CASE

Mr Joyce, a real estate investor, decides to sell one of his buildings. Prior to the sale, Joyce had concluded a rental contract for a period of two years with Adams Corp. In addition, Joyce had entered into an insurance contract with an insurance company, in relation to the property. Furthermore, the building has recently been undergoing renovation, for which Joyce entered into a contract for works with Schwarzmann. Although the contract price has been paid, the renovation is not yet finished. Schwarzmann has promised to finish the renovation in a couple of months. In the meantime, Joyce sells and transfers ownership of the building to Mr Watts.

Question

Do any of the rights and obligations under the contracts between Joyce and third parties transfer to Watts? If so, on what basis do they transfer?

DISCUSSIONS

BELGIUM

Siel Demeyere and Vincent Sagaert

I. Operative Rules

The rights and obligations under the lease may transfer to Watts. The rights and obligations under the insurance contract do transfer (for a three-month period). The rights under the construction contract may transfer. No obligations under that contract (if there are any) will transfer.

II. Descriptive Formants

Tenants are protected against a sale of the let premises, under condition that the lease contract has a vaste datum/date certaine (fixed date),1 obtained, for instance, through registration at the tax office.2 This entails that the new owner must respect and further perform the lease contract. In the case of a commercial lease, the tenant is also protected against termination of the lease by the new owner where the lease does not have a fixed date, if the tenant has used the premises for at least six months before the sale.

CASE

One evening, Bernardo drinks too much at a party, drives back home, and crashes his car, damaging Carlos’ house. Part of the house has to be rebuilt at significant cost. Bernardo is uninsured. He refuses to pay any compensation to Carlos. Carlos intends to sue Bernardo for damages. When Bernardo hears of this, he donates his house, which is worth a lot of money, to his niece, Maria. By doing so, Bernardo hopes that Carlos will see that it is not worth suing him, as he no longer has assets of value. Maria rents the house for free to Bernardo, helping him out.

Question

Assuming that Carlos is successful in his court case against Bernando, can Carlos take any action to ensure that Bernando's house is available as an asset against which he has recourse for his claim? If so, what action can be taken?

DISCUSSIONS

BELGIUM

Siel Demeyere and Vincent Sagaert

I. Operative Rules

Carlos can take action. He can raise an actio Pauliana.

II. Descriptive Formants

Where a debtor fraudulently organises their own insolvency, the creditor can raise a pauliaanse vordering/action paulienne (Paulian action or revocatory action), the effect of which is that the fraudulent act is not effective against the creditor (but remains valid as between the parties). This means that the creditor can ignore that such an act has taken place, and thus act as if the transferred property is still in the debtor's patrimony. A successful actio Pauliana would, in this case, have the effect that Carlos can act as though Bernardo still owns his house, and can possibly also seize the house.

CASE

Alpha Inc. enter into a contract with Beta plc for significant works to be carried out to their head office premises. When the works are complete, Alpha resume full operations from the refurbished premises. Two years later, Alpha decide to sell the premises, and enter into a contract of sale with Delta GmbH.

In terms of the contract between Alpha and Delta, Delta must satisfy themselves on the quality of the premises. Alpha will not provide any warranties to Delta in relation to the premises or their condition. Delta buy the premises from Alpha for their full market value of €5 million. This price is based on the premises being in good condition, with no major works being required.

A year after Delta move into the premises, cracks start to appear in some of the walls. Investigations show that the cracks are due to work having been carried out defectively by Beta, in breach of their contractual obligations to Alpha. Further investigations determine that it will cost €1.5 million for the problem to be repaired. The nature of the problem means that Delta could not have found out about it before the sale.

There is no breach of contract by Alpha that would allow Delta to raise proceedings against Alpha. Alpha refuse to transfer their rights under the works contract with Beta to Delta. Having received full market value for the premises, Alpha have suffered no loss as a result of Beta's breach of contract.

THE ISSUE OF MARITIME BOUNDARY DELIMITATION BETWEEN TURKEY AND GREECE: INTRODUCTORY REMARKS

The maritime dynamics between Turkey and Greece have a long history. Throughout the ages, the relationship between the two communities settled in Greece or Turkey has frequently shifted from a state of tumult and often brutal violence to one of prosperity and close proximity, only to revert back again in time. Despite both Greece and Turkey being NATO allies, their interactions have always alternated between alarming and mutually nourishing. Moreover only Greece is an EU member State, as is, notably, the Republic of Cyprus.

Trade and imaginaries across the Mediterranean, the Dardanelles and the Black Sea have had a significant impact on international relations throughout history. Sovereignty over the Eastern Mediterranean, the Aegean islands – even rocks – and maritime zones has been continually jeopardized by strategic goals and later on by the need to overcome risks of geopolitical and technological failings.

