The Impact of the EU’s Unilatéral Economic Sanctions on the UN Collective Security Framework

Alexander Orakhelashvili

LLM Leiden; PhD Cantab.; Lecturer, School of Law, University of Birmingham

3eme trimestre 2013

Cette présentation a mis l’accent sur les sanctions de l’Organisation des Nations Unies et de l’Union européenne contre l’Iran et la Syrie, en termes d’impact sur le mécanisme de sécurité collective de l’ONU. Les sanctions contre l’Iran et la Syrie soulèvent des questions quant à la relation entre les contre-mesures dans le cadre du droit de la responsabilité de l’État et des sanc­tions comme des mesures de sécurité collective. Cette présentation a mis en évidence aussi ce que chacun de ces types de mesures peut légalement réaliser et l’impact qu’ils peuvent avoir légalement. Cette question se pose au regard du risque du double emploi des efforts de sécurité collective entre l’ONU et l’UE, qui est monté avec des risques d’entrave à l’efficacité des sanctions en infligeant des dégâts sur les populations de l’État ciblé, sans aucune justification adéquate.

Ihis contribution concentrated on the sanctions of the United Nations Organisation and European Union against Iran and Syria in terms of impact on the UN’s collective security mechanism. The sanc­tions against Iran and Syria raise questions about the relationship between countermeasures within the framework of a state’s own legal responsibility and about sanctions as measures of collective security. Ihis contribution has also highlighted the idea related to what each of these types of measures may le-gally perform and the impact of their legal reach. This question is raised with regard to the risk of effort duplication in collective security between the UN and the EU which threatens to obstruct the efficiency of sanctions by inflicting losses on the population of the targeted country without proper justification.

1. The Type and Scope of UN and EU Sanctions against Iran and Syria

The present paper focuses on the legal and constitutional issues surrounding the adoption of EU sanctions against Iran and Syria. Both the UN and EU have adop-ted far-reaching sanctions programmes in relation to Iran, citing as a reason Iran’s nuclear enrichment efforts. In relation to Syria, where civil war between President Assad’s government and rebels has erupted in 2011, the UN Security Council has not adopted any resolution imposing sanctions on Syria, while the Council of the European Union has decided to impose its own sanctions on that State.

Under the United Nations Charter, a necessary precondition for imposing sanctions on any State is that the Security Council identifies the existence of a « threat to the peace » in the underlying conduct or situation as required by Article 39 of Chapter VII, and then proceeds to impose economic or other measures under Article 41 to restore international peace and security.

Chapter VII has already been used several times in relation to Iran. As is known, the Iranian nuclear enrichment issue was taken up by the UN Security Council, resulting 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 pro­gramme, and arms embargo. By resolution 1737(2006), the Council, invoking Article 41, decided that all States had to prevent the supply, sale or transfer to Iran « of all items, materials, equipment, goods and technology which could contribute to Iran’s enrichment-related, reprocessing or heavy water-related activities, or to the development of nuclear weapon delivery systems » (paragraph 3).

Resolution 1803(2008) introduced targeted sanctions obliging all States to pre-vent the entry into or transit through their territories of individuals directly associa­ted with or providing support for Iran’s proliferation sensitive nuclear activities or for the development of nuclear weapon delivery systems (paragraph 5). Resolution 1929 (2010) prescribes that all States had to prevent the sale or transfer to Iran of « battle tanks, armoured combat vehicles, large calibre artillery systems, combat aircraft, attack helicopters, warships, missiles or missile systems. »

It should be noted that the process of adoption of these resolutions has not been uncontroversial. South Africa, in particular, denoted in the wake of adoption of resolution 1803 as unfortunate that the Council acted in such great haste to decide on a series of further punitive sanctions without considering the significant progress made through the IAEA to provide the factual information on the implementation of NPT safeguards in Iran.^[1] At the stage of adoption 1929, questions arose whether the scope and extent of sanctions genuinely and generically served the purpose of stopping or delaying the success of the Iranian nuclear programme. For instance, it is rather odd to address the problem of proliferation of weapons of mass destruction by measures aimed at conventional arms supplies. The process of adoption of resolution 1929 indeed witnessed some doubts as to necessity and proportionality of sanctions it contains. Brazil voted against sanctions because they would not be an effective instrument and only undermine prospects of resolving the nuclear enrichment problem through dialogue. It was « unnatural to rush to sanctions before the parties concerned can sit and talk about the implementation of the declaration. » Sanctions would « delay rather than accelerate or ensure progress in addressing the question. »^[2]

