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The Legalisation of European Union Foreign Policy and the Use of Sanctions

  • Paul James CARDWELL (a1)
Abstract

This article explores the legalisation of the Common Foreign and Security Policy (CFSP) of the European Union (EU) and its increasing use of sanctions. It argues that the breadth and depth of the numerous sanctions regimes in place shows that EU foreign policy is not merely an aspiration but produces law and legal processes which share similarities with those in the rest of the EU’s legal order. Further, the article examines the extent to which non-EU Member States in Europe have aligned themselves with EU sanctions. The argument is made that this is evidence not only of Europeanisation, but also crucially of a legalised foreign policy which has allowed Europe-wide, EU-led foreign policy to emerge.

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This article was drafted during a period as a visiting Professor at the Centre d’études européennes, Sciences Po, Paris in May 2015. I would also like to thank Kenneth Armstrong, Tamara Hervey, Eva Nanopoulos and the anonymous reviewers for their helpful comments. Any remaining errors are my own.

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1 This article uses the CFSP to denote the EU’s foreign policy. This is distinct from ‘external relations’ which relates to a much wider set of competences and practices at EU level.

2 Reference is made throughout this article to ‘sanctions’ as a shorthand for ‘restrictive measures’ which is the term used in the Treaty. International lawyers use the term ‘countermeasures’ to refer to non-forcible measures, which may include the type of measures employed by the EU but often refers to suspension of treaty obligations, which is beyond the scope of analysis here. See further Crawford, J, The International Law Commission’s Articles on State Responsibility (Cambridge University Press, 2002) and Dopagne, FSanctions and Countermeasures by International Organizations: Diverging Lessons for the Idea of Autonomy’ in R Collins and ND White, International Organisations and the Idea of Autonomy (Routledge, 2011).

3 In the EU context, this has been used in particular by Smith, ME, Europe’s Foreign and Security Policy: the Institutionalization of Cooperation (Cambridge University Press, 2004).

4 Abbott, KW, ‘The Concept of Legalisation’ (2000) 54 International Organization 401 .

5 Ibid. See also, Sari, A, ‘Between Legalisation and Organisational Development: Explaining the Evolution of EU Competence in the Field of Foreign Policy’ in PJ Cardwell (ed), EU External Relations Law and Policy in the Post-Lisbon Era (Asser Press/Springer, 2012).

6 Though see also Finnemore and Toope, who argue that this view of legalisation is ‘unnecessarily narrow’ and instead use a much wider concept of law which is not fully dependent on the effect of legal texts and delegation: Finnemore, M and Toope, S, ‘Alternatives to Legalisation: Richer Views of Law and Politics’ (2001) 55 (3) International Organization 743 .

7 Cardwell, PJ, EU External Relations and Systems of Governance (Routledge, 2009), pp 7274 .

8 See, eg, the contributions to Cowels, M Green et al (eds), Transforming Europe: Europeanization and Domestic Change (Cornell University Press, 2001) and Fetherstone, K and Radaelli, C (eds), The Politics of Europeanization (Oxford University Press, 2003).

9 Van Gend en Loos v Nederlandse Administratie der Belastingen, C-26/62, EU:C:1963:1.

10 This is explored further in Part IV.

11 Article 217 TFEU.

12 Menon, A et al, ‘A Common European Defence?’ (1992) 34 (3) Survival 98 .

13 Report by the Foreign Ministers of the Member States on the problems of political unification (Davignon Report), Bulletin of the European Communities, no 11. (Office for Official Publications of the European Communities, 1970), pp 9–14.

14 Fitzgerald, G, ‘European Political Cooperation’ in AH Robertson (ed), European Yearbook/Annuaire Européen (Martinus Nijhoff, 1976). For a fuller history of EPC, see Nutall, S, European Political Cooperation (Oxford University Press, 1992).

