chapter  8
12 Pages

Sanctions theory and the efficacy of EU sanctions: some fresh air coming into the sanctions debate

The findings stemming from the examination of the efficacy of EU sanctions practice have significant implications for the understanding of the operation of targeted sanctions and for the international role of the European Union. The most original finding of the investigation consists in the connexion between the legal framework under which the sanctions are wielded and their efficacy. This unexpected outcome points to a pattern whereby ACP Art. 96 suspensions prove most successful, CFSP sanctions achieve their objectives only sometimes, and informal sanctions are often abandoned in the absence of any progress. The residual category of GSP withdrawal encompasses only two episodes, both unsuccessful, which can hardly bear any lesson in view of their concurrent status as CFSP sanctions targets. The coincidence between the legal framework chosen for the imposition of sanctions and the outcome of the coercive attempt warrants closer exploration. Art. 96 suspensions constitute one of the most homogeneous groups in the

EU sanctions universe, and thus lend themselves to generalisations. The abundant successes in this group contrast sharply with the predominance of failures in the rest of the universe. The most straightforward explanation is the presence of a selection bias. There is support for this idea in each of the groups: Art. 96 can only be invoked with ACP countries which reduce a priori the population of potential targets. However, sanctions are not applied to every ACP country through Art. 96 exclusively. Consultations susceptible of leading to suspension are called only in cases of coups d’état and in the absence of hostilities. ACP countries endowed with strategic importance become the object of CFSP sanctions. Never summoned for consultations, oil-rich Nigeria and Sudan became CFSP sanctions targets. In view of the acute crises of Zimbabwe and Guinea-Conakry, the EU wielded both Art. 96 and CFSP measures. While in Sudan some fighting with rebel groups made the situation less amenable to consultations than cases free of armed conflict, the type of situation addressed in Nigeria, Guinea-Conakry and Zimbabwe largely corresponds to the democratic crises that characterise the rest of the Art. 96 suspensions universe. The selection bias becomes most visible in the case of the CFSP and informal

sanctions. The choice between enshrining the sanctions in a CFSP instrument

versus adopting them informally is unconnected to any geographical criteria or prior contractual relationship between the EU and the target. Such decisions remain political in nature and are left almost entirely to the Council’s discretion. The legal definition of the frameworks requires breaches in democratic rule, good governance or human rights to invoke Art. 96. Violations of the ILO Conventions are required to activate the GSP suspension mechanism. However, the EU has flexibility in determining the goals of CFSP and informal measures, as they do not feature as a response to violations in pre-existing unilateral or contractual frameworks. CFSP sanctions must merely be linked to the pursuance of the objectives of the CFSP stipulated in Title V of the TEU. In reality, these are defined so broadly that they can accommodate a large variety of demands, featuring the preservation of peace ‘in conformity with the principles of the UN Charter’, the strengthening of the security of the Union ‘in all ways’, the development of ‘democracy and the rule of law’ and ‘respect for human rights and fundamental freedoms’ (TEU, p.14). The informal arms embargo on China corresponds to a type of sanction which is recurrent in CFSP practice. Many measures, however, are sui generis and imposed on a one-off basis, such as the cocktail sanctions against Cuba or the pseudosanctions against Russia. The reluctance to act under the legal framework of the CFSP can be ascribed to a weak determination to pursue the sanctions or a fragile consensus among member states vis-à-vis a controversial target, which prevents the Council from legally committing to the measures. Similarly, the EU has chosen to withdraw GSP only from those countries that have been found by the ILO Commission of Inquiry to persist in systematic violations of core labour standards. Taken together, the different groups form a ‘hierarchy of tractability’: Art. 96 suspensions are employed whenever there is a reasonable expectation of success, while CFSP sanctions are reserved for more intractable cases. The apex is represented by the informal sanctions, which are wielded in cases where not only is the expectation of efficacy low, but the internal cohesion in the EU is fragile. While the selection bias explains Council behaviour in the choice of framework and instruments, it is unable to fully account for the core concern of the present investigation: the efficacy of sanctions in bringing about their intended aims. The positive record of Art. 96 suspensions is particularly puzzling, given that it contradicts the hypothesis that sanctions are less likely to be effective when they threaten the leadership’s permanence of power. This is certainly true in a group composed almost exclusively of sanctions geared towards the restoration of democratic rule following a military coup. Several interconnected explanations can be advanced. It is tempting to conclude that ACP suspensions are effective because they

deprive the target of substantial economic benefits in terms of tariff preferences and aid; in ACP countries material and non-material aspects can hardly be wholly dissociated from each other. Given that the conditionality criteria for the allocation of aid from the international financial institutions and the EU are comparable, EU suspensions are typically accompanied – if not preceded – by identical measures by other donors. Another aspect is what could be labelled

