Normative synergies: promoting EU values through international sanctions

The two faces of Janus: a double qualification in EU and international law

The most immediate approach to EU restrictive measures is to examine the positive law provisions applicable to restrictive measures in the EU treaties. Title IV of the Treaty on the Functioning of the European Union (TFEU), “Restrictive measures”, is the first recognition of the expression in the Union’s primary law. Its single article states:

  • 1. Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures. It shall inform the European Parliament thereof.
  • 2. Where a decision adopted in accordance with Chapter 2 of Title V of the Treaty on European Union so provides, the Council may adopt restrictive measures under the procedure referred to in paragraph 1 against natural or legal persons and groups or non-State entities.
  • 3. The acts referred to in this Article shall include necessary provisions on legal safeguards.

This article, which entered into force on 1 December 2009 with the Lisbon Treaty, is the most recent codification of the European Union’s practice in this field and is also the most elaborate version. The provisions of Article 215 of the TFEU reveal two elements for the definition of EU restrictive measures. Formally, restrictive measures are adopted through a decision taken within the framework of the EU

Common Foreign and Security Policy (CFSP),[1]as indicated by the reference in paragraphs 1 and 2 to the adoption of a decision “in accordance with Chapter 2 of Title V of the Treaty on European Union”. They are then implemented within the framework of the Union according to its competences, following the procedure described at the end of paragraph 1. In material terms, restrictive measures cover cases where it has been decided to terminate or reduce the Union’s economic relations with a third country, or to impose certain constraints on individuals.' Restrictive measures are therefore instruments that the European Union uses exclusively in the context of its external relations.

The initial impression that the category of restrictive measures covers a wide range of elements is reinforced by a detailed examination of the content of these measures. Examining restrictive measures ratione materiae, no less than fifteen types of measures can be identified. These different tools of coercion include, for example, traditional measures such as an arms embargo, a ban on the import or export of certain goods or a ban on the provision of certain services. Other measures are more specific to a given target and aim, for example, at preventing illegal trafficking in nuclear, chemical or biological weapons, or include restrictions on the payment of oil and gas. A third type of measures pierces the veil of the State and directly affects certain individuals or entities. This applies to measures to freeze funds and financial assets, or to prohibit admission to the territory of the EU Member States. The persons involved vary. In addition to persons associated with international terrorism, they include state leaders and their associates, members of militias, or persons indicted in some international courts.[2] These measures of freezing funds and banning entry into the territory in turn call for some comments from the point of view of their targets. Indeed, in parallel with the formal State targets of restrictive measures, their real targets appear to be either individuals or non-governmental entities. This now common practice, known as “targeted sanctions”, raises some questions. Since this practice no longer limits itself to affecting trade or diplomatic relations with a State and directly targets certain persons because of their own activities, it creates a clear distortion between the formal target and the actual target of the measures adopted.

The apparently homogeneous category of restrictive measures in European Union law covers two very different types of legal acts in international law. They correspond to different legal issues, depending on whether one focuses on the implementation by the EU of centralized measures adopted by the UNSC, or on the adoption by the EU of decentralized unilateral measures.

The European Union’s restrictive measures are directly affected by the UN collective security system in which the primary responsibility for the maintenance of international peace and security is conferred on the UNSC, which acts on behalf of the organization’s Member States. The UNSC adopts measures not involving the use of armed force when it “determines the existence of a threat to the peace, a breach of the peace or an act of aggression”, in order to “maintain or restore international peace and security”. The UN Charter thus enshrines the central role of the organization, through the UNSC, in adopting measures to protect international peace and security. The notion of centralized measures is justified here by the responsibility entrusted to the UNSC to maintain international peace and security. However, this centralization does not preclude decentralized implementation, as illustrated by the national (or regional at the EU level ) composition of the lists of persons covered by the counter-terrorism measures decided by the UNSC under resolution 1373(2001).[3]

In the absence of an institutional mechanism for centralizing responses to violations of international law, subjects of public international law must ensure respect for their legal interests by means of private justice tools: “a subject pursues by his own means, without the intervention of an external authority, the protection or execution of what he considers to be his or her rights’’. In this sense, these reactions to wrongfulness are decentralized, because it is the State or organization that considers that its legal interests have been ignored, which will qualify the illicit activity. This process is therefore essentially inter-subjective.

