S/RES/1175 (1998), at para. 3, the sum was set at US$300 million.
43. See also, Normand, The text of the cited human rights instruments is available at www.unhchr.ch/html/menu3/. note 14, at 323; Gasser, The text of the cited human rights instruments is available at www.unhchr.ch/html/menu3/. note 18, at 880: Fishman, The text of the cited human rights instruments is available at www.unhchr.ch/html/menu3/. note 3, at 712.
44. Fraas, The text of the cited human rights instruments is available at www.unhchr.ch/html/menu3/. note 14 note 14, at 82-83. Cf. also D. Akande, The International Court of Justice and the Security Council: Is there Room for Judicial Control of Decisions of Political Organs of the United Nations?, 46 ICLQ 309-343, at 324 (1997).
45. See Status of Ratifications of the Principal International Human Rights Treaties, available at www.unhchr.ch/ as of 18 May 2001. Note that the estoppel argument should be distinguished from the submission that organs of international organizations are “automatically” bound to international treaties if and to the extent that (some of) its member have ratified the treaties in question. For the complexities surrounding the latter argument, especially regarding the European Community and its relationship with the European Convention of Human Rights, see R.A. Lawson, Het EVRM en de Europese Gemeenschappen. Bouwstenen voor een aansprakelijkheidsregime voor het optreden van internationale organisaties 55-126 (1998).
46. Fraas, See Status of Ratifications of the Principal International Human Rights Treaties note 14, at 82. Cf. Akande, See Status of Ratifications of the Principal International Human Rights Treaties note 50, at 323. He states that it would be anachronistic if an organ of the United Nations was itself empowered to violate human rights when the whole tenor of the Charter is to promote the protection of human rights by and in states.
47. I. Sinclair, Estoppel and Acquiescence, in V. Lowe & M. Fitzmaurice (Eds.), Fifty Years of the International Court of Justice. Essays in Honour of Sir Robert Jennings 106 (1996). See also Certain Expenses of the United Nations, See Status of Ratifications of the Principal International Human Rights Treaties note 14 note 17, at 143-144; J.P. Müller & T. Cottier, Estoppel, II Encyclopedia of Public International Law 119 (1994).
48. J. Herbst, Rechtskontrolle des UN-Sicherheitsrates 363 (1999).
49. Conditions of Admission of States to Membership in the United Nations, Advisory Opinion of 28 May 1948, 1948 ICJ Rep. 57; see also J.P. Müller, Article 2(2), in B. Simma (Ed.), The Charter of the United Nations 96 (1994); Herbst, Art. 2(2) of the Charter. note 54, at 359-361.
50. J.P. Müller, Vertrauensschutz im Völkerrecht 228 (1971).
51. Müller, Vertrauensschutz im Völkerrecht note 56, at 93; Müller, Vertrauensschutz im Völkerrecht note 57, at 229-230. But see N. White, To Review or Not to Review? The Lockerbie Cases Before the World Court, 12 LJIL 419 (1999), who submits that a lack of good faith would only be a justifiable limit to Security Council action if it can be explained why all its members went along with the resolution, in spite of them being aware that it was in bad faith. This argument cannot be accepted, since determining the subjective motives for state action is a virtually impossible task based on speculation.
52. Cf. the cautious approach of Herbst, Vertrauensschutz im Völkerrecht note 56 note 54, at 363. He states that the principle is applied restrictively in that it does not protect a future expectation of an abstract nature. For example, in para. 2 of UN Doc. S/RES/984 (1995), the Security Council stated that its nuclear-weapon state permanent members will act immediately in accordance with the relevant provisions of the Charter, in the event that non-nuclear weapon states, who are parties to the Treaty on the Non-Proliferation of Nuclear Weapons, are the victim of an act of aggression in which nuclear weapons are used. One could be tempted to read this as a self-imposed, binding obligation to intervene in the case of a nuclear attack on a non-nuclear state. However, Herbst suggests that due to the general and abstract nature of the declaration, it is unlikely that states could rely on the estoppel principle if the Security Council refrained from intervening in the described circumstances.
53. Art. 6(1) ICCPR. An exception with respect to the death penalty is provided in Art. 6(2): “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Convention and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.”
54. Cf. Fraas, Art. 18(1) ICCPR. note 14, at 83-84; H. Köchler, Ethische Aspekte der Sanktionen im Völkerrecht 20-21 (1994); cf. also Akande, Art. 18(1) ICCPR. note 50, at 320, 322; White, Art. 18(1) ICCPR. note 58, at 421; M. Kulessa, Von Märchen und Mechanismen, 43 Vereinte Nationen 92 (1995).
