ASSESSING THE EU’S NORMATIVE POWER CLAIM
EU non-‐proliferation sanctions against Iran
MA Thesis in European Studies Graduate School of Humanities
University of Amsterdam Author: Anne Visser Student number: 10082263 Supervisor: Jamal Shahin Second reader: Menno Spiering
ABSTRACT
The aim of this thesis is to conduct a critical analysis on how the EU’s imposition of sanctions against countries beyond its own borders undermines the very reputation of the EU as a normative power in international relations. Existing conceptions of the notion Normative Power Europe do not seem to count in the field of sanctions, which fall under the domain of the least normative policy field of the CFSP. To uphold the claim of the EU’s normative power in the multilateral system, one must not only look at what the EU says, but as well what it subsequently does. In order to shed light on what the EU does in the field of sanctions, a case study about EU non-‐proliferation sanctions against Iran has been conducted to show that the EU has failed to live up to the normative power claim.
KEY WORDS: normative power, EU sanctions, CFSP, multilateralism, non-‐proliferation, international relations
TABLE OF CONTENTS
INTRODUCTION 4
1. THE IMPOSITION OF HARD MEASURES BY A SOFT POWER 6
The concept of hard power 7
The concept of soft power 8
Combining the two concepts 9
The EU’s normative power reputation 10
2. HOW EU SANCTIONS POLICY WORKS 13
Imposing Restrictive Measures from UN level to EU level 14
Legal basis for restrictive measures 16
Pursued objectives of EU sanctions 17
The different types of sanctions 19
Involved EU-‐institutions 20
3. THE EFFECTIVENESS AND IMPACT OF UN/EU SANCTIONS 22
Historical background 23
Humanitarian impact targeted sanctions 26
Effectiveness targeted sanctions 30
The EU’s interest 32
4. CASE STUDY: RESTRICTIVE MEASURES ON IRAN 33
The Kadi case 33
EU sanctions on Iran: containing Iran’s nuclear program 36
Utility of Iran sanctions 40
Dual-‐track approach 42
CONCLUSION 43
REFERENCES 45
INTRODUCTION
Over the past two decades, sanctions have become one of the most favourite policy instruments the EU applies in its foreign policy in order to deal with security challenges. Due to the EU’s lack of a homogeneous military capacity, sanctions are the only coercive instrument the EU has at its disposal to react on security threats. In an era marked by the latter, the use of sanctions by both the UN and the EU has been extensively increased throughout recent history. In dealing with any kind of threat, each actor in international relations decides upon a response by defining their own strategies, actions and preferred image. The EU is known to choose for a normative approach in finding adequate responses to security challenges. To question the legitimacy of the EU’s normative approach in relation to the imposition of EU sanctions, the theoretical framework of this thesis evolves around the concept of ‘Normative Power Europe’ (NPE). The concept of NPE has been mainly developed by Ian Manners. In his theories it is argued that the EU exists as being different to pre-‐existing political forms and that the EU’s ‘different’ character in contrast to other international actors, predisposes it to act in a normative way. Core values like the protection of human rights, the promotion of democracy and a genuine commitment to the international multilateral system; constitute the basis for the EU’s normative power. Essential to the argument of this thesis is the analysis of what the EU says and subsequently does in international relations. To uphold the claim of the EU’s normative power requires more than just mentioning normative core values in treaties, constitutions and speeches. The actions and behaviour of the EU -‐what the EU does-‐ form an essential part of the analysis in stead. To closely examine EU decisions and actions in a specific field of interest, the credibility and legitimacy of the normative power claim can be assessed more easily. In the case of this thesis, the examination focuses on the EU’s imposition of sanctions and to emphasize therein the contradiction of the EU as being depicted as normative on the one hand, but conducting hard measures -‐in the form of sanctioning-‐ on the other. It will be argued that the credibility of an organization that depicts itself as normative is in fact jeopardized in particular fields of policy, especially in the least normative policy of imposing sanctions.