Decentralized responses to wrongfulness can be divided into two categories, depending on whether the measures adopted are inherently lawful or, conversely, contrary to public international law. Unlike countermeasures, retaliatory measures are not, in themselves, measures contrary to international law. They consist of “unfriendly” conduct, which is not incompatible with an international obligation of the State, even if it intends to respond to an internationally wrongful act. From the perspective of the European Union’s restrictive measures, it is not the Member States but the Union as such that intends to react to certain international situations that it considers to be violations of the law. This intention is reflected in the adoption of a CFSP decision on the basis of Article 29 TEU.

  • [1] Article 29 TEU. 2 Article 215 (1) TFEU. 3 Article 215(2) TFEU. 4 This is the case for the restrictive measures imposed on North Korea by the Common Position 2006/795/CFSP of 20 November 2006 concerning the adoption of restrictive measures against the Democratic People’s Republic of Korea, OJ L 322/32,22.11.2006. 5 As provided for in the restrictive measures against Iraq: Council Common Position 2003/495/CFSP of 7 July 2003 on Iraq and repealing Common Positions 96/741/CFSP and 2002/599/CFSP, OJ L169/ 72, 8.7.2003. 6 Council Common Position 2001/931/CFSP of 27 December 2001 on the application of specific measures to combat terrorism, OJ L 344/93, 28.12.2001, and Council Common Position 2002/402/CFSP of 27 May 2002 on the application of specific measures against Osama bin Laden, members of the organization Al Qaeda and the Taliban and other associated persons, groups, undertakings and entities, and repealing Common Positions 96/746/CFSP, 1999/727/CFSP, 2001/154/ CFSP and2001/771/CFSP, OJ L 139/4,29.5.2002. 7 "Council Common Position 2004/487/CFSP of 29 April 2004 concerning further restrictive measures against Liberia, OJ L 162/116, 30.4.2004; Council Common Position 2006/318/CFSP of 27 April 2006 renewing restrictive measures against Burma/Myanmar, OJ L 116/77,29.4.2006. 8 "Council Common Position 2008/369/CFSP of 14 May 2008 concerning restrictive measures against the Democratic Republic of Congo and repealing the Common Position 2005/440/CFSP, OJL 127/84,15.5.2008.
  • [2] '’Council Common Position 2004/293/CFSP of 30 March 2004 renewing measures in support of the effective implementation of the mandate of the International Criminal Tribunal for the former Yugoslavia (ICTY), OJ L 94/65, 31.3.2004. 2 This in turn raises the question of the appropriate legal regime for restrictive measures, depending on whether they affect a State or a private person. This question has already been analyzed in detail: See Beaucillon, Les mesures restrictives de l’Union européenne, supra note 1, 343-606; and Ch. Beaucillon, ‘Opening up the horizon: The ECJ’s new take on country sanctions’ (2018) 55 Common Market Law Review 387. See also infra, section 4. 3 Article 24(1) UN Charter. 4 Article 41 UN Charter. 5 b Article 39 UN Charter. 6 IS Ibidem. 7 Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism, OJ L 344/70,28.12.2001.
  • [3] S/RES/1373(2001), Threats to international peace and security caused by terrorist acts, 28 September 2001. 2 D. Alland, Justice privée et ordre juridique international (Pedone 1994), 1. 3 We use the term “reaction to wrongfulness” in its general sense in public international law, and the term “decentralized reactions” with reference to L.-A. Sicilianos, Les réactions décentralisées à l’illicite (LGDJ 1990), 2. 4 2J A/56/10, Supplement No 10, Report of the International Law Commission, Fifty-third Session, 23 April-1 June and 2 July-10 August 2001, 350. It should be noted that this definition of reprisals is proposed by the ILC as part of its work on State responsibility. It was therefore important to distinguish between the behaviors violating international law and those who are intrinsically lawful. We take note of the fact that the question of whether retaliation measures are acts taken in response to lawful or unlawful measures was less consensual than we present it here. This question was indeed discussed by some authors for whom the measures of retaliation would only be acts adopted in response to measures intrinsically legal but unfriendly. See A. Rivier, Principes du droit des gens (Arthur Rousseau 1899) vol. 2, quoted by L. Boisson de Chazournes, Les contre-mesures dans les relations internationales économiques (Pedone 1992), 24.
 
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