On 23 March 2021, the United Nations (UN) Human Rights Council passed a resolution entitled “The negative impact of unilateral coercive measures on the enjoyment of human rights”,[1] with the negative vote of 15 States, including Italy. One week later, on 31 March, during a joint session (7th Meeting, XVIII Legislature) of the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies and the Committee on Foreign Affairs, Emigration (3rd) of the Senate of the Republic, the Minister of Foreign Affairs and International Cooperation, Mr. Luigi di Maio, addressed and dispelled the allegations that Italy’s vote amounted to an endorsement of sanctions on Cuba (a Country that voted in favor of the resolution).
He explained Italy’s vote in light of the objective of the document, aimed at “rejecting sanctions as a means of reaction available to individual States and supranational organizations”, an idea that the Minister labelled “an unacceptable generalization”.[2]
On the same date, some Members of the Parliament submitted a written question (no. 4-05208) inquiring about the reasons for Italy’s negative vote. The answer came, in writing, on 11 May 2021 by the Undersecretary of State for Foreign Affairs and International Cooperation, Mr. Benedetto Della Vedova. He remarked that
[the resolution of March 2021] does not differentiate between types of unilateral coercive measures, indistinctly qualifying them all as non-compliant with international law and the UN Charter. This approach is incompatible with that of the EU, which enumerates sanctions among the legitimate tools available to promote the Union’s goals in the field of foreign policy and common security: peace and security, democracy and respect for the rule of law and international law, including human rights. […] The resolution presented by the Countries of the Non-Aligned Movement rejects a priori the international legitimacy of any autonomous sanction, irrespective of the typology of measures, their addressee and the underlying reasons. The EU and its Member States, instead, believe that restrictive measures, where appropriate, are a useful means to promote the objectives of the common European foreign and security policy, including the maintenance of peace and the respect for human rights and the rule of law. Such measures are applied in full conformity with international law, respecting the principle of proportionality, human rights and the activity of humanitarian actors. The adoption of sanctions by the EU always occurs in full conformity with international law, in compliance with human rights and the fundamental freedoms of the individuals concerned, especially the right to a fair trial and to an effective remedy. […] The EU thus considers this kind of unilateral coercive measures a legitimate means in light of international law and is committed to implementing them in full conformity with the UN Charter, also trying to prevent any possible effect detrimental to the enjoyment of human rights.[3]
After stressing the “legitimacy” – but based on the context, one may well speak of “lawfulness” – of coercive measures that do not breach international law[4] (especially the UN Charter and human rights) and do not impede humanitarian action, Mr. Della Vedova recalled the European Union (EU) decision to adopt a sanction regime to tackle human rights violations,[5] as well as its activation in cases related to the attempted assassination and then incarceration of Russian opposition leader, Alexei Navalny, and the mass atrocities committed against Uyghurs in China. These and other cases received attention by the Italian Parliament in 2021, and as they all triggered EU sanctions or, as a minimum, the threat of sanctions, they provide examples of the various circumstances in which, according to the EU and Italy, coercive measures can be rightfully taken. These situations involve the violation of rights of single individuals (Navalny,[6] as already mentioned, but also Belarusian journalist and activist, Roman Protasevich[7]), of minorities (the Uyghurs[8]) or the population at large (such as in the cases of Belarus and Venezuela, whose repressive Governments are explicitly considered illegitimate by the Italian Government and its European partners[9]). Sometimes, these human rights violations come along with the breach of State-to-State obligations, such as the hijacking of Protasevich’s flight, “an unacceptable act, a truly grave violation of international rules on aviation safety”.[10] The legal characterization of the act may also be uncertain, as was the case with Belarus’ instrumentalization of migrants “for political purposes”, generically defined by the EU as a “hybrid attack”.[11]
However, the EU policy too, fully supported by Italy, seems to be guided by political purposes. Indeed, while the poor status of democracy – which translates into opposition movements being repressed and their members deprived of civil and political rights – arguably lies at the basis of the adoption of targeted sanctions against individuals of Venezuelan and Belarusian nationality, the Republic of Cuba appears to have been treated more leniently by the EU. In 2003, the bloc imposed sanctions on Cuba due to a crackdown on the country’s dissident groups; these measures were suspended two years later after the release of just a small number of those that had been arrested, and ultimately lifted in 2008 despite the continuing detention of many political opponents.[12] This move was occasioned by Raúl Castro’s election as Fidel Castro’s successor, in order to show support for the former’s reforms. In this perspective, the EU position can be deemed to fit the idea, also expressed by the Italian Parliament, that sanctions must not hinder, but rather promote democratization and respect for human rights.[13]
In any case, the EU not only has lifted its own sanctions, but has also been actively advocating for the cessation of other States’ coercive measures affecting Cuba. In the abovementioned reply to Question no. 4-05208, Mr. Della Vedova remarked the EU Member States’ 2019 vote in favor of the UN General Assembly resolution entitled “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba”. This resolution has been presented – and approved – on a yearly basis since 1992 (with the sole exception of 2020, because of the restrictions made necessary by the COVID-19 pandemic)[14] and calls for the removal by all States of their economic sanctions on Cuba, in particular those stemming from the implementation of the United States (US) federal law known as Helms–Burton Act.
