Hostname: page-component-cd9895bd7-gbm5v Total loading time: 0 Render date: 2024-12-24T16:32:53.014Z Has data issue: false hasContentIssue false
  • English
  • Français

Un Sanctions In Eu and National Law: The Centro-Com Case

Published online by Cambridge University Press:  17 January 2008

Riccardo Pavoni
Get access Rights & Permissions [Opens in a new window]

Extract

International sanctions, understood as coercive means imposed by the United Nations, or by States, individually or collectively, against a country responsible for violating fundamental rules of international law, have been extensively analysed in the legal literature.1 A survey of such literature shows that particular emphasis has been put on the nature of sanctions, their status in international law and the very controversial issue of the legality of their adoption either by regional organisations, or by a State motu proprio, unilaterally.

Type
Articles
Information
International & Comparative Law Quarterly , Volume 48 , Issue 3 , July 1999 , pp. 582 - 612
Copyright
Copyright © British Institute of International and Comparative Law 1999

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. See Castan¯eda, J., Legal Effects of United Nations Resolutions (1969)Google Scholar; Combacau, J., Le pouvoir de sanction de l'ONU—Etude théorique de la coercition non militaire (1974)Google Scholar; Doxey, M. P., Economic Sanctions and International Enforcement (1980)Google Scholar and International Sanctions in Contemporary Perspective (1987)Google Scholar; Gowlland-Debbas, V., Collective Responses to Illegal Acts in International Law—United Nations Actions in the Rhodesian Question (1990)Google Scholar; Francioni, F., “Sanzioni internazionali”, in Enciclopedia Giuridica Treccani (1992)Google Scholar; Damrosch, L. F. (Ed.), Enforcing Restraint—Collective Intervention in Internal Conflicts (1993)Google Scholar; Focarelli, C., Le contromisure nel diritto intemazionale (1994)Google Scholar; Cortright, D. and Lopez, G. A., (Eds), Economic Sanctions: Panacea or Peace-building in a Post-Cold War World? (1995).Google Scholar

2. Such power is provided for in Art.41 of the UN charter, which reads: “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 relation.” Despite the ambiguous wording of the provision (the verb “to call upon” seems to refer to voluntary measures), it is unanimously acknowledged that the legal rules flowing from those resolutions are of a binding nature, that is, the UN member States are under a legal obligation to comply with them.

3. The resulting legal framework can subsequently be described as a pyramid: at the top we find the UN Security Council resolutions; the sides and the basis are constituted, respectively, by the EC and member States' implementing legislation.

4. “The members of the United Nations agree to accept and carry out the decisions of the Security council in accordance with the present Charter.”

5. A system is said to be monist when it conforms with the idea that international law is automatically part of, and superior to, domestic law, or dualist when it does not grant legal force to international rules, unless they are transformed into national ones through the constitutional legislative machinery.

6. This is true in principle and by way of approximation: actually, the international origin of domestic norms plays an important role, since dualist countries have recognised the existence of an interpretative rule according to which those domestic norms must be construed, as far as possible (that is, with the exclusion of irreparable incompatibilities), so as not to be in conflict with the international norms they purport to transform. For a clear assertion of this principle in British case-law, see Garland v. British Rail Engineering Lid [1983] 2 A C. 751.Google Scholar

7. But see Conforti, B., Diritto Internazionale (1997), pp.312–316Google Scholar, who holds that a “principle of speciality” operates, according to which international conventional rules can be superseded by later domestic norms having the same rank only if the legislator expressly declares the double intention to derogate from the international rules in themselves and from the (national) implementing legislation “ordering” their execution (“ordine di esecuzione”). Such thesis can be adapted to a large number of national legal systems, even though originally formulated with respect to the Italian one.

8. However, according to Conforti, idem, pp.318–21, UN resolutions adopted under Art.41 of the Charter are to be considered directly applicable within internal legal orders, since the State's execution of the UN Charter would express acceptance of the organisation's binding powers.

