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Sanctions Imposed Unilaterally by the European Union: Implications for the European Union’s International Responsibility

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Abstract

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.

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Notes

  1. 1.

    References to the EU in this chapter are meant to encompass, depending on the time period, references to the EEC and, later, the EC. References to the Court of Justice are to the Court of Justice of the EU throughout, irrespective of the time when the decision was rendered.

  2. 2.

    See generally EU Council, Basic Principles on the Use of Restrictive Measures (Sanctions), Doc. No. 10198/1/04 REV 1 (7 June 2004) available at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010198%202004%20REV%201 (accessed 9 August 2014).

  3. 3.

    See Paasivirta and Rosas 2000, pp. 207–209.

  4. 4.

    Idem.

  5. 5.

    See Articles on Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Report of the International Law Commission on the Work of its Fifty-third Session (2001), Yearbook of the UN International Law Commission, vol. 2, p. 128, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (part 2) (Commentary to the Articles on State Responsibility); see also Malanczuk 1983, p. 43. Cf. Zoller 1984, pp. xv–xvii.

  6. 6.

    Kelsen 1950, p. 706; Kelsen 1979, p. 115.

  7. 7.

    Kelsen 1967, p. 111 (“… the action or refrainment constituting the condition of the coercive act ordered by the legal order represents the delict (usually called ‘the wrong’), and the coercive act represents the sanction. An action or refrainment assumes the character of a delict only if the legal order makes it the condition of a coercive act as a sanction.”).

  8. 8.

    See generally Sicilianos 1990. Cf. Report of the International Law Commission on the Work of its Fifty-third Session (2001), Yearbook of the UN International Law Commission, vol. 2, p. 128, para 1, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (part 2) (Commentary to the Articles on State Responsibility).

  9. 9.

    See Report of the International Law Commission on the Work of its Fifty-third Session (2001), Yearbook of the UN International Law Commission, vol. 2, p. 75, para 3 U.N. Doc. A/CN.4/SER.A/2001/Add.1 (part 2) (Commentary to the Articles on State Responsibility); see also Report of the International Law Commission on the Work of its Thirty-first Session (1979), Yearbook of the UN International Law Commission, vol. 2, p. 121, U.N. Doc. A/CN.4/SER.A/1979Add.1 (part 2).

  10. 10.

    See U.N. Charter, Article 39.

  11. 11.

    See Report of the International Law Commission on the Work of its Fifty-third Session (2001), Yearbook of the UN International Law Commission, vol. 2, p. 128, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (part 2) (Commentary to the Articles on State Responsibility).

  12. 12.

    See Paasivirta and Rosas 2000, pp. 211–212 (providing further examples of retorsion in EU practice).

  13. 13.

    See Articles on the Responsibility of International Organizations, Articles 22, 51, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011). Cf. Articles on Responsibility of States for Internationally Wrongful Acts, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001).

  14. 14.

    See, e.g., Dopagne 2010.

  15. 15.

    See Case C-5/94, The Queen v. Ministry of Agriculture, Fisheries and Food, ex parte Hedley Lomas 1996 E.C.R. I-2553.

  16. 16.

    Kuijper and Paasivirta 2013, pp. 35–36 (noting that “most of the international responsibility of the Union is likely to be responsibility ex contractu,” but accepting the potential for the EU to also become responsible for breaches of general international law). Similarly, the ILC recognizes that IOs, in general, may be responsible for breaches of general international law. See Articles on the Responsibility of International Organizations, Article 10, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011); Report of the International Law Commission on the Work of its Sixty-third Session (2011), Yearbook of the UN International Law Commission, p. 96, U.N. Doc. A/66/10) (Commentary to the Articles on International Organization Responsibility).

  17. 17.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Article 22, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Article 22, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  18. 18.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Article 49, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Article 51, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  19. 19.

    Cf Articles on Responsibility of States for Internationally Wrongful Acts, Article 42, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Article 43, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  20. 20.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Articles 49–53, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Articles 51–56, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  21. 21.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Article 51, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Article 54, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  22. 22.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Article 52, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Article 55, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  23. 23.

    See Tams and Asteriti 2013, pp. 163, 172 et seq. See generally Palchetti 2002, p. 219; see also infra n. 25.

  24. 24.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Article 48, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Article 49, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  25. 25.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Article 54, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Article 57, G.A. Res. 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011) (“without prejudice” clauses). See generally Sicilianos 2002; Tams 2005; Dawidowicz 2006.

  26. 26.