More precisely, the resolution urges States “to refrain from promulgating and applying laws and measures of the kind referred to in the preamble to the present resolution, in conformity with their obligations under the Charter of the United Nations and international law”, such laws and measures being those “the extraterritorial effects of which affect the sovereignty of other States, the legitimate interests of entities or persons under their jurisdiction and the freedom of trade and navigation”.[15] The idea that sanctions are contrary to international law, especially trade law, if they have extraterritorial effects is confirmed by other elements of practice.[16] According to the EU statement accompanying the bloc’s favorable vote of 2021, EU Members “have firmly and continuously opposed any such measures, due to their extraterritorial application and impact on the European Union, in violation of commonly accepted rules of international trade”.[17] The same is affirmed in a 2018 EU regulation updating the European legislation aimed at countering the effects of the Helms–Burton Act throughout the Union. Indeed, the regulation “acknowledges that by their extra-territorial application, such instruments violate international law”.[18] Of the same year is the update of the EU Sanctions Guidelines, which take the very same position.[19]
Italy took a similar stance, too. On 14 April 2021, before the Senate of the Republic (315th Meeting, XVIII Legislature), the Deputy Minister of Foreign Affairs and International Cooperation, Ms. Marina Sereni, explained Italy’s vote in favor of the UN resolution that condemns US sanctions as follows:
Italy has always expressed itself, in coordination with the other EU Member States, by promoting with them a position which opposes the economic blockade and its extraterritorial effects towards third Countries, effects deemed contrary to international law, and by traditionally voting in favor of the resolution that the Cuban Government annually presents at the UN General Assembly. This is a consistent and consolidated stance […]. Moreover, we object to the embargo not only due to its repercussions on the population or its already-mentioned extraterritorial scope, but also based on the observation that it has not actually contributed to nurturing processes leading to openness and a dialogue on fundamental rights and liberties.
Ms. Sereni made this statement when requested to express the Government’s opinion – which was favorable – with respect to two motions (ordini del giorno) voted and passed by the Senate on the same day. With the first motion (named G1) the Senate, after recalling that “the Republic of Cuba is still subject, on part of the US Government, to an economic, commercial and financial embargo which is illegal and contrary to international law and based on unilaterally-motivated political reasons”, exhorted the Government to work, at the UE and UN levels, towards the lifting of the US embargo and to continue to work “so that the sanction mechanism still implemented against Cuba in no case entails obstacles to the provision of essential goods”. The second motion (G2, second draft[20]), while emphasizing that sanctions, on the one hand, can engender counterproductive effects by strengthening the regimes against which they are directed and, on the other hand, can be a means of unfair economic competition, committed the Government
to continuing to work at the EU level and in other international fora so that sanctions are used sensibly, avoiding to the extent possible that they have direct and serious effects on the population;
to continuing to work so that the actual effects of sanctions are measured, especially when sanctions are of a continuing character, which is patently at odds with the principle of effectiveness motivating their adoption;
to continuing to work so that the method of targeted sanctions is opted for, whereby the authors of the sanctioned decisions are affected and not the general population;
[…]
to working so that the European economic sovereignty and the Italian companies’ economic interests are not impaired by extraterritorial measures taken by foreign governments.
