Unilateral sanctions in a multipolar world: legal challenges.
TABLE OF CONTENTS I. Introduction II. Concept contents and targets of international sanctions III. Milestones of sanctions campaigns IV. The sanctions mechanism under EU law V. EU sanctions and WTO law VI. Legal remedies against the EU sanctions Bibliography
One of the most remarkable sessions of the V St. Petersburg International Legal Forum was Unilateral Sanctions in a Multipolar World: Legal Challenges, which was moderated by Khristofor Ivanyan, Managing Partner of Law Firm Ivanyan & Partners. This session summoned participants from Russia, France, the USA and China. Speakers discussed theoretical, practical and comparative aspects of restrictive measures regime, its targets and milestones of sanctions campaigns. Also participants presented their positions on remedies available to persons, who have suffered damage from these restrictive measures. In the present article we will discuss some of these issues using the theses of the speakers as the starting point.
II. CONCEPT CONTENTS AND TARGETS OF INTERNATIONAL SANCTIONS
Following the speakers, one should clarify the exact meaning of the term 'sanctions' in international law. As Mr Abadi, the Deputy Secretary General of the High Council for Human Rights of the Islamic Republic of
Iran has pointed out to the participants, strictly speaking, 'international sanctions' are punitive measures of vertical effect applied by the UN Security Council on behalf of the international community under Article 41 of the UN Charter. As for unilateral measures imposed by certain states or international organizations in order to prevent alleged illegal actions of a third state one should use the term 'restrictive measures'.
This doctrinal position has failed to be fully implemented in the national legislation or in the legal acts of international organizations. For example, the European Union (EU) law uses the term 'restrictive measures' as a generic term for the measures, which are implemented the following forms:
a) individual measures (applied to specific persons)
b) financial restrictive measures (applied to an offending state at large).
But all of the measures could be called 'sanctions' (e.g. individual measures are also called 'targeted sanctions'). In fact the European legislators discern no difference between the terms 'sanctions' and 'restrictive measures. Hereinafter the authors will follow this approach.
Unilateral sanctions are adopted by institutions of a state or an international organization (such as the President or the Congress in the US and the EU Council), and they are implemented to achieve one of the following purposes:
a) termination of illegal behavior,
b) balancing of loss caused by such behavior, and
c) prevention of illegal behavior in future.
III. MILESTONES OF SANCTIONS CAMPAIGNS
As for sanction regime strategy so called targeted sanctions (1) represent the newest invention in this sphere. The core idea of this approach is to predetermine effect of sanctions to cause harm to the exact persons responsible for alleged illegal actions of transgressing state, meanwhile having little impact on population of such an offending state. Examples of such sanctions are assets freeze and travel ban. These sanctions are typical for the first stage of pressure on the offending state. (2) For instance such measures are stipulated in the Council Decision 2011/69/CFSP of 31 January 2011, amending the Council Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus. (3)
Should targeted sanctions fail to resolve the problem, the sectorial sanctions are launched. The targets of these type of sanctions are certain economy sectors, principally credit and financial system of the state in question, (4) rather than particular individuals or legal entities.
The third level of pressure involves sanctions targeting the key sector of the offending state economy. At this level a state or group of states implementing sanctions should take into account the possible impact of measures to be implemented on world economy as a whole, which makes the negotiation process at this stage the most difficult. All these three types of sanctions could be implemented cumulatively, and the best results depends on the effective combinations of various restrictive measures.
The positive approach to the idea of sanction policy mentioned above is traditionally shared by the Western states, authoring the vast majority of restrictive measures currently in force. At the session this point of view was presented by Mr Brand, the Partner of Squire Patton Boggs, and Mr Bismuth, Professor of the University of Poitiers. As for the representatives of targeted countries, they consider unilateral restrictive measures to be illegal, viewing them as interferences with the internal affairs of the state contrary to the UN Charter principles. Mr Abadi even claimed unilateral sanctions to be a form of war pursuance. This rather odd position was supported by Mr Klishas, the Chairman of the Committee of Constitutional Legislation and State-Building of the Council of Federation of the Federal Assembly of the Russian Federation, who declared unilateral sanctions to be a form of an act of aggression.