‘transitory legitimacy’. Being a recipient of development aid and an interlocutor of the EU is a source of prestige for leaders vis-à-vis other ACP countries, the domestic political elite, and the general public. This is especially valued by transitional authorities with fragile legitimacy. The impact of EU cut-offs is magnified by their secondary – or ‘snowball’ – effects. Private economic operators are likely to move their businesses to neighbouring countries offering more favourable economic environments. Foreign businesses prefer to invest in countries which are recipients of aid, as this indicates that the country is stable, and because they can only obtain export credits for operations conducted in such third-states. The economic aspect is closely linked to the question of international support. EU objectives frequently find support among the neighbours of the target country, and some ACP members of the target’s choice are allowed to participate in the consultation process which precedes suspension. Thus, the economic and symbolic harm inflicted on the target and the international cooperation variables combine to maximise the impact of the sanctions in this group. In this sense, the centrality of the economic element to the Art. 96 tool refers us back to classical sanctions theory. While Art. 96 suspensions fall short of blanket trade embargoes, this measure can induce compliance by fear of destabilisation in the sense suggested by Galtung. Withdrawing trade preferences from states whose economies depend on exports to the EU can provoke social unrest, or even an upheaval which could unseat those in power. While in most cases the objective of the sanctions was the organisation of

free elections that could easily unseat rulers, perpetrators are often prepared to restore democratic rule after staging a coup d’état with the aim of dislodging authoritarian rulers. This circumstance makes the influence attempt less challenging. Perpetrators sometimes undergo a genuine ‘learning process’ as members of the military profession who discover, once in power, that the withdrawal of aid by external donors threatens to bring about the collapse of the country’s economy. This underscores that a key dimension to the EU-ACP relationship is the economic incentive, a reflection of how ACP dependence on aid and tariff preferences facilitates EU influence over these countries. This situation involves a stark inherent inequality between both groups which is absent in other frameworks. Art. 96 suspensions are likely to inflict considerable economic damage on the targets, countries dependent on trade links with the EU and deprived of regional protectors. This group includes countries of doubtful viability in the absence of external aid. Several ACP countries belong to the group classified as Least Developed Countries (LDC). As repeatedly highlighted by scholars, the relationship between the EU and

the ACP states is unique, ‘unparalleled for its time’ (Holland 2004:125). But which aspects of this partnership, beyond the link of economic dependence, account for the successful resolution of challenges to democratic rules endemic to the ACP group? The partnership is based on a contractual agreement which enshrines respect for certain principles – ‘essential’ elements – whose violation gives rise to the suspension of the treaty. In other words, a contractual agreement stipulates that these principles need to be respected, and that failure

to do so can provoke the suspension of development aid. This creates a situation of legal certainty, especially given that the treaty currently provides clear definitions of the ‘essential’ elements. In particular, the consultation procedure offers a relatively amicable venue for conciliation, constituting an ‘antechamber’ to suspension which can render the adoption of sanctions unnecessary. In its current configuration, the consultation procedure offers the party in breach the possibility of averting sanctions by redressing the violation. Indeed, sanctions are only imposed where the ACP state affected refuses to make commitments or consistently fails to abide by them. The EU may release additional funds to support the government’s compliance. The highly structured nature of the consultations procedure can partly be credited with the successes observed in this group. A glimpse at the cut-offs performed before the introduction of the suspension mechanism under Lomé VI bis in 1995, which displays a higher number of failures, suggests that the availability of the institutionalised procedure of consultations, coupled with the legal certainty in which that process is embedded, played a role in the efficacy of these measures. In addition to this ‘antechamber’, the ACP-EU framework relies on a long-standing and mature comprehensive political dialogue. It is virtually all-encompassing: ‘any subject could be addressed’ (Arts 2005:161). It acts as a ‘pre-antechamber’ in which the EU can discuss its expectations well before the situation degenerates to the point that the EU contemplates sanctions. The legal and procedural arrangements for conducting political dialogue have gradually increased in sophistication: ACP countries have a ‘uniquely long history of political dialogue’ with the EU. Scholars continuously emphasise the unique nature of the EU-ACP contract. Despite some shortcomings, Arts describes the headway made in ACP-EU political dialogue as ‘unique, certainly when compared to other fora, on all accounts’ (Arts 2005:158). Holland celebrates that the EU-ACP Partnership links ‘politics, trade and aid in an as yet untested way’ (Holland 2004:125). The efficacy of ACP sanctions can be regarded as a reflection of the synergy produced by such linking. Thus, with the notable exception of the predicted failure of pro-democracy

