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    Why EU Sanctions Are Illegal and Why That Won’t Change Anything

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    Alexander Mercouris
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    The EU repeatedly boasts of its commitment to the rule of law. In reality, the legal basis of the sanctions it has imposed on Russia is extremely dubious. However, past experience shows that even when the EU’s own courts declare sanctions illegal, the EU, despite its fulsome proclamations, simply carries on with them anyway.

    LONDON, October 2 (RIA Novosti) — The EU repeatedly boasts of its commitment to the rule of law. In reality, the legal basis of the sanctions it has imposed on Russia is extremely dubious. However, past experience shows that even when the EU’s own courts declare sanctions illegal, the EU, despite its fulsome proclamations, simply carries on with them anyway.

    There is only one international body that is authorised under international law to impose sanctions: the Security Council of the United Nations. Its authority to impose sanctions is clearly set out in Article 41 of the UN Charter, which reads as follows:

    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 it may call upon the Members 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.

    Any decision by the UN Security Council to impose sanctions under Article 41 has the force of law. UN Member States (including the states that make up the EU) are legally bound to enforce them.

    The EU has no international legal authority to impose sanctions without obtaining a mandate from the Security Council. Doing so challenges the authority of the Security Council to impose sanctions. It also violates the rules of the World Trade Organisation.

    The EU nonetheless claimed for itself this power in a 2004 position paper:

    If necessary, the Council will impose autonomous EU sanctions in support of efforts to fight terrorism and the proliferation of weapons of mass destruction and, as a restrictive measure, to uphold respect for human rights, democracy, the rule of law and good governance. We will do this in accordance with our common foreign and security policy, as set out in Article 11 TEU, and in full conformity with our obligations under international law.

    The position paper however fails to explain the legal basis upon which the EU claims this power. It refers to Article 11 of the Treaty on the European Union. This is has been replaced by Articles 21 and 24 of the amended Treaty on the European Union. Neither the original Article 11 nor Articles 21 and 24 of the amended Treaty on the European Union, however, refer to sanctions.

    Reference is sometimes also made to Article 28 of the Treaty on the European Union, which reads:

    Where the international situation requires operational action by the Union, the Council shall adopt the necessary decisions. They shall lay down their objectives, scope, the means to be made available to the Union, if necessary their duration, and the conditions for their implementation.

    Reference is also made to Article 215 of the Treaty on the Functioning of the European Union, which says:

    Where a decision, adopted in accordance with Chapter 2 of Title V of the Treaty on European Union, provides for the interruption or reduction, in part or completely, of economic and financial relations with one or more third countries, the Council, acting by a qualified majority on a joint proposal from the High Representative of the Union for Foreign Affairs and Security Policy and the Commission, shall adopt the necessary measures.

    None of these provisions however say the EU has the power to impose sanctions without a mandate from the Security Council.

    The EU says the sanctions it imposes are intended to influence policy rather than punish people. In the words of an EU guidance document:

    Sanctions are an instrument of a diplomatic or economic nature which seek to bring about a change in activities or policies such as violations of international law or human rights, or policies that do not respect the rule of law or democratic principles.

    The same document goes on to say that EU sanctions must respect human rights and fundamentals freedoms.

    The EU has, however, sanctioned Russian businesses and individuals who play no part in deciding Russian policy. It is impossible to see these sanctions as anything other than a punishment. As such, they appear to violate the principle that there should be no punishment without law. In the case of the journalist Dmitry Kiselyov, the violation of human rights looks even worse since it seems he is being punished for his opinions, contrary to Article 10 of the European Convention of Human Rights, which says:

    Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.

    No one however should be under any illusions. The EU, for all its boastful claims about upholding the rule of law, will not allow mere concerns about legality to stand in its way. Consider what happened when the EU imposed sanctions on various people in Iran. In a series of Judgments, the European Court of Justice — the EU’s own court — ruled many of these sanctions illegal. These Judgments were enthusiastically welcomed in Iran, which assumed the EU actually cared as much about the rule of law as it says it does. In fact, the EU simply overrode the Judgments by re-imposing the same sanctions on the same individuals, on a slightly different basis.

    One hardly needs to guess how the EU would react if Iran or Russia were to do the same thing.

    Alexander Mercouris is a London-based lawyer. The views expressed in this article are the author’s and may not necessarily represent those of RIA Novosti.

    Tags:
    European Union, UN Security Council, European Convention of Human Rights, European Court of Justice, Iran, law, sanctions, democracy, human rights