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The international law elephant in the  unilateral sanctions room.

Latest PostThe international law elephant in the  unilateral sanctions room.

 

 

By Anna Rubbi,  Guernica 37 Chambers

How do UK sanctions against Russia measure up against international law, and the principles of state sovereignty and non-intervention in? Has the UK sufficiently justified the imposition of unilateral sanctions by reference to international law? Russia’s invasion of Ukraine is undeniably an egregious breach of international law deserving condemnation and action from the international community, but international law should not be put to one side when its rules become an inconvenience.

Unilateral “sanctions”, usually of an economic nature, are measures taken by a State against another State to achieve a political objective. Recent unilateral sanctions from Western States have been particularly intrusive and hard-hitting, with the objective of dissuading Putin’s regime from continuing internationally unlawful conduct. However, their use, like any State conduct, must be compliant with international law.

The 1945 UN Charter to which 193 States around the world are party, pronounces that its existence is “based on the principle of the sovereign equality of all its Members”. State sovereignty is a concept which has been endorsed by States, the UN and the International Court of Justice (ICJ) on numerous occasions.

The General Assembly of the UN, in which all States may vote on resolutions, passed the Friendly Relations Declaration in 1970. Various similar resolutions have been passed subsequently. Elaborating on the principle of non-intervention in domestic affairs, the Declaration affirms:

No State may use or encourage the use of economic political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind.

The ICJ in the Nicaragua case against the USA explained that a State may not intervene with another State’s “choice of a political, economic, social and cultural system and the formulation of foreign policy. Intervention is wrongful when it uses methods of coercion in regard to such choices, which must remain free ones.”

There is a clear policy of non-intervention. There are, however, exceptions.

UNSC sanctions

Insofar as a State’s conduct goes beyond the manifestation of its sovereign rights such as by waging a war of aggression against another State, the UNSC may engage Article 41 (within Chapter VII) of the UN Charter, and call upon UN Member States to take certain measures in response. These “UNSC Sanctions” have been ordered in the past against  different regimes and range from arms embargoes, to business and travel restrictions. All UN Member States must comply with them. UNSC sanctions are the first exception to the non-intervention principle.

However, any of the Permanent Five (“P5”) members of the UNSC – Russia, China, UK, USA, and France, may veto any UNSC resolution. Therefore, while UNSC sanctions against Putin’s regime may be, in theory, the most appropriate under international law, in practice they are non-starters due to Russia’s status as a P5 member of the UNSC.

Countermeasures

Another measure akin to sanctions which is permissible under international law is a “countermeasure”. It does not require UNSC approval but is defined by the UN International Law Commission’s Draft Articles on the Responsibility of States (“ARSIWA”) at Article 22 and Chapter II (ARSIWA is not a binding instrument). It is a measure which State B may take against State A in order to “induce [] State [A] to comply with its obligations” in the circumstances where State A “is responsible for an internationally wrongful act”. Two key points must be stressed. First, State A’s original act, which gives rise to the countermeasure, must be “an internationally wrongful act”; it cannot just be an act which State B disapproves of. Second, State B may only adopt a countermeasure against State A insofar as it is an “injured State” due to State A’s internationally wrongful act.

A countermeasure cannot be taken by a non-injured State. However, provided that that State (State C) is also owed the same international obligation by State A which State A owes to State B (the injured State), State C may take “lawful measures” to ensure compliance, including demanding cessation of the wrongful act.

The scope of countermeasures and the length of time they may operate is also clearly prescribed by the provisions of ARSIWA. So too are other requirements including an explicit limitation on measures which breach international human rights obligations  and a requirement that they be “commensurate to the injury suffered” (or, proportionate).

Justifications for “sanctions” under international law

Under international law, the measures outlined above are the only avenues by which a State may lawfully act with the intent to coerce another State’s exercise of their sovereign rights.

This framework does not prevent a State from acting independently, and indeed exercising its own sovereign rights over its own domestic economic and foreign policy – that freedom is protected by the same principle of non-intervention. Indeed, retorsions are a legitimate example of this.

But a State must abide by international law, and by extension, the principle of non-intervention. Yet the credibility of “global” but unilateral sanction regimes which do not engage with, attempt to justify by reference to, or are not properly rooted in, international law is inevitably undermined.

