Brexit Briefing: UK stays ambiguous on sanctions cooperation

Published on 8th May 2018

The issue at hand

On 30 January 2018 the Foreign Affairs Committee of the Parliament of the UK published its second report of the 2017-2019 session on the future of UK diplomacy in Europe. The committee’s report addresses general questions concerning the UK and EU foreign, defence and security policy, the bilateral relationship between the UK and the EU as well as UK-Irish relationship after Brexit. The Foreign and Commonwealth Office (FCO) – the UK’s ministry of foreign affairs – issued its response to the report on 14 March 2018, outlining the Government’s position on the issues of post-Brexit UK diplomacy raised in the report (see here for the full response).

A particularly noteworthy issue arising from Brexit is the future handling of sanctions by the UK. At this moment in time the UK is still part of the common EU sanctions system. In general, most sanctions are issued by the UN Security Council as resolutions and have to be adopted by the member states according to Article 41 UN-Charta. Since the competence for the commercial and trade policy lies with the EU (Article 215 Treaty on the Functioning of the EU) the member states do not adopt the UN Security Council resolution individually but through the EU.

A notable exception from this procedure are arms embargos, the implementation of which remains in the hands of the member states. In all other cases the Council of the EU takes a unanimous decision to adopt the resolution as part of the Common Foreign and Security Policy. The UN Security Council resolution is then adapted as a regulation, which itself is binding for all EU member states. Since the UK will leave the EU in 2019, it will also inherently leave the common sanction system of the EU. Both the Foreign Affairs Committee and the FCO have addressed this issue as part of their exchange on the future of UK diplomacy in Europe.

Foreign, defence and security policy

The largest part of the FCO’S response focusses on the general foreign, defence and security policy. In this regard the FCO stresses that the UK Government will seek a “close and cooperative” relationship with the EU. The FCO repeated the Government’s position that the UK’s relationship with the EU should go beyond existing third country relationships with the EU.

The Foreign Affairs Committee had included examples of general collaboration models in its report, namely bi-annual summits of UK and EU foreign ministers and monthly meetings of Europe ministers, which, according to their recommendation, could coincide with meetings of the Foreign Affairs Council (paragraph 28 of the report). In contrast, there are no remarks in the FCO’s response to the kind of engagement and cooperation structures that could be implemented in the future. In a general remark, it was merely pointed out that the specific model of the post-Brexit cooperation will be part of the Brexit negotiations. Although the FCO will not insist on any specific mechanism, the EU Taskforce 50 believes that the UK will not be a member of working groups, the Political and Security Committee or Councils, whatever cooperation model is agreed.

Cooperation on sanctions

In particular, the future of the UK sanctions policy and its possible coordination with the equivalent EU policy remains controversial. After Brexit, the UK will no longer be bound by EU law and regain competence to unilaterally impose sanctions, which currently still lies with the EU. Although the UK will be competent to impose sanctions unilaterally, it is likely that this increase in competence will reduce the effectiveness of any future sanctions, since sanctions are most effective when imposed on a multilateral level and simultaneously. Therefore, it is in the UK’s interest to find a system to coordinate sanctions multilaterally. Naturally, there is a variety of possibilities to achieve an efficient multilateral sanctions regime with the EU, ranging from full alignment with the EU system to informal agreements.

One approach could be to accept and implement the decisions made by the Council as part of the Common Foreign and Security Policy to align the UK sanctions to the EU system. However, this would result in a de facto loss of competence since the UK would lose its vote in the council, while having to accept the decision it could not influence anymore. The complete opposite level of cooperation could be achieved by an informal engagement, possibly on a case-by-case base, which is the modus operandi of the US-EU cooperation on sanctions. As a third approach, and a possible compromise, could aim at establishing an institutionalised forum to discuss and coordinate decisions on sanctions, which was suggested by the House of Lords’ European Union Committee in its eighth report of Session 2017-2019 in December 2017 (see here for the full report).

The Foreign Affairs Committee seems to consider a similar approach to be the most efficient cooperation mechanism. In its report, the committee refers to “institutionalised collaboration” as the ultimate goal of the UK-EU relationship in matters of foreign, defence and security policy, which also includes sanctions policy (paragraph 26 of the report). The FCO’s response on the other hand remains vague. It merely highlights that the UK will continue to work closely with the EU on sanctions. Regarding the model of cooperation the FCO stays true to the ambiguous character of the response and does not specify how the Government intends to structure the future relationship. The FCO broadly outlines the fact that there are possible mechanisms of dialogue ranging from formal structures and procedures to a more informal collaboration, which is how the US works with the EU.

Analysis and outlook

The ambiguous response given by the FCO falls short of the report’s intention to set out specific procedures and mechanism on issues regarding the future of UK diplomacy. The FCO has missed this opportunity to clarify the Government’s foreign policy and diplomacy targets after Brexit. With respect to possible models of future cooperation between the UK and the EU on sanctions, the response simply summarises the spectrum of available options and gives no specifications. What seems certain is that the UK will be less integrated into the decision making process of the EU with respect to sanctions, since it currently seems unlikely that the UK will seek full alignment with the EU sanctions system, which was also pointed out by the EU Taskforce 50. Furthermore, the FCO has repeated the Government’s position that the UK seeks to implement a close and cooperative relationship with the EU, which goes beyond conventional third country relationships. Therefore, it can be assumed that this will be also true for sanctions. How this cooperation will be implemented in the future remains to be seen.

However, from the UK’s point of view the current informal engagement between the US and the EU seems to be the minimum standard of cooperation between the UK and EU and therefore might serve as starting point for further negotiations. On the other hand, both chambers of parliament made it clear in their respective reports that they prefer a more institutionalised cooperation and harmonisation of between the EU and UK sanctions policy.

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* This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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