26/9/23 Learn How to Lead
EU arms embargoes - How they are implemented into national legislations
Restrictive measures or sanctions are an essential tool of the EU's Common Foreign and Security Policy (CFSP). They are used by the EU as part of an integrated and comprehensive policy approach, involving political dialogue, complementary efforts and the use of other instruments at its disposal.
Key objectives are to safeguarding EU's values, fundamental interests, and security, preserve peace, consolidate and support democracy, the rule of law, human rights and the principles of international law, as well as prevent conflicts and strengthen international security.
Sanctions can target governments of non-EU countries because of their policies, entities (companies) providing the means to conduct the targeted policies, groups or organisations such as terrorist groups, or individuals supporting the targeted policies, involved in terrorist activities.
Sanctions allow the EU to respond swiftly to political challenges and developments that go against its objectives and values. For instance, sanctions can target terrorism, nuclear proliferation activities, human rights violations, annexation of foreign territory, deliberate destabilisation of a sovereign country and cyber-attacks.
The EU is imposing restrictive measures either on its own initiative or in order to implement UN Security Council resolutions.
Sanctions include:
arms embargoes
economic sanctions or restrictions concerning specific sectors of economic activity, including import or export bans on certain goods, investment bans, prohibitions on supplying certain services etc.
restrictions on admission of listed persons (travel ban): targeted persons cannot enter the EU, or travel beyond their member state of nationality if they are an EU citizen
freezing of assets belonging to listed persons or entities: all their assets in the EU are frozen and EU persons and entities cannot make any funds available to those listed
Let's focus on arms embargoes.
How arms embargoes are adopted
The process for drafting and adopting arms embargoes in community law is as follows. Each embargo is first drafted in the EU Council at the political level by the Foreign Relations Counsellors Working party (RELEX) with input from, inter alia, the relevant ‘geographical’ working parties and the Permanent Representatives Committee.
The embargo is then unanimously adopted by the Council as a decision as part of the Common Foreign and Security Policy (CFSP). The embargo is politically binding on EU Member States once the CFSP is published in the Official Journal of the European Union.
On the contrary to EU regulations (which are directly applicable in the EU Member States, as from the date of their entry into force according to the regulations), the measures laid down only in the CFSP decision will need to be implemented by the Member States. The European Commission will verify that the Member States have implemented the regulations in a proper and timely manner.
The relevant provisions of the Council Decision are those relating to the application of arms embargoes against specific States and groups. In most cases, these are bans on the export and import of arms and related materiel (sometimes accompanied by exceptions and/or authorisation possibilities in a limited number of cases), as well as bans on brokering services relating to such arms.
In the case of technical assistance or financing services relating to weapons, the relevant provisions of the Council Decision are very often taken over by the Council Regulation, which will be directly applicable and binding on companies and other economic players. The same applies to all other provisions of the Council Decision relating to other products and services, for which there is also a Council Regulation that follows the political decision within the Council.
Their implementation by the EU Member States
The EU decision related to the arms embargo has no direct effect on the territory of the Member States of the European Union. In the field of the Common Foreign and Security Policy (CFSP), and in particular in all matters relating to the arms trade, it is addressed solely to the Member States, which have exclusive competence and the privilege of taking national measures to ensure the political decision taken together within the Council. While decisions are binding in their entirety, they cannot be applied by Member States in an incomplete, selective or partial manner.
The national measures must prohibit the supply or sale of arms and related materiel of all types, by nationals of member states or from the territory of Member States, whether or not they originate in their territories. They should also be applied against their citizens and companies registered in their territory, for actions in their territory or abroad (‘extraterritoriality’).
What legal means are used for such implementation, is for the Member States to decide.
Of all available measures, legislation is preferable, especially legislation establishing penal sanctions which have a clearly defined offence and penalty.
A variety of implementation measures
In order to obtain comprehensive information concerning EU Member States’ implementation and enforcement of EU and UN arms embargoes, the authorities must be contacted directly. There are no EU databases providing information on the national measures adopted by Member States to implement arms embargoes and/or other means by which they have sought to prohibit illicit arms reaching an embargoed state. Instead, each State must be contacted individually.
The forms of national measures to implement embargoes vary greatly from State to State and depend upon whether the state’s legal system is common law or civil law.
A common law state must transform its international law obligations into national legislation in order for them to apply in its territory. This is often done by adopting an Act to give effect to UNSCRs or sanctions generally, followed by secondary legislation (such as a regulation) to give effect to a specific embargo. The regulation can establish the offences committed by breaking the embargo and consequent penalties.
