The Impact of Unilateral EU Economic Sanctions on the UN Collective Security Framework: The Cases of Iran and Syria
© 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_1
1. The Impact of Unilateral EU Economic Sanctions on the UN Collective Security Framework: The Cases of Iran and Syria
School of Law, University of Birmingham, Edgbaston, Birmingham, B152TT, UK
1.2.1 Sanctions against Iran
1.2.2 Sanctions against Syria
1.5 A Possible Legal Basis for Sanctions within the EU Legal Framework: Complementarity of Institutions and Claims of ‘Autonomy’
The European Union’s economic sanctions against Iran and Syria have been both wide-ranging in scope and far-reaching in impacting the lives of ordinary people. It is noteworthy that the bulk of the EU’s sanctions have been adopted without the authority and support of the UNSC—an organ in whose hands the coercive activities are centralized and monopolized according to Chapter VIII of the UN Charter. This chapter describes sanctions regimes introduced by the EU, and then moves to analyze the basis on which they have been adopted. The law applicable to sanctions raises constitutional issues of the relationship between the UN and EU and of the rights and obligations of States under constituent instruments of both organizations. It draws on various options of the relationship between UN and EU focused upon in international judicial practice, and the ways in which EU’s claims to ‘autonomy’ from the UN should be properly handled. As a next step, the legality of the EU’s measures under general international law is examined. It then assesses the propriety of sanctions in the light of broader policy and institutional considerations.
The EU’s unilateral economic sanctions against Iran and Syria raise multiple legal issues, both in terms of general international law and collective security frameworks within the systems of the UN and of regional organizations. In response to the Iranian nuclear enrichment program, both the UN and EU have adopted far-reaching sanctions programs in relation to Iran. In relation to Syria, where civil war between President Bashar al-Assad’s government and rebels erupted in 2011, the UNSC has not adopted any resolution imposing sanctions on Syria, while the EU Council has decided to introduce its own sanctions against the State.
It is clear that EU sanctions against Iran and Syria have been collectively adopted by the EU as an international organization, with the support of EU Member States. The EU sanctions thus differ from measures adopted unilaterally by States, such as those adopted by the United States against Iran and other States. However, if the distinction between unilateral and multilateral sanctions is made not on a descriptive but on a normative plane, then what is unilateral or multilateral would depend on the normative qualification of the relevant measures as a matter of the international legal order. If, legally speaking, the competence to adopt particular measures is reserved for a particular organ or entity premised on the particular multilateral mode of decision-making, then the adoption of generically similar measures outside that reserved framework should be classified as unilateral measures. After all, it is the legal system that defines what is unilateral or multilateral; this issue should be independent of how a particular group of States defines these terms. As the analysis below will demonstrate, the distinction is relevant in terms of some fundamental premises underlying division of competences as between the UN and regional organizations, and also in terms of the practical operability of regional sanctions.
1.2 Sanctions against Iran and Syria: UN and EU Coercive Economic Measures
1.2.1 Sanctions against Iran
From 2006 onwards, the UNSC has treated the Iranian nuclear enrichment issue as one falling within the remit of Chapter VII of the UN Charter, dealing with action with regard to threats to and breaches of international peace and security. This has resulted in the imposition on Iran of Chapter VII sanctions under Resolutions 1737(2006), 1747(2007), 1803(2008), and 1929(2010) that included targeted sanctions against individuals allegedly involved in the nuclear enrichment program and an arms embargo. By Resolution 1737(2006), the UNSC, invoking Article 41, imposed sanctions.1 UNSC Resolution 1803(2008) introduced targeted sanctions obliging all States to prevent the entry into or transit through their territories of individuals directly associated with or providing support for Iran’s proliferation of sensitive nuclear activities or for the development of nuclear weapon delivery systems.2 Resolution 1929(2010) extended the sanctions to the provision of arms.3
After the adoption of Resolution 1929, political pressure on Iran continued unabated, but this did not lead to the adoption of further sanctions at the UNSC level.
The EU’s involvement in these matters was originally linked to the UNSC action. But policy underpinnings of the EU sanctions against Iran have varied throughout the process of the EU’s involvement. Initially, the EU began operating on the premise of parallelism between the UN and EU efforts in relation to the Iranian nuclear enrichment issue. The EU Council’s Common Position, adopted in 2007, took the posture of following the sanctions policy embodied in UNSC Resolution 1737(2006) and initiated EU coercive measures to give effect to that resolution.4 EU Council Regulation 428/2009 then determined that, “Dual-use items (including software and technology) should be subject to effective control when they are exported from the European Community.”5
By decision adopted on 26 July 2010, the EU Council again, by and large, attempted to follow the position taken by the UNSC, but it has also introduced sanctions against Iran that go beyond those adopted within the UN system and began encompassing trade between EU States and Iran.6 Article 17 of that decision included a rather drastic requirement that:
Member States, in accordance with their national legal authorities and legislation and consistent with international law, in particular relevant international civil aviation agreements, shall take the necessary measures to prevent access to the airports under their jurisdiction of all cargo flights operated by Iranian carriers or originating from Iran with the exception of mixed passenger and cargo flights.