The EU Council’s Common Position adopted in 2007 took the posture of fol-lowing the sanctions policy embodied in resolution 1737(2007) of the UN Security Council and initiating EU coercive measures to give effect to that resolution.^[3] The Council Regulation No 428/2009 determined that « Dual-use items (including software and technology) should be subject to effective control when they are ex-ported from the European Community. » Article 2 defined dual-use products as « items, including software and technology, which can be used for both civil and military purposes, and shall include all goods which can be used for both non-explosive uses and assisting in any way in the manufacture of nuclear weapons or other nuclear explosive devices. »^[4]

By decision adopted on 26 July 2010, the EU Council by and large attempted to follow the position taken by the UN Security Council, but has also introduced sanctions against Iran that went beyond those adopted within the UN system and began encompassing trade between EU States and Iran.^[5] Article 17 of the Decision adopted on 26 July 2010 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 fur-ther 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 petrochemi-cal sector in Iran. »^[6]

Under Article 1 of the same Decision, « 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, nor shall Member States guarantee or reinsure such commitments. »

This provision has amended a less stringent requirement under Article 8 of the EU Council Decision of 26 July 2010 that had earlier prohibited « new short term commitments for public and private provided financial support for trade with Iran, including the granting of export credits, guarantees or insurance, to their natio-nals or entities involved in such trade, with a view to reducing their outstanding amounts, in particular to avoid any financial support contributing to prolifera-tion-sensitive nuclear activities, or to the development of nuclear weapon delivery systems. In addition, Member States shall not enter into new medium and long-term commitments for public and private provided financial support for trade with Iran. »

It is thus obvious that trade restrictions against Iran got more divorced from the original aim of stalling the nuclear enrichment effort and re-focused on the overall trade and economic relations between Iran and the EU.

Furthering such expansive spirit, the European Union has decreed that further, and qualitatively different, economic and financial sanctions should be applied against Iran, including the ban on financial transactions with the Central Bank, ship-building, maritime transport cooperation and trade in gas.^[7] It was openly ad-mitted in the preambular paragraph 5 of 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 « it is appropriate to review the prohibition on the sale, supply or transfer to Iran of additional dual-use goods and technology listed in Annex I to Council Regulation (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items, with a view to including 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 would also cover « the sale, supply or transfer to Iran of graphite, and raw or semi-finished metals such as aluminium and steel »; and « The sale, sup-ply or transfer to Iran of key naval equipment and technology for ship-building, maintenance or refit, should be prohibited. »^[8] If contrasted to the scope of under-lying UN Security Council resolutions discussed above, it will become obvious that all these trade and economic sanctions are products of the EU’s own initiative, not a follow-up to implement the Security Council’s decisions.

The European Union’s sanctions against Syria began with the adoption of the Decision 2011/273/CFSP provides for an arms embargo, a ban on internal repres­sion equipment, and restrictions on the admission to the Union, and the freezing of funds and economic resources, of certain persons and entities responsible for the violent repression against the civilian population in Syria.^[9] In a later decision « The Union strongly condemned the violent repression, including through the use of live ammunition, of peaceful protest in various locations across Syria resulting in the death of several demonstrators, wounded persons and arbitrary detentions, and called on the Syrian security forces to exercise restraint instead of repression. »^[10]

Under Article 1 of this decision, « The sale, supply, transfer or export of arms and related matériel of all types, including weapons and ammunition, military vehicles and equipment, paramilitary equipment and spare parts for the aforementioned, as well as equipment which might be used for internal repression, to Syria by nationals of Member States or from the territories of Member States or using their flag vessels or aircraft, shall be prohibited, whether originating or not in their territories ».

Similar to the developments in relation to Iran, the subsequent decision 36/2012 of the EU Council expanded sanctions further.^[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. »

It can easily be seen from these instruments that the European Union’s policy is premised on some authority to impose sanctions without a UN Security Council resolution and to independently judge what kind of measures are justified in the relevant situations.

It was recognised already a while ago that comprehensive economic sanctions in case of Iraq, Yugoslavia or Haiti did not bring the desired political or economic ef-fect. Humanitarian disaster inflicted on Iraq in the 1990s has been recognised both by the UN and by the scientific community. Population was left without means of subsistence and nutrition, and just as in Haiti, black market flourished. Sanctions were effectively collective punishment of the Iraqi people. Despite being aimed at inducing populations of Iraq and Yugoslavia to put pressure on their governments, sanctions profoundly failed to bring about that effect.^[12] The humanitarian excep­tions that were meant to spare civilian population of the worst effects of sanctions, did not alleviate the suffering of population either, instead becoming the object of political negotiation and bargain within the sanctions committees, or in broader contexts such as the relations between UN and Iraq in relation to arms control.^[13]

The increasing acknowledgment of the futility of comprehensive economic sanctions has led to the growing recognition that the better way of handling crises and conflicts could consist in adopting targeted sanctions that are aimed at relevant government officials, military commanders and other related persons, including members and affiliates of terrorist organisations, rather than at States and their population as such. By and large, the initial UN sanctions against Iran under the above-discussed Security Council resolutions had such targeted character. What we have seen at the example of EU measures against Iran and Syria is the return to the practice of comprehensive economic sanctions the way that this time it is not the UN imposing these measures but the EU independently of the UN.