9. Particularly noteworthy, in recent times, Vazquez, C. M., “The Four Doctrines of Self-Executing Treaties” (1995) 89 A.J.I.L. 95.Google Scholar In the Italian literature see particularly Conforti, idem, pp.298–302; and the acute and still pertinent observations by Condorelli, L., Il giudice italiano e i trattati internazionali Gli accordi self-executing e non self-executing nell'ottica della giurisprudenza (1974).Google Scholar

10. On the US practice, See Joyner, C., “Sanctions, Compliance and International Law: Reflections on the UN Experience against Iraq” (1991–1992) 32 Virginia J.I.L. 1.Google Scholar On the French one, See Naud, F., “L'Embargo: Une Valse à Trois Temps. Nations Unies, Union Euxopéenne et Etats Membres” (1997) R.M.C. n.404, pp.25–33.Google Scholar

11. The ECJ cases referred to in the main text are: Case C-124/95, Regina v. HM Treasury and Bank of England, ex p. Centro-Com Srl [1997] E.C.R. 1–81Google Scholar, [1997] 3 W.L.R. 239Google Scholar (which includes the Report for the Hearing); Case C-177/95, Ebony Maritime SA and Loten Navigation Co. Ltd v. Prefelto della Provincia di Brindisi and Others [1997] E.C.R. 1—1111Google Scholar (for the Italian version of the these two cases, see; [1997] R.D.I. 797–815)Google Scholar; Case C-84/95, Bosphorus Hava Yollari Turizm ve Ticaret AS v. Minister for Transport, Energy and Communications, Ireland and the Attorney General [1996] E.C.R. 1–3953.Google Scholar

12. Canor, I., “Can Two walk together, except They Be Agreed? The Relationship Between International Law and European Law: the Incorporation of United Nations Sanctions against Yugoslavia into European Community Law through the Perspective of the European Court of Justice” (1998) 35 C.M.L.Rev. 137, 150, n.46.Google Scholar

13. Consider the following exemplary assertion made by the English Divisional Court in thefirststage of the Centro-Com case: “Section 1 of the 1946 UN Act [which is the authority for all UK sanctions legislation—see infra Part IV] … is the medium by which that international obligation [to allow humanitarian exports] may become part of United Kingdom law. We say may become because Section 1 is an enabling provision. It empowers, but does not oblige, the United Kingdom Government to take measures in support of United Nations sanctions. Moreover, it is a wide enabling power, leaving much to the discretion of the Government”: R. v. HM Treasury and the Bank of England, ex p. Centro-Com Srl [1994] 1 C.M.L.R. 109, 124–125, para.39 (emphasis added).Google Scholar

14. As rightly pointed out by Canor, op. cit. supra n.12, p.161.Google Scholar The author confronts the issue of the consistency between protection of fundamental rights at Community level and the requirement of effectiveness of UN sanctions. As is well known, but curiously enough, the legality of review of UN resolutions by the ICJ is extensively debated in the light of the Lockerbie case: see, I.C.J.Rep. 1992, 3, 114 (provisional measures) and the Court's judgment of 27 Feb. 1998 (preliminary objections).Google Scholar

15. See Kuyper, P. J., “Community Sanctions against Argentina: Lawfulness under Community and International Law”, in O'Keeffe, D. and Schemers, H. G. (Eds), Essays in European Law and Integration (1982), 141Google Scholar; Dewost, J. L., “La Communautié, les Dix, et les ‘sanctions’ économiques: de la crise iranienne à la crise des Malouines” (1982) 28 A.F.D.I. 215.Google Scholar A detailed monograph on the EEC/EC sanctions practice has recently appeared in the Italian literature: Davì, A., Comunità Europee e sanzioni economiche internazionali (1993).Google Scholar