From the foregoing Italian practice (the two motions and the statements by the Government’s representatives) some guiding principles for the use of coercive measures can be drawn. Specifically, in the view of Italy, sanctions (i) cannot be designed so as to have extraterritorial application, (ii) must conform to the principle of proportionality, (iii) cannot violate human rights, (iv) cannot hinder humanitarian action, (v) should not negatively affect the living standards of the population, especially by obstructing the provision of essential goods, (vi) should be directed against the individuals responsible for the act to be sanctioned, (vii) should not hamper international cooperation and dialogue, (viii) should follow a gradual approach.[21]
At any rate, except for the extraterritorial application of sanctions, which was repeatedly indicated as contrary to international law, the legal value the Italian Government attaches to these principles is doubtful. This is true even for point (iii), as a State is usually deemed to be responsible for the violation of the rights of people under its own jurisdiction only. All in all, it seems that these parameters are to be seen as mere non-binding guidelines. The sanctions taken by Italy and the whole EU against Russia after the 2022 invasion of Ukraine[22] may be evidence of this. In fact, in that case, many of the abovementioned criteria have been overlooked, given that sanctions on Russia affect the whole Country as well as its population’s standards of living and, possibly, human rights; also, these measures arguably obstruct dialogue with Russia (as affirmed by the Federation’s President himself). However, it may be said that they were taken gradually, through different rounds of “packages” and after many years of milder sanctions, which had been adopted after the 2014 Russian annexation of Crimea. Also, sanctions on Russia may be said to be proportional, as they were taken to respond to grave breaches of international law. It is not clear, though, whether only such serious breaches would justify sanctions encroaching on the human rights of the population or, on the contrary, even minor violations (or no violations at all) would admit sanctions with detrimental effects on the human rights of the population. It is also doubtful whether the principle of proportionality, which has to be complied with when sanctions constitute breaches of international law by way of countermeasures, can be ignored when sanctions are ab initio lawful.
Finally, it must be remarked that, on at least one occasion in 2021, the Italian Government criticized another country’s reaction to sanctions. On 31 March 2021, in the speech referred to at the beginning of this contribution, Mr. Di Maio expressed “displeasure for the unacceptable Chinese counter-sanctions affecting Members of the Parliament, academics and EU officials, impinging on their fundamental rights to freedom of opinion and expression”.[23]Apparently, these counter-sanctions were condemned due to their (alleged) infringement of human rights, rather than for having being taken as a response to (allegedly) lawful sanctions. This said, the latter view may be implicit, since the fact that the EU regularly takes analogous measures against third-Country nationals could hardly be justified otherwise. Moreover, that China’s reaction is illegal under international law or even just a material breach of the right to free speech can be opined, based, respectively, on the issue of the (non-)extraterritorial reach of a State’s human rights obligations and on the fact that China’s restrictive measures can hardly be said to truly impair their addressees’ capacity to speak out.
Paolo Turrini
A quotable version of this post was published in the Italian Yearbook of International Law: Turrini, “The Legality of Sanctions Between the Condemnation of Their Extraterritorial Application and Humanitarian Concerns”, IYIL XXXI (2021), 2022, pp. 487-494; available here.
[1] UN Human Rights Council Resolution 46/5 of 23 March 2021, UN Doc. A/HRC/RES/46/5.
[2] Indeed, while para. 1 of the resolution urges all States to stop adopting and maintaining “unilateral coercive measures not in accordance with international law, international humanitarian law [and] the Charter of the United Nations”, para. 3 more radically urges “the removal of unilateral measures, as they are contrary to the Charter” (emphasis added).
[3] In light of the role played by the EU in orienting Italy’s position on sanctions, see Sossai, Sanzioni delle Nazioni Unite e organizzazioni regionali, Roma, 2020, Ch. 4.