sanctions, the findings from the examination of ACP suspensions underscore the validity of the selected variables. Through the consultation procedure, targets are offered ample institutional ‘antechambers’ prior to suspension. With a single actor – the Commission – bearing responsibility for conducting the consultations, benchmarking commitments and monitoring their implementation, the sanctions strategy is consistently managed. The sanctions strategies were reasonably coherent, in the sense that progress by the leadership in the implementation of commitmentswas rewardedwith the resumption of aid. The introduction of the ‘gradual and conditional’ approach to aid resumption constituted a major step in facilitating responsiveness to partial implementation of EU demands. Those factors which, beyond the economic element, facilitate the success of

sanctions seem to corroborate Drezner’s proposition that sanctions are more effective when imposed against friends than when wielded against enemies. At the same time, the observer’s attention is drawn to the contrast between the

presence of sophisticated procedures involved in the suspension, monitoring of implementation and resumption of aid and the absence thereof in the CFSP framework. The emphasis on dialogue and the legal necessity of calling consultations with the ACP country at the highest level prior to deciding on suspension appears to offer a useful venue for negotiation in which the EU, represented solely by the Commission, speaks with ‘one voice’. Of central importance is that once both parties have agreed on a timetable in the consultation phase, the Commission conducts its own regular monitoring of progress by the target in accordance with pre-established benchmarks. This situation considerably reduces the difficulties posed by a composite actor like the Council, where each member state relies on its own assessment, often following diverging criteria. The use of qualified majority voting for partial suspension eliminates the possibility of veto by one single member state, thus facilitating both the imposition and the termination of the measures. While Art. 96 procedures have been criticised for their rigidity and slowness (Laakso et al. 2007), the highly structured nature of the suspension and resumption procedure, coupled with the Commission’s role in negotiating with the target and monitoring its progress, can be held to be favourable to sanctions efficacy. The suggestion that the likelihood of success increases when the Commission

is in charge is at first sight disconfirmed by the sad failure of the GSPwithdrawals. However, a record of only two episodes makes this group hardly representative – if not negligible – while the fact that the delinquent beneficiaries are simultaneously CFSP sanctions targets does not allow an assessment of the efficacy of this tool in isolation. Finally, a closer look at the procedure leading to withdrawal reveals that, while highly structured and endowed with plenty of antechambers, it is not as genuinely led by the Commission as are Art. 96 consultations. It is not in the power of the Commission to initiate the procedure. Largely due to the lack of in-house expertise in DG Trade, increasing weight has been placed on ILO evaluations, to the extent that the EU has so far withdrawn preferences only from those countries with grave breaches in the eyes of the ILO Commission of Inquiry. As a result of its reluctance to make use of the withdrawal option, the EU has suspended only the most intractable delinquents of labour standards. By contrast, the positive impact of the Commission-led, structured nature of Art. 96 procedure is underscored by the failure of the early ACP suspensions. Cases of suspension in the pre-Lomé IV bis era almost invariably remained ineffective. After the introduction of the suspension clause, the failure of Art. 96 is more often the exception than the rule. Trends are conspicuous: as the legal tools were perfected, both the frequency of suspensions and their success rate increased. In the Cotonou era, some consultations managed to bring about a return to democratic rule in the absence of suspension, an encouraging development. Most ACP sanctions failures are to be found in episodes from the early 1990s, where the procedure was still at an embryonic stage – albeit some of the targets of that period might represent the most intractable cases in the entire ACP experience. Failure remains pervasive in a number of countries where coups are chronic: Guinea-Conakry, Côte d’Ivoire or Fiji. The persistence of

instability in these countries, however, cannot be ascribed to Art. 96 sanctions. Devised as an emergency remedy geared towards the restoration of essential elements, aid suspensions are ill equipped to address problems of long-term instability. The patterns of efficacy in CFSP sanctions differ greatly from the ACP

context. The CFSP universe is a highly heterogeneous group which features a high failure rate and little variation. The selection bias identified at the beginning of these paragraphs finds its most evident expression in the CFSP universe: targets are characterised by the support of neighbouring powers which act as ‘protectors’, weakening the international pressure to which the target is subject. Burma, Zimbabwe and Transnistria are examples of targets politically and economically backed by neighbouring powers. A distinguishing feature of this group is that sanctions have often been in place for long periods of time, mostly without any progress. The frequent failure of CFSP sanctions appears to corroborate the validity of most of the factors put forward by the present study. Often no other tool can be used to exert leverage on these countries with which bilateral agreements were never signed. The CFSP sanctions toolbox is composed of measures unable to deprive targets of anything valuable, and therefore ill suited to disrupting the activities of the leaders. The measures wielded produce limited harm, and in particular their economic impact remains marginal. Informal sanctions largely share these features. Yet, the few cases in which CFSP sanctions proved at least partially effective are rich in insights illuminating the operation of targeted sanctions, and particularly revealing of how the EU has availed itself of this instrument to achieve its political goals. What distinguishes these episodes from the bulk of CFSP cases? A factor central to success is proactivism on one of the sides of the dispute.