The aim of the thesis is to have a critical observation on how the EU as a global and normative actor uses sanctions as an important policy tool to impose and maintain power on countries beyond its own borders and how it therefore jeopardizes its normative power reputation. The main question of this thesis is formulated therefore accordingly: To what extent can the imposition of EU sanctions be considered ‘normative’ in line with the EU’s
reputation of being a normative power in international relations? In answering the research question, the thesis has been divided into four chapters. The first chapter contains the theoretical framework of the thesis, namely; the theory of NPE as developed by Manners. Before analysing the normative power reputation of the EU, first of all the concepts of soft and hard power will be discussed briefly, since the notion of NPE is considered closely linked to the concept of soft power. In further analysing the imposition of EU sanctions in relation to the EU’s normative reputation, chapter two will specifically be aimed at explaining EU sanctions in detail. In order to understand why sanctions fall under the category of hard power measures, it is considered necessary to thoroughly explain how sanctions work. Therefore, the second chapter aims at explaining the transition from UN resolutions to EU regulations, the legal basis for sanctions, the pursued objectives and the involved institutions in the decision-‐making process. The third chapter will discuss the impact and effectiveness of sanctions. It will become clear that the impact of sanctions turns out to have negative consequences for the inhabitant populations and that the effectiveness of sanctions remains a debatable matter. These controversial outcomes as a result of imposing sanctions and how the EU subsequently deals with those outcomes, enforce the misperception of NPE. The fourth chapter will discuss a case study about EU sanctions on Iran to provide for an in-‐depth analysis that will bring together the content and point of views of the previous chapters. This chapter can be seen as an evaluation of a specific EU action in order to shed light on the credibility and legitimacy of the EU’s normative power reputation. The case study will emphasize that the EU’s use of sanctions on Iran can be considered normative in the very least. The conclusion will sum up the most important findings and will answer the research question as formulated in this introduction.
The used research methodology has been the method of qualitative research. Due to the fact that the use of EU sanctions only recently started to gain attention, relatively little statistical research has been conducted on the topic. For the content of this thesis, relevant data has therefore been gathered from academic literature, scientific journals, news articles and relevant websites. Information from the official websites of the European Council, the United Nations Security Council (UNSC), the European External Action Service (EEAS) and the International Atomic Energy Agency (IAEA) has also been used to support the argument of this thesis. For inspiration and clarification purposes, several interviews have as well been conducted with officials from the European Council, the European Commission and the EEAS.
1. THE IMPOSITION OF HARD MEASURES BY A SOFT POWER
The increasing attention given to EU sanctions as being a fundamental part of the Common Foreign and Security Policy seems to correspond to recent developments of the EU as a security provider along the lines of the 2003 European Security Strategy.1 Whilst in theories on the external relations of the EU, the EU is mainly portrayed as a normative power. The question that forms the backbone of this thesis is how an actor like the EU can promote itself as both a security provider and a normative power driven by morals rather than hard actions. These two characteristics seem to be incompatible. Against the background of this issue, this chapter takes a closer look at the EU’s sanctions policy as a relatively harsh policy tool. Even though the EU principally gives little importance to exercise a hard measure like military action, the choice of employing sanctions cannot be considered a soft one instead. As this thesis will point out later on, the use of sanctions has a tremendous -‐at some times fatal-‐ impact on the targeted.2 Negative consequences of sanctions do not alone occur at the level of the targeted, but as well at the level of the sender. It can thus be argued that each specific use of sanctions would involve a controversial decision by the EU that even may be costly for some of the member states.3 However, compared to other actors in the international system it seems that the EU pursues a different foreign policy agenda when it comes to imposing sanctions. Greater emphasis is given to the justification of sanctions to protect human rights.4 From this perspective the EU’s foreign policy agenda may be promoted as normative in ideological terms, but it remains to be questioned whether the effects and impact of sanctions are still to be considered normative once they are being put in force. In order to achieve an EU objective to stabilize certain situations in respect to human rights, human rights themselves are frequently breached to obtain these objectives.
Before analysing the EU’s reputation as a normative power, the first part of this chapter will first analyse what it means to be either a hard or a soft power. Distinguishing the difference between the two is essential, since the research question of this thesis involves the use of hard measures by an actor who primarily profiles itself as a soft power rather than a hard power; namely the EU. In the light of the soft/hard power background, the second part of this chapter will further analyse the EU’s normative power reputation. It will become clear that the notion of normative power holds close ties with the notion of soft
1 Kreutz, J. (2005) Hard Measures by a Soft Power? Sanctions policy of the European Union 1981-‐2004. (Bonn International Center for Conversion) Paper 45, p. 3
2 Ibid, p. 4 3 Ibid 4 Ibid
power, but that the assumption of normative power started to develop as a new kind of power to label the EU. The chapter will end with some conclusive remarks.
