Sanctions Imposed Unilaterally by the European Union: Implications for the European Union’s International Responsibility
© T.M.C. Asser Press and the author(s) 2015Ali Z. Marossi and Marisa R. Bassett (eds.)Economic Sanctions under International Law10.1007/978-94-6265-051-0_8
8. Sanctions Imposed Unilaterally by the European Union: Implications for the European Union’s International Responsibility
Faculty of Law, St Anne’s College, University of Oxford, Woodstock Road, Oxford, OX2 6HS, UK
8.4.1 Attribution of Conduct
This chapter deals with the responsibility of the EU under international law for ‘unilateral sanctions.’ Like States, international organizations may also adopt unilateral sanctions against States or other international organizations. The EU has been particularly active in this respect. After some terminological clarifications regarding sanctions and countermeasures, the chapter examines EU practice in imposing unilateral sanctions on third States and sets out the conditions for legal resort to such sanctions. The chapter then proceeds to discuss the potential engagement of the international responsibility of the EU for the imposition of sanctions. If such measures are attributable to the EU, and they are in breach of the EU’s international obligations, then they must be justified as countermeasures. Otherwise the EU’s international responsibility will be engaged. The chapter then examines the mechanisms for implementing that international responsibility on the part of the States that have been unlawfully targeted by EU sanctions.
The EU frequently resorts to the imposition of sanctions (or ‘restrictive measures’) against third States, and against individuals or other non-State actors in pursuit of its Common Foreign and Security Policy.1 The imposition of these sanctions may be pursuant to binding resolutions of the UNSC under Chapter VII of the UN Charter, i.e., they may simply constitute implementing measures of UNSC-imposed sanctions. But they may also be ‘autonomous’ sanctions, that is unilateral sanctions imposed by the EU.2 In the former instance, the sanctions can be justified as implementing measures of binding UNSC decisions.3 In the latter instance, however, they cannot avail themselves of the authority of the UNSC, and thus will require some independent justification.4 This brief study is concerned with the latter case of EU measures, with the justifications the EU can resort to in order to justify such ‘autonomous’ or—what is meant to signify the same—‘unilateral’ sanctions, and with the EU’s potential international responsibility for resorting to such sanctions without proper justification.
Section 8.2 clarifies the various terms used in connection with the general (and nontechnical) term sanctions. Section 8.3 presents the practice of the EU in taking unilateral sanctions against third States. Section 8.4 enquires into the legal conditions for establishing the international responsibility of the EU in imposing such sanctions. Finally, Section 8.5 discusses the mechanisms for implementing the international responsibility of the EU, if the latter is found to have indeed wrongfully imposed unilateral sanctions under international law.
8.2 Some Terminological Clarifications
The term ‘sanctions’ is not, strictly speaking, a term of art in public international law. It appears nowhere in the UN Charter, and it is not the term used in customary international law to denote decentralized reactions to illegal acts, the preferred term being ‘countermeasures’ (and previously ‘reprisals’).5 However, ‘sanctions’ does generally refer, in legal theory, to a reaction to illegality:6 according to Kelsen, a sanction is the consequence that attaches by law to wrongful conduct—and conversely, wrongful conduct is the legal condition for the imposition of a sanction.7 In public international law, reactions to illegality may be unilateral (‘decentralized’) or collective (‘centralized’).8
The ILC has reserved the term ‘sanctions’ to characterize collective measures taken by international organizations (IOs),9 such as the measures taken by the UNSC under Article 41 of the UN Charter in response to a threat to the peace, breach of the peace, or act of aggression.10 By contrast, for decentralized reactions to illegality, i.e., for unilateral measures taken by States against other States in response to internationally wrongful acts by the latter that injure the former, the term ‘countermeasures’ is used. So when reference is made to ‘unilateral’ sanctions, the discussion is really about countermeasures. Having said that, reference will be made interchangeably to ‘countermeasures’ and to ‘unilateral sanctions’ in this chapter.