In order to set in motion the easing process, one of the parties approached the other with the intention of promoting the lifting of measures. The easing of the measures against Uzbekistan emerges as an excellent example of ‘negotiated’ lifting: in the aftermath of the imposition of sanctions, some EU actors conducted a sustained effort to persuade the Uzbek authorities to make concessions that would allow the measures to be diluted. Togo represents another perfect illustration, where the ‘negotiated’ lifting was initiated by the target. The planned, if ultimately aborted, lifting of the arms embargo against China largely resulted from intense lobbying by the Chinese mission in Brussels. The Commission published a non-paper detailing what it could offer to Belarus, and dispatched a visit to the country to present it. Even when diplomatic campaigns fall short of bringing an end to sanctions, attempts at approximation are fruitful in other respects. The idea that sanctions are but one element of a broader negotiating process is well known. However, the traditional image of a defeated, ‘repenting’ target conforming to the sender’s demands in search of accommodation is replaced in EU practice by a sender often as interested in restoring cooperation as is the target. The EU proved highly responsive to limited compliance, reciprocating even modest concessions. The EU’s remarkable responsiveness becomes especially – albeit not only – evident

in those areas where lack of cooperation affects its own economic interests. The rapidity with which the Commission established a ‘quasi-dialogue’ on energy with Belarus after Russia withdrew its support indicates that the lack of cooperation in this area was resented on the EU side. The very first step in the easing of sanctions against Uzbekistan consisted in reactivating the technical subcommittees under the PCA. The desire for cooperation is not always frustrated by the presence of sanctions. The persistence of the arms ban has not prevented China from becoming the EU’s second trading partner, nor from participating in its Galileo satellite project. A set of innovative findings highlighted by the investigation relate to the

motivations that led targets to make progress towards compliance. The EU has embraced the notion of targeted sanctions, distancing itself from the employment of economic embargoes in CFSP practice. This circumstance might create the impression that economic considerations have no role to play in the calculations of the sender – certainly not among CFSP sanctions targets, middleincome countries which are not dependent on aid. However, albeit non-economic in nature, CFSP sanctions operate against the background of the EU as an economic power and as a source of assistance. One of the most powerful forces compelling targets to seek accommodation with the EU is the ‘promise of wealth’ stemming from cooperation and trade. A case in point is Belarus: the underlying reasons motivating the Belarusian leadership to comply with EU requirements arose from the economic difficulties that followed the energy crisis. While sanctions were not at the root of the deterioration of the economy, the prospect of decline prompted the leadership to work towards their lifting. The leadership perceived the imminent decline in the country’s living standard as a danger to its permanence in power. In this sense, the scarcity of foreign investment from EU countries proved a more effective ‘sanction’ than CFSP blacklists. Statements by affected leaders corroborate this point. Belarusian President Lukaschenko was quoted as saying ‘if we have a free trade zone with Europe, we will be twice as rich’, while Serbian President Tadic declared ‘without co-operation there is … no entry into the EU, no increase in the standard of living’.1The primarily economic rationale underlying Belarusian accommodation with the EU evidences an irony in the notion of targeted sanctions: despite the efforts devoted to crafting sanctions to target elites without damaging the population, they only prove effective when leaders perceive economic decline as jeopardising regime stability. The promise of enhanced access to foreign investment, trade and additional assistance constitutes a powerful incentive operating ‘in the background’. Nevertheless, the presence of a compelling economic component in EU sanc-

tions does not assimilate its operation to that of traditional trade embargoes. It departs from the operation of trade embargoes in two fundamental ways. Firstly, it abandons the ‘all or nothing’ approach of trade embargoes, consisting in depriving the target of all imaginable benefits of cooperation until compliance has occurred. The use of the economic element by the EU, as most evident with the ACP but increasingly visible in the easing of CFSP

