UN sanctions in EU and national law: The centro-com case

International and Comparative Law Quarterly

Volumn 48, Issue 3, 1999, Pages 582-612

  Pavoni, Riccardo ^a  

^a UNIVERSITY OF SIENA   (Italy)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84991814681     PISSN: 00205893     EISSN: 14716895     Source Type: Journal    
DOI: 10.1017/S0020589300063442     Document Type: Article

References (134)

1. See J. Castañeda, Legal Effects of United Nations Resolutions (1969)
2. J. Combacau, Le pouvoir de sanction de I'ONU–Etude théorique de la coercition non militaire (1974)
3. M. P. Doxey, Economic Sanctions and International Enforcement (1980)
4. International Sanctions in Contemporary Perspective (1987)
5. V. Gowlland-Debbas, Collective Responses to Illegal Acts in International Law–United Nations Actions in the Rhodesian Question (1990)
6. F. Francioni, “Sanzioni internazionali”, in Enciclopedia Giuridica Treccani (1992)
7. L. F. Damrosch (Ed.), Enforcing Restraint–Collective Intervention in Internal Conflicts (1993)
8. C. Focarelli, Le contromisure net diritto internazionale (1994)
9. D. Cortright and G. A. Lopez, (Eds), Economic Sanctions: Panacea or Peace-building in a Post-Cold War World? (1995).
10. 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 Ltd [1983] 2 A C. 751.
11. But see B. Conforti, Diritto Internationale (1997), pp.312–316, who holds that a “principle of speciality” operates, according to which international conventional rules can be superseded by later domestic norms having the same rank only if the legislator expressly declares the double intention to derogate from the international rules in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.
12. 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.
13. Particularly noteworthy, in recent times, C. M. Vazquez, “The Four Doctrines of Self-Executing Treaties” (1995) 89 A.J.I.L 95.
14. In the Italian literature see particularly Conforti, idem, pp.298–302
15. the acute and still pertinent observations by L. Condorelli, II giudice italiano e i trattati internazionali Gli accordi self-executing e non self-executing nell'ottica della giurisprudenza (1974).
16. On the US practice, see C. Joyner, “Sanctions, Compliance and International Law: Reflections on the UN Experience against Iraq” (1991–1992) 32 Virginia J.I.L. 1.
17. On the French one, see F. Naud, “L'Embargo: Une Valse a Trois Temps. Nations Unies, Union Européenne et Etats Membres” (1997) R.M.C. n.404, pp.25–33.
18. 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. 1–81
19. [1997] 3 W.L.R. 239 (which includes the Report for the Hearing)
20. Case C-177/95, Ebony Maritime SA and Loten Navigation Co. Ltd v. Prefetto della Provincia di Brindisi and Others [1997] E.C.R. I–1111 (for the Italian version of the these two cases, see
21. [1997] R.D.I. 797–815
22. 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.
23. I. Canor, “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.
24. Consider the following exemplary assertion made by the English Divisional Court in the first stage 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.
25. 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).
26. As rightly pointed out by Canor, C.M.L.R., p.161. The author confronts the issue of the consistency between protection of fundamental rights at Community level and the requirement of effectiveness of UN sanctions.
27. 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).
28. See P. J. Kuyper, “Community Sanctions against Argentina: Lawfulness under Community and International Law”, in D. O'Keeffe and H. G. Schermers (Eds), Essays in European Law and Integration (1982), 141
29. J. L. Dewost, “La Communauté, les Dix, et les ‘sanctions’ économiques: de la crise iranienne à la crise des Malouines” (1982) 28 A.F.D.I. 215.
30. A detailed monograph on the EEC/EC sanctions practice has recently appeared in the Italian literature: A. Dav`, Comunità Europee e sanzioni economiche intemazionali (1993).
