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: Identifying the buffer zone in the law of sanctions in international law

The term sanctions - and, more generally, the very existence of a sanctioning system in international law - has been fuelling a debate challenging the very nature of international law as a legal system. In fact, although this theoretical debate will not be discussed here, it is worth highlighting that the term “sanctions” in international law is not clearly and unequivocally defined.[1]

Article 41 of the UN Charter, which represents the legal basis of what we commonly refer to as UN sanctions, does not use that term and generally makes reference to “measures not involving the use of armed force”, such as the “complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations”.

Interestingly, the term sanctions is also largely absent from the International Law Commission (ILC) ’s codification of the rules on international responsibility. The ILC’s approach, in fact, is based upon the idea that apart from UN sanctions, other States’ reactions to internationally wrongful acts should be regarded as countermeasures. The language of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (DARSIWA) is clear:

In the literature concerning countermeasures, reference is sometimes made to the application of a “sanction”, or to a “reaction” to a prior internationally wrongful act; historically the more usual terminology was that of “legitimate reprisals” or, more generally, measures of “self-protection” or “self-help”. The term “sanctions” has been used for measures taken in accordance with the constituent instrument of some international organisations, in particular under Chapter VII of the Charter of the United Nations - despite the fact that the Charter uses the term “measures”, not “sanctions”. The term “reprisals” is now no longer widely used in the present context, because of its association with the law of belligerent reprisals involving the use of force. At least since the Air Service Agreement arbitration, the term “countermeasures” has been preferred, and it has been adopted for the purposes of the present articles.11

The Draft Articles on Responsibility of International Organisations (DARIO) employ even clearer - and narrower - terminology on this issue, assuming that the term sanctions can only be associated with measures:

which an organisation may be entitled to adopt against its members according to its rules, [which] are per se lawful measures and cannot be assimilated to countermeasures.[2]

According to the ILC, therefore, when we use the term sanctions in relation to the activity of an international organisation, we must only refer to the internal sanctioning mechanism existing in the relationship between the organisation and its members.

It follows from the above that the term sanctions in international law is more of a scholarly creation than an autonomous legal concept. It is a term that is normally associated with any reaction to a violation of international law. Accordingly, the term sanctions is commonly associated with measures of constraint taken either by States or by international organisations in order to restore international legality, interrupted by the illicit conduct of an international legal entity.

In this context, it is not surprising that some scholars suggest labelling as sanctions all phenomena that fit into the above description. As a consequence, measures imposed by the UN Security Council under Chapter VII of the UN Charter, countermeasures and restrictive measures adopted by other international organisations -including the EU - would be equivalent and might be labelled as sanctions.

In contrast, some other scholars suggest that there are at least two arguments against this position, as a sharp distinction exists between UN sanctions and countermeasures. With regard to the first argument, it is said that UN sanctions and countermeasures fall under different categories as the former reflect the existence of a centralised organ in the international community competent for adopting sanctions, [3] while the latter reflect the classical form of private justice in international law. According to the second argument, UN sanctions aim to restore international peace and security when the trigger mechanism set forth in Article 39 of the UN Charter is activated, while countermeasures are adopted by States unilaterally to react to the violation of international obligations owed to them or to the whole international community.

The second argument fails to encompass the whole practice of the UN Security Council which, rather, seems to suggest that UN sanctions have a broader scope, namely, to ensure respect of certain international rules, particularly so-called core norms. Moreover, sanctions can also represent “a tool of law enforcement aimed at ensuring the cessation of wrongful conduct and/or reparation for any injury caused”.

The first argument, conversely, reveals the truth when it bases the permissibility of sanctions on the mandate received by the UN from the whole international community under the UN Charter. This does not mean that the possibility for States or regional organisations to adopt unilateral measures is prohibited or excluded, as there is nothing in the UN Charter that infers this. It is the UN Charter itself that envisages the possibility of making recourse to regional arrangements for enforcement purposes. According to Article 53, in fact, the Security Council can use regional organisations for enforcement action under its authority: this means that prior authorisation from the Security Council is required.