The concept of hard power
This part will briefly describe the concept of hard power, since the argument of this thesis evolves more around the idea of soft power. Definitions of both soft and hard power as explanatory tools for describing a country’s regime have risen significantly the recent years. Definitions of hard power are often based on realist point of views and tend to emphasize the idea of nations using material resources to influence other nations.5 According to the influential contemporary realist Mearsheimer, the notion of power is based on particular material capabilities that a state possesses to determine a state’s military capacity.6 In the same lines but further back in time, a classic theory of hard power has been thoroughly put forward in Niccolò Machiavelli’s handbook for autocrats “The Prince”, wherein the Italian author states the following:
“The principal foundation of all states are good laws and good arms.”7
In his work he emphasizes that the strength of a state derives from strategies and resources in order to effectively impose force and coercion.8 Machiavelli’s arguments correspond with the hard power politics of Realpolitik, but his vision -‐unlike most realist visions-‐ entails a much broader idea of exercising power by also taking into account the importance of soft power.9 The process of influencing does in fact include a number of softer elements. Employing soft power strategies is essential to secure and maintain the loyalty of a population over time and is therefore considered essential to build a solid political sphere of influence to keep foreign invaders out of a country’s territory and to secure a harmonious co-‐existence.10 Even though the ideas in the manifestation of “The Prince” may be primarily based on Italian domestic governance during the start of the 16th century, nowadays scholars can also draw lessons from these ideas as they have a strong impact on current international politics.
5 Gallarotti, G. M. (2011) Soft power: what it is, why it’s important, and the conditions under which it can be
effectively used (Division II Faculty Publications) Paper 57, p. 6
6 Ibid
7 http://publicdiplomacy.wikia.com/wiki/Hard_Power#cite_note-‐2
8 Gallarotti, G. M. (2010) Cosmopolitan Power in International Relations: a synthesis of realism, neoliberalism, and
constructivism (Cambridge University Press) p. 108
9 Ibid 10 Ibid
The concept of soft power
Parallel ideas, as expressed in the field of constructivism, have arisen to challenge the beliefs of realist scholars by expressing faith in the use of soft power. During the course of history, world politics have evolved into a softer world due to historical events that have emphasized the importance of soft power relative to hard power.11 The rapidly changing nature of international politics have enabled these counter movements to give greater attention to the use of soft power as an alternative means to an end. Throughout literature several definitions have been put forward to describe the phenomena of soft power. The American political scientist Joseph Nye, who believes that soft power should not be considered a weakness but a substantial element of a country’s national strategy, has conceptualized a distinct notion of soft power. Nye describes soft power according the following definition:
“Soft power is the ability to get what you want through attraction rather than coercion or payments. It arises from the attractiveness of a country’s culture, political ideas, and policies.”12
Once a country’s policies are seen as legitimate in the eyes of others, a country’s soft power is even more intensified.13 The concepts of Nye are based on the effects of seduction, since seduction is always more effective than coercion by attracting others to your side.14 Soft power elements, like democracy and human rights can be seen as deeply seductive and therefore be considered as favourable policy tools. Simply put in behavioural terms: soft power is the same as attractive power and for this reason, soft power resources require assets that achieve such attraction.15 Machiavelli -‐among others-‐ understood this idea by emphasising the importance of soft power strategies to maintain the loyalty of the people by developing a solid political sphere.
