The effects of sanctions have been extensively studied in both the political science and economic literature, but with little appreciation of their consequences for third countries and the firms in these countries. This is an important oversight, given that secondary sanctions have the stated objective of holding third countries not party to the original sanctions regime to account for their actions. This chapter surveys the economic theory behind the possible effects of sanctions on firms in third countries and then extends this to the specific case of secondary sanctions. Looking at the US sanctions regimes on Cuba and Iran, and using the scarce empirical evidence available, this chapter concludes that secondary sanctions are likely to amplify the effect of sanctions. However, their effects will depend on the particular firm, the overall trading relationship between the third party and the sanctioned party, and the relationship between the firm and the sanctioning country.

The growing range and changing nature of unilateral sanctions have seen the emergence of a new label of so-called ‘secondary’ sanctions, as opposed to the more traditional ‘primary’ sanctions. While there is no accepted legal definition of secondary sanctions, in essence, secondary sanctions restrict economic transactions between third countries which may be entirely lawful under the law of these countries. Their extraterritorial character gives secondary sanctions their distinctive and particularly controversial character. Secondary sanctions create inter-State tension and may possibly violate a number of public international law regimes. They may harm the politico-economic interests of third States and cause headaches for private economic operators, whose potential exposure to secondary sanctions complicates the already complex web of multi-jurisdictional norms governing their international business transactions.

Accession of the EU to the ECHR is again a realistic prospect after the 46 + 1 Group reached a deal in March 2023. This chapter answers the question as to what the potential impact of EU accession to the ECHR is from the perspective of fundamental rights accountability and effective judicial protection vis-à-vis the EU. This chapter discusses the added value of accession showing how it fills two protection gaps while also contributing to coherence and legal certainty. It argues that actual substantive effects depend on the way in which the ECtHR will apply its case law vis-à-vis the EU, such as the margin of appreciation, positive obligations or locus standi, and access to justice. The second part of the chapter focuses on the procedural practicalities, including admissibility, the co-respondent mechanism, and the prior involvement procedure. The third part analyses how accession could remedy the gaps in judicial protection in the Common Foreign and Security Policy.

Chapter 7 sets out the key components of State responsibility under international law and then uses a series of case studies to demonstrate that responsibility in practice. Responsibility for a State’s negligent failure to prevent a terrorist attack looks at the acts and omissions of the Russian authorities with respect to the school siege at Beslan in 2003. Three cases have been chosen to exemplify the direct perpetration of terrorism by a State. The first case is the bombing by French agents of the Greenpeace boat, Rainbow Warrior, by French agents in New Zealand in 1985. The second involves certain acts of Syrian authorities following the protests related to the Arab Spring, in particular the widespread and systematic torture and summary execution of opponents of the regime. The third case is the conduct of Russian forces in Ukraine following its invasion on 24 February 2022. Examples of State responsibility as accomplices to acts of terrorism are the responsibility of Liberia for the actions of the Revolutionary United Front (RUF) in neighbouring Sierra Leone during the civil war and the potential responsibility of Syria for the murder of former Lebanese Prime Minister, Rafik Hariri, in Beirut on 14 February 2005.

No unitary definition of terrorism exists in international law and it is unlikely that States will agree upon one in the future. Chapter 1 describes how and why definitions differ in peacetime and in armed conflict and between international terrorism and domestic terrorism. Each of these scenarios evinces particularities in the contours of terrorism under international law. The chapter also explains why the United Nations Comprehensive Convention against International Terrorism has not been successfully concluded.

This chapter discusses possible avenues to access to justice outside the EU judicial system. More specifically, it assesses the possibility of using arbitration as a means to seek redress in situations where the EU has acted in violation of fundamental rights. Although this dispute settlement method exists outside the system of remedies within the EU, it has been an accepted form of dispute resolution in several instances by the Court of Justice of the European Union and EU institutions. The European Commission, for instance, relies on arbitration within EU competition law. Therefore, this chapter investigates into how much legal room exists for arbitration within the EU legal system and what drawbacks this could bring for the EU judicial system.

The procedure for a preliminary ruling is central in the ‘complete system of remedies’ offered by the Union to its citizens. Since Article 263 TFEU grants only a very reduced standing to ‘non-privileged applicants’, Article 267 TFEU became the main gate for individuals to bring their claims against the EU before the European Court of Justice. Yet, claims for breaches of fundamental rights by the Union are not at all common in the procedure for a preliminary ruling. This chapter investigates the (real) use and (realistic) potential of Article 267 TFEU as a means for the protection of fundamental rights against breaches by the EU institutions. The chapter maps all instances in which individuals used the procedure for a preliminary ruling to bring a claim against the Union for breaches of their fundamental rights since the coming into force of the Treaty of Lisbon. Using this mapping exercise, the chapter identifies how individuals raise this type of claims in the procedure, discusses the accessibility of the procedure for individual applicants, and assesses the shortcomings of the procedure as a means to redress breaches of fundamental rights by the Union. It argues that these shortcomings have to do with the structure and design of the procedure itself.