2. The Allocation of Institutional Authority to Adopt sanctions

On a doctrinal and political plane, there is some temptation to see international institutions such as the UN or EU as a modern version of great power concerts that used to operate in the period between 16^th and 20^th centuries, effectively as a direc-torate that determined the course of development of international relations. Such temptation is even more understandable, given that both the UN Security Council and the Council of the EU include within their ranks a number of powerful great powers of the current international system.

Nevertheless, modern international institutions are qualitatively different from the older great power concerts; they are, quite simply, organs with delegated powers, and possess no authority but one delegated to them by States-parties to their consti­tuent instruments. Much as these institutions enjoy wide margin of discretion in their activities, they are still subjected to international legal limitations. Sir Robert Jennings, a judge and at times president of the International Court of Justice, has clearly adopted such view in the Lockerbie case (Libya v US & UK) by stating that « all discretionary powers of lawful decision-making are necessarily derived from the law, and are therefore governed and qualified by the law. This must be so if only because the sole authority of such decisions flows itself from the law. It is not logi-cally possible to claim to represent the power and authority of the law, and at the same time, claim to be above the law. »^[14]

Therefore, what matters is the legal framework of delegated powers and how institutions exercise their delegated authority.

Much as there is widespread perception that the Security Council’s Chapter VII measures are by and large discretionary, the true essence of this discretion is not always properly focused upon. As discretion forms an integral part of the overall Charter framework designed to confront threats to international peace and security, any particular use of Chapter VII, especially of Article 39, must transparently and intelligibly – that is expressly, to say the least – demonstrate which facts, situations and circumstances on the ground involve a « threat » under Article 39. The analysis of the relevant Security Council resolutions compellingly evidences that this prin­cipal statutory requirement has not been met.

The Security Council’s own treatment of the Iranian nuclear issue is, as a whole, marked by a rather nebulous treatment of the issue of whether that situation involved a threat to the peace warranting application of Chapter VII measures. Article 39 of the UN Charter required from the Security Council to clearly formu-late which conduct, fact or situation amounted to a « threat to the peace » in that context. Resolution 1696(2006) speaks of proliferation risks. The Council goes very near to the ambit of Article 39 but does not cross its boundaries by specifying that these risks constitute a threat. The Council is thus conscious that this is not a valid case of the use Article 39.

Resolution 1737 (2006), imposing sanctions on Iran to address its non-com-pliance with the international demands to freeze its uranium enrichment pro­gramme, refers, in its preambular paragraphs, to the concerns expressed by the IAEA regarding the Iran’s nuclear programmes. The Council’s entire reasoning is based on the concern not that Iran has actually been doing something problema-tic, but that it did failed to prove the opposite to the Council’s satisfaction. The problems identified were that certain Iranian nuclear programmes « could have a military nuclear dimension » and that « Iran has not established full and sustained suspension » of its presumed activities. That said, the Resolution 1737 does not specify what the Iranian conduct that constitutes the « threat to the peace » which, it may be said, is not an impeccable exercise from the viewpoint of legal certainty. The subsequent resolution 1803(2008) does not identify a threat to the peace either. It notes with concern that « Iran has not established full and sustained suspension of all enrichment related and reprocessing activities and heavy water-related projects as set out in resolution 1696(2006), 1737(2006), and 1747(2007) », is consequently concerned « by the proliferation risks presented by the Iranian nuclear programme, » and moves right to Article 41 to impose further sanctions. Unfortunately, this reso­lution has not taken the matter beyond the area of speculation and allegations either. The most recent Security Council resolution 1929(2010) likewise restates presumptive statements from previous resolutions and relies on the lack of Iran’s « cooperation with the IAEA under the Additional Protocol, » and the presump-tive need « to exclude the possibility of military dimensions of Iran’s nuclear pro­gramme. »