31. 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 P. Picone (Ed), Interventi delle Nazioni Unite e diritto internazionale (1995).
32. 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 P.H. Eisemann in J.-P. Cot and A. Pellet (Eds.) Le Charte da Nations Units. Commentaire Article par Article (1985) 747
33. M. Bryde in B. Simma (Ed.) The Charter of the United Nations. A Commentary (1994)651.
34. E. Klein, “Sanctions by International Organizations and Economic Communities” (1992) 117 A.V. 101
35. S. Bohr, “Sanctions by the United Nations Security Council and the European Community” (1993), 4 E.J.I.L. 256
36. C. M. Lo Savio, “Sulla competenza comunitaria ad adottare ‘sanzioni’ economiche internazionali: il caso iugoslavo” (1993) R.I.D.P.C. 1439
37. N. Angelet, “La mise en oeuvre des mesures coercitives economiques des Nations Unies dans la Communauté européenne” (1993) R.B.D.I. 500.
38. (1993) O.J. C224
39. (1990) O.J. L213/1.
40. (1990) O.J. L304/1.
41. (1992) O.J. L101/53.
42. (1992) O.J. L151/4.
43. (1992) O.J. L102/14.
44. See, the broad interpretation given to Art.113 (now Art.133) by the ECJ in Opinion 1/78 [1979] E.C.R. 2871, para.45
45. more recently in Opinion 1/94 [1994] E.C.R. 1–5267, paras.31, 39.
46. Parliament's Opinion of 26 Oct. 1990 (1990) O.J. C295.
47. (1992) O.J. L361/1.
48. O.J. 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.
49. See especially J.H.J. Bourgeois, “The EC in the WTO and Advisory Opinion 1/94: An Echternach Procession” (1995) 32 C.M.LR.Rev. 763
50. A. Appella, “Constitutional Aspects of Opinion 1/94 of the ECJ Concerning the WTO Agreement” (1996) 45 I.C.L.Q. 440.
51. Opinion 1/94, idem, para.48.
52. Idem, para.51.
53. 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.
54. Bohr, infra, at p.268.
55. This is indeed the view taken by A. Lang, “Risoluzioni del Consiglio di Sicurezza, obblighi comunitari e politica estera dell'Unione Europea” (1997) XXI Comunicazioni e Studi 535,588. She believes that such a solution is the only one compatible with the general principles regulating the subject-matter, in particular with Art.l 1(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”.
56. It is, however, important to point out that Lang's work as was written before the ECJ judgments involving UN sanctions (Comunicazioni e Studi n.11
57. infra Part IV were rendered.
58. 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.
59. E.g. Canor, idem, at p.150, 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).
60. See particularly J. Winter, “Direct Applicability and Direct Effect–Two Distinct and Different Concepts in Community Law” (1972) 9 C.M.L.Rev. 425
61. D. Wyatt, “Directly Applicable Provisions of EEC Law” (1975) 125 N.L.J. 458, 575, 669, 793
62. R. Luzzatto, La diretta applicabilità del diritto comuniiario (1980)
63. P. Pescatore, “The Doctrine of ‘Direct Effect’: An Infant Disease in Community Law” (1983) 8 E.L.R. 155
64. G. Tesauro Diritto Comunitario (1995), pp.107–119
65. G. Gaja, Introduzione al diritto comuniiario (1999), pp.95–110
66. Conforti, Introduzione al diritto comuniiario, at pp.321–330
67. T.C. Hartley, The Foundations of European Community Law (1995) pp.195–237.
68. (1993) O.J. L295.
69. (1994) O.J. L182.
70. (1994) O.J. L266.
71. 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.
72. With minor differences, this is the opinion held by Davi, Bull. E.C., at p.592
73. Lang, Bull. E.C., at pp.586–587.
74. Canor, Bull. E.C., at pp.173–174 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.
75. On the other hand, Lo Savio, Bull. E.C., at p.458, is more in line with our position.
76. However, we confirm (see Bull. E.C. Section 11.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).
77. On the relationship between CFSP decisions and adoption of sanctions under Art.301, see, Lang, idem, pp.556–581.