15 Davignon Report, see note 13 above.

16 Commission v Council of the European Communities, C-22/70, EU:C:1971:32.

17 Ibid para 17.

18 Koutrakos, P, EU International Relations Law, 2nd ed (Hart Publishing, 2015), p 82 .

19 De Baere, G, Constitutional Principles of EU External Relations (Oxford University Press, 2008), p 204 .

20 Denza, E, The Intergovernmental Pillars of the European Union (Oxford University Press, 2002), pp 132133 . See also the discussion on pre-Lisbon CFSP instruments in Dashwood, A, ‘The Law and Practice of CFSP Joint Actions’ in M Cremona and B De Witte (eds), EU Foreign Relations Law: Constitutional Fundamentals (Hart Publishing, 2008).

21 Now Article 27 TEU.

22 Now Article 31 TEU.

23 Koutrakos, P, The EU Common Security and Defence Policy (Oxford University Press, 2013); Howarth, J, Security and Defence Policy in the European Union, 2nd ed (Palgrave MacMillan, 2014).

24 Article 47 TEU.

25 Cardwell, PJ, ‘On ‘Ring-fencing’ the Common Foreign and Security Policy in the Legal Order of the European Union’ (2013) 64 (4) Northern Ireland Legal Quarterly 443 .

26 Article 24 (1) TEU: ‘The Court of Justice of the European Union shall not have jurisdiction with respect to these provisions, with the exception of its jurisdiction to monitor compliance with Article 40 of this Treaty and to review the legality of certain decisions as provided for by the second paragraph of Article 275 TFEU’.

27 ‘The Court of Justice of the European Union shall not have jurisdiction with respect to the provisions relating to the common foreign and security policy nor with respect to acts adopted on the basis of those provisions.’

28 Hinarejos, A, Judicial Control in the European Union: Reforming Jurisdiction in the Intergovernmental Pillars (Oxford University Press, 2009).

29 Criminal Proceedings against Maria Pupino, C-105/03, EU:C:2005:386. The principle was read across from Mangold v Helm, C-144/04, EU:C:2005:709 and Kücükdeveci v Swedex GmbH, C-555/07, EU:C:2010:21. For further comment, see Mitselegas, V, EU Criminal Law (Hart Publishing, 2009), p 26 and Fletcher, M, ‘Extending “Indirect Effect” to the Third Pillar: the Significance of Pupino ’ (2005) 30 European Law Review 862 .

30 ‘The member states shall support the common foreign and security policy actively and unreservedly in a spirit of loyalty and mutual solidarity and shall comply with the Union’s action in this area.’

31 European Parliament v Council of the European Union (individual restrictive measures case), C-130/10, EU:C:2012:472.

32 Hillion, C, ‘A Powerless Court? The European Court of Justice and the Common Foreign and Security Policy’ in M Cremona and A Thies (eds), The European Court of Justice and External Relations Law (Hart Publishing, 2014), p 65 .

33 Articles 21–22 TEU.

34 See, in particular, Article 21 (3) TEU.

35 Koutrakos, P, ‘The EU’s Common Foreign and Security Policy’ in D Ashiagbor et al (eds), The European Union After the Treaty of Lisbon (Cambridge University Press, 2012), p 188 .

36 Article 18 (3) and (4) TEU.

37 Van Vooren, B, EU External Relations Law and the European Neighbourhood Policy: A Paradigm for Coherence (Routledge, 2012), pp 3940 .

38 Carta, C, The European Union Diplomatic Service (Routledge, 2012); Erkelens, L and Blockmans, S, ‘Setting up the European External Action Service: An Act of Institutional Balance’ (2012) 8 European Constitutional Law Review 246 ; and De Baere, G and Wessels, R, ‘EU Law and the EEAS: Of Complex Competences and Constitutional Consequences’ in J Bátora and D Spence (eds), The EU’s Diplomatic System: Post- Westphalia and the European External Action Service, (Palgrave MacMillan, 2014).

39 C Hillion, see note 32 above.

40 Ibid, p 66.

41 As listed in Article 25 TEU.

42 Also repeated in Article 31 TEU.

43 KW Abbott, see note 4 above.

44 Article 24 (1) TEU: ‘The Union's competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union's security, including the progressive framing of a common defence policy that might lead to a common defence.’

