Written evidence from Professor Paul James Cardwell, School of Law, University of Strathclyde, Glasgow (FSP0007)

I am a Professor of Law, specialising in the law and politics of the external relations of the European Union.[1] I have published widely on EU external relations, with particular focus on questions of institutional coherence arising from the Treaty of Lisbon. More recently I have been looking at future UK-EU dynamics in the field of external relations. I have previously submitted evidence to Parliament relating to Brexit and external relations.[2] As sanctions are an increasingly prominent part of EU external relations, I have also published research on this topic, as part of an evaluation of the ‘values’ contained in the CFSP. I am currently continuing research on the alignment of third countries with CFSP measures. Prior to the referendum, I obtained funding from the UK in a Changing Europe initiative to produce public-facing information on external relations, including producing a series of YouTube videos – one of which was devoted to sanctions.[3]

In this submission, I have focussed my comments on the following points in the call for evidence:

• The effectiveness of sanctions as an instrument of foreign policy, including examples of both successful and unsuccessful use of sanctions to influence the behaviour of foreign actors
• The advantages and disadvantages of the EU’s approach to the use of sanctions, both generally and in specific cases (such as Russia) 
• The extent to which the UK should seek to align with the EU in sanctions policy post-Brexit, versus areas in which it may wish to diverge or seek stronger sanctions 

Sanctions in the Legal Order of the EU

1. Sanctions have become an essential plank of the Common Foreign and Security Policy (CFSP). They are often regarded as a ‘go to’ measure when seeking redress against a third country. However, they are highly differentiated in terms of geographical scope, purpose, longevity and impact. There are currently over 30 sanctions regimes in place towards different countries.[4]
2. Approximately half of current EU sanctions regimes originated in the UN Security Council (UNSC) and – as a matter of EU law since they relate to measures affecting the internal market – are implemented by an EU Regulation that automatically takes effect in all Member States. UNSC sanctions on Libya, Sudan and Afghanistan during the 1990s were spearheaded by the United States and began – even before 9/11 – to target states which supported terrorist groups.
3. The remaining sanctions regimes – including those on Russia – are autonomous EU sanctions and have not been mandated by the UNSC. In addition to sanctions on third states, there are two periodically-updated lists targeting suspected terrorists and members of Al-Qaeda/Daesh/ISIL. The operation of these lists has been the focus of a string of cases in Court of Justice, most notably Kadi.[5]
4. Autonomous EU sanctions were applied to both the USSR and Argentina in the early 1980s but it is only in recent years, and in particular since the mid-2000s, that sanctions have taken a central place in EU foreign policy.[6] The end of the Cold War coincided with the eventual moves towards the conclusion of the Treaty on European Union (Treaty of Maastricht) which, in attempting to endow the Union with an international political voice consummate with its economic might, allowed the EU to engage in a more proactive approach with regard to the projection of its values via the imposition of sanctions.[7]
5. This was an important turning point, but one which required a legal response to the question of how to connect the non-legally enforceable CFSP with the mainstream EU legal order. The response was found in drawing on the practices which initially emerged during the 1980s, by adopting a decision in the framework of the intergovernmental European Political Cooperation, followed by a Regulation concluded via the regular institutional method. This arrangement continued to provide the basis for the settlement at Maastricht by transferring the practice to a combination of measures: a CFSP instrument which ‘paves the way’[8] for a Regulation. A specific Treaty article was introduced which provides for the following:

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. It shall inform the European Parliament thereof.[9]

