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EU Sanctions

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EU Sanctions

  1. 1. EU Sanctions by Gabriele Masetti, July 13, 2016 The member states of the EU started imposing sanctions collectively and autonomously in the early 1980s. In the late 1990s, with the launch of the CFSP, the recourse to such diplomatic instruments increased in number, range and sophistication.1 Under its current framework, EU sanctions derive legal authority from Article 215 of the Treaty on the Functioning of the European Union (TFUE)2 and tend to result in increasingly targeted measures.3 The EU endeavors to implement autonomous4 sanctions with the stated purpose of fighting terrorism and the proliferationof weapons of mass destruction, to uphold respect for human rights, democracy, the rule of law and good governance.5 Sanctions are seen as one of the tools pursuant objectives of the Common Foreign and Security Policy (CFSP) of the EU such as peace, democracy and the respect for the rule of law, human rights and international law.6 They are also considered holistically, as part of a comprehensive policy approach involving complementary efforts of political dialogue and diplomacy.7 EU restrictive measuresare currently describedasmeanttobringabouta change inpolicy or activity, as preventive,non-punitive instrumentsthatare targetedandlimitingadverse consequencesforthose not directly responsible for the sanctioned actions and policies. Notwithstanding this definition, EU’s sanctionsdon’talwaysnecessarily aim to change a behavior of induce a cost. More broadly, in practice other than in theory, they have been consistently employed to signal and constraint.8 1 Clara Portela, Where and why does the EU impose sanctions?, Politique Europeenne, 2005/3 (no. 17), at https://www.cairn.info/revue-politique-europeenne-2005-3-page-83.htm. 2 1. Where a decision, adoptedinaccordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruptionor reduction, inpart or completely, of economic and financial relations with one or more third countries, the Council, actingbya qualifiedmajorityona joint proposalfrom the High Representative of the Union for Foreign Affairs and SecurityPolicyand the Commission, shall adopt the necessarymeasures. It shall inform the European Parliament thereof. 2. Where a decisionadoptedinaccordance with Chapter 2 of Title V of the Treatyon EuropeanUnionsoprovides, the Council mayadopt restrictive measures under the procedure referredto inparagraph1 against natural or legal persons and groups or non-State entities. 3. The acts referred to in this Article shall include necessary provisions on legal safeguards. 3 FrancescoGiumelli, Paul Ivan, The Effectivenessof EU sanctions:An Analysis of Iran, Belarus, Syria and Myanmar (Burma), The European Policy Center, November 2013, p.2. 4 Outside of the implementationof sanctions decided bythe UnitedNations Security Council under Chapter VII of the U.N. Charter. 5 Council of the EuropeanUnion, Basic Principles on the Use of Restrictive Measures (Sanctions), 10198/1/04,Brussels, 7 June 2004, at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010198%202004%20REV%201 6 Council of the European Union, Factsheet on EU restrictive measures, Brussels, April 29, 2014, at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/135804.pdf. 7 Ibid. 8 Council of the EuropeanUnion, Basic Principles on the Use of Restrictive Measures (Sanctions), 10198/1/04, Brussels, 7 June 2004. It specifies that the purpose of EU’s sanctions is broader, relating to the maintenance or the restoringof international peace andsecurity, andto reduce to the maximum extent possible unintended consequencesfor non-targetedindividualsand entities,inthe receiving countryand abroad.
  2. 2. EU sanctionsare expected to be reviewed at regular intervals to provide for any adjustment needed,9 have not extra-territorial reach, are publicly notified to the targeted parties, can be appealed to the Council of the European Union, or challenged before the General Court of the EU.10 Recourse tosuch policyinstrumentsrequiresunanimousagreementby all member states. Decisions by the Council of the European Union pertaining to arms embargoes and travel bans are directly binding and directly implemented by each member state.11 Asset freezes and export bans require a specific Regulation to acquire full legal effect, which in turn is directly binding toward EU citizens and businesses.12 In these cases, decisions regarding sanctions at the EU level are initiated with the European External Action Service and translated into proposals by the European Commission’s DepartmentforForeignPolicyInstruments (FPI) for adoption as EU law by the Council of the European Union.13 Arms embargoes cover the sale, supply, transport of goods included in an EU common military list, as well as the technical and financial assistance. The embargo might extend to dual use goods and technologiesaswell asequipmentdeemedusable forinternal repression.14 Assets freezes target funds and economicresourcesownedorcontrolledby specific individuals or entities and extend to business transactions, investments, and provision of resources to the targeted parties.15 Visa and travel bans prevent traveling in of the territory of the EU. As of December2013, the EU has usedrestrictive measures33times,with32 percentof the total onlyin the period2010-2011. 