16. Reference is to the sanctions imposed against Iraq, Serbia and Montenegro, Libya, Haiti, the Unita Movement in Angola, Liberia and Somalia (the principal resolutions are cited infra Sections II.A and B): for a recent thorough survey, see the contributions in Picone, P. (Ed.), Interventi delle Nazioni Unite e diritto internazionale (1995).Google Scholar

17. Art.48(2) of the UN Charter reads: “Such decisions [concerning the maintenance of international peace and security] shall be carried out by the Members of the United Nations directly and through their action in the appropriate international agencies of which they are members.” On the problems of interpretation of this provision, see Eisemann, P. H. in Cot, J.-P. and Pellet, A. (Eds.) Le Charte des Nations Units. Commentaire Article par Article (1985) 747Google Scholar; Bryde, M. in Simma, B. (Ed.) The Charter of the United Nations. A Commentary (1994)651.Google Scholar

18. Klein, E., “Sanctions by International Organizations and Economic Communities” (1992) 117 A.V. 101Google Scholar; Bohr, S., “Sanctions by the United Nations Security Council and the European Community” (1993), 4 E.J.I.L. 256Google Scholar; Savio, C. M. Lo, “Sulla competenza comunitaria ad adottare ‘sanzioni’ economiche internazionali: il caso iugoslavo” (1993) R.I.D.P.C. 1439Google Scholar; Angelet, N., “La mise en oeuvre des mesures coercitives économiques des Nations Unies dans la Communauté européenne” (1993) R.B.D.I. 500.Google Scholar

19. (1993) O.J. C224Google Scholar

20. (1990) O.J. L213/1.Google Scholar

21. (1990) O.J. L304/1.Google Scholar

22. (1992) O.J. L101/53.Google Scholar

23. (1992) O.J. L151/4.Google Scholar

24. (1992) O.J. L102/14.Google Scholar

25. See, the broad interpretation given to Art.113 (now Art.133) by the ECI in Opinion 1/78 [1979] E.C.R. 2871, para.45Google Scholar, and more recently in Opinion 1/94 [1994] E.C.R. 1–5267, paras.31, 39.Google Scholar

26. Parliament's Opinion of 26 Oct. 1990 (1990) O.J. C295.Google Scholar

27. (1992) O.J. L361/1.Google Scholar

28. Supra n.25. The dispute concerned the delimitation of competence between the Community and the member States with respect to the conclusion of the Agreement establishing the World Trade Organization and a number of other agreements annexed thereto. Sec especially Bourgeois, J. H. J., “The EC in the WTO and Advisory Opinion 1/94: An Echternach Procession” (1995) 32 C.M.L.R.Rev. 763Google Scholar; Appella, A., “Constitutional Aspects of Opinion 1/94 of the ECJ Concerning the WTO Agreement” (1996) 45 I.C.L.Q. 440.Google Scholar

29. Opinion 1/94, idem, para.48.

30. idem, para.51.

31. Such a doctrine legitimates a Community measure in so far as it is principally concerned with a constitutional competence and other aspects thereto are merely ancillary. It is, however, evident that the problem of abuse of the doctrine itself is particularly delicate.

32. In other words, the full effectiveness, e.g. of an export-import prohibition cannot be guaranteed without providing, at the same time, that all commercial contracts concluded with persons residing in the target State are not to be given effect.

33. In infra Section II.B we will assess whether such a conclusion is still valid in the light of the changes envisaged by the Maastricht Treaty.

34. Bohr, , op. cit. supra n.18, at p.268.Google Scholar

35. This is indeed the view taken by Lang, A., “Risoluzioni del Consiglio di Sicurezza, obblighi comunitari e politica estera dell'Unione Europea” (1997) XXI Comunicazioni e Studi 535, 588.Google Scholar She believes that such a solution is the only one compatible with the general principles regulating the subject-matter, in particular with Art.11(2) ex-Article J.1(4), TEU, according to which, inter alia, member States “shall refrain from any action which is contrary to the interests of the Union or likely to impair its effectiveness as a cohesive force in international relations”. It is, however, important to point out that Lang's work as was written before the ECJ judgments involving UN sanctions (supra n.11 and infra Part IV were rendered.