6. Therefore, a ‘link’ between the ‘political’ CFSP (under Title V of the Treaty on European Union) and the ‘legal’ Community order was created, which largely remains intact today. It has contributed to the development of coherence and consistency of the Union’s action – both of which have been specific points of criticism of EU foreign policy.[10] The years following the end of the Cold War permitted the UNSC to impose sanctions more regularly. Though criticised for inaction in the face of the breakup of Yugoslavia, the EU began to enact restrictive measures independently of the UNSC as it began to try to capitalise on the Treaty innovations at Maastricht.
7. The 9/11 attacks in the United States in 2001 were the catalyst for both the UNSC and the EU to begin to impose restrictive measures against natural and legal persons. The extent to which these types of sanctions have been imposed has meant that they have not only become a key part of the EU’s practice of sanctions but that they have become a ‘cornerstone’ of the CFSP.[11] Some of these have resulted in high-profile legal challenges, and have led the CJEU to striking down sanctions against targeted individuals.[12]
8. The extent to which sanctions occupy a central place in EU foreign policy is demonstrated in two principal ways, which are highly relevant for UK sanctions policy post-Brexit.
9. First, the decision to impose or lift sanctions is a political one and relies on a high level of confidential information-sharing between EU members. However, the actual process is a legal one and firmly grounded in the institutionalised legal order of the EU. In fact, the CFSP has witnessed a ‘legalisation’ during its 25 year history, which makes it more entwined with the rest of the EU’s legal order than might appear from a reading of the Treaty and especially the exclusion of the jurisdiction of the Court of Justice.[13] In this way, it draws on both the ‘internal’ legal system (given its close relationship to the extensive law of the internal market) and provides a robustness to the external relations of the EU. It is a highly institutionalised process that empowers its members to amplifying their concerns at an EU level – and this applies whether they are a large or small Member State. The advantage for the UK to operate in this framework in terms of amplifying foreign policy aims via the EU’s institutional framework was explicitly recognised in the Balance of Competences Review ‘as a key pillar of the international community’s approach to countering Iran’s nuclear programme, ending the violence in Syria and promoting democratic change in Burma’.[14] However, the institutionalised process means that third states with whom the EU and its Member States have a deep relationship (e.g. via NATO) are largely excluded.
10. Second, sanctions have become a means for the EU to find its voice and forge a set of common values on the basis of the text contained in the Treaty.[15] The EU has often been accused of being little more than a ‘talking shop’ on foreign policy, and lacking the means or will to forge a ‘real’ foreign policy. However, this criticism largely underestimates the challenges for the EU, as a non-state actor, in a global environment where nation states are the primary actors. It is also a characterisation from the early 1990s which has endured. Unlike the Common Commercial Policy, where the EU institutions have been delegated the competence to represent the Union as a whole, the CFSP does not replace individual foreign policies of Member States. On sanctions, however, we can see that the EU is indeed capable of matching its words with actions. Crucially, any evaluation of the effectiveness of sanctions must also take into account the threat of imposing sanctions as a means of altering behaviour. This is a significant foreign policy tool because it is backed up by legal force within the Member States. Agreeing autonomous sanctions is only possible due to the experience and build-up of trust, cooperation and expertise within the EU institutional framework – and the likely effects that sanctions may have on a third state. This is a significant consideration for the UK, since it will be outside of this framework.