In the light of this situation, Turkey did not sign the 1982 United Nations Convention on the Law of the Sea (UNCLOS). The reason for this is allegedly its sovereignty claims regarding the delimitation of the continental shelf and exclusive economic zone (EEZ) in the Eastern Mediterranean and some Greek islands in the Aegean.

In this context, it is open to interpretation whether current technological-political and strictly strategic maritime primacy has become as dangerous for peace and balanced neighbourly relations between Turkey, the European Union and their respective allies as the regional ancestral instincts of the coastal States that are involved in some way, such as Greece, the Balkan States, Russia and North Africa, to assert sovereignty over what is emotionally perceived, and (depending on the circumstances) legally or politically claimed, to be homeland.

THE EXISTENCE OF AN EU SANCTIONS POLICY

Even though not listed among the 37 EU policies recognized by the European Commission, it is undisputed that the capacity of the European Union (EU) to impose sanctions against third States, non-State entities and individuals today represents a veritable policy of the organization. With the over 40 sanctions regimes the Union has been developing since the 1980s, there is no question that sanctions constitute one of the most important instruments the EU is able to rely on to shape its international relations.

As is well known, the Union's sanctions may be adopted on different legal bases. Sanctions imposed for political non-commercial purposes are mainly conceived as instruments promoting the objectives of the Common Foreign Security Policy (CFSP), as set out in Art. 21 of the Treaty on European Union (TEU). Based upon Art. 29 TEU, they are also called, according to the supranational jargon, ‘restrictive measures’. While some of the EU restrictive measures regimes implement UN resolutions adopted by the Security Council acting under Chapter VII of the United Nations Charter (e.g. the ISIL/Da’esh and Al Qaida sanctions regimes), others are adopted autonomously by the Union outside the UN legal framework (e.g. the EU's sanctions in response to Russia's invasion of Ukraine). Also importantly, the Union's restrictive measures may be geographically directed at individual countries or targeted against individuals and specific entities (Art. 215 Treaty on the Functioning of the European Union (TFEU))

INTRODUCTION

In the law and practice of the relationship between international organizations (IOs) and their members, the question of sanctions has been mainly considered in relation to measures taken by IOs against their member States. Less attention has been paid to the inverse cases where member States react against unwelcome or allegedly wrongful conduct of IOs. In recent years, however, the so-called ‘backlash’ against multilateralism has brought to the fore a wide spectrum of conduct and measures that States have taken towards several contested IOs operating in very diverse fields. These measures include many forms of non-cooperation with IOs, such as the withholding of financial contributions, non-compliance with IOs’ binding decisions and general boycotting, up to the threat of and actual exit from IOs.

Characterizing such measures in international legal terms is not an easy task. When it comes to the question of measures taken by member States against IOs, the term ‘sanction’ – which features the title of this book – appears misplaced, especially if one gives this term an ‘institutional’ connotation. Yet it is also hard to find other working alternative terms for the characterization of these measures, considering that even the attempt to conceptualize them as ‘countermeasures’ is subject to constant challenge by commentators, as will be shown below. While in recent times political science and international relations studies have analysed and conceptualized the causes and consequences of resistance against IOs, legal scholars still strive to provide a comprehensive account of this kind of conduct from an international legal perspective.

This book has explored the diversified and fragmented practice of sanctions by and against international organizations, using the word ‘sanctions’ in an a-technical sense. The practice of sanctions, including sanctions by and against international organizations, is burgeoning. Unsurprisingly so. Being a means to confront another party and to oppose a certain course of action or a specific state of affairs, sanctions are ubiquitous in the geopolitical autumn that has set in for contemporary international affairs, a season full of tempest. Sanctions are expressions of contestation and discontent, and often, though not always, they are reactions to illegal acts and behaviour.

With an impaired system of collective security, sanctions adopted outside of that setting are on the rise. Most sanctions are imposed on an inter-State basis, but tensions and frictions between international organizations and States are also increasing. Sanctions adopted outside the system of collective security can be portrayed as forms of decentralized enforcement of international law, as an exercise of private justice, or even as hegemonic instruments or as a form of financial imperialism. The precise classification largely depends on the context and form of the sanctions but also on the characterizer's overall worldview and appreciation of sanctions pursuant to that perspective. Sanctions are highly contested. On the one hand, there is fierce disapproval of sanctions. This is expressed in global fora, and also by a multitude of scholars. It must be noted though that this criticism mostly regards the broad economic sanctions.