The effectiveness of both soft and hard power depends, however, for a great deal on the accessibility of power resources. Soft power approaches seem more accessible than hard power methods, as hard power methods require a certain set of material capacities. Larger states like the US and Russia with higher national incomes are able to finance armed forces and exercise economic pressure on other states.16 This is not the case with the
11 Gallarotti, G. M. (2011) Soft power: what it is, why it’s important, and the conditions under which it can be
effectively used (Division II Faculty Publications) Paper 57, p. 33
12 Nye, J. S. (2004) Soft power: the means to success in world politics (PublicAffairs) p. 10 13 Ibid
14 Ibid 15 Ibid
16 Wagner, J. (2014) The effectiveness of soft and hard power in contemporary international relations (E-‐ international relations students) Cited from Nye (2004, p. 111-‐112)
financially weaker nation states. Throughout history the weaker states have often joined together to form a balance against the power of stronger states.17 In some cases the weaker states collaborate with the stronger states by bandwagoning on the stronger state’s capacities and influence to compensate for their own shortcoming capacities. Opting for hard power seems in this respect a matter of a state’s financial and tangible capacities. That might leave the use of soft power as an alternative choice for the not so powerful states, just to be able for them to also exercise and promote a certain form of power besides hard power. Not only resources, but as well time plays a crucial role in the effectiveness of soft or hard power. Generating hard power is less time-‐consuming than generating soft power, since soft power takes relatively long to build as its abstract and intangible resources take a long period of time to develop.18 The same counts for the effects of soft and hard power once they are being put in force. Hard power tends to have an immediate impact that results in a short-‐duration outcome, whilst soft power focuses on long-‐term effects by exercising attraction and persuasion practices.19 Obviously the latter is more time-‐ consuming. Another interpretation can be found in Gallarotti’s theory, describing the difference between the two powers, wherein he states that hard power is marked by the one state compelling the other state to do what the latter originally would not do.20 In contrast, soft power sets certain conditions for other nations to voluntarily do what soft power nations would like them to do.21 Forcing a set of rules upon another nation is less time consuming than providing a nation with the necessary, “voluntary” space in order for the targeted states to apply these rules efficiently. From this perspective, hard power brings along greater conflict of interests in comparison to soft power.22
Combining the two concepts
In all cases the idealistic solution of exercising power would be a balanced combination of both soft and hard power. The two are neither perfect; each kind of power has its limitations. Hard power carries obvious disadvantages when it is exercised in an aggressive style by using it through threatening, invasion, imperialism and broad economic sanctions.23 But it is not to say that soft power is by means of alternative a better or more legitimate
17 Nye, J. S. (2004) Soft power: the means to success in world politics (PublicAffairs) p. 26
18 Wagner, J. (2014) The effectiveness of soft and hard power in contemporary international relations (E-‐ international relations students) E-‐platform
19 Ibid
20 Gallarotti, G. M. (2011) Soft power: what it is, why it’s important, and the conditions under which it can be effectively used (Division II Faculty Publications) Paper 57, p. 11
21 Ibid 22 Ibid 23 Ibid, p. 25
policy framework. Sacrificing hard power by enhancing soft power could be equally costly.24 Colin Gray25 takes it a step further and warns against expecting too much from soft power. He focuses on how to think about the relevance of military power as a policy instrument in relation to soft power, the latter serving as a substitute.26 In his work, Gray acknowledges that military force is not always the right tool to employ. Even when it is considered the right choice, there are still no guarantees whether it will be used efficiently with the intended effects. But there are conflicts that cannot be resolved politically, steered by diplomacy or any other non-‐military means, nor they can be settled by some kind of compromise.27 In other words: warfare sometimes is a necessary choice as a measure against non-‐acceptable behaviour by hostile policies.28 Military force is known for its challenging and controversial features, but that does not mean that soft power should be the one and only policy instrument of choice. In his work he argues that it is wrong to think of military initiatives as a policy failure, since wiser policy should have succeeded in preventing a conflict. Unfortunately ‘wise policy’ is also able to fail, as foreign political leaders do not always accept to be deterred by others.29 Trying to achieve political goals through wiser policy is of course at all times the most favourable option, but on the other hand -‐according to Gray-‐ it is also necessary that interpretations of those principles do not destroy a government’s ability to undertake hard measures like military initiatives.
Alternative definitions have been directed towards the idea of ‘smart’ power, defined as the effective combination of hard and soft power.30 It seems, however, that the concept of smart power itself is too ambiguous and is -‐for this reason-‐ lacking academic interest, even though there exists a general agreement that this is where Europe’s strength lies.31 A more thoroughly developed idea in defining the EU’s power in international relations is the theory of normative power. The next part will therefore explore the EU’s normative power reputation.
The EU’s normative power reputation
Literature on the EU as a soft and normative power brings along a wide repertoire of different opinions. Advocates depict the EU as a global actor that promotes a certain series
24 Ibid
25 Professor of International Politics and Strategic Studies at the University of Reading, Berkshire
26 Gray, C. S. (2011) Hard power and soft power: The utility of military force as an instrument of policy in the 21st
century (Strategic Studies Institute) p. 3
27 Ibid, p. 47 28 Ibid 29 Ibid, p. 48
30 Cross, M. (2011) Europe as a Smart Power: The Impact of the European External Action Service (University of Southern California) p. 3
of norms and principles.32 Those constructivist principles essentially include sustainable peace, freedom, democracy, human rights, rule of law, equality, social solidarity, sustainable development and good governance.33 Opponents downplay the importance of norms and values by defining them as second-‐order concerns in their neo-‐realist theories.34 In order to have a critical review on the EU’s reputation as a normative actor in international relations and especially in the security field, the main argumentations will be discussed. The aim of this section is to highlight the contradiction between the EU’s promotion of being a non-‐ military, normative actor in contrast to the hard measures they conduct.