Involving Third States in EU Sanctions

11. My current research looks at the alignment of third countries with EU Declarations. Declarations are not binding or enforceable legal tools per se, but rather statements which (usually) criticise a third country for particular courses of action: such as aggression towards a neighbour, the use of the death penalty or suspected violations of human rights or election processes. The relevance for this call for evidence is that current practice over the past 15 years has also been to issue a Declaration regarding the imposition of sanctions. This allows for the capture of a significant amount of data on EU practice. Of particular interest here for a post-Brexit UK is the invitation extended to selected neighbouring countries to align with these Declarations.
12. In terms of procedure, the contents of both Declarations and sanctions generally are agreed in the Political and Security Committee (PSC) of the Council between EU ambassadors and representatives of the European External Action Service (EEAS).[16] Once drafted in terms acceptable to the Member States, the Declaration is then transmitted to 14 neighbouring countries. They consider whether to publicly align with its contents. In doing so, they commit to adopting their national legal systems and foreign policy to the EU’s sanctions on the third country in question. The Declaration is then re-issued (approximately 48 hours later) with the list of the aligning countries at the foot of the Declaration.[17]
13. This practice grew out of the process of enlargement in the early 2000s, since new members are obliged to take on the responsibilities of membership including CFSP as part of the acquis. The categories of invited third states has since widened. They include third states associated with the EU under different frameworks: enlargement or pre-enlargement (Albania, Bosnia-Herzegovina, former Yugoslav Republic of Macedonia, Montenegro, Serbia, Turkey), EEA (Iceland, Norway, Liechtenstein) and the Eastern Partnership (Armenia, Azerbaijan, Georgia, Moldova, Ukraine). Other countries covered by the European Neighbourhood Policy (ENP) in North Africa and the Middle East have not been invited to align, though this was previously mooted for countries with deeper relationships with the EU (such as Jordan and Morocco). There is no invitation to Belarus to align, since the EU’s relationship with the country is very limited.
14. There is no specific legal or political requirement on the EU to invite states to align. Article 8 TEU requires the EU to ‘develop a special relationship with neighbouring countries … founded on the values of the Union’, but this does not extend to any legal obligation to involve third states in foreign policy or sanctions measures. Neither are any of the neighbouring states under an obligation to align, though persistent non-alignment may be a factor in deciding whether progress has been made along the path of enlargement for those states in the process. The UK, post-Brexit, does not fit into any of the categories of the third states above. But since invitations to align do not depend on legal provisions in, for example, association agreements, there is not theoretical reason why the UK should not be invited to align too (if it so wishes).
15. The principal advantage for the EU in this approach of involving third states is the amplification of EU foreign policy. Although most of the states invited to align are relatively small, the relative size of a country is less important when considering – in particular - restrictive financial measures. Sanctions imposed by the EU therefore cover 28 Member States with a potential 14 others too. This makes 42 as a maximum total imposing EU-led sanctions. This total figure equates to one-fifth of the total number of members of the United Nations and hence an even more significant ‘bloc’.
16. Sanctions have become the most common type of Declaration issued since 2014. 186 have been issued in total since 2007. Two figures below demonstrate the extent to which the invited third states have aligned with EU Declarations and specific sanctions measures. Croatia is included for the period before its EU accession in 2013.
17. The overall alignment with sanctions by third states is generally high for most of the states. A distinction needs to be drawn between sanctions that apply to Russia (and others. The assumption is that states close to Russia (geographically or historically), or with very strong links with Russia due to the latter’s regional role in, for example, maintaining the status quo in the ongoing conflict between Armenia and Azerbaijan; energy supplies; or where there has been territorial conflicts/tension are likely to have an impact. This includes the territorial conflicts in the region (Chechnya, Transnistria, South Ossetia, Abkhazia) where Russia has a key role. Belarus, as a strong ally of Russia, is also included within this scope, since it is within the same neighbourhood of many of the partner states and criticism of Belarus could be indirectly interpreted as criticism of Russia (with high political cost). Despite claims that the EU lacks a coherent approach to Russia,[18] of the 38 Declarations in total (of which all but one since 2011 are sanctions Declarations), most relate to the conflict in eastern Ukraine/Crimea since 2014.
18. Albania, Iceland, Norway, Liechtenstein and Montenegro have aligned with almost all the Declarations. FYROM and Bosnia and Herzegovina have aligned with most, including on Belarus, but not with those on Russia. Turkey has only aligned with sanctions Declarations on Transnistria and none on Russia or Belarus since 2011. Ukraine, logically, has aligned with the Declarations for which the purpose is protecting its territorial integrity but is much patchier on Declarations on Belarus, even as its average rate of alignment has increased since 2014-15.
19. For Moldova, Armenia, Georgia and Azerbaijan, the picture is most telling. Their overall rates of alignment are brought down considerably by their unwillingness to align with sanctions on Russia. Serbia and Moldova have not aligned with any of the sanctions relating to eastern Ukraine even though both have been enthusiastic in aligning with all other kinds of sanctions. Armenia and Azerbaijan have not joined any of the sanctions. Even Georgia, which has been both vocal about its drive to pursue closer relations with the EU and which has a very limited diplomatic relationship with Russia since their conflict in 2008, has not aligned with any of the sanctions on Russia or Belarus.
20. The presence of Russia as a ‘target’ of critical Declarations or sanctions reduces the likelihood that some states will align. Thus, the conditions for socialisation are reduced with the evidence that even states who have aligned in long time periods with every other Declaration may feel unable to do so. What separates these sanctions from sanctions applying to other states across the globe is that it cuts across the enlargement and non-enlargement states too, as the low levels of alignment of Serbia and FYROM demonstrate.
21. There is a clear tendency for states who are in the enlargement process to align more regularly. The exception again is Turkey, which has only aligned with 40% of sanctions Declarations and hardly any since 2013 (on any country). The rates for FYROM and Serbia drop, however, these rates improve if the 38 sanctions Declarations on Russia, Belarus and Transnistria are excluded. Bosnia and Herzegovina’s low rate is characterised by periods of several months in which it did not align with any, rather than choosing not to align with sanctions targeting specific countries. Further afield, the EU has not gained the alignment of the states in the Caucuses to the same extent, though Armenia (45%) and Georgia (46%) have far greater levels than Azerbaijan (only 5%) and these rates rise to almost 60% if sanctions against Russia are excluded from the total.
22. Therefore, the EU’s imposition of sanctions on partner countries has been adopted by all the partner states to a large extent. Even with the lower level of alignment by Armenia and Georgia, the extent to which the partner states are prepared to publicly align themselves with EU legal measures and adopt them into their domestic systems is impressive. Nevertheless, the transaction cost and political salience in doing so can explain the lower levels of alignment than other categories of Declaration.