55. Normand, Art. 18(1) ICCPR. note 14 note 14, at 28.
56. See Human Rights Committee, General Comment No. 6, The right to life (Article 6) (20 July 1982), at para. 1, available at www.unhchr.ch/tbs/doc.nsf/. See also B.C.A. Toebes, The Right to Health as a Human Right in International Law 261 (1999).
57. General Comment No. 6, See Human Rights Committee note 69, at para. 5; see also Toebes, See Human Rights Committee note 69, at 160-161, Segall, See Human Rights Committee note 14, at 32. For a restrictive interpretation, see Y. Dinstein, The Right to Life, Physical Integrity and Liberty, in L. Henkin (Ed.), The International Bill of Rights 115 (1981).
58. See Committee on Economic, Social, and Cultural Rights, General Comment No. 8, The relationship between economic sanctions and respect for economic, social, and cultural rights, E/C.12/1997/8 (5 December 1997), at para. 8, available at www.unhchr.ch/tbs /doc.nsf/. It regards the CRC as having obtained customary law status, since it has been almost universally ratified.
59. Segall, See Committee on Economic note 14, at 33. She submits that a sanctions regime should contain mechanisms for combating infant mortality, malnutrition, and epidemics amongst children.
60. HRW Explanatory Memorandum, See Committee on Economic note 14 note 8, at para. 17. Normand, See Committee on Economic note 14 note 14, at 33.
61. Segall, HRW Explanatory Memorandum note 14, at 34.
62. Committee on Economic, Social and Cultural Rights, General Comment No. 12, The right to adequate food (Article 11), E/C.12/1999/5 (12 May 1999), at paras. 1-4, available at www.unhchr.ch/tbs/doc.nsf/(symbol)/.
63. Id., at para. 37; Segall, Committee on Economic note 14, at 42. There is also an argument to be made that the right to food obliges states to supply essential foodstuffs to those in need. See also the last sentence of Art. 1(2) of the ICESCR, according to which a people may in no case be deprived of its own means of subsistence; cf. Köchler, Committee on Economic note 67, at 24.
64. Apart from the imposition of the death penalty as described Id. note 60.
65. Art. 51(1)(b) of Protocol I Additional to the Geneva Red Cross Conventions of 1949, 8 June 1977, 16 ILM 1442 (1977) (hereinafter ‘Additional Protocol I’). Cf. also T. Meron, The Humanization of Humanitarian Law, 94 AJIL 240 (2000).
66. See the conclusions to this effect of the Institut de Droit International, Equality of Application of the Rules of the Law of War to Parties to an Armed Conflict, 50 AIDI (1963); id., Conditions of Application of Humanitarian Rules of Armed Conflict to Hostilities in which the United Nations Forces May Be Engaged, 54 AIDI (1971); id., Conditions of Application of Rules, Other than Humanitarian Rules, of Armed Conflict to Hostilities in which United Nations Forces May be Engaged, 56 AIDI (1975). See also Y. Dinstein, The Legal Lessons of the Gulf War, 48 Austrian JPIL 9 (1995); Gill, Art. 51(1)(b) of Protocol I Additional to the Geneva Red Cross Conventions of 1949 note 13, at 80. Note also that in the Gulf War the United Nations authorized forces left no doubt as to the applicability of humanitarian law and the law pertaining to the conduct of military operations. See United States Department of Defense, Report to Congress on Conduct of Persian Gulf War, 31 ILM 612 (1992); Akande, Art. 51(1)(b) of Protocol I Additional to the Geneva Red Cross Conventions of 1949 note 50, at 324.
67. Gasser, See the conclusions to this effect of the Institut de Droit International note 18, at 880. This can also be concluded from the Legal Consequence for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion of 21 June 1971, 1971 ICJ Rep. 9, at 55-56. The ICJ affirmed that Resolution 276 (1970) obliged states to refrain from entering treaties with South Africa, where the latter acts on behalf of Namibia. However, this obligation did not extend to treaties of a humanitarian character, the non-respect of which would have negative consequences for the people of Namibia. See also Herbst, See the conclusions to this effect of the Institut de Droit International note 54, at 381; Gowland-Debbas, See the conclusions to this effect of the Institut de Droit International note 24, at 92; Gill, See the conclusions to this effect of the Institut de Droit International note 13, at 83.
68. Cf. B. Martenczuk, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrates. Die Überprüfung nichtmilitärischer Zwangsmassnahme durch den Internationalen Gerichtshof, at 281-282 (1996); Gill, See the conclusions to this effect of the Institut de Droit International note 18 note 13, at 82.
