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: Entering the Buffer Zone between Legality and Illegality: EU Autonomous Sanctions under International Law

Andrea Spagnolo*

ABSTRACT: The present Chapter offers an international law perspective on the sanctioning power of the EU, analysing the autonomous sanctions’ regime. In particular, the Chapter tries to answer to the main research question that arises from an overview ofEU autonomous sanctions: their legality under international law. Building on the current status of international law concerning the law of sanctions, the Chapter develops the argument that to defend the legality of autonomous sanctions one could rely on the theory of third-party countermeasures, which, however, is not firmly established in international law.

KEYWORDS: EU autonomous sanctions - countermeasures - non-intervention - economic measures — non-injured parties - third-party countermeasures - WTO

SUMMARY: 11.1. Introduction: research question and structure of the chapter. - 11.2. Identifying the buffer zone in the law of sanctions in international law. - 11.3. An introduction to EU restrictive measures (sanctions). - 11.4. Exploring the buffer zone. - 11.5.

EU restrictive measures as third-party countermeasures adopted by non-injured entities. -11.6. Concluding remarks.

: Introduction: research question and structure of the chapter

In a recent article, the consistency with international law of sanctions adopted by States or regional organisations, such as the EU, irrespective of any United Nations (UN) Security Council Resolution, was defined as an “unfinished business”.[1]

Diverging views on the legality of these tools are still the subject of heated debate between the most powerfill States that adopt sanctions to induce compliance with international rules, and the targeted countries, which believe that such measures have only political purposes. It is not surprising that Iran and Venezuela recently challenged the United States’ unilateral and autonomous sanctions respectively before the International Court of Justice (ICJ)[2] and the World Trade Organisation (WTO).4

There are no pending cases on the legality of EU sanctions1 and EU Courts have only had the opportunity to clarify the perimeter of action of the EU from the perspective of human rights protection; however, many doubts remain on the legality of EU autonomous sanctions from the point of view of international law. Indeed, as such measures inevitably affect the relationship between the EU and non-member countries, this begs the question as to which legal regime is applicable and, accordingly, which limits it imposes. In particular, one may wonder whether and to what extent international law is applicable to this relationship. A country affected by EU sanctions, in fact, might reasonably raise a similar question to challenge their legitimacy or to react to what it deems to be a wrongful act.

In this perspective, this Chapter aims to offer a purely international law perspective on EU autonomous sanctions, with a view to clarifying and analysing the conditions under which such measures may be considered legal or illegal.

For this purpose, the Chapter is structured as follows. Firstly, it will be explained why EU autonomous sanctions represent a buffer zone between legality and illegality in international law. In particular, it will be demonstrated that the “law of sanctions’’ in international law presents some grey areas in which we find sanctions adopted by the EU autonomously. Secondly, the practice of EU autonomous sanctions will be illustrated. It will then be shown that EU sanctioning regimes might either be lawful measures under international law or unlawful measures under certain special regimes (in particular, the principle of non-intervention and the WTO regime). Lastly, the argument that the EU might adopt third party countermeasures under general international law will be explored.

  • [1] * Assistant Professor of International Law, Department of Law, University of Turin. 2 D. Hovell, ‘Unfinished Business of International Law: The Questionable Legality of Autonomous Sanctions’ (2019) 113 American Journal of International Law Unbound 140, 140. 3 See J. Farrall, ‘Sanctions’, in Jacob Katz Cogan, Ian Hurd, Ian Johnstone (eds.), The Oxford 4 Handbook of International Organizations (OUP 2016) 617.
  • [2] Certain Iranian Assets (Islamic Republic of Iran v. United States of America), Application Instituting Proceedings, filed in the Court Registry on 14 June 2016. 4 United States - Measures Relating to the Trade in Goods and Services, WT/DS574/2 of 15 March 2019. 5 In the past, Argentina challenged the sanctions imposed by European Community Member States before the GATT. See infra, para. 5. 2 See the Chapter authored by N. Lazzerini, in this book. 3 The debate has been polarised into two well-known positions. Austin, on the one hand, saw sanctions as a tool in the hand of the sovereign to enforce the law. Therefore, considering the ab
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