INTRODUCTION

On 7 December 2020 the EU adopted a Global Human Rights Sanctions Regime (hereinafter, also ‘EU global regime’). It is defined as ‘a framework for targeted restrictive measures to address serious human rights violations and abuses worldwide’. Violations and abuses justifying the taking of said measures are expressly, yet non-exhaustively, listed: besides (i) crimes against humanity, the Decision and the Regulation establishing the regime refer to (ii) five other ‘serious human violations and abuses’ (e.g. slavery, torture, and arbitrary arrests or detentions), as well as (iii) ‘other human rights violations or abuses, … in so far as [they] are widespread, systematic or are otherwise of serious concern as regards the objectives of the common foreign and security policy set out in Article 21 TEU’, ‘including but not limited to’ trafficking in human beings, sexual and gender-based violence, etc.

In the light of the general debate on whether, in the absence of a special regime, so-called unilateral or autonomous sanctions – i.e. restrictive measures adopted independently of the UN collective security system4 – are only lawful under international law insofar as they qualify as either retorsions or lawful countermeasures, both the premises and the case-by-case application of the EU global regime appear to warrant further investigation.

In particular, besides the preliminary question of whether restrictive measures foreseen by this sanctions regime and taken so far in its context represent breaches of any international legal obligation binding on either the EU or its member States (or both), this chapter will address the following fundamental question: is the EU global regime meant and has it been used in practice as an instrument to enforce international human rights rules by reacting to their alleged violation or rather as a foreign policy tool aiming at influencing the conduct of other States or, generally, actors?

INTRODUCTION

In response to the International Criminal Court's (ICC) involvement in Afghanistan, on 2 September 2020 the US administration targeted two high-level officials, including then Prosecutor of the Court, Fatou Bensouda, with economic sanctions and visa restrictions. These retaliatory measures were adopted in the framework of Executive Order (EO) 13,928, issued earlier that year, and were motivated by the potential investigation of US citizens for alleged international crimes in the context of the Afghan situation.

Although these sanctions had no precedent either in the history of the ICC or in its relationship with the US, this was not the first time that the Court's legitimacy had come under challenge. In recent years, several African States have taken a critical stance towards the Court, making accusations that it was biasedly targeting less powerful States, and more specifically African individuals and heads of State. The growing discontent with the perceived selectivity and politicization of the Court's prosecutorial policy sparked with the indictment of Al-Bashir and other African officials and led to a continental mobilization against the ICC, upheld by the African Union (AU). AU opposition culminated in 2016 in the adoption of a ‘Withdrawal Strategy’ from the Rome Statute. Amongst the three African States which submitted notifications of withdrawal, only Burundi's eventually took effect on 27 October 2017. However, the fraught relationship between the AU and the ICC has never fully settled.

INTRODUCTION

Oftentimes international organizations face difficulties in applying the institutional measures envisaged in their founding treaty to sanction breaches of the obligations undertaken by member States with their participation in the organization, even in cases of severe infringement. As such a state of affairs could be prejudicial for the integrity and the functioning of their legal systems, several international organizations have reacted to it by introducing or resorting to alternative mechanisms to the ones laid down in their constitutional treaty: on one hand, in fact, protocols or declarations were adopted either to establish sanctioning measures – especially when they were not already provided for in the legal framework of the organization – or to complement the statutory provisions; on the other hand, some mechanisms which were not specifically envisaged for enforcement purposes ended up being subsidiarily applied as a form of sanction for the infringement of obligations undertaken by member States.

From a different perspective, some international law scholars8 have maintained that the same ‘ultimate goal’ for which sanctions are mainly foreseen in legal orders, i.e. compliance with the normative provisions, could also be pursued through mechanisms that, unlike sanctions, are not based on coercion; to that end, measures resting upon material incentive, such as conditionality ones, could be stood out. Generally speaking, conditionality is defined, using a rational choice logic, as an ‘incentive instrument in the relationship between two actors, in which one actor aims at changing the behaviour of the other by setting up conditions for the relationship and by manipulating its cost-benefit calculation by using (positive and negative) material incentives.’

ECONOMIC SANCTIONS OF INTERNATIONAL ORGANIZATIONS AND THEIR LEGAL IMPLICATIONS FOR PRIVATE COMMERCIAL TRANSACTIONS

Sanctions, whether they are adopted by a State or imposed by international organizations (IOs), not only raise questions connected with their legitimacy, which are broadly explored in the present volume, but may also trigger concerns as to their impact on the targeted countries or entities and to the side effects which may derive from their application. Even if they are generally enacted in response to violations of obligations deriving from public international law, and mostly for diplomatic or political reasons rather than economic interests, sanctions may bring up some important questions of private international law. This is particularly the case when it comes to economic sanctions, that is, ‘measures of an economic – as contrasted with diplomatic or military – character taken to express disapproval of the acts of the target or to induce that [target] to change some policy or practices’.

Economic sanctions may take different forms, ranging from restrictions on imports and exports of goods and services to the freezing of funds and economic resources belonging to individuals and entities, for purposes of impeding the flow of financial resources towards a target State or targeted individuals.