An advocate of the EU’s normative power who has been most influential, is Ian Manners. The work of Manners suggests that the EU should apply its own normative principles to the security challenge if sustainable peace is to be achieved.35 Manners acknowledges the fact that the increasing demand of foreign policy realism rather than EU normative power has become the most apparent factor in EU external affairs, which mostly fall under the least normative policy of the CFSP.36 The logic within the CFSP of prioritizing security matters over human security does indeed challenge the normative character of the EU. Manners suggests an interesting point of view by asking the question what a normative EU should do about security challenges. The answer to this question is shaped by what a security challenge is considered to be by determining the cause of a particular challenge.37 He mentions the example of the ‘total war on terror’; a war marked by many flaws because it has failed to seek and tackle the roots of terror.38 In this respect, actions initiated to defeat the war on terror seem to be focused at the symptoms rather than the causes of terrorism. In a way, as explained in the previous part, mainly the financially stronger states like the US, China and Russia are combatting the symptoms of violent conflicts by opting for hard measures with an immediate impact and a low degree of time-‐consuming effects. Stronger states might tend to overlook the root causes of violent conflicts (aside whether this is a conscious or unconscious decision), while the weaker states might focus their efforts more on the causes of a certain conflict since they often do not have the material capacity to fight the symptoms.
32 Brummer, K. (2009) Imposing sanctions: The Not So ‘Normative Power Europe’ (European Foreign Affairs Review) 14:2, p. 191
33 Manners, I. (2008) The normative ethics of the European Union (International Affairs) 84:1, p. 46 34 Brummer, K. (2009) Imposing sanctions: The Not So ‘Normative Power Europe’ (European Foreign Affairs Review) 14:2, p. 191
35 Manners, I. (2006) European Union ‘Normative Power’ and the Security Challenge (European Security) 15:4, p. 405
36 Ibid, p. 410 37 Ibid, p. 413 38 Ibid
For the EU, on the contrary, dealing with violent conflicts through hard measures like military action has hardly ever been a realistic option. Trying to prevent conflicts from breaking out in the first place has been a much more promising activity for the EU.39 After all, EU-‐security has always been guaranteed by NATO and US nuclear capacities, West-‐ European countries were enabled to devote more time and resources in welfare than warfare.40 That does not mean the EU should be considered a soft power by definition, nor a weak power, but it is difficult in turn to define the EU’s abstract ‘actorness’ in comparison to the clear-‐cut characteristics of either strong or weak states. The problem long recognised in EU-‐studies is that conventional political science and international relations studies are build upon the idea that basic actors in world politics are states and that meaningful interaction takes place between different states.41 So the expectation within the system of international relations is that actors be state-‐like. Obviously, the EU is not a state, but a collection of states. In defining and evaluating the EU in general terms of success or failure, there will always be a danger that external projections of the EU will be measured against these conventional approaches.42 For this reason the notion of ‘normative power’ has been introduced, in part to move away from the question whether the EU as such should be seen as an actor in international politics or not.43
In their work, Manners and Diez underline the idea that normative power is not a form of power that solely relies on military force or economic incentives, but most of all on exerting influence by norms themselves.44 In this respect the EU is a normative power, since it changes the norms and standards of world politics away from the bounded expectations of state-‐centricity.45 The argument that the EU is in fact a normative power is based on a series of normative principles the EU seeks to promote. These principles -‐as mentioned at the start of this section-‐ are generally acknowledged by the UN system to be universally applicable. As Manners continues to develop his analysis, he states that normative power in general and in particular the EU’s normative power, is only sustainable if it is felt to be legitimate by those who practise and experience it.46 The EU should live by example; be
39 Smith, K. A. (2008) European Union Foreign Policy: In a changing world (Polity Press) p. 169
40 Hyde-‐Price, A. (2006) ‘Normative’ power Europe: a realist critique (Journal of European Public Policy) 13:2, p. 225
41 Rosamond, B. (2005) Conceptualizing the EU Model of Governance in World Politics (The University of Warwick) p. 4
42 Ibid, p. 5
43 Berenskoetter, F. and Williams, M. J. (2007) Power in World Politics (Routledge) chapter written by Diez and Manners (2007) Reflecting on normative power Europe, p. 175
44 Ibid
45 Manners, I. (2008) The normative ethics of the European Union (International Affairs) 84:1, p. 45 46 Ibid, p. 46
reasonable; and do least harm.47 On paper, these values are easily noted. To exercise them in practice is a different story. According to Helene Sjursen, it is problematic to imply -‐as such conceptualizations do-‐ that the EU must be seen as a ‘force of good’ without establishing criteria that make it possible to either confirm or reject a normative power claim.48 It seems difficult from this perspective to define the EU as a normative force in international relations.