[4] It is worth stressing that Italy’s rejection of the position that all unilateral (i.e., non-UN-backed) sanctions should be abandoned – except for, of course, those that amount to classical countermeasures – can be read as the conviction that such sanctions are lawful under international law as long as they do not run counter some humanitarian concerns (whose material scope can be debated: see infra) and do not constitute unexcusable breaches of specific international norms (meaning that countermeasures by non-injured States for the violation of alleged erga omnes obligations are deemed lawful).
[5] See Council Regulation (EU) 2020/1998 of 7 December 2020 concerning restrictive measures against serious human rights violations and abuses, OJ L 410I, 7 December 2020, pp. 1-12, and the identically named Decision, ibid., pp. 13-19.
[6] See, e.g., the statement by Mr. Di Maio before the Chamber of Deputies on 20 January 2021 (454th Meeting, XVIII Legislature).
[7] See, e.g., the written reply by Mr. Della Vedova, delivered on 5 October 2021, to Question No. 4-05861 presented at the Senate.
[8] See, e.g., the written reply by Mr. Della Vedova, delivered on 30 June 2021, to Question No. 4-05298 presented at the Senate.
[9] As for Belarus: see Mr. Della Vedova’s written reply quoted supra note 7 (“[t]ogether with its European partners, in 2020 Italy adopted three packages of restrictive measures against Belarusian individuals and entities, including President Lukashenko, whose democratic legitimacy is not recognized”). As for Venezuela: see Mr. Di Maio’s reply, on 27 October 2021, to Question No. 3-02569 before the Chamber of Deputies (583rd Meeting, XVIII Legislature) (“[i]n accordance with what was expressed by the EU and the International Contact Group, Italy believes that the 2020 national elections were not credible, nor transparent, nor inclusive; we did not recognize their outcomes as legitimate or representative of the will of the population of Venezuela. […] On 22 February, during a meeting of the EU Foreign Affairs Council, we adopted sanctions against Venezuelan figures and officials; I voted too”). On Venezuela, see also Turrini and Antoniazzi, “The Non-Recognition of the Venezuelan President Between Democratic Standards and the Principle of Non-Intervention in the Internal Affairs of Other States”, IYIL, 2020, p. 461 ff. Interestingly, sanctions do not seem to have been discussed in the Italian Parliament with respect to the non-recognized, repressive Taliban regime that took over Afghanistan in 2021 (see Tulli, “States and Other International Entities: The Non-Recognition of the Taliban Government of Afghanistan”, IYIL XXXI (2021), 2022, pp. 494-499); it must be said, however, that EU sanctions against a number of Taliban personalities were already in force. Noteworthy, the existing mechanism was relaxed through Council Regulation (EU) 2022/148 of 3 February 2022 to allow for humanitarian assistance.
[10] These are the words uttered by Mr. Della Vedova in a conversation with the Belarusian chargé d’affaires, as reported by the former on 26 May 2021 in replying to Question No. 5-06091 before the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies. Also based on the Conclusions of the Special meeting of the European Council (24 and 25 May 2021), EUCO 5/21, Point III, which the Undersecretary mentioned in his reply, it seems that the prospected targeted sanctions against Belarusian individuals can be based both on the violation of Protasevich’s rights and the breach of aviation rules. This is, in principle, an interesting issue, as it deals with the possibility of affecting individuals’ rights by means of sanctions that are a response not to serious breaches of human rights but, rather, to violations of inter-State rules – something that could be at odds with an extensive (i.e., also covering human rights customs) interpretation of Art. 60(5) of the Vienna Convention on the Law of Treaties.
[11] See the Conclusions of the meeting of the European Council (21 and 22 October 2021), EUCO 17/21, paras. 19 and 21, referred to by Mr. Della Vedova on 25 November 2021 in his reply to Question No. 5-07138 before the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies.
[12] Hare, “The Odd Couple: The EU and Cuba 1996-2008”, Brookings, 15 September 2008.