By its decision adopted on 23 January 2010, the EU Council:
Recall[ed] the potential connection between Iran’s revenues derived from its energy sector and the funding of Iran’s proliferation-sensitive nuclear activities and that chemical process equipment and materials required for the petrochemical industry have much in common with those required for certain sensitive nuclear fuel cycle activities, as underlined in UNSCR 1929 (2010), the sale, supply or transfer to Iran of further key equipment and technology which could be used in key sectors in the oil and natural gas industry or, in the petrochemical industry, should be prohibited. Moreover, Member States should prohibit any new investment in the petrochemical sector in Iran.7
Under Article 1 of the same Decision, the EU Council provided:
Member States shall not enter into any new short-, medium- or long-term commitments to provide financial support for trade with Iran, including the granting of export credits, guarantees or insurance, to their nationals or entities involved in such trade.
It is thus obvious that trade restrictions against Iran have become more divorced from the original aim of stalling the nuclear enrichment effort and refocused on the overall trade and economic relations between Iran and the EU.
Furthering such expansive spirit, the EU has decreed that further, and qualitatively different, economic and financial sanctions should be applied against Iran, including the ban on financial transactions with the “banks domiciled in Iran, including the Central Bank of Iran,” shipbuilding, maritime transport cooperation, and trade in gas.8 It was openly admitted in the preamble of the Council Decision 2012/635 that, “In view of Iran’s failure to engage seriously in negotiations in order to address international concerns about its nuclear programme, the Council considers it necessary to adopt additional restrictive measures against Iran.” Therefore, sanctions now were extended to cover:
items which might be relevant to industries controlled directly or indirectly by the Iranian Revolutionary Guard Corps or which might be relevant to Iran’s nuclear, military and ballistic missile programme. Moreover, the purchase, import or transport of natural gas from Iran should be prohibited.
The sanctions also cover “the sale, supply or transfer to Iran of graphite, and raw or semi-finished metals such as aluminum and steel” and state that the “sale, supply or transfer to Iran of key naval equipment and technology for shipbuilding, maintenance or refit, should be prohibited.”9 If contrasted with the scope of underlying UNSC resolutions discussed above, it becomes obvious that all these trade and economic sanctions are products of the EU’s own initiative, not a follow-up to implement UNSC decisions.
1.2.2 Sanctions against Syria
The EU’s sanctions against Syria began with the adoption of Decision 2011/273/CFSP, which provides for an arms embargo, and also a ban on delivering to Syria any “equipment which might be used for internal repression” (Article 1). The decision also requires preventing the entry into and transit through the EU member-States’ territories of “persons responsible for the violent repression against the civilian population in Syria,” as well as the freezing of their funds and economic resources (Articles 3 and 4).10
Similar to the developments in relation to Iran, the subsequent Decision 36/2012 of the EU Council has expanded sanctions.11 Article 3 of this decision specifies that:
It shall be prohibited:
to import crude oil or petroleum products into the Union if they:
originate in Syria; or
have been exported from Syria;
to purchase crude oil or petroleum products which are located in or which originated in Syria;
to transport crude oil or petroleum products if they originate in Syria, or are being exported from Syria to any other country.
The above overview of the EU sanctions programs illustrates that while at the earlier stages the EU was interested in implementing the antecedent UN sanctions only, at the later stages it began asserting its own independent policy as to how the Iran and Syria crises should be handled. These EU-specific policies do not necessarily enjoy the overall approval within the framework of the UN, especially within the UNSC.
1.3 The Institutional Authority to Impose Economic Sanctions
Clarifying the authority of regional organizations such as the EU to adopt coercive measures against States involves questioning whether regional organizations are entitled to adopt such measures in the first place (as with Syria), and whether they can act this way when the UNSC is already involved with the relevant situation under Chapter VII (as with Iran). It can easily be seen from the instruments cited in the previous section that EU policy is premised on, or presupposes, some authority to impose coercive sanctions on a State without a UNSC resolution and to independently judge what kind of measures are justified in the relevant situations. The document on “Common messages regarding EU sanctions against the Iranian nuclear programme,” made publicly available in 2013, specifies that, in relation to Iran:
[T]he EU has adopted autonomous sanctions, beyond the ones imposed on Iran by UNSC Resolutions. These restrictive measures have been adopted with one clear goal: to urge the Iranian government to engage constructively, negotiate seriously and address the concerns of the international community in order to restore confidence in the exclusively peaceful nature of its nuclear programme.12
The issue of a regional organization replicating, or deviating from, the UNSC position should be judged by reference to the merit of the UNSC’s own position on this issue, more specifically in terms of aims, justifications, and rationales, that guides the UNSC’s own agenda. Under the UN Charter, a necessary precondition for imposing sanctions on any State is that the UNSC identify the existence of a “threat to the peace” in the underlying conduct or situation as required by Article 39 of Chapter VII. It may then proceed to impose measures, economic or other, under Article 41 to restore international peace and security.