78. S.I. 1990 No.1651.
79. S.I. 1992 No.1302.
80. S.I. 1993 No.1188.
81. S.I. 1992 Nos.973 and 975.
82. S.I. 1993 No.2807.
83. S.I. 1993 No.1787.
84. S.I. 1994 No.2673.
85. For a technical analysis of the UK implementing legislation, see H. Fox and C. Wickremasinghe, “British Implementation of UN Sanctions against Iraq” (1992) 41 I.C.L.Q. 920
86. “UK Implementation of Economic Sanctions” (1993) 42 I.C.L.Q. 945.
87. 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.
88. However, the principle of consistent interpretation must be taken into account. See idem.
89. Decree-Law No.305 of 6 June 1992 [1992] 133 G.U.
90. Decree-Law No.144 of 15 May 1993 [1993] 113 G.U.
91. Decree-Law No.107 of 7 Apr. 1995 [1995] 84 G.U.
92. The most important cases are Centro-Com, Ebony Maritime and Bosphorus, cited G.U.
93. G.U.
94. See, most recently, case C-64/95, Konserven Lubella Friedrich Büker GmbH & Co. KG v. Hauptzollamt Collbiis [1996] E.C.R. 1–5105, para.17 of the judgment.
95. 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.
96. The 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.
97. S.C.Res.
98. See the annotation in 1997 R.M U. EIII and by C Vedder and H.-P. Folz (1998) 35 C.M.L.Rev. 209.
99. See also A. Sam-Simenot “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.
100. R. v. HM Treasury and the Bank of England, ex p. Centro-Com Sri [1994] 1 C.M.L.R. 109.
101. idem, paras.90–91.
102. The establishment of such a body is urged by Klein, idem, at pp. 111–112.
103. For a sharp (and somewhat overstated) critique of the Bosphorus judgment see Canor, idem. 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).
104. Established by virtue of S.C.Res.724 (1991).
105. See M. P. Scharf and J. L. Dorosin, “Interpreting UN Sanctions: the Rulings and Role of the Yugoslavia Sanctions Committee” (1993) 19 Brooklyn J.I.L. 771.
106. Bosphorus, Brooklyn J.I.L., at para.46 of the opinion.
107. 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
108. see P. Conlon, “Legal Problems at the Centre of United Nations Sanctions” [1996] Nordic J.I.L. 73.
109. The Independent, 3 June 1994.
110. 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.
111. 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.
112. Centro-Com, O.J. Spec., at para.42 of the judgment.
113. See O.J. Spec.
114. See e.g. Case 72/83, Campus Oil Ltd and Others v. Minister for Industry and Energy (1984) E.C.R. 2727, para.27.
115. Centro-Com, O.J. Spec., at para.52 of the judgment.
116. See esp. idem, para.24
117. 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.
118. Idem, paras.25 and 26 of the judgment.
119. 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.
120. Such a circumstance is also pointed out by J. Kokott and M. Conrads. “Note to Ex p. Centro-Com” (1997) 91 A.J.I.L. 722, 725.
121. Centro-Com, A.J.I.L., A-G's opinion, para.35.
122. A very similar view has been expressed by Klein, A.J.I.L., at p.III.
123. See text accompanying A.J.I.L. et seq. for the analogous reasoning of the Divisional Court.
124. Centro-Com, A.J.I.L., at para.58 of the judgment.
125. See, in recent times, Case C-158/91, Criminal proceedings against Levy [1993] E.C.R. I-4287, para.21
126. Case C-324/93, R. v. Secretary of Stale for the Home Department, ex p. Evans Medical Ltd and Macfarlane Smith [1995] E.C.R. 1–563, para.29.
127. 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.
128. Centro-Com, idem, A-G's opinion, para.71.
129. Idem, para.60 of the judgment
130. where para.32 of Evans Medical, Idem, is quoted.
131. 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, Idem, pp.86–87.
132. As rightly put by Canor, Idem, at p.167, such a situation “cannot be avoided by a simple transfer of competences in the relevant field to the Community”.
133. See the Bosphorus and Ebony Maritime cases, Idem.
134. See Idem 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.