The Potential UK-EU Relationship in terms of Sanctions post-Brexit

23. After the UK’s departure from the EU, the extent to which sanctions policy can be coordinated with the is uncertain. The Political Declaration states the following:

While pursuing independent sanctions policies driven by their respective foreign policies, the Parties recognise sanctions as a multilateral foreign policy tool and the benefits of close consultation and cooperation. (para 99)

Consultation on sanctions should include the exchange of information on listings and their justification, development, implementation and enforcement, as well as technical support, and dialogue on future designations and regimes. Where foreign policy objectives that underpin a specific future sanction regime are aligned between the Parties, intensified exchange of information at appropriate stages of the policy cycle of this sanctions regime will take place, with the possibility of adopting sanctions that are mutually reinforcing. (para 100)

24. The UK would be free to individually impose (or lift) sanctions on a specific third country, including where sanctions may not currently be possible due to divisions between the Member States. But – naturally – unless the UK is able to convince other states to follow suit, in the absence of a UNSC resolution, then the effects may be only symbolic. The Political Declaration hinges on the two sides agreeing the ‘appropriate dialogue, consultation, coordination, exchange of information and cooperation mechanisms’ (para 95). The UK and the EU are thus in unchartered territory.
25. Whether the UK is able to influence EU sanctions policy is also highly doubtful. Much depends on the cooperation mechanisms put in place, including the sharing of sensitive information. But the fact is that the decision-making process in the PSC is secret, with only Member State representatives (at ambassadorial level) present. For the UK to attempt to influence changes to the EU sanctions regime – whether to impose, lift or alter then – then it will either have to lobby behind the scenes for EU Member States to represents its interests, or attempt to establish a permanent dialogue whereby shared concerns can be raised. The problem for the latter is that there is an additional layer of discussion to take place, and the EU decision-making machinery already has a busy role in ensuring a common position between the Member States. Therefore, it seems that a best-case scenario for the UK is that it will be invited to align with any new EU sanctions on the same terms as other European, non-EU invited states. This would effectively turn the UK from a foreign policy leader in the EU to an outsider.
26. The UK may of course wish to align with EU sanctions, given the likely synergy between UK and EU foreign policy. It is currently difficult to identify major areas of divergence between the two – or areas where the UK wished for sanctions (or indeed other foreign policy measures) where the rest of the EU did not. This however cannot be guaranteed in the future, should the UK in particular need to consider its wider foreign policy ambitions (such as seeking new trade agreements, which would suggest refraining from aligning with critical measures or imposing sanctions). In this respect, the UK would likely be most similar to Norway: both also NATO members with foreign policies very similar to that the EU, especially in terms of sanctions. However, as the above analysis of the process of involvement of third states in EU foreign policy and sanctions, there would need to be a different approach to involvement with the UK that does not currently exist. Furthermore, the involvement of the UK in EU sanctions policy – or at the very least the cooperation mechanisms that would be needed – is also highly dependent on the progress made in establishing a new relationship at the end of the transition period (should the Withdrawal Agreement and Political Declaration be approved by Parliament). The above analysis shows that Brexit is likely to mean a loss of influence on sanctions imposed by Europe (which includes both EU and non-EU states).

December 2018