Whilst the United States ever more frequently imposes unilateral secondary sanctions, the debate on their lawfulness has only intensified. This chapter focuses specifically on the legality of imposing access restrictions, that is, denying third state sanctions evaders access to the United States and its commercial and financial markets. Until the late 2000s, it was widely held that access restrictions were a means of enforcing US prohibitions. The issue, therefore, was whether the United States had prescriptive jurisdiction to impose such prohibitions. If not, enforcement by way of access restrictions was unlawful. More recently, this has become contested. Some now argue that access restrictions are justified on uncontroversial jurisdictional grounds because they only regulate the behaviour of US persons on US territory. Others argue that access restrictions merely amount to a lawful withdrawal of privileges. In this chapter author’s view, these arguments are not convincing. Based on the relevant US legislation, the chapter shows why access restrictions are indeed enforcement tools. Since the underlying prohibitions cannot be justified under customary international law, such enforcement is unlawful. Furthermore, the international community has consistently condemned US secondary sanctions legislation, including access restrictions, as unlawful, leading to a customary international law prohibition.

As other chapters in this volume show, the EU remedies system is difficult to employ when it comes to EU fundamental right violations. When discussing (im)possibilities of procedural rules and how these encourage or discourage litigation, socio-legal scholars have referred to the concept of legal opportunity structures. In relation to this concept, the EU is a system with closed procedural legal opportunities: rules on directly accessing the CJEU severely limit the possibilities to pursue strategic litigation. At the same time, the EU has opened up legal opportunities as well, by bringing litigants a new catalogue of rights to invoke. In the context of fundamental rights accountability, strategic litigation is used extensively. This begs the question: how are actors (NGOs, lawyers, individuals) making use of the (partially) closed EU system and what lessons can be drawn therefrom? This chapter delves into several cases of mobilisation of the EU remedies system and describes the way in which the actors involved worked with or around EU legal opportunity structures, both inside and outside the context of formal legal procedures. The lessons drawn from these actions can inform future action in this field.

Chapter 5 considers the surveillance of potential terrorists and their arrest, including the force that may be employed to do so. Once in custody, criminal suspects should be interviewed without the threat or use of physical coercion in order to gather evidence to decide whether or not it is right to engage a prosecution for terrorism (or other criminal offences). In certain circumstances, control orders or similar judicial decisions may limit the actions at large of an individual suspect with a view to protecting the public. Most controversial of all, preventive detention by the State may sometimes be made where an individual has been convicted of no crime and is not being held on remand with a view to future prosecution. The chapter addresses these issues in turn considering the treatment of terrorist suspects in accordance with fundamental human rights.

This chapter examines if the systems of evidence in annulment, failure to act proceedings, and actions for damages, are designed to support private parties’ access to and participation in actions brought directly before the EU courts. Against the backdrop of evidence theory and the so-called procedural abilities doctrine, this chapter argues that, in the context of direct actions, the principle of effective judicial protection receives a restrictive reading. As a result, the requirements that private parties must meet to launch those actions do not, in practice, give way to broad procedural abilities and an unhindered access to the Union courts. These requirements thus seem designed to uphold a (strong) presumption of lawfulness of the EU legislature’s normative action, seeking to preserve the stability and coherence of EU law, rather than to ensure an effective access to, and exercise of the legal remedies included in the EU Treaties’ system of procedures.

The aim of this conceptual chapter is to define international secondary sanctions and to address the contemporary legal challenges they raise. It proposes to explain such complex legal mechanisms, to overcome the apparent definitional wanderings in their regard, and to identify concrete keys to tackle the legal problems encountered by public and private practitioners. To this end, the analysis begins with an explanation of the core concepts underlying secondary sanctions and focuses on the aim of (extraterritorial) secondary sanctions to extend their scope, what the author calls ‘the reach dilemma’. The unilateral and extraterritorial mechanics of secondary sanctions are then illustrated by three original figures, allowing the reader to grasp the complexity of the different levers involved. The study then addresses the additional difficulty arising from the apparent plurality of definitions of secondary sanctions and proposes an explanatory key enabling to retain only one working definition of secondary sanctions stricto sensu. Finally, the chapter goes on with the identification of the main difficulties currently facing public and private legal practices in this field and presents legal solutions that offer avenues for resolution, in the short, medium and long term.