IV. THE SANCTIONS MECHANISM UNDER EU LAW
Though all participants of the session mentioned dominating political aspects of sanctions policy, it is important to turn to its legal dimension. Considering that the most significant sanctions against Russia are implemented by the US and the EU, the speakers focused on legal regime of the US and the EU sanctions policy. Mr Brand delivered an impressive report on the US sanctions, however, unfortunately he did not provide the participants with information on the limitations of state powers in this sphere, and the authors will further deal with the legal aspects of the EU restrictive measures.
In the EU the sanctions (restrictive measures) are viewed as one of the most forceful mechanisms in the economic sphere, being necessary in order to influence the third states, as well as certain natural persons and legal entities in order to reach the goals of the EU. These measures may be adopted in order to implement the Security Council decision or to make the offending state to act in compliance with the EU legal position on certain matters.
According to the 'smart power' concept applied in the EU, sanctions are the final instrument which is to be applied either before direct forceful influence under the Section 2 Chapter 2 of the Treaty on European Union (the TEU) 'Provisions on the common security and defense policy', stipulating legal basis for the EU military and civil missions beyond the territory of the Union, or when such direct interference is impossible. As it is stated on the European External Action Service web site, 'sanctions should be used as part of an integrated and comprehensive policy approach, in the framework of the European Union's overall foreign policy strategies, involving political dialogue, complementary efforts and other instruments.' (5)
The legal framework for imposition of sanctions appears in Article 29 of the TEU, allowing the Union to adopt decisions that determine its position on certain geographical and thematic matters. In particular, such decisions can foresee complete or partial stoppage or retrenchment of economic and financial relationship with one or several third countries.
However, social and economic aspects of international policy are withdrawn from the domain of the common foreign and security policy. That is why, the provision enabling the introduction of restrictive measures in economic sphere is found in Article 215 of the Treaty on Functioning of the European Union.
Thus, in order to impose sanctions, the European Union adopts at the very least two acts: a Decision under Article 29 of the TEU as a part of the Common foreign and security policy and a Regulation, adopted under Article 215 of the TFEU for the purposes of a more comprehensive implementation of the decision, that binds the subjects of European law.
V. EU SANCTIONS AND WTO LAW
Restrictive measures implementation automatically causes restraint of trade, and affects the trade rules established by the World Trade Organization (the WTO), to which the European Union itself and all its Member States are also parties. Therefore, while examining the legal framework of introduction of restrictive measures taken by the European Union, the attention should not be limited only to the provisions of European legal system, but also to the legal requirements of the WTO, since even a unilateral action of the European Union should comply with the WTO legal rules.
The WTO Law provides nothing on the sanctions themselves. However, it allows for the exemptions from the WTO trade rules in cases involving national security. This possibility for the WTO Members appears in Article XXI of the GATT, Article XIV bis of the GATS and Article 73 of the TRIPS. All these provisions have the same title: 'Security exceptions'. These provisions are the only ones introducing the possibility of restrictive measures within the framework of the WTO rules.
The security exceptions are the same for all three treaties:
nothing shall be construed
a) to require any contracting party to furnish any information the disclosure of which it considers contrary to its essential security interests; or
b) to prevent any contracting party from taking any action which it considers necessary for the protection of its essential security interests;
i. relating to fissionable materials or the materials from which they are derived;
ii. relating to the traffic in arms, ammunition and implements of war and to such traffic in other goods and materials as is carried on directly or indirectly for the purpose of supplying a military establishment;
iii. taken in time of war or other emergency in international relations; or
c) to prevent any contracting party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
As Professor Artiom Chetverikov specifies, (6) the reason for the application of such exceptions can be expressed in:
a) Protection of official secrets (military secrets included);
b) Maintaining the defense capacity, including weapons industry;
c) Prevention of threat to the peace, breaches of peace, and acts of aggression in the self-defense procedure, or following the decision of the UN Security Council (these provisions are applied in accordance with the Chapter VII of the UN Charter 'Actions with respect to threats to the peace, breaches of the peace, and acts of aggression').