45 For an overview, see Vines, A, ‘The Effectiveness of UN and EU Sanctions: Lessons for the Twenty-first Century’ (2012) 88 (4) International Affairs 867 ; and Hawkins, D and Lloyd, J, ‘Questioning Comprehensive Sanctions: The Birth of a Norm’ (2003) 2 (3) Journal of Human Rights 443 .

46 Eeckhout, P, EU External Relations Law, 2nd ed (Oxford University Press, 2011), pp 501502 .

47 United Nations Charter, Articles 41 and 103.

48 Koutrakos, P, EU International Relations Law, 2nd ed (Hart Publishing, 2015), pp 495496 . Rhodesia was the target state of the first set of sanctions concluded in this manner.

49 Now Article 207 TFEU.

50 Ahmed Ali Yusuf and Al Barakaat International Foundation v Council and Commission, T-306/01, EU:T:2005:331; Yassin Abdullah Kadi v Council and Commission, T-315/06, EU:T:2005:332.

51 International Fruit Company and Others v Produktschap voor Groenten en Fruit, C-21/72 to 24/72, EU:C:1972:115. Klabbers, J, ‘ Völkerrechtsfreundlich? International Law and the Union Legal Order’ in P Koutrakos (ed), European Foreign Policy: Legal and Political Perspectives (Edward Elgar, 2011), pp 106107 .

52 White, N and Abass, A, ‘Countermeasures and Sanctions’ in N Evans (ed), International Law, 2nd ed (Oxford University Press, 2006), p 527 .

53 Cassese, A, International Law, 2nd ed (Oxford University Press, 2005), pp 310311 .

54 Cortright, D and Lopez, GA, The Sanctions Decade: Assessing UN Strategies in the 1990s (Lynne Rienner Publishing, 2000).

55 Luck, EC, ‘Tackling Terrorism’ in DM Malone, The UN Security Council: From the Cold War to the 21 st Century (Lynne Rienner Publishing, 2004), pp 9495 .

56 Council Regulation (EEC) No 596/82 [1982] OJ L72/15; Council Regulation (EEC) No 877/82 [1982] OJ L102/.

57 Khaliq, U, Ethical Dimensions of the Foreign Policy of the European Union: A Legal Appraisal (Cambridge University Press, 2008), p 187 ; Herlin-Karnell, E, ‘EU Values and the Shaping of the International Legal Context’ in D Kochenov and F Amtenbrink (eds), The European Union’s Shaping of the International Legal Order (Cambridge University Press, 2014).

58 P Koutrakos, see note 48 above, p 496.

59 Hoffmeister, F, ‘The Contribution of EU Practice to International Law’ in M Cremona (ed), Developments in EU External Relations Law (Oxford University Press, 2008), p 91 .

60 Article 215 (1) TFEU.

61 Duke, S, ‘Consistency, Coherence and EU External Action’ in P Koutrakos (ed), European Foreign Policy: Legal and Political Perspectives (Edward Elgar, 2011), p 25 .

62 Eckes, C, ‘EU Restrictive Measures Against Natural and Legal Persons: From Counterterrorist to Third Country Sanctions’ (2014) 51(4) Common Market Law Review 869 .

63 Most notably in the Kadi series of cases: European Commission v Yassin Abdullah Kadi (Kadi II), C-584, C-593 and C-595/10, EU:C:2013:518. This point is returned to in the following Part.

64 P Koutrakos, see note 48 above, p 497.

65 The Queen v HM Treasury and Bank of England ex parte Centro-Com Srl, C-124/95, EU:C:1997:8.

66 It should be noted that the Centro-Com case pre-dated the current legal arrangements provided for in the Treaty, which were considered in the Kadi cases, but the point made here remains valid: P Eeckhout, see note 46 above.

67 See note 65 above, para 30.

68 Van Vooren, B and Wessel, RA EU External Relations Law (Cambridge University Press, 2014), p 395 .

69 Wessel, RResisting Legal Facts: Are CFSP Norms as Soft as they Seem?’ (2015) 20 (3) European Foreign Affairs Review 123 .

70 See eg, Council of the EU, ‘Foreign Relations Counsellors Working Party: Update of the EU Best Practices for the Effective Implementation of Restrictive Measures’ (2015) 7383/1/15 REV 1.