This chapter briefly comments on the potential international responsibility of the EU for imposing countermeasures on a State or IO in violation of general international law. As such, it excludes discussion of any measures that can be characterized as ‘retorsion,’ i.e., unfriendly but lawful measures taken to exert pressure on a State or IO, such as the recall of diplomatic personnel or the withdrawal of voluntary aid.11 Given that such measures are inherently lawful, they cannot engage the international responsibility of the actor resorting to them.12
8.3 The EU and Unilateral Sanctions
Just like States, IOs have the power under general international law to adopt countermeasures in response to internationally wrongful acts that injure them directly. This is confirmed in the ILC Articles on the Responsibility of International Organizations (DARIO), adopted on second reading in 2011,13 as well as in relevant literature.14 Indeed, there is some practice of international organizations actually taking such countermeasures.
Whatever ‘unilateral sanctions’ the EU takes are not directed against its own Member States, but against third States only. Any intra-EU sanctions are based on primary and secondary EU law, notably the foundational treaties. Such intra-EU measures cannot qualify as ‘unilateral’ because they are taken by the collective against its own members, nor may they be characterized as countermeasures. Indeed the EU legal order has even proscribed countermeasures as between Member States for violations of EU law.15
When the EU imposes unilateral sanctions on a third State it violates its international obligations, whether stemming from a treaty or from general international law,16 as against that third State. This violation is inherent in the concept of ‘unilateral sanctions’ as described in the introduction to this study: otherwise the relevant conduct will constitute an act of retorsion, not sanctions, and it will be legally irrelevant. It is presumed thus that a unilateral sanction will be, in the first instance, an unlawful act in need of justification as a decentralized reaction to an illegality: it cannot qualify as a lawful, if unfriendly, act. This means that the ‘sanction’ will necessarily be in breach of the actor’s (here, the EU’s) international obligations. This violation of international law on the part of the EU will thus require justification, lest it engage the EU’s international responsibility. Countermeasures provide such a justification: under both the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) and DARIO, countermeasures are a circumstance precluding the wrongfulness of what would otherwise be an internationally wrongful act.17
For the EU to impose ‘unilateral sanctions’ against a third State and escape international responsibility (in the sense of having the inherent wrongfulness of the act precluded), it must be successful in getting the act qualified as a countermeasure. It must thus first determine that the third (target) State has perpetrated an internationally wrongful act for which the third State has become responsible.18 It must also determine that the EU itself is somehow injured by that internationally wrongful act.19 Finally, it must comply with a number of further substantive as well as procedural conditions for resorting to countermeasures,20 such as respecting the principle of proportionality,21 calling upon the third (target) State to cease the violation, notifying its intention to take countermeasures, and suggesting negotiations,22 among others. If the EU does not comply with these international law requirements for lawful resort to countermeasures, it cannot justify its breach of international law against the third State, and it will accordingly become internationally responsible itself.
The EU has resorted to such countermeasures (or ‘unilateral sanctions’) on a number of occasions, mainly in response to serious human rights violations occurring in third States. In fact, it has provided a significant amount of international practice in one of the most problematic areas of countermeasures, namely the so-called ‘countermeasures in the general interest.’ otherwise known as reactions to violations of obligations erga omnes.23 These are countermeasures taken by subjects of international law (States or IOs) that have not been directly injured by an internationally wrongful act, even though the obligation breached was owed to them as well.24 The legality of these so-called (counter-)measures in the general interest is a matter of controversy.25
Since 1970, the EU has imposed unilateral sanctions against a number of third States. In 1977–1979 it suspended development assistance owed to Uganda under the first Lomé Convention (Lomé I) due to the serious human rights violations of the Idi Amin regime. This was a breach of Lomé I, as the suspension could not be justified under the agreement’s own provisions—which notably did not make development assistance conditional upon the protection of basic human rights.26 In 1980 the EU took similar measures against Liberia, again suspending development assistance in breach of Lomé I.27 These violations required justification under general international law. The justification was none other than the widespread and systematic human rights violations that were taking place in Uganda and Liberia at the time.