16 The language justifyingthe measures implemented to date highlights the five principal typesof contingencies drivingEU restrictive measures:(1) conflictmanagement;(2) promotion of democracyandhumanrights;(3) post conflictstabilization;(4) non-proliferation; and (5) terrorism.17 In assessing the EU regime of sanctions it is important to underline that, as a unique international political construct – one substantiallylackingthe collective capacitytoenforce itsdecisionsbyforce, yet one collectively representing a substantial share of the world’s economic market - the EU has traditionallycome toincreasinglyrelyuponsoftpoweras a way to conceptualize and operationalize its identity and actions on the arena of foreign policy. In that respect, the track records of restrictive measuresreflectsthe perceived role and status of the EU as a normative, soft power. Another singular trait of EU sanctionsisthat so far theyhave beenusedconcurrentlywith other diplomatic instruments, 9 Council of the European Union, Factsheet on EU restrictive measures, Brussels, April 29, 2014, at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/135804.pdf. 10 Ibid. 11 Ibid. 12 Ibid. 13 Information acquired via the Websites of the European Commission and the Council of the European Union at http://ec.europa.eu/dgs/fpi/what-we-do/sanctions_en.htm and http://www.consilium.europa.eu/en/policies/sanctions/ 14 Council of the European Union, Factsheet on EU restrictive measures, Brussels, April 29, 2014. 15 Ibid. 16 Dina Esfandiary, Assessing the European Union’s sanctions Policy:Iranas a Case Study, EU Non-Proliferation Consortium, Non-Proliferation Papers, No. 34, December 2013. 17 FrancescoGiumelli, Paul Ivan, The Effectiveness of EU sanctions: An Analysis of Iran, Belarus, Syria and Myanmar (Burma), The European Policy Center, November 2013, p.12.
  3. 3. such as political dialogue, incentives, and financial aid.18 In fact, in 2013, the then Swedish Foreign Minister mentioned that there he could scarcely remember a meeting with his peers at the EU level where sanctions had not been discussed.19 Key EU normative:  Reg.881/2002 of May 27, 2002 imposingcertainspecificrestrictive measuresdirectedagainst certainpersonsandentitiesassociatedwithUsamabinLaden,the Al-Qaidanetworkandthe Taliban,andrepealingCouncilRegulation(EC) No467/2001 prohibitingthe exportof certain goodsand servicestoAfghanistan,strengtheningthe flightbanandextendingthe freeze of fundsandother financial resourcesinrespectof the Talibanof Afghanistan,at http://eur- lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2002:139:0009:0022:EN:PDF.  Council of the EuropeanUnion,BasicPrinciplesonthe Use of Restrictive Measures(Sanctions), 10198/1/04, Brussels,7June 2004, at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010198%202004%20REV%201  Council of the EuropeanUnion,Guidelinesonimplementationandevaluationof restrictive measures(sanctions)inthe frameworkof the EU CommonForeignandSecurityPolicy,new elements,9068, Brussels,April 30,2013, at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%209068%202013%20INIT  Council Reg.(EU) No 833/2014 of July31, 2014 concerningrestrictive measuresinview of Russia’sactionsdestabilizingthe situationinUkraine,at http://eur-lex.europa.eu/legal- content/EN/TXT/PDF/?uri=CELEX:32014R0833&from=EN  FactsheetonEU restrictive measures,Brussels,April 29,2014, at http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/EN/foraff/135804.pdf  C (2015) 6477 final of September25,2015, CommissionGuidance onthe implementationof certainprovisionsof Regulation(EU) No833/2014, at http://ec.europa.eu/dgs/fpi/documents/russia_sanctions/1_act_part1_v2_en.pdf (Measuresof sectoral cooperationandexchangeswiththe RussianFederation) Other important documents:  Link to the restrictive measures in force: http://eeas.europa.eu/cfsp/sanctions/docs/measures_en.pdf  Linkto the European External Action Service and the “Consolidated list of persons, groups and entities subject to EU financial sanctions”: http://eeas.europa.eu/cfsp/sanctions/consol- list/index_en.htm 18 Ibid. See alsoCouncil of the European Union, Basic Principles on the Use of Restrictive Measures (sanctions), 10198/1/04, Brussels, June 7, 2004, at http://register.consilium.europa.eu/doc/srv?l=EN&f=ST%2010198%202004%20REV%201. 19 See statement of Carl Bildt, on April 9, 2013 at the Carnegie International Nuclear Policy Conference, at http://carnegieindia.org/2013/04/09/assessing-efficacy-of-sanctions-for-nonproliferation/iv9e.

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