36. Lang, idem, p.583, outlines that a legal requirement of Community sanctions legislation is that it “cannot go beyond the provision of the [UN] resolution, unless Community action is nonetheless in conformity with general international law”. Of course, this is correct, but it is also a theoretical proposition. As we shall see, the practice (both legislative and judicial) shows a complex interplay between UN, Community and national measures.

37. E.g. Canor, loc. cit. supra n.12, at p.150Google Scholar, correctly points out that, although the Court applied the UN resolutions since they were incorporated into European law by specific regulations, “… that is not sufficient to justify the interpretation of the United Nations Resolution[s] being conceived as a matter of Community act interpretation” (emphasis added).

38. See particularly Winter, J., “Direct Applicability and Direct Effect—Two Distinct and Different Concepts in Community Law” (1972) 9 C.M.L.Rev. 425Google Scholar; Wyatt, D., “Directly Applicable Provisions of EEC Law” (1975) 125 N.L.J. 458, 575, 669, 793Google Scholar; Luzzatto, R., La diretta applicabilità del dirino comunitario (1980)Google Scholar; Pescatore, P., “The Doctrine of ‘Direct Effect’: An Infant Disease in Community Law” (1983) 8 E.L.R. 155Google Scholar; Tesauro, G.Diritto Comunitario (1995), pp.107–119Google Scholar; Gaja, G., Introduzione al diritto comunitario (1999), pp.95–110Google Scholar; Conforti, op. cit. supra n.7, at pp.321–330Google Scholar; Hartley, T. C., The Foundations of European Community Law (1995) pp.195–237.Google Scholar

39. (1993) O.J. L295.Google Scholar

40. (1994) O.J. L182.Google Scholar

41. (1994) O.J. L266.Google Scholar

42. Commission's Opinion on the Draft Revision of the Treaty establishing the EEC as concerning the political Union [1991] Bull. E.C. (suppl. No.2/91), pp.61, 95.Google Scholar

43. With minor differences, this is the opinion held by Davì, op. cit. supra n.15, at p.592Google Scholar and Lang, op. cit. supra n.35, at pp.586–587.Google ScholarCanor, op. cit. supra n.12, at pp.173–174Google Scholar holds that member States are even deprived of their competence under Art.297 if the Court annulls a Community embargo regulation for violating human rights.On the other hand, Lo Savio, op. cit. supra n.18, at p.458, is more in line with our position. However, we confirm (see supra Section II.B) that the legal situation is not straightforward, if only because States should in principle express their disagreement with the Community action in the framework of the Common Foreign and Security Policy (CFSP).Google Scholar

44. On the relationship between CFSP decisions and adoption of sanctions under Art.301, see, Lang, idem, pp.556–581.

45. S.I. 1990 No.1651.Google Scholar

46. S.I. 1992 No.1302.Google Scholar

47. S.I. 1993 No.1188.Google Scholar

48. S.I. 1992 Nos.973 and 975.Google Scholar

49. S.I. 1993 No.2807.Google Scholar

50. S.I. 1993 No.1787.Google Scholar

51. S.I. 1994 No.2673.Google Scholar

52. For a technical analysis of the UK implementing legislation, See Fox, H. and Wickremasinghe, C., “British Implementation of UN Sanctions against Iraq” (1992) 41 I.C.L.Q. 920Google Scholar and “UK Implementation of Economic Sanctions” (1993) 42 I.C.L.Q. 945.Google Scholar

53. The UK system itself needs revision, given that the UN Act 1946 does not constitute sufficient authority for implementing all types of sanctions adopted by the Security Council (e.g. the “naval interdiction” measures). Cf. idem (1993), pp.966, 967, 970.