71 ‘New governance’ and ‘new modes of governance’ are particularly associated with areas of EU activity where ‘hard’ legislation is often eschewed in favour of modes which rely on multi-level coordination, benchmarking and peer review. It is particularly widespread in areas associated with ‘Social Europe’. See Scott, J and Trubek, DM, ‘Mind the Gap: Law and New Approaches to Governance in the European Union’ (2002) 8 (1) European Law Journal 1 and Armstrong, KA, ‘The Character of EU Law and Governance: From ‘Community Method’ to New Modes of Governance’ (2011) 64 Current Legal Problems 179 .

72 Council of the European Union ‘Outcome – 3400th Council Meeting: Foreign Affairs’ (2015) 10185/15.

73 Ibid, p 14.

74 Central African Republic, Democratic Republic of Congo, Côte d’Ivoire, Eritrea, Guinea-Bissau, Liberia, Republic of Guinea, Somalia, South Sudan, Sudan, Zimbabwe.

75 Afghanistan, Egypt, Iran, Iraq, Lebanon, Libya, Syria, Tunisia, Yemen.

76 China, Myanmar, North Korea.

77 Belarus, Bosnia and Herzegovina, Moldova, Russia, Serbia and Montenegro, Ukraine.

78 Haiti and the USA.

79 Council Common Position (EU) 2002/402/CFSP [2002] OJ L139/4.

80 Council Common Position (EU) 2001/931/CFSP [2001] OJ L344/93.

81 Council Decision (EU) 2011/72/CFSP [2011] OJ L28/62.

82 Source: European External Action Service http://eeas.europa.eu/cfsp/sanctions/docs/measures_en.pdf [last accessed 26 June 2015].

83 See, for a general overview, Giumelli, F, Coercing, Constraining and Signalling: Explaining UN and EU Sanctions after the End of the Cold War (ECPR Press, 2011); and for case-studies on Iran, Russia and North Korea: PE Dupont ‘Countermeasures and Collective Security: The Case of the EU Sanctions Against Iran’ (2012) 17 (3) Journal of Conflict and Security Law 301; Patterson, R, ‘EU Sanctions on Iran: the European Political Context’ (2013) 20 (1) Middle East Policy 135 .

84 Council Decision (EU) 2010/413/CFSP [2010] OJ L195/39; and Council Decision (EU) 2011/235/CFSP [2011] OJ L100/51.

85 UNSC Resolution S/RES/1737 (2006).

86 Beaucillon, C, ‘Comment choisir ses mesures restrictives’ (2012) EUISS Occasional Paper, No 100, p 15 .

87 Council Decision (EU) 2014/512/CFSP [2014] OJ L229/13.

88 This point is returned to in the following Part.

89 Council Joint Action (EU) 96/668/CFSP [1996] OJ L309/7; Council Regulation (EC) No 2271/96 [1996] OJ L309/1.

90 There is a wealth of academic commentary on the Kadi case law. For a detailed, multi-angled analysis, see the contributions to M Avbelj et al (eds), Kadi on Trial: A Multifaceted Analysis of the Kadi Trial (Routledge, 2014).

91 See the explanatory notes provided in the following: Council of the EU, ‘Draft Rules of Procedure of the General Court’ (2014) 7795/14, 17 March 2014.

92 For an overview, see Eckes, C, EU Counter-Terrorist Policies and Fundamental Rights: The Case of Individual Sanctions (Oxford University Press, 2009); Lavranos, N, ‘Judicial Review of UN Sanctions by the European Court of Justice’ (2009) 78 (3) Nordic Journal of International Law 343 ; Harlow, C and Rawlings, R, Process and Procedure in EU Administration (Hart Publishing, 2015), pp 312321 .

93 Eckes, C, ‘EU Counter-Terrorist Sanctions against Individuals: Problems and Perils’ (2012) 17 (1) European Foreign Affairs Review 113 .

