National Margin of Appreciation as a Standard of Review for Economic Sanctions: in Search of the Golden Fleece?

In: The Italian Yearbook of International Law Online, Band 27, Heft 1, S. 53-75

Abstract

Recent economic sanctions imposed by the EU and US on Russia in relation to the Ukrainian conflict revived a discussion concerning the security exception clauses in international law. These clauses permit a particular state to take action aimed at protection of its national security that might be otherwise inconsistent with its substantive treaty obligations. Taking into account the ambiguity of such clauses, the question arises as to how to verify whether the adopted sanctions are indeed introduced with national security in mind and not to pursue pure protectionist aims. This article examines the national margin of appreciation from the perspective of its suitability as a standard of review for sanctions introduced under umbrella of the security exception provision of the General Agreement on Tariffs and Trade. Since this doctrine was developed in the case-law of the European Court of Human Rights both academics and practitioners alike are undecided as to its application in international trade and investment law disputes. In search of inspiration for an appropriate standard of review, the article briefly analyses recent Court of Justice of the European Union cases dealing with the security exception provisions. Drawing from the analysis of the relevant case-law of the international tribunals, the research points out that despite its frequent use by the European Court of Human Rights this doctrine remains vague, which, in turn, makes it hard to transplant to international economic law. The author concludes that the abstract contours of the national margin of appreciation doctrine, combined with diverging goals of the European Convention on Human Rights and world trade systems, make it unsuited for review of economic sanctions.