The lack of a proper cause of action in the Iranian issue has also been demons-trated in discussions preceding the adoption of resolution 1929, especially in terms of this resolution having been rushed despite the joint declaration having been adopted by Brazil, Turkey and Iran in Tehran on 17 May 2010. The Brazilian repre­sentative, while voting against resolution 1929, quoted as one of the reasons the fact that « the joint declaration has neither received the political recognition it de-serves nor been given the time it needs to bear fruit. » The adoption of a Chapter VII resolution at that point ran counter to the successful efforts of Brazil and Turkey to engage Iran in a negotiated solution. Lack of transparency in threat identification was manifested by the fact that « the permanent members, together with a country that is not a member of the Security Council, negotiated among themselves for months behind closed doors. »^[15] The Turkish Representative stated that « The Tehran declaration has created a new reality with respect to Iran’s nuclear programme » and a new opportunity for finding an agreed solution, only to be undermined by a new Chapter VII resolution.^[16] The members of the Council sponsoring and voting reso­lution 1929 have not properly explained why its adoption was necessary despite the problem of nuclear enrichment proceeding to a resolution through agreed means, which reinforces the conclusion, manifested through the lack of a proper Article 39 determination in all resolutions regarding Iran, that these resolutions are adopted as part of a parochial political agenda as opposed to being part of a proper effort under Chapter VII to confront genuinely existing threats.

The IAEA referral resolution did not refer in factual terms to a threat In Iran’s conduct. It was not IAEA’s task to ascertain the existence of a « threat to the peace » and its referral of the matter to the Council cannot constitute evidence that it drew its judgment along those lines still less absolve the Council from the duty to properly ascertain the existence of a threat before it activates Chapter VII. The IAEA decision without an identified legal basis and the Security Council’s decision incorporating the IAEA decision without asking necessary questions as to that legal basis do not add up to form the legal basis required under the Charter. If a threat under Article 39 is a breach of a treaty, such as the 1968 Non-Proliferation Treaty or the Iran-IAEA Safeguards Agreement, then its existence has to be proved through specific evidence, just like that of any other internationally wrongful act. A further problem aggravating the legal deficiency of the use of Chapter VII is that, in the absence of a clear and transparent identification of a « threat to the peace », it is impossible to ascertain what measures would be aimed at restoring international peace and security and would, moreover, be necessary and proportionate to that end, as is the requirement for every instance of the use of Article 41 of the Charter.

3. The impact of chapter VIII of the UN Charter

Article 53 of Chapter VIII the UN Charter provides that the Security Council 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 Charter of the UN, the European Union can be utilised for giving fur-ther effect to coercive measures that the UN Security Council has already adopted under Chapter VII, but it is not allowed to resort, on its own initiative, to coercive measures are qualitatively différent.

In practice, not every regional organisation has observed this requirement. The most striking examples are the US-led quarantine against Cuba in the early 1960s and the NATO attack against the Federal Republic of Yugoslavia, both mea-sures having been undertaken without the approval of the UN Security Council. The legality of both these measures has been contested and widely disapproved. Moreover, these two instances related to the armed action, not to economic sanc­tions and therefore are not crucially important for our analysis.

As for the economic measures, the 1960 OAS Resolution, reacting to the acts of the Dominican Republic against Venezuela, decided on breaking of diplomatic relations of all member States with the Dominican Republic, and partial interrup­tion of economic relations with it, including the immediate suspension of the trade in arms.^[17] The 1962 Punta del Este Resolution decided to « To suspend immediately trade with Cuba in arms and implements of war of every kind. »^[18] As emphasised, the Punta del Este decision imposed the arms embargo on Cuba by essentially cir-cumventing Article 53 of the Charter.^[19]

The 1964 Washington Ninth Meeting of Consultation of Ministers of Foreign Affairs, Serving as Organ of Consultation, decided, in response to Cuban actions against Venezuela,

« To apply, in accordance with the provisions of Articles 6 and 8 of the Inter-American Treaty of Reciprocal Assistance, the following measures:

1. That the governments of the American States not maintain diplomatic or consular relations with the Government of Cuba;
2. That the governments of the American states suspend all their trade, whether direct or indirect, with Cuba, except in foodstuffs, medicines, and medical equip-ment that may be sent to Cuba for humanitarian reasons; and

1. That the governments of the American states suspend all sea transportation between their countries and Cuba except for such transportation as may be neces-sary for reasons of a humanitarian nature. »^[20]

It was argued by States supporting the legality of OAS Punta del Este mea-sures that they did not constitute enforcement measures under Article 53, because they were steps any State could legally take, individually or collectively, without authorisation from anyone.^[21] Argentina submitted that giving regional agencies an efficient role would require them being prohibited to undertake, without an Article 53 authorisation, only forcible measures, but not those « like the breaking of diplo­matic relations, which was within the exclusive right of a sovereign State. »^[22] The UK Representative pointed out that the OAS acts against the Dominican Republic were « acts of policy perfectly within the competence of any sovereign State and, there-fore, were within the competence of the OAS members acting collectively, » and that Article 53 outlawed a forcible action only.^[23] These statements relate only to a relatively minor part of OAS sanctions, and thus effectively disclaim an entitlement to undertake regional enforcement beyond the limits they specify. A coherent basis for the legality of non-forcible economic collective measures not authorised by the UN Security Council has not been articulated in those discussions.