Later, the EU started building ‘human rights conditionality clauses’ into relevant agreements.28 This was done so as to allow suspension on aid under the terms of the agreement itself, without having to resort to some justification under general international law.29 In such cases there is in principle no internationally wrongful act that needs to be justified through resort to a circumstance precluding wrongfulness.
In 1982 the EU took measures against Argentina, which amounted to a violation of GATT 1947, as they could not be justified under Article XX GATT (‘General Exceptions’).30 Given that the GATT 1947 was binding on both the EU and its Member States,31 the EU had to justify the measures under general international law, lest it be considered to have breached its international obligations under the GATT and thus engaged its international responsibility. The justification was that the measures were taken as a response to the allegedly illegal use of force by Argentina in its attempt to recapture the Falklands/Malvinas, though without any specific reference to the right of (collective) self-defence under Article 51 of the UN Charter.32 This suggests that the purported justification for the breach of the GATT entailed by the embargo was that it constituted a countermeasure ‘in the general interest’ against Argentina’s unlawful use of force.
In 1998, the EU enacted sanctions against the Federal Republic of Yugoslavia (Serbia–Montenegro) (FRY) that went clearly beyond the measures prescribed by the UNSC under Chapter VII of the UN Charter. Such sanctions could not be justified by virtue of UN Charter Articles 25 and 103 and thus had to be considered ‘autonomous’ or unilateral sanctions, which required independent justification. In particular, the EU imposed on its Member States the freezing of assets of the FRY33 and the suspension of air links with the FRY,34 forcing them in the latter case to breach bilateral air service agreements. The purported justification for these measures going beyond the UNSC-imposed measures was that they were in response to the “unacceptable violation of human rights” by the FRY against the Kosovar Albanian community and the intransigence of the FRY government in this respect.35 Earlier, in 1992, the EU had taken measures potentially in breach of the GATT 1947 against the Socialist Federal Republic of Yugoslavia (SFRY), before the UNSC had imposed any Chapter VII measures; these were indeed challenged by the SFRY but the relevant claim was dismissed on the technical point that the FRY did not automatically continue the party status of the SFRY.36 Such measures, if not justifiable under the GATT exceptions, would need independent justification under general international law.
Several of the EU measures taken in 2002–2003 against Zimbabwe were justifiable under conditionality clauses in the Cotonou Agreement,37 which had by then succeeded the various iterations of the Lomé Agreement discussed above.38 Other measures, however, such as asset freezes, were not and thus required justification under international law.39 The same applies to asset freezes imposed on Belarus in 2004. All these measures were taken in response to widespread and systematic human rights abuses in the relevant States.
In late 2010, the EU imposed ‘unilateral sanctions’ against Côte d’Ivoire in response to the cancellation of election results, while ECOWAS and the AU also imposed sanctions against the State.40 The latter were welcomed by the UNSC,41 which may indirectly connote the acquiescence of States in the practice of ‘countermeasures in the general interest.’ In 2012, the EU toughened its measures against Iran, again going beyond those prescribed by the UNSC. It is questionable whether whatever alleged breach of the NPT may in fact justify these measures as between the EU and Iran.42
Finally, the EU considered the adoption of measures in violation of the international obligations either incumbent upon itself or upon its Member States on a number of other occasions, but it may have decided not to adopt these based on practical—rather than legal—considerations.43 This would suggest that the EU would have considered these measures justifiable under general international law, had they been adopted.44
8.4 Establishing EU Responsibility for Unilateral Sanctions
In order to establish the international responsibility of the EU for the measures described in Section 8.3 above, one would have to demonstrate that the measures (1) are attributable to the EU (and not solely to its Member States); (2) amount to a breach of the EU’s international obligations (thus constituting an internationally wrongful act which engages the international responsibility of the EU);45 and (3) are not justifiable under international law, whether as treaty reactions,46 countermeasures, or under some other circumstance precluding the wrongfulness of otherwise internationally wrongful conduct.47
From the brief overview of EU practice above, it is clear that when the EU imposes unilateral sanctions against third States, it may cause:
A breach of its own obligations under international law (such as obligations incumbent upon the EU under an international treaty to which it is a party48—for example, the Lomé I and Cotonou Agreements in the examples above);
A potential breach both of its own and of its Member States’ obligations under international law (such as obligations which are binding upon both the EU and its Member States— for example, breaches of the GATT or the UN Convention on the Law of the Sea);49 or
A breach of its Member States’ obligations under international law, without the EU violating any of its own obligations (such as an obligation under a bilateral treaty between a Member State and a third State, which the Member State is required to breach in order to comply with the measures imposed by the EU—for example, violations of bilateral air service agreements between an EU Member State and the target State).