The element of legitimacy, nevertheless, by those who practise and experience normative power as described by Manners, is essential in answering the research question of this thesis. The credibility of an organization that depicts itself as a normative power is jeopardized in particular fields of policy, especially in the least normative policy of the CFSP. As a fundamental part of the CFSP, this thesis will further analyse the sanctions policy of the EU by starting with explaining in chapter two how EU sanctions policy works and to subsequently discuss in chapter three the impact and effectiveness of sanctions. Chapter four will discuss sanctions on Iran as a case study before summing up with the final conclusion.
2. HOW EU SANCTIONS POLICY WORKS
The aim of this chapter is not to give an overview of the EU’s history on sanctions. In stead, it focuses on how sanctions have increasingly become an essential part of the EU’s external policy since 2001. As previously pointed out, the use of EU sanctions over the last two decades as an important policy tool has increased significantly.49 Legally, the European Union imposes restrictive measures within the framework of the Common Foreign and Security Policy (CFSP). Article 30 and 31 of the Treaty of Europe (TEU) regulate this process.50 The TEU has included the use of sanctions as one of the possible policy instruments the EU has at its disposal to achieve CFSP goals. Using restrictive measures in the context of CFSP goals can have many different objectives. The objective that almost all sanctions do have in common is that they are imposed with the intended effect of changing the behavior of the targeted, but restrictive measures should not be considered the only policy tool that can change the behavior of targets. The aspect of looking at the broader system of policy
47 Ibid
48 Sjursen, H. (2006) The EU as a ‘normative’ power: how can this be? (Journal of European Public Policy) 13:2, p. 235
49 Gebert, K. (2013) Shooting in the dark? EU sanctions policies, Policy Brief (European Council on Foreign Relations: ecfr.eu) Policy Brief, p. 1
50 Giumelli,F. (2013) How EU Sanctions Work: A New Narrative, Chaillot Paper no. 129 (European Union Institute for Security Studies) p. 9
instruments is essential when analyzing restrictive measures.51 Sanctions should be used as part of an integrated policy framework within the EU’s overall foreign policy.52 It goes without saying that the EU has more policy instruments at its disposal than only sanctions, but the EU’s use of sanctions does reflect a different kind of power than their proclaimed normative power.
This chapter investigates the formal procedures behind the EU’s imposition of sanctions. The first part will explain the legal basis for restrictive measures. It will become clear that the focus will not only be limited to the imposition of sanctions within the CFSP framework, since the EU imposes as well restrictive measures that were decided upon by the United Nations Security Council (UNSC). Even though the EU and the UN both conduct their separate procedures on sanctioning individuals and entities, the imposition of EU sanctions must be seen in the context of UN sanctions.53
Imposing Restrictive Measures from UN level to EU level
Restrictive measures decided upon by the United Nations Security Council form an essential part of EU sanctions policy. In all cases UNSC resolutions dealing with restrictive measures are transformed into EU sanctions.54 To understand how EU sanctions policy works, it is important to understand how the multilevel process works of translating UNSC sanctions to EU sanctions. According to Clara, the UN has a mandate to preserve international peace and stability. While as an individual state, the EU has the same capacity to impose sanctions, as this capacity derives from its member states.55 The EU itself is not a member of the United Nations, while the EU member states are. As an international organization as such, the EU is therefore not obliged to give effect to UNSC resolutions, unlike its members who are also members of the UN.56 Any legal effect in the European legal system of UNSC resolutions derives from the transfer of competence from its member states (UN) to the European Union.57 To describe the multilevel system on sanctions policy from the UN to the EU more specifically; two different options must be described. The first option is that the Sanctions Committee within the Security Council places a certain person or entity on the list (listing decision). It is then the duty of the lower levels -‐i.e. states/European Union-‐ to make sure
51 Ibid, p. 18
52 EEAS explanation on Sanctions: http://eeas.europa.eu/cfsp/sanctions/index_en.htm
53 Clara, P. (2005) Where and why does the EU impose sanctions? (Politique Européenne) 3:17, p. 85 54 Technical briefing to the Dutch Ministry of Foreign Affairs about the effects of sanctions