INTRODUCTION

In order to frame the object of the present chapter, two of the guidelines set forth by the editors of this book must be recalled. The first relates to the stated purpose to try and systematize the varied and fragmented practice of ‘sanctions’ by and against international organizations under the law of international responsibility. In this respect, a prominent role would obviously be played by the key document drawn up by the International Law Commission (ILC) on the matter, namely the Articles on the Responsibility of International Organizations (ARIO) adopted in 2011.1 The second guideline relates to the fact that the term ‘sanction’ should be used in the context of the present research in a rather a-technical sense, i.e. as a term of art intended to cover the vast array of reactions and measures occurring in times of confrontation between States and international organizations. Both of these guidelines need some qualification at this preliminary stage, in order to better define the scope of the analysis that will follow, as well as to justify the title chosen for this contribution.

A first (and perhaps rather trivial) general qualification pertains to the fact that, in looking at the output of the work of the ILC on the responsibility of international organizations, one cannot consider it separately from the text previously adopted by the ILC in 2001, namely the Draft Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA).

INTRODUCTION

EU restrictive measures rely on a decentralized enforcement system, where member States are primarily responsible for ensuring compliance with EU provisions within their domestic jurisdictions. National authorities shall, indeed, monitor, investigate and ultimately impose penalties for infringements of restrictive measures, including for activities which have the aim, or result, of circumventing those measures.

Pursuant to Art. 24(3) of the Treaty on European Union (TEU), member States ‘shall support the Union's external 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’. This is a more specific obligation stemming from the principle of sincere cooperation, as enshrined in Art. 4(3) TEU, which requires member States to take ‘any appropriate measure’ to ensure the fulfilment of the obligations resulting from the acts of EU institutions. Arts 24(3) and 4(3) TEU operate as constitutional safeguards for the decentralized enforcement of Common Foreign and Security Policy (CFSP) decisions, including Council decisions instituting restrictive measures.

If, on the one hand, it is mostly up to the member States to give concrete application to EU restrictive measures, on the other hand, the principle of sincere cooperation requires them to ensure the effectiveness of these measures at the national level. In particular, it requires member States to enforce EU sanctions within their domestic legal orders by taking ‘any appropriate measure’ to effectively respond to violations, including uncovering and punishing circumvention activities.

INTRODUCTION

On 7 December 2020 the EU adopted a Global Human Rights Sanctions Regime (hereinafter, also ‘EU global regime’). It is defined as ‘a framework for targeted restrictive measures to address serious human rights violations and abuses worldwide’. Violations and abuses justifying the taking of said measures are expressly, yet non-exhaustively, listed: besides (i) crimes against humanity, the Decision and the Regulation establishing the regime refer to (ii) five other ‘serious human violations and abuses’ (e.g. slavery, torture, and arbitrary arrests or detentions), as well as (iii) ‘other human rights violations or abuses, … in so far as [they] are widespread, systematic or are otherwise of serious concern as regards the objectives of the common foreign and security policy set out in Article 21 TEU’, ‘including but not limited to’ trafficking in human beings, sexual and gender-based violence, etc.

In the light of the general debate on whether, in the absence of a special regime, so-called unilateral or autonomous sanctions – i.e. restrictive measures adopted independently of the UN collective security system4 – are only lawful under international law insofar as they qualify as either retorsions or lawful countermeasures, both the premises and the case-by-case application of the EU global regime appear to warrant further investigation.

In particular, besides the preliminary question of whether restrictive measures foreseen by this sanctions regime and taken so far in its context represent breaches of any international legal obligation binding on either the EU or its member States (or both), this chapter will address the following fundamental question: is the EU global regime meant and has it been used in practice as an instrument to enforce international human rights rules by reacting to their alleged violation or rather as a foreign policy tool aiming at influencing the conduct of other States or, generally, actors?

INTRODUCTION

In response to the International Criminal Court's (ICC) involvement in Afghanistan, on 2 September 2020 the US administration targeted two high-level officials, including then Prosecutor of the Court, Fatou Bensouda, with economic sanctions and visa restrictions. These retaliatory measures were adopted in the framework of Executive Order (EO) 13,928, issued earlier that year, and were motivated by the potential investigation of US citizens for alleged international crimes in the context of the Afghan situation.

Although these sanctions had no precedent either in the history of the ICC or in its relationship with the US, this was not the first time that the Court's legitimacy had come under challenge. In recent years, several African States have taken a critical stance towards the Court, making accusations that it was biasedly targeting less powerful States, and more specifically African individuals and heads of State. The growing discontent with the perceived selectivity and politicization of the Court's prosecutorial policy sparked with the indictment of Al-Bashir and other African officials and led to a continental mobilization against the ICC, upheld by the African Union (AU). AU opposition culminated in 2016 in the adoption of a ‘Withdrawal Strategy’ from the Rome Statute. Amongst the three African States which submitted notifications of withdrawal, only Burundi's eventually took effect on 27 October 2017. However, the fraught relationship between the AU and the ICC has never fully settled.