The main disadvantage of these provisions is that they are outside the sphere of control of the WTO institutions, and they are to be applied by the states independently. No criteria exist in the WTO law to determine whether a situation falls under the scope of the provisions of Articles XXI of the GATT, XIV bis of the GATS and 73 of the TRIPS. Such measures can be provided for fissionable materials or the raw materials they are made of, trade in arms, ammunition and military materials, as well as in war-time or in another case of emergency in international relationship. The last category offers ample opportunities for rendering and interpretation and, unfortunately, opens up the possibility for abuse. (7) The US trade embargo against Cuba was imposed in 1962 and it currently is in effect, the EU sanctions against Yugoslavia in the 1990s could also serve as examples of such an ample (and sometimes unconscientious) interpretation.
Thus, the position of Chetverikov that 'security exceptions' are regarded within the WTO law in their political (and not economic) hue (8) seems justified.
Such an approach in the WTO law can hardly be called substantiated from the standpoint of trade security policy. The WTO is the international economic integration organization. Its goals are positioned in the social and economic domain, and we believe that the departure from its rules may only be justified when there is need to achieve its aims. Thus, security exceptions should only be applied only when the compliance with WTO law may render it impossible for a state to reach the WTO goals and, agreeably, they should be applied only in exceptional circumstances.
Moreover, uncontrollable application of aforementioned exceptions may cause the subversion of the very international trade system, which was created within the framework of the WTO. The absence of the criteria of permissibility of security exception may open up a new path for the circumvention of the fundamental WTO principle--the principle of nondiscrimination, allowing the most economically valid members to influence on their rivals with the use of these exceptions for the political purposes, disadvantaging them as well as making them adopt certain economic and political decisions. The political decisions are always concerned with the economic prosperity, however, since the economic prosperity is one of the main goals of the WTO, one may state that imposition of these exceptions within the existing pattern does not follow the WTO objectives.
Nevertheless, as it was mentioned above, in the case of security exceptions the economic aspect is yielded to the political one. The similar approach appears in the European Union law in the EU relations with third countries.
According to Article 23 of the TEU, actions of the EU in the international arena, pursuant to this Chapter, shall be guided by the principles, shall pursue the objectives of, and be conducted in accordance with the general provisions on CFSP. Under the Article 21 these provisions deal with democracy, the rule of law, the universality and indivisibility of human rights and fundamental freedoms, respect for human dignity, the principles of equality and solidarity, and respect for the principles of the United Nations Charter and international law. Articles 3 and 21 of the TEU stipulate that it is the objective of the Union to follow these principles. This objective is not limited to economics. On the contrary, in some cases the necessity of economic interest is presumed to be sacrificed for the benefit of political ambitions.
Consequently, the European Union foresees the application of restrictive measures in any situation, which is regarded by the Union as preventing its Nations from prosperity. According to the European External Action Service, the EU imposes its restrictive measures to bring about a change in policy or activity by the target country, part of a country, government, entities or individuals. These measures form a preventive, non-punitive, instrument, which should allow the EU to respond swiftly to political challenges and developments.
Thereby, the only way to determine the legitimacy of imposing restrictive measures introduced by the EU in the absence of limitary interpretation of security exception under the 'upper' WTO economic system is to use the principles in Article 21 of the TEU.