IOs have recourse to this kind of measures both against their member States and against third States. In the former case, they are in general provided by the statute of the IO; an example may be found in Art. 41 of the UN Charter, which envisages the possibility for the Security Council to call upon UN members to adopt peaceful measures, including the complete or partial interruption of economic relations, in the event of a threat to the peace, a violation of the peace or an act of aggression.

INTRODUCTION

The European Union (EU) Council has followed the general trend of the United Nations (UN) Security Council to individualize restrictive measures of an economic nature that are independently enacted by the UN Security Council, while continuing to adopt specific trade bans and other sectoral sanctions. The EU does so in reaction to infringements of international law or to achieve the objectives of EU external action; yet the Union does not define whether the sanctions qualify as countermeasures or acts of retorsion, as is often the case for third countries that enact sanctions. The EU may target ‘individual State organs’ of third countries that threaten peace and international security, and impose on them asset freezes and/or visa bans. In the situations mentioned, these persons are usually the first category of individuals to be included on the EU blacklists.

Each Common Foreign and Security Policy (CFSP) decision instituting the measures mentioned above is a universe of its own, since the Council assesses, on a case-by-case basis, who should be listed in order to put pressure on a certain third country to cease the breach of international law or to attain CFSP objectives. This political decision depends on the nature and the duration of the breaches, as well as on the context of the illegal conduct.

This volume is the result of a research project financed by the University of Milan in 2020. It addresses a very topical issue at the core of severe tensions in the current state of global politics. Indeed, the use of measures commonly referred to as ‘sanctions’ by and against international organizations (IOs) has become a recurrent feature of international relations.

The adoption of ‘restrictive measures’ by the European Union (EU) against third States within the framework of the Common Foreign and Security Policy or on the basis of other EU treaties’ provisions; the approval of institutional sanctions by the Council of Europe against Russia in 2022 or the adoption by the African Union of measures against member States not explicitly provided for in its establishing treaty; the asset freezes and travel bans levied by the United States against the Prosecutor of the International Criminal Court; the opposition raised by States through a variety of means (ranging from the withholding of financial contributions to withdrawal) as a reaction against allegedly ultra vires acts of IOs of which they are members or as a critique of the exercise of IOs’ powers: these are just some examples of the circumstances in which tensions in the relationships between States and IOs have triggered a legal and/or political reaction by the parties concerned.

INTRODUCTION

When one of their members fails to fulfil its obligations, international organizations (IOs) may adopt institutional sanctions in order to put pressure on it and bring it back into the ranks. Typically, institutional sanctions are provided for in the constitutive instruments of IOs and consist in depriving the member of its rights, privileges and benefits stemming from membership.

The majority of constitutive instruments envision sanctions in the event of non-fulfilment of financial obligations. At times, privative measures can be adopted for other defaults, say for breach of the fundamental principles and values of the IO or any other obligations set out in the constitutive instruments.

In disciplining the errant member, an IO may resort to a broad spectrum of measures varying from the most serious to the least serious. At one end of the scale, one finds the expulsion of the member or the request to withdraw (compulsory withdrawal), as stipulated, for example, in Art. 6 of the UN Charter and Art. XXVI(c) of the Articles of Agreement of the International Monetary Fund (IMF), respectively. Less severe than expulsion, the temporary suspension of all privileges and rights of the member is a distinctive measure laid down in a number of statutory provisions, for instance under Art. 31 of the World Meteorological Organization Constitution.

INTRODUCTION

The institutional measures that regional organizations apply against their member States are often excluded by the current legal debate on sanctions, on the assumption of their lawfulness insofar as they are governed by their own constituent instruments. However, the imposition of sanctions has become a crucial component of regional governance: while the first decade after the end of the Cold War was characterized by the economic measures adopted by organizations such as the Economic Community of West African States (ECOWAS) and the Organization of American States (OAS) – the latter subsequently less active in this field – in recent years it has been the African Union (AU) that has played a very active role, imposing both the suspension of various countries from membership and targeted sanctions as a reaction to unconstitutional changes of government. Even the Arab League, a regional organization that has traditionally been suspicious vis-à-vis sanctions, has used this tool in relation to Syria and Libya. Yet other regional organizations have continued to remain reluctant with respect to measures that represent, in their view, an unlawful interference with the internal affairs of States: this is the case with the Association of Southeast Asian Nations (ASEAN), whose members refused to include a sanction mechanism in their 1998 Charter.

This contribution suggests the adoption of a comparative perspective with the purpose of charting the great variety of practice and offering an analytical tool for assessing similarities and differences in the conduct of regional organizations.