INTRODUCTION

Oftentimes international organizations face difficulties in applying the institutional measures envisaged in their founding treaty to sanction breaches of the obligations undertaken by member States with their participation in the organization, even in cases of severe infringement. As such a state of affairs could be prejudicial for the integrity and the functioning of their legal systems, several international organizations have reacted to it by introducing or resorting to alternative mechanisms to the ones laid down in their constitutional treaty: on one hand, in fact, protocols or declarations were adopted either to establish sanctioning measures – especially when they were not already provided for in the legal framework of the organization – or to complement the statutory provisions; on the other hand, some mechanisms which were not specifically envisaged for enforcement purposes ended up being subsidiarily applied as a form of sanction for the infringement of obligations undertaken by member States.

From a different perspective, some international law scholars8 have maintained that the same ‘ultimate goal’ for which sanctions are mainly foreseen in legal orders, i.e. compliance with the normative provisions, could also be pursued through mechanisms that, unlike sanctions, are not based on coercion; to that end, measures resting upon material incentive, such as conditionality ones, could be stood out. Generally speaking, conditionality is defined, using a rational choice logic, as an ‘incentive instrument in the relationship between two actors, in which one actor aims at changing the behaviour of the other by setting up conditions for the relationship and by manipulating its cost-benefit calculation by using (positive and negative) material incentives.’

ECONOMIC SANCTIONS OF INTERNATIONAL ORGANIZATIONS AND THEIR LEGAL IMPLICATIONS FOR PRIVATE COMMERCIAL TRANSACTIONS

Sanctions, whether they are adopted by a State or imposed by international organizations (IOs), not only raise questions connected with their legitimacy, which are broadly explored in the present volume, but may also trigger concerns as to their impact on the targeted countries or entities and to the side effects which may derive from their application. Even if they are generally enacted in response to violations of obligations deriving from public international law, and mostly for diplomatic or political reasons rather than economic interests, sanctions may bring up some important questions of private international law. This is particularly the case when it comes to economic sanctions, that is, ‘measures of an economic – as contrasted with diplomatic or military – character taken to express disapproval of the acts of the target or to induce that [target] to change some policy or practices’.

Economic sanctions may take different forms, ranging from restrictions on imports and exports of goods and services to the freezing of funds and economic resources belonging to individuals and entities, for purposes of impeding the flow of financial resources towards a target State or targeted individuals.

IOs have recourse to this kind of measures both against their member States and against third States. In the former case, they are in general provided by the statute of the IO; an example may be found in Art. 41 of the UN Charter, which envisages the possibility for the Security Council to call upon UN members to adopt peaceful measures, including the complete or partial interruption of economic relations, in the event of a threat to the peace, a violation of the peace or an act of aggression.

INTRODUCTION

The European Union (EU) Council has followed the general trend of the United Nations (UN) Security Council to individualize restrictive measures of an economic nature that are independently enacted by the UN Security Council, while continuing to adopt specific trade bans and other sectoral sanctions. The EU does so in reaction to infringements of international law or to achieve the objectives of EU external action; yet the Union does not define whether the sanctions qualify as countermeasures or acts of retorsion, as is often the case for third countries that enact sanctions. The EU may target ‘individual State organs’ of third countries that threaten peace and international security, and impose on them asset freezes and/or visa bans. In the situations mentioned, these persons are usually the first category of individuals to be included on the EU blacklists.

Each Common Foreign and Security Policy (CFSP) decision instituting the measures mentioned above is a universe of its own, since the Council assesses, on a case-by-case basis, who should be listed in order to put pressure on a certain third country to cease the breach of international law or to attain CFSP objectives. This political decision depends on the nature and the duration of the breaches, as well as on the context of the illegal conduct.

This volume is the result of a research project financed by the University of Milan in 2020. It addresses a very topical issue at the core of severe tensions in the current state of global politics. Indeed, the use of measures commonly referred to as ‘sanctions’ by and against international organizations (IOs) has become a recurrent feature of international relations.

The adoption of ‘restrictive measures’ by the European Union (EU) against third States within the framework of the Common Foreign and Security Policy or on the basis of other EU treaties’ provisions; the approval of institutional sanctions by the Council of Europe against Russia in 2022 or the adoption by the African Union of measures against member States not explicitly provided for in its establishing treaty; the asset freezes and travel bans levied by the United States against the Prosecutor of the International Criminal Court; the opposition raised by States through a variety of means (ranging from the withholding of financial contributions to withdrawal) as a reaction against allegedly ultra vires acts of IOs of which they are members or as a critique of the exercise of IOs’ powers: these are just some examples of the circumstances in which tensions in the relationships between States and IOs have triggered a legal and/or political reaction by the parties concerned.