Restrictive measures within the territory of the Union are applied quite differently (although some of them essentially influence the CFSP). In accordance with the principle of equality (Art 4 of the TEU) the law-enforcement bodies in the EU, first of all, the European Court of Justice, are paying attention to the fact that the right to apply security exceptions is provided to all the Member States, while the implementation of these exceptions is conditional, depending upon the presence of a justifiable reason. (9) General approach to this issue may be described with the following formula of the ECJ: in each specific case the Member State must demonstrate the presence of real and serious threat that touches one of its fundamental social interests.
The above-mentioned formula is also applicable to the economic relationship at the joint of the CFSP and the former first pillar that regulated economic relations. As to the application of security exceptions to the EU Member States (Art. 346 of the TFEU), the Court has arrived at the decision that invocation of Article 346 of the TFEU should not be automatic and it should be disrationared in each specific case. Application of national restrictive measures is only justified if it is necessary in order to reach the objectives regarding the defence of fundamental state security issues. (10) The principle of proportionality is applied while the Court is evaluating the level of necessity for the application of such measures. The burden of proof of observance of this principle is imposed on the Member State accused of such a violation. (11) It seems interesting that this approach is used in the armament trade purview on the secondary law level as well, (12) assuming that prior to the beginning of 2000s invocation of national security exception in armament trade (para. 2 Art. 346 of the TFEU) was automatic. It brings one hope that such an approach will become widespread.
Thus, much stricter invocation rules for security exceptions are being elaborated within the framework of regional integration organization the European Union than adopting such measures by the EU on the international arena.
Apart from the problem of security exception invocation motive interpretation, the problem of application of corresponding articles is present. Exemptions foreseen in the Article XXI (1), (2) of the GATT, regarding state secrets protection and armament trade are understandable and do not require any adjustments. Nevertheless, the economic effect of these measures is brought in alongside with these exemptions. The GATT, GATS and TRIPS provisions are still quite specific: economic influence measures can be applied in pursuance of state obligations in virtue of the UN Charter for the purpose of international peace and security.
Economic effect of the measures designed to maintain international peace and security appears in Article 41 of the UN Charter. However, this article requires adoption of the corresponding decision by the Security Council as a necessary condition for the implementation of such measures. The praxis of administration of security exemptions within the WTO law demonstrates almost complete negligence of such a restriction. States only declare threat to the international peace and security, 'forgetting' that only the Security Council can acknowledge such a threat.
In the light of foregoing, a range of issues on the legitimacy and proportionality of EU sanctions towards Russia arise.
Currently the sanctions provide arms procurement restrictions (as well as double-use production when the final recipient is the Russian military establishment or some military officers). These measures are directly envisaged in the GATT, the GATS and the TRIPS, and the possibility to apply these measures is not by itself a doubtful one. It is the reasonableness of their application as measures designed to maintain Member States national security that raises doubts, assuming that bypassing preoccupation of the EU Council with the situation in Ukraine, denouncement of the integration of the Crimea etc., none of the documents exemplifies any motives why these matters affect the security of the European Union as such.
To the economic measures, directed to forbid financial operations with certain Russian companies and supply of technology needed for extraction of commercial materials, the legitimacy issue concerning assuming such measures can be added.
As it was mentioned above, the WTO law admits invocation of security exemption for the economic measures (except armament trade) only in order to prevent threat to peace and acts of aggression or in self-defence or following the decision of the Security Council. There are no grounds for the EU to claim self-defence, and in all other cases the decision of the Security Council is needed in order to take economic measures.
Since the Russian Federation is the permanent member of the UN Security Council, the Resolution that allows for the sanctions against Russia can hardly be adopted. In the absence of such a Resolution the relevant acts may be regarded as stepping outside the bounds of the GATT, the GATS and the TRIPS.
The problem of declining the decision, which is necessary in order to introduce restrictive measures on the UN level is still unresolved. The Western doctrine proposes an approach, allowing to take certain measures (including military ones) for the purpose of preventing major and unremitted human rights violations and deaths of civilian population. In particular, such an argument was used as the legal background for the NATO 'Allied force' operation in Kosovo. The same logic may be used for the application of economic measures.