55 Clara, P. (2005) Where and why does the EU impose sanctions? (Politique Européenne) 3:17, p. 84
56 Mariani, P. (2009) The Implementation of UN Security Council Resolutions Imposing Economic Sanctions in the
EU/EC Legal System: Interpillar Issues and Judicial Review (Bocconi University -‐ Department of Law) p. 2
that the measures in question are correctly implemented in relation to all listed persons and entities. This procedure is also known as automatic listing at the lower levels.58 The second option is that the Security Council defines certain groups, persons and entities that are subject to restrictive measures in a general way. It is then the duty of the lower levels to ensure that all groups, persons and entities under that definition are listed correspondently. The latter can be defined as autonomous listing by the lower levels.59
Obviously, the EU can be seen as submissive to the UNSC when it comes to decision-‐ making procedures in the field of restrictive measures. If the binding character of the UNSC is to be taken seriously, the lower levels have no choice but to implement UNSC resolutions automatically or autonomously; in both cases under the supervision of the UNSC.60 It thus can be said that the implementation of UNSC sanctions forms an essential part of the EU member states’ external policies. It can, however, occur that the UNSC is unable (due to political reasons) to establish resolutions to impose sanctions, in which case the EU imposes autonomous sanctions.61 In this regard EU sanctions are only unilaterally put into force when, for example, the UN fails to act when needed62. The EU’s imposition of sanctions should therefore be considered as complementary to UNSC resolutions. Yet when looking at the statistics of the EU’s restrictive measures in force, it turns out that the use of autonomous EU sanctions has been increasing significantly during the past decade in comparison to the use of UNSC sanctions. The figure below shows that -‐although EU autonomous action may be considered as complementary-‐ the EU has imposed almost as many restrictive measures on targets as the UN has during the last decade.63
Figure 1: Sanctions in the EU area, 1980 – 2003
58 Bothe, M. (2008) Security Council’s targeted sanctions against presumed terrorists: The need to comply with
human rights standards (Journal of International Criminal Justice) p. 545
59 Ibid 60 Ibid
61 Clara, P. (2005) Where and why does the EU impose sanctions? (Politique Européenne) 3:17, p. 85 62 Ibid
Legal basis for restrictive measures
This part will focus on the legal basis for UNSC restrictive measures and CFSP restrictive measures. The legal basis for UNSC restrictive measures can be found in chapter VII, article 41 of the UN Charter:
“The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and may call upon Member States of the United Nations to apply such measures. These may include 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.”
Remarkable here is that article 42 of the UN Charter continues with the argumentation that if the measures as mentioned in article 41 prove to be inadequate, the Security Council:
“may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security. Such action may include demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United Nations.”64
When reading article 42, it becomes clear that the imposition of sanctions can be seen as the first type of action the multilateral system undertakes in crisis situations. These articles can be interpreted in a way that when sanctions do not seem to work; more thorough, perhaps even more physical forms of intervention may be required and legally justified.
When looking at EU sanctions, it is important to note that the EU imposes sanctions in line with the goals of the CFSP (as set out in article 21 of the TEU)65. Mainly three internal EU documents are relevant to the EU’s decision-‐making process.66 The first document contains the “Basic Principles on the use of Restrictive Measures”. This document was agreed upon by the Council on 7 June 2004 to develop a policy framework for a more effective use of sanctions. It essentially sets out principles for the Council on how and when to impose sanctions. Six months earlier, the Council agreed upon the “Guidelines on implementation and evaluation of restrictive measures in the framework of the EU Common Foreign and Security Policy” on 8 December 2003 (updated in 2005, 2009 and 2012). The Guidelines are meant to provide technical guidance to draft, monitor and guide CFSP related sanctions. Finally, in 2008, the Council approved the “EU Best Practices for the Effective
64 Charter of the United Nations, chapter VII: Action with Respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression, article 41 and 42
65 Technical briefing to the Dutch Ministry of Foreign Affairs about the effects of sanctions
66 European Commission (2008) Restrictive Measures, < http://eeas.europa.eu/cfsp/sanctions/index_en.htm> p. 6
