Issues On Human Rights Protection In United Nations "Smart Sanctions"

During the millennium,the international society’s criticism of the UN comprehensive sanctions led to the innovation of “smart sanctions”.Throughout the history of UN sanctions,the protection of human rights has been a trigger and an enabler for reform.“Smart sanctions” precisely target individuals or entities such as political elites and central figures in terrorist groups.Therefore,UN “smart sanctions”have faced controversies for affecting the human rights of the target more directly and more obviously.In the post-cold war era,the UN Security Council’s imposition of sanctions on targets that violate international law,as mandated by the UN Charter,is a legitimate way to peacefully resolve international disputes.However,the legitimacy of the UN“smart sanctions” has been questioned,especially as they are considered to be inconsistent with requirements of human rights protection and affect its important function of maintaining international peace and security.This study argues that there is a human rights paradox in the UN “smart sanctions”.In other words,the “smart sanctions” were proposed for the purpose of human rights protection,while they did not achieve the result accordingly.Although“smart sanctions” are based on the reflection of human rights protection,on one other hand,UN comprehensive sanctions against Iraq caused a large-scale humanitarian crisis and triggered criticism from the international society;on the other hand,in order to enhance the effectiveness of sanctions,the UN has established the 1267 mechanism to list individuals and groups in the Taliban terrorist organization,and imposed “smart sanctions” including assets freeze,travel ban and arms embargo on the listed targets,forming the first practical attempt of “smart sanctions”.Yet,comparing the theoretical paradigm of “smart sanctions” with all the UN “smart sanctions” cases in practice,the concept and model of “smart sanctions” have evolved and expanded.The distinction between “smart sanctions” and comprehensive sanctions has become blurred,and there is even the phenomenon of abuse of “smart sanctions” and retrospection of comprehensive sanctions.Such phenomenon fully reveals the dichotomy between the “purpose” of human rights protection and the“result” of it in the paradox of “smart sanctions”,which is due to the variation,expansion and abuse of the “means” of sanctions.Derogations of substantive human rights caused by “smart sanctions” are objective.Among the most commonly used “smart sanctions” measures,travel ban results in derogation of the right to liberty,assets freeze results in derogation of the right to property,and targeted economic sanctions result in derogation of the right to development.This study analyzes the specificity of human rights derogations and damages caused by UN “smart sanctions”.From the analysis of the specificity of the mechanism of “smart sanctions”,the “smart sanctions” taken by the Security Council can directly target individuals and “pierce the veil of the state”,which means that the targets are directly subjected to “smart sanctions”.The targets suffer the results of derogation of human rights without a state to share or dilute such negative impact of human rights as in the case of comprehensive sanctions.Moreover,the individuals lack the ability to obtain relief as in the case of states subject to comprehensive sanctions.This study further argues that,although “smart sanctions” derogate from substantive human rights,they are not in the scope of application of procedural human right to fair trail.The right to fair trail is not intended to restrict the effectiveness of the UN “smart sanctions”.The scope of application of the right to fair trail is subject to criminal trails,and the expansive interpretation of “criminal” shall not be applied.The Security Council has the power to take action against non-state targets,and “smart sanctions” imposed pursuant to it do not constitute purely legal sanctions.Criticism based on the right to fair trial is unreasonable because sanctions are imposed through the Security Council’s procedures which are not judicial,and“smart sanctions” do not constitute criminal punishment.The fact that “smart sanctions” do not result in a derogation from the right to fair trial does not mean that derogations from substantive human rights are left behind,especially when there are few avenues for human rights protection.At the UN level,Procedures for Listing,Procedures for De-listing,the Focal Point for De-listing and Office of the Ombudsperson do not provide safeguard for those targets of “smart sanctions”.On the other hand,UN “smart sanctions” are facing a wave of judicial review by domestic courts,which affects the actual implementation of sanctions.Although the judicial review by domestic courts may seem to provide a way out,no matter directly pointing at the UN Security Council resolution or “tactfully” denying enforcement by member states,such judicial review by domestic courts will cause the logical bifurcation of international public law,ignoring the judicial immunity enjoyed by Security Council,disturbing the power distribution model inside the UN,and affecting the exercise of the exclusive power of the Security Council.The UN “smart sanctions” should still seek human rights guarantees at the UN level.Hence,this study proposes the strategy for UN “smart sanctions”.On one hand,the powers and restrictions of UN “smart sanctions” need to be clarified.Besides,a regular evaluation and amendment mechanism should be established,incorporating the Six-prong Test into the human rights evaluation,and the UN shall promptly and proactively amend or terminate “smart sanctions” that do not meet the evaluation requirements.On the other hand,based on China,from the standpoint of China,we should maintain the basic pattern of the UN multilateral sanctions mechanism,strengthen China’s advantages and dominant position in it,export China’s competitive human rights discourse,and adjust the domestic industrial structure of specific areas to reduce potential domestic risks that could be caused by “smart sanctions”.Nowadays,peace and development are the common aspirations of all mankind.In an effort to a safer world,a community with a shared future for mankind is the right path.For the sake of a safer world,the principle of national sovereignty should be respected,the peaceful settlement of disputes should be adhered to,the international system with the United Nations at its core should be reaffirmed,the purposes and principles of the Charter should be returned to,and the international order based on international law should be maintained.