Thus, the contemporary praxis of application of the economic measures by the EU falls a bit outside the classic approaches of international law. As for the vertical restrictive measures, sanctions, that are 'self-contained' within the decision of the UN Security Council, the EU refers to the impossibility to obtain such a corresponding decision of the Security Council (provided that the Union alludes to the non-legally binding Resolution of the General Assembly of the UN of the 27th March 2014) and the necessity to put illegal (from the standpoint of the Union) actions of Russia under restraint, justifying its interference with the protection of values mentioned in Article 3 and Article 21 of the TEU.
As for the horizontal restrictive measures (countermeasures), the EU still adheres to its position. The countermeasures are traditionally understood as compulsory measures assumed by one aggrieved state against another. These are specific measures, which are undertaken on the horizontal level (transgressor being a victim) and are designed to restore the violated right. Nonetheless, in the EU restrictive measures against Russia it is Ukraine that is the victim, and because of that this entire situation hardly corresponds to the interpretation of countermeasures in the classic international law.
However, the EU considers it to be possible to apply horizontal measures alongside with the vertical ones. When it is impossible to implement the vertical UN sanctions, the EU applies horizontal measures independently, or with its allies. According to Article 205 of the TFEU, the foreign policy activities of the Union are subordinated to the principles and objectives set out in Chapter 1 Section V of the TEU. Article 21 and Article 23 of the TEU are based on Article 3 of the TEU stipulating the objectives of the activities of the Union. In its foreign policy activity the Union sets its objective to facilitate peace, its values and prosperity of its peoples. So even if the Union guarantees in Article 3 and Article 21 of the TEU the advancement of common ideals of democracy, law-governed state, generality and impartibility of human rights and fundamental freedoms, respect of human dignity, the principles of equality and solidarity, the EU still judges by its own prerogative on the necessity to spread them in the world. Consequently, even an infringement of third countries' rights via complicated references to Articles 3, 21, 23 of the TEU and Articles 205 and 215 of the TFEU allows the Union to regard every occurrence that does not correspond to its position on international legal order as a breach of its interests, even if this very occurrence does not affect directly neither the Union, nor its Member States, thereby authorizing it to introduce restrictive measures as prescribed by Article 215 of the TFEU.
As a result, in accordance with the EU law the necessity to prevent alleged illegal actions takes precedence over the formal aspects of proof of their wrongfulness in accordance with the UN Charter. By reference to the worded approach, various acts on the international arena may be regarded as illegal, consequently authorizing the state to introduce the countermeasures because these acts do not correspond to the EU values and, more importantly, to the potential prosperity of the EU peoples, i.e. they undermine the EU economic interests on the international arena, in compliance of aforecited provisions of the TEU and the TFEU.
Taking this approach into consideration makes one raise an issue on legal qualification of Russian measures adopted as the response to the restrictive measures of the European Union. On the one hand, the EU offers a substantiated position proving the illegality of Russian actions and so it justifies the introductions of sanctions against Russia. On the other hand, the European Union gives itself the functions of international arbitrator, competent to evaluate the lawfulness of the acts of the other subject of international law, while these acts do not target the EU.
It also should be considered that nothing will change the situation regardless of qualification of the EU actions within the WTO law, since the WTO law is not directly applicable to the EU under the common rule, and the European Court Juctice has elaborated the legal stance, according to which the decisions of the Dispute Settlement Body (DSB) of the WTO are advisory rather than mandatory for the Union. As the Court has held in the Portuguese Republic v Council of the European Union caseit follows from all those considerations that, having regard to their nature and structure, the WTO agreements are not in principle among the rules in the light of which the Court is to review the legality of measures adopted by the EU institutions. It is only where the EU intended to implement a particular obligation assumed in the context of the WTO, or where the EU measure refers expressly to the precise provisions of the WTO agreements, that it is for the Court to review the legality of the EU measure in question in the light of the WTO rules. So the ECJ provides a definition of the WTO agreements, namely, 'a treaty based on reciprocity and mutual advantages' therefore, it is not a legal option for the defendant to claim its right under WTO. (13)
In such a situation the only true restrictions for the EU against introduction of sanctions are presented by the principles embodied in Article 3 and Article 21 of the TEU.