In relation to the EU’s practice specifically, the early views manifest the per­ception that the EU sanctions against third States are supposed to support the pre-existing sanctions adopted by the UN Security Council. The principle of comple-mentarity implies that regional organisations such as the EU act as part of Chapter VIII framework, not exercise a free-standing sanctions competence which they do not have as a matter of law in force.

An early discussion of this issue in relation to Rhodesia has been premised on the complementary role of the EC to the UN sanctions. Pursuant to the 1992 Maastricht Treaty, the Council would adopt a common position or joint action specifying the objective of the measures to be undertaken.^[24] In relation to sanctions against Rhodesia « the Community considered that it had neither the competence nor indeed any responsibility for implementing Security Council decisions. » The EC could not act on the basis of Article 113 of its Treaty because, although UN sanctions applied to the commercial field, the Security Council’s measures were taken for the purpose of maintaining peace and security and therefore did not fall within the scope of that provision. However in response to the Falkland cri-sis the EEC Council regulation adopted economic measures without the Security Council’s authorisation and cited Article 113 as its legal basis. The same has been the case in relation to sanctions imposed against Iraq, Libya, FRY and Haiti.^[25]

Such complementarity arrangement continued over the 1990s. The EC contri­bution to enforcing Security Council sanctions has been limited due to the limits on the EC competence in the field of capital movement and cooperation in fields such as science, technology, culture and sport, as well as diplomatic relations. To illustrate, EC measures pursuant to Haiti sanctions reflected the oil embargo under resolution 841(1993), but not financial sanctions.^[26] An EC regulation on FRY sanctions specifies in the preamble that while the Security Council has imposed mandatory sanctions on FRY, « the Community’s economic relations with the Republics of Serbia and Montenegro must be halted. »^[27] This manifests not only the complementarity approach but also the EC’s acceptance of its relevant activities being undertaken as part of the UN framework and subordinated to it. No inclina­tion for an independent EC action is manifested.

The preamble of a subsequent Council regulation explains the legal basis of the EC action, which is the adoption of further Security Council resolutions and request from the President of Bosnia. The Community had to strengthen the embargo against the FRY « to ensure a uniform implementation throughout the Community of certain of these measures. » The regulation bans import and export, commercial traffic and non-financial services (paragraph 1).^[28] Paragraphs 8 and 9 of this regulation relate to the impoundment of vessels. Article 113 was named as the regulation’s legal basis, and it becomes arguable that the Community might have derived its implied power to act accordingly to respond to the need of effectively participating in the UN sanctions under Chapter VII on the basis of complemen-tarity.

True, from the late 1990s onwards the EU showed some tendency to act in the absence of the overarching Security Council resolution, such as in the cases of Kosovo, Burma and Zimbabwe where the Security Council did not choose to adopt the relevant Chapter VII measures.^[29] But in all those cases the EU action was merely targeting governments and covering the prohibition on the delivery of inter-nal repression equipment for armed and police forces, as opposed to encompassing broader economic relations and essentially targeting the populations of those States.

4. What is at Stake with the EU Sanctions?

As is obvious, a number of EU measures against Iran and Syria do not replicate the pre-existing UN Security Council’s decisions, but constitute the instances of the exercise of EU’s independent judgment as to what responses are adequate or necessary to civil war in Syria or the nuclear enrichment programme in Iran. This issue is also important because the damage that sanctions cause to target States and their populations, directly or incidentally, may be quite far-reaching and can only be justified to the extent the legal framework of collective security allows for this.

To take UN sanctions against Libya in 1990s as an example, measures prima-rily consisting of the air embargo have caused the nearly crippling damage to the country’s agricultural sector and to its medical sector. Resolutions 748(1992) and 883(1993) imposing air embargo on Libya have never properly articulated the jus­tification for these measures, either in terms of their proportionality to the Libyan refusal to extradite two persons suspected of involvement in the Lockerbie terrorist attack, or of their adequacy to deal with a general threat of terrorism of which Libya’s position allegedly formed part.