    The EU sought to argue that whatever action it took was without prejudice to its obligations under Lomé I. See Response of the Council of the European Communities to the question of a member of the Parliament, deploring the ‘consistent denial of basic human rights to the people of Uganda’, in accordance with the decision at its meeting on 21 June 1977: O.J. (C214/1) (7 September 1977). This decision, which became known as the ‘Uganda Guidelines,’ stated that the EEC would act within the framework of Lomé I but also seek to ensure that assistance given to Uganda would not be used to prolong or reinforce the human rights violations. However, assistance was indeed suspended and, this being a violation of the agreement, it had to be justified as a countermeasure. See Tams 2005, pp. 210–211; Tams and Asteriti 2013, pp. 173–174.

  27. 27.

    See Tams 2005, p. 211.

  28. 28.

    For the discussion on the inclusion of such conditionality clauses in Lomé II-IV and the ultimate failure of the attempts see, e.g., Young-Anawaty 1980; Marantis 1994.

  29. 29.

    See generally Bartels 2005.

  30. 30.

    There was some discussion as to whether they could be caught by the no-prejudice clause of Article XXI GATT (‘Security Exceptions’), which however would not justify the general import embargo imposed in the instance. See Tams 2005, pp. 215–216.

  31. 31.

    Joined Cases 21/72-24/72, International Fruit Co. NV v. Produktschap voor Groenten en Fruit, 1972 E.C.R. 1126. The Court can be said to have found that the EU succeeded the Member States in their obligations under the GATT 1947. Rosas 2011, pp. 1326–1327.

  32. 32.

    See Tams 2005, p. 216.

  33. 33.

    See EU Council Common Position 98/326/CFSP of 7 May 1998 Concerning the Freezing of Funds Held Abroad by the Federal Republic of Yugoslavia and the Serbian Government.

  34. 34.

    See EU Council Common Position 98/426/CFSP of 29 June 1998 Concerning a Ban on Flights by Yugoslav Carriers between the Federal Republic of Yugoslavia and the European Community.

  35. 35.

    See EU Common Position 98/240/CFSP of 19 March 1998 on Restrictive Measures against Yugoslavia; supra nn. 33–34. See also EU Council Regulation (EC) 1901/98 of 7 September 1998 Concerning a Ban on Flights by Yugoslav Carriers between the Federal Republic of Yugoslavia and the European Community.

  36. 36.

    See Paasivirta and Rosas 2002, p. 212.

  37. 37.

    See Partnership Agreement between the Members of the African, Caribbean, and Pacific Group of States on the One Part, and the European Community and its Member States, on the Other Part, Article 96, June 23, 2000, 2000 O.J. (L 317) 3 (Cotonou Agreement).

  38. 38.

    See supra nn. 26–29 and accompanying text.

  39. 39.

    See Tams 2005, pp. 224–225.

  40. 40.

    See Final Communiqué on the Extraordinary Session of the Authority of Heads of State and Government on Côte d’Ivoire, ECOWAS Doc. 188/2010 (7 December 2010); Communiqué of the 252nd Meeting of the Peace and Security Council, A.U. Doc. PSC/PR/COMM.1(CCLII) (9 December 2010).

  41. 41.

    See S.C. Res. 1962(2010), preamble, U.N. Doc. S/RES/1962 (20 December 2010).

  42. 42.

    See Dupont 2012 (providing further analysis of EU measures against Iran, including an assessment of their legality).

  43. 43.

    See, e.g., Tams 2005, p. 220.

  44. 44.

    See, Idem.

  45. 45.

    See Articles on the Responsibility of International Organizations, Articles 3–4, G.A. Res. 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  46. 46.

    On the relationship between treaty reactions to breaches and countermeasures see generally Sicilianos 1993; Simma and Tams 2011, pp. 1351, 1376–1377. It is accepted here, along the lines that Simma and Tams propose, that the Vienna Convention on the Law of Treaties regime does not preclude further reactions to breaches of treaties by way of countermeasures. It could be considered that the suspension or termination of a treaty for material breach is a type of special ‘treaty countermeasure.’

  47. 47.

    See Articles on the Responsibility of International Organizations, Articles 20–27, G.A. Res. 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  48. 48.

    But see Treaty on the Functioning of the European Union, Article 216(3) (2008) O.J. (C115/47). However, the Court of Justice of the EU considers this provision as creating obligations of Member States to the EU, and not to third States. See Case 104/81 Hauptzollamt Mainz v. Kupferberg [1982] E.C.R. 3641.

  49. 49.

    This brings up the difficult question of ‘mixed agreements’ concluded by the EU and its Member States, as the subject matter of such agreements falls in part within exclusive EU competence and in part within Member State competence, or within an area of ‘shared’ competence. Such agreements would also include for example the association agreements with ACP States referred to in the previous bullet point—although the issue of a breach of both EU and Member States obligations would not arise in the examples here given. The matter of mixed agreements cannot be dealt with in detail in the context of this short contribution. See generally Heliskoski 2001; Hillion and Koutrakos 2010. For purposes of establishing international responsibility, mixed agreements are to be divided into those with a clear delimitation of competences between the EU and its Member States (such as the UNCLOS), and those without. In the latter case, a third State (party) is entitled to consider that both the EU and the Member States have “assumed responsibility over the whole breadth of the substantive scope of that instrument.” See Tomuschat 2002, p. 185 (with further references). But even in cases with a clear delimitation of competences the relevant declaration is not the end of the matter, as EU powers continuously evolve. See Neframi 2002, pp. 195–196. See generally Heliskoski 2013, p. 189.