VI. LEGAL REMEDIES AGAINST THE EU SANCTIONS
It seems that the efficiency of judicial review of the EU sanctions in WTO Dispute settlement body is close to zero. Another international judicial institution is International Court of Justice (ICJ). However, there are two obstacles for bringing these issues to the ICJ. Firstly, according to Article 35 of the ICJ Statute the Court may only deal with a dispute when the states concerned have recognized its jurisdiction. No state can therefore be a party to proceedings before the Court unless it has in some manner or other consented thereto. The Russian Federation has never demonstrated its intention to bring the dispute around Crimea (which is one of the reasons to impose sanction on Russia and the ICJ judgment could eliminate the cause of sanctions) to the ICJ. Secondly, challenging the EU anti-Russia sanctions themselves in the ICJ is impossible since the ICJ has no jurisdiction over the disputes between a state and an international organization. International organizations, other collective entities and natural persons are not entitled to institute proceedings before the Court.
Thus, we can conclude that in the present situation there are no effective judicial remedies on the international level for Russia. However, such opportunities do exist within the EU legal system for individuals and legal entities.
As a rule under Article 275 (1) TFEU 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 (i.e. legal acts imposing sanctions). However, there is a certain exemption for natural and legal persons. In compliance with Article 275 (2) the Court shall have jurisdiction to monitor compliance with rule on proceedings, brought in accordance with the conditions laid down in the fourth paragraph of Article 263 of the TFEU, reviewing the legality of decisions providing for restrictive measures against natural or legal persons adopted by the Council on the basis of Chapter 2 of Title V of the TEU.
Under Article 263 (1) of the TFEU the Court of Justice of the European Union shall review the legality of legislative acts, of acts of the Council, of the Commission and of the European Central Bank, other than recommendations and opinions, and of acts of the European Parliament and of the European Council intended to produce legal effects vis-a-vis third parties. It shall also review the legality of acts of bodies, offices or agencies of the Union intended to produce legal effects vis-a-vis third parties.
The natural and legal persons' right to challenge the EU legal acts is limited: according to Article 263 (4) they may institute proceedings against an act addressed to that person or which is of direct and individual concern to them, and against a regulatory act which is of direct concern to them and does not entail implementing measures. Having regard to Article 275 (2) this rule is fully applicable to decisions and regulations imposing sanction on Russian citizens and Russia-based legal entities.
As it was correctly mentioned by Mr Blakeley, Barrister of Brick Court Chambers, according to the ECJ jurisprudence there are three basic grounds for annulment of legal acts adopting sanctions:
a) Manifest error of assessment;
b) Procedural grounds, and
c) Human rights and proportionality grounds.
The best ground for the nullification of the legal acts adopting sanctions is to demonstrate that the Council has made a mistake at the first stage of restrictive measures implementation, which is the identification of designated persons or entities. If the Council 'got it wrong' and implemented targeted sanctions to innocent persons it is a perfect reason to nullify the Council's actions.
To speak the truth, it is not obligatory to have clean hands in a matter because it is up to the Council to prove guilt. As the ECJ stated in Bank Mellat v Council (14) the burden of proof was upon the Council and the absence of evidence should not be held against the bank (the claimant).