UK and related sanctions regime 

So how does the UK’s sanctions framework stand up against these principles of international law?

SAMLA

Prior to 31 December 2020, sanctions which applied to the UK came from two sources: the EU and the UNSC (via the EU). In preparation for Brexit, however, the UK enacted its own legislation, the Sanctions and Anti-Money Laundering Act 2018 (SAMLA), in order to allow it to impose sanctions (a) in compliance with UNSC-mandated measures and (b) independently.

SAMLA is a catch-all piece of legislation which gives Government Ministers the power to make regulations sanctioning a regime through the use of subordinate legislation. This means that the actual “sanctions” do not receive the same Parliamentary scrutiny. The Russian sanctions are examples of this.

The sorts of conduct which a Government Minster is empowered to prohibit (criminalise) or impose via their regulations is wide (s. 3-14 SAMLA). Aside from criminalising e.g. trade with a country, Minsters may also “designate” a person whom they have “reasonable grounds to believe” is “involved in” activity prohibited by the regulations. The Minister is only required to provide a designated person with a “brief statement of the matters that the Minister knows, or has reasonable grounds to suspect, in relation to that person,[] which have led the Minister to make the designation” and she need not do so before imposing the designation.

  1. 1(2) of SAMLA lays out an exhaustive set of purposes pursuant to which a Minster may make (unilateral) sanctions regulations, as different to UNSC sanctions. The list of purposes is incredibly broad and highly subjective; it includes the “further[ance of] a foreign policy objective of the government of the United Kingdom” and to “promote respect for democracy, the rule of law and good governance.” These are not defined further. The Minister therefore has significant leeway whom she chooses to sanction.

However, it is difficult to marry-up the circumstances in which a Minister can impose unilateral sanctions under SAMLA, with any lawful route under international law. For example, under s. 1(2), regulations could be made mandating the freezing of State A’s assets in UK banks with the simple aim of “further[ing] a foreign policy objective of the government of the United Kingdom” without any other justification. This would almost certainly be in contravention of the principle of non-intervention in international law as it would amount to coercing a change in State A’s behaviour by denying it access to its resources held in the UK purely for the purpose of UK “foreign policy objective”. Yet the broad nature of s. 1(2) seems to permit precisely this. Since the enactment of s. 57 of the  Economic Crime (Transparency and Enforcement) Act 2022 (EC(TE)A 2022) the provisions of s. 2 SAMLA – which used to require the Minister to be satisfied that the discretionary purpose being pursued by the unilateral sanctions regulations under s. 1(2) was exercised “for good reasons” and the sanctions were a “reasonable course of action for that purpose” – have been repealed and fallen away.

It is not clear which s. 1(2) “purpose” was the basis for the Russia Regulations.

Countermeasures and the obligations they entail (e.g. to offer to negotiate with a State before taking such measures), simply find no place in SAMLA. The discord between the limited framework for coercive action under international law and that pursued in SAMLA is apparent.

Justifications put forward for SAMLA and the Russia Regulations 2019

The political impetuses and legal justifications for both SAMLA and the tranche of regulations sanctioning Russia are found in various places. Justifications offered in Impact Assessment, Explanatory Notes and the White Paper, include an appraisal of sanctions as tools which “can be used to coerce a change in behaviour, to constrain behaviour by limiting access to resources, or to communicate a clear political message, and an admission that the UK (and the EU) turn to unilateral sanctions  where the UN has chosen not to act, but where we consider an international response is necessary” without further international dialogue or support. “International law” is mentioned only with regards to UNSC sanctions, as if UNSC sanctions were the only time international law was relevant.

Conversely, the Explanatory Memorandum for the 2019 Russia Regulations states that that regime is “aimed at encouraging Russia to cease actions” and asserts (rightfully) that Russia’s actions are breaches of international law and “present[] a serious challenge to the international rules-based order”.

There is no reference in any of these documents to assessments of or compliance with international law in the imposition of unilateral sanctions. The UK does not invoke its right to impose sanctions as a response to a breach of any international laws, and it does not characterise the Russia Regulations 2019 as a form of countermeasure. Interestingly, in the Russia Regulations, the language is of “encouragement” rather than coercion, which seems at odds with the reality of the conduct being prohibited.