In this context, the sanctioning power of the EU, envisaged by Article 215 TFEU, seems to touch a nerve. To date, more than thirty unilateral sanctions adopted by the EU against third countries are in force, demonstrating the vitality of the instrument and the frequency of its use. Within them, a large amount of the sanctioning regime is “autonomous”, namely adopted outside - or in addition to -the framework of a UN Security Council resolution. In other words, the EU adopts sanctions without any authorisation from the UN.

  • [1] See, accordingly, T. Ruys, ‘Sanctions, retorsions and countermeasures: concepts and international legal framework’, in L. van den Herik (ed.), Research Handbook on UN Sanctions and International Law (Edward Elgar Publishing 2017) 24. See, also, A. Tzanakopoulos, ‘Sanctions Imposed Unilaterally by the European Union: Implications for the European Union’s International Responsibility’, in A.Z. Marossi, M.R. Bassett (eds), Economic Sanctions under International Law. Unilateralism, Multilateralism, Legitimacy, and Consequences (TMC Asser Press and Springer 2015) 146-147. According to White and Abass, this is one of the ‘least developed area of international law’: N.D. White, A. Abass, ‘Sanctions and Countermeasures’, in M. Evans (ed.), International Law, (OUP 2014) 537. 2 UN Charter, Article 41. 3 International Law Commission (ILC), Draft articles on responsibility of States for internationally wrongful acts, with commentaries (ILC Yearbook 2001) Vol. II Part Two (hereafter DARSIWA); Draft articles on responsibility of international organizations (ILC Yearbook 2011) Vol. II Part Two (hereafter DARIO).
  • [2] " See DARSIWA, Commentary to Article 21, para. 3. 2 See DARIO, Commentary to Article 22, para. 3. 3 15 See F. Dopagne, ‘Sanctions and countermeasures by international organizations. Diverging lessons from the idea of autonomy’, in R. Collins, N.D. White (eds), International Organizations and the Idea of Autonomy. Institutional Independence in the International Legal Order (Routledge 2011), 267 ff. For a critique on this narrow definition: Y. Kerbrat, ‘Sanctions et Contre-Mesures: Risques de Confusion dans les Articles de la CDI sur la Responsabilité des Organisations Internationales’, (2013) 46 Revue belge de droit international 103. 4 See A. Tzanakopoulos (n 8) 146 who affirms that ‘sanctions’ ‘is not a term of art in international law.’ 5 A. Pellet, A. Miron, ‘Sanctions’, Max Planck Encyclopedia of Public International Law (OUP, 2013) para. 4. 6 P.-M. Dupuy, ‘Observations sur la pratique récente des “sanctions” de 1’illicite’ (1983) 87 Revue générale de droit international public 505. 7 ''See, again, Tzanakopoulos, supra note 8, 147. See, also and consistently, J. Salmon, Dictionnaire de droit international public (Bruylant 2001) 1017.
  • [3] Pellet and Miron, supra note 15, para. 6. 2 D. Alland, Justice privée et ordre juridique international: étude théorique des contre - mesures en droit international public (Pedone 1994) 24-26. 3 See, again, Pellet and Miron, supra note 15, para. 7 and White, supra note 7 and 21. 4 V. Gowlland-Debbas, ‘UN Sanctions and International Law: An Overview’, in V. Gowl-land-Debbas (ed.), United Nations Sanctions and International Law (Brill 2001) 1. 5 M. Dawidowicz, Third-Party Countermeasures in International Law (CUP 2017) 24. 6 25 See Ruys, supra note 8, 41. See, also, J. Brohmer, G. Ress, C. Walter, 'Article 53’, in B. Sim-ma et al. (eds), The Charter of the United Nations (OUP Oxford 2012) 1478. 7 See A. Orakelashvili, ‘Sanctions and Fundamental Rights of States: The Case of EU Sanctions against Iran and Syria’, in M. Happold, P. Eden (eds), Economic Sanctions and International Law (Hart Publishing 2016) 32-33.
 
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