54. However, the principle of consistent interpretation must be taken into account. See supra n.6.

55. Decree-Law No.305 of 6 June 1992 [1992] 133 G.U.Google Scholar

56. Decree-Law No.144 of 15 May 1993 [1993] 113 G.U.Google Scholar

57. Decree-Law No.107 of 7 Apr. 1995 [1995] 84 G.U.Google Scholar

58. Indeed, a partial explanation is to be found in the European Communities Act 1972 itself. In fact, subpara.I(d) of Sched.2 prevents the implementation of EC provisions by means of subordinate legislation, when, inter alia, “…any new criminal offences punishable with imprisonment for more than two years…” are envisaged. Such is the case with the embargo rules. It is, however, worth considering other possible reasons for the UK practice: see further in the main text.

59. The most important cases are Centro-Com, Ebony Maritime and Bosphorus, cited supra n.11.

60. Ibid.

61. See, most recently, case C-64/95, Konserven Lubella Friedrich Büker GmbH & Co. KG v. Hauptzollamt Cottbus [1996] E.C.R. 1–5105, para.17 of the judgment.Google Scholar

62. For another instance of hypothetical conflict see Case C-299/94, Anglo Irish Beef Processors International and Others v. Minister for Agriculture, Food and Forestry [1996] E.C.R. 1–1925.Google ScholarThe plaintiff here unsuccessfully tried to persuade the ECJ that Reg.2340/90 did not correctly implement S.C.Res. 661 (1990) on the embargo against Iraq.Google Scholar

63. Supra n.11. See the annotation in 1997 R.M U. EI 11 and by Vedder, C. and Folz, H.-P. (1998) 35 C.M.L.Rev. 209.Google ScholarSee also Sam-Simenot, A. “Les Conflits de Competence entre la Communauté Européenne et les Etats Membres dans Domaine des Sanctions Economiques Edictées par le Conseil de Sécurité de l'ONU” (1998) Recueil Dalloz-Chronique 83.Google Scholar

64. R. v. HM Treasury and the Bank of England, ex p. Centro-Com Srl [1994] 1 C.M.L.R. 109.Google Scholar

65. idem, paras.90–91.

66. Curiously enough, while the consequences arising from the superiority of the UN charter provisions were only incidentally and ad abundantiam dealt with by the Divisional court, such an argument would prove to be fundamental/ as we shall see, before the ECJ.

67. The establishment of such a body is urged by Klein, op. cit. supra n.18, at pp. 111–112.Google Scholar

68. For a sharp (and somewhat overstated) critique of the Bosphorus judgment See Canor, , op. cit. supra n.12. The author maintains that the need to protect the property rights of the Turkish company should have urged the Court either to declare the Reg. void (esp. at p. 170) or to interpret it consistently with such requirement (esp. at p.186).Google Scholar

69. Established by virtue of S.C.Res. 724 (1991).Google ScholarSee Scharf, M. P. and Dorosin, J. L., “Interpreting UN Sanctions: the Rulings and Role of the Yugoslavia Sanctions Committee” (1993) 19 Brooklyn J.I.L. 771.Google Scholar

70. Bosphorus, supra n.11, at para.46 of the opinion. The literature disagrees on this point: Scharf and Dorosin, idem, pp.821–827, see the Yugoslavia Committee as a “quasi-judicial” body, while Conlon denies to Sanctions Committees in general any judicial authority, see Conlon, P., “Legal Problems at the Centre of United Nations Sanctions” [1996] Nordic J.I.L. 73.Google Scholar

71. The Independent, 3 06 1994.Google Scholar

72. See the critical views expressed by the Belgian, Dutch and Italian governments and by the Commission: [1997] 3 W.L.R. 239, pp.250–254.Google Scholar

73. As applied by analogy to the instrument material in the case, namely Reg.2603/69 establishing common rules for exports: (1969) O.J. Spec Ed. 590.Google Scholar

74. Centro-Com, supra n.11, at para.42 of the judgment.

75. See supra n.73.

76. See e.g. Case 72/83, Campus Oil Ltd and Others v. Minister for Industry and Energy (1984) E.C.R. 2727, para.27.Google Scholar

77. Centro-Com, supra n.11, at para.52 of the judgment.

78. See esp. idem, para.24

79. The Court does not specifically deal with the Maastricht provisions, but our conclusion can be inferred from its reasoning and it is also (reluctantly) agreed by the A.G.: see idem, para.44 of the opinion.