The effect is that while the relevant primary and secondary legislation (i.e. SAMLA and the 2019 Russia Regulations) could be incompatible with international law in some circumstances, none of the potential frictions are addressed, and the limitations of non-intervention under international law are entirely ignored.

 

Unilateral sanctions in practice: cause for concern?

Is there actually a tangible impact of these failures to refer to (and comply with) international law?

For western States who frequently deploy unilateral sanctions, a justification framed in terms of international law (and countermeasures) is rarely, if ever, forthcoming. There may be various explanations for this, but the lack of justification under international law may also be because of the dubious lawfulness of these unilateral sanctions.

For example, the fact that the UK is not the State which is being invaded by Russia is not irrelevant – it means that the sorts of Russian-State-wrongdoing which may trigger the UK’s ability to engage in countermeasures is necessarily different to what would trigger Ukraine’s ability to invoke countermeasures. And the scale of the UK’s reaction, even if the international obligation(s) breached are owed to the UK itself, would necessarily be further restricted. In refusing to frame unilateral sanctions against the requirements of international law – or attempting to justify them by reference to the same – the UK is precluding an appraisal of its sanctions against the strict framework for the imposition of countermeasures; it appears to ignore the applicability of the countermeasures framework as a means to avoid demonstrating compliance with it.

Apart from a detrimental impact on the UK’s compliance record with international law, there may be more tangible issues with this omission. For example, Article 51(1)(b) of ARSIWA requires the UK to “offer to negotiate” with Russia before taking countermeasures – evidence of this is limited. Further, although the UK has intervened in Ukraine’s case against Russia under the Genocide Convention at the ICJ, it did not follow dispute settlement procedures itself, as is required by Article 50(2) of ARSIWA.

Finally, the UK has increasingly eroded the fundamental requirement of proportionality of its sanctions by removing the protections in s. 2 SAMLA. The further removal of the requirement to periodically review unilateral sanctions aggravates the issue of proportionality. While this may not seem like a priority where Russia is approaching its second year of illegally occupying Ukraine, proportionality must always be at the forefront of any coercive measures under international law, in order to prevent the risk of abuses. To ignore proportionality is to ignore the ample evidence that unilateral sanctions are not always the best measures, and that in a given circumstance, they may actually result in harm to the civilian populations they are deployed to protect.

Human rights obligations

One pertinent obligation on a State invoking countermeasures is the requirement that countermeasures do not affect “obligations for the protection of fundamental human rights”. Although the UK owes human rights obligations to all persons under its jurisdiction as a result of its membership of the European Convention on Human Rights (incorporated into UK law by the Human Rights Act 1998), there have been allegations that many of the sanctions imposed in the context of Russia are not compliant with human rights, or principles of due process and transparency. Article 6 ECHR (the right to a fair trial) and the corollary presumption of innocence until being proven guilty may also be undermined, particularly where representations cannot be made in advance of a designation being imposed. Notably, a human rights challenge to a designation under the Russia Regulations is yet to succeed in court. The wording of Article 50(b) ARSIWA is also arguably evocative of protection of all human rights, not just those under a State’s own jurisdiction – and there are documented adverse impacts of unilateral sanctions on the rights of persons who live in “sanctioned” States.

The value of references to and compliance with the countermeasures framework is clear; the framework exists to avoid the escalation of disputes – and indeed ensure de-escalation – and safeguard, as far as possible, order and cooperation between States. If the UK is convinced of the compliance of its unilateral sanctions with international law, which, as outlined above, may be a tall claim, it is difficult to understand what the UK stands to gain by refusing to frame its unilateral sanctions against measures.

 

Conclusion

States outside of the Western club have been slow to impose unilateral sanctions. Egypt for example, has held off, stating at the UN that “Egypt rejects the approach of employing economic sanctions outside the framework of the mechanisms of the multilateral international system“. Opposition to unilateral sanctions should not fall to be dismissed purely because it does not come from Western voices. Not only are they not necessarily as effective as is commonly believed (one need only need to look at India’s purchase, refinement and re-sale to the EU of the same Russian oil which the EU is attempting to boycott), they may not be compliant with international law and the objectives of peace and cooperation the latter embodies.

Far from advocating for passivity or inaction on the part of a powerful State in the face of another State’s attack on a civilian population, it is simply important to reinforce the value of and abide by the international rule of law, ensuring that any reaction is, and is seen to be, justified in international law.

 

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