The impact of sanctions against Libya was to inflict serious damage on the agri­culture and animal husbandry sector. Farmers and agricultural cooperatives have been unable to export their surplus production, which would usually be shipped by air. Financial losses amounted to $710,777,777. It was not possible to import fruit seedlings for planting out in conditions allowing for them to be protected against plant diseases. The country’s plans and programmes for development of the animal health sector through the establishment of veterinary units and clinics in various areas had also been crippled, since the supplies could no longer be shipped in by air freight.^[30] The Libyan Government further explained to the Security Council that seven years long sanctions programme seriously disrupted the operation in Libya of the global child immunization programme run by the WHO by making it diffi-cult to obtain vaccines; reduced the effect of vaccines due to their spoilage as they were transported overland instead of by air; impeded the medical procurement pro­gramme; and prevented ambulance aircraft to be repaired and made serviceable.^[31] The UN Fact-Finding Mission on sanctions against Libya further specified that « Although the air embargo did not apply to domestic air travel, the restrictions on the purchase of aircraft, spare parts, navigational and landing equipment and on training and certification of pilots and other crew had reduced the number of airworthy aircraft and curtailed domestic air travel. That had placed restrictions on the ability of Libyans to respond to humanitarian emergencies … . The most adverse impact of the air embargo had been on the health sector, for it had restric-ted emergency medical evacuation both within and outside the country. »^[32]

It is obvious that more comprehensive sanctions adopted by EU against Syria and Iran, encompassing the multiplicity of economic, financial and trade relations, has an even greater potential to adversely affect the innocent civilian population and, by the sound of it, are doing that job on the ground already.

 

5. Legal Basis under the EU Treaties

The legal basis for the EU sanctions against Iran and Syria is not conclusively clear under the European Union’s own legal framework. The relevant above-men-tioned EU instruments that actually introduce sanctions are not profoundly clear as to what legal basis is claimed there to be for those sanctions under the EU law, let alone under international law. The EU Treaty contains certain provisions to that effect, such as Article 215 EU Treaty which envisages the interruption of economic relations with third States:

« 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. »

Furthermore, Article 24 which addresses the EU measures in furtherance of the Union’s strategic interests:

« 2. Within the framework of the principles and objectives of its external action, the Union shall conduct, define and implement a common foreign and security policy, based on the development of mutual political solidarity among Member States, the identification of questions of general interest and the achievement of an ever-increasing degree of convergence of Member States’ actions

3. The Member States shall support the Union’s external and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall com-ply with the Union’s action in this area. »

But these provisions have also to be read in line with Article 53 of the UN Charter which, pursuant to Article 103 of the UN Charter,^[33] prevails over the obligations of EU member-States under the EU’s constituent instruments. If the measure adopted under the EU treaties is an enforcement measure against the State that does not rely on the authorisation from the UN Security Council, the EU member-States – all of whom are also parties to the UN Charter – are no longer meant to uphold those EU measures. The conclusion thus must follow that the EU treaties do not provide for the legal basis of the EU’s economic, trade and financial measures against Iran and Syria.

6. Legal Basis under General International Law

A possible alternative basis on which one may defend EU measures against Iran may be the law governing countermeasures as part of State responsibility. The UN International Law Commission (ILC) has observed in relation to this subject-matter that countermeasures are « measures that would otherwise be contrary to the international obligations of an injured State vis-à-vis the responsible State, if they were not taken by the former in response to an internationally wrongful act by the latter in order to procure cessation and reparation. Countermeasures are a feature of a decentralized system by which injured States may seek to vindicate their rights and to restore the legal relationship with the responsible State which has been rup-tured by the internationally wrongful act. »^[34]

There is one similarity with collective security measures, namely that related to purpose of underlying measures. As ILC’s Article 49 on State responsibility suggests, « Countermeasures shall, as far as possible, be taken in such a way as to permit the resumption of performance of the obligations in question. » This could arguably be seen as reflective of the claim of EU is that it intends to prompt the Iranian Government to comply with its international obligations in the area of nuclear non-proliferation. However, this conclusion is nullified by the ILC’s ano-ther observation that « A fundamental prerequisite for any lawful countermeasure is the existence of an internationally wrongful act which injured the State taking the countermeasure. »^[35] The key requirement thus is to identify what international legal obligations that Iran allegedly has breached in relation to the EU are the latter’s coercive measures are trying to vindicate.

However, it is unclear on what basis the EU could have any standing here, for it is difficult to find the initial wrongful act committed by Iran against the EU. Iran’s breach of the 1968 Non-Proliferation Treaty has not been plausibly established and neither the IAEA nor Security Council have so far definitively pronounced on that issue. Nor could the EU be seen as an injured party in relation to Iran’s breach of the Safeguards Agreements,^[36] because these are operative as between Iran and the IAEA. Thus, general international law could provide no legitimating basis for the EU measures.