Moreover, as it was stipulated by the ECJ, the obligation to state reasons ... constitutes an essential principle of European Union law, which may be derogated from only for the compelling reasons. The statement on reasons must therefore in principle be notified to the person concerned at the same time as the act adversely affecting him, for failure to state the reasons cannot be remedied by the fact that the person concerned learns the reasons for the act during the proceedings before the Courts of the European Union. (15) Unless there are compelling reasons touching on the security of the European Union or of its Member States or the conduct of their international relations, which prevent the disclosure of certain information, the Council is required to inform the entity covered by restrictive measures of the actual and specific reasons why it considers that those measures had to be adopted. It must thus state the matters of fact and law which constitute the legal basis of the measures concerned and the considerations which led it to adopt them.
Such a failure to give reasons or to provide evidence and material or to consider observations submitted could constitute procedural grounds for the Council legal acts annulment.
And the last set of grounds for the annulment includes fundamental breaches of rights. According to Kadi case (16) (a review the lawfulness of the EU regulation transposing the UN Security Council resolution) EU law provisions cannot be understood to authorize any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in Article 2 (1) of the TEU as a foundation of the Union. It is to be borne in mind that the EU is based on the rule of law, inasmuch as neither its Member States nor its institutions can avoid review of the conformity of their acts with the basic constitutional charter, the EU Treaties, which established a complete system of legal remedies and procedures designed to enable the Court of Justice to review the legality of acts of the institutions (17).
Nevertheless, some limitations of human rights are lawful. Under Article 52 (1) the European Union Charter on Fundamental Rights (EU Charter) any limitation on the exercise of the rights and freedoms recognized by this Charter must be provided for by law and respect the essence of those rights and freedoms. Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognized by the Union or the need to protect the rights and freedoms of others.
Moreover, as the ECJ held in Europaisch-Iranische Handelsbank v Council (18) according to settled case-law, the right to property and the right to carry on an economic activity form an integral part of the general principles of law whose observance is ensured by the Courts of the European Union, and are enshrined in Article 17 and Article 16 respectively of the Charter of Fundamental Rights. Respect for these fundamental rights is thus a condition of the lawfulness of acts of the European Union. Nevertheless, the case-law also makes it clear that fundamental rights are not absolute, and that their exercise may be subject to restrictions justified by objectives of public interest pursued by the European Union. Any economic or financial restrictive measure has, by definition, consequences which affect the right to property and the freedom to pursue a trade or business, thereby causing harm, in particular to the entities carrying on the activities that the restrictive measures in question are designed to stop. The importance of the aims pursued by the legislation at issue is such as to justify negative consequences, even of a substantial nature, for some operators. (19)
But we should bear in mind that all human rights limitations must be proportionate. According to Europaisch-Iranische Handelsbank case by virtue of the principle of proportionality the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures should be appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures, recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued.
The problem is not limited to the mere fact of human rights limitations by the EU acts, introducing sanctions, rather, it concerns the balance between the degree of such limitations and general interest to be protected by the EU, i.e. sanctions may limit fundamental rights but such limitations should be proportional and reasonable, considering the competing interests of different groups at hand. (20)
Therefore, it is in the light of proportionality criteria that such claims of illegality are to be examined.
Based on the foregoing we can conclude that whatever our attitude and legal qualification of the EU sanctions are the only way for challenging them is to use legal instruments provided by the EU legal system. However, this venue is open to individuals and legal entities only. As for Russia itself it should find the political way to solve the problems with our Western partners.
