Paul James Cardwell, Professor of Law, King’s College London, Visiting Professor at Sciences Po Grenoble (2022)
On 24 February 2022, Russia invaded Ukraine. The immediate response by Western powers including the United States, Canada, the UK and the European Union was to impose further sanctions on Russia. The role of sanctions as the most immediate action is a feature of contemporary international relations, and their use is widespread and frequent.
In the past, the main source of sanctions was the United Nations Security Council (UNSC). Their decisions should then be implemented by states in their domestic legal systems. However, since the 1990s, unilateral sanctions have been extensively used by states, and by the European Union. They are unilateral or autonomous because they do not originate in the UNSC. The core purposes of sanctions are to punish third states or actors for behaviour or to prevent the continuation of such behaviour, or both.
The European Union, due its legal competences in the internal market, gave effect to UNSC resolutions adopting sanctions. However, what is more striking is that the European Union has moved to the forefront in the global use of unilateral sanctions – or ‘restrictive measures’ as they legally known in the Treaties (see Article 215 TFEU). As a response to international events, sanctions have become the ‘go to’ mechanism for the European Union. Even if they are not eventually imposed by the EU against a particular third state or entity, the mere discussion of whether sanctions should be imposed tells us a great deal about the capacity of the EU to act and the use of sanctions as a foreign policy tool.
This helpful map shows the current state of play of restrictive measures imposed by the EU. Sanctions are usually imposed on a third country, but there are also sanctions imposed on non-state actors (such as Islamic State or Al Qaeda) and individuals, wherever they may be in the world, in cases where they are suspected of involvement in terrorism. Sanctions take many different forms: some of the most frequent include prohibiting arms exports to a country, freezing of assets of certain key individuals and restrictions on trade and travel.
Some sanctions regimes can be in place for many years, and the use of sanctions remains controversial for international lawyers. The language of ‘smart’ or ‘targeted’ sanctions is frequently used to denote that the targets of sanctions are usually the leaders of a country and not the population at large. However, the impact of sanctions is often felt by those who are the poorest and most vulnerable in society. Whether sanctions do in fact have the desired effect remains highly contested.
For the European Union, sanctions are imposed via a translation of a foreign policy goal – as identified in the Common Foreign and Security Policy (CFSP) and then put in place via a Regulation which, as with all regulations, applies across the Member States. In doing so, sanctions represent a legalisation of the EU foreign policy – translating foreign policy goals into identifiable (legal) effects.
A further feature of EU sanctions is the practice of inviting selected non-EU Member States to ‘align’ with EU positions. Our latest article looks at this practice which has become increasingly formalised since 2007. Its origins lie in the enlargement process, whereby future Member States would be both familiarised with the content of EU sanctions, but also tested to ensure that their national foreign policies were at a stage where there was sufficient convergence with the CFSP. Although enlargement and pre-enlargement states in the Western Balkans, plus Turkey, are the subject of annual reports on their readiness for membership, the invitation to align with EU sanctions is extended to EEA-EFTA members Iceland, Norway and Liechtenstein and European Neighbourhood Policy (ENP) states in Eastern Europe including Moldova and Ukraine (now both recognised as candidate states) and Armenia, Azerbaijan and Georgia.
The rate at which these states align varies considerably – from very high (Albania and Montenegro) to high (Norway, Iceland, Moldova) to reasonably high (Georgia, Ukraine) to low (Turkey) or very low (Azerbaijan). The issues or targets on which they align also varies: the clearest example is, of course, those on Russia since 2014. Serbia, for example, has generally increased its rate of alignment with EU sanctions regimes, but has not done so on any towards Russia. Generally, however, all EU sanctions regimes attract alignment from at least 6 non-EU Members. Their scope, and potential effects, are thus wider than the EU Member States themselves.
In addition, Switzerland is not officially invited to align with EU sanctions, but the evidence shows that it adopts many of the EU sanctions regimes in a substantially similar way. The UK is in the unique position of carrying over sanctions from its EU membership, having been at the forefront of EU Member States using sanctions to ‘upload’ national foreign policy goals, but with a choice as to whether to diverge. There is little evidence of divergence yet, and therefore there is a legitimate claim that EU sanctions regimes are European ones more broadly.
The extent to which autonomous, unilateral sanctions have become such a common feature of the international relations horizon remains a topic on which there is a growing amount of attention, and academic literature. The case of the EU, a non-state actor which has often struggled to forge a distinct identity and match its words with actions, is beginning to demonstrates characteristics of leadership – and can, at the very least, claim such leadership of a large set of European (not just EU) sanctions.
This blog draws on the following article, now published Open Access in European Security:
Paul James Cardwell & Erica Moret (2022) The EU, sanctions and regional leadership, European Security, DOI: 10.1080/09662839.2022.2085997