On a broader plane, Chapter VII sanctions adopted by the UN Security Council essentially differ from countermeasures. Much as Chapter VII sanctions are often adopted against a State that has committed an internationally wrongful act that a « threat to the peace » almost inevitably involves, they do not inherently involve a reciprocal violation of international obligations towards the target State. The area to which Chapter VII applies covers both inter-State relations that derive from legal obligations of States and those that could develop pursuant to discretionary choices of States. The imposition of an arms embargo would not, in the absence of an arms supply treaty between the States concerned, involve a violation of inter­national law towards the target State. The same applies to economic sanctions and boycotts as under general international law no State is obliged to sell to or purchase from anyone any sort of goods. The impact of Security Council’s injunction against doing so is to transform a matter of national policy choice into that of legal prohi­bition pursuant to the Charter.

The relevance of Article 103 confirms precisely that. If Chapter VII sanctions had the relevance of countermeasures only, their legality could be sustained by the law of State responsibility alone. The difference Article 103 is meant to make relates to justifying member-States to implementing Chapter VII sanctions towards the target State even in violation of treaties in force, where the target State has not in the first place committed an internationally wrongful act towards the State that implements Chapter VII measures. No need for such safeguard would arise in the case of coercive measures that could be defended as countermeasures. What Chapter VII, Chapter VIII and Article 103 of the UN Charter essentially do is to confirm the monopoly of the UN Security Council in adopting such coercive measures that States individually are not authorised by general international law to adopt.

The purpose of Chapter VII sanctions is essentially different from countermea­sures under the law of State responsibility also in the sense that their purpose is the coordination to respond to common concerns as identified in a centralised manner by the Security Council, not to avenge a previous breach in the interest of particular States. The necessity and proportionality of Chapter VII sanctions is, correspondin-gly, not the same as that of countermeasures: the calculus of necessity and propor-tionality should be determined by no one else than the Security Council.

It therefore appears that the measures adopted by the EU against Iran and Syria are generically and qualitatively different from counter-measures that international law mandates States to adopt in response to a previous internationally wrongful act and in the absence of a previous Security Council determination.

But even on the plane of the law of counter-measures, one is tempted to observe that some discrepancies persist in the case of EU sanctions against Iran and Syria. As the International Law Commission observed, « Countermeasures are more likely to satisfy the requirements of necessity and proportionality if they are taken in relation to the same or a closely related obligation. »^[37] Now, how proportionate sanctions targeting Iran’s Central Bank sanctions and ship-building sector, the trade between Iran and EU States, or even sanctions in relation to oil and gas, could be in relation to nuclear non-proliferation is something of a question.

Coercive measures the EU has adopted are qualitatively different from coun-ter-measures, and by their essence require a coordinated decision by the universal organisation to be successful. Unlike Security Council’s Chapter measures, the EU sanctions are not supported by the overriding effect of Articles 25 and 103 of the UN Charter. For the same reason, these measures apply coercion to Iran and Syria on the basis and within the framework to which these two States has not given their consent under international law.

The conclusion that compels itself is that by imposing comprehensive economic sanctions against Iran and Syria, the European Union has arrogated to itself the competence that is available exclusively to the UN Security Council under Articles 39 and 41 of Chapter VII of the UN Charter. The imposition of sanctions other than those that can be justified as countermeasures is premised on the determina­tion of a « threat to the peace » under Article 39 of the UN Charter and the sub­sequent calculation of the necessity and proportionality of the imposed measures under its Article 41, on which both issues the Security Council has the exclusive authority to decide. The Council of the European Union has no authority to make decisions on any of those matters.

 

7. Conclusion

Due to the centralisation of coercion under Article 53 of the UN Charter, it is in the essence of collective security coercion mechanisms that they should not be used to set one faction of States against another, but be activated only when all major groups of States are united through the Security Council as to the target and measures. EU sanctions escalate the problem rather than contribute to peace and security because there is no uniform vision within the international society as to what is expected of Iran. In pragmatic terms, these sanctions also undermine the consistent normative basis on which the Security Council can properly calcu-late cause of action, necessity and proportionality of future measures against Iran should such be judged to be necessary. Thus the EU measures have considerably reduced, if not killed off, any decent chance of the Security Council acting effec-tively on Iran – that very policy that is solely able to inflict on Iran a coordinated and impactful response that would make the difference that partial EU sanctions can never achieve.

[1]S/PV.5858, 7 (South Africa), 11 (Indonesia)

[2]S/PV.6335, 2-3 (Brazil); see, id., Turkey’s position.