In contrast, civil law states have a ‘monist’ tradition, whereby the adoption of an international law instrument serves to automatically incorporate it into the state’s domestic law. The monist tradition can be problematic as offences and penalties are found in the state’s penal code and, consequently, may not be directly tied to that state’s implementation and enforcement of each individual arms embargo.
National measures can include primary legislation (Acts and Statutes), secondary or subordinate legislation (regulations), as well as administrative orders, decrees, government orders or rules.
Considerations for Economic Actors
What matters for the companies dealing with sanctioned countries, is to be knowledgeable about the applicable law in their home countries, or transit countries.
For authorities, the aim should be to ensure the readability and consistency of domestic legislation, and hence transparency and legal certainty.
The principle of legal certainty implies that people should be able, without insurmountable effort on their part, to determine what is permitted and what is prohibited by the applicable law and therefore to foresee,
to a reasonable degree, the consequences of a given fact at the time when it occurs. By virtue of this principle, the applicable rules of law must be comprehensible to the persons concerned, so as to ensure equality before the law and the effectiveness of the rights guaranteed. A legislative text can never be incomprehensible or excessively complex.
As these are rules of strict interpretation, they require precise, concrete and detailed wording, especially as they are restrictions on freedom of trade and are accompanied by strong repressive provisions.
On the other hand, the principle of the legality of offences and penalties requires that precise rules be laid down in criminal matters. Offences should be defined in sufficiently clear terms and the degree of punishment to be specified so as to rule out arbitrariness and enable those concerned to assess the exact nature and type of punishable conduct.
Case Study: How Three EU Countries Implement Arms Embargoes
We have randomly taken Germany, Austria and Luxembourg to serve as a case study here.
Germany
In Germany, the relevant provisions are inserted into Chapter 8 of the Foreign Trade and Payments Ordinance (Aussenwirtschaftsverordnung, AWV), which is the implementing regulation of the Foreign Trade and Payment Law (Aussenwirtschaftsgesetz, AWG).
Article 74 AWV imposes, as a general rule in paragraph (1), a prohibition for the sale, export and transit of goods covered by Part I Section A of the Export List from Germany or via Germany or their shipment using a ship or an aircraft entitled to bear the Federal flag or the national insignia of the Federal Republic of Germany shall be prohibited to a list of countries, numbered therein from 1 to 17 (3 positions bearing no country name currently).
The same prohibition is extended in paragraph (2) of the same article for transactions with listed persons or entities. 7 regimes are included here into.
A prohibition of brokering services is contained in Article 75 , where these services are directed towards a list of (currently) 14 countries (paragraph 1). The same prohibition is extended in paragraph 2 where the country of end-use is a country of a list of 13 countries.
Article 76 allows an exception to these prohibitions, subject to an authorization (par. 1). Paragraphs 2 to 17 are reserved to specific countries (one paragraph per country), where the goods or activities covered by these exception are indicated.
Article 76a foresees a general exception to the prohibition measures, independently from the countries involved, where the goods or services are for the use of German public administration, diplomatic or consular missions, or international intergovernmental organisations and agencies.
Article 77 deals with import from listed countries (five), foreseeing a prohibition with exceptions (notably for Russia).
Article 78 the has provisions on specific goods. The only country concerned here is North Korea.
Article 79 closes this chapter and applies Articles 74 to 77 also to Germans abroad.
All in all, a very well structured legal text, precise and detailed.
Let's take Sudan here as an example (we use an English translation of the relevant texts, while the official language is Germany):
Art. 74. (1) The sale, export and transit of goods covered by Part I Section A of the Export List from Germany or via Germany or their shipment using a ship or an aircraft entitled to bear the Federal flag or the national insignia of the Federal Republic of Germany shall be prohibited to the following countries: (...) 15. Sudan (...)
Art. 75. (1) Trafficking and brokering transactions relating to goods cited in Part I Section A of the Export List which are directly or indirectly destined for persons, organisations or institutions in the following countries shall be prohibited: (...) 10. Sudan (...).
(2) The prohibition pursuant to subsection 1 shall also apply if the goods are destined for use in the following countries: (...) 8. Sudan (...).
Art. 76. (1) In derogation of Section 74 subsection 1 and Section 75 the sale, export, transit or brokering transactions can be authorised under the preconditions of subsections 2 to 17.