It is important to see how the UNSC itself has formed its own view regarding the suitability of the underlying cause of action related to Iran’s nuclear enrichment program and the types of Chapter VII sanctions that were imposed on Iran, and how those measures serve that very cause of action. The UNSC is not a free agent on those two issues, but is instead subject to statutory requirements under the Charter. Obviously, the political nature of the UNSC decision-making process can lead to decisions of multiple kinds. But that does not do away with the requirement to enquire into whether the action complies with underlying statutory requirements. The ICJ addressed this issue by stating that the political character of the organ of an international organization does not release it from the requirement to observe the legal provisions which constitute limitations on its powers or criteria for its judgment.13
Analysis of the relevant UN resolutions regarding Iran reveal no consistent basis on which Iran has been targeted through Chapter VII measures. Article 39 of the UN Charter requires the UNSC to clearly formulate which conduct, fact, or situation amounted to a “threat to the peace” in that context. Resolution 1696(2006) speaks of proliferation risks.14 The UNSC goes very near to the ambit of Article 39 but does not cross its boundaries by specifying that these risks constitute a threat. Resolutions 1737(2006) and 1803(2008) do not specify that conduct by Iran constitutes the “threat to the peace” either. The most recent UNSC Resolution 1929(2010) reiterates presumptive statements from previous resolutions and relies on Iran’s lack of “cooperation with the IAEA under the Additional Protocol” and the presumptive need “to exclude the possibility of military dimensions of Iran’s nuclear programme.”
It is noteworthy that the Iranian nuclear enrichment issue was referred to the UNSC by the IAEA. In its various reports, the IAEA was not straightforward in terms that could demonstrate the suitability of this situation for a Chapter VII action. As late as 2011, the IAEA report specified that:
[A]s Iran is not providing the necessary cooperation, including by not implementing its Additional Protocol, the Agency is unable to provide credible assurance about the absence of undeclared nuclear material and activities in Iran, and therefore to conclude that all nuclear material in Iran is in peaceful activities.15
The Report then went on to add that:
The Agency has serious concerns regarding possible military dimensions to Iran’s nuclear programme. After assessing carefully and critically the extensive information available to it, the Agency finds the information to be, overall, credible.16
The only obvious issue of the violation of international law was what the IAEA considered to be the lack of:
the full implementation of its Safeguards Agreement and its other obligations, including: implementation of the provisions of its Additional Protocol; implementation of the modified Code 3.1 of the Subsidiary Arrangements General Part to its Safeguards Agreement; suspension of enrichment-related activities; suspension of heavy water-related activities; and, as referred to above, addressing the Agency’s serious concerns about possible military dimensions to Iran’s nuclear programme, in order to establish international confidence in the exclusively peaceful nature of Iran’s nuclear programme.17
The more recent report of the IAEA, issued in 2012, similarly speaks of the “possible military dimension” of the Iranian nuclear program.18 More broadly, the evidentiary problem here is that Iran has to prove that it has no military nuclear program.
Whether a situation like this is by itself suitable for a collective security action is questionable. It may well be possible that the burden of proof could shift, given that Iran already is under specific legal obligations to make certain information available to international institutions. But that seems to be a matter to be treated in terms of compliance within the IAEA more than the UNSC and the EU. The UNSC itself has, from the outset, identified the Iranian nuclear issue as one of compliance with Iran’s legal obligations.
Similarly, the prevailing opinion in State practice representing the view of the majority of States in the international community is that this issue should be handled through the IAEA, not through the UNSC.19
All this demonstrates that the UNSC has not formed a clear, intelligible, and transparent view on how it is suitable to address the Iranian nuclear enrichment program under Articles 39 and 41 of the UN Charter. The subsequent EU sanctions have added no original input to that lack of evidence that the cause of action was pressing.
1.4 EU Sanctions and the Chapter VIII Regime
Article 53 of Chapter VIII the UN Charter provides that the UNSC can utilize “regional arrangements or agencies for enforcement action under its authority. But no enforcement action shall be taken under regional arrangements or by regional agencies without the authorization of the Security Council.” Therefore, under the UN Charter, the EU can be utilized to give further effect to coercive measures that the UNSC has already adopted under Chapter VII, but it is not allowed to resort, on its own initiative, to coercive measures that are qualitatively different from those adopted within the UN system.
Chapter VIII obviously aims to integrate regional organizations within the UN collective security system. Under this framework, the collective security system is supposed to be one, albeit multilayered, and there should be a single policy in relation to any international crisis. In practice, the nature of that single policy may differ from case to case, with UN and regional organizations assuming different qualitative and proportionate share of burdens and responsibilities in relation to a particular crisis. But whatever the distribution of burdens and responsibilities in any specific case, it is part of the established UN law and constitutional framework that the policy underlying the institutional response to a particular crisis must be a single one, to be shared by all international institutions involved in that pertinent situation.20 This requirement is all too obvious as regional organizations are meant to act as being “utilized” by the UNSC.