  50. 50.

    See Articles on the Responsibility of International Organizations, Article 6, G.A. Res. 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  51. 51.

    Military and Paramilitary Activities (Nicaragua v. United States), Judgment, 1986 I.C.J. 14, 64–65.

  52. 52.

    Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, 2007 I.C.J. 43, 208 et seq.; see also Talmon 2009, pp. 497 et seq.

  53. 53.

    See Articles on the Responsibility of International Organizations, Article 7, G.A. Res. 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011); Report of the International Law Commission on the Work of its Sixty-third Session (2011), Yearbook of the UN International Law Commission, p. 85, U.N. Doc. A/66/10).

  54. 54.

    See Tzanakopoulos 2011, Ch. 2; see also Kuijper and Paasivirta 2013, pp. 54 et seq.

  55. 55.

    Indeed when the EU measures imposing a flight ban against the FRY (thus causing a breach of Member State obligations but not of EU obligations) were challenged in Belgian courts, the Court of Appeal of Brussels found that the measures were justifiable as proportionate countermeasures responding to a previous breach of international law on the part of the FRY and which had been duly notified to the FRY. See JAT v Belgium (10 June 1999) in [1999] Journal des tribunaux 693. Cf. Tzanakopoulos 2011, pp. 188–189.

  56. 56.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Articles 42, 49, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001).

  57. 57.

    See Idem, Article 48.

  58. 58.

    See Idem, Article 54.

  59. 59.

    See Report of the International Law Commission on the Work of its Fifty-third Session (2001), Yearbook of the UN International Law Commission, vol. 2, p. 137, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (part 2) (Commentary to the Articles on State Responsibility).

  60. 60.

    See supra n. 25.

  61. 61.

    On the concept of the ‘international community’ see Tzanakopoulos 2013, p. 339.

  62. 62.

    Vienna Convention on the Law of Treaties, Article 53, 23 May 1969, 1155 U.N.T.S. 31 (emphasis added).

  63. 63.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Articles 42, 48, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001); Articles on the Responsibility of International Organizations, Articles 43, 49, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  64. 64.

    Barcelona Traction, Light and Power Company, Limited (New Application: 1962) (Belgium v Spain) Second Phase, 1970 I.C.J. 3, 32 (but going on to state that “[b]y their very nature [obligations toward the international community as a whole] are the concern of all States”) (emphasis added).

  65. 65.

    See also Palchetti 2002, pp. 221–223.

  66. 66.

    Cf. Tams and Asteriti 2013, pp. 168 et seq. But see Palchetti 2002, pp. 225–227. For a different opinion see Cannizzaro 2002, pp. 316–319; see also Evans and Okowa 2013, p. 124.

  67. 67.

    See Articles on Responsibility of States for Internationally Wrongful Acts, Article 51, G.A. Res. 56/83, Annex, U.N. Doc. A/RES/56/83/Annex (12 December 2001).

  68. 68.

    Idem, Article 50.

  69. 69.

    Idem, Article 52.

  70. 70.

    See Report of the International Law Commission on the Work of its Fifty-third Session (2001), Yearbook of the UN International Law Commission, vol. 2, U.N. Doc. A/CN.4/SER.A/2001/Add.1 (part 2) (Commentary to the Articles on State Responsibility).

  71. 71.

    See Articles on the Responsibility of International Organizations, Articles 30, 31, 43, G.A. Res 66/10, Annex, U.N. Doc A/RES/66/10/Annex (9 December 2011).

  72. 72.

    On the latter point, but with respect to the UN, see Tzanakopoulos 2011, pp. 145–151.

  73. 73.

    ICJ Statute, Article 34(1), 26 June 1945.

  74. 74.

    See Case T-496/10, Bank Mellat v. Council of the European Union 2013 E.C.R. II-0000, appeal currently pending before the CJEU. Cf. Bank Mellat v H.M. Treasury (No 2) [2013] U.K.S.C. 39 (United Kingdom Supreme Court).

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  1. Faculty of Law, St Anne’s College, University of Oxford, Woodstock Road, Oxford, OX2 6HS, UK

    Antonios Tzanakopoulos

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    Ali Z. Marossi

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    Marisa R. Bassett

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Tzanakopoulos, A. (2015). Sanctions Imposed Unilaterally by the European Union: Implications for the European Union’s International Responsibility. In: Marossi, A., Bassett, M. (eds) Economic Sanctions under International Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-051-0_8

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