A few years into the post-Cold War era, the adoption by the US of sanctions legislation geared to penalise foreign firms investing in countries under Washington’s sanctions elicited resistance from European allies, which coalesced into an unusually unified response by the EU. This response notably combined elements from the Community trade toolbox and that of the répertoire of the Common Foreign and Security Policy (CFSP). In the event, a negotiated solution to the conflict could be reached. However, secondary sanctions resurfaced some fifteen years into the new millennium, most conspicuously in the framework of the settlement of the Iran nuclear proliferation crisis, pitting Brussels and Washington again. Notably, the use of secondary sanctions after Trump administration’s withdrawal from the Joint Comprehensive Plan of Action threatened its survival altogether, jeopardising a key CFSP goal. This chapter explains the background to the current political conflict over secondary sanctions, illuminates the political dynamics that inform it, presents the tools developed for addressing the dilemma they pose to the EU and assesses recent developments.

This book critically examined the EU’s remedies system from a fundamental rights perspective, focusing on the EU’s activities outside the realm of law-making. The chapters in this book show a complex and nuanced picture. This conclusion discusses, first, the limits of the EU remedies system and, second, its potential, closing with an overall reflection.

The prohibition of the threat or use of force, enshrined in Article 2(4) of the Charter of the United Nations, is the most important principle in the charter, and the need for international solidarity through the collective action of third states is of the utmost importance when a flagrant violation of that principle occurs. After briefly introducing the case study of the 2022 Russia’s aggression against Ukraine, this chapter analyses whether the current customary legal regime on international responsibility provides for any legal obstacles precluding indirectly injured states from adopting secondary sanctions. In particular, the chapter analyses the use of the concept of ‘lawful measures’ in Articles 41(1) and 54 of Articles on the Responsibility of States for Internationally Wrongful Acts. It also considers that the collective system of the United Nations should be conceived, according to these same provisions, as the preferred framework for cooperative action. The chapter finally argues that when the unlawful use of force reaches the level of an act of aggression third states that are indirectly injured should be able to react through secondary sanctions. These measures, if adopted when the United Nations Security Council is deadlocked, should be considered as lawful because their objective is to remedy the wrongful non-compliance of third states with collective obligations arising from a serious breach of jus cogens norms by the aggressor state.

The action for annulment is one of the main avenues to test the lawfulness of EU measures in light of EU fundamental rights. Through this procedure, the EU courts exercise their role of guardians of the Treaties by confirming or striking down EU measures. Accordingly, the action has both an ex post regulatory and a democratic control function, while ensuring the coherence of the EU legal order under a Kelsenian model of constitutional review. It is through procedure that EU fundamental rights exercise their influence in the action for annulment: both the parties to the litigation and the Court invoke procedural fundamental rights to delineate the process-based obligations imposed on EU institutions. In so doing, both the applicants and the EU courts shape fairness and the rule of law in the EU administrative space. The centrality of procedure in the judicial review of EU law is a direct reflection of the plethora of procedures that constellate the EU governance. Yet recent rule of law saga cases appear to signal a new direction towards more substantive pleas (and therefore contestation) of EU law.

This chapter introduces Review Bodies as accountability mechanisms for fundamental rights violations by the EU executive. As an umbrella concept, Review Bodies includes all actors except courts that, upon individual petition, independently review potential fundamental rights violations by EU actors. For the EU, these Review Bodies are the European Ombudsman, Boards of Appeal, and Fundamental Rights Officers. Albeit vested with weaker authority than courts, Review Bodies offer two crucial elements for comprehensive access to justice. First, Review Bodies are complementary to courts, meaning that they are often more accessible and more specialized. Second, Review Bodies focus less on individual issues of legality but on structural problems that produce repeated fundamental rights violations. In principle, this would place Review Bodies in a prime position to advance executive accountability in the EU. However, too often, Review Bodies are underfunded and lack the ‘teeth’ to discipline EU executive actors. Therefore, to improve access to justice and remedy structural problems engrained into the Union’s burgeoning executive power, authority and funding of Review Bodies should expand and other actors, especially courts, should team up with Review Bodies to effectuate their structure-focused expertise through the ‘teeth’ of judicial authority and public pressure.

National courts are central actors in the EU legal system. In a system of remedies against EU acts, they take on a filtering function. Comparatively few civil society actors – individuals, groups, or companies – have direct access to the EU courts. This chapter focuses on the autonomous role that national courts can and do take on in addressing alleged rights violations by the EU. The chapter explores how enterprising civil society actors seize on the ambiguities inherent in a multi-level jurisdiction with contested hierarchies. In focusing on such efforts, this chapter is less interested in doctrinal questions of how to resolve conflicts inherent in a pluralist legal order. Rather, it looks at the circumstances under which civil society litigants – individuals, groups, and companies – address a claim to a national court and where national courts have historically been open to such claims.

