Sanctions by the United Nations Security Council and the European Community

Sebastian Bohr ¹

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I. Introduction

The demise of monolithic Communist rule in Central and Eastern Europe, and the consequent collapse of the East-West conflict dramatically strengthened the system of collective security established by the United Nations. The most remarkable example of successful UN action in this field was the economic sanctions imposed against Iraq in response to the invasion of Kuwait. Various Security Council resolutions were rapidly passed under the Chapter VII procedure, and in most cases with unanimous support from Security Council members. Further measures aimed at applying economic coercion were adopted in international crises involving Libya and Yugoslavia.

The main type of economic sanction is the embargo; that is a government initiated ban on its nationals trading with another State for reasons pertaining to foreign relations, and in reaction to illegal or politically undesirable acts of the recalcitrant State. It may concern the import or export of goods, capital or services.²International organizations can also impose embargoes, as is provided by Article 41 of the UN Charter.³ Therefore, the growing economic strength of the European Community might give rise to the question of whether it is empowered to adopt economic sanctions against third States. This is all the more true because under Article 113 of the Treaty of Rome, the common commercial policy fell within the EC's exclusive competence from the end of the transitional period (i.e. 1 January 1970).⁴ By contrast only Member States are competent to govern foreign relations; in this respect there is only coordination among States in the form of European Political Cooperation (EPC), which is outside the Community legal order.⁵ The question of whether the EC or its constituent Member States have competence to impose economic sanctions is a widely debated issue.⁶ State practice and doctrine confirm that the EC is empowered to impose autonomous economic sanctions, albeit after a decision is taken within the framework of EPC.⁷

The topic of the following discussion shall focus on a related issue. The Security Council has adopted a complete trade embargo against Iraq that has been implemented by the EC with Community measures. The same course of action was taken against Libya and Yugoslavia.⁸ In all these cases the exclusive competence of the EC for the common commercial policy⁹ was complemented by resolutions of the Security Council imposing a trade embargo.¹⁰ It therefore can be asked whether, in abstract terms, one international organization is bound by binding decisions of another international organization when both organizations have the same Member States, but legislative competence in relevant fields has been transferred to one of the international organizations. In the case under discussion, the question is whether the EC is bound by public international law and/or Community law to implement the aforementioned resolutions of the Security Council.¹¹ In a leading commentary on the Treaty of Rome it is said that

trade policy embargoes which are based on a UN sanctions decision can also be imposed by the EC with no obligation on the EC to treat the UN measures as binding. This is so because, in the case of the UN a succession (by the EC) in the position of its Member States has not taken place.¹²

At first glance it therefore appears as if the addressee of the obligations under public international law¹³ and the competent organ to act¹⁴ are not the same. This article will briefly overview the most recent practice in relation to sanctions, before proposing a solution to this apparent dilemma.

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1 University of Innsbruck. The author gratefully acknowledges the advice of Professor Waldemar Hummer.

2 Cf. B. Lindemeyer, Schiffsembargo und Handelsembargo (1975) 183.

3 Kuyper, `International Legal Aspects of Economic Sanctions', in P. Sarcevic, H. van Houtte (eds), Legal Issues in International Trade (1990) 145; cf. Verhoeven, `Sanctions internationales et Communautés européennes', 18 RBDI (1984-85) 79, 88. Sometimes the lack of passive legitimacy is used to justify previous EPC consultations, see, e.g., Vedder, `Artikel 113', in E. Grabitz (ed.), Kommentar zum EWG-Vertrag (1989) para. 62, but cf. para. 65; see also infra text note 86 et seq.

4 Opinion 1/75, Understanding on a Local Cost Standard, [1975] ECR 1355; Case 41/76, Donckerwolcke, [1976] ECR 1921.

5 Title III Single European Act, OJ 1987 L 169/1. On the EPC see Stein, `European Political Cooperation as a Component of the Foreign Affairs System', 43 ZaöRV (1983) 49; Nuttall, `Interaction between European Political Cooperation and the European Community', 7 YBEL (1987) 211. Title V of the Treaty on European Union, signed 7 February 1992, provides for a common foreign and security policy and replaces the former EPC.

6 See Gilsdorf, `Artikel 224', in H. Groeben, J. Thiesing, C. Ehlermann (eds), Kommentar zum EWG-Vertrag (1991) para. 26; Kuyper, supra note 2, at 166; Kampf, `Artikel 113 EWG-Vertrag als Grundlage für Embargomaßnahmen seitens der EWG', 35 RIW (1989) 791; G. Stenger, Das Handelsembargo im Außenwirtschaftsrecht. Praxis und Zulässigkeit (1988); Meng, `Die Kompetenz der EWG zur Verhängung von Wirtschaftssanktionen gegen Drittländer', 42 ZaöRV (1982) 780; Kuyper, `Community Sanctions against Argentina: Lawfulness under Community and International Law', in D. O'Keefe, H.G. Schermers (eds), Essays in European Law and Integration (1982) 141.

7 See infra text note 86 et seq.

8 Infra text Sections II.B and II.C.

9 This had not been the case for Security Council Resolutions 232 (1966), dated 16 December 1966, and 253 (1968), dated 29 May 1968, imposing a full embargo on Southern Rhodesia, as they were effective before the end of the transitional period. Consultations among the governments of the six Member States had not brought about coordinated national measures, see Kuyper, `Sanctions Against Rhodesia. The EC and the Implementation of General International Legal Rules', 12 CML Rev. (1975) 231, 238.

10 The Security Council had imposed against South Africa an arms embargo by Resolution 418 (1977), dated 7 November 1977, UNYB (1977) 161, which was implemented by the Member States because they were still competent in this respect under Art. 223(1)(b) of the Treaty of Rome; cf. also Bull.EC (1977/11) para. 3.2.6.

11 See Kuyper, supra note 8; Maier, `Zur Kompetenz der EG-Mitgliedstaaten zur Durchführung von Sanktionsbeschlüssen des Sicherheitsrats der Vereinten Nationen', 25 RIW (1979) 247; Petersmann, `Internationale Wirtschaftssanktionen als Problem des Völkerrechts und des Europarechts', 80 ZVglRWiss (1981) 1; Klein, `Zulässigkeit von Wirtschaftssanktionen der EG gegen ihre Mitgliedstaaten', 31 RIW (1985) 291; Lauwaars, `The Interrelationship between United Nations Law and the Law of Other International Organizations', in Festschrift Eric Stein (1987) 466; Klein, `Sanctions by International Organizations and Economic Communities', 117 AVR (1992) 101.

12 Vedder, supra note 2, at para. 65 (author's translation).

13 See infra Section III.A.

14 See infra Section III.B.

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