(...) (13) Subsection 1 shall apply with reference to Sudan for
1. non-lethal military equipment which is destined exclusively for
a) humanitarian or protective purposes,
b) monitoring the human rights situation,
c) capacity-building programmes of the United Nations, the African Union and the European Union,
2. material which is destined exclusively for crisis-management operations of the United Nations, the African Union or the European Union,
3. mine-clearing equipment and material for use in mine-clearing operations,
4. vehicles which are not destined for battle deployment which have been fitted with bullet proofing during manufacture or subsequently and are only destined for use as protection, in Sudan, by the staff of the European Union and its Member States or by staff of the United Nations or the African Union, and
5. protective clothing, including bulletproof vests and military helmets, which is temporarily exported to Sudan by the staff of the United Nations, the European Union or its Member States, by media representatives, humanitarian helpers, development workers and attached staff solely for their own use.
Austria
The Austrian Aussenwirtschaftgesetz 2011 is here the basis for an implementing regulation specifically dealing with arms embargoes. This regulation (Zweite Verordnung der Bundesministerin für Digitalisierung und Wirtschaftsstandort zur Durchführung des Außenwirtschaftsgesetzes 2011, Zweite Außenwirtschaftsverordnung 2019 – 2. AußWV 2019) is also well structured.
A first article defines the defence-related products by referring to the EU Common Military List, in the currently applicable version.
Art. 2 defines the sanctioned countries by reference to a list in Annex 1, with currently 17 countries (par. 1).
Par. 2 prohibits the export, transit and brokering of defence-related products to these sanctioned countries, as well as import.
Par. 3 then foresees exceptions to this prohibition, and indicates that these exceptions are those indicated in decisions of the UN Security Council, the EU Council and of OSCE.
For Sudan (the example we chose before), the relevant provisions are the following:
"Art. 1 Defence-related products (...) are all products included in the Common Military List of the European Union and listed in the Annex to Directive 2009/43/EC (...), as amended. (...)
Art. 2.(1) The third countries listed in Annex 1 to this Ordinance are those to which an arms embargo applies on the basis of the obligations under international law referred to in Section 25 of the Foreign Trade and Payments Act 2011. (...).
(2) Prohibited are: 1. the export, transit and brokering of defence-related products (...) to third countries listed in Annex 1, (...), 2. other transactions (...) leading to a transfer of defence-related products to these third countries, (...); this prohibition shall also apply to the acquisition, procurement or transport of such products by Austrian citizens or using ships or aircraft flying the Austrian flag.
(3) Not subject to the prohibition (...) but to a licensing requirement are operations covered by exemptions contained in a 1. decision of the Security Council of the United Nations or 2. decision taken on the basis of Title V of the Treaty on European Union in conjunction with Part V of the Treaty on the Functioning of the European Union or 3. decision taken within the framework of the Organisation for Security and Cooperation in Europe (OSCE).
Annex 1. Arms embargo countries. (...) Sudan (...)."
Luxembourg.
Restrictive measures are contained in the Grand Duke Regulation of 14 December 2018 in Annex 1, on the basis of the Luxembourg Export Control Law of 27 June 2018. Annex 1 is numbered from 1 to 23, one point for each country subject to trade sanctions.
Since its adoption in 2018 and until August 2023, the Regulation was setting out in detail the provisions and modalities of the embargo on arms exports, imports and brokering to countries subject to sanctions.
The Grand Duke Regulation of 7 August 2023 has marked an abrupt and unforeseen change in the previous approach and practice of amending the Grand Duke Regulation of 14 December 2018. The regulation of 7 August 2023 has replaced these detailed provisions in their entirety with a simple reference, without indicating specific articles, to the political decision taken within the Council of the European Union.
For Sudan (the example we chose before), the relevant provisions are the following:
"(...) 15. Sudan. (...) (2) It is referred to Council Decision 2014/450/CFSP of 10 July 2014 concerning restrictive measures in view of the situation in Sudan and repealing Decision 2011/423/CFSP, as amended."
These case studies exemplify the diversity of approaches among EU Member States in implementing arms embargoes.
We leave it to the reader(s) to mark their preference for an approach. Do not hesitate to comment or to add relevant information for your country.
Conclusion
EU sanctions are formidable tools for advancing global objectives while safeguarding the EU's interests and values. Their precise implementation may vary among Member States, showcasing the intricacies of international sanctions laws. As the world continues to evolve, comprehending and adhering to these measures remain pivotal for governments, companies, and individuals alike.
Luxembourg, 26 September 2023
Patrick Goergen, Founder & CEO of RespectUs
Email contact@respectus.space