Chetverikov A, 'National Security Clause in European Union Law' (2013) 7 Russian Law on the Internet
Chetverikov A,'The Russian Federation National Security and WTO Law' (2013) 8 Laws of Russia: Experience, Analysis, Practice
Cortright, D and Lopez, G A,'Learning from the Sanctions Decade' (2000) 2 (3) Grotius Dialogue <http://www.worlddialogue.org/print. php?id=90>accessed 10 September 2015
Herik Larissavan den, 'Peripheral Hegemony in the Quest to Ensure Security Council Accountability for its Individualized UN Sanctions Regimes' (2014) The Journal of Conflict and Security Studies
Lester, M and Hobson, F 'Targeted Sanctions and Sanctions Targeted: Iranian Banks in the European Courts' (2013) Butterworths Journal of International Banking and Financial Law
Vitsum, V International Law (Infotropic-Media 2011)
Dmitriy Kulikov--the 4th year student of the Kutafin Moscow State Law University
Member of Kutafin University Students' Scientific Society Email: email@example.com
Vitaliy Slepak--PhD (Law), Kutafin Moscow State Law University, 2010
Assistant Professor, Department of Integration and European Law, Kutafin Moscow State Law University Email: firstname.lastname@example.org
Vladimir Zhbankov--PhD (Law), Kutafin Moscow State Law University, 2010
Assistant Professor, Department of Integration and European Law, Kutafin Moscow State Law University Email: email@example.com
(1) Larissa van den Herik, 'Peripheral Hegemony in the Quest to Ensure Security Council Accountability for its Individualized UN Sanctions Regimes' (2014), The Journal of Conflict and Security Studies.
(2) David Cortright and George A Lopez, 'Learning from the Sanctions Decade' (2000) 2 (3) Grotius Dialogue <http://www.worlddialogue.org/print.php?id=90> accessed September 10, 2015.
(3) Council decision 2011/69/CFSP of 31 January 2011 amending Council Decision 2010/639/CFSP concerning restrictive measures against certain officials of Belarus  OJ L280.
(4) M Lester and F Hobson, 'Targeted Sanctions and Sanctions Targeted: Iranian Banks in the European Courts' (2013), Butterworths Journal of International Banking and Financial Law 278-280.
(5) European External Action Service (EEAS) <http://eeas.europa.eu/cfsp/ sanctions/index_en.htm> accessed 10 September 2015.
(6) A Chetverikov, 'The Russian Federation National Security and WTO Law' (2013) 8 Laws of Russia: Experience, Analysis, Practice 75.
(7) V Vitsum, International Law (Infotropic-Media 2011) 684.
(8) ibid (n 6).
(9) A Chetverikov, 'National Security Clause in European Union Law' (2013) 7 Russian Law on the Internet.
(10) Sirdar v The Army Board  C-222/84, Court Commission v Spain  C-414/97, Tanja Kreil v Federal Republic of Germany  C-285/98, Court Commission v Germany  C-372/05.
(11) Judqment of Court Commission v Spain  C-414/97.
(12) Directive 2009/43/EC of the European Parliament and of the Council of 6 May 2009 simplifying terms and conditions of transfers of defense-related products within the Community  OJ L146/1.
(13) Judgment of the Court Joined cases Parfums Christian Dior SA v TUK Consultancy C-300/98, BV and Assco Geruste GmbH and Rob van Dijk v Wilhelm Layher GmbH & Co. KG and Layher BV C-392/98.
(14) Bank Mellat v Council of the European Union  T-496/10.
(15) Bank Melli Iran v Council of the European Union  T 390/08.
(16) Judgment of the Court Joined Cases C-402/05 P and C-415/05 P Yassin Abdullah Kadi and Al Barakaat International Foundation v Council of the European Union.
(17) Les Verts v European Parliament  ECR 1339 294/83.
(18) Judgment of the General Court T-434/11 Europaisch-Iranische Handelsbank v Council of the European Union
(19) Judgment of the Court C-84/95Bosphorus Hava Yollari Turizm ve Ticaret AS v Minister for Transport, Energy and Communications and others
(20) Judgment of the CourtC-144/04 Werner Mangold v Rudiger Helm, Judgment of the Court C 555/07 Seda Kucukdeveci v Swedex GmbH & Co.KG
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|Author:||Kulikov, Dmitriy; Slepak, Vitaliy; Zhbankov, Vladimir|
|Publication:||Kutafin University Law Review|
|Date:||Oct 1, 2015|
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