69. Gasser, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrates. note 18, at 881-882.
70. See Arts. 54, 69 and 70 of Additional Protocol I. See also Arts. 14 and 18(2) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) of 8 June 1977 (hereinafter ‘Additional Protocol II’, 16 ILM 1442 (1977); Segall, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrates. note 18 note 14, at 27-28; Gasser, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrates. note 18 note 18, at 882; Kulessa, Rechtsbindung und Rechtskontrolle des Weltsicherheitsrates. note 18 note 67, at 92.
71. For a comparable argument see Gasser, See Arts. 54 note 18, at 900-901.
72. UNICEF Survey of 27 August 1999, with updated statistics at www.unicef.org/; cf. Ann. II, For a comparable argument see Gasser note 41, at paras. 18-19, and 29; ICRC Report, For a comparable argument see Gasser note 5, at 2.
73. UNICEF Survey, id.; ICRC Report, id., at 3.
74. Secretary-General's Review and Assessment of the Implementation of the Humanitarian Program Established Pursuant to Security Council Resolution 986 (1995) (December 1996-November 1998), UN Doc. S/RES/4 (1999), at paras. 70-76, available at www.un.org /Depts/oip/reports/twoyearreview.html; ICRC Report, id., at 3; Ann. II, UNICEF Survey note 41, at paras. 29 and 43. See also HRW Explanatory Memorandum, UNICEF Survey note 8, at para. 6, n. 7. From these documents it appears that there are several reasons why the north of Iraq is doing better, than the south. Amongst others, the per capita allocation of funds under the oil-for-food program is higher, due to the north's historic vulnerability. The distribution of food and medicine through the United Nations agencies is also comparatively more efficient than distribution by the Iraqi government, and the northern border is more permeable to embargoed commodities than the rest of the country. Other factors include a relatively larger and more varied rain-fed agricultural sector, which made this area less dependent on food rations and lowered the market cost of food.
75. HRW Explanatory Memorandum, Secretary-General's Review and Assessment of the Implementation of the Humanitarian Program Established Pursuant to Security Council Resolution 986 note 8, at para. 8.
76. Ann. II, HRW Explanatory Memorandum note 41, at paras. 20 and 39. The most vulnerable groups have been the hardest hit, especially children under the age of five who are being exposed to unhygienic conditions, particularly in urban centers. Human Rights Watch, Explanatory Memorandum, HRW Explanatory Memorandum note 8, at para. 6.
77. ICRC Report, Ann. II note 5, at 2-3. Given the gravity of the nutritional situation, the WFP in February 1999 launched an appeal of US$21 million to help more than one million people in Iraq suffering from the effects of food shortages and poor water supply, including 200,000 acutely malnourished children, of which most were under the age of five. These children have not had proper drinking water or sanitation since they were born.
78. Segall, ICRC Report note 14, at 33.
79. Ann. II, ICRC Report note 14 note 41, at para. 46; HRW Letter, ICRC Report note 14 note 44, at para. 9; ICRC Report, ICRC Report note 14 note 5, at 4.
80. For a detailed overview of Iraq's failure to comply with its obligations under international human rights law, see the reports of the Special Rapporteur of the United Nations Commission on Human Rights on the situation of Human Rights in Iraq. These include UN Doc. A/54/466 (1999); UN Doc. E/CN.4/37 (1999); UN Doc. E/CN.4/67 (1998); UN Doc. E/CN.4/57 (1997); UN Doc. E/CN.4/61 (1996); and UN Doc. E/CN.4/56 (1995), all available at www.unhchr.ch. Cf. Human Rights Watch, World Report, (1999), www.hrw.org/wr2k/Mena-05.htm.
81. Cf. HRW Explanatory Memorandum, For a detailed overview of Iraq's failure to comply with its obligations under international human rights law note 8, at para. 12. The Iraqi government has also been criticized for excessive warehousing of medicines and failure to order foods specially designed for the nourishment of infants, small children, and nursing mothers. Cf. Secretary-General's Review, For a detailed overview of Iraq's failure to comply with its obligations under international human rights law note 90, at para. 84; Reisman & Stevick, For a detailed overview of Iraq's failure to comply with its obligations under international human rights law note 10, at 105-106.
82. Cf. HRW Explanatory Memorandum, Cf. HRW Explanatory Memorandum note 8, at para. 13.
83. HRW Explanatory Memorandum, Cf. HRW Explanatory Memorandum note 8, at paras. 4-5. See also Normand, Cf. HRW Explanatory Memorandum note 14, at 31; John Mueller & Karl Mueller, Sanctions of Mass Destruction, 78 Foreign Affairs 52 (1999).