sanctions, is modulated in a gradualist fashion that rewards concessions by the target with the progressive resumption of cooperation. The easing of CFSP sanctions against Uzbekistan reflects this approach. The inclusion of Belarus in the multilateral track of the Eastern Partnership, with the option of participation in the bilateral track in the event of further progress towards EU demands, illustrates the fluid passage from an adversarial relationship to a first stage of cooperation. Thus, the target is granted access to selected benefits, whereby the EU hopes to encourage further steps towards compliance. This strategy comes close to blurring the distinction between the notion of sanctions and that of conditionality, locating EU coercive instruments in a ‘grey zone’. Secondly, the EU’s employment of sanctions departs from that of trade embargoes, in that sanctions are often initiated with the idea that the most powerful tools should not be activated from the onset. Illustratively, the Commission proposed that the suspension against Fiji should not entail the freezing of financial support for the restructuring of the sugar sector, in view of the ‘importance of the sugar industry for Fiji’s economy, employment and poverty situation’ (Commission of the European Communities 2007b:5). This policy is in full consonance with the notion of targeted sanctions, and particularly with the objective of avoiding the suffering of the population. However, the renunciation of the freezing of support for sugar sector reform appears to follow considerations of pure humanitarianism. From the point of view of sanctions efficacy, the threat of freezing the sugar reform support would have made Art. 96 suspension more potent. One could speculate whether the fact that ACP suspensions are managed by the Directorate-General concerned with development might have a ‘contamination’ effect in the design of ACP sanctions. The ‘promise of wealth’ associated with cooperation with the EU does not

solely account for success. The stigma that sanctions carry enhances their efficacy. Evidence suggesting that blacklisted individuals are dismayed at EU bans in their private capacity seldom goes beyond the anecdotal. With the exception of a prominent Zimbabwean official reportedly unable to access a considerable sum held in a British bank, due to the assets freeze, CFSP measures seem to have caused little material disutility to blacklisted individuals. They have had no impact on efficacy, as the malaise provoked did not compel leaders to accommodate. Thus, the stigmatisation of individuals in a private capacity does not appear to have inconvenienced them to the extent of affecting their behaviour. However, rulers are often concerned that sanctions do impinge upon their international prestige in their official capacities, or leadership roles. Certain leaders aspire for their countries to achieve widespread recognition as regional or even global powers. Therefore, they resent the stigma of being blacklisted, to the extent that they seek an accommodation. The desire for international prestige proved central in Uzbekistan’s progress towards meeting EU demands. As highlighted by experts, Uzbekistan does not want to be a ‘pariah’. Although the arms embargo also represented an inconvenience in other respects, Chinese officials were very vocal about their uneasiness at being put on a par with countries such as Burma or Sudan. The need to be externally

recognised as a ‘responsible’ power translates into leaders’ readiness to enter into a bargaining process with the sender. By contrast, the leadership of states which do not regard themselves as regional powers, and do not have any aspiration to become such, are less concerned with their external image. Thus, for countries such as Transnistria and Burma the survival of the state or regime takes precedence over prestige considerations. The desire for international prestige brings us back to the centrality of international support, one of the keys to sanctions success. The positive developments in relations with Uzbekistan can be ascribed partly to the absence of support from neighbouring powers. This is underscored by Belarus’ rapprochement with the EU following the rise of tensions with Russia. The only episodes featuring positive outcomes correspond to target countries which are aspiring or actual regional powers, such as Uzbekistan, Indonesia or Nigeria, while remaining unprotected by any patron state in the way that China and Thailand shield Burma, Russia shields Belarus and Transnistria, or South Africa supports Zimbabwe. Little insight can be gained from the universe of informal sanctions, which

contrasts with the other groups in that its outcomes do not display any clear pattern. They are highly heterogeneous in terms of the tools they wield and the goals they pursue, ranging from the restoration of democratic rule and the respect for human rights to unique instances such as state recognition, cooperation in the extradition of indicted war criminals, or accession to the NPT. A defining feature of this group is that the management of sanctions is characterised by a high degree of inconsistency. Regimes were often modified for reasons exogenous to the behaviour of the targets, lifted in the absence of progress towards compliance, or left in place despite considerable progress. The lack of compliance by most targets might have been due to the target’s realisation of the sender’s lack of determination. In any event, measures were soon revoked anyway, so that lack of compliance only interrupted aid or normal relations for a few months. In those episodes where progress was observed, the EU played a limited role: Peru’s and Guatemala’s speedy returns to democracy following coups d’état warranted the lifting of measures; however, these outcomes can be credited mostly to domestic pro-democracy forces. In Turkey and Serbia, included in the dataset because the object of the dispute was unconnected to reforms formally stipulated in the accession process, eventual compliance can largely be explained by their desire to join the EU.