This chapter explores how the imposition of unprecedented sanctions against Russia following the large-scale invasion of Ukraine in 2022 and the constant cat-and-mouse game of enforcement and evasion that ensued have altered the secondary sanctions landscape. More specifically, it examines to what extent, notwithstanding its longstanding and entrenched opposition to far-reaching US secondary sanctions, the European Union has gradually moved towards adding a ‘secondary’ layer to its own sanctions toolbox. The chapter first exposes the EU’s ambiguity towards extraterritoriality, both within and without the sanctions domain. It subsequently zooms in on a number of specific EU measures, namely the imposition of the so-called ‘price cap’ on Russian oil, the adoption of far-reaching import and export restrictions, including the prohibition to import certain Russian products even after these are located or have already been processed in third countries, and the threat of financial sanctions against, and criminal prosecution of, non-EU persons that facilitate the circumvention of EU sanctions against Russia. It then offers some concluding observations.

Chapter 3 covers national criminal law on terrorism worldwide. A total of 188 States (of the total of 197 recognized by the Secretary-General of the United Nations in his capacity as treaty depositary) have domestic legislation in place specifically criminalizing acts of terrorism. Despite certain commonalities, the definitions of these crimes are unique to each individual State. At the time of writing, only one State, Micronesia, had no dedicated legislative provisions on terrorism of any form in its domestic law. A further seven States – the Republic of Congo, Dominica, Eritrea, Kuwait, Sierra Leone, Suriname, and Yemen – repress the financing of terrorism with criminal sanction but do not also establish the perpetration of an act of terrorism as a distinct criminal offence.

This chapter addresses the issue of legality of ‘secondary sanctions’ from the viewpoint of international investment law. The theoretical situation considered is that of a foreign investor, having made an investment in the US, being subjected to penalties or restrictions under a US secondary sanctions regime, based on its conduct of certain transactions with a targeted country or entity, even though such business activities have no US jurisdictional ‘nexus’. The chapter first attempts at identifying the potentially relevant substantive standards of investment protection, including the prohibition of expropriation without compensation and the ‘fair and equitable treatment’ standard. The likelihood of a successful invocation of these standards by the claimant in an investor–State arbitration claim is discussed. In that process, it is considered inter alia whether the deterrent effect of secondary sanctions may per se amount to a violation of an investment protection instrument. The chapter then turns to the assessment of the possible defences that the respondent State may put forward in order to seek to escape its liability for the possible breach of a standard of bilateral investment treaties, notably defences relating to ‘security exceptions’ provisions in treaties and allegations as to the ‘illegality’ of the investment.

This chapter summarizes the maximum sentences available to domestic courts around the world for the perpetration of acts of terrorism. In more than one-quarter of all States this includes the death penalty. The chapter then describes the prosecution of terrorism suspects in selected domestic courts across the Americas, Africa, Asia and the Pacific, and Europe. It considers the reasonableness of the charges laid, the fairness of the trials, and the legitimacy of the sentences imposed upon conviction. Some of those prosecuted for terrorism offences are children or women. The overwhelming majority, though, are men between the ages of eighteen and twenty-five years.

This chapter examines what appears to be a rather ‘blind spot’ in EU law scholarship, namely the legal protection against factual conduct by the EU. In doing so, the chapter engages firstly with some conceptual clarifications of the term ‘factual conduct’ and provides illustrations of EU factual conduct potentially infringing fundamental rights. Secondly, the chapter looks at the system of legal protection available against fundamental rights breaches by EU factual conduct. It examines for this purpose judicial as well as non-judicial remedies and legal review mechanisms as enshrined in the EU Founding Treaties, CJEU jurisprudence, and in relevant EU secondary legislation. Third, the chapter ends with an assessment of the overall system of legal protection against fundamental rights breaches through factual conduct by the EU. It reveals strengths, gaps and challenges, and it suggests some solutions for improvement, in particular in the form of enhancing the array of EU administrative mechanisms and remedies with judicially reviewable outcomes.

The Outlook chapter presents the achievements and challenges of what we can now call international counterterrorism law. Outside the context of armed conflict, sectoral treaties govern international terrorism involving a range of tactics and targets, notably hostage-taking, bombings, hijackings, and nuclear terrorism as well as attacks on foreign diplomats and, under a treaty approaching universality, the financing of international terrorism. But the distinction with terrorism in a situation of armed conflict in these treaties should have been drawn far more sharply. Under international humanitarian law, the definitions of terrorism in armed conflict are clear.

China has long been a major target of primary sanctions and more recently of secondary sanctions. Like many other states, China has begun to explore legal efforts to resist US secondary sanctions, for instance by adopting a blocking statute. Unfortunately, it appears that these legal efforts, like those of many other states, cannot make much difference in practice, although they are not meaningless. However, China is different from many other states in that it has the potential to economically or technically overtake the US. Due to its ever-growing economic power, together with its legal efforts, China is expected to be able to neutralise US secondary sanctions in the future. Going forward, China, despite its growing power, is expected to maintain its basic policy of opposing unilateral sanctions and is unlikely to impose secondary sanctions to achieve its foreign policy aims. It will continue to emphasise the principles of sovereignty equality and non-intervention in internal affairs.