INTRODUCTION

When defining sanctions, scholarship commonly makes the distinction between two categories. The first contains ‘multilateral’ or ‘centralized’ sanctions adopted by an international organization (IO) on the basis of its constitutive act against member States or non-State actors. Such sanctions may involve a member State's suspension from participation or even its expulsion, a ‘social sanction’ in response to wrongdoing. In some cases, IOs adopt more far-reaching measures, such as the suspension of trade or the interruption of financial transactions. A well-known example is the sanctions regime of the United Nations Security Council (UNSC) against Iran, which was in place until 2015. Importantly, States consent to these measures when they ratify the organization's constitutive act and become members. The UNSC has the authority to adopt sanctions under Art. 41 UN Charter. The second category consists of ‘unilateral’ or ‘decentralized’ sanctions adopted by States unilaterally per their national legislation or executive powers or by IOs against non-member States. The typical example would be US sanctions and European Union restrictive measures against countries such as Russia, Iran, Venezuela, etc. Real life, however, is not always so neatly organized.

There are instances where a regional organization, which is a ‘non-universal grouping that [is] essentially self-defining in terms of memberships as well as of object and purposes’, has suspended a member without having the explicit power to do so. While such measures are adopted by a regional organization against a member State, they are not based on the former's constitutive act. Often-cited examples in the literature are the League of Arab States (LAS) sanctions against Libya and Syria for human rights abuses and violations of international humanitarian law when these two States cracked down on popular unrest during the Arab Spring in 2011.

INTRODUCTION

La question de l’État de droit occupe la Suisse depuis des décennies. Elle a en particulier été nourrie par les tensions qui entourent la « coordination » du principe démocratique, la Suisse étant une démocratie semi-directe, et de la protection des droits et libertés individuels. Le renforcement du droit, notamment en matière de protection des droits subjectifs, sur le plan international a, de plus, conduit à de nouvelles réflexions en la matière.

Dans le contexte du présent rapport, nous nous intéresserons tour à tour, et plus largement, à l’encadrement formel du principe de l’État de droit (2.), au contenu matériel dudit principe (3.), aux interactions entre État de droit et répartition des pouvoirs (4.), ainsi qu’à l’influence des standards internationaux en la matière (5.). Ce rapport réfléchira, dans un dernier temps, à la problématique de l’État de droit sous pression (6.), de même qu’aux perspectives d’avenir qui s’offrent à lui (7.).

ENCADREMENT FORMEL DE L’ÉTAT DE DROIT DANS L’ORDRE CONSTITUTIONNEL

LA CENTRALITÉ DE L’ART. 5 CST.

La Constitution suisse (Cst.) du 18 avril 19991 offre une place de premier rang au principe de l’État de droit. Elle précise ainsi, dès son art. 5, que « [l]e droit est la base et la limite de l’activité de l’État ».

PARAMETERS FOR DISCUSSION: THE RULE OF LAW

In setting out a reference point to ground the discussion of rule of law in China, it is useful first to be explicit about the idea of rule of law in mind. The rapporteur is influenced by Martin Krygier's teleological approach which asks one to start with a question of what rule of law is intended to achieve. For him, tempering power (rather than simply restricting power) and ‘helping to ensure that it is routinely unavailable for arbitrary exercise’ is the key aim of rule of law. Krygier proposes that one should not start with a checklist of attributes of rule of law, be it substantive or procedural versions of rule of law as exemplified by the attributes prescribed by Fuller for the inner morality of law, though as he says ‘we might come to such things’.

This report, while bearing in mind the overall aims of rule of law as tempering power, will come to a consideration of the ways the Chinese version of rule of law engages with the principles of legality articulated by Lon Fuller. This will enable a more fine-grained evaluation of the changing concept of rule of law in China and the way the legal system functions. This analysis is done with reference to Fuller's prescription that law must be general in that it refers to classes of people and circumstances and not individuals, public, clear, non-contradictory, possible to obey, relatively constant, prospective, congruent between official action and the declared rule.

INTRODUCTION: THE NECESSITY TO DEFINE THE TERMS OF PARAMETER

The terminology ‘rule of law’ in the world's legal systems, regardless of the title of this section, connotes multiple meanings. Recalling Bagehot's definition of ‘Nation’, similarly, rule of law is a clear concept to everyone, but despite European obligations, it is almost impossible to translate into an intelligible written definition: it changes and mutates over time, acquiring diverse and varying meanings. Thus, given the rule of law's historical relative value, this report will try to depict its evolution in the Italian legal system, beginning from the years after the approval of the Constitution; then, it will compare it with what it represents today.

Following this, the report will mainly focus on those contributions appearing at least ten years after the end of World War II. Indeed, according to the prominent philosopher Norberto Bobbio, the Italian legal literature that appeared immediately after the end of the war was too introspective, often unable to identify the very reasons for the crisis of law in that historical moment. Italian scholars were formerly confused between the crisis ‘of the Rechtsstaat’ or ‘of the principle of legality and of certainty’, or ‘of legal science’ or finally ‘of the sense of justice’. However, already in the 1950s, Giuseppino Treves, in an interesting essay published within the Annales of the Law Faculty of Istanbul, illustrated the rule of law's status in Italy, proposing a twofold inquiry. First, he said, it was necessary to clarify what jurists consider to be rule of law and only secondly would it have been possible to establish how far rule of law finds application in the country's legislation.