94 Common Position (EU) 2001/931/CFSP [2001] OJ L344/93. Article 1 (4) of the Common Position details the procedure for feeding information: ‘The list in the Annex shall be drawn up on the basis of precise information or material in the relevant file which indicates that a decision has been taken by a competent authority in respect of the persons, groups and entities concerned … Persons, groups and entities identified by the Security Council of the United Nations as being related to terrorism and against whom it has ordered sanctions may be included in the list. For the purposes of this paragraph “competent authority” shall mean a judicial authority, or, where judicial authorities have no competence in the area covered by this paragraph, an equivalent competent authority in that area.’

95 Tsagourias, N, ‘Conceptualizing the Autonomy of the European Union’ in R Collins and ND White, International Organizations and the Idea of Autonomy (Routledge, 2011), pp 348349 .

96 Article 263 TFEU.

97 Article 19 (3) (b) TFEU gives the authority to the Court of Justice to give preliminary rulings ‘on the interpretation of Union law or the validity of acts adopted by the institutions’. The Article does not mention the CFSP but says (in Article 19 (3)) ‘in accordance with the Treaties’. See also Brkan, M, ‘The Role of the European Court of Justice in the Field of Common Foreign and Security Policy after the Treaty of Lisbon: New Challenges for the Future’ in PJ Cardwell (ed), EU External Relations Law and Policy in the Post-Lisbon Era (TMC Asser Press, 2012), p 100 .

98 Article 215 (3) TFEU.

99 Ketvel, M-G Garbagnati, ‘The Jurisdiction of the European Court of Justice in Respect of the Common Foreign and Security Policy’ (2006) 55 ICLQ 77 .

100 See further, Eckes, C, ‘EU Accession to the ECHR: Between Autonomy and Adaptation’ (2013) 76 Modern Law Review 645 ; and Lock, T, ‘Accession of the EU to the ECHR’ in D Ashiagbor et al (eds), The European Union after the Treaty of Lisbon (Cambridge University Press, 2012), p 109 .

101 M Brkan, see note 97 above, p 106.

102 It is worth noting here that since this provision is new, it was not used in the Kadi and Al Barakaat cases (see note 63 above) which were brought on the basis of the implementation powers via a Regulation pursuant to a CFSP Common Position (formerly Article 60 and 301 EC, now found in Article 215 TFEU).

103 P Eeckhout, see note 46 above, p 546.

104 Craig, P The Lisbon Treaty: Law, Politics and Treaty Reform (Oxford University Press, 2010) p 396 .

105 Parliament v Council, see note 31 above, para 83.

106 Ibid, paras 83–84.

107 European Parliament v Council of the European Union (Mauritius Treaty), C-658/11, EU:C:2014:2025.

108 Ibid, para 73.

109 Rosneft, C-72/15 (pending). The case, referred by the High Court of England and Wales to the CJEU via the preliminary reference procedure, concerns the sanctions against the Russian Federation and asks a series of questions pertaining to the Court’s right to review CFSP measures, including with reference to the Charter of Fundamental Rights Article 47.

110 Brummer, K, ‘Imposing Sanctions: The Not So “Normative Power Europe”’ (2009) 14 (2) European Foreign Affairs Review 191 .

111 European Parliament, Resolution 2014/2634(RSP) [2014].

112 Vončina, T, ‘Speaking with One Voice: Statements and Declarations as an Instrument of the EU’s Common Foreign and Security Policy’ (2011) 16 European Foreign Affairs Review 169 .

113 See eg, Sjursen, HWhat Kind of Power?’ (2006) 13 (2) Journal of European Public Policy 169 .

114 This typically takes the following form: ‘X have aligned themselves with this Declaration. They will ensure that their national policies conform to this Council Decision. The European Union takes note of this commitment and welcomes it.’

115 Eg, the October 2014 report on the former Yugoslav Republic of Macedonia notes, ‘The country’s alignment with EU Declarations and Council decisions in the field of foreign and security policy deteriorated as compared with previous years and needs to be improved.’ European Commission, ‘Progress Report: The Former Yugoslav Republic of Macedonia’ (2014), p 59: http://ec.europa.eu/enlargement/pdf/key_documents/2014/20141008-the-former-yugoslav-republic-of-macedonia-progress-report_en.pdf [last accessed 26 June 2015].