84. Iraq has been party to the ICCPR and the ICESCR since 1971. See status of ratifications, available at www.unhchr.ch/. It is also unlikely that an opposition movement that supports a sanctions system that results in the wide-scale violation of basic human rights would enjoy much support within Iraqi society.
85. Art. 4(1) ICCPR. See also Human Rights Committee, General Comment No. 5, derogation of rights (Article 4) (31 July 1981), at para. 3, available at www.unhchr.ch/tbs/doc.nsf/. The Comment held that measures taken under Art. 4 are of an exceptional and temporary nature. They may only last as long as the life of the nation concerned is threatened. Also, in times of emergency the protection of human rights becomes all the more important, particularly those rights from which no derogation can be made.
86. See Committee on Economic, Social and Cultural Rights, General Comment No. 3, The nature of states parties obligations (Article 2(1)) (14 December 1990), at paras. 1 and 9, available at www.unhchr.ch/tbs/doc/nsf/.
87. Id., at para. 10. It continues by stating that a state party in which any significant number of individuals is deprived of essential foodstuffs, or essential primary health care, or basic shelter and housing, or of the most basic forms of education is, prima facie, failing to discharge its obligations under the Covenant.
88. Fraas, Id. note 14, at 83.
89. General Comment No. 8, Id. note 14 note 74, at para. 3. For example, sanctions often cause significant disruption in the distribution of food, pharmaceuticals, and sanitation supplies, jeopardize the quality of food and the availability of clean drinking water, severely interfere with the functioning of basic health and education systems, and undermine the right to work. See also Segall, Id. note 14 note 14, at 37.
90. Normand, General Comment No. 8 note 14, at 28.
91. General Comment No. 8, Id. Normand states that the Security Council moves in a gray area between war and peace. note 74, at para. 7.
92. Id., at para. 7. Para. 10 stressed that the imposition of sanctions does not in any way nullify or diminish the relevant obligations of that state party. While sanctions will inevitably diminish the capacity of the affected state to fund or support some of the necessary measures, the affected state remains under an obligation to ensure the absence of discrimination in relation to the enjoyment of these rights, and to resort to all possible measures, including negotiations with other states and the international community, to reduce to a minimum the negative impact upon the rights of vulnerable groups within the society. See also General Comment No. 12, General Comment No. 8 note 78, at para. 28. Even where a state faces severe resource constraints, whether caused by a process of economic adjustment, economic recession, climatic conditions, or other factors, measures should be undertaken to ensure the right to adequate food especially for vulnerable population groups and individuals.
93. General Comment No. 8, Id. note 74, at para. 8. The Committee also notes that most of the non-permanent members at any given time are parties to the ICESCR.
94. General Comment No. 8, Note that the Committee exclusively dealt with the impact of economic sanctions on economic, social, and cultural rights. note 74, at para. 4.
95. See General Comment No. 8 note 81. The prohibition of unnecessary suffering in Art. 23(c) of the Hague Convention IV of 1907 was the first codification of the principle of proportionality. See J. Delbrück, Proportionality, III Encyclopedia of Public International Law 1142 (1994).
96. See Arts. 48-67 of Additional Protocol I, See General Comment No. 8 note 81. note 81; Delbrück, See General Comment No. 8 note 81. note 114, at 1142; Normand, See General Comment No. 8 note 81. note 14, at 28.
97. UN Doc. S/RES/687 (3 April 1991), at para. 33; Fishman, Id. note 3, at 717.
98. International humanitarian law does not deal directly with the issue of economic sanctions decided in the course of armed conflict. None of its provisions mentions economic sanctions or deals in any other way explicitly with the humanitarian issue raised by such measures. The absence of specific provisions does not, however, mean that international humanitarian law is irrelevant for examining their effects. Considerations of humanitarian policy suggest that they also apply to economic sanctions adopted by the Security Council in the course of an armed conflict. The Fourth Geneva Convention of 1949 and the two Additional Protocols comprise a number of provisions that are relevant. For a discussion see Gasser, UN Doc. S/RES/687 note 18, at 885; Fishman, UN Doc. S/RES/687 note 3, at 719-720. Cf. R. Provost, Starvation as a Weapon: Legal Implications of the United Nations Food Blockade Against Iraq and Kuwait, 30 Columbia J. Transnat'l L. 577 (1992).