[13] As said by Ms. Sereni in her speech referred to infra, in this contribution, and as expressed by Motion G2, here partly translated. Something along these lines is also said in the EU Explanations of Vote quoted infra note 17. In more general terms, the idea is that sanctions are a means rather than an end: see, e.g., the words by the then Minister of Foreign Affairs reported by Pertile, “Italy’s Position on Sanctions against the Russian Federation”, IYIL, 2017, pp. 604-605 (“[s]anctions are a tool – and not a permanent fact to be bureaucratically renewed – which serves [a] purpose”).
[14] The resolution was last approved in 2021: see UN General Assembly Resolution 75/288 of 23 June 2021, UN Doc. A/RES/75/289.
[15] Ibid., para. 2 and fourth recital of the preamble, respectively.
[16] For a doctrinal overview on unilateral actions, including those with extraterritorial effects, see Silingardi, Le sanzioni unilaterali e le sanzioni con applicazione extraterritoriale nel diritto internazionale, Milano, 2020 (also discussing the possible emergence of a custom prohibiting sanction with extraterritorial application: pp. 358-364). See also Sossai, cit. supra note 3, pp. 151-155.
[17] Delegation of the European Union to the United Nations in New York, “EU Explanation of Vote – United Nations General Assembly: Resolution on the US embargo against Cuba”, 23 June 2021, available here. The very same sentence is also present in the previous Explanation of Vote, dating back to 7 November 2019, available here. Similarly, although the causal nexus with extraterritorial effects is only implicit, the statement of 21 May 2018: UN General Assembly, “Necessity of ending the economic, commercial and financial embargo imposed by the United States of America against Cuba: Report of the Secretary-General”, UN Doc. A/73/85, 29 August 2018, p. 61.
[18] Commission Delegated Regulation (EU) 2018/1100 of 6 June 2018 amending the Annex to Council Regulation (EC) No 2271/96 protecting against the effects of extra-territorial application of legislation adopted by a third country, and actions based thereon or resulting therefrom, OJ L 199I, 7 August 2018, pp. 1-6, third recital of the preamble. This is a long-standing position, which the EU had already made clear in the original 1996 regulation.
[19] Council of the European Union, Sanctions Guidelines – Update, 5664/18, 4 May 2018, para. 52.
[20] Compared to the previous version, on request of Ms. Sereni a line was dropped that would have committed the Government to “starting a revision of the whole, complex subject matter of sanctions and international restrictions, with a view to identifying Italy’s specific economic interests and protecting our companies’ right to access international markets”. Other minor amendments to the text were accepted by the Senate, while other ones were rejected; among the latter we find the deletion of the reference to the “principle of effectiveness” in the line addressing the actual effects of sanctions. Although the Government’s move might entail the willingness to avoid misconceptions on Italy’s hypothetical support for the emergence of a legal principle against which the lawfulness of sanctions should be assessed, it cannot be excluded that Ms. Sereni’s proposed amendment was motivated by stylistic reasons only.
[21] A gradual approach was evoked, for instance, by Mr. Della Vedova in the written reply quoted supra note 7; it is the same as the “incremental logic” spoken of by Minister Di Maio in answering Question No. 3-03003 before the Chamber of Deputies (705th Meeting, XVIII Legislature) on 1 June 2022. See also, at the EU level, para. 21 of the Conclusions of the meeting of the European Council quoted supra note 11. More generally, basically all the items of the list can be found in Council of the European Union, Basic Principles on the Use of Restrictive Measures (Sanctions), 10198/1/04 REV 1, 7 June 2004; also cf. the document quoted supra note 19.
[22] On this topic, see the contribution by Alì, “The Russian Aggression Against Ukraine: Issues of Recognition, Sanctions and the Supply of Weapons”, IYIL XXXI (2021), 2022, pp. 522-529.
[23] See also Mr. Della Vedova’s reply quoted supra note 7, as well as Motion No. 8-00120 approved on 26 May 2021 by the Committee on Foreign and European Community Affairs (III) of the Chamber of Deputies (though the latter, which committed the Government to condemning these counter-sanctions, is not phrased in legal terms).
Italy's Diplomatic and Parliamentary Practice on International Law 