80. idem, paras.25 and 26 of the judgment. The Court gives particular emphasis to the analogous ruling in Case C-70/94, Fritz Werner Industrie-Ausrüstungen GmbH v. Federal Republic of Germany [1995] E.C.R. 1–3189, para.10.Google Scholar

81. Such a circumstance is also pointed out by Kokott, J. and Conrads, M.. “Note to Ex p. Centro-Com” (1997) 91 A.J.I.L. 722, 725.Google Scholar

82. Centro-Com, supra n.11., A-G's opinion, para.35. A very similar view has been expressed by Klein, op. cit. supra n.18, at p.111.Google Scholar

83. See text accompanying supra nn.64 et seq. for the analogous reasoning of the Divisional Court.

84. Centro-Com, supra n.11, at para.58 of the judgment. See, in recent times, Case C-158/91, Criminal proceedings against Levy [1993] E.C.R. 1–4287, para.21Google Scholar and Case C-324/93, R. v. Secretary of State for the Home Department, ex p. Evans Medical Ltd and Macfarlane Smith [1995] E.C.R. 1–563, para.29.Google Scholar On the significance of Article 307 see, most recently, Case C-122/95, Germany v. E.U. Council [1998] E.C.R. 1–999, para.58–65.Google Scholar

85. Centro-Com, idem, A-G' s opinion, para.71.

86. idem, para.60 of the judgment, where para.32 of Evans Medical, supra n.84, is quoted.

87. The same argument suggests that the UK was well aware of what the ECJ could say about Art.234.

88. Following an interview with Centro-Com's counsel, we have been informed that it has not been possible to reintroduce the case before the Court of Appeal as a consequence of the company's bankruptcy (declared by Tribunale di Udine, judgment of 12 Dec. 1996). Then, we are unfortunately deprived of the judicial epilogue of the Centro-Com affair, which would certainly represent an important testimony to the current law concerning the implementation of UN sanctions. However, we certainly doe not believe that the British court would have interpeted the ECJ ruling as implying only an “illusory” power of national judges with respect to the ascertainment of the conformity of domestic rules to the UN sanctions and only a “residual and virtual competence” of member States to implement the sanctions themselves. This is the view taken by SAM-SIMENOT, supra n.63, pp.86–87.Google Scholar

89. As rightly put by Canor, op. cit. supra n.12, at p.167Google Scholar, such a situation “cannot be avoided by a simple transfer of competences in the relevant field to the Community”.

90. However, the effectiveness of the UN sanctions system would certainly get benefit from the improvement of the committee machinery, at least in terms of swiftness of the process of review of national measures.

91. See the Bosphorus and Ebony Maritime cases, supra n.11.

92. See supra Part IV, especially text accompanying n.82v. However, Article 23(2) TEU, after establishing qualified majority voting for important decisions (such as joint actions and common position re-introduces unanimity with respect to the very same cases: any member State had in fact that power to oppose the adoption of a decision for important and stated reasons of national policy (so-called “emergency brake”). Of course, it is not wise to draw any final conclusions on the impact the new decision-making procedures will have on the CFSP of the Union. However it seems reasonable to predict that the problems outlined in this article will not be easily eradicated. On the contrary, another innovation may potentially amplify such problems. Under the so-called “constructive abstention” procedure (see Article 23(1) TEU) any member State is in fact allowed to make a formal declaration to this effect and, as a consequence, it will not be obliged to comply with a particular decision, while accepting that the latter commits the Union.