116 Council of the European Union ‘European Security Strategy: A Secure Europe in a Better World’ (2003) 12 December 2003: http://www.consilium.europa.eu/uedocs/cmsUpload/78367.pdf [last accessed 26 June 2015].

117 Cardwell, PJ, ‘EuroMed, European Neighbourhood Policy and the Union for the Mediterrean Overlapping Policy Frames in the EU’s Governance of the Mediterranean’ (2011) 49 (2) Journal of Common Market Studies 219 .

118 Article 18 (1) TEU: ‘The Union shall develop a special relationship with neighbouring countries, aiming to establish an area of prosperity and good neighbourliness, founded on the values of the Union and characterised by close and peaceful relations based on cooperation.’

119 Belarus is technically covered by the ENP but has no substantial bilateral relationship with the EU, though the latter is using a variety of means to improve the democratic situation in the country. See further, Korosteleva, E, ‘The European Union and Belarus: Democracy Promotion by Technocratic Means?’ (2015) Democratization doi:10.1080/13510347.2015.1005009 [first published online 15 April 2015].

120 Council of the European Union, ‘Conclusion of the 2809th Council Meeting’ (2007) 10657/07, 18 June 2007. The text of the conclusions states that a ‘similar possibility should be pursued for the EU’s Mediterranean partners’.

121 Croatia was a candidate state from 2004 and an ‘accession state’ from December 2011 until its full EU membership in July 2013.

122 Kosovo is regarded a potential candidate for EU membership, but its statehood is not currently recognised by several Member States and it has not been invited to align. See further, Keukeleire, S et al, ‘The European Union’s Policy on Kosovo’ in P Koutrakos, European Foreign Policy: Legal and Political Perspectives (Edward Elgar, 2011).

123 The period under examination begins in January 2007. The invitation to align was extended to Armenia, Azerbaijan and Georgia in July 2007. Since Croatian accession to the EU, the total number of partner states is 14.

124 Eg, as in the case of Serbia, where the Commission commented in 2014 that, ‘A law that would establish a system for tracking the implementation of restrictive measures still needs to be adopted.’ European Commission, ‘Progress Report: Serbia’ (2014), p 62: http://ec.europa.eu/enlargement/pdf/key_documents/2014/20140108-serbia-progress-report_en.pdf [last accessed 26 June 2015].

125 Eg, Turkey is part of the enlargement process but has a lower overall rate of alignment than some other states which are not (yet) in this position.

126 See eg: Declaration by the High Representative on behalf of the European Union on the alignment of certain third countries with the Council Decision 2011/412/CFSP amending Decision 2010/656/CFSP renewing the restrictive measures against Côte d'Ivoire; Declaration by the Presidency on behalf of the European Union on the alignment of certain third countries concerning restrictive EU measures against the Republic of Guinea (Common Position 2009/788/CFSP).

127 Declaration by the High Representative on behalf of the European Union on the alignment of certain third countries with Council Decision 2014/74/CFSP amending Council Decision 2013/255/CFSP concerning restrictive measures against Syria.

128 Declaration by the High Representative on behalf of the European Union on the alignment of certain third countries with the Council Decision 2011/239/CFSP amending Decision 2010/232/CFSP renewing restrictive measures against Burma/Myanmar.

129 See eg, European Commission, ‘Progress Report: the former Yugoslav Republic of Macedonia’ (2014), p 59: http://ec.europa.eu/enlargement/pdf/key_documents/2014/20141008-the-former-yugoslav-republic-of-macedonia-progress-report_en.pdf [last accessed 26 June 2015].

130 Ghazaryan, N and Hakobyan, A, ‘Legislative Approximation and Application of EU Law in Armenia’ in P Van Elsuwege and R Petrov, Legislative Approximation and Application of EU Law in the Eastern Neighbourhood of the European Union (Routledge, 2014), p 213 .

131 P Eeckhout, see note 46 above, p 546.

* This article was drafted during a period as a visiting Professor at the Centre d’études européennes, Sciences Po, Paris in May 2015. I would also like to thank Kenneth Armstrong, Tamara Hervey, Eva Nanopoulos and the anonymous reviewers for their helpful comments. Any remaining errors are my own.

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