8.4.1 Attribution of Conduct
The first step is that the relevant conduct must be attributable to the EU. The normative conduct of the EU in passing binding decisions that cause a breach of EU international obligations is directly attributable to the EU as the act of one of its organs.50 For example, the decision to suspend development assistance is directly attributable to the EU, and no further conduct would have been required for a breach of Lomé I to have taken place because no further funds would be transferred by the EU. Note that political (Common Foreign and Security Policy) decisions to impose sanctions are implemented through the adoption of a Regulation, which is a binding instrument with direct effect in the legal orders of Member States.
The matter becomes more complicated when the conduct that constitutes a breach of international obligations is not exclusively normative conduct (i.e., the adoption of a decision) but also operational, physical conduct. The EU does not have the operational capacity to actually freeze assets held in Member States’ banks, for example. It may order the freeze, but this needs to be implemented by organs of the Member States. The question then is whether such conduct, taken by Member State organs but ordered by the EU, is attributable to the EU or to the acting Member State. The ILC in DARIO accepts in principle that there may be dual attribution of conduct, but it has drafted the relevant provisions in such a way as to preclude it, in particular when a Member State organ not fully seconded to the IO implements decisions of the organization. Such conduct is attributable to the Member State under Article 4 of the Articles on State Responsibility, but, adopting the concept of effective control established by the ICJ in Nicaragua 51 and elaborated in Bosnia Genocide,52 it cannot be attributed to the organization unless the latter “effective[ly] control[s]” the conduct factually.53
However, the better position is that when an IO imposes a strict obligation on its Member States—that is an obligation which allows the Member States no margin of discretion as to its implementation—it effectively controls their conduct (and the conduct of their organs). Even if it does not do so factually, i.e., on the ground, it does so normatively, through the power of law. When the EU, for example, decides that its Member States must freeze the assets of Iran, or of Iran’s Bank Mellat, there is nothing that the Member States (and their organs) can do but comply with this obligation and freeze the assets of the particular State or bank. In this sense, the EU effectively—if only normatively—controls the conduct of the Member States, and thus the freezing of assets, which is the act of a State rather than of an EU organ, must (also) be attributable to the EU.54
8.4.2 Breach of an International Obligation
If the conduct that is attributable (also) to the EU constitutes a breach of an obligation of the EU, then the EU has perpetrated an internationally wrongful act. By contrast, if conduct that is attributable (also) to the EU does not violate any EU obligations, no question of EU responsibility can arise. This is the case when, for example, an EU measure does not breach EU obligations under a treaty because the measures are exceptionally permitted under the terms of that treaty (for example, they are taken under a conditionality clause in an association agreement or they fall within the scope of permitted exceptions under the GATT). This is also the case, discussed above, where the EU forces its Member States to breach obligations they have assumed under bilateral treaties: even if the conduct here may be attributed also to the EU, it does not constitute a breach of EU obligations. The obligations under bilateral treaties between EU Member States and third States are only binding between the States in question. The Member States must then independently justify their wrongful conduct, potentially also resorting to countermeasures as a circumstance precluding wrongfulness.55