[3]COUNCIL COMMON POSITION 2007/140/CFSP of 27 February 2007 concerning restrictive measures against Iran

[4]COUNCIL REGULATION (EC) No 428/2009 of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items

[5]COUNCIL DECISION 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP

[6]COUNCIL DECISION 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/ CFSP concerning restrictive measures against Iran

[7]Council Decision 2012/635/CFSP of 15 October 2012 amending Decision 2010/413/ CFSP concerning restrictive measures against Iran; Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU)

No 961/2010

[8]Council Decision 2012/635/CFSP

[9]Council Decision 2011/273/CFSP of 9 May 2011 concerning restrictive measures against Syria

[10]Council regulation (EU) No 442/2011 of 9 May 2011 concerning restrictive measures in view of the situation in Syria

[11]Council regulation (EU) No 36/2012 of 18 January 2012 concerning restrictive measures in view of the situation in Syria and repealing Regulation (EU) No 442/2011

[12]M Bennouna, Les sanctions économiques des Nations Unies, 300 RdC (2002), 40-42. It is also pointed out that « the « theory » behind economic sanctions is that economic pressure on civilians will translate into pressure on the Government for change. This « theory » is bankrupt both legally and practically, as more and more evidence testifies to the inefficacy of comprehensive economic sanctions as a coercive tool, » M. Bossuyt, The adverse consequences of economic sanctions on the enjoyment of human rights. Working paper, E/CN.4/Sub.2/2000/33, 9; the House of Lords Report similarly suggests that « When economic sanctions are relatively weak in their economic effects, they can have the overall net effect of strengthening the target regime by legitimizing it, by strengthening its control over resources, or both. Where the economic effects of sanctions are more severe, they can have the effect of weakening the target regime’s overall capabilities to act, especially in foreign policy, but the regime can still turn aspects of sanctions to its advantage and increase its internal control, » HL Select Committee on Economic Affairs, The Impact of Economic Sanctions, 2^nd Report of Session 2006-2007, HL Paper 96-I, para. 130

[13]See generally A Orakhelashvili, Collective Security (OUP 2011), Ch. 5

[14]ICJ Rports, 1998, 110

[15]S/PV.6335, 2-3 (Brazil)

[16]S/PV.6335, 3 (Turkey)

[17]Resolution I, Sixth Meeting of Consultation of Ministers of Foreign Affairs, Final Act, San Jose, August 16-21, 1960, operative paragraph 1

[18]Resolution VIII, Eighth Meeting of Consultation of Ministers of Foreign Affairs, Final Act, Punta del Este, January 22 to 31, 1962, operative paragraph 1

[19]JW Halderman, Regional Enforcement Measures and the United Nations, 52 Georgetown Law Journal (1963), 89 at 117

[20]Resolution I, Ninth Meeting of Consultation of Ministers of Foreign Affairs, Final Act, Washington DC, July 22-26, 1966, operative paragraph 3

[21]Repertory of Practice of United Nations Organs, 1955-1966, 295

[22]Repertory of Practice of United Nations Organs, 1955-1966, 291

[23]Repertory of Practice of the UN Security Council, 1959-1963, 318

[24]I Anthony, Sanctions Applied by the European Union and the United Nations, SIPRI

2001, 203 at 210

[25]H Fox & C Wickremasinghe, UN Implementation of UN Economic Sanctions, 42 ICLQ

(1993), 945 at 952

[26]Fox & Wickremasinghe (1993), 953

[27]Council Regulation (EEC) No 1432/92 of 1 June 1992 prohibiting trade between the European Economic Community and the Republics of Serbia and Montenegro

[28]Council Regulation (EEC) No 990/93 of 26 April 1993 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia (Serbia and Montenegro)

[29]Common Position of 19 March 1998, 98/240/CFSP; Council Regulation (EC) No

1081/2000 of 22 May 2000 prohibiting the sale, supply and export to Burma/Myanmar of equipment which might be used for internal repression or terrorism, and freezing the funds of certain persons related to important governmental functions in that country; Common Position of 18 February 2002 concerning restrictive measures against Zimbabwe, 2002/145/

CFSP.

[30]Sixth comprehensive report on damage caused by the implementation of Security Council resolutions 748 (1992) and 883 (1993) during the period from 15 April 1992 to 31 December 1995, S/1996/717, 4 September 1996, 5, 7-8

[31]Damage Caused by the Implementation of Security Council Resolutions 748 (1992) and 883 (1993) during the Period from 15 April 1992 to 5 April 1999, S/2000/243

[32]UNYB 1998, 157; See also text of the report in S/1998/201

[33]Under Article 103, « In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail. »

[34]Report of the International Law Commission on the work of its Fifty-third session (2001), Yearbook of the UN International Law Commission, 2001, volume 2, 128

[35]YbILC 2001, 130

[36]The Agreement between Iran and the International Atomic Energy Agency for the application of safeguards in connection with the Treaty on the Non-Proliferation of Nuclear Weapons, INFCIRC/214, 13 December 1974

[37]YbILC 2001, 128