99. Normand, International humanitarian law does not deal directly with the issue of economic sanctions decided in the course of armed conflict. note 14, at 31; Gasser, International humanitarian law does not deal directly with the issue of economic sanctions decided in the course of armed conflict. note 18, at 883; see also H. Hazelzet, Assessing the Suffering from ‘Successful’ Sanctions: An Ethical Approach, in Van Genugten and De Groot, International humanitarian law does not deal directly with the issue of economic sanctions decided in the course of armed conflict. note 14, at 88; Köchler, International humanitarian law does not deal directly with the issue of economic sanctions decided in the course of armed conflict. note 67, at 32; Reisman & Stevick, International humanitarian law does not deal directly with the issue of economic sanctions decided in the course of armed conflict. note 10, at 92.
100. Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. See Fishman, International humanitarian law does not deal directly with the issue of economic sanctions decided in the course of armed conflict. note 14 note 3, at 713. However, this argument does not take into account the special nature of the Security Council.
101. Segall, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14, at 34.
102. Normand, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 14, at 31; Hazelzet, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 120, at 88. See also Herbst, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 54, at 380-381, who seems to support the proportionality principle provided for in Art. 4(2) of the ICCPR. Cf. Gill, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 13, at 67; Reisman & Stevick, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 10, at 128.
103. Segall, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 14 note 14, at 27, 37.
104. Id., at 37.
105. Gasser, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 14 note 14 note 18, at 902.
106. Ann. II, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 14 note 14 note 18 note 41, at para. 43; HRW Letter, Some argue that the Security Council, having the power and moral authority of United Nations member states acting together, should be held to a higher standard of human rights protection than individual states. note 14 note 14 note 14 note 18 note 44, at para. 8.
107. ICRC Report, Ann. II note 5, at 3.
108. Id. Standards of treatment are also falling, as doctors cannot keep their knowledge up to date. Hardly any medical literature has entered the country in the last ten years, as the importation of scientific literature is prohibited under the embargo.
109. Ann. II, Id. Standards of treatment are also falling, as doctors cannot keep their knowledge up to date. note 41, at para. 32; HRW Explanatory Memorandum, Id. Standards of treatment are also falling, as doctors cannot keep their knowledge up to date. note 8, at para. 4; Secretary-General's Review, Id. Standards of treatment are also falling, as doctors cannot keep their knowledge up to date. note 90, at para. 87.
110. Ann. II, Ann. II note 41, at para. 21; ICRC Report, Ann. II note 5, at 4; HRW Explanatory Memorandum, id., at para. 25, Secretary-General's Review, Ann. II note 90, at para. 55; Fishman, Ann. II note 3, at 705.
111. Ann. II, Ann. II note 41, at para. 54; HRW Explanatory Memorandum, id., at para. 8.
112. HRW Explanatory Memorandum, id., at para. 46; Secretary-General's Review, Ann. II note 90, at para. 116; ICRC Report, Ann. II note 5, at 5.
113. HRW Explanatory Memorandum, id., at para. 24.
114. Cf. Fishman, HRW Explanatory Memorandum note 3, at 688, who states that Saddam Hussein and his inner circle are even more firmly entrenched than before.
115. HRW Explanatory Memorandum, HRW Explanatory Memorandum note 3 note 8, at para. 13.
116. Ann. II, HRW Explanatory Memorandum note 41, at para. 46; HRW Explanatory Memorandum, id., at para. 25; HRW Letter, HRW Explanatory Memorandum note 44, at para. 6.
117. Cf. Ann. II note 45.
118. It merely requested the Secretary-General to appoint a group of oil industry and other experts to develop recommendations regarding this proposal within 100 days. See also HRW Letter, Cf. Ann. II note note 44, at para. 9.
119. Ann. II, It merely requested the Secretary-General to appoint a group of oil industry and other experts to develop recommendations regarding this proposal within 100 days. note 41, at para. 58; Oette, It merely requested the Secretary-General to appoint a group of oil industry and other experts to develop recommendations regarding this proposal within 100 days. note 25, at 852.
120. HRW Letter, Ann. II note 44, at para. 7
121. Id.; Ann. II, HRW Letter note 41, at para. 58.
122. HRW Letter, Id.; Ann. II note 44, at para. 15.
123. Id., at paras. 16-17. This can in part address the Security Council's concern that the lifting of civilian sanctions will increase the Iraqi government's access to foreign exchange which can be used for the development of weapons of mass destruction. Although there is no way to ensure completely that this greater access to foreign exchange will not be used for prohibited purposes, the present arrangements under the total embargo has also not prevented the Iraqi government from obtaining foreign exchange through, for example, smuggling.
124. Id., at para. 17.
125. Cf. Oette, Id., at para. note 25, at 858.
126. Cf. General Comment No. 8, Id., at para. note 25 note 74, at para. 16.