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: EU restrictive measures as international sanctions

Are what are commonly referred to as “international sanctions”, of which the Union’s restrictive measures are a part, sanctions in the legal sense of the term? Whether it is the UNSC acting under the San Francisco Charter, or the EU adopting unilateral measures on its own initiative, it must be noted that the wrongful conduct of the target of the measures is not characterized by a judge.[1]

The institutionalization of international law is traditionally understood in opposition to the vision of an international community composed first and foremost of sovereign and legally equal States, and therefore essentially anarchic. In this perspective, there is no organizing principle similar to what the State would be for the national legal order. Nor is there any total and ex ante centralization of juris dictio. It has thus been argued that the institutionalization of international law, illustrated by the multiplication of international organizations, contributes to its structuring.

However, the enthusiasm that generally surrounds the identification of institutional sanctions must be met with caution when it comes to transposing it mutatis mutandis to any violation of the law, apart from the statutory sanctions imposed by organizations on their members. Indeed, such a generalization would be based on the fiction that the organization would play a similar role in the international order to that of the domestic judge, who rules the law in complete independence.

As Louis Cavaré expresses it:

Let us add that in order to offer all the guarantees of justice, coercion must be decided and implemented by competent social bodies, among which it is desirable that a court be included. On the contrary, any coercion carried out by one subject of law against another, even for an illegal or harmful activity of the latter, cannot be qualified as a Sanction, but amounts to direct action, justice or private revenge.

The theoretical or implicit attribution of a quasi-judicial function to political bodies as the UNSC or the Council of the EU leads to a clear distortion between what is expected from the practice of these bodies and what they are actually able to provide, thus exposing their legitimacy to significant criticism.

These considerations imply for this Chapter that the term sanctions should be understood lato sensu, or even in the broadest possible sense. Insofar as they are all intended to respond to the conduct of a third party deemed to be contrary to international law, EU restrictive measures fall into the category of legal sanction mechanisms, according to Georges Seelie’s broad[2] and functional definition: “In a broad sense, we can call ‘sanctions’ all legal or material procedures designed to ensure the effectiveness of the law or the rule of law. Invalidity, damages, enforcement proceedings are sanctions”. It is in this sense that the term international sanctions will be used to refer to both centralized measures adopted by the UNSC and decentralized measures adopted by the European Union.

  • [1] For a comprehensive analysis of recent EU jurisprudence on restrictive measures targeting third countries: Ch. Beaucillon, ‘Opening up the horizon: The ECJ’s new take on country sanctions’, supra note 14. 2 ‘Anarchy* in the strict sense of the term does not imply that the international system is not a legal order: “Therefore, the international order can be described as anarchic on the condition that it is understood that it is still a legal order, but one in which the law is precisely, to use Grotius’ own expression, a ‘voluntary right’”, according to R.-J. Dupuy, ‘Communauté internationale et disparités de développement’, Collected Courses of the Hague Academy of international law, 1979, vol. 165, 52. 3 W. Friedmann, The Changing Structure of International Law (Stevens 1964), 88-95. 4 Of which Article 7 TEU is a topical example. 5 Some international institutions as the European Union provide for elaborate mechanisms, since they establish a European judge in charge of the juris dictio. Who can do more can do the less, and it is therefore logical to consider that “[t]he real and primary source of ‘sanction’ in the Community, if it is permitted to use this word, resides in the authority recognized by the Court of Justice”, L. Azoulai, ‘Les formes de la sanction juridictionnelle’, in I. Pingel (ed.), Les sanctions contre les Etats en droit communautaire (Pedone 2006), 18. 6 L. Cavaré, ‘Les sanctions dans le cadre de 1’ONU’, Collected courses of The Hague Academy of international law, 1952, vol. 80-1,197.
  • [2] 50 For Ch. Leben, the following definition is “the broadest possible” of the sanction: ‘Inter-State countermeasures and reactions to the illicit in international society’, (1982) French Yearbook of International Law 17. 2 51G. Seelie, ‘Le role et le risque des sanctions’, in A. Mestre, L. Le Fur, G. Seelie (eds), Les sanctions internationales, trois opinions de juristes (Pedone 1936), 41. In the same vein, with regard to the “sanctions” (sic) of the European Community, J. Verhoeven, ‘European Communities and International Sanctions’, (1984-85) Belgian Review of International Law 79. 3 52 Article 2 TEU.
 
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